Davis v. State Bar

• Decision Date: 13 January 1983
• Docket Number: S.F. 24370
• Citation: 188 Cal.Rptr. 441,655 P.2d 1276,33 Cal.3d 231
• Court: California Supreme Court
• Parties: , 655 P.2d 1276 Clarence L. DAVIS, Jr., Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

Page 441

188 Cal.Rptr. 441

33 Cal.3d 231, 655 P.2d 1276

Clarence L. DAVIS, Jr., Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S.F. 24370.

Supreme Court of California.

Jan. 13, 1983.

[33 Cal.3d 234] [655 P.2d 1277] Milton Nason, Berkeley, and Frederick T. Koyle, San Francisco, for petitioner.

Herbert M. Rosenthal, Truitt A. Richey, Jr., and Scott J. Drexel, San Francisco, for respondent.

[33 Cal.3d 235] BY THE COURT: ^*

We review, and will adopt, a recommendation of the State Bar Court that petitioner, Clarence L. Davis, Jr., be suspended from the practice of law for three years, but that his suspension be stayed subject to certain conditions, including probation for three years, one-year actual suspension, and compliance with the Rules of Professional Conduct and rule 955 of the California Rules of Court. Petitioner contends, unsuccessfully, that the findings of the State Bar Court are not supported by the evidence and that the discipline recommended is excessive.

Petitioner was admitted to the practice of law on January 20, 1966. In 1976 he was suspended from practice for two years. Probation was imposed without any actual suspension. Thereafter, in 1979, petitioner again received a one-year stayed suspension. Both prior proceedings involved similar misconduct, namely, failure to perform services for clients.

On October 6, 1980, formal proceedings were initiated against petitioner by a notice to show cause charging him with wilful failure to represent a client in violation of his oath and duties as an attorney (Bus. & Prof.Code, §§ 6067, 6103), wilful deception of a court (id., § 6068; Rules Prof. Conduct, rule 7-105(1)), and wilful failure to pursue with reasonable diligence the matter for which he was retained (id., rule 6-101). The State Bar found in petitioner's favor regarding the last charge but concluded that he was guilty of the first two charges. The hearing panel recommended that petitioner be suspended from practice for six months. The review department adopted the hearing panel's findings of fact (by a vote of ten to zero, with two members abstaining), and increased the punishment to three years' suspension with one year actual (by a vote of nine to one, two members abstaining, and one member voting for six months' actual suspension).

FACTS

Because petitioner contests the sufficiency of the evidence, we briefly outline the pertinent facts. Cynthia B. was involved in an automobile accident on December 29, 1977. Shortly thereafter, she contacted petitioner, who agreed to act as her attorney, and to prosecute her claim for personal injuries. He investigated Ms. B.'s claim, but failed to file suit or otherwise settle the claim within the applicable limitations period. The hearing panel concluded that petitioner's conduct constituted a wilful failure to represent Ms. B.

On March 22, 1979, Ms. B. sued petitioner for malpractice. In response to her complaint, petitioner filed a verified answer in which he denied being her attorney and alleged, as an affirmative defense, that he represented her only in connection with her property damage claims. The hearing panel found that this pleading constituted a wilful misrepresentation to the court.

DISCUSSION

Because Petitioner challenges the sufficiency of the evidence supporting both the failure to represent and the misrepresentation charges, we exercise our independent examination of the record (Marcus v. State Bar (1980) 27 Cal.3d 199, 201-202, 163 Cal.Rptr. 121, 611 P.2d 462; Codiga v. State Bar (1978) 20 Cal.3d 788, 796, 144 Cal.Rptr. 404, 575 P.2d 1186), concluding that the State Bar Court's findings are amply supported.

1. Wilful Failure to Represent A Client

Although he concedes that he "missed a deadline," petitioner maintains that his failure to file Ms. B.'s suit was negligent rather than wilful. First, petitioner claims that the evidence does not support a finding that he was retained by Ms. B. to represent her in her personal injury claim. Petitioner cites his own testimony that he did not believe he had agreed to represent Ms. B. after their first meeting. He also relies on several factors--the absence of a formal employment contract, Ms. B.'s statement in January 1978 to petitioner's secretary that she was not injured in the accident, and the police report indicating that the accident involved no injuries. Petitioner observes that, in contrast, he and Ms. B. had signed a retainer agreement when he represented her for a 1975 accident, but that no such agreement was executed with respect to the claim at issue here.

Our review of the record convinces us, however, that petitioner was indeed retained to represent Ms. B. in her claim for personal injuries. At their first meeting, Ms. B. told petitioner that she wanted to bring a suit against the driver of the other vehicle and that she was not concerned about the damage to her car, which would be covered by her insurance. Thereafter, both Ms. B. and petitioner learned that the other driver was insured by the same carrier, so that no insured's deductible offset would be applied to the collision damage to Ms. B.'s car. Ms. B. incurred no uninsured property damage, thus obviating any need for legal representation as to her property claim. The only plausible inference is that she retained petitioner to file a personal injury action.

Additional facts also sustain the foregoing conclusion. Ms. B. testified that petitioner requested medical bills during their first meeting, telling her that these bills were needed to establish her claim. He offered to refer her to a physician. During the next six months he sent two letters--one to the driver of the other vehicle and one to Highland Hospital requesting medical records--in which he stated that he represented Ms. B. for claims arising from the injuries she sustained in the accident. In November 1978, petitioner's secretary prepared a third letter--to Ms. B.'s employer--again claiming to represent her and requesting information about wages she had lost because of the accident.

It is fundamental that the burden is on petitioner to show that the State Bar's findings are not supported by the evidence. (Ramirez v. State Bar (1980) 28 Cal.3d 402, 411, 169 Cal.Rptr. 206, 619 P.2d 399; Geffen v. State Bar (1975) 14 Cal.3d 843, 852, 537 [655 P.2d 1279] P.2d 1225.) He has failed to meet this burden. We accord great weight to the hearing panel's evaluation of testimonial evidence (Nizinski v. State Bar (1975) 14 Cal.3d 587, 595-596, 536 P.2d 72; Sampson v. State Bar (1974) 12 Cal.3d 70, 74, 524 P.2d 139; Himmel v. State Bar (1971) 4 Cal.3d 786, 794, 484 P.2d 993), because the panel is in a better position than we to observe the witnesses and hear the testimony. Petitioner's arguments do not persuade us to depart from this general principle, and, accordingly, we defer to the hearing panel's assessment of the conflicts in the testimony which are noted by petitioner. It is significant that the hearing panel's conclusion that petitioner represented Ms. B. for her personal injury claims is especially warranted in this case, because there is documentary support for the testimonial evidence. (Magee v. State Bar (1975) 13 Cal.3d 700, 708, 532 P.2d 133.)

Petitioner's reliance on the absence of any written contract is likewise unconvincing. No formal arrangements are necessary to establish an attorney-client relationship (Arden v. State Bar (1959) 52 Cal.2d 310, 315, 341 P.2d 6), especially where, as here, the existence of the relationship is demonstrated and reinforced by the attorney's own conduct. Petitioner argues that, because he and Ms. B. had entered into a written contract when he previously represented her in 1975, the absence of a written instrument regarding the subject claim indicates that he had not agreed to represent her. A contrary inference is as easily drawn: Having represented Ms. B. in the past, petitioner may have concluded that a written contract was no longer necessary. Petitioner's conduct during 1978 makes this second inference the more plausible of the two. We thus agree with the State Bar Court's finding that petitioner did agree to represent Ms. B. for personal injuries arising from the December 29, 1977, accident.

As an alternative defense, petitioner argues that although informed of Ms. B.'s residual injuries (recurring headaches), he doubted the validity of such a claim because the headaches were "symptomatically similar" to those sustained by Ms. B. in the 1975 accident. Petitioner admits that he never informed Ms. B. of any such conclusion labelling this omission an "error in judgment." Apparently petitioner would have us view this "error" as a negligent, rather than a wilful, failure to represent her.

While it is incumbent upon an attorney zealously to represent his client, he must always respect and defer to those decisions properly reserved to his client. (See, e.g., ABA Code of Prof. Responsibility, EC 7-7.) We must presume that petitioner was aware of this most basic tenet of advocacy; thus, his usurpation of his client's decision can only be characterized as wilful. If petitioner doubted either his client's credibility or the legitimacy of her claim, he should have questioned her closely and, if his doubts persisted, withdrawn from employment. (See Rules Prof. Conduct, rule 2-111(C)(1)(a).) Even if ignorant of the applicable professional standards, he is nonetheless culpable of gross negligence in his usurpation of his client's privilege and in his subsequent failure to represent her. We have previously noted that grossly negligent failure to represent a client warrants discipline. (See Doyle v. State Bar (1976) 15 Cal.3d 973, 978, 126 Cal.Rptr. 801, 544 P.2d 937.)

Petitioner next offers two excuses for "missing the deadline." He asserts that he was "ill and out of the office for a month and a half at the critical time late in 1980 [sic], when the statute of limitations ran out." He also attempts to shift...