2nd Civil No.

OCSC Case No. 05CC00971

 

IN THE COURT OF APPEAL

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION 3

__________

CHARLES BENNINGHOFF,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE,

Respondent,

The Honorable Michael Brenner, Judge Presiding.

__________

THE STATE BAR OF CALIFORNIA,

Real Party In Interest.

__________

PETITION FOR EXTRAORDINARY WRIT

__________

 

James S. Link (State Bar # 94280)

Counselor & Advocate At Law

215 N. Marengo, 3rd Floor

Pasadena, CA  91101

(626)793-9570

(626)356-7414 (fax)

 

Counsel for Petitioner Charles Benninghoff


 

Table of Contents

Introduction To Petition For Extraordinary Writ......................................................................................... v

Authentication Of Exhibits........................................................................................................................ 1

Capacity Of The Parties............................................................................................................................. 2

Factual Background.................................................................................................................................... 2

Procedural History...................................................................................................................................... 5

Basis for Relief............................................................................................................................................. 9

Absence of Other Remedies...................................................................................................................... 9

Verification...................................................................................................................................................... 11

Memorandum Of Points And Authorities.................................................................................................. 12

Introduction.................................................................................................................................................... 12

I......................................................................................................................................................................... 12

Fundamentally, Respondent Court Ignored The Well-Developed Body Of Law That Establishes That Lay Representation Is Purposefully The Practice Of Lay Representation Not The Practice Of Law............................................................... 12

II........................................................................................................................................................................ 15

The Respondent Court Acted In Excess Of Its Jurisdiction When It Ruled That Section 6180.3(a) Is Applicable Because Lay Representation Is Not The Practice Of Law Within The Meaning Of Section 6180 et seq............................................ 15

A.      Lay Representation Does Not Give Rise To “Unfinished Client Matter”.............................. 16

B.       For The Same Reasons, There Is No “Client” Within The Meaning Of Section 6180.3(b) Whose Interests Are Impacted               17

C.       No Other Interested Persons Or Entities Will Be Prejudiced Within The Meaning Of Sections 6180.3 And 6180.5.          19

D.       Respondent Court Has Rewritten The Law In Derogation Of Its Jurisdiction..................... 20

III....................................................................................................................................................................... 23

The Rules of Statutory Construction Further Demonstrate That Respondent Court Acted In Excess Of Jurisdiction      23

A.      Respondent Court Failed To Provide The Proper Narrow Interpretation Of The Apparently Vague Penal Statutes In Issue.          23

B.       The Opinion Of Legislative Counsel, The Law Firm To The State Legislature, Not “Some Young Woman That Is A Legislative Aid To Somebody”, While Not Binding Was And Is Entitled To Great Weight That Respondent Court Failed To Apply.              25

C.       Likewise, The Amicus Brief Of Judge Van Gorder Was Improperly Ignored........................ 28

IV....................................................................................................................................................................... 29

An Extraordinary Writ Is The Only Appellate Review Permitted Under Law And Should Be Issued By This Court         29

Conclusion...................................................................................................................................................... 30

Word Count Certificate................................................................................................................................. 30

Proof Of Service.............................................................................................................................................. 31

 

Table of Authorities

Cases

Buras v. Board of Trustees (1978) 360 So.2d 572....................................................................................... 15

Burlingame v. Justice's Court of Berkeley (1934) 1 Cal. 2d 71............................................................... 28

California Assn. of Psychology Providers v. Rank (1990) 51 Cal. 3d 1........................................... 32, 33

Caressa Camille, Inc. v. Alcoholic Beverage Controls Appeals Board (2002) 99 Cal.App.4th 1094 5, 16

Eagle Indemnity Co. v. Industrial Accident Commission (1933)  217 Cal. 244.................................... 16

Ewing v. City of Carmel-By-The-Sea (1991) 234 Cal.App.3d 1579......................................................... 30

In re Application of Hittson (1918) 39 Cal. App. 91............................................................................ 24, 26

Koepple v. Morrison (1927) 84 Cal. App. 137....................................................................................... 26-28

Schmier v. Supreme Court of Calif. (2000) Cal.App. 4th 703.................................................................. 36

Science Applications Intl’ Corp. v. Super.Ct. (1995) 39 Cal.App.4th 1095.......................................... 36

Walsh v. Dept. Alcoholic Bev. Control (1963) 59 Cal.2d 757................................................................... 30

Wasatch Property Management v. Degrate (2005) 35 Cal. 4th 1111...................................................... 22

Williams v. Superior Court (1993) 5 Cal. 4th 337,..................................................................................... 14

Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1........................................ 34

Statutes

Business & Professions Code §6180.13..................................................................................................... 11

Business & Professions Code § 6126......................................................................................................... 11

Business & Professions Code §§ 6180 et seq................................................................................... passim

Business & Professions Code § 6180.3.............................................................................................. passim

Business & Professions Code § 6180.5........................................................................ 11, 19, 21, 23, 24, 37

Government Code § 11405.80....................................................................................................................... 15

Government Code § 11425.50(a)................................................................................................................... 16

Government Code § 11502(a)........................................................................................................................ 16

Government Code § 11517(b)....................................................................................................................... 16

Government Code § 11520............................................................................................................................ 17

Government Code §§ 11505 and 11509....................................................................................................... 17

Government Code §§ 11405-11445............................................................................................................... 15

Government Code § 11405.80....................................................................................................................... 17

Government Code § 11425.30....................................................................................................................... 17

Government Code § 11440.20....................................................................................................................... 17

Government Code § 11440.60....................................................................................................................... 17

Government Code § 11455.30....................................................................................................................... 17

Government Code § 11512(a)........................................................................................................................ 16

Government Code §§ 10200 et seq.............................................................................................................. 32

Government Code §§ 11400, et seq.............................................................................................................. iv

Section 6126.................................................................................................................................................... 31

Other Authorities

Legislative Counsel Opinion 18108......................................................................................................... v, 31

The Adjudicative Process, (1995) 25 Cal. L. Rev'n Comm’n Reports ......................................... iv, 15, 18

Rules

Title 1 Cal. Code Regs. § 1015...................................................................................................................... 17

Title 1 Cal. Code Regs. § 1018...................................................................................................................... 17

Title 1 Cal. Code Regs. § 1028...................................................................................................................... 17

Title 1 Cal. Code Regs. § 1032...................................................................................................................... 17

Title 1 Cal. Code Regs. § 1034...................................................................................................................... 17

Title 1 Cal. Code Regs. § 1040...................................................................................................................... 17

Regulations

8 CCR § 10778................................................................................................................................................. 30

8 CCR § 10779........................................................................................................................................... 28, 34

 


 

Introduction To Petition For Extraordinary Writ

                In 1989, the California Law Revision Commission retained Professor Emeritus Michael R. Asimow as the chief consultant to guide the Commission in drafting a legislatively-mandated overhaul of the then-existing 1945 Administrative Procedure Act (APA).  As a result of his efforts for the Commission, the treatise, The Adjudicative Process, (1995) 25 Cal. L. Rev'n Comm’n Reports , was drafted and published.  In that treatise, Professor Asimow wrote:  “I believe that the APA should provide that a party can be represented by anyone of his choice, before any agency, whether or not a licensed attorney. The prohibitive cost of legal services,
and the very limited availability of legal services for the poor or pro bono representation, means that
most parties to administrative proceedings cannot afford lawyers. Indeed, non-lawyer advocates
may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases
raising scientific or technical issues ....”  ld. 516

                The Legislature enacted Professor Asmow’s recommendation in SB 523 of 1995 which replaced the old 1945 APA with Government Code §§ 11400, et seq. , permitting lay representation using the nomenclature “attorney or authorized representative.”  Professor Asimow’s recommendation is now firmly implanted in the statutes, regulations, various opinions of Administrative Law Judges, and the case law of courts of record that have examined the issue.

                Petitioner Charles Benninghoff (Benninghoff), who had resigned from the State Bar with charges pending, sought and received permission to proceed with lay representation of federal inmates in administrative international transfer proceedings and secured legal opinions, including Legislative Counsel Opinion 18108 , that he, a resigned attorney, could proceed with lay representation in California administrative proceedings.  Benninghoff so proceeded with his lay administrative representation business for 4 years prior to the instant action taken by the State Bar.  That action, an application under Business & Professions Code §§ 6180 et seq. , requested an order from Respondent Orange County Superior Court (Respondent Court) for the seizure of Benninghoff’s business, claiming he was practicing law without a license.  Respondent Court granted the order.

                The order of Respondent Court damages the right to lay representation in administrative proceedings by limiting without any legal authority those persons who may undertake such representation.  The order necessarily defines lay representation of third parties in administrative proceedings as “engage[ment] in law practice” within the meaning of Business & Professions Code §§ 6180 et seq. when undertaken by any resigned or disbarred attorney.  Respondent Court reasoned that lay representation has attributes of the practice of law and must therefore be deemed the practice of law, essentially using a smell test. Yet, the Legislature and administrative agency decisions establish that lay representation is distinct from the practice of law and a proper interpretation of sections 6180 et seq. further demonstrates that lay representation cannot be deemed the practice of law.

                The seizure of Benninghoff’s business by real party interest the State Bar of California (the State Bar) pursuant to the order of Respondent Court damages not only Benninghoff but those third parties whom he represented in the administrative proceedings.  The order further violates the due process of Benninghoff.  Respondent Court effectively states that Benninghoff has committed the crime of practicing law without a license when the legal opinions and actions of the administrative agencies, save two rogue administrative rulings, permitted him to undertake such work.  Obviously, the law is too vague and unenforceable if such a harsh result may now follow after all who properly analyzed the matter concluded that Benninghoff does not violate the law by his lay representation.

                The question therefore presented by this petition is this:  Does a resigned attorney, who undertakes lay representation of third parties in administrative proceedings, practice law without a license within the meaning of Business & Professions Code §§ 6180 et seq., such that a trial court and the State Bar may seize his business, property and livelihood?

                This issue presents a question of first impression that ought to be addressed because of the obvious importance of lay representation to the administrative process, demonstrated by the hard work of Professor Asimow to secure that right under the law.  Further, it is only by granting the relief sought that Benninghoff can avoid the incredible hardship and undeserved prejudice of having his business confiscated, his future obliterated, and likely being subjected to criminal prosecution without a full determination as to whether the unauthorized practice of law has taken place.


 

IN THE COURT OF APPEAL

STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION 3

__________

CHARLES BENNINGHOFF,

Petitioner,

vs.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF ORANGE,

Respondent,

The Honorable Michael Brenner, Judge Presiding.

__________

THE STATE BAR OF CALIFORNIA,

Real Party In Interest.

__________

PETITION FOR EXTRAORDINARY WRIT

__________

TO THE HONORABLE PRESIDING AND ASSOCIATE JUSTICES OF THE COURT OF APPEAL, STATE OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION 3:

                Petitioner Charles Benninghoff (Benninghoff) petitions this Court for an extraordinary writ directed to Respondent Superior Court of the State of California for the County of Orange (Respondent Court) and by this verified petition alleges:

                Authentication Of Exhibits

1.             All exhibits accompanying this petition are true copies of original documents on file with Respondent Court, except Exhibit “7”, which is a true copy of the original reporter’s transcript of the hearing of June 17, 2005. The exhibits are incorporated herein by reference as though fully set forth in this petition. The exhibits are tabbed and each is consecutively numbered so that citation to internal exhibits can be readily made.

                Capacity Of The Parties

2.             Benninghoff is the respondent in that action entitled “In the Matter of the Assumption of Jurisdiction Over the Law Practice of Charles Benninghoff III”, OCSC Case No. 05CC00971. The petitioner in that action is the State Bar of California (“State Bar”) who is the real party in interest.

                Factual Background

3.             By way of factual background, on September 9, 1999, Benninghoff resigned from the State Bar with charges pending following a conviction for conspiracy to falsify financial statements to a federally insured financial institution. 

4.             During the process of winding up his practice and complying with Rule 955, Benninghoff retained the services of former State Bar Prosecutor Ellen Pansky who helped him fulfill his obligations set forth in Rule 955 and who filed the documents required. It was at this time that his law practice ended. [Exhibit 3, 226]. 

5.             Following the resignation, Benninghoff received permission from the U.S. Department of Justice (“DOJ”) to represent prisoners as a lay representative in applying for international transfers. The DOJ advised Mr. and Mrs. Benninghoff five years ago that he could continue to represent said prisoners as a lay representative so long as he submitted appointment of representation forms which clearly reflected that the prisoner understands that no member of the bar was associated with Benninghoff and his business. [Exhibit 3, 57-58]

6.             Before engaging in lay representation in California administrative adjudications, Benninghoff asked and researched a myriad of agencies and authorities before doing so. He requested the Office of Administrative Hearings (OAH) through an attorney to clarify whether there were any requirements to be an “authorized representative” before the OAH.  [Exhibit 3, 237-238]  Its Legal Counsel informed him that there were no requirements to be an “authorized representative” and that in essence any one could do it. [Exhibit 3, 240]

7.             Benninghoff also called various offices of the Attorney General’s Office (“AG”) and asked if lay representation was permissible.  He was told that it was, as AG Opinion 97-409 found that at an individual who is not a member of the State Bar may represent a party, including the preparation of pleadings and the making of appearances, with respect to a formal proceeding before the California Public Utilities Commission (“PUC”), despite the fact that there is a statute, identical to a statute in the Administrative Procedure Act (“APA”) that states that a respondent may represent himself or have an attorney represent him. [Exhibit 3, 7-9]  This is also the exact construction given by Professor Michael Asimow in his Friend of the Court brief. [Exhibit 3, 27:1-18]

8.             Benninghoff discussed with his probation officer, Marcia Edsall, regarding lay representation. [Exhibit 2, 79:16-21] He also discussed this with Amy Belland, a member of the Bar and his subsequent probation officer. [Id.]

9.             Benninghoff also contacted the State Bar Prosecutor who originally tried him when he resigned with charges pending, Susan Anderson. [Exhibit 2, 77:14-16, fn. 2] He called her by telephone on or about October 11 or 12, 2000, discussing his intentions to become a lay representative, approved by his federal probation officers. [Exhibit 2, 77:17-23] She stated that he should never hold himself out as a lawyer while as a lay representative. [Exhibit 2, 78:2-9]  Ms. Anderson did not respond to a letter summarizing the conversation, so Benninghoff assumed that the telephone conversation was the extent of her decision. [Exhibit 2, 78:12-79:10]

10.         Benninghoff forwarded a question regarding whether resigned attorneys may practice as lay persons before administrative adjudications to the offices of State Senator Tom McClintock, which was in turn forwarded it to the Legislative Counsel. [Exhibit 2, 79:28-80:13]

11.         In about July or August, 2001 Benninghoff received and reviewed a copy of the Opinion of Legislative Counsel Number 18108, which states in pertinent part: “… it is our opinion that a resigned member of the State Bar may … represent a party as a nonattorney in an administrative proceeding of a government agency where a statute, regulation, or law authorizes a party to be represented by a non-attorney, except where a resigned attorney is specifically prohibited from providing representation as a non-attorney. [Exhibit 3, p. 6] (Emphasis added.)

12.         After presenting Opinion of Legislative Counsel 18108 to his probation officer and waiting a few months, he was told that everyone involved in his case, including the sentencing judge, agreed to allow him to begin representation in California as a lay person. [Exhibit 2, 80:14-17]

13.         Early in the lay practice, from the beginning in December of 2001, the probation officer would review the contracts, payments of his clients as well as his responsibilities, in addition to him giving monthly and quarterly reports laying out this information. Dec. of Charles Benninghoff [Exhibit 2, 80:20-24]

14.         During this lay practice, a Deputy District attorney, Timothy Newlove, pointed out to Benninghoff the case of Caressa Camille v. Alcoholic Beverage Appeals Board, one of the cases that appears infra. That holds that administrative tribunals are not courts of record and that therefore a non-lawyer could represent a party. This understanding was held by more than one administrative law judge. [Exhibit 2, 81:14-28]

15.         One of the administrative law judges that Benninghoff appeared before openly said that lay representation was allowed “’cause that’s [the] way we do things here.”  [Exhibit 3, 120, 124:8-]

16.         Then two decisions were “handed down” that began this litigation holding that Benninghoff was engaged in the unauthorized practice of law. One decision openly admitted it had no power to prohibit Benninghoff’s services, even as it attempted to find him guilty for doing so, while the other attempts to reason that statutory language such as “authorized representative,” as opposed to attorneys, should be disregarded. [Exhibit 2, 84:6-11] As of the writing of this petition for writ neither has been approved by the agencies both were written for.

17.         Benninghoff had advised all his clients while as a lay representative that he was not a licensed attorney and was representing them solely as a lay representative before the OAH. There are a number of declarations by former clients of his attesting to this. Prior to commencing a hearing, he likewise advised Administrative Law Judges that he is appearing as a lay representative of the licensee. [Exhibit 3, 106-150]

18.         Benninghoff has used his experience as an attorney, that is, he used his resignation from the bar to help show his clients how to contend with their own mistakes and how the acceptance of responsibility is the first step for many state licensing agencies to mitigate discipline. [Exhibit 2, 74: 6-16]

19.         In the literally hundreds of cases that Benninghoff pursued as a lay representative for four years, primarily before the Office of Administrative Hearings (OAH) under the Administrative Procedure Act (APA),he has received few complaints and has never held himself out as an attorney. [Exhibit 2, 100:13-17]

20.         On May 10, 2005, Michael Asimow filed an “Amicus Brief re Lay Representation” in State Bar court upon receiving word from Benninghoff that the State Bar was considering litigation against Benninghoff. [Exhibit 3, 23:18-22]  Writing as he has “a long-term interest in California administrative law,” Professor Asimow filed the brief supporting Benninghoff noting that he is “currently in the process of writing a treatise on California administrative law for the Rutter Group California Practice Guide series. That treatise will reflect the views on lay representation [stated in the amicus brief].” [Exhibit 3, 24:15-17]

                Procedural History

21.         On May 12, 2005, the State Bar filed an Application For Assumption of Jurisdiction over the business of Charles Benninghoff, alleging that he was engaging in the unauthorized practice of law. [Exhibit 1]  By the application, the State Bar alleged that Benninghoff has left “unfinished client matter” for which no active member of the Bar had agreed to handle and that interests of other persons allegedly needed protection.  [Exhibit 1, 2:12-18]  The State Bar further accused Benninghoff of the unauthorized practice of law by reason of his lay representation business.  [Exhibit 1, 3:19-4:26]  The State Bar attached 3 declarations and many pages of exhibits that it contended established Benninghoff’s alleged unauthorized practice of law.  [Exhibit 1, 31-313]

22.         On June 3, 2005, Benninghoff filed an opposition brief which included a number of defenses and responses to the various charges leveled by the State Bar.  [Exhibit 2]  In particular, the opposition brief stated that lay representation is common and an allowable practice within the administrative agencies Benninghoff appeared in. [Exhibit 2, 33:26-54:25][1]  Benninghoff filed his exhibits in opposition under separate cover.  [Exhibi 3][2]

23.         The Honorable Jerre VanGorder, a Retired Annuitant Judge for the Worker’s Compensation Appeals Board, examined the proposed order prohibiting Benninghoff from such lay representation. Bringing his experience with administrative law to bear, he noted that his own agency had in fact created a regulation dealing with resigned attorneys specifically as a class, making the point of differentiating them from lay persons as a class. [Exhibit 4, 4:1-9]  He points out that the Administrative Procedure Act, the relevant law in this litigation, has no such distinction, and that the Administrative Law Judges have no power to make it. [Exhibit 4, 4:15-28]  If resigned attorneys are going to be barred in this area of the law, he concluded, a regulation has to be properly enacted saying so. [Exhibit 4, 5:12-16]

24.         More importantly, the one administrative decision that prohibited Benninghoff from appearing in administrative adjudications has been deemed as “rulemaking” by the Office of Administrative Law (OAL). [Exhibit 5, 17, Conclusions] The letter examines the decision actually issuing an order against Benninghoff and found that the decision was an explicit interpretation of law and one that established a rule of general application. [Id.]. According to the OAL, the agency responsible for examining such regulations, the order is not enforceable because it was not adopted pursuant to the correct statutory process. [Id.]

25.         In both cases where orders were made by an administrative law judge (“ALJ”) against Benninghoff’s right to appear as a lay representative, the agency involved was the Medical Board of California, which was represented by the Attorney General.  The Medical Board argued that lay representation in California is illegal and is the practice of law.  Both ALJs concurred with the Attorney General.  [Exhibit 3, 60-84]

26.         On June 10, 2005, the State Bar filed a reply brief that discounted its earlier arguments concerning lay representation and focused on Benninghoff’s status as a resigned attorney, accusing him of being a “fraud” who practiced law. [Exhibit 6]

27.         On June 17, 2005, Respondent Court conducted a hearing on this matter.  [Exhibit 7]

28.         Notably, in the hearing, Opinion 18108 of the Legislative Counsel was derided by the Hon. Michael Brenner for Respondent Court as follows: “SOME YOUNG WOMAN THAT IS A LEGISLATIVE AID TO SOMEBODY WRITES AN OPINION THAT SUGGESTS THAT YOU CAN [UNDERTAKE LAY REPRESENTATION]. I MEAN, YOU KNOW, IT IS JUST A CONFUSING SITUATION. SO, THAT SHOULD BE CLEARED UP.”  [Exhibit 7, 54:3-6]

29.         Further, Respondent Court seemingly adopted the argument of the State Bar that Benninghoff was effectively disbarred and should not be permitted to work as a lay representative because he apparently has not been punished enough. [Exhibit 7, 32:10-23; 38:5-9, 54:7-16, 56:7-13]  Respondent Court cited to the Koepple case, saying that the state had a right to restrict the actions of a former attorney who was unfit to practice.  [Exhibit 7, 54:7-16]

30.         The same day, June 17, 2005, the Superior Court granted plaintiff’s application for assumption of jurisdiction over Benninghoff’s business and issued an order granting such jurisdiction to the State Bar. [Exhibit 8] Pursuant to that Order, the State Bar has seized the business and business related property of Benninghoff.  Benninghoff is informed and believes and based on such information and belief alleges that the State Bar has not secured representation for the parties represented by Benninghoff and has thereby jeopardized the relief sought by those parties in the administrative proceedings.

31.         A motion for reconsideration was filed. Thereafter, a notice of intention to move for new trial was timely filed on July 5, 2005, followed by points and authorities from Benninghoff and from the State Bar.  The motions pointed out the legal errors of Respondent Court and its failure to properly interpret the code provisions involved.

32.         The post order motions were originally set for hearing on July 26, 2005.  However, at the hearing, the Respondent Court notified counsel that the hearing on the motions would be continued to August 16, 2005, 60 days from the rendition of the original order seizing the business of Benninghoff under Business & Professions Code §§ 6180 et seq.

33.         This petition has been filed before the ruling on the motions for reconsideration and new trial to avoid running past the 60 day filing rule that is applied by case authority to petitions for extraordinary writs.  Should the motions for reconsideration or new trial secure the relief sought here, notice will be given to this Court either abandoning this petition or requesting that this Petition be held in abeyance if further proceedings are to take place below.  Notice will further be given to this Court regarding the denial of the motions.

                Basis for Relief

34.         The issue presented in this writ petition is whether Benninghoff has engaged in the unauthorized practice of law such that Bus. & Prof. Code § 6180.5  allows jurisdiction over his business.  By reason of the facts and the law applicable to this case, Respondent Court has and had a clear and existing legal duty to deny the application of the State Bar .  Despite that duty and the ability to perform that duty, Respondent Court refused to deny the application, resulting in irreparable harm suffered by Benninghoff.  Unless this Court grants the relief requested, Benninghoff will continue to be denied his right to work as a lay representative, and denied the due process which has resulted in the seizure of his business and property.  In addition, Benninghoff may be subjected to criminal proceedings as both the State Bar and Attorney General’s Office argue that he is practicing law without a license in violation of Business & Professions Code § 6126 .  Further, he may be facing actions from those he represented, who, because of the actions of Respondent Court may well have lost their requested relief in the administrative proceedings.  In addition, Benninghoff is informed and believes and thereon alleges that the State Bar has not secured representation for those persons he represented and they too have and will continue to suffer unless this Court grants the relief requested.

                Absence of Other Remedies

35.         The present order assuming jurisdiction cannot be appealed except by a petition for writ. Bus. & Prof. Code § 6180.13 . Petitioner has no other adequate remedy at law other than the relief sought in this petition.

                WHEREFORE, Benninghoff prays that:

1.                 An extraordinary writ issue under seal of this Court commanding the Respondent Court to vacate the June 17, 2005 Order For the Assumption of the Law Practice of Charles F. Benninghoff and to enter a new order denying the application of the State Bar and restoring the business and property of Benninghoff to him; 

2.                 An order be issued staying the June 17, 2005 Order For the Assumption of the Law Practice of Charles F. Benninghoff pending the ruling on this petition;

3.                 Costs of suit to be awarded on this petition; and

4.                 Such other and further relief that the Court deems just and proper.

Date:

Respectfully submitted,

James S. Link

Counselor & Advocate at Law

 

_____________________________

James S. Link

Counsel for Petitioner Charles Benninghoff

 


 

Verification

                Charles Benninghoff declares:

                I have read the foregoing Petition for Extraordinary Writ and know its contents.  I am the petitioner. 

                The matters stated in the foregoing document are true of my own knowledge except those matters which are stated on information and belief and as to those matters I believe them to be true.

                I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct.

 

Dated:  August 15, 2005                                      _______________________

                                                                                                Charles Benninghoff


 

Memorandum Of Points And Authorities

Introduction

                The issue presented in this petition is a matter of first impression:  Does a resigned attorney, who undertakes lay representation of third parties in administrative proceedings, practice law without a license within the meaning of Business & Professions Code §§ 6180 et seq., such that Respondent Court and the State Bar may seize his business, property and livelihood?

                This issue is not only of considerable importance to Benninghoff personally but to the question of lay representation in general.  Respondent Court has clearly concurred with the position of the Attorney General that was adopted by the State Bar, and has essentially excised “or authorized representative” from the APA, which is an act in excess of its jurisdiction.  Resigned or disbarred attorneys cannot be lay representatives, says Respondent Court.  Very  analogous case authority establishes that Respondent Court acted in excess of its jurisdiction by reading into the codes an exception that the Legislature and administrative bodies have not established.  “Clearly the Legislature was capable of articulating additional limitations if that is what it had intended to do.” Williams v. Superior Court (1993) 5 Cal. 4th 337, 350.  Yet, the Legislature has not done so, despite having knowledge of the Opinion 18108 of Legislative Counsel that a resigned or disbarred attorney could act as a lay representative.  [Exhibit 3, 4-6]

                Respondent Court had no jurisdiction to rewrite the codes and regulations and thereby order seizure Benninghoff’s business to his very grave personal detriment and to the detriment of those person he has represented.

I

Fundamentally, Respondent Court Ignored The Well-Developed Body Of Law That Establishes That Lay Representation Is Purposefully The Practice Of Lay Representation Not The Practice Of Law

                “One of the purposes of administrative remedies is to enable parties to resolve their disputes in a less cumbersome manner than is normally encountered at a trial in court. Administrative proceedings operate to the advantage, not only of the litigants, but also of courts, which are thereby relieved of some matters on their dockets.” Buras v. Board of Trustees (1978) 360 So.2d 572, 575. In that spirit, the APA was created to contain a somewhat informal system of adjudication which decide matters within the jurisdiction of various executive agencies. See chapter 4.5 of the APA, Gov. Code §§11405-11445. T he adjudicative section of the APA came under the review of the California Law Revision Commission in 1995 and it published a recommended revision of the APA. See Administrative Adjudication by State Agencies (1995) 25 Cal. L. Revision Comm’n Reports 55 . Professor Asimow was the principal consultant for the project, creating the foundation for the recommendation by publishing four detailed reviews for the Commission and generally guiding it in crafting its revision. Id. at 60. The revisions were largely passed as proposed by the Commission by the legislature as A.B. 523 in 1995.

                The adjudications themselves have presiding officers known as Administrative Law Judges (ALJs). Gov. Code § 11405.80. Formal hearings of agencies conducted under the APA must be conducted by such ALJs. Gov. Code §§ 11502(a) and 11512(a). At the end of such hearings, the ALJ issues a written proposed decision and includes a statement of the factual and legal basis for the decision. Gov. Code § 11425.50(a) . This decision may be adopted, rejected, altered, or otherwise changed by the agency within a prescribed amount of time. Gov. Code § 11517(b).

                Despite the quasi-judicial nature of the process, the administrative adjudications should not be confused with judicial proceedings and are not courts of record. Caressa Camille, Inc. v. Alcoholic Beverage Controls Appeals Board (2002) 99 Cal.App.4th 1094, 1103. Indeed, while courts of record are entitled to expect aid to resolve contested issues by the presentation of causes through qualified professionals rather than a layperson, such problems regarding lay persons grow small in the more informal setting of a proceeding in a court which is not of record. Id.  

                Earlier case law helps clarify the role of such lay persons. In another case decided in 1933, an employee was represented by a lay representative (i.e., a non-attorney) before the agency now known as the Worker’s Compensation Appeals Board. Eagle Indemnity Co. v. Industrial Accident Commission (1933)  217 Cal. 244 . In concluding that the lay representative was entitled to an award for the reasonable value of his services, the California Supreme Court held that although the lay representatives’ services constituted “legal service” that such did not constitute the “unauthorized practice of law”.  Id . at 247. An agency’s practical construction of a statute allowing lay representatives permitted such representation for more than fifteen years prior to the ruling. Id.  at 248.

                The current APA is not lacking in statutes that mention “authorized representatives,” as opposed to attorneys. The term is mentioned in the APA’s statutes regarding the procedure of adjudication. Gov. Code §§ 11440.20, 11440.60  (c), 11455.30  (a), and 11520 (b). Two statutes even mention “advocates,” as well as attorneys, as being allowed to preside over hearings. Gov. Code §§ 11405.80 and 11425.30. The two statutes that do not mention lay representatives and only counsel, Gov. Code §§ 11505 and 11509 , does not mention that someone cannot have lay representatives. Professor Asimow, in his amicus brief to the Superior Court, noted that the most simple way to keep these statutes in harmony with the rest is to allow lay representation as the statutes perform a notice function and do not purport to be a complete statement of a respondent’s rights before the administrative adjudication. [Exhibit 3, 27:1-11]

                Numerous regulations adopted by OAL also mention such authorized representatives in its rules on hearings. See Title 1, Cal. Code Regs. §§ 1015, 1018, 1028, 1032, 1034, and 1040. One even states that a party may have “counsel or other representative who has assumed representation of a party after the agency has referred a case to the OAH.” Title 1 Cal. Code Regs. § 1015 .

                Further, in the drafting stage of the current APA, the California Law Revision Commission briefly considered a statute that would have precluded lay representation, only to later delete it from its draft.  [Exhibit 3, 172-192]   This confirms that the Commission considered and approved of Professor Asimow’s suggestion in a background study that lay representatives should be included in the APA. 25 Cal. L. Revision Comm’n Reports  at 514-517.  As quoted above in the Introduction to the Petition for Extraordinary Writ, Professor Asimow fought for lay representation to allow for more cost-effective representation and to often permit more competent representation by lay representatives who are skilled in the particular field of endeavor in issue.

                Thus, the developed body of law establishes the absolute right to lay representation and the benefit that it provides to the public in general.  Lay representation is not the “practice of law”—it is purposefully the practice of lay representation.

II

The Respondent Court Acted In Excess Of Its Jurisdiction When It Ruled That Section 6180.3 (a) Is Applicable Because Lay Representation Is Not The Practice Of Law Within The Meaning Of Section 6180 et seq.

                In the June 17, 2005 Order [Exhibit 8], Respondent Court found that “that Benninghoff is a resigned member of the State Bar and that he has left an unfinished client matter for which no other active member of the State Bar has, with the consent of the client, has [sic] agreed to assume responsibility and/or that the interests of one or more clients of Benninghoff or of one or more other interested persons or entities will be prejudiced if the proceeding is not maintained.”  (Emphasis added.)  This Order parallels the language of Business & Professions Code § 6180.3 [3]

                “The application [to assume jurisdiction over the law practice] shall be verified, and shall state facts supporting the occurrence of one or more of the events stated in Section 6180 and either of the following:  [¶] “(a) Belief that supervision of the court is warranted because the attorney has left an unfinished client matter for which no other active member of the State Bar has, with the consent of the client, agreed to assume responsibility. [¶] (b) Belief that the interests of one or more clients of the attorney or of one or more other interested persons or entities will be prejudiced if the proceeding herein provided is not maintained.”  (Emphasis added.)

                Respondent Court may only order jurisdiction assumed over the practice, that is, seize it, if the State Bar proves and the “court finds that one or more of the events stated in Section 6180 has occurred, and that supervision of the courts is warranted because the affected attorney has left an unfinished client matter for which no other active member of the State Bar has with consent of the client agreed to assume responsibility, or that the interest of one or more of the clients of the attorney or one or more other interested persons or entities will be prejudiced … . [Emphasis added.]”  Section 6180.5 .

                By the Order, Respondent Court necessarily made one or all of the following legal decisions:  (1) The lay representation by Benninghoff in the administrative proceedings constitutes “unfinished client matter” within the meaning of sections 6180 et seq. ; (2) Benninghoff has “clients” within the meaning of sections 6180 et seq.; or (3) the State Bar is an interested party prejudiced by the work of Benninghoff.

                These rulings are manifestly against the law.

                A.            Lay Representation Does Not Give Rise To “Unfinished Client Matter”.

                Fundamentally, under section 6180.3 (a), Respondent Court may only order the assumption of a practice if there is “client matter”.  “Client matter” is not directly defined in sections 6180 et seq.   However, “client matter” cannot mean administrative lay representation by reason of section 6180.14 , which reads in relevant part: “This article does not apply to legal services rendered as an employee, or under a contract which does not create the relationship of lawyer and client.”  (Emphasis added.)

                 “Client matter” must be construed in light of section 6180.14 .   “‘[T]he various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]’  [Citations.]  Moreover, ‘where there are conflicting provisions, the one susceptible to only one meaning will control the one that is susceptible of two meanings, if the statute can thereby be made harmonious. [Citations.]’  [Citation.]”  Wheeler v. Bd. of Admin. of Pub. Employees' Ret. Sys. (1979) 25 Cal. 3d 600, 606.  Thus, “client matter” can only exist where there is a contract creating “the relationship of lawyer and client.”  Further, the persons for whom he works all stated that the agreements they signed state that Benninghoff is not an attorney.  [Exhibit 2, 106-150]  Thus, there is no lawyer-client relationship and hence no “client matter”.

                This analysis is supported by another aspect of the codes.  Section 6180.3  and section 6180.5  are both concerned about “unfinished client matter for which no other active member of the State Bar has with consent of the client agreed to assume responsibility”.  No other active member of the State Bar needs to assume responsibility for the lay representation.  As discussed more fully in Point I, there can be no question that lay representation is permitted in the administrative proceedings.  Thus, no other active member of the State Bar is required to assume the practice.  Consequently, the business of Benninghoff simply cannot be deemed “client matter”.

                Thus, there is no unfinished “client matter” within the meaning of section 6180.3 (a). 

                B.            For The Same Reasons, There Is No “Client” Within The Meaning Of Section 6180.3 (b) Whose Interests Are Impacted

                As quoted above, sections 6180.3 (b) and 6180.5  state that a practice may be assumed where the interest of clients require it.  “Clients” again must be read in light of section 6180.14 .  “Clients” must mean clients of a “lawyer-client” contract, not the generic word, “clients”.  Many businesses call their customers clients:  accountants, garage mechanics, bankers, etc.  That is not the meaning of “clients” in sections 6180, et seq.  To construe “clients” (or for that matter “client matter”) broadly would lead to an absurdity. 

                Suppose I am a tax preparer, tax attorney and accountant. As part of my tax practice, I represent “clients” in tax audits with the IRS and FTB (sounds like the practice of law).  I grow weary of the MCLE for attorneys and decide solely to concentrate on tax preparation and accountancy.  I voluntarily resign from the state bar (with no charges pending).  If the word “clients” is construed to include my tax preparation “clients” with whom I do not have a lawyer-client relationship, then my practice is subject to seizure under section 6180 et seq.  according to the State Bar and the analysis of Respondent Court.  Section 6180 applies “[w]hen an attorney engaged in law practice in this state dies, resigns, [etc.]”. Thus, my voluntary resignation triggers the application of sections 6180 et seq.  With the codes applicable, the State Bar could then argue as it did here, and as Respondent Court accepted, that I am practicing law without a license because I continue to undertake work that I had done before resignation that supposedly sounds or smells like the practice of law.  Not only is the analysis directly against the provisions of section 6180.14 , it creates an absolutely absurd result.

                “[T]he statute[s] should be interpreted to avoid an absurd result. [Citations.]”  Wasatch Property Management v. Degrate (2005) 35 Cal. 4th 1111 , 1122. This rule is violated by Respondent Court in the decision issued on June 17, 2005. Construing the practice of law as legal-sounding work that an attorney does while licensed as an attorney prevents any resigned attorney from using his talents in ways that do not violate any law.  A resigned attorney, voluntary or otherwise, could not work as a business manager, contract administrator, tax advisor/preparer, accountant, or anyone of a number of other businesses without risking seizure of his business (or risking criminal prosecution).  Section 6180.14  must preclude such an absurd consequence. 

                Further, the section appears to have been enacted for the very purpose of avoiding such a seizure.  Again, sections 6180 et seq.  do not apply to “legal services rendered … under a contract which does not create the relationship of lawyer and client.”

                Thus, Benninghoff was not practicing law within the meaning of sections 6180 et seq.  and could not therefore have had clients within the meaning of the codes that could have interests needing protection.  Therefore, Respondent Court erred as a matter of law by ruling that the interests of one or more clients within the meaning of section 6180 et seq. will be prejudiced if Benninghoff’s business is not seized.

                C.            No Other Interested Persons Or Entities Will Be Prejudiced Within The Meaning Of Sections 6180.3 And 6180.5.

                The only other interested persons or entities involved in this case must be the State Bar.  Once again, sections 6180 et seq.  are not applicable to any “contract which does not create the relationship of lawyer and client.”  Section 6180.14 .  Thus, none of those persons that Benninghoff represents in administrative proceedings can be considered an “other interested person” as the work performed and the contracts for the work are excluded from the force of the code provisions.  As stated, the only other “interested person or entity” would appear to be the State Bar.  But, it too has no interest. 

                Once again, the entire purpose of sections 6180 et seq.  is to protect the clients of “disabled” or “disbarred” attorneys and secure active attorneys for such “clients”.  However, Benninghoff’s clients do not need the services of attorneys. They hired and need lay representation for the administrative proceeding.  See below.  They do not need to pay lawyer fees.  They need affordable lay representative fees.  There is simply no basis to rule that the State Bar is an interested party as lawyers simply are not required to be involved in the matters at issue.  There is no basis for the request for relief by the State Bar.

                If it can be assumed that sections 6180.3  and 6180.5  were intended to permit the State Bar to argue that it is an interested person or entity, the question then turns on whether the State Bar established prejudice.  A review of the entire application and its supporting papers shows no prejudice whatsoever to the State Bar.  Rather, the essence of the argument, adopted by Respondent Court, is that Benninghoff was effectively disbarred and should not be permitted to work as a lay representative because he apparently has not been punished enough. [Exhibit 7, 32:10-23; 38:5-9, 54:7-16, 56:7-13] That is, he continues to make a living as an advocate and thus has not been reduced to working at McDonald’s.  If this be deemed the prejudice, it is not legally cognizable.  By the reasoning of Respondent Court, Benninghoff is not entitled to undertake any work that sounds or smells like the “practice of law” that he may have performed during his law practice.  Applying that reasoning, lay representation is deemed the practice of law, even though it may be performed by non-attorneys.  There is no basis in the law for such rationale.

                D.            Respondent Court Has Rewritten The Law In Derogation Of Its Jurisdiction. 

                In re Application of Hittson (1918) 39 Cal. App. 91 establishes that it is the function of the Legislature, not the courts, to establish the restrictions that may be placed on resigned or disbarred attorneys.  In that case, the superior court found a former attorney in contempt because, after he was disbarred, he filed suits and conducted examinations of judgment debtors in a justice court. The court of appeal granted the attorney’s application for habeas corpus and ordered him discharged from custody. The essence of the court’s ruling is that nothing in the law forbad the disbarred attorney from so acting.  The court of appeal said:

                “But one question is presented by counsel appearing in this proceeding, that being as to whether a judgment of disbarment, general in its terms, may operate to prevent the accused from appearing as attorney in a justice's court.  Section 842 of the Code of Civil Procedure provides as follows:  ‘Parties in justices' courts may appear and act in person or by attorney; and any person, except the constable by whom the summons or jury process was served, may act as attorney.’  It is, of course, at once conceded that had the petitioner here not pretended to act generally as an attorney at law, but only to appear in the justice's court under the permission given by the section just referred to, and had he been without license as an attorney, no ground would have been afforded for disbarment proceedings. Counsel for respondent, however, suggests that the judgment followed section 299 of the Code of Civil Procedure and by its terms precluded petitioner (theretofore a licensed attorney) from practicing as attorney in all the courts of the state. …  Without doubt the legislature would have the right to provide that any person who had been disbarred from the practice of law should be ineligible to appear in a justice's court to represent another, and we venture the suggestion that such legislation is both appropriate and desirable; and we do not intimate that a justice’s court may not possess inherent power to refuse to allow a person to appear as attorney for a litigant where such person is known to be dishonest or of disreputable character.  …”  (39 Cal. App. 92-93) (Emphasis added.)

                While the Legislature could have precluded the disbarred attorney from representation in the justice courts, it did not.  Because it did not, the contempt citation was reversed.  After Hittson, the Legislature amended the applicable codes.  That point was established in Koepple v. Morrison (1927) 84 Cal. App. 137, 139, a case relied upon by the State Bar and Respondent Court [Exhibit 7, 54:6-17].  In Koepple, the court said:

Subsequent to the decision of In re Hittson,  … and quite evidently in response to the suggestion therein contained that the legislature had the undisputed right to prevent a person who had been disbarred from appearing in a justice's court, the legislature amended sections 299 and 300 of the Code of Civil Procedure (Stats. 1921, p. 100; Stats. 1923, p. 746), so that the material portions read as follows: Section 299: ‘. . . During such suspension or disbarment the attorney shall be precluded from practicing as an attorney at law or as an attorney or agent of another in and before all courts, commissions and tribunals in the state, including justice courts, recorder’s courts and police courts, and from practicing as attorney or counselor at law in any manner and from holding himself out to the public as an attorney or counselor at law.’ Section 300: ‘No person who has been an attorney and counsellor shall while a judgment of disbarment or suspension is in force, appear on his own behalf as plaintiff in the prosecution of any action where the subject of said action has been assigned to him subsequent to the entry of the judgment of disbarment or suspension.’”  (Emphasis added.)

                Koepple  does not support the decision of Respondent Court as it had cited.  Rather, it establishes that the Legislature has the right to specifically preclude resigned and disbarred attorneys from representation of parties in proceedings.  Without such legislative preclusion, the former attorney may continue to represent other persons where the law otherwise permits. 

                Here, the Legislature chose not to preclude former attorneys from certain forms of representation.  Section 6180.14  clearly allows former lawyers to continue legal work that does not give rise to a lawyer-client relationship.  And, the Legislature and the administrative bodies have not precluded former attorneys, disbarred or otherwise, from lay representation in administrative proceedings.  As set forth in the amicus brief of the foremost expert on the subject, Professor Asimow, the California Administrative Procedure Act contains numerous references to “attorney or other authorized representative”.  [Exhibit 3, 26:3-13]  And, Legislative Counsel very clearly noted that a number of administrative agencies allow representation by non-lawyers.  [Exhibit 3, 5-6]  None of the codes or regulations (except in workers’ compensation) preclude a former attorney from representing persons in administrative proceedings and even there representation may occur by a resigned attorney if rehabilitation is shown.  8 CCR § 10779.

                Obviously, distinct from the circumstances in Koepple , the Legislature has not specifically precluded a resigned attorney from acting as a lay representative.  Respondent Court exceeded its jurisdiction, as did the trial court in Hittson.  Relief by extraordinary writ is appropriate to repair the damage done by the Respondent Court’s act in excess of jurisdiction. Burlingame v. Justice's Court of Berkeley (1934) 1 Cal. 2d 71 , 73.

III

The Rules of Statutory Construction Further Demonstrate That Respondent Court Acted In Excess Of Jurisdiction

                Respondent Court has essentially decided that Benninghoff has committed the crime of practicing law without a license.  Such conclusion flies in the face of due process and the rules governing the proper statutory construction of the codes.

                A.            Respondent Court Failed To Provide The Proper Narrow Interpretation Of The Apparently Vague Penal Statutes In Issue.

                In 2001, Legislative Counsel issued Opinion 18108 stating that Mr. Bennninghoff may act as a lay representative in administrative proceedings.  Judge Van Gorder provides the same opinion.  [Exhibit 4]  Professor Asimow, an acknowledged expert, agrees.  [Exhibit 3, 23-28]  Administrative law judges have also agreed.  Yet, Respondent Court and two rogue [Exhibit 5, 17] administrative law judges are in sole disagreement.  Such disagreement demonstrates that the taking here violates due process

                “‘[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process.’ [Citation.]  In Grayned v. City of Rockford (1972) 408 U.S. 104, 108 [citations], the Supreme Court observed that a vague law may offend ‘several important values.’  First, the person of ordinary intelligence should have a reasonable opportunity to know what is prohibited.  A vague law may trap the innocent by not providing fair warning.  Second, a vague law impermissibly delegates the legislative job of defining what is prohibited to policemen, judges, and juries, creating a danger of arbitrary and discriminatory application.  Third, a vague law may have a chilling effect, causing people to steer a wider course than necessary in order to avoid the strictures of the law.

                “Yet, ‘[c]ondemned to the use of words, we can never expect mathematical certainty from our language.’ [Citation.]   ‘Often the requisite standards of certainty can be fleshed out from otherwise vague statutory language by reference to any of the following sources: (1) long established or commonly accepted usage; (2) usage at common law; (3) judicial interpretations of the statutory language or of similar language; (4) legislative history or purpose.  [Citation.]  While the dangers of discriminatory enforcement and ex post facto punishment posed by vague penal provisions must be considered in construing statutory language [citation], liberal regard will be given to legislative intent so as to give effect to the salutary objects of the particular law.  [Citations.]  … [Emphasis added.]” 

Ewing v. City of Carmel-By-The-Sea (1991) 234 Cal.App.3d 1579 , 1594.

                As applied in this case, the State Bar undertakes a discriminatory enforcement of the code provisions.  Respondent Court denies Benninghoff the right to make a living that every other layman may undertake.  Yet, there is no prohibition in the legislation or administrative regulations that preclude a disbarred or resigned attorney from so acting, except in the workers’ compensation regulations.  (8 CCR § 10778)  Nothing in the law advised Benninghoff that he could be punished by the taking of his property for performing lay representation.  In fact, the opposite is true. Section 6180.14 as noted previously establishes that Benninghoff was entitled to proceed with the lay representation as no attorney-client relationship existed .  As stated in Walsh v. Dept. Alcoholic Bev. Control (1963) 59 Cal.2d 757 , 764-765:

                “Indeed, it is ‘the policy of California [citation] to construe and apply penal statutes as favorably to the defendant as the language of the statute and the circumstances of its application may reasonably permit.’  [Citation.]  These principles are not rendered inapplicable merely because the present action arose out of an administrative proceeding rather than a criminal prosecution; the statute to be construed remains a penal one, and the foregoing principles apply even when the underlying action is civil in nature. [Citations.]”  (Emphasis added.)

                Section 6126 which was used to assume the business of Benninghoff, is clearly penal.  Section 6126 cannot be liberally construed to turn lay representation into the practice of law simply because a resigned attorney so handles such work.  Such is the conclusion of Legislative Counsel and, among others, Judge Van Gorder, Presiding Judge Roman, Retired Judge Roger Diefendorf and William Gausewitz (the Director of the Office of Administrative Law), which conclusion and opinions Respondent Court failed to give due weight and consideration.

                B.            The Opinion Of Legislative Counsel, The Law Firm To The State Legislature, Not “Some Young Woman That Is A Legislative Aid To Somebody”, While Not Binding Was And Is Entitled To Great Weight That Respondent Court Failed To Apply.

                Legislative Counsel Opinion 18108, written to the Honorable Tom McClintock, dated July 17, 2001 [Exhibit 3, 4-6] noted the many administrative agencies allow lay representation.  The exception of Workers’ Compensation Appeals Board is also noted.  The Legislative Counsel, who is the law firm of the State’s Senate and Assembly and statutorily charged with providing opinions to Legislators, concluded, in line with the prior point:

                “In our view, where a statute or regulation allows representation at an administrative hearing by an ‘authorized representative’ who is not an attorney and does not make a distinction between a nonattorney and a resigned attorney, a resigned attorney may provide representation in an administrative hearing on the same basis as any other nonattorney.”  [Exhibit 3, 3] 

                Of this 2001 Opinion by Legislative Counsel, Respondent Court said:  “SOME YOUNG WOMAN THAT IS A LEGISLATIVE AID TO SOMEBODY WRITES AN OPINION THAT SUGGESTS THAT YOU CAN [UNDERTAKE LAY REPRESENTATION]. I MEAN, YOU KNOW, IT IS JUST A CONFUSING SITUATION. SO, THAT SHOULD BE CLEARED UP.”  [Exhibit 7, 54:3-6]

                The supposed “young woman” was not a legislative aid.  Rather, she is an attorney licensed to practice law since 1997[4] and an attorney with the State of California, Office Of Legislative Counsel, the law firm for the Legislature.  Government Code §§ 10200 et seq.   Respondent Court failed to give proper weight to the opinion of the Legislative Counsel.  The Supreme Court established in the case of California Assn. of Psychology Providers v. Rank (1990) 51 Cal. 3d 1 , 17 that the opinions of the Office Of Legislative Counsel are entitled to great weight:

                “‘Opinions of the Attorney General, while not binding, are entitled to great weight. [Citations.] In the absence of controlling authority, these opinions are persuasive “since the Legislature is presumed to be cognizant of that construction of the statute.”’ [Citation.]  … “We can presume that this five-year-old opinion has come to the attention of the Legislature, and that if it were a misstatement of the legislative intent, “some corrective measure would have been adopted.”’

                “While we have found no cases extending that rule to constructions by the Legislative Counsel, the logic is the same. Indeed the rule is particularly compelling as to opinions of the Legislative Counsel, since they are prepared to assist the Legislature in its consideration of pending legislation.”  (Emphasis added.)

                As part of his due diligence, in 2001, Benninghoff requested the opinion that was ultimately rendered by the Office of Legislative Counsel.  About 4 years have now passed since the rendition of the opinion and he has diligently served in hundreds of administrative cases.  Obviously, the presumptions discussed in California Assn. of Psychology Providers v. Rank apply here.  The Legislature surely knows of the opinion but has not acted to change the law as stated therein.  And, there is no reason to do so.  As Professor Asimow established in his Amicus Brief [Exhibit 3, 23-28], the Legislature intended to establish the right to lay representation, due in part to his urging.

                As noted previously, the APA now contains numerous references to authorized representatives, that is, non-lawyers.  Professor Asimow concluded, “Because there are so many lay representatives working in California on adjudication before both
state and federal agencies, I am puzzled as to why State Bar prosecutors have singled out Mr.
Benninghoff for prosecution for unauthorized practice. If he is engaged in unauthorized practice, so
are all the other lay representatives and all of them should be prosecuted.”  [Exhibit 3, 25:20-22]  Surely, the decision of Legislative Counsel expresses the intent of the Legislature fully in line with the foremost expert on the subject.  That Respondent Court gave the Legislative Counsel opinion such little significance not only violates the rules of statutory interpretation but demonstrates that the conclusion of law reached by Respondent Court is unsupportable and erroneous.

                C.            Likewise, The Amicus Brief Of Judge Van Gorder Was Improperly Ignored.

                Judge Van Gorder [Exhibit 4] expressed his opinion that Benninghoff was not practicing law without a license.  That opinion centered on his discussion and understanding of the regulations, including 8 CCR § 10779, which permits a disbarred attorney to represent parties in the WCAB upon a showing of rehabilitation.  The opinion of Judge Van Gorder, like the Opinion of Legislative Counsel should have been given great weight.  In Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal. 4th 1 , 21, the Supreme Court said:

                “‘Long-standing, consistent administrative construction of a statute by those charged with its administration, particularly where interested parties have acquiesced in the interpretation, is entitled to great weight and should not be disturbed unless clearly erroneous.’ [Citations.]  This principle has been affirmed on numerous occasions by Respondent Court and the Courts of Appeal. [Citations.]”

                The amicus brief of Judge Van Gorder expresses the opinion of one involved with administrative regulations and the process.  His opinion confirms the long-standing regulatory process that allows lay representation and does not preclude disbarred attorneys from practicing, except in the WCAB.  That long-standing regulatory process is also shown in the amicus brief of Professor Asimow and in the opinion of Legislative Counsel, citing to the numerous regulations permitting lay representation.  Presiding Judge Jaime Renee Roman has also ruled that Benninghoff may properly provide lay representation knowing that Benninghoff was a resigned attorney.  [Exhibit 3, 106, 111, 252:9-14]  The administrative regulations are consistent and the analysis of them by those who have applied them should not have been ignored by Respondent Court.

                Thus, Respondent Court further ignored the rules of statutory construction that firmly establish that Respondent Court could not add to the restrictions placed on the conduct of resigned or disbarred attorneys.  Once again, it is the job of the Legislature, as established by Hittson.

IV

An Extraordinary Writ Is The Only Appellate Review Permitted Under Law And Should Be Issued By This Court

                The most fundamental reason to deny a writ is that a case is still with the trial court, meaning that the issue will often be resolved or mooted by the time the trial is completed and renders a judgment. Science Applications Intl’ Corp. v. Superior Court (1995) 39 Cal.App.4th 1095 , 1100. Here, the order has already occurred and is already inflicting great damage to Benninghoff, his business and those he represents. In order to recover his business, Benninghoff will necessarily have to litigate against further claims that he was engaging in the unauthorized practice of law with the State Bar. A denial of this writ will mean that future litigation and the delay and costs thereby arising will necessarily have to be added to the harm inflicted by the State Bar against Benninghoff as a result of the seizure of his business.

                “Writ of mandate is granted only where necessary to protect a substantial right and only when it is shown that some substantial damage will be suffered by the petitioner if said writ is denied.” Schmier v. Supreme Court of Calif. (2000) Cal.App. 4th 703, 707-708.  Here, Benninghoff is being damaged and his substantial right, as a lay person, to represent others before administrative tribunals, is completely denied. This is not a case in which the petitioner seeks to “‘cut into line’ ahead of those litigants awaiting determination of postjudgment appeals.” Omaha Indemnity v. Superior Court (1989) 209 Cal. App. 3d  1266, 1273.  Once again, this is the postjudgment appeal.  The writ only seeks to minimize the great harm already occurring to Benninghoff and prejudice suffered by those he represented.  As noted by Professor Asimow:

“… ‘The prohibitive cost of legal services,
and the very limited availability of legal services for the poor or pro bono representation, means that
most parties to administrative proceedings cannot afford lawyers. Indeed. non-lawyer advocates
may do a better job than lawyers in specialized tribunals such as tax or welfare cases or in cases
raising scientific or technical issues ....’ …”

                Benninghoff represents those persons who cannot afford counsel.  He provides the very service that Professor Asimow insisted be available and the Legislature and administrative agencies expressly permit.  Respondent Court precludes the important service provided by Benninghoff, eliminating an experienced lay representative in the process.  Yet, there is no basis under sections 6180.3  and 6180.5  to seize his business and damage he and those people he represents.

Conclusion

                For the reasons stated above, petitioner Charles Benninghoff respectfully requests that this Court grant the extraordinary writ relief as prayed.

Date:

Respectfully submitted,

Counselor & Advocate At Law

 

___________________________

James S. Link

Counsel for Petitioner

 

Word Count Certificate

                The undersigned states that the word count for this Petition for Extraordinary Writ of Mandate, exclusive of tables, captions and this certificate, according to Microsoft Word is:  8766.

 

Date:

James S. Link

Counselor & Advocate at Law

 

_____________________________

James S. Link

Counsel for Petitioner


 

Proof Of Service

                I, James S. Link, am an attorney licensed to practice law in California, having State Bar No. 94280.  I am not a party to this action.  My business address is 215 N Marengo, 3rd Floor, Pasadena, California, 91101.

                On the date set forth below, I served the within PETITION FOR EXTRAORDINARY WRIT on the interested parties in said action by personally placing a true and correct copy thereof, enclosed in a sealed envelope with the postage thereon fully prepaid, in the United States Postal Service Box at 215 N. Marengo, Pasadena, California, addressed as follows:

 

William John Cox

State Bar Of California

Office of the Chief Trial Counsel

1149 S Hill Street

Los Angeles, CA 90015-2299

 

Counsel for Real Parties In Interest

Presiding Judge

Orange County Superior Court

700 Civic Center Drive West

Santa Ana, CA 92701

 

                I am aware that on motion of any party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in the declaration.

                I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

DATED: ________________          ____________________________

                                                                                                James S. Link

 


 

[1] We do not detail here the charges and responses to those charges.  The issue quite frankly is lack of jurisdiction of the State Bar and Court to seize the lay representation business of Benninghoff.

[2] Note: a duplicative exhibit and statutory materials have not been included in Exhibit 3.

[3] Unless otherwise noted, all further statutory references are to the Business & Professions Code.

[4] Lisa C. Goldkuhl has been a member of the Bar since December 10, 1997. http://members.calbar.ca.gov/search/member_detail.aspx?x=191740.