Several weeks ago I appeared in the San Francisco Superior Court before Judge Chiantelli to answer ready for trial. When counsel for the plaintiff, Martin Rosman, failed to appear it came as no surprise, as I understood that he had recently been arrested in connection with an insurance fraud investigation. Since there was no appearance on behalf of the plaintiffs Judge Chiantelli ordered the case dismissed, “without prejudice.”

     By dismissing the case “without prejudice” Judge Chiantelli certainly left open the opportunity for someone, either Mr. Rosman or his clients, to return to him and ask for the dismissal to be set aside, so that the case could proceed forward again. Indeed, pursuant to Code of Civil Procedure section 473 (b), any attorney may make an application, within six months, to set aside an earlier order which was taken against him or her as a result of “excusable neglect.” Because of that, despite the fact that the case has technically been dismissed, I felt obliged to inform my principal that we will need to keep our file open for at least six months to ensure that either the current new attorney or the plaintiffs themselves, do not appear again on the scene and ask the court to set aside the dismissal. Indeed, I undertook some research to determine what happens when an attorney has been arrested, but not yet convicted of a crime.

     When there is a conviction, the process is fairly clear. In particular, pursuant to Business and Professions Code section 6102(a) once an attorney has been convicted of any crime involving “moral turpitude” the Supreme Court of the State of California is directed to suspend that attorney. California Rule of Court 955 then comes into play, so that the court may issue orders requiring the suspended attorney to undertake steps to ensure that his clients continue to receive representation. In my case, however, there had been no “conviction” and in fact not yet any prosecution. However, I did find another section of the Business and Professions Code which might apply. Business and Professions Code section 6190 addresses a situation wherein an attorney becomes “incapacitated . . . for any reason.” When an attorney is “incapacitate” the court may assume jurisdiction of any cases handled by that attorney and may in fact replace the incapacitated attorney with a new lawyer. However, to do so, there must be an application made to the court. If the “incapacitated” attorney consents to it, any “interested party” may make an application to the court to assume jurisdiction of a case or cases. If the attorney does not consent, then only the State Bar can make such an application. Presumably, in my case, if the State Bar learns that the attorney has become “incapacitated” as a result of his incarceration, they could make an application to the court to assume jurisdiction and appoint new counsel to continue prosecution of the case. In fact, if a new attorney is appointed, they are granted a period of six months after the application to assume jurisdiction was filed to seek an order setting aside the earlier dismissal (Code of Civil Procedure section 473.1).

     For my purposes, this would seem to indicate that despite the fact that the case has been dismissed, we need to remain concerned with the possibility that someone will resurrect it in the future. It appears that if the State Bar becomes aware of the plight of the incarcerated attorney, and thereafter makes an application to the court to assume jurisdiction, a newly-appointed lawyer would have six months from the date of the application to set aside the earlier dismissal. It therefore appears that, despite the fact that we have an order of dismissal on file, we will need to monitor this file for many more months to ensure that our now dismissed plaintiffs do not attempt to reinvigorate this currently dormant case.

About the Author James G. Scadden is with the law firm Scadden, Hamilton & Ryan, 220 Montgomery Street, 13th Floor, San Francisco, CA 94104. He can be reached at 415/ 362-5116, or by fax at 415/ 352-4214.

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