In re Collins

This is a proceeding wherein George D. Collins, an attorney of this bar, is accused of such unprofessional conduct as, it is claimed, warrants his disbarment. The accusation is made and presented against him by a committee of the Bar Association of San Francisco, and is verified by the oath of Joseph S. Tobin (not a member of the committee), who deposes “that he has read the foregoing petition and that the charges therein contained are true.”

The respondent moves to quash the accusation, and also objects by demurrer to the legal sufficiency of each of the several counts it contains.

As to the motion to quash: It is insisted that this should be granted because the purported verification made by Joseph S. Tobin is not made by one of the persons who makes the accusation, and is not made by one having personal knowledge of the matters set forth therein, and on the further ground that the accusation is not verified as prescribed by law.

Section 291 of the Code of Civil Procedure, which directly applies to proceedings of the character here involved, prescribes that the accusation must “be verified by some person ■to the effect that the charges therein contained are true.”

Nor is there any force in the claim that the verification to the charges is not made by one having personal knowledge of the facts, or that the accusation is not verified as prescribed by law. The charges in the accusation here do not purport to be made on information or belief. They state directly and positively that certain acts of an alleged unprofessional character were done by respondent. The oath of Tobin is positive and unqualified that these charges so made are true, and this is all that the statute requires.

The eases of In re Hotchkiss, 58 Cal. 40 , and In re Hudson, 102 Cal. 467 , cited by respondent, are not in point. In both these cases the accusation and verification were expressly stated to be made on information and belief.

Upon the point that the verification is not made as prescribed by law it is only necessary to say that it is made in the exact language of the statute. In proceedings of this character the statute (Code Civ. Proc., sec. 291) prescribes the form of oath to be taken, and the verification in question is in the literal language of the legislative requirement.

This disposes of the motion to quash, which we conclude has no merit, and is denied.

In this connection, however, it is proper to dispose of another point made by respondent at the time of the argument on the motion to quash. Prior to that time respondent had attempted to take the deposition of J. S. Tobin, for the purpose of showing on the hearing of the motion to quash that his verification to the accusation was in fact made upon information, and not upon personal knowledge of the matters

Upon the demurrer: The accusation consists of three counts, which, for the purposes of this demurrer, may be referred to in a general way, and relate, the first to a transaction of a private nature, and the others to legal proceedings, in all of which the Hibernia Savings and Loan Society of San Francisco was concerned, and in the course of which it is charged, either directly or inferentially, that the misconduct of the respondent arose.

As to the first count: It is charged therein that the respondent in May, 1901, for the purpose of securing the payment to himself of $1,255.61, then on deposit in said Hibernia Savings and Loan Society to the credit of one Agnes M. Newman, produced to said J. S. Tobin, the agent and counsel of said banking society, a pass-book issued by it to said Agnes M. Newman, together with an assignment purporting to have been made by her of the same and of said deposit, in favor of respondent, and stated to said Tobin that said Agnes M. Newman had died in said month of May; that at the time of her death she was his wife; that she had assigned and transferred said passbook and deposit to respondent some time previous to her death; that three of his children had likewise in said month of May died; and that the amount on deposit represented by said pass-book was community property of himself and

It is charged that this affidavit, in as far as it is stated therein that Agnes Newman was the wife of respondent, and that the deposit standing in her name and subsequently paid, to him was community property, was false, as it is likewise charged that his oral statement relative to the death of his children was false. And in this connection it is also alleged that many years previous to May, 1901, respondent had married a sister of said Agnes Newman, who is still living and undivorced from him.

These constitute the salient facts as set forth in the first count, and it is insisted by respondent that they are insufficient to constitute cause for either his disbarment or suspension. In this regard it is contended generally that the matters stated do not, under any view of the law, constitute a cause for his disbarment or suspension from practice. And it is specially alleged that the matters charged do not bring him within any of the provisions of section 287 of the Code of Civil Procedure, which particularly enumerates the causes for which an attorney may be disbarred, and still further that none of the matters pleaded in said count have relation to any act done or committed by respondent in the practice of the law, or in relation to any thing pertaining to or affecting his professional conduct as an attorney.

Addressing our attention to the points specially made, it is quite clear that the facts recited do not bring respondent within any of the terms of said section 287. A simple reading of the section in the light of the facts charged makes this obvious. It is equally clear that the acts complained of were not done by the respondent in his professional capacity, or in connection with any matters in which his duties as an attorney were involved. Plis represntations, conceding them to have been falsely made (as the demurrer does), were representa

In all other cases the statute provides for disbarment only when the act or conduct complained of has relation to the violation of the oath taken by him as an attorney, or the violation of some duty or responsibility incumbent or imposed upon him in his official capacity as such attorney. (Code Civ-Proc., sec. 287, subds. 2-4.)

As it is conceded by relators, and is apparent upon the face of the accusation, that the facts stated in the first count do not bring respondent within any of the terms of the section cited, the demurrer to the first count for that reason must be sustained.

As to the second count of the accusation: It is there charged that in 1892 one Walter T. Robinson was administrator of the . estate of Caroline A. Robinson, deceased, then being administered in the superior court of the city and county of San Francisco, and that on April 17, 1898, respondent became by substitution attorney for said administrator; that prior to the substitution of respondent as attorney for said administrator, an action had been commenced by C. H. Robinson,, one of the heirs at law of said Caroline A. Robinson, against, her estate, to recover fifteen hundred dollars upon a claim presented against the same and rejected by said administrator ; that while attorney for said administrator, respondent, became substituted as attorney for said C. H. Robinson in his-, action against said estate on the rejected claim, and, appearing in said action, had a demurrer, which had been interposed by the former attorney for said administrator, submitted to the court, and it was overruled; that thereafter the letters of' administration of said W. T. Robinson were revoked, and in October, 1901, on application of respondent made in behalf' of his client, C.

It is further set forth that the Hibernia Savings and Loan Society, prior to April 13, 1896, presented to the administrator of said estate a claim, based upon a note and mortgage executed by said Caroline A. Robinson and her husband, Thomas B. Robinson, which claim was allowed and filed; that on said last date all the heirs at law of said Caroline A. Robinson, except said C. H. Robinson, conveyed their interest in the estate to their father, said Thomas B. Robinson, who, in conjunction with said C. H. Robinson, and by way of renewal of the existing mortgage lien, executed and delivered to said estate a mortgage on all of said property, the said C. H. Robinson, however, not joining in the note; that Thomas B. Robinson subsequently died, and the interest on the note and mortgage becoming delinquent, the said bank foreclosed the mortgage, bid in the property at the sale, and thereafter obtained a commissioner’s deed therefor.

Upon these facts it is charged that the respondent was guilty of unprofessional conduct in representing conflicting interests in the suit of C. H. Robinson against the Robinson estate, and his conduct in relation thereto, and particularly “in failing to advise said Purrington as administrator of his duty as trustee to protect said estate against said claim of C. H. Robinson.”

We do not think that the facts stated in this count are sufficient to sustain the charge made. While they may show that the respondent did not act with scrupulous regard to adverse criticism of his conduct, or with that sense of propriety which should restrain an attorney from even an appearance of occupying conflicting relations in a legal proceeding, yet the mere fact that he apparently occupied that position does not necessarily imply that, in doing so, he has been guilty of such unprofessional conduct as warrants disbarment. In order to entail that consequence it should appear that there

Now, examining the allegations in the light of this rule, it is not contended that respondent actually appeared of record for the administrator in the suit of C. H. Robinson against the estate of Caroline A. Robinson, deceased. The point made is, that while he represented the adminstrator of the estate for general purposes it was his duty to represent him specially of record in controverting this claim, and not to become the attorney for the claimant without relinquishing his employment as attorney for the administrator, and as mainly insisted, it was his duty to advise the administrator to protect the estate against such claim. But this duty could only arise if there was any protection which could be afforded against it, and upon this point the count in question is entirely silent. It is not stated why it was the duty of respondent to advise the administrator to that end, nor is there any averment of facts which would even apparently render that advice or the administrator’s resistance to the claim necessary. It is nowhere averred that the claim made against the estate was unjust or invalid, or that there was any defense to it, either on the merits or otherwise, or any possible manner

And, as we have suggested, neither does it appear but that ■all matters with reference to the conduct of respondent in this litigation were with the consent of all persons interested in the estate, a consent which they were empowered to give, and which would justify the conduct of respondent. The only ■creditor of the estate was the Hibernia Savings and Loan Society, and it is not asserted even that this action of respondent relative to the matter was without its consent or acquiescence.

As to the allegations with reference to the bank’s claim against the estate and its own conduct relative to the renewal of the note and mortgage and the foreclosure, these allegations are quite general, and there is an entire absence of specific dates to show when anything was done by the bank relative to these matters, or particular allegations as to how or in what manner it was affected by the conduct of respondent and the administrator by the suit in question, or at all. It may be that the rights of the bank were prejudiced in some manner thereby, but there is nothing of that kind directly averred, nor, if it were permissible, is there such a statement of facts as would warrant a clear inference that it was. Nor is it claimed in the brief of relators that the bank suffered any injury.

As there is nothing in the accusation to negative these matters, it must be assumed, within the rule laid down in the Matter of Haymond, 121 Cal. 388 , as a conclusion in favor of innocence, that the claim was meritorious, and that no defense to it existed; that the conduct of respondent in the matter of this litigation has worked no injury upon any one interested in said estate, that what he did was in good faith, without improper or corrupt motive, and with the consent of all persons interested in the estate.

It is charged by the relators that said respondent invited and procured the publication of such charges, publicly attacking said judge before the signing and filing of said findings for the purpose of coercing said judge into modifying them-in favor of his client, Robinson, or, in the event of not modifying them, for the purpose of discrediting them when they should be signed and filed; and that all said charges were false, and in making and publishing them said respondent acted in bad faith and maliciously, and in violation of his duty as an attorney.

We are satisfied that the demurrer to this count should be-

None should have known better than he his duty and obligation as an attorney, and that under his oath of office he was bound “to maintain the respect due to the courts of justice and judicial officers” and “to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth.” (Code Civ. Proc., sec. 282.)

And it requires no argument or citation of authorities to the proposition that a false and malicious publication of the character charged, instigated, and procured under the circumstances averred, and with the intent and motive attributed to him, constitutes gross misconduct on the part of respondent as an attorney.

Respondent dwells very largely in his brief on his legal right to prefer charges with the governor of misdemeanor in office and incompetency on the part of the judge with a view of instigating impeachment proceedings, on the assumption that the gravamen of the accusation against him arises from his having done so in this particular case. There is no warrant for this assumption. The right of respondent to prefer charges with the governor in good faith against any judge is not questioned. Nor does the conduct of respondent here involved have primary reference to those transmitted charges, although his good faith in so preferring them is questioned. The alleged official misconduct of respondent— and there is no room for a misconception of the charge— consists of having disseminated through certain public journals false and malicious charges affecting the integrity of the judge in his official capacity, with intent to influence his action or discredit his proceedings in a matter then pending before him, and in which respondent was interested. This is

The demurrer is overruled as to the third and sustained as to the first and second counts, with leave to relators to amend within twenty days, should they so elect. Should they not elect to amend, then, upon notice to respondent to that effect, he shall have fifteen days after such notice within which to answer the accusation.

Henshaw, J., McFarland, J., Angellotti, J., Shaw, J., and Van Dyke, J., concurred.

concurring.—I concur in the order of the court and generally in the opinion. Respecting the second count of the accusation, I do not think the attorney of an administrator can with any propriety accept a retainer to prosecute a claim which the administrator has rejected. But in this case it appears that Collins did not enter any default against the administrator whose attorney he was when first employed as attorney for C. H. Robinson, and so, though chargeable with an impropriety, it resulted in no wrong.

When the first administrator was removed the situation was simply this: Collins was attorney for a party desirous of litigating a rejected claim against the estate of a decedent, and the administration was vacant. In such a situation I suppose there is no doubt that an attorney may, for the purpose of enabling his client to prosecute the action, apply in his behalf for the appointment of an administrator, and the administrator being appointed he may act as his attorney generally in all matters in which his client’s interest coincides with that of the other creditors, and of the heirs or devisees; that is to