Feinstein v. State Bar

248 P.2d 3, 39 Cal. 2d 541, 1952 Cal. LEXIS 283

• Court: California Supreme Court
• Decided: September 16, 1952
• Docket: L. A. 22129
• Status: Published

Opinions

THE COURT.

In 1938, upon conviction of a felony, Louis Feinstein was disbarred. (Bar Misc. No. 1527.) The Board of Governors of The State Bar upheld the action of an administrative committee unanimously recommending the denial of his petition for reinstatement. The matter is before this court upon Feinstein’s petition to review the board’s action. (Rules on Original Proceedings in Reviewing Courts, rule 59 [b].)

Feinstein was admitted to practice in California in 1927. He was convicted upon each of two counts of an indictment which charged him with soliciting a client to commit grand theft. (Pen. Code, § 653f.) The judgment of conviction was affirmed (People v. Humphrey, 27 Cal.App.2d 631 [81 P.2d ]) and he was automatically disbarred. (Code Civ. Proc., § 299; now Bus. & Prof. Code, § 6102.)

Concurrently with the criminal action, disciplinary proceedings against Peinstein were pending before a local administrative committee of The State Bar upon charges of issuing and passing fictitious checks. The committee unanimously recommended his disbarment and the Board of Governors approved the recommendation. (Bar Misc. No. 1541.) Peinstein’s petition to this court for a review of those proceedings was dismissed as having become moot because of the previous order of disbarment based upon his conviction in the criminal proceeding. (Feinstein v. State Bar, 12 Cal.2d 461 [85 P.2d 869] ; Hall v. State Bar, 12 Cal.2d 462 [85 P.2d 870].)

Following his conviction, Peinstein was imprisoned until his release on parole in 1940. Upon his release, he secured employment as a salesman and bookkeeper and later entered business for himself as a public accountant, which profession he has followed to the present time. In 1950, Feinstein was granted a full and unconditional pardon by the Governor in accordance with the provisions of sections 4852.01 through 4852.2 of the Penal Code.

At the hearings upon his petition for reinstatement before the local administrative committee, Peinstein produced 13 witnesses who testified to his good moral character, diligence, and faithful performance of his work. Nine of these witnesses had employed him for varying periods since his release from prison. Three of them did not know that he had been disbarred. The other six knew, or surmised, that he had been disbarred, but did not know the facts concerning his difficulties.

All of the witnesses who had employed him were satisfied with his work and had confidence in him, although only one of them had ever had occasion to entrust him with any money. Several who testified in his behalf indicated that they would not hesitate to employ him in a capacity of trust or confidence should the occasion ever arise. The record includes testimony by persons who know Peinstein and his family socially. They said that his family relationships were excellent. Upon the request of Peinstein's counsel, the examiner was prohibited from informing any of the witnesses who had employed him of the details of Peinstein’s disbarment or questioning them as to whether such knowledge would alter their opinions of him.

The remaining four witnesses, three of whom are attorneys, knew the details of Feinstein’s disbarment. An optometrist and two of the attorneys were personal friends of Feinstein, but their contact with him since his parole was social only. They fated Feinstein as having a high moral character before as well as after his conviction. Their opinions that he now is morally fit to practice law were based upon circumstances no different from those existing before he was disbarred.

J. H. Morris, Feinstein’s brother-in-law and his counsel in this proceeding, testified that, in a discussion pertaining to his reinstatement, Feinstein denied ever having made the fraudulent suggestions attributed to him in the criminal prosecution which resulted in his disbarment. Feinstein’s explanation of the bad check accusations, as related by Morris, was that he had given the checks “sort of foolishly, without realizing what he was doing.” Morris believes Feinstein’s statement that he was not guilty of the charge of which he was convicted and said he would have the same opinion of Feinstein’s high moral qualifications to practice law irrespective of this belief. Other than the present proceeding, Morris has had no professional dealings with Feinstein. He knew of no instance when Feinstein had been placed in a confidential relationship which might have tempted him to depart from an ethical course of conduct.

Testifying on his own behalf, Feinstein admitted the issuance of fictitious checks without sufficient funds to cover them as charged in the disbarment proceeding. He also stated that he knew his associate, Hall, was issuing similar checks. He drew a line through the word “order” on the checks, he said, to destroy their negotiability and give notice to third parties that it was an “unusual transaction.” According to Feinstein, “it seemed to be held against me instead of for me. I thought I was doing the right thing, and instead I was doing the wrong thing. I shouldn’t have done anything like that at all.”

According to Feinstein’s testimony, he drew the cheeks to assist a client who was operating a night club. “I don’t think I collected more than a few hundred dollars at the time this thing happened,” he said. “It was contemplated the more successful the night club was, the more work I did, and the more money I would make, but he wasn’t any large client. It was a few hundred dollars involved, I guess.”

As stated by Feinstein to the committee, the bank’s president informed him at the time of the disbarment proceeding that the bank had lost nothing and that he did not believe Feinstein knew anything about the conspiracy to defraud it. Feinstein has never made restitution to the bank for losses occurring as the result of the check transactions, nor undertaken any further inquiry as to whether there were losses.

At the hearing upon his application for reinstatement, Feinstein flatly denied any guilt in connection with the fraudulent suits which were the basis for the criminal charges which resulted in his conviction. He said: ‘ ‘ These eases were eases of clients of mine where they admitted that they had participated in a fake accident case. They testified against me and the doctor. They were given complete immunity as a result of it ... it was either their skin or the skin of the doctor and the lawyer.” Later, he remarked: “I never knew that either Callie Elliott or anybody else had been in a fraudulent claim.” Feinstein stated that he had never inquired as to whether any loss had resulted to the defendants from the filing of suits in the negligence actions, nor had he repaid any portion of the settlement received in one of those cases.

Feinstein’s income tax returns, admitted into evidence, indicate that his income has steadily increased from approximately $4,500 in 1943 to about $13,000 in 1949. His 1950 income was $13,000.

Regarding his legal ability, Feinstein testified that he read advance sheets of an accountant’s tax service from time to time, had subscribed to the Southern California Law Review and read a tax magazine containing comments on tax law. One of the attorneys who had discussed hypothetical legal problems with him found that he had a keen conception of the applicable principles. Another attorney stated that he and Feinstein had discussed questions of law common to tax matters from time to time.

Upon the foregoing evidence and the exhibits introduced, including the documents in connection with the statutory rehabilitation proceeding, the administrative committee unanimously concluded that Feinstein has not fully rehabilitated himself, lacks the present moral qualifications to warrant his reinstatement, and does not have present ability and learning in the law sufficient to warrant his reinstatement. These conclusions were adopted by the Board of Governors.

Feinstein contends that the evidence does not support certain findings of the committee or the conclusions and recommendations of the committee and the board. The evidence, he says, conclusively establishes his rehabilitation and present good moral character. Concerning his legal ability at this time, he offers to take an examination if ordered to do so. The State Bar argues that Feinstein failed to meet his burden of proving, by clear and convincing evidence, that he is entitled to reinstatement.

Reduced to its basic essentials, Feinstein’s argument is that the evidence which he produced of his present good moral character was undisputed. The State Bar, he says, offered nothing to overcome this showing and relied solely upon the offenses which led to his disbarment. It is his contention that undue weight has been given to his past misconduct in reaching the conclusion that he has not been rehabilitated. Throughout this proceeding, both in his testimony before the committee and in his argument to this court, Feinstein has contended that he never intentionally did any wrong and that the testimony against him in the criminal cáse is suspect.

“ The sole object of the court, upon an application by an attorney previously disbarred for reinstatement to practice, is to determine whether or not the character of the applicant is such that he should be admitted to an office of trust, and recommended to the public as a trustworthy person, fit to be consulted by others in matters of confidence. (Citation.) In such proceeding the burden of proof is upon the one who seeks, after disbarment, to accomplish a restoration to the ranks of the legal profession, and before the court may grant the petition for reinstatement it must be satisfied and fully convinced by positive evidence that the effort he has made toward rehabilitation of Ms character has been successful. (Citations.) It is only reasonable that the person seeking reinstatement, after disbarment, should be required to present stronger proof of his present honesty and integrity than one seeking admission for the first time whose character has never been in question. In other words, in an application for reinstatement, although treated by the court as a proceeding for admission, the proof presented must be sufficient to overcome the court’s former adverse judgment of applicant’s character.” (Kepler v. State Bar, 216 Cal. 52, 55 [13 P.2d 50] ; Becks v. State Bar of California, 35 Cal.2d 268, 275 [217 P.2d 409]; McArthur v. State Bar, 28 Cal.2d 779, 788 [172 P.2d 55].)

“ One who has been disbarred for acts involving a high degree of moral turpitude—and those committed by petitioner were of that character—‘should not be reinstated in the ranks of the legal profession except upon the most clear and convincing, nay, we will say upon overwhelming, proof of reform—proof which we could with confidence lay before the world in justification of a judgment again installing him in the profession. . . ” (In re Morganstern, 85 Cal.App. 113, 117 [259 P. 90] ; Wettlin v. State Bar, 24 Cal.2d 862, 869 [151 P.2d 255]; In re Stevens, 59 Cal.App. 251, 254-255 [210 P. 442].)

“It has been definitely determined by this court that a pardon of an attorney previously disbarred on account of his conviction of the offense of which he was subsequently pardoned does not of itself reinvest him with those essentials required of an attorney at law.” (Wettlin v. State Bar, supra; In re Lavine, 2 Cal.2d 324, 329 [41 P.2d 161, 42 P.2d 311].) The finding of the certificate of rehabilitation (Pen. Code, § 4852.13) that Feinstein is now of good moral character is not one that he presently possesses the highest moral qualities required of an attorney, nor is it binding upon The State Bar or this court. (Pen. Code, § 4852.15.) At most, it is but evidence to be considered together with other evidence of his present qualifications to practice law. (In re Lavine, supra.)

Letters of recommendation and the favorable testimony of witnesses, especially that of employers and attorneys, are entitled to considerable weight. (Preston v. State Bar, 28 Cal.2d 643, 650-651 [171 P.2d 435] ; In re Andreani, 14 Cal.2d 736, 749-750 [97 P.2d 456].) But such evidence, however laudatory or great in quantity, is not alone conclusive. (Wettlin v. State Bar, supra; Kepler v. State Bar, supra, p. 56.) Reformation is a “state of mind” (In re Andreani, supra, p. 749) and “the applicant must show a proper attitude of mind regarding his offense before he can hope for reinstatement.” (Wettlin v. State Bar, supra, p. 870.) The committee of The State Bar, which has an opportunity to view the witnesses and the petitioner, is in a better position than is the reviewing court, faced only with the cold printed record, to determine the applicant’s state of mind. (In re Andreani, supra, p. 750; Vaughan v. State Bar, 208 Cal. 740-745 [284 P. 909].) Although this court has plenary power to reinstate an applicant previously disbarred, it has always accorded the greater deference to the recommendation of The State Bar and its administrative committee, (In re Lacey, 11 Cal.2d 699, 701 [81 P.2d 935].) Only where the record clearly and convincingly demonstrates that the applicant possesses an acceptable appreciation of the duties and responsibilities of an attorney at law in relation to his clients and the courts may a decision overruling the unfavorable action of the Board of Governors be justified. (Beeks v. State Bar of California, supra, p. 277.)

The record here fails to meet the requirement of clear and convincing proof of reform. The pardon and the favorable testimony of witnesses show commendable progress by Feinstein in rehabilitating himself as a member of society, but such improvement does not compel the conclusion that he now has the highest moral attributes required of an attorney. To the contrary, his repeated assertions that, despite his conviction and the other disciplinary proceedings against him, he committed no wrong, coupled with his failure to make any attempt since his parole either to determine whether his activities resulted in losses to others or to reimburse his victims, indicate a continuing failure to comprehend his professional responsibilities. Under some circumstances, “a spirit of willingness, earnestness and sincerity” is sufficient to permit reinstatement although it is not within the power of the applicant to undo the damage which his acts have caused to others. (In re Andreani, supra, p. 750; Preston v. State Bar, supra, p. 650.) But Feinstein has shown no such spirit, although it has been within his power not only to determine what damage he had caused but to right at least some of his wrongs.

There is nothing in the record which would justify this court in ordering either immediate reinstatment or acceptance of Feinstein as an applicant for examination upon his technical qualifications.

The application of petitioner for reinstatement is denied.