October 17, 2011
No Collateral Estoppel In Bar Proceeding
The California State Bar Court affirmed the dismissal of ethics charges brought against an attorney for his handling of an appeal in a bitterly-contested domestic relations proceeding. The attorney, an associate, and his client were all sanctioned by the Court of Appeal for frivolous litigation.
The State Bar Court rejected the State Bar's collateral estoppel argument based on the opinion in the underlying case:
The evidentiary centerpiece of the State Bar’s disciplinary case is the Court of Appeal’s finding in In re Marriage of Gong and Kwong, supra, 163 Cal.App.4th 510, that Eytan filed a frivolous appeal.The State Bar asks us to apply the Court of Appeal’s finding preclusively, so that Eytan is collaterally estopped from relitigating this finding. However, in In the Matter of Lais (Review Dept. 2000) 4 Cal. State Bar Ct. Rptr. 112, we were unwilling to rely on the principles of collateral estoppel to preclude an attorney who had filed a frivolous appeal from defending himself against charges of violating rule 3-200 and section 6068, subdivision (c)...
The State Bar Court, while recognizing that the Court of Appeal had found the attorney's conduct "repugnant," nonetheless concluded that the charges were not proven:
...when we view his actions on behalf of [the client] through the lens of the clear and convincing standard, and we take into account his testimony in the hearing below explaining his actions, we find that his admittedly aggressive advocacy does not constitute disciplinable misconduct under rule 3-200(A), rule 3-200(B), or section 6068, subdivision (c). Based on the evidence adduced in these proceedings, we find no reasonable basis to overturn the hearing judge’s decision to dismiss this case.
The accused attorney may petition for reimbursement of some of the costs of defending the bar charges. (Mike Frisch)
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