Three Strikes In California
The California State Bar Court Review Department proposes disbarment under a three-strike provision for an attorney who sought continuances in two matters for supposed heart attacks
…given Moriarty’s disciplinary history, we also look to standard 1.8(b), which states that disbarment is appropriate where an attorney has two or more prior records of discipline if: (1) an actual suspension was ordered in any prior disciplinary matter; (2) the prior and current disciplinary matters demonstrate a pattern of misconduct; or (3) the prior and current disciplinary matters demonstrate the attorney’s unwillingness or inability to conform to ethical responsibilities. Moriarty’s case meets two of these criteria: he previously received 30- and 45- day actual suspensions; and, like the hearing judge, we find that his prior and current misconduct establish his unwillingness or inability to conform to ethical norms. Moreover, the two specified exceptions to standard 1.8(b) do not apply here. Moriarty’s present misconduct did not occur at the same time as his prior misconduct, and his limited mitigation for cooperation is neither compelling nor does it predominate over the significant aggravation for two prior discipline records, multiple acts of wrongdoing, significant harm, and his indifference.
We next consider whether any reason exists to depart from the discipline called for by standard 1.8(b). We acknowledge that disbarment is not mandatory as a third discipline. (Conroy v. State Bar (1991) 53 Cal.3d 495, 506-507 [disbarment is not mandatory in every case of two or more prior disciplines, even where no compelling mitigating circumstances clearly predominate (analysis under former std. 1.7(b))]; In the Matter of Miller (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 131, 136 [to fulfill “purposes of lawyer discipline, we must examine the nature and chronology of respondent’s record of discipline”].) However, if we deviate from recommending disbarment, we must articulate clear reasons for doing so. (Std. 1.1; Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5 [requiring clear reasons for departure from standards].) Moriarty has not identified an adequate reason for us to depart from applying recommending disbarment, we must articulate clear reasons for doing so. (Std. 1.1; Blair v. State Bar (1989) 49 Cal.3d 762, 776, fn. 5 [requiring clear reasons for departure from standards].)
Moriarty has not identified an adequate reason for us to depart from applying standard 1.8(b), and we cannot articulate any. Further, we reject the hearing judge’s reasons for deviating from recommending disbarment—i.e., because “the timing of [Moriarty’s] misconduct” and “the nature and extent of [his] prior disciplines do not justify disbarment.” The record shows multiple instances of similar wrongdoing dating back to 1996, repeated abandonment of clients, blatant violation of applicable orders, and a troubling similarity between Moriarty’s present misconduct and the misconduct underlying Moriarty I. We also note that his misconduct in Moriarty II occurred shortly after his Moriarty I probation ended, and his present misconduct occurred shortly after his Moriarty II probation ended. Moreover, we find that the metes and bounds of the misconduct here are greater than the judge found. The record depicts an attorney who, for much of the past two decades, was either committing repeated, serious misconduct or being monitored on probation.
(Mike Frisch)