Tuesday, March 14, 2000
When Lawyers Break Laws: Where Do Ethics and the Bar Come Into Play?
By CRAIG T. WORMLEY and LAINE MERVIS
The authors are employed by Miller & Associates, one of the nation's largest legal defense firms. Wormley, a graduate of from Thomas Cooley Law School in Michigan, has practiced for five years; he is a member of the California Attorneys for Criminal Justice-Criminal Division and California Public Defenders Association. Mervis, a first year student at the UCLA School of Law, is a legal aid and research assistant at the firm.
Drunk driving is a widespread societal problem. It is severe in consequences for the guilty criminal, and even more so in its potential tragedy for the innocent. Because of this, the crime raises questions of ethics. For the criminal, it can result in a number of collateral consequences in addition to the sentence. The Supreme Court of California has found that driving under the influence may, under certain circumstances, result in professional discipline. As officers of the court and administrators of the law, the legal community is in a unique position to take disciplinary action against its own members who contribute to this social malady.
The California Business and Professions Code explicitly states the conditions for professional discipline: "A board may suspend or revoke a license on the ground that the licensee has been convicted of a crime, if the crime is substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued." Cal. Bus. and Prof. Code Sec. 490. A pharmacist who sells prescription drugs on the black market, for example, will be subject to disciplinary action beyond any punishment he receives from the State. Still, in other professions, it is not always so clear when this substantial relationship exists.
Establishing a Nexus
To determine this, the courts try to establish what they call a "nexus" between the criminal conduct they are looking at and the profession. In the case of lawyers, this nexus is the meeting point of the crime and the practice of law. The court in In re Kelly (1990) 52 Cal. 3d 487 ordered the public reproval of an active member of the State Bar after two drunk driving convictions. The offenses were within a 31 month period, the second arrest being a violation of probation for the first conviction. In addition to the public reprimand, the attorney was placed on three years probation and referred to the California State Bar Program on Alcohol Abuse. In this case, the Court decided that demonstrating a nexus, though not necessary in all cases, was instrumental in their decision.
The court felt there was a nexus between the attorney's criminal conduct and the practice of law in two respects. First, by violating her court-ordered probation for her first offense, the attorney, "demonstrated a complete disregard for the conditions of her probation, the law, and the safety of the public." Second, the court felt it was necessary to take action before the attorney's alcohol abuse began to affect her professional practice.
Taking into account the effect on her private life and her failure to recognize her alcohol abuse, the court decided it did not have to "sit back and wait until the attorney's alcohol problem begins to affect her law practice before imposing discipline." Instead, it acted immediately to prevent this potential effect. The court determined that professional discipline would be appropriate because these measures would be preventative and rehabilitative, rather than punitive.
In a second case, the respondent had been placed on disciplinary probation for previous misconduct. In re Carr (1988) 46 Cal. 3d 1089, 1091. The conditions of his probation required him to file quarterly reports stating that he abstained from intoxicants and non-prescription drugs. His first two quarterly reports did not contain an express statement of this. The hearing judge found he had violated his probation, and recommended revoking probation and imposing the previously stayed two year suspension from the Bar. In this case the Review Department and the State Bar adopted her recommendation as to discipline, with minor modifications.
Because the criminal misconduct in these cases involves alcohol abuse, this can sometimes be used as a mitigating factor. The courts have ruled that addiction to alcohol or prescription drugs can be raised in mitigation, and if the attorney can prove he is rehabilitated, it can possibly be used to avoid disbarment or suspension. "While no jurisdiction has ever held that alcoholism is a defense of the charges of professional misconduct, many jurisdictions have considered it a mitigating factor when imposing discipline." Kersey 520 A.2d 321 (D.C. 1987) In that case, the hearing committee found that the respondent was an alcoholic and was now in recovery. Because alcoholism had led to his misconduct, the court believed it would not recur so long as he remained in rehabilitation. Some have applauded this decision, believing this will encourage attorneys suffering from alcohol addiction to step forward and ask for help. Others charge that showing leniency with lawyers who break the law is absurd.
Broadening the Criteria
These decisions illustrate a broadening of the criteria for establishing a nexus. In making their determination in these cases, the courts rejected contentions that it was exceeding its power to impose professional discipline. The Business and Professions Code authorizes discipline only if an attorney's misconduct involved moral turpitude. Cal. Bus. and Prof. Code Secs. 6101 and 6106. Moral turpitude is an "act of baseness, vileness or depravity [which] gravely violates moral sentiment or accepted moral standards." In both Carr and Kelley, the Court found that the driving under the influence offenses and the violations of court-ordered probation were insufficient grounds to warrant a finding of moral turpitude. Despite this, they were sufficient for imposing disciplinary action on the attorneys.
In many of these cases, the attorneys argue that the convictions do not reflect on their professional abilities. The courts, however, are becoming more and more liberal in establishing a nexus between the crime and the practice of law. Although a DUI charge may not directly reflect on an attorney's ability to practice, it does show a disregard for the law and the safety of the public. These are the same ideals which attorneys are supposed to represent. Because they are betraying these principles, their criminal behavior does reflect adversely on their professional ability. This is the nexus, and the courts are using it to their full ability to order professional discipline on attorneys. To attorneys facing discipline, this connection is an ambiguous one. It is, however, a clear message to all attorneys.