The opinion
CARTER, J.
I dissent. In my opinion the facts stated in the majority opinion are insufficient to justify a judgment of suspension of petitioner from the. practice of law for the period of one year or any other period. While I do not wish to be understood as condoning the conduct of an attorney in the insertion in pleadings of statements which he knows to be untrue, I think it is clear that the conduct of petitioner in this case was no different from that of a very large percentage of practitioners before the bar of this state, and if he is to be disciplined, then all of these practitioners are likewise subject to discipline. In my opinion there is no distinction between a false allegation in a complaint and the *146 denial in an answer of an allegation in a complaint which the person answering knows to be true. In other words, it requires an allegation and a denial to create an issue, and while it may be conceded that in most cases both allegations and denials are made in good faith and in an honest belief that the pleading states the truth, it is a matter of common knowledge that attorneys in the preparation of answers permit their clients to deny allegations in the complaint which they know to be true, and which they do not intend to offer evidence to rebut.
In my experience as a practitioner before the bar of this state I have examined many pleadings prepared by lawyers of the highest ethical standing containing allegations and denials which I knew that the lawyers preparing such pleadings knew to be untrue; in fact, it is not unusual to find answers denying corporate existence, denying that the person committing the wrong was the agent of the defendant or was acting within the course of his employment as such agent; or in Federal Employers Liability cases, denying that either the employer or the employee were engaged in interstate commerce at the time of the accident which resulted in the injury to plaintiff. In many of these eases the facts with reference to the existence of the agency or that the agent was acting within the course of his duties, or that the employer and employee were engaged in interstate commerce, were matters exclusively within the knowledge of the defendant or person making the denial, and of course, the attorney preparing the answer knew of the falsity of such denial at the time the same was prepared. If petitioner in the ease at bar is subject to discipline for the allegation which he placed in the complaint which is the subject of this proceeding, then every other member of the bar who prepares a pleading containing an allegation or denial which he has reason to believe is untrue, is likewise subject to discipline.
I have observed in my practice many instances much more flagrant than the one involved in the case at bar where allegations or denials were inserted in pleadings which resulted in subjecting the opposing party to delay and expense in meeting, yet I have never heard it suggested that attorneys who resort to such practices are subject to discipline for a violation of the provisions of the Business and Professions Code or the Buies of Professional Conduct of The State Bar of California.
*147 If The State Bar desires to embark upon, a program with the objective of disciplining all members of the bar who knowingly insert in their pleadings statements which they know or have reason to believe are untrue, I will wholeheartedly support such a program, but I very positively object to singling out petitioner, whose transgression, if it may be called such, is trivial and insignificant compared to the practice of many members of the bar in high places whose right to resort to such practice continues unchallenged.
Petitioner’s application for a rehearing was denied May 18, 1944. Carter, J., voted for a rehearing.