California attorneys convicted of a misdemeanor or felony offense involving moral turpitude or “other misconduct warranting discipline” face possible reproval, license suspension, or even disbarment by the State Bar of California.
Moral turpitude offenses typically comprise crimes of
- theft, or
The California State Bar may also deny licenses to aspiring California lawyers who
- have a criminal history and
- have not rehabilitated themselves and their moral character.
State bar investigation and hearing
Once the State Bar learns of a criminal conviction, it will review the applicable case to determine whether or not the crime the lawyer was convicted of warrants disciplinary action.
If the review shows that discipline might be appropriate, the case is sent to the State Bar Court and the lawyer must attend a hearing before a State Bar Court Judge.
If the State Bar Court Judge believes disciplinary action is appropriate based on the conviction, he/she can either:
- issue a reprimand or reproval,
- suspend the attorney’s license, or
- disbar the convicted lawyer.
Our California criminal defense attorneys will highlight the following in this article:
- 1. Who regulates attorneys in California?
- 2. Does a criminal charge trigger attorney discipline?
- 3. What is a crime involving moral turpitude?
- 4. What is “other misconduct” warranting discipline?
- 5. How does the disciplinary process/discipline system work with a conviction?
- 6. What happens at a State Bar Court hearing?
- 7. What type of disciplinary action can the State Bar of California impose for criminal convictions?
- 8. Can a person with a criminal record apply for a license to practice law?
1. Who regulates attorneys in California?
Attorneys in California are regulated by the State Bar of California, an administrative arm of the California Supreme Court.
The California Supreme Court has the final say as to lawyer discipline matters, but the state’s highest court defers to recommendations made by the State Bar Court.1
2. Does a criminal charge trigger attorney discipline?
No. The State Bar does not initiate discipline matters or a disciplinary investigation if an attorney gets charged with a criminal offense.
Rather, the Bar will start disciplinary proceedings if an attorney gets convicted of a crime.
Note that attorneys in California can be disciplined for criminal convictions
- involving moral turpitude as well as those
- involving “other misconduct warranting discipline.”
California Business and Professions Code Section 6101(a) provides that conviction
“of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension.”2
The state Supreme Court also can take disciplinary action regarding “other misconduct warranting discipline” according to its “inherent power to control the practice of law to protect the profession and the public.”3
A “conviction” includes a:
- guilty plea or verdict,
- acceptance of no contest plea, or
- conviction following a no contest plea
once the judgment was entered. Note that deferred entries of judgment do not count as convictions since the implementation of Assembly Bill 2138 as long as the case ultimately gets dismissed.4
Note that lawyers have an affirmative duty to report certain convictions and pending criminal matters to the State Bar.5
District attorneys and court clerks also have reporting obligations in connection with such matters.6
3. What is a crime involving more turpitude?
The term crime involving moral turpitude refers to a category of crimes that involve either:
- dishonesty, or
- base, vile, or depraved conduct shocking to a reasonable person.7
Certain crimes involve moral turpitude per se. Examples include crimes involving an intent to defraud as well as extremely repugnant crimes such as murder. However, other offenses may involve moral turpitude based on the circumstances of the given case.8
Crimes that the state Supreme Court or Bar Court have labeled “crimes of moral turpitude” include:
- attempted lewd act on a minor,10
- contributing to the delinquency of a minor,11
- solicitation to commit assault on a former client,12
- vehicular manslaughter with extensive priors,13
- mail fraud,15
- federal securities laws violations,16
- false personation to obtain a benefit,17 and
- grand theft of client and firm funds.18
The purpose of the moral turpitude inquiry enables the court and bar association “to identify those attorneys who are unfit to practice law, so that discipline can be imposed to protect the public, bench, and bar from future misconduct.”19
4. What is “other misconduct” warranting discipline?
The conviction inquiry does not end even if there is no finding of moral turpitude.
A respondent-attorney can still face discipline and a finding of professional misconduct if his/her conviction involves “other misconduct warranting discipline.”
Whether or not a crime involves misconduct warranting discipline is typically determined on a case-by-case basis, after the State Bar considers the facts of a case.
Crimes where the Bar Court did believe that the offense involved “other misconduct” include:
- drunk driving,20
- domestic violence,21
- carrying a concealed weapon,22
- willful failure to file federal income tax returns,23 and
- failure to pay payroll taxes and unemployment insurance contributions.24
5. How does the disciplinary process/discipline system work with a conviction?
Once the State Bar receives notice of a conviction, an attorney in the Bar’s Office of Chief Trial Counsel conducts an initial review of the applicable criminal case.
The lawyer reviews the case to determine whether it may involve
- a crime involving moral turpitude or
- other attorney misconduct warranting discipline.
The initial review takes about two to three weeks.
If the reviewing attorney finds that the offense may warrant some type of disciplinary charges, the State Bar conducts a more detailed investigation.
The investigation is closed if it finds that a lawyer’s conviction does not warrant discipline. However, if discipline might be appropriate, the State Bar files charges against the convicted attorney in State Bar Court.25
The Court then holds a hearing to determine:
- if the crime the attorney was convicted of involves moral turpitude or other conduct warranting discipline, and
- the appropriate discipline for the convicted attorney.
If the convicted lawyer was found guilty of a felony, he/she is placed on interim suspension until completion of the hearing.
An attorney convicted of a misdemeanor is also placed on suspension if the crime involved moral turpitude per se.
6. What happens at a State Bar Court hearing?
A State Bar Court hearing is a formal proceeding held before a State Bar Court Judge. The hearing judge learns the facts of the subject lawyer’s criminal conviction.
The State Bar may also highlight any aggravating circumstances to the judge.
Aggravating circumstances can include:
- a prior record of discipline,
- a pattern of misconduct, and
- misconduct surrounded by bad faith, dishonesty, concealment, or overreaching.26
The convicted attorney can also present evidence of any mitigating circumstances that may apply to the case. Mitigating circumstances may include:
- the absence of prior discipline,
- a lack of harm in the underlying criminal case,
- extreme emotional difficulties not caused by illegal activity (and no longer a problem), and
- candor and cooperation in the State Bar’s investigative process.27
Rights at the hearing
Note that a convicted lawyer does not have the same rights at a hearing when compared to a criminal trial. For example, a hearing does not afford a lawyer with either:
- the right to a jury trial, or
- the right to appointed counsel if the lawyer cannot afford one.28
Further, the burden of proof at the hearing is a “clear and convincing evidence” standard, as opposed to a “beyond a reasonable doubt” standard in a criminal case.29
Once the judge hears all evidence within a case, he/she determines whether or not the convicted legal professional should be disciplined.
7. What type of disciplinary action can the State Bar of California impose for criminal convictions?
If a judge determines that discipline is applicable in a case, he/she typically issues one of the following sanctions:
- a reprimand or reproval,
- suspension of the attorney’s license, or
- disbarment of the convicted lawyer.
Disbarment or actual suspension is the appropriate sanctions for moral turpitude-related convictions.30
Suspension is the presumed sanction for a conviction of a felony not involving moral turpitude but involving other misconduct warranting discipline. Meanwhile, suspension or reproval is the presumed sanction for
- a conviction of a misdemeanor not involving moral turpitude but
- involving other misconduct warranting discipline.31
State Bar reviews
Note that either the convicted lawyer or the State Bar Court can request a review of the judge’s decision in the State Bar Court. Review is conducted by the Review Department of the State Bar and possibly the California Supreme Court. Most cases sent to the Supreme Court are summarily affirmed.
8. Can a person with a criminal record apply for a license to practice law?
People who wish to become an attorney in California can have their bar applications denied for lack of positive moral character. In many cases, a criminal history is evidence of poor moral character.
However, the State Bar may still accept applicants with criminal histories if they can show proof of rehabilitation. An experienced attorney can help advise bar applicants on how to try to demonstrate rehabilitation.32
Assembly Bill 2138
Since the implementation of Assembly Bill 2138, the Bar will no longer deny licenses due to:
- certain crimes that are more than seven years old;
- expunged convictions;
- deferred entries of judgment that resulted in a dismissal of the charge.
Note that the State Bar performs its own criminal history background check of applicants using their fingerprints; this way, applicants no longer need to include their criminal histories in the application.33
Unauthorized practice of law
Note that if a person is denied a license, and the non-attorney attempts to practice law, he/she could be charged with the unauthorized practice of law. The latter can lead to either misdemeanor or felony charges and up to three years in county jail.
For additional help…
If you are an attorney and are under investigation by the State Bar, we invite you to contact our law firm/law office at the Shouse Law Group. Our criminal defense attorneys provide both free consultations and legal advice you can trust.
Our lawyers also represent clients throughout California, including those in Los Angeles, San Diego, San Francisco, Los Angeles County, and Sacramento. Also see our article on: Can a felon become a lawyer?
- In re Silverton, 36 Cal.4th 81 (2005).
- California Business and Professions Code Section 6101a.
- In re Kelley, 52 Cal.3d 487 (1990).
- California Business and Professions Code 6101e.
- California Business and Professions Code 6068o.
- California Business and Professions Code 6101b and c. Assembly Bill 2138.
- In re Craig, 12 Cal.2d 93 (1938).
- In re Kelley, 52 Cal.3d 487 (1990).
- In re Kirschke 16 Cal.3d 902, 904 (1976).
- In re Lesansky, 25 Cal.4th 11 (2001).
- In re Duggan, 17 Cal.3d 416 (1976).
- In re Mostman, 47 Cal.3d 725 (1989).
- In re Alkow, 64 Cal.2d 838 (1966).
- In the Matter of Katz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502.
- In re Utz, 48 Cal.3d 468 (1989).
- Chadwick v. State Bar of California, 49 Cal.3d 103, (1989).
- In re Lamb 49 Cal.3d 239, 246 (1989).
- In re Basinger, 45 Cal.3d 1348 (1988).
- In re Kirschke, 16 Cal.3d 902 (1976).
- In re Kelley, 52 Cal.3d 487 (1990).
- In re Otto, 48 Cal.3d 970 (1989).
- In re Hickey, 50 Cal.3d 571 (1990).
- In re Rohan, 21 Cal.3d 195 (1978).
- In re Morales, 35 Cal.3d 1 (1983).
- Rules 5.9, 5.13 of the Rules of Procedure of the State Bar.
- Rules Proc. of State Bar, tit. IV.
- See same.
- See Palomo v. State Bar, 36 Cal.3d 785 (1984).
- Rule 5.103 of the Rules of Procedure of the State Bar.
- Rules Proc. of State Bar, tit. IV.
- See same.
- See Moral Character Determination Application, California State Bar.
- Assembly Bill 2138.