Browne v. State Bar of Cal.

• Decision Date: 28 September 1955
• Citation: 287 P.2d 745,45 Cal.2d 165
• Court: California Supreme Court
• Parties: Lionel BROWNE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. S. F. 19262.

Page 745

287 P.2d 745

45 Cal.2d 165

Lionel BROWNE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S. F. 19262.

Supreme Court of California, In Bank.

Sept. 28, 1955.

Lionel B. Browne, San Francisco, for appellant.

Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Petitioner, Lionel Browne, seeks a review of disciplinary proceedings in which the Board of Governors of The State Bar recommended that he be suspended from the practice of the law for a period of three years. A prior three months' suspension imposed in December, 1948, was taken into consideration in the recommendation.

Petitioner, who is now approximately 58 years of age, was admitted to practice law in this state in August, 1925. For about nineteen years he served as deputy attorney general in California and as attorney for the State Medical Board.

In July, 1952, petitioner was sharing the office of another attorney. Petitioner used the office without paying rent or sharing in any of the other usual office expenses. In return for the use of the office, he handled cases turned over to him by the attorney and the record shows that they participated in the fees on a fifty-fifty basis. In July, 1952, at the other attorney's request, petitioner filed an action in which he sought to recover certain furniture for a Mrs. Morse, then known as Claudia Christianson. The other attorney's name appeared on the complaint and he was present at the trial but took no part therein. The State Bar ordered that his name be expunged from all records in connection with this proceeding.

On September 29, 1953, plaintiff recovered a judgment in the case for $440 and petitioner was given a check in that amount by the attorney for the defendant. The check was made payable to petitioner and Mrs. Morse, jointly. The record shows that he signed his name and hers, cashed the check and received the proceeds thereof. A few hours thereafter he entered a cocktail lounge with the money in his possession and had some drinks. Petitioner testified that he had a few drinks and possibly a drugged drink and that he became ill and temporarily lost full consciousness. When he returned to his hotel later that evening he discovered that he had only $162.50 remaining of the $440 he had received when he cashed the check. He placed the money remaining in an envelope addressed to the other attorney and gave it to the clerk of the hotel with instructions to deliver it to the other attorney. The other attorney testified that he picked up the envelope the next day, sealed it in the presence of the clerk of the hotel and took it to his home where he placed it in his strongbox. Petitioner, some days later, informed the other attorney concerning the cashing of the check and the missing balance thereof.

Mrs. Morse testified that she did not learn of the judgment, or petitioner's receipt of the check, until December 14, 1953; that previously she had tried unsuccessfully to contact petitioner and the other attorney. Petitioner testified that after he informed Mrs. Morse of the loss of the money, he offered her his promissory note for the balance but that she refused to accept it; that he had endeavored unsuccessfully to raise the money with which to pay Mrs. Morse. The envelope containing the $162.50 was not given to Mrs. Morse until the hearing in this proceeding. At the time of the last hearing, the other attorney, on petitioner's behalf, offered to pay to Mrs. Morse the undisputed balance to which she was entitled.

Mrs. Morse contended that petitioner agreed to handle the case for her on a 20% contingent fee basis; petitioner, on the other hand, contended that the arrangement was for a 50% contingent fee basis. He was unable to remember whether he had ever discussed the matter of fee with her; that he was of the impression that the other attorney had done so; that he had never taken a case on a 20% basis; that it was always on a 50% basis. The other attorney testified that he did not remember discussing the matter with Mrs. Morse, but that they never took cases on a 20% basis.

The local committee found the facts as heretofore set forth and that although petitioner signed the check without Mrs. Morse's knowledge, it was done without improper intent; that he intentionally and wilfully failed to notify her that he had received the money until December 14, 1953; that without the knowledge, or consent, of Mrs. Morse, petitioner misappropriated and converted her money to his own use and benefit. Concerning the other attorney, the local committee found that he knew of the misappropriation and failed to notify Mrs. Morse or account to her for any of the proceeds of the check until after she had consulted The State Bar. It was found that both attorneys had violated their oaths and duties as attorneys, and Rule 9 of the Rules of Professional Conduct ¹ and that they had committed acts involving moral turpitude, dishonesty and corruption. The local committee recommended that the other attorney be publicly reproved and that petitioner be suspended for a three months' period.

The Board of Governors thereafter ordered the proceeding dismissed as to the other attorney, and with four members dissenting because of the severity of the punishment, recommended that petitioner be suspended from practice of the law for three years.

Petitioner contends that the Board of Governors exceeded its jurisdiction in recommending a penalty greater than that recommended by the local committee; and that the evidence was insufficient to warrant the 'punishment imposed by said committee of a suspension for the period of six (6) (sic) months.' ²

The evidence was in sharp conflict as to the contingent fee percentage as heretofore noted and the local committee specifically made no finding thereon. If petitioner's theory is accepted, Golden v. State Bar, 213 Cal. 237, 247, 2 P.2d 325, Mrs. Morse would have been entitled to receive, in addition to the $162.50, approximately $52. (She had advanced about $10 to pay costs of suit.) In the Golden case, supra, it was held that any reasonable doubts must be resolved in favor of the accused. See, also, In re Luce, McDonald, & Torrance, 83 Cal. 303, 23 P. 350; In re Stephens, 84 Cal. 77, 24 P. 46; Matter of Haymond, 121 Cal. 385, 53 P. 899; In re Collins, 147 Cal. 8, 81 P. 220; Bar Association of San Francisco v. Sullivan, 185 Cal. 621, 198 P. 7; Aydelotte v. State Bar of California, 209 Cal. 737, 290 P. 41; ...