Younger v. State Bar

• Decision Date: 16 May 1974
• Citation: 113 Cal.Rptr. 829,522 P.2d 5,12 Cal.3d 274
• Court: California Supreme Court
• Parties: , 522 P.2d 5 Milton M. YOUNGER, Petitioner, v. The STATE BAR of California, Respondent. L.A. 30134.

Page 829

113 Cal.Rptr. 829

12 Cal.3d 274, 522 P.2d 5

Milton M. YOUNGER, Petitioner, v. The STATE BAR of California, Respondent.

L.A. 30134.

Supreme Court of California In Bank.

May 16, 1974.

As Modified on Denial of Rehearing Aug. 12, 1974.

Hitt, Murray & Caffray, Donald B. Caffray and Richard E. Conway, Long Beach, for petitioner.

Herbert M. Rosenthal and Stuart A. Forsyth, San Francisco, for respondent.

Sims & Solomon, Gabriel W. Solomon, Bakersfield, Thomas R. Davis, Arthur F. Fisher, Kenneth N. Hastin, Bakersfield, Anthony J. Klein, Eugene W. McKnight, Jere N. Sullivan and William M. Sims, Bakersfield, as amici curiae.

BY THE COURT.

This is a proceeding to review a recommendation of the Disciplinary Board of the State Bar of California that petitioner be suspended from the practice of law in this state for a period of nine months. Petitioner was admitted to practice law in California in 1957, and he has no prior record of discipline.

In a notice to show cause, petitioner was charged with soliciting professional employment, personally or through cappers and runners, in six separate matters. The local administrative committee found, among other things, that the allegations contained in counts 5, ¹ 8, 12, ² and 13 ³ were true, but that the allegations contained in the remaining counts (including counts 9, 11, and 14) were untrue. The local administrative committee then recommended that petitioner be suspended from the practice of law for a period of six months.

The disciplinary board adopted the findings of the local administrative committee with respect to counts 5, 8, 12, and 13 (amending them in certain particulars) and, in addition, found that in those counts, as well as counts 9, 11, and 14, 'there was a common plan, scheme, modus operandi for (petitioner's) cappers to solicit clients for (petitioner).' The board dismissed the remaining counts against petitioner and recommended that he be suspended for nine months.

Counts With Respect to Which Allegations Were Found to Be True (Counts 5, 8, 12, and 13)

Count 5 relates to an alleged solicitation of Mrs. Evelyn Jenkins (hereinafter 'Evelyn') by a capper for petitioner, with the latter's knowledge and approval. Evelyn had been seriously injured in an automobile accident on February 19, 1971. The next day, while she was recuperating in the hospital, a man by the name of Robert Conners came to her room. He told her that he had been a witness to the accident and that petitioner had satisfactorily handled legal matters for him some time in the past. Evelyn's parents and her husband's sister were in the hospital room at the time Mr. Conners stopped by.

Evelyn testified, in part: 'He (Conners) said, 'I'm Mr. Bob--' I didn't get the name. Like I said I was in no condition even to talk to anybody about anything.' He says, 'I was approached this morning by two insurance agents that wanted me to sign some sort of fraud documents.' He said, 'I'm your witness to your accident,' and he went on, and he said, 'You're going to need a very good attorney to help you out,' and I said, 'Well, what do you mean?' He said, 'Well, I was in the same predicament you were.' He said when. I don't know, two or three years. He said he had been in the same predicament I was and if it wasn't for his good attorney he would have gotten himself in a bind, so he said, 'My attorney is (petitioner). I would like for you to talk to him.' . . . He said, 'He's at his office."

Evelyn's mother-in-law testified, in part: 'He (Conners) said he witnessed the accident, and he wanted to help her (Evelyn), and she would need a good lawyer, and he knew one, (petitioner), he (petitioner) had done a lot for him in an accident he had where he lost an eye or nearly lost an eye, I don't know which he said, but he said he (petitioner) was a good lawyer, attorney, and he would help her, and the insurance companies wouldn't do a thing for you without an attorney and she needed one.'

Conners then, without any suggestion from Evelyn that he do so, dialed petitioner's office on the telephone next to Evelyn's bed and turned the telephone over to her. Evelyn's mother-in-law testified that Conners told Evelyn it would be better for her to talk with petitioner, as otherwise it might appear that he (Conners) was a 'hustler,' and that when Evelyn indicated she did not know what to say, Conners told her that she should just tell petitioner she had been in a wreck and petitioner would 'take it from there.'

Evelyn then had a telephone conversation with petitioner, in which she briefly described the accident and told petitioner her room number at the hospital. Conners left as soon as Evelyn hung up, saying, according to Evelyn's mother-in-law, that it would not look right for him to be there when petitioner arrived.

Petitioner testified that he had not authorized Conners, or any other person, to solicit Evelyn. However, within five minutes after Evelyn hung up the telephone and Conners left, petitioner came to the hospital room, bringing with him various legal forms. In the ensuing conversation between petitioner and Evelyn, there was some discussion of the stranger (Conners) who had just been there. ⁴

Although Evelyn was apparently unable to describe the accident to petitioner, she did describe her injuries. She also, at petitioner's request, executed four authorizations to release medical records and a request for a police report. She said that petitioner explained that the documents would enable him to obtain a full report from her doctor on her condition and a report from the police indicating how the accident happened.

Petitioner said that he would investigate the accident for Evelyn and that it would not cost her anything. To her mother-in-law, he said, 'I get mine from 10 percent,' but he did not make such a statement to Evelyn. At the time petitioner was in Evelyn's room, her left eye was swollen shut and bandaged, and she could see very little with her right eye. As a result, she was unable to read. Petitioner nevertheless, without discussing the possibility of his representing her as an attorney, gave her his Blank retainer agreement, which she executed. Under the agreement, petitioner was to receive a fee of 33 1/3 percent of any amount recovered in Evelyn's behalf.

Evelyn claims that it was not until a week or two later, after her release from the hospital, that she learned she had retained petitioner. At that time, she was told by the husband of the driver of the vehicle in which she had been injured, that petitioner was purporting to represent her. She at one time had been represented in a divorce matter by a member of petitioner's law firm and had on occasion seen petitioner in the office. Petitioner, in fact, had actually once made a brief appearance in court on her behalf. She said, however, that if she had desired to retain an attorney at the time petitioner saw her in the hospital, she would have retained another attorney, Mr. Gabriel Solomon, who had previously represented her. Later, at the request of Mr. Solomon, who discussed the matter directly with petitioner, the latter cancelled the retainer agreement executed by Evenly and ceased representing her.

In count 8, petitioner was charged with the alleged solicitation of Mrs. Ruth Stancil by a capper on his behalf and with his knowledge and approval. Mrs. Stancil and her son had been injured on July 31, 1968, in an automobile accident; and at the time of the alleged solicitation Mrs. Stancil was hospitalized because of her injuries. Mrs. Karen Christensen, who was also hospitalized at that time, was in the same hospital room as Mrs. Stancil. Both of them testified that Leonard Winters, petitioner's private investigator, came to the room unannounced on August 3, 1968, on four occasions. ⁵

On Winters' first visit, he told Mrs. Stancil that he wanted to help her because he was acquainted with her husband. He also told her that he represented petitioner, and he gave her a business card. He further offered to bring her anything she might need (such as a robe or a magazine).

When Winters returned later on, he again informed Mrs. Stancil that he represented petitioner's law firm. He also told her that he had investigated the other party involved in the accident and learned that such party was well off financially. Winters further mentioned that he knew of a person who had witnessed the accident and said that if Mrs. Stancil retained petitioner's firm, she would receive very soon a large sum of money for herself and her son and could have a new car. Mrs. Stancil then informed Winters that she already had a family attorney (Mr. Gabriel Solomon). Winters thereupon said that petitioner was a better attorney, and he urged Mrs. Stancil to see him. She finally agreed to do so.

Mrs. Christensen testified, in part: 'She (Mrs. Stancil) was hurting, she was in a lot of pain, and I think she got to the point where she was tired of hassling with him (Winters). I guess she more or less said, 'Okay,' or something and then he came back with (petitioner) that night . . .. Yes, she was to the point where she just said anything to get him (Winters) out of the room.' In addition, Mrs. Christensen testified: '(Mrs. Stancil) was crying. She was very upset and (Winters) just kept pursuing the whole issue, and so I looked over at him and said, 'For God's sakes why don't you get out and leave her alone."

That evening, Winters returned to the hospital room again, this time accompanied by petitioner. He represented to Mrs. Stancil that he knew of another person who had witnessed the accident and said that she should employ petitioner, as petitioner's firm could obtain a new car for her and a large sum of money for her and her son and could help her more than anyone else.

Mrs. Stancil testified: '(Petitioner) said that he would guarantee me $20,000 and a brand new car . . . and he said . . . that I wouldn't have to work another day in my life. . . . (H)e...