Lubetzky v. State Bar

• Decision Date: 30 August 1991
• Docket Number: No. S013552,S013552
• Citation: 54 Cal.3d 308,815 P.2d 341,285 Cal.Rptr. 268
• Court: California Supreme Court
• Parties: , 815 P.2d 341 Richard H. LUBETZKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 268

285 Cal.Rptr. 268

54 Cal.3d 308, 815 P.2d 341

Richard H. LUBETZKY, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

No. S013552.

Supreme Court of California,

In Bank.

Aug. 30, 1991.

Kent L. Richland, Greines, Martin, Stein & Richland, Beverly Hills, for petitioner.

Diane C. Yu, Starr Babcock, Marie M. Moffat, Robert P. Heyman, State Bar of California, San Francisco, for respondent.

THE COURT:

Petitioner was denied admission to practice law after a hearing panel of the State Bar determined that he had "not proven that he is possessed of good moral character" within the meaning of Rule X of the Rules Regulating Admission to Practice Law in California. The review department affirmed that ruling without dissent, two members abstaining. Our review of the entire record persuades us that the evidence does not support the findings of the hearing panel as to petitioner's moral character. We therefore decline to accord those findings any weight. Instead, we conclude in light of our own independent evaluation of the evidence that petitioner presented a strong prima facie case that he is of sufficiently good moral character to be admitted to practice law. Because we are persuaded that the State Bar's evidence failed to rebut that prima facie case, we find that petitioner has sustained his burden of proof on the issue of moral character and direct that he be certified as qualified for admission to practice law.

I. Introduction

By State Bar rule, an applicant for admission to practice "shall have the burden of proving that he or she is possessed of good moral character." ¹ "Pursuant to this rule the applicant must initially furnish enough evidence of good moral character to establish a prima facie case, and the [State Bar] then has the opportunity to rebut that showing with evidence of bad character. [Citation.]" (Hallinan v. Committee of Bar Examiners (1966) 65 Cal.2d 447, 449-551, fn. 1, 55 Cal.Rptr. 228, 421 P.2d 76 (Hallinan ); accord, Hightower v. State Bar (1983) 34 Cal.3d 150, 155, 193 Cal.Rptr. 153, 666 P.2d 10; Hall v. Committee of Bar Examiners (1979) 25 Cal.3d 730, 734, 159 Cal.Rptr. 848, 602 P.2d 768; Bernstein v. Committee of Bar Examiners (1968) 69 Cal.2d 90, 95, 70 Cal. Rptr. 106, 443 P.2d 570.) If the State Bar is unable to rebut the applicant's prima facie case, then the applicant has carried his or her burden of proof. If the State Bar presents sufficient evidence to rebut the prima facie case, then the applicant must introduce further evidence of good moral character or discredit the State Bar's evidence. Although we give "great weight" to the findings of the hearing panel on review, they are not binding on us. "We examine the evidence and make our own determinations as to its sufficiency...." (Hightower v. State Bar, supra, 34 Cal.3d at pp. 155-156, 193 Cal.Rptr. 153, 666 P.2d 10; see also Kwasnik v. State Bar (1990) 50 Cal.3d 1061, 1068-69, 269 Cal.Rptr. 749, 791 P.2d 319.)

The charges levelled against petitioner by the State Bar centered on two related matters: (1) an alleged misuse of the judicial process by filing civil suits against former friends for the purpose of harassing them, and (2) the accusation that petitioner was responsible for the mystifying appearance of over one hundred sexually obscene postcards and letters anonymously mailed to Robert Friedman, a former friend of petitioner and his chief accuser at the hearing, and to Friedman's mother, the Friedmans' family physicians, and an art gallery where Robert Friedman falsely claimed to be employed.

Except for a lawsuit filed by petitioner in 1975 against one Arguimbau, a college classmate and friend with whom he had a falling out, the bulk of the litigation filed by petitioner arose out of his short-lived friendship with Friedman, a relationship that began in 1982 when Friedman began sharing an apartment with Robin Spivack, a friend and former law school classmate of petitioner. The rise and fall of the friendship was punctuated by the appearance of the anonymous mail--beginning with a mildly obscene note to Robin Spivack following her eviction of Friedman from the apartment in the wake of a series of bizarre acts--and gradually became a torrent of sexually explicit postcards, often cobbled together from fragments of newspaper and typescript or handwriting. As a kind of counterpoint to the obscene mail, some of the participants in the affair began to receive annoying hang-up telephone calls--sometimes as many as 20 a day--originating roughly coincidently with the obscene mail. Robin Spivack, petitioner, and Robert Friedman all reported being telephonically harassed.

Apart from one item, little if any of the evidence offered by the State Bar inculpated petitioner as the source of the obscene mail. But that one item was troubling--the tip of a fingerprint discovered on the obverse side of a piece of "scotch" tape used to bind a fragment of newspaper to the face of one of the obscene postcards, a print identified as and conceded to be petitioner's. Other than this item, much of the evidence presented at the hearing pointed to someone else as the figure behind the obscene mail--pointed, in fact, to the principal recipient, Robert Friedman himself. Moreover, the implications of the fingerprint were undercut by a wealth of evidence of bizarre conduct by Friedman, conduct similar to that with which petitioner was charged; by the admission in a secretly recorded telephone conversation that Friedman was responsible for the hang-up calls; and by petitioner's innocent explanation of the fingerprint, supported by expert testimony and demonstrative evidence. Finally, petitioner's authorship of the postcards was not easily reconciled with the considerable evidence of his good character--evidence that he is conscientious, moderate in expression, and seemingly devoted to the welfare of others.

Our independent review of this record convinces us that the State Bar's rebuttal evidence to petitioner's prima facie case is insufficient to sustain the conclusion of the hearing panel that he lacks good moral character.

II. The Evidence

Petitioner's evidence at the moral character hearing established that he graduated cum laude from the University of California at Los Angeles (UCLA) in 1974. While an undergraduate, petitioner was active in consumer affairs; he founded and served as the first director of the university's Consumer Protection Project, co-authored a consumer rights handbook published by the university, and taught a consumer rights course. He received several awards and citations for his work in this area. Following graduation, petitioner worked full time in a law firm as a paralegal and researcher while attending night law school classes from 1975 to 1978. In 1979, he began attending law school full-time, graduating in 1980. ² In 1985, petitioner joined a Southern California-based consumer group known as CALJUSTICE (an acronym for Consumer Advocates for Legal Justice), an organization seeking reform of the attorney disciplinary process, including its removal from the hands of the State Bar. According to evidence in the record, petitioner has been a visible advocate for change in the attorney disciplinary system, having served as board chair and president of CALJUSTICE since 1986 and having appeared on behalf of that organization before several state legislative committees, the State Bar Board of Governors, and other forums in support of attorney disciplinary reform. Petitioner has contributed these efforts on behalf of the organization on an uncompensated, volunteer basis.

In support of his good character, petitioner presented testimony, declarations, and letters of support from several persons--three attorneys, a state senator, colleagues in the consumer protection movement, former teachers and college administrators, schoolmates and neighbors--attesting to his good moral character. All offered unqualified praise of petitioner, including his honesty, integrity, reliability and altruistic nature. These included the former president and cofounder of CALJUSTICE (who described petitioner as "the finest human being I ever met" and "beyond reproach"); an attorney active in discipline reform who formerly served on the State Bar's Public Protection Committee (who stated, "If I wanted to see somebody be an attorney, it would be [petitioner] because of his integrity"); an attorney who had represented petitioner in past litigation (who described petitioner as "honest to the spirit, not only the letter, of what he says" and who "wish[ed] there were more attorneys out there with [petitioner's] moral character"); another attorney for whom petitioner had worked as a paralegal and researcher (who thought petitioner "would make an excellent attorney"); and other law graduates and friends of petitioner who testified along similar lines. In short, petitioner met his threshold burden of demonstrating prima facie his good moral character. ³

The State Bar's case-in-rebuttal proceeded along three lines, all of which--together with a fourth--were adopted and relied upon by the hearing panel. Before taking up the chief issue--the central puzzle of the obscene mail--we consider the three other grounds relied on by the hearing panel. ⁴ The panel determined that: (1) litigation commenced by petitioner in the past indicated, in its words, "a pattern of harassment on the part of petitioner in using the courts and the judicial process for personal reasons"; (2) petitioner omitted from his bar examination application certain litigation in which he had participated until notified of the omission by State Bar officials; and (3) petitioner showed a "lack of respect for the law and for the legal canons of ethics" by tape-recording two telephone conversations with Robert Friedman without Friedman's knowledge or consent. As we shall see, all three grounds are questionable; none standing alone would suffice to establish petitioner's bad moral...