Complaint filed with State Bar against lawyer in AMBER Alert case

Can an attorney be disbarred for saying reprehensible things to a television reporter?  

Probably not, according to attorneys who defend other attorneys. But that’s not stopping a group seeking to take a local lawyer’s license following a shocking murder-suicide.

The Marin-based Center for Judicial Excellence (CJE) has announced it will file a complaint with the State Bar of California demanding the disbarment of Sacramento attorney Nabil Samaan. The group says Samaan’s license should be taken away because of comments Samaan made to a reporter that, according to CJE, appear to support his brother’s decision to allegedly murder his own two-year-old daughter.

The case has roiled the Sacramento area for days.

The victim’s mother is Marcia Fay, a prominent deputy to state Attorney General Kamala Harris. Fay’s ex-husband, Mourad “Moni” Samaan, 49, disappeared with Madeline Layla Samaan-Fay on Aug. 7 after a scheduled visit.

This led to a statewide AMBER alert, which was called off on Sunday when both their bodies were found inside an SUV on land Samaan’s father owns in El Dorado County, about 50 miles from Sacramento. The pair died of carbon monoxide poisoning, and police are investigating the matter as a murder-suicide.

By Monday, members of the Samaan family were speaking to the press. Nabil Samaan told Fox 40’s Chris Biele: “You can justify and try to say that Moni wasn’t a good father, and that’s just ignoring the facts. The fact is that he was an extraordinary father. Better than I’ll ever be.”

Nabil Samaan added, “I think he did the right thing. I’m proud of him.”

This caused Biele to do a journalistic double-take, asking Nabil Samaan if that’s really what he meant. “I think justice was done,” Samaan replied.

As of press time, Nabil Samaan has not replied to a reporter’s phone call and email seeking comment. Harris’ office declined to comment on the case.

A spokeswoman with the Bar said she was not allowed to comment on pending disciplinary matters.

The motion rests on what the group says are two violations of the Bar’s standards of ethics, which require that “an applicant for admission to the practice of law in California possesses good moral character.” The  CJE’s Kathleen Russell said Samaan’s comments go far beyond what should be necessary to demonstrate a violation.

“It clearly does not reflect well on the legal profession in California to be saying what he said on television,” Russell said.

The second complaint cites a section on ethical requirement that requires attorneys “to support the Constitution and the laws of the United States and California.” Referring to a brutal murder of a toddler as “justice” fails to meet this standard, Russell says.

The vast majority of complaints that result in disbarment fall into a few basic categories: A felony conviction, embezzlement of client funds, failure to disclose a suspended law license to clients, or gross incompetence or negligence, particularly following an earlier suspension.

None of these would appear to directly apply in this case. Nabil Samaan did not represent his brother as an attorney, at least in any official capacity. Nor did he appear to commit a crime. The Bar Association website shows no complaints against him.

“It’s incredibly bad taste, but probably protected by free speech rights,” said Walnut Creek attorney Jerome Fiskin. His firm, Fiskin Slater LLP, specializes in defending other lawyers in ethics and state bar cases.

In general, Fiskin said disbarment comes in response to conduct that affects an ongoing case, or which harms the attorney’s own client. But he added that Samaan’s comments are still likely to be highly detrimental to his law practice, particularly given the media and blog attention given to his comments in recent days.

“What kind of people search out an attorney who, um … yeah,” Fishkin said, not quite able to complete his sentence.

The State Bar has disbarred a growing number of attorneys in recent years. According to its latest annual disciplinary report, this is primarily a result of working down a backlog of unaddressed complaints. The State Bar disbarred 138 lawyers last year, which is as many as lost their licenses in 2007 and 2008 combined.

“That is so not going to happen,” said attorney Diane Karpman of the disbarment motion. Her firm, Karpman & Associates of Beverly Hills, specializes in providing “ethics counsel” and defending attorneys at the Bar. She added, “Having a wild mouth is not going to get you disbarred.”

The process of getting through the bar process is exhaustive, Karpman said. For instance, prospective attorneys must list every address they’ve ever lived at, and open themselves up to extensive background searches.

But once an attorney is a member of the bar, it takes very specific actions to get disbarred. She pointed to “birther” attorney Orly Taitz. Taitz has said all sorts of bizarre things to the press, Karpman noted. While there have been complaints made to the California State Bar about Taitz, Karpman added, they’re all related to her actual conduct in court or in connection with particular cases she’s been involved in.

Furthermore, Karpman said, Nabil Samaan would have a good defense if he ever was called in front of the bar to defend his comments.

“There’s a pretty good argument to be made that the guy is temporarily impaired,” Karpman said. “Finding out your brother is a murderer might be a little hard to deal with, and you might say things without thinking it through.”

According to State Bar records, Nabil Samaan was an undergraduate at Sacramento State University, got his law degree at the University of the Pacific’s McGeorge Law School in Sacramento, practices from an office in Fair Oaks and has been a member of the state bar since 1994. He’s also an avid bicyclist, and took in a nephew a few years ago who is now himself a professional cyclist in his early 20s.

In the days since the murder, Nabil Samaan and his father, 85-year-old Dr. Makram Samaan, have repeatedly blamed the incident on what they say is a corrupt family court system. The elder Samaan is a psychologist who specializes in divorce and family counseling, and wrote a master’s thesis on suicide.

While Makram Samaan’s comments have not been as incendiary as his son’s, he praised Mourad Samaan’s skills as a father and called for family disputes to be taken “out of the courts.” The family are Coptic Christians from Egypt. The couple married in 2006, but separated before their daughter’s birth at the end of 2008 — a birth that Mourad Samaan reportedly wasn’t initially aware of.

Court records also show that Fay had concerns about her ex-husband’s mental state, and believed that he was mentally ill. According to the CJE’s Russell, the court did makes serious mistakes — by allowing Mourad Samaan as much contact as it did. For instance, Mourad Samaan refused to return the daughter during a scheduled visit in July, she said.

“Why would the court give him another unsupervised visit?” Russell said. “It’s ludicrous. They do it all the time, but it shows the courts minimize mental health issues.”

EDITOR’S NOTE: Nabil Samaan has recanted his earlier statements. In a statement posted on the website of FOX40, the station to whom he made the original comments, he said: “We are devastated by the l
oss of Madeline. Cleary, my brother snapped after years of family law struggles in court. Both of our families are mourning tremendously. This is a tragedy that none of us will recover from. I sincerely regret my initial comments, which were made at a time of shock and exhaustion. I do not condone violence of any kind.”