CA Sup Ct: Child Pornography Possession Means Disbarment

This might seem like it should be obvious, but apparently not so much for one attorney. If you are convicted of possessing child pornography, there will be no more practice of law for you, says the California Supreme Court.

The decision arises out of the disciplinary case of Gary D. Grant, a California attorney. In 2009, he pled guilty to felonious possession or control of child pornography, in violation of California Penal Code section 311.11(a).

The conviction resulted in notice to the State Bar Court, and not surprisingly, a hearing judge determined that the conviction involved moral turpitude calling for disbarment. The Review Department disagreed, concluding that the showing of moral turpitude in Mr. Grant's case was not supported by admissible evidence, and instead of disbarment, placed him on probation for three years with various conditions, including a two-year period of suspension.

The Chief Trial Counsel from the State Bar then requested review to determine whether such an offense involves moral turpitude in every case.

Child Pornography Possession is a Per Se Moral Turpitude Offense

Under Business and Professions Code section 6102(c), summary disbarment is mandated following conviction of a felony involving moral turpitude.

The California Supreme Court had little trouble determining that possession of child pornography does in fact involve moral turpitude in every case.

Writing for the court, Justice Corrigan looked to the case of In re Lesansky (2001) 25 Cal.4th 11, 16, which set forth the test for when an offense involves moral turpitude for the purposes of attorney discipline. In that case, the Court held that:

"Criminal conduct not committed in the practice of law or against a client reveals moral turpitude if it shows a deficiency in any character trait necessary for the practice of law (such as trustworthiness, honesty, fairness, candor, and fidelity to fiduciary duties) or if it involves such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney's conduct would be likely to undermine public confidence in and respect for the legal profession."

Applying that test, the crime of child pornography was always a moral turpitude offense, wrote Corrigan, because it is intrinsically related to the sexual abuse of children and is "extremely repugnant to accepted moral standards."

Mr. Grant argued that his "simple possession" should be distinguished from the manufacture or distribution of child pornography, which he conceded would likely involve moral turpitude per se.

The Court disagreed for three reasons: 1) a consumer of child pornography directly contributes to a continuing victimization of the children depicted; 2) the recipient of child pornography perpetuates the existence of the images received, invading the privacy of the children depicted, and directly victimizing them; and 3) the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials.

As such, there was no compelling reason to differentiate between "passive" consumers and manufacturers or distributors.

"The knowing possession of child pornography is a serious breach of the duties of respect and care that all adults owe to all children, and it show[s] such a flagrant disrespect for the law and for societal norms, that continuation of a convicted attorney's State Bar membership would be likely to undermine public confidence in and respect for the legal profession."

The punishment of suspension and probation imposed on Mr. Grant by the Review Department was therefore reversed, and the California Supreme Court ordered that Mr. Grant be disbarred.

The case is IN RE: Gary D. Grant on Discipline.