Resner v. State Bar of Cal.

Decision Date11 February 1960
Citation349 P.2d 67,2 Cal.Rptr. 461,53 Cal.2d 605
CourtCalifornia Supreme Court
Parties, 349 P.2d 67 Herbert RESNER, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent. S. F. 20256, 20287.

Roger Bramy, San Francisco, for petitioner.

Garrett H. Elmore, San Francisco, for respondent.

PER CURIAM.

Herbert Resner, a member of the State Bar, seeks a review of two disciplinary proceedings in the first of which the Board of Governors of the State Bar recommended a two-year suspension. S.F. 20256. Five weeks later the Board of Governors recommended disbarment based upon the record in the earlier proceeding and the record then before it in the second matter. S.F. 20287.

The petitioner was admitted to the practice of law in 1935. He is now fifty years of age. No prior disciplinary proceedings have been taken against him. At the times in question he was conducting an individual practice in Los Angeles and later in San Francisco involving, for the most part, claims by longshoremen and merchant seamen for personal injuries sustained in the course of their employment. His practice required that he receive and handle sums of money paid in settlement of claims in behalf of his clients. The charges in each of the present proceedings arise out of the manner in which he administered the funds thus entrusted to him.

From undisputed testimony it appears that the petitioner, in April 1957, received a draft for $1,800 in settlement of a claim in which he represented one John Grosso, a seaman in the merchant marine. By agreement with Grosso, the petitioner's fee in connection with presentation of the claim was one-third of the amount recovered, or $600. The petitioner deposited the whole amount of the draft in a personal business account he maintained in the Security First National Bank in Los Angeles. Thereafter he used the $1,800 for his own purposes, the balance in his account falling as low as $5.52 on or about June 20, 1957. Between April and November, 1957, Grosso, on several occasions, inquired as to when he could expect to receive his money and the petitioner misrepresented to Grosso that the matter was still pending and that no funds had yet been made available. In November the petitioner gave Grosso a check for $1,200 drawn on a personal business account maintained by the petitioner in the Bank of Tokyo in San Francisco. This check was not honored by the bank for the reason that there were not sufficient funds in the account when presented for payment. Again in December the petitioner gave Grosso a second check drawn on another personal business account maintained in the Bank of America in San Francisco, and this check was not honored for the same reason. On February 11, 1958, after Grosso had complained to the State Bar, the petitioner delivered a cashier's check for $1,200 to Grosso.

On December 11, 1958, a hearing was had before a local administrative committee for Los Angeles County. Evidence of the petitioner's conduct was introduced. The petitioner's testimony was generally consistent with the foregoing account. He admitted that he gave Grosso false information concerning the receipt of the $1,200. He made a statement at the conclusion of the hearing, in part as follows: 'I am wrong * * * I think I handled this matter very poorly and * * * have suffered enormously by it to this point, and probably will in the future. And I was both careless and negligent about it, and wrong, and all I can tell you is that over the period of the past few years, and particularly at that time I had a large number of personal and family troubles * * * which probably accounts for my actions in the matter. I have dealt with seamen and longshoremen over a period of many years in a very informal manner, and have always gotten along quite well. I had expected to see Mr. Grosso and straighten the matter out. Unfortunately it didn't turn out that way.'

When questioned by Mr. Donald Dewar, a committee member, about the maintenance of a trust account, the petitioner stated: 'It is naturally in your mind because I am familiar with the rule. Dealing as I do with seamen and longshoremen the way I handle these things is either take the man to the bank and cash their check and give them funds, or take an authorization and send them a cashier's check, because they usually travel and are not available, and it is the simplest and most expeditious way to handle it.

'Mr. Dewar: Do you maintain a trust account, clients' trust account? A. No, I don't. I have just been proceeding as I just outlined to you. * * * I am handling it as I said just by taking the client to the bank and cashing such checks as they are issued. I don't assume there is anything wrong with that, because if there is I would like to know.

'Mr. Dewar: Well, my last question is have you ever read the Rules of Professional Conduct? A. I have read them since this proceeding came up, and I am aware of it now.

'Mr. Dewar: I have no further questions. A. I feel I should have a trust account according to the rules.

'Mr. Dewar: I think you should.'

Rule 9 of the Rules of Professional Conduct, 47 Cal.2d 10, provides in part: 'A member of the State Bar shall not commingle the money or other property of a client with his own; and he shall promptly report to the client the receipt by him of all money and other property belonging to such client. Unless the client otherwise directs in writing, he shall promptly deposit his client's funds in a bank or trust company, authorized to do business in the State of California, in a bank account separate from his own account and clearly designated as 'Clients' Funds Account' or 'Trust Funds Account' or words of similar import. * * *'

Based on the foregoing the local committee recommended disbarment. The petitioner moved for leave to introduce additional evidence, and a further hearing was had on April 24, 1959. At the second hearing evidence on behalf of the petitioner was introduced to the effect that for the past few years he had serious family and financial problems. The petitioner stated that many of his financial problems were due to his carelessness and mismanagement. He stated: 'Well * * * I've gotten myself into such a turmoil with this problem and others * * * I haven't been much good for anything this past year or two. * * * I don't think I'll ever get out of the bind. And that's about the story. That's why I got into this scrape and several others in San Francisco Mr. Mack (his attorney) will tell you about. * * *'

In response to an inquiry whether he presently had a trust account, the petitioner stated: 'No. My present relationship is to transmit the funds to the client receiving them, to take the man to the bank and give him his money. That as a matter of fact is the way in which I have handled most of my work with longshoremen. They prefer it that way.' He was questioned at some length in regard to his failure to maintain a trust account and his present method of handling funds. He stated that he would have to comply with the Rules of Professional Conduct in the future, but as to his failure to establish such an account up to the present time he had been drifting along waiting for the present matter to be settled. When this line of reasoning was questioned he stated that he agreed with the rules and would subscribe to them 'promptly.'

By a supplemental report dated May 7, 1959, the committee referred to mitigating circumstances and reduced its recommended discipline to a two-year suspension.

At the hearing before the Board of Governors on May 19, 1959, the petitioner was asked again if he had established a trust account. He stated: 'I have no reason for one. At this particular point, in every wind up of a case I have participated in in recent months I have taken the man to the bank and given him his money right there.' The petitioner stated that he was familiar with the rules and that 'of course, if I am permitted to continue on I certainly intend to abide by them.' He added: 'I do say that a trust account is the proper way to handle things, although the basic thing to me always is, is the client fairly treated and does he get what he was contracted to have.'

The board, by a vote of 9 to 2, recommended a two-year suspension, the dissenting votes being on the ground of insufficient discipline.

In the second matter now before us, S.F. 20287, there is evidence of similar misconduct on the part of the petitioner in the handling of client's funds in two separate instances. In January 1957 the petitioner filed an action in federal district court in behalf of one James Murphy for injuries suffered in a maritime accident. The suit was settled for $750 which was paid to the petitioner in the form of a check for which the petitioner had obtained an authorization from Murphy to sign Murphy's name. On or about April 16, 1958, the petitioner deposited the proceeds from the check in his personal account in the Bank of America in San Francisco and gave Murphy his personal, postdated check for $450 drawn on the petitioner's account in that bank. On May 2 and again on May 6 the client attempted to cash the check but was unable to do so for lack of sufficient funds. On May 7, after Murphy had complained to the petitioner, the petitioner sent Murphy a cashier's check for $450 in full payment. In explanation of this matter, the petitioner stated that it was his understanding that 'there were no funds in there (the petitioner's account) belonging to Mr. Murphy at all' because the petitioner had already given Murphy a check for his full share.

On the foregoing evidence a local administrative committee in San Francisco concluded that rule 9, heretofore set out, had been violated.

In the second count in S.F. 20287, the petitioner obtained a judgment in behalf of Laurence Skow, which judgment was settled for $3,450. On May 6, 1958, the petitioner deposited part of the proceeds, a $500 check, in his personal account in the Bank of...

To continue reading

Request your trial
23 cases
  • Bambic v. State Bar
    • United States
    • California Supreme Court
    • November 4, 1985
    ...Cal.3d 128, 192 Cal.Rptr. 866, 665 P.2d 956; In re Smith (1967) 67 Cal.2d 460, 62 Cal.App. 615, 432 P.2d 231; Resner v. State Bar (1960) 53 Cal.2d 605, 2 Cal.Rptr. 461, 349 P.2d 67; but see In re Mudge (1982) 33 Cal.3d 152, 187 Cal.Rptr. 779, 654 P.2d The words of this court in Resner v. St......
  • Lawhorn v. State Bar
    • United States
    • California Supreme Court
    • October 29, 1987
    ...181 Cal.Rptr. 903, 643 P.2d 486; In re Cohen (1974) 11 Cal.3d 935, 943, 114 Cal.Rptr. 611, 523 P.2d 651; Resner v. State Bar (1960) 53 Cal.2d 605, 614, 2 Cal.Rptr. 461, 349 P.2d 67.) Restitution made voluntarily and before the commencement of disciplinary proceedings is entitled to consider......
  • Doyle v. State Bar
    • United States
    • California Supreme Court
    • January 30, 1976
    ...to practice. (Demain v. State Bar (1970) supra, 3 Cal.3d 381, 386, fn. 1, 90 Cal.Rptr. 420, 475 P.2d 652; Resner v. State Bar (1960) 53 Cal.2d 665, 613, 2 Cal.Rptr. 461, 349 P.2d 67.) ...
  • Schullman v. State Bar
    • United States
    • California Supreme Court
    • December 20, 1973
    ...which entails separate proceedings for the determination of culpability and discipline. We noted in Resner v. State Bar (1960) 53 Cal.2d 605, 613, 2 Cal.Rptr. 461, 465, 349 P.2d 67, 71: 'As the ultimate purpose of a disciplinary proceeding is to determine the fitness of the attorney to prac......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT