2 Cal. 2d 209 | Cal. | 1934
Lead Opinion
This is a proceeding instituted for the purpose of reviewing the action of the board of governors of The State Bar of California in recommending the suspension of petitioner as an attorney at law of this state for the period of one year.
On May 25, 1933, local administrative committee No. 2 for the city and county of San Francisco, pursuant to the provisions of the State Bar Act regulating the practice of law and providing penalties for the violation of said act, issued an order directed to Raine Ewell to .appear on June 13, 1933, before local administrative body No. 5 and show cause why he should not be disciplined for professional misconduct alleged to have consisted in the violation of rule 2, which in terms provides that “a member of The State Bar shall not solicit professional employment by advertisement or otherwise”. The specific acts as alleged in the notice to show cause, briefly stated, were that prior to May 1, 1933, Eugene H. O’Donnell, a practicing attorney of the city and county of San Francisco, had been retained by Meta Cor-ville to defend one Herschell Rutherford, who was imprisoned in county jail No. 1, upon a commitment by a magistrate to answer to the charge of robbery. It is charged in said notice that after said Rutherford had been held to answer and before trial petitioner Raine Ewell while a visitor at said jail and without any request from said Rutherford, or anyone in his behalf, to visit or communicate with said Rutherford, requested and caused said Rutherford to be brought from his cell into his presence and he thereupon stated to said Rutherford that he specialized in the practice of criminal law and he could help him gain his liberty; that he was certain to go to San Quentin if he allowed his present attorney to defend him, since he- was a civil lawyer and not experienced in criminal procedure. It was further alleged that Rutherford refused to employ him and that petitioner called upon Meta Corville on the same evening and repeated to her the same statement as to Mr. O’Donnell’s inexperience in criminal law which he had made to Rutherford. Petitioner was given five days to answer after service of said notice. Within said period he filed a verified answer to said notice in which he denied that he had any aequain
As a further defense the accused averred that on or about April 24, 1933, he was given a card by another inmate of county jail No. 1, on which was written the name Herschell Rutherford, and the person who gave him the card containing Rutherford’s name said that Rutherford requested the accused to call him out as he wished to talk with Ewell; that in response to said card and request he called Rutherford out; that Rutherford said to him he wanted to talk about his case and upon being asked by Rutherford if he was a criminal lawyer he replied that “that was all he did”. Rutherford then told him he had been in jail since April 13th and had not been able to have any communication with a lawyer; that he was supposed to have an attorney hired to defend him, but that his attorney had never called on him since he had been held to answer, and he did not know whether he was going to represent him or not; that he was charged with robbery committed with the aid of two others with the use of a gun that belonged to him; that he had lived or boarded at the home of Meta Corville and her mother for four years; that he drove his Packard car to the place of robbery and remained in it while his companions actually committed the robbery; that he explained to Rutherford that robbery by the use of a deadly weapon was punishable from five years to life in the state penitentiary, and probation, in cases where a deadly weapon was used, was not available to the accused; that Rutherford asked him to go to the home of Miss Meta Corville, giving him her street number, and to request her to call and see him; that Miss Corville resided in the district through which petitioner passed on his way home; that he called upon Miss Corville as he was going to his home and she said to him that Mr.
At the close of the hearing on June 13, 1933, the accused, insisting that the testimony of Rutherford in particular in accusatory matters was false and was influenced by his desperate effort to obtain probation, which was subsequently granted, requested permission to reopen the case for further hearing. Several similar requests were made during said eight months’ period to reopen the case. On December 18, 1933, the accused was notified by respondent that no adequate showing had been made to reopen the case and his request was denied.
There is no suggestion as to the particular in which the showing was inadequate. It appears from the verified statement of the accused filed in opposition to the report of the committee, that on June 15, 1933, the second day after the order of submission was made by said committee, he applied in writing to said committee to set aside said order of submission and reopen the case; that he explained in detail to the chairman of said committee the existence of evidence which would rebut the alleged false testimony given by Rutherford, and a certain named witness discovered by the accused since the cause was submitted, and that additional testimony material to his defense had come to his notice which he asked to introduce, including the testimony of Mock’ Jock, a Chinese, who had been transferred from the San Francisco jail to the Santa Clara County jail to serve a term on a misdemeanor charge. Mock Jock was unquestionably a material witness for the accused to the point that Rutherford actually wrote his own name on a card and caused it to be delivered by Mock Jock to the accused requesting him to call upon Rutherford. The accused avers
The respondent makes no denial of the above averments with respect to reopening the ease for the introduction of further evidence. The attorney for The State Bar apparently admits the truth of the above averments and seeks to avoid their effect by the claim that the committee was justified in denying the request because of an “obvious insufficient showing”. He further argues that any statements made by the chairman of the committee “are not binding upon the committee as a whole”.
We are not in agreement with the above statement as a general proposition. If it should appear as a fact that an accused in a disciplinary proceeding was told by the chairman of the committee that he would be granted a postponement of his ease, or an order would be made reopening his case and he, in good faith relying upon such assurance, should suffer any prejudice or detriment by reason of said assurance being withdrawn or denied, it would be the plain duty of a reviewing court to see to it that he was not misled to his prejudice thereby, whether the application had been made in strict compliance with the statute or not. The Rules of Procedure of The State Bar provide that in investigations, hearings and in all other matters before, the board or a committee the proceedings shall be informal, but thorough, with the object of ascertaining the truth. (Rule 28.) The accused complains that the long delay following the submission of the case was contrary to rule No. 30, which makes it the duty of the committee to proceed to a prompt hearing, to make findings and to report promptly to the board, and was not occasioned by any fault of his and the case could have been reopened and closed within the time which elapsed between June 13th and December 18th, on which last-mentioned day the order denying leave to produce other evidence was denied. The accused complains that his case was prejudiced by this delay of six months. The accused filed
The findings of fact as made by said committee were approved and adopted by the board of bar governors, and it concluded therefrom that the accused had been guilty of a violation of rule 2 of the Buies of Professional Conduct. The recommendation of the committee as to disbarment was rejected and instead the board recommended suspension for a term of one year. If the board were sátisfied with the committee’s findings of fact, which were adopted by it, it would seem that the extreme penalty provided by the Bar Act and as recommended by the committee, which was disbarment, should not have been modified. The findings of the committee contain an unusually caustic arraignment of the accused both as a member of society and as a lawyer. As a conclusion from its findings, to which we will hereafter refer, the committee expressly stated that it gave no credence to the several witnesses produced by the accused and who were or had been his clients and none to those who were not his clients, as the latter class, according to the findings, were induced by prejudice instilled by the accused to testify against Eutherford. No credence whatever was given to the testimony of the accused. No questions were asked him but one, at the close of his extended statement with respect to his contact with Eutherford, which is not of sufficient importance to require a restatement. As a conclusion from its findings the committee thus closes its recommendation: “The committee also feels that an attorney as well acquainted and as influential with the criminal element as respondent has shown himself to be and who has been and is capable and willing to use such acquaintance and influence to his own advantage in obtaining perjured testimony and in intimidating witnesses adverse to him, is not only a discredit to the profession but a menace to society in general.”
The accused appeared before said board on February 16, 1934, and vigorously attacked said findings and recommendation of the committee and board in his written opposition to the above report of the committee and made an application to present additional evidence and for a hearing de novo. On the following day both applications were denied. The accused insists that the committee was unalterably prejudiced against him from the first and should not have sat
The sole charge lodged against the accused was that he solicited employment from one Rutherford, a prisoner awaiting trial on charges of robbery. This charge grew out of the activity of Mock Jock, a Chinese client of the accused, detained, it appears, for the violation of some federal statute. Several other inmates, among a large number of persons awaiting examination or trial, were or had been the clients of the accused. The Chinese in question had in his possession an old political card bearing the likeness of the accused and which he had circulated when a candidate for the office of judge of the municipal court at a past election. At the time this proceeding was heard said Chinese had been transferred as a federal prisoner to the Santa Clara County jail and did not testify at the hearing. But it is admitted that said Chinese presented this card to Rutherford on April
It is very convincing from the testimony of Rutherford himself that he told both the accused and several of his prison mates that he did not know whether Mr. O’Donnell had been retained to defend him or not. His half admissions of the fact and evasive answers on the question make it very certain that he did not know that any arrangements had been made for his defense, and that he was uneasy and was anxious to confer with the accused. The admitted fact that he wrote his name on a card handed to him by the Chinese, who was unable to write, which he knew was to be delivered to the accused is quite conclusive proof of that fact. He admits that he told the accused that he did not know for sure whether Mr. O’Donnell was retained. There is ample proof in the case from several sources that he requested an interview with the accused, and his act in doing so forms the basis for this proceeding. He admitted that he fully explained his case to the accused which is wholly inconsistent with any doubtful denial by him that he requested an interview with the accused looking to his defense. It further appears from Ms testimony that he gave to the accused Miss Corville’s address. When asked if he did not request the accused to go to see her and ask her to come and see him, Rutherford answered: “I told him he would have to go out and see her if he was to be retained.” The accused called on Miss Corville the same evening and informed her that he had come to talk to her about Mr. Rutherford. Her tes
It is upon Rutherford’s testimony that the charge of solicitation of employment rests. As above related, he was being held on a charge of robbery committed, by force of arms. It developed in the ease that he was hoping for probation on a plea of guilty. The accused understood that Rutherford was contemplating entering a plea of guilty with the expectation of being released on probation. That such negotiations were pending, of which the accused was not fully informed, is very clear from the record and from the fact that a few days after he testified against the accused he was permitted to enter a plea of guilty of second degree robbery and was granted probation. The accused understood that Rutherford was to plead guilty to the charge as made and he told him if he entered such a plea he would be sentenced to the penitentiary inasmuch as the law provides (sec. 1203, Pen. Code) that probation shall not be granted to persons who in the perpetration of robbery use a deadly weapon in accomplishing the crime. Such is the law as to first degree robbery. The accused contends that was what he had reference to when he told Miss Corville and Rutherford that if his attorney handled Rutherford’s case “in the way he is going to he will send this boy to San Quentin for fourteen years”. Rutherford testified that the accused had
Some remarks on the part of one or two of said prison mates as testified to by Rutherford were to the effect that Rutherford, because of his part in preparing false charges against the accused, should be or would be thrown off the tier (elevated cell floor) or should receive personal chastisement. No violence or uprising of any kind resulted from the conduct of Rutherford by reason of joining forces with Ewell’s prosecution. There is no sufficient evidence in the record which would justify a finding that Ewell, the accused,
After Rutherford had been permitted to plead guilty to second degree robbery and was granted probation against the recommendation of the probation officer, the accused undertook to appeal from the order. His objection to granting probation was that Rutherford had committed first degree robbery by the use of arms and was by express provision of law denied the right of probation. The attempted appeal from the order granting probation, not being supported by the district attorney or attorney-general, was dismissed inasmuch as the only person who may represent the People in the conduct of criminal proceedings or in matters arising out of public prosecutions is the district attorney or the attorney-general. The committee found that the accused did not act in good faith in taking said appeal and that he was. actuated solely by a malicious purpose in harassing said Rutherford in violation of rule No. 13.
There can be no doubt that the accused did feel resentment against Rutherford, who had become informer and witness against him under the circumstances which he and the witnesses to the transaction claimed to have been truly set
We are of the view, however, that the accused should not have relied merely upon the word of Rutherford as to whether an attorney had been provided for him in view of the fact that an attorney had represented him at the preliminary. Although it does not so appear from the record in express language, it should have occurred to the accused that it was likely that arrangements for retaining Mr. 0 ’Donnell to represent Rutherford at subsequent proceedings had not been concluded and that it was because of pending negotiation with Miss Corville that Mr. O’Donnell had not made definite announcement as to whether he would continue as his attorney. In other words, the accused should, under the circumstances, have communicated with Mr. O’Donnell and obtained definite information on the subject before he assumed to advise Rutherford. His act no doubt constituted an infraction of the rules providing for the improvement of the practice of the law.
Upon a full examination of the record we are satisfied that a suspension for a period of three months is adequate punishment for the infraction complained against.
It is therefore ordered that said Raine Ewell be suspended from the practice of law in all the courts of this state for a period of three months dating from the day this decision shall become final.
Curtis, J., Preston, J., and Langdon, J., concurred.
Dissenting Opinion
I dissent. In view of the record in this case, and particularly in view of the findings of The State Bar, I am of the opinion that the recommendation of the board of governors that the petitioner be suspended from the practice of the law for a period of one year should be approved.
Shenk, J., concurred.
Rehearing denied.