Disbarment in the United States

Practical Information: Definition

Expulsion of a lawyer from the legal profession or from the bar of a particular court. Although the disbarment of an attorney is not a conviction for crime, disbarment may result from such a conviction.

Lawyers disbarred for children pornography

Should a lawyer convicted of possessing child pornography be disbarred without the benefit of a State Bar hearing?

This is the very question the California Supreme Court had the chance to address in a case that pits State Bar prosecutors against a suspended JAG attorney named Gary Douglass Grant who, over a six-year period downloaded tens of thousands of pornographic images onto his home computers – a tiny fraction of which depicted minors. Grant pleaded guilty to one criminal count of possessing child pornography – a felony. Soon thereafter State Bar prosecutors recommended that he be summarily disbarred, arguing that such a conviction constitutes “moral turpitude per se.” But in a surprising twist, the State Bar Court’s Review Department ordered a trial, and on appeal suspended him for just two years. The bar’s Office of Chief Trial Counsel has requested Supreme Court review.

Practicing law may be see as a privilege. For some, there is no problem with a State Bar ending a lawyer’s career. However, they struggle with the due process part of this.

Attorney disbarred over child porn

By Pamela A. MacLean She was a California Lawyer contributing writer.

In recent years, the preponderance of lawyers disciplined for possession of child pornography have been disbarred.

Since 2007, 13 of 18 attorneys – including one judge – facing disciplinary proceedings for possession were disbarred (including 5 who had offered to resign with charges pending); 2 others were allowed to resign, 1 was suspended, and 2 cases remain under review.

However, summary disbarment has rarely been invoked in such cases. None of the 33 lawyers automatically disbarred from August 2011 to July 2013 had been convicted of possessing child pornography, and only 3 cases stemmed from child-related crimes: lewd acts with a child, meeting a child for lewd purposes, and distributing child pornography. (The most common grounds for per se disbarment have been forgery, grand theft, and a variety of frauds.)

Decades ago, state bars nationwide commonly used summary disbarment to discipline attorneys who engaged in acts defined as moral turpitude. But in 1983 the American Bar Association revised its Model Code of Professional Responsibility, adopting Model Rules of Professional Conduct that no longer used the term “moral turpitude.”
State bars slowly adopted the ABA Model Rules, abandoning automatic disbarment as well. The revised Model Rules state that it is misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness,” or to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” (ABA Model Rules 8.4(b) and 8.4(c).)

By 2002 only New York, Mississippi, and the District of Columbia retained the practice of automatic disbarment. (New Jersey has had a judge-made disciplinary rule since 1979 that mandates disbarment for lawyers who knowingly misappropriate client funds.) In New York, the appellate division recently affirmed automatic disbarment in a case involving a lawyer who pleaded guilty to drunken driving. (In the Matter of Brunet, 965 N.Y.S. 2d 734 (N.Y. Sup. Ct., App. Div. 2013).)

California has gone back and forth on the issue. In 1939 the state Legislature provided for automatic disbarment, but in 1955 it adopted a standard “according to the gravity of the crime and the circumstances of the case.” (Stats. 1955, ch. 1190, § 2, pp. 2201-2202.) Only in 1986 did lawmakers reinstate summary disbarment. (Stats. 1985, ch. 453, § 15, p. 1754.)

Possession of child pornography wasn’t even a crime in California until 1989; violations involved moral turpitude, but they were punishable only as misdemeanors. (Stats. 1986, ch. 1180, § 2, p. 130880.)

In 1996 the Legislature again amended the Business and Professions Code, deleting the requirement that offenses subject to discipline be committed in the course of the practice of law, and adding moral turpitude as a ground for summary disbarment. “[T]he Supreme Court shall summarily disbar the attorney if the offense is a felony under the laws of California, the United States, or any state or territory thereof, and an element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude.” (Cal. Bus & Prof. Code § 6102(c).)

Since that change, the State Bar Court has adhered to the new standard. “Summary disbarment pursuant to … section 6102(c) is a recognition by the Legislature that the very status of an attorney’s final conviction of a felony involving moral turpitude or comparable criminal law elements warrants disbarment without any evidentiary hearing or consideration of surrounding circumstances.” (Matter of Paguirigan, 1998 WL 898822 at *4 (State Bar Ct.).)
On appeal of Paguirigan, the state Supreme Court stated, “The only notice which the accused attorney is to have under [section 6102(c)] is that which he receives on the trial of the criminal charge of which he has been convicted.” Such notice, the court ruled, “answers the constitutional requirement that he shall have due process of law before he can be deprived of his right to practice.” (In re Paguirigan, 25 Cal. 4th 1, 9 (2001).)

Jessica’s Law – a comprehensive sex-offender statute passed by initiative in 2006 as Proposition 83 – then tested the boundaries of that due process standard. Among the measure’s provisions, it amended section 311.11(a) of the Penal Code to redefine possession of child pornography from a public offense to a felony. Though prosecutors still had the option to charge violations as a misdemeanor, lawyers convicted of felony possession could now be disbarred without a hearing.

Mark L. Tuft, coauthor of Professional Responsibility (Rutter Group, 2013) and a legal malpractice specialist at the San Francisco office of Cooper, White & Cooper, adds, “In my opinion, moral turpitude defies a clear definition. In the Grant case – when you get to the issue of moral turpitude that violates morals – you get into a subjective area.”
Tuft, however, believes that neither the state Legislature nor the State Bar is ready to alter statutory language or the Rules of Professional Conduct. “I think that debate is not going to happen,” he says. The bar is “wedded to the moral turpitude concept.” (…)

Others would like to see more nuances built into the State Bar’s disciplinary proceedings. “The reason the per se issue gets problematic is that you might have someone [disciplined for possessing] one image of child pornography on a computer, and a person with 100,000 images on a computer,” says Jerome Fishkin, a respondents lawyer at Fishkin & Slatter in Walnut Creek. “The explanation for having one image may be better than for having 100,000 images, but if the charge is within a per se classification, both lawyers are disbarred without a hearing.”
Fishkin adds, “The per se thing is simply a bureaucratic way to dispose of a case without paying attention to the underlying facts.” He argues that the state Supreme Court should reject the idea of moral turpitude per se and require examination of each claim, on a case-by-case basis. (…)

Respondents lawyers also worry that a disciplinary system that mandates summary disbarment for felony convictions may encourage district attorneys to overcharge lawyers accused of criminal conduct. “Because of the emotionally charged nature of the crime, possession of child pornography leads to a certain irrationality in charging,” says David Cameron Carr, a San Diego sole practitioner specializing in legal ethics. The purpose of State Bar discipline, he says, is to protect the public – not to punish bad people.

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