Marsh v. State Bar of California

THE COURT.

This proceeding was instituted to review an order of the Board of Governors of The State Bar of California adopting findings of the Local Administrative Committee and recommending to this court the suspension of petitioner from the practice of the law for a period of one year. Petitioner contends, first, that said findings and recommendation are not justified or supported by the evidence; second, that the order is contrary to law in that it attempts to suspend him upon grounds other than those enumerated in the statutes of California or rules of professional conduct approved by this court, and, third, that in any event, if grounds for punishment are shown, the order is too severe and under the circumstances a reprimand would be more appropriate. The case warrants but brief discussion.

Said order of the Board of Governors was predicated upon proceedings had upon three accusations filed against petitioner and later consolidated. From the showing made it appears that in the matter of the accusation of Dorothy E. Leyva, the complainant engaged petitioner, as an attorney, to bring an action for divorce against her husband, a traveling actor. Between February, 1926, and January, 1927, she paid him on five separate occasions on account of his fee various sums aggregating $75. The total fee was to be $125, the husband to pay the balance due, although apparently petitioner was unable to collect it from him. No further sum, however, was due from complainant to petitioner. It was necessary that summons be published against the husband and petitioner informed complainant on several occasions that he had written her husband, that the case had been set for trial, that it '.had been continued,

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etc. During May, 1927, however, complainant made an investigation in the office of the county clerk and there discovered that the action had never been filed. Petitioner thereupon admitted this fact and agreed to repay said sum of $75 to her, but failed to do so until just prior to the hearing in this proceeding, when, in the hall outside the office of The State Bar, she received said sum. Petitioner introduced in evidence a copy of a complaint in divorce, verified on February 16, 1926, and testified that he had prepared said pleading and instructed the clerk in his office to file it; that he believed it was filed at the time he made said statements to complainant and was not aware of the fact that it was not done until complainant so advised him. The Local Administrative Committee, under the undisputed facts as to payment of fee, failure to file the case and the gross negligence of petitioner in failing to discover that it had not been filed, recommended his suspension for the period of one year.