VAUGHN v. STATE BAR OF CALIFORNIA (1960)

This is a proceeding to review the recommendation of the Board's of Governors of The State Bar that petitioner George L. Vaughn, Jr., be suspended from the practice of law for a period of six months.

Petitioner was charged with the violation of his oath and duties as an attorney (Bus. & Prof.Code, ss 6067, 6068, 6103) and with the commission of acts involving moral turpitude and dishonesty. Bus. & Prof.Code, s 6106. After two hearings, the local administrative committee made findings against petitioner and recommended his suspension from practice for two years. Thereafter, upon petitioner's motion to reopen the disciplinary proceedings, the matter was re-referred to the local committee for the taking of additional evidence. At the further hearing, petitioner testified extensively to matters of which he said that he had ‘no independent recollection’ at the first hearings. The local committee made new findings, differing in certain detail from its earlier findings, but again, without dissent, recommended the same two years' suspension. The board thereafter held a hearing at which petitioner appeared with his counsel, and answered certain questions. The board then approved and adopted, with slight modification, the findings of the local committee made upon the re-referral, and recommended, by a vote of eight to six, that petitioner be suspended from practice for six months. Of the dissenting members, one expressed his view that the recommended discipline was ‘too severe’ and another stated that in his view, it was ‘insufficient.’

Petitioner, who is 31 years of age, was admitted to practice in Missouri in 1952 and in this state in 1955. Apparently he practiced law in Missouri only a few months and did not engage in any other practice until his admission in this state. The gravamen of the present charge is petitioner's alleged misconduct in connection with the handling of a personal injury claim arising out of an accident in July 1956. Petitioner contends that there was no substantial evidence to support the findings of culpability, and that the findings are inconsistent and contradictory. Our review of the record compels the conclusion that petitioner's position is not well taken, and that the board's disciplinary recommendation should be followed.

On July 24, 1956, Mrs. Mary Sue Hall consulted petitioner regarding injuries she sustained as the result of a fall in a liquor store. She stated that fall occurred on July 3, 1956. Petitioner entered this date on his interview sheet along with other notes describing the circumstances of the accident. Mrs. Hall signed a contingent fee contract of employment of petitioner, and agree to advance court costs in the event of filing suit. On August 23, petitioner wrote to the proprietor of the liquor store, stating that Mrs. Hall had been injured in a fall in the store on July 3, 1956, and that he was handling her personal injury claim. On September 27, 1956, petitioner requested from Mrs. Hall's doctor a medical report of the accident; and a few days thereafter the doctor sent such report to petitioner, referring to the date of the accident as July 3, 1956, and the date of his first treatment of Mrs. Hall as July 5, 1956.

Meanwhile, petitioner entered into settlement negotiations with an insurance adjuster, and a tentative settlement figure was reached in December 1956. Petitioner was unable to locate Mrs. Hall to discuss the matter, and the settlement was never consummated. A few weeks thereafter petitioner did contact Mrs. Hall, advised her that a settlement was no longer possible, and requested that she advance court costs, which she promised to do.

On July 11, 1957, and though Mrs. Hall had not advanced the court costs, the complaint was filed. It alleged the date of the accident as July 13, 1956. On August 2, 1957, the defendant filed his answer, wherein he alleged that the accident occurred on July 3, 1956, and pleaded the statute of limitations as an affirmative defense. Mrs. Hall's deposition was taken in December 1957, and she then testified, in petitioner's presence, that the accident occurred on July 13, 1956. The case was set for trial in March 1958, but subsequently went off calendar and was dismissed in July 1958.

There is little dispute concerning the facts above recited, but there is a decided conflict between the parties' versions as to the circumstances surrounding the filing of the complaint. According to Mrs. Hall, she called at petitioner's office a few days after July 3, 1957, to learn how her case was progressing; petitioner expressed concern when she made passing reference to the happening of the accident on July 3, 1956, and stated that if that was the date, the statute of limitations would already have run on the action; and petitioner finally said that we shall ‘say that the accident occurred on July 13, 1956, and * * * try to bluff them into a quick settlement.’ Mrs. Hall stated that sometime previously she had signed a blank verification form, and that she left to petitioner the matter of getting the action filed. As heretofore mentioned, the complaint was filed on July 11, 1957, reciting the date of the accident as July 13, 1956; the verification form was completed as of July 10, 1957, and petitioner's notarial jurat was affixed as of that date. Mrs. Hall further stated that later, in response to petitioner's request, she went to his office to prepare for the taking of her deposition, and that he then warned her that she must ‘remember to say that the accident happened July 13, 1956’; that she testified to that date in her deposition taken in December 1957 when petitioner was with her; that petitioner thereafter commended her on her testimony and told her that he did not think the case would go to court but that they probably would get a settlement.

Petitioner denies that he advised the change of date of the accident so as to meet the filing time limit, and denies that he advised Mrs. Hall to give false testimony on her deposition regarding such date. Petitioner claims that he made no independent investigation of the facts of the accident, that he received no medical or x-ray reports, or witness statements concerning it, but that he relied solely on Mrs. Hall's account as to its happening. However, it appears from the testimony of Mrs. Hall's doctor, that the doctor's secretary mailed to petitioner a few days after petitioner's request on September 27, 1956, the doctor's reciting the date of the accident as July 3, 1956, and the date of his first treatment as July 5, 1956. Petitioner claims that about the middle of June 1957 Mrs. Hall told him in his office that his original understanding of July 3, 1956, as the date of the accident was in error; that rather it was July 13, 1956, and that at her request, the date was changed on the complaint and she then signed it. The date on the original interview sheet was likewise changed to July 13, 1956. Petitioner further claims that he neither signed the complaint nor the verification as notary public; and he was not in his office during the week of July 7 to July 12, 1957. Petitioner maintains that he had no knowledge that the July 13, 1956, date was false at the time Mrs. Hall gave her deposition, and that when he learned the true circumstances of the accident in conversation with defendant's counsel on the trial date in March 1958, he agreed that the case go ‘off calendar’ and ultimately filed a dismissal in July 1958.

However, the record discloses many significant discrepancies and material variations between the first hearings and the hearings after re-referral, as petitioner gave successive versions of his dealings with Mrs. Hall. The documentary evidence and circumstances strongly support Mrs. Hall's account of the important time sequence and of petitioner's conduct in the matter. While petitioner ones certain discrepancies in her recital, these appear to be no more than normal discrepancies in recalling the detail of events which happened long before the time of the hearings. The essential points of Mrs. Hall's recital, as believed by the local committee and the board, amply sustain the findings of culpable conduct on the part of petitioner; and our review of the record leads to the conclusion that such findings should be accepted by this court.

Contrary to petitioner's claim, there appear to be no substantial variances or inconsistencies in the findings; and whether or not the precise wording satisfies petitioner (cf. Arden v. State Bar, 52 Cal.2d 310, 341 P.2d 6), we have concluded from our review of the whole record that the petitioner has failed in his burden to show wherein the decision of the board is erroneous. Honoroff v. State Bar, 50 Cal.2d 202, 204, 323 P.2d 1003. True, Mrs. Hall's participation in the fraud cannot be overlooked, but that fact does not excuse petitioner. ‘Above all other professions, members of the Bar should be most scrupulous in their honesty; scrupulous in their own conduct and in that which they should not only advise, but exact, of their employees, their clients and the witnesses they present * * *.’ In re Allen, 52 Cal.2d 762, 344 P.2d 609, 612.

Petitioner's conduct undoubtedly involved moral turpitude. He has presented no argument as to mitigating circumstances but has simply made a categorical denial of culpability. He further maintains that in any event this was only a ‘piddling’ case, with Mrs. Hall ‘pressing a questionable claim at best.’ However, in reviewing the entire situation, consideration may be properly given to the fact that petitioner was an individual practitioner with limited professional experience, as well as to the fact that he had never previously been the subject of any disciplinary proceeding. In these circumstances, the recommendation of suspension from practice for a period of six months appears appropriate.

It is hereby ordered that George L. Vaughn, Jr., be suspended from the practice of law for a period of six months, commencing 30 days after the filing of this opinion.

PER CURIAM.