Arrested Court Commissioner Practicing Law : Drugs: Role shift is legal, but some experts wonder if jurists should be held to a higher standard.

SANTA ANA —  Robert K. Tuller Jr., who resigned as a Municipal Court commissioner in Fullerton after he was caught with cocaine, has quietly begun practicing law with a felony charge still pending against him, court records show.

The State Bar of California is monitoring Tuller’s case but has taken no disciplinary action against him to date, a spokeswoman said. She declined further comment on the matter.

Tuller’s appearances on behalf of clients in Orange County Superior Court--though perfectly legal--have raised eyebrows in the courthouse, however.

“I don’t think it’s necessarily right, from an ethical point of view,” said Orange County Deputy Dist. Atty. Carl W. Armbrust, who prosecuted Tuller. “I believe that lawyers, judges and attorneys should be held to a higher standard than the average person who is hooked on drugs.”

Another prosecutor who asked not to be named said: “I think it’s outrageous. I think the public will think it’s outrageous. But probably most people in the profession won’t think it’s outrageous--because he hasn’t been found guilty.”

In a brief telephone interview Friday, Tuller declined to comment on when he resumed practicing law, whether his clients know about his legal problems or whether he felt any obligation to inform them.

But one of Tuller’s clients, Frank LoNigro, said questions about his attorney’s conduct caught him “totally by surprise,” yet he believes that his civil lawsuit has been handled properly so far.

“Whether that’s going to have any impact on our case, I’d be real concerned, damned concerned,” LoNigro said. “I’m kind of a little bit irritated that we weren’t told about it.”

Legal experts interviewed last week said attorneys should inform clients of problems that might affect their ability to represent the client. Since Tuller has not been convicted or disciplined, they said, he is probably not under such an obligation.

“If you force him to wear that scarlet ‘A’ on his coat for the rest of his life, what’s the point of having rehabilitation?” said William C. Lynch, professor of law at California Western School of Law in San Diego.

Tuller was presiding over misdemeanor arraignments in Orange County Municipal Court in Fullerton when he was arrested in May. According to police reports, he was found in the bathroom of an Anaheim motel room with a vial of cocaine in one hand and a blowtorch in the other.

The records also show that Tuller had used his courtroom chambers to arrange to buy cocaine and that he was ensnared with the help of a police informant who claimed to have used the drug with him for 10 years.

In August, Municipal Judge Gary P. Ryan agreed to allow Tuller to join a program in which first-time offenders can have criminal charges dismissed after they successfully complete a court-ordered drug rehabilitation program.

Armbrust argued at the time that although Tuller met the legal requirements to enter the so-called “diversion” program, he was not a suitable candidate.

“It doesn’t seem reasonable that a person who has graduated from snorting to freebasing is the type of person who should be allowed into the diversion program,” Armbrust said.

The judge told Tuller that the one felony count of cocaine possession would be dismissed Feb. 8 as long as Tuller attended three sessions a week of Narcotics Anonymous and continued once-a-week therapy sessions at St. Jude Hospital and Rehabilitation Center in Fullerton.

Tuller said Friday that he has been attending the sessions. And, both he and Armbrust said, it is likely that the charge will be dismissed next month.

As he has in the past, Tuller declined to discuss the drug case, saying, “I will make a statement at the conclusion of the proceedings.”

Meanwhile, Tuller is working out of the law office of Philip Silverman in Anaheim. He referred questions about his employment status to Silverman, who is on vacation and could not be reached for comment.

On Dec. 28, Tuller appeared on a civil case before Superior Court Judge John C. Woolley and won a temporary restraining order for LoNigro Castings Inc., one of Silverman’s clients, court records show.

LoNigro said he hired Silverman on a $3,500 retainer. “He told us he had an associate who was going to work on the case when he was on vacation--and (Tuller)’s been working very hard on it,” LoNigro said.

Attorney Constance K. Wigod, who opposed Tuller in the suit, said she was also aware of Tuller’s arrest.

“What he did in his personal life or how the bar wants to handle it is one thing,” she said. “But he treated me like a lawyer should treat another lawyer. He was well prepared, and his work looked good.”

An Anaheim resident who wrote an indignant letter to Judge Ryan in August protesting the decision to allow a dismissal of charges against Tuller said Friday that Tuller should be disbarred.

“Lawyers are expected to be a cut above the general public, and he has proved he is not,” said M.J. Engel, a retired auditor. “We can forgive him, but I think it’s a little early to do that.”

Legal experts interviewed last week said the Tuller case raises broad moral questions that the courts and the bar association have wrestled with for years: Should a judge or attorney who violates the law be held to a higher standard than ordinary citizens--either by a criminal court or by the state bar?

And what if, as in Tuller’s case, the offense appears to have no impact on the attorney’s ability to represent his client?

Should the bar discipline attorneys for drug abuse even if they are not convicted? Or, amid widespread drug and alcohol abuse, would that merely drive underground abusers who should get treatment?

Under a program adopted in July, 1989, the State Bar monitors first offenders arrested for drunk driving or drug possession and often issues them warning letters, said Frank Bassios, the bar’s deputy chief trial counsel.

Bassios declined comment on how the bar might deal with Tuller but said that in general, the bar allows a case to work its way through the criminal court system before making any decision on discipline.

“If there’s a conviction, we evaluate the matter and consider whether we think the person should be considered for any action,” he said.

If a first-time offender successfully completes a court-ordered drug rehabilitation program, Bassios said, “the likelihood of us taking action is very remote.”

The bar association holds attorneys to a higher standard of conduct to help maintain integrity, Bassios said, and might discipline a lawyer without regard to any criminal charges if there is a threat to the public or clients.

Last week, the California Supreme Court upheld that view, ruling in a split decision that the bar could discipline an attorney for a second drunk-driving offense even though there was no evidence that his clients were affected, Bassios said.

“If it happened to Joe Blow grocer on the corner, they wouldn’t be disciplined by anybody and they wouldn’t lose their livelihood,” Bassios said.

But Armbrust said that so far, Tuller has been treated like any other first offender.

“I’d say he was treated like anyone else would have been treated,” Armbrust said. “The only difference was that he was sitting on the bench. To me, that’s a big difference.”

Armbrust added: “It’s probably news to a lot of people that nothing happens to the average Joe Blow who gets picked up for using cocaine. . . . They go to school, and it gets wiped off their record, whether they are a lawyer, a judge or a ditchdigger.”