Moore v. State Bar

• Decision Date: 18 November 1964
• Court: California Supreme Court
• Parties: , 396 P.2d 577 David C. MOORE, Petitioner, v. The STATE BAR of California, Respondent. L. A. 27885.

Page 161

41 Cal.Rptr. 161

62 Cal.2d 74, 396 P.2d 577

David C. MOORE, Petitioner, v. The STATE BAR of California, Respondent.

L. A. 27885.

Supreme Court of California, In Bank.

Nov. 18, 1964.

Edward Clayton Jones, Los Angeles, for petitioner.

Garrett H. Elmore and Herbert M. Rosenthal, San Francisco, for respondent.

PER CURIAM.

Petitioner, David C. Moore, was admitted to practice law in this state in 1941. He has no previous disciplinary record. The Board of Governors by a vote of 14 to 1 recommends that he be suspended from practice for a period of minety days for misconduct in connection with his representation of one Butler. Although it appears that petitioner's difficulties arose to some extent out of his misplaced reliance upon a fellow lawyer, the record further establishes that petitioner personally breached his professional obligations of service and protection to a client, and that the recommended discipline is warranted.

On November 25, 1961, at a consultation in a public bar, petitioner accepted employment from Butler to represent him in a lawsuit pending in the Los Angeles Municipal Court, in which a judgment of $700 plus interest was sought against Butler. Petitioners stated to Butler that in addition to an answer to the complaint he would perhaps file a cross-complaint on Butler's behalf; petitioner was to share on a contingent fee basis in any recovery on a cross-complaint. Attorney Barnes was also present in the bar, and according to petitioner he introduced Barnes to Butler as 'my employee, or maybe I said associate.' Petitioner requested and received from Butler a check for $70 as a retainer, and a check for $15 as costs, both of which he cashed.

A few days later (after November 25, 1961) Butler called by appointment at petitioner's office, but found him absent. Barnes was in the office, however, and secured Butler's signature to 'a blank form' which, according to Butler, Barnes stated 'will give us the right to file the counter action in your suit.' Butler further testified that this was the first time he had met Barnes, and that the office secretary introduced Barnes as petitioner's associate. Butler next spoke with petitioner early in January 1962, when he inquired about the case by telephone and was told by petitioner, 'don't worry, these things take time.'

At some time thereafter, although whether also in January or possibly some two to four months later in 1962 is not clearly established, Butler received a telephone call from plaintiff in the lawsuit (who was appearing in propria persona) informing Butler that a default judgment had been secured against the latter and inquiring about his payment of it. Butler immediately relayed this information to petitioner by telephone, and was told by petitioner 'That is impossible. They couldn't have gotten judgment against you. * * * I will contact (plaintiff) right away and find out what this is all about.' Butler testified that on at least 25 occasions after reporting the judgment to petitioner he tried without success to reach the latter by telephone at his office or at his hotel and left messages but did not hear from petitioner. Petitioner testified that he recalled receiving messages at his hotel before he had learned of the default judgment, and talking with Butler there and assuring him that 'everything was all right.' ¹

In any event, on May 9, 1962, Butler was served with an order for appearance of judgment debtor. Butler thereupon personally took the order to petitioner at his office, where petitioner stated that he was sorry, that his clerk or assistant had lost all the papers pertaining to the case, and that petitioner would 'do everything in my powers to * * * rectify this mistake.' Petitioner also called the plaintiff, told him that the matter would be taken care of forthwith and asked him not to proceed with the examination; he further stated to Butler that he (petitioner) would file a motion under section 473 of the Code of Civil Procedure seeking to have the judgment against Butler set aside, that he would file an answer on Butler's behalf, and would telephone Butler. Butler testified that during this interview Barnes was 'in and out of the office, but he didn't sit in on the conversation.'

The day after taking the order to petitioner Butler telephoned petitioner's office, and was unable to reach petitioner, but was told by 'this secretary' that 'the answer had been filed, the 473 had been filed, and not to worry, I would not have to apper in court for the hearing at a debtor examination' which was set for May 16, 1962. Surely petitioner should realize that statements by his secretary purporting to implement promises which he himself had made would be relied upon by his client. A few days later Butler received a telephone call from Barnes, stating that petitioner had requested Barnes to reassure Butler that 'everything was going to be taken care of' and that Butler would not have to appear in court, or 'in any case if you do have to appear we will call you.'

In reliance on these statements Butler did not appear on the date set, and later the same month received in the mail a notice that a warrant had been issued for his arrest. He thereupon surrendered himself, and was examined. He also reported the matter to the State Bar, and retained another attorney who successed in having the judgment against Butler set aside and judgment entered in his favor. Butler's 'last contact' with petitioner in person was at the May conference in petitioner's office when he presented to petitioner the order for appearance of judgment debtor. Petitioner did not refund to Butler the $85 received from him, or offer to so do.

Petitioner asserts that he employed Barnes to assist in the Butler matter and had the right to rely upon Barnes' integrity and ability. Petitioner thus mistakenly places himself in the position of his client rather than in that of his client's lawyer. He testified that he first became associated with Barnes early in 1961 when Barnes was seeking employment; that Barnes was 'primarily a collection attorney' and had formerly represented a client of petitioner, whose own 'principal activity is corporations and taxes.' Petitioner also states that he was 'house counsel' for a corporation with offices at a Sepulveda Boulevard address (where he also then officed), that later in 1961 he hired Barnes to assist him but that Barnes was the employe of the corporation, which paid his salary. Still later petitioner became associated (and officed) with a different corporation which 'was a collection operation' at a Riverside Drive location, and again Barnes was employed by the corporation as petitioner's assistant. Barnes also on occasion assisted petitioner on 'extraneous things' such as the Butler matter, for which pertitioner paid him separately at 'so much per job.'

Petitioner testified further that following his agreement on November 25, 1961, to represent Butler, he turned over to Barnes 'for handling the paper work' the $70 retainer received from Butler; that thereafter an answer was prepared by Barnes on behalf of Butler which petitioner signed as the sole attorney of record and turned over to either Barnes or to the office secretary, with the $15 costs, with instructions to file it. When petitioner learned from Butler that no answer had been filed, he made inquiry of Barnes and the secretary, and was told by Barnes that he had forgotten to file the answer and that 'it would be taken care of forthwith.' Petitioner assertedly relied upon Barnes and the secretary to proceed, and gave the matter no further attention until when, in May, Butler brought the order for examination of judgment debtor to petitioner's office.

Petitioner also testified that after Butler had left the office on that occasion he reprimanded Barnes and told him in strong language to act promptly; that Barnes gave no reason for his previous failures to act. Within the next two days Barnes prepared 'moving papers * * * for a motion under 473' and petitioner signed a 'declaration' in support of the motion to set aside the default which had been taken against Butler. Petitioner says that he again relied upon Barnes and the secretary to proceed, and recalls no further contact with Butler until the complaint was made to the State Bar. P...