Arden v. State Bar of Cal.

• Decision Date: 19 June 1959
• Citation: 52 Cal.2d 310,341 P.2d 6
• Court: California Supreme Court
• Parties: Lawrence John ARDEN, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent. L. A. 25269.

Page 6

341 P.2d 6

52 Cal.2d 310

Lawrence John ARDEN, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent.

L. A. 25269.

Supreme Court of California, In Bank.

June 19, 1959.

As Modified July 15, 1959.

Darling, Shattuck & Edmonds and Edward S. Shattuck, Los Angeles, for petitioner.

Charles F. Howard, Beverly Hills, and Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Petitioner seeks review of a recommendation of the Board of Governors of the State Bar that he be suspended from the practice of the law for thirty days. Five of the thirteen members of the Board of Governors participating in the proceedings voted against the recommendation, four on the expressed ground that the 'degree of discipline recommended is too severe'.

Petitioner was admitted to the practice of the law in 1951. At the time of the occurrences here involved he had been in practice for three years, and was 28 years of age. Prior to the filing of the original notice to show cause in this proceeding, no prior charge of misconduct had been filed against petitioner.

The notice to show cause was amended during the trial of these proceedings. As amended, it charged petitioner with (1) Violation of the confidence of a client in violation of section 6068, subd. (e) of the Business and Professions Code; (2) Failing to fairly and honestly represent a client in violation of sections 6067 and 6068 of the Business and Professions Code; (3) Commission of various acts involving moral turpitude; (4) Misleading a judge in violation of section 6068, subd. (d) of the Business and Professions Code; (5) Violation of Rule 7 of the Rules of Professional Conduct by representing conflicting interests; (6) Violation of Rule 5 of the Rules of Professional Conduct by accepting employment adverse to a client without the consent of that client; and (7) Wantonly disregarding the oath and duties of an attorney within the meaning of section 6103 of the Business and Professions Code.

The facts as found by the Board, it having adopted in part the findings of the local committee, are as follows:

In early 1954 petitioner was employed by Miss Karen Mattson, an unmarried girl 18 years old, who told him that she was pregnant and that, when the child was born, she wanted to have it adopted. Petitioner undertook to handle the problem, informing her that a public agency could handle the adoption, or that it could be handled privately. Miss Mattson preferred a private adoption. Petitioner first advised his client to tell her parents about her pregnancy, but she refused. He thereupon placed her in the home of one of his friends where she remained until the birth of the child. To assist in the deception of the parents, he arranged a false mailing address for her in Detroit.

Through the efforts of petitioner, Miss Mattson was introduced to several prospective parents. She selected a Mr. and Mrs. Abraham Cohen to be the adoptive parents of her child. At their request, and with the knowledge and consent of Mis Mattson, petitioner was employed to represent the Cohens in the adoption proceedings. Petitioner was paid $250.00 by the Cohens for this purpose. He was paid nothing by Miss Mattson.

The child was born in August of 1954, and, with Miss Mattson's consent, was immediately delivered to the Cohens. On August 26, 1954, the court appointed the Cohens guardians of the child. The petition, which had been filed by petitioner, contained the express consent of Miss Mattson to the appointment. Several days later, with Miss Mattson's knowledge and consent, petitioner filed a petition for adoption of the child on behalf of the Cohens.

In November of 1954 Miss Mattson told petitioner that she thought she now wanted to keep her child. She did not, however, request petitioner to take any legal action to revoke the guardianship or to in any way interfere with the adoption proceedings. In December, 1954, she apparently changed her mind again because, in that month, she gave her written consent to the adoption at a conference at the Los Angeles County Bureau of Adoptions.

On January 14, 1955, Miss Mattson visited the Cohens at their home and demanded $3000.00 or the return of the child. Mr. Cohen told her to call him at the petitioner's office at a designated time on the following day. She telephoned that office three times. The first two of these telephone communications were tape recorded by petitioner. In the third telephone conversation, petitioner told Miss Mattson that he had advised the Cohens not to pay her, that he had recorded their prior conversations, that the recordings showed an attempt at extortion which was a criminal offense for which she could be prosecuted, that the tapes would be available in connection with any action she might take to have her child returned, but that if the adoption went through without any action on her part to obtain the child, he would destroy the tapes. Thereafter petitioner discussed the matter of the tape recordings with the District Attorney. The nature of this discussion does not appear in the record.

In March, 1955, the court granted a petition to have Miss Mattson's consent to the adoption set aside. This petition was, filed by an attorney other than petitioner employed by Miss Mattson in January of that year. Prior to the hearing on the petition to revoke consent, an attorney was substituted for the petitioner as the attorney of record for the Cohens. Prior to and during this hearing the petitioner cooperated with the Cohens and their attorney in the preparation and conduct of their opposition to the petition. After the court had granted Miss Mattson's petition, petitioner was substituted as attorney of record for the Cohens. As their attorney he filed an appeal from the court's order, but was in turn substituted out of the case prior to any hearings or action on the appeal.

The petitioner challenges some of these findings. He first challenges the finding that he 'was employed by Miss Karen Mattson,' on the ground that the record shows that no formal employment was ever entered into. The point is without merit. Obviously, an attorney-client relationship existed. The fact that there were no formal arrangements is immaterial. Brydonjack v. Rieck, 5 Cal.App.2d 219, 42 P.2d 336. It is of some significance that petitioner, throughout the hearings before the local committee, referred to his being 'hired' by Miss Mattson.

As to the balance of the findings, petitioner does not claim that they are unsupported by the record or are erroneous, but does urge that they do not adequately present the facts. He contends that the findings should have shown that the petition to set aside the consent to the adoption was largely predicated on a personal attack on him. An examination of that petition discloses that it does contain serious charges against petitioner. As to the balance of the findings, petitioner would like them reworded so as to place him in a more favorable light. An examination of the record, however, discloses that the findings are reasonably accurate and do not omit any material facts.

The precise wording of the findings is not of vital importance because this court is not bound by the Board's findings (Higgins v. State Bar, 46 Cal.2d 241, 293 P.2d 455), even though such findings are 'entitled to great weight' (Light v. State Bar, 14 Cal.2d 328, 94 P.2d 35, 36). This court is empowered to review the whole record. This has been done.

The petitioner next attacks some of the proceedings before the local committee. He contends that the hearings before the local committee violated the Rules of Procedure of the State Bar in that they were of a far longer duration than provided for in Rules 21(a) and 34. That the proceedings exceeded the time limits expressed in these rules is obvious. The original notice to show cause was filed May 15, 1956. Thereafter, there were certain delays exceeding the time periods set forth in the Rules of Procedure of the State Bar. Rule 21(a) prescribes certain time limits for preliminary hearings, and Rule 34 prescribes certain time limits for the proceedings on a notice to show cause. But Rule 20(a) provides that 'the purpose of rule 21(a) and rule 34 is to expedite processing of complaints, the conduct of preliminary investigations and formal disciplinary proceedings, so that such matters shall be disposed of at the earliest practicable time. Failure to act within the time or times specified in rules 21(a) and 34 shall not bar consideration of an action on a complaint nor any proceedings, formal or informal, as in these rules provided.'

Petitioner asserts, however, that Rule 20(a) should not apply because in this case a 'gross injustice' was done to him by the violation of Rules 21(a) and 34. The claimed 'injustice' done to the petitioner is that because of the delay his future was made uncertain for about two years. Undoubtedly this created a period of pressure and tension for petitioner, but this fact alone does not require a dismissal of these proceedings. The drafters of the rules knew, of course, of the inconvenience that would be occasioned by delays in disciplinary proceedings. Had they felt that compliance with Rules 21(a) and 34 should be jurisdictional, they would have so stated. To the contrary, it was expressly stated that noncompliance was not jurisdictional. It should also be pointed out that petitioner admits that during the pendency of the proceedings, he has been engaged in an active practice. Under these circumstances, no prejudicial error appears because of the long duration of the proceedings.

The petitioner next complains that he was unduly limited in his cross-examination of the complaining witness. Miss Mattson was a difficult witness. She was obviously hostile to petitioner. The record shows that she frequently became emotionally upset. The local committee, in an apparent effort to obviate her temper tantrums which had resulted in her absence from the proceedings on...