Chira, In re

• Citation: 42 Cal.3d 904,231 Cal.Rptr. 560
• Parties: , 727 P.2d 753 In re Richard I. CHIRA on Suspension. L.A. 32157.
• Decision Date: 24 November 1986
• Court: United States State Supreme Court (California)

Page 560

231 Cal.Rptr. 560

42 Cal.3d 904, 727 P.2d 753

In re Richard I. CHIRA on Suspension.

L.A. 32157.

Supreme Court of California In Bank.

Nov. 24, 1986.

Mark E. Overland and Overland, Berke, Wesley, Gits, Randolph & Levanas, Los Angeles, for petitioner.

Herbert M. Rosenthal, Truitt A. Richey, Jr., and Arthur Margolis, San Francisco, for respondent.

BY THE COURT:

This is a proceeding to review the recommendation of the State Bar Court that petitioner Richard Chira be suspended from the practice of law for one year, that the order of suspension be stayed, and that he be placed on probation for three years on specified conditions including thirty days' actual suspension.

Petitioner, who has been a lawyer for 24 years, was admitted to practice in California in 1975. On August 10, 1981, he was convicted of conspiracy to impede the lawful function of the Internal Revenue Service (IRS) in violation of 18 United States Code section 371. He was sentenced to one year probation. The conviction was affirmed by the United States Court of Appeals, Ninth Circuit, in November 1982. (U.S. v. Everett (1982) 692 F.2d 596.) We referred the matter to the State Bar for a hearing and report on whether the facts and circumstances surrounding the commission of the offense involved moral turpitude or other misconduct warranting discipline, and if so, for a recommendation as to discipline.

The hearing panel held hearings on four separate days. Petitioner presented a number of witnesses who attested to his honesty and integrity. Some, however, did not know about petitioner's conviction. Petitioner testified solely on the issue of mitigation. On the advice of counsel he refused to testify about the facts and circumstances of his conviction because of the pendency of a motion for a new trial.

The hearing panel adopted the factual statement from the opinion of the Ninth Circuit affirming petitioner's conviction: "The government's evidence at trial consisted primarily of the testimony of an undercover IRS agent who answered an advertisement in a newspaper offering tax shelter investments and was referred to appellant Everett's firm, Intervest Associates, Inc. The agent posed as the representative of a wealthy resident alien who wanted to shelter 1980 and 1981 income. The agent met with Everett, appellant Chira and two others from Intervest to discuss general tax strategies. After this initial meeting, the agent met or spoke with Everett eight times and with Chira three times to plan a tax strategy to shelter income for both 1980 and 1981.

"In March 1981, the agent asked Everett about sheltering between $150,000 and $180,000 that his fictitious client had received in taxable income for 1980. Everett told the agent that he could create a tax shelter for 1980, even at such a late date, by backdating the necessary documentation.

"After further discussions, Everett and the agent agreed on a plan to generate an $83,000 1980 tax write-off for the agent's client by combining a sale/leaseback of a Rolls Royce owned by appellant Chira and a computer sales/leaseback transaction.

"On April 16, 1981, the agent met both Chira and Everett at the Intervest offices to complete the computer and Rolls Royce transactions. Appellant Chira signed a conditional sales contract for the Rolls which was backdated to December 22, 1980. The agent received a number of documents relating to both transactions signed by Everett, Chira, and Roberta Mackey backdated to December 22, 1980. All documents signed by Everett and Chira were signed in the agent's presence on April 16, 1981, and dated December 22, 1980. After the signing of the documents, the agent gave appellants $45,000 as down payment and lease payments on the automobile and the computer. Finally, the agent, Chira and Everett went to the parking garage to inspect the Rolls Royce, at which time Chira and Everett were arrested."

An Intervest employee, Roberta Mackey, acted as trustee in these transactions. She purchased the computer equipment and the Rolls Royce in trust for the agent's client and signed a trust and fiduciary agreement which was used to create the impression that both the computer and automobile tax shelters were complete in 1980. Although petitioner prepared the trust agreement, all other documents were prepared by Intervest.

Petitioner has never admitted guilt, and has always claimed that he was duped. He perceives the whole episode as having been caused by his naivety and has been greatly embarrassed by it. He suffered such anguish that he was unable to practice law for about three years after his conviction. Petitioner underwent about 100 hours of therapy and states that he would obtain further therapy if the need were to arise.

The hearing panel found that petitioner's experience and training as a lawyer should have enabled him to analyze the proposed backdating and to have refrained from participating in the plan. It found, however, that circumstances did not involve moral turpitude, but that they did warrant discipline. The hearing panel recommended a three-year probationary period with no actual suspension.

The review department adopted the hearing panel's findings except for the finding of no moral turpitude. The review department found instead that petitioner's conduct did involve moral turpitude. It modified the recommendation as to discipline to include 30 days' actual suspension because it concluded that the record demonstrated that petitioner deliberately backdated documents and that such conduct warranted actual suspension as a condition of probation.

Petitioner challenges the finding of moral turpitude. He contends that the evidence at most reveals gross carelessness in dealing with the documents presented him and that there is no evidence that he deliberately backdated documents with knowledge of their purpose. His contention, however, is premised on his interpretation of the record in the light most favorable to his position.

Petitioner, of course, bears the burden of showing that the findings of the State Bar are not supported by the evidence. (Trousil v. State Bar (1985) 38 Cal.3d 337, 341, 211 Cal.Rptr. 525, 695 P.2d 1066.) "In meeting this burden, the petitioner must demonstrate that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty." (Himmel v. State Bar (1971) 4 Cal.3d 786, 794, 94 Cal.Rptr. 825, 484 P.2d 993.) In passing on sufficiency of the evidence, we conduct an independent review of the record, resolving all reasonable doubts in favor of the attorney. (Alberton v. State Bar (1984) 37 Cal.3d 1, 11, 206 Cal.Rptr. 373, 686 P.2d 1177; Prantil v. State Bar (1979) 23 Cal.3d 243, 246, 152 Cal.Rptr. 351, 589 P.2d 859.)

The record contains about 900 pages of transcript from petitioner's criminal trial. Petitioner's knowledge of the backdating is shown in transcripts of conversations he had with the undercover agent on April 14 and April 16, 1981, which were...