Copren v. State Bar , 25 Cal. 2d 129 ( 1944 )

CARTER, J.,

Concurring and Dissenting.—I concur in that portion of the majority opinion which holds that petitioner was guilty of unprofessional conduct in retaining the sum of $230 which Mrs. Connelly had advanced to him for the purpose of paying an attorney’s fee to Mr. Breen after the latter had advised petitioner he would charge no fee for the service which he rendered Mrs. Connelly. The same is true with respect to the sum of $50 which petitioner obtained from Mrs. Connelly for alleged expenses in the quiet title action which he handled for her, and also with respect to his failure to remit to her the balance of the $100 which he received from her to pay income tax on her behalf. In my opinion the record supports the findings of the local administrative committee that petitioner was guilty of unprofessional conduct in retaining the above mentioned amounts after he knew that he was not required to disburse the same on behalf of Mrs. Connelly and she was entitled to have said sums returned to her promptly.

I do not agree with that portion of the majority opinion which holds that petitioner was guilty of unprofessional conduct in borrowing money from Mrs. Connelly. I know of nó law or rule of professional conduct which is designed to prohibit an attorney from borrowing money from his client. It is not claimed that petitioner made any misrepresentations to Mrs. Connelly at the time any of the loans were obtained from her. It is true that he advised her that he would be able to pay these loans promptly, but it must be conceded that this is not the type of representation which can be said to amount to fraud or which can be made the basis for a charge of unprofessional conduct. When Mrs. Connelly made the loans in question to petitioner she expected him to repay her, and no doubt petitioner’s intentions in this regard were the very best. This is the usual situation in most cases between lender and borrower, and so far as the record discloses in this case the situation was no different from the ordinary case of lender and borrower where for some reason, not within the contemplation of the parties, the loan is not repaid. Obviously, if petitioner had repaid the loans when they became due, it could not be said that he was guilty of misconduct in obtaining the loans in the first instance. The question then arises as to whether or not the failure to meet a future obligation in the nature of a loan is such a violation of his duty to his client as to amount to moral turpitude. I do not believe that such conduct comes within the purview of any definition of moral turpitude that has yet been called to my attention. Many an honest person has not been able to meet his obligations when they became due, and I doubt if even the strictest disciplinarians would venture the suggestion that Abraham Lincoln and Ulysses S. Grant were guilty of moral turpitude because they were unable to meet their obligations when they became due.

I do not agree with that portion of the majority opinion which holds that petitioner was guilty of unprofessional conduct in connection with his employment by Mrs. Routt. All that can be said against petitioner’s conduct in this matter is that he failed to communicate with Mrs. Routt after he ascertained that an appeal had been taken by the attorney who represented her husband in the criminal case regarding which she consulted petitioner. At most, it can only be said that petitioner may have been guilty of negligence in not communicating with Mrs. Routt. In my opinion there is no basis in either fact or law for holding that petitioner violated any rule of professional conduct or was guilty of moral turpitude in his conduct in connection with this matter, as mere negligence, cannot be relied upon as a basis for administering discipline to a member of the bar. I have heretofore stated my position on this proposition and I adhere to the views expressed in my dissenting opinions in the eases of Trusty v. State Bar, 16 Cal.2d 550, 554 [107 P.2d 10], and In re McKenna, 16 Cal.2d 610, 612 [107 P.2d 258].

While I agree that the record discloses that the petitioner was guilty of unprofessional conduct in failing to promptly return to Mrs. Connelly the unexpended portion of the amounts which she advanced to him to cover attorney’s fees, expenses and taxes, I am not disposed to concur in the conclusion that he should he suspended from practice for the period of three years and three months. The sums withheld were repaid to her long before this proceeding was commenced, and the only amounts she has not received are those covered by the loans which have been reduced to judgment.

The local administrative committee recommended that petitioner be suspended for the period of six months for his conduct in connection with the Connelly matter, and in my opinion this is ample punishment for all of the misconduct perpetrated by him as disclosed by the record in this ease.

Petitioner’s application for a rehearing was denied November 30, 1944. Carter, J., voted for a rehearing.