The Bar Suspended Me Over The Time I Went Nuts!

The “State’s” Version of 2003

Even Though My Actions Had Nothing To Do With Clients or Courts

The following is from THE MATTER OF JOSEPH ARSHAWSKY, SBC-19-C-30255-YDR in the California State Bar Court in 2019. The Bar calls me “Respondent.” By the time this came down, I had not engaged in the practice of law since I moved to Israel in 2010.

In order to get the State Bar to agree to impose a six-month suspension, instead of summary disbarment, I had to admit that the following state’s version of the facts were true and that the facts and circumstances surrounding the offense for which I was convicted involved other misconduct warranting discipline. I had to do so because otherwise they were seeking summary disbarment. I should have just resigned when they attempted to disbar me. Instead, I decided to spill some more ink on the matter, and spend some more money. I was not interested, however, in spending enough money to hire some psychiatrist whose testimony would vindicate me. I still thinks the Bar wants to purge its ranks of the mentally ill. That’s why there is a universal character and fitness evaluation for all prospective attorneys to disclose their mental health practitioners’ notes and psych meds to the Bar as part of the admissions process.

On March 20, 2003, the Hennepin County Attorney’s Office filed a criminal complaint against me in Hennepin County District Court case no. 27-CR-03–010213. The complaint alleged one count of violating Minnesota Statute section 609.713(2) [communication to terrorize], a felony under Minnesota and California law.

On May 7, 2003, I pled guilty to the one count violation alleged in the criminal complaint.

On May 7, 2003, the Hennepin County District Court convicted me of violating Minnesota Statute section 609.713(2) [communication to terrorize], which was reduced to a gross misdemeanor at the time of sentencing under Minnesota Statute section 609.13 [notwithstanding conviction is for a felony, a conviction is deemed a gross misdemeanor if sentence imposed is within limits for a gross misdemeanor or prison sentence is stayed]. On the same date, the Hennepin County District Court sentenced me to 365 days in a county workhouse, suspended the imposition of the sentence, and placed me on probation for one year. I was also ordered to pay a $1,000 fine and complete 100 hours of community service.

On May 24, 2019, the State Bar filed a Transmittal of Records of Conviction of Attorney classifying respondent’s conviction of violating Minnesota Statute section 609.7I 3(2) [communication to terrorize] as a felony under California law pursuant to Business and Professions Code section 6102(d)(2) because the comparable California statute [Penal Code section 422(a)-Criminal Threats] is classified as a felony.

On July 5, 2019, the Review Department of the State Bar Court issued an order referring the matter to the Hearing Department for a hearing and decision recommending the discipline to be imposed in the event the Hearing Department finds that the facts and circumstances surrounding the offense for which respondent was convicted involved moral turpitude or other conduct warranting discipline. Additionally, the Review Department ordered that respondent be suspended from the practice of law effective July 29, 2019 pending final disposition of the proceeding. . .

My facts were told in this story, based on my notes from 2003, which is the truth, whereas the following facts developed by the police and investigators contain numerous lies:

[The State’s facts in contrast, are as follows:] On February 7, 2003 at approximately 9:30 p.m., respondent drank several beers and smoked marijuana while at a bar in Minneapolis, Minnesota. After respondent failed to leave the bar at closing time, respondent was physically removed from the bar by a bouncer. Respondent returned to his hotel and called 911 stating that he wished to file a police report regarding an assault that respondent alleged the bouncer committed against him. The 911 operator refused to send an officer to take a report and told respondent it was a civil matter. Respondent then spoke with hotel security personnel who refused to call 911 on his behalf. Respondent telephoned a friend who suggested to respondent that he may wish to check himself into a hospital if he was injured.

At approximately 3:00 a.m. on February 8, 2003, respondent got a ride from his hotel to Hennepin County Medical Center. According to the arrest report, respondent stood at the entrance doors of the hospital and demanded to be seen at a clinic. [This is a lie! I was trying to find the entrance to the ER. I was polite and quiet. I did not start yelling until several police officers gratuitously beat me up.] Security personnel at the hospital informed respondent that the hospital clinic was closed, but respondent continued to cause a disturbance by yelling and refusing to leave. Hospital personnel called the Minneapolis Police Department who arrested respondent for trespassing and disorderly conduct.[The Minneapolis Police who beat me up were already standing around the ambulance entrance to the ER.]

A police officer drove respondent to the Hennepin County Adult Detention Center. Respondent refused to get out of the police car as instructed by the officer. [I was placed in the car with my arms restrained about my back and kneeling on the seat facing inward. I told the officers I literally could not get out of the car.] After being removed from the car by another police officer, respondent screamed that he was being assaulted and demanded that the officers contact the Federal Bureau of Investigations (“FBI”). Respondent was booked into custody and placed in a solitary cell. [The officers pulled me from the squad car and threw me on the ground back first, causing the handcuffs to dig into my wrist and breaking my blackberry holster.]

[An hour of psychological torture is left out by the State.]

At approximately 4:00 a.m., respondent pushed the emergency button in his detention cell. When the detention employee responded, respondent stated that he had a “big dirty bomb” back at his hotel which was scheduled to go off that morning. The detention employee contacted the Minneapolis Police Department regarding the threat, and the Police Department contacted security personnel at respondent’s hotel. A search of respondent’s hotel room found no evidence of a bomb or bomb-making materials. The hotel was not evacuated. Meanwhile, respondent was interviewed by a police officer at the Detention Center. Respondent admitted to the officer that there was not a bomb in his hotel room. Respondent said that he claimed that there was a bomb in his hotel room so that the FBI would come to the jail so respondent could speak with them about the alleged violation of his civil rights by jail personnel.

[The above is a complete fabrication. The truth is in my account. All I did was ask a rhetorical question.]

On February 9, 2003, respondent was released from the Hennepin County Adult Detention Center after posting bail.

On February 17, 2003, respondent … was involuntarily admitted into the hospital pursuant to section 5150 of the California Welfare and Institutions Code. While being held as a patient, respondent was diagnosed for the first time as suffering from bipolar disorder and an acute manic psychotic episode. Respondent was prescribed medication which respondent began taking. Respondent was released from the hospital on February 19, 2003.

On February 23, 2003, according to the arrest report, respondent called the Albuquerque Police Department from a hotel in Albuquerque, New Mexico to report the theft of his marijuana and food, and a battery committed by a cab driver. When a police officer arrived to take respondent’s report, respondent appeared intoxicated and admitted to the officer that he had consumed several alcoholic beverages. After giving his report, respondent walked to a vehicle in a nearby parking lot. The police officers yelled towards respondent instructing him not to drive, but respondent started the vehicle and drove down the street. A police officer pulled respondent’s vehicle over into an alley. Respondent refused to exit his vehicle and had the music playing inside his vehicle at full volume. A police officer had to smash respondent’s passenger-side window with a club in order to remove respondent from the vehicle and arrest him. Respondent refused to submit to a breath test.

On February 23, 2003, the Albuquerque Police Department filed a criminal complaint in Bernalillo County Metropolitan Court case number T-4-DW-2003001013 charging respondent with violations of New Mexico Statute sections 66–8–102 [DWI — First Offense], a misdemeanor; 30–22–1 [Failure to Obey Police and Fire Department], a misdemeanor; 12–2–4 [Unreasonable Noise], a misdemeanor; 66–5–229(C) [No Proof of Financial Responsibility], a misdemeanor; and 66–5–16 [Failure to Exhibit Driver’s License on Demand], a misdemeanor.

Immediately after being released from custody on bail on February 23, 2003, respondent voluntarily admitted himself into a medical center in Albuquerque, New Mexico where respondent was diagnosed as suffering from a manic psychotic episode and determined to be temporarily totally disabled.

Respondent continued treatment and medication for his bipolar disorder from February 2003 to the present-day.

On May 7, 2003, after entering a plea of guilty to violating Minnesota Statute section 609.713(2) [communication to terrorize] in Hennepin County District Court case number 27-CR-03–0 I 0213, the court imposed a sentence that departed from the Minnesota Sentencing Guidelines pursuant to a negotiation with the Hennepin County Attorney’s Office. The basis for the departure was stated on the record to be the fact that respondent lacked substantial capacity for judgment at the time of the offense and was amenable to treatment and probation. Respondent’s hospitalization in February, diagnosis, and treatment were also discussed on the record during sentencing.

On May 19, 2003, respondent plead guilty to a violation of New Mexico Statute section 66–8–102 [DWI — First Offense], a misdemeanor, in Bernalillo County Metropolitan Court case number T-4-DW-2003001013. The remaining charges were dismissed. On the same date, the court convicted respondent of violating New Mexico Statute section 66–8–102 [DWI — First Offense], a misdemeanor. The court sentenced respondent to attend the First Offender Program, deferred the imposition of the sentence, and placed respondent on one year of supervised probation. Additionally, the court ordered that respondent pay fees and court costs, complete alcohol screening and counseling, attend a M.A.D.D. Victims Impact Panel, and perform 48 hours of community service. Respondent was also ordered to install an ignition interlock device on his vehicle for one year.

On December 21, 2007, respondent drove while intoxicated in Walton County, Florida. A police officer observed respondent’s vehicle weaving between lanes and initiated a traffic stop. After being pulled over by the police, respondent exited the vehicle and struggled to maintain his balance. Respondent stated that he drank “about two beers” before driving. Respondent refused to submit to field sobriety tests or provide a breath sample and stated that he wished to speak with a lawyer. Respondent was placed under arrest for driving under the influence. On the same date, the Office of the State Attorney filed a criminal complaint in Walton County Court case number 07MM1741 charging respondent with violating Florida Statute sections 316.193.1 [driving under the influence of alcohol with a blood or breath alcohol level of .08% or greater], a misdemeanor; 316.089.1 [failure to drive in a single lane], an infraction.

On February 13, 2008, respondent plead no contest to violating Florida Statute section 316.193.1 [driving under the influence of alcohol with a blood or breath alcohol level of .08% or greater], a misdemeanor. The remaining infraction was dismissed by the court. The court convicted respondent of violating Florida Statute section 316.193.1 and placed respondent on probation for one year. Respondent was ordered to pay a fine, perform 50 hours of community service, and complete DUI school. Additionally, respondent’s driver’s license was suspended for six months in accordance with Florida’s implied consent law. The Walton County Court terminated respondent’s probation early on August 7, 2008 upon receipt of proof that respondent had satisfied all conditions of probation.

Since November 2009, respondent has regularly attended Alcoholics Anonymous meetings to maintain his sobriety. Respondent has had three brief alcohol relapses in 2010, 2015 and 2017, and has been sober for the last two years.

Respondent has not been under any type of formal criminal supervision since August 2008 and has suffered no additional criminal convictions since the February 2008 conviction.

On April 29, 2019, respondent reported to the State Bar his criminal convictions in Minnesota, New Mexico, and Florida. Respondent violated Business and Professions Code sections 6068(0)(4) and (5) by failing to report the Minnesota felony charge and guilty plea to the State Bar within thirty (30) days of notice of same….

ln this matter, respondent was convicted of a violation of Minnesota Statute section 609.713(2), a gross misdemeanor under Minnesota law and a felony under California law, for making a bomb threat while being held in jail. Respondent suffered from an untreated mental health condition at the time of the misconduct which he was not previously aware of and which substantially impaired his ability to appreciate the wrongfulness of his actions. Respondent’s mental health condition has since been brought under control through medication and treatment. However, respondent was also under the influence of alcohol at the time of the misconduct and continued to abuse alcohol for five years subsequent to his conviction resulting in two misdemeanor driving under the influence convictions in New Mexico and Florida. Respondent’s misconduct did not occur in the practice oflaw, but reflects adversely on respondent’s judgment and fitness to practice law. “[P]sychological disability, while it may ameliorate the moral culpability of an attorney’s misconduct, does not immunize him from the disciplinary measures necessary to protect the public.” (Paloma v. State Bar (1984) 36 Cal.3d 785, 797.) The facts and circumstances surrounding respondent’s misconduct reveal that respondent has mental health and alcohol abuse disorders which, if not properly treated, may again affect his private life and spill over into his practice oflaw.

The facts and circumstances surrounding respondent’s criminal conviction do not involve moral turpitude, but involve other misconduct warranting the imposition of discipline. The sanction applicable to respondent’s misconduct is found in standard 2. l 6(a). Standard 2. I 6(a) provides that “[a]ctual suspension is the presumed sanction for final conviction of a felony not involving moral turpitude, but involving other misconduct warranting discipline.”

In mitigation, respondent has no prior record of discipline in fifteen (15) years of practice prior to the misconduct herein, has entered into this stipulation, acknowledging his misconduct and saving the State Bar significant resources, and has presented some evidence of good character. The only factor in aggravation is the fact that respondent engaged in multiple acts of wrongdoing. Significantly, respondent has not been under any type of formal supervision since August 2008 and has no additional criminal convictions since the second DUI conviction in February 2008. This is a strong indicator that respondent is able and willing to comply with his obligations under the law and that the steps he has taken to address his mental health and substance abuse problems have been successful. Further, in stipulating to the agreed discipline herein, respondent is agreeing to conditions of probation specifically addressing the ongoing need to address these problems. The weight of these factors, as well as the seriousness of the facts and circumstances surrounding the misconduct which include two additional convictions involving driving under the influence of alcohol, suggest that a six-month period of actual suspension is warranted.

While there is no California case law directly addressing the appropriate level of discipline for criminal convictions of Minnesota’s communication to terrorize statute or the comparable California criminal threats statute (Penal Code section 422(a)), State Bar case law involving similar misconduct is instructive. In In the Matter of Elkins (Review Dept. 2009) 5 Cal. State Bar Ct. Rptr. 160, an attorney sent 53 harassing voicemails and emails to an attorney, the administrator of an estate, and a judge over the course of ten months. In repeated voicemails, Elkins made unfounded accusations against the judge and threatened to report the judge to the Commission on Judicial Performance and the FBI. Elkins repeatedly made similar threats to the estate administrator and his attorney, telling them to “watch [their] step” or they will “regret it for the rest of [their] life.” After the attorney requested that Elkins only communicate in writing regarding the estate, Elkins escalated his abuse with even more threatening and demeaning emails to the attorney and the administrator. Ultimately, both the administrator and his attorney felt so threatened that they were compelled to obtain a restraining order against Elkins. The judge feared for his personal safety to such an extent that he brought two bailiffs to protect him during a court hearing. Finding that Elkins’ repeated harassment constituted moral turpitude, the Review Department recommended that he be suspended from the practice of law for two years, stayed, and placed on probation with a 90-day period of actual suspension. Elkins was afforded significant mitigation for his 24 years of discipline-free practice. Elkins’ misconduct was aggravated by significant harm, indifference, and multiple acts.

Respondent’s misconduct is comparable to that in Elkins in that respondent made a terrorizing communication, but respondent’s misconduct does not involve moral turpitude. However, respondent’s misconduct involved alcohol use and respondent continued to abuse alcohol for five more years, resulting in two convictions for driving under the influence. While respondent’s last conviction occurred eleven years ago, respondent has not maintained a sufficiently long period of sobriety to establish that he has been fully rehabilitated and that there is no risk of future misconduct.

Considering the balance of the aggravating and mitigating factors, Standard 2.16(a), relevant case law, and the facts and circumstances surrounding this case, discipline consisting of a two-year stayed suspension, with a two-year probation with conditions including a six-month actual suspension and both substance abuse and mental health conditions is appropriate to protect the public, the courts and the profession, to maintain high professional standards and preserve public confidence in the legal profession….

I had to pay the Bar’s costs of discipline of $2,788. I had to pay another $1000 for the privilege of resigning from the bar with “disciplinary charges pending.” Meanwhile, Rudy Giuliani is still a member in good standing of the New York Bar.

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