Higbie, In re

• Decision Date: 04 February 1972
• Citation: 493 P.2d 97,99 Cal.Rptr. 865,6 Cal.3d 562
• Parties: , 493 P.2d 97 In re Richard Alden HIGBIE on Suspension of License. L.A. 29892. In Bank
• Court: California Supreme Court

Page 865

99 Cal.Rptr. 865

6 Cal.3d 562, 493 P.2d 97

In re Richard Alden HIGBIE on Suspension of License.

L.A. 29892.

Supreme Court of California,

In Bank.

Feb. 4, 1972.

Blair T. Barnette, Newport Beach, Higbie & Higbie and Suzanne Robinson, Balboa Island, for petitioner.

F. LaMar Forshee, Herbert M. Rosenthal, Ronald W. Stovitz and Christopher M. Reuss, San Francisco, for respondent.

PER CURIAM.

In this disciplinary proceeding we must consider whether the course of conduct of an attorney culminating in his conviction for failure to pay a federal marijuana transfer tax involves moral turpitude, and if so, the nature and extent of the appropriate discipline. We conclude that failure to pay the tax does not constitute moral turpitude per se, but that respondent attorney's conduct does reflect moral turpitude. Because the dominant legitimate motivation for respondent's wrongful behavior was apparently not personal profit and because respondent's professional record serves as a mitigating factor, we conclude that he should not be disbarred but that he should be suspended from the practice of law for two years, with an actual suspension of one year.

We draw the facts from the State Bar's brief, from respondent's testimony before the special administrative committee assigned to hear his case, and from 14 letters submitted to the State Bar by persons known to respondent in professional or community relationships. Both the Bar and respondent have stipulated to the 'essential truth' of the facts presented in these sources.

Respondent has practiced law in Orange County since his certification by this court in 1958. During this time, even during the period following his conviction for the offense now under consideration, he has enjoyed an excellent reputation among members of his community. In particular, his clients and fellow attorneys have expressed a high regard for his competence, trust-worthiness, and unselfishness, as well as for his willingness to provide professional services to those in need. As the facts to follow will disclose, respondent's excessive exercise of the last of these characteristics may well account for the conduct that led to this proceeding.

Among the persons whom respondent has helped over the years is John Bagley, a free lance pilot whom respondent has assisted since 1956 by providing loans, jobs, referrals for jobs, and occasional legal representation. In July 1968 Bagley, whose wife and mother faced serious illnesses, approached respondent with a request for a $200 loan. At this time respondent's investments were in unfortunate condition; moreover, Bagley stood in considerable debt to respondent. For these reasons respondent refused to lend the requested sum but suggested that he might be able to locate work for Bagley.

In the months prior to Bagley's request for a loan, respondent became socially acquainted with a group of young adults who evidently desired to obtain sources of marijuana for themselves and for distribution to others. Although respondent did not smoke marijuana himself, these friends and acquaintances, knowing of respondent's interest in private aviation, occasionally suggested to respondent that he put them in touch with any pilot who would be willing to fly marijuana from Mexico.

In response to Bagley's requirement for financial assistance, respondent told him of these friends and their request. Respondent apparently entertained immediate second thoughts about this reference, but Bagley during the following week constantly urged respondent to complete the reference, citing his urgent need for funds. Respondent finally agreed to sponsor a meeting in his office between Bagley and these persons. At that meeting Bagley and the friends conceived of a tentative plan to smuggle marijuana into the United States. Respondent himself, however, after introducing the parties, left the meeting and did not assist in formulating the plan.

Immediately after this meeting Bagley called the United States Customs Service. He represented to the federal officers that an old friend had just contacted him and requested that he assist in smuggling marijuana. Evidently the bounty offered by the Customs Service for assistance in apprehending smugglers motivated Bagley; indeed, Bagley had similarly betrayed another 'friend' four or five years previously, collecting a substantial sum for his performance as informer. As a result of Bagley's call in the instant case, the Customs Service provided him with a recorder with which to record all future conversations with respondent.

Over the next three months Bagley and respondent's friends worked toward fruition of the smuggling plan. Although respondent himself expressed his desire not to participate, Bagley succeeded in preserving respondent's involvement in the scheme up to the moment of its attempted completion. In order to maintain respondent's role in the conspiracy Bagley asserted his urgent requirements for money, his distrust of respondent's friends, and his need for the protection that could only come from respondent's participation in the conspiracy's transactions.

Respondent succumbed in part to Bagley's pleadings, and on one occasion lent Bagley $75 so that Bagley could re-establish his pilot qualifications, and in another instance delivered $1,000 of his friends' money to Bagley. The $75 represented a personal loan from respondent and not part of Bagley's fee from the conspirators; the $1,000 did form part of Bagley's fee.

In November Bagley and respondent's friends attempted to execute the smuggling plan. Bagley flew to Guadalajara, where one of the confederates waited with the marijuana. Although, when Bagley arrived, the Mexican Federales arrested him and his confederate, the American customs officials persuaded the Mexican authorities to release him. The authorities substituted alfalfa for the marijuana; Bagley returned to California with that substituted product, and upon his arrival in Palm Springs the American customs officials arrested the waiting confederate to whom Bagley was to deliver the marijuana.

The next day federal agents arrested respondent in his office. Respondent freely described his role in the plan, admitted the wrongfulness of his actions, and offered to cooperate in whatever way possible. He refused, however, to concede that his motivation was for any personal gain, consistently contending that his sole purpose was to assist Bagley in overcoming his financial difficulties.

In late November of 1968 a federal grand jury indicted respondent for conspiracy to smuggle marijuana with intent to defraud the United States, a violation of section 176a of title 21, United States Code. ¹

By May of 1969 respondent and the United States Attorney agreed that the government would dismiss the section 176a indictment if respondent would plead guilty to a charge of violating section 4744(a) of title 26, United States Code: ² Failure to pay the federal marijuana transfer tax. Respondent agreed to this plea bargain for two reasons: to avoid the possibility of the mandatory five-year sentence that would result from a conviction on the section 176a charge, and to avoid the publicity and delay that would attend a trial on that charge. The United States Attorney's motivation to reduce the charge apparently derived from the difficulty in proving respondent's fraudulent intent and from the possible success of respondent's establishing a defense of entrapment. ³

On June 16, 1969, the federal district court found respondent guilty of violation of the above-mentioned section 4744, ⁴ and sentenced him to a three-year probation, the first 90 days of which were to be served in jail. At the sentencing the federal judge found that respondent's 'motives were good, though they may have been misconceived or misplaced.' The judge also condemned Bagley's role in encouraging respondent's participation in the smuggling scheme.

Respondent served his term and became an exemplary probationer. His probation officer reported that respondent cooperated fully in all aspects of his rehabilitation and demonstrated his ability to represent his clients creditably. The probation officer also expressed his view that respondent had suffered enough for his errors, and did not require further discipline.

On April 21, 1970, the State Bar transmitted respondent's record of conviction to this court, as authorized by Business and Professions Code section 6101. In response to our request for briefs on the question of whether conviction of a violation of section 4744 involved moral turpitude, the State Bar asserted that failure to pay the marijuana transfer tax did Not involve moral turpitude per se. Nonetheless, the bar requested an evidentiary hearing to determine if the nature of respondent's conduct did introduce an element of moral turpitude into the offense of which he was convicted. On June 17, 1970, pursuant to Business and Professions Code section 6102, subdivision (c), we complied with this request and referred respondent's case to the bar for hearing and recommendation.

The local bar administrative committee heard this matter on November 2, 1970, finding that respondent conspired to smuggle marijuana 'for distribution and gain,' and concluding that his acts constituted moral turpitude. The committee recommended disbarment. The examiner who had presented the bar's case to this committee did not agree with these findings, specifically challenging the conclusion that respondent conspired to smuggle 'for gain,' and asserting that disbarment constituted an unnecessarily severe discipline. The bar disciplinary board agreed, revising the findings to conclude that respondent conspired to smuggle only 'for distribution' and recommending two years actual suspension of respondent's license to practice law.

In order to support a disbarment or suspension from the practice of law, the attorney must have committed a crime involving moral turpitude ...