JOSEPH M. TRUSTY, Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent, 16 Cal. 2d 550

THE COURT. Petitioner seeks herein to review the action of the board of governors of the State Bar in a disciplinary proceeding instituted against him before local administrative committee No. 5 for the city and county of San Francisco. In the order to show cause issued and served upon him petitioner was charged with the violation of his oath and duties as an attorney at law within the meaning of

section 6103 of the State Bar Act (Chap. 4, Business and Professions Code), as the same are prescribed by sections 6067 and 6068 of that act, and the commission of acts involving moral turpitude and dishonesty within the meaning of

section 6106 of the same act. Petitioner was employed in 1933 to institute and prosecute a divorce action on behalf of a woman client. He was paid a fee therefor. The action was commenced and after hearing, a minute order was entered granting petitioner’s client an interlocutory decree of divorce. However, petitioner failed to prepare an interlocutory decree and to submit the same to the trial judge for his signature. In fact, nothing further was done by petitioner until the latter part of 1939, following the institution of this disciplinary proceeding, when he had both the interlocutory and final decrees entered pursuant to

section 131.5 of the Civil Code which then had been recently enacted by the legislature. It is apparent from the transcript of evidence taken before the local committee that the client on numerous occasions had requested petitioner to secure a final decree for her, but that he had failed and neglected to do so, and that she finally ascertained that for some unknown reason petitioner had failed and neglected to have the interlocutory decree of divorce entered.

In explanation of his conduct, petitioner testified in substance that he had learned that the parties were living under the same roof and assumed that they had become reconciled. Such assumption immediately upon entry of the minute order granting an interlocutory decree finds little basis in reason. Thereafter, even the most cursory inquiry by petitioner would have confirmed his client’s unaltered desire in the premises and would have served to disabuse his mind of such unfounded assumption.

After finding the facts, the local committee properly found that petitioner was not justified in assuming a reconciliation and that he was neglectful in not having the interlocutory decree promptly entered. Because no great damage ultimately was visited upon the client, the local committee recommended a private reproval.

The board of governors adopted the findings of the committee and based also upon a prior privare reproval of petitioner in 1930 has recommended that he be suspended from the practice of the law for thirty days, We find no merit in petitioner's contention that upon adoption of the local committee’s findings the board of governors is without power to recommend a more severe discipline than that recommended- by the local body.

The procedure contemplated by the State Bar Act clearly provides for an examination and review by the board of governors of all disciplinary proceedings heard before local committees and confers power upon the board to make recommendations to this court as to the discipline to be imposed upon members of the bar against whom such proceedings are instituted.

We need only refer to sections 6043 and 6078 of the State Bar Act which definitely indicate that while a local committee may make findings and recommendations in disciplinary proceedings, the board of governors is not bound thereby and may entirely disregard the same and make such findings and recommendations as the record before it might justify. This court repeatedly has approved such procedure. (Recht v. State Bar, 218 Cal. 352 [23 Pac. (2d) 273] ; Nolan v. State Bar, 219 Cal. 759 [28 Pac. (2d) 1050] ; Sawyer v. State Bar, 220 Cal. 702 [32 Pac. (2d) 369] ; Oster v.

State Bar, 2 Cal. (2d) 625 [42 Pac. (2d) 627] ; Townsend v. State Bar, 4 Cal. (2d) 619 [51 Pac. (2d) 879] ; Wood v. State Bar, 6 Cal. (2d) 533 [58 Pac. (2d) 1280] ; Price v. State Bar, 8 Cal. (2d) 201 [64 Pac. (2d) 727].) Nor do we find any merit in petitioner’s contention that his offense, if any, was one of “mere negligence” which assertedly is not designated in the pertinent sections of the State Bar Act as one of the grounds warranting disciplinary proceedings against an attorney. Prior decisions of this court have resolved the issue against petitioner. In Marsh v.

State Bar, 210 Cal. 303 [291 Pac. 583], the attorney complained against had accepted a fee to institute a divorce action, which he subsequently failed to do. Just prior to a hearing in the disciplinary proceeding based thereon, he repaid the fee. Upon such hearing he introduced in evidence a copy of a divorce complaint and testified that his secretary inadvertently had failed to file the same. He was recommended for suspension for one year.

Before this court he contended that the evidence was insufficient, that his conduct amounted to mere negligence and, as here, that he could not be suspended on grounds other than those specified in the statute and rules of professional conduct. While in the early part of the decision this court intimated that the attorney’s conduct bordered on “moral turpitude” within the meaning of subdivision 5 of

section 287 of the Code of Civil Procedure, and that the recommendation of suspension implied a finding of such “moral turpitude”, the decision further declares that “It also appears that said acts and conduct of petitioner were of a character to warrant his suspension under the provisions of subdivision 2 of said

section 287 [now

section 6103, State Bar Act] to the effect that an attorney may be suspended for ‘any violation of the oath taken by him, or of his duties as such attorney and counselor ’. The oath referred to, required upon admission of a person to practice law, contains a pledge ‘to faithfully discharge the duties of an attorney ... to the best of his knowledge and ability ’. (Sec. 278, Code of Civ. Proc. [now

section 6067, State Bar Act].) Obviously, this petitioner . . . failed to discharge faithfully ... his duties as an attorney in the instances under review”. Some four years later Marsh, the attorney involved in the foregoing case, was again cited for discipline upon his later acceptance of a fee from another client for the prosecution of an annulment proceeding, which he likewise failed to commence. He returned the fee after disciplinary proceedings were commenced. Again he advanced the defense of “negligence”, urging that suspension therefor was not warranted under the statute.

This court, among other things, declared that the “defense is without merit”, adding a quotation from its prior decision to the effect that Marsh was ‘ ‘ at least a careless and ‘sloppy’ practitioner, and that his negligence borders very closely upon moral turpitude. This type is not safe to represent clients in the practice of the law, particularly implicated, as he seems to be, in constant trouble with his clients over money matters, delays and actual misrepresentation”. (Marsh v. State Bar, 2 Cal. (2d) 75, 79 [39 Pac. (2d) 403].) In Waterman v.

State Bar, 8 Cal. (2d) 17 [63 Pac. (2d) 1133], the petitioner therein was employed in March, 1935, to prosecute a divorce action and was paid a portion of his fee in advance. He thereafter told his client that he had filed and served a complaint when, in fact, and by mistake, he failed to file the original, though he served a copy together with a copy of summons the original of which never had been issued. He discovered his mistake in August, 1935, but did nothing until November when he had his client sign the complaint whereup'on he filed it and again served the defendant.

The local committee found that these acts involved dishonesty and moral turpitude “but were brought about by carelessness and negligence. ’ ’ It was recommended by the board of governors that the petitioner therein be suspended for six months. Before this court he urged that “he had no intention to deceive or defraud but was guilty merely of carelessness and neglect which does not involve moral turpitude or warrant the six months’ suspension recommended by the board of governors”.

Among other things, this court declared that ‘ ‘ Gross carelessness and negligence constitute a violation of the oath of an attorney to ‘faithfully discharge the duties of an attorney and counselor at law to the best of his knowledge and ability’, (Code Civ. Proc., sec. 278) and involve moral turpitude in that they are a breach of the fiduciary relation which binds ‘him to the most conscientious fidelity’. Marsh v. State Bar, 210 Cal. 303 [291 Pac. 583] ...” In 69 A. L.

R. 705, 707, are collected, among others, cases in which “inattention to duty which has been wilful or accompanied by an element of deceit or imposition has been held ground for disbarment or suspension”.

It is evident from the record herein that throughout the period of several years in which petitioner neglected and failed to have either the interlocutory or final decree entered that his conduct was not only of negligent inactivity but of active misrepresentation to his client who stated, before the local committee, among other things, that petitioner “says he does this and that and he doesn’t do anything at all”.

It was only by reason of the saving grace of a recently enacted statute that the client was not made to feel the full burdensome effect of petitioner’s protracted negligent inactivity and misrepresentation. Under the circumstances disclosed by the record we are satisfied that petitioner is without a meritorious defense both under the facts and the law. It is, therefore, ordered that petitioner be and he is hereby suspended from the practice of the law in this state for a period of thirty days, effective upon finality of this decision.