Matter of Weber

In the Matter of CLIFFORD R. WEBER A Member of the State Bar. No. 97-C-10652 Review Department of The State Bar Court Filed December 8, 1998         This review is a companion case to In the Matter of Paguirigan we also decide today. As in Paguirigan, this case causes us to reconsider the analysis for deciding whether to recommend summary disbarment when an attorney stands finally convicted of a felony meeting the legal requirements for that remedy.
        Respondent, Clifford R. Weber, was convicted of a felony involving moral turpitude, mail fraud (18 U.S.C., § 1341). Respondent accepted rebates or "kickbacks" from a chiropractor in 1993 and 1994, totaling $5,800 for the referral of client accident victims and concealed that income from the clients and insurers. He was also convicted of a felony violation of 26 U.S.C., § 7206(2), aiding and assisting the filing of a false tax return, a crime which may or may not involve moral turpitude or other misconduct warranting discipline. This tax offense appears to involve respondent's failure to declare as income the fruits of his fraudulent activity. Following prescribed procedure, we ordered respondent interimly suspended. (Bus. & Prof. Code, § 6102 (a).) Respondent's conviction is now final and the State Bar's Office of Chief Trial Counsel (State Bar) has requested that we recommend to the Supreme Court, respondent's summary disbarment. (Bus. & Prof. Code, § 6102 (c).) Respondent opposes the State Bar's request, urging that summary disbarment is not appropriate because summary disbarment is not automatic and mandatory, that the Supreme Court considers all relevant evidence in imposing discipline and that the nature of respondent's offense warrants less than disbarment. The State Bar contends that all of the elements of the summary disbarment statute are met in this case.
        Because of the importance of the question, we set this matter for oral argument together with the Paguirigan case. Fully considering the record and applicable law, we now recommend respondent's summary disbarment. For the reasons set forth in Paguirigan, we clarify and limit some of the discussion in our earlier decisions of In the Matter of Segall (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 71, and In the Matter of Salameh (Review Dept. 1994) 2 Cal. State Bar Ct. Rptr. 729.

I. Statement of the Case.         In January, 1997, respondent pled guilty to one felony count of mail fraud, and one felony count of assisting or aiding in the filing of a false tax return. In May 1997, respondent was fined and placed on three years of probation on each offense, to run concurrently. On March 20, 1998, the State Bar transmitted the complete record of respondent's conviction to us.
        On March 25, 1998, we noted that respondent was convicted of a felony involving moral turpitude. Following prescribed procedure in such cases, we ordered respondent suspended from the practice of law until final disposition of this proceeding. On May 20, 1998, the State Bar filed with us evidence that respondent's conviction was final and requested that we recommend that he be summarily disbarred. (Bus. & Prof. Code, § 6102 (c).) We directed respondent to show cause why we should not recommend summary disbarment. Upon consideration of the State Bar's motion and respondent's reply, we set this matter for argument, inviting the parties to brief the matter further, including on the issues of whether the Supreme Court declined to impose automatic disbarment prior to 1955 where the case otherwise met the statutory criteria, the power of our authority under rule 951(a), California Rules of Court and the interpretation of language in In the Matter of Segall, supra, 2 Cal. State Bar Ct. Rptr. 71.)
        Respondent's lengthy submission includes a letter written to our court by the federal judge who presided over respondent's criminal proceeding and explained why that judge sentenced respondent to probation. That judge wrote, in part, that "The facts presented. . .did not present the usual egregarious [sic] facts found in federal felony convictions. At best, this was a case of a failure to disclose a rebate relationship between the medical provider and attorney. I sincerely believe that Summary Disbarment. . .would be tragic and excessive under the circumstances of the case before me."

II. Background and History of Summary Disbarment Statutes.         In the companion case of In the Matter of Paguirigan, we reviewed the background of summary or automatic disbarment prior to and after 1955. We incorporate that discussion here and will not repeat it.
        
III. Discussion.         Respondent has urged several arguments in opposition to the State Bar's request for his summary disbarment. He first contends that summary disbarment is not automatic and mandatory. As we discussed in the companion case of In the Matter of Paguirigan, in every case of an attorney's final conviction of a crime eligible for summary disbarment of which we are aware prior to 1955, the Supreme Court imposed that discipline. Respondent cites our Segall decision to support his point, but for the reasons we state in Paguirigan, Segall's discussion must be limited to reflect Supreme Court practice in considering summary disbarment prior to 1955.
        Respondent claims that when deciding on the appropriate discipline, the Supreme Court will consider all facts underlying the conviction. We agree with that point but only as to matters in which a conviction is referred by us for a hearing and recommendation as to discipline and which is then considered by the Supreme Court. Respondent has cited only post-1955 convictions which were not addressable by summary disbarment. His authorities do not support application of his claim to this conviction.
        As corollaries to his claim, respondent argues that the extensive character references he has offered, coupled with the very favorable statement of the trial judge, and other mitigating evidence make disbarment inherently unfair as his offense would surely result in, at most, a suspension. Based on the essential analysis we conducted in our companion case of Paguirigan, we must reject respondent's arguments.
        Matter of Segall, supra, relied on by respondent, was a conviction of mail fraud as is this case. We had clear evidence that the loss far exceeded that in this case. But as we observe today in Paguirigan, "We do not understand past Supreme Court practice in considering automatic or summary disbarment to entail weighing and balancing issues such as the motive of the attorney in committing the crime, the extent to which harm did or did not occur, whether the offenses were limited or repeated or other issues pertaining to evidence bearing on either mitigating or aggravating circumstances. To the extent that language in Segall and Salameh would require us to undertake such an analysis, such language is disapproved."
        Although respondent denies that his offense was serious enough to warrant disbarment, all the facts are not before us nor are they undisputed. What is undisputed is that respondent stands finally convicted, inter alia, of mail fraud, a felony which unquestionably involves moral turpitude; and, as we observed collectively in Segall and Salameh, is the type of offense which has often resulted in disbarment. Our reading of the summary disbarment law and past Supreme Court practice, would not warrant any exception to a summary disbarment recommendation based on respondent's claims.
        We respect the considered views of the federal judge who presided over the criminal proceeding, but we are bound by the Supreme Court's decision in In re McAllister (1939) 14 Cal.2d 602, 604, rejecting consideration of very similar remarks by a sentencing judge expressing an opinion on an issue within the unique province of the Supreme Court and of this Court acting as the Supreme Court's arm.
        
IV. Recommendation.         For the foregoing reasons, we recommend that respondent, Clifford R. Weber, be summarily disbarred pursuant to the provisions of Business and Professions Code section 6102(c) [eff. Jan. 1, 1997]. We do not include a recommendation that respondent comply with the provisions of rule 955, California Rules of Court, as we included such a recommendation in our order of respondent's interim suspension. We further recommend an award of costs to the State Bar pursuant to Business and Professions Code section 6086.10.


We concur:
        OBRIEN, P.J.
        NORIAN, J.


Counsel for Parties
For the State Bar
of California:
        Russell G. Weiner
        The State Bar of California
        Office of the Chief Trial Counsel
        1149 South Hill St.
        Los Angeles, CA 90015-2299


For Respondent:
        Diane L. Karpman
        Joanne Earls Robbins
        Karpman & Associates
        9200 Sunset Blvd.,
        Penthouse 7
        Los Angeles, CA 90069