Himmel v. State Bar

• Decision Date: 10 May 1971
• Court: California Supreme Court
• Parties: , 484 P.2d 993 Harvey B. HIMMEL, Petitioner, v. STATE BAR of California, Respondent. L.A. 29733.

Page 825

94 Cal.Rptr. 825

4 Cal.3d 786, 484 P.2d 993

Harvey B. HIMMEL, Petitioner, v. STATE BAR of California, Respondent.

L.A. 29733.

Supreme Court of California,

In Bank.

May 10, 1971.

Rehearing Denied June 9, 1971.

Harvey B. Himmel, in pro. per., and Gerald G. Wolfson, Los Angeles, for petitioner.

F. LaMar Forshee, 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 that petitioner be suspended from the practice of law for one year on conditions of probation including three months' actual suspension. ¹

Petitioner, who was admitted to practice in 1952, was charged in a notice to show cause with forging the name of a client, Gloria Bowers, to a check, commingling her funds with his own, converting her funds, and knowingly making a false representation to her. An answer filed by petitioner denied the charges.

The Evidence

Gloria Bowers (who was then Gloria Murray) met petitioner around 1956. She subsequently saw him socially on various occasions, and he handled a domestic relations matter for her in 1957. Following an automobile accident in 1959 she retained him to represent her in an action for damages against Donald Howe. Petitioner filed a complaint in the Los Angeles Superior Court, and on August 12, 1963, a judgment was rendered in her favor for $5,885.46, of which her net share was $2,951.69. The day the trial ended she returned to her home in San Jose. Subsequently, on August 29, 1963, petitioner received in satisfaction of the judgment a $5,885.46 check payable to him and Mrs. Bowers. He endorsed, or caused to be endorsed, her name on the check and deposited it in a trust account. On the same day he withdrew $6,000 from the account and loaned the money to Clarion of North America, a corporation of which he was president and its attorney and in which he had a one-third interest. Had he not deposited the check in the account, the account would have been overdrawn over $5,000 by the withdrawal. Clarion, which was engaged in an import-export business, was formed in early 1963 and ceased to operate in 1966.

Petitioner admittedly did not have Written authority to endorse Mrs. Bowers' name on the check or to invest her funds in Clarion. The evidence is in sharp conflict, however, as to whether she Orally authorized him to do those acts. The evidence is also conflicting as to whether he subsequently made certain misrepresentations to her and her husband and as to several other matters.

Mrs. Bowers testified: She never told petitioner he could endorse her name on the check, nor did she authorize him to invest her funds, although she did ask his advice as to how to invest them. About a month or two after the trial she telephoned petitioner and asked if the money had arrived, and he replied 'No, it hasn't.' She told petitioner that she and her husband needed $300 for moving expenses, and petitioner stated that 'they were taking (her case) to a higher court, I think he said on appeal, or something like that.'

Following the conversation Mrs. Bowers received from petitioner in October 1963 a $300 check drawn on a trust account of petitioner. The check bore the notation 'On acct settlement proceeds Murray v. Howe' and was accompanied by a letter stating that the $300 check represents 'partial payment of your net recovery proceeds.' ²

In November 1963 Mr. Bowers wrote petitioner asking whether the judgment proceeds had been received and stating that the Bowers had found a home they wanted to make a payment on. He did not receive any reply.

Mrs. Bowers testified: In January 1964 by telephone she asked petitioner's secretary if there was 'anything new on my settlement,' and the secretary replied 'not that she knew of.' Mrs. Bowers inquired whether petitioner could 'advance' her enough money to make a down payment on a car. The secretary replied she would contact petitioner, and she subsequently told Mrs. Bowers that 'He says it's all right to advance you the money. * * *'

Shortly thereafter Mrs. Bowers received a $350 check drawn on a trust account of petitioner. The check bore the notation 'advance on Murray vs. Howe Settlement payment on account.' (Italics added.)

Mr. Bowers testified that in December 1964, after receiving a letter indicating a warrant for his arrest had been issued in connection with back child support payments, he telephoned petitioner and asked if there was a possibility of using Mrs. Bowers' settlement to make the back payments and that petitioner replied her case was 'on appeal.' Later, however, when asked whether petitioner ever told him personally that the case had been appealed, he replied 'I can't say for sure.' He further testified that during a subsequent telephone conversation he told petitioner of his intent to leave the state and that petitioner told him to keep in touch 'so that when the money came in (petitioner) could send it to (them).'

The Bowers moved to Texas about December 1964 and returned to California in late July or early August 1965. Mrs. Bowers testified that she did not remember whether they had contacted petitioner while they were in Texas, that during that period she had a miscarriage and was ill, and that they 'left the state on advice not to let it be known where we were' apparently because of the warrant for her husband's arrest.

Mrs. Bowers stated that it was upon her return to California that she first learned petitioner had received the money. According to the testimony of the Bowers, shortly after their return to California they visited petitioner at his office and inquired whether the settlement had arrived; he replied that it had and that, since he had not known where they were, he had invested the money in real estate at seven percent interest on a 30-day call. They said they wanted the money, and petitioner said it would take about 30 days to get it.

Petitioner did not deliver the money within 30 days but instead made payments to Mrs. Bowers as follows: September 10, 1965, a $50 check; September 22, 1965, a $250 check; October 8, 1965, a $1,000 check; October 13, 1965, a $1,000 check; March 18, 1966, a $227.14 check. ³ The checks were drawn on several trust accounts he maintained. None of the checks showed that the funds had been loaned to Clarion. The final payment was made after petitioner knew that Mrs. Bowers had filed a complaint with the State Bar.

Mrs. Bowers testified that shortly after receiving the $50 check she phoned petitioner and told him she needed more money. She thereafter received the $250 check together with a letter from petitioner stating 'Haven't yet received the payoff--but am enclosing another 'Partial pay' on the account to help you * * * out * * *.' According to Mrs. Bowers, she subsequently tried to call petitioner various times at his office but his secretary always said he was not in, and Mrs. Bowers received a $1,000 check after her mother, Mrs. Shell, phoned petitioner. Mrs. Shell testified that in the telephone conversation she informed petitioner that she had consulted her lawyer and that he had advised going to the State Bar. She said it was shortly after the conversation that Mrs. Bowers received the first $1,000 check.

Accompanying that check was a note by petitioner stating 'Herewith $1,000 on your investment. Eileen (his secretary) has gone--so full statement of account & balance of money will be forthcoming this next week--as promised * * *.' Although petitioner sent the second $1,000 check the following week, he did not include any 'full statement of account' as he had promised.

Several months later, in March 1966, he transmitted to Mrs. Bowers a 'Statement of Loan Investment Account' and 'Statement of Accounting.' Neither document showed to whom the funds had been loaned or with whom they had been invested.

Mrs. Bowers also testified that shortly before the State Bar preliminary hearing in March 1966 petitioner telephoned her and offered her more money if she would withdraw her complaint.

Petitioner's version of the facts was as follows: Mrs. Bowers gave him oral permission to sign her name and told him not to send the check to her home in San Jose because (1) her husband had problems with his ex-wife regarding child support and Mrs. Bowers did not want the recovery used for that purpose or her husband to know she had the money and (2) the Bowers had tentative plans to move to the Los Angeles area in the next month or so. Petitioner discussed various possible investments with Mrs. Bowers, she asked him to invest her money in Clarion, and he orally guaranteed the loan. ⁴ He conceded that neither he nor anyone on behalf of Clarion executed a promissory note in her favor and that such notes were given certain other persons who loaned money to Clarion.

Testimony by petitioner's wife, who was present during part of the conversations between petitioner and Mrs. Bowers, tended to corroborate his testimony regarding his oral authority to sign her name and invest her funds in Clarion, although some of her testimony indicated uncertainty as to what was said. Her testimony also corroborated her husband's that Mrs. Bowers did not want Mr. Bowers to know of the check.

Petitioner denied having told Mrs. Bowers that her case was being appealed or taken to a higher court. He stated that he told her during a telephone conversation in September 1963 that the money had arrived the prior month and had been loaned to Clarion but was payable on demand. According to petitioner, he inquired whether she wanted any of the money, and she replied that she did not but that she would probably want some of it later. The following month she requested $300 for moving expenses, and he sent her the money.

Petitioner further testified: On one occasion Mr. Bowers referred to the money from his wife's lawsuit as a possible source for back child support, and he told Mr. Bowers to talk to...