Demain v. State Bar

• Decision Date: 29 October 1970
• Citation: 475 P.2d 652,90 Cal.Rptr. 420,3 Cal.3d 381
• Parties: , 475 P.2d 652 Sanford R. DEMAIN, Petitioner, v. The STATE BAR of California, Respondent. L.A. 29764.
• Court: California Supreme Court

Page 420

90 Cal.Rptr. 420

3 Cal.3d 381, 475 P.2d 652

Sanford R. DEMAIN, Petitioner, v. The STATE BAR of California, Respondent.

L.A. 29764.

Supreme Court of California In Bank.

Oct. 29, 1970.

Sanford R. Demain, in pro. per., and Harry B. Seelig, Los Angeles, for petitioner.

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

PER CURIAM.

This is a proveeding to review a recommendation of the State Bar of California that petitioner be suspended from the practice of law for a period of five years on conditions of probation, including actual suspension for the first six months, restitution within the first two yeats to one client of $4,097.05 wit interest, accounting for all client's funds handled, and compliance with specific conditions relating to a self-confessed alcoholic problem.

Petitioner was born in 1929 and was admitted in December 1957 to practice law in this state. His only prior disciplinary record was suspension for nonpayment of dues from December 19, 1968 to July 10, 1969.

The Yelm matter. Petitioner obtained a judgment on August 3, 1967, in favor of his client Miss Shirley Ann Yelm and on August 21 received a draft from the defendant's insurer payable to him and his client in the sum of $6,787.45, for the amount of the judgment and costs. He forged her name, converted the funds to his own use, and despite her frequent demands for her portion ($4,097.05) he failed and refused to make restitution. He admitted that in converting her money he was fully aware that he was using her funds for his own purposes without her consent and that this was dishonest. There was evidence not only that he withdrew the proceeds of this draft from his trust account shortly after it was deposited but that by early October he had overdrawn the account in the sum of $824.49 and had issued NSF checks against it.

The Wells matter. On December 8, 1967, petitioner obtained from deputy city attorney Jack L. Wells a transcript of the Los Angeles Police Department Board of Rights hearing concerning a client, upon his express promise to return the transcript on or before December 15. He did not return it until May 1969. Meanwhile on March 25, 1968, he knowingly and falsely represented to Mr. Wells that he had given the transcript to his Attorney Service for return to Mr. Wells. It was not until four months after petitioner was served with notice to show cause in this proceeding that he returned the transcript.

Petitioner stated that he could give no plausible reason why he didn't return the transcript sooner other than that he was drinking very heavily at that time and wasn't attending to things he was supposed to be doing.

The Terrell matter. Petitioner was retained on September 9, 1966, to represent Mrs. Lita H. Terrell in a divorce action. He filed the complaint on September 22, 1966, in Los Angeles Superior Court but made no attempt to serve the summons and complaint. It was found that apparently no summons had ever been issued. On two separate occasions he represented to Mrs. Terrell that her divorce was set for hearing and requested that she be present with her witnesses at the courthouse. The first time, sometime in the fall of 1967, she arranged to take the day off from work and just as she was about to leave the house petitioner telephoned her that the 'hearing' was postponed; the second time, about four months later, she appeared on the date requested but petitioner did not show up. She could not reach him by telephone at his office or home that day and he did not respond to telephone messages left by her. A court clerk checked the file for her and advised that no hearings had been set. She telephoned petitioner's office every day the following week, leaving her name and telephone number, but received no further communication from him. He had quoted her a fee of $275 plus court costs of about $36. His statements for services rendered were paid in full prior to April 15, 1967. He admitted that his appearance in court was not conditional upon his receiving the balance of his fee.

It was found that he knowingly misrepresented to his client the status of her action, failed and refused to communicate with her, failed to offer any excuse for his negligent action and misrepresentations, and failed to account for and pay over the funds received by him for which no work was performed, thereby converting same to his own use and device.

Petitioner admitted that he just neglected the Terrell matter. In response to the question 'With respect to Miss Terrell, I'm not certain that I understand, you contend that you told her to be in court for the time of her hearing because you were in an alcoholic state and didn't know what you were doing?', he replied, 'No, that's not my contention. I knew it was wrong.' He was then asked 'And the decision to tell her to be in court at the time you did when there was no trial set that was done during, if I can refer to it as a lucid moment, was it?' He replied 'It would be hard for me to say, sir, whether it was lucid or not. I really couldn't answer.'

The Murray matter. In April 1966 a Michigan attorney Mr. Allen J. Murray referred to petitioner an uncollected Michigan judgment in favor of a Mr. Paul B. Jones for $10,000 against a California resident. Petitioner obtained a credit report on the judgment debtor which he sent to Mr. Murray and on June 20 advised 'It appears that the prospects of collection are fairly favorable' stating that if the matter was to be carried further petitioner's fee would be 40% Of the recovery with a $100 retainer which would be applied against the proceeds. After receiving the $100 in July 1966 petitioner performed no further services. It was found that he wilfully took no action, filed no proceedings, failed to respond to inquiries from Mr. Murray, failed to advise his client, Mr. Jones, and converted to his own use the $100 fee.

Evidence in Mitigation. The charges were primarily proved by petitioner's own admissions. He concedes that the findings and recommendations are supported by the evidence. The only defenses offered by him were that during the times in question he was under great financial stress and was in the throes of a serious drinking problem. Prior to 1966 his financial circumstances were relatively good and although he was a heavy drinker he had his drinking under control. In February 1966 he became a part owner of a cocktail bar located near his office. It proved to be a losing business. He began putting everything he had into its operation, including Miss Yelm's money. He lost it in the summer of 1968 but received no proceeds. His drinking became worse. He developed strange fears. He neglected his law practice. He ignored letters sent to him by the State Bar and he made no effort to communicate with it or to explain his actions. He failed to reply to the notices to show cause until after the hearings were completed. He was cooperative at the hearings, admitted awareness of the wrongfulness of his conduct, and expressed his remorse.

In November 1968 he reached 'the bottom,' he testified, and then sought help. Prior to that time he had closed his office and attempted to practice out of his home. About the end of November he entered an alcoholic rehabilitation facility and remained there...