In the Matter of Respondent O

Facts Leading to Discipline

Respondent O was admitted to the California State Bar in 1983 and also served for many years as a reserve police officer. In June 1990, while driving home late at night after court and dinner with another officer, respondent became involved in a freeway confrontation with occupants of another vehicle on a crowded roadway.

The incident escalated after repeated lane changes and braking maneuvers by both vehicles. Respondent observed what he believed to be a long cylindrical object protruding from the other vehicle and then heard a loud popping sound as his driver’s side window shattered. Believing he had been shot or shot at, respondent retrieved a lawfully carried firearm and fired a single shot from his moving vehicle toward the other car.

The bullet entered the rear passenger window and struck a fifteen-year-old passenger in the face, causing severe and permanent injuries. It was later determined that the window had been shattered by a baseball bat, not a firearm. Respondent initially contacted law enforcement without disclosing that he had fired his weapon, later doing so after learning that someone had been seriously injured.

In 1991, respondent entered a no contest plea to one felony count of assault with a firearm, with an enhancement for discharging a firearm from a motor vehicle causing great bodily injury. He was placed on formal probation with jail time, restitution, and counseling. The conviction was referred to the State Bar Court for determination of moral turpitude or other misconduct warranting discipline.

Charges / Basis for Discipline

The disciplinary proceeding arose from respondent’s felony conviction for assault with a firearm. The issue before the State Bar Court was whether the facts and circumstances surrounding the conviction involved:

• Moral turpitude; or
• Other misconduct warranting discipline under the Business and Professions Code.

The hearing judge initially found neither moral turpitude nor other misconduct and dismissed the matter. The Office of Trial Counsel sought review.

Defenses Raised

Respondent argued that discipline was unwarranted because:

• He acted in perceived self-defense after believing he had been shot or was about to be shot;
• He fired only a single shot and attempted to minimize risk;
• The incident lacked any nexus to the practice of law;
• His conduct did not demonstrate moral unfitness or a disregard for public safety.

Respondent further argued that the conclusive presumption of guilt from his conviction should not preclude consideration of self-defense in determining culpability for discipline.

Court’s Ruling

The Review Department reversed the dismissal. The court held that under Business and Professions Code section 6101, respondent’s felony conviction conclusively established that he unlawfully committed the elements of assault with a firearm and could not relitigate self-defense to negate culpability.

Although the court agreed that assault with a firearm does not constitute moral turpitude per se, it concluded that the surrounding circumstances demonstrated other misconduct warranting discipline. The court emphasized respondent’s role as a trained reserve police officer, his active participation in a dangerous freeway confrontation, and the extreme risk posed to innocent third parties.

The Review Department found that respondent’s conduct showed a reckless disregard for public safety, even if he subjectively believed he was in danger. However, because the hearing judge had dismissed the case without making findings on aggravation or mitigation, the record was incomplete as to the appropriate level of discipline.

Accordingly, the matter was remanded to the hearing judge for further proceedings solely on the degree of discipline to be imposed.

Disposition

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