In the Matter of Kittrell

In the Matter of Bolden Bruce Kittrell, A Member of the State Bar.
No. 95-O-14321 Review Department of the State Bar Court Filed October 26, 2000
        Both respondent Bolden Bruce Kittrell ¹ (respondent) and the State Bar, represented by its Office of the Chief Trial Counsel (OCTC), seek review of a hearing judge's recommendation that respondent be suspended from the practice of law for five years, that the suspension be stayed, and that respondent be placed on probation for four years on conditions including that respondent be actually suspended for three years and until he establishes his rehabilitation, present fitness to practice, and present learning in the law. The hearing judge's discipline recommendation is based upon his findings that, with respect to a business transaction with a 59-year-old woman of limited means, respondent committed three violations of the former Rules of Professional Conduct of the State Bar that were effective from May 27, 1989, through September 13, 1992 ² and two violations of the Business and Professions Code. ³
        More specifically, the hearing judge found that, with respect to a business a transaction with Ms. Czarine Hope James (James), respondent committed two violations of former rule 3-300(A): first by entering into an unfair business transaction with James and second by entering into that transaction without disclosing the terms of the transaction to James in writing. The hearing judge also found that respondent violated former rule 3-300(B) by failing to inform James in writing that she could seek independent legal advice with respect to the transaction. Next, the hearing judge found that respondent violated section 6106 by engaging in acts of concealment and deception amounting to moral turpitude with respect to respondent's dealings with James. Finally, the hearing judge found that respondent violated section 6068, subdivision (o)(2) by failing to report, to the State Bar, the entry of a civil judgment against him for, among other things, fraud and breach of fiduciary duty with respect to the James business transaction. ⁴
        In making his findings that respondent violated former rule 3-300 and section 6106, the hearing judge applied principles of collateral estoppel to bind respondent to the adverse civil judgment that James obtained against respondent in the Orange County Superior Court after an eight-day jury trial (the James lawsuit). The hearing judge applied those principles to preclude respondent, in this disciplinary proceeding, from relitigating the jury's findings in the James lawsuit that respondent defrauded and breached his fiduciary duty to James. Moreover, in addition to applying principles of collateral estoppel in this proceeding, the hearing judge also bound respondent to and relied upon the evidentiary record in the James lawsuit to find, at least, the former rule 3-300 violations, the nature and extent of the section 6106 violation, and various aggravating circumstances. The hearing judge bound respondent to and relied upon the civil record without giving respondent an opportunity to attempt to contradict, temper, or explain the adverse evidence in that record. In addition, on the basis that respondent was bound to the civil record, the hearing judge precluded respondent from fully cross-examining OCTC's witnesses during the discipline phases of the trial and from fully presenting his (i.e., respondent's) mitigation evidence.
        Respondent raises numerous contentions challenging the propriety of the disciplinary trial and attacking the hearing judge's decision and discipline recommendation. We summarize respondent's contentions into the following categories. First, respondent contends that it is inappropriate to apply, in this disciplinary proceeding, principles of collateral estoppel with respect to the judgment in James lawsuit. Next, respondent contends that, even if those principles can be appropriately applied in this proceeding, their application neither establishes that he violated former rule 3-300 and section 6106 nor justifies the hearing judge's action in binding him to the evidentiary record in the James lawsuit. Then, respondent contends that the hearing judge erred in precluding respondent from fully cross-examining OCTC's witnesses during the discipline phase of the trial and from fully presenting his mitigation evidence. Finally, respondent contends that he was denied due process because the hearing judge was not impartial since his judicial salary is paid by the State Bar.
        On review OCTC asserts that all of respondent's contentions are meritless. In addition, it asserts that the hearing judge erred in not recommending respondent's disbarment.
        After independently reviewing the record (Cal. Rules of Court, rule 951.5; Rules Proc. of State Bar, title II, State Bar Court Proceedings, rule 305(a); In re Morse (1995) 11 Cal.4th 184, 207), we conclude that principles of collateral estoppel can properly be applied in this proceeding and that their application establishes that respondent engaged in acts of moral turpitude in violation of section 6106. However, under the circumstances and record in this proceeding, the application of those principles does not establish the nature and extent of those acts. Nor does the application of those principles establish that respondent violated former rule 3-300.
        Moreover, we agree with respondent's contentions that the hearing judge erred in binding respondent to and relying upon the evidentiary record in the James lawsuit to make, at a minimum, his findings regarding the nature and extent of the found former rule 3-300 and section 6106 violations and various aggravating circumstances without giving respondent an opportunity to attempt to contradict, temper, or explain the evidence in that civil record. We also agree with respondent's contentions that the hearing judge erred in precluding respondent from fully cross-examining OCTC's witnesses during the discipline phase of the trial and in precluding respondent from fully presenting his mitigating evidence. On the other hand, we reject respondent's contention challenging the impartiality of the hearing judge.
        Because the application of collateral estoppel principles neither establishes the nature and extent of respondent's acts of moral turpitude in violation of section 6106 nor the former rule 3-300 violations found by the hearing judge and because the hearing judge erred in binding respondent to the evidentiary record in the James lawsuit without giving respondent an opportunity to attempt to contract, temper, or explain that evidence, we must reverse the hearing judge's findings regarding the nature and extent of respondent's section 6106 violation as well as the hearing judge's findings that respondent violated former rule 3-300. Moreover, because the hearing judge erred in precluding respondent from fully cross-examining OCTC's witnesses during the discipline phase of the trial and from fully presenting his mitigating evidence, we must reverse the hearing judge's aggravation and mitigation findings.
        Notwithstanding the foregoing reversals, we adopt the hearing judge's factual findings and legal conclusion that respondent violated section 6068, subdivision (o)(2).
        Because we reverse most of the hearing judge's findings, we must also vacate his discipline recommendation and remand this matter for a new trial on all issues except the issues of respondent's culpability for violating section 6106, which we hold has been established under principles of collateral estoppel, and for violating section 6068, subdivision (o)(2), which we hold has been established by clear and convincing evidence independent of the application of collateral estoppel. Finally, in light of our order vacating the hearing judge's discipline recommendation and remanding the matter for further proceedings, OCTC's contention that the hearing judge erred in not recommending that respondent be disbarred is moot and, therefore, not addressed.

I. Preliminary Factual Matters and Procedural History         In December 1991 James gave respondent $61,000 for investment purposes. One investment was in the amount of $7,000; the other investment was in the amount of $54,000. The disciplinary charges against respondent deal only with the $54,000 investment. The $54,000 investment was in a loan secured by a deed of trust on real property used as a dance studio in Studio City, California. That loan went into default and the deed of trust that was to secure it was extinguished by a superior trust deed. Accordingly, James lost all of her $54,000 investment and, as noted above, sued respondent.
        James filed her lawsuit in 1993 and sued not only respondent, but also respondent's law partners and others. She sued them for, among other things, violating California and federal securities laws, legal malpractice, fraud, and breach of fiduciary duty. After trial in July 1994, the jury found respondent liable to James on each of James's causes of actions. The jury found, by a preponderance of the evidence, that respondent breached his fiduciary duties to James, that respondent defrauded James, and that, as a result of each of these wrongful acts, James incurred actual damages. The jury additionally found, by clear and convincing evidence, that respondent was guilty of oppression, malice, or fraud with respect to his breach of fiduciary duty or fraud.
        Judgment was ultimately entered for James on her breach of fiduciary duty claim because it was the claim on which the jury awarded the most damages. In addition, because the jury found that respondent was guilty of oppression, malice, or fraud by clear and convincing evidence, judgment was also entered for James on her claim for punitive damages. (Civ. Code, § 3294 [under 1987 amendments to this statute, punitive damages may be recovered in cases involving the breach of an obligation not arising in contract when it is proved by clear and convincing evidence that the defendant is guilty of oppression, malice, or fraud].) The jury awarded James $180,800 on her breach of fiduciary duty claim and $61,200 on her claim for punitive damages. After these two awards totaling $242,000 were increased to include prejudgment interest and reduced to give respondent credit of the settlement proceeds James received from respondent's law partners, a final judgment in the amount of $217,235.10 plus an additional $4,281.31 in costs was entered against respondent and in favor of James.
        Respondent appealed the judgment on the sole ground that the evidence was insufficient to support the jury's findings. The court of appeal disagreed and affirmed the judgment. Thereafter, the California Supreme Court rejected respondent's request to file an untimely petition for review. Similarly, the United States Supreme Court denied respondent's application for an extension of time to file a petition for a writ of certiorari. At that time, the judgment became final.
        In July 1997 OCTC filed a motion in limine in the hearing department. In that motion OCTC sought an order precluding respondent from relitigating those issues that were previously litigated and found against him by clear and convincing evidence in the James lawsuit. The hearing judge granted OCTC's motion. Respondent sought interlocutory review of the hearing judge's order. We denied that petition because no abuse of discretion or error of law was shown. In our order denying respondent's petition, we specifically pointed out that collateral estoppel applies only to those issues that the jury in the James lawsuit found by clear and convincing evidence.
        Thereafter, in April 1998, the hearing judge filed an order clarifying how the principles of collateral estoppel would be applied in this disciplinary proceeding. In his clarification order, the hearing judge correctly pointed out to the parties that the application of principles of collateral estoppel with respect to prior civil findings does not modify the fundamental requirement that, to establish a disciplinary violation, OCTC must prove each element of a charged violation by clear and convincing evidence. Thus, as the hearing judge correctly noted, the application of collateral estoppel will establish an element of a charged disciplinary violation only if that same element was previously found by the jury in the James lawsuit by clear and convincing evidence. As the hearing judge also correctly noted, if an element of a charged violation was not previously found by the jury by clear and convincing evidence, OCTC would be required to establish that element in this proceeding with clear and convincing evidence independent of the principles of collateral estoppel.
        Notwithstanding the admonitions in our order denying respondent's petition for interlocutory review and the hearing judge's clarification order regarding the proper application of principles of collateral estoppel in this proceeding, OCTC attempted to establish the charged former rule 3-300 and section 6106 violations solely through the application of principles of collateral estoppel without presenting any references to the record or analysis showing where and how each element of the charged violations were found by the jury in the James lawsuit by clear and convincing evidence. ⁵ Instead, OCTC left it to the hearing judge to glean through the voluminous documents that it introduced into evidence and determine whether each element of the charged violations were found by the jury by clear and convincing evidence.
        The voluminous documents OCTC introduced into evidence included copies of (1) the superior court's file in the James lawsuit (including the jury instructions and special verdicts, the judgment, the transcript of the trial, and the exhibits); (2) the court of appeal's opinion in the James lawsuit, and its order denying respondent's petition for rehearing; (3) a letter from the California Supreme Court refusing respondent's request for permission to late file a petition for review of the James lawsuit judgment; and (4) a letter from the United States Supreme Court denying respondent's request for an extension of time to file a petition for a writ of certiorari for review of the James lawsuit judgment.
        After it introduced the foregoing documents, OCTC presented the testimony of a State Bar attorney with respect to the charged section 6068, subdivision (o)(2) violation. That attorney testified that respondent did not report, to the State Bar, the entry of the civil judgment against him the James lawsuit. Respondent cross-examined that witness, and OCTC then rested.
        Respondent was then permitted to make an opening statement and to call one witness to testify. That witness is a former owner of the dance studio property that was to have been the collateral (under a third deed of trust) securing James's $54,000 investment/loan. That witness testified as to the improvements he made to the dance studio and the studio's fair market value. When respondent attempted to testify in his own defense and to present exculpatory evidence as to the adverse jury findings, OCTC objected. The hearing judge sustained OCTC's objection and precluded respondent from presenting any other evidence with respect to the former rule 3-300 and section 6106 violations on the ground that he had previously granted OCTC's motion in limine to preclude respondent, under principles of collateral estoppel, from "retrying" the James lawsuit in this disciplinary proceeding.
        The hearing judge gave the parties permission to file written closing statements and briefs on the issue of culpability. Thereafter, the hearing judge made tentative findings that respondent was culpable of misconduct, but did not specify the charges on which he found respondent culpable. ⁶ The hearing judge then scheduled a date for the disciplinary portion of the trial to begin.
        During the disciplinary portion of the trial, OCTC presented its aggravating evidence first. OCTC had James testify as to the significant harm she suffered from respondent's misconduct. (Rule Proc. of State Bar, title IV, Stds. for Atty. Sanctions for Prof. Misconduct (standards), std. 1.2(b)(iv) [harm aggravation].) OCTC also had James testify as to respondent's alleged misrepresentations to her regarding the terms of the transaction/loan and when he would return her $54,000 investment/loan to her. (Std. 1.2(b)(iii) [misconduct surrounded by dishonesty or bad faith aggravation].) The hearing judge precluded respondent from fully cross-examining James on the stated basis that he was not going to permit respondent to go into the facts of or retry the James lawsuit in the discipline phase of the trial.
        OCTC also presented the testimony of Evan Borges, who was James's attorney in the James lawsuit. Attorney Borges testified that respondent lacks remorse over and an adequate understanding of the seriousness of his (i.e., respondent's) misconduct with respect to James. During respondent's cross-examination of attorney Borges, the hearing judge precluded respondent from going into any area that respondent asserted as a defense in the James lawsuit.
        After OCTC presented its aggravation evidence, respondent presented his mitigation evidence. First, respondent testified on his own behalf. He gave a general overview of his extensive experience in dealings with loans secured by second and third deeds of trust on real property. When respondent attempted to testify as to his state of mind and his alleged good faith in dealing with James (std. 1.2(e)(ii) [good faith mitigation]), the hearing judge would not let respondent proceed. In addition, the hearing judge would not let respondent testify as to any aspect of his prior dealings or transactions with James on the stated basis that they were covered in the James lawsuit. The hearing judge also concluded that such testimony was not "a proper subject of mitigation evidence."
        Second, respondent called three character witness. (Std. 1.2(e)(vi) [good character mitigation].) These witnesses all testified that they believed respondent to be of good character. Next, respondent pointed out to the hearing judge that he had additional evidence in mitigation, but that it was not "admissible" under the hearing judge's rulings on the application of collateral estoppel. Respondent did not, however, make an offer of proof as to what that additional evidence would have been.
        After respondent presented his three character witnesses, OCTC presented the testimony of two rebuttal witnesses. Both of these rebuttal witnesses testified that they did not believe respondent to be of good character. Thereafter, the parties rested.
        The hearing judge permitted the parties to file written closing statements. Subsequently, the hearing judge filed his decision. In his decision the hearing judge made extensive findings of fact regarding respondent's dealings with James. In addition, as we noted above, the hearing judge found respondent culpable of committing three violations of former rule 3-300, committing acts involving moral turpitude in violation of section 6106, and failing to report the adverse judgment in the James lawsuit to the State Bar in violation of section 6068, subdivision (o)(2). Finally, the hearing judge's decision and his evidentiary rulings at trial establish that he reweighted the evidence in the record in the James lawsuit under the clear and convincing standard of proof applicable to attorney disciplinary proceedings and then relied upon that evidence to make his factual findings regarding the former rule 3-300 and section 6106 violations and various aggravating circumstances without giving respondent an opportunity to attempt to contradict, temper, or explain the adverse evidence in that record.

II. Principles of Collateral Estoppel         Principles of collateral estoppel may be applied to preclude an attorney from relitigating, in the State Bar Court, "an issue that was actually litigated and resolved adversely to [the attorney] in a prior civil proceeding, provided (1) that the issue resulting in the civil finding is substantially identical to the issue in the State Bar Court, (2) that the civil finding was made under the same burden of proof applicable to the substantially identical issue in the State Bar Court, (3) that the [attorney] was a party to the civil proceeding, (4) that there is a final judgment on the merits in the civil proceeding, and (5) that no unfairness in precluding relitigation of the issue is demonstrated by the [attorney]. [Citation.]" (In the Matter of Applicant A (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 318, 329; see also In the Matter of Berg (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 725, 731.)
        Furthermore, in order for a civil finding to be given preclusive effect under collateral estoppel principles, it must have been necessary to the civil judgment. (McMillin Development, Inc. v. Home Buyers Warranty (1998) 68 Cal.App.4th 896, 906.) "This requirement 'prevent[s] the incidental or collateral determination of a nonessential issue from precluding reconsideration of that issue in later litigation.' [Citation.] The requirement 'is necessary in the name of procedural fairness, if not due process itself. . . .' [Citation.]" (Ibid.)
        The application of collateral estoppel principles in attorney disciplinary proceedings does not alter the fundamental requirement that OCTC prove each element of a charged violation by clear and convincing evidence. (Golden v. State Bar (1931) 213 Cal. 237, 247.) Nor does the application of those principles alter the requirement that OCTC prove each element of an aggravating circumstance by clear and convincing evidence. (Std. 1.2(b); Van Sloten v. State Bar (1989) 48 Cal.3d 921, 933.)
        The application of collateral estoppel principles can be applied only to preclude a respondent attorney from relitigating, in the State Bar Court, an issue (i.e., fact) that was previously decided against him in a civil proceeding under the clear and convincing burden of proof. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at p. 329.) Thus, if a factual element of a disciplinary violation or an aggravating circumstance has not previously been found against the respondent by clear and convincing evidence in a prior civil proceeding, OCTC must prove that element in the State Bar Court with clear and convincing evidence independent of the application of collateral estoppel. To prove such an element, OCTC may choose to rely, in whole or in part, upon the record in the prior civil proceeding as evidence.
        Contrary to respondent's contention, the relevant testimony of a witness given in a prior civil proceeding is admissible in State Bar Court disciplinary proceedings without regard to the availability of the witness (§ 6049.2) and is to be considered and weighed by the State Bar Court as though the witness were present and testifying before it (cf. Evid. Code, § 312 [the finder of fact determines the weight and credibility of witnesses including hearsay declarants]; Code Civ. Proc., § 2025, subd. (u) [deposition testimony must be considered as if it were given in court during trial]). Moreover, under Evidence Code section 452, subdivision (d), the State Bar Court can take judicial notice of the non-testimonial matters (i.e., the pleadings, exhibits, jury findings, and other court documents) in a civil action that involves the course of conduct underlying the disciplinary charges against an attorney. (Rosenthal v. State Bar (1987) 43 Cal.3d 612, 662, fn. 11, 633-634, citing Caldwell v. State Bar (1975) 13 Cal.3d 488, 496-497; Yokozeki v. State Bar (1974) 11 Cal.3d 436, 444.)
        Whenever OCTC chooses to rely, in whole or in part, upon the record in a prior civil proceeding (whether testimonial evidence, non-testimonial matters, or both) to prove one or more elements of a disciplinary violation or an aggravating circumstance independent of the application of collateral estoppel, the evidence in the civil record as well as any factual findings made by the jury or the judge in the civil proceeding cannot be judicially noticed as conclusive or otherwise given preclusive effect in the State Bar Court, but must be assessed independently by the State Bar Court under the clear and convincing standard of proof applicable in attorney disciplinary proceedings. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at pp. 324-325, citing Rosenthal v. State Bar, supra, 43 Cal.3d at pp. 619-620, 634 and Maltaman v. State Bar (1987) 43 Cal.3d 924, 949-950, 947.) Moreover, contrary to OCTC's contentions, admissions made by a respondent attorney in a prior civil proceeding are not conclusive and cannot be given preclusive effect in the State Bar Court independently of the application of collateral estoppel even if they are admissible as party admissions under Evidence Code section 1220. (Aronow v. LaCroix (1990) 219 Cal.App.3d 1039, 1053.) Only final judgments and orders have preclusive effect. (Ibid.) Such party admissions must still be independently assessed under the clear and convincing standard of proof.
        Finally, whenever OCTC chooses to rely, in whole or in part, upon the record in a prior civil proceeding to prove one or more element of a disciplinary violation or an aggravating circumstance independent of the application of collateral estoppel, the respondent must always be given a fair opportunity, in the State Bar Court, to contradict, temper, or explain the evidence in the civil record with other evidence, including live testimony from the same witnesses who testified in the civil proceeding. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at pp. 324-325, and cases there cited.) But the respondent need not be given free reign to completely retry the civil suit in the State Bar Court with the identical evidence presented in the civil proceeding. As always, the hearing judge retains the discretion to restrict or exclude cumulative evidence. (In the Matter of Wright (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 219, 226 [hearing judge may exclude cumulative evidence]; see also Evid. Code, § 352 [judge may exclude evidence if its probative value is outweighed by the probability that its admission will necessitate the undue consumption of time]; Dixon v. State Bar (1982) 32 Cal.3d 728, 736 [hearing department has discretion to exercise reasonable control over evidence in order to avoid an unnecessarily long trial].)

III. Discussion
A.        Section 6106 and Former Rule 3-300         For the reasons stated below we hold: that the principles of collateral estoppel can properly be applied in this proceeding; that their application establishes that respondent committed acts involving moral turpitude in violation of section 6106; but does not establish the nature and extent of those acts. We further hold that the application of those principles does not establish that respondent violated former rule 3-300.
        There is no dispute that respondent was a party to the James lawsuit and that the judgment in the James lawsuit is a final judgment on the merits. Furthermore, other than making a general claim that it would be unfair to apply principles of collateral estoppel against him in this proceeding, respondent did not specifically identify any such unfairness. Respondent did not show that he had less incentive to litigate the issues in the James lawsuit, that the jury findings in the James lawsuit are inconsistent with the findings in another judicial proceeding, or that he was required to litigate under less advantageous procedures in the James lawsuit. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at p. 329, citing Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 222; see also Rest.2d Judgments, § 28 [listing various exceptions to the general rule of issue preclusion].) Accordingly, to determine whether principles of collateral estoppel can properly be applied in this proceeding, we must first determine whether there are any issues that are common to the James lawsuit and the present disciplinary proceeding. If there are, we must then determine whether they were previously adjudicated against respondent by the jury in the James lawsuit under the clear and convincing standard of proof and whether they are necessary to support the civil judgment against respondent. If there are any issues meeting these requirements, we can give them preclusive effect and use them in this proceeding to find the corresponding element or elements of the charged disciplinary violations or alleged aggravating circumstances.
        Our independent review of the record in the James lawsuit discloses that the only common issues that were found against respondent by the jury under the clear and convincing standard of proof and that are necessary to support the judgment in that lawsuit are those issues that the jury found when it unanimously answered "yes" to special finding 10. ⁷ Special finding 10 asked the jury whether it found "by clear and convincing evidence that [respondent] was guilty of malice, oppression or fraud in the conduct upon which [it based its] finding of liability for either breach of fiduciary duty or fraud." ⁸
        Because the superior court used the disjunctive conjunction "or" in the phrase "malice, oppression or fraud" in special finding 10, we cannot determine whether the jury found respondent guilty of (1) malice, (2) oppression, (3) fraud, or (4) some combination of malice, oppression, and fraud when it answered "yes" to that special finding. (Compare In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at p. 330 [where the civil judgment recites that the jury found Applicant A guilty of fraud by clear and convincing evidence]; In the Matter of Berg, supra, 3 Cal. State Bar Ct. Rptr. at p. 730-732 [where the civil jury found, by clear and convincing evidence, that Berg guilty of oppression, malice, and fraud with respect to his submitting false bills to an insurance company].) Similarly, because the superior court used the disjunctive correlative conjunction of "either . . . or" in the phrase "either breach of fiduciary duty or fraud" in special finding 10, we cannot determine whether the jury found that respondent was guilty of "malice, oppression or fraud" with respect to (1) his breach fiduciary duty to James, (2) his commission of fraud on James, or (3) both when it answered "yes" to that special finding. Nevertheless, as discussed below, we conclude that the commission of any or all of these acts involves moral turpitude in violation of section 6106, but that their commission does not establish that respondent violated former rule 3-300.

1.        Section 6106
        Section 6106 provides that an attorney's "commission of any act involving moral turpitude. . . , whether committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension." Moral turpitude has long been defined as an act "of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (In re Craig (1938) 12 Cal.2d 93, 97.) "It has been described as any crime or misconduct without excuse [citation] or any dishonest or immoral act. The meaning and the test is the same whether the dishonest or immoral act is a felony, misdemeanor, or no crime at all." (Chadwick v. State Bar (1989) 49 Cal.3d 103, 110.)
        Moreover, "[c]onduct which indicates that an attorney is unable to meet the professional and fiduciary duties of his practice may show him or her to be unfit to practice and constitute moral turpitude. [Citation.]" (In re Strick (1983) 34 Cal.3d 891, 901.) Thus, an attorney's deliberate breach of a fiduciary duty to a client involves moral turpitude as a matter of law. Further, even an attorney's non-deliberate breach of a fiduciary duty to a client involves moral turpitude if the breach occurred as a result of the attorney's gross carelessness and negligence. (Lipson v. State Bar (1991) 53 Cal.3d 1010, 1020; In the Matter of Rubens (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 468, 478.) Furthermore, an attorney's deliberate breach of a fiduciary duty or a breach resulting from the attorney's gross carelessness and negligence involves moral turpitude even in the absence of an attorney-client relationship. That is because "[a]n attorney who accepts the responsibility of a fiduciary nature is held to the high standards of the legal professional whether or not he acts in his capacity of an attorney." (Worth v. State Bar (1976) 17 Cal.3d 337, 341; see also Beery v. State Bar (1987) 43 Cal.3d 802, 813.)
        In light of the foregoing well-established law regarding moral turpitude, we conclude that an attorney's guilt of malice, oppression, or fraud, as those terms were defined for the jury in the James lawsuit, with respect to the attorney's breaching a fiduciary duty to either a client or a non-client involves moral turpitude in violation of section 6106 as matter of law. Similarly, we conclude that an attorney's guilt of malice, oppression, or fraud with respect to his commission of an act of fraud, even in the absence of a fiduciary relationship, involves moral turpitude as a matter of law. (In re Hallinan (1954) 43 Cal.2d 243, 247-248 ["Although the problem of defining moral turpitude is not without difficulty (citations), it is settled that whatever else it may mean, its includes fraud . . . . (Citations.) It is also settled that the related group of offenses involving intentional dishonesty for purposes of personal gain are crimes involving moral turpitude. (Citations.)"].) Accordingly, we hold that, under the final judgment in the James lawsuit, the jury's answer to special issue 10 is a conclusive legal determination by clear and convincing evidence that respondent committed acts involving moral turpitude in his dealings with James and that that legal determination is binding on respondent and preclusive in this proceeding under principles of collateral estoppel. Those acts of moral turpitude establish all the requisite elements of a section 6106 violation.
        However, because the superior court used, in special finding 10, the disjunctive conjunction "or" in the phrase "malice, oppression or fraud" and the disjunctive correlative conjunction "either . . . or" in the phrase "either breach of fiduciary duty or fraud," we cannot determine the factual basis for the jury's unanimous answer of "yes" to special finding 10. Because we cannot determine the factual basis for the jury's answer to special finding 10, we cannot determine the nature and extent of respondent's acts involving moral turpitude under the application of collateral estoppel principles. Nor can we determine the nature and extent of those acts by independently reviewing the record.
        Even though the hearing judge properly admitted and judicially noticed the record in the James lawsuit (§ 6049.2; Evid. Code, § 452, subd. (d)), he erred in relying upon it as evidence independent of the application of collateral estoppel principles (i.e., by reweighting the evidence in the civil record under the clear and convincing standard of proof) without first giving respondent an opportunity to attempt to contradict, temper, or explain the adverse evidence in it. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at pp. 324-325, and cases there cited.) We, therefore, must reverse the hearing judge's factual findings regarding the section 6106 violation. What is more, because the hearing judge did not give respondent an opportunity to attempt to contradict, temper, or explain the adverse evidence in the record in the James lawsuit, we cannot exercise our authority to independently review and reweigh the evidence in that civil record under the clear and convincing standard of proof to determine the nature and extent of respondent's acts of moral turpitude.
        We find no merit to respondent's contention that the term "moral turpitude" in section 6106 is unconstitutionally vague. "It is well established that 'one to whose conduct a statute clearly applies may not successfully challenge it for vagueness.' [Citation.]" (In re Kelley (1990) 52 Cal.3d 487, 497.) Thus, even assuming for the sake of argument that the term "moral turpitude" in section 6106 is so broad that people of common intelligence must guess at its meaning, we could not sustain respondent's vagueness challenge because respondent's misconduct as found by the jury in its answer to special finding 10 falls clearly within the scope of section's 6106 proscription of acts involving moral turpitude. (Ibid.) Therefore, the term "moral turpitude" as used in section 6106 is not impermissibly vague as applied to respondent in this proceeding.
        In sum, we reverse the hearing judge's factual findings regarding the nature and extent of respondent's acts involving moral turpitude and remand the matter for a new trial on those and other issues, which we identify below.

2.        Former Rule 3-300
        The requisite elements of a former rule 3-300(A) violation are that the transaction is unfair to the client or that the attorney failed to fully disclose and transmit the terms of the transaction to the client in writing in a manner that the client should be able to understand. The requisite elements of a former rule 3-300(B) violation are that the attorney failed to advise the client in writing that the client may seek the advice of an independent attorney of the client's choice or that the attorney failed to give the client a reasonable opportunity to seek such independent advice. None of these elements was expressly addressed in special finding 10, which, as noted above, inquired of the jury whether it found "by clear and convincing evidence that [respondent] was guilty of malice, oppression or fraud in the conduct upon which [it based its] finding of liability for either breach of fiduciary duty or fraud." Furthermore, none of the elements of a former rule 3-300 violation are expressly addressed in the definitions given to the jury with respect to special finding 10, which definitions are quoted above in footnote 10. Thus, the application of collateral estoppel principles does not establish that respondent violated former rule 3-300.
        Moreover, in making his factual findings regarding the former rule 3-300 violations, the hearing judge erred in reweighing the evidence in the James lawsuit under the clear and convincing standard of proof without first giving respondent an opportunity to attempt to contradict, temper, or explain that evidence. (In the Matter of Applicant A, supra, 3 Cal. State Bar Ct. Rptr. at pp. 324-325, and cases there cited.) Because of that error, we cannot exercise our authority to independently review and reweigh the evidence in the James lawsuit under the clear and convincing standard of proof and make our own findings with respect to the charged former rule 3-300 violations.
        In sum, we reverse the hearing judge's factual findings and legal conclusions that respondent violated former rule 3-300 and remand the matter for a new trial on the issue of respondent's culpability on the charged former rule 3-300 violations.

B.        Section 6068, subdivision (o)(2)
        Respondent does not challenge the hearing judge's factual findings showing that respondent failed to report, to the State Bar, the entry of the judgment against him in the James lawsuit. Nor does respondent challenge the hearing judge's culpability conclusion that respondent's failure to report the judgment violated section 6068, subdivision (o)(2). After independently reviewing the record, we agree with the hearing judge and adopt his factual findings and culpability conclusion regarding this charge.

C.        Aggravating and Mitigating Circumstances
        Aggravating and mitigating circumstances are events or factors surrounding the particular misconduct of which an attorney has been found culpable that show that a greater or lesser degree of sanction is warranted. (Stds. 1.2(b) & 1.2(e).) In that regard, aggravating and mitigating circumstances are often directly related to or dependent upon the specific misconduct found to have been committed. (See, e.g., std. 1.2(b)(ii) [found misconduct evidences multiple bad acts]; std. 1.2(b)(iii) [found misconduct surrounded or followed by bad faith]; std. 1.2(e)(ii) [good faith of attorney]; std. 1.2(e)(vii) [objective steps take by attorney to atone for consequences of the found misconduct].) Accordingly, because we have reversed most of the hearing judge's findings and conclusions regarding respondent's culpability, we also reverse the hearing judge's findings as to aggravating and mitigating circumstances. We do so in order to provide both parties with an adequate opportunity to present their aggravating and mitigating evidence with respect to whatever particular misconduct may be found on remand.
        In any event, for the reasons stated above, the application of collateral estoppel principles does not provide support for the hearing judge's aggravation findings. As with culpability, in making some of his findings in aggravation, the hearing judge reweighted the evidence in the James lawsuit without first giving respondent an opportunity to contradict, temper, or explain the adverse evidence. In addition, the hearing judge did not give respondent an opportunity to present all of his relevant mitigating evidence. These errors also require that we reverse the hearing judge's findings regarding aggravating and mitigating circumstances and preclude us from exercising our authority to independently reweight the evidence.

D.        The Hearing Judge was Impartial
        Finally, we address one remaining issue raised by respondent because it is germane to further proceedings in the hearing department on remand. Under the most generous of readings, we construe respondent's contention regarding the hearing judge's impartiality as arguing that the hearing judge was not impartial because the State Bar pays his judicial salary as mandated under section 6079.1, subdivision (d) and because the State Bar was in a funding crisis as a result of the governor's veto of the State Bar's fee bill in 1997. Respondent does not contend and cite to the place in the record where he timely filed a motion seeking to disqualify the hearing judge on these grounds as required by rule 106 of the Rules of Procedure of the State Bar, title II, State Bar Court Proceedings, and where that motion was denied. By not properly raising this issue, respondent has waived any error. (Rules Proc. of State Bar, title II, State Bar Court Proceedings, rule 302(a); State Bar Court Rules of Practice, rule 1320 ; In the Matter of Berg, supra, 3 Cal. State Bar Ct. Rptr. at p. 736.) Nonetheless, we exercise our discretion and address respondent's arguments on the merits in the interests of justice.
        We have repeatedly rejected as meritless arguments that a hearing judge is not impartial because the State Bar pays the judge's statutorily mandated salary. (See, e.g., In the Matter of Acuna (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 495, 500-501; In the Matter of Stewart (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 52, 59.) Moreover, the fact that the State Bar might use a portion of the costs that it recovers from disciplined attorneys to pay the hearing judge's salary does not create a disqualifying condition. That is primarily because the vast majority of all costs recovered are recovered in accordance with a Supreme Court disciplinary order (not a State Bar Court order) that includes an award of costs to the State Bar in accordance with the statutory provision for costs in section 6086.10. (Cf. In re Rose (2000) 22 Cal.4th 430, 439, citing In re Attorney Disciplinary System (1998) 19 Cal.4th 582, 600-601 [before the Supreme Court issues disciplinary order, it exercises its independent and inherent jurisdiction over attorney discipline and independently determines whether to impose the discipline recommended by the State Bar Court].) Respondent cannot plausibly contend that the Supreme Court's independent and statutory award of costs to the State Bar, even if made on the recommendation of the State Bar Court, creates a condition disqualifying the State Bar Court. (Accord In the Matter of Stewart, supra, 3 Cal. State Bar Ct. Rptr. at p. 59.)
        The only instance in which the State Bar Court can assess costs on disciplined attorneys is in those cases in which the State Bar Court publicly reproves the attorney. (§ 6086.10, subd. (a).) Respondent was not publicly reproved.
        Moreover, the fact that a portion of the hearing judge's salary might conceivably be paid from part of the costs the State Bar recovers from disciplined attorneys does not create a disqualifying condition because the amount of costs actually recovered are relatively nominal to the State Bar's budget. (In the Matter of Acuna, supra, 3 Cal. State Bar Ct. Rptr. at p. 501, fn. 2; compare Ward v. Village of Monroeville, Ohio (1973) 409 U.S. 57, 60 [where the mayor of Monroeville was disqualified from acting as the judge in ordinance and traffic violation cases because the fines and costs recovered for ordinance and traffic violations made up a major portion of the village's income and because the mayor had executive authority over the village's finances].)
        Finally, we also reject as meritless respondent's argument that the hearing judge was not impartial because the State Bar was in a funding crisis in 1998 during part of the trial in this matter and while this matter was under submission for a decision by the hearing judge. Throughout the State Bar's funding crisis in 1998 and early 1999, the State Bar Court Judges voluntarily agreed to temporarily receive a reduced salary from the State Bar. (In re Attorney Disciplinary System, supra, 19 Cal.4th at p. 614.) We fail to see how such a voluntary reduction in salary to permit the State Bar to operate within its budgetary constraints until the Supreme Court restored funding of the State Bar's discipline system in 1999 under rule 963 of the California Rules of Court could have plausibly created a financial interest that would have required the recusal of the hearing judge.

IV. Remand Order         Applying principles of collateral estoppel, we conclude that respondent Bolden Bruce Kittrell is culpable of violating Business and Professions Code sections 6106. Moreover, adopting the hearing judge's findings of fact and conclusions of law with respect to the charged violation of Business and Professions Code section 6068, subdivision (o)(2), we conclude that respondent is culpable of that charged violation.
        In light of the foregoing conclusions and our reversal of most of the hearing judge's findings and conclusions, we order that this matter be remanded to the hearing department for a new trial on the following issues: (1) findings of fact surrounding respondent's violation of Business and Professions Code section 6106; (2) findings of fact and conclusions of law regarding the charged violations of rule 3-300 of the former Rules of Professional Conduct of the State Bar; (3) findings of fact and conclusions of law regarding aggravating and mitigating circumstances; and (4) the appropriate level of discipline.
        On remand, the evidence shall be reopened as to both parties with respect to the above issues. However, the evidence that is presently part of the record need not be re-introduced. Moreover, the record of the James lawsuit, which was admitted into evidence in the hearing department, may be properly considered on remand by the hearing judge. However, respondent must be given a fair opportunity to contradict, temper, or explain that evidence with other evidence, including live testimony from the same witnesses who testified in the civil proceeding. Yet the hearing judge need not retry the civil suit in this disciplinary proceeding as she or he retains the sound discretion to restrict or exclude cumulative evidence and otherwise control the introduction of evidence as in any other case. The hearing judge's decision on remand should, again as in any other case, be based on a balanced consideration of all the competent evidence admitted, whether documentary, hearsay, live testimony, or other.


We concur:
OBRIEN, P.J.
STOVITZ, J.


Hearing Judge
        Carlos E. Velarde

Counsel for the Parties

For State Bar of California:
        Charles Weinstein
        Office of the Chief Trial Counsel
        The State Bar of California
        1149 S. Hill St.
        Los Angeles, CA 90015-2299

For Respondent:
        Bolden Bruce Kittrell, in pro. per.
        Airport Office Plaza, Ste. 201
        Torrance, CA 90505


¹ . Respondent was admitted to the practice of law in the State of California in December 1967 and has been a member of the State Bar since that time.

² . Unless otherwise indicated, all future reference to former rules are to these former rules.

³ . Unless otherwise indicated, all future references to sections are to sections of the Business and Professions Code.

⁴ . OCTC also charged respondent with violating section 6068, subdivision (o)(1), which requires attorneys to report, to the State Bar, the filing of three or more lawsuits against them for legal malpractice in a twelve-month period. However, the hearing judge found that OCTC failed to establish such a violation. We agree and, accordingly, adopt that finding, but also dismiss the charge with prejudice (Rules Proc. of State Bar, title II, State Bar Court Proceedings, rule 261(a)).

⁵ . OCTC did file, in the hearing department, two pleadings containing summaries and references to portions of the testimony and some of the exhibits in the James lawsuit. However, those references were only to various portions of the civil record that OCTC believed to be of particular importance or relevance in this proceeding and not to the record references needed for the proper application of collateral estoppel.

⁶ . Respondent argues at some length that the hearing judge's failure to specify his culpability findings before the discipline phase of the trial prevented respondent from being able to adequately prepare for the discipline phase of the trial. Because we reverse the hearing judge's findings as to aggravating and mitigating circumstances and remand for a new trial on those issues, respondent's contention is moot and, therefore, not addressed.

⁷ . With respect to special finding 10, the jury was instructed that "[i]f you find that [James] suffered actual injury, harm, or damage caused by [respondent's] breach of fiduciary duty or fraud, you must decide in addition whether by clear and convincing evidence you find that there was oppression, malice or fraud in the conduct on which you base your finding of liability." Because the jury found that James suffered actual damages as the result of respondent's breach of fiduciary duty and fraud, it went on to answer special finding 10.

⁸ . The jury was instructed to use the following definitions when answering special finding 10 (all of the original internal brackets in the following definitions have been omitted as unnecessary).
        "'Oppression' means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of the that person's rights."
        "'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard for the rights of others. A person acts with conscious disregard of the rights of others when he [or] she is aware of the probable dangerous consequences of his [or] her conduct and willfully and deliberately fails to avoid those consequences." (Brackets added.)
        "'Despicable conduct' is conduct which is so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people."
        "'Fraud' means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury."