In the Matter of Kenneth Lawrence Carr

Facts

Kenneth Lawrence Carr was admitted to the California State Bar in 1976. In 1988, the California Supreme Court disciplined Carr following two criminal convictions for driving under the influence. That discipline included a two-year suspension, stayed on conditions of six months’ actual suspension, five years of probation, and strict compliance with probation conditions, including abstinence from intoxicants and non-prescribed drugs.

Among the probation terms were two key requirements: (1) Carr was required to submit quarterly probation reports, and (2) he was required to abstain from alcohol and non-prescribed drugs and report that abstinence in any report required under the conditions of probation.

Carr submitted quarterly probation reports in April and July 1989 stating that he had complied with all “valid, legally reasonable and enforceable” probation conditions. However, the reports did not explicitly state that he had abstained from alcohol and non-prescribed drugs. Carr later testified that he intentionally did not include such language because he believed it was not required.

After each report was filed, State Bar probation staff notified Carr that his reports were deficient because they failed to include the required abstinence statement. Carr declined to amend or correct the reports, maintaining that his interpretation of the probation conditions was correct.

The State Bar initiated probation revocation proceedings, alleging that Carr willfully violated the terms of his probation by failing to include the required abstinence declaration in his quarterly reports.

Charges

• Failure to comply with probation conditions by omitting a required abstinence statement in quarterly reports
• Willful violation of probation terms imposed by the California Supreme Court

The matter was prosecuted as a probation violation rather than as new substantive misconduct.

Defenses

Carr raised several defenses. First, he argued that his probation reports were sufficient because they affirmed compliance with all “valid, legally reasonable and enforceable” probation conditions. He contended that no specific language was required to report abstinence.

Second, Carr asserted that the abstinence-reporting requirement applied only to reports made in response to specific requests by probation personnel, not to routine quarterly reports.

Finally, Carr argued that he acted in good faith based on his interpretation of the probation order and therefore lacked the willfulness necessary to establish a probation violation.

Court’s Ruling

The Review Department rejected Carr’s defenses and affirmed the finding of a probation violation. The court held that interpretation of a probation order is a question of law, not subjective belief, and that the abstinence condition unambiguously required Carr to report abstinence in all required reports, including quarterly reports.

The court further held that Carr’s reports were insufficient because they did not clearly and unequivocally state compliance with the abstinence condition. His admitted decision to omit the statement constituted a willful violation, even if motivated by a claimed good faith belief.

While the Review Department rejected certain aggravating findings based on inadmissible hearsay, it upheld aggravation based on Carr’s extensive prior discipline and his refusal to correct the reports after being advised they were deficient.

Mitigation was limited. Although Carr eventually submitted compliant reports after the hearing judge ruled against him, the court gave this little weight, noting the violation — and discipline — could have been avoided had he corrected the reports earlier.

Disposition and Sanctions