March 27, 2023

Volume XIII, Number 86


March 24, 2023

Subscribe to Latest Legal News and Analysis

Are Lawyers Who Author Or Vote For Unconstitutional Laws Subject To Discipline By The California State Bar?

The California State Bar Act imposes a duty on attorneys to "support the Constitution and laws of the United States and of this state".  Cal. Bus. & Prof. Code § 6068(a).  Many California legislators are members of the California State Bar, including former state senator Hannah-Beth Jackson.  Senator Jackson had been a member of the California bar for more than four decades when she introduced SB 826, a bill mandating minimum number of directors on boards of publicly traded companies.  Even supporters of the law were aware that it was likely to be unconstitutional.  As Governor Jerry Brown noted in his signing message: 

There have been numerous objections to this bill and serious legal concerns have been raised. I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation.

Thus, it should have been a surprise to no one when Los Angeles Superior Court Judge Maureen Duffy-Lewis after a trial held that SB 826 violated the Equal Protection clause of the California Constitution (A person may not be . . . denied equal protection of the law").  Crest v. Padilla, L.A. Super. Ct. Case No. 19STCV27561 (March 13, 2022).  See The Verdict Is In On California's Female Director Quota Law.

By writing and supporting a law that was widely acknowledged (even by the Governor who signed it) to be constitutionally suspect, did Senator Jackson fail to support the California Constitution?  If the answer is no, are there any circumstances in which a lawyer-legislator could be disciplined for writing or voting for unconstitutional legislation?  If the answer is yes, could the State Bar also discipline a lawyer who testified or gave a speech in support of SB 826?

© 2010-2023 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XIII, Number 30

About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...