Every so often a case will a come along that perfectly captures the state of things in a particular domain with photographic accuracy.  The peculiar domain of California State Bar discipline got its snapshot this week with the publication of In the Matter of Jensen.

Attorney Jensen plead nolo to one count of misdemeanor child endangerment after he left his nine-month-old daughter in a crib in a hotel room for at least 40 minutes while he took his toddler son for a walk.  The conviction was referred to the State Bar for discipline proceedings.  Mr. Jensen had two prior disciplines, a 90-day stayed suspension in 2007 and a 30-day actual suspension in 2010. 

Former Standard 1.7(b) provided the sanction on the third discipline “shall be disbarment”  unless the most compelling mitigating circumstances clearly predominate.”  The “three strikes” rule is one of those rules more honored in the breach (e.g. Arm v. State Bar (1990 50 Cal.3d 763 and many others) and was extensively revised in new Standard 1.8(b) which became effective January 1, 2014.  The new Standard provides that disbarment is “appropriate” where (1) actual suspension was previously imposed (2) the new third discipline involves a pattern of misconduct; or (3) all three disciplines demonstrate an “unwillingness or inability to comply with ethical responsibilities.”

The Office of Chief Trial Counsel (OCTC) asked for disbarment at trial, based on Standard 1.7(b),renews its trial request that Jensen be disbarred since this is his third discipline case.  The hearing judge found no moral turpitude in the facts surrounding the conviction and recommended a 120-day actual suspension.  OCTC appealed, still seeking disbarment and alleging for the first time on appeal that Mr, Jensen was dishonest in dealing with the police and this was moral turpitude warranting disbarment.

The Court as as whole found itself troubled by OCTC’s conduct in changing its position in the appeal (footnote 8):

Without explanation, the State Bar changed its position as to whether the facts and circumstances surrounding the conviction involve moral turpitude. Such a change is troubling at this late date because it denies Jensen an opportunity to have developed the trial record on this issue. (See In re Strick (1983) 34 Cal.3d 891, 898 [attorney is entitled to “procedural due process in proceedings which contemplate the deprivation of his license to practice his profession”]; Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422-423 [points not raised at trial not considered on appeal].)

Two judges of the Review Department agreed with the hearing judge’s recommendation  of 120 days actual suspension and upheld the finding that the crime was not moral turpitude but was other misconduct warranting discipline.  Judge Remke dissented, opining that the matter should be dismissed and Mr. Jensen should not be disciplined at all!

Opinions often differ on the appropriate level of discipline in a particular case but you don’t see a difference greater than disbarment to dismissal.  In concluding that Mr. Jensen’s crime did not involve misconduct warranting discipline, Judge Remke went to the heart of the matter, what actually happened:

Jensen’s conduct involved a single, isolated act of leaving his napping nine-month-old daughter in her crib alone in a hotel room for approximately 40 minutes while he took his restless three-year-old son for a walk. While his behavior was decidedly irresponsible and criminal, it does not warrant professional discipline. It did not involve the practice of law, a violation of a court order, or other acts of dishonesty; it did not include violent acts or result in harm to his child or any third party; and it did not occur as a result of alcohol or substance abuse – factors listed in the cases cited by the majority that indicate an attorney’s conviction may constitute other misconduct warranting discipline. Furthermore, Jensen has accepted responsibility for his conduct, shown his sincere remorse, and taken corrective action to avoid any such future transgressions – factors negating the need for discipline as a preventive measure to avert potential professional problems.

Jensen is an appalling case.  As a criminal conviction referral, it was inevitable that the State Bar Court would have to consider the question of discipline, but, the dissent shows, questionable that discipline was warranted.  The nebulous “other misconduct warranting discipline” standard has come to be practically defined to include any crime, despite the case law cited in the dissent, based on the familiar rationale that it is necessary to preserve public confidence in the profession.

Certainly, it should never have been appealed.  OCTC’s troubling conduct in changing its argument on appeal reflects a law enforcement mentality that finds due process an unfortunate obstacle to achieving its goals.  Someone asked me not long ago about my remark that the goal of  disciplinary apparatus these days is “culling the herd.”  The Jensen case is an example.