SHENK, J., Dissenting I dissent.
In this proceeding the majority has departed from the rule followed in this state for over half a century. In fact, never in the history of this court has a judgment that has been reversed or otherwise set aside been permitted to form the basis of a summary order of disbarment under the statute. That the conclusions of the main opinion are unsupported by and are contrary to the uniform holdings in similar cases will more fully appear from the following discussion of the case.
The petitioner was admitted to the bar of this state on July 22,1915. In 1937 he was charged in the Municipal Court of the City of Los Angeles in two counts with violation of section 311 of the Penal Code, a misdemeanor. On July 1st, of that year, he was convicted on both counts and sentenced to serve one hundred and eighty days in the city jail. Upon a certificate of the record of his conviction, presented by the secretary of the State Bar, this court on July 13, 1937, suspended the petitioner from the practice of the law until the judgment should become final. That order of suspension has not been formally set aside, and is not affected by the present proceeding. The petitioner appealed from the judgment of conviction and from an order denying his motion for a new trial. The judgment was reversed and a new trial ordered by the appellate department of the superior court. On a retrial the petitioner was found guilty on the same two counts, and the court on December 23, 1937, sentenced him to imprisonment in the city jail for one hundred and eighty days. As a part of the same order the court suspended the execution of the judgment and placed the petitioner on probation on condition that he serve one hundred and seventy-five days in the city jail. He appealed from that judgment on the ground that the evidence was insufficient to support the conviction. The judgment was affirmed on March 1, 1938. Upon a certificate of the second judgment of conviction which included said probationary order, this court on April 5, 1938, ordered the petitioner disbarred. He satisfied the terms of his probation and, on his application, the trial court on October 10, 1939, set aside the [66]verdict of guilty and dismissed the accusation under the authority of section 1203.4 of the Penal Code.
Thereafter, the petitioner filed the present petition to set aside the order of disbarment of April 5, 1938, on the ground that the order of the trial court setting aside the verdict and dismissing the criminal action pursuant to said section 1203.4 had released him from all penalties and disabilities resulting from the offense of which he had been convicted, and that there was, therefore, no final judgment of conviction upon which an order of disbarment had been or could be based.
The petitioner relies first on the Penal Code section and on In re Herron, 217 Cal. 400 [19 Pac. (2d) 4]. The code section provides that when the defendant has fulfilled the conditions of his probation “the court shall set aside the verdict of guilty; and . . . shall thereupon dismiss the accusation or information against such defendant, who shall thereafter he released from all penalties and disabilities resulting from, the offense or crime of which he has been convicted.” Neither the language of the code section which we have italicized nor In re Herron, supra, when properly applied in the light of the subsequent case In re Lavine, 2 Cal. (2d) 324 [41 Pac. (2d) 161], affords support for the granting of the petition on the ground first urged. On this point there is no disagreement here. The disagreement is on the question whether under the statutes and decisions in this state there is in this proceeding a final judgment on which a summary order of disbarment can be based.
There are two well recognized statutory methods of disciplining members of the bar in this state. Both are set forth in articles 1 to 9 inclusive of chapter 4 of the Business and Professions Code, which chapter is called the State Bar Act. One method is provided for in article 5 under the heading “Disciplinary Authority of the Board of Governors” (sections 6075-6087 of the State Bar Act; Deering’s Gen. Laws, 1939, Supp., p. 519). Under this article and rules of professional conduct adopted thereunder, the procedure is provided for initiating and conducting disciplinary proceedings against members of the bar through the medium of accusation, notice and hearing before committees of the State Bar and its Board of Governors, culminating in a recommendation to this-court that the accused be subjected to the discipline suggested, with opportunity afforded for review by this court of the [67]order of recommendation. This method is entirely independent of any prior court proceeding.
The second method is prescribed in article 6 of said chapter 4, under the heading “Disciplinary Authority of the Courts” (sections 6100-6118 of the State Bar Act; Deering’s Gen. Laws, 1939, Supp., p. 521.) Here it may be said that the codification in 1939 of the State Bar Act and the former sections of the Code of Civil Procedure effected no substantive change in the law as it formerly existed, at least so far as the disciplinary power of the courts is concerned.
Section 6101 of the State Bar Act provides: “Conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension as provided in section 6102. The record of conviction shall be conclusive evidence and the clerk of the court in which the conviction is had shall, within thirty days thereafter, transmit a certified copy of the record of conviction to the Supreme Court. The proceedings to disbar or suspend an attorney shall be undertaken by the court upon the receipt of the certified copy of the record of conviction. A plea or verdict of guilty is deemed to be a conviction within the meaning of this section.”
Section 6102 provides: “Upon the receipt of the certified copy of the record of conviction of an attorney of a crime involving moral turpitude, the court shall suspend the attorney until judgment in the ease becomes final. When a judgment of conviction becomes final, the court shall order the attorney disbarred. The other provisions of this article providing a procedure for the disbarment and suspension of an attorney do not apply to an attorney convicted of a crime involving moral turpitude, unless expressly made applicable.”
Then follow sections of the same article having to do generally with disciplinary proceedings which may be instituted in court upon the information of another, and like proceedings initiated in the State Bar, which proceedings are carried forward on notice and with an opportunity on the part of the accused to be heard.
It will be noted that the proceedings for disbarment or suspension taken under sections 6101 and 6102 upon the filing of a certified copy of the record of conviction do not provide for notice to or for a hearing in behalf of the accused attorney. The statute itself, and that alone, is the authority of [68]this court thus summarily to disbar or suspend an attorney found guilty of a crime involving moral turpitude. These statutory provisions, like their predecessors to like effect (sections 287, 288, 289 and 299, Code Civ. Proc.) have always been deemed valid statutory regulations affecting the rights of members of the legal profession and as such binding upon the courts. (See article on Disbarment and Suspension and cases cited, 3 Cal. Jur., p. 719 et seq.)
The statute is too clear to admit of doubt that upon the presentation to the court of a certified copy of the “record of conviction” the power and duty of the court is to enter an order of suspension “until judgment in the case becomes final”. When the judgment has become final it is then, and not until then, that the court has the power to enter a summary order of disbarment under the statute. The record of conviction may but does not necessarily include a judgment of conviction. Under section 6101 “a plea or verdict of guilty is deemed to be a conviction within the meaning of the section”. Upon the certification of the record of a plea or verdict of guilty the court is authorized to enter an order of suspension. A judgment of conviction is not essential to the validity of such an order. (In re De Voe, 114 Cal. App. 730 [300 Pac. 874].) In a criminal case the sentence is .the judgment. Section 1191 of the Penal Code provides: ‘ ‘ After a plea or verdict of guilty . . . the court must appoint a time for pronouncing judgment which must not be less than two, nor more than five days after the verdict or plea of guilty. . . . and provided, further, that the court may extend the time not more than twenty days in any case when the question of probation is considered in accordance with section 1203 of this Code, . . . ”. The terms “judgment” and “sentence” in criminal cases appear to have been used interchangeably (see Matter of Smith, 152 Cal. 566 [93 Pac. 191]; 8 Cal. Jur., p. 448, et seq.). The sentence is, therefore, the judgment from which an appeal may be taken under section 1237 of the Penal Code, even though an order of probation has been made. (See Berman v. United States, 302 U. S. 211 [58 Sup. Ct. 164, 82 L. Ed. 204].)
Since a judgment of conviction that has become final is the only basis upon which an order of disbarment may be made under the statute, it is necessary to consider whether the judgment certified to this court was a final judgment of [69]conviction as contemplated by the statute, for, as said by this court in In re Herron, supra, at page 402, “if the conviction has become final and has not been set aside, this court, under sections 287 and 299 of the Code of Civil Procedure has no election, but must disbar respondent”.
The means by which a judgment of conviction may be “set aside” are well recognized. A conviction, that is, a verdict of guilty, may be set aside by an order granting a new trial pursuant to section 1181 of the Penal Code. This usually takes place before a judgment is pronounced. After sentence the judgment of conviction may be set aside on appeal pursuant to section 1237 of the Penal Code, by certiorari or habeas corpus when the judgment is void, and by order of court pursuant to section 1203.4 of the Penal Code when the defendant has been placed on probation and has complied with the terms of the order of probation. Not only this, but when the terms of probation have been complied with the court is authorized, as was done in this matter, to dismiss the action against the defendant.
What, then, are the powers of the trial court under sections 1203, 1203.1 and 1203.4 of the Penal Code? Under section 1203, the court, after a plea or verdict of guilty, is authorized to enter an order placing the defendant on probation. Under this order, and pursuant to section 1203.1, the court “may suspend the imposing, or the execution of the sentence”. If the court suspends the “imposing” of sentence and places the defendant on probation, there is then no judgment of conviction and although new trial proceedings may be taken, no right on the part of the defendant to take an appeal from the verdict or from that order of probation is provided for. However, “conviction” is present and a suspension from practice of a defendant attorney is authorized, but there is yet no final or any judgment of conviction upon which to base an order of disbarment. Again, if the court suspends the “execution of the sentence”, a sentence or judgment necessarily preceded that order; and from such a judgment the right of appeal has uniformly been recognized. The petitioner in the present matter availed himself of that right. Whether the imposition of sentence be suspended or the execution of sentence be suspended there is no finality to the proceeding or the judgment which is not subject to be disturbed by order of court under the statute at an appropriate time after the terms of probation have been complied [70]with. That is to say, in the one ease no judgment at all is entered, and in the other there is no judgment of conviction except one which may be set aside upon the happening of a condition subsequent and under specific statutory authority.
But it does not follow that the order of probation has placed the defendant-attorney beyond the pale of disciplinary action. It is not and should not be within the power of the trial court by an order of probation to relieve a member of the bar convicted of a crime involving moral turpitude of accountability arising out of his professional misconduct. However, the order of probation may affect and in the present matter has affected the summary power of this court to disbar him. Upon a plea or verdict of guilty on a charge involving moral turpitude this court is authorized and is bound to enter an order of suspension. The fact that a judgment of conviction may not be entered or that the execution of the judgment may be suspended in pursuance of an order of probation, or that the criminal proceeding may ultimately be dismissed, does not enable the attorney to avoid disciplinary proceedings, for there is ample authority for the State Bar to proceed against him independently of the court proceeding and to recommend to this court appropriate discipline either of suspension from practice or disbarment. A record of conviction or a judgment of conviction has never been a condition precedent to disbarment or suspension. In Shafer v. State Bar, 215 Cal. 706 [12 Pac. (2d) 957], the attorney had been convicted of an offense involving moral turpitude, judgment of conviction had been entered, and he had been placed on probation. A copy of the judgment of conviction was certified to this court and an order of suspension was made until said judgment “shall have become final”. During Shafer’s period of probation and temporary suspension, in fact, within a week after the period of probation commenced, the State Bar proceeded against him to redetermine for itself the same issues involved in the criminal proceeding. As a result of this independent proceeding, the Board of Governors recommended Shafer’s suspension for the period of three years. In the proceeding brought by Shafer to review the order of recommendation, this court held that the judgment of conviction was not a bar to an independent investigation and recommendation by the State Bar based on the same facts involved in the criminal case. This court followed the recommendation [71]of the State Bar and entered another order of suspension for the period so recommended.
In In re Hatch, 10 Cal. (2d) 147 [73 Pac. (2d) 885], it was said: “The State Bar is not deprived of jurisdiction in disciplinary proceedings to inquire into the fitness of an attorney to practice when a record of his conviction is on file with the court under sections 287 et seq. of the Code of Civil Procedure. (Shafer v. State Bar, 215 Cal. 706 [12 Pac. (2d) 957].)”
A further review of the eases in this state discloses a uniformity in decision in harmony with the foregoing. It is stated by counsel for the petitioner, is not disputed by counsel for the State Bar, and is supported by our research, that this court has never entered an order of disbarment in any case where the defendant-attorney has been placed on probation, with the single exception of the order now sought to be set aside.
It has been and is the settled law of this state that a valid, final judgment of conviction of an offense involving moral turpitude is a necessary prerequisite to the entry of an order of disbarment by this court based solely on a certified copy of the judgment of conviction. It was held in In re Riccardi, 182 Cal. 675 [189 Pac. 694], decided in April, 1920, that this court had no authority to disbar an attorney under sections 287-299 of the Code of Civil Procedure “on the receipt of a certified copy of the record of conviction” when it appeared as a conceded fact that an appeal from the judgment of conviction was pending; that the statute meant that a final judgment of conviction was necessary as a basis for the order, and that while the appeal was pending the judgment was not final. After the decision in that ease, the legislature in 1921, by an amendment of section 288, added the last sentence, to wit: “a plea or verdict of guilty is deemed to be a conviction within the meaning of this sentence”, and likewise amended section 299 to provide that upon the presentation of a certified copy of the record of “conviction”, as defined in section 288, the attorney must be suspended and that he must be disbarred when the “judgment” of conviction has become final. The court in the Riccardi case reviewed the prior cases over a period of some thirty-five years and refused, notwithstanding the earnest insistence of counsel for the Bar Association, to disturb the uniform rule. The amendments of 1921 served to [72]settle the question of legislative intent in conformity with what the court held was the proper construction of the statute.
In no case has it been held that the judgment of conviction referred to in section 6102 of the State Bar Act was final when an appeal therefrom was pending, or when the defendant had been placed on probation either by suspending the imposition or the execution of sentence. Nor has such a judgment of conviction been deemed final, although affirmed on appeal, where in subsequent proceedings the judgment was held to be void. In contemplation of the fact that a judgment of conviction, when followed by a probationary order, might be set aside by the court pursuant to section 1203.4 of the Penal Code, this court has uniformly proceeded on the theory that such a judgment is not a final judgment authorizing summary disbarment under section 6102 of the State Bar Act.
In In re Jacobsen, 202 Cal. 289 [260 Pac. 294], it appeared that Jacobsen, an attorney at law, had been convicted of a felony involving moral turpitude. He took no appeal. This court said that “in that regard” the judgment of conviction had become final. The clerk of the trial court transmitted to this court a certified copy of the record of conviction. But the trial court had placed Jacobsen on probation. This court did not disbar him, as counsel for the State Bar insisted should be done, but suspended him from practice until the further order of the court, plainly indicating that by reason of the provisions of section 1203 of the Penal Code as it then existed (now section 1203.4) the judgment of conviction had not become final.
In In re Herron, 217 Cal. 400 [19 Pac. (2d) 4], it appeared that Herron had been convicted of a misdemeanor involving moral turpitude, and had been sentenced to imprisonment in the county jail; but the trial court suspended the execution of the sentence. On presentation of the record this court issued its order directing Herron to show cause why he should not be disbarred. It was held that the order suspending the sentence was equivalent to an order of probation. This court declined to order disbarment, and discharged the order to show cause.
In In re Hatch, 10 Cal. (2d) 147 [73 Pac. (2d) 885], attorney Hatch was found guilty of violations of the Corporate Securities Act, and was placed on probation. A certified copy [73]of the record of the convictions was transmitted to this court. "While the main point in the case was whether the offenses of which the attorney had been found guilty involved moral turpitude, it was not questioned that if it should be determined that they were of that character an order of disbarment would not necessarily follow.
Numerous other cases are cited by petitioner wherein orders of suspension were entered after the attorney, defendant in the criminal action, had been placed on probation. Those orders were made upon the presentation of certified copies of the records of conviction. A few of them are: Matters of suspension of C. M. Gill, Misc. 1536; J. B. Mandel, Misc. 1543; A. R Hemm, Misc. 1546; D. F. Wisdom, Misc. 1564; J. W. Lenahan, Misc. 1599; and L. G. Stanford, Misc. 1603.
In In re Rothrock (14 Cal. (2d) 34 [92 Pac. (2d) 634]), it appeared that Rothrock, an attorney at law, had been charged on two counts of attempted murder and on a third count with assault with a deadly weapon. The. court sitting without a jury found him guilty on all three counts. Before judgment was pronounced the court set aside the verdict. On appeal by the People the order was reversed and the cause remanded with instructions to enter judgment of conviction. (People v. Rothrock, 8 Cal. (2d) 21 [63 Pac. (2d) 807].) On appeal from the judgment so entered the judgment was affirmed. (People v. Rothrock, 21 Cal. App. (2d) 116 [68 Pac. (2d) 364].) Upon the certificate of the record of conviction an order of disbarment was entered on June 21, 1937. Notwithstanding the judgment of affirmance this court later held that said judgment was ineffective and ordered a new trial. (In re Rothrock, 14 Cal. (2d) 34 [92 Pac. (2d) 634].) On August 23, 1939, this court entered an order vacating and setting aside the order of disbarment on the ground that said order “lacked the necessary foundation to support it, to wit, a valid final judgment of conviction”. (Minutes of this court, August 23, 1939.) The several proceedings in the Rothrock case are referred to in support of the conclusion that even an affirmance on appeal is not necessarily conclusive of the finality of a judgment of conviction. If an order of disbarment may be set aside because of a determination that no valid judgment had even been entered, it would follow, in the present matter, that the order of disbarment of petitioner should be set aside [74]because the judgment which was entered has been set aside under specific statutory authority, and there is now no valid or any judgment to support it.
By the main opinion this court has by implication overruled its prior decisions which are in point in the petitioner’s favor, and in doing so has departed from the uniform practice and decision in this state. It has constituted the order of disbarment here involved, an arbitrary assumption of power not justified by constitutional or statutory authority. No considerations of public policy are apparent which would justify a departure from the established standards. The principles of justice would also best be served by proceeding independently of the court action on notice and an opportunity to be heard in cases where orders of probation have been made in criminal cases. Probation, as distinguished from parole, is not solely concerned with rehabilitation. It is authorized in common recognition of the fact that circumstances of mitigation may have attended the commission of the offense, which should, in the discretion of the trial court, relieve the defendant of the rigors of the punishment which would otherwise be imposed.
Furthermore, the ruling of the majority will result in a lack of uniformity in disciplinary proceedings. It will mean that in court proceedings, when the trial judge finds mitigating circumstances sufficient to place the defendant on probation and later to set aside the judgment of conviction, the defendant-attorney must nevertheless be subjected to summary disbarment, notwithstanding the Board of Governors of the State Bar might, in the presence of like mitigating circumstances, recommend only suspension, or this court on the same record refuse to enter an order of disbarment. It will also mean that the power of this court to enter an order of disbarment under section 6102 will depend on the too uncertain contingency of whether the trial court in granting probation had suspended the “imposition" or the “execution" of sentence, for in the one case no order of disbarment may properly be made, and in the other an order of disbarment would have to be made.
There are numerous instances where a member of the bar has been found guilty of an offense involving moral turpitude by the Board of Governors of the State Bar and has been recommended for suspension only. The Shafer case is [75]one of them. Some of the other and more recent cases are: Methever v. State Bar, 12 Cal. (2d) 230 [82 Pac. (2d) 1109], Waterman v. State Bar, 8 Cal. (2d) 17 [63 Pac. (2d) 1133], and Jacobs v. State Bar, 219 Cal. 59, 63, 64 [25 Pac. (2d) 401]. See, also, Disbarment of Richardson, 15 Cal. (2d) 536 [102 Pac. (2d) 1076], in which the rule in the Shafer case was approved.
There is no necessity to lay down extended rules of procedure in cases where an attorney in a criminal action has been convicted of an offense involving moral turpitude and has been placed on probation. The established practice is the certification of the record of conviction to this court, which is followed by a summary order of suspension, at least until the further order of the court. The State Bar then is authorized to proceed, as it did in the Shafer case, and without further or any delay, to initiate disciplinary proceedings independently of the court proceeding and after notice to the accused and an opportunity to be heard, to make its findings, and submit its recommendation to this court for such an order as it deems appropriate.
From the foregoing it would follow that the order of disbarment entered against the petitioner on April 5, 1938, should be set aside. And, although the State Bar has the authority to so proceed without a reference, it would be appropriate in this case to refer the matter of further disciplinary action to the Board of Governors of the State Bar for investigation and for such recommendation as it may deem proper in the premises.
Houser, J., concurred.