Unfit to Practice?

Gary Douglass Grant is a lawyer with a big problem.

In 2007 the civil litigator and former captain in the Army Reserves, now 56, was a JAG lawyer assigned to Los Alamitos Army Airfield when an Immigration and Customs Enforcement (ICE) operation in Virginia tracked hits on approximately 18 commercial child pornography websites. ICE agents in Project Flicker, as it was known, located a number of active and retired military members, civilians, and contractor employees - several of whom had Top Secret or higher clearances - who allegedly used their military email addresses to register for PayPal accounts to access the images.

One of the 16 individuals identified that summer was Gary Grant. A search of computers at his Aliso Viejo home revealed that he had sent over the Internet an image depicting minors engaged in sexually explicit conduct; Orange County sheriff's deputies arrested him a year later. Investigators had found that between 2001 and 2007 Grant accumulated more than 100,000 digital pornographic images, much of it legal adult material. But mingled among those images were pornographic pictures of children. An analyst who examined the seized files found 19 photos and a videotape of youths who appeared to be between 14 and 16 years old - "possibly minors."

The Orange County District Attorney charged Grant with three counts of California Penal Code section 311.11(a), possession of obscene matter of a minor in a sexual act. Prosecutors gave Grant and his lawyer a CD with at least 100 sexual images of children retrieved from Grant's computers.

From the outset, Grant gave specific orders to his criminal defense attorney: "Defend this to the nth degree, because no way, no how, did I knowingly possess child pornography."

Ultimately, though, Grant conceded there were sexual images of underage girls on his computer. He said he had found the photos repugnant and deleted them. But even deleted images may remain on a hard drive, and that's where forensic computer analysts in this case located them. In April 2009 Grant admitted he had temporarily possessed two "unsolicited electronic images" of children, received by email while he was downloading other pornography. He pleaded guilty to one count of felony possession; prosecutors agreed to drop the other two charges. The judge sentenced Grant to 90 days in jail and three years of probation, and ordered him to register as a sex offender for the rest of his life. He did not appeal his conviction or sentence.

Grant joined a twelve-step fellowship known as Sex and Love Addicts Anonymous. But by autumn he had violated the terms of his probation by downloading adult pornography to his computer and by "sex-texting" two former girlfriends. The violations brought Grant an additional 183 days of jail time - more than twice his original sentence.

Based on the felony conviction, the State Bar of California automatically placed Grant on interim suspension pending further disciplinary proceedings. A State Bar Court trial judge later recommended that Grant be disbarred because his felony involved moral turpitude. His lawyer challenged that characterization, and the severity of the discipline. When the Review Department recommended only a suspension, the prosecutors appealed. Now Grant's case is pending before the state Supreme Court, where it has been fully briefed and awaits oral argument. (In re Grant, No. S197503 (Cal. Sup. Ct).)

At issue is the State Bar's ability to exact the ultimate sanction - disbarment - pursuant to a summary procedure that permits neither consideration of mitigating factors nor whether that sanction is appropriate. What began as one man's compulsion to accumulate pornography has become a challenge to the moral-turpitude-per-se standard, and the State Bar's procedures associated with it. Ultimately the Grant case could result in changes to disciplinary proceedings that affect hundreds of matters.

Five months after Gary Grant's guilty plea in criminal court, the State Bar's chief trial counsel sent his record and a brief to the State Bar Court's Review Department, arguing that the attorney's felony conviction amounted to moral turpitude per se - a classification warranting summary disbarment. Even though the trial counsel's brief was unopposed, the Review Department provided Grant with a hearing.

During a four-day trial in July 2010, State Bar prosecutors called Grant's story of innocent receipt of two unsolicited images of child pornography "absurd." They argued that Grant actively sought child pornography, stored it on several computers, and emailed it to other user accounts. Rather than present the images at trial, however, prosecutors relied on testimony from a single witness, a forensic computer analyst from the Orange County District Attorney's office who described the seized images she had viewed.

Grant's lawyer, Michael G. York of Newport Beach, objected to this hearsay testimony and what he considered a violation of the rules of evidence. Because the computer files "were not brought to court," York says, "there was no opportunity to look at the images and cross-examine about them. Most importantly, the judge making the decision was not able to see the images."

In response, prosecutor Margaret P. Warren told the court, "We cannot produce what we have never had custody or control over - to wit, the images themselves. I thought that was abundantly clear." Warren argued that Grant and his counsel had the right and opportunity to access and even copy the images during the criminal case - and that, she contended, should have been enough.

In October 2010 the hearing judge recommended Grant's disbarment, and York appealed. The following September a Review Department panel concluded that, as a case of first impression in California, felony possession of child pornography does not involve moral turpitude per se. The panel reversed the trial court's disbarment recommendation, finding that "no California decision addresses classification of this crime for attorney discipline purposes."

Review Judge Catherine D. Purcell of San Francisco wrote, "Absent proof that Grant sought out child pornographic images, displayed a sexual interest in children, or otherwise intended to harm a minor, we do not believe the facts and circumstances surrounding his conviction support a moral turpitude finding."

In addition, Judge Purcell ruled the forensic analyst's testimony about the ages of the subjects in the pornographic images "was not admissible because it amounted to an improper lay opinion." Noting that possession of child pornography "is a reprehensible crime," she concluded nevertheless, "it does not, in every instance, involve moral turpitude." Bar discipline for these cases, she stated, historically shows a broad range of actions - from public reproval to disbarment - depending on circumstances. The panel recommended a two-year actual suspension and three years of probation. (In the Matter of Grant, No. 09-C-12232 (State Bar Ct. opinion and order at p. 4).)

The chief trial counsel petitioned the state Supreme Court for review. Arguing for respondent Grant, York contended "simple possession" of child pornography is not a crime of moral turpitude per se, and that, under the circumstances, his client's two-year suspension from practice was appropriate. The trial counsel requested that the Supreme Court rule for the first time that possession of child pornography involves moral turpitude per se, and therefore warrants summary disbarment - a ruling that would permit summary disbarment in all future cases.

"It appears to me," York says, "that the State Bar has been trying for several years to establish that child porn is moral turpitude per se. They are using Grant's case as a vehicle to resolve the issue."

Since the middle of the last century the California Supreme Court has 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." (In re Craig, 12 Cal. 2d 93, 97 (1938).)

Some criminal offenses are so serious they amount to moral turpitude per se - grounds for summary disbarment. These include felony convictions for grand theft, forgery, perjury, fraud, and, of course, first-degree murder. But what constitutes "baseness, vileness or depravity in the private and social duties" has evolved along with social conventions.

Forty years ago, for instance, a conviction for possession of marijuana was often a felony, and grounds for disbarment. Today, simple possession of pot is a misdemeanor of little note or consequence. Conversely, drunken driving in the era of the three-martini lunch was largely overlooked. Today, DUI may or may not be an act of moral turpitude that results in disbarment. (In re Kelley, 52 Cal. 3d 487 (1990).)

Over the years, prosecutors at the State Bar have interpreted moral turpitude by applying U.S. Supreme Court Justice Potter Stewart's definition of obscenity: They know it when they see it. (See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring).)

In his brief to the state Supreme Court seeking reinstatement of Grant's disbarment, State Bar trial counsel Mark Torres-Gil acknowledged the "somewhat wooly and unwieldy nature of the moral turpitude definition." But he maintained that it "enables us to identify those attorneys who are unfit to practice law, so that discipline can be imposed to protect the public, bench and bar from future misconduct." (In re Mostman, 47 Cal. 3d 725, 736 (1989).)

During Grant's trial, prosecutor Warren had told the State Bar Court, "Child pornography laws are really less about the pornography, in the commonly understood sense of, you know, naughty postcards depicting adults cavorting, than [they are] about the sexual predation on and sexual abuse of children." Possession of pornographic images of minors, she argued, "supports an evil industry that's based on the sexual abuse and exploitation of children."

According to Torres-Gil's brief, consumers of child pornography are "indistinguishable" from those who produce it. Consumers and producers of child pornography, he argued, "are part and parcel of a continuum of criminal behavior, and synergistically connected in their mutual aim to economically sustain a commercial industry aimed at the sexual manipulation and exploitation of current and future generations of children."

In recent years, the preponderance of lawyers disciplined for possession of child pornography have been disbarred. Since 2007, 13 of 18 attorneys - including one judge - facing disciplinary proceedings for possession were disbarred (including 5 who had offered to resign with charges pending); 2 others were allowed to resign, 1 was suspended, and 2 cases remain under review.

However, summary disbarment has rarely been invoked in such cases. None of the 33 lawyers automatically disbarred from August 2011 to July 2013 had been convicted of possessing child pornography, and only 3 cases stemmed from child-related crimes: lewd acts with a child, meeting a child for lewd purposes, and distributing child pornography. (The most common grounds for per se disbarment have been forgery, grand theft, and a variety of frauds.)

Decades ago, state bars nationwide commonly used summary disbarment to discipline attorneys who engaged in acts defined as moral turpitude. But in 1983 the American Bar Association revised its Model Code of Professional Responsibility, adopting Model Rules of Professional Conduct that no longer used the term "moral turpitude."

State bars slowly adopted the ABA Model Rules, abandoning automatic disbarment as well. The revised Model Rules state that it is misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness," or to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." (ABA Model Rules 8.4(b) and 8.4(c).)

By 2002 only New York, Mississippi, and the District of Columbia retained the practice of automatic disbarment. (New Jersey has had a judge-made disciplinary rule since 1979 that mandates disbarment for lawyers who knowingly misappropriate client funds.) In New York, the appellate division recently affirmed automatic disbarment in a case involving a lawyer who pleaded guilty to drunken driving. (In the Matter of Brunet, 965 N.Y.S. 2d 734 (N.Y. Sup. Ct., App. Div. 2013).)

California has gone back and forth on the issue. In 1939 the state Legislature provided for automatic disbarment, but in 1955 it adopted a standard "according to the gravity of the crime and the circumstances of the case." (Stats. 1955, ch. 1190, § 2, pp. 2201-2202.) Only in 1986 did lawmakers reinstate summary disbarment. (Stats. 1985, ch. 453, § 15, p. 1754.)

Possession of child pornography wasn't even a crime in California until 1989; violations involved moral turpitude, but they were punishable only as misdemeanors. (Stats. 1986, ch. 1180, § 2, p. 130880.)

In 1996 the Legislature again amended the Business and Professions Code, deleting the requirement that offenses subject to discipline be committed in the course of the practice of law, and adding moral turpitude as a ground for summary disbarment. "[T]he Supreme Court shall summarily disbar the attorney if the offense is a felony under the laws of California, the United States, or any state or territory thereof, and an element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement, or involved moral turpitude." (Cal. Bus & Prof. Code § 6102(c).)

Since that change, the State Bar Court has adhered to the new standard. "Summary disbarment pursuant to ... section 6102(c) is a recognition by the Legislature that the very status of an attorney's final conviction of a felony involving moral turpitude or comparable criminal law elements warrants disbarment without any evidentiary hearing or consideration of surrounding circumstances." (Matter of Paguirigan, 1998 WL 898822 at *4 (State Bar Ct.).)

On appeal of Paguirigan, the state Supreme Court stated, "The only notice which the accused attorney is to have under [section 6102(c)] is that which he receives on the trial of the criminal charge of which he has been convicted." Such notice, the court ruled, "answers the constitutional requirement that he shall have due process of law before he can be deprived of his right to practice." (In re Paguirigan, 25 Cal. 4th 1, 9 (2001).)

Jessica's Law - a comprehensive sex-offender statute passed by initiative in 2006 as Proposition 83 - then tested the boundaries of that due process standard. Among the measure's provisions, it amended section 311.11(a) of the Penal Code to redefine possession of child pornography from a public offense to a felony. Though prosecutors still had the option to charge violations as a misdemeanor, lawyers convicted of felony possession could now be disbarred without a hearing.

Two years after California enacted Jessica's Law, Gary Grant's disciplinary matter hit the State Bar Court. Acting on its own motion, the Review Department - apparently relying on rules of court permitting it to act "on specific issues when necessary" - classified the felony as one that may or may not involve moral turpitude. (Rules Proc. St. Bar 5.340-5.345.) The effect was to allow Grant a hearing.

Increasingly, legal ethics experts are promoting such flexibility. "I don't agree, in general, with per se disbarment rules," says Richard Zitrin, a professor of legal ethics at UC Hastings College of the Law in San Francisco. "They afford no discretion. Rules that don't allow discretion - particularly judicial discretion - tend to be not good rules."

Noting New Jersey's requirement of summary disbarment for any attorney found to have misappropriated client funds, Zitrin says that in such cases authorities have no ability to consider extenuating circumstances that might include alcoholism, drug use, or depression. By contrast, he says, the District of Columbia bar considers mitigation by a showing of alcoholism or drug use - unless the drugs are illegal. "In D.C., if you abuse Oxicodone that's prescribed, it could be mitigation, " Zitrin says. "But if you use it illegally, without a prescription, then it's not. The rule makes no sense."

Mark L. Tuft, coauthor of Professional Responsibility (Rutter Group, 2013) and a legal malpractice specialist at the San Francisco office of Cooper, White & Cooper, adds, "In my opinion, moral turpitude defies a clear definition. In the Grant case - when you get to the issue of moral turpitude that violates morals - you get into a subjective area."

Tuft, however, believes that neither the state Legislature nor the State Bar is ready to alter statutory language or the Rules of Professional Conduct. "I think that debate is not going to happen," he says. The bar is "wedded to the moral turpitude concept."

Respondents lawyers who represent attorneys before the State Bar Court worry that the current loose definition of moral turpitude permits prosecutors to broaden the offenses that warrant summary disbarment. "That's why we are where we are," says Arthur L. Margolis, a principal at Margolis & Margolis in Los Angeles who specializes in legal ethics and attorney defense. "There is no science to it," he says. "Moral turpitude really depends on the state of societal standards - and those change." (Margolis's firm advised Grant early in the disciplinary proceedings but no longer does.)

Just so, says State Bar Deputy CEO Robert Hawley, who believes the evolving nature of moral turpitude is also its greatest strength. "It's one of the benefits of using the concept," Hawley says. "Times change, standards evolve. What was despicable decades ago may or may not be despicable today. The lack of precision - having that ambiguity - has some value."

Others would like to see more nuances built into the State Bar's disciplinary proceedings. "The reason the per se issue gets problematic is that you might have someone [disciplined for possessing] one image of child pornography on a computer, and a person with 100,000 images on a computer," says Jerome Fishkin, a respondents lawyer at Fishkin & Slatter in Walnut Creek. "The explanation for having one image may be better than for having 100,000 images, but if the charge is within a per se classification, both lawyers are disbarred without a hearing."

Fishkin adds, "The per se thing is simply a bureaucratic way to dispose of a case without paying attention to the underlying facts." He argues that the state Supreme Court should reject the idea of moral turpitude per se and require examination of each claim, on a case-by-case basis.

But the State Bar's Hawley, like Tuft, sees little possibility that the standard will change in California. "Moral turpitude is alive and well in the statutory language governing attorney conduct," he says. "One can say the language is dated and derives from [attitudes] decades or centuries ago, but the concept is as modern today as ever due to its adaptability to changing times."

Respondents lawyers also worry that a disciplinary system that mandates summary disbarment for felony convictions may encourage district attorneys to overcharge lawyers accused of criminal conduct. "Because of the emotionally charged nature of the crime, possession of child pornography leads to a certain irrationality in charging," says David Cameron Carr, a San Diego sole practitioner specializing in legal ethics. The purpose of State Bar discipline, he says, is to protect the public - not to punish bad people.

Margolis agrees. "The State Bar prosecutor's office acts with the fiction that unless you make possession of child pornography a per se violation, you are condoning or excusing it," he says. If possession isn't categorized as moral turpitude per se, "it does not mean you get off, or it's condoned - it just means you get a trial."

Finally, some ethics experts claim that classifying certain matters as moral turpitude per se invites abuse of due process, making it too convenient for prosecutors to speed cases through the State Bar Court. "Unfortunately, the State Bar's Office of Trial Counsel, in my opinion, spends too much time on easy cases and not enough on tough ones," says Zitrin. Making possession of child pornography moral turpitude per se and grounds for summary disbarment, he says, "would make easy cases out of tough ones - not better [cases]."

When Gary Grant was asked at trial what he would have done differently if he'd had the chance, he told the court, "When I got on the Internet and started looking at adult images, I should have realized that I had a problem. I probably should have never looked at adult porn. And that, in itself, has corrupted the soul of society, and that caused my subsequent problems."

His attorney, York, makes the case that "simple possession [of child pornography] does not include an intent to harm, offend, or corrupt another; thus, it does not necessarily involve moral turpitude."

Prosecutors - clearly annoyed by what they view as Grant's consistent efforts to minimize the seriousness of his offense, responded: "Grant makes no mention in his supplemental brief of having been convicted of a felony; instead, he merely refers to his conviction for 'simple possession.' " They argued in their brief to the high court that moral turpitude is inherent in any conviction of felony possession of child pornography and, therefore, "a member convicted of this offense should be subject to summary disbarment."

The state Supreme Court now has the chance to decide whether Grant's felony conviction for possession of child pornography represents moral turpitude per se, or something less - thus entitling him to a hearing to determine his fitness to practice law. As with the court's confirmation of all disciplinary matters, its ruling in Grant must be given "with due regard," quoting Business and Professions Code section 6102(a), "to maintaining the integrity of and confidence in the profession."

Pamela A. MacLean is a California Lawyer contributing writer.

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