Ad Hoc Commission on the Discipline System Recommendations

Moral Turpitude

The commission explored the experiences of respondents who are charged with moral turpitude. Moral turpitude is discussed in Business and Professions Code section 6016 as follows: “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.”

Attorneys can be charged with moral turpitude as an original matter or when OCTC seeks discipline for a criminal conviction. Business and Professions Code section 6101 requires OCTC to transmit criminal conviction cases to the State Bar Court Review Department within 30 days of receipt if it determines that the case may or does involve moral turpitude. Attorneys are ineligible for participation in the Alternative Discipline Program, a program that supports attorneys whose misconduct stems from mental health or substance abuse, if their misconduct involves moral turpitude, a program that involves treatment.

In its study of moral turpitude, the Ad Hoc Commission on the Discipline System found that:

• Criminal conviction matters based on misdemeanor cases have high rates of nondisciplinary action and pretrial case dismissal initiated by OCTC.
• There is no rule (or sufficient time) that authorizes either an ENEC or other pretransmittal meeting in a misdemeanor criminal conviction proceeding, at which respondents or the State Bar Court could weigh in on whether a respondent’s misdemeanor criminal conviction involves moral turpitude or other misconduct warranting discipline.
• There appears to be ambiguity within the State Bar rules involving referrals to the Alternative Discipline Program, with one rule effectively disallowing participation without the opportunity for attorneys to litigate moral turpitude allegations.
• OCTC is not bound to follow judges’ judicial evaluations during the ENEC process, even those that raise concerns regarding a lack of evidence to support moral turpitude charges.

As a result, the commission recommended that the Board of Trustees:

• Direct staff to work with stakeholders to study possible revisions to all applicable rules to determine the feasibility of conducting a pretransmittal meeting similar to an ENEC in misdemeanor conviction matters subject to rule 5.340–5.347 that would determine whether or not the facts and circumstances underlying the misdemeanor conviction involve moral turpitude or other misconduct warranting discipline and if appropriate, evaluate a potential disposition of the matter.
• Direct staff to work with stakeholders to study and clarify all applicable rules involving referrals to the Alternative Discipline Program, specifically concerning whether or not moral turpitude has resulted in significant harm to a client or the administration of justice.
• Direct staff to work with stakeholders to propose revisions to all applicable rules to promote the use of ENECs as a mechanism for arriving at prefiling settlements of State Bar disciplinary proceedings.