In the Matter of Philip DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737
Facts
Respondent Philip A. DeMassa, a San Diego criminal defense attorney admitted in 1971, was convicted in federal court of one count of harboring a fugitive (18 U.S.C. § 1071) and three counts of violating currency-reporting laws (31 U.S.C. §§ 5313, 5322). The harboring charge arose after he allowed a fugitive client to spend one night at his home before the client surrendered. The currency charges involved cash deposits made under $10,000 to avoid reporting; later Ninth Circuit decisions held such conduct not criminal. DeMassa had no prior discipline and was widely known for integrity and public service.
Procedural History
The Supreme Court initially placed DeMassa on interim suspension but later vacated that order, finding no immediate threat to the public. It referred the case to the State Bar Court to determine discipline for a crime involving moral turpitude per se. The hearing referee found extensive mitigation but recommended three years of actual suspension under standard 3.2. On review, the Department concluded that standard 3.2’s two-year minimum did not apply where compelling mitigation predominates and reduced discipline dramatically.
Sanctions Table
| Charge | Defense / Explanation | Mitigation | Aggravation | Outcome |
|---|---|---|---|---|
| Harboring a fugitive | Client stayed overnight at respondent’s home; respondent urged surrender and did not act for personal gain. Supreme Court held offense involved moral turpitude per se. | Extraordinary character evidence from judges, attorneys, and community; remorse; cooperation; 12 years of unblemished practice since offense. | None established by clear and convincing evidence; findings of aggravation reversed. | 60-day actual suspension; one-year stayed suspension; one-year probation. |
| Currency-reporting violations | Deposited fees in sub-$10,000 increments at bank’s request; conduct later held not criminal by Ninth Circuit. | Full cooperation; practice conformed to then-common custom. | None. | No discipline warranted. |
| Due process and factual issues | Respondent challenged findings on knowledge of alias and property supervision; Review Dept. found insufficient evidence of willful misconduct. | Credible testimony supported lack of knowledge and good-faith belief; plausible and uncontradicted record. | Referee’s adverse credibility findings rejected. | Aggravating findings vacated. |
| Final discipline | Federal felony involving moral turpitude but aberrational and without harm to clients or public. | Compelling mitigation and long-term rehabilitation. | None sustained. | Stayed suspension (1 year) with 60 days actual; Professional Responsibility Exam required. |
Holding and Significance
The Review Department affirmed that the California Supreme Court had already determined harboring a fugitive to be a crime involving moral turpitude per se but found disbarment or lengthy suspension unwarranted where misconduct was isolated and mitigation overwhelming. DeMassa’s cooperation, good faith, and distinguished record showed no ongoing danger. The case is a leading example of measured discipline in moral-turpitude convictions mitigated by exceptional rehabilitation.
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Citation: In the Matter of Philip DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737.