Mitton v. State Bar

This is a proceeding to review a recommendation of the Board of Bar Governors of The State Bar that petitioner be suspended from the practice of law for a period of three months.

The local administrative committee found in one count a violation of rule 7 (representing conflicting interest) and rule 10 (improperly advising on a case without being consulted in reference thereto) of the Rules of Professional Conduct. In other counts the local committee also found three solicitations in violation of rule 2 and recommended that petitioner be disbarred. The Board of Bar Governors dismissed all counts except two, each of which charged a solicitation. The board found each of the two counts to be true and recommended that petitioner be suspended from the practice of law for three months on each count, the suspension on each count to run concurrently.

It appeared in the proceedings that a former associate of petitioner was involved. After a lengthy investigation, the local administrative committee concluded that the associate was “a reluctant and ignorant participant in the activities” and was “far less culpable” than petitioner. The local committee also concluded that there were not sufficient facts to warrant disciplinary proceedings against the associate. Accordingly, the matter concerning the associate is closed.

On one count of solicitation, the board found that on or about May 30, 1954, petitioner wilfully solicited professional employment from Mr. and Mrs. Rob R. Middleton; that neither Mr. or Mrs. Middleton was a client or former client

Petitioner contends that he went to the hospital to offer his services as an investigator, and that this is proper and is not a solicitation under rule 2. Petitioner’s contention is without merit, for he urged retention as an attorney the very same day that he claims to have offered his services as an investigator, and he admitted that he had it in mind to ask them for their business as an attorney before he originally called on them. Moreover, any investigation service he might perform would be as an attorney, for he was not licensed as an investigator as required by section 7520 of the Business and Professions Code. The exemption from the license requirement in section 7522 is for “(f) An attorney at law in performing his duties as such attorney at law.” In Libarian v. State Bar, 21 Cal.2d 862 , 865 [ 136 P.2d 321 ], the petitioner sought to excuse advertisements on the basis that they related only to his services as an income tax accountant and his notary fees. The court there stated: “If the petitioner should choose to continue as a practitioner at the bar of this state, he must comply with the standards of the legal profession. He should appreciate that when he is licensed to practice as an attorney at law, the professional services that he thus performs are performed by him as an attorney, whether or not some of the services could also be

On the second charge of solicitation, the board found that in July, 1954, petitioner wilfully solicited professional employment with respect to the rezoning of property from John Waters and Carrol Waite; that neither John Waters nor Carrol Waite, nor Mission Engineers, Inc., their principal, was a client or former client of petitioner; that neither they nor any other agent of Mission Engineers, Inc., got in touch with petitioner or requested anyone else to do so on behalf of any of them; and that petitioner was unknown to them prior to his solicitation of them. Petitioner also admitted the essential elements of this solicitation. Petitioner seeks to justify his solicitation of Mission Engineers on the ground that a Mr. Aspes, a farmer from whom petitioner had purchased eggs, owned land related to the land that Mission Engineers was subdividing, and that Mr. Aspes indicated that he would be interested in discussing the matter with petitioner if other property owners involved were to seek another presentation of the rezoning matter before the planning commission. Such an interest of Mr. Aspes, however, would not justify petitioner’s solicitation of Mission Engineers to employ him in their rezoning matter. An attorney may not initiate the organization of prospective litigants to provide employment for himself as their attorney. (Sawyer v. State Bar, 220 Cal. 702 , 711-712 [ 32 P.2d 369 ].) Mr. Aspes did not testify. Mr. Waite testified that petitioner did not mention Mr. Aspes to him. Mr. Waters testified that petitioner said that he was preparing an appeal for rezoning for a client who owned land related to that being subdivided by Mission Engineers and proposed that Mission Engineers retain him as an advocate for the rezoning. Mr. Aspes did not retain petitioner and, in fact, later refused to do so. Mission Engineers also refused to retain petitioner. We conclude that the second count of solicitation was properly sustained by the Board.

Petitioner urges in mitigation that he was admitted to practice in January, 1954, and had been in practice only a few months when the violations occurred. He also urges

It is ordered that Patrick S. Mitton be suspended from the practice of law for a period of three months, commencing 30 days after the filing of this opinion.