good afternoon this is the hearing in re albert m coon ninth circuit docket number eighteen eight zero one zero four this is the hearing requested by mr coon in response to this court's order to show cause why the ninth circuit should not impose reciprocal discipline against mr coon based on the suspension order entered by the california supreme court  coon as i'm sure you understand the issue here is whether the ninth circuit should impose reciprocal discipline we're not revisiting the validity of the california state bar proceedings that suspension or is not before us the issue here is whether this court should respect that determination of the california supreme court and the court will ordinarily do so unless the respond it you can show by clear and convincing evidence  one of three things either that there was a violation of due process or that there were insufficient facts to support the determination or that some other grave injustice would occur by this court imposing reciprocal discipline and respecting that determination so that's the ground rules here that's what's before the court we've received your filings and we have copies of the state court record that we have been able to examine california and or united states law so i'm going to give you an opportunity here to a lab or a little bit on your arguments but i did want you to know that  that i have read the materials that you've submitted in that clearly explains the background so i don't want you to feel compelled to give a step by step a complete recitation of what you've already submitted in writing that's really not necessary it would be more helpful for me for you to outline the key points that you want to make to make sure that i understand them i will probably have questions for you and because i well i think at this stage i'd like the deputy to swear un so that your answers will be under penalty of perjury right so how would you propose to proceed today mr coon i would like to proceed in a way that i would like to add something to  it an additional ground actually we have three cases to review fortunately from the ninth circuit one of them went up to the supreme court and they are all is on like california's regulation of any other profession but she has not demonstrated that this regulatory scheme violates the equal protection i i the supposedly unique position that the attorneys have these of a the court as officers of the court and the state bar which is a  hear they don't have to have a hearing that i have to have an opinion relates to the once it gets to the court we are not talking about strictly an administrative agency were deists things tha ok so you have you have the majority opinion of the california supreme court in rose that says that their review procedures constitutional under the system as it now stands and you have an opinion from our court that says that there is no violation of equal protection under this system in california so against those two here now coming back with a dissenting opinion from the california supreme court and i'm not sure that i can given the fact there are court one of the judges court has written an opinion saying there is no due process violation i don't know how i would have room to find an equal protection violation on the ground that i was are kramer and under kramer at least but either way i agree that the it's presumed that the this court has all the rights to review is not reviewing it's not a direct review of any of the that ng it but it can review any think that the court has done and if it finds that the of that does not follow equal call discipline that don't i'm sorry i don't understand how the fact that this is an a review of whether reciprocal discipline should be if what you're saying is the basis the dupe whatever the legal constitutional basis of what you're saying you're saying i believe what you're saying is that the california scheme of an ministry of agency comes up with a final determination that's reviewable by petition for if you are the california supreme court california supreme court rarely if ever grants review  essentially the same thing that this court is now doing namely saying whether she her privilege to practice for that before that court should be eliminated based upon the california determination in the course of that litigation one of the issues that arose was whether the california scheme violates two process that's the same issue you're raising right here that issue was finally decided by the ninth circuit in a decision saying no there is no equal protection violation by the california scheme now that's that's bines to me i can't get around that there's no my fourth amendment rights that's and that is if you've made that argument that is i completely understand that argument about the validity of the subpoena i don't see an equal protection argument though well the the the presented as addressing precisely in the sentence she may be right that the regulation of lawyers is unlike regulation of any other professionals there is your equal protection basis right lawyers reasons other professionals but she has not demonstrated that this regulatory scheme violates equal protection scheme applies to lawyers only not to the other professions but it doesn't violate equal protection the idea is i'm trying to get to separate the courts constitutional right and by the way you have to read justice brown's of opinion and other trying to trying to separate that that the unique scheme of the court begins and once it comes to the court and the state bar it could do that let's to before we move on and we're now moving away from equal protection i wanted to make sure as i understood you at the beginning to say there's another issue that you hadn't raised but you want to raise it's not the same issue that's in your response where supplemental response with respect to equal protection i'm not sure i understand what it is but what i'm going to do is i'm going to give you leave to file a short supplemental filing which will address this narrow question of whether there is any equal protection argument that  now we're moving now we're moving back to expectation of privacy and the subpoena issue correct right right now i mean let me i have a question i want to show you about that in terms of expectation of privacy assuming the fourth amendment applies in this context in order for there to be a fourth amendment interest there must be an expectation of privacy right right now when i think of a client trust account  it strikes me that the money that's going into the trust account is being held in trust for the client by the attorney so those funds are primarily owned by the client not by the attorney so strikes me that the primary privacy interest at stake just simply in terms of having a financial account would be interest that would be by the client not by the attorney because the funds don't belong to turn in the funds belong to the once a social security tells you in advance when they send you a check that here is the this is yours and this is the this is the clients so specifically that was that was one case but why would you put your own money that you own into a client trust account isn't that considered co mingling well you know the interesting thing is this will further down small amounts will not be counted but it turns out that that rule is only applicable if you are willfully taking the money out rather than with gross negligence so that was the i'm still i am concerned about your practice of taking money for personal purposes that strikes me is what a careful lawyer working for the wells fargo bank in the international division i had a free checking account i had that free checking i still do ok when when i passed the bar and i started practicing i turned difference nobody said anything i did that for twenty five years until the  obviously this case started in two thousand and fourteen and that statute was passed in two thousand and twelve but nevertheless so can i ask you this question what was the prejudice to you of failing to receive statute says the statute says that he will hear by operation of a lawyer your kind trust the can is presumed you can you presumably give permission to the state bar to or to investigate  this so let me just take you back in time to twenty fourteen or twenty thirteen this statute changed in two thousand and twelve right right so that twenty thirteen let's say you receive this notice it's hard for me to believe anybody would pay attention to this notice but let us say it came to you and it said oh by the way we just want to let you know that this california has a provisions code changed and we wanted to form you that from now on the you will be deemed to have given the state bar permission to examine your client trust account so it's twenty thirteen you get this message from them what practical difference would it have made to you in the twenty thirteen what would you have done if you had received that well i probably would have moved i under my sense of what you're telling me from what you just told me is you believe that what you were doing was appropriate there was nothing yes yes right yes but the fact that you would have gotten this kind of a notice that the state park to look into what you were doing that would have made any difference to you because no nevertheless you wouldn't you would have just done the same thing anyway because you thought that was the appropriate there's nothing inappropriate about where you were doing no i mean when i went when somebody tells me that hey something is inappropriate they all want to say all right they didn't say that all that that statute says was we can look at your account without your permission just want to let you know that it's a new law in california concerning client trust account they've already told me that the way you are dealing with your client trust account based upon your experience and practice that was the way you did business and so i am searching for any way in which the failure to give you notice caused any kind of prejudice at all because my understanding is you did what you didn't you would have done it differently because you didn't think there was anything inappropriate about what you did  there's two things here one can they get a look at it in two if they look at it i mean how is your behavior well can they look at number one number two you have so if it's in your own mind you thought you were handling your client trust appropriately then there was no need for you to take any steps one way or the other concerning this statute that would let the state bar have access to that account  you might have to move it to a different trust account or maybe not but that wouldn't have changed the state bars ability to come and look at what you did and there was no reason for you to change what you did because thought what you were doing was appropriate so i don't see that i understand the technical point you're raising that there was a violent technical violation of the statute in terms of giving yearly notice or even any notice at all but what i'm struggling with is why it matters here because you would have done the same whatever then that is fine but if the hospital or the agency that regulates doctors  intended to have some kind of a at let's say  kennedy says look at it doesn't make any difference whether or not he agreed you still have to vote through this the the rules of the of the fourth amendment and  and you have to always make sure whether it was reasonable and and that's why i couldn't i practiced for forty five years here i'm going to be eighty years old in december so i spent a lot of m supreme court case involving the the trustee account when all i would say probably eighty percent of the state board matters are involved fees certain number something like twenty four thousand men that's that they could use and the there was an agreement between the city and there was an agreement between the electronic agency that the extra money if they went over destroy any four thousand minutes then they would have to pay so the so the sergeant sergeant do i mean the lieutenant do promise every one of these guys that look if your paying the overage and you think that you know or do you have to was making sexually really that calls which somehow was found out by his wife who was also working at the and they are police department so naturally he she reported that then the whole this is an professionals go if you still have to analyze three whether or not the fourth amendment has been violated and that's what justice kennedy says he goes to the owned by the city and etc but fortunately as i say justice kennedy goes through the various ifs and clause but of the fourth amendment and that's where i got some of my used caused by other factors and not by marijuana so anyway so you have to have investigation you have to have a reasonable suspicion you have to generis argument of the california supreme court majority and as far as the whether or not small but there is no definition of what reasonable small is so i i thought that the idea would be what is a petty theft you know seven hundred fifty dollars you know so quote does not apply secondly are you arguing regardless of whether you got notice under the statute even if you had received notice under the statute you're attacking the constitutionality of section six zero six nine in so far as it deems lawyers to they said i was entitled to that the only question was the four hundred fifty filing fee and the basis for the for four hundred fifty filing fee came up this lady came to see me don't want to bother with that and then about two months later rick she comes back to me said ok i want you to sue my brother because he is bothering me so a restraining order against the brother and there's no filing fee for writing orders so that's what he asked you to do in a restraining order and you and you looked into it and you decided that the better strategy was to prepare the proposed or complaint that you did there was no no no i i i i forfeited my requirements for a restraining order she just didn't think that it was going document there was a trust document yes but the trust document would have required a filing fee right right right so you and you you were recommending that she filed the trust document minute she abandoned that but not until after you had sent her a letter with an accounting right oh we talked to each other on the telephone but you center the you said her accounting of twenty two in order to have done that you would have had to if you completed it at the time you did the work you you build her for twenty to fifty you and withdrew those funds from the can down right but you knew that if she actually went forward you would have had to pay the forensics our filing steve to file for the filing fees so your response as i understand it is well it was ok for me not to do that because i applied those two attorney fees because i converted them because attorney fees because i didn't this will be necessary to do it but what's puzzling me is why there is a you drafted the petition at a time when you were apparently expended fees more than you fees in excess of two thousand dollars going into the four and sixteen didn't reserve that for the sixty dollars in the account when you knew that the petition that you drafted in order for it to be fog would require the filing fees to my defense was as i explained to you and i explained to them said that's not a real trust account ok because we don't get any money from it well i never paid attention as i told you i work for wells fargo i got a free it's a great thing you know i'd never even thought about that you know account for your personal checking account so you can call it a trustee account but the fact is you use it as a personal account and i'm trying to i don't know i guess i  special way and you have an a fiduciary obligation to your client to preserve funds in i don't see i mean you may have an argument about the fourth amendment but i don't see how the bar was wrong in concluding that you fell below that four and sixty dollars in another matter vols raised the reason actually introduced into evidence that the l a people thought that the four hundred sixty dollars she had been told and the whole thing is over but i have a copy of that letter however in this part i want to joy attention to it of saying we have a concern that you may need to give greater attention to the management of your trust or can you should be aware that reports of insufficient funds checks being issued on the client trust account may raise concerns of misappropriation of client funds and may be salt in the state part investigation into the matter therefore if you haven't done so already you should review your records to determine the cause of the insufficient funds activity and take the appropriate corrective measures to avoid future reports to the state bar by your financial institution and i did and i called her back and she said ok everything is done that that's what all i have to do is file it with the supreme court which i will do either friday or monday well within the time i just have to have enough for you know for copies and so that's being being fobbed the other case that they filed today sixteen number something the state bar hearing department dismissed that was another woman who complain that's a lot more work then then then he has but anyway that was the case where i had cited the debt minimus question this lady to stolen a two hundred dollars tennis shoes from the united airline department that you know that the department of the clothes and things like that so the ar nobody has ever got me on not not doing the work for the attorney fees nobody prevailed against me and i proved i have time sheets this case that gets whatever case the only it and i can tell you i can bring those those things in my rig was granted first i call them up bark of the supreme court and and they said  special class we love them so much under the california constitution has to be decided by either two appellate judges or four supreme court judges so the court is saying that we are not dealing here with causes attorneys are unique sue generous and therefore we are giving an order legally but in order and anything we wanted and right so year i have another question your suspension became to the or regional order rather than starting new that's my practice for what i recommend but let me ask you this question even notify the ninth circuit had you been suspended did you know i did are you aware the ninth circuit rule forty six days to says an attorney who practices before this court shall provide the clerk of this court with a copy of any order or other official notification that the attorney has been subjected to suspension or disbarment in another jurisdiction that were to tell you or to my belief was that  from the the the facts in the subpoena i mean other than the fact that you conclude you're saying that i wasn't and should not have been respected because of that but as far know the full federal constitutional right it just suddenly is ignored as nothing and nothing happens you complain to the next big nothing happened and you can play to the next thing and then they guiding the court so i wasn't well the district court has its own reciprocal discipline proceeding loss as you can tell from the sheer case in central district impose reciprocal discipline and then she appealed to this court same thing with the northern district they have their own bar their own bar rules so and i suspect they also have a requirement that you self report it isn't automatically let me just tell you that it's almost on it's very rare that the court does not impose reciprocal discipline because your burden is a heavy one to sh but i will take a look careful look at the cases that you said i did and i did understand the argument you made and i will prepare a report in recommendation about what disposition i would recommend the court take in this case whether or not the court should impose reciprocal discipline that report in recommendation will be served on you and you'll have an opportunity to file a response objections or whatever you choose to the report plus any filing that you make will then be presented to  three judge panel and they'll decide ultimately what to do but there may be no more further hearings no i doubt it it's conceivable that the court would ask for further hearings it's never there never done that before but then i think this is the record at this stage to make so we have you know all the state court records available to us plus the filings that you made plus i'm giving you an opportunity to make once subsequent filing of five pages to address the equal protection point we discussed earlier all right thank you for any questions no