BUSTED! STATE BAR ACTION FOLLOWING A MISDEMEANOR DUI CONVICTION
Ellen A. Pansky is a member and former chair of LACBA’s Professional Responsibility and Ethics Committee, is a State Bar certified Legal Malpractice Specialist, and has been practicing before the State Bar Court for over 40 years. The views expressed here are her own.
As every California lawyer should be aware by now, in May 2018 the California Supreme Court ordered that all active California lawyers be re-fingerprinted, and that the results of each lawyer’s record of criminal conviction(s) be transmitted to the California State Bar for review. By June, 2019, after the compliance date had passed, nearly 5,000 of the state’s approximate 190,000 active lawyers had not yet been re-fingerprinted. Obviously, by that time, the vast majority of California lawyers had been re-fingerprinted, and the results have begun to be processed by the State Bar’s Office of Enforcement. Lawyers who continue to fail to comply with the re-fingerprinting requirement have not only already been fined, but they will also be suspended on December 1, 2019.
By March, 2019, the State Bar indicated that it had received more than 6,000 criminal history reports, of which about 2,235 had not previously been reported to the Bar. Nearly all of the criminal reports involved misdemeanors; less than one percent were felonies. Nearly all of the convictions had occurred several years earlier, with more than half having occurred more than 8 years earlier.
It should be noted that not all misdemeanors are required to be self-reported to the State Bar by the convicted attorney. Under Business & Professions Code section 6068(o)(5), a lawyer must spontaneously self-report only a “misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was a 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.”
Recently, the State Bar’s Office of the Chief Trial Counsel (“OCTC”) has begun to transmit notices of conviction of some of the newly discovered convictions to the California State Bar Court’s Review Department, in accordance with the provisions of California State Bar Rules of Procedure, rule 5.34. Once the record of a final conviction has been transmitted, the Review Department issues an order to the State Bar Court Hearing Department for hearing and determination whether discipline should be imposed.
The issue of whether any conviction should subject a lawyer to professional discipline is not completely resolved. In the seminal case of In re Kelley (1990) 52 Cal.3d 487, 494, the California Supreme Court made clear that any misdemeanor DUI does not necessarily involve moral turpitude per se, and also left open the question whether professional discipline would be appropriate for a single DUI misdemeanor unrelated to the practice of law. In a 4-3 split, the Kelley majority found a nexus between the misdemeanor DUI conviction and the violation of professional standards because Kelley had multiple criminal violations and violated the terms of her prior DUI criminal probation when she subsequently drove while intoxicated. Kelley’s violation of her criminal probation provided the nexus to her professional duties, and she was found to have violated her duty to comply with the law. The imposition of professional discipline for a single misdemeanor unrelated to the practice of law was not contemplated by the four Justice majority in Kelley, and additionally, Justices Mosk, Broussard and Panelli explicitly so stated in their concurring and dissenting opinions.
The conclusive effect of an attorney’s criminal conviction establishes for State Bar purposes that the attorney committed the acts necessary to constitute the offense. The facts underlying the conviction can be litigated before the State Bar, but the attorney cannot avoid the conclusive effect of the conviction, even if it resulted from a plea of nolo contendre. Whether those acts amount to professional misconduct, in the context of a crime that does not involve moral turpitude or other conduct warranting discipline, is a conclusion that can only be reached by an examination of the facts and circumstances surrounding each individual conviction. In the Matter of Respondent O (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 581, 590; accord, in the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208.
Aberrational misdemeanor convictions have regularly been found not to constitute misconduct warranting discipline. See, e.g., In the Matter of Rose (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 192, in which the lawyer pled no contest to a misdemeanor based on carrying a loaded firearm in a vehicle in the city. The court found that there was no misconduct warranting discipline since there was no nexus between the conviction and the practice of law and also that the conviction was based on a “single episode of criminal conduct [that] was not so reprehensible that it demeaned the integrity of the legal profession or constituted a breach of [the lawyer’s] responsibility to society.” (Id. at p. 199.) Also see In the Matter of Babero (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 322, in which a single misdemeanor DUI conviction was found not to involve moral turpitude or other misconduct warranting discipline. In those misdemeanor conviction referral cases in which discipline has been imposed, the conduct has been egregious and aggravated. For example, in In the Matter of Stewart (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 52, 60, a conviction of battery on a police officer was found not to involve moral turpitude, but to constitute other misconduct warranting discipline based upon the fact that Stewart had also trespassed, intimidated his wife, used offensive racial epithets, and resisted arrest.
Notwithstanding the State Bar cases in which a single, isolated, unaggravated DUI or other misdemeanor has been found not to warrant the imposition of professional discipline, OCTC has now commenced a practice of referring some lawyers’ first misdemeanor DUI conviction to the State Bar Court for determination whether discipline should be imposed. It remains to be seen whether the State Bar Court, and ultimately, the California Supreme Court, will expand the holding in the Kelley case to include discipline for first time DUIs not involving other misconduct, such as child endangerment, fleeing the scene, resisting arrest, or other aggravated conduct.