Hallinan v. Committee of Bar Examiners of State Bar

• Decision Date: 15 December 1966
• Docket Number: S.F. 22295
• Citation: 65 Cal.2d 447,55 Cal.Rptr. 228,421 P.2d 76
• Parties: , 421 P.2d 76 Terence HALLINAN, Petitioner, v. COMMITTEE OF BAR EXAMINERS of the STATE BAR of California, Respondent. In Bank
• Court: California Supreme Court

Page 228

55 Cal.Rptr. 228

65 Cal.2d 447, 421 P.2d 76

Terence HALLINAN, Petitioner, v. COMMITTEE OF BAR EXAMINERS of the STATE BAR of California, Respondent.

S.F. 22295.

Supreme Court of California,

In Bank.

Dec. 15, 1966.

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

Marshall W. Krause, San Francisco, A. L. Wirin, Fred Okrand and Laurence R. Sperber, Los Angeles, as amici curiae on behalf of petitioner.

Herman F. Selvin, Loeb & Loeb, Los Angeles, and Kenneth D. McCloskey, for respondent.

PETERS, Justice.

Petitioner, Terence Hallinan, seeks review of the action of the Committee of Bar Examiners in refusing to certify him to this court for admission to practice law in California. (Bus. & Prof.Code, § 6066.)

Petitioner, now aged 29, graduated from Hastings College of Law and in March 1965 took and passed the bar examination given general applicants. He was not certified for admission, however, pending investigation and hearing into his possession of the 'good moral character' requisite for certification for admission. ¹

After lengthy hearings by a three-man subcommittee and a review of the entire record of those hearings and of additional evidence produced before the full Committee of Bar Examiners the latter found that petitioner did not possess the good moral character necessary for admission.

Respondent, by letter of April 21, 1966, advised petitioner 'that this Committee does hereby refuse to certify the applicant to the Supreme Court of California for admission and a license to practice law because said applicant does not satisfy the requirement of Section 6060(c) of the California Business and Professions Code that he 'be of good moral character' * * *.' The letter set forth five grounds upon which this conclusion was based. ²

The findings of the Board of Governors of the State Bar or of a committee such as respondent, while given great weight, are not binding upon this court. (In re Alkow, 64 A.C. 905, 907, 51 Cal.Rptr. 912, 415 P.2d 800; Grove v. State Bar, 63 Cal.2d 312, 315, 46 Cal.Rptr. 513, 405 P.2d 553; Linnick v. State Bar, 62 Cal.2d 17, 19, 41 Cal.Rptr. 1, 396 P.2d 33; Bodisco v. State Bar, 58 Cal.2d 495, 497, 24 Cal.Rptr. 835, 374 P.2d 803; Werner v. State Bar, 24 Cal.2d 611, 623, 150 P.2d 892.) The burden of showing that the findings are not supported by the evidence or that its decision or action is erroneous or unlawful is upon the petitioner. (In re Alkow, supra, 64 A.C. at p. 907, 51 Cal.Rptr. 912, 415 P.2d 800; In re Clark, 63 Cal.2d 610, 612, 47 Cal.Rptr. 681, 407 P.2d 993; Schullman v. State Bar, 59 Cal.2d 590, 599, 30 Cal.Rptr. 834, 381 P.2d 658; Rock v. State Bar, 57 Cal.2d 639, 642, 21 Cal.Rptr. 572, 371 P.2d 308, 96 A.L.R.2d 818; Hatch v. State Bar, 55 Cal.2d 127, 128, 9 Cal.Rptr. 808, 357 P.2d 1064; Sullivan v. State Bar, 50 Cal.2d 491, 501, 326 P.2d 138; Webb v. State Bar, 47 Cal.2d 866, 868, 306 P.2d 458.)

In disciplinary proceedings this court examines and weighs the evidence and passes upon its sufficiency. (Schullman v. State Bar, supra, 59 Cal.2d 590, 599, 30 Cal.Rptr. 834, 381 P.2d 658; Bodisco v. State Bar, supra, 58 Cal.2d 495, 497, 24 Cal.Rptr. 835, 374 P.2d 803; Black v. State Bar, 57 Cal.2d 219, 222, 18 Cal.Rptr. 518, 368 P.2d 118; Best v. State Bar, 57 Cal.2d 633, 635, 21 Cal.Rptr. 589, 371 P.2d 325; Rock v. State Bar, supra, 57 Cal.2d 639, 642, 21 Cal.Rptr. 572, 371 P.2d 308, 96 A.L.R.2d 818; Sturr v. State Bar, 52 Cal.2d 125, 127, 338 P.2d 897.) Any reasonable doubts encountered in the making of such an examination should be resolved in favor of the accused. (Black v. State Bar, supra, 57 Cal.2d 219, 222, 18 Cal.Rptr. 518, 368 P.2d 118; Brawner v. State Bar, 48 Cal.2d 814, 818, 313 P.2d 1; Browne v. State Bar, 45 Cal.2d 165, 168, 169, 287 P.2d 745; Hildebrand v. State Bar, 18 Cal.2d 816, 834, 117 P.2d 860; see also Zitny v. State Bar, 64 A.C. 852, 855, 51 Cal.Rptr. 825, 415 P.2d 521, and In re Bar Association of San Francisco v. Sullivan, 185 Cal. 621, 623--624, 198 P. 7.) These rules are equally applicable to admission proceedings.

There are some distinctions between admission proceedings and disciplinary proceedings, the essential one being that in the former the burden is upon the applicant to show that he is morally fit, whereas in the latter the burden is upon the State Bar to prove that an attorney is morally unfit. There is early authority for the proposition that the substantive standards and permissible scope of investigation in disciplinary proceedings are distinguishable in some respects from those which apply to an admission proceeding of the type here presented. It has been held, for example, that the inquiry into moral fitness in the admission process may be broader in scope than that in a disbarment proceeding. (Spears v. State Bar, supra, 211 Cal. 183, 188, 294 P. 697; In re Wells, 174 Cal. 467, 474--475, 163 P. 657; see also In re Stepsay, 15 Cal.2d 71, 75, 98 P.2d 489.) It was stated in the Wells case, and subsequently reaffirmed in Spears, that in a proceeding for admission, 'The court may receive any evidence which tends to show * * * (the applicant's) character for honesty, integrity, and general morality, and may no doubt refuse admission upon proofs that might not establish his guilt of any of the acts declared to be causes for disbarment.' (174 Cal. at p. 475, 163 P. at p. 660.) ³

Wells and Spears, as well as other California cases approving denial of admission to the bar, have been cited to demonstrate that 'good moral character' has traditionally been defined in this state 'in terms of an absence of proven conduct or acts which have been historically considered as manifestations of 'moral turpitude. " ⁴ (Konigsberg v. State Bar, 353 U.S. 252, 263, 77 S.Ct. 722, 728, 1 L.Ed.2d 810; see also In re Meyerson, 190 Md. 671, 59 A.2d 489, 490.) Since commission of an act constituting 'moral turpitude' is a statutory ground for disbarment (Bus. & Prof. Code, § 6106) and is perhaps the most frequent subject of inquiry in disciplinary proceedings, it may readily be seen that, insofar as the scope of inquiry is concerned, the distinction between admission and disciplinary proceedings is today more apparent than real. ⁵

Fundamentally, the question involved in both situations is the same--is the applicant for admission or the attorney sought to be disciplined a fit and proper person to be permitted to practice law, and that usually turns upon whether he has committed or is likely to continue to commit acts of moral turpitude. At the time of oral argument the attorney for respondent frankly conceded that the test for admission and for discipline is and should be the same. We agree with this concession. Therefore, in considering the kinds of acts which would justify excluding a candidate for admission we may look to acts which have been relied upon to sustain decisions to disbar or suspend individuals previously admitted to practice.

In order to sustain the burden of proving that he possesses good moral character, petitioner furnished the Committee of Bar Examiners adequate letters of recommendation from members of the State Bar, and introduced before the hearing subcommittee the testimony of other attorneys who knew him.

For example, a telegram from Judge Hector P. Baida, who presided over a trial in which petitioner defended himself against criminal charges stemming from his arrest during a civil rights demonstration, was introduced into evidence. In his telegram Judge Baida stated that petitioner 'represented himself throughout the proceedings of the court, applying the standards of conduct required of a member of bar. I can think of no part of his courtroom demeanor that would be subject to criticism.' Frederick J. Whisman, the assistant district attorney who prosecuted the case, testified to substantially the same effect as Judge Baida's telegram.

J. Warren Madden, a professor of law at Hastings and a retired judge of the United States Court of Claims, sent a letter recommending petitioner to the Committee of Bar Examiners. He stated in the letter that petitioner was in the top 25 percent of his graduating class, that, while his contacts with petitioner 'were not extensive,' he gained the 'impression that he was a quiet, serious and intelligent student'; that he, like any person who has passed the bar examination, 'has made a large investment of his years and his energy in pursuit of a worthy ambition,' and that if admitted one of petitioner's principal activities would be 'representation of persons whose beliefs are unorthodox or unpopular,' for which type of case, Professor Madden went on to say, there has never been an adequate number of able and willing lawyers.

Joseph R. Grodin, a practicing attorney, taught a course in labor law at Hastings in which petitioner was enrolled. He testified that during that course he found petitioner to be 'intelligent, alert, capable of dealing objectively with legal problems.' Nothing in his classroom behavior, in Mr. Grodin's opinion, indicated anything which reflected negatively upon petitioner's qualification for the bar. The witness testified to his further opinion that petitioner 'would make a very good lawyer.'

State Assemblyman Willie Brown, also an attorney and with whom petitioner had worked in the civil rights movement, testified that there was nothing in petitioner's conduct in connection with the movement that would disqualify him from admission to the bar. John A. Burton, also a state assemblyman and an attorney, testified that he had worked with and observed petitioner in various political activities; that petitioner's conduct during those activities was peaceful; and that he knew of nothing that would disqualify petitioner from admission to the bar.

This evidence established a prima facie case on petitioner's behalf. ⁶ This is admitted by respondent.

The findings of the respondent disclose that the conclusion that petitioner 'has...