COVIELLO v. THE STATE BAR OF CALIFORNIA (1954)

This is a proceeding to review a recommendation of the Board of Governors of the State Bar that petitioner, August Paul Coviello, be suspended from the practice of law in this state for a period of six months. The local committee had recommended a three months' suspension. In making its recommendation the Board took into consideration a prior suspension of thirty days ordered by this court. Coviello v. State Bar, 1953, 41 Cal.2d 273, 259 P.2d 7.

Petitioner was originally charged (Dec. 9, 1952) with violations of his oath and duties an attorney and the commission of acts involving moral turpitude, Bus. & Prof.Code ss 6067, 6068, 6106, in that he entered into a contingent fee agreement to represent Florence V. Anderson in a domestic relations matter. During the second day of the hearing, on January 22, 1953, a second count was added charging that ‘between the 10th day of July, 1952, and the 21st day of August, 1952 (he) filled in, or caused to be filled in, the name of a grantee in two certain deeds dated July 30, 1951, theretofore signed and acknowledged by Clyde Norbert Anderson, Jr. and Florence Anna Anderson without proper authority or any authority, and did thereafter exhibit or cause said deeds to be exhibited to opposing counsel for the purpose of obtaining an advantage for (his) client and for (himself) in the settlement of matters then pending.’ Petitioner was given 5 days in which to file his return, but none was filed. Hearings were resumed until March 4, 1952. Five hearings were held after the addition of Count Two. The local committee made findings of fact in accordance with charges contained in the Notice to Show Cause except that in the finding on Count Two it added the words ‘from Clyde N. Anderson, Jr.’ after the words ‘without proper or any authority.’ A suspension of three months was recommended. No mention was made in the recommendation of the disciplinary proceedings then before this court on review. Coviello v. State Bar, supra, 41 Cal.2d 273, 259 P.2d 7.

On hearing before the Board of Governors, which included an appearance and oral argument by petitioner and his counsel and a motion by petitioner for a trial de novo or to reopen the case for further testimony, the Board dismissed the first count; denied his motion, and made findings upon Count II, in lieu of those of the trial committee. The portion of the findings of which petitioner seeks review are as follows:

'II

‘On or about July 10, 1952, respondent was engaged by Florence V. Anderson to represent her in a domestic relations matter with Clyde N. Naderson, Sr.

'III

‘Respondent on said date received possession of two deeds dated July 30, 1951, in each of which no grantee was named. While said deeds were in his possession the name of Florence V. Anderson was inserted as grantee in each deed. Respondent knew of such insertions at the time they were made or shortly thereafter. Thereafter respondent exhibited said deeds to Harold M. Davidson, counsel for Clyde N. Anderson, Sr., for the purpose of obtaining an advantage for respondent's client and himself in the settlement of matters then pending. Respondent did not disclose to Harold M. Davidson the facts regarding the invalidity of the deeds.’

Petitioner contends that the ‘findings, conclusions and recommendations of the local committee, as approved by the Board of Governors, are not supported by the evidence’, and asks that he be exonerated of the charges of unprofessional conduct.

The record supports the findings. The petitioner was employed by Florence V. Anderson on July 10, 1952. A written agreement of that date stated that she desired to have her marital status clarified and that she would pay petitioner one-half of any money or property obtained by her from Clyde N. Anderson, Sr., over and above $4,693. This latter sum represented moneys claimed by her as advances made to Clyde from her personal funds. The ‘marriage’ of Florence and Clyde was bigamous but the designation in Finding II that petitioner's employment was ‘in a domestic relations matter with Clyde N. Anderson, Sr.’ is substantially correct and is not prejudicial to petitioner.

The Board dismissed Count I and the finding of the trial committee thereon, obviously on the ground that the agreement in question was not, under the circumstances, promotive of divorce and therefore not within the type of contingent fee agreement prohibited by public policy and decisional law of this state. See Krieger v. Bulpitt, 40 Cal.2d 97, 251 P.2d 673.

The record also shows that on the date the above mentioned agreement was signed, petitioner gave Florence a receipt for two deeds dated July 30, 1951, in which no grantee was named. They were signed by C. N. Anderson, Jr. and Florence Anna Anderson. Subsequently petitioner's wife, as his secretary and in his absence, typed in the words ‘Florence Vivian Anderson as her separate property.’ She testified that she did so at the request of Florence, copying from a paper given her by Florence, and typing on a machine brought to the office for that purpose by Florence. The typewriter was among the personal possessions of Clyde N. Anderson, Sr. which Florence had removed from their apartment while he was hospitalized.

The evidence is conflicting as to the circumstances under which these deeds were exhibited to Harold M. Davidson, attorney for Clyde N. Anderson, Sr.

Prior to petitioner's employment by Florence, he had represented Ruth W. Anderson (now Ruth Cain) in a divorce suit and a quiet title action, consolidated for trial, against Clyde N. Anderson, Sr. In those actions he had sought to recover a community interest for Ruth in certain real and personal property which he claimed had been accumulated by those parties during their marriage. Title to this property stood in the names of C. N. Anderson, Jr. and his wife, and a Mr. Warner S. Stokes, and they were joined as defendants in those actions. All of the defendants denied that Clyde N. Anderson, Sr. owned any interest in the property. After a motion for new trial was granted, Harold M. Davidson became counsel for Clyde Sr. Meanwhile Clyde Sr. went to Mexico with Florence V. Day (now Florence V. Anderson) and they secured a license to marry. Upon their return to Los Angeles they lived together as man and wife for about a year. In June, 1952 Clyde Sr. became seriously ill and was, and apparently continued to be throughout the events herein related, hospitalized. Shortly thereafter he and Florence agreed to ‘separate.’ She then consulted Davidson with regard to the $4,693 cash which she claimed Clyde Sr. owed her. Negotiations for settlement of this claim fell through and Davidson advised her to consult an attorney. With the consent of Davidson and of Ruth Anderson Cain, she then employed petitioner to represent her. No question of dual representation is here involved, nor of breach of the attorneyclient privilege.

When Ruth employed peititioner she turned over to him various documents which tended to confirm his belief that Clyde Sr. actually owned the properties he had denied owning in the actions brought against him by her. There is no evidence that petitioner used this information for the purposes of extortion in pressing Ruth's demands for settlement. There is evidence that he knew that the deeds delivered to him in blank indicated Florence's name as grantee at the time he exhibited them to Davidson, the attorney for Clyde, Sr., with whom he was negotiating for a settlement of Florence's claims; that Davidson commented on the fact that all the typing appeared to have been done on the same typewriter at the same time and that ‘It's funny Clyde denies to me that he ever gave Florence any deed’; and that petitioner did not disclose to him the circumstances under which her name had been inserted as grantee.

Petitioner testified at the hearing before the committee that Florence told him that Clyde Sr. (the real owner of the property described) had authorized her to insert her name as grantee in these deeds and he thought she had such right. He contends in his petition for review that blank deeds not naming a grantee are not necessarily invalid but may be declared to be invalid if the rights of innocent parties are not involved. It is settled law in this state that a deed which contains no name of the grantee, and no sufficient identification of the party to whom the property is to be conveyed, is a nullity and void. Trout v. Taylor, 220 Cal. 652, 32 P.2d 968; Bryce v. O'Brien, 5 Cal.2d 615, 55 P.2d 488. Authority to fill in blanks must be in writing under the Statute of Frauds. A client's statement as to her authority to fill in her own name is not sufficient.

Petitioner argues that ignorance of the law in conducting the affairs of one's client in good faith is not a cause for discipline, citing Friday v. State Bar, 23 Cal.2d 501, 144 P.2d 564; and that moral turpitude will not be predicated upon errors of judgment as to the law, or action taken in good faith by an attorney, openly and with notice to the adverse party, where there is no deception practiced or unfair advantage sought. In re Kling, 44 Cal.App. 267, 186 P. 152. However the question is not whether he was mistaken in his view of the applicable law, or whether he was misled by the statements of his client, whose veracity appears to be somewhat doubtful. The question is whether his duty as an attorney at law required him to disclose to Davidson the fact that these deeds had been received by him with no grantee's name thereon and the circumstances under which the insertions had been made. The probably untrue statements of Clyde Sr. would not justify petitioner's attempt to mislead the latter's counsel in negotiating a settlement involving Clyde Sr.

Nor is it necessary that the action result in harm to merit disciplinary action where actual deception is intended. Lady v. State Bar, 28 Cal.2d 497, 504, 170 P.2d 460; Pickering v. State Bar, 24 Cal.2d 141, 144, 148 P.2d 1. Discipline has been imposed upon attorneys in misleading opposing counsel as to signatures on documents. Hallinan v. State Bar, 33 Cal.2d 246, 200 P.2d 787; Allen v. State Bar, 36 Cal.2d 683, 226 P.2d 569; Shaeffer v. State Bar, 220 Cal. 681, 685, 32 P.2d 140. In the Hallinan case the attorney disciplined had a power of attorney to sign his client's name; here no authority of any kind from the actual owners or purported grantors named in the deeds was shown. It is the intentional deceiving of opposing counsel that is the gravamen of the offense.

It is clearly supported by evidence that petitioner exhibited these deeds to Davidson for the purpose of obtaining an advantage for his client and himself in the settlement of matters then pending. The Agreement of August 8th as originally prepared was much more favorable to petitioner's client than the amendment of August 21st, prepared after the circumstances of the completion of these deeds was made known to opposing counsel. Petitioner's interest in one-half the property obtained by his client, over and above her original money claim, indicates the advantage to himself in not making the disclosure.

Petitioner has not sustained the burden of proving that the findings of the Board are erroneous or unlawful as required by Section 6083 of the Business and Professions Code. The evidence shows that he dealt unfairly with opposing parties and counsel in such a way as to involve moral turpitude. Moral turpitude is sometimes used synonymously with ‘dishonesty’ or an attitude ‘manifestly not in accordance with good morals or honest dealings.’ Lantz v. State Bar, 212 Cal. 213, 298 P. 497, 500. There is no have and fast rule for determining what constitutes moral turpitude. It must be determined from the circumstances attendant upon the commission of the offense. In re Hatch, 10 Cal.2d 147, 73 P.2d 885.

We conclude that the findings, conclusions and the recommendation of the Board of Governors are sufficiently supported by the evidence. Accordingly the petitioner is suspended from the practice of law in this state for a period of six months commencing 30 days after the filing of this opinion.

PER CURIAM.