DAVIS v. STATE BAR OF CALIFORNIA (1941)

This proceeding was brought to review the recommendations of the board of governors of the State Bar that the petitioner be disbarred from the practice of law.

The petitioner's difficulties arose out of his dealings with Mrs. Marie Monast, who was arrested and placed in jail on a charge of possessing narcotics. Through a man named Evans, a self-styled ‘bouncer’ in a Hollywood night club, she employed the petitioner and another lawyer to represent her. To secure the payment of their fee of $2,000 she pledged with Davis two diamond rings having a value in excess of that sum. The petitioner signed a typewritten receipt for them which, as originally written, recited that they were deposited as security for attorneys' fees ‘and bond’. When the receipt was offered in evidence, a line had been drawn through the words ‘and bond’.

Davis procured a bail bond from a surety company and Mrs. Monast was released from jail. She paid the premium on the bond. The attorneys' fee was paid in three instalments, the last of which was made on May 26, 1937. On July 19, 1937, when she failed to appear for trial in the superior court, the bond was forfeited. Later, upon representations of Davis that she was ill, the matter was continued one week. At that time there was a trial by the court, a jury having been waived, and judgment of conviction. She immediately filed an application for probation, which was granted the same day. A condition of probation was that she should leave California and not return. A few days later she sailed for Honolulu and has not returned. Upon this disposition of the case her bond was exonerated.

On July 17, 1937, Irene Davidson and Catherine Wall were arrested and jailed in Los Angeles on charges of grand theft. They too, through Tom Evans, retained Davis and his associate as counsel. Shortly after their arrest, Davis filed a petition for writ of habeas corpus and secured their release on bail by posting a bond of $1,000 for each one of them. These bonds were secured by Davis from the same surety company which had posted bail for Marie Monast. When arraigned in municipal court, the bail of each defendant was increased to $3,500. This they were unable to furnish, and consequence they were remanded to the county jail, where they remained until sentenced.

When these two women were arrested, Marie Monast had paid the premium on her bond and all of her attorneys' fees in her case. On the day after she was to appear for trial, the petitioner pawned for $350 the two diamond rings pledged with him by her. Approximately two months after Mrs. Monast left for Honolulu, Davis sold the pawn ticket for $200, and the purchaser subsequently redeemed the rings from the pawnbroker. Thereafter Mrs. Monast brought a replevin action against Davis to secure possession of the rings. Davis then repurchased the rings and after the institution of the disciplinary proceedings against him, returned them to her.

All of the facts which have been stated stand undisputed. But there is a direct conflict between the petitioner and Mrs. Monast concerning the agreement under which she pledged the rings with him. He testified that when he signed the receipt for the rings the words ‘and bond’ had not been crossed out. Mrs. Monast testified positively that she refused to accept it until this was done.

In further explanation of his action in disposing of the jewelry the petitioner testified that ‘they were to be returned to her when the bond was either exonerated or otherwise had been disposed of and the fee had been paid’. He also testified that he represented Catherine Wall and Irene Davidson upon the representation of Evans ‘that he had talked to Mrs. Monast and that she was willing to take care of their case and for me to come and get them out [of jail]’. Later, he said, he talked with Mrs. Monast and told her Tom Evans had called him in connection with the case of these women. ‘And did she indicate’, he was asked, ‘in any wise whatsoever that she was not going to be responsible for their bond and attorneys fees'? ‘No’, was his reply. ‘If she had, I wouldn't have gone ahead with them.’ According to his testimony, he told Mrs. Monast ‘in the beginning’ that his fee would be $250 for each woman and that he was going to keep the jewelry. But he also related a conversation he had with Mrs. Monast at the county jail when ‘she apparently was highly dissatisfied and said that these two girls were dissatisfied the way the preliminary hearing had been handled; said they were going to get other counsel and that she didn't intend to pay for their fee or bond’.

The testimony of Mrs. Monast, taken by deposition, is in direct contradiction to that of petitioner. She said: ‘I never talked to Mr. Davis concerning Katherine Wall and Irene Davidson. * * * I am positive that I never told Harold L. Davis, or anyone else, that I would pay the fees for [them] * * *, or either of them, as I had no reason for assisting these women. * * * I never told [them] * * * that I would be responsible for their bonds or attorney's fees at any time in the county jail in Los Angeles, or any place else.’

The charges made against the petitioner are that he improperly disposed of the diamond rings pledged with him, that he filed a false and improper cross-complaint in the replevin action, and that he gave false testimony in a deposition taken in connection with that litigation. The local administrative committee of The State Bar before whom the issues were tried found in petitioner's favor on all charges with the exception of that concerning the allegations of the cross-complaint. On that issue it found that such allegations were due to the error of Davis' associate in preparing the cross-complaint and through the careless conduct of the petitioner in signing a verification of it in blank. Upon these findings the committee recommended that Davis be given a private reprimand. When the board of governors received the findings and recommendations of the administrative committee it set a time at which the matter would be heard and notified the petitioner to appear and show cause why a greater degree of discipline than that fixed by the committee should not be recommended to the Supreme Court. Following the hearing, at which the petitioner testified in his own behalf, the board adopted findings of fact contrary to those of the committee and recommended his disbarment.

Petitioner contends that without a trial de novo the board of governors was without jurisdiction to do more than accept the determination of the local administrative committee. But the State Bar Act requires the board of governors to make findings of fact in all disciplinary proceedings resulting in a recommendation to the Supreme Court for disbarment or suspension. § 6080, Bus. and Prof. Code, St. 1939, p. 356. In fulfillment of this duty, the board may adopt or reject the findings of a local administrative committee in whole or in part and it may also take additional evidence and make other findings. See Smallberg v. State Bar, 212 Cal. 113, 297 P. 916; Sawyer v. State Bar, 220 Cal. 702, 707, 32 P.2d 369. The authority given the board by section 6043 of the State Bar Act St. 1939, p. 351, to take additional evidence without a trial de novo would have no purpose if the board, after hearing that evidence, could not make additional findings or findings different from those of the committee.

The conclusion of the board of governors that the petitioner violated his oath as an attorney at law and is guilty of conduct involving moral turpitude rests upon its findings that although the agreement of Mrs. Monast, to secure the performance of which she had pledged the rings, had been fully performed, Davis sold them as his own property; that he testified falsely upon the taking of his deposition concerning the transaction; and that he swore to certain allegations in a cross-complaint which were false and untrue. In reaching its decision, the board of governors considered not only the record of the proceeding before the local administrative committee, but also the testimony of the petitioner given when this record was under review.

The State Bar recognizes the rule that in a disbarment proceeding the intendment should be in favor of the accused attorney. But in insists that, deciding every question of fact upon which there was the slightest conflict in testimony in favor of the petitioner, his testimony shows that he embezzled his client's property and in his deposition in the replevin suit committed perjury. His testimony also shows, says the State Bar, that as a basis for his defense to that suit, he endeavored to induce the bail bondsmen to falsify their records concerning the bonds of Wall and Davidson. It also contends that the record justifies its finding that the petitioner's verification of his cross-complaint was not an inadvertence.

The circumstances under which Davis disposed of the rings were related by Irving Glasser, a friend of the petitioner. He declared Davis told him ‘he had these rings in pawn, that he wanted to dispose of the ticket, and thereby sell the rings'. His testimony is uncontradicted, and is corroborated by that of the petitioner, who stated in his deposition that when he sold the ticket to Glasser it was understood the latter could ‘take it and sell it or do as he pleased with it’. Assuming that Mrs. Monast had told the petitioner she would pay for his services in behalf of Catherine Wall and Irene Davidson and that he might hold her rings as security therefor, he had no authority to sell the rings without notice to her. The law required him to give her notice and a reasonable opportunity to redeem her property. The petitioner admits that she had demanded the return of her rings and that he gave her no notice whatever of their sale. Under these circumstances, it conclusively appears, from his own testimony, that he embezzled his client's property. People v. Fleming, 220 Cal. 601, 32 P.2d 593; People v. Tambara, 192 Cal. 236, 219 P. 745.

In dealing with the property pledged by his client, the petitioner's professional duty required him to act toward her in the utmost good faith as well as to comply with the law concerning bailments. An agreement between an attorney and his client by which the attorney receives any advantage is presumed to be void and the burden is upon the attorney to prove that the client freely entered into the agreement. The record in the present case shows, without contradiction, that Mrs. Monast, because of her addiction to morphine, was not responsible at all times between her arrest and her departure for Honolulu; indeed, the petitioner testified that on one occasion when he talked with her concerning the rings, she had not fully recovered from the the effects of the drug. Moreover, when Mrs. Monast demanded the return of the rings and commenced suit against him, he attempted to justify his actions by having the bail bond broker change his books to show a charge of $500 for the bonds of Irene Davidson and Catherine Wall instead of $200, which was the premium fixed for them when they were issued. But neither the original premiums nor the increased amounts were ever charged to the petitioner.

Concerning the verified cross-complaint in the replevin action, the petitioner admits that its allegations are untrue. He testified that he signed and swore to it before the pleading was completed and that the attorney who drew it for him misunderstood the facts. It is significant that the petitioner did not call this attorney as a witness in his behalf and that the cross-complaint pleaded a cause of action for the recovery of an attorney's fee of $500 and $500 for bail bond premiums which were never paid by him. He admitted before the board of governors that he asked Glasser to change his records as the basis of an offset to Mrs. Monast's claim against him and Glasser corroborated his testimony in this regard. The board of governors found that ‘the allegations of said cross-complaint were wholly false and were known by said Harold L. Davis to be false when he verified the same’. This finding is fully supported by the evidence.

The petitioner's own testimony as to the other charges against him shows clearly that he committed perjury in his deposition given in connection with Mrs. Monast's suit to replevin the rings. He testified that the rings had been delivered to the bail bond company as security for premiums due on bonds. But the petitioner testified before the local administrative committee that he pledged the rings with the Provident Loan Association. Moreover, Glasser, the bail bond broker, who was the petitioner's witness, not only testified that these premiums were never charged against Davis, but that he purchased the rings in a personal transaction.

Under these circumstances, the testimony of the petitioner at his deposition as to the disposition of the rings warrants disciplinary action even if his version of the agreement with Mrs. Monast concerning the rings is accepted. Authority to dispose of them, conceding it to exist, cannot justify perjury committed in an explanation of the manner of exercising that authority.

It is, therefore, ordered that the petitioner be disbarred from the practice of the law in California and that his name be stricken from the roll of attorneys, this order to become effective thirty days after it is filed.

I dissent.

The majority opinion, which is the second decision by this court in this case, while stating that ‘The State Bar recognizes the rule that in a disbarment proceeding the intendment should be in favor of the accused attorney’, clearly ignores this rule in the disposition of this case, as both the board of governors and majority of this court have resolved all intendments against the accused and ignored the specific findings of fact by the local administrative committee in his favor as well as the conclusion of said committee, which is as follows:

‘From the foregoing facts the committee concludes that the respondent did not violate his oath and duties as an attorney and counselor at law within the meaning of subdivision 2 of section 287 of the Code of Civil Procedure of the State of California.

‘The committee further concludes that respondent did not commit any act or acts involving moral turpitude and dishonesty within the meaning of subdivision 5 of section 287 of the Code of Civil Procedure of the State of California.

‘The committee does conclude that the act of respondent in signing a verification in blank which was thereafter used in connection with a pleading was reprehensible conduct and conduct which should severely be condemned and is hereby so condemned. The committee recommends that respondent be advised of this in an appropriate communication.’

While it is true that petitioner testified at the hearing of this proceeding before the board of governors of the State Bar of California, there is nothing in his testimony which in any way tends to support the findings and recommendation of the board of governors and there was no other evidence before the board except the record of the proceedings before the local administrative committee upon which its findings were based.

The record shows that the local administrative committee considered the testimony of Mrs. Monast entirely unreliable and from the circumstances surrounding the case it appears that adequate grounds for that conclusion existed. With respect to the charge of embezzlement the pivotal point in the case is whether the pledge of the jewelry was changed from that relation to one in which petitioner had authority to dispose of it. The evidence on that subject as partially related by the majority opinion is that: ‘In further explanation of his action in disposing of the jewelry the petitioner testified that ‘they were to be returned to her when the bond was either exonerated or otherwise had been disposed of and the fee had been paid’. He also testified that he represented Irene Davidson and Catherine Wall upon the representation of Evans ‘that he had talked to Mrs. Monast and that she was willing to take care of their case and for me to come and get them out (of jail)’. Later, he said, he talked to Mrs. Monast and told her Tom Evans had called him in connection with the case of those women. ‘And did she indicate’, he was asked, ‘in any wise whatsoever that she was not going to be responsible for their bond and attorneys fees'? ‘No’, was his reply. ‘If she had, I wouldn't have gone ahead with them.’ According to his testimony, he told Mrs. Monast ‘in the beginning’ that his fee would be $250 for each woman and that he was going to keep the jewelry. But he also related a conversation he had with Mrs. Monast at the county jail when ‘she apparently was highly dissatisfied and said that these two girls were dissatisfied the way the preliminary hearing had been handled; said they were going to get other counsel and that she didn't intend to pay for their fee or bond’.'

In addition to that evidence the following also appears: Q. ‘* * * that you made the following statement, quoting, ‘I was seeing her (Mrs. Monast) off and on from day to day, and I don't know whether it was in the hospital or in the office, and she told me that she had spent all the money she had getting herself out of trouble, and she had to pay her way back. She expected to be released on condition that she go to Honolulu. She told me to take those’—the rings, I take it—‘that if she couldn't pay them, to use them as I saw fit to take care of the bond and my fee’. Is that a correct statement that Mrs. Monast told you that if she didn't pay you for the girls' (Davidson and Wall) bond and fee, that you could use them as you saw fit? A. That is the substance of it, yes.

‘Q. By what right, Mr. Davis, did you think you could sell that jewelry? A. That I had a right to sell it, it was mine; that was the understanding in the original agreement.

‘Q. By that you mean what? That she had agreed with you or told you that if she didn't pay for these girls, (Davidson and Wall) the fee and bond, that you could dispose of the jewelry? A. That way my understanding; yes.’ That evidence clearly shows that petitioner honestly believed the arrangement to be that he was free to dispose of the jewelry. The circumstance that after he was given such authority by Mrs. Monast she attempted to change her mind in regard to being responsible for the representation of Davidson and Wall, is obviously of no force because it was merely an attempt to repudiate a previous agreement.

In face of this evidence the majority opinion concludes: ‘Assuming that Mrs. Monast had told the petitioner she would pay for his services in behalf of Catherine Wall and Irene Davidson and that he might hold her rings as security therefor, he had no authority to sell the rings without notice to her. The law required him to give her notice and a reasonable opportunity to redeem her property. The petitioner admits that she had demanded the return of her rings and that he gave her no notice whatever of their sale. Under these circumstances, it conclusively appears, from his own testimony, that he embezzled his client's property.’ That assumption does not coincide with the facts. Mrs. Monast had given petitioner carte blanche to dispose of the jewelry as he saw fit. He therefore was justified in pawning or selling it, and even if it were only a pledge the authority granted to him was sufficiently comprehensive to constitute a waiver of any notice of the sale of the pledged property. There is therefore no basis for the statement that petitioner was guilty of embezzlement. There is no showing of any fraudulent intent on petitioner's part; nor of fraud or bad faith. Even if it be conceded that he was guilty of a technical conversion, that is not sufficient. It is said in Re Marvin, 180 App.Div. 778, 168 N.Y.S. 555, 563: ‘That is not very material here on an inquiry based upon the allegation that Marvin has acted dishonestly and in bad faith and defrauded his clients. Those questions are to be settled by considering the acts done by him and the intent with which they were done. They do not rest upon the technical question whether or not an equitable or a legal action is the proper remedy in a certain case, or whether certain acts may or may not constitute a technical conversion of money without regard to intent. Marvin can be convicted here only for an intentional fraud, an intentional and wicked violation of his professional duties, and in determining that question we must consider his acts and motives with reference to the situation as it existed and the injury his clients are suffering from his wrongful acts.’ In Barbee v. State Bar, 213 Cal. 296, 299, 2 P.2d 353, 354, this court said: ‘But in this case also the record does not satisfactorily establish an intent to defraud. Petitioner was, we believe, stubbornly but honestly mistaken in his understanding of his rights in the matter. We are not prepared to hold that such a dispute over the fixing of a fee is grounds for the drastic punishment inflicted by the order herein.’ It is stated in Re Irwin, 162 Or. 221, 91 P.2d 518, 524: ‘The defendant argues that a technical conversion alone does not afford a sufficient basis for disciplinary action against him and that it is essential that fraud or dishonesty must have accompanied the conversion. With that we agree.’ See, also 7 C.J.S., Attorney and Client, § 23.

The majority opinion contains several inaccurate statements relative to the facts which find no support whatever in the record, and I shall call attention to these inaccuracies and quote from the record, which will disclose the true factual situation. The majority opinion states: ‘Moreover, when Mrs. Monast demanded the return of the rings and commenced suit against him, he attempted to justify his actions by having the bail bond broker change his books to show a charge of $500 for the bail bonds of Irene Davidson and Catherine Wall instead of $200, which was the premium fixed for them when they were issued.’ And again the majority opinion states: ‘He admitted before the board of governors that he asked Glasser to change his records as the basis of an offset to Mrs. Monast's claim against him and Glasser corroborated his testimony in this regard.’ The record does not show that petitioner asked the bonding company to change its books or records or that any such change was made at his request or otherwise. The witness Glasser testified before the local administrative committee as follows:

‘Q. Well, then, what was your understanding at the time this premium in each case was raised from $100.00 to $250.00 with reference to Mr. Davis's liability on that; was his actual liability increased so far as you were concerned, or was that fictitious?

‘A. Your question, the way I want to answer it, is rather compound to me. The original premium on the bail was fixed at $100.00. That was done without my knowledge or consent. I knew nothing of the transaction whatsoever. Months subsequent to that, Mr. Davis came in of his own volition and stated that he would pay $250.00 for each bond. I so told Mr. Cantillon and the bookkeeper so entered it.

‘Mr. Prichard: Q. Was there a correction on your books changing it from $100.00 to $250.00, or at the time of that conversation had there been no entry up to that moment, so that there was made an entry original in character of $250.00? A. I believe the entry was original in character of $250.00, but no entry was ever made and Mr. Willard saw the books and he can either verify it or make the corrections. corrections.

‘Q. But your recollection now is that the entry was the original entry charge of $250.00? A. Yes sir.’

This witness further testified:

‘Mr. Prichard: May I ask just one question?

‘Q. At the time you had this conversation with Mr. Davis about the entry on the books of $250.00 against each bond, was there anything said in that conversation to the effect that the entry on the books had to be an original entry instead of an alteration from $100.00 to $250.00 in order to keep him from being pushed around? A. In the first place, you are making a misstatement, Mr. Prichard. There never was to my knowledge an alteration. I believe when you examine the sheets it will show there was only one entry of $250.00 now, on each date. There never was an alteration.

‘Q. You don't understand me. I am simply asking you whether there was any conversation at that time that any entry made would have to be an original entry? A. No sir. Mr. Davis said that he wanted the books to show that he owed $250.00 on each bond.’ (Emphasis added.)

The witness Glasser did not testify before the board of governors, as one might be led to believe from the above quoted statement from the majority opinion, and the only testimony given at the hearing of this matter before the board of governors relative to the premium on said bonds was given by petitioner. His testimony is as follows:

‘Q. Now the premium on those two bonds for the women were $100.00 each, weren't they? A. I don't know what they were; I never found out what they were. So far as that is concerned, it was derived from the testimony of Mr. Glasser and Mr. Groves.

‘Q. Mr. Glasser and Mr. Groves testified that you asked them to have their books changed to read $250.00 each instead of $100.00? A. I am sorry, I don't think you read the record right. What I asked them, to show it on the books.

‘Q. As $250.00 each? A. I am sorry, I can't recall.

‘Q. They testified to $250.00 each, I believe. A. Whatever they testified is correct.

‘Q. Did you ask them to have the books show $250.00 each? A. I asked them what the books showed. I asked them in the presence of Mr. Parsons.’

It will be observed that there is nothing in the foregoing testimony justifying the above quoted statement from the majority opinion, and said statement finds no support in the record in this case.

The majority opinion also states: ‘The petitioner's own testimony as to the other charges against him shows clearly that he committed perjury in his deposition given in connection with Mrs. Monast's suit to replevin the rings. He testified that the rings had been delivered to the bail bond company as security for premiums due on bonds. But the petitioner testified before the local administrative committee that he pledged the rings with the Provident Loan Association. Moreover, Glasser, the bail bond broker, who was the petitioner's witness, not only testified that these premiums were never charged against Davis, but that he purchased the rings in a personal transaction.’

The foregoing statement contains many inaccuracies. First, Glasser was not petitioner's witness, as the record discloses that he was called on behalf of the State Bar. Second, I do not believe the testimony given by petitioner relative to his disposition of the rings is susceptible of the interpretation placed on it in the majority opinion. In this regard petitioner testified before the local administrative committee as follows:

‘Mr. Burgess: Q. Do you recall having testified in a deposition on Friday, the 29th of April, 1938, in a case in which Marie Monast appeared as plaintiff and you and others appeared as defendants in the case, beginning at page 7, line 3, the question was asked you, ‘Where was the jewelry?’ You replied, ‘It was in the possession of Irving Glasser, the bail bondsman.’ The question was, ‘Who gave the jewelry to Mr. Glasser?’ Answer, ‘I did.’ ‘Q. And do you recall the circumstances surrounding the delivery of this jewelry to Mr. Glasser by you? A. No, not particularly, no.’ The next question was, ‘You just gave him the jewelry? A. No, it was on account of the fact that they owed the fee—they owed the bonding company for two cases which is part of the same transaction, that is, Mrs. Monast and one Irene Davidson and Catherine Wall.’ You recall testifying to that, do you? A. Yes.

‘Q. And next on page 10 at line 1, ‘Q. Well, lawyer to lawyer, what was the result of these conversations in so far as your right to retain this jewelry? A. So far as her case was concerned, the agreement was that she was to pay a $2,000.00 fee, and that she was remaining out on bail, and the bondsmen were allowing her to remain out on bail without any security on the understanding that I kept possession of this jewelry.’ You didn't finally sell this pawn ticket until the 20th of September, did you? A. No.

‘Q. And at that time she had not only been released from custody and from bail, but had been out of jail and gone to Honolulu a period of two months and twenty days, hadn't she? A. Yes, but in the meantime, another case intervened.

‘Q. Now then, again in the same deposition on page 24, line 26, beginning there, you were asked, ‘Do you know whether or not Irene Davidson and Catherine Wall paid off the bonding company for their bond? A. The last information I had they did not; that was the reason that it was turned over to Mr. Glasser. Q. So this jewelry was turned over by you to Mr. Glasser to insure him or the company he appears for for any charges he or they may have for furnishing the bond to secure their release? A. That is correct.’ That was your understanding, was it? That is your statement, is it?

‘A. It may have been my statement, but it isn't a complete answer for it.’

To my mind the foregoing testimony affords a very tenuous ground to support a charge of perjury. This is particularly true when we take into consideration that the local administrative committee found that any discrepancy in petitioner's testimony on this subject was due to inadvertence, and that he did not wilfully and deliberately give false testimony on this or any other subject in this proceeding.

The majority opinion contains the following statement which is somewhat misleading: ‘In reaching its decision, the board of governors considered not only the record of the proceeding before the local administrative committee, but also the testimony of the petitioner given when this record was under review.’ If the majority opinion purports to infer from this statement that the board of governors had before it testimony given by petitioner at the hearing before the board on which it was justified in predicating the findings of fact adopted by it, such statement is clearly in error, as petitioner was asked only a few questions at the hearing before the board of governors, and the total space in the the transcript of the proceedings before the board covered by the questions propounded to petitioner and his answers thereto is not to exceed six pages, and there is nothing in any of his testimony before the board of governors which in any way tends to support the findings and recommendation approved and adopted by the board.

Supplementing its findings of fact, the local administrative committee prepared and filed an opinion consisting of twelve typewritten pages in which it reviewed and analyzed the evidence in considerable detail, making reference to pages of the transcript where the testimony could be found supporting the facts contained in its opinion. I have read the transcript in this case and find that the opinion of the local administrative committee is fully supported by the evidence.

After making a somewhat minute analysis of the evidence contained in the transcript, the opinion of the local administrative committee contains the following statement:

‘Weighing the evidence before us and having due regard to the fact that there is no presumption against the accused respondent, but rather that, as stated in Bar Association of San Francisco v. Sullivan, 185 Cal. 621, 198 P. 7, we must be clearly satisfied of respondent's guilt and that this means something more than a mere preponderance of the truth, we accept as true respondent's testimony in these particulars as against the contrary story of Marie Monast. Respondent appeared before us personally and while his testimony was not as precise as some others might give it, it is obvious, both from his testimony before us, and on depositions, that often his statements were conclusions which as an attorney he reached and stated as facts rather than the facts themselves. We did not have the benefit of the personal appearance of Marie Monast and her deposition was far from satisfactory. Under these circumstances we have resolved the conflict in favor of respondent. We conclude that respondent was authorized to hold the rings as security for the Marie Monast bond and for the bond and fee of the Wall and Davidson women.

‘Respondent as pledgee of these rings for his fee had the right to pledge the same to the extent of his lien. Civ.Code, § 2990. However, in addition to this right, respondent testified that Marie Monast told him to use the rings as he saw fit to take care of the bond and fee. Also respondent testified that he told Mr. Monast, the husband, that he had sold the rings. This was after the matter was under discussion between respondent and Monast, after Marie Monast had gone to Honolulu. This was at the time Mr. Monast and respondent went out to the gambling boat to discuss the circumstances with Evans.

‘From the entire evidence we accept respondent's statement on these matters. As previously stated, his story is corroborated in several particulars and Marie Monast's story as told in her deposition is impeached in several instances by other witnesses. It is well to add in passing that Marie Monast knew respondent had these rings and her husband knew respondent claimed a right to them, yet no suit was brought by Marie Monast until a number of months after she left California. Accepting respondent's story, as we do under all the circumstances here, he proceeded within his rights.

‘After a civil suit was brought against respondent, respondent obtained the rings from Irving Glasser, to whom he sold the pawn ticket, and delivered them to the attorney bringing the action for Marie Monast. We have studied that situation carefully and do not believe that the circumstances of the return prove a guilty taking.

‘With respect to the cross-complaint respondent explained that this was in error as he told the facts to an office associate and signed a verification in blank. The practice of attorneys having clients sign verifications in blank is all too common, and, as stated by the Supreme Court in Glenn v. State Bar of California, 14 Cal.2d 318, 94 P.2d 43 [45], such practice is highly reprehensible, and, in our opinion, should be most severely condemned’. However, carelessness and improperly signing a blank verification do not, in our opinion, establish perjury. On this phase of the case we state in the aforesaid language of the Supreme Court that respondent's conduct was highly reprehensible and is severely condemned. Such conduct, in our opinion, warrants a private reprimand and we so state in our findings and conclusions.

‘The charges of false swearing on the giving of several depositions in the main are based on the assumption that the story told by Marie Monast is true and that of respondent false. We have found it the other way, and accepting respondent's story, as we do, for the reasons hereinbefore set forth, such charges of false swearing fall. Respondent was not as precise and accurate in his testimony on the depositions as many witnesses might have been expected to be, but judging by his testimony before us it is evident that the respondent is slow in thinking and does not have a ready command of language to meet and describe situations which occurred in the past. His testimony as given in such depositions, when they are considered together, was substantially as given before the Committee. In those depositions, as before us, he claimed he was ‘within his rights' in turning the jewelry to Irving Glasser.

‘The record was that respondent testified in one of those depositions that while representing Marie Monast he had told Judge Fricke, before whom her case was pending, that she had no previous criminal record. He stated he found this was not the case and in accordance with his deposition he states he had her change her plea from guilty to not guilty and stand trial before the court and put her on the stand to be asked questions on the subject.

‘We do not understand that the Notice to Show Cause charges respondent with unethical conduct in not correcting any misstatement he may have made to the court based upon misinformation from his client. The duty of an attorney to a court and his client in a situation where he may impart information received from his client or believe with respect to his client and thereafter finds the information incorrect is one as to which there might be quite a difference of opinion, assuming the latter knowledge was a confidential communication to the attorney from the client. However, in the present situation we do not see anything for which respondent could be condemned. His determination to put his client before the court for examination of the facts so that all matters pertaining to her or her probation would be available was apparently a fair solution. There is nothing before us to show other than that the court was informed as to the facts pertaining to Marie Monast and her past record, if any, either by examination or through the probation officer's report.

‘The fact that in one of his depositions respondent testified that he had Marie Monast change her plea from guilty to not guilty and waive a jury trial, so as to be tried before the court, whereas the record shows she pleaded not guilty and waived a trial by jury and submitted to a trial by the court, we do not deem is proof of perjury. The important item obviously was that respondent had caused the client to waive a jury trial and have a trial by the court and submit to examination by the trial judge. An honest misrecollection as to whether the plea had been changed as part of that procedure is not startling nor unusual. Obviously to say respondent intentionally swore falsely on this subject of whether the plea was changed is to hold an attorney to an absolute recollection of the steps and conduct of the various cases he may handle beyond the power of the average human mind to fulfill. Court records are kept of such matters and testimony given without the presence of those records based on recollection is bound to be faulty with the average person, be he layman or attorney.’

The local administrative committee in this case consisted of three of the ablest and most outstanding members of the Los Angeles bar. That they gave more careful and thorough consideration to this case than is given to the ordinary disciplinary proceeding is manifest from an examination of the record in this case and the carefully prepared findings and opinion in which the members of said committee unanimously concurred. In my opinion, it is impossible for any fair-minded individual to review the proceedings in this case and not entertain a reasonable doubt as to the guilt of the petitioner of any of the charges contained in the Notice to Show Cause, which is the basis of this proceeding.

A review of the proceedings in this case before the board of governors discloses that petitioner was asked a few questions by some of the members of the board. The transcript of his testimony at the hearing before the board of governors consists of only six pages and no fact was developed by such examination to justify a different conclusion than that reached by the local administrative committee. In fact, petitioner's testimony before the board of governors was substantially the same as that which he gave before the local administrative committee. However, the board of governors made findings directly contrary to those made by the local administrative committee and found against petitioner in almost every instance where his testimony was contrary to that of Mrs. Monast.

At the conclusion of the hearing before the board of governors, twelve members of said board voted in favor of disbarring petitioner, one voted against disbarment and one declined to vote.

I think I am justified in assuming that the record of the proceedings in this case before the local administrative committee was not read by all of the members of the board of governors, and I think it is obvious that even if the record had been read by each member of the board, he would still not be in as favorable a position to pass upon the credibility of the witnesses as the members of the local administrative committee who heard these witnesses testify. See Werner v. State Bar, 13 Cal.2d 666, 91 P.2d 881.

From the foregoing, I am forced to conclude that to sustain the findings and recommendation of the board of governors in this case is not only denying to petitioner any intendments which may arise in his favor from the record in this case, but is resolving all of such intendments against him which is contrary to the settled rule of this court in cases of this character.

I am firmly of the opinion that a grievous miscarriage of justice will result from the majority opinion in this case and that the proceeding against the petitioner should be dismissed.

PER CURIAM.