In the Matter of Ernest L. Anderson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 39

Court: State Bar Court of California, Review Department | Date: April 17, 1990 | Presiding Judge: Pearlman, P.J. (opinion), with Norian, J. and Stovitz, J. concurring.

Charges Brought Against Respondent

Attorney Ernest L. Anderson was referred for State Bar disciplinary proceedings following his second criminal conviction for driving under the influence of alcohol (Veh. Code § 23152(a)). The matter originated as a “conviction referral” from the California Supreme Court under Business & Professions Code §§ 6101–6102 and Rule 951 of the California Rules of Court. Anderson had a prior 1984 DUI conviction and a later third conviction in 1989, creating a pattern of repeated criminal conduct. The hearing referee recommended a five-year stayed suspension with three months’ actual suspension, but the State Bar examiner petitioned for review, arguing that the recommended discipline was inadequate.

Defenses and Arguments

Anderson, represented by counsel, admitted the convictions but contended that no moral turpitude was involved, only “other misconduct warranting discipline.” The State Bar examiner initially conceded that moral turpitude was not present and argued only about the degree of discipline. Anderson’s counsel relied on that concession and presented character evidence rather than new evidence addressing moral fitness or aggravation. At oral argument before the Review Department, he urged remand if the panel were to reconsider moral turpitude as an issue not fully litigated below.

Review Department Findings

Presiding Judge Pearlman held that once the Review Department has jurisdiction, all issues—including moral turpitude—are subject to independent review under Rule 453(a). The panel noted that the question of moral turpitude is ultimately a legal issue for the Supreme Court, but must be resolved based on all facts and circumstances surrounding the convictions. The Department found that neither the parties nor the hearing referee had adequately addressed the Supreme Court’s order directing consideration of moral turpitude, and that aggravating facts in the record made the issue closer than portrayed by the examiner.

Facts and Aggravation

The record revealed that Anderson had served as a former deputy district attorney who personally prosecuted 30–40 DUI cases, demonstrating his awareness of the dangers of drunk driving. Despite this knowledge, he drove intoxicated on multiple occasions over five years, at times without a valid driver’s license and with blood-alcohol levels far above the legal limit. The Review Department compared these circumstances to In re Alkow (1966) 64 Cal.2d 838, where vehicular misconduct showing disregard for public safety was held to involve moral turpitude. While not as severe as Alkow’s vehicular manslaughter, Anderson’s repeated disregard for the law and public safety raised comparable concerns.

Remand and Consolidation

Because a second referral proceeding for Anderson’s third DUI conviction (1989) was pending before Judge Jennifer Gee, the Review Department determined that the two matters should be consolidated. The panel remanded the case (No. 88-C-14303) to the Hearing Department with instructions to determine whether the facts and circumstances of the 1985 conviction (and related 1984 conviction) involved moral turpitude, to consider any additional evidence, and to make a single recommendation covering both convictions. Consolidation, the court held, would provide the Supreme Court with a unified record analyzing all three convictions and avoid duplicative proceedings.

Legal Principles

• The Review Department’s review is independent and not bound by the State Bar examiner’s concessions.
• Whether conduct involves moral turpitude is a question of law for the Supreme Court, to be decided on all facts and circumstances.
• Respondents have a duty to present all favorable evidence; they cannot rely on the examiner’s stipulations alone.
• Consolidation of related conviction matters is encouraged to ensure completeness and efficiency in disciplinary records.

Outcome

The Review Department did not impose final discipline but instead remanded the matter for further hearing before Judge Gee. She was instructed to determine whether moral turpitude was present and to issue a single recommendation covering both DUI-related referrals. The decision emphasized the duty of candor and the public-protection purpose of discipline in cases involving repeated criminal conduct, even where moral turpitude is not conclusively established.