In Re Lesansky
Since January 1, 1997, the Legislature has provided for summary disbarment of an attorney convicted of a felony involving moral turpitude. (
I
After soliciting and receiving briefs from the parties, but without holding an evidentiary hearing, the Review Department of the State Bar Court (Review Department) determined that crimes involving lewd acts on children necessarily involve moral turpitude and that petitioner was therefore subject to summary disbarment.1 In May 1999, the Review Department recommended to this court that petitioner be disbarred.
Petitioning this court for review of the State Bar Court‘s decision recommending disbarment (
II
Before January 1, 1997, our Legislature required summary disbarment of an attorney convicted of a felony if an element of the offense was “the specific intent to deceive, defraud, steal, or make or suborn a false statement.” An additional requirement was that the offense have been “committed
Petitioner argues that in the context of attorney discipline in general, and the summary disbarment provisions in particular, the term “moral turpitude” must be construed as requiring a nexus or logical relationship between the criminal conduct and an attorney‘s fitness to practice law, and that purely private sexual misconduct has no bearing on an attorney‘s fitness to practice.
“Because the right to practice a profession is sufficiently important to warrant legal and constitutional protection, the term [`moral turpitude‘] must be given a meaning and content relevant to the attorney‘s fitness to practice.” (Baker v. State Bar (1989) 49 Cal.3d 804, 815, fn. 3, 263 Cal.Rptr. 798, 781 P.2d 1344.) Thus, we agree with petitioner that discipline may be imposed only for criminal conduct having a logical relationship to an attorney‘s fitness to practice, and that the term “moral turpitude” must be defined accordingly. Indeed, we have recognized that when a statute authorizes professional discipline for conduct demonstrating moral turpitude, “the meaning of ... `moral turpitude’ must depend upon, and thus relate to, the occupation involved....” (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 227, 82 Cal.Rptr. 175, 461 P.2d 375.)
We do not agree, however, that a lawyer‘s private acts may never demonstrate unfitness for the legal profession. Fitness to practice law requires more than acquiring the knowledge and mastering the technical skills needed to advise or represent clients. “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. [Citation.] Commission of acts manifesting moral turpitude may establish unfitness even if the attorney‘s professional competence is not disputed.” (In re Johnson (1992) 1 Cal.4th 689, 699, 4 Cal. Rptr.2d 170, 822 P.2d 1317, original italics; see also id. at p. 705, 4 Cal.Rptr.2d 170, 822 P.2d 1317 (cone. & dis. opn. of Kennard, J.) [“An attorney prohibited from practicing law as a result of moral turpitude, no matter how technically competent, lacks the essential moral qualification that California requires of its lawyers.“].)
We recently summarized the moral character requirement this way: “Good moral character includes traits of `honesty, fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and obedience to the laws of the state and the nation and respect for the rights of others and for the judicial process.’ [Citation.] Persons of good character also do not commit acts or crimes involving moral turpitude—a concept that embraces a wide range of deceitful and depraved behavior. [Citations.]” (In re Gossage (2000) 23 Cal.4th 1080, 1095, 99 Cal.Rptr.2d 130, 5 P.3d 186.) Although we made this statement in the context of a candidate seeking to be admitted as an attorney, it applies with equal force in the context of attorney discipline. We explained that “both admission and disciplinary proceedings concern [unfitness to practice law as evidenced by acts of moral turpitude.” (Ibid.)
Even though we have recognized that in attorney discipline proceedings the term “moral turpitude” must be defined in a way that is relevant to an attorney‘s fitness to practice (Baker v. State Bar, supra, 49 Cal.3d at p. 815, fn. 3, 263 Cal. Rptr. 798, 781 P.2d 1344), we have also recognized that unfitness to practice may be shown by criminal conduct not committed in the practice of law or against a client. (In re Gossage, supra, 23 Cal.4th at p. 1098, 99 Cal.Rptr.2d 130, 5 P.3d 186 [stating that an attorney may be disbarred for acts of moral turpitude “in either a personal or professional capacity“]; Stratmore v. State Bar (1975) 14 Cal.3d 887, 890, 123 Cal.Rptr. 101, 538 P.2d 229 [stating that an attorney may be disciplined “for conduct `either in or out of [his] profession’ which shows him to be unfit to practice“].) The Legislature evidently agrees. In a section not dealing with summary disbarment, and thus not directly applicable here, it has provided: “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (
Petitioner mistakenly relies on In re Rohan (1978) 21 Cal.3d 195, 145 Cal.Rptr. 855, 578 P.2d 102, as establishing a different rule. Our decision there consisted of a lead opinion and two concurring opinions, each signed by two justices. Significantly, all of the justices agreed that the offense there in question—willful failure to file a federal income tax return did not involve moral turpitude. (Id. at p. 201, 145 Cal. Rptr. 855, 578 P.2d 102 (lead opn. of Clark, J.); id. at p. 205, 145 Cal.Rptr. 855, 578 P.2d 102 (cone. opn. of Tobriner, J.); id. at p. 206, 145 Cal.Rptr. 855, 578 P.2d 102 (cone. opn. of Sullivan, J.).) Rohan concerned the scope of this court‘s inherent power to discipline attorneys for “other misconduct warranting discipline,” (id. at p. 198, 145 Cal.Rptr. 855, 578 P.2d 102) not for criminal acts manifesting moral turpitude.
In reaffirming that attorneys may be disbarred for criminal acts committed in a nonprofessional setting, we do not hold that such discipline may be imposed for any act evidencing a moral lapse or infirmity, however slight. Attorney discipline is imposed when necessary “to protect the public, to promote confidence in the legal system, and to maintain high professional standards” (In re Brown (1995) 12 Cal.4th 205, 217, 48 Cal.Rptr.2d 29, 906 P.2d 1184; In re Fahey (1973) 8 Cal.3d 842, 849, 106 Cal.Rptr. 313, 505 P.2d 1369), and the term “moral turpitude” is defined by reference to this purpose. As we have in the past, we acknowledge here that the term “cannot be defined with precision.” (Baker v. State Bar, supra, 49 Cal.3d 804, 815, fn. 3, 263 Cal.Rptr. 798, 781 P.2d 1344.) Nevertheless, we can provide this guidance: Criminal conduct not committed in the practice of law or against a client reveals moral turpitude if it shows a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties) or if it involves such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney‘s conduct would be likely to undermine public confidence in and respect for the legal profession. (See In re Johnson, supra, 1 Cal.4th at p. 698, 4 Cal.Rptr.2d 170, 822 P.2d 1317; In re Calaway (1977) 20 Cal.3d 165, 169-170, 141 Cal.Rptr. 805, 570 P.2d 1223; In re Higbie (1972) 6 Cal.3d 562, 569-570, 99 Cal.Rptr. 865, 493 P.2d 97.)
III
Petitioner contends that his conviction for attempting to commit a lewd act on “a child of the age of 14 or 15 years” and at least 10 years younger than himself (
An offense necessarily involves moral turpitude if the conviction would in
In the attorney discipline context, the term “moral turpitude” includes “particular crimes that are extremely repugnant to accepted moral standards such as ... serious sexual offenses (In re Boyd [(1957)] 48 Cal.2d 69 [307 P.2d 625]).” (In re Fahey, supra, 8 Cal.3d at p. 849, 106 Cal.Rptr. 313, 505 P.2d 1369.) The offense petitioner attempted to commit is a serious sexual offense, punishable by up to three years in state prison. (
Here, petitioner‘s conviction was for an attempt rather than for a completed offense, and it does not appear that any child was actually harmed, but neither of these circumstances alters our conclusion that his criminal conduct necessarily involves moral turpitude. “An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission.” (
Petitioner‘s attempt to commit a lewd or lascivious act on a child who was 14 or 15 years old and at least 10 years younger than himself was such a serious breach of the duties of respect and care that all adults owe to all children, and it showed such a flagrant disrespect for the law and for societal norms, that continuation of petitioner‘s State Bar membership would be likely to undermine public confidence in and respect for the legal profession. Therefore, we agree with the State Bar Court that petitioner was convicted of a felony involving moral turpitude, and we accept the State Bar Court‘s recommendation that he be summarily disbarred under
IV
The law provides for summary disbarment of an attorney convicted of a felony offense involving moral turpitude. (
It is hereby ordered that Stuart K. Lesansky be disbarred from the practice of law and that his name be stricken from the roll of attorneys. Costs are awarded to the State Bar.
GEORGE, C.J., MOSK, J., BAXTER, J., WERDEGAR, J., CHIN, J., and BROWN, J., concur,