David Ettinger
It’s not often that you see a winning litigant ask the Supreme Court to hear their case. But that’s what the administrative agency California State Bar did on Monday.
The background: At the urging of the State Bar’s Office of Chief Trial Counsel, California’s State Bar Court in June recommended that President Trump’s former lawyer, John Eastman, be disbarred in the state. The recommendation was filed with the Supreme Court (Eastman on Discipline), which is to decide whether to accept the recommendation and disbar Eastman.
A former law school Dean at Chapman University, Eastman is almost certain to seek Supreme Court review of the State Bar Court decision. His counsel last week was granted a three-week extension — until September 29 — to file Eastman’s petition. In the interim, however, the State Bar filed its own petition for review, even though it said, “The State Bar agrees with both the [State Bar Court] Review Department’s culpability findings and its disbarment recommendation.”
The State Bar is asking the court “for review of two legal errors that, while they did not affect the outcome in this case, may significantly impact future cases.” The petition claims that “the Review Department erred in holding that, if subject to First Amendment protection, all of Eastman’s relevant statements were core political speech triggering strict scrutiny” instead of intermediate scrutiny and that “the Review Department erred in declining to find significant harm as an aggravating factor.”
In other types of cases, a prevailing party would normally not petition for review, but would, in an answer to the losing party’s petition, “ask the court to address additional issues if it grants review.” (Rule 8.500(a)(2).) It’s not clear if the State Bar has that option under the separate rules governing Supreme Court proceedings in disciplinary matters. (See rule 9.13 et seq.) But its petition states in a footnote, “Because the two issues identified in this petition did not affect the ultimate outcome in the Review Department, the Court may determine that they do not independently warrant review if Eastman’s petition is denied. For all the reasons set forth herein, however, they warrant review if Eastman’s petition is granted.”
In its original complaint State Bar attorneys, in a a 34-page petition with the California Supreme Court alleged that in his pro-Trump actions
"Eastman made myriad knowing misrepresentations—in written memoranda, in court filings, in media, and in person—falsely alleging that the 2020 presidential election had been stolen through election fraud and illegalities," the petition reads. "After losing arguments in the courts, with election officials, and with state legislatures, Eastman concocted the theory that the Vice President, as president of the Senate, could reject or delay the count of the legally valid, state certified electors from the seven swing states."
