In the Matter of Emil Walter Herich (Review Dept. 2021) 5 Cal. State Bar Ct. Rptr. 820

Court: California State Bar Court, Review Department

Judge: McGill, J.

Charges Brought Against

Attorney Emil Walter Herich was charged following his second misdemeanor DUI conviction. The Review Department examined whether the facts and circumstances of his conviction involved moral turpitude or other misconduct warranting discipline. The Office of Chief Trial Counsel (OCTC) argued that Herich’s repeated false statements to police after a drunk-driving accident constituted moral turpitude and that his conduct reflected a pattern of substance abuse. Herich denied these assertions, arguing that discipline was unnecessary and that his behavior did not affect his law practice.

The case arose from a 2018 collision where Herich, while driving with a blood alcohol level of 0.18%, crossed into oncoming traffic, injuring two people. He falsely told police he had not consumed alcohol, was driving from his office rather than a bar, and refused field sobriety tests. He had a prior 2012 DUI conviction and had completed court-ordered alcohol education. The Review Department reviewed whether these repeated violations showed moral turpitude or other misconduct warranting discipline.

Defenses

Herich argued that his false statements to police were not moral turpitude, that his conduct bore no nexus to his fitness to practice law, and that discipline was unnecessary because his professional work had not suffered. He claimed to have addressed the issue by abstaining from driving altogether. The Review Department rejected these arguments, holding that the lies to police and repeated drunk driving demonstrated other misconduct and a clear pattern of alcohol abuse. The court cited In re Kelley (1990) 52 Cal.3d 487, finding that multiple DUI convictions establish a nexus between alcohol misuse and the practice of law even without evidence of direct impairment in professional performance.

Mitigation

The court credited several mitigating factors, though with limited weight. Herich had practiced 26 years without prior discipline, but the court found his misconduct was not unlikely to recur since his first DUI failed to rehabilitate him. He received moderate mitigation for cooperation through stipulations that saved court time, but none for accepting culpability. Moderate mitigation was also given for good character, based on testimony from longtime colleagues and friends who described him as honest and professional, although many were unaware of the full extent of his misconduct. The court also credited his pro bono work in a multi-year civil rights case and representation of friends without payment, and some mitigation for remorse and recognition of wrongdoing, as he accepted fault in the civil case and cooperated in the proceedings.

Outcome

The Review Department found that Herich’s conduct did not rise to moral turpitude but did constitute other misconduct warranting discipline under Standard 2.16(b) of the Standards for Attorney Sanctions. His repeated DUI offenses, false statements to police, and continued minimization of the seriousness of his alcohol problem reflected ongoing risk to the public. The court concluded that a public reproval with conditions was appropriate to protect the public and impress upon Herich the seriousness of his conduct.

Herich was ordered publicly reproved for one year with conditions including attendance at an abstinence-based self-help group, participation in State Bar Ethics School, quarterly compliance reports, and full adherence to the State Bar Act and Rules of Professional Conduct. The court emphasized that while his law practice was not yet affected, his alcohol use posed a continuing risk that required proactive discipline.

Sanctions Table

• judge-mcgill
• public-reproval
• dui
• alcohol-abuse
• false-statements
• good-character
• pro-bono
• remorse
• mitigation