Ramirez v. State Bar , 28 Cal. 3d 402 ( 1980 )

Opinion

THE COURT.

Review of recommendation of the State Bar Disciplinary Board that petitioner, Glenn D. Ramirez, be suspended from the practice of law for a period of one year, that execution of the order for such suspension be stayed, and that petitioner be placed on probation for the period of one year on conditions including actual suspension for one month.

The disciplinary board found petitioner had violated his oath and duties as an attorney (Bus. & Prof. Code, §§ 6067, 6068, subds. (b), (d), and (f)) by “falsely maligning" justices of the Third District Court of Appeal. This finding is based in part on petitioner’s statements, contained in a reply brief filed in the United States Court of Appeals for the Ninth Circuit, that the justices had—in reversing a trial court judgment in favor of petitioner’s clients—acted “unlawfully” and “illegally” and had become “parties to the theft” of property belonging to petitioner’s clients. The board also based its finding on statements contained in a petition for writ of certiorari filed in the United States Supreme Court implying that the Court of Appeal justices had falsified the record and suggesting that their “unblemished” records were “undeserved.”

Petitioner was admitted to the practice of law in Oregon in 1952 and in California in 1955, presently maintaining his law office, as a sole practitioner, in Klamath Falls, Oregon. He has no prior disciplinary record.

In May 1967, John V. and Aline S. Terry executed a loan agreement with Klamath Production Credit Association (KPCA), a farm credit bank, to obtain financing for their farming and cattle-raising operation in Tulelake, California. As security for the loan, the Terrys executed a lien on farm equipment and livestock and a deed of trust on all 239 acres of their farm. The Terrys received operating loans from KPCA totalling approximately $68,000.

KPCA refinanced Terrys’ loans in 1968 and in 1969, and made additional loans in 1970. When the Terrys were unable to repay the loans at maturity in 1971, KPCA instituted an action in Siskiyou County Superior Court¹ seeking foreclosure of the security interests. KPCA alleged the Terrys were in default of principal and interest payments totalling approximately $45,000.

The Terrys retained petitioner to represent them in the foreclosure action. Petitioner cross-complained in behalf of Terrys, seeking compensatory and punitive damages and cancellation of the loan instruments on grounds of deceit and breach of fiduciary relationship.

Following trial, a jury awarded Terrys general damages of $60,000 and punitive damages of $5,000 grounding KPCA’s liability on “deceit and undue influence,” and the court entered judgment in those amounts. The judgment also relieved Terrys of any obligation to repay the outstanding balances of the KPCA loans.

On appeal the Third District Court of Appeal, in an unpublished opinion (Justices Puglia, Friedman and Regan) reversed judgment on grounds jury instructions were prejudicially erroneous and the judgment was not supported by substantial evidence. On remand the trial court granted KPCA’s motion for summary judgment.

Petitioner thereafter filed in United States District Court for Eastern District of California an action on Terrys’ behalf against KPCA and Court of Appeal Justices Puglia, Friedman and Regan.² Petitioner alleged Terrys’ property had been taken without due process of law in violation of the United States Constitution and the Civil Rights Act of 1863. The district court dismissed the action as to the justices on the ground of judicial immunity, and petitioner appealed on behalf of the Terrys to the Ninth Circuit Court of Appeals.³

In the course of the appeal petitioner filed in the Ninth Circuit a reply brief in which he stated Justices Puglia, Friedman and Regan had acted “unlawfully” and “illegally” in reversing the trial court’s judgment in favor of the Terrys. He further stated: “The case involves the question: Are Appellate Judges above the law? As to KPCA: Can the judges give you what the law does not? (By taking the Terrys’ property they become parties to the theft.)” Petitioner also implied the justices had improperly favored KPCA, stating: “Money is king, and some judges feel they are there to see that it doesn’t lose.”⁴ Petitioner also stated that “the KPCA by its power and influence and money was able to induce the defendant judges to act in an unlawful manner.... ”⁵ Finally, petitioner asserted in the brief that the justices maintained an “invidious alliance with KPCA” resulting in the deprivation of Terrys’ judgment.⁶

While the appeal was pending in the Ninth Circuit, the State Bar commenced a disciplinary investigation. The hearing panel indicated during proceedings that it would consider terminating the investigation by admonition if petitioner would offer an apology to Justices Puglia, Friedman and Regan. The State Bar examiner stated she would oppose such a termination. (See former Rules Proc. of State Bar, rule 25.20, West’s Ann. Bus. & Prof. Code, foil. § 6087.) Nevertheless, petitioner wrote a letter to the three justices, apologizing for and attempting to explain his statements. In the letter petitioner asserts he never intended his statements as an inference the justices had received money from KPCA to induce them to render a decision favorable to KPCA. Petitioner also moved in the Ninth Circuit Court of Appeals for permission to delete the offensive statements from his reply brief. Notwithstanding petitioner’s action, the examiner caused the subsequent admonition to be set aside and formal proceedings to be resumed on the ground petitioner’s statements concerning the justices warranted more substantial discipline.

After the Ninth Circuit affirmed the district court’s judgment of dismissal of the Terrys’ complaint, petitioner sought certiorari in the United States Supreme Court. Language in the petition for the writ permitted inferences that Justices Puglia, Friedman and Regan had falsified the record on appeal in the state court proceeding and additionally implied that the justices’ “unblemished” judicial records were “undeserved.”⁷ As a result of petitioner’s further statements, a second preliminary investigation hearing was conducted by the State Bar and the instant disciplinary proceeding was commenced.

The hearing panel questioned petitioner extensively concerning the factual basis for his allegations against the justices. Petitioner asserted his belief that the justices had acted illegally in concluding there was no substantial evidence supporting findings of deceit and undue influence on the part of KPCA. He contended that by reversing the judgment the justices knowingly acted in excess of their judicial authority—hence “illegally.”⁸

In support of his assertion that the justices were biased in favor of KPCA, petitioner notes that KPCA had obtained three extensions of time within which to file its opening brief on appeal. Moreover, at a settlement conference presided over by Justice Paras prior to oral argument, counsel for KPCA stated that banking institutions might wish to file amicus curiae briefs in the case. Petitioner apparently construed these circumstances as evidencing prejudice against his clients.

Although petitioner testified he could produce no evidence of improper contacts between KPCA and the justices, he reasserted his belief that the justices had been induced to act in an unlawful manner by KPCA’s “power, influence and money.” Petitioner denied this statement was intended as an allegation that KPCA had paid money to the judges for the purpose of influencing their decision. The “power, influence and money” referred to, petitioner testified, were evidenced by the “battery of counsel they [KPCA] were able to send into even the most minute circumstances” and by KPCA’s “alliance” with banking interests.

In response to questions regarding the factual basis for his allegation of the existence of an “invidious alliance” between KPCA and the justices, petitioner testified the nature of the federal court action necessitated the inclusion of that particular phrase. He relied on a federal court decision denying relief in a civil rights action for failure to allege existence of an “invidious alliance” or “invidious conduct,” and for that reason he inserted the phrase “invidious alliance” into his brief.⁹

Petitioner also testified he felt the prevailing circumstances justified his characterization of the justices as “parties to the theft” of his clients’ property. He asserted KPCA’s actions constituted theft and the justices, in exceeding their authority and enabling KPCA to carry out that theft, became “parties to the theft.” In an earlier deposition petitioner had stated his belief the argument could lawfully be made that the judges knowingly and intentionally committed an illegal act.¹⁰ In effect, petitioner asserted that the justices “knew what they were doing” in allegedly acting beyond the jurisdiction of the court.

With regard to his statement, “Money is king, and some judges feel they are there to see that it doesn’t lose,” petitioner contended the statement was not a specific reference to Justices Puglia, Friedman and Regan. Rather, the statement was intended as an assertion that “money receives extra consideration” in the courts. Petitioner further stated his purpose was to point out the inequity between the treatment of poor litigants and those with substantial financial resources.

Petitioner was further questioned about statements contained in his petition for certiorari to the United States Supreme Court regarding falsification of the record and the reputation of certain judges. (See fn. 8, ante.) The statements, petitioner testified, were not intended as accusations against specific justices. Petitioner asserted the language was used in the context of an argument against the doctrine of judicial immunity. According to petitioner, falsification referred to occurred when, on remand, it was made to appear that the trial court had found in KPCA’s favor when the court had in fact entered judgment in favor of the Terrys. Any objective reading of the petition leaves little doubt that the statements, while intended to be couched as an argument against judicial immunity generally, refer specifically to the justices in question.

In his instant petition for review, petitioner contends: (1) the State Bar is without jurisdiction to proceed against him because such proceedings infringe petitioner’s First Amendment right to freedom of speech; (2) the State Bar proceedings are an attempt to prevent Terrys from litigating their claims; (3) the board’s findings are not supported by evidence; and (4) the State Bar is guilty of laches in that the hearing panel rendered its final decision in July 1979 but the record of the proceeding was not filed with this court until January 1980.

Petitioner’s contention as to jurisdiction is without merit. It is settled this court has inherent power to regulate the practice of law and discipline members of the bar when such discipline is warranted. (Stratmore v. State Bar (1975) 14 Cal.3d 887, 889-890 [123 Cal.Rptr. 101, 538 P.2d 229, 92 A.L.R.3d 803].) Moreover, this court has jurisdiction to discipline member attorneys for defamatory or disrespectful statements contained in pleadings or other court papers. (Hogan v. State Bar (1951) 36 Cal.2d 807, 810 [228 P.2d 554]; In re Philbrook (1895) 105 Cal. 471, 477-478 [38 P. 511, 884].) In Philbrook this court specifically rejected the argument that “outrageous” and “unwarranted” statements concerning a justice of this court were protected by “free speech” considerations. The United States Supreme Court, in addressing First Amendment protections of false statements made with reckless disregard. for the truth, stated that “[calculated falsehood falls into that class of utterances which ‘are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that might be derived from them is clearly outweighed by the social interest in order and morality.... ’ Chaplinsky v. New Hampshire, 315 U.S. 568.... Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.” (Garrison v. Louisiana (1964) 379 U.S. 64, 75 [13 L.Ed.2d 125, 133, 85 S.Ct. 209].) As has been demonstrated, petitioner’s several demeaning statements have been made with reckless disregard of the truth.

Petitioner makes no showing in support of his second contention that the initiation of disciplinary proceedings has prevented him from representing his clients, or that the Terrys have otherwise been prevented from litigating their claims.

Petitioner’s third contention based on the claimed insufficiency of the evidence clearly fails. Petitioner bears the burden of showing the board’s findings are not supported by the evidence or that recommended discipline is unwarranted. (Bus. & Prof. Code, § 6083, subd. (c); Wells v. State Bar (1978) 20 Cal.3d 708, 713 [144 Cal.Rptr. 133, 575 P.2d 285].) The findings are supported by any objective reading of the statements in question, and petitioner’s explanations fall far short of sustaining his burden.

The record indicates the allegations contained in petitioner’s reply brief filed in the Ninth Circuit and in his petition for writ of certiorari filed in the United States Supreme Court are not supported by any credible factual basis. His statements regarding the purported alliance between KPCA and the justices, for example, were based solely on conjecture without factual substantiation. Additionally, he appears to have made no investigation to determine whether such facts existed.¹¹ Although petitioner contends in part that his statements were not intended as allegations against the specific justices, a reading of the statements in context reveals the allegations clearly refer to them. Petitioner’s testimony as to his intentions is insufficient to rebut the evidence presented at the hearing and the plain meaning of the language used.

Petitioner’s fourth contention that these proceedings are barred by laches is without merit. Mere lapse of time is neither a denial of due process nor a jurisdictional defect in an attorney disciplinary proceeding absent a showing of specific prejudice. (Wells v. State Bar, supra, 20 Cal.3d 708, 715; Caldwell v. State Bar (1975) 13 Cal.3d 488, 496 [119 Cal.Rptr. 217, 531 P.2d 785].) Petitioner fails to make any such showing.

It appears clear petitioner has violated his oath and duties as an attorney and is subject to discipline therefor.¹² In support of the recommended discipline, this court has heretofore disciplined attorneys for violating their oath and duties in making unjustified and demeaning allegations against judicial officers. In Hogan v. State Bar, supra, 36 Cal.2d 807, an attorney was suspended for asserting a judge was a “petty judge” who was prejudiced against the attorney’s client and certain witnesses.

In Peters v. State Bar (1933) 219 Cal. 218 [26 P.2d 19], an attorney filed affidavits containing allegations a judge was under a “political obligation” to an opposing attorney. This court determined the statements had no basis in fact and were made with at least conscious disregard of their truth or falsity, and ordered the attorney be suspended.

In In re Philbrook, supra, 105 Cal. 471, an attorney filed a brief on appeal in this court containing “offensive, scandalous, and contemptuous language” concerning one of this court’s justices and two superior court judges. The brief also contained language inferring the justices may be improperly influenced in deciding the appeal. Such conduct was deemed to exhibit “only a sheer intent to be maliciously contemptuous” and to warrant suspension of the attorney for three years to insure public confidence in an impartial judiciary.

Petitioner does not address the issue of recommended discipline. The record indicates he may well have been motivated by a good faith belief in his clients’ position and the need for vigorous action in protecting their claimed rights. Petitioner has consistently maintained his statements were made in the course of what he believed to be zealous but proper representation of his clients” interests.¹³ He describes himself as a “poor persons’ lawyer,” a characterization illustrated by his representation of the Terrys—who appear to have limited assets—for nearly nine years. He states the problem giving rise to the disciplinary proceedings is one of semantics, contending the State Bar has misconstrued the language contained in his court filings.

A factor which might be considered in assessing discipline is petitioner’s apology to the justices he had vilified. (Compare Peters v. State Bar, supra, 219 Cal. 218, 223; In re Philbrook, supra, 105 Cal. 471, 481.) However, after having been put on notice of the seriousness of his misconduct and apparently persuaded that an apology was in order, petitioner again maligned the justices with suggestions comparable to his earlier aspersions in seeking relief from the United States Supreme Court.

Petitioner’s zealous representation of the Terrys cannot excuse the breach of his duties as an attorney. Appropriate discipline must be imposed, if for no other reason than the protection of the public and preservation of respect for the courts and the legal profession. (See Bradpiece v. State Bar (1974) 10 Cal.3d 742, 748 [111 Cal.Rptr. 905, 518 P.2d 337].)

It is ordered that petitioner be suspended from the practice of law in this state for a period of one year commencing on the effective date of this order; that execution of the order of suspension be stayed and petitioner be placed on probation for such one-year period upon conditions (1) he be actually suspended from the practice of law in this state for the first 30 days of the probationary period, (2) he take and pass the Professional Responsibility Examination administered by the Committee of Bar Examiners within one year after the date upon which this order becomes effective (see Segretti v. State Bar (1976) 15 Cal.3d 878 [126 Cal.Rptr. 793, 544 P.2d 929]), and (3) he comply with the State Bar Act and Rules of Professional Conduct of the State Bar during the probationary period. This order shall become effective 30 days after the opinion herein is filed.

1 Klamath Production Credit Association v. John Terry et al. (Siskiyou Co. Super. Ct., No. 24951.)

2 John V. Terry and Aline S. Terry v. Klamath Production Credit Association, Leonard M. Friedman, Robert K. Puglia and Edwin J. Regan (E.D.Cal. Civ. No. S-76-320).

3 John V. Terry et al. v. Klamath Production Credit Association et al. (9th Cir. No. 77-1019).

4 Petitioner states: “Terrys concede that error in State Court interpretation of law gives no cause of action in the Federal Court. It is the unlawful assumption of jurisdiction over matters not before them, and the entry of a remand order without the jurisdiction thus illegally assumed, which order deprives the Terrys of their property and legal rights without due process of law, that constitutes a cause of action under Federal law in the U.S. District Court. This question was avoided by the District Court by refusing to hear same. This is the status of the poor litigant all too often in our Courts. Money is king, and some judges feel they are there to see that it doesn’t lose. This is contrary to the fundamental basis of our government.” (Italics added.)

5 Petitioner’s full statement is as follows: “After seven years of additional hard labor (1967-1974), under KPCA Terrys were left with substantially nothing. They proceeded to a State Court trial where a jury awarded them $65,000 damages, including $5,000 punitive damages, and the trial judge removed KPCA’s lien and encumbrances on their property. Thereafter, the KPCA by its power and influences and money was able to induce the defendant-judges to act in an unlawful manner so as to deprive the Terrys of their compensatory damages, their property, including everything that they had worked for for over twenty-five years." (Italics added.)

6 Petitioner’s complete statement is as follows: “... The original action was filed in the Siskiyou County Superior Court of the State of California; this was tried before a judge and jury and an award was made in favor of the Terrys and against UPC A [sic]. Thereafter, the defendant-judges with their invidious alliance with KPCA, did unlawfully act to deprive the Terrys of their judgment and impose a lien upon their property, taking away their legal rights of a trial by limiting, without authority, pleadings and evidence upon which they could proceed.” (Italics added.)

7 Petitioner stated: “Cases where there were no causes of action were dismissed on the basis of judicial immunity. This combined with the natural reluctance of one judge to pass judgment on another and strengthened the original error. Generally speaking, a judicial officer should be immune from actions for damages caused by error in his acting upon the matters before him. This can be corrected on appeal. But where a judicial officer has acted outside of his jurisdiction and falsified the record to do so, and this deprives a citizen of his property and property rights, judicial immunity should not bar the remedy even though the officers be immune from personal liability. Thus in an action brought for judicial wrong, the judge defends his reputation, the wrongfully benefited party loses his illicit gain, and the ends of justice are served. That the wrongful taking was under color of State law by the judges and Federal agency cannot be disputed. [IT] Does the undeserved-unblemished reputation of a judicial officer outweigh the wrongful taking of a farm couple’s property and livelihood under a misconceived theory of judicial self-preservation? This is judicial sovereignty without legal basis or right.” (Italics added.)

8 At the hearing petitioner testified as follows: “Q. [Examiner] And thereafter it was determined by you, I guess, in consultation with your clients, to bring an action in the U.S. District Court naming the justices and KPCA as parties? [IT] A. [Petitioner] Yes. [IT] Q. Now in that cause of action, you alleged certain improper conduct on the part of the justices; isn’t that correct? Illegal action? [¶] A. Well, conduct that would be actionable. ‘Improper’ could be a description, yes. [¶] Q. In that complaint, specifically, didn’t you charge Justices Friedman, Puglia, and Regan with committing illegal acts as well as acting unlawfully? [U] A. Yes. [í] Q. What facts did you have in your possession at the time you made that complaint that caused you to make that allegation in the U.S. District Court action? [¶] A. The law of the State of California confers specific jurisdiction upon a Court of Appeals, and this specific jurisdiction denies them the right to find facts contrary to those of a jury or a trial judge who is trying the facts. [H] In this particular case, the judges of the Court of Appeals went beyond the authority given them by law, and therefore this was termed ‘illegally.’ They went beyond the authority granted them by law in that they attempted to find facts that had already been concluded by finding of a jury and a trial judge. [¶] This is the explanation of the term ‘illegally’: unlawfully, in that they went beyond the authority granted them by law. [H] They sent the matter down with findings of fact that they had entered and with directions as to what should be done with the case in the lower court contrary to the facts previously found by a trial jury and judge, and again beyond the law given them by the State of California.”

9 Petitioner testified as follows: “CHIEF REFEREE TROXEL: To interrupt your flow for a moment, are you trying to tell us that basically all you were saying by this is that the judges were prejudiced against the Terrys and in favor of the Klamath Production Credit Association? [Tí] MR. RAMIREZ: What I’m saying is that this was not a determination according to law, and that one of the explanations is invidiousness: in other words, the envy, the fact that this poor fellow shouldn’t be allowed to rise in court and recover the judgment he had recovered. That’s what I meant. [If] CHIEF REFEREE TROXEL: This is your presentation? [¶] MR. RAMIREZ: Yes, sir. That’s all the argument was intended to mean. [H] REFEREE STEPHENS: You were using language from the Supreme Court of the United States—[If] MR. RAMIREZ: The Court of Appeals. [If] REFEREE STEPHENS: From the Court of Appeals to allege, by words of art, to cover an allegation which you felt the federal judiciary felt was essential to make a cause of action? [II] MR. RAMIREZ: I felt the facts applied, and I felt the court said you have to state them, and I stated them.”

10 Petitioner stated in his deposition: “Q. [Examiner] So you are in effect accusing these justices of knowingly and intentionally doing an illegal act? [II] A. [Petitioner] I don’t find any explanation that they didn’t know what they were doing in going beyond the proper dealings of an appellate court. There is no evidence whatsoever of that, and I don’t believe that anybody is saying that the judges are not competent to understand the consequences, the effects of their act, or were competent to understand the statutes and the decisions of the State of California in relation to the authority and rights that they have as appellate judges. [If] Q. So in effect you are saying that they knowingly and intentionally committed an illegal act? [¶] A. I am saying that that would be an argument that could lawfully be made under these circumstances. [If] Q. But that in effect is what you are asserting in your cause of action? That’s what you mean to assert? If it were merely error, as you say, it’s something that is done innocently and unintentionally and not knowing that it’s in error, but you are saying that it’s illegal because they knowingly and willfully and intentionally did something that they knew was wrong, is that what you are saying? [If] A. I am saying the inference could be argued from the decision of the matter which was presented, yes.”

11 Petitioner testified as follows: “Q. [Examiner] You don’t believe that their decision [reversing the trial court judgment] was an innocent mistake? [K] A. No, I don’t. I believe it was influenced in a manner that is not proper. [¶] REFEREE STEPHENS: How and in what fashion was it influenced? [H] MR. RAMIREZ: I feel it was influenced by slight innuendos, derogatory conversations about the case, about the people involved, about things that—you know, when the judges have such a mass of work that for them to go in—and if you don’t put an error down in the brief, if you don’t but [szc] an error down in your argument, they’re not going to find it. [¶] REFEREE PATINO: Mr. Ramirez, you don’t have any evidence—those are your feelings. Do you have any evidence to prove that then or now the judges were approached, were contacted, or in any way influenced by any actions by KPCA? [If] MR. RAMIREZ: No. I made no investigation.”

12 An attorney’s oath requires that he “discharge the duties of an attorney.. .to the best of his knowledge and ability.” (Bus. & Prof. Code, § 6067.) Among such duties, an attorney is required to “maintain the respect due to the courts of justice and judicial officers,” to “employ.. .such means only as are consistent with truth,” and to “abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he is charged.” (Bus. & Prof. Code, § 6068, subds. (b), (d) and (f).)

13 Petitioner testified as follows: “REFEREE PATINO: Were you aware of the fact, though, that as a California lawyer if you felt that a judge had done wrong, you could file a complaint with the Commission on Judicial Qualifications? [¶] MR. RAMIREZ: I wasn’t concerned—I feel that the people in Sacramento work with these people. They know them better than I do. I was concerned with the fact that an illegal act had taken—was threatening to take the entire life’s work of Mr. and Mrs. Terry, that there was no other reason other than the law that was doing that to them, and that was my only concern. My only concern was their case.”