Palmquist v. the State Bar of California

• Decision Date: 11 October 1954
• Citation: 274 P.2d 640,43 Cal.2d 428
• Parties: J. Adrian PALMQUIST, Petititoner, v. THE STATE BAR OF CALIFORNIA, Respondent. S. F. 19024.
• Court: California Supreme Court

Page 640

274 P.2d 640

43 Cal.2d 428

J. Adrian PALMQUIST, Petititoner, v. THE STATE BAR OF CALIFORNIA, Respondent.

S. F. 19024.

Supreme Court of California, In Bank.

Oct. 11, 1954.

Nathan G. Gray, Francis T. Cornish, Berkeley, for petitioner.

Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Petitioner asks this court to annul a resolution adopted by the vote of eight of the thirteen members of the Board of Governors of The State Bar present and voting, that he be publicly reproved for violation of the rule against solicitation of professional employment by means of advertisement. Rule 2, Rules of Professional Conduct, 33 Cal.2d 27-28. Three of the five negative votes were so cast upon the ground that the degree of discipline was too severe. The proceedings were initiated by the board of governors, and at their request a preliminary investigation was made by a local committee which took testimony, unanimously concluded that further proceedings were not justified, and declined to issue a notice to show cause. The board nevertheless itself issued a show cause notice directing petitioner to appear before a local administrative committee. See Rules 20-25, Rules of Procedure of The State Bar. The second committee, before whom the matter was heard on the show cause notice, after taking testimony concluded that while petitioner may have committed a technical violation of the rule against advertising, 'such violation was not done with any intention of advertising or soliciting business or with any intention of violating Rule 2' and that no discipline should be imposed. ¹ We have concluded that as determined by both the preliminary investigating committee and the local administrative committee, and as expressed by the examiner for The State Bar, it appears that petitioner had no intent to violate rule 2, and that no discipline should be imposed.

The facts appear to be undisputed. Petitioner was admitted to the practice of law in this state in 1937, and is now 46 years of age. With offices in Oakland, his practice consists exclusively of representing plaintiffs and personal injury cases. 'About 85 percent of' such cases are referred to petitioner by other attorneys. He has been highly successful in his practice and has recovered substantial verdicts for has clients. In his trial work he has pioneered the use of medical drawings to illustrate the injuries involved, and believes that such drawings constitute a much more effective means of portraying the injuries than do X-ray pictures.

The 'successful use of medical drawings' came to the attention of the National Association of Claimants' Compensation Attorneys (NACCA), whose 1951 convention in San Francisco was attended by some 2,500 attorneys, including petitioner. Petitioner was invited to address the association's 1952 convention at Houston, Texas, on the 'subjects of medical drawings in evidence and the effect of propaganda used by insurance companies to induce jurors to return low verdicts.'

To illustrate his talk, and for distribution to his audience at the convention, petitioner engaged Gillick & Company, a printing firm in Berkeley, to print 10,000 copies each of two pamphlets and paid the firm some $3,500 therefor. Petitioner first considered ordering only 5,000 or 7,500 of the pamphlets but at the suggestion of Gillick & Company decided on 10,000 because the increased cost would be nominal. One of the pamphlets was entitled 'Jury Tampering' and the other 'The Use of Medical Drawings in Evidence.'

The attendance at the Houston convention was one-fifth of that anticipated, and petitioner returned to Oakland with over 5,000 copies of each pamphlet. These he returned to Gillick & Company for storage. That company, upon learning that petitioner had no immediate use for the pamphlets, requested permission to mail copies of the two pamphlets to prospective printing customers as samples of the company's printing. Petitioner refused on the ground that he 'regarded it as a professional paper and the nature of the subject might, or would be of direct interest to attorneys, perhaps Judges, but he didn't think it was proper to get into the hands of laymen. * * * (H)e said * * * he would not permit us to send them to business men and business executives.' Following further discussion petitioner gave the company his permission to mail the two pamphlets to attorneys, judges, insurance brokers, and doctors, as persons who would have a professional interest in the subject matter. Mailings were thereupon made to some 1,485 doctros in San Francisco, 212 doctors in Contra Costa County, 862 doctors in Alameda County, 879 insurance brokers in San Francisco, to an unspecified number of judges and to more than 2,200 attorneys in the three counties; the names and addresses were secured by the printing company from telephone directories and petitioner took no part therein or in the addressing and mailing. Neither did petitioner discuss with the company the territory to which mailings were to be made or pay any part of the mailing costs. The printing company chose to mail only in the three counties mentioned because 'we expected * * * to follow up * * * with a personal interview in order to make the kind of a sale' they sought. Arthur Hargrave, Jr., a partner in the company, testified that 'I had no idea of mailing these until I realized all that were left over. He came home, they are here Holy Smoke! $3500 worth of printing the wastebasket terrific sample that is how it happened.' The company paid petitioner nothing and gave him no rebate for the pamphlet mailed, 'He gave them to us.' The mailing costs were defrayed by the printing company and 'charged to advertising or promotion or both.' Gillick & Company were trying 'to reach a new filed' of printing business in mailing the two pamphlets, and would have sent them to business executives if petitioner had consented. The company had 'put on campaigns like this before on an average of maybe four or five or six a year.' Such mailing of samples to prospective customers was customary with printing companies.

Accompanying the pamphlets when mailed was a letter from the company stating in part, 'In your business perhaps you, too, have a specialty. In our printing business, we specialize in the design and production of distinctive reprints of magazine articles, speeches, or other subject matter, for the most part given away as institutional material. The enclosed booklets on 'Jury Tampering' and 'Medical Drawings in Evidence' by Adrian Palmquist, may be of particular interest to you because of the subject, but in addition, they serve as samples of the type of craftsmanlike design and production created in this plant.' Hargrave testified that 'This (mailing) campaign was geared solely to the type of professional man who might write a speech, a biography, a report, a semi-personal book; we publish a great many of such books. That is what this campaign concentrated on.' The campaign 'was done in the usual course of' the company's business and 'conducted in the normal manner.'

It was the mailing of the 'Medical Drawings' pamphlet 'with the knowledge and consent of' petitioner which the board of governors found was a 'solicitation of professional employment by means of such advertisement.'

Petitioner urges that not only was the medical drawings pamphlet primarily informative rather than being an advertisement document, but that the discipline recommendation cannot stand because the board failed to determine that petitioner 'wilfully employed advertising matter for the purpose of soliciting professional employment.' See Business and Professions Code, § 6077. ²

The medical drawings pamphlet under its title on the front cover is stated to be 'By Adrian Palmquist and Germaine Young Palmquist.' Germine Young Palmquist is petitioner's wife. Inside the front cover of the pamphlet is the quotation, 'One Picture is Worth Ten Thousand Words.' On the inside of the back cover is the statement 'This book was prepared for presentation to the National Association of Claimants' Compensation Attorneys as a supplement to the talk given by Adrian Palmquist at the National Convention, Houston, Texas, August 27-30, 1952.' Within the cover, the pamphlet consists of 12 pages of which but one, the 'Foreword,' is text material. That page, illustrated by a sketch of an attorney apparently explaining a medical drawing to interested jurors, reads: 'The admission of X-rays into evidence can no longer be denied.

'X-Rays are merely pictures of distorted shadows which require the trained eye of a medical doctor to interpret.

'Medical drawings, however, open up a new field of understanding. They enable the layman to instantly and clearly grasp the real nature and extent of injuries.

'The pictures shown in this folder are...