Kreamer, In re

Decision Date03 June 1975
Docket NumberS.F. 23166
Citation121 Cal.Rptr. 600,14 Cal.3d 524,535 P.2d 728
CourtCalifornia Supreme Court
Parties, 535 P.2d 728 In re Harry Joseph KREAMER on Suspension.

Lewton & McGuinn, John A. McGuinn, San Francisco and Howard H. Jewel, Oakland, for petitioner.

Herbert M. Rosenthal, San Francisco, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar (Board) that petitioner be suspended from the practice of law for a period of five years on conditions of probation, including actual suspension for the first three years, because of his conviction of a crime. (Bus. & Prof. Code, §§ 6101, 6102; Cal.Rules of Court, rule 951.) 1

Petitioner was admitted to practice in 1965; there have been no prior disciplinary proceedings against him. On April 19, 1972, he pleaded guilty to, and was convicted of two offenses: (1) illegal possession of a controlled substance (marijuana), a misdemeanor, in violation of 21 United States Code, section 844; and (2) conspiracy (possession of marijuana with intent to distribute), a felony, in violation of 21 United States Code, section 846. For the first offense he was sentenced to prison for the maximum term of one year; for the second offense he was sentenced to prison for the maximum term of five years. In each instance the judgment provided that petitioner was sentenced for study as prescribed in 18 United States Code, section 4208(c) and that the sentence was subject to modification in accordance with 18 United States Code, section 4208(b). On August 26, 1972, and after such diagnostic study, petitioner's sentences were reduced as follows: As to the section 844 offense, execution of the remainder of the sentence was suspended and petitioner was placed on probation for five years; as to the section 846 offense, petitioner's term was reduced to 18 months. On March 28, 1973, petitioner was paroled to Halfway House in Oakland until June 1973. Petitioner will remain on probation until 1978.

On March 14, 1973, we referred this matter to the State Bar for hearing, report and recommendation on whether the facts and circumstances surrounding the commission of the above two offenses involved moral turpitude or other misconduct warranting discipline, and if so, as to the nature and extent of the discipline to be imposed. (Cal.Rules of Court, rule 951(c).)

After a hearing by the local administrative committee 2 and a further hearing by the Board, the Board unanimously determined that the facts and circumstances surrounding the commission of each offense involved moral turpitude and other misconduct warranting discipline. The Board by a vote of nine to five recommended 3 that petitioner be suspended from the practice of law for five years, including actual suspension for three years. 4

Thereafter petitioner filed with this court written objections to the Board's report and recommendation together with a supporting brief. (Cal.Rules of Court, rule 951(d).)

We first set forth the material facts as disclosed by the findings and the undisputed evidence in the record. Petitioner was graduated from law school in 1964 after a distinguished academic career, and was admitted to the California Bar in 1965. After a year's clerkship with a federal judge, he entered the active practice of law first with a personal injury firm and shortly thereafter with a prominent San Francisco labor law firm. According to the testimony of several former associates, his work product at the latter firm was excellent, and he enjoyed a reputation as a conscientious and even brilliant young lawyer. While working at the law firms, petitioner devoted a great deal of his spare time to such pursuits as the defense of indigent criminal defendants and litigation opposing the death penalty.

Beginning in 1966, petitioner became increasingly involved with what is referred to in the testimony as the 'counter-culture way of life' and began to drift gradually away from his former friends and colleagues. This change was largely the result of a short and unhappy marriage entered into in a desperate attempt to ease the depression he experienced following a break-up with his former fiancee. However, even after the marriage was terminated, the change in petitioner's life style continued. His active participation in social causes gave way to a more passive rejection of established institutions and traditional societal values. He increasingly turned to the use of marijuana in an effort to escape his emotional problems, although he declined offers to sell or distribute the drug.

Losing interest in the practice of labor law, petitioner left the firm in late 1969 and set up his own practice. His work as a sole practitioner was devoted largely to the defense of friends arrested on drug-related charges. He received little compensation for his professional services and began to consider writing as a viable alternative to the practice of law.

By February or March of 1971, petitioner, having decided to pursue a career as a writer, totally abandoned his law practice, terminated all relationships with former clients, and moved to Bolinas. He had difficulty earning money and was forced to use his small savings. In addition he felt obligated to defray the substantial medical and hospital bills of his fiancee (now his wife) who had become acutely ill. Faced with these debts and desperate for funds, petitioner sought opportunities to earn or borrow money. At this point a friend suggested that he retail marijuana.

In August 1971 petitioner obtained 25 pounds of marijuana on consignment, planning to sell it at a price which would enable him to pay his supplier and realize a profit. His sales efforts proved unsuccessful, however, because of the poor quality of the marijuana. On August 15, 1971, while in the process of returning 20 pounds of the drug to his supplier, he stopped at a friend's house for a visit. While he was there, federal narcotics agents in the course of arresting another person detected the odor of marijuana emanating from petitioner's car and placed him under arrest.

Petitioner retained an attorney, pleaded not guilty to the federal charge under 21 United States Code, section 844, and sought to raise a search ans seizure defense. His attorney and his friends tried to persuade him that his behavior was self-destructive, that it was the expression of a chronic emotional depression, and that he should seek psychiatric help. Petitioner at first rejected these suggestions. Convinced that his arrest precluded his return to the practice of law, he embarked upon a more grandiose marijuana distribution scheme in the hope of alleviating his now increased financial problems. He agreed with three friends to arrange for a shipment of a large quantity of marijuana, approximately 1,000 to 2,000 pounds, from Florida to the Bay Area. His exact fee was to depend upon the amount actually shipped; but he expected to earn around $7,500.

With funds supplied by his associates in the venture, petitioner chartered a plane in his own name from a small air freight company purportedly for the purpose of picking up in Florida a cargo represented as sculpture and transporting it to the Oakland airport. On October 17 he and his confederates took delivery of a cargo of 791 pounds of marijuana at the airport and loaded it onto a truck. One of the confederates drove the truck away and petitioner left separately in his own car. He was followed by federal narcotics agents and arrested.

At this point petitioner finally realized that he was in desperate need of help. He communicated with his parents in the East and with several former friends. They all responded with financial and moral support. Recognizing that his conduct in committing the second offense while still facing charges for the first one was irrational and self-destructive, he began counsulting a psychiatrist. He also married his fiancee who had strenuously objected to his involvement in the latest marijuana escapade.

Faced with two separate federal prosecutions, petitioner, as indicated earlier, finally entered pleas of guilty in both. After sentence, commitment for diagnostic study, reduced sentence and service of a reduced term, petitioner in March 1973 was paroled to a halfway house. He resumed the practice of law, doing research and writing for Bay Area law firms on a retainer basis.

The record contains testimony from members of these firms as to petitioner's moral character, his honesty and the excellent quality of his legal work. Their opinions were corroborated by the testimony of the federal judge for whom petitioner clerked upon his graduation from law school, who expressed a similar high regard for petitioner's legal talents as well as a firm belief in his rehabilitation.

Petitioner did not challenge the local committee's finding that his offense involved moral turpitude at the hearing before the Board or in his brief before this court. He concedes that, in light of In re Cohen (1971) 11 Cal.3d 416, 113 Cal.Rptr. 485, 521 P.2d 477, the Board's finding of moral turpitude was justified. He contends only that the discipline recommended by the Board is excessive, in light of the nature of the offense and the mitigating factors. He urges that we adopt instead the recommendation of the local committee. (See fn. 2, Ante.)

Before taking up petitioner's main contention, we make a few preliminary observations on the issue of moral turpitude. Although petitioner has not urged this issue before us, we have reviewed the matter independently (In re Fahey (1973) 8 Cal.3d 842, 106 Cal.Rptr. 313, 505 P.2d 1369; In re Higbie, Supra, 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97) and are satisfied that the Board's determination is correct. While petitioner's offense does not involve moral turpitude as a matter of law (see In re Fahey, Supra, 8 Cal.3d, at pp. 849--850, 106 Cal.Rptr. 313, 505 P.2d 1369; In re Higbie, Supra, 6 Cal.3d at...

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