Johnson, In re

• Decision Date: 30 January 1992
• Docket Number: No. S018109,S018109
• Citation: 1 Cal.4th 689,4 Cal.Rptr.2d 170,822 P.2d 1317
• Court: California Supreme Court
• Parties: , 822 P.2d 1317 In re Willie Samuel JOHNSON on Habeas Corpus.

Page 170

4 Cal.Rptr.2d 170

1 Cal.4th 689, 822 P.2d 1317

In re Willie Samuel JOHNSON on Habeas Corpus.

No. S018109.

Supreme Court of California,

In Bank.

Jan. 30, 1992.

Carlo Andreani, San Francisco, under appointment by the Supreme Court, for petitioner.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., Richard B. Cullather, Mark Alan Hart and Frederick C. Grab, Deputy Attys. Gen., Los Angeles, for respondent.

BAXTER, Justice.

We are asked to decide whether a criminal defendant's constitutional right to representation by counsel is denied as a matter of law if, prior to trial and without defendant's knowledge, his attorney has been suspended from the practice of law and has submitted his resignation to the State Bar while disciplinary charges are pending.

We conclude that representation by an attorney who has submitted a resignation with disciplinary proceedings pending, and has as a result been placed on inactive status, denies a criminal defendant the counsel guaranteed by article I, section 15 of the California Constitution. ¹ We shall therefore, reverse the judgment of the Court of Appeal.

I

In July 1989, petitioner was convicted of selling cocaine in violation of Health and Safety Code section 11352. He had retained Raymond Hane to defend him in March 1989. At that time, unknown to petitioner, Hane had been suspended from the practice of law following a conviction for violation of Penal Code section 288, subdivision (a). On May 10, 1989, while State Bar disciplinary proceedings related to the conviction were pending, Hane submitted his resignation to the State Bar. Thereafter Hane appeared as counsel for petitioner at a May 23, 1989, pretrial conference; at the June 27, 1989, court trial; and at the July 12, 1989, sentencing hearing. This court accepted Hane's resignation from the State Bar on September 7, 1989.

Petitioner filed this petition for habeas corpus in conjunction with his appeal. Petitioner sought relief on the ground that, as a matter of law, he had been denied his state and federal rights to competent counsel and due process. He subsequently filed a "Traverse and Reply Brief" in which he also argued that Hane's failure to advise him of the criminal charges, conviction, and suspension denied petitioner his right to counsel of choice.

The Court of Appeal affirmed the judgment of conviction and in its opinion denied the petition without issuing an order to show cause.

We granted review only of the order denying the petition for habeas corpus. An order to show cause was issued. In his return respondent Director of Corrections did not dispute petitioner's allegations regarding Hane's status. Petitioner incorporated the allegations of the petition and "traverse" filed in the Court of Appeal into the traverse filed in this court. That traverse is accompanied by petitioner's declaration that during the pendency of the superior court proceedings he was not aware of counsel's suspension or resignation.

Because there are no factual disputes whose resolution is necessary to disposition of the petition, an evidentiary hearing is unnecessary. (In re Lawler (1979) 23 Cal.3d 190, 194, 151 Cal.Rptr. 833, 588 P.2d 1257.)

II

The Court of Appeal majority held that representation by an attorney who has been suspended for reasons unrelated to the attorney's practice of law is not per se a violation of the right to counsel, and does not relieve a defendant seeking reversal on grounds of ineffective counsel from demonstrating that counsel's performance fell below the standard to be expected of competent criminal defense attorneys to the prejudice of the defendant.

The court distinguished People v. Medler (1986) 177 Cal.App.3d 927, 223 Cal.Rptr. 401, and People v. Hinkley (1987) 193 Cal.App.3d 383, 238 Cal.Rptr. 272, the only California cases to have considered the issue. In Medler the court held that representation by an attorney suspended for nonpayment of dues had not denied effective assistance of counsel. Hinkley reached a contrary conclusion where the attorney had not only been suspended, but had been involuntarily enrolled as an inactive member of the State Bar pursuant to Business and Professions Code section 6007, subdivision (b)(2), after a finding had been made that the attorney was incapable of providing the quality of service necessary to protect his clients' interests, and that probable cause existed to believe that the attorney had willfully and intentionally abandoned his practice and failed to protect the interests of his clients.

In this case the Court of Appeal reasoned that in assessing a claim of ineffective counsel the proper test is whether the circumstances of the representation adversely affected the adversarial process. Therefore a defendant must establish a prejudicial impact on the adversarial process by demonstrating state interference with the right to counsel, a conflict of interest, or performance that is so inadequate as to deny the benefit of a full adversarial test of his guilt. (Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; United States v. Cronic (1984) 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657.) The court concluded that a suspension like that imposed on Hane on the basis of the commission of a crime of moral turpitude unrelated to the practice of law must be distinguished from suspension imposed on the basis of incompetence, and does not necessarily create a conflict or reflect an impairment of the attorney's legal ability. In the view of the Court of Appeal, a per se rule of reversability was not justified in these circumstances.

The dissenting justice concluded that reversal was required because the constitutional guaranty contemplates "a fully licensed lawyer."

III

Petitioner argues strenuously that representation by an attorney who has committed a crime of moral turpitude, and who then commits further crimes of unlawfully practicing law while suspended, fraud, and contempt of court, ² denies a criminal defendant due process of law. He also contends that such representation fails to afford the counsel guaranteed by article I, section 15, because a suspended attorney has no legal standing to fulfill that right, and, when the attorney has concealed this status from his client, denies the client the right to counsel of choice.

A. Suspension Pursuant to Business and Professions Code Section 6102.

Hane was suspended from practice pursuant to the command of section 6102:

"(a) Upon the receipt of the certified copy of the record of conviction, if it appears therefrom that the crime of which the attorney was convicted involved or that there is probable cause to believe that it involved moral turpitude or is a felony under the laws of California or of the United States, the Supreme Court shall suspend the attorney until the time for appeal has elapsed, if no appeal has been taken, or until the judgment of conviction has been affirmed on appeal, or has otherwise become final, and until the further order of the court. Upon its own motion or upon good cause shown the court may decline to impose, or may set aside, the suspension when it appears to be in the interest of justice to do so, with due regard being given to maintaining the integrity of and confidence in the profession." ³

We are not persuaded that a suspension under section 6102 alone creates a presumption of incompetence or deprives the defendant of his right to the "fully licensed attorney" contemplated by article I, section 15. Commission of any felony or other offense that may have involved moral turpitude triggers the suspension whether or not the crime was related to the attorney's practice or affected the quality of the attorney's representation of clients. Yet, "admission of an attorney to the bar establishes that the State deems him competent to undertake the practice of law before all our courts, in all types of actions." (Smith v. Superior Court (1968) 68 Cal.2d 547, 559, 68 Cal.Rptr. 1, 440 P.2d 65.) An attorney who is professionally competent does not become any less competent upon the filing of an order made pursuant to section 6102 suspending the attorney from practice. The date on which such an order is filed has no bearing on the attorney's knowledge or ability. Nor for that matter does the date on which he may have committed an offense which, for purposes of State Bar discipline, is deemed to be a crime of or involving moral turpitude.

Petitioner's claim that he has been denied due process and the right to competent counsel is based on his reasoning that conviction of a crime of moral turpitude evinces a "willingness to do evil" which necessarily disqualifies or disables a person from the competent practice of law. As subdivision (a) of section 6102 indicates, however, the Legislature has not created a presumption of unfitness or incompetence in all cases in which an attorney is suspended following conviction. And, as we shall explain, a conclusion that an attorney is not a fit person to practice law is not a determination that the attorney lacks professional competence.

Discipline is imposed on the basis of an attorney's criminal conduct or violation of the Rules of Professional Conduct in order to protect the public from dishonest or corrupt attorneys as well as from those who fail to provide competent professional services. Suspension or disbarment may be deemed necessary to protect clients from dangers other than inadequate representation, and to maintain public confidence in the bar. Although, in some cases, misconduct occurs in the course of representation of a client, and adversely affects the quality of that representation, this is not invariably so.

A mandatory suspension pending finality of the judgment of conviction following commission of a crime of moral turpitude does not reflect a legislative or judicial assessment of the attorney's...