Disbarment Proposed

The California State Bar Court Review Department recommends disbarment for a criminal conviction

On May 15, 2012, at approximately 11:30 p.m., Spencer Freeman Smith was driving from San Francisco to San Ramon when he struck Bo Hu who was walking or riding in the road with his bicycle. Smith did not stop to render aid or call for help, and Hu died at the scene. On Smith’s plea of nolo contendere, he was convicted of felony hit-and-run and misdemeanor vehicular manslaughter.

Disbarment is the presumed sanction for a criminal conviction in which the surrounding facts and circumstances involve moral turpitude, unless the most compelling mitigating circumstances clearly predominate. A hearing judge found that the facts and circumstances surrounding Smith’s convictions involved moral turpitude, and because she did not find compelling mitigation, she recommended disbarment.

Smith appeals. He challenges the hearing judge’s moral turpitude finding and asserts disbarment is not warranted. On review, he argues that his judgment of conviction is not final, stating that he successfully prevailed on appeal and therefore cannot be subject to discipline in State Bar Court. The Office of Chief Trial Counsel of the State Bar (OCTC) requests that we affirm the disbarment recommendation.

Upon our independent review (Cal. Rules of Court, rule 9.12), we determine the conviction is final, find that the facts and circumstances surrounding Smith’s crimes involve moral turpitude, and the mitigation is not predominating or compelling. Given these circumstances, we affirm the disbarment recommendation.

The crime

On the evening of May 15, 2012, at around 11:30 p.m., Smith was driving northbound on Dougherty Road, between Dublin and San Ramon, on a four-lane thoroughfare with two lanes in each direction. During the disciplinary trial, Smith testified that, although he holds a valid California driver’s license, he has no vision in his right eye resulting from a disease he suffered in infancy. Due to Smith’s monovision, he stated that he cannot see objects to his peripheral right.

While driving that night, Smith struck Hu. Hu weighed 212 pounds and was dressed in a silver jacket and dark-colored pants, and he was either riding or walking in the road with a bicycle which had reflectors on its pedals, front spokes, and one reflector that was rear-facing. The collision occurred where there was a slight curve to the right in the road. Hu was in a northbound lane, not using the separate designated bicycle path, which ran parallel to Dougherty Road and approximately 50 feet east of the northbound traffic lanes. The approximate initial point of impact between Hu and Smith’s vehicle was the front bumper and grill.

Hu and his bicycle were thrown to the ground. The bicycle’s seat was detached from its frame; the rear tire was crushed flat, and the body of the bicycle contorted. Hu landed on the hood and windshield of Smith’s car and was later found on the roadway. He suffered severe head and body trauma; Hu was pronounced dead on scene by the responding paramedics.

Respondent claimed he stopped but did not see Hu

The hearing judge rejected Smith’s testimony for several reasons. She determined that Smith did not render aid because those facts were conclusively proven by Smith’s no contest plea to felony hit-and-run—one element being the failure to stop and render aid.

Review Board

It is unreasonable for Smith, after hitting a 212-pound man wearing a silver jacket and a bicycle with reflectors on it, to conclude it was a rock or a deer…

The severity and nature of the damage to Smith’s car is inconsistent with him hitting “a rock or deer” as he claimed. There was a vertical tire mark on the front and center of the car; a dent through the grill and front spoiler; the windshield was shattered; parts of the car were broken off and left in the roadway; and pieces of glass were shattered inside Smith’s car, along with Hu’s hair embedded in the dashboard and speaker.

Probation violation

Smith exhibited further contempt for the law by violating his criminal probation just two weeks after it was imposed, when his drug test showed the presence of cocaine and its metabolite in his system. Despite having admitted to violating probation in the superior court, Smith testified during his disciplinary trial that he never consumed cocaine and explained that he admitted to the violation only so he could be released in time for his daughter’s birth. The hearing judge rejected Smith’s testimony and determined there was clear and convincing evidence in the record, which included the laboratory test results showing the presence of cocaine and its metabolite in Smith’s system. Smith did not present any evidence to contradict these findings, and we affirm the judge’s determination.

Proposed sanction

This serious breach of Smith’s duty to society caused a death. The physical and emotional consequences of Smith’s misconduct cannot be overstated. We also emphasize that Smith lacked candor in dealing with the police in the aftermath of the collision, and he further disregarded his probation conditions. Honesty and candor are critically important traits to the legal profession, and any deficiency is of serious concern.

Based on the facts of this case, we conclude that anything less than disbarment would fail to protect the public and the courts and would undermine the confidence in the legal profession that our high standards are meant to maintain. Accordingly, Smith should be disbarred and required to demonstrate by clear and convincing evidence in a reinstatement proceeding that he is fully rehabilitated over an extended period of time before he is entitled to again practice law.

(Mike Frisch)