Alkow v. State Bar of Cal.

• Decision Date: 16 January 1952
• Citation: 38 Cal.2d 257,239 P.2d 871
• Parties: ALKOW v. STATE BAR OF CALIFORNIA. L. A. 22026.
• Court: California Supreme Court

Page 871

239 P.2d 871

38 Cal.2d 257

ALKOW v. STATE BAR OF CALIFORNIA.

L. A. 22026.

Supreme Court of California, in Bank.

Jan. 16, 1952.

Harry Alkow, in pro. per.

A. Ronald Button, Hollywood, Jerold E. Weil, San Francisco, for respondent.

PER CURIAM.

Petitioner was charged in twelve counts with the violation of his oath and duties as an attorney at law (Bus. & Prof.Code, ch. 4, art. 6, § 6103; art. 4, §§ 6067, 6068), the violation of Rules 2 and 9 of the Rules of Professional Conduct of The State Bar of California, soliciting employment by advertisement; commingling of funds, 33 Cal.2d 27, 30, and the commission of acts involving moral turpitude and dishonesty (Bus. & Prof.Code, ch. 4, art. 6, § 6106). After four hearings, the local administrative committee found petitioner guilty as charged and recommended to the Board of Governors that he be suspended from the practice of law for a period of three years. The Board, upon further hearing and review, dismissed three and sustained nine of the counts, made its own findings, and recommended three years' suspension.

Petitioner, who is forty-six years of age, was admitted to practice in 1927. He contends in this proceeding (1) that the evidence is insufficient to sustain the Board's findings and (2) that in any event, the discipline imposed is unduly severe. He cites the general rule that findings of fact made by a local administrative committee or the Board of Governors are not binding on this court, which will itself pass upon the sufficiency and weight of the evidence. Fall v. State Bar, 25 Cal.2d 149, 159, 153 P.2d 1. However, the burden is on petitioner to show wherein the decision of the Board is erroneous or unlawful. Aydelotte v. State Bar, 209 Cal. 737, 740, 290 P. 41; Ring v. State Bar, 218 Cal. 747, 751, 24 P.2d 821; Light v. State Bar, 14 Cal.2d 328, 336, 94 P.2d 35; Propp v. State Bar, 20 Cal.2d 387, 390, 125 P.2d 825; Gaffney v. State Bar, 20 Cal.2d 735, 740, 128 P.2d 516. Petitioner has not met that burden.

Four of the nine counts involve petitioner's acts in connection with the Nick Harris Finance Exchange, a California corporation doing business as a collection agency. The Board found that at all times here pertinent petitioner 'alone controlled and directed (its) business and affairs.' The Board made further findings with regard to these four counts, as follows:

Count two: In November, 1946, one Rothert employed the Exchange to collect a claim and paid $10 advance on court costs. Petitioner filed an action on the claim in April, 1947, but allowed a year to elapse before setting it for trial. In the following six months he had the action postponed several times until it finally went off calendar in August, 1948. Some two months later petitioner told Rothert, in response to his inquiry as to when the case would be tried, that it would be settled in about ten days. At the expiration of that time, Rothert was unable to contact petitioner and never has been able to do so either by letter or telephone; and petitioner made no effort to communicate with him.

Count three: In November, 1947, one Wynne consulted petitioner with the purpose of placing in the hands of the Exchange a $900 claim for collection. He asked petitioner to bring an action thereon and gave petitioner $30 on account of court costs. Petitioner agreed to bring the action but said that the trial would not take place for about a year. In the following months petitioner told Wynne on several occasions that an action had been filed, and that it would come up for trial in November, 1948. However, no action had been filed nor did petitioner use for court costs the $30 previously given to him for that purpose.

Count seven: Petitioner maintained a bank account designated 'Harry Alkow, Trustee,' wherein he kept his own funds and those of clients. In May, 1948, one Watry assigned and delivered to the Exchange for collection a promissory note for $2,026.22, at a fee of one-third of the recovery. In June, 1948, petitioner was paid $1,675 in full settlement of the note, but he did not report it to Watry until five months later. He then gave Watry as part payment a check for $400, which was returned to Watry marked 'insufficient funds.' A month later petitioner gave Watry in part payment a cashier's check for $350 and his own check for $116.66, which was post-dated and drawn on the 'Harry Alkow, Trustee' account. The latter check was also returned to Watry marked 'not sufficient funds.' It was found that petitioner from June, 1948, had commingled Watry's pro rata of the recovery, $1,116.66, with funds belonging to the Exchange, and that petitioner knew when he issued the checks for $400 and $116.66, that there were not sufficient funds in the bank accounts to cover them.

Count ten: On several occasions in July, 1948, an advertisment was carried in the Los Angeles Times reading:

'Anyone owe you money?

See Nick Harris Collect.

650 S. Grand. TR-37333.'

At said times petitioner maintained his office at 650 S. Grand Avenue, and his telephone number was the same as that appearing in the advertisement; he had no other office or telephone.

The remaining five counts concern petitioner's acts as a practicing attorney in an individual capacity dealing with his clients' affairs. The Board made findings with regard to these five counts as follows:

Count four: In September, 1948, petitioner issued his personal check in the sum of $31.75 to the order of the sheriff of Los Angeles County. At the time petitioner knew that he did not have sufficient funds in the bank for payment of the check. It has never been paid and petitioner is still obligated thereon.

Count five: In June, 1947, a Mrs. Welch employed petitioner to bring a divorce action against her husband. She paid him $115 as attorney fees and court costs. The action was tried in May, 1948, as a default case and Mrs. Welch was granted an interlocutory decree of divorce. However, petitioner failed to prepare such decree for the judge's signature, and none was ever entered. At the end of a year Mrs. Welch requested petitioner on several occasions to have the final decree entered; and on at least one occasion he told her that it had been entered, and that a copy was in the mail addressed to her. As above indicated, no interlocutory decree was ever entered and, of course, no final decree could have been entered.

Count six: In June, 1948, one Gleed employed petitioner to file a creditor's claim for $900 against a certain estate. Petitioner prepared the claim and Gleed verified it At the same time Gleed paid petitioner $75 for court costs and attorney fees in the event an action should be brought on the claim. Thereafter on several occasions petitioner told Gleed that the claim had been filed, and that he had talked to the executor concerning a settlement of the matter. However, no claim was ever filed and the six-month period within which it could have been filed was allowed to expire. The Board found that petitioner commingled the $75 with his own money and used it for his own purposes.

Count eight: In October, 1947, petitioner was retained by one Symansky to collect a $500 debt. Petitioner was paid $50 for court costs and was to receive forty per cent of the recovery as his fee. He filed an action and thereafter in September, 1948, he settled the case for $250, but he did not inform his client of that fact until four months later. Petitioner then paid Symansky $100, although the latter was entitled to receive $150. The Board found that petitioner converted the remainder of his client's pro rata, $50, to his own use.

Count nine: In August, 1948, certain clients of petitioner gave him a check for $747 to be paid to one Falk in adjustment of an alleged overcharge of rentals. A month later petitioner gave Falk his personal check in that amount, but it was dishonored for lack of funds in petitioner's bank account. Three months later petitioner gave Falk $572 in cash and a check for $175, which was drawn on an account that had been colsed. The Board found that upon receipt of the $747, petitioner commingled it with his own funds and converted the whole thereof to his own use; and that $175 of the amount is still retained by him.

Upon these findings covering petitioner's several acts of wrongdoing, the Board made its recommendation of three years' suspension. Petitioner claims that the charges were not established by 'convincing proof and to a reasonable certainty'. Hildebrand v. State Bar, 18 Cal.2d 816, 834, 117 P.2d 860, 869. But the record contains abundant credible evidence to sustain the findings on all chagres, and it appears that petitioner's suspension for a period of three years is appropriate in view of the gravity of his continued misconduct over an extended time.

Petitioner maintains that the alleged acts of misconduct in his connection with the Nick Harris Finance Exchange are not matters chargeable to him but relate to dealings of the collection agency as a licensed corporate entity. (Counts 2, 3, 7, and 10.) In...