California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - NOVEMBER 1999
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DISCIPLINE

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Two Supreme Court cases challenge summary disbarment
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Arguments that attorneys should not be summarily disbarred without consideration of mitigation will be heard by the California Supreme Court, which has accepted two cases challenging automatic disbarment. The statute, Business & Professions Code 6102(c), requires automatic disbarment of any attorney convicted of a felony which involves moral turpitude or where an element of the offense is the specific intent to deceive, defraud, steal or make or suborn a false statement.

The State Bar Court's review department ordered that Pasadena attorney STUART K. LESANSKY [#120826], 47, be summarily disbarred May 11, 1999, following his conviction of an attempted lewd act upon a child 14 years old. Sexual crimes involving children constitute moral turpitude per se.

Lesansky has not been allowed to practice since April 30, 1998, when he was placed on interim suspension.

He challenged the summary disbarment recommendation, questioning whether disbarment should be automatic without consideration of the facts and circumstances surrounding a conviction. He also argues that the summary disbarment statute, enacted by the legislature, is an unconstitutional infringement on the Supreme Court's authority.

Lesansky, a member of the Century City Bar Association's board of governors from 1990 to 1997, met a woman in an online chat room who used the screen name "Lisabruce" and described herself as a 14-year-old who looked like she was 17. In fact, Lisabruce was 20-year-old Jennifer Hersey, who was working with Fox News on a story about sex on the internet.

After several conversations, some with sexual overtones, Lesansky made arrangements to have lunch with Hersey in San Diego. When they met, it became apparent to Lesansky that Hersey was an adult, according to his petition to the Supreme Court. They continued their online communication and met a second time in Los Angeles.

There was no physical contact or sexual activity at either meeting, but after the Los Angeles meeting, Lesansky was arrested. He pleaded no contest Jan. 28, 1998, to one count of an attempted lewd act upon a child, and was sentenced to one year of probation and ordered to pay $200 to a restitution fund and attend psychiatric counseling.

According to his petition, the bar court did not consider any of the circumstances surrounding Lesansky's conviction or any mitigation. Had he been permitted to present mitigating evidence, it would have included conducting MCLE programs in his capacity as chair of the Century City bar's litigation section, teaching at the UCLA extension program, helping the homeless, and serving as legal counsel to the Los Angeles Cultural Theaters project. Lesansky and his wife are congregants at the Woodland Hills Christian Church, where he has taught Bible studies and sings in the choir.

Lesansky was examined by a psychologist, who determined he does not have an abnormal sexual interest in young girls.

He also offered a long list of individuals who would testify to his good moral character, including federal and state judges, officials of the Century City Bar Association and a variety of former clients.

R. Gerald Markle, Lesansky's attorney, argued that the bar court should consider all the facts and circumstances surrounding a conviction before it imposes discipline. Further, he said the summary disbarment statute does not recognize any value in rehabilitation, and to the extent it mandates disbarment for conduct the court has previously found warrants a lesser sanction, it violates due process.

The Supreme Court, he wrote, "has traditionally applied a balancing test on a case-by-case basis, and has weighed the nature of the illegal conduct against both mitigating and aggravating factors, to determine appropriate discipline.

"The State Bar Court's conclusion that disbarment must invariably follow every conviction of any felony involving moral turpitude represents a serious departure from longstanding precedent governing discipline for attorney misconduct."

Bar attorney Richard Zanassi said summary disbarment is fully warranted in Lesansky's case, adding that the Supreme Court "has not hesitated to impose summary disbarment where the criteria under the statute have been met."

Zanassi also dismissed Markle's argument that the statute violates the separation of powers. "This court," he wrote, "has long respected the exercise by the legislature, under its police power, of a reasonable degree of regulation over the practice of law. . . . Given that the court, not the legislature, ultimately decides the appropriate degree of discipline, petitioner has failed to demonstrate an unconstitutional encroachment on this court's authority by the legislature."

A second appeal, by Los Angeles attorney Cristeta S. Paguirigan, [#115992], 39, also is pending before the court. The bar court recommended Paguirigan's summary disbarment in 1998 after she was convicted of forging two declarations in a civil matter, a crime of moral turpitude.

She argued that automatic disbarment was inappropriate because it is not always imposed on attorneys convicted of similar offenses.

The court agreed to hear Paguirigan's appeal in June, but has not scheduled oral arguments.