Scott, In re

• Citation: 802 P.2d 985,277 Cal.Rptr. 201,52 Cal.3d 968
• Decision Date: 14 January 1991
• Docket Number: No. S010264,S010264
• Court: United States State Supreme Court (California)
• Parties: , 802 P.2d 985 In re Michael J. SCOTT on Disbarment.

Page 201

277 Cal.Rptr. 201

52 Cal.3d 968, 802 P.2d 985

In re Michael J. SCOTT on Disbarment.

No. S010264.

Supreme Court of California In Bank.

Jan. 14, 1991.

Theodore A. Cohen, Beverly Hills, for petitioner.

Diane C. Yu, Truitt A. Richey, Jr., Starr Babcock, Sr. and William Davis, Office of Gen. Counsel, State Bar of California, San Francisco, for respondent.

THE COURT ^*.

The Review Department of the State Bar Court (review department) recommends that petitioner Michael J. Scott be disbarred from the practice of law in California. While a municipal court judge in Santa Barbara County, petitioner pled guilty to possession of illegal drugs and resigned his judicial post as a condition of his plea bargain. The surrounding facts included petitioner's having presided over the arraignment of an individual who had previously sold him drugs, at which proceeding petitioner authorized reduction of the defendant's bail.

The review department concluded the circumstances surrounding the offense involved moral turpitude warranting disbarment consistent with standard 3.2, Rules of Procedure of the State Bar, division V, Standards for Attorney Sanctions for Professional Misconduct (standards). ¹ The dissenting referees concluded disbarment was excessive discipline. The assistant presiding referee wrote a separate dissent, agreeing that petitioner's acts posed a significant enough threat to the judicial system to constitute moral turpitude, but concluding that the substantial evidence of mitigation and rehabilitation warranted no more than a two-year actual suspension.

Having reviewed the record and considered the arguments of petitioner and the State Bar, we conclude that the review department's recommended discipline of disbarment is appropriate.

I. FACTS AND PROCEDURAL BACKGROUND

Petitioner was admitted to the State Bar in 1976. He is a former deputy district attorney of Santa Barbara County and was elected a municipal court judge in Santa Barbara in 1984. He has no prior disciplinary record.

On April 22, 1987, petitioner was indicted by the Santa Barbara County grand jury for the following violations: one count of soliciting commission of crimes (Pen.Code, § 653f); seven counts of unlawful possession of a controlled substance (Health & Saf.Code, § 11350); three counts of unlawful transportation, sale, giving away, etc., of a controlled substance (id., § 11352); two counts of being present in a place where controlled substances are being used (id., § 11365); and two counts of being under the influence of a controlled substance (id., § 11365).

On May 5, 1987, petitioner entered into a plea bargain whereby he pled guilty to two counts of unlawful possession of cocaine (between January 1, 1987, and February 3, 1987). The remaining charges were dismissed. He was granted 4 years' probation conditioned upon service of a 90-day jail term, of which he served 48 days in actual custody (in isolation). As a further condition of his plea bargain petitioner resigned his judicial post and entered into a drug rehabilitation program.

On July 29, 1987, this court referred petitioner's convictions to the State Bar for a report and recommendation as to whether there should be an order for interim suspension pending final disposition of the proceedings. On December 1, 1987, a hearing was held before a State Bar referee solely on the issue of interim suspension. Petitioner testified on his own behalf, and submitted letters of support from fellow judges, his probation officer, members of the law enforcement community, family members, and his pastor. By decision dated January 14, 1988, the referee did not recommend interim suspension.

On December 16, 1987, this court augmented its previous order to include a request for hearing, report and recommendation as to whether petitioner's actions involved moral turpitude or other misconduct warranting further discipline, and if so, what discipline should be imposed.

On March 3, 1988, a formal hearing was held on this court's augmented referral order before a hearing panel of the State Bar Court (hearing panel). Once again, petitioner testified on his own behalf, as did his wife. He submitted additional letters of support, including letters from his probation officer, his doctor at the drug rehabilitation center, his pastor, an attorney and personal friend, the attorney who had represented the defendant who had sold petitioner cocaine, and an employee of a public advocacy agency for which petitioner was performing pro bono legal services. The hearing panel also had before it the transcripts of the grand jury indictment proceedings (at which petitioner had testified), as well as a stipulation of facts entered into by petitioner and the State Bar's examiner. (See rule 401, Rules Proc. of State Bar.)

The hearing panel filed its decision on May 10, 1988. It found that petitioner had not been convicted of a crime involving moral turpitude or one reflecting the specific intent to deceive, defraud, steal or make or suborn false statements, but further concluded that petitioner's conviction for possession of a controlled substance involved "other conduct warranting discipline" because he had violated his oath as an attorney to support the laws of the state. (See Bus. & Prof.Code, §§ 6068, subd. (a), 6103.) ² The hearing panel's recommendation was a three-year period of suspension to be stayed, five years' probation conditioned upon actual suspension for the first year, and strict compliance with, and monitoring of, the various probationary conditions (drug testing, counseling, and continued compliance with the terms of petitioner's criminal probation).

Thereafter, both parties requested reconsideration. The hearing panel filed an amended decision on June 7, 1988. The amended decision included all findings of fact and conclusions of law of the original decision. Additionally, however, the amended decision more fully detailed the offenses and surrounding circumstances leading to petitioner's arrest, conviction, and subsequent resignation from the bench. Also, the amended decision, unlike the original decision, recommended that petitioner be required to take and pass the professional responsibility examination within one year of a final decision by this court, and that he further be required to comply with the provisions of rule 955, California Rules of Court.

Petitioner sought review of the hearing panel's amended decision. On March 14, 1989, the review department adopted all of the hearing panel's findings of facts and conclusions of law as set forth in the amended decision, with one exception. Contrary to the hearing panel's conclusion, a majority of the review department found that because petitioner had presided over a judicial matter involving a person who had sold petitioner illegal drugs, the circumstances of his offenses did involve moral turpitude, and as such, disbarment was the appropriate discipline pursuant to section 6102, subdivision (d). ³ The review department's resolution recommending disbarment further "advises [this court] that its reason for recommending greater discipline than recommended by the hearing panel is that disbarment is consistent with Standard 3.2 ... and especially warranted here, where [petitioner] was acting as a judge in presiding over matters involving a person he knew was furnishing him illegal drugs."

The six referees voting against the recommendation of disbarment found the recommended discipline excessive. The assistant presiding referee wrote a separate dissent agreeing that petitioner's act of presiding over a criminal hearing involving one of his own suppliers posed a significant enough threat to the judicial system to constitute moral turpitude, but concluding that "the substantial evidence of mitigation and rehabilitation" warranted only a two-year actual suspension under Standard 3.2.

The undisputed findings of fact concerning the circumstances surrounding petitioner's conviction included the following:

1. Petitioner testified at the grand jury proceedings that he began using cocaine as far back as college. After completing law school and accepting employment with the Santa Barbara County District Attorney's office, he was "reintroduced" to the drug and "came to believe that its use stimulated his mental faculties." His use of cocaine continued from 1980 through initiation of the grand jury proceedings. Although petitioner suspected there was an investigation into his drug use during this time, he continued his substance abuse.

2. Petitioner also admitted a long-term alcohol abuse problem, which he believed contributed to his cocaine abuse. ⁴ He asserted that his drug use, his association with other known drug users, and his frequenting of local bars and other establishments where drugs were known to be available, ultimately led to his investigation, indictment and conviction.

3. Throughout the period involved herein, petitioner purchased, used, and sometimes provided cocaine to individuals at these establishments. At other times petitioner used cocaine in the presence of others at private residences.

4. Petitioner testified that on several occasions he provided cocaine for friends who had previously purchased the drug for him. Although he avoided using cocaine around any judicial or law enforcement personnel, he attended a regular weekly poker game with a bailiff who was at one time assigned to his courtroom, and at which the majority of regular players would use cocaine "more often than not."

5. Petitioner testified that on one occasion he used cocaine approximately two hours prior to performing a civil marriage ceremony.

6. Petitioner admitted that while presiding as a municipal court judge, he had occasion to authorize a search warrant for the home of Tommy Jackson, an individual who had sold him cocaine. Petitioner thereafter presided over the arraignment of Jackson, who stood charged with possession with intent to...