Bernstein v. Committee of Bar Examiners, State Bar

Decision Date08 August 1968
Citation70 Cal.Rptr. 106,69 Cal.2d 90,443 P.2d 570
CourtCalifornia Supreme Court
Parties, 443 P.2d 570 Hayes Alan BERNSTEIN, Petitioner, v. COMMITTEE OF BAR EXAMINERS, the STATE BAR of California, Respondent. L.A. 29314.

Kenneth D. McCloskey, San Francisco, and Crawford J. Cofer, Los Angeles, for respondent.

PER CURIAM.

Hayes Alan Bernstein seeks review of the action of the Committee of Bar Examiners in refusing to certify him to this court for admission to practice law in California. (Bus. & Prof.Code, § 6066.)

Bernstein, now aged 43, in 1963 received an LL.B. from Southwestern University in Los Angeles. After failing a 1963 bar examination, he passed one in the spring of 1964. Thereafter Bernstein's application for admission was referred to a subcommittee of respondent for a hearing and report regarding his moral character. Following nine hearings, the subcommittee determined that Bernstein is of good moral character and recommended that he be certified for admission to practice. 1 Respondent, after reviewing the report and recommendation of the subcommittee and receiving additional evidence in the form of testimony by Bernstein, adopted a resolution refusing to certify him for admission to practice. A petition for reconsideration was granted, and thereafter respondent again adopted a resolution refusing to certify Bernstein for admission to practice. 2 The refusal was on the ground that 'the record as a whole demonstrates a lack of truthfulness and candor on the part of (Bernstein) and he has not shown himself to be possessed of good moral character * * *.' 3 After issuing a writ of review 'Under Business and Professions Code section 6060 in order to qualify for certification an applicant must, among other things, 'Be of good moral character.' (Bus. & Prof.Code, § 6060, subd. (c).) Under the Rules Regulating Admission to Practice Law the burden of proving good moral character is upon the applicant. (Rule X, § 101; see also In re Garland, 219 Cal. 661, 662, 28 P.2d 354; Spears v. State Bar, 211 Cal. 183, 188, 294 P. 697, 72 A.L.R. 923.) Pursuant to this rule the applicant must initially furnish enough evidence of good moral character to establish a prima facie case, and the committee then has the opportunity to rebut that showing with evidence of bad character. (Konigsberg v. State Bar of California, 366 U.S. 36, 41, 81 S.Ct. 997, 6 L.Ed.2d 105.)' (Hallinan v. Committee of Bar Examiners, 65 Cal.2d 447, 448, fn. 1, 55 Cal.Rptr. 228, 231, 421 P.2d 76, 79.)

[443 P.2d 572] we granted a motion[69 Cal.2d 95] by respondent to augment the record and referred the matter to respondent for further proceedings and a report of the circumstances surrounding Bernstein's signing his former wife's name to a check, an act of which respondent and its subcommittee had been unaware. After a further hearing, a supplemental report was filed in which respondent again concluded that Bernstein has not shown himself to be of good moral character. 4

At the hearings the following evidence of Bernstein's good moral character was introduced:

A prominent former state official wrote a letter of recommendation on Bernstein's behalf, stating in part, 'I have known Mr. Bernstein for approximately fifteen years. He has been an extensive property holder in this area, and has been active in civic and church affairs. He is a respected member of his community. I recommend that he be accepted by your bar association.'

A superior court judge stated, 'I have known Mr. Bernstein for at least one year, but only socially, and I can say that in my opinion he appears to be a person of good character. However, my observation is limited purely to that of a social acquaintance.' An attorney, who was a friend of Bernstein, wrote that he highly recommended Bernstein for admission to practice.

The president of the Beth Jikvah Congregation wrote that Bernstein has been active in community affairs for 15 years and 'has given generously of his time and money for both religious and philanthropic projects.' A letter from a bank vice president stated that Bernstein has been favorably known to the bank for 12 to 15 years, has conducted various business operations in a satisfactory and honorable manner, and has maintained a good reputation in the community. 5

Bernstein testified: He was never 'in any difficulty as a * * * child of any major importance.' During the second world war he served more than a year overseas before receiving a discharge under honorable conditions. He thereafter obtained a B.A. degree and while attending college was gainfully employed. He subsequently engaged in various business enterprises in California before starting law school in 1959.

The foregoing evidence establishes a prima facie case of Bernstein's good moral

[443 P.2d 573] character. Respondent, however, points to the following matters to rebut that showing:

1. Forgery of former wife's name to check.

Respondent's findings on this subject may be summarized as follows:

In a divorce action against Bernstein the court decreed in March 1966 that an anticipated tax refund was the property of Bernstein and his former wife as tenants in common. In April 1966 a final divorce decree was entered. Bernstein subsequently received a $1,906.79 check payable to him and his former wife, in payment of the tax refund. In May 1966, without her authorization and with the intent to defraud her, he signed her name, as well as his own, on the check and negotiated it to a bank, receiving therefor $1,300 cash and a $606.79 credit in his bank account.

Thereafter on several occasions she inquired whether he had received the refund, and he concealed from her the fact that he had received it and made statements that were intended to and did lead her to believe he had not received it.

Respondent further determined that there was no evidence of circumstances which excused him or mitigated the misconduct.

Bernstein asserts that the evidence does not show that his intent was to defraud his former wife but instead shows that he 'was intent on merely harassing and otherwise * * * confounding' her. He also objects to the determination that there was no proof of circumstances which excused him or mitigated the misconduct.

Respondent's findings are not binding upon this court but are entitled to great weight, and the burden of showing that the findings are not supported by the evidence or that respondent's action is erroneous is upon the petitioner. This court examines and weighs the evidence and passes upon its sufficiency, and any reasonable doubts are resolved in favor of the petitioner. (Hallinan v. Committee of Bar Examiners, supra, 65 Cal.2d 447, 450--453, 55 Cal.Rptr. 228, 421 P.2d 76; cf. Most v. State Bar, 67 A.C. 600, 607, 63 Cal.Rptr. 265, 432 P.2d 953.)

Judged by these standards the finding that Bernstein intended to defraud his former wife is clearly supported by the weight of the evidence. At the hearing he admitted that he signed her name on the check and knew that he did not have her authorization to do so, and it is undisputed that he thereafter negotiated the check. The signing of a person's name without authority, at least where the instrument has been uttered, is sufficient to imply an intent to defraud. (People v. Weitz, 42 Cal.2d 338, 350, 267 P.2d 295.) That intent is also shown by evidence that for over a year he concealed from his former wife the receipt of the check and during that period made statements which were intended to and did mislead her.

Bernstein points to evidence that when he signed her name on the check he had a $30,911 promissory note from her that was payable in 1975 or earlier upon the occurrence of a specified event. However, such evidence manifestly does not show that when he signed her name he did not intend to defraud her.

Bernstein asserts that he lacked emotional stability during the period in question. He testified: After seeing 'considerable action in the Pacific' he was 'confined * * * for mental reasons' and received treatment for several months. Following his discharge from the service he had no problems until he started law school, at which time his former wife and her mother ridiculed him for giving up business to study law. He became depressed when he failed his first bar examination and subsequently felt anger and anguish over the instant proceedings. He had periods of depression and 'actual withdrawal,' was 'confined' for one period 6 In corroboration of Bernstein's testimony concerning his mental stability, his attorney testified that his experience with Bernstein began at the divorce proceedings; that during those proceedings Bernstein sometimes refused to sign documents which were for his own benefit; that Bernstein was then a mentally disturbed person; that he 'had something happen to him * * * near the end of the war, when he was literally blown out of the water'; and that in the attorney's opinion Bernstein's mental problem was a temporary one and he would not act in the same manner in the future.

[443 P.2d 574] and saw a psychiatrist for about three years. It was explained to him that he had strong emotional reactions when his former wife remarried and became pregnant. He felt he had resolved his mental problems 'some time ago' and realized his signing the check was 'foolish' and 'stupid.'

The foregoing evidence relating to Bernstein's psychological problems does not show that he was incapable of having an intent to defraud nor does it warrant our finding, contrary to respondent, that he in fact did not have such an intent.

The evidence of his psychological problems likewise does not excuse or mitigate his misconduct. In Grove v. State Bar, 66 Cal.2d 680, 685, 58 Cal.Rptr. 564, 567, 427 P.2d 164, 167, in which we disbarred an attorney for misconduct involving an habitual disregard of his clients' interests, the...

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