KanBARoo Court. 46A. Moral Turpitude Properly Construed

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].)

kanBARoo Court. 46th Installment. Origins of the Appearance-of-Impropriety Dogma

Understanding the California State Bar's dysfunction may lie in legal doctrine's historical course. State Bar jurisprudence reached its apogee with In re Fahey (1973) 8 Cal.3d 842, immediately descending thereafter, and accelerating with In re Rohan (1978) 21 Cal.3d 195, irresistibly influenced by conformity with the national Bar establishment. (Id., at p. 204 [citing "the recommendation of the American Bar Association, as promulgated by the Standing Committee on Professional Discipline"].) Rohan marked the ascendance of the mere-appearance-of-propriety doctrine, central to present State Bar law: bureaucratic reflex, moralism, and legal indifference.

The tabulation of "Observations and Inferences" at the 40th Installment" displays the centrality of the Bar's commitment to discipline for the mere appearance of impropriety. Discipline expressly and tacitly based on this doctrine explains most of the State Bar's other faults. No legal sophistication, only bureaucratic intransigence, is needed when mere appearance suffices to constitute a disciplinable offense. To be accused is to be guilty because leading to accusation, the lawyer's conduct has appeared improper.

In re Fahey, a case dismissed because the court found moral turpitude absent, involved a respondent who didn't file federal income taxes for three years. As Fahey stated and earlier cases suggested, the Supreme Court interpreted Business and Professions Code sections 6101 and 6102 to mean a "[r]espondent is subject to discipline only if he committed a crime involving moral turpitude ... or an act involving moral turpitude, dishonesty, or corruption." (Fahey, at p. 849.) The court defined moral turpitude as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (Ibid.) While in itself vague, the moral-turpitude standard gained precision in a previous case, which held, "To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law." (In re Higbie (1972) 6 Cal.3d 562, 570.)

Fahey, still good law except on the point Rohan overruled, has holdings countering today's State Bar practice. As against cases inferring turpitude from repetition, for example, Fahey held, "There must be more than mere repetition of the same acts to differentiate the offending attorney who is guilty of moral turpitude from the one who is not." (Fahey, supra, at p. 851.) Most importantly, Fahey criticized the:

Several courts [that] have invoked in support of this ground for discipline the precepts of the former Canons of Ethics of the American Bar Association "to uphold the honor and to maintain the dignity of the profession" (Canon 29) and to "observe ... the statute law" and maintain "fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen." (Canon 32)" (Id., at pp. 852-853.)

Offenses that do not involve moral turpitude or affect professional performance should not be a basis for professional discipline simply because they may in some way impair the public image of the profession. Otherwise the imposition of discipline may tend to be influenced by the degree to which the offense has become known to the public. [Citation.] Our standard of moral turpitude depends not on popular impressions but on the violator's own motivation as it relates to his moral fitness to practice law. [Citation.] (Fahey, supra, at p. 853.)

In contrast, Rohan's lead opinion said — over-ruling Fahey's narrow moral-turpitude standard:

An attorney as an officer of the court and counselor at law occupies a unique position in society. His refusal to obey the law, and the bar's failure to discipline him for such refusal, will not only demean the integrity of the profession but will encourage disrespect for and further violations of the law." (Rohan, supra, at p. 203.)

In dissent Acting Chief Justice Tobriner, joined by Justice Mosk, pointed out:

An offense may breach the defendant's duty to society, yet bear no significant relation to fitness to practice. A leading example is Hallinan v. Committee of Bar Examiners ... in which we admitted an applicant to practice law despite prior convictions for assault, battery, disturbing the peace, and trespassing. Conversely, a relatively minor offense may reflect on the practice of law..." (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk continue:

The requirement of a specific nexus between the attorney's conduct and the practice of law should not be evaded by assertions that such conduct demeans the integrity of the legal profession or constitutes an example which may encourage others to violate the law. Such assertions merely concoct a method by which a transgression unrelated to legal practice can be magnified by unproven and hypothetical conjectures as to its effect on the opinions of others. (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk argue that a broader standard for discipline violates the constitutional principle that the California Supreme Court repeatedly enunciated:

that a person can be barred from the practice of his profession only for reasons related to his fitness or competence to practice that profession [Citation]: to allow discipline for unrelated conduct on the ground that it demeans the integrity of the profession would detract from that fundamental principle. (Ibid.)

The influence of the mere-appearance-of-impropriety doctrine continued to mount. In re Kelley (1990) 52 Cal.3d 487 imposed discipline for repeated intoxicated driving. The Kelley court stressed the way impropriety looks to others, stating:

We think it clear that attorneys should realize that repeated failure to conform their conduct to the requirements of the criminal law and court orders specially imposed on them may call into question their integrity as officers of the court and their fitness to represent clients." (Id., at p. 497.)

Justice Panelli dissented vigorously, calling for dismissal, in words that any respondent opposing State Bar oppression should recall:

In imposing discipline for conduct which may affect petitioner's future performance of her duties, although it has not yet affected her performance, the majority embarks on a dangerous journey… We simply have no right to declare ourselves higher guardians of the 'public safety' and increase the criminal law's punishment for the sole reason that this particular driver happens to be a member of the bar… To discipline this attorney for conduct that may in the future impair her practice of law, without disciplining all attorneys for the same reason, presents insurmountable problems of consistency and fairness. (Kelley, supra, at pp. 500-501 [Dissent, Panelli, J.])

(See also, 27th Installment, "Should the Mere Appearance of Impropriety Constitute an Ethical Infraction.")

kanBARoo Court. 45th Installment. The Common Vagueness Problem for Moral Turpitude and Obscenity

Determining the limits of moral turpitude encounters line-drawing problems similar to determining the constitutional definition of obscenity. Vagueness threatens both definitional enterprises. A statute is vague when it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." (United States v. Hariss (1954) 347 U.S. 612, 617.) An ineliminable vagueness may infect pornography regulation, as over decades of deliberation, no jurist has proposed an adequate definition. As for moral turpitude, the California courts have always admitted they cannot define the term. Is "moral turpitude" vague? While the problems of defining obscenity have chagrined our highest court's justices, the courts appear unconcerned about moral turpitude's conceptual reliability.

Justice Brennan set out the modern framework for constitutional regulation of pornography in Roth v. United States (1957) 354 U.S. 476. The different lines of interpretation were also set out in that case or subsequent ones, with alignments sometimes unexpected from the justices’ broader ideological commitments. Chief Justice Warren took a moderately conservative position on this issue, arguing in Jacobellis v. State of Ohio (1964) 378 U.S. 184, 192, for using local rather than national standards. Justice Brennan's lead opinion, in both Roth and Jacobellis, is itself moderate at most. Justices Black and Douglas opposed all censorship with an argument impugned only by the country's historical acceptance of anti-obscenity laws, adopted by all states. Brennan had admitted that the purpose of anti-obscenity laws was to avoid instigating impure thoughts. With this concession, how could the defenders of censorship claim obscenity was unprotected because of its lack of social value? Indifference to thought crimes is the foundation of free speech, and the state's abstention from evaluating speech's social value, the right's core. Justice Stewart had stated what many think emblematic of the pornography debate, when, in his concurring opinion in Jacobellis, he wrote, "I know it when I see it." This position comes rather close to the way the California courts identify moral turpitude. But like quotes of the Oliver Wendell Holmes Jr.'s remark about free speech not including the right to yell "fire" in a crowded theater, Stewart's remark is usually quoted out of context. Holmes had actually proscribed yelling fire in a crowded theater only when no fire existed. Similarly, Stewart had said, "But I know it [hard core pornography] when I see it, and the motion picture involved in this case is not that." Stewart's remarks defended his opinion that the movie was not obscene, and the out-of-context quote is misleading.

If Stewart's misunderstood comment is the most famous part of the pornography debate, the evolution of Justice Brennan's position is the most interesting. Justice Brennan ultimately abandoned the Roth framework. In dissent in Paris Adult Theatre I v. Slaton (1973) 413 U.S. 49, he assumed a stance close to Black, Douglas, and Stewart and analyzed the failure of the attempts at definition. Black and Douglas — and more subtly, Stewart — had argued that obscenity laws were capricious because obscenity still begged for definition. Brennan, unlike Justices Black and Douglas, still believed in principle that the state's police power included the right to prohibit obscenity, but Brennan now believed objective definition was impossible. Without objective definition, prohibition was unconstitutional. In his Paris Adult Theatre dissent, Justice Brennan considered how possible changes in constitutional anti-obscenity standards would affect the laws' defects and viability. The first of Brennan's thought experiments answers why vagueness controversy does not besiege the moral turpitude standard. Brennan's analysis shows that the definition of obscenity could achieve adequate precision only by resolving every doubt in favor of the state's right to censor.

This correlation between precision and scope determined the evolution of the moral turpitude standard. Consider as example, willful failure to pay income taxes. Does it constitute moral turpitude, warranting attorney discipline? The California Supreme Court confronted this issue for the first time in In re Fahey (1973) 8 Cal.3d 842. Since Fahey had not lied or intended to defraud — other matters and personal disorganization harried him — the Supreme Court unanimously decided to dismiss the case. The court also based dismissal on the further holding that attorneys should face discipline only for acts of moral turpitude, interpreted to reflect characterological unsuitability for law practice. Five years later, the California Supreme Court unanimously decided to discipline an attorney for a similar failure to pay income taxes. (See In re Rohan (1978) 21 Cal.3d 195.) The lead opinion justified discipline by renouncing moral turpitude as the sole basis for discipline. Rohan was not culpable for moral turpitude, but his crime warranted discipline for other reasons. A concurring opinion by Tobriner and Mosk opposed abandoning the exclusive moral-turpitude standard for discipline, yet still favored imposing discipline on Rohan because these concurring jurists understood willful failure to pay income taxes to involve moral turpitude. Although differing on criteria, the justices closely agreed on the level of discipline, which involved a 60-day actual suspension.

Brennan had predicted a clear definition of "obscenity" would cost an increase in its reach. This extension occurred in First Amendment obscenity cases, when the Burger court moved the standard from the complete absence of redeeming social value to lacking serious value and from a national standard of community opinion to local standards. The concept of moral turpitude has undergone the same change, both by broadening moral turpitude's definition and supplementing the standard to broaden discipline's sweep. The courts have avoided vagueness in the moral-turpitude standard by broadening the concept or its surrogate to include borderline cases.