Not Over Yet

A trial court erred in dismissing allegations on non-compliance with an order of suspension by summary judgment, according to a recent remand order of the California State Bar Court Review Department.

The attorney had been suspended for two years

On October 21, 2013, the hearing judge granted Eldridge’s motion, over OCTC’s objection, and dismissed the matter with prejudice. The judge found that Siminski, her former husband (the adverse party in the litigation), and his attorney were all “aware of the impending suspension and substitution of counsel well in advance of the filing or effective date of [the SCO].” As such, the hearing judge concluded that “[t]he prophylactic effect of rule 9.20 was served.”

Nope

Eldridge brought her motion pursuant to rule 5.124 of the Rules of Procedure of the State Bar, which provides specific and limited grounds for dismissal. She did not argue that the NDC failed either to state a legally disciplinable offense or to give sufficient notice of the charges. (See Rules Proc. of State Bar, rule 5.124 (C), (E).) Instead, Eldridge sought a dismissal on the merits, arguing that she had not violated rule 9.20 or committed acts involving moral turpitude. She relied on her and Siminski’s declarations and other supporting documents. However, the State Bar Rules of Procedure, including rule 5.124, do not provide for such a pretrial summary judgment motion…

We also find the judge erred in that she dismissed the proceeding on grounds that the rule 9.20 violation alleged in the NDC does not constitute a disciplinable offense. To begin, the judge observed that Eldridge did not represent Siminski in litigation at the time the SCO went into effect “as she had properly substituted out of the litigation” a day earlier. This conclusion overlooks that the filing date, not the effective date, of the SCO establishes the timeframe for determining whether client or litigation matters are considered “pending” and whether notification is required under rule 9.20.

 (Mike Frisch)