Petition — McMorris v. State Bar of California

Supreme Court brief1984

Ask Donna

What actually matters in this document.

Text

[Otfice-Supreme Cou, US)

FILED

MAR 2 1964

ALEXANDER L. STEVAS,

—

IN THE SUPREME COURT OF THE UNITED STATES

October. Term, 1983

SAMUEL C. MC MORRIS,

Petitioner

-vs-

THE STATE BAR OF CALIFORNIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF CALIFORNIA

SAMUEL C. MC MORRIS

269 Sequoyah View Drive

Oakland, CA

Telephone: (415) 569-4761

Petitioner in Propria Persona

IN THE SUPREME COURT OF THE UNITED STATES.

October Term, 1983 2

-vs-

THE STATE BAR OF CALIFORNIA,

Respondent a

STATE OF CALIFORNIA 3

TO THE HONORABLE WARREN E, BURGER, ee

CHIEF JUSTICE OF THE UNITED STATES AND TO ay

THE ASSOCIATE JUSTICES THEREOF: . 4

N against petitioner denied petitioner due

process and equal protection of the law?

III. Has petitioner been unconstitu-

tionally discriminated against because of

his race?

B. TOPICAL INDEX

A. QUESTIONS PRESENTED FOR REVIEW Page i

B. TOPICAL INDEX ii

C. TABLE OF CASES iii

D. REFERENCE TO OFFICIAL REPORTS

E. JURISDICTIONAL GROUNDS

F. CONSTITUTION PROVISIONS INVOLVED

the Rule of Proportionality

(Do). Petitioner Was Denied

Equal Protection Because of Race

I. SUMMARY AND CONCLUSION

C. TABLE OF CASES

Abbott v City of Los Angeles

53 C2d 690, 3 CR 168

Alpers, Matter of 574 SW2d (Mo) 427

er v Secretary of State 378 US

„ 84 SCt 1659

Auditor of Public Accounts, Ex parte

609 Sud (Ky) 682 ;

Baggett v Bullitt 377 US 360

Baird v State Bar 401 US 1

Baker, In re 297 US 691

Ballou v State Ethics Comm, 424 A2d

983, 56 PaCom 240

Barbee v State Bar 213 C 296,

2 P2d 353

Blair v State Ber 27 C34 407,

165 CR 834 3

wis pgs Ia ae W.

0 W

Cline v Frink Dairy Co. 274 US 445 Page 32

Colorado Anti-Discrimination Comm, a

v Continental Air Lines 372 US 714 48

Colton v Kentucky 407 US 104 R 9

Connally v General Construction Co. cs

269 US 385, 46 SCt 126 12

Czarra v Board of Medical a

Supervisors 25 App DC 443 32 3

davidson v State Bar 17 C3d 570, 5

1 eR 3579 25 f

Davis, Florida Bar v 361 So2a 159 55 *

Demain v State Ber 3 C3d 381,

90 CR 420 46

Doe, In re 20 C3d 350, 143 CR 253 39

CR 720 : 40

~ Durbin v State Bar 23 C3d 461,

152 CR 749 | 56

Erdman v Stevens 458 F2d 1205 77

v State Bar 1 cd 359 ‘ee

3h 724 1024 : 13

e Ber 26 C34 659, Se

170 CR 629. | “fo.

3 Fisher, In re 179 Fea 5 . e

Giovanni v State Bar 28 C3d 465,

169 CR 561

Glenn v State Bar 14 C2d 318,

94 Pad 43 42 75

Golden v State Bar 213 C 237, 4

2 Pad 325 30 *

Gould v State 99 Fla 662,

127 So 309 41

Grayned v City of Rockford 408 US 104 31 3

Grubb, Peo v 63 C24 614, 47 CR 772 29.

Hallinan v State Bar 65 C2d 447, *

55 CR 228 38 .

Haymond, In re 121 C 385, 53 P 899 30 >

Herrscher v State Bar 4 C2d 622 2

42 Pad 629 30 a

Hill v State Bar 2 Cad 622, 42 Pad 629 30

Holland v Flournoy 142 Fla 459,

195 So 138 45

Hunter v Erickson 393 US 385 49

‘Hyland v State Bar 59 œa 765, 8

: 382 Pa 369 36 ee

* Inniss v State Ber 20 C3d 652, = ee

13 & 408 7

FF „

153 CR 20 46

re % ‘ :

: ; b out 3 N

* 2 2

* 7 N. +.

r re,

ae * —

* rue ee

—

85 * F é 5h

2 +

. : 0 ‘

8 —

aS x gt #

4 : AE

* 5 ‘ > * 5

—

ey,

‘

Johnson v Avery 393 US 483

Johnson v Virginia 373 US 61

Kramer, State Bar v 249 Mad 1,

399 Mich 116

Lambert v Californie 355 US 225

wen the

690, 3 CR 168

Att. Gen. v 259 Mich 283,

243 223 1% 8

Lowenthal, In re 78 C 427, 21 P 7

Luce, In re 83 C 303, 23 P 350

z enn.

165 CR 121

Maura v State Bar 18 Cad II,

112 P2d 829

MeCowan, In re 177 c 93, 170 P 1100

Melton v Railroad Comm. 10 FS 964

Morton, In re 179 C 510, 177 P 343

Newsome v Dominque 455 FS 1373

115 CR 639 | Mo

rte, rev to ean on an

„ Grievance Com. v

ma 803,

25 A2da 1352 Page 48

Power, In re 96 NE2d 460,

407 111 525

Rafter, USA v 469 F2d 91

Recht v State Bar 218 C 352,

23 Pad 273

Reynolds, In re 18 Cad 929

136 CR 131 :

Rivera, USA v 475 F2d 1372

Ruffalo, In re 390 US 544

Ryder, In re 263 FS 360

Sacher, In re 206 F2d 357

Schware v Board of Bar Examiners

35% US 232

„ V 7 State Bar

Auf. 578 Sood 42

Smith, USA v 436 F2d 1130

Smukler v State Bar 2 C2d 80,

38 Pad 977

Solem v Heln 103 ct 3001

Southern Ry. Co., USA v 364 F2d 86

a N 8

~“

Pe SSR RR YS Y NYY

Wallis v State Bar 21 C2d 322

Ward v Auctioneers Ass'n 67 C2d

183 9

153 Pad 765

Williams, In re 128 SW2d 1098,

233 Mo App 1174

v Arkansas Activities

D. REFERENCE TO OFFICIAL REPORTS

Petition is hereby made for a writ of ;

certiorari to the Supreme Court of the State

of California in Case No. S.F. 24545 there-

in, the opinion wherein was filed on the 5th

day of December, 1983, ordering disbarment

of your petitioner on the 4th day of Janu-

ary, 1984, The said opinion is reported as

McMorris v State Bar 35 c 77, 196 CR 801,

and will be set forth in full in the Appen-

dix hereto.

E, JURISDICTIONAL GROUNDS

Upon the filing of the opinion of the 5

California Supreme Court, petitioner filed

timely Petition for Rehearing on December

rT + ee

20, 1983, and the same was denied on Jan-

uary 25, 1984, The statutory provision

believed to sustain the jurisdiction of

cus Curt ene of Title 28

r a ee ON Oe

tution of the United States provides: Nor ö

shall any state deprive any person of life,

liberty, or property, without due process

of lew." By virtue of a further clause in

the said Amendment, a state may not deny to

any person within its jurisdiction the equal

: protection of the lax, F

; a. STATEMENT OF THE CASE :

In or about August, 1975, after peti-

b tioner had practiced law for a total of near~ :

ly twenty-three years (one in Ohio, twenty-

two in California), during which he had ap-

peared three times before the United States

5 Supreme Court, a first compleint wes filed

„ against petitioner by one Santiago Tanguma, 2

“4 ur. Tanguma had been well satisfied with ve- 1

titloner 's settlement, for 823, 000. oo, orte 4

vehicle-colliston case with the other ari- |

. f — ‘ ee 1

0 aten es cane, se ee?

plaint of Mr. Tanguma, but used it as a basis

or pretext for investigating petitioner's law

practice in general; and after a year, filed

an order to show cause primarily on the fact

that petitioner had paid the multiple medical

Claims of Mr. Tanguma through petitioner's per-

sonal account rather than a client's truse ac-

count although petitioner explained that the |

nature of his practice had not required a li-

ent's account and that it was only this one

instance in which petitioner's personal a-

count was so used, In a second complaint,

although believing he had earned the small

advance retainer of $200.00, petitioner nev-

ertheless refunded it months before the order

of the California Supreme Court, filed bo-

cember 8, 1977, effective January 9, 1978, i

placing petitioner on one year's probation a ,

(See decision of the disciplinary board, |

State Bar of California, filed 6-17-77 in

case No, Alameda 728; and the order ot the

4028, filed December 8, 197) |

aint

Upon a subsequent/that petitioner had

filed, but let lapse,a ‘skip-and-fall case,

petitioner's first actual suspension was or-

dered by the California Supreme Court, in

Bar Misc. 4077, on 9-20-78, effective 30 days

later, for a period of 90 days, which was ex-

tended for an additional four months, until

petitioner took and passed the Professional

Responsibility Test.

The second suspension was imposed by

order of the state Supreme Court dated Feb-

ruary 26, 1961, modified March 26, 1981, and

was based upon three complaints: Bach of the

complainants admitted that petitioner ha@ |

taken action upon contingent fee cases but

had not fully performed the agreement be-

—

it had been repaid before hearing of —

pleint. (See dectaten in -a. 790 and 2

J i

aie ee a SE et

opinion of the state Supreme Court, in Case

No, 31324, published es MoMorris v State Ber

29 C3d 96.

Tne third and final set of complaints,

upon which petitioner's disbarment is based,

presents constitutional problems: First,

all of the four alleged acts of negligence 1

or breach of contract oceurred before the

first period of suspension. Secondly, as to

three of the complaints, the contracted le-

gal services were prevented by the fact of

suspension, As to the fourth complaint, it

is clear that, after seeking civil relief

against petitioner, the client brought an ac-

tion before the Bar for the purpose of at-

tempting collection:

Mr. D. had an action for wrongful death

of his son against an uninsured, poverty-

stricken defendant. Mr. D. was willing to

settle the matter for $5,000.00, but did not

object when petitioner, instead, proceeded

to have the matter set for . In the

interim, petitioner became the victim of per-

sonal and professional problems which will

be outlined below; and the case was dismissed

for not having been brought to trial within

the five-year California limit, It was so

dismissed on 1-21-75. Mr. D. did not file

his complaint with the Bar until over five

years later. In the meantime, he won a de-

fault judgment against petitioner for

$75,000.00; and when this was not paid, Mr.

D. filed a lien against petitioner's prop-

erty and, in addition, filed a complaint with

the Bar. At the hearing before the Bar con-

mittee, Mr. D. had to grudgingly admit that

petitioner had satisfactorily handled two

other matters for him, one before and one *

after the retainer in the wrongful-death case, 4

Similarly, in the F. matter discussed n f

the disbarment opinion, Mr. F. stated that he

had been represented satisfactorily by poti- Bs a

tioner in the past. In the matter of which ye

he complained, it had come on for trial dsys

7 4 .

after the beginning of petitioner's suspen-

sion; Mr. F. was notified thereof, and hired

other counsel, who had the default set aside,

The final matter discussed by the Court

involves a Mr. T., who, in referring to prior

service by petitioner, stated that petitioner

had the reputation of being able to handle

just about any kind of legal problem. How-

ever, it clearly appears that, with respect

of the three matters of which he complained A

to the Bar, petitioner's suspension would A

have prevented action by petitioner; and the f

complainant does not present evidence of 4

anything more than discussion of his prob- \ q

lems, without retainer, just before the said

period of suspension, which the complainant

did not deny knowledge of.

Petitioner did not appear at the hear-

ing to contest the alleged breaches, but, in

a Petition Zor Review of the Bar's recommen-

dation of disbarment, in Case No, 8. F. 24545, ~

addressed the following argument re disposi-

Bz lo

tion and reasonable discipline:

I >

Petitioner did not respond by pleadings a

or appearance at the hearings of the referenced F

matters for the following reasons:

(a) Petitioner did not challenge, in most

instances, the claims of complainant clients,

but expected the finding to be breach of con-

tract or negligence, not intentional tort; and

petitioner was prepared to attempt to settle

any civil wrong caused by the problems for 7

which petitioner did not feel fully responsi-

ble, but which certainly were not the fault of

the clients. |

(b) Because of frustration over the prob-

lems over which petitioner did not seem to have

control and which led to unintended injury, po-

tioner had decided to resign from the Bar, and om

it seemed therefore that petitioner's time could

best be spent in handling the rest of his vr

. 3 in part to be able to et any 18. “4

8 rote N 27 N e

I Fy * 7

several of petitioner's colleagues who were

aware of the situation and who had known pe-

titioner since his induction as a member of

the Bar, and who urged petitioner not to re-

sign, petitioner reversed his former inten-

tion although, as will be explained below, he

would prefer to get into some other phase of

the profession,

Petitioner respectfully hopes that dis-

cipline be based (as in the criminal matters

so much a part of petitioner's practice) upon

the background and character of the accused

even more than upon the specific charges be-

fore the court or determinative body. For in-

stance, there should be taken into consider

ation the thousands of cases in which I have

rendered highly satisfactory service, some-

times as a matter of charity, e

— . toe, batted 48, dee 7

ee ie

aie PR

past matters of discipline, the positive as-

pect of my practice were not know, consid-

ered, or given fair weight, I present below

a brief autobiographical review in the int-

erest of justice to this petitioner and, per-

haps as well, to the profession itself, to

which, as I will point out, I have made ma-

jor contributions,

III

It must be noted that, in the complaits

made against me now or in the past, I have

never been accused of dishonesty, crime, or

incompetence, though I have handled thou-

sands of cases in the four cities in which

I have maintained offices (Columbus, Ohio;

Tos Angeles, Sacramento, and Oakland, Cali-

fornia). The essence of my problem with the

‘Bar has been that it is my nature to take on

; more than I cen handle, to overestimate my

capacities, es fer as time endenergy re

a . so that there has been an a- 2

mitted failure to — with the 5 «Ay

wan

+ N 7

e ae ee es eo

* 4

‘ a * ae ie |

a a OO Ng ey oy i 1

client contract in a very small number of

cases,

I was admitted to the practice of law

in the State of Ohio on September 6, 1950;

to the Bar of California on January 14, 1954;

and to the Bar of the United States Supreme

9 Court on October 6, 1936.

5 I have appeared as counsel in over half

the counties of this state. I have ap-

peared in federal district courts in San

Diego, Los Angeles, Sacramento, Oakland, and *

sen Francisco, and have had no problems with

my federal practice, I have appeared in ap-

peals before the Ninth Circuit, and three

times before the United States Supreme Court,

5 in landmark cases,

4 , VI 4

In this day when I read of the need of 2

jy members of minority groups for special atten- 15

blen and affirantive action to enter e -

* 3

9 err enen . * D Os Se” Lee

eo. ae ge * 1 N >a : 4

Sie s 7 a ; , .

gal profession, it may be of interest that,

over a generation ago, when I began my col-

lege career, I was at the very top percentile

(100) of those entering Ohio State University

undergraduate school. on the basis of that be

score, I was later admitted to Mensa, which 4

requires objective demonstration of being in |

the top 2% in intelligence, nationally.

VII

Consistently with my admission score, I 2

was admitted to Phi Eta Sigma honorary so- 3

ety, and was near the top of the admittees

into law school in 1946, In the top ten-

percent at the conclusion of my freshman lew

year, I was made a member of the staff of the

Ohio State Law Journal. In my senior year, ae

I was elected by my fellow staffers the first

of my race to serve as associate editor.

VIII

| In my trial « 4 appellate work, the in-

pression I have made may be sumed up in me

i So" De,

3 ‘ , f 55 +5

language of the United States Court of Appeal, _ Be:

be 1 ¢ , 4s

i. N * 1 W Soe

vig „ „

i; 8 “ie ae , 5 iP Ba: i . oe es

. 5

844 Ae N

a n Ves * N

ee 2

;

4 *

Ninth Circuit, in Munich » USA 363 F2d 859

(1966): "If one reads the transcript, one

finds counsel for defendant was able to make

such a searching examination of the expert

witnesses, handicapped as they were with no

corpus’ that one's practical appraisal is

that the goverment was at some disadvantage

with the jury.....Other points, ably presen-

ted, we do not find substantial." (Emphasis

added).

I was the first of my race in the Bay

Area of California to be certified a special-

ist in any field by the State Bar Committee

on Specialization, my specialty being crimi-

nal law. I have, I believe, on the basis of

observation, study of the record and consul-

tation with other attorneys, appealed more ie

cases then eny other of my rece, mostly crim

inal, but some civil, cases, in the history

eg itt I om the only attorney of my

times before the United States Supreme Court,

As soon as I became a member of the Cal-

ifornia Bar, I began the legal battles which

have been my principal contribution to the

profession and the Law: (1) my challenge of

general criminal registration and (2) my at-

tack upon the penal treatment of narcotics

addiction. In the former, after a five-year

effort in state and federal courts, I had been

instrumental in the elimination of general

criminal registration in this state. In the

latter, as sole counsel of record, I prosen-

ted the arguments which led the United States

Supreme Court, in a 6-2 decision, with five

written opinions, to strike down the crimi-

nalization of the status of narcotics addic-

tion, as the final step in a seven-year ef-

fort on my part. (It may be of interest that

Warren Christopher, then a member of the lar-

gest lew firm in Los Angeles, later to bee

emicus in Lambert v California, the criminal- 5

registration case). .

In Lambert v California 355 US 225, 2

LEd2d 228, 78 SCt 240, my arguments led to

the establishment of the principle that ig-

norance of the law can be an excuse (as in

failure to register as an ex-convict, not

having been informed of the duty to do so).

That case was the cubject of at least 30

law review articles, and is taught as a

part of criminal-constitutional law in ev-

ery law school,

XII

Continuing in the state courts my fight

| against the principle of criminal registra-

+ tion, I filed briefs and offered oral argu-

ö ment in the companion cases of Ebert v Mu-

- pieipal Court 53 cza 690, 3 CR 136, 349 P2d

, (1960) end Abbott v City of Los Angeles

53 cd 67h, 3 OR 158, 62 Ana 398, Jointly —

argent Wy evict hat Mees i eee

> 2

“na

„

— PAs 8

r =

2 * *

wy 2

Civil Liberties Union, Los Angeles. By some

sort of judicial legerdemain, the state Su- 5

1 preme Court wrote the principal opinion in

Abbott although only in Lambert's briefs and

: oral argument was the point on which the de-

: cision was based made, to wit: that there

a was conflict between Penal Code Section 290

4 (sex-offender registration) and the generel

. Wann, ordinances of the cities and

ess

Bre

counties, with the result thet the state

statute pre-empted the field and the local

ordinances were stricken, Abbott has been

the subject of annotation in 82 ALR2d 398,

about a dozen AG opinions, many law review ;

articles, and has been cited in many appel-

late decisions. $

XIII , 4

My most important contribution, of 5

course, was and is in Robinson v California, |

370 US 660, aia ee

* e case, in watch Twas 7 |

2. 5 1

= 2 : 3

* * = Ds * . 1 , 5 2 2 ; 2

ms 4 , ao . N n * 5 ‘ 75 3 77

N N 8 8 >

counsel on trial and appeal, and which held

that narcotics addiction is sickness, not

crime, reviving and modernizing the concept

of Cruel and Unusual Punishment, Robinson

has since formed the basis of the attack,

both state, and federal, upon capital punish-

ment, among other applications of the pun-

ishment principle, It is, of course, taught

as part of college criminal and constitution-

al lew courses, It has been the subject of

over fifty law reviews, including one by this

petitioner, all over the United States, in

Canada, Europe, Africa, and Australia. Rob-

Deen forms a major part of the recent Addic-

tion and Criminal Responsibility article, 34

Yale Lew Journal 413, which refers as well

to another leading case of mine, People v

Zapata 220 CA2d 903 (1964); and further re-

fers to my article in 54 ABAJ 1081, "Can We

Punish for the Acts of Addiction?"

urrection of the principle of cruel-and-un-

usual punishment in Robinson is illustrated

in the following cases, which rely in whole

or in part on the said case: Brenneman v

Madigan 343 FS 128 (1972) (pre-trial de-

tainees); USA ex rel von Wolfersdorf v John-

ston (1970) (treatment of criminally insane);

Inmates of Boys Training School v Affleck

346 FS 1354 (1972) (juvenile isolation);

Wheeler v Glass 473 FS 278 (1973) (institu-

tion for mentally retarded); Jackson v Bish-

op (1968) 404 F2d 571 (use of strap); Nelson

Lene 355 FS 471 (1972) (corporal punish-

ment of juvenilse, drug use, solitary conf-

inement); Bethea v Crouse 417 F2d 504 (beat-

ing by other inmates); Jorden v Fitzharris

257 FS 674 (1966) (prison conditions); Col-

Lins v Schoonfield 344 FS 257 (1972) (pre-

trial detainee conditions); In re Rodriguez

(1975) 14 C3d 639, 122 CR 552, 537 P2d 384

120

a PEs

yore

(ateproportionste punishment for lewd conduct

"with ehildren); Peo v Keogh 46 ce 919, 0

CR 617 (1975) (four consecutive 14-year terms

for forgery); Workman v, Com. (Ky) 429 Sw2d

374 (rape: life imprisonment without parole);

Peo v Anderson 6 C3d 628, 493 P2d 880 (1972)

(death penalty); and Furman v Geergia 408 US

238 (death penalty).

Not resting on my laurels, I have con-

tinued my efforts in the constitutional-

criminal field: Munich v USA 330 F2d 774,

and Munich v USA 337 F2d 356, the former of

which established, for the federal courts,

the rule that the judge himself (and not

counsel) must inform defendant of the conse-

quences of a change of plea to guilty. New-

house v Misterly 415 F2d 514, is a leading

case for the principle that evidence of de-

fendant's refusal to take a test for intox-

ication may be presented to the jury. Peo

y_Thompson 144 c 854, 301 P2d 313, ay

63 C2d 767, 48 CR 188, 408 P2d 946, was an

early application of the Escobedo-Dorado prin-

ciple, Peo v Moore 229 CA3d 163, 40 CR 105,

overturned a conviction based on the testimony

of accomplices alone. Peo v Fierro 236 CA2d

344, 46 CR 132, added to the literature on

unlawful search and seizure. Lambert v Man-

Gel's 156 CA2d Supp 855, 319 Pad 469, was my

contribution to the Civil Rights field.

XVI

Many cases that I did not "win" estab-

lished important points of law: Peo v Za-

pata, supra, has often been cited in 1%

review and decision, among them 48 LEA2d 131.

56 CAL 41, 73 ALR3d 533, 345 F2d 977, 73 CR

1582. In re Patterson, a 4-3 decision after ‘

a unanimous opinion in my favor at the Court j

of Appeal level, has been cited in 50 Mn L 25

674 and 19 HLJ 78, 335. Peo v Ambrose 135 is

ch 513, 318 Pad 183; Peo v Gardner 177 1

c 43, 1 CR 830; Peo v Miller 145 CA2d 28 Ae

=, 302 rad 6035 _ Jack: 1

„ 1

CA2d *

* 4

191 cad 297, 12 CR 748, and Peo v Lawton

150 CA2d 431, 309 P2d 862, have been often

cited,

XVII

During my law practice, I have had a

hobby as essayist, or article writer, I be-

lieve I have shown my legal competence by

the following major such essays: "Can We

Punish for the Acts of Addiction?", 54 Amer-

joan Ber Association Journal, republished in

Geneva, Switzerland, in the United Nations

Bulletin on Narcotics end printed in five

languages. My article "Protecting the Rights

of Non-Smokers" was published in Addictions J

(Canada), republished in Current, Washington, 4

D.C. (January 1977), “What Price Euphoria? E

moe Case Against Marijuana" was published in

the Hedico-Legal Journal (London), republished

in the British Journs? of Addiction (London). ©

"The Winter, 1965, edition of dae Se 2

tion" appeared in the American Criminal Law

Quarterly. "Capital Punishment and Interna-

tional Politics" appeared in the October,

1967, edition of Criminal Law Bulletin. Nor-

cotics Clinics--An American Viewpoint" was

published in the Canadian Criminal Law Quar~

terly. I have had other articles in the Ohio

State Law Journal, Los Angeles Daily Journal

and Los eles Met litan News.

XVIII

I have placed popular-style articles in

the following publications: Negro Digest

(three articles), Listen (three articles), j

Life and Health (two articles), Middle East =

Perspective, Liberator, Soul Illustrated, a

Bronze America, California Crossroads, Afri- =

can-American, Sacremento Observer, Midwest a

Quarterly, end Sacramento Outlook (for which

I wrote a colum for one year). 5

My problems in the years during watch !

* ae ä

9 1 * 5

ditions beyond my control. Although not

fully realized or admitted to myself, the

aging process makes me no longer able to do

it all," such as typing an appeal brief all

night long to make a deadline. Much of the

time involved, I was without secretarial ser-

vices; and when I was able to find secretar-

ies, they were invariably trainees, whose

output was minimal and often unusable, be-

cause of inadequate command of English, hence

taking more of my time in teaching them than

if I had done the work myself, I have prac-

ticed law in three California cities, and em

in my 30th year of practice; and I had no

such problems until moving to the Bay Area

in 1971. Although I have always been a sole

practitioner (and this may be part of the

problem), I have twice employed attorneys just

out of law school for periods of one year

dach, to help me with the work load, Other

. tines, x have been unable to find, or finan= — a

| 1 were ene, 8 1

* _ ia a - * _* .e

to do the work of one and a half to two per-

' sons by myself. The net result of all this

is that I have attracted more business than

I could handle; and a very small number of

cases have gone by default, never wilfully.

I have never deliberately or with gross neg-

ligence damaged the cause of a single client.

Finally, during the years since I moved

to Oakland, I have had some health problems:

low-back syndrome which strikes once or

twice a year; viral infections at least once

a year, sometimes twice; and a year's treat-

ment for suspected tuberculosis, in spite 5

of all of which I have gra tted my teeth and

carried on--never taking more than a few ;

days off, and continue to do ao, not really

| making or accepting even these, or any other, a

eo 5

N I belong somewhere in the practice of =

5 _ lew, on the strength of my ebilities, hard Yi »

work, and dedication to this profession, I

believe that the total picture merits some

other disposition than disbarment, or even

suspension, However, it may be that I should

do something other than engage in general

practice, as I have done as sole practitioner

for over 29 years. I should like to teach

and write for the rest of my life. I have

obtained an instructor's certificate in law

from the State of California, and I have ap-

plied for a position with the Peralta Dis-

trict. I will apply to other districts if

nothing is available in my home area. 1

would thus hope for a suspension, rather than

disbarment, as appropriate sanction, if any,

so that my membership in the Bar.may be in-

tact as I attempt other outlets than the gen-

eral practice, in which I have had some prob- 3

lems. If 1 do not get a teaching job, I would ©

‘consider working for some branch of govern- A

. ene eee een, Sete”

in several areas of this profession (trial,

appeal, writing). Freed from the adminis-

trative and business aspects of individual

practice, I would be able to devote my tal-

ents and energy in a more productive wanner,.

I hope that the positive aspects of my his-

tory entitle me at least to that much con-

sideration; and I respectfully hope and pray

that this Honorable Court will review the

recommendation of the ‘tate Bar and permit

me to continue in the profession to which I

have devoted my life.

Oral argument was had before the state 9

* Supreme Court on August 29, 1983. on Decem- >

ver 5, 1983, the said Court filed its opin-

: 4

0 ion, ordering disbarment of petitioner. on .

' - December 20, 1983, petitioner filed a Peti- 3

‘ tion for Rehearing or Reconsideration, in 15

which were argued the following points:

* . Featonse tae Some Gintt di. Sone aca

2 1 that the Language mat the 2 base at ee

R 1 7. ‘vr. YS “err

0 5 1 4 « —

* * *

™

fessions Code under which charges against

petitioner were brought are vague, indef-

inite, and uncertain,

II. Petitioner has been denied due pro-

cess and equal protection, under state and

federal constitutions, by a discriminatory

application of the law to petitioner,

III, Petitioner has been denied due

process and equal protection, under state

and federal constitutions, because of the

race of petitioner.

Petitioner called the Court's attention

to the "undisputed fact that, in thirty

years of law practice, petitioner has had no

trouble with the criminal cases in mich he

specializes," and respectfully suggested an

alternative to suspension or disbarment: that

justice would be done and the Constitution

served by a lengthy probation during which

petitioner would be ordered to desist from

teking civil cases and to save Sereno ‘those

wo have been An any way jae

breach of the professional contract of at-

torney-client in the latter class of prac-

tice.

The state Supreme Court took petition-

er's Petition under submission; and on Jan-

vary 25, 1984, denied and overruled peti-

tioner's federal as well as state consti-

tutional positions by denying the said re-

hearing or reconsideration,

H. ARGUMENT

I. PETITIONER HAS BEEN DENIED FEDERAL

AND STATE RIGHTS OF DUE PROCESS AND EQUAL

PROTECTION OF THE LAWS BY THE ORDER OF DT8-

BARMENT,

(A). of the

Proféssions Code Is Unconstitutionally

Vague, Indefinite, and Uncertain.

Due process of lew in legislation re-

quires definiteness, or certainty; a vague

or uncertain statute does not meet the re-

ee, pth e Wee

5 1

* is

cy 5 4 1 — at,

7 *

Activities Ass'n 501 F2d 25; In re J.T, 115

CR 553, 40 CA3d 633.

If an act of the legislature is so in-

complete, vague, indefinite, or uncertain

that men of common intelligence must neces-

sarily guess at its meaning and es to its

application, it denies due process of law,

Connally v General Construction Co. 269 US

385, 46 SCt 126, 70 LEd 322; Baggett v Bul-

litt 377 US 360, 84 SCt 1316, 12 LEd2d 377;

Giaccio v State of Pennsylvania 382 US 399,

80 SCt 518, 15 LEd2d 447; Peo v Grubb 63

C2a 614, 47 CR 772, 408 P2d 100,

Typical of the language of the charges

against petitioner is the following: The

commission of any act involving moral turpi-

tude, professional or non-professional, crinm-

inal or non-criminal, and, in the case of

criminal acts, irrespective of any criminal

conviction, is a cause for disberment or 5

suspension. B & P Code 6101. Ge 4

vun ressonable minds ‘pay ditter ss as to

2 ( ws

* „

the meaning of the statute is shown by the

fact that the California Bar and the Cali-

fornia Supreme Court have, in the present

- case, read into the overly broad language

of the statute acts which are merely negli-

gent or which constitute an unintentional

breach of contract,

Uncertainty is shown by the fact that

the statements of the courts as to whether

disciplinary action is punitive or non-pun-

itive are inconsistent. According to some

cases, disciplinary proceedings are criminal

or quasi-criminal in nature. See Haymon, In

re 121 C 385, 53 P 899; Morton, In re 179 C

510, 177 P 543; Luce, In re 83 C 303, 23 P

350; McCowan, In re 177 C 93, 170 P 1100;

Golden v State Bar 213 c 237, 2 P2d 325;

_ Herrecher v State Bar 4 C2d 399, 49 Pad 832,

5 In many cases, it is intimated that nb

purpose of discipline is both punitive and

red

a Se .

ae "

31, 112 Pad 829.

Crimes must be defined in a statute

with appropriate certainty and definite-

ness, Aptheker v Secretary of State 378

US 500, 84 SCt 1659, 12 LEd2d 952; Peo v

Ortiz 200 CA2d 250, 19 CR 211.

The constitutional vice in a vague

or indefinite statute is the injustice to

accused in placing him on trial for an of-

fense as to the nature of which he is given

no fair notice. Grayned v City of Rockford

408 US 104, 92 SCt 2294, 33 LEd2d 222,

The essential purpose of the "void for

vagueness" doctrine is to warn individuals

of the criminal consequences of their con-

duct. Colton v Kentucky 407 US 104, 92

SCt 1953, 32 LEd2d 584,

Laws which are drawn so widely as to

destroy the innocent in order to catch the

guilty are a denial of due process. Mel-

ton v Railroad Commision of Texas 10 FS

984,

The principle of due process of law req-

uiring reasonable certainty of description

in fixing a standard for exacting obedience

has application in civil as well as in crim-

inal legislation, Cline v Frink Dairy Co.

274 US 445, 47 SCt 681, 71 LEd 1146; Ward v

Auctioneers Ass'n of Southern Cal, 153 P2d

765, 67 CA2d 183.

In Czarra v Board of Medical Supervisors

25 App DC 443, a statute providing for the

revocation of a physician's license for "un

professional or dishonorable conduct" was

held to be void on the ground of vagueness.

(B). Petitioner Has Been Denied Proced-

ural Due Process.

A matter of interest on this point, not

properly considered by the state Supreme

Court though testified about at the hearing

even in the absence of petitioner, is as é

follows: Claimant DeShazer (Mr. D.) had been

_ walling to settle his wrongful-death suit 3

_ for $5,000.00 because the defendant was indi- 3

gent and had no insurance; petitioner kept

the action alive, hoping to get a larger set-

tlement; the five-year statute ran during the

said efforts on petitioner's part; then, mir-

aculously, before the trial of the malprac-

tice suit filed by Mr. D. against petitioner, 5

the former defendant had begun to prosper so :

that now the value of the wrongful death

claim was $75,000.00, which petitioner be-

came liable for in a default court hearing.

The complainant Mr. D. now has a lien

for that amount on petitioner's home, which

petitioner had hoped to leave for his child

and grandchildren; and in view of the above

facts, one is reminded of the language of

Mr. Justice Newman (dissenting) in Marcus v

State Ber 27 C3d 199, 165 CR 121, 611 P2d

462: "The petitioner has been a member of

the bar for more than 53 years, Already he

has been punished severely. To, disbaer him

8 * 1

“now seems needlessly harsh, even dreconian,"

ess was denied by the Bar's accepting and

the Court's adopting the claim of Mr. D.

From the timing of his lawsuit and the fil-

ing of his claim before the Bar, it is ob-

vious that his counsel used the disciplinary

proceeding for a private purpose, to serve

as a lever or wedge to enforce payment of

the judgment in the malpractice suit. Pe-

titioner submits that such use is contrary

to the purpose of disciplinary proceedings

and constitutionally suspect. 4

In a given case, the court may consider

particular circumstances which make it un-

just or unfair to require an attorney to :

answer charges raised after an unreasonable

delay. Lowenthal, In re 78 C 427, 21 P 7. i

This is especially the case where the 1

conduct of the accused has been exemplary :

in recent times. USA v Parks 93 F 414,

(C). Petitioner Has Been Denied Equal -

The Fourteenth Amendment to the Consti-

tution of the United States provides: "Nor

shall any State deprive any person of life,

liberty, or property, without due process of

law." By virtue of a further clause in the

said Amendment, a state may not deny to any

person within its jurisdiction the equal pro-

tection of the laws,

It is petitioner's position that the

state Court has exacted greater penalty in

this case than in any other similar state of

facts which petitioner has discovered; that

in cases of much more aggravated conduct on

the part of accused counsel, leniency has

been shown; and thet in cases of equal or

greater magnitude, disbarment has not been

decreed,

In view of the criminal or quasi-crimi- ~

nal nature of disbarment proceedings, it is

respectfully submitted that the recent pro-

| portionality" doctrine of the United States =

| .

* 9 e te

Supreme Court should be here applied:

Eighth Amendment forbids sentence, in-

cluding prison term for felony, that is dis-

proportionate to the crime; in making dis-

proportionality analysis court should exam-

ine objective criteria such as gravity of

the offense and harshness of penalty, sen-

tences imposed for other crimes in same jur-

isdiction, and sentences imposed in other |

jurisdictions for the same crime, See Solem |

v_ Helm US „103 SCt 3001, 77 LEd2d ;

637. ‘4

Relief from state disbarment proceed-

ings can be had in a federal court... on

proof of federal constitutional violations.

Getty v Reed 547 F2d 971.

The power to discipline attorneys is

not an arbitrary one to be exercised at the

pleasure of the court or because of passten.

pry judice, or personal hostility; itis re-

ther one to be used with moderation and cou

tion, in the exercise of e sound 3

discretion, and only in a clear case, for

the most weighty reasons, In re Fisher 179

F2d 361; In re Spicer 126 F2d 288; In re

Claiborne 119 F2d 647; In re Sacher 206 F2d

357. |

The wrongdoing must have been inten-

tional or wilful in order to constitute

cause for the disciplining of an attorney,

and there must have been an improper or

fraudulent motive for the acts or conduct

complained of. In re Ryder 263 FS 360; Wal-

lis v State Bar 21 C2d 322, 131 Pad 531.

Broad power in this respect.....cannot

be exercised so as to ignore or abrogate

federally protected rights, or rights se-

cured by the constitution, Johnson v Avery

393 US 483, 89 SCt 747, 21 Lad 718; Erdman

VStevens, CA NY, 456 724 1205; Steud y

Stewart 366 PS 1396; Bx parte Auditor of

Public Acoounts (Ky) 609 ane 682; Singer

1244; State Bar X Kramer 249 Mad 1, 399 Mich

116; Ballou v State Ethics Comm, 424 A2d 983,

56 PaCom 240,

The practice of law is not a matter of

grace or favor, but is a right for one who

is qualified by learning and moral character,

Baird v State Bar of Arizona 401 US 1, 91 SCt

702, 27 LEd2d 639; Schware v Board of Bar Ex-

aminers of State of New Mexico 353 US 232,

77 SCt 752, 1 LEd2d 796, 64 ALR2d 288; Halli-

nan v Committee of Bar Examiners of State Bar

65 Cad 447, 55 CR 228, 421 Pad 76.

Claim for admission to the bar is one

of "right" entitled to protection of proced-

ural due process. Hallinan v State Bar,

supra,

The language of the immediately preced-

ing peragraph can be paraphrased to afford

the same due process rights to retention of ,

membership in the Bar, once attained,

R 7) hy , 4 e 8 ?

. 4 ' a 0

pliance with the law, becomes a valuable

privilege or right in the nature of property,

and is safeguarded by the principles that ap-

ply in the protection of property

lawfully acquired, Czarra v rd cal

Supervisors 25 App DC 443,

A statute providing for the revocation

or suspension of a medical or legal profes-

sional license, although constitutional on

its face, may be enforced so arbitrarily as

to deprive the licensee of due process of

lew. Butcher v Maybury 8 F2d 155.

To illustrate petitioner's claim of dis-

proportionate treatment, we now set forth the

following cases, in which, while the acts

complained of were well beyond those of the

present case in blameworthiness, suspension

only, or even reprimand, was imposed:

Plea of guiity to grand theft. Re Doe

(ice) 20 C34 350, 143 CR 253, 573 bea 472

(3 years).

to promptly disburse funds; prior discipline

for failure to pay litigation costs, Blair

v State Bar (1980)27 C3d 407, 165 CR 834,

612 Pad 924,

Misappropriation of clients' funds, for-

gery, improper collection of unearned fees;

unconscionable fees; failure to forward

2 files; unnoticed withdrawal. Finch v State

Bar (1980) 28 C3d 659, 170 CR 629, 621 P2d

253 (5 years).

Misconduct involving client trust funds;

prior record involving misappropriation;

320, 000. O0 misappropriated in present case;

false statements in prior proceedings, Doyle

| v State Bar (1962) 32 C3d 12, 184 CR 720, 8

* 648 Pad 942 (5 years).

i Moral turpitude and dishonesty; misap-

propriating clients’ funds; misleading a

Client in a business transaction, Giovanni 4

re Bar (1960) 28 C34 465, 169 CR 581, 5

* 619 rea 1005 (3 years). 3

* e ae of an, cominghing , 8

. seh" i ad

— 1 *

temporary conversion. Cain v State Bar

(1978) 21 C3d 523, 146 CR 737, 579 Pad 1053.

The court in Gould v State (1930) 99

Fla 662, 127 So 309, 69 ALR 699, held that

an order of disbarment was erroneous and

should be reversed where it appeared that

the attorney was charged with failure to dil-

igently prosecute claims, and thus causing

the client to lose the benefits which should

have been secured to him under the statutory

lien laws, the court saying that "no corrup-

tion is charged, but laziness or inattention

to business entrusted to his care, and pre-

varication to excuse it," and that evidence

was wholly insufficient to establish any dis-

honorable or corrupt motive on the attorney's

part, even if the charge was sufficient to

put him to trial.

In Atty, Gen, v Lane (1932) 259 Mich

283, 243 NW 6, it was stated that inattention 1

do duty, F

r to the affaire’of « oLienty: |

ie ea 3

mR on

. i ea

5 1

called for censure but did not, standing

alone, constitute grounds for disbarment,

In Glenn v State Bar of California

(1939) 14 cad 318, 94 Pad 43, it was held

that an attorney should be suspended for two

years, rather than disbarred, where he ac-

cepted fees from several different clients

and thereafter rendered little, if any,

service, misinformed his clients as to the

progress of their business on several occas-

ions, converted clients’ funds, failed to

inform a client of an advantageous offer of

settlement in order that he might be re-

tained to handle further litigation in the

matter, and caused one client to file a

‘blank form of verification to a complaint

which had not been then drawn, The court,

in ordering suspension rather than disbar-

ment, stated that the record failed to re-

veal that the attorney was wilfully dis- 7

honest or deliberately neglectful of his f

of duty in the main grew out of his finan-

cial embarrassment, and that while this fact

would not, of course, justify his conduct

or absolve him from wrongdoing, it would

in measure lessen to at least a slight de-

gree its blameworthiness,.

Where an attorney accepted a fee from

one client for the purpose of establishing

a birth record and neglected to perform the

services, and failed to complete the pro-

bate of an estate for another client, it

was held in Farrar v State Bar (1934) 1

Cad 359, 34 Pad 1024, that the attorney

should be suspended for one year, the court

pointing out that his misconduct consisted

of dilatoriness and negligence and did not

in any way involve moral turpitude, that

the attorney appeared willing to do what-

ever in his power to compensate for his

neglect, that he acknowledged his respon-

sibility snd the justice of the disciplinary :

ishment be not so severe as to preclude

his place in the legal profession,

Where an attorney was charged with

failure to file an inventory and appraise-

ment or proof of publication of notice to

creditors, and for over two years after his

appointment as executor with failing to

file an accounting, with paying himself an

attorney's fee without court approval, and

with distributing part of the estate with-

out court order, it was held in Re Stone

(1934) 77 ‘riz 115, 267 pad 892, that the

record disclosed extreme cerelessness in

the handling of the estate, and while in

view of an absence of any evil or fraudu-

lent intent, the willingness of the attor-

ney to see that no loss resulted to any in-

nocent persons, and his previous good repu-

tation as an individual end es an ettorney,

Gisbarment or suspension of the attorney

was too severe a penalty to impose under

all the circumstances, he should be severe-

— «

ly reprimanded for his carelessness and

neglect in handling the affairs of the es-

tate and warned that any repetition of con-

duct unbecoming a member of his profession

might well result in the imposition of a

more severe penalty.

Where mere negligence was involved and

there was no suggestion of moral turpitude

on the part of an attorney when he failed

to file his brief and caused a client's ap-

peal from a tax foreclosure proceeding to

be dismissed, the court in Holland v Flour-

noy (1940) 142 Fla 459, 195 So 138, reduced

the attorney's suspension from two years to

five months, saying that the two-year sus-

pension was too severe in the light of the

attorney's reputation of being an able and

outstanding member of the bar and the fact

that he was in his middle sixties, and that

a suspension for two years would te tanta

mount to disbarment.

Attorney was suspended for five

i .

on condition of probation, including actual

suspension of six months, where he misappro-

priated funds, wilfully failed to render

services, refused to communicate with cli-

ents regarding status of their actions and

made false and knowing deceptions; however,

his good reputation as attorney before and

after period in question es well as his can-

dor, cooperation and remorse throughout

disciplinary proceedings, were mitigating

circumstances, Demain v State Bar 3 C3d

381, 90 CR 420, 475 Pad 652.

*ttorney's misconduct in, inter alia, )

failing to perform legal services and com-

mingling and misappropriating client funds

amounted to pattern of habitual offenses

which could only be regarded as deliberate

and wilful; relatively lenient punishment

of actual four~month suspension would be 2

imposed where misconduct at issue occurred | sd

prior to 1976 public reproval, where there 3

tinued beyond 1976 proceeding and where,

inter alia, there was showing that attorney

had taken steps to establish more orderly

office procedures, Inniss v State Bar 143

CR 408, 20 C3d 652, 573 P2d 852.

Where attorney had (1) commingled gen-

eral account with client funds, (2) aban-

doned client by willfully failing to pro-

vide legal services he was retained to per-

form, (3) filed false accountings with pro-

bate court in two separate estate probate

matters, with intent to deceive court, and

(4) willfully misappropriated client funds

in three separate instances, suspension was

appropriate penalty taking into considera-

tion attorney's unblemished record over per-

iod of 37 years of law practice, his age

(65 years), his medical problems, his med-

ical problems, his emotional distress over

quigite of cg and ape restitution

Fs r

r tn My eee

stayed and attorney placed on probation for

five years on condition that he be suspended

for first three years and readmission there-

after be conditioned on passing Professional

Responsibility Examination, Jackson v State

Bar (1979) 23 C3d 509, 153 CR 24, 591 Pæd 47.

Indefinite suspension rather than dis-

barment, was imposed on assistant city soli-

citor with history of misconduct, who failed

to timely record deed for private clients,

where there was strong evidence of his con-

petence as a city employee and where he

agreed to limit practice to real-estate mat-

ters involving city as part of sanction,

Attorney Grievance Com, v Pollack (1961)

289 Md 603, 425 A2d 1352,

(D). Petitioner Was Denied Equal Pro-

| : 1

Discrimination by a state against any

er degemae duristietion because of

2 A 3 Aa

3 einer sty — in particular the Meee anes |

crimination Commission v Continental Air

Lines, Inc. 372 US 714, 83 SCt 1022, 10 LEd2d

84; Hunter v Erickson 393 US 385, 89 SCt 557,

21 LEd2d 616,

This rule protects against state action,

which includes action by the judiciary, as

well as by the legislature. Johnson v State

of Virginia 373 US 61, 83 SCt 1053, 10 LEd2d

195. 7

Federal court has jurisdiction to review

denial of license to practice law based on

constitutionally impermissible reason and

claim of racial discrimination, Newsome v

Domingue (1978) 455 FS 1373.

Eversince I moved from Ohio to Califor-

nia, over thirty years ago, I have heard it

said that unfair standards for admission to

the Bar have been visited upon members of

eee

knowing the race of those whose tests they 4

are grading. 3

However, different considerations may 4

apply in disciplinary proceedings, where the

race of the accused is obvious, Thus, the 3

prosecuting staff of the State Bar may have 4

members who exercise less than objective

standards in their actions and recommenda- 8

tions; and the Supreme Court of the State 4

may umconsciously compound racial selectiv- ‘

ity perpetrated by the Bar lawyers.

It is conceivable that some of the

staff lawyers may act out of personal or

racial bias, and it is important for the

state Supreme Court to carefully supervise

disciplinary actions of the Bar in order to

e N : ,

argument on August 29, 1983, had no answer

to a suggestion of one of the justices of

the state Supreme Court that, while this pe-

titioner may have acted "sloppily" in dealing

with the disgruntled clients, there did not

seem to be intentional wrong on his part--

with the further implication that it was un-

usual for the Bar to recommend such severe

3 sanction in a factual situation like that

of this petitioner,

That the state Supreme Court may itself

be guilty of racial bias, conscious or other-

wise, may be illustrated by my own history

; before it, Thus, for a five-year period (as

| gtated in the facts hereinabove), beginning i

in February, 1955, I fought almost single-

: handedly against general criminal registra-

4 ;

a tion in California, Mine was a labor of 4

a love, for which 1 was paid 0 8 n “ah 5

. Court an — tating 0 » te te

77 SCt 240, 2 LEd2d 228, that ignorance of

the law can be an excuse (as in failure to

informed of the duty so to do). What I call

the Supreme Court phase of my efforts took

two years, fortunately, so that, by adding

the one year I had practiced in Ohio, I just

barely qualified under the then recently re-

duced (from five years) three-year rule, to

personally appear before the Court for oral

argument.

The second phase, proceeding in the

state courts after the Supreme Court decis~

ion, took three years, ending in April, 1960.

During the last six months of these proceed-

ings the American Civil Liberties Union

jumped on the bandwagon; and the companion

| eases of Lambert v Municipal Court 53 C24

‘aes 38 3 168, and eee e

Supreme Court wrote the principal opinion in

Abbott although Wirin specifically refused

to urge, in his brief and oral argument, the

point upon which the decision was based: pre-

emption of criminal registration by the state

statute. Wirin had asked me to waive my ar-

gument on statutory conflict and join him in

his due process and equal protection approach,

but my knowledge of how appellate courts often

rely upon less sweeping a view’ of the law

caused me to stick with all my points, in-

cluding the ones on due process and equal 4

protection.

Ironically, the state Supreme Court gave

* the Abbott counsel credit for the Lambert ar-

4 gument that I, and I alone, had been making

in briefs and motion and oral argument since

my first demurrer in a criminal case in

February, 1955.

Sg The ACLU lawyers were white. T em

be. block. | | CS ae

r believe that a close scrutiny

~ : 1

Tee ay Ea Pe

choice of suspension or disbarment by the

Court, and the recommendations thereof by

the Bar, will show racial selectivity--and

that such appears in the cases hereinabove

presented and that of petitioner,

I. SUMMARY AND CONCLUSION

Disbarment should be decreed only when

the court is convinced of its necessity for

the protection of the profession, the courts,

and the public, and a removal from the bar

should not be decreed where any punishment

less severe, such as reprimand, temporary

suspension, or fine, would accomplish the

end desired. In re Ruffalo 390 US 544, 88

SCt 1222, 20 LEd2d 117; USA v Rivera, CA 9,

475 F2d 1372; USA v Rafter, CA Cal, 469 F2d

91; USA v Smith, CA Cal, 436 rad 1130; Bar- 2

bee v State Bar 213 C 296, 2 Pad 353. Jj

To warrant disbarment, an attorney's

conduct must be so gross as to show want of

161 SC 263, 159 SE 627.

A lawyer should not be permanently de-

prived of his profession by disbarment when

he has reached an age where it would be

difficult for him to enter any other walk

of life, if there is reasonable hope of ref-

ormation, In re Williams 128 SW2d 1098,

233 MoApp 1174,

Disbarment of an attorney is the des-

truction of his professional life, his char-

acter and his livelihood and therefore

should be imposed in moderation. In re

Power 96 NE2d 460, 407 111 525,

Disbarment, being the most severe

punishment which may be meted out to an at-

torney, should be imposed only when the evi-

dence shows that the possibility of restora-

tion is unlikely or remote, or where the at-

torney demonstrates an attitude or course of

conduct wholly inconsistent with approved

“ees

4 * ;

a >

3 8 5 - 3

professional standards. The Florida Bar v

74 Sy . 1 * “> 75 — 2

* * 6 as 7 *

| , 5 1

nied ä

n 3

1 ae f > A *

4 e * 7

° 8 7 .

45 :

2 1 ‘

OS =

SW2d (Mo) 427.

Where mitigating circumstances are

shown, the court will often suspend, rather

than disbar, the attorney, or will reduce

the term of suspension, In re Paris 4 FS

878; Smukler v State Bar 2 C2d 80, 38 P2d

977; Recht v State Bar 218 C 352, 23 P2d 273

Hyland v State Bar 59 cad 765, 382 P2d 369;

Durbin v State Bar 23 C3d 461, 152 CR 749,

590 P2d 876,

The court mav, instead of striking an

attorney's name from the rolls, merely sus-

pend him from practice. Oliver v State Bar

525 Pad 79, 12 C3d 318, 115 CR 639.

Where the misconduct of the attorney

is not sufficiently flagrant to justify dis-

barment or suspension, or mitigating circun-

stances are shown, a reprimand or censure

may be administered. In re Baker 297 US 691,

@0 LEA 1414; In re Carroll 416 F24 965; Nx

idson v State Bar 17 c 570, 131 CR 379,

„

* r +

Where there are mitigating circumstances,

the court may, instead of suspension or dis-

barment, place the attorney on probation, on

certain conditions, In re Reynolds 18 C3d

929, 136 CR 131, 559 P2d 55; In re Cohen

11 C3d 935, 114 CR 611, 523 P2d 651.

At the disciplinary hearing before the

State Bar committee on 2-17-81, the chief

prosecuting attorney had to make a grudging

concession: Mr. McMorris has appeared at

some of the prior hearings and the defenses

that he raised there were that he had a

great deal of secretarial problems, a great

deal of turnover, that he had a busy crimi-

nal practice and that the civil matters

tended to slip through the cracks, so to

speak. . . . . und all of the discipline that's

been imposed on him has been imposed be-

cause of actions in civil cases."

In view of the undisputed fact thet,

| in thirty years of law practice, this pe-

| | titdoner has had no trouble with the crimi-

4 1 . . he ae es ;

57 m yr gt 7

- =A * et 1 N.

Sed 3 * 8 oy — r

a 4 4 ate

„ 7 1 > Bes ‘

nal cases in which he specializes and which

form the bulk of his practice, it is respect-

5 fully suggested that justice would be done

, and the Constitution served by a lengthy pro-

dation during which petitioner would be or-

"ss dered to desist from the civil practice and

. to save harmless those mo have been in any

| way injured by his breach of the professional

. contract of attorney-client in the latter,

| Respectfully submitted,

8 | „ S ads PD

Petitioner

5 :

2 ,

„ * 1

ol “4 ; rks

APPENDIX A

SUPREME COURT OF THE STATE OF CALIFORNIA

SAMUEL CARTER MC MORRIS,

Petitioner

-vV8s- 8. F. 24545

THE STATE BAR OF CALIFORNIA,

Respondent

BY THE COURT

This is a proceeding to review the reo-

ommendation of the State Bar of California

that petitioner, Samuel Carter McMorris, be

disbarred from the practice of law, This

recommendation is based on petitioner's will-

ful failure to communicate with several of

his clients and to perform the services for

wich he was retained during the period from

November 1969 to September 1978. For the

|. Feasons discussed below, we adopt the State ag

| Bar's recommendation and conclude that peti-

|) toner should be disbarred, „„

Petitioner was admitted to the practice

of law in California on January 14, 1954,

He has a record of prior discipline. On De-

cember 8, 1977, this court suspended peti-

ticner from the practice of law for a period

of one year for acts of misconduct mich oc-

curred between 1975 and 1977. Execution of

this order was stayed and petitioner was

placed on probation with the conditions that

he make restitution of $200.00 received in

advanced fees and $40,00 which was misappro-

priated, and that he take and pass the Pro-

fessional Responsibility Examination within

one year, (Bar Misc. No. 4028).

Subsequently, on September 20, 1978 (ef-

fective Oct, 21, 1978) this court suspended

petitioner for 90 days for failure to perform

services for which he had been retained.

(Bar Misc, No, 4077). On January 15, 1979,

we again suspended petitioner because he had

failed to take and pass the Professional Re-

sponsibility Examination within one ver.

, | 2 i

(Bar Misc. No. 4028), Petitioner remained

suspended until May 17, 1979,

In February 1981, as a result of further

acts of misconduct occurring during the per-

iod from June 1975 to November 1978, includ-

ing three counts of failing to perform ser-

vices for clients, we suspended petitioner

from the practice of law for 180 days, or- 5

dered that he again submit to the State Ber !

proof of passage of the Professional Re- 2

sponsibility Examination, and ordered that —

he comply with rule 955 of the California 1

Rules of Court and perform the acts speci-

fied in subdivisions (a) and (c) of that

0 rule. (MeMorris v State Bar (1981) 29

8 Cal. 3d 96). x

In the present matter, formal proceed- a

Inge were instituted against petitioner on 9

4 5 August 12, 1980, October 22, 1980, January

109, 1961, and March 24, 1981, by notices to

"show cause charging petitioner with a total

or Ped ae of misconduct. Sagat — .

¥ as 1 am * a <. a es, : 3

we * ; N tie oh : 3% * . zs > # “2.

arate hearings, three counts were dismissed,

In the remaining five counts, the State Bar

Hearing Panels found multiple violations of

the following statutory and rule provisions:

(1) Business and Professions Code section

60672 (the attorney's oath to faithfully dis-

charge his or her duties to the best of one's

knowledge and ability); (2) section 6068 (set-

ting forth several duties of an attorney);

(3) section 6103 (violation of the attorney's

oath or duties, or willful violation of a

court order connected with the attorney's

profession); (4) section 6106 (commission of

an act involving moral turpitude, dishonesty

or corruption); (5) rule 6-101, subdivision

(2) of the Rules of Professional Conduct”

1 All further statutory references are

to the Business and Professions Code unless

otherwise indicated,

2 All further references to rules are

to the Rules of Professional Conigt of the,

indicated, r A

ca 7

(willful or habitual failure to use reason-

able diligence and best judgment in an ef-

fort to accomplish the purpose for which the

attorney has been employed); and (6) rule

2-111 (guidelines to withdrawal from employ- ;

ment and representation of a client), The on

hearing panels uniformly recommended dis- ;

barment,.

These matters were consolidated by the

State Bar Review Department for purposes

of oral argument and for the rendering of

joint findings of fact and a single recon- :

mendation, The review department unenimously " ar

adopted the findings of fact of the hearing 25

panels and recommended that petitioner be 5

disbarred, : 1

These several violations arose in seven

separate matters involving five different |

Be i Oe nt. eh. cee) S.A

25 N ee tie: | r

er 3 ot ; > ah

1 2

In March 1978, Mr. F. retained petitioner

to represent him in connection with a con-

tract and collection dispute, After filing

the complaint, petitioner failed to perform

the services for which he was retained. He

did not advise Mr. F. that a cross-com

plaint had been filed against him or that

trial had been set. Petitioner failed to

appear at trial and a default judgment was

entered against Mr. F. in the sum of $5,000,

Petitioner failed to respond to Mr. F. s in-

quiries regarding the case and did not ad-

vise him of the default judgment. Mr. F.

was ultimately required to obtain addi-

tional counsel to have the default judgment

set aside.

The State Bar concluded that petitioner

ee SY ee

es defined by section 6067,

9 A R

pending probate proceeding pertaining to her

deceased father's estate, Thereafter, pe-

titioner failed to perform any of the ser-

vices for which he was retained and did not

respond to Ms. P's inquiries regarding

her case,

The State Bar concluded that petitioner

violated his oath and duties as an attornev

as defined by section 6067 and rule 6-101,

subdivision (2), and that he retained the

sum of $500 for his own use while performing

no services for his client.

On November 8, 1969, Mr. and Mrs. D.

entered into a contingency fee agreement

with petitioner to bring an ection on their

behalf to recover damages for the wrongful

* —— any services for whieh he

failure to bring the action to trial within

five years, Petitioner failed to respond ,

to inquiries by Mr. D. regarding his case. 685

He did not return Mr. D. s telephone calls

nor did he respond to a registered letter,

Mr. D. subsequently filed a legal malprac-

tice action against petitioner and obtained

n default judgment in Julv 1978 for the sum

of $75,000, No part of this judgment had :

been paid by petitioner at the time of the |

State Bar hearings.

The State Bar concluded that petitioner 1

willfully and intentionally violated his oath

and duties as an attorney and committed acts

ot moral turpitude in violation of sections

067, 6068, 6103 and 6106 and rule 6-101,

subdivision (2),

2 ni ; Re

! | During February, September, and * 2 +

_ 1978, Mr, . entered into four n

2 petitioner for es aa

| of these matters was successfully resolved

| by petitioner, The remaining matters in-

volved possible litigation against an auto-

mobile transmission repair servine for den-

ages to Mr. T. s car, a possible action

against a restaurant to recover damages for

personal injurv, and the filing of a probate

action, Thereafter, petitioner failed to

perform any services for which he had been

employed and failed to respond adequatelv

to Mr. T. s inquiries regarding any of these

cases, Petitioner represented to Mr. T.

that the probate case was under control. |

However, Mr. T. never recovered any money

from the estate end he testified that he .

believed the estate had now escheated to 0

the state. 4

The State Bar found that petitioner

wilfully violated sections 6067, 6068 and

6103 and rule 6-101, mrs Fa Qs

2e_The G, Matter.

on 3 2, 1977, petitioner agreed

to represent Ms, G. in an action to recover

damages for personal injuries resulting from

an automobile accident, Apparently, no fee

arrangement was discussed, Petitioner rep-

resented Ms. 0. in trial but an adverse jury

verdict was rendered, Thereafter, petition-

er agreed to represent Ma. G. on appeal for

a $500 fee to cover the cost of the trans-

cript. Petitioner received $200 in install-

ments.

Petitioner filed a notice of appeal on

April 17, 1978. As noted above, on October

21, 1976, petitioner was suspended from the j

practice of law by order of this court,

(Bar Misc, No. 4077), on October 30, 1978,

4 petitioner was notified thet the appeal was *

subject to dismissal unless a filing fee vs

paid. Petitioner did not notify Ms. G.of 9

this notice, nor of his suspension, and he

did not pay the filing fee. The appeal was a

| digmissed on December 6, 1978, Petitioner — 2

Pow

1 “tay

Fr 15

VVV Shee

} 2 8 1 x ta — Yo ia

. eit 1 Pike 3

to have the dismissal set aside, Moreover,

petitioner did not respond to Ms, G.'s in-

quiries regarding her case,

The State Bar concluded that petitioner

willfully violated sections 6067 and 6103

and rules 6-101, subdivision (2) and 2-111

and that he retained the sum of $200 for his

own use while performing no services for

his client.

DISCUSSION

Petitioner did not respond by pleadings

or appear at any of the proceedings before

the hearing panels on these matters because,

as he concedes, he "had no defense to the

basic fact of not having prosecuted the

claims of the complainant clients," Pe- i

“ieee A

titioner did, however, petition the review 4

department for relief from default, hearings

de novo and review of the decisions of the | 1

| hearing panels in the D., 7. and d. matters. a’

“a vi en er were denied, 1. dee , be

cipline of disbarment, Additionally, al-

though there is no transcript of the pro-

ceedings, petitioner was present and ad-

dressed the review department on October 14

and 15, 1982.

The only challenges to the evidence

which petitioner renews here are that he in-

formed Mr. T. of his suspension and that it

was his intention to attempt to handle the

G. appeal as law clerk for another attorney

of his selection. Also, petitioner states

simply thet he "expected the finding to be

negligence, not intentional tort,"

Petitioner bears the burden of showing

that the findings of the State Bar are not

supported by the evidence, (Gallagher v

State Bar (1981) 26 Cal,3d 832, 837.) “In

meeting this burden, the petitioner must den-

onstrate that the charges of unprofessional

conduct are not sustained by convincing

"proof and to a reasonable certainty." (Him

v. State Bar (1971) 4 cal. vu 786, n. i

» +>

3 n — ** * * *

9 30 3

Petitioner has not met this burden,

We have stated that attorneys who have not

appeared before the local hearing panels

may not subsequently demand that this court

consider evidence which should have been

previously presented, (Lavin v State Bar

(1970) 14 cal. 3 581, 585). Moreover, upon

our independent review of the record we

conclude that the findings of the review

department, including those pertaining to

the T. and d. matters, are supported by the

evidence. Petitioner's assertion that he

informed Mr. T. of his suspension is irrele-

vant. The State Bar did not find that peti-

tioner failed to inform Mr, T. of his sus-

pension or that petitioner's handling of the

T. matters constituted the practice of lew

while suspended, Furthermore, petitioner

nowhere asserts that he ever selected encther

attorney to pursue the d. matter,

Petitioner's hope that the tate dar

4 > =

13 phe : =

* 1

0 * aw 4 * . 7

. 9 N — a

. 2 N

tentional, is also without support. We have

previously stated that “although a few of

(petitioner's) offenses, standing alone,

might be described as merely negligent, or

grossly negligent, his persistence in refus-

ing to perform services for which he was en-

gaged, and for which he accepted fees, can

only be regarded as deliberate and willful."

(Grove v. State Bar (1967) 66 CI. 24 680,

683).

Concluding that the State Bar's find-

ings regarding petitioner's conduct are sup-

ported by the evidence, we next consider

whether petitioner's misconduct warrants the

discipline recommended, Petitioner contends

that disbarment is excessive, He seeks to

mitigate the recommended discipline by ref-

erence to his background and charecter, the

n cases in which he has previously ren-

dered “highly extisfactory services, often

an 0 matter of cherity,” his “significant —

| Stee oe ce to

> >

coal

. e J ZY :

. es ra es

15 ö

. A

fe *

Se aie

in criminal qustice, the fact that he at-

9* tracts more business than he can handle,

his inability to secure adequate secretarial

services, and his declining health.

Although we give great weight to the

State Bar's recommendation, this court exer-

cises its independent judgment in determin-

ing the appropriate degree of discipline

a7 |

5 to de imposed. (Warner v. State Bar (1983)

34 Cal.3d 36, 43.) “Determination of dis-

5 cipline turns upon several considerations,

including the protection of the publis, the

n promotion of confidence in the legal pro- ;

| fession, and the maintenance of professional

standards." (Rimel v State Ber (1983) 34 j

c. 34 128, 111.) Petitioner bears the bur-

den of demonstrating that, with due consaid-

eration to these objectives, the recommenda-

tion of the State Ber is erroneous, (Tia.

. Por the following reasons, we conclude thet 4

Aa we stated in 1961, “petitioner's 2 25

* * Ree”

: * — & 1

* -~

—

oy)

i a

SPR

past participation in important criminal ap-

peals, and his literary contributions, as

outlined in his petition for review, while

commendable, cannot excuse his repeated fail-

ures to perform services for his clients,

Nor do petitioner's busy practice and secre-

tarial problems constitute circumstances

which substantially mitigate such misconduct,

(Citations.)" (McMorris v State Bar, supra,

29 Cal. 3d 96, 99; see also Ridley v State

Bar (1972) 5 Cal,3d 551, 561.)

Petitioner contends that during the last

| five or six years he has suffered repeated

5 "low-back syndrome," viral infections and

* treatment for suspected tuberculosis. How-

2 » petitioner's abandonment of Mr, and |

Mrs. D. s case as early as 1969 casts some

doubt on his assertion that his health

has been a significant: causative factor in,

his misconduct, (Cf. Ambrose v. State Bar

(1962) att 184, 195+) :

Pa Pie ne ARO CY ee hme te

of discipline, the State Bar properly con-

sidered petitioner's prior disciplinary rec-

ord, (McMorris v. State Bar, supra, 29 |

Cal.3d 96, 100; Marcus v State Bar (1980)

27 Cal. 3 199, 202.) We may also consider

the harm suffered by others as a result of

the attorney's misconduct. (Spindell v

State Bar (1975) 13 Cal.3d 253, 261.)

Significantly, in examining the com-

bined record of this disciplinary proceeding

and petitioner's prior discipline, we are

confronted not by isolated or uncharacter

istic acts: but dy da continuing course of

serious professional misconduct exteriding

_ Over a period of several years." (Tomlin-

son v. State Bar (1975) 13 Cal.34 567, 576.)

We are therefore concerned with what a-

peers to have become an habitual course of

. We Relieve thet the „

„ . . mA ol fellas alas

. 4 n bak eb Fey =

supra, 34 Cal.3d 128, 131-132.) As peti-

tioner has previously demonstrated, the pub-

lic and the legal profession would not be

sufficiently protected if we merely, once

again, suspended petitioner from the prac-

tice of law. (Ambrose v. State Bar, supra,

31 Cal.2d 184, 196).

"As we have repeatedly stated, willful

failure to perform legal services for which

an attorney has been retained in itself war-

rents disciplinary action, constituting a

breach of the good faith and fiduciary dutv ee

owed by the attorney to his clients. (Cita- ee

tions)" (Lester v State Ber (1976) 17 Cal. 2

54°, 551.) Moreover, habitual disregard by

an attorney of the interests of his or her

r Saghee eh SamnenS Y

An en clients constitute acts of deen,

Cal. 3d 631, 635-636; Ridley v. State Bar,

supra, 6 Cal. 3d 551, 560-541; Alkow v. State

Bar (1971) 3 cel. 30 924, 935-936; Simmons v

State Bar (1970) 2 Cal.3d 719, 729-732.) x.

Accordingly, we order that petitioner

be disbarred from the practice of law in this

state, We further order that petitioner 5

comply with rule 955 of the California Rules

of Court and that he perform the acts spec- ae

ified in subdivisions (a) and (c) of that 1

rule within 30 and 40 davs, respectively, a

after the effective date of this order. This |

order will be effective 30 days after ne

filing of this opinion. :

e. PR —

N N

* *

APPENDIX B

ORDER DENYING REHEARING *

2 NO. S.F. 24545 afc

3 SUPREME COURT OF THE STATE OF CALIFORNIA

Le IN BANK

SAMUEL CARTER McMORRIS

-Vs- Pr

1 STATE BAR OF CALIFORNIA *

a Petition for rehearing DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.