Calaway, In re

• Decision Date: 16 November 1977
• Citation: 141 Cal.Rptr. 805,570 P.2d 1223,20 Cal.3d 165
• Court: California Supreme Court
• Parties: , 570 P.2d 1223 In re Martin C. CALAWAY, on Disbarment. L.A. 30796.

Page 805

141 Cal.Rptr. 805

20 Cal.3d 165, 570 P.2d 1223

In re Martin C. CALAWAY, on Disbarment.

L.A. 30796.

Supreme Court of California, In Bank.

Nov. 16, 1977.

Donald B. Caffray, Long Beach, for petitioner.

Herbert M. Rosenthal, San Francisco, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be disbarred. Petitioner, who was admitted to the practice of law in 1956, was convicted in federal district court of violating 18 United States Code section 1955 (conducting, financing, managing, supervising, directing or owning an illegal gambling business) and 18 United States Code section 371 (conspiring to violate § 1955). The conviction was affirmed on appeal and is now final. (Although petitioner has applied for a writ of habeas corpus in federal court, based on alleged incompetence of trial counsel, the pendency of this petition does not affect the finality of his conviction.) On May 1, 1975, we referred the matter of petitioner's conviction to the State Bar for hearing, report, and recommendation on the question whether the facts and circumstances surrounding the commission of the offenses involved moral turpitude or other misconduct warranting disciplinary action. (See Bus. & Prof.Code, §§ 6101, 6102; Cal.Rules of Court, rule 951(c), (d).)

A local administrative committee, following a hearing, found that petitioner "was actively involved in the criminal conspiracy of which he was convicted, such activity including financing, managing, counselling, and supervising an illegal gambling operation." The committee further found that petitioner "willfully and knowingly" engaged in the conspiracy and illegal gambling operation: that he made his legal services available to further the conspiracy and to counsel and protect his coconspirators; that he assisted in locating customers for the game and ultimately received some of the proceeds thereof; and that he improperly used conservatorship funds to finance the operation. The committee concluded that the offenses of which petitioner was convicted involved conscious and willful acts of moral turpitude on petitioner's part, and recommended that he be disbarred.

The disciplinary board voted to approve and adopt substantially all of the committee's findings and also specifically found that the facts and circumstances surrounding petitioner's offenses involved moral turpitude. The board, by a vote of nine to four, recommended that petitioner be disbarred. (The dissenters would have recommended less severe punishment.) Petitioner now contends that the record fails to support the findings of fact, that the offenses at issue did not involve moral turpitude, and that the recommended discipline is excessive.

The record discloses that petitioner and his coconspirators were involved with an unlawful gambling operation in the San Fernando Valley. Although petitioner denied (and continues to deny) his knowledge of, or participation in, the illegal conspiracy, the federal court convicted him of both the substantive offense of illegal gambling as well as conspiring to commit that offense. A review of the record in the federal case discloses sufficient evidence from which the following facts reasonably may be inferred: Petitioner participated in the preliminary discussions between the coconspirators which ultimately led to the formation of the unlawful gambling operation. Among other things, the parties discussed during these meetings the financial contributions which each would make, and their respective shares of the proceeds. Petitioner was to contribute $20,000 as his share, consisting of $10,000 in cash and $10,000 in legal services in return for his contribution, petitioner would receive from 20 to 25 percent of the "take."

Petitioner, with knowledge of coconspirator John Vaccaro's status as a professional gambler and his intent to set up an unlawful gambling operation, loaned $7,500 to him, at least $2,500 of which was actually used to fund the game. Petitioner ultimately invested $5,000 and received in return some of the proceeds from the illegal gambling. Petitioner gave nonlegal advice to the coconspirators regarding the practical aspects of their illicit endeavors, including the obtaining of gambling equipment, chips, and customers to frequent the new establishment, and the purchase of "sanction" or protection from the police. Petitioner also gave legal advice to the coconspirators regarding the illegal nature of the proposed operation and the necessity of concealing its activities.

The dice and card games operated by petitioner's coconspirators were "rigged" to cheat the customers and increase "house" profits. From petitioner's close association with coconspirator Vaccaro, and his financial interest in the operation, it may reasonably be inferred that petitioner was aware that such cheating of customers occurred.

In addition to the foregoing, the record indicates that the $7,500 loan from petitioner to Vaccaro came from funds held by petitioner as conservator of the estate of an 86-year-old incompetent; that these funds were disbursed without the knowledge or approval either of the conservatee or of the court with jurisdiction over his affairs; that the loan was not disclosed by petitioner's subsequent accountings; and that the loan was not fully repaid until after the federal prosecution had commenced.

Petitioner contends that the offenses of which he was convicted did not involve moral turpitude. Although petitioner has the burden of showing that the board's finding of moral turpitude is not supported by the evidence, the question of moral turpitude itself is one of law, ultimately to be decided by this court. (In re Hurwitz (1976) 17 Cal.3d 562, 567, 131 Cal.Rptr. 402, 551 P.2d 1234.) In this regard, it is our duty to examine independently the...