In Re Riccardi , 182 Cal. 675 ( 1920 )

I dissent. The main opinion is based primarily upon the fact that the question involved is determined by People v.Treadwell, 66 Cal. 400, [5 P. 686]. It also takes the position that that decision is not clearly wrong, advancing certain reasons in justification for it. It concludes that no good reason appears for overruling the decision. I can but take issue with the main opinion on all three of these points.

In the first place, the decision in the Treadwell case is, it seems to me, directly opposed to a number of other decisions of this court upon the identical point involved, the meaning of the word "conviction," and that it is therefore not determinative now. In the second place, there is in my opinion no reasonable doubt but that the Treadwell case is wrong. In the third place, I can see no doubt but that the rule it declares and the main opinion affirms is opposed to sound public policy so that good reason does appear for overruling it. In addition, the rule it declares is not one under which rights have been acquired. Its overruling can have no other effect than that of now establishing definitely what, it seems to me, is plainly the right rule.

In regard to the first point. The final question is as to the meaning of the word "conviction" as used in section 287 of the Code of Civil Procedure, which provides that an attorney shall be disbarred upon his: "conviction, of a felony or misdemeanor involving moral turpitude." The Treadwell case holds, in effect, that conviction does not mean the finding of a man guilty, but means the sentence which follows and is the final result and judgment which ensues upon the finding of guilt. Now, it is true that the Treadwell case is the only decision of this court upon the meaning of the the only decision of this court upon the meaning of the word as used in this particular section. But there is nothing whatever to indicate that as so used the word is used in any sense other than that in which it is repeatedly used in other sections of our code. The word as used in our statutes has been construed a number of times subsequent to the Treadwell case, and each time directly contrary to the ruling in that case.

Thus in Ex parte Broum, 68 Cal. 176, [8 P. 829], the defendant in a criminal action, who had been found guilty by the verdict of a jury, but upon whom judgment had not been pronounced, applied to be released on bail as a matter of right. He had this right unless section 1272 of the Penal Code provided differently. That section reads "After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail:

"1. As a matter of right, when the appeal is from a judgment imposing a fine only." The defendant claimed that not having been sentenced he had not been convicted and did not come within the operation of the section. But, although the section is one very evidently intended to govern the matter of bail pending an appeal and an appeal cannot be taken until after sentence, so that the court might perhaps have been justified in concluding that conviction, as here used, meant the judgment from which an appeal could be taken, the court held upon a detailed discussion of the question that conviction meant the finding of guilt and not the appealable sentence or judgment.

Similarly in People v. Ward, 134 Cal. 301, [66 P. 372), a witness under examination was asked if he had ever been convicted of a felony. It appeared that he had been found guilty of a felony but not sentenced. Section 2051 of the Code of Civil Procedure provides that by way of impeachment it may be shown of a witness "that he had been convicted of a felony." It was objected that the witness had not been convicted within the meaning of the section since he had not been sentenced. Again the court considered the matter at some length and again it decided that conviction meant the finding of guilt and not the sentence or judgment.

In McKannay v. Horton, 151 Cal. 711, [121 Am. St. Rep. 146, 13 L. R. A. (N. S.) 661, 91 P. 598], a city charter provided that an office became vacant "when the incumbent . . . is . . . convicted of a felony." A similar provision was made by the Political Code (sec. 996). The mayor of the city had been found guilty of a felony, had been sentenced and had taken an appeal, and the question was presented as to whether or not he had been convicted within the meaning of the charter and the code so that his office had become vacant, although an appeal was pending. In other words, the question is identical with the one presented here. But again it was held that conviction meant the finding of guilt, and not a final judgment, and that the office was vacant, although the appeal was pending. The main opinion in McKannay v. Horton attempted to distinguish the Treadwell case, but the fact of the matter is that the conclusion reached by it is directly opposed to that of the Treadwell case. The concurring opinion in McKannay v. Horton, written by Justice Angellotti and concurred in by Justices Sloss and Shaw, makes no attempt to distinguish the Treadwell case and sums the whole matter up thus: "One is 'convicted' of a crime when a verdict of guilty has been so given and entered against him, or when a plea of guilty has been given and entered. This is the well-settled meaning of the term as ordinarily used in our constitutional and statutory provisions. . . ."

These decisions are subsequent to the Treadwell case and are to my mind wholly irreconcilable with it. In view of them I do not see how it is possible to say with reason that the Treadwell case must be taken as a final and determining authority in the present case. It does seem to me that its authority has been taken from it.

Second, in regard to the merits of the Treadwell case itself. It is admitted in the main opinion here, at least impliedly, that "conviction" in the ordinary sense means conviction of guilt, not the sentence or judgment which ensues upon such conviction. In any case there can be no doubt but that such is the ordinary meaning of the word. It is an elementary rule of statutory construction that a word shall have its ordinary meaning unless there is something to show that it was used in a different sense. The Treadwell case puts a meaning on the word "conviction" different from its ordinary meaning. What, then, are the reasons given for this? According to the main opinion they are two: First, that the connection in which a word is used often shows that it is used in a sense other than its ordinary one, the implication, not plainly stated, being that in this case the connection in which the word "conviction" is used shows that it was not used in its ordinary sense; and, second, that if a lawyer were convicted and disbarred for that reason pending an appeal and the conviction should be reversed, his disbarment would nevertheless stand, and that this would be most unjust.

In regard to the first reason, it is, of course, true that frequently the connection in which a word is used shows that it was not used in its ordinary sense. But the implication that the connection in which the word "conviction" in the code section as to disbarment is used shows that it was used in other than its ordinary sense is not justified. There is nothing whatever in the code section to indicate that the word was not used in its ordinary sense. The material portion of the section reads simply:

"Section 287 An attorney and counselor may be removed or suspended by the supreme court, or any department thereof, or by any district court of appeal, or by any superior court of the state, for either of the following causes, arising after his admission to practice:

"1. His conviction of a felony or misdemeanor involving moral turpitude, in which case the record of conviction shall be conclusive evidence."

What is there in this language which indicates in any way that "conviction" means something else than conviction in its ordinary sense?

In this connection I would add that the word "conviction" is used time and again in the codes, and so far as I am aware always in its ordinary sense of the establishment of guilt by the verdict of a jury or a plea of guilty. In fact, it is so defined by section 689 of the Penal Code. In a great many of the code sections the distinction between "conviction" and the judgment or sentence which follows upon it is plainly made. (Pen. Code, secs. 1097, 1103, 1104, 1108, 1110, 1111, 1157, 1161, 1162, 1192a, 1193, 1197, 1203, 1207, 1217, 1218 and 1227.) The same use of the word is found in our constitution. (Art. I, sec. 20.)

As to the second reason given in justification of the Treadwell case, that the disbarment would stand, even though the conviction were reversed on appeal, and that this would be most unjust, the answer is that the disbarment would not stand in such a case. In the first place, this court has full power to reinstate an attorney once disbarred. It is a power that has been exercised even in the case of an attorney whose conviction of a felony was final. It seems incredible that the court, having the power of reinstatement, would not use it as of course in any case where it appeared that the conviction upon which the disbarment was based had been set aside.

In the second place, it is the rule that wherever a judicial order or judgment is based upon a previous judicial order, judgment, or act, and such previous order, judgment, or act is reversed on appeal or set aside, the subsequent order or judgment based upon it must be set aside as of course. The party affected is entitled to this as a matter of right and it cannot be refused. The most common illustrations of this are where the subsequent order is in the same proceeding as the previous order or act, as where a foreclosure sale is had on a decree which is appealed from but whose execution is not stayed. If the decree is reversed, the sale fails as of course. (Carpy v. Dowdell, 131 Cal. 499, [63 P. 780]; Cowdery v.London etc. Bank, 139 Cal. 298, [96 Am. St. Rep. 115,73 P. 196]; Turner v. Markham, 156 Cal. 68, [103 P. 319].) But the rule is not limited to orders or acts in the same proceeding. Thus, where a money judgment is obtained against a person, and he appeals but does not stay execution, and pending the appeal an action is brought against him upon the judgment and a second judgment obtained, and then the first judgment is reversed on appeal, the judgment debtor is entitled to have the second judgment set aside as of course and of right, (Heckling v.Allen, 15 Fed. 196; Banning v. Taylor, 24 Pa. St. 297; AetnaIns. Co. v. Aldrich, 38 Wis. 107; Mann v. Aetna Ins. Co.,38 Wis. 114. See, also, Ward v. Marshall, 96 Cal. 155, [31 Am. St. Rep. 198, 30 P. 1113].)

There is no reason why this general principle would not be applicable to the case of an order of disbarment based and founded on a conviction subsequently set aside. On the contrary, such a case comes directly within the principle and there is every reason why it should apply. The main opinion attempts to take the case without the operation of the principle by two lines of argument. In the first place, it is said: "This disbarment is not an 'incident' of the conviction of a felony or misdemeanor in the sense that such convictionipso facto removes the attorney from his office or is part of the penalty prescribed by the law for the offense of which he is convicted. It is a separate and independent thing and not in the slightest degree affected by a setting aside or reversal of the judgment of conviction of felony or misdemeanor." Every word of this argument except the final conclusion that the disbarment would not be affected by the setting aside of the conviction, is applicable to the case of a second judgment based upon a first which has been set aside and yet the final conclusion, thoroughly well established, is just the opposite. The second judgment is not an incident of the first in the sense that it ipso facto follows upon it. It is a separate and independent thing. And yet it is not true that "it is not in the slightest degree affected by a setting aside or reversal of the judgment" upon which it is based. The rule is just the contrary.

In the second place, the main opinion says: "Nor will it do to say that the rule that where a judgment is based on a previous judgment, and the previous judgment is reversed or set aside, the second judgment must be set aside, applies here. If the term 'conviction' means not the final judgment of conviction, but simply the rendition of a verdict of guilty or plea of guilty, as is the whole contention of those who insist that People v. Treadwell was wrongly decided, the attorney is disbarred solely because of the rendition of the verdict or theplea of guilty, and those facts, — viz.: such rendition of verdict or plea — remain and constitute the basis of disbarment, whatever be the ultimate result in the case." [The italics are those of the main opinion.]

The whole point of this is that when an attorney has been convicted by the rendition of a verdict or plea of guilty, he remains "convicted," although the verdict or the plea — that is, the conviction — is subsequently set aside. But he does not so remain. The rule is elementary that when a conviction or other legal determination is set aside it is as if it had never occurred. In the eyes of the law, it does not exist. We are dealing here not with a "conviction" as a mere historical happening, but as a matter of legal consequences and effects, and so far as legal consequences and effects are concerned a conviction set aside is no conviction. The matter may be tested in a very simple way. It is held in People v.Ward, supra, that a conviction which has not become final is yet a ground for the impeachment of a witness. But assume that a witness is on the stand who has once been convicted but whose conviction has been set aside. Is there any doubt that he would not be open to impeachment by a showing of such conviction? At any rate, this court has so held. (Davis v. McNear, 101 Cal. 606, [36 P. 105].)

Now, as to the third point advanced by the main opinion, viz., that no good reason appears for overruling the Treadwell case. In the first place, the Treadwell case is, in my judgment, plainly wrong. This is certainly some reason for overruling it, particularly as it is not a decision under which any rights have been acquired so that its overruling would work any injustice. But very much more important than this, the rule of the Treadwell case is opposed to sound policy, and its affirmance and perpetuation is harmful and it should be done away with. An attorney who has been actually convicted in the criminal courts of a crime involving moral turpitude should not be permitted to exercise the high privileges of his profession as long as that conviction stands against him unreversed. There is no relation in life outside the family which is more confidential in its nature than that of an attorney. There is no one in whom more implicit confidence must of necessity be placed. There is no profession in which the strictest probity is more necessary. There is no profession of which it is more true that the only safeguard possible to the public against imposition and wrong-dealing is the character of those pursuing it. The fact that a member of the profession has been actually convicted of a crime involving moral turpitude should alone be sufficient to disqualify him from pursuing his profession while such conviction stands. To permit him, nevertheless, to continue to hold himself out as a worthy member of the profession and to invite the public to intrust him with their confidences and their affairs while he pursues an appeal, and not unlikely a dilatory one, is to break down the standard of professional character which is the public's chief safeguard. It was to prevent just this very thing that in my judgment the legislature provided that a lawyer should be disbarred upon "conviction," without a word to indicate that it was not the conviction alone which was sufficient. I cannot subscribe to the statement of the main opinion that sound public policy does not require that this construction be put upon the statute so that a lawyer convicted of crime shall not be permitted to practice while his conviction stands. I do not mean by this, of course, that a man disbarred because of crime should be forever barred from the practice of the law. No matter how clear his guilt may have been or how just his conviction, it is fitting and right that he have the opportunity to demonstrate by his afterlife and conduct that he is again a worthy member of society and merits the respect and confidence of his fellowmen. When the time comes that he does demonstrate this, then he should be readmitted to practice, not grudgingly, but gladly. But this is not the present case. Here the question is, Shall a lawyer convicted of crime be permitted to practice while the conviction stands but he pursues an appeal? On this question I can see but one true answer, and that is that to permit him to do so is opposed to strong reasons of sound public policy.

In view of the reasons I have stated, I can see no reason for not overruling the Treadwell case as wrongly decided and adopting a different rule. To do so would not be to legislate as the main opinion intimates. If this were so a court could never reverse a former ruling. But there is no rule, so far as I am aware, that a court may not correct an error into which it has fallen, and the right, and, indeed, the duty, of the court in a plain case to do this cannot be questioned.

Lawlor, J., concurred.