Corn v. State Bar

• Decision Date: 19 April 1968
• Citation: 439 P.2d 313,68 Cal.2d 461,67 Cal.Rptr. 401
• Court: California Supreme Court
• Parties: , 439 P.2d 313 George B. CORN, Petitioner, v. The STATE BAR of California, Respondent. L.A. 29411.

Page 401

67 Cal.Rptr. 401

68 Cal.2d 461, 439 P.2d 313

George B. CORN, Petitioner, v. The STATE BAR of California, Respondent.

L.A. 29411.

Supreme Court of California In Bank.

April 19, 1968.

As Modified on Denial of Rehearing May 29, 1968.

George B. Corn, in pro. per.

Robert C. Baxley and Condra, Baxley & Crouch, San Diego, for petitioner.

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

PER CURIAM.

This is a proceeding to review a recommendation of the Disciplinary Board II of the State Bar of California that petitioner be suspended from the practice of law for a period of three years.

Questions: First. Does the evidence sustain the finding of culpability on the part of petitioner?

Yes. The burden is upon one seeking a review of a recommendation of a disciplinary board to show that its findings are not supported by the evidence or that its recommendation is erroneous or unlawful. (McKinney v. State Bar of California, 62 Cal.2d 194, 195, (2), 41 Cal.Rptr. 665, 397 P.2d 425.) In the present case, the record discloses that petitioner has not sustained this burden.

The record shows that in December 1964 petitioner was employed to represent Mr. Lawrence Symonds in a bankruptcy proceeding. The agreed fee was $200, plus $2 for forms and $50 for court costs. An additional $50 fee was later agreed upon as a result of a necessary amendment to the petition for bankruptcy, making a total due by Mr. Symonds of $302. At the time petitioner was employed, he was paid $50, which Mr. Symonds had obtained as an advance from his employer.

Mr. Symonds' wife had formerly been married to a Mr. Siemons. At the time petitioner was employed to represent Mr. Symonds in the bankruptcy proceeding Mrs. Symonds was receiving county warrants covering child support payments made by her ex-husband as a result of a reciprocal support action. The warrants were payable to her under the name of 'L. L. Siemons,' her former name.

According to Mrs. Symonds' testimony, she agreed to turn over to petitioner, to apply on the amount due him in the bankruptcy matter until he had been paid in full, half the child support payments received by her. To this end, she suggested that the county be requested to mail the warrants to her in care of petitioner at the latter's office.

Accordingly, by letter dated December 29, 1964, petitioner wrote the county clerk, as follows: 'My client and I have signed a retainer contract under which a Percentage of the support collected in the above case will be used to pay my attorney's fees. Therefore we request that you Make all checks payable to my client, and mail them in care of me to the above letterhead address. When my fees are paid in full, I will notify you by mailing to you a copy of this letter with the bottom portion (an acknowledgement that the fees had been paid) signed.' (Italics added.) The letter bears a notation, 'I approve,' signed 'Mrs. L. Siemons.'

A warrant dated January 27, 1965, in the amount of $50, was received at petitioner's office and was mailed by petitioner's secretary to Mrs. Symonds on January 28, 1965, with the request that she sign the same and return it to petitioner's office. The warrant bears endorsements by both 'L. L. Siemons' and petitioner. Petitioner's secretary on February 1, 1965, issued a receipt in the amount of $50, and this amount was credited to the account of Mr. Symonds. ¹

A warrant dated January 29, 1965, in the amount of $50, was also sent to petitioner's office. The record does not reveal how the warrant was transmitted to Mrs. Symonds, but the warrant bears her proper endorsement and a further endorsement, 'For deposit only, Pay to the order of Security First National Bank, John N. Radovich, Bldg. Account.'

A number of the bills relative to which Mr. and Mrs. Symonds were being harassed by creditors were actually indebtednesses incurred by Mrs. Symonds before she married Mr. Symonds. According to her testimony, she thought that she was to be included in the bankruptcy proceeding, so that there would be a discharge of those indebtednesses, as well as the indebtednesses of Mr. Symonds. When she learned that she was not included, ² she became very angry with petitioner and indicated she would pay nothing further on the fee. She was also displeased because certain items were not set aside by the trustee as exempt.

Thereafter, a warrant dated March 1, 1965, in the amount of $100, was received by petitioner. He claims that he tried several times to contact Mrs. Symonds by telephone but was unable to reach her and that he then went ahead and endorsed the warrant in her name ('L. L. Siemons') at his office, took it to the bank, endorsed his name on it with a different pen, and deposited it in his personal savings account.

Upon petitioner's return to the office, he wrote out a receipt showing that $100 had been credited to Mr. Symonds' account. A few days later, he sent Mr. Symonds a statement showing that the $100 had been credited to the account. Shortly after the statement was received, Mrs. Symonds telephoned petitioner and complained bitterly of his action, saying he had no authority to endorse her name.

Mrs. Symonds reported the matter to the county authorities and signed an affidavit of forged endorsement. She then endorsed the warrant and was paid $100 by the county. The county notified the bank of the forgery, and the bank reimbursed the county, charging petitioner's account.

Although petitioner did not endorse in Mrs. Symonds' behalf eithr of the two $50 warrants, he claims that under his original agreement with the Symonds he was authorized to endorse any of the warrants in her behalf, cash them, and apply the entire proceeds to Mr. Symonds' indebtedness to him. Mr. Symonds' former employer testified, in petitioner's behalf, that both Mr. and Mrs. Symonds had, in his presence, acknowledged in a conference telephone call, with petitioner at the other end of the line, that petitioner had such authority.

Mrs. Symonds unequivocally denied that she had authorized petitioner to endorse and cash the warrants and further testified that under their agreement petitioner was to receive only half the payments.

The foregoing evidence amply supports the finding of culpability on the part of petitioner.

Second. Was it proper to admit testimony by two handwriting experts that in enforsing the name 'L. L. Siemons' on the back of the warrant, petitioner had made an effort to disguise his handwriting?

Yes. Expert opinion evidence as to handwriting is basically a process of comparison of writings. (See McBaine, Cal.Evidence Manual (2d ed. 1960) Expert Opinion,...