In the Matter of Dean Edward Smart (Review Dept. 2020) 5 Cal. State Bar Ct. Rptr. 713
Court: California State Bar Court, Review Department
Judge: McGill, J.
Charges Brought Against
Attorney Dean Edward Smart faced disciplinary proceedings after pleading guilty in Orange County Superior Court to two felonies: assault with force likely to produce great bodily injury under Penal Code section 245(a)(4) and discharging a firearm with gross negligence under Penal Code section 246.3(a). These convictions stemmed from a violent incident in January 2015, when Smart, while heavily intoxicated, called a massage service, pinned the woman who arrived to his bed while naked, fought with her bodyguard, and fired a handgun in a residential neighborhood.
The State Bar hearing judge found that the surrounding facts demonstrated moral turpitude under Business and Professions Code section 6106 and recommended disbarment. The Review Department affirmed that recommendation, finding no compelling mitigation sufficient to depart from the presumptive discipline for felony convictions involving moral turpitude.
Defenses
Smart argued that his conduct did not involve moral turpitude and claimed that he acted in self-defense after being pepper-sprayed by the bodyguard. He further asserted that hearsay statements in police reports should not have been relied upon and that his intoxication clouded his recollection of the event. He also contended that his statements to the police and 911 operator were not deliberate misrepresentations but were made under distress and confusion.
The Review Department rejected these arguments. It held that Smart’s guilty plea to felony assault conclusively established culpability and precluded a self-defense theory. The panel found that the police reports were properly admitted by stipulation without objection, allowing reliance on victim statements. It deferred to the hearing judge’s credibility findings, noting that Smart’s testimony lacked credibility while the victims’ statements were consistent and corroborated by physical evidence. The court concluded that pinning the woman to the bed while naked, violently choking the bodyguard, and firing a gun in a residential area exhibited “flagrant disregard for law and safety,” clearly constituting moral turpitude.
Mitigation
Smart presented evidence of long-term alcoholism, major depressive disorder, and post-traumatic stress disorder. His psychotherapist, Dr. Mel Glass, testified that Smart’s alcoholism and anxiety directly contributed to his violent behavior, but that his sobriety at the time of trial had lasted only six months. The Review Department acknowledged his emotional and substance-related issues but held that they did not qualify as mitigation because the record did not demonstrate sustained rehabilitation or that the conditions no longer posed a risk of recurrence.
The panel assigned some mitigation for his 27 years of prior discipline-free practice, substantial mitigation for his cooperation with the State Bar (stipulating to facts and evidence), and significant mitigation for good character testimony from eight witnesses, including three attorneys. It also credited his acceptance of responsibility and recognition of his alcoholism. However, it found that his efforts at rehabilitation were still “in an early phase,” and the mitigating factors were not “most compelling” under the standards.
Outcome
The Review Department affirmed that the facts surrounding Smart’s convictions involved moral turpitude and concluded that disbarment was the only discipline consistent with the protection of the public and the integrity of the profession. The court emphasized that Smart’s conduct—physical assault, misuse of a firearm, and gross intoxication—demonstrated contempt for law and disregard for public safety. While acknowledging his remorse, cooperation, and character witnesses, the panel determined these were insufficient to overcome the presumption of disbarment under the then-applicable Standard 2.15(b) of the Rules of Procedure.
The court ordered Smart disbarred and required compliance with California Rules of Court, rule 9.20, including notification to clients and restitution of discipline costs under Business and Professions Code section 6086.10. The opinion underscored that while rehabilitation efforts were commendable, “anything less than disbarment would fail to protect the public and the courts and would undermine confidence in the legal profession.”
Sanctions Table
| Rule/Statute Violated | Findings | Mitigation | Sanction |
|---|---|---|---|
| Bus. & Prof. Code §6106 | Moral turpitude based on assault and firearm misconduct | Good character, cooperation, partial rehabilitation | Disbarment |
| Penal Code §245(a)(4) | Assault with force likely to cause great bodily injury | Some mitigation for alcoholism and insight | Disbarment |
| Penal Code §246.3(a) | Grossly negligent firearm discharge endangering public | 27 years of discipline-free practice | Disbarment |