The Supreme Court yesterday remanded to the State Bar a disbarment recommendation so that the Bar’s hearing department can conduct further proceedings “to determine whether the . . . facially neutral disciplinary practices at issue . . . had the effect of discriminating . . . on the basis of race.” It’s the second remand in the matter. Justice Martin Jenkins recused himself.
The order comes in Harper on Discipline, in which the attorney in pro per argued to the court (petition here; reply here; State Bar answer here) that the discipline system “has an unconstitutional blind spot for the plight of Black Male Attorneys.” He relied on a 2019 study — commissioned by the Bar itself — about racial and gender disciplinary discrepancies and on a follow-up Bar report.
The Bar’s review department opinion rejected Harper’s allegations, concluding, “There is no evidence in the record that supports [Harper’s] claims that the discipline recommendation here was based on the disparate impact of discipline on Black male attorneys.”
That opinion followed an earlier order returning the matter to the Bar. Last August, the court remanded to the Bar’s review department “for consideration of Harper’s unaddressed claim that his discipline is based on a theory of disparate impact.” Apparently, the review department’s decision on remand didn’t adequately address the claim.
Yesterday’s order additionally provides, “The State Bar must determine whether Harper was disciplined more harshly than any similarly situated white male attorney based on the data underlying the Farkas study and the Robertson report. [Citation.] The Hearing Department shall reopen discovery to permit Harper to obtain all data reviewed for purposes of the Farkas study and the Robertson report with identifying information redacted.”
[January 29 update: Cheryl Miller in The Recorder — “California Supreme Court Asks State Bar Whether Black Lawyer’s Disbarment Was Discriminatory.” The article says At The Lectern first reported the Supreme Court’s order.]
[February 4 update: Henrik Nilsson in the Daily Journal — “Supreme Court again tells State Bar to look at bias against Black male attorneys.”]
[December 17, 2022, update: Gregory Harper is quoted in the Los Angeles Times article by Harriet Ryan and Matt Hamilton, “As Tom Girardi skated, California State Bar went after Black attorneys.”]
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