By Robert J. Hansen
San Diego entrepreneur Justin S. Beck filed an antitrust case with four volumes of evidentiary exhibits against the California State Bar and its Chairman Ruben Duran on September 21, 2022.
The petition for the California Supreme Court to intervene with The State Bar of California’s conduct on behalf of the public was “stricken as premature” on September 27, 2022—affixed with a rubber stamp signature of former Chief Justice Tani Cantil-Sakauye.
An email from Beck to Deputy Clerk Ines Calanoc of the California Supreme Court confirmed the filing of the antitrust petition.
“It appears the former Chief Justice of California Supreme Court assigned the Bar’s Office of General Counsel to make an antitrust determination for itself,” Beck said.
A month later, on October 17, the State Bar responded to Beck with a determination on the antitrust complaint claiming immunity from antitrust laws and that Beck had 60 days to challenge the determination.
The next day a petition challenging the ruling appeared on the Supreme Court Case docket purportedly filed by Beck.
Beck said he never filed that case.
“I did not file nor authorize any petition to be filed on my behalf in this purported case,” Beck said. “I intended to challenge the frivolous determination that ignored all the evidence I submitted and ignored binding federal antitrust laws.”
The Office of General Counsel said there is no antitrust violation related to the State Bar’s attorney discipline system, claiming it falls within the immunity of the state action doctrine. But Beck’s petition challenged the State Bar’s other conduct, including inaccurate claims of immunity in civil litigation against the State Bar, State of California, Kenneth Catanzarite, and Catanzarite Law Corporation.
A letter from Robert G. Retana, Deputy General Counsel for California State Bar to Jorge E. Navarette, Supreme Court Clerk detailed that Beck had “60 days” from October 17 to file a petition for review of the antitrust determination.
“I didn’t even know the unauthorized petition was filed on my behalf in California Supreme Court until I received a court order dated November 30, 2022,” Beck said.
Beck’s petition cites anticompetitive behavior undertaken in Orange County Superior Court and summarizes alleged anti-competitive behavior, fraud, oppression and malice undertaken by discretion or complete immunity.
Beck’s antitrust determination is not listed on the State Bar’s website where the most recent antitrust determination listed was in January 2023.
The United States Supreme Court decided in N.C. State Bd. of Dental Examiners v. Fed. Trade Comm’n (2015) that regulatory boards controlled by “active participants” in the trade or profession cannot qualify for immunity from antitrust laws unless they can show that they are being independently and actively supervised by the state.
On November 30, 2022, the order said the petition for review on the case Beck did not file was denied. The order reflected the new case and also was signed by former Chief Justice Cantil-Sakauye, as filed by Deputy Clerk Navarrete.
One of the authors of a 2019 report which refers to bars as “cartels,” University of San Diego law professor Bob Fellmeth, said this is precisely what has been allowed to occur for decades concerning the regulation of the legal profession.
“Such an entity is not a state agency,” Fellmeth said in a recent interview.
The State Bar does not possess state civil immunities for protectionist conduct because it is controlled by lawyers, for the benefit of lawyers, according to the U.S. Supreme Court.
“What we are facing in California within State Bar’s Thomas V. Girardi and Kenneth Catanzarite scandals involves lawyers protecting lawyers without active state supervision,” Beck said. “The logic behind binding federal antitrust law appears simple: dentists, doctors, plumbers, police officers, and lawyers look out for their own – and they don’t understand, or don’t care enough, to regulate their peers engaged in misconduct or crimes.”
A recent example of forging “dual allegiances” was Thomas V. Girardi’s influence over State Bar staff and leadership in a pay-to-play scheme that did untold damage to the public.
Active market participants, for example, attorneys, cannot be allowed to regulate their markets free from antitrust accountability, according to a U.S. Supreme Court ruling.
“No area of state regulation more ostentatiously violates federal antitrust law than does the legal profession,” Fellmeth wrote.
Fellmeth said that there are over 100 attorneys that have had several complaints filed against them which had yet to be investigated or disciplined. The backlog of cases, which is now over 10,000, is from a lack of resources at the State Bar.
University of San Francisco law professor Carol Langford said antitrust has nothing to do with the problems with the State Bar.
“Antitrust has nothing to do with it,” Langford said. “The truth of the matter is … if they were working for a big firm, those people would be putting in 12 hours a day and those cases would be worked.”
The Federal Trade Commission stated in 2015 that the U.S. Supreme Court “reaffirmed” that a state regulatory board is not sovereign and therefore not immune to antitrust regulations or laws.
FTC goes on to describe terms like the “clearly articulated policy” necessary and “active state supervision” by the California State Auditor or Fair Political Practices Commission, for example, to avoid scrutiny for federal antitrust violations.
Former California State Auditor Elaine Howle said the State Bar’s commitment to enforcing the professional rules of conduct is a reflection of leadership in both the Executive Office and the Board.
“Like any agency that both licenses and enforces licensing requirements there can be effective oversight of licensees as long as leadership supports that responsibility,” Howle said.
Howle said she does not know the current leadership at State Bar so can’t fairly opine on that.
Fellmeth, who has a storied history challenging The State Bar of California, even calls into question the legitimacy of California Supreme Court oversight, because “such courts tend to be inherently passive and not amenable to ‘active’ supervision as mandated, or they delegate information gathering and decisions impermissibly to attorneys.
“The Bar is massively underfunded to properly investigate attorneys who have had multiple complaints filed against them and the state legislature refuses to fund them,” Fellmeth said. “That’s (Senator) Thomas Umberg’s fault, and he’s a lawyer. I mean, come on man.”
A complaint was filed against Ruben Duran with the Fair Political Practices Commission (FPPC) in which the FPPC said it has very little active state supervision over the State Bar.
“It appears that if there is a potential conflict of interest regarding members of the Board of Trustees, the State Bar may appoint a Special Deputy Trial Counsel to investigate the allegations. As far as I am aware, that is the only oversight avenue,” Laura Mandler, political reform consultant for the FPPC said.
The only supervision of Duran and other State Bar-affiliated persons is conducted by other attorneys licensed and controlled by the State Bar.
Beck presented demands for urgent state legislation conforming to federal antitrust laws to staff for California Assemblymember Eloise Gomez Reyes in a meeting on June 20, 2023.
“And the cartel has acted exactly as one would expect in line with its own interests,” Fellmeth said in his report.
Interesting, but it seems that there is a another basis to evade the improper defense of immunity. Bribe taking should not be the type behavior where judicial immunity applies.
Also, the Chief Justice is the de facto head of the state bar. It did what Chief Justice Tani Gorre Cantil-Sakauye wanted as did the Commission on Judicial Performance. As all acknowledge, she has the final say on all disbarments, but as was also clear, complaints against her desires did not make it to the Supreme Court to be rejected. According to the media, there were 205 state bar complaints against Girardi where nothing happened. Are we so dimwitted as to think the Chief Justice was unaware of 205 complaints?
It does not take a rocket scientist to see her similar behavior with the Commission on Judicial Performance.
Why do people go along with the fiction that lawyers run the state bar? It would be more accurate to say that the state bar devolved into a front organization for a corrupt judiciary, like a restaurant for laundering money for the mob. It not only protected corrupt attorneys (for a fee of course), but it also did the dirty work of disbarring troublemaker attorneys who filed lawsuits which displeased the powers that be, e.g. Richard I Fine. Then, there was state bar Judge Yvette Roland to exclude exonerating evidence so that the troublemakers would be disbarred.