CJEO Oral Advice Summary No. 2018-022 — Disclosure Requirements for a State Bar Court Review Department Judge

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2018-022
[Issued February 22, 2018]
DISCLOSURE REQUIREMENTS FOR A STATE BAR COURT REVIEW
DEPARTMENT JUDGE
I. 	Question
Is a State Bar Court Review Department judge required to disclose information
that is reasonably relevant to the question of disqualification pursuant to canon 3E(2)(a)
of the California Code of Judicial Ethics 1 if the judge has determined that he or she is not
disqualified from hearing the matter?
II. 	Oral Advice Provided
Canon 3E(2)(a) requires that in all trial court proceedings a judge disclose
information relevant to disqualification, even if the judge believes there is no actual basis
1 	All further references to the canons and to Advisory Committee Commentary are
to the California Code of Judicial Ethics unless otherwise indicated.

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for disqualification. Canon 3E(2)(a) applies only to trial judges and no rule requires
appellate justices to make nondisqualifying disclosures. (Rothman et al., Cal. Judicial
Conduct Handbook (4th ed. 2017) § 7.73, p. 496 (Rothman).) The Advisory Committee
Commentary following canon 3E states that “[t]he term ‘appellate justice’ includes
justices of both the Courts of Appeal and the Supreme Court.” At issue is whether a State
Bar Court Review Department proceeding is a “trial court proceeding[ ]” within the
meaning of the canons. (Canon 3E(2)(a).) To answer the question, a brief overview of
the State Bar Court is useful.
The State Bar Court includes a Hearing Department and a Review Department.
(Bus. & Prof. Code, §§ 6079.1, 6086.65.) The Hearing Department is the trial level of
the State Bar Court, and hearing judges conduct evidentiary hearings on the merits.
(Obrien v. Jones (2000) 23 Cal.4th 40, 44-45.) The Review Department may review a
decision of the Hearing Department at the request of a disciplined attorney or the State
Bar. (Ibid.) The Review Department independently reviews the record and may adopt
findings, conclusions and a decision or recommendation different from those of the
hearing judge. (Ibid.; Cal. Rules of Court, rule 9.12.)
The Review Department functions as an appellate body, reviewing the
determination of a Hearing Department judge, and, therefore, a Review Department judge
is not subject to the disclosure obligations of canon 3E(2)(a). A Review Department
judge is not required to, but may, disclose any information that may be relevant to
disqualification. (Rothman, supra, § 7.91, p. 503 [an appellate justice is not prevented
from making disclosures where appropriate].)
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This oral advice summary is advisory only (Cal. Rules of Court, rule 9.80(a), (e);
Cal. Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It
is based on facts and issues, or topics of interest, presented to the California Supreme
Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of

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Court, rule 9.80(i)(3); CJEO rule 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).