A large part of the work of the California discipline system is dealing with attorneys who are convicted of crimes. This part hasn’t always gotten a lot of attention, something that may have changed with the highly publicized retroactive fingerprinting of attorneys by the State Bar of California. Perhaps that is because it doesn’t deal with the application of the Rules of Professional Conduct, which are the focus of many of the people in the ethics world. Committing crimes is so self-evidently wrong that it may seem uninteresting. Of course, it is extremely interesting to those directly involved. And should be to others because the criminal conviction cases can raise issues relevant to the wider society outside the confines of law practice.
A recent unpublished decision of the Review Department of the State Bar deals with one of the issues: domestic violence. In the Matter of Khaliq involves an attorney who was convicted of violating Penal Code section 273.5 after a plea. That section makes wilful infliction of corporeal injury on a spouse, co-cohabitant or other defined persons that results in a traumatic condition a “wobbler” crime, one that can be charged either as a felony or misdemeanor.
One of the most interesting things about Khaliq is that the hearing judge’s recommendation was disbarment, based on her findings that the surrounding circumstances involved moral turpitude. Discipline Standard 2.15(b) states that “[d]isbarment is the presumed sanction for final conviction of a felony in which the facts and circumstances surrounding the offense involve moral turpitude, unless the most compelling mitigating circumstance clearly predominate, in which case actual suspension of at least two years is appropriate.” Discipline Standard reThe Standards, despite their name, being merely guidelines, don’t control the result; the Supreme Court has said that appropriate discipline in a given case depends on “on a balanced consideration of the unique factors in each case.” In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr . 980, 2006, WL 2465633. That means that comparable discipline case law must be looked at as well.
The problem is that there is very little comparable discipline case law that comes anywhere close to imposing disbarment for an act of domestic violence.
The harshest reported discipline imposed has been In the Matter of Otto (1989) 48 Cal.3d 970 where State Bar recommendation of six months actual suspension was adopted by the Supreme Court in a one-page opinion. Otto had been found guilty of two felonies, violations of section 273.5 and Penal Code section 245, both reduced to misdemeanors. The State Bar found no moral turpitude, but we don’t know why, as the Otto decision contains no facts. Neither side appealed, and the Court was reviewing the case under its plenary power to review all discipline matters.
Another case of the same relative vintage, In Re Hickey (1990) 50 Cal.3d 571 involved a nolo contendere plea to a concealed weapon charge and an improper withdrawal in a client matter. Included in the surrounding facts and circumstances were, in the Supreme Court’s words, “evidence that the attorney had repeatedly engaged in acts of physical violence toward his wife and others and that his conduct arose from repeated abuse of alcohol, discipline was warranted….from which he had recovered, and was related to marital difficulties that had been resolved.” Although Hickey was charged with misdemeanor violations of Penal Code sections 245, subdivision (a)(1) (assault with a deadly weapon) and 273.5 (spouse abuse) “the criminal proceedings against petitioner were suspended pursuant to Penal Code section 1000.6, for the purpose of granting diversion, and petitioner was referred to the Anger Awareness Program.” Hickey, at 576. The recommended discipline, including 30 days of actual suspension, was adopted and imposed.
Looking Hickey with contemporary eyes, the level of discipline seems astonishingly low, especially given the evidence of chronic violence toward his wife, notwithstanding that it was connected with an alcohol abuse problem that was ostensibly mitigated. The Review Department in Khaliq noted:
We also acknowledge that prior discipline in domestic violence cases often has not reflected the changes in society and the current recognition of the seriousness of domestic violence. Many earlier cases resolved such matters with low levels of discipline, including minimal or no suspension. We agree with the hearing judge that it is important to reevaluate the appropriate discipline by considering current societal values and changing mores.
Khaliq, slip opinion at 17.
Yet, disbarment was a bridge too far for the Review Department majority. It noted that only two California discipline cases have imposed disbarment for acts of domestic violence, both involving homicide. It noted that Khaliq’s felony conviction was reduced to a misdemeanor at the time of sentencing; Standard 2.16(c) says that disbarment or actual suspension is the presumed sanction for final conviction of a misdemeanor involving moral turpitude. It agreed with the hearing judge that moral turpitude was involved in the surrounding circumstances, including a “prank” where respondent sent text messages to his former girlfriend purportedly from a potential employer, and a lie told about a domestic violence incident that occurred 12 years earlier in undergraduate school. As part of its balanced consideration of all relevant factors, it gave less weight to aggravating factors and more weight to mitigating factors, including character witness testimony from Khaliq’s family. The court looked at discipline decisions from other states, filling in the gaps in California case law. It ultimately recommended two years of actual suspension with probation and the requirement that the respondent prove his rehabilitation, fitness to practice and current learning and ability in the law in a petition under Standard 1.2.(c)(1) before resuming active status. Judge Purcell, dissenting, would have imposed three years of actual suspension. Not disbarment but not a cake walk, especially given the Office of Chief Trial Counsel’s zeal in opposing Standard 1.2(c)(i) petitions.
Khaliq is not citable as precedent, but in the small world of State Bar Court jurisprudence where everybody, including hearing judges, read Review Department decisions with great interest, it will have an impact. Lawyers who commit criminal acts of domestic violence will find tougher sledding in State Bar Court.