kanBARoo Court. 49th Installment. "Willfully" Made Precise

Some knowledge comes two ways: one involving knowing that and the other not; one can know some things by their name or by another: transparent knowledge, contrasted with opaque knowledge. The 42nd Installment interpreted the required knowledge for Business and Profession Code section 6103 willfulness as transparent because I’m unaware of any law using an opaque-reference standard. Here’s a better reason, with more exact conclusions.

I find no authorities making the connection, but the Penal Code defines the key word “willfully,” and the Penal Code definition decides whether transparent or opaque reference applies, the statute and the cases construing it being the only legal authorities addressing the knowledge that Bus. & Prof. Code, § 6103, willfullness requires. Penal Code section 7, subdivision 1, defines willfulness, when not otherwise defined by statute, as follows:

The word “willfully,” when applied to the intent with which an act is done or omitted, implies simply a purpose or willingness to commit the act, or make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any advantage.

The first case People v. Honig (1996) 48 Cal.App.4th 289 examined Penal Code section 7-willfullness knowledge requirements, in a criminal conflict of interest case. The Honig court considered three alternative standards for knowledge of a contract held to expose a public official to a conflict of interest. The court rejected that willfully creating a conflict of interest required that defendant know that the acts were illegal. It is well-settled that knowledge of the existence of a law prohibiting the conduct isn’t ordinarily an element of a willful offense, this irrelevance being the substance of the popular rule, “Ignorance of the law is no excuse.” The Honig court also rejected the standard at the other, most inclusive, end of the spectrum. The defendant does not become culpable for willfully creating a conflict of interest merely because he knew the terms that created the conflict. The inclusive definition would make conflict of interest a kind of strict liability offense. The court accepted the third, intermediate, candidate: willfully creating a conflict of interest involved knowing that the contractual terms created a conflict of interest. The standard for willfully creating a conflict of interest requires knowing more than an objective description of the act and less than the illegality or even the harmfulness of the conduct. It requires transparent knowledge of the prohibited conduct in exactly the terms used by the violated statute. (Honig, supra, 48 Cal.App.4th 289 [including only the first two sentences of quote below; quoted In re Stonewall F. (1989) 208 Cal.App. 3d 1054.].) Stonewall F.’s explanation, fully quoted:

The section 7 definition is entirely dependent upon the act to which "wilfull" is appended. The required intent is an intent to do just that to which the term wilfull is applied. Its significance therefore is wholly dependent upon the grammar of the specific offense in which the term is employed. (See also Hall, General Principles of Criminal Law, supra, p. 142 ["It is evident that there must be as many mentes reae as there are crimes. And whatever else may be said about an intention, an essential characteristic of it is that it is directed towards a definite end."]) (In re Stonewall F., supra, 208 Cal.App. 3d at p. 1066.)

The Business and Profession Code section 6103 language awaiting parsing with Penal Code- section 7-concepts reads:

A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.

The intent required to violate section 6103 is knowing that the order exists and that it requires doing or forbearing a particular act. Respondent's knowledge that the order required him to forbear is tantamount to knowing the order’s finality. Directly applying section 7 subdivision 1 to section 6103 violations corroborates the holding of In the Matter of Maloney (2005) 4 Cal. State Bar Ct. Rptr. 774, 787 that willfulness in violating an order requires respondent’s actually knowing it's final.

The other major case construing Penal Code section 7 willfulness People v. Garcia (2001) 25 Cal.4th 744 examined whether a sex offender’s violation of the mandatory registration laws was willful if the sex offender should have known the requirement, having received instruction and given acknowledgement. Garcia noted that the courts construe willfully, in appropriate statutory contexts, to include negligent or at least criminally negligent conduct. Garcia held that even criminally negligent conduct would not have satisfied the willfulness requirement. After reviewing cases involving willfulness without actual knowledge of the command disobeyed, the Garcia court concluded exceptions to the actual-knowledge requirement could apply only where the statutory violation consists of an affirmative act, as contrasts with an omission. (People v. Garcia, supra, 25 Cal.4th at p. 752 ["These cases generally involved affirmative acts, not a mere failure to act."].)

Section 6103 commands acts of obedience to court orders, and violating section 6103 involves failure to perform these acts of obedience. This comment on the statute’s grammar holds true, even if the order object of disobedience prohibits rather than commands action. The State Bar commits sleight of hand, typically skipping the grammar of the statute and analyzing the order’s grammar instead of the statute’s. Under Garcia, willfulness in failing to perform specific acts, such as obeying specific court orders, requires knowledge of what is commanded and that it is commanded. (Garcia, supra, at p. 752.)