In Re the Disciplinary Proceeding Against McGrath

655 P.2d 232, 98 Wash. 2d 337, 1982 Wash. LEXIS 1717

• Court: Washington Supreme Court
• Decided: December 9, 1982
• Docket: C.D. 6705
• Status: Published

Opinions

Brachtenbach, C.J.

Following an argument in a restaurant lounge, attorney Thomas McGrath assaulted an individual with a gun, shooting and seriously wounding him.

About 4:30 p.m. McGrath had gone to a Kirkland restaurant and lounge. He was wearing a concealed gun holster which contained a loaded .38 caliber snub nose special. He later testified that he had no specific reason for carrying the gun that day, rather that he just carried it as he had on many other occasions. The shooting incident happened about 2 a.m.

During the course of the evening, McGrath discussed business with a client, discussed with another person a case he was handling, and talked to other persons about a condominium project. The rest of the evening was social.

McGrath's affidavit is the only rendition on the record of the events of that evening. According to his account, he was sitting at the bar at 1:15 a.m. when he and a stranger, the ultimate victim, became involved in a dispute. Strong words were exchanged, and the stranger offered to fight. McGrath suggested they resolve the matter outside, so the stranger and his friend left. McGrath stayed, hoping the others would leave and avoid a fight.

Upon leaving, he encountered the victim in the lobby. Another verbal exchange took place and the stranger slapped McGrath, open handed, on the face. McGrath went back into the restaurant and exited through the rear door. When he went outside he again encountered the stranger and his friend.

The stranger started toward McGrath, and McGrath told him to stop. When the stranger kept approaching, McGrath drew his gun and shot him. The bullet hit the victim in the neck and seriously injured him.

McGrath got in his car and drove away. Later, after calling his attorney, he turned himself in to the police.

McGrath was charged with two counts of assault in the first degree. As a result of plea bargaining, he pleaded guilty to one count of assault in the second degree, a class B felony. McGrath was sentenced to 10 years' probation, to 1 year in the King County Jail on the work release program, to make restitution to the victim, and to pay $14,668.91 to the crime victims compensation fund. The work release jail sentence was later reduced to 10 months.

Thomas McGrath was admitted to the practice of law in the State of Washington in March 1970. Because of his felony conviction, this court suspended McGrath from the practice of law on December 10, 1980, pending the final disposition of the disciplinary proceedings against him. DRA 9.1. A formal complaint filed by the bar association charged that McGrath's conduct constituted a crime involving moral turpitude, thus warranting disbarment. DRA 1.1(a). A hearing was held before a hearing panel officer, who found that McGrath had engaged in conduct involving moral turpitude and recommended that he be disbarred. The Bar Association Disciplinary Board adopted the hearing panel officer's findings, conclusions and recommendations, with two members dissenting and recommending a 2-year suspension. We hold that McGrath's conduct did involve moral turpitude and that disbarment is the proper disciplinary sanction.

I

The Discipline Rules for Attorneys state, in pertinent part:

An attorney at law may be subjected to the disciplinary sanctions or actions set forth in Rule 1.2 for any of the following causes . . .:

(a) The commission of any act involving moral turpitude, dishonesty, or corruption, whether the same be committed in the course of his or her conduct as an attorney, or otherwise, and whether the same constitutes a felony or misdemeanor or not; and if the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding shall not be a condition precedent to disciplinary action. Upon such conviction, however, the judgment and sentence shall be conclusive evidence at the ensuing disciplinary hearing of the guilt of the respondent attorney of the crime described in the indictment or information, and of his or her violation of the statute upon which it is based. A disciplinary hearing as provided in Rule 3.2 of these rules shall be had to determine, (1) whether moral turpitude was in fact an element of the crime committed by the respondent attorney and, (2) the disciplinary action recommended to result therefrom.

DRA 1.1(a). In accordance with this rule, it is conclusively presumed that respondent McGrath is guilty of the crime of second degree assault. RCW 9A.36.020. For the purposes of a disciplinary proceeding, a plea of guilty will be treated the same as a jury verdict of guilty. See In re Krogh, 85 Wn.2d 462, 536 P.2d 578 (1975); In re Johnson, 74 Wn.2d 21, 442 P.2d 948 (1968); In re Dalton, 60 Wn.2d 726, 375 P.2d 258 (1962).

The first issue, then, is whether moral turpitude was an element of respondent McGrath's crime. McGrath was convicted of violating RCW 9A.36.020(b) and (c) which state that the crime of second degree assault is committed when one:

(b) Shall knowingly inflict grievous bodily harm upon another with or without a weapon; or

(c) Shall knowingly assault another with a weapon or other instrument or thing likely to produce bodily harm;

RCW 9A.36.020(b) and (c).

Counsel for the bar association has argued that a crime involving a "knowing" assault or a "knowing" infliction of bodily harm necessarily is a crime involving moral turpitude. Other courts have held, in immigrant deportation cases, that assault with a deadly weapon involves moral turpitude "beyond any question." Weedin v. Tayokichi Yamada, 4 F.2d 455, 457 (9th Cir. 1925); United States ex rel. Zaffarano v. Corsi, 63 F.2d 757, 758 (2d Cir. 1933). We decline, however, to adopt such a per se rule in the context of a disciplinary proceeding. Each case must be determined on its own facts. In re Egger, 86 Wn.2d 596, 598, 547 P.2d 864 (1976). In addition, the disciplinary rules provide that, while a conviction is conclusive evidence of guilt, a hearing is necessary to determine if moral turpitude was involved. DRA 1.1(a). Thus, a finding of moral turpitude is a separate issue from the determination of guilt in a criminal proceeding. Moral turpitude must be determined from "the inherent immoral nature of the act, rather than from the degree of punishment which the statute law imposes". In re Hopkins, 54 Wash. 569, 572, 103 P. 805 (1909). To determine if moral turpitude is involved, the question to be answered is this:

Now, do the acts found against the appellant, and for which he was convicted . . ., violate the commonly accepted standard of good morals, honesty, and justice? Suppose we measure his conduct in this regard, not by any puritanical standard, but by the standard of right conduct generally prevailing among our people, uninfluenced by the fact that the statute law also punishes such conduct as a crime. What, then, is the answer to the question whether or not such acts involve moral turpitude?

In re Hopkins, supra at 572.

This definition of moral turpitude is necessarily general. In the setting of attorney discipline, its application depends upon the collective conscience and judgment of the members of this court. It is as meaningful as other phrases adopted by other courts. See Searcy v. State Bar, 604 S.W.2d 256, 258 (Tex. Civ. App. 1980) which sets forth the various definitions. "Its definition does not gain in clarity by prolixity of statement." In re Jacoby, 74 Ohio App. 147, 155, 57 N.E.2d 932 (1943). See also 58 C.J.S. Moral 1200-07 (1948).

Applying the Hopkins standard, we find that McGrath's conduct involved moral turpitude for several reasons. First, it was an unjustifiable act of violence against another human being. Such violence has never been condoned under any legal system, ancient or modern. Second, while McGrath was licensed to carry a weapon, his carrying of a loaded pistol on many occasions and in situations where he had consumed considerable alcohol is not in keeping with the prevailing standard of right conduct. As stated by the hearing panel officer, "the carrying of a loaded pistol is and was a psychological levanter which was a clear harbinger of the kind of event which took place on the evening on which Mr. McGrath's conviction is based." Furthermore, conviction of a crime with an intent element of "knowingly" is some evidence, although not conclusive, that moral turpitude was involved.

Respondent relies heavily on a California case, In re Rothrock, 16 Cal. 2d 449, 106 P.2d 907 (1940), where no moral turpitude was found in a disciplinary proceeding against an attorney convicted of assault with a deadly weapon. In Rothrock, however, the California court, after surveying other cases that dealt with the issue of moral turpitude with assault convictions, concluded that assault may or may not involve moral turpitude depending on the facts and circumstances involved. In re Rothrock, supra at 453-59. Given this premise, it necessarily follows that the Rothrock holding is limited to its facts and is not a persuasive precedent. Moreover, the facts in Rothrock are distinguishable: the applicable assault statute did not contain an intent element, the victim was not injured by the assault, and the sentence was light, only 2 months in the county jail. In contrast, this case involves a conviction for a degree of assault involving a "knowing" intent element, serious injury to a victim, and a sentence including 10 years probation and 1 year in the county jail. Thus, factual differences easily reconcile the different results in these two cases.

II

Finding that McGrath's conduct involved moral turpitude, the second issue is the proper sanction to impose. The bar association hearing panel officer recommended disbarment and a majority of the Disciplinary Board adopted this recommendation. The recommendation of the Board is given "serious consideration," but this court retains ultimate responsibility for determining the proper measure of discipline in any given case. In re Krogh, 85 Wn.2d 462, , 536 P.2d 578 (1975).

As with the question of moral turpitude, the proper sanction is determined by the particular facts and circumstances of each case. There is no automatic felony disbarment rule in this state. In re Krogh, supra. Disciplinary sanctions are imposed to protect the public and to preserve confidence in the legal profession and the judicial system. In re McNerthney, 95 Wn.2d 38, 41, 621 P.2d 731 (1980). The factors to be considered are:

(a) the seriousness and circumstances of the offense, (b) avoidance of repetition, (c) deterrent effect upon others, (d) maintenance of respect for the honor and dignity of the legal profession, and (e) assurance that those who seek legal services will be insulated from unprofessional conduct.

In re Smith, 83 Wn.2d 659, 663, 521 P.2d 212 (1974); In re McNerthney, supra.

The seriousness of this offense has already been discussed and is not in dispute. McGrath assaulted an individual with a loaded gun; he shot and seriously wounded him.

The second factor, avoidance of repetition, is difficult to evaluate. In this instance, where the crime is unrelated to the practice of law, the disciplinary sanction imposed by this court may not affect whether or not respondent will be involved in a similar incident in the future. Hopefully, the sanctions imposed by the Superior Court, which include abstention from alcohol, and McGrath's admission that he no longer carries a gun will suffice to preclude any repetition of this type of conduct by respondent.

Addressing the third factor, strict disciplinary sanctions here may serve as notice to other attorneys that this court demands a high degree of respect for the law from those who are members of the bar and officers of the court. While this is important, our decision does not rest on the deterrent factor alone.

The most persuasive factor in our decision to disbar respondent is the maintenance of respect for the honor and dignity of the legal profession. An Ethical Consideration in the Code of Professional Responsibility states:

Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession. Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.

CPR EC 1-5. The Ethical Considerations are not mandatory in character, but they do represent principles that serve as guidance in enforcing the disciplinary rules. CPR Preliminary Statement.

While the record is replete with recitals of respondent's competency to practice law, this does not affect the grounds upon which our decision is based. See In re Krogh, 85 Wn.2d 462, 476, 536 P.2d 578 (1975). It is not necessary for the crime committed to be related to the practice of law to warrant severe sanctions. As pointed out by Henry S. Drinker, former chairman of the Standing Committee on Professional Ethics and Grievances of the American Bar Association, in his book Legal Ethics:

[T]he cases dealing with the disbarment or other discipline of lawyers involve two distinct characteristics, although the distinction is often not clearly recognized:

1. Cases in which the lawyer's conduct has shown him to be one who cannot properly be trusted to advise and act for clients

2. Cases in which his conduct has been such that, to permit him to remain a member of the profession and to appear in court, would cast a serious reflection on the dignity of the court and on the reputation of the profession

(Footnote omitted.) H.S. Drinker, Legal Ethics, at 42-43 (1953).

This case falls into the latter category. As did the hearing officer, we find it repugnant to the basic standards of our legal profession to allow one who is serving a 10-year probation sentence for a felony conviction, for an act involving moral turpitude, to practice law and to represent clients in the courts of this state. McGrath's competence as an attorney is not relevant to the question of whether permitting him to remain a member of the profession would cast a serious reflection on the dignity of the court and on the reputation of the profession.

Costs of $859.43 imposed by the Disciplinary Board are approved. The bar association has not filed a statement of additional expenses in the Supreme Court within the allotted time period, so these additional costs are deemed waived. DRA 7.2(a).

The recommendation of the Disciplinary Board is approved, and the respondent's name shall be stricken from the roll of attorneys in this state.

Rosellini, Stafford, Dore, and Dimmick, JJ., concur.