The California Supreme Court's debate on moral turpitude's meaning turned on constitutional considerations, such as achieving sufficient precision to avoid vagueness and keeping a constitutionally required nexus with legal practice. (See 46th Installment.) To avoid the inevitable expansion of vague definitions when due process demands greater precision, the California Supreme Court should adopt a narrow and exclusive deceit standard for moral turpitude. This proposal embraces In re Fahey (1973) 8 Cal.3d 842 (see 45th Installment) but goes substantially further toward a tailored, profession-specific definition, precise enough to hold lawyers accountable while affording them due process.
Previous Installments concluded that the moral-turpitude-standard's evolution confirmed a generalization of Brennan's first hypothetical: moral turpitude's circumference expanded to include all borderline cases. (See Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, 93-94 [Brennan, J., dissent, "Clarity cannot be obtained pursuant to this approach except by drawing a line that resolves all doubt in favor of state power…"]; see, also, 45th Installment.) Moral turpitude expanded after losing its still insufficiently precise bearings, despite their substance having been recited by Fahey's unanimous court.
Applying the moral turpitude standard requires satisfying two conditions not always distinguished: 1) Moral turpitude must have a nexus with the practice of law; and 2) Moral turpitude signifies moral corruption. The outcome of applying these conditions doesn't conform either to Supreme Court dicta or conventional moralism. In the extreme, #1, specially defined, means murder is not necessarily a crime of moral turpitude. To equal extreme, #2 means the worst incompetence doesn't justify discipline. Regarding #1, the mass of one-time murderers show little recidivism, hence the crime's lessened relevance to moral character. Deceitfulness, on the other hand, differentiates psychopathy. Regarding #2, prohibited discipline for grossly deficient performance, objective methods more reliably assess competence. Thus, bar exams and educational requirements. An example of not distinguishing these two conditions is Acting Chief Justice Tobriner's concurring opinion in In re Rohan, where the acting chief justice bases discipline on deficient skills and habits instead of moral qualities. (See In re Rohan (1978) 21 Cal.3d 195, 206 [Tobriner, C.J., concurring, "Petitioner's carelessness in these {clerical} matters suggests that, for the protection of clients, his practice should be subject to probationary supervision by the State Bar."]
Two broad classes of acts constitute moral turpitude: deceit and force, asymmetric, in that "deceit" permits precise definition, which "force" defies. Deceit is well defined by absolute prohibitions specific enough to warrant their unification in a single tort. (See Civ. Code, § 1709 ["One who willfully deceives another with intent to induce him to alter his position to his injury or risk..."]; see, also, Civ. Code, § 1710.) Force's proper uses and their moral significance, on the other hand, are subject to reasonable disagreement. Distinct by avoiding the vagueness problem through greater precision, deceit is better suited as moral turpitude's practical and legal criterion for a second reason: in legal practice, deceit is moral turpitude's only form. Constitutionally mandated specificity requires using the better-tailored category. (See In re Rohan, supra, 21 Cal.3d at p. 205 [Tobriner, C.J., concurring].)
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