Tuesday, June 3, 2008
Page 3
Panel Rules Bar Court Erred in Dismissing Discipline Referral
By a MetNews Staff Writer
The California State Bar Court’s Hearing Department erred when it dismissed the referral of an attorney’s criminal conviction for possible discipline on the grounds that the State Bar’s failure to notify the attorney of the contentions against him violated due process, a three-judge panel ruled yesterday.
Concluding that the hearing judge lacked justification to dismiss a referral to determine whether the facts and circumstances surrounding San Diego attorney James R. Miller’s assault conviction arising from an altercation with a police officer at an Ohio airport warrant discipline, the panel remanded the matter to the Hearing Department with directions to vacate the order and conduct further proceedings.
Miller was in the Port Columbus International Airport on Aug. 8, 2004, when he allegedly became abusive towards Transportation Security Agency employees who were screening him as a passenger. The facts are disputed as to what subsequently occurred between Miller and a police officer who responded, but Miller, on Feb. 1, 2005, pled guilty to a misdemeanor charge of assault arising from the incident.
The State Bar filed an order on March 16, 2006, referring the conviction to the Hearing Department for a hearing and decision recommending the degree of discipline in the event that the department found that the facts and circumstances surrounding the conviction involved moral turpitude or other misconduct warranting discipline.
The department clerk served Miller with a notice of hearing by certified mail at his official membership records address, and the notice specified the criminal conviction which was the subject of the referral and the issues to be decided at the hearing. It also directed Miller to attend in order to present evidence on his behalf and cross-examine witnesses.
After Miller failed to respond, the State Bar moved for entry of default. The motion informed Miller that if he failed to answer timely, evidence that would otherwise be inadmissible could be used against him, and it stated the minimum level of discipline the State Bar recommended if culpability was found.
Miller did not respond, and the State Bar submitted a brief detailing the evidence offered to prove the facts and circumstances surrounding Miller’s conviction to the court.
However, the hearing judge vacated the submission, concluding that the State Bar had breached principles of due process and fundamental fairness by failing to give Miller notice of the factual and legal contentions upon which the State Bar was relying.
On review by the panel, retired State Bar Court Presiding Judge Ronald W. Stovitz, sitting by designation, concluded that the procedures surrounding Miller’s conviction referral proceeding afforded Miller ample protections.
In a referral proceeding, all facts and circumstances surrounding an attorney’s commission of a crime may properly be considered, he explained. Because the court should consider a “wide ambit of facts” regarding an attorney’s criminal conviction and the conviction itself is the basis for the referral proceeding, a notice informing an attorney that evidence regarding his criminal conviction could be introduced is all that is required, Stovitz wrote.
Judges JoAnne M. Remke and Madge S. Watai joined Stovitz in his decision.
The phone number listed for Miller on the State Bar website was disconnected, and the website for his former firm, Miller & Ledebur LLP, did not provide a phone number for him.
Miller has a record of prior discipline by the State Bar and is currently ineligible to practice law.
The case is In re Miller, 05-C-04139.
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