By David C. Carr
A lot of business before the State Bar Court consists of dealing with lawyers convicted of crimes. It is an area that does not receive a lot of attention from the public or even lawyers. These so-called “C” cases (after the letter that appears in the middle of the case designation after the year) travel down a different procedural path than “O” cases, cases that result from complaints filed with the Office of Chief Trial Counsel (OCTC) of the State Bar, or other information acquired by the OCTC that leads to the opening of an investigation.
There is a profound level of ignorance about the criminal conviction referral process among people involved in the criminal justice system, including lawyer defendants, criminal defense lawyers, criminal prosecutors, and even judges. This has often led to lawyer defendants making decisions in their criminal prosecutions that lead to consequences they did not anticipate, sometimes based on ignorant assertions from those criminal defense lawyers, criminal prosecutors, and judges that the State Bar consequences would be minimal.
The starting point for understanding the process is Business and Professions Code, sections 6100 through 6102.[1] Section 6100 states the important principle that nothing in the Code “limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.” Keep that in mind after we explore the procedure set forth in sections 6101 and 6102, especially the statement in section 6101(a) that “conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.”
Section 6101(b) provides that the prosecuting agency must inform the State Bar when it files criminal charges against a lawyer. This requirement is independent of the self-reporting requirements for criminal matters set forth in Section 6068(o). Failure to self-report when required is a cause for discipline, and the fact the prosecutor reported as required by section 6101(b) is not a defense. When OCTC receives a report that criminal charges have been filed, it opens a tracking file and waits to see if the matter results in a conviction.
However, the negative consequences for the lawyer can begin even before conviction. A few years ago, the Board of Trustees authorized the addition of a Consumer Alert badge to the lawyer defendant’s State Bar membership records page where felony charges have been filed even before the conviction. The badge is a bright red-bordered box that tells the world that the lawyer is being criminally charged, even though it also advises the reader that the lawyer is innocent until proven guilty. Despite this perfunctory disclaimer, the badge is styled as a “public protection” measure that predictably may dissuade potential clients from hiring the lawyer.
Section 6101(C) governs what happens on conviction. Conviction is the triggering event for disciplinary action by the State Bar. Even if a conviction does not occur, OCTC can open an investigation based on the allegations in the criminal prosecution and pursue the matter as an “O” case, but that hardly ever happens. Where possible, the State Bar defers to someone else to do the hefty lifting. Section 6101(c) requires the Court to send OCTC a certified copy of the conviction within 48 hours; and OCTC, in turn, has 30 days to file the record of conviction in the State Bar Court. The statute would not seem to give OCTC discretion not to file the record of conviction, but it exercises discretion anyway to not file some cases, for instance, first-time DUI cases in most cases. The parameters of this seemingly extra-statutory exercise of discretion are hazy, and some first-time DUI cases with low BAC and no harm to person or property are being handled under OCTC’s new diversion program.
Section 6101(c) says the procedure after conviction to suspend or disbar the attorney will be undertaken by the Supreme Court. This language is anachronistic, made obsolete by California Rule of Court 9.10(a), which delegates the criminal conviction referral process to the State Bar Court.
What is a “conviction”? This question is answered by Section 6101(e), which says that a plea or verdict of guilty or a nolo contendere plea is a conviction within the meaning of section 6101. This has implications for criminal diversion schemes that require a guilty plea to be expunged later. Regardless of subsequent expungement, that plea starts the State Bar discipline process.
Things really get rolling when we get to section 6102. Filing the record of conviction in State Bar Court starts the criminal conviction referral process in State Bar Court- a public matter. Section 6102(a) requires the State Bar Court to place the lawyer on interim suspension if the crime is a felony or misdemeanor involving moral turpitude. This happens within a matter of weeks after the record of conviction is filed, even if the attorney has filed an appeal, and will remain until the final discipline order issues, usually a Supreme Court discipline order, as these cases seldom, if ever, result in dismissals or reprovals. Convicted attorneys have remained on interim suspension for years. The statute allows for motions to set aside interim suspension, but in my experience, such motions are seldom granted. Interim suspension is a harsh consequence of felony conviction that many participants in the criminal justice are unaware of.
But worse things can happen to an attorney convicted of a felony. Section 6102(c) provides that a felony conviction of a crime involving moral turpitude, either moral turpitude per se (every instance of the crime involves moral turpitude; see In Re Lesansky (2001) 25 Cal.4th 11, 17). or moral turpitude in the surrounding circumstances shall result in summary disbarment. This means disbarment without a chance to introduce evidence of mitigating circumstances. However, the attorney will get a hearing if the crime is not moral turpitude per se to determine if the surrounding circumstances involve moral turpitude. OCTC and the State Bar Court have broad latitude to examine the circumstances surrounding the crime in the hunt for moral turpitude. (In re Hurwitz (1976) 17 Cal.3d 562, 567: court not restricted to elements of the offense but may look at “the whole course of conduct.”)
An examination of the disbarment cases publicly disclosed in legal publications like the Daily Journal will reveal many instances of summary disbarment after a criminal conviction.
If a criminal conviction referral case does not meet the criteria for summary disbarment, it will be tried in State Bar Court as provided in State Bar Rules of Procedure 5.340 through 5.347. The State Bar Rules of Procedure are the exclusive set of rules governing State Bar Court proceedings. Civil and criminal rules don’t apply unless they are expressly referenced in the Rules of Procedure. Any lawyer so unwise as to self-represent in State Bar Court, and there are many, must be familiar with these Rules and understand he or she is in a true judicial proceeding entitled to the respect due a court of law.
The criminal conviction will not be re-litigated in State Bar Court. The conviction is conclusive evidence that every fact necessary to satisfy the elements of the crime has occurred. The scope of what will be litigated in State Bar Court is determined by an order issued by the Review Department to the Hearing Department at the start of the proceeding. It typically directs the hearing judge to hold a hearing on the issues of (1) whether the crime involved moral turpitude or “other misconduct warranting discipline” and (2) the degree of discipline to impose or recommend.
If you just read the statutes, you might think that only crimes involving moral turpitude can be subject to discipline. Not so. Remember the language of section 6100 about the Supreme Court’s “inherent power”? Beginning in the 1970s, the Supreme Court began to delineate through case law the doctrine of “other misconduct warranting discipline,” which allows discipline for crimes not involving moral turpitude.
The question as whether some “nexus” must exist between the crime and the practice of law was widely debated until the Supreme Court decision in In Re Kelley (1990) 21 Cal.3d 487. Kelleyinvolved a lawyer convicted of DUI. She argued that there was no nexus between her conviction and her practice of law. The Supreme Court sidestepped the question of whether a nexus is required by finding a nexus in Kelley’s case in two ways: (1) she was on probation for a prior DUI at the time of the conviction at issue, raising a question about her respect for the law and (2) two DUI convictions strongly suggested that Kelley had an alcohol abuse problem:
Petitioner’s behavior evidences both a lack of respect for the legal system and an alcohol abuse problem. Both problems, if not checked, may spill over into petitioner’s professional practice and adversely affect her representation of clients and her practice of law. Our task in disciplinary cases is preventative, protective and remedial, not punitive.
Kelley, at 496.
After Kelley and the adoption of Cal. Rule of Court 9.10 in 1992 that largely got the Supreme Court out of direct involvement in discipline, there has been little discussion of the “nexus” issue. Instead, it seems to be widely assumed that preserving public confidence in the legal profession means that discipline for almost any felony or misdemeanor crime is justified (see section 6068(a): attorney has a duty “to support the Constitution and laws of the United States and of this state.”) In the Matter of Jensen (Review Dept. 2013) 5 Cal. State Bar Ct. Rptr. 283 involved the discipline of an attorney convicted of misdemeanor child endangerment (Penal Code section 273a(b)) for leaving his nine-month-old daughter unattended in a hotel room for 40 minutes. A two-to-one majority of the Review Department found no moral turpitude but “other misconduct warranting discipline” even as it conceded that “[b]ased on this limited record, we find that Jensen’s actions fall at the very low end of misconduct justifying professional discipline.” The majority bottomed their decision on the extreme vulnerability of a nine-month-old child and their finding that 40 minutes was a long time to leave such a young child unattended. The dissent found no basis for discipline, even though Jensen’s actions were criminal and irresponsible.
Criminal conviction discipline proceedings raise many interesting issues that could be discussed at greater length. Two of the principle takeaways from this brief discussion for the average lawyer should be if you are charged with a crime are (1) hire a good criminal defense lawyer: and (2) consult with experienced, discipline defense counsel about the consequences to your law license.
[1] All references to “sections” are to the California Business and Professions Code.