In Re McKenna

107 P.2d 258, 16 Cal. 2d 610, 1940 Cal. LEXIS 337

• Court: California Supreme Court
• Decided: November 15, 1940
• Docket: Bar Misc. 1642
• Status: Published

Opinions

THE COURT.

On July 26’, 1940, the board of governors of The State Bar of California filed in this court, pursuant to the provisions of section 6081 of the State Bar Act (Chap. 4, Business and Professions Code), a transcript of evidence and proceedings, together with its findings of fact and decision thereon, resulting in a recommendation of suspension for six months in the case of the above-named attorney at law. No application was made by the attorney within sixty days after the filing of the transcript and decision to review or reverse or modify the same, as provided in section 6083 of the • cited act. Normally, under such circumstances, and without additional comment, we enter an order, pursuant to the provisions of section 6084 of the act, imposing the recommended discipline. However, because of the position taken by Mr. Justice Carter, it appears proper to state the view of the court with respect to matters of this character.

From the inception of the integrated bar, an attorney recommended by the board of governors for disbarment, suspension or discipline has been accorded a remedy by way of review upon petition filed in this court within sixty days after the filing herein of the certified record (Stats. 1927, p. 41, sec. 26; sec. 6083, supra). The statute always has provided that when such sixty-day period is permitted to elapse without the filing of a petition for review “the Supreme Court shall make its order” either “striking the name of the person from the roll of attorneys” or “suspending him for a period mentioned in the decision.” (Sees. 26 and 6084, supra.) In the absence of other regulation on the subject, the latter is determinative of this proceeding. It always has been recognized “that the membership, character and conduct of those entering and engaging in the legal profession have long been regarded as the proper subject of legislative regulation and control, and it has never heretofore been considered, so far as we have been made aware, that, at least in this commonwealth, the exercise of a reasonable degree of regulation and control over the profession and practice of the law constituted an intrusion into the domain of our state organization constitutionally assigned to the judicial department thereof”. (State Bar v. Superior Court, 207 Cal. 323, 331 [278 Pac. 432].)

Repeated application has been given by this court to that provision of our law (sees. 26 and 6084, supra) requiring the entry of an order of disbarment or suspension when a petition for review has not been filed within the sixty-day period. At least one such application has reached the official reports. In Bordner v. State Bar, 218 Cal. 580, 581 [24 Pac. (2d) 459], it is declared that “In this matter the petition to review the order of the board of governors of The State Bar, recommending that the petitioner be suspended from the practice of law, was not filed in this court within sixty days after the filing of the certified copy of the decision of said board of governors with the clerk of this court. Petitioner has therefore failed to comply with section 26 of the State Bar Act (Stats. 1927, p. 41) fixing the time within which petitions for the review of orders of the board of governors must be filed. For this reason the petition is dismissed.”

In fixing the degree of punishment herein the board of governors took into consideration a private reproval administered by it to petitioner on May 14, 1937. That petitioner’s conduct warrants discipline under the statute we need only refer to our recent decision in Trusty v. State Bar, ante, p. 550 [107 Pac. (2d) 10].

In view of the foregoing, it is hereby ordered that Theodore C. McKenna must be and he hereby is suspended from the rights and privileges of an attorney at law for the period of six months from and after the date of the filing of this order.