# Werner v. State Bar

> California Supreme Court · August 4, 1944 · 24 Cal. 2d 611

URL: https://www.frixlaw.com/law-library/cases/9563321

## Case

- **Full name:** ERWIN P. WERNER, Petitioner, v. THE STATE BAR, Respondent
- **Court:** California Supreme Court
- **Decided:** August 4, 1944
- **Citations:** 24 Cal. 2d 611; 150 P.2d 892; 1944 Cal. LEXIS 262
- **Precedential status:** Published
- **Opinion:** Concurring in part by Shenk
- **Judges:** Traynor, Shenk
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9563321

## Opinion text

SHENK, J.,
Concurring and Dissenting. I concur in the order of disbarment on the ground that the transcript of the testimony of witnesses taken on the trial of the petitioner for the criminal offense was admissible in evidence in the disbarment proceeding pursuant to the stipulation entered into by the petitioner, and that the evidence supports the conclusion that disbarment should follow. However, I dissent from the determination that, aside from the stipulation, and assuming unavailability of the witnesses, the transcript of the testimony taken at the trial of the petitioner on a felony charge as to which there was no final judgment of conviction, may be introduced in a disbarment proceeding against him to prove the commission of acts of moral turpitude. In a ease of conviction, the testimony would be unnecessary as the fact of conviction is ground for disbarment. In my opinion this court in the absence of a stipulation, should not approve the introduction in evidence in a disbarment proceeding of the transcribed testimony of witnesses taken in the trial of an attorney on a charge of which he was not finally convicted, to prove acts of moral turpitude, much less in a ease, such as this, where the determination of the question is not a necessary ground for disbarment.
Furthermore, I am in disagreement with the statement in *625 the majority opinion that the requirements of section 1870, subdivision 8 of the Code of Civil Procedure have been met, in that the testimony was “given in a former action between .the same parties, relating to the same matter.” The majority do not come to the conclusion that the parties and subject matter are the same. (Cf. United States v. Aluminum Co. of Am., [D.C.-N.Y.] 1 F.R.D. 48 .) The opinion avoids the necessity for such a conclusion by stating in essence that the effect is the same; that in disbarment proceedings the law does not require a strict adherence to the rules of procedure governing civil and criminal cases, and that there is no reason for invoking such rules unless they are necessary to insure a fair hearing. This court has recognized that in hearings in disbarment proceedings there is a measure of freedom from the rules of procedure applicable to the courts. But this court has also adhered to the requirement that an attorney may not be stripped of his privileges except on competent and legal evidence. In In re Richardson, 209 Cal. 492 [ 288 P. 669 ], it was pointed out that it is not so much a matter of procedural rules, as it is the kind of evidence that is necessary and sufficient to deprive an attorney of his right to practice. In that decision, in holding that hearsay evidence is not competent for the purpose, it was said at page 499: “Legal evidence alone should be required to deprive a duly admitted attorney of the vitally important and valuable right to practice his profession, and to impose upon him the stigma of disbarment. The court can be asked in such review only to consider the sufficiency of legal evidence. We are of the view, therefore, that only legal evidence, as that term is understood among lawyers, should receive the consideration of the Board of Governors and committees of The State Bar in the exercise of the disciplinary features of the Bar Act.” That view was followed with reliance on the Richardson case in Masters v. Board of Dental Examiners, 15 Cal.App.2d 506 [ 59 P.2d 827 ].
The well understood test in this state as to the admissibility of the testimony of witnesses taken at a previous trial, where there has been opportunity for cross-examination, is not the court’s opinion as to the adequacy of the cross-examination and fairness in the particular case, but is the identity of subject matter and parties. In Néblett v. State Bar, 17 Cal.2d *626 77 [ 109 P.2d 340 ], it was noted that the differences in the nature of the proceedings, in the parties, and in the subject matter inherent in a previous trial and in a disbarment proceeding, might greatly affect the interests and therefore the results produced by cross-examination of the same witnesses.
The cases supporting the majority and minority rules governing the admissibility of testimony taken in a previous trial when the witnesses are unavailable, as an exception to the rule excluding hearsay, are collected in 21 Ann.Cas. page 179, et seq. The majority rule, prevailing 'in England, Canada, and in our federal and state courts, requires essential identity of the matter in issue and of the parties, the latter comprehending privies in blood, in law or in estate. The statement in the text of the minority rule permitting opportunity for cross-examination (instead of requiring identity of parties and subject matter), as the test of admissibility—the rule applied by the decision in the present case—is supported by the citation of a ease from each of two states, Connecticut and Nevada. The decision adds one from the State of Missouri. There may be others, but it seems to me that the majority rule, which has been adopted in this state by statute, should not be disregarded in any determination of the question.
Carter, J., concurred.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9563321. Public record. Not legal advice.