Emslie v. State Bar

• Decision Date: 15 April 1974
• Citation: 520 P.2d 991,113 Cal.Rptr. 175,11 Cal.3d 210
• Court: California Supreme Court
• Parties: , 520 P.2d 991 William G. EMSLIE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 30177.

Page 175

113 Cal.Rptr. 175

11 Cal.3d 210, 520 P.2d 991

William G. EMSLIE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 30177.

Supreme Court of California In Bank.

April 15, 1974.

Gerald G. Reppetto, 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 of the State Bar of California that William G. Emslie be disbarred, based upon findings that he wilfully violated his oath and duties as an attorney at law by the commission of acts involving moral turpitude and dishonesty (Bus. & Prof.Code, §§ 6103, 6067, 6068, 6106) ¹ in other than a professional capacity, namely, by burglarizing certain hotel rooms in the City of Las Vegas, Nevada, in May 1969, taking jewelry and other property from those hotel rooms, and selling said property or converting it to his own use.

Emslie was admitted to practice law in this state in 1961. This is the second disciplinary proceeding against him. He is currently on five years' probation, with two years' actual suspension, by order of this court entered January 10, 1972; the period of actual suspension extended to February 1, 1974; the probationary period to February 1, 1977. (Bar Misc. 3442 (L.A. Nos. 1969, 1970, 1972).) ² When the above order was made this court was not aware of the aggravated misconduct revealed by the present record.

There was substantial oral and documentary evidence to support the findings of the disciplinary committee. These may be summarized as follows: For six months prior to May 29, 1969, there had been numerous burglaries following the theft of room keys at swimming pools of hotels in the Las Vegas, Nevada, area; on May 29, 1969, Emslie was observed picking up a key from the swimming pool area at Caesar's Palace Hotel, where he was not a registered guest; he was apprehended by hotel security officers who found eight hotel room keys in his pockets; they called the sheriff's office. Deputy sheriff John Davis made the arrest, giving Emslie his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694). Emslie consented to a search of his room at the Rodeway Inn. Found in that room were numerous items of jewelry, radios, binoculars, cameras, and similar items of personal property. Also found were credit cards and a driver's license in the name of Barnard Bitterman, part of the contents of a wallet reported stolen in a recent room burglary at Caesar's Palace. Emslie claimer that he had no car but the manager of the Rodeway Inn gave them a description of Emslie's car, which was found in the parking lot at Caesar's Palace Hotel. The arresting officers believed that they would find items incidental to the burglary arrest in the car and that this evidence might be removed by someone under Emslie's orders. They had the car towed to the sheriff's impound lot where it was searched without a warrant and was opened with Emslie's keys after he was booked. The trunk of the car contained miscellaneous tools and 52 keys to rooms in local hotels. Sheriff's Detective Blumberg, assigned to hotel and motel burglaries, was present at the search. It was discovered that nine of these keys were to rooms involved in recent burglaries.

The following day, after advising Emslie of his Miranda rights, Blumberg interviewed Emslie. Emslie told him he did not want an attorney present, that he had burglarized a number of hotel rooms and had taken jewelry and other property from them, that he had sold these as estate property to a jeweler named Prager in Las Vegas, whom he had previously known in Los Angeles, and that in Los Angeles Prager had told him he was interested in buying estate jewelry. Blumberg reviewed his list of crime reports and missing property reports with Emslie as to the nine rooms to which Emslie had keys. Following this conversation Blumberg prepared an affidavit for search warrant addressed to Prager Jewelers, listing specific items involved in two of the rooms which Emslie had admitted burglarizing. Prager gave the officers additional items not listed in the affidavit for search warrant which he said he had received from Emslie. Blumberg went over with Emslie about one-third of these items and Emslie identified some of them with specific hotel rooms he had burglarized. A criminal complaint was filed in the justice court of Las Vegas Township charging Emslie with two counts of burglary, a felony, on June 4, 1969; on June 18 Emslie was released on his own recognizance; he was told by his attorney that he was released on condition that he seek psychiatric assistance, which he has done; and on November 27, 1970, on motion of the district attorney's office in Las Vegas, the criminal charges were dismissed because of insufficient evidence.

The disciplinary board adopted the above findings, adding a finding that Emslie entered certain hotel rooms without permission, took jewelry and other property from those hotel rooms, and sold said property. It recommended that Emslie be disbarred and in making this recommendation took into consideration the record in the prior State Bar disciplinary proceedings against Emslie (Bar Misc. 3442, supra).

Petitioner denied the charges against him and moved to suppress evidence in the disciplinary proceeding. He testified that he was innocent of any wrongdoing, denied that he had unlawfully entered any hotel rooms in Las Vegas, denied that he had in his possession keys to hotel rooms in which he was not registered and denied that he ever removed property of other persons from hotel rooms without their consent. He denied having made the claimed admissions. He admitted that immediately prior to the period in question he had been gambling and losing heavily in Las Vegas; that he had a habit of giving money to gamblers who were down on their luck, and that to help them out he had bought from them items of jewelry knowing that he could always sell them for a few dollars each. He admitted having neglected his family and law practice during that period and that he had committed the acts charged in the prior disciplinary proceedings (Bar Misc. 3442).

Motion to suppress evidence was made on the grounds that he had been illegally seized, searched, handcuffed and detained by the hotel security officers; that he was illegally arrested by deputy sheriff Davis without a warrant and without probable cause on the 'hearsay' statements of the hotel security officers; that he had not consented to the search of his room or of the car; and, by implication, that the articles found in his room and in the trunk of his car may have been implanted by the officers or others ³ in an attempt to frame him.

Emslie contends that he did not receive a fair hearing, that the findings of fact are not supported by clear and convincing credible evidence, that he was denied protection of constitutional guarantees of due process, and that the recommendations of the disciplinary board are therefore erroneous and unlawful.

Scope of Review.

] The burden is upon one seeking a review of a recommendation of disbarment to show wherein the decision is erroneous or unlawful (Bus. & Prof.Code, § 6083, subd. (a)(c)) or that its findings are not supported by the evidence. (Mosesian v. State Bar(1972) 8 Cal.3d 60, 63, 103 Cal.Rptr. 915, 500 P.2d 1115.) Findings of fact in such proceedings are not binding upon this court; although they are afforded great weight it is the duty of this court to independently examine the record, reweigh the evidence and pass on its sufficiency. (Millsberg v. State Bar (1971) 6 Cal.3d 65, 68, 98 Cal.Rptr. 223, 490 P.2d 543.) In this determination all reasonable doubts will be resolved in favor of the accused and if equally reasonable inferences may be drawn from a proven fact, the influence which leads to a conclusion of innocence rather than one leading to a conclusion of guilt will be accepted. (Himmel v. State Bar (1971) 4 Cal.3d 786, 793--794, 94 Cal.Rptr. 825, 484 P.2d 993; Ashe v. State Bar (1969) 71 Cal.2d 123, 133, 77 Cal.Rptr. 233, 453 P.2d 737.) In this meeting this burden the petitioner must demonstrate that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty. (Himmel v. State Bar, supra, 4 Cal.3d at p. 794, 94 Cal.Rptr. 825, 484 P.2d 993.)

] Where credibility of witnesses is is issue this court will give great weight to the findings of the local administrative committee which saw and heard them. (Ridley v. State Bar (1972) 6 Cal.3d 551, 559, 99 Cal.Rptr. 873, 493 P.2d 105.) This court is reluctant to reverse the decision of the committee where the findings are based primarily on testimonial evidence or where they resolve conflicts in the evidence. (Lee v. State Bar (1970) 2 Cal.3d 927, 940, 88 Cal.Rptr. 361, 472 P.2d 449.) Although we give great weight to the local committee's findings that resolve conflicts in the testimony both the board and this court reach an independent judgment on the record before it. (Bernstein v. State Bar (1972) 6 Cal.3d 909, 916, 101 Cal.Rptr. 369, 495 P.2d 1289.) There were some minor conflicts as between the officer's testimony and the official records produced by them. There were some inconsistencies in Emslie's own statements. His testimony was in the most part directly in conflict with that given by the officers. This conflict was resolved adversely to him. We find no error in this regard.

Fairness of the Administrative Hearing.

9] The disciplinary hearings were properly held in the County of Los Angeles, where Emslie lived and where he had his office at the time the hearings commenced. (Rule 10, Rules of Procedure of the State Bar (Bus. & Prof.Code, foll. § 6087).) The witnesses whom Emslie now contends should have been produced lived in Las Vegas, Nevada. The disciplinary committee may issue subpoenas to compel attendance of witnesses within the state (§ 6085) but it...