Posting notice of discipline on state bar's Web site is net `publicity'.

The State Bar of California can post a notice of disciplinary action against an attorney on its Web site without violating an agreement not to publicize the action, a judge has ruled.

Los Angeles Superior Court Judge Madeleine Flier dismissed a suit filed by attorney Michael Mack of Corona del Mar, California. Mack claimed that the state bar reneged on a 1996 agreement in which he accepted a "private reproval" in exchange for the bar's pledge not to "affirmatively provide any publicity of the disposition." He sued for breach of contract because the statement "this member has a public record of discipline" appears by his name on the member information section of the bar's Web site (www.calbar.org).

Bar counsel Marie Moffat told the court that information regarding disciplinary action against an attorney has always been public, available to anyone who asks. In her decision, the judge agreed that dispensing this information via the Web site is no different from providing it to the public over the telephone. (Mack v. State Bar of California, No. BC221528 (Cal., Los Angeles County Super. Ct. May 17, 2000).)

According to bar attorneys, "affirmatively providing" information on disciplinary actions would have involved publishing the information in legal journals or newsletters, which the bar did not do.

The state bar began posting disciplinary information on its Web site a few years ago, anticipating substantial staff layoffs. The site would provide a way for members to access public information that previously would have been given by bar staff over the telephone.

Flier wrote in her decision, "As a matter of law, making the database of public records available for inquiries via the Web is not publicity, but instead another vehicle for making bar files available to the public upon their initiating the request--similar to an in-office visit or telephone call."

Mack's lawyer, Kevin Gerry of Beverly Hills, California, disagreed. "The Internet is a publication every bit as much as a magazine, or a radio or television broadcast ... only it is 24 hours a day, 7 days a week, and worldwide," he said.

Mack was accused of not making timely responses to clients' inquiries, not transferring case files to new counsel when requested, and not reporting judicial sanction to the bar. Bar attorneys say the matter is concluded unless Mack appeals Flier's decision.