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, G. Bentley Ryan, 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 Ryan as counsel. Shortly after their arrest, Davis filed a petition for a 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 in consequence they were remanded to the county jail, where they remained until sentenced. At the preliminary hearing, Ryan appeared for them on behalf of Davis and himself, but neither had any further connection with the case.

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 anywise 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 Davidson and Irene Wall. * * * 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 privated reprimand. When the matter came before the board of governors, it held a hearing in which Davis was sworn and testified, adopted findings of fact contrary to those of the committee and recommended the disbarment of the petitioner.

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 fale 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. But as presented to this court, the case is one in which the board of governors, upon substantially the same evidence as that before the local committee, concluded that the petitioner had violated his oath as an attorney at law although the committee absolved him.

To state with certainty the agreement which was made between two persons in a series of conversations many months before is a difficult task under any circumstances. In an opinion filed by the local administrative committee in connection with its findings and recommendation, it recognized this difficulty and stated the problem before it as follows: ‘The determination of most of the issues in this proceeding depends upon whether respondent or Marie Monast is to be believed with respect to these matters. We state frankly that the evidence was far from satisfactory. However, considering the proof made available several items of testimony corroborate respondent's story rather than that 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.’

The State Bar recognizes the rule that in a disbarment proceeding the intendment should be in favor of the accused attorney. But it insists that in this case there is only one reasonable inference which can be drawn from the facts in evidence. This reasonable inference, says The State Bar, points to the petitioner's guilt because if ‘appears unlikely’ that a woman who had insisted upon receiving the receipt signed by him ‘would have been satisfied to permit rings of value in excess of $2,000 to be retained for a fee of $500, with no more explicit instructions than that if she was not able to pay the money he could use the rings as he saw fit’. ‘Such conduct’, it continues, ‘would not be reasonable in the light of all the circumstances.’

However, the local administrative committee weighed the same evidence considered by the board of governors and decided that Mrs. Monast delivered the rings to him as security for the payment of a balance of the fee and also as security for the bond pursuant to which she was released from custody. It also found that at the time Davis pawned the rings, he had been authorized by her to dispose of them ‘to take care of other obligations which she had incurred’ to him in connection with the cases of Catherine Wall and Irene Davidson. Undoubtedly the evidence supports these findings as well as those of the board of governors, and the contrary conclusion drawn from it results from two different opinions concerning the credibility of the witnesses.

The rule which will be followed by this court under such circumstances has been stated in a number of cases. In re Werner, 13 Cal.2d 666, 91 P.2d 881; Egan v. State Bar, 10 Cal.2d 458, 75 P.2d 67; Mauer v. State Bar, 219 Cal. 271, 26 P.2d 14. The local administrative committee which had an opportunity to hear the witnesses is in a much better position to determine the truth concerning disputed facts than a reviewing board or an appellate court, and, ordinarily, its findings will be followed. That rule is applicable to the present case.

But the committee found that the act of petitioner in signing a verification in blank which was thereafter used in connection with a pleading ‘was reprehensible conduct which should severely be condemned’. When this finding is considered in connection with the fact that the verification was used with a cross-complaint in the action brought by Mrs. Monast to recover her jewelry, and that this cross-complaint alleged that Mrs. Monast was indebted to the petitioner for professional services, it would seem that the discipline to be administered should be greater than a private reprimand. Accordingly, it is ordered that the petitioner be and he is hereby suspended from the practice of law for a period of three months from and after the date this decision becomes final.

I find myself unable to agree with the conclusion reached by the majority of the court that petitioner should be suspended from the practice of the law for a period of three months. The majority opinion purports to accept the determination of the local administrative committee that the only conduct for which petitioner could be disciplined was the signing of a verification in blank which was thereafter used in connection with a pleading filed on behalf of petitioner in an action brought against him by the complaining witness. While in my opinion, the signing of such verification did not constitute unprofessional conduct, if it could possibly be held that it did, certainly the discipline of a public reprimand recommended by the local administrative committee is of sufficient severity to satisfy even those who may be classified as ‘strict disciplinarians'.

While it is true that the signing of a verification in blank for use in connection with a pleading to be subsequently prepared, is a dangerous practice, and is very apt to involve the signer thereof in difficulty, it is impossible for me to understand how this act alone can be held to constitute moral turpitude, dishonesty or corruption, or a violation of any of the rules of professional conduct promulgated by The State Bar of California. However, if the purpose of the signing of such a verification was to permit either the signer thereof or someone else to accomplish some fraudulent purpose or design, then, of course, such act would constitute unprofessional conduct and would subject the signer thereof to discipline if he were a member of the bar.

On the other hand, if there was no thought or intention on the part of the person signing the verification to have the same made use of to accomplish some fraudulent purpose or design, but the verification was thereafter used for this purpose without his knowledge or consent, even though the signer of such verification might be subjected to civil liability for his negligence, his act should not subject him to a disciplinary proceeding by The State Bar of California.

In my opinion a public reprimand is ample discipline to be administered for the alleged misconduct committed by petitioner in this case.

PER CURIAM.