Vaughn v. State Bar

• Decision Date: 29 March 1972
• Citation: 6 Cal.3d 847,100 Cal.Rptr. 713,494 P.2d 1257
• Court: California Supreme Court
• Parties: , 494 P.2d 1257 George L. VAUGHN, Jr., Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent. L.A. 29771. In Bank

Page 713

100 Cal.Rptr. 713

6 Cal.3d 847, 494 P.2d 1257

George L. VAUGHN, Jr., Petitioner, v. The STATE BAR OF CALIFORNIA, Respondent.

L.A. 29771.

Supreme Court of California,

In Bank.

March 29, 1972.

George L. Vaughn, Jr., in pro. per. and James F. Doak, for petitioner.

F. LaMar Forshee, Herbert M. Rosenthal, San Francisco, and Christiana G. Bryson, Los Angeles, for respondent.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar (Board) that petitioner be publicly reproved.

Petitioner was admitted to practice in 1955; there have been no prior disciplinary proceedings against him. In two independent proceedings commenced in 1968 and subsequently ordered consolidated for the purpose of taking evidence and making joint findings and recommendation, petitioner was charged in the notice to show cause with the violation of his oath and duties as an attorney at law (Bus. & Prof.Code, §§ 6103, 6067, 6068) and the commission of acts involving moral turpitude and dishonesty (Bus. & Prof.Code, § 6106). In the first, involving the Williams matter (L.A.1829), it was charged in essence that petitioner had violated rule 9 of the Rules of Professional Conduct of the State Bar by converting to his own use out of the proceeds from a client's settlement the sum of $850 which he was required to hold in his trust account for, and pay to, the client's doctor for medical expenses. In the second, involving the Jones matter (L.A.1838), it was charged that after receiving, pursuant to court order, a specified fee from his client's husband in a divorce matter, petitioner intentionally and falsely caused an application for a writ of execution to be made stating that no part of the court-ordered fee had been paid and caused the writ to be levied upon the husband's salary.

After a hearing, the local administrative committee found petitioner guilty as charged in both matters and unanimously recommended that he be suspended from the practice of law for 10 days. The Board approved and adopted the committee's findings of fact but recommended public reproval. ¹

The facts as found by the local committee and adopted by the Board are in substance as follows:

The Williams Matter

In June 1963, petitioner was retained by Johnny Green Collins to represent him in an action for damages for personal injuries. In connection with this action, Collins, by letter agreement dated October 7, 1963, endorsed 'accepted' by petitioner, gave Edwin L. Williams, Jr., M.D., a lien for medical fees and directed petitioner to remit the amount due upon petitioner's receipt of any funds on Collins' behalf as recovery for the injuries.

About March 1, 1966, petitioner, with his client's approval, settled the litigation and received from the insurance carrier the sum of $9,500, all of which he deposited in his 'clients' account' at Security First National Bank, Santa Barbara and Vermont Branch, Los Angeles, California. About March 10, 1966, petitioner drew on the above account a check for $4,794.59 to the order of Collins as the net amount of settlement. On that date petitioner also drew a check for $850 payable to Dr. Williams, which was tendered to the doctor about May 18, 1966. Dr. Williams refused to accept the check and about June 1, 1966, ruturned it to petitioner, demanding full payment for his professional services which he claimed totaled $1,250.50. About November 4, 1966, ² Dr. Williams, through his attorney, agreed to accept $850 as payment in full. Finally on November 3, 1967, in response to a letter from the State Bar, petitioner delivered to the State Bar's office a cashier's check for $850 payable to Dr. Williams.

On no fewer than 12 occasions between March 3, 1966 and November 3, 1967, the balance of petitioner's clients' account dropped below $850 as a result of withdrawals. During that period petitioner conceded an obligation to Dr. Williams of $850 for professional services rendered to Collins. By his withdrawals from his clients' account of the monies payable to Dr. Williams, petitioner converted and appropriated to his own use the $850 belonging to his client for payment of medical expenses and willfully failed to deposit and keep deposited in a clients' trust account said $850 as required by rule 9 of the Rules of Professional Conduct.

The Jones Matter

Petitioner was attorney of record for Mrs. Clyde P. Jones, defendant and cross-complainant in a divorce action. On January 13, 1965, after a hearing on an order to show cause, the court ordered the plaintiff, Sam Jones, Jr., to pay petitioner the sum of $300 as attorney's fees in 10 equal monthly installments commencing February 1, 1965.

On June 18, 1965, Jones paid petitioner $150 by check which petitioner caused to be deposited in his personal bank account. On March 7, 1967, petitioner caused to be executed an application for issuance of a writ of execution, in which he declared under penalty of perjury that none of the court-ordered fee had been paid. Later that month he caused the application to be filed and a writ of execution to be issued. Thereafter, by a series of garnishments against Mr. Jones' wages, a total additional sum of $243.94 was levied upon, of which $201.69 was paid to petitioner, the remainder paying the sheriff's costs and commissions. Despite the fact that the writ of execution was quashed on October 10, 1967, petitioner has not repaid Mr. Jones the amount of the overpayment he received as a result of those levies.

The conclusions made by the local administrative committee and adopted by the Board were that petitioner had violated his oath and duties as an attorney within the meaning of Business and Professions Code section 6103 as prescribed by sections 6067 and 6068 of said code, that he had willfully violated rule 9 of the Rules of Professional Conduct of the State Bar, and that he was guilty of acts and conduct 'involving gross negligence and carelessness, tantamount to moral turpitude within the meaning of section 6106' of said code. As previously stated the Board recommended that petitioner be publicly reproved.

Petitioner contends that the evidence is insufficient to sustain the findings of the Board. Referring to the scope of our review we recently said in Himmel v. State Bar (1971) 4 Cal.3d 786, 793--794, 94 Cal.Rptr. 825, 830, 484 P.2d 993, 998: 'Findings by the local committee and the Disciplinary Board are not binding on this court, and we will weigh the evidence and pass upon its sufficiency. All reasonable doubts will be resolved in favor of the accused and if equally reasonable inferences may be drawn from a proven fact, the inference which leads to a conclusion of innocence rather than one leading to a conclusion of guilt will be accepted. (Citations.) (Par.) The findings, however, must be given great weight, and 'When (the) . . . findings rest primarily on testimonial evidence, we are reluctant to reverse the decision of the local administrative committee, which was in a better position to evaluate conflicting statements after observing the demeanor of the witnesses and the character of their testimony. (Citations.)' (Citations.) The burden is on the petitioner to show that the findings are not supported by the evidence or that the recommendation is erroneous. (Citations.) In meeting this burden, the petitioner must demonstrate that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty. (Citations.)'

We first turn to the Williams matter. Petitioner initially asserts that any deficiencies in his trust account were the result of attachments levied on it. An officer of the Security First National Bank (Bank) testified that money in the trust account was attached on four occasions during the relevant time period. On May 20, 1966, the sum of $2,500 was attached, which was released June 14, 1966; on June 17, 1966, the sum of $1,092.12 which was released June 24, 1966; on September 12, 1966, the sum of $693.03 which was redeposited more than a year later on November 10, 1967; and on April 12, 1967, the sum of $645.50 which was released April 24, 1967. ³

The bank statements for the trust account showed that without including the attached funds in the balance, that account fell below $850 on 37 occasions. However, even when the attached funds were considered as part of the balance in the trust account, the balance still fell below $850 12 times. Therefore, it is clear that in making its findings, the committee considered those dates on which the account, Supplemented by the amounts attached, still failed to contain $850.

Furthermore, we doubt that petitioner would be exonerated even if all the insufficiencies in the trust account were caused by the attachments. ⁴ The bank's records show that all four attachments resulted from actions brought against petitioner for personal debts. ⁵ The bank officer testified that the bank customarily notified its depositors of any attachments of their accounts; the records of the four attachments each indicate the date on which petitioner was notified. Consequently, petitioner was fully aware that his trust account had been attached. Yet, at least with regard to the September 1966 attachment, which was not released until November 1967, petitioner made no effort to substitute his personal funds and thereby effect release of the attachment on his clients' funds. Thus, in effect his clients' account functioned as security for his personal obligations for 14 months, while his own funds were free for his personal use. We have recognized that commingling, prohibited by rule 9 of the Rules of Professional Conduct, ⁶ is established where a client's money is intermingled with that of his attorney in such a way that it may be used by the attorney for his personal expenses or be subjected to the claims of the attorney's creditors. (Clark v. State Bar (1952) 39 Cal.2d 161, 167--168, 246 P.2d 1.) Here the effect of...