Christopher v. State Bar

161 P.2d 1, 26 Cal. 2d 663, 1945 Cal. LEXIS 182

• Court: California Supreme Court
• Decided: June 29, 1945
• Docket: L. A. 19081
• Status: Published

Opinions

THE COURT.

This is a proceeding to review the recommendation of the Board of Governors of the State Bar that petitioner be suspended from the practice of the law for the period of six months.

The petitioner was admitted to the bar of this state on March 18, 1927. From January, 1935, to January 5, 1943, he was justice of the peace of San Gabriel Township in Los Angeles County. On May 26, 1943, he received a notice to show cause why he should not be disciplined for unprofessional conduct in that he acted as attorney for the plaintiff in an action filed on July 7, 1939, in the justice’s court of San Gabriel Township and thereafter prosecuted the action to judgment at a time when he was prohibited by section 171 of the Code of Civil Procedure from practicing law in that court; and that the conduct of the petitioner in the premises involved moral turpitude.

The petitioner had theretofore acted as the attorney for Linda Sandoval and others and had received from them a promissory note payable to himself for $85 on account of legal services rendered. The note was unpaid except as to $10. The petitioner assigned the note to his wife. Acting as his wife’s attorney he caused a complaint to be prepared entitled Winnie W. Christopher v. Linda Sandoval et al., in which it was sought to recover the sum of $75 with interest, costs and $20 attorney fees. The petitioner signed the complaint as attorney for the plaintiff and caused it to be filed in said justice’s court on July 7, 1939. On August 2, 1939, he caused an order to enter the default of the defendants to be filed and a judgment to be entered in favor of the plaintiff and against the defendants in the sums demanded in the complaint. On the same day he notarized the oath of his secretary to the cost bill. On August 25,1939, as attorney for the plaintiff, he caused an abstract of judgment to be recorded in the office of the county recorder of said county. On March 15, 1943, about two and one-half months after he had ceased to be a justice of the peace in said township he personally requested that a writ of execution be prepared and issued for the total sum of $107.99, including $20 attorney’s fee, and directed that the writ be executed.

In response to the notice to show cause the petitioner filed an answer in which he did not deny the commencement and prosecution to judgment of the action as outlined in the notice to show cause but denied that those steps had been taken “knowingly and willingly” as charged; and alleged affirmatively (1) that he signed the complaint as attorney for the plaintiff and as a notary public took and subscribed to the oath of his wife in verifying the complaint through inadvertence and that the other steps leading to and including the entry of judgment were taken during his absence on vacation and without his knowledge; (2) that the notice to show cause did not state facts which, if true, would involve moral turpitude; (3) that if the facts alleged constituted an offense of any kind it would be an offense against his office as justice of the peace, and that The State Bar of California was without jurisdiction over the petitioner for acts committed against that office; and (4) that in 1939 the district attorney of Los Angeles County presented all of the facts alleged in the notice to show cause to the grand jury of that county whose duty it was to investigate offenses of public officials including justices of the peace, with the result that the petitioner appeared before, but no action was taken by, that body.

The petitioner appeared at the hearing before the local committee. The jurisdictional point, at once presented by him, was sustained by a vote of two to one. The proceeding was certified to the Board of Governors for dismissal. Thereafter the hoard decided in favor of jurisdiction and referred the matter to the local committee for a hearing and recommendation in due course. After a full hearing held in November, 1943, the local committee found that the petitioner had committed the acts as alleged and not through inadvertence, but failed to find that moral turpitude was involved. It recommended a public reproval. The board adopted the findings of the local committee and in addition concluded that the conduct charged and found to have taken place involved moral turpitude within the meaning of section 6106 of the State Bar Act, and has recommended to this court that the petitioner be suspended for a period of six months.

On review three questions are involved: 1. Did The State Bar have jurisdiction to take disciplinary proceedings against the petitioner ? 2. Are the findings supported by the evidence ? and 3. Do the acts charged and found to have been committed by the petitioner constitute cause for disciplinary action?

On the first question the petitioner reiterates his contention that the charges, if true, constituted offenses against his office of justice of the peace, and not offenses against the profession of the law.

Section 171 of the Code of Civil Procedure provides: “No justice, or judge of a court of record . . . shall practice law in any court of this state . . . during his continuance in office; nor shall any justice of the peace practice law before any justice’s court in the county in which he resides.”

As a member of the bar the petitioner had the right to practice law in all of the courts of this state with the sole exception provided in section 171, that is, that he could not practice law in any justice’s court in Los Angeles County while he was a justice of the peace in that county. During the time thát he was both a practicing lawyer and a justice of the peace he was acting in a dual capacity with corresponding and reciprocal obligations to the courts and the profession. He was just as much controlled by section 171 in the practice of the law as he was curtailed in his professional activities as a justice of the peace. As a general law of this state section 171 has the same meaning and effect as if it provided that “no attorney at law shall practice law in any justice’s court in the county in which he resides while he is a justice of the peace in that county. ’ ’ Practice of the law in violation of that section is an offense against the profession of the law, and an attorney so offending is subject to disciplinary proceedings through the medium of the State Bar Act even though it might be said that thereby he would offend also against the office of justice of the peace. When it is determined that a law of the state relating to his professional activities has been violated by an attorney at law, the court on review should not be astute to relieve him from the consequences of his act because forsooth he might suffer some other penalty for an offense against his judicial office; nor should he be permitted to use his judicial office to shield him from the consequences of his delinquency as an attorney at law.

The laws of the state, both constitutional and statutory, have been unremitting in an endeavor to safeguard the administration of justice from both the actual and the apparent conflict of interest between court and practitioner. Justices and judges of courts of record are prohibited from practicing law in any court of the state by section 18 of article VI of the Constitution. They are excluded from membership in The State Bar by section 6002 of the State Bar Act. Justices of the peace in certain cities are prohibited from practicing law “in or out of court” during their continuance in office. (Code Civ. Proc., § 103g.) Notwithstanding the right of the petitioner to practice law during his continuance in office, he was bound to observe the statutory injunction not to practice before any justice’s court in the county in which he resided. In the conduct of his practice it was his duty “to support the Constitution and law of the United States and of this State, ’ ’ and “to maintain the respect due to the courts of justice” (State Bar Act, § 6068, subds. (a) and (b)). Section 171 was binding on the petitioner both as a justice of the peace and as a lawyer. By violating that statute he was nurturing a conflict in interest which the fundamental and statutory law prohibited. Since his right to practice law continued, he remained amenable to the processes of The State Bar.

The petitioner seeks to sustain his contention on the jurisdictional point by reliance on the Hardy case (State Bar v. Superior Court, 207 Cal. 323 [278 P. 432]). That case can be of no assistance to him. There The State Bar sought to prosecute proceedings against a judge of the superior count, a court of record, for the alleged practice of the law contrary to his obligation as a member of the legal profession. This court held that The State Bar was without jurisdiction so to proceed for the reason that the right of the accused to practice law was suspended under constitutional provision during his continuance in office and that as he was not a member of The State Bar he was not amenable to its disciplinary processes.

The jurisdiction of the offense was therefore within the accusatory powers of The State Bar, and the decision of the Board of Governors on the point was correct.

On the question of the sufficiency of the evidence to support the findings of the local committee and of the Board of Governors the petitioner contends that the evidence supports only the conclusion that he did not know what he was doing when he signed the complaint as attorney for the plaintiff, the verification of his wife appended thereto, and as notary on the cost bill; that they were so signed by inadvertence, and that the subsequent steps in the litigation were taken without his knowledge. The record does not support the contention.

Miss Ellen C. Neilan was the petitioner’s legal secretary from February, 1937, to April, 1942, when she became assistant clerk of the justice’s court of San Gabriel Township and later, in November, 1942, court clerk, a position she occupied at the time of the hearings in the proceedings before The State Bar. She testified that in the latter part of June, 1939, the petitioner handed to her the promissory note with the request that she prepare a complaint based thereon in the name of Mrs. Christopher as plaintiff and instructed her to file it in the justice’s court. Before the complaint was prepared she had a conversation with the petitioner in which she called his attention to the fact that the action could not be brought in the municipal court of Los Angeles because the parties defendant were residents of San Gabriel Township. She testified that she had no recollection of a conversation in which she was told, as claimed by the petitioner, to file the complaint in his name in the justice’s court.

The complaint was verified by Mrs. Christopher and her oath was subscribed to by the petitioner as notary public. A certified copy of the complaint is an exhibit in this proceeding. In support of the contention of the petitioner that he signed the complaint and verification by inadvertence he relies on the fact as testified by Miss Neilan that it was her custom to clip back pages for his ready signature on the appropriate page, and his own statement that he did not notice that he was verifying his wife’s signature. Miss Neilan stated that she did not remember whether she followed this practice on that occasion, but that she recalled that Mrs. Christopher signed the verification on her desk and that Mr. Christopher was there at the time and signed the endorsement on the note, the complaint as attorney for the plaintiff, and the verification as a notary; that petitioner left about July 1, 1939, for a month’s vacation and she filed the complaint on July 7th; that in accordance with her usual custom she signed the petitioner’s name to the order to enter the default judgment; that she signed her own name to the memorandum of costs, which the petitioner notarized on his return prior to August 2nd. The default judgment was entered and the cost bill was filed on August 2, 1939. She testified that she prepared the writ of execution and issued it in March, 1943, when she was clerk of the court, at the personal request of the petitioner.

The petitioner testified that he instructed Miss Neilan to commence suit on the note in Mrs. Christopher’s name in the municipal court in Los Angeles; that following the conversation concerning the impropriety of filing the complaint in the municipal court he instructed her to file it in the justice’s court in his own name. He admitted his signature on the complaint as attorney for the plaintiff, and on another page his signature as notary public on the affidavit of verification signed by his wife. He stated that he signed the complaint and verification affidavit when his wife was not there, but that he had no distinct recollection of signing the same because it was the practice of his secretary to prepare papers and stack those requiring his signature on his desk folded back and clipped so that only the signature page appeared; that the practice was followed in this case; and that he did not observe at the time that the complaint was entitled in the name of his wife as plaintiff; that he thereupon departed on vacation for the month of July, during which time another justice of the peace in the county sat in the San Gabriel Township court; that after a complaint was signed it was the practice in his office for his secretary to follow the matter through in default cases; that his signature as notary public appeared on the memorandum of costs and disbursements filed after his return from vacation, but that he did not notice at that time what action was involved; that the endorsement to his wife on the reverse side of the note was not cancelled because that question never came to his attention; that the first time he had notice of the facts was when the matter came before the grand jury in October, 1939, following which no proceedings were taken against him by that inquisitorial body.

The local committee made a finding that “it is not true that at the time suit was filed on said promissory note it was filed in the name of Winnie W. Christopher through inadvertence, but that said complaint was filed in said court in the name of the plaintiff therein named with the full knowledge of” the petitioner. Similarly the committee found that the acts of the petitioner in causing to be filed the order to enter default judgment including $20 as attorney fees, and the memorandum of costs and disbursements including $1.00 as fees for notarial services performed by the petitioner, were not done through inadvertence but with the full knowledge of the petitioner. Likewise as to the abstract of judgment filed for record on August 25, 1939, the committee found that the acts of the petitioner were not inadvertent but were with his full knowledge.

It is obvious that the local committee and the Board of Governors in the light of the record evidence believed the testimony of Miss Neilan and refused to believe the testimony of the petitioner on the vital questions involved. An examination of the transcript and the exhibits in the proceeding supports the- conclusion that there is a sound basis for not according full credit to the testimony of the petitioner.

The petitioner admitted that at the time of the transactions in question he was familiar with the provisions of section 171 of the Code of Civil Procedure and that he knew it was improper for him to appear as attorney on behalf of anyone in an action filed in his own court. His claimed inadvertence in signing the complaint as attorney for the plaintiff, in notarizing the cost bill and particularly in notarizing his wife’s verification of the complaint is persuasively negatived by an examination of the exhibits. The complaint shows that he signed it as attorney for the plaintiff immediately above the typewritten words showing that relationship. His wife signed the verification. The petitioner’s signature is almost immediately opposite and very near the signature of his wife. Aside from other implications arising from his action as a notary public, as he claims it took place, credulity is taxed to the breaking point to believe that when he signed as notary he did not know that he was taking the verification of his wife. The facts and circumstances make the asserted custom of clipping back pages dubious support for his claim of inadvertence. He admitted that when he obtained the writ of execution in March, 1943, he knew all of the facts surrounding the grand jury investigation. Since he personally obtained that writ he should not be heard to say that he did not know that the item of attorney’s fees was specifically included therein. Even if it be assumed that he did not, through inadvertence, appreciate that the item of attorney’s fees was sought by the allegations and the prayer of the complaint, he cannot avoid knowledge of the inclusion of that item in the writ of execution. Since he must have known of such inclusion, he likewise must have known that he was not entitled to an attorney’s fee if he was prosecuting the action in his own name as plaintiff. Certain it is that if he believed that the action had been prosecuted in his own name, he should have taken steps to relieve his former clients, the judgment debtors in the case, from the payment of the unjust exaction of an unauthorized attorney’s fee. He took no such steps. It must therefore be concluded that the evidence is sufficient to support the findings of the local committee and the Board of Governors and that it would be improper, under all of the circumstances of the case, for this court, in exercising its supervisory powers in state bar matters, to find contrary to those findings.

On the final point the petitioner contends that the facts as found would not, if true, disclose moral turpitude on his part. The presence of moral turpitude sufficient to justify disbarment or suspension may be disclosed under varying circumstances. For example, if an attorney is convicted of a felony or misdemeanor involving moral turpitude the record of a.final judgment of conviction is conclusive against him.. (State Bar Act, § 6101.) The commission of an act of moral turpitude, dishonesty or corruption, whether committed in the course of his relations as attorney or otherwise, is sufficient cause for suspension or disbarment. (State Bar Act, § 6106; of. Jacobs v. State Bar, 219 Cal. 59 [25 P.2d 401].) Such provisions were undoubtedly included in the State Bar Act because it was realized that the acts of an attorney in violation of 1'aw, aside from any breach of his duty as an attorney, might reflect upon his integrity and fitness as an attorney and require his suspension or disbarment. But in prescribing the duties of an attorney and imposing penalties for a breach thereof, it was not considered that moral turpitude, dishonesty or corruption should be discovered as a separate - and distinct element of the act. When it was provided in section 6103 of the State Bar Act that . . any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension,” such violation was to be deemed sufficient to support a disciplinary proceeding. We are not here dealing with the case of a violation of a traffic or other law applying to the public in general and which has no relation to the duties of an attorney. The law violated by the petitioner was one specially directed to him for his observance and faithful adherence as a justice of the peace and as an attorney, the violation of which would tend to bring the courts and the profession into disrepute. To say that the violation of such a law does not constitute grounds for discipline would be to set at naught a salutary legislative enactment designed to safeguard the public as well as the attorney in professional relationships.

Since it must be held that the petitioner knowingly practiced law in violation of a statute governing his duties as a lawyer his conduct in that respect was a breach of his duty to support the Constitution and laws of this state and to maintain the respect due to courts of justice (State Bar Act, §6068(a) and (b)). It was also a violation of the oath of an attorney prescribed by section 6067 of the State Bar Act. Such conduct therefore constituted cause for discipline pursuant to section 6103 of that act.

In accordance with the recommendation of the Board of Governors, the petitioner is hereby suspended from the practice of the law in this state for a period of six months commencing thirty days from and after the date of the filing of this opinion.