Silver v. State Bar

• Decision Date: 13 December 1974
• Citation: 13 Cal.3d 134,528 P.2d 1157,117 Cal.Rptr. 821
• Court: California Supreme Court
• Parties: , 528 P.2d 1157 Robert M. SILBER, Petitioner, v. The STATE BAR of California, Respondent. L.A. 30164, 30272. In Bank

Page 821

117 Cal.Rptr. 821

13 Cal.3d 134, 528 P.2d 1157

Robert M. SILBER, Petitioner, v. The STATE BAR of California, Respondent.

L.A. 30164, 30272.

Supreme Court of California,

In Bank.

Dec. 13, 1974.

Phill Silver, Hollywood, for petitioner.

Herbert M. Rosenthal and Ronald W. Stovitz, San Francisco, for respondent.

BY THE COURT.

We review here a decision of the Disciplinary Board of the State Bar in L.A. 30164 that Robert M. Silver be publicly reproved for various acts of professional misconduct and a recommendation of the board in L.A. 30272 that petitioner be suspended from the practice of law for a period of two years with one year actual suspension. Although the two disciplinary proceedings were heard by different local committees and were separately argued before the board, we exercise our prerogative to consider the proceedings contemporaneously. (Black v. State Bar (1972) 7 Cal.3d 676, 680, 103 Cal.Rptr. 288, 496 P.2d 464; Cutler v. State Bar (1969) 71 Cal.2d 241, 243, 78 Cal.Rptr. 172, 455 P.2d 108.)

The proceedings in L.A. 30164 were initiated in 1971 when petitioner and Phill Silver, petitioner's father and partner, were charged with violating their oaths and duties as attorneys (Bus. & Prof.Code, §§ 6067, 6068, 6103), delaying an action with a view to their own gain (Bus. & Prof.Code, § 6128, subd. (b)), acquiring an interest adverse to their client in violation of rule 4 of the State Bar Rules of Professional Conduct, and purchasing property in violation of rule 8. The disciplinary board, substantially following the findings of the local committee, found, in part, that petitioner, 'with a view to his own gain, caused the appeal on behalf of (his client) to be dismissed without her prior knowledge or knowing consent.' The board followed the recommendation of the local committee and ordered public reproval; three members of the board dissented on the grounds that the discipline imposed was insufficient. The board, also upon recommendation of the local committee, dismissed charges against Phill Silver.

The proceedings in L.A. 30272 were initiated in 1972 when petitioner was charged with violating his oaths and duties as an attorney, wilfully commingling personal funds with those of a client in violation of rule 9 of the Rules of Professional Conduct, and misappropriating the client's funds, all acts involving moral turpitude and dishonesty. (Bus. & Prof.Code, § 6106.) The local committee found the charges against petitioner to be true and recommended that he be suspended for three years with one year actual suspension. ¹ The disciplinary board unanimously adopted the findings of the local committee, but reduced the recommended suspension to two years, again with one year actual suspension. (See fn. 1, Supra.) The board, in arriving at its recommendation, did not consider the record in the prior disciplinary proceeding.

1. The Robles matter (L.A. 30164).

The record shows that Jean Robles retained Phill Silver, petitioner's father and partner, to prosecute an appeal from the property division portion of an interlocutory judgment of divorce. The property awarded to Raymond Robles, Jean's former husband, included the family residence and a rental duplex. Mrs. Robles received a judgment for $2,469, as well as other personal property; she believed that she had obtained an inadequate share of the community property.

Phill Silver successfully procured a court order that Mr. Robles pay attorney's fees, plus costs as they were incurred. Phill then assigned the case to petitioner, who promptly obtained two writs of execution against Mr. Robles' property. The first writ was issued in petitioner's name for $994.80, representing fees and costs; the second was issued in favor of Mrs. Robles for $1,504, the unpaid balance of the $2,469 judgment. Mrs. Robles levied on the family residence and a marshal's sale was scheduled; prior to the sale, however, the holder of the deed of trust purchased the property at a trustee's sale. As a consequence, since Mr. Robles was no longer the owner of the property, the subsequent levy on her behalf failed.

Petitioner then instructed Mrs. Robles to arrange a levy of execution on the duplex. She asked petitioner whether she should have the marshal execute Her unsatisfied writ, but petitioner told her that it would be best for the marshal to levy on His writ. She followed his instructions; a sale was scheduled.

A few weeks before the sale, petitioner learned that the payments on the property, supposedly being made by Mr. Robles, were delinquent and that the holder of the deed of trust had issued notices of default and sale. Petitioner contacted Mrs. Robles and advised her to pay the amount due to avoid a foreclosure; she borrowed money from a friend and paid $825.54 to cure the default. According to Mrs. Robles, it was not until after she had paid the money to the bank that petitioner told her that she had not acquired title to the property.

Petitioner purchased the property at the marshal's sale. Several months later, petitioner agreed to dismiss Mrs. Robles' appeal in exchange for a quitclaim deed of Mr. Robles' remaining interest in the property, his right of redemption. Mrs. Robles testified that petitioner entered into this agreement with Mr. Robles' attorney without her knowledge or consent.

Petitioner spent a significant amount of time and effort in arranging to sell the property. In April of 1970, petitioner received the proceeds remaining after escrow, $3,121.33. Petitioner at no time notified Mrs. Robles that the property had been sold; she first learned of the sale in June of 1970, when she contacted the realtor who had handled the sale.

Of the sale proceeds, petitioner determined that he was entitled to a personal fee of $1,000 and to reimbursement for funds he had spent to cure a second default. Petitioner also decided that his father was entitled to $1,000 for his services, although Mrs. Robles, had previously paid him more than $700. The balance was never paid although Mrs. Robles had authorized petitioner to turn over $900 to a friend to whom she owed money.

From the time petitioner accepted Mrs. Robles' case in January of 1969, through June of 1970, petitioner repeatedly reassured her that the appeal was pending and that he was awaiting the preparation of the reporter's transcript. In fact, however, the transcript was never ordered.

Petitioner testified that he had acted in good faith in attempting to satisfy the judgment for costs on appeal so that a reporter's transcript could be ordered and an appeal taken from the interlocutory judgment. He testified that Mrs. Robles had agreed to the dismissal of her appeal, and that he acted, at all times, in the best interest of his client.

Acquisition of adverse interest.

The undisputed evidence shows that petitioner violated rule 4 of the Rules of Professional Conduct which proscribes the acquisition by an attorney of an interest adverse to a client.

In Ames v. State Bar (1973) 8 Cal.3d 910, 917--919, 106 Cal.Rptr. 489, 506 P.2d 625, we held that a purchase by two attorneys of a note secured by a first deed of trust on a piece of property was the acquisition of an 'adverse' interest within the meaning of rule 4 since their clients held the second deed of trust on the same property. We noted that the interest was adverse for two reasons. First, the attorneys were in the position to proceed with a sale under the senior lien which would extinguish the client's junior lien. (Id., at pp. 918--919, 106 Cal.Rptr. 489, 506 P.2d 625.) Second, the attorneys had obtained an interest in the subject matter of the litigation for which they had been retained, 'contrary to their duty of undivided loyalty to their client . . ..' (Id., at p. 919, 106 Cal.Rptr. at p. 495, 506 P.2d at p. 631.)

Petitioner levied on the property of Mr. Robles, recorded the writ of execution as a lien, and eventually purchased the duplex at a marshal's sale. The property had been community property before Mrs. Robles' divorce; she had retained petitioner's father to appeal the judgment which awarded Mr. Robles ownership of the property; thus the property was the subject of the litigation for which petitioner bore the responsibility. (See McArthur v. Goodwin (1916) 173 Cal. 499, 503, 160 P. 679; Valentine v. Stewart (1860) 15 Cal. 387.) The duplex, moreover, constituted the only property which Mr. Robles owned which could be used to satisfy Mrs. Robles' $1,500 judgment ² since the family residence, also awarded to Mr. Robles by the trial court, had been sold at a trustee's sale. (Marlowe v. State Bar (1965) 63 Cal.2d 304, 309, 46 Cal.Rptr. 326, 405 P.2d 150.)

Petitioner boldly asserts that he had the right to execute on Mr. Robles' property 'irrespective as to whether the client also had a right to obtain a writ of execution in her favor against the same judgment creditor.' Even if the judgment in favor of petitioner had been obtained independently of his representation of Mrs. Robles, we doubt that he could have acquired the property without violation of rule 4. The order compelling Mr. Robles to pay attorney's fees and costs on appeal directly to petitioner, however, was not such an independent judgment because the court renders an award for attorney's fees and costs for the benefit of a party to the action, the attorney's right thereto being derived from that of his client. (Civ.Code, § 4371; Marshank v. Superior Court (1960) 180 Cal.App.2d 602, 606--607, 4 Cal.Rptr. 593; Telander v. Telander (1943) 60 Cal.App.2d 207, 210, 140 P.2d 204; 6 Witkin, Summary of Cal.Law (8th ed. 1974) Husband and Wife, § 144, pp. 5011--5012.)

Petitioner further argues that Mrs. Robles expressly consented to his levy on the property and to his subsequent purchase of the property at the execution sale. Even if the consent were an 'informed' consent, which it does not appear to have been, and even if petitioner were acting in complete good faith, pet...