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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 the State Bar reneged on a 1996 stipulation in which he agreed not to contest a “private reproval” in return for the Bar’s written pledge not to “affirmatively provide any publicity of the disposition.” Mack sued in Los Angeles Superior Court in December for breach of contract and declaratory and injunctive relief, noting that one click past his name on the State Bar’s online membership records appears the line, “this member has a public record of discipline.” That cost him clients and damaged his reputation in the legal community, he said. In the Bar’s defense, Bar counsel Marie Moffat responded that discipline is a public proceeding and the fact that a specific lawyer has been disciplined has always been available to anyone who asks. Further, she told the court, a State Bar stipulation doesn’t have the effect of a commercial contract and so isn’t enforceable by lawsuit. Judge Madeleine Flier agreed on both points, throwing out the suit Wednesday. Specifically, 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 attorney, Kevin Gerry of Beverly Hills’ Gerry & Lear, said that while he and his client have not decided whether to appeal, he believes the ruling indicates the judge doesn’t 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. The Bar started putting the information on its Web site as a way to keep giving out information after a funding crisis forced the layoff of people who had answered telephone queries, Moffat explained. The language of the stipulation entered into with Mack is no longer used and was updated earlier this year to reflect the Web site’s role. The change was not a response to Mack’s suit, she said. “Everyone just thought it was a good idea.” Bar records show that the allegations against Mack included that he had not made timely responses to clients’ inquiries, that files were not transferred to new counsel when requested, and that he had not reported a judicial sanction to the Bar. “Private reproval,” said Bar spokeswoman Kathleen Beitiks, “is just a slap on the wrist.”

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