Smith, In re

• Decision Date: 10 October 1967
• Docket Number: S.F. 22523
• Citation: 432 P.2d 231,67 Cal.2d 460,62 Cal.Rptr. 615
• Court: California Supreme Court
• Parties: , 432 P.2d 231 In re David Eason SMITH on Disbarment.

Page 615

62 Cal.Rptr. 615

67 Cal.2d 460, 432 P.2d 231

In re David Eason SMITH on Disbarment.

S.F. 22523.

Supreme Court of California In Bank.

Oct. 10, 1967.

Rehearing Denied Nov. 8, 1967.

David Eason Smith in pro. per., and William A. Quinlan, Fresno, for petitioner.

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

PER CURIAM.

Petitioner, a member of the State Bar since his admission in 1955, was convicted of grand theft and forgery in 1965. Pursuant to section 6101 and 6102 of the Business and Professions Code, we referred the matter to the State Bar for hearing, report and recommendation as to the nature and extent of the discipline to be imposed.

Facts Petitioner was charged in an information with two counts of grand theft and two counts of forgery. Counts one and two involved petitioner's dealings with and on behalf of his client, Robert F. Hobbs. Counts three and four involved petitioner's dealings with and on behalf of another client, Robert L. Schaub.

At his arraignment petitioner pleaded not guilty to all counts. At the time of trial he pleaded guilty to count one (grand theft) and count two (forgery). The trial court dismissed counts three and four and suspended the imposition of sentence on counts one and two for five years and placed petitioner on probation for that period on certain conditions, including restitution, a prohibition against practicing law and against drinking alcoholic beverages or visiting any place where intoxicants are sold.

A special administrative committee of the State Bar conducted hearings and unanimously recommended petitioner's disbarment. At the time of the hearing, five other matters, in addition to the Hobbs and Schaub matters, involving petitioner's misconduct were introduced. These matters, along with the Hobbs and Schaub matters, were the basis of original State Bar disciplinary proceedings pending against petitioner at the time of his conviction and were held in abeyance pending the conclusion of the criminal prosecution and this proceeding. These other charges involved misappropriation of clients' funds, commingling of trust and personal funds, forgery, misrepresentation, and issuing checks without sufficient funds.

After a further hearing, Disciplinary Board I of the State Bar approved and adopted the findings of the special administrative committee, with minor changes, and unanimously recommended to this court that petitioner be disbarred. Petitioner does not question the findings but objects to the severity of the discipline.

Question: Does the gravity of petitioner's crimes warrant his disbarment?

Yes. In determining the appropriate degree of discipline, each case, whether a conviction, referral or original proceeding, must rest on its own facts. This court has generally disbarred attorneys who have been convicted of serious crimes, engaged in patterns of serious offenses or habitually disregarded the interests of their clients, whatever the unfortunate causes for their misconduct.

Under Business and Professions Code section 6101--6102, as amended in 1955, disbarments and not suspensions have been the rule rather than the exception in cases of serious crimes involving moral turpitude, the purpose of the statutes being to protect the public, as well as the courts and the legal profession.

Prior to 1955, petitioner's conviction of either grand theft or forgery would have resulted in his automatic disbarment. (Stats.1939, ch. 34, p. 357.) In 1955 sections 6102 was amended to do away with summary disbarment and, among other changes, to substitute the present language of the statute requiring disbarment or suspension 'according to the gravity of the crime and the circumstances of the case.' No intent of the Legislature to lessen professional standards can be derived either from the wording or legislative history of the 1955 amendments. Sponsored by the State Bar, the amendments give greater flexibility and in substance (a) affirm this court's established policy of referring cases where the question of moral turpitude was doubtful upon the 'record of conviction' to the State Bar for hearing, report and recommendation (see, e.g., In re Hatch, 10 Cal.2d 147, 150--151(4), 73 P.2d 885; In re Richardson, 15 Cal.2d 536, 540--541(2), 102 P.2d 1076); (b) provide a means of obtaining a better record than provided under the former law by the bare 'record of conviction' (which consists of indictment, information or complaint, plea of guilty and other minute orders); (c) permit disciplinary investigation where the crime itself does not involve moral turpitude (see, e.g., In re Langford, 64 Cal.2d 489, 496(5), 50 Cal.Rptr. 661, 413 P.2d 437; In re Hallinan, 43 Cal.2d 243, 253, 272 P.2d 768); (d) remove the legislative mandate that disbarment is mandatory upon the final conviction of any crime involving moral turpitude; and (e) permit this court to take into account unusual situations even in the case of more serious crimes.

Crimes of grand theft and forgery have been recognized to involve heinous misconduct for an attorney, and in In re Urias, 65 Cal.2d 258, 262, 53 Cal.Rptr. 881, 883, 418 P.2d 849, 851, fn. 5, we noted that 'the vast majority of grand theft convictions of attorneys since that date (1955) have resulted in disbarment or resignation with prejudice.' Similarly, convictions for forgery have resulted in disbarments since 1955. (In the Matter of Morton Jennings Beattie (1963) Bar Misc. 2868; In the Matter of William P. Crawford (1959) Bar Misc. 2429.)

Petitioner in the instant case was guilty of repeated and deliberate breaches of professional standards and general morality. These derelictions, according to the record, show a pattern of serious offenses, committed in an environment of concealment and deceit, starting more than two years before and continuing until petitioner's...