Sturr v. State Bar of Cal.
| Decision Date | 08 May 1959 |
| Citation | 338 P.2d 897,52 Cal.2d 125 |
| Court | California Supreme Court |
| Parties | George B. T. STURR, Petitioner, v. STATE BAR OF CALIFORNIA, Respondent. L. A. 25274. |
George B. T. Sturr, in pro. per., and George O. West, Los Angeles, for petitioner.
Garrett H. Elmore, San Francisco, and Francis M. Wheat, Los Angeles, for respondent.
This is a proceeding to review the recommendation of the Board of Governors of The State Bar of California that petitioner be suspended from the practice of law for a period of five years. The Board of Governors found that petitioner (1) violated his oath and duties as an attorney and counselor at law, (2) committed acts involving moral turpitude and dishonesty within the meaning of section 6106 of the Business and Professions Code, 1 and (3) violated rules 9 and 12 of the Rules of Professional Conduct of The State Bar. 2
Questions: First. Did petitioner violate (1) his oath and duties as an attorney and counselor at law, (2) section 6106 of the Business and Professions Code, and (3) rules 9 and 12 of the Rules of Professional Conduct of The State Bar?
Yes. These rules are here applicable:
1. In a disciplinary proceeding against an attorney, findings of fact by local administrative committees and the Board of Bar Governors are not binding on the Supreme Court, which will weigh and pass upon the sufficiency of the evidence to sustain the findings of the board.
2. The burden is upon the petitioner seeking a review of the Board of Bar Governors' recommendation to show that its findings are not supported by the evidence or that its recommendation is erroneous or unlawful. Tonini v. State Bar, 46 Cal.2d 491, 492(1), (2), 297 P.2d 1; Clark v. State Bar, 39 Cal.2d 161, 165(1), (2), 246 P.2d 1.
Applying the foregoing rules, the record in the instant proceeding discloses that petitioner was admitted to the practice of law in California on June 12, 1951, and is and at all times herein mentioned was a member of The State Bar.
In August 1953 petitioner was employed by Merle Persinger and L. O. Persinger, copartners engaged in the manufacture and sale of barbecue equipment, for the purpose of incorporating the business of the partnership. Pursuant thereto he recommended and undertook the incorporation of three corporations, Big Boy Manufacturing Company, Big Boy Barbecue Sales Company, and Big Boy Barbecue Export Company. He was placed on a retainer basis by the Big Boy Manufacturing Company from December 1953 until May 1955 at the rate of $250 per month.
He advised the Persingers that it would be necessary to have the real property and personal assets of the partnership appraised in order to incorporate the partnership and issue stock. On April 16, 1954, he engaged J. A. Mann and Ralph S. Bowdle to make an appraisal and informed his clients that the cost would be $300. The clients paid him this amount, which he placed in his personal bank account. Thereafter he informed his clients that the total cost for the appraisal would be $1,200, and they gave him an additional $300 toward payment thereof. At that time he stated to them that he would see that the remainder of the fee to Mann and Bowdle for their appraisal was paid. He then appropriated to his own use the $600 given to him by his clients for the appraisal fee. Later the paid $500 from his personal funds to Mr. Mann, using his personal check, which upon presentation was dishonored. Shortly thereafter it was again presented for payment by Mr. Mann and was honored. Without the knowledge or consent of his clients, petitioner retained for his personal use and benefit the remaining $100 given him for the specific purpose of paying the appraisal fee. Later, Big Boy Manufacturing Company was presented with bills for the services of the appraisers, totalling $1,150, and paid them an additional $650 on October 25, 1955.
On March 15, 1954, an action was instituted in the United States District Court by Robert C. Wian against Big Boy Manufacturing Company, in which the plaintiff sought to prevent petitioner's clients from using the words 'Big Boy' in the conduct of their business. (9 Cir., 229 F.2d 154). Petitioner stated to his clients that he was unfamiliar with this type of action and recommended the employment of Albert Lee Stephens, Jr., another attorney, to handle the defense of the action. Petitioner and Mr. Stephens agreed upon a proposed retainer fee of $5,000 to be paid by Big Boy Manufacturing Company, to be divided between them, one third to petitioner and two thirds to Mr. Stephens.
Petitioner informed his clients that the $5,000 would cover all costs and legal fees for handling the case through a decision by the trial court and that he would see that Mr. Stephens was paid his fee out of the $5,000. Subsequently they paid petitioner the following:
March 19, 1954 $2,000
March 30, 1954 250
April 26, 1954 1,000
July 12, 1954 1,565
August 25, 1954 500
------
Total $5,315
The foregoing payments were made to petitioner for attorneys' fees in connection with the Wian case, except the $500 paid on August 25, 1954, which amount represented a deposit by the clients for additional costs for depositions and patent office searches requested by petitioner. He commingled in his personal bank account with his own funds $3,750 of the $5,315 paid to him by his clients, and he cashed the remaining check for $1,565. He converted and appropriated all the $5,315 to his own use and benefit without the knowledge or consent of his clients. No depositions were ever taken in the case, nor were patent office searches made while he was employed in connection with this matter. He did not disclose to Mr. Stephens that he had received the $5,315.
On August 9, 1954, petitioner paid $250 to Mr. Stephens, and on February 21, 1955, he paid him an additional $1,000.
On February 16, 1955, petitioner and Mr. Stephens agreed upon a total fee of $4,000 to be charged Big Boy Manufacturing Company for their services in handling the case through a decision in the trial court, of which amount Mr. Stephens was to receive $3,000 and petitioner $1,000. He failed to pay Mr. Stephens any portion of the $3,000 except the sum of $1,250 heretofore mentioned. He did not disclose to his clients that the total fee chargeable to them for services in handling the case through a decision in the trial court had been limited to $4,000.
After a decision in the trial court, it became evident that the plaintiff intended to appeal from the judgment, and petitioner advised his clients to contest the appeal. He and Mr. Stephens agreed upon a fee of $2,500 to be charged for services rendered on appeal, to be divided $2,000 to Mr. Stephens and $500 to petitioner. He represented to his clients that the $2,500 would cover all fees and expenses relative to the appeal.
On February 18, 1955, the clients paid petitioner $2,500 for the appeal fee and expenses. He deposited this sum in his personal bank account and commingled it with his own funds, all without the consent or knowledge of his clients. He did not disclose to Mr. Stephens that he had received the $2,500; neither did he pay any portion of it to him. On May 19, 1955, the clients were required to pay to Mr. Stephens, at his request, the sum of $1,750, being the unpaid belance of the agreed fee of $3,000 above described for handling the case through the decision in the trial court. Thereafter, at Mr. Stephens' request, the clients paid him an additional $2,000 for representing them on the appeal.
On November 6, 1953, the clients paid petitioner, at his request, $300 to be used by him for payment of fees for filing the articles of incorporation and for filing an application for a permit to issue stock of Big Boy Manufacturing Company. He deposited this sum in his personal bank account, commingled it with his own funds, and appropriated it to his own use without the knowledge or consent of his clients.
In June 1954 petitioner paid $183 from his own funds as a filing fee, franchise tax, and other related expenses.
On May 24, 1955, petitioner filed with the Commissioner of Corporations of the State of California applications for permits to issue shares of capital stock of the three corporations mentioned and paid the commissioner $187.50 for filing fees.
On August 16, 1954, at petitioner's request, his clients paid him $855, to be used as follows:
$100 fees for filing amended articles of incorporation
350 payment of franchise tax
5 certifying amended articles of incorporation
50 filing amended articles in the County of Los Angeles
350 fee for filing application for permit to issue additional authorized stock
On August 17, 1954, he converted the $855 to his own use without the knowledge or consent of his clients. On August 20, 1954, he paid the actual fee for filing the amended articles of incorporation of Big Boy Manufacturing Company in the amount of $22.50.
On August 15, 1954, petitioner recommended to his clients the formation of two separate corporations to manufacture barbecue equipment for Sears, Roebuck & Co. On September 1, 1954, his clients paid him, at his request, $855, to be used as follows:
$100 filing fee of corporate charters
355 payment of franchise tax
5 certification of articles of incorporation
50 filing fee, County of Los Angeles
350 fee for filing application for permit to issue stock
He deposited this sum in his personal bank account, commingled it with his own funds, and appropriated it to his own use and benefit without the knowledge or consent of his clients. At no time did he incur or pay any costs or expenses in connection with the formation of the two corporations last mentioned.
On August 25, 1954, petitioner received $340 from Big Boy Manufacturing Company in payment of a statement for costs in obtaining two trade-marks for his client. He deposited this money in his personal bank account and...
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