In re Paguirigan, S076968.

• Citation: 25 Cal.4th 1,17 P.3d 758,104 Cal.Rptr.2d 402
• Decision Date: 01 March 2001
• Docket Number: No. S076968.,S076968.
• Court: United States State Supreme Court (California)
• Parties: In re Cristeta S. PAGUIRIGAN on Discipline.

104 Cal.Rptr.2d 402

25 Cal.4th 1

17 P.3d 758

In re Cristeta S. PAGUIRIGAN on Discipline.

No. S076968.

Supreme Court of California.

March 1, 2001.

Pansky & Markle, R. Gerald Markle and Ellen A. Pansky, South Pasadena, for Petitioner Cristeta S. Paguirigan.

Karpman & Associates, Diane L. Karpman and JoAnne Earls Robbins, Los Angeles, as Amici Curiae on behalf of Petitioner Cristeta S. Paguirigan.

Robert Rudolph, San Francisco, for Jerome Berg as Amicus Curiae on behalf of Petitioner Cristeta S. Paguirigan.

Marie M. Moffat, San Francisco, Russell G. Weiner, Los Angeles, and Richard J. Zanassi, San Francisco, for Respondent The State Bar of California.

KENNARD, J.

The Review Department of the State Bar Court recommends that this court summarily disbar petitioner Cristeta S. Paguirigan, who was convicted of forgery, a felony.

Petitioner acknowledges that her conviction meets the requirements of the summary disbarment statute. She contends, however, that this court's past decisions require an evidentiary hearing by the State Bar Court regarding the circumstances of the crime before recommending disbarment. She also argues that the summary disbarment statute violates the principle of separation of powers because it usurps this court's inherent authority over attorney discipline. Neither contention has merit.

I.

In 1984, California admitted petitioner Cristeta S. Paguirigan to the practice of law. In 1996, while representing a client in a civil matter, petitioner forged the signature of a witness on two declarations, which she then filed with the superior court as part of an opposition to motions for summary judgment. Thereafter, in a criminal proceeding, petitioner was charged with two counts of knowingly introducing a forged document into evidence. (Pen.Code, § 132.) In November 1997, she entered a plea of no contest to one felony count of forgery. (Pen.Code, § 470, subd. (a).)

In February 1998, the record of conviction was sent to the State Bar Court, which placed petitioner on interim suspension. (Bus. & Prof.Code, § 6102, subd. (a).) Upon finality of the conviction, the Review Department of the State Bar Court (Review Department), after briefing and oral argument, recommended that this court summarily disbar petitioner.¹ The Review Department rejected petitioner's argument that a summary disbarment recommendation could be made only after a hearing concerning the facts of her conviction.

In rejecting petitioner's argument, the Review Department reconsidered its earlier decision in In the Matter of Segall (Review Dept.1992) 2 Cal. State Bar Ct. Rptr. 71. There, the Review Department stated that it would not recommend summary disbarment to this court if "Supreme Court precedent supports a lesser sanction than disbarment for the particular crime depending on circumstances which might be adduced at a disciplinary hearing." (Id. at p. 81; accord, In the Matter of Salameh (Review Dept.1994) 2 Cal. State Bar Ct. Rptr. 729, 733.) In this case, the Review Department criticized that holding, explaining that Segall appears "to convert the process of considering summary disbarment recommendations into one potentially involving extensive evidentiary considerations and speculation as to what evidentiary facts might or might not be provable," contrary to this court's precedents. Accordingly, the Review Department recommended that this court summarily disbar petitioner.

We granted petitioner's petition for a writ of review.

II.

Petitioner entered a plea of nolo contendere to one count of forgery, a felony. (Pen.Code, § 470, subd. (a).) An accepted plea of no contest results in a conviction under the summary disbarment statute. (Bus. & Prof.Code, § 6101, subd. (e).)² When petitioner committed the criminal acts leading to her conviction, subdivision (c) of former Business and Professions Code section 6102 (hereafter section 6102(c)) provided for summary disbarment of an attorney upon the finality of a felony conviction meeting these two criteria: "(1) An element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement. [¶] (2) The offense was committed in the course of the practice of law or in any manner such that a client of the attorney was a victim ." (Stats.1985, ch. 453, § 15, p. 1754.) ³ Petitioner's forgery conviction satisfies the summary disbarment requirements, and she does not argue otherwise.

Petitioner contends, however, that even when the statutory criteria for summary disbarment are met, our precedents require the State Bar Court to hold an evidentiary hearing on the circumstances of the crime before recommending disbarment to this court. The Review Department's failure to order such a hearing, petitioner argues, invalidates its summary disbarment recommendation to this court.

As discussed below, the cases petitioner cites do not support her argument. Parenthetically, those cases were decided between 1939 and 1955, when section 6102 provided for summary disbarment (then commonly referred to as automatic disbarment) of any attorney only upon finality of a conviction for a crime involving moral turpitude.

In In re McAllister (1939) 14 Cal.2d 602, 95 P.2d 932, we rejected the view of the trial judge at sentencing in the criminal proceeding that the offense of conspiracy to sell cemetery plots by false representations did not involve moral turpitude, and we ordered the attorney disbarred. And in In re Hallinan (1954) 43 Cal.2d 243, 253, 272 P.2d 768, we held that the crime of willfully and knowingly filing false and fraudulent income tax returns did not necessarily involve moral turpitude, thus necessitating a hearing before the State Bar to determine whether the facts surrounding the offense indicated moral turpitude. At issue in both cases was whether the statutory criteria for summary disbarment had been met, a question not presented in this case and that we do not here address because, as we noted at the outset, petitioner acknowledges that her forgery conviction meets the requirements of the summary disbarment statute.

With respect to In re Phillips (1941) 17 Cal.2d 55, 109 P.2d 344 and Suspension of Hickman (1941) 18 Cal.2d 71, 113 P.2d 1, which like the two cases just mentioned involved crimes of moral turpitude, the issues related to the finality of the convictions, a question not presented here.

At first glance, our decision in In re Rothrock (1944) 25 Cal.2d 588, 154 P.2d 392, appears to support petitioner's argument. After finality of Attorney Rothrock's conviction for petty theft, the State Bar recommended that this court summarily disbar him. We noted that crimes of robbery, embezzlement and other forms of theft necessarily involve moral turpitude and therefore could be decided on the record of conviction alone. Earlier, however, we had ordered the State Bar to take evidence and make findings on the issue of Rothrock's moral turpitude "because of the petitioner's assertions that he did not commit petty theft, and that the plea of guilty upon which the order of disbarment now under attack is based was made as the result of an agreement with the district attorney to accept responsibility for an offense not committed...." (Id. at p. 590, 154 P.2d 392.) Petitioner cites this statement as authority for her argument that the State Bar must hold an evidentiary hearing before it can recommend disbarment to this court. A closer reading of Rothrock proves petitioner wrong.

Attorney Rothrock had argued in this court that summary disbarment would be improper because his conviction for petty theft did not necessarily involve moral turpitude, an issue that could be resolved only by considering the circumstances of his offense. (In re Rothrock, supra, 25 Cal.2d at p. 589, 154 P.2d 392.) This court agreed that the commission of petty theft by drawing a check on an account with insufficient funds, as occurred in Rothrock, did not necessarily involve moral turpitude because the act could be done innocently, but it also concluded, based on evidence adduced at the State Bar hearing previously ordered, that Attorney Rothrock's acts were not innocently done. (Id. at p. 592, 154 P.2d 392.) In essence, the question in Rothrock was whether the statutory requirements for summary disbarment were met. By contrast, petitioner here acknowledges that her conviction for forgery satisfies the statutory requirements for summary disbarment.

As we observed earlier, the cases discussed above were decided during a period—1939 to 1955—when section 6102 provided for summary disbarment of an attorney only if convicted of a crime involving moral turpitude. Petitioner, however, also relies on a number of attorney discipline cases decided during a later period—1955 to 1986—when there was no provision for summary disbarment. Instead, section 6102 at that time provided for discipline "according to the gravity of the crime and the circumstances of the case." (Stats.1955, ch. 1190, § 2, pp. 2201-2202.) Here petitioner is subject to a summary disbarment provision. Thus, the cases she cites from the period when there was no statutory provision for summary disbarment (e.g., In re Kristovich (1976) 18 Cal.3d 468, 134 Cal.Rptr. 409, 556 P.2d 771; In re Kreamer (1975) 14 Cal.3d 524, 121 Cal.Rptr. 600, 535 P.2d 728) do not assist her at all.

Price v. State Bar (1982) 30 Cal.3d 537, 179 Cal.Rptr. 914, 638 P.2d 1311, on which petitioner relies, is not on point. At issue there was section 6131, which requires disbarment of a prosecutor who takes "valuable consideration from or on behalf of a criminal defendant in exchange for assistance. This court concluded that, given the 1955 amendments eliminating summary disbarment from section 6102, the Legislature must have intended to also eliminate summary disbarment from section 6131. Its failure to do so, we observed, was simply a matter of legislative oversight. (30 Cal.3d at p. 541, fn. 2, 179 Cal.Rptr. 914, 638 P.2d 1311.) We therefore did not...