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In the Matter of

July 29, 2011


The opinion of the court was delivered by: Remke, P. J.



Respondent Sean Patrick Howard seeks review of the hearing judge's decision to impose a public reproval based on his conviction of misdemeanor violations of Penal Code sections 415 (disturbing the peace) and 647, subdivision (f) (disorderly conduct, public intoxication). Howard contends that neither his conviction nor the facts and circumstances surrounding it warrants discipline. The State Bar asks us to affirm the decision.

While this case involves an isolated incident of criminal misconduct with no evidence of physical harm, the surrounding factors include Howard's aggression toward law enforcement and support imposing moderate discipline. Based upon our independent review (Cal. Rules of Court, rule 9.12), we agree with the hearing judge that Howard's misconduct warrants a public reproval.


On April 4, 2011, we granted Howard's request for summary review under rule 5.157 of the Rules of Procedure of the State Bar. On summary review, the hearing judge's decision is final as to all material findings of fact and the parties are bound by those facts. The issues on review are limited to: "(1) contentions that the facts support conclusions of law different from Opinion_Frm (03/11) those reached by the hearing judge; (2) disagreement about the appropriate disposition or degree of discipline; or (3) other questions of law."

Further, any legal issue not raised by the parties on summary review is waived. (Rules Proc. of State Bar, rule 5.157(C).) Although Howard filed his reply memorandum two days late and without a motion for late filing, we considered the issues raised in his brief and submitted this matter on May 27, 2011.


A. The Hearing Judge's Binding Factual Findings

Howard was admitted to practice law in 1992 and has no prior record of discipline.

Howard became highly inebriated while attending a Celtic Festival at the Sonora County Fairgrounds (Festival) on March 14, 2009. Other attendees reported to Festival security that Howard was being obnoxious and bumping into people while dancing. When Festival security guards approached him, he was verbally aggressive and repeatedly yelled, "Am I being detained?" Howard confronted the Festival head of security so closely that he spit on her face while yelling at her, and she asked him to leave.

After Howard refused to leave the Festival, the Sonora Police were called to intervene. Howard was so aggressive toward the police officers that they shot him twice with a Taser gun and arrested him. His blood alcohol registered .19% when he was booked at the police station. Howard was charged with one count of violating Penal Code section 647, subdivision (f) (disorderly conduct, public intoxication) and two counts of violating section 148, subdivision (a)(1) (resisting arrest). On April 8, 2010, Howard pled guilty to misdemeanor violations of Penal Code section 415 (disturbing the peace), which was added prior to the plea, and section 647, subdivision (f). The resisting arrest charges were dismissed. He was sentenced to pay fines, perform 150 hours of community service and attend AA/NA 12 times within 90 days.

B. Howard's Aggressive Conduct While Intoxicated Warrants Discipline

For purposes of attorney discipline, Howard's conviction for public intoxication and disturbing the peace is conclusive evidence of his guilt of all requisite elements of those crimes. (Bus. & Prof. Code § 6101, subd. (a).) *fn1 The parties agree that Howard's offenses did not involve moral turpitude either inherently or in the surrounding facts and circumstances. (In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, 214-217 [no moral turpitude found despite assaultive and uncooperative conduct towards arresting officers].) However, even when an attorney does not commit a felony or a crime of moral turpitude under Business and Professions Code sections 6101 and 6102, we may recommend discipline if "other misconduct warranting discipline" surrounds the conviction. (In re Kelley (1990) 52 Cal.3d 487, 494-495.) On summary review, Howard contends only that the facts do not support the hearing judge's conclusion that he committed other misconduct warranting discipline. We disagree. Howard characterizes his misconduct as nothing more than a single instance of "generalized obnoxiousness" stemming from intoxication. Indeed, if his disorderly conduct were limited to obnoxious behavior, that alone may not warrant discipline. (In re Kelley, supra, 52 Cal.3d at p. 496 ["unreasonable to hold attorneys to such a high standard of conduct that every violation of law, however minor, would constitute a ground for professional discipline"]; In the Matter of Babero (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 322, 328 [conviction matter dismissed where "singular" incident resulting in conviction for DUI and fighting in public did not involve "evidence of disrespect for the law or dangerous or violent criminal behavior"].) But Howard passed the threshold of a minor violation when he refused to leave and became so belligerent and aggressive that the arresting police officers Tasered him twice. Historically, alcohol-related arrests unrelated to an attorney's ...

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