In the Matter of Frascinella
(Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 543

Overview

Attorney Phillip Frascinella was convicted of two counts of exhibiting a replica firearm in a threatening manner under Penal Code §417.2(a). The Review Department affirmed a finding that the acts involved moral turpitude, rejecting his evidentiary objections and arguments that no harm occurred. The decision emphasized that threatening acts demonstrating disregard for human life—even when committed with a replica gun—are inconsistent with the integrity required of attorneys.

Factual Background

On September 2, 1988, Frascinella, a Los Angeles attorney and tenant in an office building, received a three-day notice to quit from his landlord. Angered, he descended to the building’s first floor with a realistic replica handgun. He pointed it at the receptionist, Stephanie Hart, from 10 to 15 feet away, in a two-handed stance, ordering her attention. Hart testified that she heard a click, believed the trigger had been pulled, and feared she would die. Frascinella then left, leaving the torn notice taped back together on her desk.

Moments later, he proceeded to another office on the third floor, where three employees — Margo Payne, Jennifer Hale, and another — were working. Frascinella entered, shouted “Freeze!”, and pointed the gun at them in a sweeping motion. He pulled the trigger, again producing a clicking sound. Hale testified that he aimed the gun six inches from her face while maintaining a “cold, blank stare.” Both women feared for their lives. When police arrived, they recovered the replica firearm from Frascinella’s desk; it appeared real until close examination revealed the barrel was sealed.

Frascinella pled no contest to two counts of violating Penal Code §417.2(a) and received probation, a fine, and community service. He complied with those criminal conditions but was referred to the State Bar under Business and Professions Code §§6101–6102 to determine whether the acts involved moral turpitude.

Proceedings and Issues on Review

The hearing referee found the conduct entailed “moral turpitude and misconduct warranting discipline.” Frascinella, appearing in pro per, challenged the decision, arguing:

• His declarations in mitigation (letters from clients) were improperly disregarded.
• Hearsay and irrelevant testimony were admitted.
• His criminal acts did not involve moral turpitude since no one was harmed and the weapon was fake.

The Review Department rejected these claims. It held the client declarations were irrelevant because they shed no light on the charged incident. Witness testimony regarding the events and the officer’s observations was properly admitted; Frascinella had waived hearsay objections by failing to attend the hearing. The court deferred to the referee’s credibility findings, emphasizing that demeanor evidence supported the conclusion that victims genuinely feared for their lives.

Findings and Moral Turpitude Analysis

The Review Department found that the facts and circumstances of the conviction involved moral turpitude. Although simple assault is not inherently a crime of moral turpitude, the court determined that Frascinella’s premeditated conduct — returning to confront multiple victims and intentionally creating terror — demonstrated “a flagrant disregard toward human life.”

The opinion reaffirmed that moral turpitude is not confined to crimes of dishonesty or financial gain but encompasses conduct reflecting “baseness, vileness, or depravity” contrary to professional duty. The court distinguished earlier cases such as In re Larkin (1989) 48 Cal.3d 236 (assault arranged through another) and In re Otto (1989) 48 Cal.3d 970 (domestic assault influenced by alcohol), holding that Frascinella’s acts lacked mitigating factors like intoxication or loss of control and instead showed deliberate intent to threaten.

Conclusion

The Review Department, per Judge Norian, joined by Presiding Judge Pearlman and Judge Stovitz, affirmed the referee’s moral turpitude finding. It remanded the case to the hearing department to recommend appropriate discipline, stressing that threatening behavior using even a replica firearm reveals a disregard incompatible with professional ethics.

Sanctions Table