Geffen v. State Bar

Citation122 Cal.Rptr. 865,14 Cal.3d 843,537 P.2d 1225
CourtUnited States State Supreme Court (California)
Decision Date29 July 1975
Parties, 537 P.2d 1225 Mitchell GEFFEN, Petitioner, v. The STATE BAR of California, Respondent. L.A. 30339.

Rich & Ezer and Mitchel J. Ezer, Los Angeles, for petitioner.

Herbert M. Rosenthal and Stuart A. Forsyth, San Francisco, for respondent.

BY THE COURT

This is proceeding to review a recommendation of the Disciplinary Board of the State Bar (board) that petitioner be suspended from the practice of law in this state for six months. Petitioner was admitted to practice law in 1962, and he has no prior record of discipline.

In a notice to show cause, petitioner was charged with soliciting professional employment, through an employee, Fred Lieberman, in two separate matters (Warwick and Tavernakis) in violation of rules 2 and 3 of the Rules of Professional Conduct (Bus. & Prof.Code, foll. § 6076). 1 A third count did not expressly charge that Lieberman had solicited professional employment from the prospective client there involved (Wright), but did charge that Lieberman contacted her and obtained her signature on petitioner's retainer agreement.

The local administrative committee unanimously found that petitioner's conduct with respect to the alleged solicitations (Warwick and Tavernakis) constituted a wilful violation of the rules, and recommended that petitioner be publicly reproved. The local administrative committee further found: 'In the opinion of the Committee, (petitioner) has not shown, either before or after the proceedings before Special Local Administrative Committee No. 1 for the County of Los Angeles, due regard for his obligations and responsibilities under the California State Bar Act and the Rules of Professional Conduct insofar as they pertain to the question of solicitation of business. In his attitude before the Committee, as well as in his testimony itself, he has demonstrated, in the opinion of the Committee, that he has not taken seriously the charges against him.'

Petitioner filed a conditional acceptance of the local administrative committee's recommendation, but the board unanimously rejected it and directed that a transcript of the proceedings before the committee be prepared. The board then unanimously adopted new findings of fact and recommended, by a vote of nine to four, that petitioner be suspended for six months. Three of the four dissenting members recommended a suspension of only three months.

The new findings of fact adopted by the board incorporated those of the local administrative committee and, in addition, findings that (1) petitioner knew of Lieberman's solicitations of Miss Warwick and Mrs. Tavernakis; (2) Lieberman contacted Mrs. Wright and solicited professional employment on behalf of petitioner pursuant to a common scheme or design; and (3) 'Lieberman's activities were carried on with (petitioner's) knowledge, acquiescence and consent, and pursuant to an established scheme or design.'

Petitioner has been practicing in the Los Angeles area and since 1965 has been a member of the firm of Mizrahi & Geffen, which has offices on Wilshire Boulevard in Los Angeles and in Gardena. Mr. Mizrahi practiced from the Wilshire office, and petitioner practiced from Gardena. Petitioner handled many workmen's compensation, divorce, and criminal law matters and was out of the office a great deal. He apparently felt that because he was in his office for such brief periods of time each day and was unable to return promptly calls received in his absence, he was losing much potential law business.

In the latter part of 1969, the firm employed Frederick Lieberman on a part-time basis at $5 an hour to investigate accidents, take photographs, and perform related duties. Lieberman was then working as a salesman. He at first worked out of the Wilshire office under the supervision of Mizrahi, who gave him his initial instructions. Lieberman had taken some business law courses at college, but he was not a college graduate, had never before worked in accident investigation, and had never studied law.

A few months later, Lieberman was transferred to the Gardena office to assist petitioner and to perform the duties of office manager at a salary of $850 per month. 2 His instructions were 'to return all calls for any attorneys that are out of the office.' According to petitioner, the only reason Lieberman was put on a fulltime basis was to take care of telephone calls.

Petitioner testified that he would take calls when he was in the office; that Lieberman would take them in petitioner's absence; and that if both he and Lieberman were out, one of the secretaries would enter the incoming calls on a 'phone sheet,' and Lieberman would return the calls later. Petitioner's instructions to the secretaries were to 'write down the calls on the sheet.' The secretaries would then list the name of the attorney called, the name and telephone number or address of the person to be called, and sometimes a message. No effort was made to show whether the person who placed the call to petitioner's office was the person to be called.

Lieberman tried to set up appointments with the prospective clients with whom he talked. When seeing a prospective client, he would have with him retainer agreement forms, medical authorization forms, and 'fact sheets,' on which he wrote certain pertinent information to be used by the attorneys in preparing the case.

Warwick Solicitation

The first count of the notice to show cause charged petitioner with soliciting, through Lieberman, Maralee Warwick, who had been involved in an automobile accident on April 22, 1970. The police were not called to the scene of the accident, but Miss Warwick reported the accident to her insurance carrier the next morning. She was taken to the Orthopaedic Hospital for X-rays the day after the accident occurred. She did not recall talking with anyone at the hospital except the doctor who attended her.

That evening she received a telephone call from Lieberman. She did not know either Lieberman or petitioner and had never heard of petitioner's law firm. She had an unlisted telephone number and she did not know how Lieberman had obtained it. Lieberman told her that he was an investigator for petitioner's law firm and understood she had been in an automobile accident. When Miss Warwick asked how he knew about it, he was rather vague but indicated that someone at the hospital may have told him. He suggested that Miss Warwick see a certain doctor, who, he said, would prescribe heat treatments, which were 'fun.' After Miss Warwick told Lieberman that she did not intend to see the doctor he recommended (she was covered by the Kaiser medical plan), Lieberman told her that she could make at least $1,000 after payment of her medical and legal fees; and he asked her to let him come out at once to have her sign a retainer agreement. She told him, however, that she would not sign anything without consulting someone.

Although Lieberman, when testifying, claimed he could not remember what he had said to Miss Warwick, he did admit that it was possible he had suggested that she retain petitioner's law firm. Two days after the accident, Lieberman called again to see if Miss Warwick would sign a retainer, but she refused. She heard nothing further from either Lieberman or petitioner's law firm.

Wright Solicitation

Mrs. Vinader Wright were injured in an automobile accident on May 7, 1970. She was taken to Orthopaedic Hospital by ambulance and was examined and X-rayed there. After going home she telephoned her insurance agent and left a message that she had been in an accident. $The next morning, Lieberman called at Mrs. Wright's home without having been asked to do so. Mrs. Wright assumed that the insurance agent (with whom she had not yet spoken) had sent him when he received her message. Lieberman asked her to sign certain papers allegedly necessary for an investigation. She did not have her glasses on and was unable to read the papers, but she signed anyway, since she thought that Lieberman had been sent by the insurance agent. Lieberman did not explain to her that by signing the papers she was retaining petitioner's law firm to represent her in connection with the accident, and he did not give her a copy of the retainer agreement.

The following day, Mrs. Wright received from petitioner's office a form letter thanking her for selecting the firm to represent her and giving her various instructions on steps to be taken. When she received this letter, she telephoned her insurance agent and learned that he had not sent Lieberman to see her. A few days later, Lieberman telephoned Mrs. Wright and informed her that he was employed by petitioner's law firm. She told him she did not want an attorney, and she later wrote a letter to the firm to that effect.

During Lieberman's visit to her home Mrs. Wright had mentioned that Dr. Kaufman was her personal physician. After Mrs. Wright notified petitioner's law firm that she did not want to be represented by an attorney at that time, Lieberman telephoned Dr. Kaufman. Mrs. Wright was in the doctor's office at that time, and the doctor had Mrs. Wright talk with Lieberman. She again told him that she did not then want the services of an attorney. She had not further contact with Lieberman or the firm.

A client's file was opened in Mrs. Wright's name, since petitioner considered that she had retained him. The file was not available at the time of the hearing, both Lieberman and petitioner testifying that it had probably been inadvertently destroyed as trash when the office had been remodeled. The remodeling occurred in 1972 after petitioner had been notified that Mrs. Wright had filed a complaint against him with the State Bar.

Tavernakis Solicitation

On June 10, 1970, Margaret Elizabeth Tavernakis was injured in an automobile accident and was rendered unconscious for a short time. She was...

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9 cases
  • Matter of James
    • United States
    • D.C. Court of Appeals
    • 21 Octubre 1982
    ...scienter requisite to a disciplinary code violation can be inferred from respondent's conduct. See Geffen v. State Bar of California, 14 Cal.3d 843, 122 Cal.Rptr. 865, 537 P.2d 1225 (1975) (knowledge of employee's improper solicitations); In re Vincent, 347 N.E.2d 40 (Ind. 1978) (intent to ......
  • Davis v. State Bar
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    • California Supreme Court
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    ...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 testimon......
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    • 11 Octubre 1977
    ...burden of demonstrating that the board's findings are unsupported by the evidence rests upon petitioner (Geffen v. State Bar (1975) 14 Cal.3d 843, 852, 122 Cal.Rptr. 865, 537 P.2d 1225); although petitioner claims the board's findings that he commingled and misappropriated clients' funds fi......
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    ...to sustain the burden of showing that the State Bar's findings are not supported by the evidence. (Geffen v. State Bar (1975) 14 Cal.3d 843, 852, 122 Cal.Rptr. 865, 537 P.2d 1225.) While we must independently reconsider the evidence, we give great weight to the findings below when based on ......
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