Smuckler v. State Bar

THE COURT. As indicated by the numbers accompanying the title hereof, two proceedings against the petitioner were presented before two different local administrative committees of The State Bar, the first terminating in a recommendation by" committee number three that petitioner be suspended for a period of one year, which was reduced by the board.of governors to a six months’ period, and the second resulting in a recommendation by committee number nine that he be suspended for a period of two years to run consecutively with any other suspension, which latter recommendation was approved by the board of governors. The charges grow out of similar transactions and the response of petitioner, as well as his version of the attending circumstances is so nearly the same in each case that we have deemed it appropriate to consider the two causes together.

In the first proceeding the charges were that petitioner had violated rule 9 of the Rules of Professional Conduct in two particulars as follows: (1) commingling money belonging to his client with his own funds, and (2) failing to promptly report to his client the receipt of money belonging to him. The second charges the receipt of money by petitioner for his client and a failure to report its collection or to pay it over but instead the use thereof by petitioner.

Before considering the facts relating to the specific charges let us note certain facts common to both. Petitioner was admitted to practice law in March, 1923, but was employed at the time by the Title Insurance and Trust Company in its searching department, where he remained until some time in 1929, handling only a few professional matters during the hours he was not occupied in his regular work. During the year 1929, the title company adopted a policy [82]requesting its employees to devote all of their time to its interests- and to decline professional employment, as a result of which petitioner shortly after resigned his position and engaged in the practice of the law exclusively. During the time of his employment with the title company the petitioner won and enjoyed an excellent reputation for honesty and reliability.

Adverting now to the particulars of the first charges, we find that petitioner was employed by the Sanford Holding Corporation of New York City to collect from David Mendoza a claim for rental in the sum of $624.99 upon the understanding that petitioner was to receive as compensation one-half of the amount actually realized. Two hundred and eight dollars was collected on August 13, 1930, and $279:17 on November 5, 1930. Action was commenced in the Los Angeles municipal court, but it does not appear that summons was ever served and no judgment was secured. No further sums were paid by Mendoza. By reason of a contention on the part of Mendoza that he was only liable for two months’ rental instead of three, the first check was held by petitioner until November 6th, at which time both sums were deposited by petitioner’s secretary in a trust account opened by petitioner for such funds on July 9, 1930. By an error of the bank these sums were credited temporarily to Smuckler’s personal account and the deposit slip placed among those belonging to the latter account. The error was corrected so far as credit was concerned on November 12th, but the deposit slip remained among those of the personal account. On April 4, 1931, and again on July 30, 1931, the Sanford Holding Corporation inquired by letter concerning the status of the collection, but apparently the only information they were given was contained in a letter dated August 27, 1931, which petitioner says was written by his secretary without instructions from him, and which, according to the secretary, was signed by her, and in which it was said that action was commenced on October 10, 1930, and should come to trial in November, 1931 Nothing more was done until along in May of 1932, at which time, Judge Paeht first spoke to petitioner, saying that he had had an inquiry concerning it from New York. Petitioner says that he looked for the file but that he could not locate it and did not find it until June 28th, by reason of the