*1 Feb. A. No. 22699. In Bank. 1954.] [L. WERNER, Petitioner, THE STATE BAR OF
ERWIN P.
CALIFORNIA, Respondent. *2 Cosgrove for
T. B. Petitioner. Respondent. Lyon, Jr., Jerold E. Weil Leonard S. THE The petitioner, COURT. Erwin P. Werner, was practice disbarred from the the law in In 1944. peti- 1951 he Special A tioned for reinstatement. Administrative Com- mittee of the State Bar recommended that the finding petitioner denied that the sufficiently had failed to establish his rehabilitation. matter is now before this court for review of the action of the Board of Governors report in approving the of the committee and in declining to petitioner recommend that be reinstated. years age. He was admitted to by
the bar in 1916. indictment was co-charged Werner, wife, deceased, with now in Helen count one of soliciting offer of in 653(f) a bribe violation section attempted grand the Penal Code and in the second count acquitted charge theft. The on in stated count 1 he and his wife were the second convicted.on appeal judgment. She did not appealed count. He court, final. This judgment as to her became judgment against on 1940, reversed the support to the conviction. was insufficient ground that the evidence (Pe 927].) Werner, 16 Cal.2d ople supplemental he was disbarred Notwithstanding the reversal including on in the criminal case proceedings based the record on the first count. the record objected proceedings the disbarment record. transcript of the criminal
the consideration him charges brought against could not have Admittedly the transcript evidence. It was proved without been pursuant stipulation to a considered the committee first petitioner and the committee follow- entered into between the judgment pending ing the conviction the trial court sought appeal by At first it was therefrom. Upon basis of the conviction alone. to disbar on the judgment reversal of the the order to show cause was amended turpitude acts claimed to involve as shown the record the criminal case. contended stipulation longer no because com- was effective *3 against him, a new cause of action and that mittee stated only purposes pro- of stipulation the was entered into for original charge. ceedings agreed under the The committee proceedings petitioner with the and recommended that the Board of the com- dismissed, be but Governors ordered transcript Following mittee to receive the into evidence. of the con- those instructions and on consideration evidence transcript in that the committee recommended dis- tained also barment but the and the committee continued transcript improperly in evidence. This insist that the was finally it was admissible and that issue court determined that open question. is not now applying for re-
The burden one reinstatement his quires prove that he his rehabilitation since disbarment. qualifications present, If proved, rehabilitation be of course. It applicant generally of follow as a matter ability required applicant prove present his is also that the learning that the and in the law. It is conceded question of the qualified requirement, latter this standpoint of his moral petitioner’s rehabilitation from the He contends qualifications is the one for consideration. him to sufficient to entitle that he shown rehabilitation has pertinent They undisputed, facts. will reinstatement related. employed his
After disbarment was yard years by Railroad, for Pacific first as a several Union employed clerk and later as a brakeman. While so he acted grievance of for with credit as chairman committee Beginning employed 1949 he for local labor union. was year approximately appraiser a as a research clerk and of a member the bar. community part taken active request property of On behalf and at the owners in
affairs. community successfully engaged planning in local com- his accepted applied for and as mission matters. 1950 he was diligently has worked Red Cross Blood Bank driver and donating time, far in well for the Red Cross since that of of of him. He an active the number hours excess community regularly of member a church assists during as an usher its services. understanding of to maintain an cur-
He has endeavored university. by attending classes at a local affairs rent world high respect, tribunals in and has held the law and its He has developments the field of kept himself well informed law. many lay of the and bar and members bench
Numerous petitioner. testimony on behalf testified witnesses is a man to the effect each was requiring be trusted with duties who could moral character fidelity. Among attorney them were an honesty, integrity and attorney of the deputy in the office district had been a who against petitioner, proceedings criminal time of the at the presided at the criminal trial judge who had superior court justice of involved, a the Dis- petitioner was in which the judgment of affirmed the convic- Appeal trict Court Appeal who District Court sat justice tion, judgment of court when the member this pro tem. as a knew the These men reversed. conviction familiar with the career and were professional throughout his *4 (cid:127) attorney The who since his disbarment. leading to and events litigation before and both represented a man was testified his disbarment after they engaged in com- had been character; that moral good position of no trust he knew and that enterprises, mercial testimony properly hold. The not petitioner could which nature. of similar was many others Following petitioner was from his disbarment the excluded organizations requiring membership in numerous fraternal prerequisite membership. After character as a qualifica- investigation petitioner’s an of the rehabilitation and lodges, tions for to full reinstatement those he was restored membership. investigation by judge The was conducted superior court, acting solely capacity as a member lodges unhesitatingly recommended re- concerned. He organizations. instatement in those
It appears investigation petitioner’s also an of the rehabilitation California was conducted the Southern Lawyers request Women at the Bar in connection of the State present proceedings. with the such report recites The investigation and recommends reinstatement. against
The recommendation reinstatement on based four grounds, each of which will be considered separately.
The first petitioner’s testimony arose.out before Special Administrative regard Committee in to certain disciplinary involving matters prior to the one resulting in They his disbarment. dated back as far as 1925. In each was absolved from any conduct which justify discipline would charges were dismissed. questioned The committee him length at concerning these purpose matters the stated of “testing petitioner’s present recollection of such accusations and his attitude towards (See them.” Seeks v. State Bar, 409].) could answer some questions asked of him because he could not remember the details place events which took many years so before. some memory instances his excerpts refreshed possession documents in the of the committee and he conformed accordingly. his answers report suggests committee’s that if the practice is entitled to certainly law he forgotten would not have previous the details of charges against him though they even had been dismissed, and that he was evasive some instances uncooperative and was with in disclosing committee them. support record does not peti- the conclusion that the answering questions. tioner was evasive in It is true stated that he did not remember some of the details of a criminal against made years and his wife some 16 (1936) before and of which acquitted, he was but in sub- correctly stance he questions answered the asked of him. *5 Admittedly the relevancy examination had no except to test petitioner’s memory the adequate and his answers were in that respect. to With reference the criminal charge following the exchange typical of is the examination: ‘‘Q. you And still don’t remember what the crime was that you charged conspiring were with to A. IYes, commit? just stated what it was.
“Q. you No, haven’t. conspiracy A. It was to violate a certain section the Penal Code which makes it a violation person to solicit a to pretty commit a I am is sure that crime. close to the definition in the code. “Q. Well, you unwilling are then, or unable, I it, take you
to charged state crime that were conspiring with to I unwilling. commit? A. am may I be unable to. That I as close as can come to I give you it. can all the facts. They very my are vivid I very mind. would happy to you anything tell about I trying it. am not to avoid anything, defining but as far I thing, as have á hesitancy in doing it further I than have when the indictment right at hand. If particularity it is you that sort find, want to glad you would be to read it to and discuss it in detail.” There was other on examination the same subject, none of unwillingness which shows an cooperate. to ground The second asserted show a lack petitioner’s character consists of the in rela- conduct tion to oil well owned interests him and associates. The petitioner with one W. Prick J. and others entered into a joint or partnership venture to drill a well located in Puente depth its then of 2,000 4,200 feet to feet in an endeavor to strike oil. The venture was unsuccessful. About the same parties time the became interested in drilling operation in Moab, Utah. Prick keep testified that he did not abreast of developments, and relied for informa- tion; in December, 1950, he became disinterested suggested Moab exchange venture and (Prick’s) petitioner’s Moab interest for the Puente in- exchange terest. Such an was carried out at that time. January, 1951, appeared report there newspaper in a local in, that the Moab well had come with an estimated flow of from 2,000 daily. to 5,000 Shortly barrels thereafter Prick according testimony met the petitioner, with to Prick’s knowledge reported he accused the such placed duty upon favorable conditions at the Moab well as petitioner to Frick reveal his information to at the time suggested exchange the latter interests. he had denies that information that there
were Following favorable indications at the Moab well. report knowledge mistakenly- but without that the well was reported in, to have come he discussed the transaction with Fricks and because their dissatisfaction with ex- *6 change he retransferred Mrs. Frick one-seventh their interest report without cost to her. fact the Moab about the well was unfounded and produced it never oil in commercial quantities. support finding evidence is insufficient to a that
petitioner exercised bad faith the oil There transactions. proof is no knowledge that he had Frick favorable to which should exchange have been revealed to him. The of interests was made suggestion at Frick’s him, and to accommodate at a appeared time when it newspaper from report that property might be valuable. Frick himself testified that “I my have dealings found satisfactory with Mr. Werner every respect, exception with the one . . . to tell [failure him of the rumor which was unfounded that the well had come Other that, than I found have him honorable and in]. ethical everything he has done.” significance seems to have attached
The committee much the fact that the Puente Moab ventures were not mentioned petition provisions in the reinstatement under the rule 43(d) of the Buies of Procedure of the State Bar. That rule provides petitioner’s for a disclosure of the “nature of occu- pation during period, in detail said with names and addresses partners, of all in business, associates and employers, any, if and the dates and duration of all such employ- relations and ’’ report ments. of the committee states that the intentionally omitted to disclose the oil petition ventures in his they might because deemed unfavorable to him as not involving the transactions with the they Fricks but also that disclose one would that of those associated in the ven- Moab ture, a man Mason, name of had been convicted Corporate of the violation appeared Securities Act. It also that at about the time the reported Moab well was to have come in a retail merchants credit prepared association had a credit report on which showed that owned a substantial producing interest in a well. This infor- was, course, mation exaggeration. an However, there is no
proof that knew that Mason had been convicted violating Corporate Securities or respon- Act that he was report. sible for the credit (cid:127) regard to the omission of information concerning
the oil ventures for reinstatement, peti tioner contends that the ventures were in the nature of invest 43(d) require ments which rule does not him to disclose. He ‘‘ though partnership stated: Even was thing involved in the merely ... investor, just and it didn’t occur to me is all.” He relies on Farmers Auto. etc. Exch. v. Calkins, Cal.App.2d 390, 230], to the effect that data concerning “occupation” one’s does not “an include isolated or temporary semi-occasional and adventure in another line endeavor.” While the inspect undertook to properties, oil part he took no drilling actual operations or planning in occupation. connection therewith as an We find nothing number two that would peti reflect on the tioner’s asserted moral character. ground urged third as evidence of the lack of
rehabilitation is the
failure of the
to show
positions
filled
fiduciary
of a
involving
nature or those
handling of money, and that he had not violated such trust
or
money
might
absconded with
have been entrusted to
*7
his care. This contention is without merit. While evidence
of the nature referred to
probative
often is of
value where it
(Jonesi
exists
Bar,
State
It is' contended made un- pleadings denials in verified in warranted certain civil actions brought against after his disbarment- Between Decem- ber, 1946, April, 1947, improvements and certain were made premises occupied by on the and his wife. Ac- undisputed cording they evidence were contracted imp charge supervision the wife who took sole and of the rovements.1 improvements completed April 4, The were on 1947. Mrs. away passed Werner on the 12th following of the month. On petitioner’s 1It noted that much should be of the troubles arose charge the conduct and activities of his wife. The does not so, but this nor intimate that it is the record in the criminal case which plainly formed the basis of the evidence on which he was disbarred indi cates its truth. in suits were filed mechanics’ lien 20, 1947, two August lien for for labor and claiming $789.87 court, one municipal of materials claiming lien for on account $344.92 the other form complaints were in the usual and were furnished. complaint Paragraph V VI Paragraph of one verified. petitioner had allegations that the contained the of the other and labor the sums stated. for the materials contracted denied, in specifically accordance petitioner in his answers expenditures, for the facts, that he had contracted with the put in issue. also questions of the amounts were Paragraph XI in the complaint and Paragraph X in one allegation of lien had that the claim other each contained the page of recordation giving book and record, been filed county The denials as to these recorder. in the office of the para- form denials of other in the same as the paragraph, two in one case and 13 in graphs complaints, 12 number of the every allegation each and other, as follows: “Denies were one, XI in the Paragraph contained [X other] ” usual plaintiff’s complaint. The answers were verified in each ease. It is form the as the defendant subjected X XI are Paragraphs that the denials as to to criticism. charged by verifying the denials of the
The committee that the claims of lien allegations filing of the and recordation of ’’ petitioner “recklessly oath of verification. trifled with the a denial of pleading on rule of that is based insufficient, and the alleged public existence of a record is argument proof of a lack of is advanced that such a denial is good moral character. that his
In answer to this contends criticism the justified in which conduct because of the situation him, namely: litigation placed that the contracts under they indefinite; were which the liens arose were oral and what by wife; personally he was not aware of all made or materials had obligations she had incurred or what work thorough expended; been that he did not have time to make a including public investigation of claims the matters of answer, it and that did not record before he was *8 right appear prerequisite to a lien had that the notices to the given. (Code 1184.) After he filed his Proc., been Civ. § investigations. paid necessary He he made the answers trial, brought claims in full before the cases were to actions were dismissed.
196 petitioner concedes, must, as he that the form of the public subject
denials of of the existence records is to criticism. urges extenuating But he circumstances were to such as him relieve of a of moral dereliction. The record shows unnecessary that it for to make the criticized denials purposes delay of subject because other denials not to put plaintiffs criticism were sufficient to proof to of their petitioner gained claims. advantage by making no denials in the plaintiffs form criticized and the were not prejudiced by An deny them. admission of or a failure to allegations of recordation would not have affected the result. may This preferable have been the course since the of means acquiring knowledge of peti- recordation were hand and the at tioner not availability examined the records. It is the knowledge and a failure to in preparation it for the obtain pleading that is the basis of the rule the violation which is admittedly improper criticized. The denials were and cannot be by practice excused generally indulged However, a too in. it is contended plead- that the infractions were more in the field of ing than in A to morals. search the authorities fails reveal person making case where a such a verification has been charged or, attorney, with a violation of if he law was an charged unprofessional subjected he was with to conduct or disciplinary proceedings. denial, If such a verified form, contrary usual good to morals and therefore act turpitude moral (see within the definition of that term Bar, 213, Lantz v. State ; Cal. P. Matter [298 497] Coffey, 448]), Cal. P. it is feared that in the history legal many profession practitioner in this state questioned whose moral character was otherwise have not could subjected disciplinary any been proceedings. event, to properly such a course of action is criticized- and condemned pleading as not within practice. standards of applied proceeding may As this the circumstances of it justly be said that a lack has been character pleading shown the form of the and its verification. justify other record words the does not the conclusion that making form the denials in the indicated in verifying is, thereof, lacking his answers because good moral character. support stated sufficient case in admittedly qualified
of his He claim rehabilitation. as knowledge to his of the law. He has the recommendation of persons position judge his moral best character. It has
197 heavily weigh in showing “should such a that been stated (Preston Bar, supra, Cal.2d justice.” v. State the scale beyond evidence there is other 650-651.) addition conducted his disbarment has dispute that since substantial community in his employment in and within himself entitling him of rehabilitation. to a declaration manner plenary power reinstate where it is
This has to court requisite learning applicant possesses the and shown that the acceptable appreciation the moral character and has attorney This, law. responsibilities of an at we duties and case. conclude, is such a granted. It is ordered that the upon attorneys roll at in this state
be reinstated law upon payment taking required by law. of the fees and oath
G-ibson, J., participate. C. did not judgment in the
CARTER, I concur J. state, the bar of this but I cannot member of reinstated as majority the decision of the pointing out that refrain from definitely line with recent decisions of this court out of here 16, 1952), 39 (September Bar Cal.2d in Feinstein State (February 25, 1953), 40 Roth v. Bar and State P.2d 3] [248 cases I 969], in both of which dissented. Roth showing in both the Feinstein and cases fact, showing stronger much than the of rehabilitation was favor showing no what petitioner here and there was made against rehabilitation. In the in either of those cases soever for over ten petitioner had been disbarred ease the Feinstein eight years, Roth for over while years in the and case years elapsed between the disbar seven case at bar Neither Fein application for reinstatement. ment and the majority opinion in the case is cited stein nor Roth respect showing in those cases with to rule announced petition for required support of a reinstatement is even mentioned. position I took in the Feinstein same here that and take the where the uncontradicted evidence shows
Roth cases that has, disbarment, since his lived a useful and honor- gainfully employed gained, held, life, kept able respect people with whom he has and confidence many years, dealt for he has met the burden associated upon his rehabilitation. I believe such cast to establish
a showing made in this ease as well as in the Feinstein and Roth cases. standard moral character of those who permitted practice
are law this state should be the highest possible. A practice places license to law the holder position may impose where he ignorance or credulity of his clients to their detriment if he is so minded, and it responsibility is the of the State Bar and of this court protect the interests of public by eliminating, the profession, those who have shown their conduct that *10 they are lacking requirement. moral character The problem . of lawyer reinstatement of a always disbarred difficult one. correctly It has been principal stated that the issue is (see rehabilitation 14 Andreani, re Cal.2d 736 [97 456]). P.2d issue This is one fact and must be established by evidence. Where the uncontradicted, evidence is as it was in the Feinstein Roth eases, exemplary and and shows con- extending period duct eight years over a of from to ten with- out suggestion even a wrongdoing, seem re- it would habilitation had been If established. it was not established in those cases, certainly it was not established here. There should be uniformity some measure of in cases such as these if precept “Equal justice any under law” is have vitality whatsoever. concept of rehabilitation is now so firmly embedded our law that none but the sternest martinet would apply refuse to it in cases established where it has been by the uncontradicted evidence. members this court psychiatrists are not nor they are clairvoyant. our Unless decisions are based on evidence and t.hg.n uniformly
rules of law applied, they nothing are more arbitrary change determinations which from time to time according to caprice the whim or of the individual members government court we thus have a of men and law. stated,
While as showing heretofore by petitioner made in favor of his rehabilitation strong is not as as that made in either the Feinstein or cases, Roth believe it is sufficient to warrant his reinstatement, and I therefore concur in the conclusion by majority. reached
EDMONDS, It long J. has been the rule this state that of proof “the burden the one who seeks . . . restora- legal tion to the ranks profession, and before the court may grant for reinstatement it must be satisfied
199 the effort fully by positive evidence convinced of his character has been suc rehabilitation made toward has person It is reasonable (Citations.) cessful. should be reinstatement, disbarment, after seeking honesty integrity proof present of his present stronger character for first time whose seeking than one admission words, application in an question. never been in other has pro by court as a although treated reinstatement, for presented must be sufficient ceeding admission, proof judgment appli former adverse to overcome the court’s 52, 216 55 (Kepler Bar, v. Cal. cant’s character.” State [13 consistently principle has been 509].) This established P.2d 868-869 (Wettlin 862, Bar, v. Cal.2d [151 followed State 779, 788 28 Cal.2d ; Bar, P.2d McArthur v. [172 State 255] 439, 444 Maggart 29 Cal.2d 55]; Bar, P.2d v. [175 State 268, 275-276 Bar, 35 Cal.2d ; P.2d Beeks v. [217 State 505] (Feinstein 409]), P.2d and was reaffirmed recent decisions. v. 3]; P.2d Roth State Bar, 39 Cal.2d 541, State [248 969].) Bar, controlling whether the pro- criterion is convincing evidence of his rehabilitation, duced and to de- question weigh termine that this court must and evaluate the Essentially evidence. the determination is to be made application general principles particular of a few to the facts of the ease. *11 my opinion, presented by evidence Werner does not proof required
meet the burden him. The Board Special followed the recommendation Ad Governors ministrative That committee heard the witnesses Committee. petitioner; depend upon printed this court must determinations of the Board of record. The Governors greatest its administrative committee should accorded the (Roth p. 315; Bar, supra, v. Lacey, deference State re 699, 935]; Bar, supra, Beeks State p. 277), convincing find in such evi do not the record justify of rehabilitation as to a conclusion different dence recommendation to this court. made reasons, deny application. For I would these Spence, J., concurred. rehearing February
Respondent’s petition for a was denied J., opinion Edmonds, J., Spence, 1954. were granted. should be