*1 Sept. In Bank. F. No. 19151. 1955.] [S. BAR CALL, Petitioner, v. OF STATE HARRISON W. CALIFORNIA, Respondent. *2 Call, pro. per., Anthony W. Kennedy,
Harrison and J. for Petitioner. R. Lewis and H. Respondent.
Jerome Garrett Elmore for By THE proceeding, petitioner this seeks review COURT.— a recommendation the Board Governors of The State suspended practice Bar that from the for law period year. of one
Petitioner was admitted to law in this state of May 1930. About the middle he was consulted regarding feasibility Lorenzo contesting Crounse father, will Crounse’s who had leaving died in 1950 estate worth several hundred thousand dollars. will Crounse, $10,000 bequeathed child, only to the testator’s and contained any legatee a disinheritance clause under which or devisee who filed contest towas receive in lieu of $1.00 bequest his or devise. subjected
Crounse believed that father had been to influence, duress undue he employed petitioner and and 4, 1951, investigation June to undertake an to determine or not whether the will should be Crounse contested. ad- $1,250 purpose, for vanced and he testified that he told meeting at their first had been ad- January 12, probate mitted to and that he under- had stood that a contest to be filed within six months of that date, petitioner replied an heir could file at before distribution. Petitioner denied that Crounse limitation, such ever mentioned and he testified “major assuming blunder” of made the that a contest could be filed at time before distribution the estate. period contesting (Prob. The six months’ the will Code, 380) expired July without a contest § having filed, and first discovered his error in March 1952. He then notified Crounse that too petition, apologized
late file his error to and offered moneys expended. to Crounse Thereafter reimburse $1,250 investigation refunded the advanced and also paid amount which estimated he had incurred for traveling expenses. other
At the time was first consulted Crounse he association, him for a duties trade took during out of of 1951. the state most On June petitioner’s secretary acknowledging wrote to Crounse re- ceipt stating expected two checks to return from in about “In the Bast a week and that your meantime, matter.” unsuccessfully telephone peti- Subsequently Crounse tried who, August secretary, under date of tioner and talked to the 20, stating letter asked sent Crounse a had outlining case, her write the status of lived, Omaha, previously where had the decedent there, they expected not located a male to return get testimony they hoped have whose that “We nurse delayed completed, filing until the search as there necessary present.” no haste *3 petitioner’s Crounse a from received letter October away secretary saying petitioner “every- was and that that along and thing O.K., the was was along expected.” be going as could When as best Crounse telephone November, the he found that called telegram a from disconnected, and in December he received petitioner had ill effect that and petitioner to the hoped summer, to Washington most of the that had ac- “may yet pos- and it be complish negotiated a settlement investigator’s report “promising sible,” but that the be filed the contest would as yet complete” and that not complete report.” investigator files as “soon petitioner he sent on December 31 Crounse testified know the limitation stating he wanted to time a letter made progress which had been contesting and also the anything from not hear until case. He did on the January petitioner’s he went to middle of when the about investigator, had was told office and just man, case who working the FBI former going to make report, petitioner in his full turn to the come back that Crounse' should up complaint and the ready on the sign complaint' was not day it. next to it, mail but would day, petitioner said following and February 8, 1952, petitioner did do so. not Under date day waiting “from he was to wrote Crounse the effect that filing day” investigator for a from before report final the forthcoming petition the and if within the it was days petitioner petition the next few would forward signature report the before would like to have making filing. having petition by March the Not received the telephoned petitioner Crounse and was informed his error had discovered as to the statute too limitations and that it was then late to contest. office,petitioner At the came to his had first recently having returned to been ill for three years Petitioner, awith heart disorder. who was then about D.C., Washington, leave for matter with his discussed the gave secretary, investigators her the names certain and keep attorneys instructed her to in touch with two who copy for him obtained clause. He the noncontest told her investigator to deal with their office and to see if an could procured willing who would be handle the in- vestigation give it proper and time. Petitioner these had attorneys give information, they him some and made a “check” of the for him. matter Petitioner contacted the attorneys handling probate to the obtain information about estate, the extent the terms and con- clause, test and to discover whether there was likelihood offer settlement. He had two or with three talks attorney who drew the will to secure information about the estate see if suspecting there was basis competency, testator’s and he was informed that the mentally capable. testator been competent
A Highway former member Patrol was hired investigator, as an reports orally were mainly by telephone. made investigator learned that a' who doctor treated testator said that competent, testator was investigator also talked to some relatives who furnished no of in- claim *4 competency. nurse, He hospital went to a and talked to a and he also talked bank at a with other people, some but no evidence was justify located which a would contest. Peti- tioner by paid was billed investigator, him a the small amount and still owed the balance. repeated
Petitioner made efforts to the nurse reach male who had attended the testator and checked nurses lists and hospital lists but was unable locate him. On two occasions on trips stopped briefly
while to the Bast in Omaha seeking testator, formerly who had information the inquiries city, lived in and he he was that made other but incompe- anything a unable which base case find tency or undue influence. filing
Concerning petitioner’s contest, regarding error the time by a that when he was first consulted testified moving library unpacked Crounse his had not been after office, just he did not have a so he relied even code “biggest his blunder” belief. He stated that this was the he had ever of the honest made but that he assumed was prior belief that to dis- he could contest at time contest, prepared tribution. He that a draft of a testified apparently shortly before completed but it was not until expired. for filing discovered that public The local recommended a administrative committee discharged reprimand concluding that had not ability best of the duties an at law to the guilty and carelessness that was amounting turpitude. to moral The Board of Governors adopted findings recommended of the local committee and suspension year. findings of the was that a of one One were following representations by petitioner to made your is mat- untrue: “the That ter,” yet “investigator’s report promising that the man, FBI complete,” investigator, had an former that “he ease,” working just about on the who “was to turn day “waiting report,” full was from and that filing investigator” day report from before a final very in- found little petition. The committee that further done, report vestigative no ever made was that was work investigator by no made for services. charge that dispute petitioner em- without establishes record investigative work investigator, ployed an considerable done, from time to time and reports were made investigator for his services. charge was made respect in conflict with to whether The evidence is man, FBI investigator former as testified was a Crounse, told Crounse or whether Patrol, Highway of the investigator a former member nothing While there is discrepancy is immaterial. but the representation which would in the record peti- promising,” may be that “investigator’s report which investigator from the information received some tioner *5 109 thought our “promising.” opinion, then the record finding misrepresenta- will not material by petitioner tion was made to Crounse. seen, we
As have the board also concluded gross guilty negligence amounting of and carelessness turpitude to moral and that he not discharged the duties attorney ability. of best it not Since has shown guilty of either intentional misrepresentation misconduct, or question wilful the next discipline theory is whether is warranted on the peti tioner’s conduct or negligence. amounted Section 6106 of the provides Business Professions Code involving “The commission of turpitude, act moral dishonesty corruption or . . . constitutes cause for disbar suspension.” or provides ment 6067 every per Section son on his admission to shall take an oath that faithfully discharge the duties an “to law knowledge ability,” the best of his and section 6103 specifies ground discipline as “any violation of the by him, oath taken or of his attorney.” duties as such Negligence gross negligence specified are in apparently they these sections and do not come within the grounds unless conduct turpitude involves moral attorney’s or violation amounts to a of the oath or his duties (See 501, attorney. Friday as an v. Bar, State 23 Cal.2d 564]; Witkin, (1954), 505 1 P.2d California Procedure [144 seq.) 95 et turpitude moral term includes fraud dishonesty
said to mean in conduct not accordance with good morals; being guilt, implies based moral in duty distinguished tentional breach owed to a client as discharge from an failure to unintended his duties to the 243, ability. (In Hallinan, best of his 43 re Cal.2d 247-248 149, ; P.2d Fall 25 Bar, v. State Cal.2d 160 [272 768] [153 ; Bar, 53, v. 24 P.2d Herron State Cal.2d 59-60 P.2d 1] [147 ; Hatch, 147, ; In re 10 Cal.2d 151 P.2d Lantz 543] [73 885] ; 213, Bar, v. 212 Cal. P. v. State 218-219 Marsh [298 497] Bar, 583].) State 210 P. Cal. 307 Some cases [291 gross negligence turpitude involves have said that moral fiduciary duty, is a that such conduct breach misrepresentation improper each instance or other there was action, light read in and the statements must be Bar, (Stephens v. additional facts. State 19 Cal.2d v. representations]; Trusty 582-583 [122 549] [false 110 [misrepre- Bar, 553-554 State 10] ; 20 v. Cal.2d Waterman State sentations] neglect and violation Rules Professional [habitual 1133] ; v. 306-307 Marsh Cal. Conduct] cf. together mis- negligence, with some [separate
P. acts 583] ; year].) representation suspension oné more recent discussing turpitude reference to moral cases have omitted held such *6 gross negligence but have conduct warrants attorney theory on has disciplinary action (Lowe 564, Bar, v. 570 his oath. 40 Cal.2d violated State ; 161, Bar, v. 39 174 P.2d Clark State Cal.2d 506] [246 [254 1].) P.2d discipline imposed In where there other eases negligent which to be conduct declared most, all, in if not instances was also negligence, but there (Herron v. misrepresentation improper or conduct. other Bar, 24 60-62 P.2d State Cal.2d 543] [disbarment [147 argument appeal, oral failure to where failure make quiet in while protect client’s interest title action ; prior v. suspension proceeding] Eschwig in a under State [reprimand 24 70 P.2d where several Bar, Cal.2d [147 529] litigation failure, despite failure to attend months’ requests, on which action was repeated to return contract ; disappearance] Trusty or client its v. based Bar, advise State ,Cal.2d [suspension for 16 554 P.2d 30 [107 10] years neglect judgment for six days to secure after where granting entry of minute order divorce and conduct involved ; Bar, v. 1 misrepresentation] State Cal.2d Farrar active year suspension where failure to P.2d 359 1024] [one [34 months, eight probate in for failure to act establish birth years apparently issuance letters and false several brought] ; v. proceedings Rehart intimation that [suspension for 217 57 P.2d three Bar, Cal. State 993] [16 given money surety attorney, premium bond months where pay premium complete pro or probate, fee failed to cases cited are in accord with the bate].) The above jurisdictions in in where it has. been held that other rule duty wilful which has been or has been accom attention ground discipline. by an element of deceit panied 707.) (See 69 A.L.R. may disciplined for a violation of attorney
An knowledge the best discharge duties to his oath to conducting of the law in ability, ignorance but mere discipline. good in is not cause for of a client faith the affairs
111 (Bus. Code, & 6103; Prof. 6067 and Friday see v. State §§ 564].) 23 505 Cal.2d P.2d good faith [144 attorney determining a matter to be considered in discipline imposed whether through should be for acts done ignorance (See or mistake. 44 Kling, Cal.App. re 152].) P. [186 All is established here is that mis
takenly good in believed ample faith that he had time to contest behalf of his client and that because imposition mistake failed to discipline act time. The is therefore not warranted. is dismissed. CARTEE, J. —I concur in the result reached the court. agree
I
opinion
with the
insofar
expresses
as it
the rule that
proper
is not
ground
for disci-
plinary
I
not, however, approve
action.
do
holding
majority
following
opinion
cases cited in the
for the reasons
concurring
or dissenting opinions
(See Trusty
thereto.
v.
Bar, 16
Cal.2d 550
10], dissenting opinion
554;
p.
at
In McKenna,
re
258],
dissenting opinion
612;
p.
Stephens
v. State