California Bar Journal
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Justices seem likely to uphold summary disbarment
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ments were shot down, one by one, while State Bar attorney Richard Zanassi answered “that’s exactly correct” to several softball questions directed to him.

“Do you see any benefit to lawyers in general or law students to have a bright line rule” prohibiting lawyers convicted of certain crimes from practicing, asked Justice Marvin Baxter, “as opposed to a rule that although one is convicted of theft or forgery,” disbarment could somehow be avoided?

Zanassi agreed that such a definitive rule would serve both as a deterrent and “as a clear statement of consequences” — that one would not be admitted to the bar or would be disbarred for committing certain crimes.

Section 6102(c) of the Business and Professions Code requires summary disbarment if an attorney is convicted of a felony where an element of the offense is the specific intent to deceive, defraud, steal or make or suborn a false statement, or if it involves moral turpitude.

The cases before the court arose from recommendations for the summary disbarment of Cristeta Paguir-igan, 41, who was convicted in 1997 of forging two declarations in a civil matter, and Stuart K. Lesansky, 48, who pleaded no contest in 1998 to one count of an attempted lewd act upon a child he met in an online chat room.

Pansky conceded that attorneys who have been criminally convicted should be subject to discipline, but asked the court to allow those law-yers to present evidence about the circumstances surrounding the conviction. Such evidence can help to determine whether a particular crime involved moral turpitude, a requirement for summary disbarment if the other elements are not present.

Arguing that Paguirigan was punished more harshly than other attorneys convicted of forgery who were not disbarred, Pansky urged the court to consider the issue of fundamental fairness. She said a lack of uniformity in State Bar discipline practices causes disparate results. “Summary disbarment is not appropriate in every case,” she said.

Pansky noted that there was no summary disbarment statute between 1955 and 1986, and when it was reinstated, the bar court for seven years allowed lawyers convicted of a felony to present evidence about the circumstances of their conviction. That changed when the court’s review department last year decided in Paguirigan’s case that the legislature did not allow any such consideration.

Justice Kathryn Mickle Werdegar questioned whether granting felonious attorneys an opportunity to be heard before summary disbarment would be contrary to the will of the legislature.

Pansky answered that Supreme Court rulings in recent cases have suggested that legislation concerning attorney discipline is not always binding on the court and can be seen instead as a guideline.

“This court will always retain its inherent authority over attorney discipline,” replied Justice Joyce Kennard, “but if we agree with a policy determination of the legislature, we are free to agree.”

When Pansky said the legislature’s intent when it reinstated summary disbarment was unclear, Kennard shot back, “Presumably its intent was to protect the public.”

Pansky did not fare much better with Lesansky’s case, in which she said the circumstances of the crime should have been considered, as well as the fact that he was convicted of an attempted, not an actual act. “The attempt may or may not involve moral turpitude, depending on the underlying conduct,” Pansky said.

But that drew more questions from Kennard and Werdegar about the very nature of moral turpitude. “The intent is the same,” Werdegar said. “You’re looking to mitigation and I’m looking to intent.”

“There’s no distinction between an attempt and the actual commission,” Kennard added. “The conduct indicates bad moral character.”

When Pansky continued to press the notion that convicted attorneys still should have the opportunity to present evidence to the bar court, Werdegar said the criminal court is the place for such a hearing. Lesansky “did what he did and was advised it might result in disbarment,” she said. “The State Bar Court is not the venue for resolving the sympathetic aspects” of his case.

Pansky also struck out when she reminded the court that it has a tradition of allowing errant lawyers to argue that their discipline should be something less than disbarment.

“That would effectively repeal the summary disbarment statute,” Kennard replied, because a lawyer facing disbarment “would always ask for another shot.”

Zanassi told the justices the issue in the Lesansky case was whether his conduct amounted to an act of moral turpitude, since it did not meet the other requirements for summary disbarment. “There has to be some relationship between a moral turpitude offense and the fitness to practice law,” Zanassi said. “Fitness to practice requires good moral character, and moral character is really the lifeblood of the profession.”

In Lesansky’s case, the intent was just as bad as the commission of the crime, he added.

In addition to the Paguirigan and Lesansky cases, summary disbarment recommendations for four other attorneys hinge on the Supreme Court’s decision. They also argue that discipline matters should be decided on a case-by-case basis, while the bar says their offenses meet the criteria set forth in the statute.

Michael Keith Brady [#113011], 48, of Sacramento pleaded no contest to receiving stolen property and auto theft and was sentenced by the trial court to civil commitment at the California Rehabilitation Center for substance abuse. He argues that his conviction was not final because he was sent to a rehab center, and says he conditioned his plea on the possibility that his offense would be reduced to a misdemeanor or the plea would be dismissed outright.

The bar says the record indicates the conviction was final and the period for filing an appeal expired.

Michael Francis Clarke [#93638], 50, of West Hollywood pleaded guilty in 1997 to one count of mail fraud and one count of failure to file a tax return, both felonies. He asked the court to examine the totality of the facts surrounding his conviction, saying he agreed to the plea bargain only because it “brought an acceptable measure of closure to a potentially devastating criminal case” and he did not realize the plea would lead to summary disbarment.

Duncan Moran [#157560], 35, of Santa Monica pleaded no contest in 1999 to one count of assault, one count of evading an officer, four counts of possession of a controlled substance (all felonies) and to one count of driving under the influence and a DUI with a prior (both misdemeanors). Moran says he negotiated a plea agreement which was intended to avoid inclusion of any crime involving moral turpitude and which relied on the State Bar’s characterization of one charge as a crime which “may or may not involve moral turpitude.”

Jerry Alan Green [#41793], 57, of Santa Rosa pleaded guilty in 1998 to one felony count of child molestation. With no record of discipline and no other criminal convictions, he argues the court should consider each disbarment recommendation on its individual merits.