Grove v. State Bar

THE COURT. Petitioner, a member of the bar since June 17, 1959, was charged by a local administrative committee with violating his duty as an attorney (Bus. & Prof. Code, § 6103) by misleading a judge (Bus. & Prof. Code, § 6068, subd. (d)) and by committing acts of moral turpitude and dishonesty (Bus. & Prof. Code, § 6106). The local committee found against petitioner. The Board of Governors agreed with the committee’s findings and recommended a three-month suspension.

In September 1961 Adell S. Benner retained petitioner, who maintains offices in Hayward, to represent her in an action for divorce against her husband, Elmer E. Benner. In October 1961 petitioner served Mr. Benner with an order to show cause, returnable in Department No. 15 of the Alameda County Superior Court, at 2 p.m. on November 22, 1961. Approximately one week prior to November 22, Patrick Coleman, Mr. Benner’s attorney, telephoned petitioner from Los Angeles and requested a continuance on the ground that he anticipated being in trial in Los Angeles on November 22. Since Mrs. Benner had complained of the delays her two previous attorneys had incurred, petitioner refused the request. On the morning of November 22, Mr. Coleman telephoned petitioner’s office and informed petitioner’s secretary, Mrs. Chapman, that he could not get a plane out of Los Angeles in time for the hearing. He therefore requested a continuance of one week. The evidence, although in conflict, indicates that Mrs. Chapman responded that she could not grant the request but would advise petitioner of it and did not believe there would be any problem. She said that petitioner would telephone Mr. Coleman. She gave petitioner the message about noon, and petitioner responded: “That is tough. I will make the appearance anyhow.” Petitioner contends that he tried to telephone Mr. Coleman, but that he could not reach him. At 2 p.m., petitioner appeared at the hearing before Superior Court Judge Lyle Cook. Judge Cook [314]testified that he normally asks a party whether someone is appearing on the other side, and that he assumes he did on this occasion. Judge Cook recalled that petitioner failed to advise him of Mr. Coleman’s telephone call and the request for a continuance, and thus he treated the case as a default matter. Several days later, Mr. Coleman notified Judge Cook of his request for a continuance, and he replied that he would delay the signing of the order until Mr. Coleman had an opportunity to appear. Judge Cook then conferred with petitioner about the matter and reminded petitioner that he had not informed the court of the request for a continuance. Judge Cook testified that petitioner replied that he didn’t feel he was obliged to. Petitioner, supported by an affidavit by Mrs. Benner,1 contends that he did inform Judge Cook of the telephone call. Petitioner concedes, however, that he does not remember what happened at the hearing, and relies on a memorandum he made several weeks later to support his contention that he did inform the judge. Moreover, he does not deny that he told Judge Cook that he did not consider himself obligated to inform the court of the telephone call, although he contends that he also told the judge at the time that he had in fact informed him of the call. Paced with this conflict in the testimony, the board found that petitioner knew of the telephone call, that he did not inform Judge Cook of the call at the hearing, and that he did not inform him that Mr. Benner’s attorney had requested a continuance. Thus, the board found that petitioner “wilfully and deliberately concealed his knowledge that Patrick Coleman represented the defendant and had requested that the matter be continued. [Petitioner] thereby intentionally misled the Judge.”