In re Riccardi

—The disbarment of the attorney is sought in this matter upon production of a certified copy of the record of conviction of the attorney in the superior court of the city and county of San Francisco of a felony involving moral turpitude. (Code Civ. Proe., secs. 287-289.). -It is conceded in the learned and exhaustive brief filed by the president of the San Francisco Bar Association that an appeal from such- judgment of conviction is pending in the district court of appeal of the first appellate district. The judgment of conviction, therefore, has not become final. We have, then, precisely the case presented in People v. Treadwell, 66 Cal. 400 , [ 5 Pac. 686 ], decided February 2, 1885. It was there squarely held that during the pendency of an appeal “there is not such a final conviction against the defendant as the law contemplates to justify his removal” merely upon “record of conviction,” and that the proceeding there inaugurated had therefore been prematurely commenced. There has been no change in our statutes which is material in so far as this question is concerned, • the law to-day being substantially as it was when this decision was rendered. The decision was unqualifiedly ap

It has further been suggested that by reason of the language of sections 287 and 289 of the Code of Civil Procedure, “remove or suspend,” the court may, upon the

It may freely be conceded that it would be advisable to provide for the suspension of an attorney as to whom a judgment on conviction of felony or misdemeanor involving moral turpitude- has been given, pending appeal or other review of such judgment. Of course, that is a question solely for the legislative department of the state, and the matter can easily be accomplished by appropriate amendment of the statute. All that is suggested as to the necessity of safeguarding the public, as well as the profession itself, so far as is practicable, against the admission or retention as members of the profession of unfit persons is something upoi^. which there can be no difference of opinion, and probably it would assist to some extent in the endeavor to attain this ideal if

It is ordered that action upon the certified copy of the judgment presented be deferred pending the determination of the appeal of the attorney from such judgment.

Shaw, J., Wilbur, J., and Kerrigan, J., pro tem., concurred.

—I dissent. The main opinion is based primarily upon the fact that the question involved is determined by People v. Treadwell, 66 Cal. 400 , [ 5 Pae. 686 ]. It also takes the position that that decision is not clearly wrong, advancing certain reasons in justification for it. It concludes that no good reason appears for overruling the decision. I can but take issue with the main opinion on all three of these points.

In the first place, the decision in the Treadwell case is, it seems to me, directly opposed to a number of other decisions of this court upon the identical point involved, the meaning of the word “conviction,” and that it is therefore not determinative now. In the second place, there is in my opinion no reasonable doubt but that the Treadwell case is wrong. In the third place, I can see no doubt but that the rule it declares and the main opinion affirms is opposed to sound public policy so that good reason does appear for overruling it. In addition, the rule it declares is not one under which rights have been acquired. Its overruling can have no other effect than that of now establishing definitely what, it seems to me, is plainly the right rule.

In regard to the first point. The final question is as to the meaning of the word “conviction” as used in section 287 of the Code of Civil Procedure, which provides that an

Thus in Ex parte Brown, 68 Cal. 176 , [ 8 Pac. 829 ], the defendant in a criminal action, who had been found guilty by the verdict of a jury, but upon whom judgment had not been pronounced, applied to be released on bail as a matter of right. He had this right unless section 1272 of the Penal Code provided differently. That section reads “After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: 1

“1. As a matter of right, when the appeal is from a judgment imposing a fine only.” The defendant claimed that not having been sentenced he had not been convicted and did not come within the operation of the section. But, although the section is one very evidently intended to govern the matter of bail pending an appeal and an appeal cannot be taken until after sentence, so that the court might perhaps have been justified in concluding that conviction, as here used, meant the judgment from which an appeal could be taken, the court held upon a detailed discussion of the question that conviction meant the finding of guilt and not the appealable sentence or judgment.

Similarly in People v. Ward, 134 Cal. 301 , [ 66 Pac. 372 ], a witness under examination was asked if he had ever been convicted of a felony. It appeared that he had been found guilty of a felony but not sentenced. Section 2051 of the Code of Civil Procedure provides that by way of impeachment it may be shown of a witness “that he had been con- „ vieted of a felony.” It was objected that the witness had not been convicted within the meaning of the section since

In McKannay v. Horton, 151 Cal. 711 , [ 121 Am. St. Rep. 146 , 13 L. R. A. (N. S.) 661 , 91 Pac. 598 ], a city charter provided that an office became vacant “when the incumbent ... is . . . convicted of a felony.” A similar provision was made by the Political Code (sec. 996). The mayor of the city had been found guilty of a felony, had been sentenced and had taken an appeal, and the question was presented as to whether or not he had been convicted within the meaning of the charter and the code so that his office had become vacant, although an appeal was pending. In other words, the question is identical with the one presented here. But again it was held that conviction meant the finding of guilt, and not a final judgment, and that the • office was vacant, although the appeal was pending. The main opinion in McEannay v. Horton attempted to distinguish the Tread-well case, but the fact of the matter is that the conclusion reached by it is directly opposed to that of the Treadwell case. The concurring opinion in McEannay v. Horton, written by Justice Angellotti and concurred in by Justices Sloss and Shaw, makes no attempt to distinguish the Treadwell case and sums the whole matter up thus: ‘ ‘ One is ‘ convicted ’ of a crime when a verdict of guilty has been so given and" entered against him, or when a plea of guilty has been given and entered. This is the well-settled meaning.of the term as ordinarily used in our constitutional and statutory provisions. . . . ”

These decisions are subsequent to the Treadwell case and are to my mind wholly irreconcilable with it. In view of them I do not see how it is possible to say with reason that the Treadwell case must be taken as a final and determining authority in the present case. It does seem to me that its authority has been taken from it.

Second, in regard to the merits of the Treadwell case "itself. It is admitted in the main opinion here, at least impliedly, that “conviction” in the ordinary sense means conviction of guilt, not the sentence or judgment which ensues upon such conviction. In any case there can be no , doubt but that such is the ordinary meaning of the word.

In regard to the first reason, it is, of course, true that frequently the connection in which a word, is used shows that it was not used in its ordinary sense. But the implication that the connection in which the word “conviction” in the code section as to disbarment is used shows that it was used in other than its ordinary sense is not justified. There is nothing whatever in the code section to indicate that the word was not used in its ordinary sense. The material portion of the section reads simply:

“Section 287. An attorney and counselor may be removed or suspended by the supreme court, or any department thereof, or by any district court of appeal, or by any superior court of the state, for either of the following causes, arising after his admission to practice:

“1. His conviction of a felony or misdemeanor involving moral turpitude, in which ease the record of conviction shall be conclusive evidence.”

What is there in this language which indicates in any way that “conviction” means something else than conviction in its ordinary sense ?

In this connection I would add that the word “conviction” is used time and again in the codes, and so far as I am aware always in its ordinary sense of the establishment of guilt by the verdict of a jury or a plea of guilty. In fact, it is so defined by section 689 of the Penal Code. In a great many of the code sections the distinction between “conviction” and the judgment or sentence which follows upon

As to the second reason given in justification of the Tread-well case, that the disbarment would stand, even though the conviction were reversed on appeal, and that this would be most unjust, the answer is that the disbarment would not stand in such a case. In the first place, this court has full power to reinstate an attorney once disbarred. It is a power that has been exercised even in the case of an attorney whose conviction of a felony was final. It seems incredible that the court, having the power of reinstatement, j would not use it as of course in any case where it appeared jthat the conviction upon which the disbarment was based .had been set aside.

j In the second place, it is the rule that wherever a judicial |Order or judgment is based upon a previous judicial order, ¡judgment, or act, and such previous order, judgment, or act is reversed on appeal or set aside, the subsequent order or judgment based upon it must be set aside as of course. The party affected is entitled to this as a matter of right and it cannot be refused. The most' common illustrations of this are where the subsequent order is in the same proceeding as the previous order or act, as where a foreclosure sale is had on a decree which is appealed from but whose execution is not stayed. If the decree is reversed, the sale fails as of course. (Carpy v. Dowdell, 131 Cal. 499 , [ 63 Pac. 780 ]; Cowdery v. London etc. Bank, 139 Cal. 298 , [ 96 Am. St. Rep. 115 , 73 Pac. 196 ]; Turner v. Markham, 156 Cal. 68 , [ 103 Pac. 319 ].) But the rule is not limited to orders or acts in the same proceeding. Thus, where a money judgment is obtained against a person, and he appeals but does not stay execution, and pending the appeal an action is brought against him upon the judgment and a second judgment obtained, and then the first judgment is reversed on appeal, the judgment debtor is entitled to have the second judgment set aside as of course and of right. (Heckling v. Allen, 15 Fed. 196 ; Banning v. Taylor, 24 Pa. St. 297 ; Aetna Ins. Go. v. Aldrich, 38 Wis. 107 ; Mann v. Aetna Ins. Co., 38 Wis. 114 . See, also, Wa/rd v. Marshall, 96 Cal. 155 , [ 31 Am. St. Rep. 198 , 30 Pac. 1113 ].)

In the second place, the main opinion says: “Nor will it do to say that the rule that where a judgment is based on a previous judgment, and the previous judgment is reversed or set aside, the second judgment must be set aside, applies here. If the term ‘conviction’ means not the final judgment of conviction, but simply the rendition of a verdict of guilty or- plea of guilty, as is the whole contention of those who insist that People v. Treadwell was wrongly decided, the attorney is disbarred solely because of the rendition of the verdict or the plea of guilty, and those facts,— viz.: such rendition of verdict or plea—remain and constitute the basis of disbarment, whatever be the ultimate result in the ease.” [The italics are those of the main opinion.]

The whole point of this is that when an attorney has been convicted by the rendition of a verdict or plea of guilty, he remains “convicted,” although the verdict or the plea—

Now, as to the third point advanced by the main opinion, viz., that no good reason appears for overruling the Tread-well case. In the first place, the Treadwell ease is, in my judgment, plainly wrong. This is certainly some reason for overruling it, particularly as it is not a decision under which any rights have been acquired so that its overruling would work any injustice. But very much more important than this, the rule of the Treadwell case is opposed to sound policy, and its affirmance and perpetuation is harmful and it should be done away with. An attorney who has been actually convicted in the criminal courts of a crime involving moral turpitude should not be permitted to exercise the high privileges of his profession as long as that conviction stands against him unreversed. There is no relation in life outside the family which is more confidential in its nature than that of an attorney. There is no one in whom more implicit confidence must of necessity be placed. There is no profession in which the strictest probity is more necessary. There is no profession of which it is more true that the only safeguard possible to the public against imposition and wrong-dealing is j;he character of those pursuing it. The fact that a member of the profession has been actually convicted of a crime involving moral turpitude should alone be sufficient to disqualify him from pursuing his profession while such conviction stands. To permit him, nevertheless,

In view of the reasons I have stated, I can see no reason for not overruling the Treadwell case as wrongly decided and adopting a different rule. To do so would not be to legislate as the main opinion intimates. If this were so a court could never reverse a former ruling. But there is no rule, so far as I am aware, that a court may not correct an error into which it has fallen, and the right, and, indeed, the duty, of the court in a plain case to do this cannot be questioned.

Lawlor, J., concurred.

—I dissent from the reasoning and conclusion of the prevailing opinion. Section 287 of the

It is not to he said that the record may show that the attorney is guilty, for, in that event, if the law allows it, he should be proceeded against, not upon the fact that he has been convicted, but upon the fact that he has been guilty of the conduct involved in the crime with which he was charged. I do not think his reinstatement upon a reversal of the conviction should depend upon the discretion of a court or judge. It should, in my opinion, occur automatically and of right.

If, therefore, this court had no power merely to suspend, "but was limited to the power to disbar, I should concur in an order of disbarment only in the event that it contained a condition for its automatic revocation in the event the judgment was reversed on appeal. In view of the code provisions which, to my mind, so plainly permit suspension, it would not be necessary to enter an order of disbarment. No good reason appears to me why this court should not adopt the practice of suspending attorneys immediately upon their conviction and of disbarring them when the conviction becomes final. The suspension, of course, should be during the pendency of the appeal only, and come to an end with the termination of the appeal, at which time there should be an order of disbarment upon affirmation, or an order revoking the suspension upon reversal of the conviction of the attorney. I feel that this court might very properly disregard anything to the contrary of the foregoing which may be found in People v. Treadwell, 66 Cal. 400 , [ 5 Pac. 686 ], and McKannay v. Horton, 151 Cal. 711 , 720, [ 121 Am. St. Rep. 146 , 13 L. R. A. (N. S.) 661 , 91 Pac. 598 ], as it cannot be said that rights have grown up under these decisions which should be protected under the doctrine of stare decisis.

Rehearing denied.

Lawlor, J., Lennon, 91., and Olney, J., dissented from order denying a rehearing.