Hallinan, In re

CourtUnited States State Supreme Court (California)
Citation272 P.2d 768,43 Cal.2d 243
Decision Date09 July 1954
PartiesIn re HALLINAN. S. F. 19053.

Dreyfus, McTernan & Lubliner and Benjamin Dreyfus, San Francisco, for petitioner.

Gladstein, Andersen & Leonard, George R. Andersen, Norman Leonard, Charles R. Garry and James Martin MacInnis, San Francisco, amici curiae on behalf of petitioner.

Garrett H. Elmore, San Francisco, and Herman F. Selvin, Los Angeles, for respondent State Bar.

TRAYNOR, Justice.

Vincent W. Hallinan was charged by indictment with violating section 145(b) of the Internal Revenue Code, 26 U.S.C. § 145(b) 1 by 'willfully and knowingly fil(ing) false and fraudulent income tax returns.' The jury found him guilty as charged on five counts of the indictment. The court sentenced him to 18 months imprisonment on each count, the sentences to run concurrently, and fined him $50,000. He did not appeal, and the time for appeal has now elapsed. The State Bar filed with this court a certified copy of the indictment and judgment of conviction, contending that it calls for Hallinan's disbarment under sections 6101 2 and 6102 OF THE BUSINESS AND PROFESSIONS CODE3. These sections provide for the summary disbarment of attorneys who are convicted of 'a felony or misdemeanor, involving moral turpitude * * *.' Hallinan objects to the entry of an order of disbarment and moves that the proceeding be dismissed on the grounds that he is being deprived of equal protection of the laws, that the term 'moral turpitude' in sections 6101 and 6102 is too vague, uncertain, and indefinite to meet the requirements of due process of law, and that in any event the crime proscribed by section 145(b) does not involve moral turpitude.

Hallinan has not made the required showing of discrimination to sustain his contention that he is being denied equal protection of the laws. (See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497.) He has not directly challenged by appeal or otherwise the propriety of his prosecution and conviction for violating section 145(b). Nor has he shown that others demonstrably guilty of violating that section have not been prosecuted, or that the section is administered discriminatorily against a class to which he belongs. See, In re Pearson, 30 Cal.2d 871, 876-878, 186 P.2d 401; Snowden v. Hughes, supra, 321 U.S. 1, 8, 64 S.Ct. 397; Southern Ry. Co. v. Watts, 260 U.S. 519, 526, 43 S.Ct. 192, 67 L.Ed. 375; Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220. He claims that he is being discriminated against because the State Bar has failed to file with this court the records of conviction of other attorneys prosecuted for tax offenses. Information supplied by the State Bar shows that of the five attorneys involved, a record of conviction of violating section 145(b) was filed in one case, but the attorney died before action was taken by this court, and in another an appeal is still pending. The State Bar has taken no action with respect to the remaining three, who were adjudged guilty of the offenses charged on pleas of nolo contendere. In view of Caminetti v. Imperial Mut. Life Ins. Co., 59 Cal.App.2d 476, 490-492, 139 P.2d 681, holding that a plea of nolo contendere is not the equivalent of a plea of guilty and cannot be used in another proceeding as an admission against the person so pleading, the State Bar was justified in concluding that such a plea was not the equivalent of a 'plea or verdict of guilty' within the meaning of section 6101 of the Business and Professions Code. 4

Although the problem of defining moral turpitude is not without difficulty, see, In re Hatch, 10 Cal.2d 147, 151, 73 P.2d 885; dissenting opinion of Mr. Justice Jackson in Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 95 L.Ed. 886; Schmidt v. United States, 2 Cir., 177 F.2d 450, 451, it is settled that whatever else it may mean, it includes fraud and that a crime in which an intent to defraud is an essential element is a crime involving moral turpitude. Jordan v. De George, supra, 341 U.S. 223, 227, 71 S.Ct. 703; United States ex rel. Berlandi v. Reimer, 2 Cir., 113 F.2d 429, 431; United States ex rel. Robinson v. Day, 2 Cir., 51 F.2d 1022; In re Crane, Cal.Sup., 189 P. 1072; see also, Ex Parte Wall, 107 U.S. 265, 273, 2 S.Ct. 569, 27 L.Ed. 552; People v. Wisecarver, 67 Cal.App.2d 203, 208, 153 P.2d 778. It is also settled that the related group of offenses involving intentional dishonesty for purposes of personal gain are crimes involving moral turpitude. In re Rothrock, 25 Cal.2d 588, 154 P.2d 392 (petty theft); Werner v. State Bar, 24 Cal.2d 611, 150 P.2d 892 (attempted bribe and grand theft); Moura v. State Bar, 18 Cal.2d 31, 112 P.2d 629 (forgery); Suspension of Hickman, 18 Cal.2d 71, 113 P.2d 1 (grand theft); In re McAllister, 14 Cal.2d 602, 95 P.2d 932 (conspiracy to violate the General Cemetery Act by misrepresenting cemetery lots offered for sale); Barton v. State Bar, 2 Cal.2d 294, 40 P.2d 502 (attempted extortion); Oster v. State Bar, 2 Cal.2d 625, 42 P.2d 627 (misappropriation of a client's funds); In re Shinn, Cal.Sup., 186 P. 772 (forgery); Matter of Coffey, 124 Cal. 522, 56 P. 448 (attempted extortion); In re Thompson, 37 Cal.App. 344, 348, 174 P. 86 (knowingly receiving property stolen from the mails); see also, In re Rothrock, 16 Cal.2d 449, 454, 106 P.2d 907, 131 A.L.R. 226. The fraudulent acquistion of another's property is but another form of theft in this state. Pen.Code, § 484. We see no moral distinction between defrauding an individual and defrauding the government, United States ex rel. Berlandi v. Reimer, supra, 113 F.2d 429, 430-431, and an attorney, whose standard of conduct should be one of complete honesty. McGregor v. State Bar, 24 Cal.2d 283, 288-289, 148 P.2d 865, who is convicted of either offense is not worthy of the trust and confidence of his clients, the courts, or the public, and must be disbarred, since his conviction of such a crime would necessarily involve moral turpitude.

Conversely, if a conviction for of the crime itself to warrant summary disbarment under those sections. As we said in In re Rothrock, 16 Cal.2d 449, 454, 106 P.2d 907, 910, an 'attorney's name will not be stricken from the rolls where the nature of the particular crime does not reflect a bad moral character with respect to the duties of the attorney's profession.' (Italics added.) See In re McAllister, supra, 14 Cal.2d 602, 603-604, 95 P.2d 932. The language of the statute itself clearly indicates that an attorney can be summarily disbarred only when the crime of which he was convicted involves moral turpitude. Even if it is assumed that statements in the indictment or judgment of conviction describing conduct that goes beyond the essential elements of the crime charged are a part of the 'record of conviction,' as the State Bar contends, the record of conviction is 'conclusive evidence' only when the crime itself necessarily involves moral turpitude. The provision that the record of conviction is conclusive evidence was inserted in the statute in order that this court could disbar an attorney, convicted of a crime involving moral turpitude, with out giving him further notice or hearing. In re Collins, 188 Cal. 701, 703, 706-708, 206 P. 990, 32 A.L.R. 1062. Only when an attorney is indicted for a crime the commission of which would in every case evidence a bad moral character, is the issue of moral turpitude tendered in the criminal trial. If an attorney could be summarily disbarred after conviction for a crime, the minimum elements of which do not involve moral turpitude, he would never have an opportunity to be heard on the issue on which his disbarment depends. We must assume that every jury in a criminal trial is properly instructed to convict the defendant if they find the minimum elements of the offense charged, and it would be mere speculation to conclude in any case that a jury finds a defendant guilty of conduct alleged in the indictment, proof of which is unnecessary to his conviction, merely because the jury brought in a verdict of guilty.

A similar rule has been established by the federal courts. In proceedings for the deportation of aliens twice convicted of 'a crime involving moral turpitude', 8 U.S.C.A. § 1251(a)(4), it has been held that the crime of which the alien was convicted must necessarily involve moral turpitude to warrant deportation. United States ex rel. Giglio v. Neelly, 7 Cir., 208 F.2d 337, 340-342; United States ex rel. Zoffarano v. Corsi, 2 Cir., 63 F.2d 757, 759; United States ex rel. Robinson v. Day, supra, 51 F.2d 1022; United States ex rel. Griffo v. McCandless, D.C., 28 F.2d 287, 288; see also United States v. Carrollo, D.C,, 30 F.Supp. 3, 7; United States ex rel. Valenti v. Karmuth, D.C., 1 F.Supp. 370, 373-376. In these case it is said that if by definition the crime 'does not necessarily involve moral turpitude, the alien cannot be deported because in the particular instance his conduct was immoral. * * *' United States ex rel. Robinson v. Day, supra, 51 F.2d 1022; United States ex rel. Giglio v. Neelly, supra, 208 F.2d 337, 341. The 'circumstances under which the crime was in fact committed' cannot be considered. (Ibid.) It has also been said that whether or not a crime involves moral turpitude does not depend upon unnecessary adjectives added to the indictment by a 'zealous and over careful prosecutor' United States v. Carrollo, supra, 30 F.Supp. 3, 7, for such a holding would 'make of law an uncertain thing.' United States ex rel. Griffo v. McCandless, supra, 28 F.2d 287, 288.

In re Hatch, 10 Cal.2d 147, 73 P.2d 885, is not inconsistent with the rule that the crime of which an attorney is convicted must necessarily involve moral turpitude to warrant summary disbarment. The Hatch case was not a summary proceeding, since Hatch was given a hearing before this court and an opportunity to show that he was not guilty of moral turpitude.

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