The California Supreme Court is debating whether or not to make any conviction for possession of child pornography a crime that mandates a lawyer’s equivalent of the death penalty: disbarment.

Citing “moral turpitude” as the reason to revoke a lawyer’s license, the court is being asked to decide whether a conviction for child pornography possession should continue to be reviewed on a case-by-case basis, or whether the crime is so morally reprehensible that a conviction involving possessing sexual images of persons under the age of 18 demands disbarment.

A suspended lawyer from Orange County is at the center of this controversy. He pled guilty to a single felony count of child pornography possession in April, 2009 and is facing disbarment.

Supreme Court Justices heard from his counsel earlier in December, as well as from attorneys representing the California state bar. Counsel for the suspended attorney argue that while he should be disciplined for his crime, the facts surrounding his conviction do not meet the criteria of behavior that is so morally depraved for him to be disbarred.

The state bar attorney argues that the integrity of the practice of law will be compromised if anything other than disbarment is permitted upon a conviction for this crime.

What is Moral Turpitude?

Moral turpitude means conduct that is considered contrary to community standards of justice, honesty or good morals. Crimes involving moral turpitude have an inherent quality of baseness, vileness or depravity with respect to a person’s duty to another or to society in general.

Some criminal offenses are so serious that they amount to “moral turpitude per se” – meaning they are grounds for automatic disbarment. These include felony convictions for grand theft, forgery, perjury, fraud and, of course, first degree murder. However, what constitutes “baseness, vileness or depravity in the private and social duties” has evolved along with social changes.

Currently, California has no set standard on the issue of whether child pornography possession qualifies as a crime of moral turpitude per se, thus subjecting an attorney convicted of the offense to automatic disbarment.

This is a case of what is known as “first impression,” meaning it is the first time the California Supreme Court has been asked to rule on this issue.

The Lawyer’s Case

Former military lawyer Gary Grant was investigated by Immigration and Customs Enforcement (ICE) for being in possession of unlawful pornography in 2007. He was prosecuted by the Orange County District Attorney’s Office and ultimately pled guilty to one count of violating Penal Code Section 311.11(a) – felony possession of material depicting minors engaged in sexual conduct. He was sentenced to 90 days in jail, probation including counseling, and was required to register for life as a sex offender.

Grant insists he never intentionally sought out child pornography and when he discovered images on his computer of what was later determined to be pornographic images of 14 to 16-year-old girls, he “instantly deleted” them.

In addition to his sentence, a state bar trial judge recommended Grant be disbarred. However, that decision was reviewed and instead he received a two-year suspension.

Review Judge Catherine D. Purcell of San Francisco wrote, “absent proof that Grant sought out child pornographic images, displayed a sexual interest in children, or otherwise intended to harm a minor, we do not believe the facts and circumstances surrounding his conviction support a moral turpitude finding.”

Unsatisfied with the review, lawyers representing the state bar appealed Grant’s suspension to the California Supreme Court. Earlier this month, the court heard oral arguments from both sides. A final disposition is expected in March 2014.

Should Lawyers Be Disbarred for Possessing Child Pornography?

A criminal conviction is not necessarily a bar to practicing law. A criminal conviction is subject to disciplinary proceedings, up to and including disbarment. Crimes of moral turpitude require that a lawyer be barred from practicing law.

Society finds anything associated with child pornography repugnant, so it is understandable that the California Bar would want to automatically disbar any attorney convicted of a crime where a child has been exploited. Protecting the integrity of the profession demands so.

However, the flaw in the state bar’s argument is that “child pornography” may or may not involve exploited children, that possession may not have been intentional, and that not everyone who is convicted of this crime meant to harm a child.

A person can be in possession of child pornography and not know it. Discovering and then deleting it doesn’t remove it from a computer’s hard drive. However, now the person knows he or she was in possession of something illegal, even if only temporarily, intentionally or not.

Moreover, while the law proscribes that you may be sentenced to up to a year in jail or three years in prison for violating Penal Code 311.11(a), the law defines possession of child pornography as a felony, regardless of the circumstances.

What Does Wallin & Klarich Think?

Defining every conviction of child pornography as morally depraved conduct leaves no room for a case by case examination of the facts. As such, applying an automatic sentence, including disbarment for an attorney, or for that matter sex offender registration, precludes any opportunity for consideration of the totality of the circumstances of the offense.

Grant may or may not be fit to continue to practice law. But that determination should not be foreclosed because his offense requires automatic disbarment. Not every child pornography crime involves evil intent.

The California Supreme Court now has the opportunity to determine whether Grant’s felony conviction for possession of child pornography represents moral turpitude per se or something less, thus entitling him and any other lawyer in this situation to a hearing to determine his or her fitness to practice law. Let us know what you think about this ongoing case.

Call Wallin & Klarich Today

If you are accused of possessing child pornography, you are facing charges that could impact your career and your entire life. The experienced criminal defense attorneys at Wallin & Klarich can help you avoid the severe consequences of a child pornography conviction.

Call our office today (888) 280-6839 so we can begin to help you. We will get through this together.