Disbarment Proposed For Attorney Who Claimed Earlier Order Was Invalid

The California State Bar Court Review Department has recommended disbarment of an attorney who failed to comply with an earlier discipline order.

Reiner appeals. He contends that Reiner I is invalid and unlawful, and that, therefore, so is this “derivative” matter. We find no merit to his position, and in any event, disobedience is not the proper mechanism for challenging a final, binding, and enforceable court order…

We reject his attempt to collaterally attack the Supreme Court’s prior imposition of discipline—it is long since final and binding (In re Rose (2000) 22 Cal.4th 430, 441-442), and we are without authority to set aside an order of the Supreme Court. (Cal. Rules of Court, rule 9.10; In re Applicant B (Review Dept. 2004) 4 Cal. State Bar Ct. Rptr. 731, 733.)

Moreover, “[r]egardless of [Reiner’s] belief that the order was issued in error, he was obligated to obey [it] unless he took steps to have it modified or vacated.” (In the Matter of Klein (Review Dept. 1994) 3 Cal. State Bar. Ct. Rptr. 1, 9, fn. omitted; see also In the Matter of Boyne (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 389, 403-404].) If Reiner wanted to seek review of Reiner I, the appropriate avenue of relief was with the United States Supreme Court. (McKay v. Nesbett (9th Cir. 1969) 412 F.2d 846, 846 [“orders of a state court relating to the admission, discipline, and disbarment of members of its bar may be reviewed only by the Supreme Court of the United States on certiorari to the state court”].) The record does not indicate whether Reiner sought such review, but his time to do so has since expired, and Reiner I is now final and unchallengeable. (Maltaman v. State Bar (1987) 43 Cal.3d 924, 952 [“no plausible belief in the right to ignore final, unchallengeable orders one personally considers invalid”].)

Sanction

Reiner’s misconduct in both Reiner I and Reiner II involves disobedience of court orders. The Supreme Court has harshly criticized attorneys who willfully violate court orders, deeming it difficult to imagine conduct more unbefitting an attorney. (See Barnum v. State Bar (1990) 52 Cal.3d 104, 112.) “Disobedience of a court order, whether as a legal representative or as a party, demonstrates a lapse of character and a disrespect for the legal system that directly relate to an attorney’s fitness to practice law and serve as an officer of the court.” (In re Kelley (1990) 52 Cal.3d 487, 495-496 citing Maltaman v. State Bar, supra, 43 Cal.3d at p. 951.) When an attorney disobeys a court order based on an unreasonable interpretation not made in good faith, public discipline is necessary to send a clear message to the bar, the courts, and the public that serious consequences will ensue.

In assessing the appropriate level of discipline for Reiner’s violation of rule 9.20, the rule itself calls for strong disciplinary measures—disbarment or suspension. (Cal. Rules of Court, rule 9.20(d).)4 Case law also supports significant discipline. Decisions by the Supreme Court reflect the view that disbarment is generally the appropriate sanction for a willful rule 9.20 violation. (Bercovich v. State Bar (1990) 50 Cal.3d 116, 131; Powers v. State Bar (1988) 44 Cal.3d 337, 342; Lydon v. State Bar, supra, 45 Cal.3d at p. 1188.)

 (Mike Frisch)