In the Matter of Isola, Review Dept., State Bar Court case no. SBC-20-O-30310, filed 5/22/22, disciplinary recommendation pending before the California Supreme Court.
The Office of Chief Trial Counsel (OCTC) filed a notice of discipline charges pleading 26 counts of misconduct, including acts of moral turpitude, misrepresentation, and misappropriation of funds. It sought disbarment. After 11 days of trial, the hearing judge issued a decision dismissing some of the charges and recommending a two-year actual suspension. Both sides sought review. The Review Dept., a lengthy 46-page decision, finds only two counts of failing to communicate with the client and recommends a 30-day actual suspension.
Can we say that the system worked the way it was supposed to?
Part of the answer depends on the peculiar doctrine of moral turpitude as applied in disciplinary proceedings. The concept was abandoned by the American Bar Association when it wrote the Model Rules of Professional Conduct in the early 1980s but it lives on in California disciplinary jurisprudence through our Business and Professions Code section 6106:
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.
Bus. & Prof. Code section 6106
Moral turpitude also figures prominently in the statutes governing the criminal conviction referral process. Business and Professions Code section 6101 provides that conviction of a felony or misdemeanor crime involving moral turpitude is a cause for suspension of disbarment. It also requires a criminal court to transmit the record of a criminal conviction of a California lawyer to the State Bar within 48 hours. The State Bar must in turn file the record of any conviction which involves or may involve moral turpitude in the State Bar Court (standing in for the California Supreme Court) within 30 days of receipt. Conviction of any felony, or misdemeanor involving moral turpitude, triggers interim suspension (Bus. & Prof. Code section 6102(a)) and conviction of felony involving moral turpitude is punishable with summary disbarment under section 6102(c).
What is moral turpitude? The California Supreme Court has struggled to define it.
“Moral turpitude is a concept that “defies exact description” [citation] cannot be defined with precision [citation] We have noted, however, that in attorney discipline cases, moral turpitude should be defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards. [citation].” In re Grant (2014), 58 Cal. 4th 469, 475–476. Moral turpitude is similar but broader than ABA Model Rule 8.4(b) which states that “It is professional misconduct for a lawyer to:… (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Promoting confidence in the legal profession means that moral turpitude can reach many kinds of activity not directly related to the practice of law
Grant had been convicted of possession of child pornography (Penal Code section 311.11(a).) The State Bar Court hearing judge determined that the conviction involved moral turpitude and recommended disbarment. “The judge reasoned that the conviction “involve[d] 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 [Grant’s] conduct would be likely to undermine public confidence in and respect for the legal profession,” and is, therefore, a conviction of a crime involving moral turpitude (Grant, at 474.) The Review Department, which had initially determined the crime as one that may or may not involve moral turpitude, thus entitling Grant to an evidentiary hearing, reversed, finding that the admissible evidence did not support a finding of moral turpitude. It recommended three years’ probation with an actual suspension of two years. On petition for review by the Office of Chief Trial Counsel (OCTC, the State Bar’s discipline prosecution office) the Supreme Court held that violation of section 311.11(a) was a crime of moral turpitude per se and thus mandated summary disbarment.
The vague definition of moral turpitude is problematic because it contains an element of subjectivity sometimes approaching Potter Stewart’s famous statement on obscenity (“I can’t define it but I know it when I see it.”) As a result, OCTC’s practice of liberally charging moral turpitude has been the subject of much contention with the professional discipline defense bar. At a recent meeting of a working group of State Bar’s Ad Hoc Commission on the Discipline System, a body charged with studying the fairness of the discipline system, defense counsel representatives proposed adding a probable cause hearing to State Bar discipline procedure, with the goal of culling out unsupported moral turpitude charges at an early stage of the proceeding and promoting settlement. Respondents are reluctant to stipulate to charges of moral turpitude because of the implication of immorality, even though the Supreme Court has stated that gross negligence alone can support a finding of moral turpitude (see In the Matter of Yee (Review Dept. 2014) 5 State Bar Ct. Rptr. ____ , Remke, J. dissenting.) Yee was found culpable of an act of moral turpitude because she mistakenly certified her MCLE compliance from memory without checking her records. The Review Department upheld the decision, provoking a rare dissent from the Presiding Judge of the State Bar Court.
Case law has defined moral turpitude in dramatic terms. “Moral turpitude” is defined as the “general readiness to do evil.” People v. Castro (1985) 38 Cal.3d 301, 313–316. Moral turpitude is defined as ‘everything done contrary to justice, honesty, modesty, or good morals’. In re McAllister, (1939)14 Cal. 2d 602, 603. Moral turpitude has been defined as: ‘An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ In re Boyd (1957) 48 Cal. 2d 69, 70. That the concept is so elastic that is encompasses Ms. Yee forgetting to check her MCLE records as well the most heinous crimes such as murder and child pornography is a measure of how flawed it is.
16 of the 26 discipline charges in Isola alleged acts of moral turpitude in violation of section 6106. None of those charges were upheld, although it is still possible that OCTC will petition the California Supreme Court. Mr. Isola went through 11 days of trial and doubtless had to pay his experienced State Bar defense counsel a lot of money. Because he was found culpable on two charges with a recommendation of public discipline, he will also have to pay $22,136 in costs to the State Bar, according to the latest cost schedule.
Discipline is an adversarial process. Inherent in that is the possibility that parties, and judges, will get things wrong. That is part of why we have review as a matter of right in the State Bar Court and discretionary review in the California Supreme Court. Putting the best face on things, OCTC might say that the system worked exactly as it was supposed to, that its prosecutor was entitled to make her case within the office’s prosecutorial discretion and she should not be second guessed. Given the consequences to Mr. Isola it is hard to credit that view. Vague concepts like moral turpitude invite prosecutorial abuse and this case is not the only example.
This is a good write up. One of the issues here, which REALLY needs to be fixed, and the legislature needs to be educated, advised, informed and advocated to — the OCTC prosecutors are off the hook. Their prosecutorial discretion is scattershot and very ill-advised. First, California is the ONLY state that has this adversarial prosecution approach, and a court, vs. a system where they convene a panel of peers and overseers. Second, in CA, there are incidences when prosecutors overcharge, overstep their bounds, even suborn or make offer of proof on misrepresented or fabricated testimony. Third, they bully some good attorneys into AGREEING to disbarment. One guy was 5 years sober and had a small violation of his conditions of probation. Most of the disbarment comes from relatively small violations of conditions or probation or terms, hence a “court order”. It’s outrageous how many good attorneys have been disbarred, and we NEED mom and pop and solo and small firm attorneys. Plus, that’s. WHO THEY GO AFTER. This is a disaster for California legal practice, consumers, and the public, and hence justice. It’s all wrong and all broken and no one knows, or maybe cares. It MUST be looked at. We should jettison the prosecutorial/adversarial structure.
The problem is that the system is adversarial. It is bad for the consumers of justice in California – i.e. the people who need good lawyers. Mom and pop lawyers, solo practitioners and small firms. Crim defense and civil rights lawyers. This is EXACTLY who the bar goes after, who they put the most focus on, relentlessly seek to disbar for offenses that are not disbursable offenses.
CA is the ONLY state with a ‘bar court’ and an adversarial prosecutor. It is unnecessarily cumbersome, lengthy, overly formal, leads to inherent issues that the regular courts also face, with overzealous prosecutors and prosecutorial misconduct. The OCTC (prosecutor) is off the hook. Their supervisors do nothing about their lack of judgment, discretion and even misconduct: misrepresenting evidence, opposing motions to vacate an interim suspension when the evidence does not support the IS being in place during a proceeding, false offers of proof in settlement conferences – so much.
One atty with 5 years sobriety had a minor violation of his sober living environment Ts and Cs (not relating to substance) and was bullied into agreeing to disbarment. They try to force disbarment through settlement offers, attorneys lose YEARS of practice, and spend 100s of 1000s of dollars to hire counsel, sit on interim suspension, loss of income, totalling a staggering amount of income loss, while the OCTC has qualified immunity that ends up being nearly absolute.
The CA auditor actually seems to think “more disbarments” means the OCTC is doing a good and well and right job, but it actually incents exactly the misconduct above and a desire to protect this institution that is a wrong approach from day 1. No other state uses this system, they use panels and the process is way swifter, just as good (better!) in meting out timely and appropriate discipline, and far less cost to both taxpayers and attorneys.
The Legislature MUST do something about this.