Heavey v. State Bar, S.F. 23319

• Decision Date: 19 July 1976
• Docket Number: S.F. 23319
• Citation: 551 P.2d 1238,131 Cal.Rptr. 406,17 Cal.3d 553
• Court: California Supreme Court
• Parties: , 551 P.2d 1238 Edward Emmett HEAVEY, Petitioner, v. The STATE BAR of California, Respondent.

Page 406

131 Cal.Rptr. 406

17 Cal.3d 553, 551 P.2d 1238

Edward Emmett HEAVEY, Petitioner, v. The STATE BAR of California, Respondent.

S.F. 23319.

Supreme Court of California.

July 19, 1976.

Joseph I. McNamara and Roy C. Hall, San Francisco, for petitioner.

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

BY THE COURT.

We review here a recommendation of the Disciplinary Board of the State Bar that petitioner be suspended for one year, on conditions of probation but with no actual suspension. Petitioner was admitted to practice law in California in 1943 and has no prior discipline record.

Petitioner is charged with three counts of misconduct: misappropriating clients' funds and commingling them with his own; ¹ writing to a judge on the merits of a pending case without furnishing a copy of the letters to opposing counsel; ² and engaging in offensive personality, coupled with a lack of respect for a judicial officer. ³

The charges arose out of two separate incidents. In the first, petitioner negotiated a $5,600 personal injury damage settlement on behalf of three clients, and deposited the money in a trust account. He deducted his fee and paid his clients from the settlement fund, but whthheld $353.65 in order to satisfy a claim by a doctor for treatment of one of petitioner's clients.

Petitioner issued a check to the doctor, but because of a misplacement in the mails the physician did not receive the check for almost a year. During the period prior to the doctor's receipt of the check, the balance in petitioner's trust account fell below $353.65 several times. Indeed, on 13 different occasions the account was overdrawn.

In addition, petitioner admitted that from time to time he used funds from the trust account to pay personal business expenses. He replenished the account not only with personal funds, but also with proceeds of settlement funds belonging to other clients.

The other matter revolved around petitioner's representation of a plaintiff in a wrongful death action. While the case was proceeding to trial, attorneys for the defendants submitted a single interrogatory. Following prolonged failure by petitioner's client to answer the interrogatory, even after being ordered to do so by the court, Judge Ira A. Brown of the Superior Court dismissed the action.

Shortly thereafter, petitioner, on behalf of his client, filed the one-word answer 'no' to the interrogatory, and moved to vacate the dismissal. Judge Brown ordered the dismissal vacated on condition that petitioner personally pay to the defendants $600 in attorneys' fees and costs.

Petitioner thereupon embarked on a letter-writing campaign to convince Judge Brown to annul the $600 penalty. In all, petitioner sent the judge four letters asking for relief. In no instance did he send a copy of the letters to opposing counsel.

While the first communication was worded cautiously, petitioner's remarks became more intemperate in succeeding letters. In the the third letter, for example, he labeled the judge's ruling a 'savage reprisal,' and impliedly threatened to campaign against him in the next election. The final letter began with the salutation 'Your Majesty,' and stated in part, 'I have explained to you in careful detail that this penalty involves taking food from the mouths of may little children. I am unable to comply with your edict. Your intransigence in this matter strongly suggests the valor common to draft dodgers.'

In addition to the private letters to Judge Brown, petitioner also wrote to a state senator, sending a copy of the letter to the judge. In that letter he declared he would be unable to contribute to the senator's political campaign because of the judge's ruling, and referred to the 'rude insulting, hostile manner of Judge Brown at the hearing.'

The court rejected all of petitioner's entreaties, and two motions to vacate the order assessing the penalties--on the ground of personal financial hardship to petitioner--were denied. According to a finding of the local administrative committee, petitioner's client suffered no harm from petitioner's refusal to pay the $600 as a condition to vacating the dismissal, because a companion case involving the same accident resulted in a jury verdict which was 'res judicata as far as the subject case (is concerned).'

We turn now to a review of the board's recommendations, nothing initially that the burden is on the petitioner to show that the board's recommendation is erroneous or unlawful. (Taylor v. State Bar (1974) 11 Cal.3d 424, 429, 113 Cal.Rptr. 478, 521 P.2d 470; Sevin v. State Bar. (1973) 8 Cal.3d 641, 645, 105 Cal.Rptr. 513, 504 P.2d 449.) Petitioner's only defense to the commingling charge is that no client has ever lost money because of petitioner's improper use of the trust fund. In making this argument, however, he misconstrues the nature of the present proceeding. Actual financial detriment to a client is not the crucial element in a disciplinary proceeding, which seeks to determine not the extent of the damage caused by the attorney but whether his conduct was unprofessional. (Zitny v. State Bar (1966) 64 Cal.2d 787, 792--793, 51 Cal.Rptr. 825, 415 P.2d 521; see also Sodikoff v. State Bar (1975) 14 Cal.3d 422, 431, 121 Cal.Rptr. 467, 535 P.2d 331.)

This point is particularly significant with regard to a violation of rule 9. As we have stated before, the prohibition against commingling was adopted 'to provide against the probability is some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of clients' money.' (Peck v. State Bar (1932) 217 Cal. 47, 51, 17 P.2d 112, 114.) That no harm may result from commingling in a particular case is mere fortuity. An attorney who, like petitioner, spends trust fund money for his personal use, runs the risk that an unexpected contingency--such as a sudden illness--will prevent him from replenishing the fund. And, 'as far as the client is concerned the result is the same whether his money is deliberately misappropriated by an attorney or is unintentionally lost by circumstances beyond the control of the attorney.' (Ibid.) Thus, neither good faith nor restitution is a defense to a commingling charge. (Silver v. State Bar (1974) 13 Cal.3d 134, 145, 117 Cal.Rptr. 821, 528 P.2d 1157; Sevin v. State Bar (1973) supra, 8 Cal.3d 641, 646, 105 Cal.Rptr. 513, 504 P.2d 449.) The board properly found that petitioner's activities constituted a violation of former rule 9.

We also agree with the board that petitioner is culpable for failing to send to opposing counsel copies of the letters written to Judge Brown. Petitioner asserts that former rule 16 did not require him to do so because the messages did not concern 'the merits of a contested matter.' He claims the letters 'contained no reference to the issues involved in the case,' and, as the suit had been dismissed by the court, there was no longer a contested matter.

Petitioner misconstrues both the status of the subject case and the rationale behind former rule 16. At the time he wrote the letters to the judge, the issues in the case involved not only questions of liability for the death of the plaintiff's husband, but also the validity of a dismissal ordered because of petitioner's failure to respond to the defendants' single interrogatory. Thus, petitioner's letters arguing that the dismissal should be unconditionally vacated clearly concerned the merits of the case, which were still being contested.

Equally important, petitioner violated the spirit as well as the text of rule 16. Like rule 12, which prohibited an attorney from communicating with an opposing party in the absence of the party's counsel, rule 16 'was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role.' (Mitton v. State Bar (1969) 71 Cal.2d 525, 534, 78 Cal.Rptr. 649, 654, 455 P.2d 753, 758.) It is, in essence, a rule of fairness meant to insure that all interested sides will be heard on an issue. Where petitioner wrote his first letter to the judge, he knew or should have known that the defendants and their counsel would be interested in any request to vacate a dismissal and an order requiring payment to them of $600. Any doubt he may have had should have been resolved when Judge Brown wrote back to him, 'Since your letter does not indicate that a copy was sent to opposing counsel, I am sending them a copy of your letter together with this one.' In reply ...