Wednesday, September 15, 2021

RESPECT

The California State Bar Court has admonished an unnamed attorney for disrespectful behavior in one matter and disobeying a court order in another.

Respondent BB, while a new San Francisco County Deputy Public Defender, violated his duty to maintain respect due to the courts in two separate courtroom incidents. Before his disciplinary trial, respondent stipulated to his misconduct in the first incident, in which he made disrespectful statements to a superior court judge during jury selection; he apologized to the judge shortly thereafter. In the second incident, respondent violated a court order when his client was remanded during a plea colloquy. When bailiffs were attempting to take the client into custody, respondent failed to comply with a judge’s order to immediately step away from his client, which resulted in a contempt order against respondent.

The hearing judge found respondent culpable of two counts of disrespect to the courts and one count for failure to obey a court order. The judge determined an admonition was appropriate under the “unique circumstances” established at trial along with five circumstances in mitigation and only one in aggravation. The Office of Chief Trial Counsel of the State Bar (OCTC) appeals, arguing an admonition is inappropriate and some form of discipline should be imposed. It requests an actual suspension of 30 days as the minimum required here. Respondent did not appeal.

Upon independent review of the record (Cal. Rules of Court, rule 9.12), we affirm the hearing judge’s culpability findings but differ in our review of the aggravating and mitigating circumstances. We find the record establishes no aggravating circumstances and four mitigating ones. Because we increase the weight assigned to three of the mitigating circumstances, the overall mitigation is greater than the judge found. We also acknowledge the unusual facts of the case and conclude, as the judge did, that discipline is not necessary here to protect the public, the courts, or the legal profession. Accordingly, we affirm an admonition as the appropriate disposition for respondent in this matter.

One incident involved a struck Latino juror where the judge had changed his initial favorable ruling

Respondent argued about the changed ruling, and stated, “the [c]ourt has a lack of backbone.” Then, interrupting the judge, he repeatedly stated he did not respect the court or its decision. The court warned respondent about his comments, and respondent challenged the court to place him in custody. The court then took a short recess. Later that day, respondent apologized to the judge. He was reprimanded for his actions by Jeff Adachi, the San Francisco Public Defender at the time, and another high-level supervisor.

The other incident involved an unruly client

While the exchange was taking place, respondent kept his right arm between the deputies and the defendant and briefly interfered with the arrest process. While it is unclear exactly how long respondent delayed the arrest, several witnesses, including a bailiff, testified the delay lasted from 10 to 15 seconds. After the recess, Judge Moody told respondent that he was subject to arrest for interfering and asked him if he understood. Respondent then stated, “The [c]ourt told my client he would either finish the plea or go to jail.” Judge Moody told respondent to answer his question. Respondent stated,

That’s what the [c]ourt said to my client. And I have the duty—I have a duty to protect my client in a situation with extreme mental health. In chambers I explained to the [c]ourt my concern about [the defendant]. And the [c]ourt has—is usually very diligent and very concerned about those issues. And it was very obvious while I stood here what was going on. And to put someone in a bind to say you either understand what I’m saying or go to jail is improper. And I don’t know how to react. And then for it to turn physical was improper. And I’m embarrassed for the [c]ourt today.

Judge Moody then said, “[Respondent], we’re talking about your actions today.” Respondent replied, “You mean my reactions,” to which the judge said, “All right.” Respondent finished by stating he needed counsel and the matter was adjourned.

The contempt was affirmed on appeal.

Respondent was ordered to pay a fine, which he did. He also reported the contempt judgment to the State Bar. He has since appeared before Judge Moody, who testified respondent has acted professionally on those occasions. The bailiffs also testified they have since interacted with respondent in the courtroom, have not had any other problems with him, and feel comfortable working with him in the future.

An aspect of "extraordinary" mitigation

Forty-four people testified or attested to respondent’s good character. More specifically, eight attorneys testified: seven public defenders, including the current San Francisco Public Defender, and respondent’s former employer when he was in private practice. The remaining three witnesses consisted of a former member of the Board of Supervisors for the City and County of San Francisco, a captain and Assistant Sheriff with the San Francisco County Sheriff’s Office, and a current client. Almost all of these witnesses were aware of the misconduct and almost all the attorneys testifying on respondent’s behalf witnessed the incident in Judge Moody’s courtroom. Thirty-three people submitted declarations: 11 additional public defenders, four former clients, two assistant district attorneys, three other attorneys (one of whom was the former City Attorney for the cities of Santa Cruz and Capitola), a priest, and 12 other people from respondent’s personal life. Most of these people had known respondent for several years and were aware of his misconduct.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/09/the-california-state-bar-court-respondent-bb-while-a-new-san-francisco-county-deputy-public-defender-violated-his-duty-to.html

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Comments

The rumor is that that The California State Bar’s Office of Chief Trial Counsel will petition our Supreme Court for review. They sought a 30 day suspension.

Posted by: David Cameron Carr | Sep 16, 2021 6:30:08 AM

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