Possino, In re

• Decision Date: 05 November 1984
• Citation: 37 Cal.3d 163,689 P.2d 115,207 Cal.Rptr. 543
• Parties: , 689 P.2d 115 In re Regis Michael POSSINO on Disbarment. L.A. 31914.
• Court: California Supreme Court

Page 543

207 Cal.Rptr. 543

37 Cal.3d 163, 689 P.2d 115

In re Regis Michael POSSINO on Disbarment.

L.A. 31914.

Supreme Court of California,

In Bank.

Nov. 5, 1984.

Theodore A. Cohen, Beverly Hills, for petitioner.

Herbert M. Rosenthal and Truitt A. Richey, Jr., San Francisco, for respondent.

BY THE COURT:

This court reviews and adopts a recommendation of the State Bar that petitioner Regis Michael Possino be disbarred following his conviction of a crime involving moral turpitude. (Bus. & Prof.Code, §§ 6101, 6102; Cal.Rules of Court, rule 951.) ¹

Petitioner was admitted to practice in 1972. He was privately reproved in 1976 for wrongfully causing an employee to make a false notarial declaration. The present proceeding arises from his 1978 conviction for offering to sell marijuana. (Health & Saf.Code, § 11360.) Following this conviction, the superior court placed petitioner on probation for five years with various conditions of probation including confinement in county jail for one year. That judgment was affirmed on appeal on June 18, 1979.

In November 1978, following the superior court's probation order, this court referred the matter to the State Bar for a hearing and report on whether the facts surrounding the marijuana offense involved moral turpitude or other misconduct warranting discipline and, if so, for recommendation as to the discipline to be imposed. (Cal.Rules of Court, rule 951(c).) No interim suspension was ordered. (See § 6102, subd. (a).)

Based on stipulated facts and on testimonial evidence, the hearing panel found that the circumstances of the offense involved moral turpitude. Disbarment was recommended. The review department unanimously adopted the hearing panel's findings of fact. However, it adopted the panel's recommendation of disbarment by a divided vote. Three of the eight members recommended suspension for five years, to be stayed on conditions including four years' actual suspension.

The facts giving rise to the Health and Safety Code section 11360 conviction arose from petitioner's attempt during November and December of 1975 to sell 350 pounds of marijuana to undercover Los Angeles police officers. In November of that year, petitioner offered to sell 1,000 pounds to the officers, but the officers indicated interest in only a lesser amount. At several meetings over the next few weeks, petitioner negotiated the terms of the sale, delivered samples of the "merchandise," and calculated that his profit on the sale of 350 pounds of marijuana would be $38,500.

In the course of the marijuana negotiations, petitioner also sought to purchase cocaine from the undercover officers. He told the officers that he was an attorney and was acting on behalf of several groups who could purchase 8 to 10 kilograms of cocaine twice a month at a price of $34,000 per kilo. However, these negotiations ended when one of the undercover officers said he would not be able to obtain any cocaine until Christmas.

Additionally, at one of the meetings petitioner offered to sell the undercover officers $5 million worth of stolen treasury bills or bearer bonds. At a subsequent meeting, the officers brought along an undercover agent of the United States Treasury Department, introducing him as a cousin of one of the undercover narcotics officers and a dealer in stolen securities. Petitioner and the agent negotiated a purchase price of 20 percent of the face value for the securities. However, petitioner never delivered the securities. He later informed the agent that he had negotiated a better price with another buyer, and cancelled the transaction.

During these negotiations, petitioner represented himself as an attorney and produced identification as a deputy or former deputy of the Los Angeles District Attorney's office. He was in fact a former deputy of that office.

Petitioner was arrested on December 23, 1975, while attempting to deliver the first shipment of 50 pounds of marijuana to the undercover officers. He was charged with three counts of violating Health and Safety Code section 11360 and one count of violating Health and Safety Code section 11359 (possession of marijuana for sale). He was released on his own recognizance pending trial. The trial was held in late 1977 and resulted in a conviction for one count of violating Health and Safety Code section 11360.

One evening during the trial, petitioner encountered one of the trial jurors as she was waiting for a table in a restaurant. He approached her, initiated a conversation, and bought drinks for her and her companions. Although they did not discuss the merits of the case, petitioner asked the juror what she thought of the prosecutor. He also talked to her about himself, other persons involved in the trial and the judge. Learning that the juror was a religious person, petitioner discussed his own religious beliefs with her. The conversation ended when the juror and her friends were called to dinner.

After the juror finished dinner, she approached petitioner and said she was upset about their conversation, which she believed was improper. Petitioner said that whatever she did about it would be "all right" with him. She subsequently reported the conversation to the trial judge. Thereafter, she was excused from the jury.

The judge stated that petitioner's conduct amounted to contempt of court, and that petitioner had indirectly attempted to influence the juror and had violated his ethical obligations as an attorney. The judge revoked petitioner's own recognizance release and remanded him to custody for the remainder of the trial. A transcript of the juror's testimony concerning the restaurant conversation was sent by the judge to the State Bar for possible discipline.

The hearing panel noted in mitigation that petitioner was only 27 years old at the time of his arrest. He was not engaged in full-time legal practice but instead was doing legal research and making minor court appearances for other attorneys. He ceased practicing law altogether during 1976 and 1977, and again from April 1980 through April 1981. In 1979 and 1980, he performed free legal services for the Los Angeles Free Clinic and participated in the State Bar's "Volunteers in Parole Program." The panel also found that petitioner sought psychological evaluation and counselling during the two years following his arrest. ²

I.

Petitioner's sole contention is that the recommended discipline is excessive. He notes correctly that the purpose of a disciplinary proceeding is not to punish but to ascertain an attorney's present fitness to practice law and to inquire into the need to protect the public, the courts and the legal profession. (In re Conflenti (1981) 29 Cal.3d 120, 123, 172 Cal.Rptr. 203, 624 P.2d 253.) He argues that in his case such protection can be achieved through a lesser discipline than disbarment.

Absent mitigating circumstances, conviction of a felony involving moral turpitude may justify disbarment. ( § 6102, subd. (b).) ³ Petitioner bears the burden of demonstrating that the State Bar's recommendation, made with the objective of protecting the public, is erroneous. (In re Conflenti, supra, 29 Cal.3d at p. 124, 172 Cal.Rptr. 203, 624 P.2d 253.)

On several occasions, discipline short of disbarment has been imposed on attorneys who were involved in illegal drug transactions. However, a review of these cases reveals the existence of mitigating factors not present here.

In In re Kreamer, supra, 14 Cal.3d 524, 121 Cal.Rptr. 600, 535 P.2d 728, this court ordered three years' probation with no actual suspension for an attorney who had engaged in two separate transactions to distribute large quantities of marijuana. The court noted that the attorney had no prior discipline, that his illegal actions were motivated by a domestic financial crisis, and that he had withdrawn from the practice of law before engaging in the illegal conduct. The offenses were committed during a period of protracted emotional difficulties for which the attorney had received psychiatric counselling. Moreover, the attorney presented extensive and uncontroverted testimony concerning his rehabilitation, his value to the profession, and his past and present good moral character. (Id., at p. 531, 121 Cal.Rptr. 600, 535 P.2d 728.)

In In re Cohen (1974) 11 Cal.3d 416, 113 Cal.Rptr. 485, 521 P.2d 477, suspension for three years including two years' actual suspension was imposed where the attorney had received no financial gain from a marijuana transaction but had merely assisted a friend in transporting the contraband. The attorney had no prior disciplinary record and cooperated with the authorities upon his arrest. (Id., at pp. 421-422, 113 Cal.Rptr. 485, 521 P.2d 477.)

Similarly, in In re Higbie (1972) 6 Cal.3d 562, 99 Cal.Rptr. 865, 493 P.2d 97, two years' suspension including one year's actual suspension was held sufficient for an attorney whose involvement in a marijuana importation scheme arose from a desire to help a friend. The friend, who later turned out to be an informer, appeared to the attorney to be in serious financial difficulties. The attorney's continued involvement in the scheme was due chiefly to the informer's prodding. This court noted that the attorney neither received nor expected any financial reward from the transaction and that he had no prior disciplinary record. (Id., at pp. 572-574, 99 Cal.Rptr. 865, 493 P.2d 97.)

More on point is In re Giddens (1981) 30 Cal.3d 110, 177 Cal.Rptr. 673, 635 P.2d 166. There, disbarment was found appropriate where the attorney lent substantial sums of money to an acquaintance after learning that the money was used to finance illegal drug transactions. The attorney realized a large profit from these loans. This court noted that he offered no satisfactory explanation for his conduct. He was not suffering from any financial hardship, emotional distress, or alcohol or drug dependency. Further, it was noted that the attorney took no...