Magee v. State Bar of Cal.

• Decision Date: 27 September 1962
• Citation: 374 P.2d 807,58 Cal.2d 423,24 Cal.Rptr. 839
• Court: California Supreme Court
• Parties: , 374 P.2d 807 Edward Howard MAGEE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. S. F. 21037.

Page 839

24 Cal.Rptr. 839

58 Cal.2d 423, 374 P.2d 807

Edward Howard MAGEE, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

S. F. 21037.

Supreme Court of California.

Sept. 27, 1962.

Charles Reagh, San Francisco, for petitioner.

Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Petitioner challenges a finding by the Board of Bar Governors that he abused the confidence placed in him by an aged client, Mary Rohde, in drawing a will naming him the residuary beneficiary of her estate and in accepting a substantial cash gift from her. The Board recommended that he be suspended from the practice of law for two years. ^*

The Board's finding followed two hearings by a local administrative committee. The committee twice concluded that petitioner obtained the testamentary gift and the inter vivos gift by undue influence, emphasizing that he had 'gained an advantage over his client' and that he presented 'no substantial evidence * * * to show that these transactions were fair and just.' In its findings, the Board does not mention undue influence, but states: 'Respondent (petitioner) knew or reasonably should have known that (the gifts) * * * were unnatural dispositions and that said acts of Mary Rohde were caused by her advanced age and impaired mental facilities. Respondent's acts and omissions in said transactions as herein found constituted an abuse of the confidence of his client * * *.' The Board's findings will nevertheless be viewed in the light of the entire record, including the conclusion of the local committee that petitioner unduly influenced his client for his own benefit.

Petitioner was admitted to practice in 1930. He met Mrs. Rohde, who was a friend of his mother, at a meeting in 1941 of the Auxiliary of Miles Camp, Spanish American War Veterans. Between 1941 and 1949 petitioner had only brief conversations with Mrs. Rohde several times a year at functions of the veterans' organization. After the death of her husband in 1949, Mrs. Rohde consulted petitioner for assistance in applying for a government pension. He did not see Mrs. Rohde again until October 16, 1951, when the will was drawn.

Mrs. Rohde was then 81 years old, in declining health, and dependent upon friends and neighbors for assistance. There was testimony that she stated to those helping her that she would remember them in her will and that she stated in 1949 that she had made a holographic will that carried out a testamentary plan that she had agreed upon with her late husband.

Before consulting petitioner on October 16, 1951, Mrs. Rohde had arranged for the sale of her home. The deed was to be recorded on the day she came to his office, and the Board found that 'one purpose' of her visit was to discuss the sale. On this point there is a direct conflict in the evidence, for petitioner asserted that no mention was made to him of the home until some days later. John Moss, a real estate broker, testified, however, that he was certain that petitioner called him about the sale on the 16th. Regardless of the initial purpose of her visit, Mrs. Rohde on that date executed a formal will that made three $1,000 bequests to charities, left $500 to a neighbor, and left the residue of her estate to petitioner, who was also to serve as executor.

Petitioner's testimony is the only direct evidence of what occurred during the 10 to 15 minutes he was alone with Mrs. Rohde in his office. He stated that they had a few moments of pleasant conversation and that she then told him how she wished to dispose of her estate. He took notes of her wishes, including her wish to make him the residuary legatee. He asked her why she wished to give him the residue, and she stated that she had no relatives, that he and his mother had been good to her, and that she was fond of him. He admitted that except for suggesting a gift to the neighbor who had riven Mrs. Rohde to his office, he did not ask about any other obligations she might have. He also testified that at the time he did not know the size of her estate, the residue of which was ultimately valued at $21,000.

Petitioner gave his notes to his secretary, who prepared a typewritten draft of the will. He then asked Mr. H. W. Ott, an office associate, to be a witness to the will, but Mr. Ott declined, stating that he was leaving for an appointment. Mr. Ott testified that he spoke with Mrs. Rohde shortly after the will was drawn and that she stated that she was in good health, that she had no relatives, and that she was leaving part of her estate to petitioner. She spoke rationally, appeared to understand what he said to her, and did not seem to be under any tension.

Petitioner then asked Mr. F. A. Devlin, a lawyer with offices nearby, to be a witness to the will. It is not clear whether petitioner told him of the residuary gift or whether Mr. Devlin discovered it himself. He thought that petitioner 'might have' mentioned the fact. He testified: 'I didn't think anything of * * * (the gift to petitioner).

'And then it suddenly struck me: that here was a will prepared in his office in which he was the beneficiary and, as it developed, to quite an extent.

'And I called a halt. And I asked him if he would object if I talked to Mrs. Rohde alone. He said 'No.' He stepped out and I talked to her.'

Mrs. Rohde told Mr. Devlin that she had no living relatives anywhere. Then he read the will aloud to her asking her after each paragraph if that was her intention. She answered 'yes' to every query. He asked her: "Well, why are you leaving your money to Mr. Magee? You're leaving a few thousand dollars, true, to a few specific legatees, but the bulk of your estate would go to Mr. Magee.' She says, 'Well, haven't I a right to do that?' She rather bristled at the moment.

'And I said, 'Yes, of course you have."

Mr. Devlin testified further that she seemed 'entirely alert' and that 'she knew exactly what she wanted to do.' She was 'one of these 'club women' type, you know, who is pretty definite in their ideas.' At the end of this conversation Mr. Devlin thought that 'it would be silly to simply retype the will' so 'I adopted the will as mine; at least as mine in the sense that I had prepared it.'

The will was executed, and petitioner placed a back on it bearing Mr. Devlin's name. It is not clear how the back was obtained from Mr. Devlin's office. The original of the will was given to Mrs. Rohde and the first carbon to Mr. Devlin. Petitioner retained a second carbon. After Mrs. Rohde's death in November 1952, petitioner attended a wake for her and on inquiry stated that an attorney 'up the street' had drawn the will.

Petitioner saw Mrs. Rohde several times at her residence. The visit were short and concerned burial arrangements, other personal matters, and Mrs. Rohde's practice of keeping a large sum of cash in her room. On one occasion petitioner advised Mrs. Rohde to place the cash and other valuables in her safety deposit box at the bank. Shortly thereafter she met petitioner at the bank and placed several envelopes, presumably containing the cash and valuables, in the safety deposit box. She also instructed the bank to place petitioner's name on the box along with hers. According to petitioner this was not done at his suggestion but at hers to avoid her having to go to the bank to deposit and remove items. Several days later, however, she removed the contents of the box. There was testimony by a friend of Mrs. Rohde's who had expected to take under her will that Mrs. Rohde stated that she didn't like or trust petitioner.

Two months after she allegedly made this statement, Mrs. Rohde, at her residence, gave petitioner a wallet containing $4,500 in cash, stating, according to him, that she had enough to get along on, that it was his anyway, and that he might as well have it immediately. Petitioner's version of the gift was the only testimony presented on the matter. The next day he counted the money with his associate, Mr. Ott, informed him of the source of the money, and placed the cash in the office safe. Thereafter, petitioner treated the money as his own. He filed an amended inheritance tax return that included the sum given him.

A relative of Mrs. Rohde's deceased husband contested the will, and a jury determined that petitioner had exercised undue influence over her and that she was mentally incompetent. The trial judge held that the evidence of incompetence was insufficient to support the verdict, but sustained the verdict of undue influence, apparently in reliance on the presumption that arises from the attorney-client relationship. (See Civ.Code, § 2235; Estate of Butts, 201 Cal. 185, 188, 256 P. 200; Estate of Corbett, 123 Cal.App.2d 465, 470, 266 P.2d 935.) The decision was affirmed by the District Court of Appeal. (Estate of Rohde, 158 Cal.App.2d 19, 323 P.2d 490.)

An attorney who by undue influence obtains a gift from a client inter vivos or in a will is guilty of an act involving moral turpitude. (See Bus. & Prof.Code, § 6106; Lantz v. State Bar, 212 Cal. 213, 218-219, 298 P. 497; In re Macfarlane, 10 Utah 2d 217, 350 P.2d 631; In re Herr, 22 N.J. 276, 125 A.2d 706, 709, 711; In re Vilkomerson, 270 App.Div. 166, 58 N.Y.S.2d 922, 923; In re Disbarment of Glover, 176 Minn. 519, 223 N.W. 921.) In determining whether the evidence is sufficient to sustain the finding that petitioner exercised undue influence, however, we are not bound by the decision in the action setting aside Mrs. Rohde's will on this ground. (In re Macfarlane, supra; People v. Howard, 364 P.2d 380 (Colo.); Tennessee Bar Association v Berke, 48 Tenn.App. 140, 344 S.W.2d 567, 571; In re Santosuosso, 318 Mass. 489, 62 N.E.2d 105, 107, 161 A.L.R. 892; State ex rel. Nebraska State Bar Ass'n v. Gudmundsen, 145 Neb. 324, 16 N.W.2d 474, 476; State v. Bomer, 179 Tenn. 67, 162 S.W.2d 515, 520; In re Gerlich, 187 Minn. 88, 244 N.W. 414; cf. Theard v. United States, 354 U.S. 278, 282, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (...