The Meryl Terpitude Mysteries

IMPORTANT NOTICE: This article is provided solely for research and archival purposes. MCLE self-study credit is no longer available. Even if you follow the instructions and submit payment you will not be granted MCLE self-study credit. Please note that low-cost MCLE is provided by the California Lawyers Association, pursuant to Business and Professions Code section 6056.

California Joan suffers a nightmare when she realizes her law partner has a lengthy history of malfeasance

By Ellen R. Peck
© 2005. All rights reserved.

Peck

It was a dark and stormy day. Upon California Joan’s arrival at her office following a court appearance, she was met by a breathless Polly Perfect, her secretary, who followed Cali quickly into her office. “You won’t believe who is waiting to see you in the reception area. He says he is an FBI agent, but he looks just like that actor — what’s his name — on that ‘X Files’ television series,” Polly said in a hissing whisper.

Cali barely had time to put her briefcase down and collect her thoughts when a tall man in a “MIB” conservative suit strode into her office. Cali stared at him, her mouth slightly agape.

“My name is Agent McDurr, FBI Special Unit. Most people think I look like that actor on that ‘X Files’ television series.” He winked and added, “No one ever supposes that they got David Duchovney because he looks just like me.”

“Do you investigate whether there are aliens among us, then, Agent McDurr?” Cali asked, regaining her composure.

“No, but I am the chief investigating agent in a unit that investigates unusual human phenomenon. I’m investigating your partner, Meryl Terpitude,” Agent McDurr revealed.

“My partner, Meryl Terpitude? Is he the target of some criminal investigation?” Cali asked incredulously.

“Actually, it is much more bizarre than mere criminal activity,” Agent McDurr answered. “Our investigation suggests that Mr. Terpitude may have found the fountain of youth. We can find no record of his birth and he seems to have been in California since at least 1849. Moreover, he seems to have been involved in all of the great scandals, criminal activity and serious misconduct of lawyers and other professionals, since Americans came to California.”

“Are you saying he is like some evil being?” Cali could not believe her ears and was incredulous. 

“No. We do not know what he is. Hence the investigation. I have heard that you are close with him and wanted to ask you for any personal information which might disprove my theory,” Agent McDurr said gently.

“Let me tell you some of what we know,” he continued. “Do you know who Stephen Field was?”

“What California lawyer does not? Stephen Johnson Field was born in Connecticut in 1816; he read law in the office of his older brother, David Dudley Field in 1837; and then practiced law with his brother in New York until 1848. David Dudley Field was the author of the Code of Civil Procedure adopted in New York. 

“Field moved to California in 1849 during the Gold Rush. After statehood, Field was elected to the new California legislature, and urged the adoption of the Field Code authored by his brother. Many of the duties of attorneys in the State Bar Act were part of the original Field Code. From 1857-63, he served as a justice on the California Supreme Court. Then from 1863-97 he served as an associate justice on the United States Supreme Court,” Cali recounted.

Agent McDurr added, “Yes, but did you know that the manifest on the ship that took Field to Panama had a passenger named Meryl Terpitude? That as Field hacked his way through the jungles of Panama and caught another ship bound for San Francisco on the Pacific, one of his party was one Meryl Terpitude?

“The Field Code introduced the concept of ‘moral turpitude’ as a measure of ‘unfitness to practice’ for a lawyer into California law. Yes, yes, I see that you are about to object upon the coincidence of like sounding, but differently spelled names,” Agent McDurr stated.

Cali was about to protest further when Agent McDurr handed her some pictures. “The first picture is of a crowd of people outside the California legislature in 1872, taken soon after the adoption of a new Code of Civil Procedure §287(5) which prohibited lawyers from engaging in acts of moral turpitude. The second picture is a close-up of a man in that crowd.”

“That’s Meryl!” gasped Cali.

“The third picture is from November 1927, at the celebration dinner of members of the bench and bar after the establishment of The State Bar of California and the passage of the State Bar Act (Bus. & Prof. Code §§6000 et seq.). The fourth picture is a blowup of a man seated at one of the dinner tables.” Agent McDurr kept handing her pictures.

“That’s Meryl, too! Business and Professions Code §6106, taken from the Field Code §287(5), was part of the original State Bar Act adopted in 1927. Section 6106 states that the commission of any act involving moral turpitude, whether the act is committed in the course of a relationship as an attorney or otherwise and whether the act is a crime or not, constitutes cause for disbarment or suspension,” Cali exclaimed.

“Yes, it is Meryl Terpitude. He has not aged; he has not changed. He has been in California continuously since 1849. He seemed to have appeared intermittently in early California history, but through the years, has been increasingly involved in lawyer misconduct cases. Do you have any personal information about him?” Agent McDurr asked gently.

After a stunned silence, reflecting about the years that she had known Meryl, Cali slowly shook her head. “I really do not know anything about him!” she said slowly.

Agent McDurr handed his card to her and stood up, sighing. “No one seems to know him at all, even those that he infects.” Agent McDurr abruptly left her office.

After verifying that Meryl Terpitude was out of the office on a business trip for the rest of the day, Cali tried to take her mind off the incredible information Agent McDurr had given her. At 7 that evening, unable to work any more, Cali left her office.

Out of the dark shadows in the parking garage came a deep voice, “Cali, Cali . . .” Cali’s heart leapt to her throat; the voice was none other than Meryl Terpitude.

As he stepped out of the shadows into the half-light, Cali instinctively put her free hand to her throat. 

“Cali, Cali, Cali! Didn’t Agent McDurr tell you that I am not a vampire?” Meryl said softly.

“You know Agent McDurr?” Cali was incredulous. “How can what he said about you be true? No one can live to be more than 160 years old and be human.”

Meryl stood looking at her, his eyes glowing in the half light, neither agreeing with her or denying anything. “What he says is true Cali . . . I have been in California . . . involving myself in the conduct of lawyers and other professionals since 1849.”

“What!? What are you?” Cali asked, not believing her eyes and ears, but also a slave to her curiosity.

“Some people think that I am like a virus, infecting lawyers and other professionals, causing them to do terrible things. But I am more like an anthropomorphic manifestation of an historic, simple concept — a means of identifying when a lawyer or other professional was unfit to practice law, without having to have list after list of prohibited acts,” replied Meryl.

“So you are not real? You are just a figment of my imagination?” Cali asked.

“Never mind what I think about me; look at what judges have said about my existence . . .” Meryl said jovially.

“In early pronouncements, the California Supreme Court has found me involved in everything done contrary to justice, honesty, modesty or good morals. (See e.g. Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 452, fn. 4.) I have been found involved in any crime or misconduct without excuse or any dishonest or immoral act. The meaning and test is the same whether the dishonest or immoral act is a felony, misdemeanor or no crime at all. (Chadwick v. State Bar (1989) 49 Cal.3d 103, 110.)

“I am involved in any lawyer act of dishonesty, including concealment as well as affirmative misrepresentations. (Grove v. State Bar (1965) 63 Cal.2d 312, 315.) Indeed, the State Bar Court Review Department has said that when I am involved, no distinction can be drawn between a concealment, half-truth and false statement of fact. (In the Matter of Chesnut (Review Dept.2000) 4 Cal. State Bar Ct. Rptr. 166, 174.) No actual intent to deceive is necessary; a finding of gross negligence in creating a false impression is sufficient for a finding of moral turpitude. (In the Matter of Moriarty (Review Dept.1999) 4 Cal. State Bar Ct. Rptr. 9, 15; In the Matter of Wyrick (Review Dept.1992) 2 Cal. State Bar Ct. Rptr. 83, 90-91.) Also, I can be involved whether or not a lawyer actually succeeds in perpetrating a fraud on a court or another party. (In the Matter of Maloney & Virsik (Rev. Dept. 2005) 4 Cal.State Bar Ct. Rptr. 774, 786.)

“I am also involved in any act of baseness, vileness or depravity in the private and social duties which a man or woman owes to fellow human beings or to society in general, contrary to the accepted and customary rule of right and duty between human beings (In re Calloway (1977) 141 Cal.Rptr. 805, 20 Cal.3d 165, 570 P.2d 1223; In re Craig (1938) 12 Cal.2d 93, 82 P.2d 442).

“My involvement is not limited to intentionally bad behavior. I am also involved in gross negligence (Gassman v. State Bar (1976) 132 Cal.Rptr. 675, 18 Cal.3d 125, 553 P.2d 1147; Jackson v. State Bar (1979) 153 Cal.Rptr. 24, 23 Cal.3d 509, 591 P.2d 47; Matter of Myrdall (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 363); in gross neglect or recklessness (e.g., Baker v. State Bar (1989) 49 Cal.3d 804, 815-816; Lipson v. State Bar (1991) 53 Cal.3d 1010, 1020-1021); in habitual disregard of clients’ interests (Grove v. State Bar (1967) 66 Cal.2d 680, 683, 684; see also Martin v. State Bar (1978) 20 Cal.3d 717, 722;  Selznick v. State Bar (1976) 16 Cal.3d 704, 709); and whenever there is a pattern of misconduct (Matter of Varakin (Review Dept. 1994) 3 Cal State Bar Rptr 179, 186 12).

“As you can see, I have many faces. The legislature attempted to prohibit me. The California Supreme Court and the State Bar Court Review Department know me when they see me, involved in ever wider types of lawyer conduct, warranting suspension or disbarment. Very good press indeed! My only complaint is that they always spell my name wrong!” Meryl crowed.

“Yes,” countered Cali, “but you have lost recognition in other states! The ABA Model Code of Professional Responsibility DR 1-102 (A)(3) limited any mention of ‘moral turpitude’ to prohibiting illegal conduct involving moral turpitude. In 1982, upon adoption of the ABA Model Rules of Professional Conduct, ‘moral turpitude’ was completely deleted, in favor of other descriptions of lawyer misconduct demonstrating ‘unfitness’ to practice law. (See ABA MRPC 8.4.)”

Meryl seemed sad. “You are correct. Other American jurisdictions no longer acknowledge me in their standards. Sadly, all states have abandoned the former Model Code in favor of the ABA MRPC. In place of the single concept of moral turpitude are now many standards attempting to define different aspects of that concept. By eliminating the single concept in favor of multiple definitions, they have missed some misconduct. Moreover, they have lost flexibility to continue refining the attributes of what conduct renders a lawyer unfit to practice.”

“Well, you seem to have gained increased recognition among State Bar prosecutors in the Office of Chief Trial Counsel and in the State Bar Court Review Department,” Cali added. 

Meryl Terpitude drew himself up to his formidable 6-foot 4-inch height and said menacingly, “The fact that I am not acknowledged does not mean that I am not involved everywhere!”

Meryl suddenly retreated to the shadows. Cali wanted to scream, “I will fight you Meryl. I will help all California lawyers to be armed and vigilant, to keep moral turpitude from infecting our conduct!” But she could not find her voice in the swirling fog.

Then her alarm went off. Cali woke up, at home, in bed. “Thank heavens it was all a bad dream,” Cali thought as she rushed to get ready for her early morning court appearance.

After the court appearance and the return to her office, her secretary, Polly, followed Cali into her office and said breathlessly, “You won’t believe who is waiting to see you . . .”

[Next month California Joan will explore the further adventures of Meryl Terpitude.]

• Ellen R. Peck, a former State Bar Court judge, is a sole practitioner from Escondido and a co-author of The Rutter Group California Practice Guide: Professional Responsibility.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.
• The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

SELF-ASSESSMENT TEST

• Indicate whether the following statements are true or false after reading the MCLE article on moral turpitude. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415/538-2504.

1. Stephen Johnson Field currently serves as an associate justice on the California Supreme Court.
2. The prohibition against acts of moral turpitude in Business and Professions Code §6106 derived from the Field Code of Civil Procedure adopted in New York in the 1840s.
3. In California, lawyers have been prohibited from engaging in acts and crimes involving moral turpitude since the late 1800s.
4. When the California legislature created The State Bar of California through the State Bar Act in 1927, the prohibition of acts of moral turpitude was not among the statutory regulations of attorneys. 
5. Business and Professions Code §6106 prohibits only crimes of moral turpitude.
6. A California lawyer may be disciplined for an act involving moral turpitude which is committed in his or her private life, completely unrelated to the practice of law.
7. Moral turpitude is involved in everything done contrary to justice, honesty, modesty or good morals.
8. Moral turpitude can be involved in any crime or misconduct without excuse or any dishonest or immoral act. The meaning and test is the same whether the dishonest or immoral act is a felony, misdemeanor or no crime at all.
9. Concealment, not involving an affirmative misrepresentation, does not involve moral turpitude. 
10. In all cases of dishonesty involving moral turpitude, there must be a showing of a specific intent to deceive.
11. If a lawyer’s efforts to defraud someone are unsuccessful, no moral turpitude is involved.
12. Moral turpitude is any act of baseness, vileness or depravity in the private and social duties which a man or woman owes to fellow human beings or to society in general, contrary to the accepted and customary rule of right and duty between human beings.
13. Moral turpitude cannot be found for mere gross negligence. 
14. Gross neglect or recklessness in handling clients’ matters constitutes moral turpitude.
15. Habitual disregard of clients’ interests involves moral turpitude. 
16. A pattern of misconduct cannot support a finding of moral turpitude.
17. The present ABA Model Rules of Professional Conduct have prohibited acts of moral turpitude since they were adopted in 1982.
18. Former ABA Model Code of Professional Responsibility DR 1-102 (A)(3) provided that lawyers shall not engage in illegal conduct involving moral turpitude.
19. The ABA Model Code of Professional Responsibility is no longer used by any United States jurisdiction.
20. The sanction for any act of moral turpitude can be disbarment or suspension.