In the Matter of Mesce (1993)

Overview

This case addresses the standards for involuntary inactive enrollment under Business and Professions Code section 6007(c) where an attorney’s criminal conduct, substance abuse, and repeated professional lapses demonstrate a substantial threat of harm to clients and the public. The Review Department reversed the hearing judge and ordered immediate inactive enrollment.

Facts

The State Bar sought to enroll respondent Joseph Anthony Mesce inactive under Business and Professions Code section 6007(c). The application relied on a combination of criminal convictions, pending felony charges, and sworn testimony from preliminary hearings demonstrating ongoing misconduct and impairment.

Mesce pled guilty to misdemeanor contempt after failing to appear on behalf of a client for sentencing in a criminal matter and failing to notify the court. He also incurred two Vehicle Code violations for driving without a valid license.

More serious evidence emerged from two separate criminal incidents in 1993. On one occasion, Mesce brought a concealed container of methamphetamine into a courthouse while attempting to visit an incarcerated client. After refusing to submit to a search, he discarded the drug on the courthouse floor in an apparent attempt to destroy evidence. On another occasion weeks later, Mesce was stopped for a traffic violation while traveling with a client; police discovered a large quantity of methamphetamine (over 13 grams net weight) in a briefcase associated with him, and officers observed that he appeared to be under the influence of a controlled substance.

Mesce was awaiting trial on felony charges for possession, possession for sale, and transportation of methamphetamine, as well as misdemeanor charges for being under the influence of a controlled substance. Additional pending allegations included attempted bribery of a witness and solicitation of perjury, though the Review Department later concluded that evidence was insufficient to rely on those allegations for purposes of inactive enrollment.

Despite these events, Mesce did not participate in the inactive enrollment proceedings and offered no evidence of rehabilitation or recognition of a substance abuse problem. Although he was already suspended at the time, he retained the ability to resume practice upon payment of fees and restitution absent further court action.

Charges / Basis for Inactive Enrollment

Defenses

Mesce did not appear or file opposition papers in the inactive enrollment proceedings. The hearing judge initially focused narrowly on the absence of proven client harm and declined to order inactive enrollment.

Mitigating and Aggravating Factors

• Mitigation: Prior discipline considered but given limited weight due to its nature and stipulations.
• Aggravation: Repeated criminal conduct; missed court appearances; possession of illegal drugs in court; apparent substance abuse; lack of insight or rehabilitation; risk to both clients and the public.

Outcome

The Review Department held that the hearing judge abused discretion by focusing solely on client harm and failing to consider the substantial threat to the public. It concluded that sworn testimony from the preliminary hearings established a reasonable probability that the State Bar would prevail in underlying disciplinary proceedings and demonstrated a clear likelihood of future harm.

Accordingly, the Review Department ordered Mesce enrolled inactive pursuant to Business and Professions Code section 6007(c), effective five days after service of the order.

Sanctions Table