Ashe v. State Bar of Cal.

• Decision Date: 16 May 1969
• Docket Number: S.F. 22624
• Citation: 77 Cal.Rptr. 233,71 Cal.2d 123,453 P.2d 737
• Court: California Supreme Court
• Parties: , 453 P.2d 737 Lou ASHE and Richard F. Gerry, Petitioners, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 233

77 Cal.Rptr. 233

71 Cal.2d 123, 453 P.2d 737

Lou ASHE and Richard F. Gerry, Petitioners, v. The STATE BAR OF CALIFORNIA, Respondent.

S.F. 22624.

Supreme Court of California,

In Bank.

May 16, 1969.

Herman F. Selvin, Beverly Hills, Frederick A. Cone and Belli, Ashe, Ellison, Choulos, Cone & Harper, San Francisco, for petitioners.

F. LaMar Forshee and Herbert M. Rosenthal, San Francisco, for respondent.

PER CURIAM.

This is a proceeding to review a recommendation of a disciplinary board of The State Bar that petitioners be suspended from the practice of law for six months for professional misconduct in violation of their oaths and duties as attorneys and counselors (Bus. & Prof.Code, §§ 6067, 6068, 6103) and wilfully violating rule 2, section a(1) and (2), and rule 3 of the Rules of Professional Conduct. ¹

The accusation against petitioners is that they indirectly solicited professional employment through their salaried investigator, Harold McGlenon, and ratified acts of solicitation by him. Extensive hearings were conducted, and after the local administrative committee recommended six months' suspensions, the disciplinary board referred the case back in order that petitioners might present evidence as to their state of mind as bearing on the issue of whether either of them ratified any acts of solicitation. Eight members of the disciplinary board recommended to this court that petitioners be suspended for six months; five members of the board declined to recommend any discipline on the ground that violations of the State Bar Act or Rules of Professional Conduct had not been proved.

Petitioners are partners; petitioner Ashe was admitted to practice in this state on May 7, 1947; petitioner Gerry on December 19, 1956. Neither has been the subject of previous disciplinary action.

The inquiry into petitioners' conduct was initiated by a State Bar staff attorney as a result of letters received from several members of the Bar bringing attention to newspaper items reporting the filing of complaints by petitioners on behalf of persons injured in a plane crash. None of the persons allegedly solicited complained to the State Bar.

On October 29, 1960, a commercial airplane carrying members of the California Polytechnic College football team, coaches, and team boosters crashed on takeoff from the Toledo, Ohio, airport, killing some of the passengers and severely injuring many others. One of the less-severely injured players, Carl Bowser, was released from a Toledo hospital about a week later and returned to Bakersfield, California. John S. Thompson, who lived in the Bay Area, was a friend of Bowser and his teammates. He went to Bakersfield to attend the funerals of some of the players with Bowser. Mr. Thompson spent several days in Bakersfield and during that time Bowser asked him to recommend an attorney to represent himself and his injured teammates. Mr. Thompson recommended Mr. Belli. ² Mr. Bowser tried to reach Mr. Belli by telephone but was unable to do so, and he asked Thompson to contact him on his return to San Francisco. Thompson arranged a meeting with petitioners, Ashe and Gerry, and from their office Thompson telephoned Bowser in Bakersfield, who spoke with petitioners on a conference call. At Bowser's request, Mr. Harold McGlenon, an investigator employed by petitioners, was sent to Bakersfield to interview Bowser and Robert Johnson, a teammate who had returned to Bakersfield after the meeting between Bowser and Thompson. Bowser and Johnson signed contracts retaining petitioners' firm.

Before leaving Toledo, Bowser told Bill Ross, an injured and badly-burned teammate, that he would see about getting a lawyer when he got home. Ross told Bowser that if he was going to get an attorney to get one for him also. Bowser telephoned Ross in Toledo, telling him that he had made arrangements for an attorney, and Ross requested Bowser to send him to Toledo to see him.

Robert Johnson was ambulatory while in the Toledo hospital and was in the same ward with Roger Kelly, Russell Woods and Don Adams. He talked with them about hiring a lawyer to represent all of the people injured in the crash, suggesting to them that they 'stick together' and hire one lawyer because they didn't have any money. He also talked with Albert Marinai, Bill Ross, Gilbert Stork, Walter Shimek, William Dauphin, and Mr. Nettleship, the sports editor of a San Luis Obispo newspaper who had accompanied the team. Mr. Nettleship said he would 'go along' with the others.

Mr. Johnson further told McGlenon he would arrange a group meeting of other injured players who had returned to school and asked him to have someone from petitioners' office come to San Luis Obispo to talk with them. Shortly thereafter, at the request of Ted Tollner, a member of the football team, petitioner Ashe met with a group of boys whom Tollner had invited to his home to meet with Mr. Ashe. A number of those players employed petitioners' firm to represent them. The only acts of solicitation charged are those alleged to have been made by McGlenon in Toledo. When McGlenon returned from Toledo he reported orally and in writing to petitioners. His written report was admitted in evidence. The disciplinary board found that McGlenon 'asked and advised' the following persons to employ petitioners to represent them: Albert Marinai, then a minor; his parents, Ralph and Anne Marinai; Gilbert Stork; Roger Kelly; Russell Woods; Mrs. Shimek, the mother of Walter Shimek; and John Nettleship. The State Bar in its brief now concedes that the evidence may be insufficient to sustain the finding that Mr. Nettleship was solicited. The evidence bearing on McGlenon's contacts with the remaining persons allegedly solicited is set out below.

1. Albert Marinai, a minor at the time of the crash, was severely injured and was under constant care from October 29, 1960, until March of the following year. He believed he was under heavy sedation for the first month. He testified that McGlenon had not come to visit him at his request. McGlenon introduced himself by name, said he was an investigator for the Belli firm, and left his business card. He did not remember whether McGlenon asked if he had an attorney, but they discussed the accident and his condition. He did not remember talking about the weather conditions the night of the crash, the condition of the airplane, or what happened during takeoff. He said McGlenon spent about 10 minutes with him and left with him a book entitled Ready for the Plaintiff, by Mr. Belli, and told him to read it.

Ralph Marinai, Jr., Albert's brother, went to Toledo about two weeks after the crash. He was Ready for the Plaintiff in his brother's room but did not know how it got there. He had seen an unidentified man in the hospital corridor carrying two or three books but did not know what the books were except that the white paper covers were the same as the cover of the book in his brother's room.

Mr. McGlenon denied he had given Albert the book. He testified that he took only two books with him, one for Bill Ross and one for attorney Friedman, a friend of petitioner Ashe.

McGlenon's written report to petitioner Ashe after his return from Toledo states: 'The San Francisco boy, Al Marinai, his father and mother and brother were present, and they were going to postpone for sometime in the future the employment of counsel * * * this boy is in pretty bad shape, both arms in casts, and both legs in casts, and the determination of whether or not to cut off his left leg is being postponed day to day. There has been some recovery there. * * *'

2. Ralph and Anne Marinai, Albert's parents, were not called as witnesses. The only evidence of any contact with them came from McGlenon's above-quoted written report, his testimony that they were in the room when he talked with Albert, and Albert's testimony that he did not hear what McGlenon discussed with his parents.

3. It was stipulated that Gilbert Stork would, if called as a witness, testify in accordance with his signed statement: '* * * about two weeks after the accident, a Mr. Harold McGlenon, who said he was an Investigator for the law firm of Belli, Ashe & Gerry of San Francisco, came into my hospital room. McGlenon asked if I had engaged an attorney as yet. As I knew my folks were taking action to engage an attorney, I do not recall what else was said. However McGlenon left his card with me. I have initialled this card for identification and it is herewith.'

Mr. McGlenon's written report reads: '* * * Gill Stork informed me that he was going to engage Mr. James Boccardo of San Jose as his attorney. * * *' McGlenon testified that Stork told him that he had engaged Mr. Boccardo, that he told Stork that Mr. Boccardo was a fine attorney, and that he gave Stork his card to give to Mr. Boccardo.

4. Roger B. Kelly testified that he did not know that McGlenon was coming to see him; that he had not requested anyone 'to arrange' an attorney for him; and that he did not recall either Bowser or Johnson having discussed the subject of counsel with him before they left Toledo. Kelly suffered a broken back in the crash an was under medication for pain throughout his stay at the hospital for approximately three weeks. He testified that the discussions he had during the first ten days after the accident were pretty vague. He could not recall exactly what McGlenon first said to him, but he remembered that McGlenon said he was an investigator for Belli, Ashe & Gerry, who were 'available if I would like them to be.' He was not sure whether there was any conversation with McGlenon as to how the plane crash occurred.

On cross-examination he couldn't say exactly and couldn't recall that McGlenon had used the word 'available,' but something McGlenon said indicated that the firm was available to him as an attorney. He was asked when he determined that McGlenon had indicated the firm was available. He replied: 'The first...