Reproval Vacated: Privacy Trumps Public Access

An order sealing records of a bar discipline proceeding was in the main adopted by the California State Bar Court Review Department

In December 2023, a hearing judge granted Respondent EE’s September 2023 Motion to Vacate, Dismiss, and Seal in which the judge (1) vacated a 2019 public reproval order; (2) dismissed the proceeding without prejudice pursuant to rule 5.124(G) of the Rules of Procedure of the State Bar and required any reference to this matter on his attorney profile page be removed pursuant to the clerk’s entry of dismissal; and (3) sealed the entire record of this proceeding pursuant to rule 5.12 (original order). The next day, the judge entered a public order stating that the record had been sealed (public sealing order). One week later, the judge issued an amended order (amended order) that restated the language as used in the original order, and clarified that three documents were not to be sealed and were to remain public, including our prior published Opinion (2023 Opinion). The amended order also referred the matter to the Review Department to determine if our 2023 Opinion should be depublished and sealed. Because of the amended order, the judge filed an additional public order regarding sealing (amended public sealing order) that reflected the amended order’s provision for the public status of the three documents.

OCTC seeks summary review and requests that we reverse the hearing judge’s original order and amended order, declaring them void, and further order that respondent’s 2019 public reproval remain public and in full effect. It also requests that his records not be sealed in any manner. Respondent asks us to dismiss OCTC’s request regarding the judge’s original order and to deny its request for the amended order or, in the alternative, to affirm the judge’s original order and amended order. Upon our independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the judge’s original order and amended order, except as explained below.

The underlying matter

In 2018, respondent pleaded nolo contendere to a misdemeanor charge under Penal Code section 632, subdivision (a) (eavesdropping upon or recording confidential communications). All other charges against respondent were dismissed.  His plea included his admission that he, in 2017, recorded three conversations with his then wife, which occurred in their home, and respondent did not have her consent to record any of the conversations. Respondent was sentenced to three years of informal probation.

The conviction was referred to disciplinary authorities leading to the public reproval

Following the finality of the 2019 public reproval order, respondent took steps to ameliorate his 2018 criminal conviction in state court. First, in January 2020, he obtained a Penal Code section 851.8 factual innocence finding regarding the dismissed counts in his criminal case. Next, in November 2020, respondent was allowed to withdraw his nolo contendere plea to the Penal Code section 632, subdivision (a), conviction and obtained dismissal of the conviction pursuant to Penal Code section 1203.4.

Respondent sought but was initially denied in his efforts to unring the discipline bell

Approximately two weeks after he filed his petition for review in the California Supreme Court, a San Joaquin County Superior Court judge issued the following orders in respondent’s misdemeanor criminal matter upon unsealing the superior court file: the court (1) vacated the 2020 expungement obtained under Penal Code section 1203.4; (2) vacated respondent’s Penal Code section 632, subdivision (a), 2018 misdemeanor conviction; and (3) dismissed respondent’s conviction pursuant to Penal Code sections 1385 and 1473.7.  The judge also stated that he was making “a finding of factual innocence” and then ordered the file to be re-sealed.

OCTC opposed relief

OCTC contends that the hearing judge had no authority or jurisdiction to consider respondent’s motion following the summary denial by the California Supreme Court of his petition for review and that his discipline (i.e., the order of public reproval) became final at that point.

Decision of the Hearing Judge

The hearing judge ordered the court clerk to seal the entire record in this proceeding pursuant to rule 5.12, with the exception of three documents that would remain public: (1) the 2023 Opinion; (2) the public sealing order; and (3) the amended public sealing order. In both the original order and amended order, the judge specifically found that respondent’s “constitutionally protected privacy interests outweigh the public interest in this proceeding” because his criminal conviction had been vacated, which “void[ed] the basis for this disciplinary proceeding.”

OCTC argues that the hearing judge’s sealing order must be voided because both the reproval order and the related proceedings were public.

Here

his right to privacy―in keeping his now dismissed disciplinary proceeding from dissemination by the State Bar to the public. Any interest that the public could have in his dismissed proceeding is outweighed by respondent’s protected privacy interest.

In conclusion, we affirm the original and amended orders of the hearing judge, except where noted:
1. The 2019 public reproval order is vacated.
2. The proceeding is dismissed without prejudice. (Rules Proc. of State Bar, rule 5.124(G).) The matter will remain absent from respondent’s attorney profile page.
3. Our 2023 Opinion is ordered sealed as we find that respondent’s privacy interests outweigh the right of public access to the opinion. (Rule 5.12.) Because the California Supreme Court denied respondent’s petition for review of our 2023 Opinion, we do not have authority to depublish the opinion. Respondent has a pending petition with the Supreme Court to seal the record and suppress his name on the Supreme Court’s public docket. The Supreme Court has requested that the State Bar serve our Opinion on Summary Review on it after filing. When the Supreme Court considers respondent’s petition, we request guidance from the Supreme Court as to depublication of the 2023 Opinion and whether it can remain published if we remove names and other identifying information.

4. As this is a dismissed proceeding, we find that respondent’s privacy interests outweigh the right of public access to the record. (Rule 5.12.) Due to the confidential nature of these proceedings (rule 5.9), as of the date of this Opinion on Summary Review, we order the entire court record sealed, including the original public sealing order and the amended public sealing order. However, this anonymous version of the opinion is designated for publication and available to the public.28 In addition, we order the court case information sealed. Any future pleadings filed in the State Bar Court in this matter are ordered to be filed under seal. We further order that protected and sealed material will only be disclosed to (1) parties to the proceeding and counsel; (2) Supreme Court personnel, State Bar Court personnel, and independent audiotape transcribers; and (3) personnel of the State Bar’s Office of Case Management and Supervision when necessary for their official duties. Protected and sealed material will be marked and maintained by all authorized individuals in a manner calculated to prevent improper disclosure. All persons to whom protected and sealed material is disclosed will be given a copy of this opinion sealing the record by the person making the disclosure.

(Mike Frisch)