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.

Crime and Punishment. And Discipline to Boot.

The opening of the venerable police procedural Law and Order famously advised us that “in the criminal justice system, the people are represented by two separate yet equally important groups: The police, who investigate crime, and the district attorneys, who prosecute the offenders.”  Attorneys who are involved in the criminal justice system in the worst way (as defendants), sometimes forget that there is a third group that they have to worry about:  the State Bar of California and the components of its discipline system, the Office of Chief Trial Counsel, the discipline prosecutor and the State Bar Court, the discipline adjudicator.

Discipline based on criminal conviction is a large part of the State Bar discipline system and proceeds in a much different path that discipline based on complaints made to and investigated by Office of Chief Trial Counsel (OCTC).  The genesis of that difference is Business and Professions Code section 6101(c), which provides the a direct path requiring that the record of conviction itself be filed in State Bar Court (as the Supreme Court’s administrative assistant) to begin the discipline process.  Section 6102 provides for the most immediate consequences of the filing of the record of conviction.  The State Bar Court, acting with the authority conferred by Cal. Rule of Court 9.10(a) will order interim suspension pending final discipline for felonies and misdemeanors involving moral turpitude.

For felonies involving moral turpitude per se, section 6102(c) mandates summary disbarment without a hearing, without a chance to offer mitigation or evidence surrounding the circumstances of the crime (see In Re Paguirigan (2000) 25 Cal.4th 1.)  For crimes not meeting the criteria for summary disbarment, the matter will be referred to the Hearing Department for a hearing on the issue of whether the crime involved moral turpitude or other misconduct warranting discipline, and if so, what discipline should be imposed or recommended to the California Supreme Court.

The statutes themselves are responsible for the one more widespread misconceptions regarding discipline for criminal convictions: that moral turpitude is required.  Section 6101(a) states that “[c]onviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.”   What is not in the statute is the Supreme Court doctrine of “other misconduct warranting discipline” which emerged in the case law in the 1970’s. See In re Rohan, (1978) 21 Cal. 3d 195, 202.  In Rohan, the Supreme Court noted that it plenary power in the area of discipline is not restrained by the Legislature, a reality noted by the Legislature itself in Business and Professions Code section 6100 which states that nothing in the article is meant to restrict the Supreme Court’s power to impose discipline.

The Supreme Court most recently articulated the “other misconduct warranting discipline” doctrine in its decision In Re Kelley (1990)  52 Cal.3d 487.  Kelley involved an attorney who was arrested and convicted for driving while intoxicated while on probation from a first drunk driving conviction.  She appealed the recommendation of the State Bar Court that she be publicly reproved and placed on probation for three years, including the condition that she abstain from alcohol use.  It was not disputed that Kelley’s conduct did not involve moral turpitude but she argued that application of the “other misconduct” standard required the State Bar to prove a “nexus” between the crime and the practice of law.  The California Supreme Court declined to address the general issue of whether some nexus was required by finding the requirement of a nexus between Kelley’s conduct on her law practice was established by two circumstances.  First, Kelley was on probation for a prior DUI when she was arrested, establishing a disregard for the law.  Second, Kelley’s conduct was indicative of an alcohol abuse problem and “[w]e cannot and should not sit back and wait until petitioner's alcohol abuse problem begins to affect her practice of law.”  Kelley, at 495.

Since the time of Kelley, most criminal convictions for misdemeanors, as well as felonies, have resulted in some discipline.  But there is still uncertainty over the outer parameters of the “other misconduct”  standard. The State Bar Court Review Department enjoyed a rare dissenting opinion in In the Matter of Jensen (Review Dept. 2013) 5 Cal. State Bar Ct. Rptr. 283, 2013 WL 56662405.  Jensen was convicted of misdemeanor child endangerment  after he left his nine-month-old daughter in a crib in a hotel room for 40 minutes while he took his toddler son for a walk.  Presiding Judge Remke argued that the case should be dismissed, that Jensen’s conduct, while irresponsible and criminal”did not involve the practice of law, a violation of a court order, or other acts of dishonesty; it did not include violent acts or result in harm to his child or any third party; and it did not occur as a result of alcohol or substance abuse—factors listed in the cases cited by the majority that indicate an attorney's conviction may constitute other misconduct warranting discipline.”   The majority, however, adopted the hearing judge’s recommendation of a 120 day suspension, based on Jensen’s two prior disciplines.  OCTC would have disbarred Jensen for his third offense.

The practical take away for lawyers is that aside from infractions such as traffic tickets, there is no alternative to obeying the law at all times, not only in the practice of law, but in their personal lives.

— David Carr is an attorney at law.

**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 only and not of the SDCBA or its Legal Ethics Committee.**