Lead Opinion
Opinion
We are asked to decide whether a criminal defendant’s constitutional right to representation by counsel is denied as a matter of law if, prior to trial and without defendant’s knowledge, his attorney has been suspended from the practice of law and has submitted his resignation to the State Bar while disciplinary charges are pending.
We conclude that representation by an attorney who has submitted a resignation with disciplinary proceedings pending, and has as a result been
I
In July 1989, petitioner was convicted of selling cocaine in violation of Health and Safety Code section 11352. He had retained Raymond Hane to defend him in March 1989. At that time, unknown to petitioner, Hane had been suspended from the practice of law following a conviction for violation of Penal Code section 288, subdivision (a). On May 10, 1989, while State Bar disciplinary proceedings related to the conviction were pending, Hane submitted his resignation to the State Bar. Thereafter Hane appeared as counsel for petitioner at a May 23,1989, pretrial conference; at the June 27, 1989, court trial; and at the July 12, 1989, sentencing hearing. This court accepted Hane’s rеsignation from the State Bar on September 7, 1989.
Petitioner filed this petition for habeas corpus in conjunction with his appeal. Petitioner sought relief on the ground that, as a matter of law, he had been denied his state and federal rights to competent counsel and due process. He subsequently filed a “Traverse and Reply Brief” in which he also argued that Hane’s failure to advise him of the criminal charges, conviction, and suspension denied petitioner his right to counsel of choice.
The Court of Appeal affirmed the judgment of conviction and in its opinion denied the petition without issuing an order to show cause.
We granted review only of the order denying the petition for habeas corpus. An order to show cause was issued. In his return respondent Director of Corrections did not dispute petitioner’s allegations regarding Hane’s status. Petitioner incorporated the allegations of the petition and “traverse” filed in the Court of Appeal into the traverse filed in this court. That traverse is accompanied by petitioner’s declaration that during the pendency of the superior court proceedings he was not aware of counsel’s suspension or resignation.
II
The Court of Appeal majority held that representation by an attorney who has been suspended for reasons unrelated to the attorney’s practice of law is not per se a violation of the right to counsel, and does not relieve a defendant seeking reversal on grounds of ineffective counsel from demonstrating that counsel’s performance fell below the standard to be expected of competent criminal defense attorneys to the prejudice of the defendant.
The court distinguished People v. Medler (1986) 177 Cal.App.3d 927 [
In this case the Court of Appeal reasoned that in assessing a claim of ineffective counsel the propеr test is whether the circumstances of the representation adversely affected the adversarial process. Therefore a defendant must establish a prejudicial impact on the adversarial process by demonstrating state interference with the right to counsel, a conflict of interest, or performance that is so inadequate as to deny the benefit of a full adversarial test of his guilt. (Strickland v. Washington (1984)
The dissenting justice concluded that reversal was required because the constitutional guaranty contemplates “a fully licensed lawyer.”
Petitioner argues strenuously that representation by an attorney who has committed a crime of moral turpitude, and who then commits further crimes of unlawfully practicing law while suspended, fraud, and contempt of court,
A. Suspension Pursuant to Business and Professions Code Section 6102.
Hane was suspended from practice pursuant to the command of section 6102:
“(a) Upon the receipt of the certified copy of the record of conviction, if it appears therefrom that the crime of which the attorney was convicted involved or that there is probable cause to believe that it involved moral turpitude or is a felony under the laws of Californiа or of the United States, the Supreme Court shall suspend the attorney until the time for appeal has elapsed, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal, or has otherwise become final, and until the further order of the court. Upon its own motion or upon good cause shown the court may decline to impose, or may set aside, the suspension when it appears to be in the interest of justice to do so, with due regard being given to maintaining the integrity of and confidence in the profession.”3
We are not persuaded that a suspension under section 6102 alone creates a presumption of incompetence or deprives the defendant of his right
Petitioner’s claim that he has been denied due process and the right to competent counsel is based on his reasoning that conviction of a crime of moral turpitude evinces a “willingness to do evil” which necessarily disqualifies or disables a person from the competent practice of law. As subdivision (а) of section 6102 indicates, however, the Legislature has not created a presumption of unfitness or incompetence in all cases in which an attorney is suspended following conviction. And, as we shall explain, a conclusion that an attorney is not a fit person to practice law is not a determination that the attorney lacks professional competence.
Discipline is imposed on the basis of an attorney’s criminal conduct or violation of the Rules of Professional Conduct in order to protect the public from dishonest or corrupt attorneys as well as from those who fail to provide competent professional services. Suspеnsion or disbarment may be deemed necessary to protect clients from dangers other than inadequate representation, and to maintain public confidence in the bar. Although, in some cases, misconduct occurs in the course of representation of a client, and adversely affects the quality of that representation, this is not invariably so.
A mandatory suspension pending finality of the judgment of conviction following commission of a crime of moral turpitude does not reflect a legislative or judicial assessment of the attorney’s professional competence.
Moreover, “moral turpitude” as used in section 6102 does not encompass all acts that might be understood by laypersons to violate societal precepts of morality, and does not, as petitioner contends, establish that the actor is of such character that he or she cannot, as a matter of law, be trusted to provide competent legal services. As used in the context of professional licensing, “moral turpitude” is a term of art which is given morе precise meaning in its application to the particular profession. (Morrison v. State Board of Education (1969)
For that reason a suspension pursuant to section 6102 is not a determination that an attorney is unfit to practice law. “The first order of suspension is provisional and temporary, awaiting the affirmance or reversal of the judgment of conviction. [Citation.] It does not purport to satisfy the charge against a petitioner or to settle his fitness to remain a member of the bar.” (Shafer v. The State Bar (1932)
Therefore, the suspension of Hane pursuant to section 6102 in and of itself did not establish, as a matter of law, that he was unfit to practice law. Moreover, a conclusion that an attorney who has committed an offense of moral turpitude is unfit to practice law is not necessarily a judgment on the attorney’s professional competence. We do not presume that a suspended attorney lacks professional competence. “Merely because an attorney has been disciplined for some infraction of the rules by which he must abide is no reason for assuming that he is not a qualified аnd efficient lawyer. Erring morally or by breach of professional ethics does not necessarily indicate a lack of knowledge of the law.” (Friday v. State Bar (1943)
Professional competence is only one element in determining whether an individual is “fit” to practice law. Professional competence demonstrated by education and examination and good moral character are required for admission to practice. (§ 6060.) Commission of acts manifesting moral turpitude may establish unfitness even if the attorney’s professional competence is not disputed. (Ibid.; see also, Kwasnik v. State Bar (1990)
Some crimes arе designated offenses involving moral turpitude for which interim suspension and disbarment or lesser discipline may be ordered, because they are so heinous that, absent a compelling showing of
Serious sexual offenses fall into this category of crimes involving moral turpitude. (See, e.g., In re Duggan (1976)
B. Right to Counsel Under Article I, Section 15.
The right to counsel guaranteed by article I, section 15, is the right to an attorney admitted to practice by this court. (See People v. Perez (1979)
Representation by a person who has never been admitted to the practice of law or has fraudulently procured admission denies a defendant his rights under article I, section 15, as a matter of law. So too does representation by a person who, although formerly licensed, has resigned from the State Bar.
It is irrelevant that this court had not yet accepted Hane’s resignation at the time he represented petitioner. A resignation with charges pending causes an immediate transfer of the attorney to inactive status. (Rule 960(a).) Hane submitted his resignation from the State Bar in the form prescribed by rule 960(b) relinquishing “all right to practice law in the State of California” and agreeing that:
“[U]pon the filing of this resignation by the Office of the Clerk, State Bar Court, that I will be transferred to inactive membership of the State Bar. Upon such transfer, I acknowledge that I will be ineligible to practice law or to advertise or hold myself out as practicing or as entitled to practice law.”
This court must аccept a rule 960 resignation unless “perpetuation of necessary testimony is not complete, . . . after transfer to inactive status, the member has practiced law or has advertised or held himself or herself out as entitled to practice law; ... the member has failed to perform the acts specified by rule 955(a)-(b) of these rules; . . . the member has failed to provide proof of compliance as specified in rule 955(c) of these rules; . . . the Supreme Court has filed on order of disbarment as to the member or upon such other evidence as may show that acceptance of the resignation of the member will reasonably be inconsistent with the need to protect the public, the courts or the legal profession.” (Rule 960(c).)
As these limited bases for declining to accept a rule 960 resignation demonstrate, the license to practice of an attorney transferred to inactive
Therefore, while Hane’s suspension alone does not establish incompetence as a matter of law, his representation of petitioner following the submission of his resignation from the State Bar with charges pending denied petitioner the representation guaranteed by article I, section 15.
Petitioner has met his burden of establishing denial оf counsel under article I, section 15 of the California Constitution.
IV
The judgment of the Court of Appeal denying the petition for writ of habeas corpus is reversed. The petition is granted. The judgment of the Los Angeles County Superior Court in People v. Willie Samuel Johnson, No. A043072, is vacated and petitioner is remanded to the superior court for further proceedings. The Clerk of the Court of Appeal is directed to remit a certified copy of this opinion to the superior court for filing, and respondent shall serve another copy thereof on the prosecuting attorney in conformity with Penal Code section 1382, subdivision (b). (See In re Hall (1981)
Lucas, C. J., Panelli, J., Arabian, J., and George, J., concurred.
Notes
Further references to constitutional provisions are to the California Constitution.
Article I, section 15: “The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant’s behalf, to have the assistance of counsel for the defendant’s defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant’s counsel.
“Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.”
The record does not reveal whether Hane has been charged or convicted of these additional offenses. It is undisputed, however, that he has practiced law while under suspension in this and other cases. An attorney who has been suspended from practice is not an active member of the State Bar while under suspension and is not entitled to practice while under suspension. (In re Naney (1990)
Unlеss otherwise indicated, all statutory references are to the Business and Professions Code.
In addition to the suspension, Hane had been transferred to inactive enrollment status in the State Bar upon filing with the State Bar his resignation with charges pending. (Cal. Rules of Court, rule 960(a).)
Unless otherwise indicated, all references herein to rules are to the California Rules of Court.
When it appears that an attorney is not competent to practice law, involuntary enrollment as an inactive member of the State Bar, and/or a judicial assumption of jurisdiction over the attorney’s practice may be ordered as an interim measure to protect the attorney’s clients and thе public. (See §§ 6007, 6180, 6190 et seq.; Conway v. State Bar (1989)
As this court recognized in Hallinan v. Committee of Bar Examiners (1966)
Among the offenses which have been recognized as offenses involving moral turpitude because they call professional integrity into question regardless of whether they are committed in the course of an attorney’s practice of law are: perjury (In re Kristovich (1976)
We do not dispute petitioner’s argument that the legislative prohibition of practice by a suspended attorney reflects a strong public policy which contemplates representation by an attorney who is presently authorized to practice. (See People v. Medler, supra, 177 Cal.App.3d 927, 934 (dis. opn. of White, P. J.).)
The two exceptions heretofore recognized in which the guaranty is satisfied, certified law students (People v. Perez, supra,
Judges must also have been members of the State Bar prior to selection. (Art. VI, § 15.) This court held in Gordon v. Justice Court (1974)
“Other courts have reached similar conclusions, holding that the Sixth Amendment guaranty of representation by counsel is not satisfied if the defendant’s “counsel” has not been admitted to practice or has fraudulently obtained admission. (Huckelbury v. State (Fla.Dist.Ct.App. 1976)
Concurrence Opinion
I concur in the court’s decision granting petitioner a writ of habeas corpus and reversing his conviction.
The majority also concludes, however, that an attorney who has been suspended from legal practice based on conduct involving moral turpitude can provide the legal representatiоn constitutionally guaranteed to criminal defendants. I disagree. When, as here, an attorney is suspended from the practice of law following an adjudication establishing the attorney’s lack of good moral character, that person cannot provide the assistance of counsel that our state Constitution guarantees.
I.
The relevant facts are as follows: In 1987, before he undertook to represent petitioner, Raymond Hane was charged with four felony counts of lewd and lascivious conduct with a child under the age of fourteen. (Pen. Code, § 288, subd. (a).) Included in the charges was the special allegation that Hane had befriended the child victim for the purpose of committing the alleged unlawful acts. (Id., § 1203.066, subd. (a)(3).) On March 4, 1988, Hane pleaded guilty to one of the counts and admitted the special allegation.
On April 6, 1988, after receiving a certified copy of the record of Hane’s conviction, we issued an order suspending him, effective May 6, 1988, from the practice of law pending our further order. (Bus. & Prof. Code, § 6102, subd. (a); In re Naney (1990)
This court’s order suspending Hane from the practice of law also required him—within 30 days of May 6, 1988, the effective date of the order—to comply with rule 955 of the California Rules of Court by notifying clients and opposing counsel of his suspension and by filing with any court or other tribunal before which he had matters pending a copy of the notice he had sent to oрposing counsel. (Cal. Rules of Court, rule 955(a)(1) & (4).)
In March 1989, almost a year after this court had suspended Hane’s right to practice law because of his conviction of a felony involving moral turpitude, Hane agreed to represent petitioner on a felony charge of selling cocaine. (Health & Saf. Code, § 11352.) Thereafter, on May 8, 1989, Hane signed a form resigning from membership in the State Bar of California and specifying that his resignation was with disciplinary charges pending against him. On May 10, 1989, the Clerk of the State Bar Court filed Hane’s
Petitioner later learned that Hane’s representation of him occurred while Hane was suspended from legal practice for a conviction of a felony involving moral turpitude and after Hane had submitted his resignation from State Bar membership. Petitioner then sought a writ of habeas corpus contending he had been denied the right to counsel.
II.
In concluding that Hane’s representation of petitioner violated the right to counsel guaranteed by the California Constitution, the majority relies solely on the fact that Hane had resigned his membership in the State Bar before he appeared as counsel at petitioner’s felony trial. The majority attaches no constitutional significance to the fact that Hane was suspended from practicing law because of his conviction of a crime of moral turpitude.
Although it acknowledges that fitness to practice law requires good moral character as well as professional competence (maj. opn., ante, p. 699), the majority draws a distinction between unfitness demonstrated by a conviction of a crime of moral turpitude and “a legislative or judicial assessment of the attorney’s professional competence” (id. at p. 697). According to the majority, an attorney who has been suspended from the practice of law because of bad moral character can provide the legal representation of a criminal defendant guaranteed by the state Constitution. I disagree.
A defendant in a criminal case is “entitled to be advised and represented at every critical stage of the case by counsel certified by the State to be competent and of good moral standing.” (Huckelbury v. State (Fla.Dist.Ct.App. 1976)
An attorney’s “ascertainable failure” to satisfy the licensing state’s standard for good moral character is “a serious substantive flaw” in licensure, just as significant as the inability to meet the threshold requirements pertaining to legal knowledge. (U.S. v. Novak, supra,
In California, a conviction of a serious sexual offense “ ‘repugnant to accepted moral standards,’ ” as involved here, is “on its face” proof of an attorney’s moral turpitude. (In re Duggan (1976)
In this case, Hane represented petitioner in a felony trial while suspended from the practice of law following his felony conviction for sexually molesting a child whom he had befriended for the very purpose of committing lewd acts. Because Hane’s suspension for a crime involving moral turpitude was “a serious substantive flaw” in his licensure (U.S. v. Novak, supra,
The requirement that a lawyer have good moral character not only benefits individual clients, it also protects the courts. (See, e.g., In re Scott (1991)
Here, after his felony conviction for a crime involving moral turpitude and while suspended from the practice of law, Hane appeared as counsel for petitioner in a felony trial. In violation of rule 955 of the California Rules of Court, Hane fraudulently concealed his suspension from his client, opposing counsel, and the court. There can be no confidence in legal representation by such an individual, whose lack of veracity and trustworthiness impugns the very integrity of the judicial system.
III.
The majority reverses petitioner’s conviction because the person who purported to give him the “assistance of counsel” guaranteed by article I, section 15 of our state Constitution had previously submitted his resignation from membership in the State Bar. But the majority also concludes that an attorney who has been suspended from the practice of law on grounds of moral unfitness is still enough of an attorney to provide the legal assistance our Constitution guаrantees. I cannot accept the latter conclusion. The right to counsel means the right to assistance by one whom the state has duly certified as both technically competent and morally fit. When this court suspends an attorney from the practice of law after receiving proof that the attorney has been convicted of a crime of moral turpitude, it withdraws the certification of good moral standing without which no individual can claim the status of “counsel” in our courts. In my view, petitioner’s conviction must be set aside because his only legal representative was an individual who had lost his right to practice law on grounds of moral unfitness.
Mosk, J., concurred.
That section provided: “No person shall practice law in this State unless he is an active member of the State Bar.” (Italics added.) A 1990 amendment modified the language but left the substance unchanged.