Herron v. State Bar

PBESTON, J. We have reconsidered our former decision in this cause and given further study to the procedure employed in bringing the accused before the court. On August 6, 1929, the board of governors of The State Bar filed herein their recommendation that petitioner be disbarred from the practice of the law in this state. This was preceded by findings sustaining four separate charges or counts against him, followed by the filing in this court in due time of the record of the proceedings. Within the time allowed by law petitioner sought a review of said findings and recommendation and the matter has been argued and re-argued at length and we have been favored by several briefs of the parties themselves, aided by amici curiae. The proceeding was brought to issue by informal complaints made to the board of governors and the local *198 administrative committee of The State Bar. Investigation of the charges was thereafter made, resulting in a notice or order to show cause, specifying the said charges and fixing the date and hour for a hearing thereon. Petitioner does not complain of lack of notice nor does he complain of any deprivation of the right to know the character of the accusations nor of lack of time to prepare his defense through counsel or to ■ produce evidence nor of lack of opportunity to examine and cross-examine witnesses. His sole complaint in this behalf is that the accusations were 'not in writing and verified as provided in sections 289, 290 and .291 of the Code of Civil Procedure. In other words, he contends that said code sections must be considered an integral and substantive part of the State Bar Act, which, unless and until followed, forbid the inauguration of disciplinary proceedings; that is, he asserts a jurisdictional prerequisite to any such proceeding is the filing of a complaint in writing verified by some person of his own knowledge and not upon information and belief, unless the accusation is made by an organized bar association. These code sections read as follows: “Sec. 289. The proceedings to remove or suspend an attorney and counselor, under the first subdivision of section two hundred eighty-seven, must be taken by the court on the receipt of a certified copy of the record of conviction. The proceedings under any of the other subdivisions of that section may be taken by the court for the matters within its knowledge, or may be taken upon the information of another.” Section 290: “If the proceedings are upon the information of another, the accusation must be in writing.” Section 291: “The accusation must state the matters charged, and be verified by the oath of some person, to the effect that the charges therein contained are true, which verification may be made upon information and belief when the accusation is presented by an organized bar association. ’ ’ In the light of the above sections of the code and the above facts, we are to examine the provisions of the State Bar Act upon this subject (Stats. 1927, chap. 34, p. 38). This act seems clearly to provide a complete alternative and cumulative method of hearing and determining accusations against members of The State Bar. This is *199 true first, because of the nature and purpose of the legislation itself. The act sets up an institution controlled and managed by the members of the profession who are public officers acting under oath without compensation and functioning as an arm or branch of this court in the matter of admissions, reinstatements and discipline of attorneys at law. The laudable general purpose of the act is expressed therein as being “to aid in the advance of the science of jurisprudence and in the improvement of the administration of justice (sec. 23) ”. The overlying organization is composed of a large body selected from the membership known as the board of governors aided by groups known as administrative committees. The field of discipline covers not only infractions of the law of the state by attorneys (sec. 26), but may extend to infractions by them of the rules of professional conduct formulated by the board and approved by this court (sec. 29) and delinquencies such as failure to pay dues and penalties, etc. (sec. 46). The act also sets up a bureau of investigation and provides in disciplinary matters for a preinvestigation of the accusations; if, upon such investigation, the conclusion is reached that a hearing is required, such hearing is then ordered and notice thereof issued. Said preinvestigation may follow the receipt of a complaint, either verified or unverified, or even verbal, or it may be initiated through the board of governors themselves. The law does not define the characteristics or contents of any such complaint. The use of the word “complaint” is made without qualification. It is not even required to be in writing. In this connection section 34 of the act provides: “ . . . The board, or any local administrative committee, . . . shall, of its own motion and without the filing or presentation of any complaint, or upon any complaint, if a complaint be filed, have power to initiate and conduct investigations of all matters affecting or relating to the . . . discipline of the members of The State Bar . . . and in the conduct of such investigations shall have power to take and hear evidence touching the matters under investigation, administer oaths and affirmations, and upon such investigations, and upon the trial or hearing . . . shall have power to compel the attendance of witnesses and the production *200 of books, papers and documents pertaining to the matter under investigation, or to said trial or hearing. ...” A local administrative committee also has power “to receive and investigate complaints as to the conduct of members, make findings and recommendations and forward its report to the board of governors for action, which may either act upon the report or may take additional evidence, or set aside the report and hear the whole case de nova, as it may elect (sec. 32)”. The board of governors, too, subject to the provisions of the act, may by rule, provide the mode of procedure in all cases of complaints against the members (sec. 37). In short, the act clearly contemplates an investigation and a finding or conclusión as to whether or not it is advisable to institute proceedings against a member and cause a hearing to be held. It is to be noted that in these “investigations” the officers are clothed with the power to compel the attendance of witnesses and production of books, papers and documents pertaining to the matter under inquiry. All this investigation takes place before a proceeding is formally instituted or a “hearing” had. This procedure completely and adequately occupied the same field held by the verified accusations under the system provided for in the code sections. It is an effort to take an advanced step over and to improve upon the system provided for in the code. In fact, the preliminary investigation is an inquiry by officers of this court selected for the purpose of ascertaining the probable truth of the charge made. Such an investigation doubtless does and it should allow an opportunity for the accused to be heard before a proceeding is begun. With competent officers, acting conscientiously and impartially, who can say that this system is inferior to or less just than that provided in the code? What innocent man would not prefer this method of handling a complaint to a public proceeding against him resting alone upon the affidavit of a partisan, if not a prejudiced client? There is nothing in this proceeding which in any way weakens our firm belief that the board of governors and committees functioning under it are all competent, patriotic and unselfish members of the profession, acting for its best interests, it is true, but also in full sympathy with all rights and privileges of the members as attorneys at law. *201 When a hearing is decided upon, it is not even contended that the act does not provide ample machinery for the safeguarding of every right of the accused. The notice must be reasonable and, of course, must contain a specification of the charge, together with the right of the accused to defend himself against it through counsel, aided by the right of subpoena and the right to introduce evidence and to examine and cross-examine witnesses (sec. 35). A record or transcript of the hearing must be made and preserved by the board or committee (sec. 36) and if disbarment or disciplinary action is to be recommended, such decision, findings and transcript are to be lodged with the clerk of this court (sec. 26) and the decision thus made may be followed by a review in this court in the manner provided (sec. 38). Other provisions of the act might be cited as further evidence of the fact that the organization is intended to function independently without interference or aid by any other provisions of our law respecting the same subject. Indeed, were it not specially provided against, a strong argument could be made for the conclusion that a repeal of said code sections by implication had occurred. In fact, such contention was made in the Supreme Court of the state of Alabama, as recorded in the ease of ■ McCord v. State, 220 Ala. 466 [126 South. 873], wherein it may be noted that Alabama has a state bar act as well as certain code provisions relating to the discipline of offending members of the bar. It was contended there that the code provisions had been repealed by the special act but the statute of that state provided in so many words that it was a cumulative remedy and for that reason the court declined to hold the code sections repealed. We find the following language in section 26 of the act before us: “Nothing in this act contained shall be construed as limiting or altering the powers of the courts of this state to disbar or discipline members of the bar as this power at present exists.” We can make little else out of this provision than a declaration that each of the two methods of procedure is to be independent of the other. If verified complaints were to be jurisdictional prerequisites under the State Bar Act, here would have been the place to *202 expect such a provision. Instead of so providing, we find a special legislative declaration that the code sections are to be construed independently of the act. If this be true, it seems clearly to follow conversely that the State Bar Act is to be construed independently of the code provisions. Of course, we need not pause to discuss at length the principle which has obtained in this country for more than one hundred years that the absence of a verified complaint does not deny the accused the constitutional right of due process of law so long as notice is given and a hearing accorded him. (Ex parte Burr, 9 Wheat. 529 [6 L. Ed. 152] ; Randall v. Brigham, 7 Wall. 523, 539 [19 L. Ed. 285] ; Ex parte Wall, 107 U. S. 265, 271, 288 [27 L. Ed. 552, 2 Sup. Ct. Rep. 569, 588] ; In re Shepard, 109 Mich. 631 [67 N. W. 971].) As to the general purpose of matters of discipline, a quotation from the Wall case, supra, is pertinent: “The proceeding is not for the purpose of punishment, but for the purpose of preserving the courts of justice from the official ministration of persons unfit to practice in them. Undoubtedly, the power is one that ought always to be exercised with great caution; and ought never to be exercised except in clear cases of misconduct, which affect the standing and character of the party as an attorney. But when such a ease is shown to exist, the courts ought not to hesitate, from sympathy for the individual, to protect themselves from scandal and contempt, and the public from prejudice, by removing grossly improper persons from participation in the administration of the laws. The power to do this is a rightful one; and, when exercised in proper cases, is no violation of any constitutional provision.” We may, therefore, conclude that there is no absence of jurisdiction shown by the record, but, on the contrary, that the procedure set up by the State Bar Act is self-sufficient and was duly followed as to petitioner. All other legal questions urged have heretofore been passed upon by this court and time need not be consumed in the discussion of them. This brings us to a consideration of the merits of the several charges leveled at petitioner. In the so-called “Maxwell Matter” it is found, upon competent evidence, *203 that an action to recover $161 had been brought against a client of the accused; that opposing counsel thereafter entered into an agreement to compromise and settle the suit for $111; that on March 29, 1927, the accused was given a check to his order in the sum of $55 for the express purpose of being applied toward the payment of said settlement; that on May 10, 1927, the client delivered to him an additional $56 in cash to be applied to the balance of the principal amount of the settlement; and, that the accused has paid over to opposing counsel only $75 of the $111 so delivered to him, having wrongfully appropriated to his own use the remaining $36. In an attempted explanation of his conduct, the accused denied receiving a portion of the money asserted to have been delivered to him and testified that the remainder was intended as and had been accepted for his fee in the prosecution of a justice’s court appeal in another cause. The accused concedes that the evidence is in sharp conflict and he is therefore forced to rely upon the “presumption of innocence” and 'the asserted ill will of the witnesses and the examining committee toward him. The findings in the “Jones Matter”, which are also based on substantial evidence, show that the accused was employed to and did institute an action on a promissory note in the sum of $300; that without the knowledge of his client, he settled and compromised the action for $200, which sum was paid to and converted by him to his own use. The accused, though personally served with notice of the proposed hearing on this charge, refused by letter to appear before the local administrative committee to defend it, asserting that the committee was biased and proceeding illegally under an unverified complaint. The legality of the procedure adopted has already been considered and disposed of adversely to the accused. Upon the conclusion of the hearing, on this charge and subsequent to the making of the foregoing findings by the local committee, the accused filed with the board of governors an affidavit stating he had compromised and settled the suit with his client’s consent upon discovering that there had been a partial failure of consideration for the note sued on and that his failure to turn over the money to his client was attributable to his inability to locate her. He also avers that he did not learn *204 of the client’s true address until served with a warrant issued upon her complaint, whereupon he promptly paid over the money to her. In opposition to this claim of petitioner, there is the testimony, of the complainant that she had communicated with the accused upon learning from other sources of the settlement of the action and that the accused had denied any such settlement. The examiner appointed by The State Bar to investigate the charge testified that the accused had informed him that he had paid over the money to the complainant and held her receipt therefor. It is significant to note that this money was received by the accused in July, 1928, and paid over to the client in June, 1929, almost a year later, and then only after a warrant had been issued for the arrest of the accused. We now come to the “Larricq Matter”, wherein it is. found, upon sufficient evidence, that in March, 1928, Pierre L. Larricq and wife had interviewed the accused as to the advisability of purchasing stock in a certain garbage company; that upon investigation the accused advised against such investment, suggesting, instead, the investment of $500 in the stock of another and different company which, so the accused asserted, he and certain other persons were- to incorporate under the laws of Nevada; that the complainants thereupon delivered to the accused a check payable to his order in the sum of $500; that the proposed corporation has never been formed and neither the stock nor the money ever delivered to the complainants, though repeatedly demanded by them. As in the Jones matter, for the same reasons, the accused refused to appear before the local committee and answer to the charge. In his petition he attempts to justify his retention of the $500 on the ground that he was entitled to a portion, if not all, of the money as and for his fee. Opposed to this claim there is evidence tending to show that prior to undertaking any investigation for the Larricqs, the accused had demanded and received, in three equal installments, the sum of $150 in payment of his fee. The fourth and final charge of misconduct of which petitioner was found to be guilty arose out of his unreasonable retention of $500 delivered to him on February 20,, 1928, for and on behalf of a client, which sum of money was to be *205 paid over by the accused in discharge of certain alimony payments owing by said client, providing such arrangement was satisfactory to the adversary litigant. A check for this sum was made out to the order of the accused. Indorsements on the check show that it was cashed by the wife of the accused within a few days after its issuance. Demand for the return of this money was made on June 6, 1928. Approximately three weeks thereafter and while the money was still held by the accused, certain executions issued in other actions were levied upon it. From this the committee concluded that the accused had wrongfully retained the money for twenty-two days, representing the period between the demand for its return and the levy of the executions thereon, and that he was derelict in his duty to his client in not instituting an interpleader action or otherwise attempting to compose the conflicting claims to the money held by him. Petitioner’s explanation of this particular charge is to the effect that he was at all times negotiating with opposing counsel. He further testified that he had advanced $150 out of his own pocket to prevent his client being adjudged in contempt pending the settlement negotiations. This evidence being intended to show that he had a claim upon a portion of the money. Upon each of the first three charges the local committee recommended that petitioner be disbarred from the practice of the law and as to the last charge that he be suspended therefrom for a period of three months. The board of governors thereafter adopted the findings of the local administrative committee, the substance of which are set out above, and has recommended to this court that petitioner be disbarred. Although our examination of the record shows little justification for petitioner’s actions, nevertheless we do not feel that his permanent disbarment is warranted. Accordingly, it is ordered that the petitioner be and he is hereby suspended from the practice of the law in this state for the period of one year from and after the filing of this order. Seawell, J., Waste, C. J., and Shenk, J., concurred.