California attorneys convicted of a felony or misdemeanor involving moral turpitude face possible license suspension or disbarment by the California State Bar. Moral turpitude offenses typically comprise crimes of violence, theft, or fraud.
The California State Bar may also deny licenses to aspiring attorneys who have a criminal history and whose moral character have not been rehabilitated. It makes no difference if these past crimes or misconduct occurred more than seven (7) years ago (despite the recent passage of Assembly Bill 2138).
If you face possible State Bar discipline because of a conviction or pending criminal matter, our California Criminal Defense Lawyers might be able to help. We represent people accused of crimes and have experience helping professionals resolve discipline issues.1
In representing attorneys, we work carefully to resolve the cases so as to avoid triggering state bar consequences.
This article is about criminal convictions and lawyer discipline in California. If you have questions after reading it, we invite you to contact us for a consultation.
This article covers:
- 1. Who regulates attorneys in California?
- 2. What criminal convictions trigger CA State Bar discipline?
- 3. Do I have to report convictions?
Attorneys in California are regulated by the State Bar of California, an administrative arm of the California Supreme Court.
The California Supreme Court has final say in lawyer discipline matters, but the state’s highest court defers to recommendations made by the State Bar Court.2
Conviction proceedings originate in the Bar Court’s Review Department (as opposed to the Hearing Department) upon the filing of a certified copy of a record of conviction by the State Bar’s Office of the Chief Trial Counsel (“OCTC”).3
The 2009 Report on the State Bar of California Discipline System defines “conviction referral” as:
A formal disciplinary proceeding initiated after a member’s criminal conviction to determine whether the conviction involves moral turpitude or other misconduct warranting discipline and, if so, to assess the appropriate level of discipline. A conviction referral proceeding is commenced by a referral order from the State Bar Court Review Department directing the Hearing Department to hold a hearing, file a conviction order and recommend the discipline to be imposed, if any, or to take other action on the issue or issues stated in the order.4
According to the Report, which describes the Bar’s enforcement machinery, the OCTC received 343 new criminal cases for monitoring in 2009, up from 283 in 2005.5
Subject to the possibility of an interim suspension under Bus. & Prof. Code Sec. 6102 (a), final discipline is not authorized until a judgment of conviction has become final.6
Attorneys in California can be disciplined for criminal convictions involving moral turpitude as well as convictions 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.”7 (Conviction is defined in subdivision (e) to include a guilty plea or verdict, acceptance of no contest plea or conviction following a no contest plea.)
The state Supreme Court also can take disciplinary action in regards to “other misconduct warranting discipline” pursuant to its “inherent power to control the practice of law to protect the profession and the public.”8
Section 6102 (c) of the Business and Professions Code provides for summary disbarment in cases of felonies involving moral turpitude or an element of which is the specific intent to deceive, defraud, steal, or make or suborn a false statement.9
The summary disbarment provision came up in a 2001 case involving an attorney who pled no contest to forgery of a witness signature on court documents. The state Supreme Court rejected arguments that petitioner was entitled to a hearing and held that the summary disbarment provision did not legislatively infringe on the court’s inherent authority over attorney discipline.10
A lot rides on whether a conviction involves moral turpitude. Yet moral turpitude “is an elusive concept incapable of precise general definition,” according to the state Supreme Court.11
Moral turpitude “has been defined by many authorities as an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”12
Certain crimes involve moral turpitude per se such as “crimes involving an intent to defraud as well as extremely repugnant crimes such as murder” while other crimes may involve moral turpitude based on the circumstances of a given case.13
The purpose of the moral turpitude inquiry enables the court “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.”14
Here are examples of cases in which the state Supreme Court or Bar Court has found moral turpitude in connection with attorney convictions:
- attempted lewd act on a minor.16
- contributing to the delinquency of a minor (PC 272)17
- solicitation to commit assault on former client (PC 653(f))18
- vehicular manslaughter with extensive priors19
- mail fraud21
- federal securities laws violation22
- false personation to obtain a benefit (PC 529(3))23
- grand theft of client and firm funds24
Standard 2.11 of the Rules of Procedure provides that disbarment or actual suspension are the appropriate sanction for moral turpitude-related convictions.25 Note that the Bar may take into account mitigating and aggravating circumstances when determining discipline:
Mitigating circumstances include the absence of prior discipline, lack of harm, extreme emotional difficulties not caused by illegal activity (and no longer a problem), and “spontaneous” candor and cooperation in State Bar’s the investigative process.26
Aggravating circumstances, on the other hand, include a prior record of discipline, pattern of misconduct, and misconduct surrounded by bad faith, dishonesty, concealment or overreaching.27
Other misconduct warranting discipline
The conviction inquiry does not end even if there is no finding of moral turpitude. An attorney can still be disciplined if the conviction involves “other misconduct warranting discipline.”
Like “moral turpitude,” this concept appears to suffer from a lack of precision. However, such “other misconduct” has been found in the following kinds of convictions:
- drunk driving28
- domestic violence29
- carrying a concealed weapon30
- willful failure to file federal income tax returns31
- failure to pay payroll taxes and unemployment insurance contributions.32
Actual suspension is the presumed sanction for final conviction of a felony not involving moral turpitude, but involving other misconduct warranting discipline. Meanwhile, suspension or reproval is the presumed sanction for final conviction of a misdemeanor not involving moral turpitude but involving other misconduct warranting discipline.33
Applying to be a lawyer with a criminal history
People who wish to become an attorney in California can have their bar applications denied for lack of positive moral character. In many cases, having 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.34
Lawyers have an affirmative duty to report certain convictions and pending criminal matters.35
District attorneys and court clerks also have reporting obligations in connection with such matters.36
Our California Criminal Defense Lawyers Can Help.
If you or a loved one is charged with a crime and are a lawyer and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
You might also be interested in reading our other professional discipline articles on Administrative Hearings, Doctor License Revocation, Nurse License Revocation, Dentist License Revocation, Pharmacist License Revocation, Teacher License Revocation, Social Worker License Revocation, and Real Estate Agent License Revocation.
You might also be interested in our article on the California crime of “Unauthorized Practice of Law“.
Our help center has contact information for organizations that can assist with substance abuse or anger management issues. Other resources are listed below.
Licensed in Colorado? See our article on Colorado disciplinary proceedings for attorneys and license disbarment.
Licensed in Nevada? See our article on Nevada disciplinary proceedings for attorneys and license disbarment.
- Our California Criminal Defense Lawyers have local offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, San Diego, San Francisco, Torrance, Van Nuys, West Covina, and Whittier.
- In re Silverton 36 Cal.4th 81, 90 (2005) [Supreme Court rejects Bar Court’s recommendation of suspension in favor of disbarment in non-conviction related misconduct proceeding] (“In attorney discipline matters, we generally accord great weight to the Review Department’s recommendation. Nevertheless, the State Bar Court’s findings and recommendations are merely advisory. [T]he ultimate decision rests with this court, and we have not hesitated to impose a harsher sanction than recommended by the department. When the facts have warranted doing so, we have even rejected a recommendation of suspension and disbarred the attorney.” Internal citations and quotations omitted) SEE ALSO California Business and Professions Code 6087 (“Nothing in this chapter shall be construed as limiting or altering the powers of the Supreme Court of this State to disbar or discipline members of the bar as this power existed prior to the enactment of Chapter 34 of the Statutes of 1927, relating to the State Bar of California. Notwithstanding any other provision of law, the Supreme Court may by rule authorize the State Bar to take any action otherwise reserved to the Supreme Court in any matter arising under this chapter or initiated by the Supreme Court; provided, that any such action by the State Bar shall be reviewable by the Supreme Court pursuant to such rules as the Supreme Court may prescribe.”).
- See Rules of Procedure of the State Bar of California, Title II, Rule 5.340 provides: “These rules apply to proceedings that result from a member’s criminal conviction and are held under Business and Professions Code §§ 6101 and 6102, California Rules of Court, rule 9.10, and these Rules of Procedure of the State Bar.).
- 2009 Report on the State Bar of California Discipline System by the State Bar of California (April 2010) , p. 47.
- 2009 Report on Discipline, supra, p. 6.
- California Business and Professions Code Section 6102, infra; California Rules of Court, Title IX, Rule 9.10 (a) (“The State Bar Court exercises statutory powers under Business and Professions Code sections 6101 and 6102 with respect to the discipline of attorneys convicted of crimes. (See Bus. & Prof. Code section 6087. ) For purposes of this rule, a judgment of conviction is deemed final when the availability of appeal has been exhausted and the time for filing a petition for certiorari in the United States Supreme Court on direct review of the judgment of conviction has elapsed and no petition has been filed, or if filed the petition has been denied or the judgment of conviction has been affirmed. The State Bar Court must impose or recommend discipline in conviction matters as in other disciplinary proceedings. The power conferred upon the State Bar Court by this rule includes the power to place attorneys on interim suspension under subdivisions (a) and (b) of section 6102, and the power to vacate, delay the effective date of, and temporarily stay the effect of such orders.”).
- California Business and Professions Code Section 6101 provides: “(a) Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension. In any proceeding, whether under this article or otherwise, to disbar or suspend an attorney on account of that conviction, the record of conviction shall be conclusive evidence of guilt of the crime of which he or she has been convicted. (b) The district attorney, city attorney, or other prosecuting agency shall notify the Office of the State Bar of California of the pendency of an action against an attorney charging a felony or misdemeanor immediately upon obtaining information that the defendant is an attorney. The notice shall identify the attorney and describe the crimes charged and the alleged facts. The prosecuting agency shall also notify the clerk of the court in which the action is pending that the defendant is an attorney, and the clerk shall record prominently in the file that the defendant is an attorney. (c) The clerk of the court in which an attorney is convicted of a crime shall, within 48 hours after the conviction, transmit a certified copy of the record of conviction to the Office of the State Bar. Within five days of receipt, the Office of the State Bar shall transmit the record of any conviction which involves or may involve moral turpitude to the Supreme Court with such other records and information as may be appropriate to establish the Supreme Court’s jurisdiction. The State Bar of California may procure and transmit the record of conviction to the Supreme Court when the clerk has not done so or when the conviction was had in a court other than a court of this state. (d) The proceedings to disbar or suspend an attorney on account of such a conviction shall be undertaken by the Supreme Court pursuant to the procedure provided in this section and Section 6102, upon the receipt of the certified copy of the record of conviction. (e) A plea or verdict of guilty, an acceptance of a nolo contendere plea, or a conviction after a plea of nolo contendere is deemed to be a conviction within the meaning of those sections.” SEE ALSO California Business and Professions Code Section 6106 provides: “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor.”
- In re Kelley 52 Cal.3d 487, 494 (1990) [attorney publicly reproved and placed on probation for two alcohol-related driving convictions] (“Our inquiry into the possible grounds for discipline does not end with the foregoing statutory language [Bus & P C 6101 and 6106]. Although the review department found petitioner’s conduct did not involve moral turpitude, it concluded the conduct constituted ‘other misconduct warranting discipline. ‘ The ‘other misconduct warranting discipline’ standard permits discipline of attorneys for misconduct not amounting to moral turpitude as an exercise of our inherent power to control the practice of law to protect the profession and the public.”) SEE ALSO California Business and Professions Code Section 6100 (“For any of the causes provided in this article, arising after an attorney’s admission to practice, he or she may be disbarred or suspended by the Supreme Court. Nothing in this article limits the inherent power of the Supreme Court to discipline, including to summarily disbar, any attorney.”).
- California Business and Professions Code Section 6102 provides: “(a) Upon the receipt of the certified copy of the record of conviction, if it appears therefrom that the crime of which the attorney was convicted involved, or that there is probable cause to believe that it involved, moral turpitude or is a felony under the laws of California, the United States, or any state or territory thereof, the Supreme Court shall suspend the attorney until the time for appeal has elapsed, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal, or has otherwise become final, and until the further order of the court. Upon its own motion or upon good cause shown, the court may decline to impose, or may set aside, the suspension when it appears to be in the interest of justice to do so, with due regard being given to maintaining the integrity of, and confidence in, the profession. (b) For the purposes of this section, a crime is a felony under the law of California if it is declared to be so specifically or by subdivision (a) of Section 17 of the Penal Code, unless it is charged as a misdemeanor pursuant to paragraph (4) or (5) of subdivision (b) of Section 17 of the Penal Code, irrespective of whether in a particular case the crime may be considered a misdemeanor as a result of postconviction proceedings, including proceedings resulting in punishment or probation set forth in paragraph (1) or (3) of subdivision (b) of Section 17 of the Penal Code. (c) After the judgment of conviction of an offense specified in subdivision (a) has become final or, irrespective of any subsequent order under Section 1203.4 of the Penal Code or similar statutory provision, an order granting probation has been made suspending the imposition of sentence, the Supreme Court shall summarily disbar the attorney if the offense is a felony under the laws of California, the United States, or any state or territory thereof, and an element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude. (d) For purposes of this section, a conviction under the laws of another state or territory of the United States shall be deemed a felony if: (1) The judgment or conviction was entered as a felony irrespective of any subsequent order suspending sentence or granting probation and irrespective of whether the crime may be considered a misdemeanor as a result of postconviction proceedings. (2) The elements of the offense for which the member was convicted would constitute a felony under the laws of the State of California at the time the offense was committed. (e) Except as provided in subdivision (c), if after adequate notice and opportunity to be heard (which hearing shall not be had until the judgment of conviction has become final or, irrespective of any subsequent order under Section 1203.4 of the Penal Code, an order granting probation has been made suspending the imposition of sentence), the court finds that the crime of which the attorney was convicted, or the circumstances of its commission, involved moral turpitude, it shall enter an order disbarring the attorney or suspending him or her from practice for a limited time, according to the gravity of the crime and the circumstances of the case; otherwise it shall dismiss the proceedings. In determining the extent of the discipline to be imposed in a proceeding pursuant to this article, any prior discipline imposed upon the attorney may be considered. (f) The court may refer the proceedings or any part thereof or issue therein, including the nature or extent of discipline, to the State Bar for hearing, report, and recommendation. (g) The record of the proceedings resulting in the conviction, including a transcript of the testimony therein, may be received in evidence. (h) The Supreme Court shall prescribe rules for the practice and procedure in proceedings conducted pursuant to this section and Section 6101. (i) The other provisions of this article providing a procedure for the disbarment or suspension of an attorney do not apply to proceedings pursuant to this section and Section 6101, unless expressly made applicable.”
- In re Paguirigan 25 Cal.4th 1, 7 (2001) (“We agree with the Review Department that when an attorney’s felony conviction satisfies the requirements of the summary disbarment statute, the attorney is not entitled to a State Bar Court hearing to determine whether lesser discipline is called for..The Legislature’s enactment of a statute relating to attorney discipline does not in and of itself infringe on this court’s inherent authority in this area.”).
- In re Higbie 6 Cal.3d 562, 565 (1972) [conviction for failure to pay federal marijuana tax involved moral turpitude although not moral turpitude per se] (“We conclude that failure to pay the tax does not constitute moral turpitude per se, but that respondent attorney’s conduct does reflect moral turpitude.”).
- In re Craig 12 Cal.2d 93, 97 (1938) [conspiring to obstruct justice].
- In re Kelley 52 Cal.3d 487, 494, supra.
- In re Mostman 47 Cal.3d 725, 736 (1989) [conviction for solicitation to commit assault].
- In re Kirschke 16 Cal.3d 902, 904 (1976) [attorney disbarred after being conviction of first degree murder] (“We have twice determined — in our interim suspension of petitioner and in our order to him to show cause why he should not be disciplined — that the murder he stands convicted of committing involved moral turpitude..As petitioner has been convicted of the gravest of crimes and no mitigating circumstances are apparent, we can only conclude that he is presently unqualified to practice law in this state.”).
- In re Lesansky 25 Cal.4th 11, 16 (2001) [attorney summarily disbarred even though offense did not involve a client or occur in the practice of law] (“In reaffirming that attorneys may be disbarred for criminal acts committed in a nonprofessional setting, we do not hold that such discipline may be imposed for any act evidencing a moral lapse or infirmity, however slight. Attorney discipline is imposed when necessary to protect the public, to promote confidence in the legal system, and to maintain high professional standards, and the term ‘moral turpitude’ is defined by reference to this purpose. As we have in the past, we acknowledge here that the term cannot be defined with precision. Nevertheless, we can provide this guidance: Criminal conduct not committed in the practice of law or against a client reveals moral turpitude if it shows a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties) or if it involves such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession.” Internal citations and quotations omitted) Note that this case also discusses legislative changes to the summary disbarment provision implemented by AB 2787.
- In re Duggan 17 Cal.3d 416, 422 (1976) [psychiatric problems did not prevent disbarment] (“Conviction of some crimes establishes moral turpitude on its face. These include crimes that necessarily involve an intent to defraud or intentional dishonesty for the purpose of personal gain. They may also include particular crimes that are extremely repugnant to accepted moral standards such as murder or serious sexual offenses. We do not hold that the offense of contributing to the delinquency of a minor as proscribed by Penal Code section 272 is one involving moral turpitude per se. Rather, we conclude that under the facts of this case, the offense of which petitioner was convicted on his plea of guilty involved as a matter of law a crime of moral turpitude. Without setting forth the unfortunate details, it is enough for us to say that the offense to which petitioner pleaded guilty evidences the commission of a reprehensible crime, offensive to every conception of morality.” Internal citations and quotations omitted).
- In re Mostman 47 Cal.3d 725, 737 supra [conviction involves moral turpitude but suspension adequate discipline under circumstances including longtime legal career and allegations of harassment and stalking] (“We decline to adopt an inflexible rule on the proper characterization of criminal solicitation. In one sense, the act of soliciting another person to commit an offense may demonstrate moral turpitude rendering an attorney unfit to practice law regardless of the nature of the underlying offense. But it is also possible to conceive of situations in which an attorney convicted of soliciting an offense that itself involved moral turpitude might not be culpable under our commonsense disciplinary standard.”).
- In re Alkow 64 Cal.2d 838, 840 (1966) [in wake of more than 20 traffic violations and while driving without a license and with knowledge of his defective vision, attorney hit and killed a pedestrian and was suspended from the practice of law] (“It is clear that the circumstances surrounding the manslaughter involved moral turpitude..Alkow’s conduct showed a complete disregard for the conditions of his probation, the law, and the safety of the public and involved moral turpitude under the foregoing definitions.”).
- In the Matter of Katz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 502, 513 [attorney suspended after perjury conviction] (“The hearing judge found that Katz’s conviction on one count of perjury involved moral turpitude, both inherently and in the surrounding facts and circumstances, and that compelling mitigating circumstances did not predominate”).
- In re Utz 48 Cal.3d 468 (1989) [attorney disbarred after federal mail fraud and using interstate transportation to defraud convictions in connection with land scheme] (“Petitioner contends that instructional error at his criminal trial permitted the jury to find him guilty of a crime without finding moral turpitude or the intent to defraud. He is wrong. The jury was required to find that the petitioner had the intent to defraud in order to convict. Fraud is a ‘principal element’ of moral turpitude.”).
- Chadwick v. State Bar of California 49 Cal.3d 103, 109 (1989) [suspension imposed instead of disbarment in case involving insider trading and lying to the SEC] (“Since petitioner was convicted of a crime requiring the element of fraudulent conduct, and such conviction is conclusive proof that petitioner committed the elements necessary to constitute the offense, we agree with the department’s finding that petitioner’s act involved moral turpitude.” Internal citations omitted)
- In re Lamb 49 Cal.3d 239, 246 (1989) [attorney disbarred after pleading no contest to false personation after taking the bar exam for her husband; the parties stipulated as to moral turpitude and the case involved significant personal and medical trauma and a dissent that discusses apparent disparity in consistency of discipline cases] (For the court: “Petitioner’s deceitful acts were of exceptional gravity. Her conduct threatened innumerable clients with significant injury through unknowing exposure to an unqualified practitioner. It undermined the integrity of the State Bar’s admission system, on which public confidence in the competence of attorneys is founded.” In dissent: “The failure of this court to accord petitioner in this case at least as favorable consideration [as in other cases including for soliciting someone to assault a former client (In re Mostman, supra) and conspiring to smuggle marijuana (In re Higbie, supra)] is to me inexplicable. Petitioner’s conduct here was highly situational and a complete departure from her normal conduct. It resulted from an unfortunate and unique coincidence of circumstances, as to which there is virtually no chance of recurrence. Her actions were devoid of any motivation of venality or baseness.” Id at 256).
- In re Basinger 45 Cal.3d 1348 (1988) [attorney disbarred after pleading guilty to single count of grand theft] (“In addition, petitioner’s criminal conviction of grand theft is conclusive evidence of his guilt, and that crime necessarily involves moral turpitude. It has long been the rule that misappropriation of client trust funds is a most serious offense by an attorney and generally warrants disbarment absent the existence of compelling mitigating circumstances.” Internal citations omitted).
- Rules Proc. of State Bar, tit. IV, std. 2.11 (“Disbarment or actual suspension is the presumed sanction for an act of moral turpitude, dishonesty, fraud, corruption, intentional or grossly negligent misrepresentation, or concealment of a material fact. The degree of sanction depends on the magnitude of the misconduct; the extent to which the misconduct harmed or misled the victim, which may include the adjudicator; the impact on the administration of justice, if any; and the extent to which the misconduct related to the member’s practice of law.”)
- Rules Proc. of State Bar, tit. IV provides: ““Mitigating circumstances” are factors surrounding a member’s misconduct that demonstrate that the primary purposes of discipline warrant a more lenient sanction than what is otherwise specified in a given Standard…A member must establish mitigating circumstances by clear and convincing evidence. Mitigating circumstances may include: (a) absence of any prior record of discipline over many years of practice coupled with present misconduct, which is not likely to recur; (b) good faith belief that is honestly held and objectively reasonable; (c) lack of harm to the client, the public, or the administration of justice; (d) extreme emotional difficulties or physical or mental disabilities suffered by the member at the time of the misconduct and established by expert testimony as directly responsible for the misconduct, provided that such difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and the member established by clear and convincing evidence that the difficulties or disabilities no longer pose a risk that the member will commit misconduct; (e) spontaneous candor and cooperation displayed to the victims of the misconduct or to the State Bar; (f) extraordinary good character attested to by a wide range of references in the legal and general communities, who are aware of the full extent of the misconduct; (g) prompt objective steps, demonstrating spontaneous remorse and recognition of the wrongdoing and timely atonement; (h) remoteness in time of the misconduct and subsequent rehabilitation; (i) excessive delay by the State Bar in conducti ng disciplinary proceedings causing prejudice to the member; or (j) restitution was made without the threat or force of administrative, disciplinary, civil or criminal proceedings.”
- Rules Proc. of State Bar, tit. IV provides: ““Aggravating circumstances” are factors surrounding a member’s misconduct that demonstrate that the primary purposes of discipline warrant a greater sanction than what is otherwise specified in a given Standard. The State Bar must establish aggravating circumstances by clear and convincing evidence. Aggravating circumstances may include: (a) a prior record of discipline; (b) multiple acts of wrongdoing; (c) a pattern of misconduct; (d) intentional misconduct, bad faith or dishonesty; (e) misrepresentation; (f) concealment; (g) overreaching; (h) uncharged violations of the Business and Professions Code or the Rules of Professional Conduct; (i) refusal or inability to account for entrusted funds or property; (j) significant harm to the client, the public, or the administration of justice; (k) indifference toward rectification or atonement for the consequences of the misconduct; (l) lack of candor and cooperation to the victims of the misconduct or to the State Bar during disciplinary investigations or proceedings; 150 (m) failure to make restitution; or (n) high level of vulnerability of the victim.”
- In re Kelley 52 Cal.3d 487, 496, supra [attorney disciplined for two drunk driving offenses, including one while on probation for the other] (“We have previously ordered discipline based on two convictions of drunk driving, even when no moral turpitude was found..We agree with petitioner that it would be unreasonable to hold attorneys to such a high standard of conduct that every violation of law, however minor, would constitute a ground for professional discipline. But that is not the case here. Petitioner’s behavior evidences both a lack of respect for the legal system and an alcohol abuse problem. Both problems, if not checked, may spillover 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.”) BUT SEE In the Matter of Respondent 1 (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 260, 272 [no discipline for attorney convicted of two out-of-state DUI offenses while employed in a profession other than law] (“The California State Bar itself does not generally consider a single misdemeanor conviction for drunk driving by an active member of the bar to warrant referral for consideration of professional discipline. It therefore cannot argue that conviction of an attorney for this crime inherently demeans the integrity of the bar. While respondent did commit the offense twice, there was no evidence and no finding as there was in In re Kelley that respondent demonstrated disrespect for the legal system. Indeed, the hearing judge made the opposite finding.. Here, the misconduct was not only unrelated to the practice of law, but occurred out of state during a time when the respondent had been inactive for several years.” Internal citation and quotations omitted).
- In re Otto 48 Cal.3d 970, 971 (1989) [convictions for assault and infliction of corporal punishment on cohabitant constitute other misconduct warranting discipline in the form of suspension but not moral turpitude] (“This court, after reviewing the entire record and considering all the facts and circumstances, has concluded that Otto’s conduct constituted misconduct warranting discipline and that he should be disciplined in accordance with the State Bar’s recommendation.”).
- In re Hickey 50 Cal.3d 571, 579 (1990) [PC 25400 (b) violation constitutes other conduct warranting discipline in form of suspension in light of past violent conduct to wife and others and alcohol abuse] (“Although the incidents in question did not arise out of petitioner’s legal activities and the violence was not directed at his clients or his clients’ legal adversaries, those facts do not preclude the State Bar from taking appropriate disciplinary action to prevent petitioner’s uncontrolled consumption of liquor from affecting his practice of law. When, as here, the State Bar finds that an attorney’s alcoholism has led him to engage in violent criminal conduct, the State Bar need not wait until the attorney injures a client or neglects his legal duties before it may impose discipline to ensure the protection of the public.”).
- In re Rohan 21 Cal.3d 195, 204 (1978) [attorney suspended and rationale questioned by concurring opinions] (“We conclude that even in the absence of a finding of moral turpitude or a breach of an attorney’s responsibilities in the performance of professional services, the willful failure to timely file income tax returns may warrant, in particular circumstances, disciplinary action.. It is manifest that particular violations of the law by an attorney, even certain violations for willful failures to file income tax returns, may not warrant the imposition of discipline for an oath violation. Discipline is warranted, however, in such instances when the violation demeans the integrity of the legal profession and constitutes a breach of the attorney’s responsibility to society. We are satisfied discipline is warranted in light of the particular facts and circumstances surrounding petitioner’s willful failure to file income tax returns.”) BUT SEE In re Fahey 8 Cal.3d 842 (1973) [no discipline warranted for same offense five years earlier, but discussion related only to possible moral turpitude and not to possible “other misconduct”].
- In re Morales 35 Cal.3d 1, 5 (1983) [attorney suspended (with no actual suspension) and placed on probation] (“As indicated above, in the present case the review department found that petitioner should be disciplined, not for acts of moral turpitude, but for other misconduct warranting discipline. We observe, however, that under all three opinions in Rohan, the wilful failure to file income tax returns was held sufficient to justify imposition of two years’ suspension, stayed, with sixty days’ actual suspension, whether that conclusion was based on a finding of moral turpitude or otherwise. We conclude that petitioner’s failure to meet similar tax obligations here fully warrants the considerably less onerous discipline recommended by the State Bar.”).
- Rules Proc. of State Bar, tit. IV, std. 2.16.
- See Moral Character Determination Application, California State Bar.
- California Business and Professions Code Section 6068(o) provides: “It is the duty of an attorney to do all of the following.. (o) To report to the agency charged with attorney discipline, in writing, within 30 days of the time the attorney has knowledge of any of the following: (1) The filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity. (2) The entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity. (3) The imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000). (4) The bringing of an indictment or information charging a felony against the attorney. (5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type. (6) The imposition of discipline against the attorney by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere. (7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney. (8) As used in this subdivision, “against the attorney” includes claims and proceedings against any firm of attorneys for the practice of law in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has to the attorney’s knowledge already been reported by the law firm or corporation. (9) The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation. (10) This subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.”
- California Business and Professions Code Section 6101 (b) and (c), supra.