The Supreme Court is likely to consider on Wednesday the petitions seeking review of the State Bar Court’s recommendation that John Eastman, President Trump’s former lawyer regarding the 2020 election, be disbarred in California. The case — Eastman on Discipline — is on the list, published this afternoon, of matters scheduled for consideration at the court’s April 1 petition conference. (The list usually posts just one day before the conference, but tomorrow is a court holiday.)
A denial of Eastman’s petition would equate to the court ordering his disbarment. A grant of his petition would postpone a decision until after additional briefing and oral argument.
Saying that “[i]n a democracy nothing can be more fundamental than the orderly transfer of power that occurs after a fair and unimpeded electoral process as established by law,” the Review Department concluded disbarment is “the appropriate discipline . . . when an attorney, who has sworn to uphold the laws and constitutions of the State of California and the United States, attempts to actively undermine the results of an election to the most powerful office in the United States with the goal of delaying or invalidating the lawful installation of his client’s electoral opponent and thereby keep his client in office.”
Eastman filed his petition for review in September of last year. The first of the petition’s six issues presented is, “Do the recommendations of disbarment by both the Hearing Department and the Review Department for core political speech and petitioning of the government for redress of grievances violate Dr. Eastman’s First Amendment rights?” Although agreeing with the disbarment recommendation, the State Bar had three weeks earlier filed its own petition for review concerning “two legal errors that, while they did not affect the outcome in this case, may significantly impact future cases.” (See here.)
Attorney disciplinary petitions for review are treated much like petitions for review in civil and criminal cases, with one important exception. The denial of review in the latter cases, in the words of former Chief Justice Tani Cantil-Sakauye, “does not communicate any particular view regarding the merits of the issues presented in the petition.” In a disciplinary matter, however, a review denial “is a final judicial determination on the merits” and is followed by the filing of the State Bar Court’s recommendation “as an order of the Supreme Court.” (Rule 9.16(b).)
