Jones, In re

• Decision Date: 05 August 1971
• Court: California Supreme Court
• Parties: , 487 P.2d 1016 In re Arthur Vernon JONES on Disbarment. L.A. 29815. In Bank

Page 448

96 Cal.Rptr. 448

5 Cal.3d 390, 487 P.2d 1016

In re Arthur Vernon JONES on Disbarment.

L.A. 29815.

Supreme Court of California,

In Bank.

Aug. 5, 1971.

Richard W. Petherbridge and Robert H. Green, Santa Ana, for petitioner.

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

PER CURIAM.

Respondent, a member of the State Bar since his admission to practice in 1931, was convicted in April 1966 of subornation of perjury (Pen.Code, § 127), and offering false evidence (Pen.Code, § 132). Motions for new trial and probation were denied and he was sentenced to state prison on each count for the term prescribed by law, sentences to run concurrently. ^{1 1} Convictions were affirmed. ² He was incarcerated at the California Institution for Men at Chino from January 3, 1968, to January 3, 1969; served 14 months thereafter on parole; and was discharged from parole in 1970.

On June 29, 1966, respondent was suspended from the practice of law until further order of this court. On June 19, 1968, this court referred the matter to the State Bar for hearing, report and recommendation as to the nature and extent of discipline to be imposed (Bus. & Prof.Code, § 6101, 6102). ³ Respondent, represented by his trial counsel, continued to maintain his innocence and offered evidence in mitigation, including so-called 'newly-discovered' evidence (Special Exhibit A). ⁴ The Disciplinary Board, with minor changes, adopted the special administrative committee's findings ⁵ that there was no mitigating evidence and that there was no prior disciplinary record. By a 10-to-5 vote it adopted the recommendation of disbarment.

The dissenting board members thought that the degree of discipline recommended was too severe. Four of them thought that the matter should be re-referred to the committee to consider Special Exhibit A and the matters referred to during oral argument by respondent and his counsel before the board. Three of the majority members requested that the record show their vote was based upon the conclusion that under the terms of the reference guilt is conclusively presumed and therefore the findings and proposed discipline are justified by the record; that if there is reasonable doubt as to his guilt, arising from the 'newly-discovered' evidence or otherwise, this should be the subject of proceedings in an appropriate Court, not before the State Bar, and that the mere possibility of such other proceedings should not affect the action of the board.

The reference report, transcripts and recommendation were filed in this court on August 21, 1970. On September 21 respondent requested an extension of time within which to file 'petition for review,' stating that the attorney who had represented him on the appeal (and in the disciplinary proceedings) would not return from Europe until after October 21, 1970,--the last day of the 60-day period provided by rule 59, California Rules of Court, for such review. He was advised by the clerk that the 30-day period under rule 951(d) (Rules for Disciplinary Proceedings on Attorney's Conviction of Crime) was applicable and that 'without intending to indicate that the thirty-day requirement in rule 951(d) is or is not jurisdictional' if he planned on filing objections he should do so promptly. He secured new counsel and filed objections and supporting brief on October 15, 1970.

Questions: First. Is the 30-day period prescribed by rule 951(d) jurisdictional?

No. Rule 951, California Rules of Court, was adopted pursuant to section 6102(e), Business and Professions Code, for referral proceedings following conviction of a crime involving moral turpitude. It provides that within 30 days after filing of the report and recommendation by the State Bar the attorney May file with the court written objections thereto, with a supporting brief. Rule 59, adopted pursuant to section 6083 relating to original disciplinary proceedings provides that a petition to review a decision of the State Bar recommending disbarment or suspension Shall be filed within 60 days after the decision complained of has been filed with this court. That period is not jurisdictional. Section 6084 provides that when no petition has been filed this court 'shall make such order as it deems proper in the circumstances.' ⁶ Rule 45(e) expressly states the power of the court to relieve from default for failure to comply with the rules. (See generally 1 Witkin, Cal.Proc. (2d ed.) pp. 397--403.) Respondent was apparently confused as to the appropriate rule; the matter has been pending since June 29, 1966; all the requisite procedures have been followed with the exception of strict adherence to rule 951(d); objections were filed within 55 days. It is proper under the circumstances to waive any default in the timely filing of the objections of respondent.

Second: Is the recommendation for imposition of discipline by this court premature?

No. The 'newly-discovered' evidence (hereinafter discussed) was presented to and was fully considered by the special administrative committee. Respondent was given continuances to call witnesses and to initiate whatever legal steps he desired. He was advised by the Disciplinary Board of the committee's recommendation, was advised that he could file an application for the presentation of additional evidence or for a hearing De novo or both, and was requested to file a statement in support of or in opposition to the report of the committee. In seeking a hearing and a continuance before the board he made no request for a re-referral or for a hearing De novo and he presented no evidence. He did not file a statement regarding the committee report. His counsel discussed various legal procedures for attacking a criminal conviction. Respondent's counsel subsequently concluded that the only procedure available was an application for a pardon. His application dated February 12, 1970, was not successful. ⁷

The facts upon which the convictions were based are stated in People v. Jones, supra, 254 Cal.App.2d 200, 205--212, 62 Cal.Rptr. 304. It is sufficient to note here that respondent represented Laurence Boothe and Donald Franklin, a real estate broker, in civil actions consolidated for trial against William Kachig for damages for breach of an agreement to exchange real estate and for recovery of commissions, respectively. In issue was whether a binding agreement had been reached. Respondent offered into evidence the original or ribbon copy of a typewritten letter which purported to have been written, dated and signed on April 22, 1962, by Boothe and which stated his 'irrevocable agreement' to Kachig's terms and conditions. ⁸ The only other written agreements offered were an exchange agreement signed by Kachig and unilaterally altered by Boothe on April 2, 1962, and escrow instructions written in June 1962 signed by Boothe only.

Boothe testified that he wrote and signed the April 22, 1962, letter on the date shown. Franklin testified that he received it in April 1962. Robert Sisko, Franklin's agent, testified that he communicated its contents to Kachig in April 1962. Kachig testified that he never saw or heard of the letter. Judgments totaling over $11,000 were rendered against him. Boothe, who received a judgment for only $100 nominal damages, engaged respondent to represent him on an appeal. While the appeal was pending Kachig commenced an investigation which resulted in criminal charges being filed against respondent, Boothe, Franklin and Sisko. Boothe and respondent's former secretary Mrs. Voeth testified for the prosecution. Franklin and Sisko were acquitted.

Subsequent to respondent's convictions Kachig filed a civil action against respondent, Boothe, Franklin and others for recovery of the $11,000 judgment which had been obtained against him by perjured testimony plus $300,000 general and punitive damages. This action was pending during the disciplinary proceedings (Orange County Superior Court No. 147131). ⁹ Because of a deposition made by Boothe in that action, respondent subpoenaed Boothe to testify before the special administrative committee and he offered in evidence a Xerox copy of a carbon copy of a type-written letter dated April 22, 1962, ¹⁰ purportedly written on that date by Boothe to Sisko. He testified that this was a carbon of the original letter of April 22, 1962, which was in his file when he lent it to Boothe in 1963. He explained that after Boothe told him he had lost this letter Boothe brought him some yellow legal paper with writing on it, saying that was what he had written and that it was the same In substance as the original; that he told Boothe that that would not be considered a true copy, that he would have To recompose a letter from that, that Boothe should either look for the original or, if he had a carbon or a Xerox copy that could be substituted; and thereafter his secretary told him that Boothe had returned the original. Respondent contended that the two letters were similar in substance although admittedly not identical. He did not satisfactorily explain why he did not recognize earlier, or did not advise the court, that the letter offered in evidence was not a duplicate of the original of the letter upon which he was relying to show a bilateral agreement, nor why he did not lay a proper foundation for his clients' testimony as to the letter so offered.

Nor did respondent explain the patent differences between the two letters. The letter offered at the civil trial was written in formal, legal style, was addressed to Franklin as a real estate broker, and it purported to constitute an unequivocal acceptance of Kachig's terms and conditions. Special Exhibit A is nonlegal in style, is addressed to Sisko personally, does not mention him as a real estate broker, and is precatory rather than emphatic in its terms. Respondent knew from his long experience as an attorney and in real estate matters that an unequivocal...