Heavey v. State Bar

Opinion

We review here a recommendation of the Disciplinary Board of the State Bar that petitioner be suspended for one year, on conditions of probation but with no actual suspension. Petitioner was admitted to practice law in California in 1943 and has no prior discipline record.

Shortly thereafter, petitioner, on behalf of his client, filed the one-word answer “no” to the interrogatory, and moved to vacate the dismissal. Judge Brown ordered the dismissal vacated on condition that petitioner personally pay to the defendants $600 in attorneys’ fees and costs.

Petitioner thereupon embarked on a letter-writing campaign to convince Judge Brown to annul the $600 penalty. In all, petitioner sent the judge four letters asking for relief. In no instance did he send a copy of the letters to opposing counsel.

While the first communication was worded cautiously, petitioner’s remarks became more intemperate in succeeding letters. In the third letter, for example, he labeled the judge’s ruling a “savage reprisal,” and impliedly threatened to campaign against him in the next election. The final letter began with the salutation “Your Majesty,” and stated in part, “I have explained to you in careful detail that this penalty involves taking food from the mouths of my little children. I am unable to comply with your edict. Your intransigence in this matter strongly suggests the valor common to draft dodgers.”

In addition to the private letters to Judge Brown, petitioner also wrote to a state senator, sending a copy of the letter to the judge. In that letter he declared he would be unable to contribute to the senator’s political campaign because of the judge’s ruling, and referred to the “rude insulting, hostile manner of Judge Brown at the hearing.”

The court rejected all of petitioner’s entreaties, and two motions to vacate the order assessing the penalties—on the ground of personal financial hardship to petitioner—were denied. According to a finding of the local administrative committee, petitioner’s client suffered no harm from petitioner’s refusal to pay the $600 as a condition to vacating the dismissal, because a companion case involving the same accident resulted in a jury verdict which was “res judicata as far as the subject case [is concerned].”

This point is particularly significant with regard to a violation of rule 9. As we have stated before, the prohibition against commingling was adopted “to provide against the probability in some cases, the possibility in many cases, and the danger in all cases that such commingling will result in the loss of clients’ money.” (Peck v. The State Bar (1932) 217 Cal. 47 , 51 [ 17 P.2d 112 ].) That no harm may result from commingling in a particular case is mere fortuity. An attorney who, like petitioner, spends trust fund money for his personal use, runs the risk that an unexpected contingency—such as a sudden illness—will prevent him from replenishing the fund. And, “as far as the client is concerned the result is the same whether his money is deliberately misappropriated by an attorney or is unintentionally lost by circumstances beyond the control of the attorney.” (Ibid.) Thus, neither good faith nor restitution is a defense to a commingling charge. (Silver v. State Bar (1974) 13 Cal.3d 134 , 145 [ 117 Cal.Rptr. 821 , 528 P.2d 1157 ]; Sevin v. State Bar (1973) supra, 8 Cal.3d 641 , 646.) The board properly found that petitioner’s activities constituted a violation of former rule 9.

We also agree with the board that petitioner is culpable for failing to send to opposing counsel copies of the letters written to Judge Brown. Petitioner asserts that former rule 16 did not require him to do so because the messages did not concern “the merits of a contested matter.” He claims the letters “contained no reference to the issues involved in the case,” and, as the suit had been dismissed by the court, there was no longer a contested matter.

Petitioner misconstrues both the status of the subject case and the rationale behind former rule 16. At the time he wrote the letters to the

Equally important, petitioner violated the spirit as well as the text of rule 16. Like rule 12, which prohibited an attorney from communicating with an opposing party in the absence of the party’s counsel, rule 16 “was designed to permit an attorney to function adequately in his proper role and to prevent the opposing attorney from impeding his performance in such role.” (Mitton v. State Bar (1969) 71 Cal.2d 525 , 534 [ 78 Cal.Rptr. 649 , 455 P.2d 753 ].) It is, in essence, a rule of fairness meant to insure that all interested sides will be heard on an issue. When petitioner wrote his first letter to the judge, he knew or should have known that the defendants and their counsel would be interested in any request to vacate a dismissal and an order requiring payment to them of $600. Any doubt he may have had should have been resolved when Judge Brown wrote back to him, “Since your letter does not indicate that a copy was sent to opposing counsel, I am sending them a copy of your letter together with this one.” In reply to petitioner’s second letter, the judge reiterated that “all requests for such action should be by written notice of motion with a copy to the other parties involved.” Petitioner’s refusal, after two unmistakable warnings, to send copies of his correspondence to opposing counsel demonstrates a brazen disregard of his professional duties. The board’s findings on this issue are fully supported by the record.

The issue is somewhat closer on whether the board is correct in concluding that petitioner should be disciplined pursuant to Business and Professions Code section 6068 for the particular language he used in his letters to Judge Brown. On this point we note that five members of the board disagreed with the board’s findings, four of them on constitutional grounds.

We need not decide the validity of petitioner’s constitutional contentions. The vice of petitioner’s letters to the judge was not so much in the gross tastelessness of their prose, but in their apparent intent to improperly induce the annulment of an order properly made. The appropriate means for seeking to persuade a judge to change a decision is by a motion to be heard in open court, with an opportunity for

We turn now to the question of the severity of the discipline that should be imposed. The local administrative committee recommended that petitioner be suspended from the practice of law for two years, on conditions of probation and with thirty days actual suspension. The disciplinary board recommended a one-year suspension, also on conditions of probation but with no actual suspension. Four members dissented, two because they believed the recommended discipline too lenient and two because they felt it was excessive.

We attach great weight to the recommendation of the disciplinary board, but it is not binding on us. We may impose more severe discipline when it is warranted. (Greenbaum v. State Bar (1976) 15 Cal.3d 893 , 904 [ 126 Cal.Rptr. 785 , 544 P.2d 921 ]; Sodikoff v. State Bar (1975) supra, 14 Cal.3d 422 , 432.)

We are not unmindful of the mitigating facts in the present case. Petitioner for more than 30 years has sustained no disciplinary record, and has been active in community affairs. Moreover, none of his offenses appears to involve intentional dishonesty.

Yet he has committed two serious violations of the Rules of Professional Conduct, each of which by itself would merit discipline. While petitioner, after the administrative committee hearing, apologized to Judge Brown for the intemperate nature of his letters to him, there is little indication that petitioner yet realizes the gravity of his violations of former rules 9 and 16. In view of the seriousness of these offenses we have concluded that the board’s recommended discipline is inadequate, and adopt instead the recommendation of the local administrative committee.