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The State Bar of California can post the fact of an attorney’s “private” discipline on the Internet without violating an agreement not to publicize it, a judge has ruled. Corona del Mar, Calif., lawyer Michael Mack complained that the bar reneged on a 1996 stipulation in which he agreed not to contest a “private reproval” in return for the bar’s pledge not to “affirmatively provide any publicity of the disposition.” Mack sued for breach of contract, noting that one click past his name on the bar’s membership records appears the line: “this member has a public record of discipline.” That cost him clients and damaged his reputation, he said. Bar counsel Marie Moffat responded that discipline is a public proceeding and the fact that a lawyer has been disciplined has always been available to anyone who asks. Further, she told the court, a bar stipulation doesn’t have the effect of a commercial contract and isn’t enforceable by lawsuit. Superior Court Judge Madeleine Flier agreed on both points and threw out the suit on May 17. She wrote in Mack v. State Bar, BC 221528, “[A]s a matter of law, making the database of public records available for inquiries via the Web is not publicity, but instead another vehicle for making Bar files available to the public upon their initiating the request — similar to an in-office visit or telephone call.” Mack’s lawyer, Kevin Gerry, of Beverly Hills’ Gerry & Lear, said that the judge doesn’t appear to understand computer technology. “The Internet is a publication every bit as much as a magazine, or a radio or television broadcast … only it is 24 hours a day, seven days a week, and worldwide,” he said. Mack was accused of not making timely responses to clients’ inquiries, not transferring files to new counsel when requested and not reporting a judicial sanction to the bar.

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