Opinion
Rehearing Denied Jan. 5, 1981.
Opinions on pages 217-242 omitted.
HEARINGS GRANTED [*]
[169 Cal.Rptr. 799]Allan F. Grossman, Inc., Encino, for petitioner.
Richard W. Younkin, William B. Donohoe, Dexter W. Young, San Francisco, Allan Yannow, San Jose, for respondent.
Michael D. Hiller, Sherman Oaks, Ian Herzog, G. Dana Hobart, James R. Ross, Los Angeles, Leonard Sacks, Northridge, for amicus curiae.
COMPTON, Associate Justice.
Petitioner George L. Katz, an attorney licensed to practice law in California, seeks by way of a writ of review to annul an order of the Workers' Compensation Appeals Board suspending him from appearing before the Board for a period of approximately 18 months.
The Board's action was taken pursuant to Labor Code section 4907, which authorizes the Board to revoke or suspend the privilege of any person, including licensed attorneys, to appear before the Board or any of its subordinate tribunals.
In Hustedt v. Workers' Compensation Appeals Board, -- Cal.App.3d --, 169 Cal.Rptr. 787, -- P.2d --, concurrently filed herewith, we disposed of petitioner's contention that Labor Code section 4907 is unconstitutional and held that the Board could properly exercise the power granted to it by Labor Code section 4907 with respect to licensed attorneys in this state.
Nevertheless, we are of the opinion that the Board, in the instant case, exceeded its authority and the order of suspension must be annulled. As distinguished from the situation in Hustedt, petitioner here has been suspended and the basis for that suspension appears in the record certified to us by the Board.
We feel compelled to observe that, although the Board has this day prevailed in its effort to retain the disciplinary power granted to it by Labor Code section 4907, if the record of its actions in the instant case is typical of the manner in which that power is exercised, the Board's success may be short-lived indeed.
In June of 1976, as a result of a relatively minor infraction of the Board's rules, petitioner's privilege to appear before the Board was suspended for one year. That term was suspended on condition that petitioner be on probation for a period of one year and serve a suspension of a period of 45 days.
In its answer to the petition for writ of review in this case, the Board refers to the suspension of the petitioner as a "suspension from practice" before the Board. Insofar as that term is intended to embrace activities beyond that of "appearing before the Board", as an advocate, it is misused. (See Hustedt v. Workers' Compensation Appeals Board, supra.)
In our opinion, the discipline was excessively harsh but petitioner sought no relief from that order. Thus we are powerless to review that order.
An additional condition imposed on petitioner in exchange for the Board's "leniency", petitioner was required to enter into an agreement with the Board whereby he promised to "completely remove himself from the workers' compensation practice both in and out of his office" and to "neither see nor communicate with any clients with reference to workers' compensation problems."
While it is true that these conditions appear to have been suggested by petitioner (we have no record of the negotiations which preceded the agreement) it seems clear that nothing less would have satisfied the Board.
The terms of the agreement indicate a misapprehension on the part of the Board and the petitioner as to the scope of the Board's authority. In light of the fact [169 Cal.Rptr. 800] that the Board's authority over licensed attorneys must be narrowly confined to that which is necessary to insure the orderly conduct of its hearings (Hustedt v. Workers' Compensation Appeals Board, supra), it is evident that the sweep of the agreement was in excess of that authority.
On December 27, 1979, the Board found petitioner to be in violation of his agreement. The Board ordered him suspended for the remainder of the previously suspended one year and imposed an additional suspension of six months. This is the order under review here.
The basis for the violation of petitioner's "probation" was a determination by the Board that he had, on September 24, 1976, prepared a petition for reconsideration on behalf of one of his clients. The petition was actually signed and filed by another attorney associated with petitioner in his practice.
Inasmuch as the terms of the purported agreement, as well as the conduct of petitioner which allegedly violated that agreement were beyond the scope of the Board's authority to regulate, the order under review was a nullity. Further, it appears that the order of suspension issued in June of 1976 has long since terminated.
The order of the Board is annulled.
FLEMING, J., concurs.
ROTH, Presiding Justice, concurring in result.
I concur with the net result of the majority opinion but not with the reasoning therein. For the reasons fully discussed in my dissenting opinion in Hustedt v. Workers' Comp. Appeals Bd. (1980) -- Cal.App.3d --, 169 Cal.Rptr. 787, -- P.2d --, concurrently filed herewith, the WCAB's temporary suspension of applicant's right to practice before the WCAB should be annulled on the basis that Labor Code § 4907, to the extent it permits the WCAB to discipline attorneys licensed to practice law in this state, is unconstitutional as both beyond the authority of the Legislature and in conflict with the exclusive power of the Supreme Court to license and discipline attorneys.
Further, I cannot agree with the majority's characterization of the WCAB's original disciplinary action in June 1976 as being based upon a "relatively minor infraction" of the WCAB's rules. Petitioner was originally disciplined for obtaining an advance attorney's fee from an injured worker without proper required notification to the WCAB. As the WCAB has pointed out, while this failure of disclosure was unintentional, petitioner had been personally admonished by the WCAB on a prior occasion about his lack of scrupulous care in the handling of attorneys fees (see Koker v. Elk Brass Mfg. Co. (WCAB en banc opinion, 1971) 36 Cal.Comp.Cases 292).
Petitioner's conduct must be considered in light of the fact that:
"Attorneys fees payable to the legal counsel for the injured worker are a lien on the injured's award; thus, they come out of the injured's recovery. Labor Code section 4906 provides that 'No charge, claim, or agreement for legal services or disbursements is enforceable, valid, or binding in excess of a reasonable amount. The appeals board may determine what constitutes such reasonable amount.' The purpose of Labor Code section 4906 is to protect claimants before the appeals board from the exaction of excessive fees. (Coviello v. State Bar (1953) 41 Cal.2d 273, 276-277, 259 P.2d 7; Workmen's Comp. Appeals Bd. v. Small Claims Court (1973) 35 Cal.App.3d 643, 646, 111 Cal.Rptr. 6; Koker v. Elk Brass Mfg. Co. (appeals board en banc opinion, 1971) 36 Cal.Comp.Cases 292, 294.) Further, it constitutes professional misconduct for an attorney to secure or attempt to secure fees in excess of those allowed by the appeals board. (Coviello, supra; Workmen's Comp. Appeals Bd. v. Small Claims Court, supra; Koker, supra.)" (Reich, Adell, Crost & Perry v. Workers' Comp. Appeals Bd. (1979) 99 Cal.App.3d 225, 229, 160 Cal.Rptr. 218).
In addition, the majority reads into the record that petitioner was somehow coerced into accepting the final terms of the original [169 Cal.Rptr. 801] suspension which was followed by a probationary period. There is nothing in the record to support such a conclusion.
Finally, I observe that the majority opinion criticizes the manner in which the WCAB exercised its disciplinary power in this case. While I do not necessarily agree with that characterization of the WCAB's conduct, the majority's criticism of the WCAB merely points out what was said in my dissenting opinion in Hustedt. The WCAB is not equipped to handle disciplinary matters (other than contempt) concerning attorneys; discipline of attorneys for professional misconduct by suspension or removal from practice should be left to proceedings by the State Bar as the administrative arm of the Supreme Court.
[*] See 30 Cal.3d 329 and 30 Cal.3d 353 for Supreme Court opinions.