L. FORREST PRICE, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.
L.A. No. 31441
Supreme Court of California
Jan. 25, 1982
537
George R. McClenahan and Harry V. McGahey for Petitioner.
OPINION
THE COURT.*—We review a recommendation that L. Forrest Price be disbarred for acts involving moral turpitude. His misconduct as a prosecutor included (1) altering evidence in a criminal trial, and (2) attempting to prevent discovery of his misconduct by (a) discussing the alteration with the judge in the absence of opposing counsel, and (b) communicating to the defendant—after conviction but before sentencing—an offer to seek favorable sentencing in exchange for defendant’s agreement not to appeal the conviction.
After a hearing on August 17, 1979, the State Bar panel recommended disbarment. The recommendation was based on a finding that petitioner wilfully violated
The panel made a second recommendation of suspension for three years, with execution stayed on conditions that included one year of ac
A rehearing was held on March 7, 1980. Petitioner challenged the adequacy of the showing that he violated
The review department of the State Bar adopted the panel’s twoto-one recommendation of disbarment by vote of eight to five. The department recommended disbarment even though it refused to adopt the panel’s findings that petitioner had violated
In April 1976 he was assigned the responsibility of prosecuting Stewart, charged with two murders. Corbin was appointed counsel for Stewart in May and served through trial and sentencing, and Stewart represented himself as cocounsel throughout. Trial began in October. Corbin made at least two pretrial requests for discovery of all pertinent matters from the office of the district attorney, and petitioner assured Corbin that all such information had been furnished. During cross-examination, however, Corbin discovered that a cab driver whose testimony placed Stewart at or near the scene of one of the alleged murders in 1973 had prepared a “trip ticket” containing entries of dates, times, and places of passenger pickups and deliveries at or about the time of the alleged murder. The ticket had not been provided to the defense, though it had been in the possession of the San Diego Police Department since May 1974.
Corbin requested a copy of the ticket from petitioner, who said he did not have one. Petitioner then obtained a copy from the cab driver on completion of the driver’s testimony and during a recess. It contained entries that were inconsistent with the driver’s testimony as to the time and place he had picked up Stewart. Time and place were not in themselves important to the People’s case. They were important, though, in the sense that discrepancies between entries prepared in 1973 and the driver’s testimony in 1976 could be used to impeach his credibility as a witness.
Petitioner altered his copy of the ticket—by changing the time and place of a customer fare relevant to the driver’s carriage of Stewart—so that it became consistent with the driver’s testimony. He then destroyed the original copy, after photocopying, and supplied a photo of the altered copy to Corbin, representing it to be true and genuine. The aim was to mislead Corbin and to prevent his using the original or a true copy to impeach the driver.
Corbin then sought the court’s aid in securing the original of the ticket, and petitioner agreed to produce it. But the original was not immediately obtainable from the police; so he produced another copy, unaltered, obtained from the cab company. Corbin then noted the alter
Petitioner then gave the original ticket to Corbin. At a meeting later that day attended by petitioner, Corbin, and the judge, petitioner sought unsuccessfully to prevent the admission into evidence of the altered copy. His responsibility for the discrepancy between the two versions of the ticket was not revealed to Corbin during that meeting, or to the jury or anyone else (except the judge) during trial.
The jury returned a verdict of second degree murder in November 1976. Before expiration of the 60-day period for filing a notice of appeal and before sentencing, petitioner contacted Stewart in jail. He sought and received Stewart’s promise to refrain from filing an appeal of his conviction in exchange for petitioner’s promise to seek a more favorable sentence and out-of-state incarceration. Corbin was neither notified of nor present at the meeting. Petitioner testified that his chief reason for wanting Stewart not to appeal was to keep petitioner’s misconduct in altering the ticket from being revealed. Despite their agreement, however, Stewart filed a timely appeal.
In July 1977 petitioner’s efforts to secure a more favorable sentence failed. Increasingly concerned that his misconduct would come to light on appeal, he revealed his alteration of the ticket to a superior in the district attorney’s office, hoping that people in the office would be able to “straighten it out” by securing a more favorable sentence for Stewart. Instead petitioner was suspended from his job, and the matter of his misconduct was referred to the Attorney General. Against advice of counsel he submitted to interrogation by the Attorney General’s investigators.
Later that month the Attorney General charged petitioner with a felony under
He then sought reinstatement to his former job. The Civil Service Commission ordered him reinstated, but in a rehearing requested by the district attorney that order was vacated during the summer of 1978.
After suspension he signed on as a grocery store manager but following the initial civil service ruling resigned, thinking he would be returning to the district attorney’s office. When it became apparent he would not be reinstated he served as a service station manager until the end of 1978.
In January 1979 he recommenced law practice and opened an office. He has remained in practice, handling civil matters (e.g., personal injury, worker’s compensation, probate) as well as defense in criminal cases.
MITIGATION
There is no record of prior discipline. Petitioner cooperated fully with State Bar investigators and was remorseful throughout the proceedings. He stipulated to the essential facts of his misconduct prior to the panel’s hearing. He had been under mental and emotional stress for several years because of a heavy caseload and regular work weeks of 57 to 60 hours. In 1975, the year before the events leading to these proceedings, he sought to reduce stress by requesting rotation to another department within the district attorney’s office; but the request was denied. Work-related stress was viewed as a causative factor in his misconduct by two deputy district attorneys who worked with him. The presiding referee thought the stress lessened his culpability.
He presented seven character witnesses who testified to his reputation for community involvement, integrity, and trustworthiness. He urges that he has made substantial progress in rehabilitating himself. As a private practitioner he can regulate new stresses by choosing his cases and scheduling his workload. He was examined on June 26, 1981, by a psychiatrist who found him free of psychiatric disorders and in need of no counseling.
In deciding what commands of the State Bar Act or Rules of Professional Conduct he violated we may make independent findings of fact. (Weir v. State Bar (1979) 23 Cal.3d 564, 570). Generally we give weight to a hearing panel’s findings, since the members often are in a better position than we to resolve conflicts in testimony. (Allen v. State Bar (1977) 20 Cal.3d 172, 177). The burden is on petitioner to overcome the presumption that favors findings supported by substantial evidence. (In re Wright (1973) 10 Cal.3d 374, 377).
Business and Professions Code section 6131, subdivision (b)
Petitioner was charged with violating
The panel found (1) that petitioner received Stewart’s promise to abandon an appeal in exchange for petitioner’s promise to seek more favorable sentencing for Stewart; (2) that petitioner sought the promise for concerns personal to himself that amounted to a valuable consideration, “to wit, concealing or minimizing the fact that he had altered a document during the course of the trial and that this had not been revealed to . . . Corbin or the defendant“; and (3) that by those actions petitioner wilfully violated
Whatever other reasons he may have had for communicating with Stewart, he admitted that the aim of requesting abandonment of appeal was to protect his career and repute by preventing disclosure of his misconduct in altering the ticket. Thus no reasonable doubt exists that he had the state of mind required to find that he violated
This court rejects review-department rulings based on erroneous conclusions as to facts. (See In re Fahey (1973) 8 Cal.3d 842, 851). The department did not explain its elimination of the finding that petitioner violated
Other Violations
The panel also found him guilty of acts of moral turpitude (
APPROPRIATE DISCIPLINE
Concluding that the panel’s findings as to guilt should be upheld, we next consider whether petitioner’s misconduct warrants the discipline recommended. He contends that the panel’s and review department’s recommendation of disbarment is too severe in light of the mitigating circumstances. We agree. Though substantial weight is given to the State Bar’s recommendations, we exercise independent judgment in determining the discipline. (Toll v. State Bar (1974) 12 Cal.3d 824, 831). We may adopt conclusions as to guilt and yet revise the recommendations regarding discipline. (See Jackson v. State Bar (1979) 23 Cal.3d 509, 513; Doyle v. State Bar (1976) 15 Cal.3d 973, 980).
While disbarment appears prescribed by
Citing numerous cases that involve the Business and Professions Code and the Rules of Professional Conduct, the State Bar suggests that our holdings support disbarment here. The discipline actually imposed in those cases, however, seems to have been overlooked. Petitioner correctly points out that misconduct leading to disbarment usually has involved multiple and unrelated wrongful acts and an absence of mitigating circumstances. (See e.g., Weir v. State Bar, supra, 23 Cal.3d 564; Hamilton v. State Bar (1979) 23 Cal.3d 868
Suspension rather than disbarment was deemed fitting in numerous cases cited by the State Bar involving conduct more blameworthy than petitioner’s, particularly where mitigating circumstances appeared. (See e.g., Codiga v. State Bar (1978) 20 Cal.3d 788; Heavey v. State Bar (1976) 17 Cal.3d 553; In re Jones (1971) 5 Cal.3d 390; Reznik v. State Bar (1969) 1 Cal.3d 198).
We have stressed that the appropriate discipline must be determined on the facts of each case. (In re Jones, supra, 5 Cal.3d 390, 400; Yapp v. State Bar (1965) 62 Cal.2d 809, 819). Here, petitioner’s conduct does call for discipline. We note, though, the following facts that militate against disbarment. He has no prior disciplinary record regarding his 11 1/2 years as an attorney and prosecutor. (See Bradpiece v. State Bar (1974) 10 Cal.3d 742, 747). He was under mental and emotional stress for some time prior to and during the period when his misconduct occurred because he worked long hours under a heavy caseload. (See Doyle v. State Bar (1976) 15 Cal.3d 973, 979). He sought to reduce the stress before the events leading to these proceedings by requesting rotation within the district attorney’s office, but his request was denied. He has been cooperative and remorseful throughout the proceedings. (See Bradpiece v. State
While by no means do we condone the misconduct, in view of mitigating circumstances and the lesser discipline often imposed in similar cases we conclude that protection of public and profession does not require disbarment.
Yet, we think the misconduct warrants stronger discipline than the panel’s alternate recommendation of suspension for three years with one year of actual suspension. Accordingly, it is ordered that petitioner be suspended from the practice of law for five years, that execution of the order be stayed, that he be placed on probation for five years on condition that he be actually suspended for the first two years and, if he has not passed the Professional Responsibility Examination within the two-year period, for such additional time as it takes him to pass (Jackson v. State Bar, supra, 23 Cal.3d 509, 514), and that he comply with the additional conditions recommended by the panel on July 11, 1980, with the exception of condition (2) (psychiatric counseling).
The order is effective 30 days after the filing of this opinion.
RICHARDSON, J.—I respectfully dissent from the majority’s imposition of temporary suspension. In my view petitioner’s conduct fully warrants disbarment and I would sustain such recommendation by the State Bar.
Petitioner, a prosecutor, deliberately altered written documentary evidence introduced at a criminal trial. To assist his case he changed the witness-cab driver’s “trip ticket” in two respects, both the time and place of the customer’s transport, thereby depriving defendant of a basis for impeaching a prosecution witness. Petitioner then destroyed the original ticket and submitted to his adversary the modified copy falsely representing it to be accurate.
He thereafter pursued a carefully calculated plan to hide his misconduct. Without either the knowledge or consent of defense counsel petitioner contacted defendant in jail in order to obtain the latter’s con
Petitioner’s conduct during trial was calculated, deceitful, knowingly performed for his own advantage, and was followed by a prolonged and complicated attempt to cover his tracks. The setting in which petitioner’s misbehavior occurred was the prosecution of a defendant charged with multiple murders, the most serious of criminal offenses. It is self evident that a lawyer’s presentation to the court and counsel of deliberately fabricated documentary evidence strikes directly at the very integrity of the judicial process. Such conduct is so violative of every sense of duty and honor as to justify amply the State Bar’s recommendation of disbarment.
As noted, petitioner was a prosecutor and we previously have described the range and depth of his public duties under
Nor do I find in the record adequate mitigation. The fact that he had no prior discipline is not enough. Given the nature of his offenses, once was too often. Nor is mental or emotional stress or a heavy workload a justification. Most lawyers live honorably under conditions of stress and contention. It is the very air they breathe. Petitioner’s general community reputation vouchsafed by character witnesses, may support his application for readmission, if exemplary behavior is sustained for an extended period of time. (See In re Giddens (1981) 30 Cal.3d 110, 116; In re Petty (1981) 29 Cal.3d 356, 362). However it does not provide sufficient proof of mitigation in the present proceedings.
I would accept the recommendations of the State Bar’s panel and review department and would disbar petitioner.
Bird, C. J., and Kaus, J., concurred.
*Before Bird, C. J., Mosk, J., Richardson, J., Newman, J., Kaus, J., Broussard, J., and Tobriner, J.†
†Retired Associate Justice of the Supreme Court sitting under assignment by the Chairperson of the Judicial Council.