Menna, In re

• Citation: 11 Cal.4th 975,905 P.2d 944,47 Cal.Rptr.2d 2
• Decision Date: 04 December 1995
• Docket Number: No. S038139,S038139
• Court: United States State Supreme Court (California)
• Parties: , 905 P.2d 944, 95 Cal. Daily Op. Serv. 9222, 95 Daily Journal D.A.R. 16,017 In re Joseph MENNA on Admission.

Page 2

47 Cal.Rptr.2d 2

11 Cal.4th 975, 905 P.2d 944, 95 Cal. Daily Op. Serv. 9222,

95 Daily Journal D.A.R. 16,017

In re Joseph MENNA on Admission.

No. S038139.

Supreme Court of California.

Dec. 4, 1995.

Diane C. Yu, Richard J. Zanassi, Starr Babcock and Jill A. Sperber, San Francisco, for Petitioner.

John A. Mitchell, San Diego, for Respondent.

THE COURT:

Joseph Menna (hereafter applicant) is permanently disbarred from the practice of law in New Jersey as a result of his felony convictions for theft of client funds, failure to file a state income tax return, and manufacture of methamphetamine.

Subsequent to his disbarment, he moved to California, passed the bar examination, and sought admission to the State Bar. After a preliminary investigation, the Committee of Bar Examiners (hereafter referred to occasionally as Committee) declined to recommend him for admission and referred the matter for a formal hearing before the State Bar Court. Following an evidentiary hearing, the Hearing Department of the State Bar Court determined he possessed the requisite good moral character to be certified to this court for admission. The Review Department of the State Bar Court affirmed. Pursuant to California Rules of Court, rule 952.6, the Committee of Bar Examiners petitioned this court. We granted review and now reverse on the grounds that determination is not supported by the weight of the evidence; nor is it appropriate in light of the record as a whole. (Cal.Rules of Court, rule 954(a).)

FACTS

1. Misconduct leading to disbarment

As summarized by the hearing department, applicant has "a significant background of compulsive gambling and excessive use of alcohol" and "an extensive history of professional misconduct, which led to his permanent disbarment in New Jersey in 1984" as well as four felony convictions.

Applicant's troubles began soon after his admission to the State Bar of New Jersey in December 1976. Following a short stint with the Camden County Prosecutor's Office, he joined the law office of Joseph Maressa, handling personal injury litigation before leaving in 1980 to begin a solo practice, which lasted until August 1982. Through a client of the Maressa firm that held its organizational meetings in Atlantic City, applicant was introduced to the various casinos there and soon began to gamble compulsively. He also started to drink heavily while gambling and experimented with cocaine to remain alert. At the same time, applicant experienced marital difficulties exacerbated by his frequent forays to the casinos.

Beginning in 1980, applicant began to use funds from his client trust account to pay gambling debts. Over a two-year period, he cashed nineteen separate client settlement checks totaling over $98,000 for his own purposes. In addition, in 1979 he borrowed $70,000 from a former client, Mrs. Cruice, ostensibly to start up a practice but in reality to pay gambling losses. He made payments on the loan until 1982. That year, he also persuaded Mrs. Cruice to cosign a bank note to himself in the amount of $50,000. When the note came due in the summer of 1982, applicant defaulted. As a result, Mrs. Cruice filed an ethics complaint with the New Jersey bar. This complaint led to an investigation During this period of suspension, applicant devised a scheme to pay off his gambling debts by manufacturing illegal drugs. He acquired the necessary precursors to produce methamphetamine, but a former client, who was supposed to buy the finished product, informed the police of the plan. Applicant was arrested, indicted, and ultimately pled guilty to one count of manufacturing methamphetamine. He also admitted to one count of wilful failure to file a 1981 New Jersey state income tax return and two counts of theft by failure to make disposition of property received, which related to two separate instances of misappropriation of client trust funds totaling nearly $75,000.

[905 P.2d 946] of applicant and his temporary suspension for irregularities in the handling of his trust account. (Mrs. Cruice eventually received a $25,000 settlement from the Maressa firm for negligent supervision of applicant.)

In November 1984, applicant was sentenced to four years' imprisonment. He remained incarcerated in a minimum security correctional facility until April 1985, and thereafter stayed at a halfway house until September 1985. He successfully completed parole in the spring of 1987. In May 1985, with New Jersey State Bar disciplinary proceedings pending, he consented to permanent disbarment, which applicant acknowledges precludes ever seeking reinstatement there.

In February 1989, applicant moved to Southern California for the purpose of eventually obtaining admission to practice law in this state. In July 1990, he passed the California Bar Examination. After a preliminary examination, the Committee of Bar Examiners notified applicant it had determined not to recommend his admission to this court and had referred his application to the Office of Chief Trial Counsel for a formal hearing before the State Bar Court. (Rules Regulating Admission to Practice Law, rule X (Deering's Cal. Rules of Court (State Bar) (1988 ed., 1995 cum. supp.) pp. 144-148).) ¹ As noted earlier, the Hearing Department of the State Bar Court, after several days of hearings in August 1992, issued a written decision holding that applicant possessed the requisite good moral character for admission to the bar. The Office of Chief Trial Counsel, acting on behalf of the Committee of Bar Examiners, requested review. The Review Department of the State Bar Court issued a written opinion affirming the decision of the hearing department as well as a supplemental opinion denying the Committee's motion for reconsideration.

2. Evidence of rehabilitation

In May 1983, while the aforementioned criminal and disciplinary charges against applicant were pending, he entered the Carrier Foundation Hospital, a psychiatric hospital in Princeton, New Jersey, specializing in compulsive behavior. While there, he was exposed to Gamblers Anonymous, an organization similar in structure and philosophy to Alcoholics Anonymous. Applicant has continuously attended at least one Gamblers Anonymous meeting weekly since leaving the Carrier clinic in 1983. While incarcerated, he organized and led a weekly meeting at the correctional facility. He has served as secretary of his Gamblers Anonymous room in Solano Beach, California, and has participated in seminars and workshops throughout California and New Jersey on compulsive gambling. Applicant has not gambled since 1982.

Two psychologists appeared on applicant's behalf. Dr. Durand F. Jacobs, an authority on addictive behaviors, had counseled applicant during the year prior to the hearing. Dr. Jacobs testified applicant had completely overcome the problems that led to his compulsive gambling and is no more at risk of repeating his earlier misconduct than any other practicing attorney. Dr. Clifford S. Marks was applicant's current therapist. In his opinion, applicant had fully recovered from his gambling addiction and would not regress. Dr. Marks believed applicant now possesses a high ability to handle stress and is of good moral character.

Applicant also presented 29 character reference letters attesting to his good moral character and unblemished record since release from prison. Knowing of the facts leading to applicant's conviction and disbarment, they nevertheless uniformly recommended his admission to the bar. These letters included five from California attorneys with whom he had worked as a paralegal. Each attested to applicant's skill and professionalism and recommended his admission without reservation. One of the attorneys, Michael Bruno, stated he had known applicant for two and one-half years and had employed him for part of that time as a legal assistant. They had worked particularly closely on one litigation matter in Northern California for over three months, during which time applicant had provided invaluable assistance and "demonstrated exemplary ethical standards." In addition, letters were received from an engineer who had worked for a small construction company formed by applicant following his release from prison, a Pennsylvania attorney who had known him for 7 years, a New Jersey certified public accountant and ordained deacon in the Roman Catholic Church who had known him for 12 years, a friend of 29 years, and applicant's sister. Each attested to applicant's complete rehabilitation and supported his admission to the bar.

Applicant called a number of additional witnesses to appear on his behalf, including four California attorneys for whom he had worked as a legal assistant. (One of the witnesses, Attorney Michael Bruno, also submitted the character reference letter referred to above.) Although fully aware of applicant's prior misconduct, convictions and disbarment, these attorneys attested to his professionalism and honesty and recommended his admission without reservation. Attorney McKenzie stated applicant was "very guilt-ridden" about his past and his financial debts to his former clients "weigh[ ] very heavily on him." Attorney Mills indicated applicant had expressed remorse for his misconduct and an interest in working for the poor "to pay something back to society." Two fellow members of Gamblers Anonymous also testified, and some fifteen additional members submitted letters describing applicant's extensive participation in Gamblers Anonymous and his efforts to help others confront and overcome their compulsive gambling and related problems.

Applicant testified in his own behalf. He provided background about his family, formative years, and education in Pennsylvania; his legal experience after graduating from law school; and the events leading to his criminal convictions and disbarment. He described his life since his release from prison: In 1985 he founded and operated a construction company...