Saturday, June 15, 2019

California Sanctions Domestic Violence

An act of domestic violence merits suspension rather than disbarment, according to a recommendation of the California State Bar Court Review Department

Embroiled in a volatile intimate relationship, Imran A. Khaliq lost control one night and assaulted his girlfriend. She suffered black eyes, cuts, and other minor injuries. As a result, he faced criminal charges against him, and then this disciplinary proceeding.

A superior court judge determined that the victim’s injuries did not constitute “significant or substantial physical injury” and, therefore, concluded that there was no “great bodily injury” under Penal Code section 12022.7. Another superior court judge ultimately found Khaliq guilty of a misdemeanor violation of Penal Code section 273.5, subdivision (a) (injuring spouse, cohabitant, fiancé, boyfriend, girlfriend, or child’s parent), and sentenced him to a three-year probation with conditions, including six months in jail, which he served in the Sheriff’s Alternative Work Program.

Sanction

we find less aggravation and more mitigation than did the hearing judge. As a result, while we consider Khaliq’s misconduct to be serious and warranting the utmost concern, we disagree with the judge’s disbarment recommendation under these circumstances. Instead, we recommend a threeyear probation with conditions, including a two-year actual suspension, continuing until he provides proof of his rehabilitation and fitness to practice law.

The story

At the time of the assault that is the subject of the criminal case, Khaliq and his girlfriend, also a lawyer, had been dating for a little more than two years. Their relationship was marked by jealousy, arguing, and rough —and sometimes painful—sexual play. In addition to the current misconduct, both acknowledge that she had violently pushed, head-butted, scratched, bruised, or bit Khaliq during similar arguments on three prior occasions...

A year into his relationship with his girlfriend, Khaliq discovered that she was married and living with her husband. Jealousy arising from these prior relationships was one cause of conflict since both had just recently ended their respective relationships when Khaliq and his girlfriend started dating.

The assault

After a date on August 9, 2015 where they each consumed three glasses of wine and one and one-half glasses of beer, Khaliq and his girlfriend returned to his home where they engaged in foreplay on his couch. When she became upset that he was being too rough taking off her clothes, she refused to have sex with him. She told him that she wanted to leave and also stated that she did not want to be in the apartment where [his former girlfriend] S. W. lived. He was upset because he believed that she had participated in arousing him, and then rejected him. She got up to leave and Khaliq claims she squeezed him in the neck, kneed him in the groin, and “head-butted him,” either intentionally or inadvertently.  He became angry and upset and stated that he reacted to her kneeing him. He first slapped, then punched her in the face at least twice. After punching her, she fell to the floor and was temporarily disoriented. Khaliq’s girlfriend suffered injuries and began to bleed from Khaliq’s assault. Immediately after striking her, Khaliq stated “Look what you made me do."

Prior to the assaut, she had left him a love note that upset him as he thought it was intended to be seen by S.W.

He responded thusly

The same day the love note was posted at the front of his house, Khaliq played what he referred to as a “prank” to pay his girlfriend back for leaving the note. During a two-day period, from July 13 to 14, 2015, he sent her text messages from a work phone, and pretended to be the CEO of a company where his girlfriend had sought employment the previous month. In these messages, he attempted to schedule an interview with her, and included inappropriate and unprofessional language and requests. Khaliq’s girlfriend reported the text messages to the company’s human resources department. The company and the CEO denied sending any such texts or making inappropriate comments and, in turn, reported to the Palo Alto Police Department that someone was pretending to be the CEO. When the police contacted Khaliq, he admitted that he had sent the false messages as a “prank.” He also testified that he wanted to catch his girlfriend in a lie to see if she would choose him over the CEO because he had become “slightly jealous at that time.” The police investigated the “prank” after receiving a complaint from the human resources department. Khaliq admitted to the investigating officer that he was responsible, but explained “I was playing a prank and I’m sorry about it.” The police officer said: “People can take things the wrong way, so just be careful.” No further legal action was taken. Khaliq then spoke to his girlfriend and apologized. Thereafter, they resumed their romantic relationship.

He falsely advised his probation officer he had no priors

Twelve years before the interview with the probation officer, Y. C. Y. and Khaliq were in a relationship while students at UCLA. Y. C. Y. testified that they often got into arguments, and on one occasion, he threw plates and cups in her direction and they hit the wall behind her. But she also stated that she did not feel he was trying to hit her with these items. On another occasion, during an argument, he hit her while she was driving him to the train station, leaving a mark on her face and “tweaking” her eyeglasses. On a third occasion, when she could not reach him by telephone and was concerned about his well-being, she went to his house and climbed in through a window to check on him. She found him asleep on the couch and could not wake him. She then called a male friend who was in medical school to ask what to do. Khaliq then jumped off the couch and accused her of cheating on him. She attempted to leave and Khaliq grabbed her “neck area” and pushed her against the door. She screamed and exited the building. Police arrived, but she left the area without filing a police report. Khaliq and Y. C. Y. have not had any contact for 14 years since that incident.

The offense involved moral turpitude but the hearing officer erred in finding lack of remorse

But his overall reaction was far more sympathetic. Immediately after the episode, he attempted to help clean her face and get her to rest, and, during the two days thereafter, he reiterated his concern for her condition, his remorse for his behavior, and his affection for her.

...we disagree with the hearing judge’s finding that the “prank” was further evidence of Khaliq’s lack of insight or remorse in aggravation. First of all, it was a month before the assault. Further, since we are considering the “prank” as an act supporting the moral turpitude finding, we do not consider the same facts again as an aggravating circumstance.

Character evidence

But the hearing judge neglected to consider the character evidence presented by Khaliq’s father, mother, brothers, and sister, who all gave detailed information about Khaliq’s upbringing and his acts of honesty and charity throughout his life. They all provided declarations for his criminal case that were also admitted as good character declarations in this case. All were aware of the circumstance of Khaliq’s misconduct. Although offered by family members, any bias they may have because of their familial connection should not be disqualifying, but rather relevant to the weight given to the evidence.

Sanctions for domestic violence

We also acknowledge that prior discipline in domestic violence cases often has not reflected the changes in society and the current recognition of the seriousness of domestic violence. Many earlier cases resolved such matters with low levels of discipline, including minimal or no suspension. We agree with the hearing judge that it is important to reevaluate the appropriate discipline by considering current societal values and changing mores.

But we disagree that the facts and circumstances of this misdemeanor conviction warrant disbarment. We come to this conclusion after examining our disciplinary authority on domestic violence, our disciplinary authority on serious misconduct that is accompanied by aggravating factors, and other states’ disciplinary authority on domestic violence...

Our research has revealed only two published California cases where domestic abuse has resulted in disbarment. Notably, each resulted in a felony conviction that reflected substantially more serious misconduct than in the present matter. In one case, an attorney was convicted of first-degree murder for shooting both his wife and her lover (In re Kirchke (1976) 16 Cal.3d 902). The other case, cited by the hearing judge, involved an attorney and his wife who began having marital problems because of her extramarital affair. The couple argued, and after one episode, the attorney became physically violent, throwing his wife down on a couch and striking her repeatedly. Then, after the attorney had been drinking alcohol and using cocaine while tracking his wife’s movements at her office, he told her that he and her child were leaving her. He went home, hoping she would come after him. At home, he concealed a rifle on the bed, and continued using cocaine. When his wife arrived, they argued and he then shot her approximately 10 times with the rifle. The attorney was convicted of voluntary manslaughter (In re Nevill (1985) 39 Cal.3d 729). It is evident that the facts of these two disbarment cases differ dramatically from the facts here. Both those felony cases involved gun violence that resulted in the death of the victims.

Here, Khaliq was convicted of a misdemeanor, and his misconduct did not have such a result. In light of these differences, we distinguish these cases and find disbarment too severe.

Thus

Our disciplinary recommendation must strike a balance between today’s increasing abhorrence of domestic violence, and the laws and cases that govern our actions. Khaliq’s assault and his “prank” clearly harmed his girlfriend. Additionally, his misconduct impugns the integrity of the legal profession, undermining the public’s confidence in and respect for the legal system. We view disbarment as too severe under this case’s facts and circumstances. But in light of the nature of his violent conduct and his actions associated with the “prank” involving the CEO, we consider a lengthy actual suspension to be appropriate. We recommend that Khaliq receive a two-year actual suspension, continuing until he presents proof at a formal hearing of his rehabilitation and fitness to practice law, pursuant to standard 1.2(c)(1).

A concurring and dissenting opinion would add a year to the suspension

My concern is Khaliq’s violence coupled with his apparent ease in lying. In the practice of law, honesty is absolutely fundamental.

The Kirschke case is described in this opinion of the California Court of Appeal rejecting his habeas attack on the conviction.

the evidence at trial established Kirschke's motive and opportunity to kill. The victims were Kirschke's wife and her lover, killed on the Kirschke bed while apparently engaged in sexual activity. Kirschke had shown great, although private, resentment at the notorious nature of his wife's affair because of its potential to frustrate his efforts to secure a judicial appointment from a newly elected governor whom he had vigorously supported. An exculpatory statement of Kirschke to investigators of the crime in which he attempted to establish an alibi was proved false. Kirschke attempted to show his presence at the Los Angeles airport at a critical time by oral reference to a parking receipt containing a time stamp. Investigation showed that the receipt could not have been issued at the time stated by Kirschke.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/06/an-act-of-domestic-violence-merits-suspension-rather-than-disbarment-according-to-a-recommendation-of-the-california-state-b.html

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