I dissent.
The majority concludes that the procedures for the involuntary inactive enrollment of attorneys under Business and Professions Code section 6007, subdivision (c)1 satisfy the requirements of due process. However, I would hold that the statute, which permits the State Bar to order the involuntary inactive enrollment of an attorney, constitutes an invalid delegation of judicial power by the Legislature in violation of article VI, section 1 and article *1127III, section 3 of the California Constitution.2 I would also hold that by failing to guarantee a reasonably prompt commencement of the disciplinary charges underlying the order of involuntary inactive enrollment, the statute violates due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) Finally, I would hold that on the facts of this case the State Bar’s proceeding against petitioner under subdivision (c) of section 6007 rather than subdivision (b), with its greater procedural protections, violated the State Bar’s obligation to afford petitioner equal protection of law. The reasons which impel me to these conclusions are set forth below.
Discussion
A. The Power to Discipline Attorneys Resides in the Courts Alone and May Not Be Delegated by the Legislature to the State Bar3
Because attorneys form an “integral and indispensable unit in our system of administering justice,” it is well settled that the profession and practice of the law constitutes a unique public trust. (State Bar of California v. Superior Court (1929) 207 Cal. 323, 330 [278 P. 432].) Accordingly, “the membership, character and conduct of those entering and engaging in the legal profession have long been regarded as the proper subject of legislative regulation and control . . . .” (Id. at p. 331; accord Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 337 [178 Cal.Rptr. 801, 636 P.2d 1139].) At the same time, historically and constitutionally the admission, discipline and disbarment of attorneys have long been recognized as among the inherent powers of the courts alone. (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 336-337; Brotsky v. State Bar (1962) 57 Cal.2d 287, 300-301 [19 Cal.Rptr. 153, 368 P.2d 697, 94 A.L.R.2d 1310]; Brydonjack v. State Bar (1929) 208 Cal. 439, 443 [281 P. 1018, 66 A.L.R. 1507].) “‘An attorney is an officer of the court and whether a person shall be admitted [or disciplined] is a judicial, and not a legislative, question.’ ” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 337, quoting In re Lavine (1935) 2 Cal.2d 324, 328 [41 P.2d 161].)
Recognizing that the regulation of the legal profession “comprehends the existence of common boundaries between the legislative, judicial, and executive zones of power” (Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 *1128Cal.3d at p. 338, italics added), this court, in a series of early decisions which affirmed the constitutionality of the State Bar Act (act) (§ 6000 et seq.) in the face of a separation of powers challenge, set forth the basic test for assessing whether the Legislature has overstepped its oversight authority: “[T]He legislature may put reasonable restrictions upon constitutional functions of the courts provided they do not defeat or materially impair the exercise of those functions.” (Brydonjack v. State Bar, supra, 208 Cal. at p. 444; accord In re Lavine, supra, 2 Cal.2d at p. 328; Hustedt v. Workers Comp. Appeals Bd., supra, 30 Cal.3d at p. 338.) Applying this standard, we upheld without exception the legislative delegation of authority to the State Bar (bar) to certify a candidate for admission, and to recommend the suspension or disbarment of a member for misconduct. (See In re Shattuck (1929) 208 Cal. 6, 12 [279 P. 998]; Brydonjack v. State Bar, supra, 208 Cal. at pp. 444-445.)
Critical to these early determinations of constitutionality, however, was the fact that under the act, “f]inal [disciplinary] action can only be taken by this court.” (Hustedt v. Workers Comp. Appeals Bd., supra, 30 Cal.3d at p. 339, quoting Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301, original italics.) As we explained in In re Shattuck: “[T]he only order or orders which are provided for [in the State Bar Act], and which have or were intended to have the effect of working the disbarment, suspension or discipline of any person . . . are the final orders which are to be made by this court under the provisions of said act, and . . . any decision which the Board of Bar Governors may be empowered or minded to make ... is merely recommendatory in character and has no other or further finality in effecting the disbarment, suspension or discipline of those persons who may be brought before said board . . . .” (208 Cal. at p. 12, italics added.)
Nor, as we explained in a companion case to Shattuck, does the act purport to delegate the inherent judicial authority to admit persons to the practice of law. “The making of orders of admission is . . . clearly a judicial act of this court.” (Brydonjack v. State Bar, supra, 208 Cal. at p. 445; §§ 6060, 6066.)
Among its various functions under the act, the bar is statutorily authorized to “examine all applicants for admission to practice law” and thereafter “[t]o certify to the Supreme Court for admission those applicants who fulfill the requirements . . . .” (§ 6046, subds. (a), (c).) In addition, the bar may investigate complaints about the conduct of attorneys, conduct disciplinary hearings, and thereafter “recommend to the Supreme Court the disbarment or suspension from practice of members . . . .” (§§ 6043, subds. (a), (c) and 6078.) The act further provides that upon any decision recommending the disbarment or suspension from practice of a member, *1129the bar shall immediately file a copy of its decision, together with the transcript and findings, with the clerk of this court. (§ 6081.) The member may then, of course, file a petition for review to modify or reverse the decision recommending the disbarment or suspension. (§§ 6082, 6083.) When no petition for review has been filed, this court “shall make such order as it may deem proper in the circumstances.” (§ 6084, italics added.) Thus, even where a member fails to seek review, no discipline is imposed except upon order of this court, which retains its inherent authority to reverse or modify the bar’s recommendation. (See In re Jones (1971) 5 Cal.3d 390, 394 [96 Cal.Rptr. 448, 487 P.2d 1016].)
As we explained recently in Saleeby v. State Bar (1985) 39 Cal.3d 547 [216 Cal.Rptr. 367, 702 P.2d 525], in these two areas, the admission and discipline of attorneys, “the bar’s role has consistently been articulated as that of an administrative assistant to or adjunct of this court, which nonetheless retains its inherent judicial authority to disbar or suspend attorneys. [Citations.] In the area of admission to practice, an applicant is admitted only by order of the Supreme Court which, upon certification by the bar’s examining committee . . . ‘may admit such applicant as an attorney at law in all the courts of this State . . . .’ (Bus & Prof. Code, § 6064.)” (Id. at p. 557, italics added.)
Thus, even as we have upheld the admission and disciplinary provisions of the act against constitutional challenge, we have consistently warned that the legislative prerogative is limited. The key to a proper balance lies in the locus of decisionmaking authority. As we observed in Brotsky v. State Bar, supra, 57 Cal.2d 287, had the Legislature attempted to vest disciplinary authority in the bar, the constitutionality of the act would have been very much in doubt: “In disciplinary matters (and in many of its other functions) [the State Bar] proceeds as an arm of this court. If the Legislature had not recognized this fact, and made provision therefor, the constitutionality of those portions of the State Bar Act which provide for the admission, discipline and disbarment of attorneys could have been seriously challenged on the ground of legislative infringement on the judicial prerogative. Historically, the courts, alone, have controlled admission, discipline and disbarment of persons entitled to practice before them [citations].” (Id. at p. 300, italics added.)4
Happily, however, the Legislature (until recently) has respected these fundamental separation-of-power principles. In the Board of Governors it *1130created an effective body to advise and make recommendations to the courts in matters of admission, discipline and disbarment; it did not attempt to delegate fundamental judicial prerogatives to the bar. (Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301.)
Unhappily, the same cannot be said for the recent legislative augmentation of the act—section 6007, subdivision (c)—which is at issue in this case. As originally enacted in 1968, section 6007 was confined to circumstances in which either (1) a member had been involuntarily committed as a “dangerous person” (Welf. & Inst. Code, § 5300 et seq.) or as a “mentally disordered sex offender” (Welf. & Inst. Code, § 6250 et seq.); had been ordered to receive treatment for narcotics addiction (Welf. & Inst. Code, §§ 3051, 3106.5, 3152); had been judged to be insane under the Penal Code, or had been placed under the care of a guardian or conservator (§ 6007, subd. (a)); or (2) a member of the bar, because of mental infirmity or addiction to intoxicants or drugs, was unable to practice competently or to practice without danger to his clients and the public. (§ 6007, subd. (b).)
As to attorneys falling within the first category, section 6007, subdivision (a) provides that the board of governors shall reinstate the member when his restoration to capacity has been judicially determined, or upon the member’s release from confinement. As to attorneys falling within the second category, the statute provides that the board shall terminate the inactive enrollment upon proof that the member’s disability no longer exists. (§ 6007, subd. (b).)
Although the validity of the foregoing provisions has never been tested, and is not at issue here, it is at least arguable that both subdivisions would pass constitutional muster. Both condition involuntary inactive enrollment upon proof of disability, rather than incompetence or misconduct. Indeed, as originally enacted section 6007 was not in any real sense a disciplinary statute. Involuntary enrollment under subdivision (a) requires no independent evaluation of professional competence or ethics, but is premised solely upon a prior judicial determination of mental incapacity. Subdivision (b), which does require independent proof that an attorney has failed competently to perform his duties, is nevertheless limited to those cases in which the source of the attorney’s troubles is mental infirmity, illness or drug addiction. Reinstatement is not premised upon a showing of moral or ethical rehabilitation, but rather is mandatory upon proof that the disability no longer exists.
Permitting the temporary suspension of a member upon a judicial order of mental incompetence, or upon proof—after notice and a full hearing—of mental disability, constitutes a reasonable and measured exercise of legisla*1131tive oversight of the legal profession. Neither determination is principally concerned with attorney misconduct, ethics or discipline. Accordingly, neither provision can reasonably be said to “defeat or materially impair” any inherent prerogative of the judiciary. (Brydonjack v. State Bar, supra, 208 Cal. at p. 444; Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at p. 338.)
The same cannot be said for subdivision (c) of section 6007. Adopted by the Legislature in 1985 (Stats. 1985, ch. 453, § 2) and subsequently amended in 1986 (Stats. 1986, ch. 1114, § 1), this section permits the bar to order the involuntary inactive enrollment of an attorney “upon a finding that the attorney’s conduct poses a substantial threat of harm to the attorney’s clients or to the public . . . .” (§ 6007, subd. (c)(1).) In order to make such a finding, the statute requires that the bar find (1) that the attorney has caused or is causing substantial harm to the attorney’s clients or the public, (2) that there is a reasonable likelihood the harm will reoccur or continue, and (3) that the balance of interests favors an involuntary inactive enrollment. (§ 6007, subd. (c)(2)(A), (B), and (C).) The bar is further empowered to terminate the involuntary enrollment upon proof that the attorney’s conduct no longer poses a substantial threat of harm to the attorney’s clients or to the public. (§ 6007, subd. (c)(3).)5
Apart from the significant procedural differences (to be discussed below), the substantive features of an involuntary enrollment proceeding under section 6007, subdivision (c) do not appear to differ significantly from a conventional disciplinary proceeding. Petitioner herein, for example, was found to be culpable of misconduct in eight separate client matters. In four he was found to have improperly commingled and misappropriated funds from settlements which he made on behalf of his clients, in the other four he *1132was found to have failed to perform services for which he had been retained, and failed to return unearned fees. As the bar candidly states in its brief, the hearing referee in this matter “found that petitioner had demonstrated a pattern of repeatedly violating his oath and duties as an attorney, including his fiduciary and ethical obligations to his clients.” (Italics added.) For all intents and purposes, therefore, the involuntary inactive enrollment hearing was a mini-disciplinary proceeding; the procedures differed, but the subject matter and the findings relating to petitioner’s professional misconduct were essentially identical to those of a routine disciplinary proceeding.
The ramifications of the referee’s decision in this matter were markedly different from the referee’s decision in a disciplinary proceeding, however. Having found that petitioner’s habitual misconduct constituted a substantial threat to his client’s interests and to the public, the referee ordered that petitioner be placed on inactive enrollment.6 That suspension will continue in effect until the bar, upon an application for reenrollment, reverses its decision; until completion of formal disciplinary proceedings; or until this court, under its inherent authority, orders that it be lifted.
It is plain that the proceedings of the bar in this matter cannot withstand constitutional scrutiny. As noted earlier, only the courts may suspend an attorney for disciplinary purposes. (Saleeby v. State Bar, supra, 39 Cal.3d at p. 557; Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 336-337, 339; Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301; In re Shat-tuck, supra, 209 Cal. at p. 12.) The Legislature may delegate to the bar, as an administrative arm of the courts, the authority to investigate and to make recommendations in such matters; it may not, however, delegate the inherent judicial prerogative to discipline by means of disbarment or suspension. (Hustedt v. Workers Comp. Appeals Bd., supra, 30 Cal.3d at p. 339; Brotsky v. State Bar, supra, 57 Cal.2d at pp. 300-301.) Though styled an “inactive enrollment,” the effect of the referee’s order is clearly that of a “temporary” disciplinary suspension. Hence, the provisions of section 6007, subdivision (c) which permit the bar to order the involuntary inactive enrollment of an attorney are patently unconstitutional.
Of course, it could be argued that invalidating section 6007, subdivision (c) on the ground that it constitutes an unconstitutional delegation of judicial authority is simply not worth the candle. The infringement may be only “temporary” (the attorney is always free to seek a court-ordered stay), while the purported governmental interest in removing incompetent attor*1133neys as expeditiously as possible is certainly substantial. This argument, however, fails for several reasons. First, it embraces the principle that the end justifies the means, an inherently dangerous concept. If the principle of exclusive judicial authority is sacrificed here, what is there to prevent a future delegation to the bar of much more extensive authority, say to admit or to actually disbar a member? The principle is identical. If we surrender the power to discipline here, we undermine any principled basis to retain it in the future.
The argument to ignore the constitutional infringement is even less persuasive when one considers that adequate procedures already exist to accomplish the legislative objective of removing dangerously incompetent or unethical attorneys as expeditiously as possible. This court has the inherent authority to suspend an attorney, after notice and an opportunity to be heard, pending review of a disciplinary recommendation. (See Emslie v. State Bar (1974) 11 Cal.3d 210, 230 [113 Cal.Rptr. 175, 520 P.2d 991]; In re Hallman (1954) 43 Cal.2d 243, 253-254 [272 P.2d 768].) Moreover, if removal is required before the completion of disciplinary proceedings, there is no reason why the bar may not proceed pursuant to the expedited procedures of section 6007, subdivision (c). However, instead of issuing an order of involuntary inactive enrollment, the bar could file a recommendation with this court that an attorney be placed on inactive status pending completion of the underlying disciplinary proceeding, and request an expedited review and disposition of the matter.
We are not the only state which has perceived the need for a procedure to expedite the suspension of an attorney upon a showing that he poses a substantial threat to his clients or the public. Pursuant to this court’s request, the bar has provided us with copies of statutes or rules from 10 different states relating to temporary suspension from practice. Each provides, without exception, that when it appears an attorney poses an immediate threat to his clients, the public, or the effective administration of justice, the supreme court of that state may order his immediate suspension pending the completion of full disciplinary proceedings. (See 7A Colo.Rev.Stat. (1987 cum. supp.) Court Rules, rule 241.8; Fla. Rules of Court (1987) rule 3-5.1(g); Me. Rules of Court (1988) rule 7(e); 7 Mass., Supreme Jud. Court Rules, rule 4.01, § 12A; Minn. Rules of Court (1988) rule 16; Nev.Rev.Stats. (1980) rule 102, subd. 4; N.J., Rules Governing the Courts of N.J. (1988 supp.) rule l:20-4(g); Pa. Rules of Disciplinary Enforcement (1986) rule 208(1); Wash. Court Rules (1988) rule 3.2; Wis. Court Rules and Proc. (1987) rule SCR 22.30.)
The State of Wisconsin’s rules for the interim suspension of attorneys are typical in this regard. The Wisconsin rules state: “(1) The supreme court, *1134on its own motion or otherwise, may temporarily suspend an attorney’s license to practice law in Wisconsin where it appears that the attorney’s continued practice of law during the pendency of a disciplinary proceeding poses a threat to the interests of the public and the administration of justice, [fi] (2) Before entering an order temporarily suspending an attorney’s license, the court shall issue an order requiring the attorney to show cause why his or her license to practice law should not be temporarily suspended.” (Wis. Court Rules and Proc. (1987) rule SCR 22.30.)
Other states have thus managed to adopt procedures for the expeditious removal of incompetent or unethical attorneys from practice, without having to sacrifice judicial control of attorney discipline. We in California certainly could effect a similar accommodation. Indeed, as noted earlier, the procedures are already at hand.
In advising this court on matters of attorney admission, discipline and disbarment, the bar performs a critical and thankless task. Unnecessary impediments should not be placed in its path. The imposition of attorney discipline, however, is the sole and exclusive prerogative of the judiciary. In my view, it should remain so. I would hold, therefore, that the provisions of section 6007, subdivision (c), which in effect permit the bar to discipline a member by means of an order that he be placed on involuntary inactive enrollment, are unconstitutional.
B. The Failure to Require a Prompt Disciplinary Hearing Constitutes a Violation of Due Process
Even assuming, arguendo, that the bar could constitutionally impose a temporary suspension pursuant to section 6007, subdivision (c), the absence of a statutory requirement that the bar also provide, within a reasonably prompt period of time, a full and final determination of the underlying disciplinary matter, renders the statute constitutionally suspect on its face.
Indeed, the majority opinion concedes, in light of the “reduce[dj” time an attorney has to meet the charges against him and the fact that he enjoys “fewer rights” than attorneys facing adverse action under other statutes, “that a final disposition is required at some point to validate the procedures governing the predeprivation hearing.”7 (Maj. opn. at p. 1121, italics add*1135ed.) In my view, however, such an amorphous time requirement is totally inadequate to protect the interests of a member placed on involuntary inactive enrollment pursuant to the expedited procedures of section 6007, subdivision (c).
“At some point” in time is cold comfort to an attorney whose practice is quietly disintegrating while the bar fiddles. I do not question the bar’s good faith in such matters. It is apparent, however, that “at some point” provides absolutely no time limit and precious little incentive to the bar to proceed expeditiously with the underlying disciplinary matter. Why should they? The attorney has already been placed on indefinite suspension.
The instant matter provides a case in point. At the time of the involuntary enrollment proceeding against petitioner, no formal disciplinary charges had been filed, although investigations into eleven matters were underway and client complaints in another seven had been filed. After the order placing petitioner on involuntary inactive enrollment became effective on January 21, 1988, the bar delayed until April 11, 1988, an additional three months, to issue an order to show cause. Moreover, the charges in the order to show cause excluded two of the eight matters which formed the basis of petitioner’s involuntary inactive enrollment. To our knowledge, formal charges in these two matters have still not been filed, more than ten months after the effective date of the bar’s order of involuntary inactive enrollment.
The United States Supreme Court has recognized that due process imposes restraints on the timing as well as the form of a postdeprivation hearing. The due process constraints will depend, in each case, “on appropriate accommodation of the competing interests involved.” (Goss v. Lopez (1975) 419 U.S. 565, 579 [42 L.Ed.2d 725, 737, 95 S.Ct. 729]; see also Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 557 [84 L.Ed.2d 494, 513-514, 105 S.Ct. 1487] [cone, and dis. opn. of Brennan, J.].) The relevant interests have been recognized as threefold: the importance of the private interest and the length or finality of the deprivation, the magnitude of the governmental interest, and the nature of the procedure used. (Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 96 S.Ct. 893]; Goss v. Lopez, supra, 419 U.S. at p. 579 [42 L.Ed.2d at pp. 737-738].)
Weighing these factors, I cannot agree with the majority that due process is satisfied so long as the bar provides a final disposition “at some point.” It is undisputed that petitioner has a substantial property interest in his license *1136to practice law. (In re Ruffalo (1968) 390 U.S. 544, 550 [20 L.Ed.2d 117, 122, 88 S.Ct. 1222].) The disruptions caused by the loss of one’s license during the considerable period of time which may pass between the involuntary inactive enrollment and the commencement, much less completion, of final disciplinary proceedings may be truly devastating. Consider the impact on one’s personal and professional life of these months in limbo: the loss of wages, indeed of the opportunity to earn a living; the exhaustion of savings or conversion of possessions to replace wages; the possibility that one could not pay for even basic needs, such as food, clothing and rental or mortgage payments.
The governmental interest in protecting the public from incompetent or unethical attorneys is substantial. However, that interest is adequately served once the attorney is placed on temporary suspension. Fairness compels that a reasonably prompt commencement of final disciplinary proceedings should immediately follow if it has not preceded the temporary suspension.
The Massachusetts Supreme Court reached a similar conclusion in the Matter of Kenney (1987) 399 Mass. 431 [504 N.E.2d. 652], a decision which the majority cites with approval. (Maj. opn. at p. 1121.) Following a preliminary hearing, an attorney was placed on temporary suspension pending a full disciplinary proceeding. The Massachusetts court determined, in agreement with the majority in the instant case, that “a temporary suspension [after a limited preliminary hearing] without a final adjudication would not be constitutional . . . .” (Id. at p. 656.) The court observed further that “[s]ince the rule does not specify when formal disciplinary proceedings must be instituted ... we interpret the rule to require that disciplinary proceedings, if not already begun, must be instituted within a reasonable time.” (Ibid., italics added.)
The Massachusetts court did not venture to suggest a specific time period within which a disciplinary proceeding, assuming that one has not already commenced, must be initiated. However, given the fact that in this state it is not unusual for a disciplinary hearing to commence six months or more after the issuance of a notice to show cause, I would hold, at a minimum, that a notice to show cause on the underlying disciplinary matter must issue within 30 days after the effective date of an involuntary inactive enrollment under section 6007, subdivision (c). A similar 30-day requirement is contained in the rules governing temporary suspensions of attorneys in the State of Pennsylvania. (Pa. Rules of Disciplinary Enforcement (1986) rule *1137208(f)(5).)8 There is no reason that the bar, having already conducted a preliminary investigation and hearing in connection with the involuntary enrollment, cannot issue formal charges and commence final disciplinary proceedings within this time period.
The majority’s reliance on Cleveland Board of Education v. Loudermill, supra, 470 U.S. 532, for the proposition that a delay of even nine months is not unconstitutional, is misplaced. In that case, the court held merely that Loudermill “failed to allege facts sufficient to state a cause of action, and not that nine months can never exceed constitutional limits.” (Id. at p. 554 [84 L.Ed.2d at p. 512] [cone, and dis. opn. of Brennan, J.].) Nor does Loudermill suggest that affording the petitioner a /jredeprivation hearing discharges the bar’s responsibility to move with dispatch thereafter. On the contrary, the court reaffirmed the need to balance the respective interests at stake in determining the timing and form of the /xwideprivation hearing necessary to satisfy the requirements of due process. (470 U.S. at pp. 542-543 [84 L.Ed.2d at p. 504].)
Absent the requirement of a reasonably prompt postdeprivation notice of formal disciplinary charges, I would hold that section 6007, subdivision (c) violates due process.9
C. Petitioner Was Denied Equal Protection of the Law
Aside from the separation-of-power and due process infirmities apparent from the face of the statute, it is also clear that petitioner was denied equal protection of the law under section 6007, subdivision (c) as applied.
*1138As the majority accurately observes, petitioner was placed on involuntary inactive enrollment as the result of misconduct “attributable to a severe cocaine addiction . . . (Maj. opn. at p. 1111.) Section 6007, subdivision (b) expressly provides that the bar may place a member on involuntary inactive enrollment if it finds, “[ajfter notice and opportunity to be heard . . . that the member, because of . . . the habitual use of intoxicants or drugs, is (i) unable or habitually fails to perform his or her duties or undertakings competently, or (ii) unable to practice law without substantial threat of harm to the interests of his or her clients or the public.”
Petitioner appeared to satisfy the criteria of section 6007, subdivision (b) in every respect. Indeed, his was virtually a textbook case of an attorney disabled and unable to practice competently or safely “because of the habitual use of. . . drugs.” Why, then, did the bar not proceed against petitioner under this subdivision? Although the record is silent, one answer is perfectly obvious. Unlike subdivision (c), with its hurry-up 10-day notice rule, constricted discovery and anything-goes rules of evidence, subdivision (b) proceedings are conducted in the normal fashion, with the usual procedural safeguards of notice, discovery and evidentiary rules in place.
Thus, under the statute as currently constituted, another attorney, identically situated to petitioner, identically addicted and disabled, and posing an identical risk of harm to the public, could nevertheless enjoy full due process protection if the bar decided to seek an involuntary enrollment under subdivision (b) rather than (c). It is well settled that the state “cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment” (Schware v. Board of Bar Examiners (1957) 353 U.S. 232, 238-239 [1 L.Ed.2d 796, 801-802, 77 S.Ct. 752, 64 A.L.R.2d 288]), nor “arbitrarily foreclose to any person the right to pursue an otherwise lawful occupation.” (Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 579 [79 Cal.Rptr. 77, 456 P.2d 645, 38 A.L.R.3d 1194]; accord Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 293 [101 Cal.Rptr. 896, 496 P.2d 1264, 53 A.L.R.3d 1149].)
There is nothing in the statute or the record to justify the bar’s disparate treatment of petitioner. “ ‘Action is arbitrary not only when it is capricious, but also if it lacks adequate support in the record, when the facts do not justify the conclusion.’” (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 786-787 [97 Cal.Rptr. 657, 489 P.2d 537], quoting Hollon v. Pierce (1967) 257 Cal.App.2d 468, 478 [64 Cal.Rptr. 808].) The record and the statute in question yield absolutely no rational basis for the bar’s decision to proceed against petitioner under the provisions of subdivision (c) rather than the more directly applicable provisions of subdivision (b). The only *1139plausible reason for singling out petitioner was the fact that the bar was put to far less inconvenience under the relaxed notice, discovery and evidentiary rules of subdivision (c). That, in my estimation, does not constitute a legitimate basis of distinction.
The majority strains to find a valid distinction in the purposes underlying subdivisions (b) and (c). The former, it is alleged, is merely “aimed at preventing the risk that . . . the attorney may not be able to perform competently or . . . without . . . danger to clients or the public.” (Maj. opn. at p. 1117, italics added.) Under subdivision (c), the attorney must be found “to have already caused . . . harm . . . and there must be a reasonable threat such harm will recur or continue.” (Maj. opn. at p. 1117, italics added.) These alleged distinctions, however, are at odds with the plain language of the statute. Subdivision (b) expressly provides that the bar may not institute proceedings unless it finds “after preliminary investigation or during the course of a disciplinary proceeding, that probable cause exists therefor.” It is reasonable to infer that such an “investigation” or “disciplinary proceeding” would be based on some prior misconduct. The bar must also find that the attorney is “unable or habitually fails” to perform his duties. Such a finding would be extremely improbable absent some tangible case or cases in which the attorney has already failed to perform his duties. Clearly, both subdivisions (b) and (c) contemplate proof ofprior misconduct and harm to clients or the public.
Equally unpersuasive is the assertion that only subdivision (c) requires proof offuture misconduct. What would be the point of seeking involuntary enrollment under either subdivision unless the misconduct and risk of harm were likely to recur or continue?
Though the majority purports to find “no lack of justification for the different procedures” under subdivisions (b) and (c) of section 6007 (maj. opn. at p. 1117), in point of fact the only justifications they offer are baseless. There was no legitimate reason to deny petitioner in this matter the full range of procedural protections otherwise accorded members of the bar under section 6007, subdivision (b). For this reason, I would hold that section 6007, subdivision (c) is invalid as applied.
Mosk, J., concurred.
All further statutory references are to the Business and Professions Code unless otherwise noted.
Article VI, section 1 provides: “The judicial power of this State is vested in the Supreme Court, courts of appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record.”
Article III, section 3 provides: “The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.”
Contrary to the suggestion in the majority opinion (maj. opn. at p. 1120, fn. 7), petitioner clearly raised the constitutional separation-of-power issue in his brief as well as at oral argument.
The majority errs in concluding that our decisions permit the bar to impose a temporary disciplinary suspension, so long as such discipline is not “final” and is subject to “review.” (Maj. opn. at p. 1120, fn. 7.) The issue is power, not timing. The cases unequivocally hold that only the courts may impose a disciplinary suspension or disbarment.
Although not here applicable, recent legislative amendments to section 6007 (Stats. 1988, ch. 1159, § 1) modified the prerequisites set forth in subdivision (c)(2) to read as follows: “In order to find that the attorney’s conduct poses a substantial threat of harm to the interests of the attorney’s clients or the public pursuant to this subdivision, each of the following factors shall be found, based on all the available evidence, including affidavits: (A) The attorney has caused or is causing substantial harm to the attorney’s clients or the public.
“(B) The attorney’s clients or the public are likely to suffer greater injury from the denial of the involuntary inactive enrollment than the attorney is likely to suffer if it is granted, or there is a reasonable likelihood that the harm will reoccur or continue. Where the evidence establishes a pattern of behavior, including acts likely to cause substantial harm, the burden of proof shall shift to the attorney to show that there is no reasonable likelihood that the harm will reoccur or continue.
“(C) There is a reasonable probability that the State Bar will prevail on the merits of the underlying disciplinary matter.”
The 1988 legislative amendments also added subsection (3) to subdivision (c), which provides as follows: “In the case of an enrollment under this subdivision, the underlying matter shall proceed on an expedited basis.”
The hearing officer apparently stayed his order of involuntary enrollment for 14 days to allow petitioner to seek a stay from this court. Otherwise, the order would have taken effect immediately. There is no requirement or provision in section 6007, subdivision (c) for a stay pending review and a final dispositional order of this court.
In view of the need for swift action when an attorney constitutes a substantial threat, I agree with the majority that a member may be afforded “fewer rights” at this stage, particularly in terms of a shorter notice period. However, this makes it all the more imperative that a full and final disciplinary hearing be commenced promptly thereafter. I do not agree, however, that the need for an expeditious hearing and decision requires that a member be deprived of his right to confront and cross-examine witnesses. Even the temporary suspension *1135of such a fundamental interest as the right to earn a living requires that these basic due process protections be made available. Any delay occasioned thereby is more than offset by the enhanced reliability such rights lend to the fact-finding process.
The Pennsylvania rule provides: “A respondent-attorney who has been temporarily suspended pursuant to this rule shall have the right to request an accelerated disposition of the charges which form the basis for the temporary suspension by filing a notice with the Secretary of the Board and Disciplinary Counsel requesting accelerated disposition. Within 30 days after filing of such a notice, Disciplinary Counsel shall file a petition for discipline under subdivision (b) of the rule and the matter shall be assigned to a hearing committee for accelerated disposition. Thereafter the matter shall proceed and be concluded by the hearing committee, the Board and the Court without appreciable delay. If a petition for discipline is not timely filed under this paragraph, the order of temporary suspension shall be automatically dissolved, but without prejudice to any pending or further proceedings under this rule.” (Pa. Rules of Disciplinary Enforcement (1986) rule 208(f)(5).)
It should be noted, in this regard, that recently enacted amendments to section 6007, subdivision (c) include the provision that, “In the case of an enrollment under this subdivision, the underlying matter shall proceed on an expedited basis.” (Stats. 1988, ch. 1159, § 1; see fn. 4, ante.) Unless it is construed in a manner consistent with the views expressed above, however, I would hold that the new provision fails to provide adequate due process protection, since it contains no express requirement that a notice to show cause must issue within any particular period of time, much less any reasonable period, after the order of involuntary inactive enrollment.