Bluestein v. State Bar

• Decision Date: 19 December 1974
• Citation: 118 Cal.Rptr. 175,13 Cal.3d 162,91 A.L.R.3d 570,529 P.2d 599
• Court: California Supreme Court
• Parties: , 529 P.2d 599, 91 A.L.R.3d 570 William J. BLUESTEIN, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 30241. In Bank

Page 175

118 Cal.Rptr. 175

13 Cal.3d 162, 529 P.2d 599, 91 A.L.R.3d 570

William J. BLUESTEIN, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 30241.

Supreme Court of California,

In Bank.

Dec. 19, 1974.

As Modified on Denial of Rehearing Jan. 17, 1975.

Morris Lavine and Joan Celia Lavine, Los Angeles, for petitioner.

Herbert M. Rosenthal and Ronald W. Stovitz, San Francisco, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board that petitioner be suspended from the practice of law for six months. ¹

Petitioner, who was admitted to practice in 1957, was charged with, inter alia, (1) violating his oath and duties as an attorney (see Bus. & Proc.Code, §§ 6103, 6067, & 6068) and committing acts involving moral turpitude (see Bus. & Prof.Code, § 6106) by using extortionary means to attempt to obtain payment of his attorney's fee in a divorce action and (2) wilfully violating rule 3, Rules of Professional Conduct of the State Bar (see Bus. & Prof.Code, § 6077) ² by aiding and abetting an unlicensed person to practice law in California. Further particulars concerning the misconduct were also alleged. Petitioner denied the charges.

Whether Petitioner was Guilty of Misconduct in Connection with the Dorff Matter

In June 1970 Mrs. Robert Dorff retained petitioner to represent her in a divorce action. On July 29, 1970, Robert Dorff came to petitioner's office and a fist fight ensued between Mr. Dorff and petitioner, following which petitioner made a citizen's arrest and preferred criminal charges of assault and battery against Mr. Dorff. Petitioner estimated that as a result of the fight be incurred $200 property damage and $70 medical expenses.

A few days after the fight the Dorffs signed a marital settlement agreement, which called for the payment by Mr. Dorff of his wife's attorney's fee of $1,000 to petitioner following certain events.

Between the date of the fight and the commencement of the criminal trial against Mr. Dorff on September 28, 1970, the Dorffs reconciled. During this period petitioner had certain conversations with Mrs. Dorff and the attorneys for Mr. Dorff, Raymond Denenberg and Bruce Friedman. The evidence regarding those conversations may be summarized as follows:

Mrs. Dorff testified: After her reconciliation with her husband, she asked petitioner if he would drop the criminal charges against her husband, and petitioner agreed to do so. On September 14, 1970, she asked petitioner why he had not dropped the charges as he had agreed to do, and he replied, 'Well, you tell your husband to deposit $1,000 with his attorney and then I'll drop the charges.' (Italics added.) Petitioner indicated that the $1,000 was for his attorney's fee, as provided in the marital settlement agreement.

Denenberg testified: Before the criminal trial he asked petitioner if he would be willing to drop the criminal charges against Mr. Dorff. Petitioner replied in substance that 'if we would see to it that his attorney's fees were paid for the divorce . . . that he would consider dropping the criminal charges.' (Italics added.)

Friedman testified that on September 21, 1970, he telephoned petitioner, that he did not electronically record the conversation but made notes immediately upon its conclusion, and that the conversation was as follows: '(Friedman): '. . . I'm calling because . . . I'm supposed to be defending Bob Dorff next week in a criminal trial. I've heard rumors that you're planning to drop the charges, is this true? ' (Petitioner): 'Yes, if he pays me the money.' (Friedman): 'What money are you talking about?' (Petitioner): Well, I was originally supposed to get a thousand dollars attorney's fees from Dorff in the divorce case but the parties have now reconciled. If Mr. Dorff will pay me $700 before the trial I'll drop the criminal charges.' (Friedman): 'Well, if Bob Dorff owes you money for the divorce case that's an entirely separate matter. What does the payment of $700 have to do with the criminal charges?' (Petitioner): 'Nothing, except that that's the only way I can make Dorff pay me now that the parties have reconciled. " (Italics added.)

On the other hand, petitioner testified that he never told anyone that he 'would dismiss the criminal action if Mr. Dorff would pay (him) a thousand dollars.' His version of his conversations with Denenberg and Friedman does not include the statements they testified he made, but even under his version it appears he made remarks which suggest he was seeking payment of his attorney's fee in the divorce action, as well as for his injuries, as a precondition to his advising the prosecution that he had 'been compensated for his injuries and they can dismiss it if they want under (Pen.Code, s) 1377 (which section permits the compromising of certain misdemeanors).'

The $700 or $1,000 was not paid to petitioner by Mr. Dorff, and the criminal trial proceeded. At the trial Mr. Dorff was acquitted.

The local committee and board found, inter alia, that the September 21, 1970, conversation between Friedman and petitioner contained a specified colloquy, which colloquy is substantially identical to that stated by Friedman in his testimony quoted above, and that petitioner also told Denenberg that petitioner would drop the criminal charges against Mr. Dorff if petitioner's $1,000 attorney's fee was paid by Mr. Dorff. The board further found that petitioner wilfully and wrongfully attempted to use criminal proceedings in order to collect a legal fee in a civil matter.

,2] Petitioner contends that the foregoing findings are not supported by the evidence. Findings by the local committee and Disciplinary Board are not binding on this court, and we will weigh the evidence and pass upon its sufficiency. Charges of unprofessional conduct on the part of an attorney should be sustained by convincing proof and to a reasonable certainty, and reasonable doubts must be resolved in the attorney's favor. (Skelly v. State Bar, 9 Cal.3d 502, 508, 108 Cal.Rptr. 6, 509 P.2d 950; Himmel v. State Bar, 4 Cal.3d 786, 793, 794, 94 Cal.Rptr. 825, 484 P.2d 993.) The burden, however, is on the petitioner to show that the findings are not supported by the evidence. (Brody v. State Bar, 11 Cal.3d 347, 350, 113 Cal.Rptr. 371.)

3] Petitioner has not sustained that burden. In attacking the findings as to the content of his conversations with Friedman and Denenberg, petitioner points to his own testimony regarding what was said. The above recited testimony of attorneys Friedman and Denenberg, however, differs from that of petitioner and supports the challenged findings except for immaterial details. The fact that their testimony and that of Mrs. Dorff regarding what petitioner told them contain similar statements by him tends to support their version regarding what he said. Also, as we have seen, Friedman made notes of his conversation with petitioner immediately thereafter. Furthermore, since the credibility of witnesses is in issue, we must give great weight to the action of the local committee which heard and saw the witnesses. (Ridley v. State Bar, 6 Cal.3d 551, 559, 99 Cal.Rptr. 873, 493 P.2d 105.)

The other challenged finding (i.e., that petitioner wilfully and wrongfully attempted to use criminal proceedings in order to collect a legal fee in a civil matter) is likewise supported by the recited evidence. Petitioner, in arguing to the contrary, points to testimony by himself as to what occurred during a conference in chambers with the judge at the criminal trial. ³ It appears from petitioner's testimony that the trial judge asked for an explanation after commenting that he understood 'there is a civil matter . . . something about attorney's fees' and that the court 'is not going to be a collection agency.' Petitioner informed the judge that 'if this money, whatever the sum was, $500 or $700 or $1000 . . . was paid to (petitioner), (he) would represent to the District Attorney . . . that (petitioner) felt (he) had been adequately compensated . . . under (Pen.Code, s) 1377.' The judge asked if petitioner had been compensated for his injury, and when petitioner replied he had not the judge said, 'All right, then we will proceed.'

It does not appear from petitioner's testimony that he informed the judge that the sum referred to by petitioner was for his attorney's fee in the divorce action. Other evidence that may be viewed as conflicting was received as to whether petitioner told the judge that petitioner told Friedman that the money was in part for 'the divorce fee.' The findings of the local committee and board differ as to what petitioner told the judge. We need not resolve that matter. Irrespective of what was said in chambers and the fact that the case then proceeded to trial, the heretofore recited evidence that was introduced at the instant proceeding shows that petitioner wilfully and wrongfully attempted to use criminal proceedings in order to collect a legal fee in the divorce action.

The next question is whether petitioner's acts involved moral turpitude (see Bus. & Prof.Code, § 6106) ⁴ or on some other basis warrant the imposition of discipline. The local committee concluded that those acts did not involve moral turpitude but were a violation of petitioner's oath and duties as an attorney (see Bus. & Prof.Code, §§ 6103, 6067, & 6068) and therefore warranted discipline. The board drew no express conclusions. The State Bar now argues, inter alia, that petitioner's acts involved moral turpitude, and petitioner argues to the contrary.

Various oppressive methods of attempting to collect legal fees have been held to involve moral turpitude. (Lindenbaum v. State Bar, 26 Cal.2d 565, 573, 160 P.2d 9; McGrath v. State Bar, 21 Cal.2d 737, 741, 135 P.2d 1; see 1 Witkin, Cal.Procedure (2d ed.) pp. 211--212.) The fact that the attorney may be entitled to the fee he sought to obtain or to a fee does not exonerate him. (...