Medoff v. State Bar of Cal.

• Decision Date: 30 June 1969
• Citation: 78 Cal.Rptr. 696,455 P.2d 800,71 Cal.2d 535
• Court: California Supreme Court
• Parties: , 455 P.2d 800 M. Craig MEDOFF, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 29624.

Page 696

78 Cal.Rptr. 696

71 Cal.2d 535, 455 P.2d 800

M. Craig MEDOFF, Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 29624.

Supreme Court of California In Bank.

June 30, 1969.

Ball, Hunt, Hart & Brown, Joseph A. Ball and Albert H. Ebright, Long Beach, for petitioner.

F. LaMar Forshee and Herbert F. Rosenthal, San Francisco, for respondent.

PER CURIAM.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be suspended from the practice of law in this state for a period of six months as a result of his having prepared and filed in each of two divorce matters (being handled by him for the same client) an order to show cause and wife's declaration form, ¹ knowing that his client's answer to question 10 in each declaration (i.e., that she had not arranged to pay petitioner's fee and her court costs and had not paid any part of the fee) was false.

Petitioner was charged in three counts with professional misconduct in (1) violating his oath and duties as an attorney within the meaning of sections 6103 and 6128 of the Business and Professions Code and (2) committing acts involving moral turpitude and dishonesty within the meaning of section 6106 of the Business and Professions Code. The first two counts relate to the false answers given to question 10 of the wife's declaration filed in each of the two divorce actions. In the third count, petitioner was charged, in effect, with having instructed his client and her mother to testify falsely in court regarding the fee arrangement she had made with him.

In his answer in response to the notice to show cause filed herein, petitioner admitted that answers to question 10 in the declarations filed by him on behalf of his client were in error, but he claimed that in each instance the error was the result of an innocent mistake occasioned by faulty office procedures. Petitioner denied the allegations of the third count and alleged that he never intentionally 'led any court to be misled in such matters.'

The local administrative committee, after hearings on June 7 and July 5, 7, and 17, 1967, found that petitioner did not know that the answers to question 10 in the wife's declarations were false at the time he caused the declarations to be prepared or subsequently when they were filed with the court and found that petitioner had not instructed the client or her mother to conceal the fee arrangement or payment. The committee then recommended that the disciplinary proceeding against petitioner be dismissed. As one of its conclusions, however, the committee stated that the essential charges against petitioner in each count of the notice to show cause had been established by a preponderance of the evidence, but not by clear and convincing proof to a reasonable certainty in accordance with the standards established by this court in disciplinary proceedings.

The disciplinary board, after argument before it on August 14, 1968, unanimously (13--0) adopted revised findings, finding that petitioner knew that the answers to question 10 in the wife's declarations were false at the time he caused the declarations to be prepared and subsequently when they were filed with the court and wilfully caused them to be filed for the purpose of deceiving the court, and recommended that petitioner be suspended for a period of six months. The disciplinary board, as had the local administrative committee, found that petitioner had not instructed his client or her mother to conceal the fee arrangement or payment.

The record shows that in 1957 and again in 1961 Mrs. Charlotte Ellen Gehring employed petitioner to represent her in a divorce action against her husband, Stanley Leo Gehring, but that in each instance the parties were later reconciled. Petitioner charged a fee of $350 for his services on Mrs. Gehring's behalf in each of those matters, but had great difficulty collecting the fees.

In December 1964, Mr. Gehring filed a divorce action against Mrs. Gehring, and a property settlement agreement was executed. Mrs. Gehring did not file an answer, and the parties were later reconciled. The case was not dismissed, however. Petitioner was not involved in the action.

On November 22, 1965, Mrs. Gehring, after conversing with petitioner several times over the telephone, came by his office to talk with him about filing another divorce action on her behalf against her husband, having the property settlement agreement which she had executed in the action filed by her husband voided, and obtaining a dismissal of that action.

According to petitioner's testimony, he at first refused to represent Mrs. Gehring, but she pleaded with him to represent her and assured him that her estate had increased to half to one million dollars, that there was no possibility she and her husband would become reconciled this time, and that she would pay petitioner a generous fee if he would represent her.

Petitioner testified that at the November 22 conference, he told Mrs. Gehring that he would not represent her unless she paid him $10,000 cash in advance. She indicated that that would not be possible, and he then offered to represent her for $2,500 cash on account and a note and retainer agreement. Petitioner said that he ultimately agreed to accept $1,000 cash, payable on or before the date for the first court hearing, provided Mrs. Gehring first executed a note and retainer agreement for a $10,000 fee. ² When asked if there had been any discussion what he would do in the event she was not able to pay the $1,000, petitioner stated they agreed he would not represent her further and would withdraw from the proceedings.

Petitioner further testified that at the November 22 conference he and Mrs. Gehring discussed the value of the parties' community property, and she presented to him documents showing values of $450,000 and $150,000, respectively, of two pieces of real property owned by them. She told him that the properties were actually worth more.

Mrs. Gehring executed a retainer agreement and a promissory note for $10,000, both of which were dated November 22, 1965. Under the retainer agreement, petitioner obligated himself to attempt to recover said sum from Mrs. Gehring's husband and agreed that to the extent he succeeded in doing so he would give credit to her.

In his verified answer to the disciplinary charges and in his verified complaint against Mrs. Gehring in a subsequent action on the note, petitioner stated that the agreement and the note were executed on the day they bore date. At the disciplinary hearing, Mrs. Gehring was uncertain of the exact date of execution, but stated positively that it was not November 22, 1965. In his testimony in these proceedings, petitioner stated that after hearing Mrs. Gehring's testimony and going through various documents, he had the 'present belief' that the retainer agreement and the note were actually signed on or about November 26, 1965, after they had been typed from notes he had made on November 22, 1965. Petitioner stated that they were dated November 22, 1965, because that was the date he and Mrs. Gehring had agreed to their contents.

Mrs. Gehring paid petitioner $1,000 in cash, in accordance with their agreement; but there is a conflict in the evidence as to the date payment was made. No receipt was given to her for the money. Mrs. Gehring testified positively that she gave the money to petitioner on November 23, 1965. She stated that in making payment, she used part of the proceeds of a $1,500 cashier's check payable to her parents; and petitioner testified that she had informed him on November 22, 1965, that that was the expected source of her funds. Documentary evidence shows that on November 23, 1965, Mrs. Gehring cashed the check, receiving in return $1,000 in cash and a $500 cashier's check payable to her parents. It is also established that Mrs. Gehring saw petitioner at his office on November 23, 1965.

Petitioner testified at the hearing on July 5, 1967, that the money was paid to him December 13, 1965, but at the hearing on July 7, 1967, he said it was paid on December 15, 1965. ³ According to petitioner he did not deposit the $1,000 cash in the office account, but put it in his pocket for his personal use. He said that he was accustomed to carrying and using large sums of cash.

On December 2, 1965, petitioner filed a complaint for divorce on behalf of Mrs. Gehring against her husband in Los Angeles Superior Court case No. WED 8907. He also filed, on December 21, 1965, an answer and a cross complaint in the earlier pending action (WED 7397) in which Mr. Gehring was the plaintiff.

In each of those cases, petitioner prepared and filed an order to show cause and wife's declaration. He drafted the one in WED 8907 (in which Mrs. Gehring was the plaintiff) while she was in his office on November 22, 1965. He testified that he completed answers on a blank form, which he used as a draft, and drafted on a piece of yellow foolscap paper exhibit A (relating to attorney's fees and the parties' manner and style of living) to be attached to the form. He then put the draft of the form and the draft of the exhibit in his 'hopper,' to be picked up later and typed by one of the secretaries. The completed document was filed December 2, 1965, and shows that it was signed by Mrs. Gehring under penalty of perjury on November 29, 1965.

In WED 7397, an order to show cause and wife's declaration (identical to the one filed in WED 8907 except for the caption and a transposition of the designations 'plaintiff' and 'defendant') was signed by Mrs. Gehring under penalty of perjury on December 20, 1965, and filed the following day. For the preparation of this document, petitioner turned over to one of the secretaries a copy of the order and declaration filed in WED 8907, instructing her to prepare a similar one in WED 7397, except to make the necessary changes regarding the designation...