Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

California Mandates That Its Attorneys Have Strong Character

Recently published California opinions provide a clear message. Those who want to practice law in California need to do more than just ethically represent their clients. They also need to be good citizens generally. Four cases from the first quarter of 2014 illustrate this.

In In re Garcia (2014) 58 Cal.4th 440, the Supreme Court concluded that an undocumented immigrant may be admitted to the State Bar. The Court addressed arguments that the ongoing violation of federal immigration law and the restrictions on employment of undocumented immigrants should not preclude admission to the bar. That is because “every intentional violation of the law is not, ipso facto, grounds for excluding an individual from membership in the legal profession.” (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 459.) Where the law that has been violated is not necessarily based on morality, the circumstances surrounding the violation must be considered. Here, the applicant had resided in the United States for an extended time and was awaiting citizenship, in part, based on the lengthier waiting list for Mexican immigrants. And although the applicant may have limitations imposed on employment by federal law, that is not properly considered for determining whether to admit. Members are duty bound to decline representation in matters where they cannot competently represent their clients, including if the reason is a legal restriction. (Cal. Rules Prof. Cond., rule 3-110.)

In In re Glass (S.D. Cal. 2013)  2013 WL 1316701, an application to practice law was rejected despite a recent record of successful participation in psychotherapy and of public service. Before he attended law school, the applicant had been fired as a journalist for fabricating articles and the supporting materials used to deceive his employer’s editors and fact checkers. The dismissed journalist then attended law school and applied to be admitted to the New York bar, but was less than forthcoming on his application. He withdrew when he received word that his moral character application would be denied. Years later, he applied to the California bar. The court concluded that the applicant had failed to carry his heavy burden of establishing his rehabilitation and current moral fitness. To be qualified to practice law in this state, a person must be of good moral character. (Bus. & Prof. Code, §§ 6060, subd. (b), 6062, subd. (a)(2).) And although Glass pointed to the pro bono legal work he performed for clients of his firm as evidence of sustained efforts on behalf of the community, pro bono work is not truly exemplary for attorneys, but rather is expected of them.

In In re Grant (2014) 58 Cal.4th 469, the Supreme Court determined that an attorney who pleaded guilty to possession of child pornography had committed a crime of moral turpitude per se, such as to require summary disbarment. The Court concluded that the conviction, which required the attorney to knowingly possess or control material depicting minors engaged in sex acts fit the standard provided in In re Lesansky (2001) 25 Cal.4th 11, 17: “extremely repugnant to accepted moral standards.” Because child pornography harms and debases our most defenseless of citizens and is linked to sexual abuse of children, its possession or control necessarily involves moral turpitude.

And in Jensen on Discipline, the State Bar Court concluded that a third discipline against an attorney, where he was convicted of a misdemeanor for child endangerment, did not necessarily mean the attorney should be suspended. He was first convicted for filing a meritless brief with the Court of Appeal. Then, he impersonated another attorney on the phone and sent letters on that attorney’s letterhead to address a personal dispute over the maintenance of his automobile. But more recently, he had left his nine-month-old daughter, who he believed was sleeping, in a crib in a hotel room for approximately 40 minutes while he walked around outside the hotel with his son to relieve some anxiety. The State Bar Court acknowledged that, while Jensen’s isolated act of parental neglect demonstrated a serious lack of judgment about the safety of his child, it had minimal relationship to his profession. It neither involved moral turpitude nor was it related to the practice of law. Accordingly, disbarring the attorney would have been a disproportionate level of discipline.

None of these four opinions concerning whether an individual should be permitted to practice in California were based on an analysis of the representation of a client. Rather, they looked at how attorneys (or applicants) acted as parents, the integrity with which they performed other jobs, their immigration status, and their recreational viewing habits. In other words, to reinforce the confidence that the public has in members of our profession, it is necessary to make sure that the membership of the bar is comprised of individuals with strong character and morality.

– David M. Majchrzak, Klindinst PC

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author and not of SDCBA or its Legal Ethics Committee.**