Herron v. State , 212 Cal. 196 ( 1931 )

We dissent. We believe that the unanimous opinion of this court heretofore filed on August 22, 1930, is correct, and we adhere to it and adopt it as our dissenting opinion in this case. The said opinion reads as follows:

"On August 6, 1929, the Board of Governors of The State Bar of California filed herein its recommendation that petitioner William F. Herron be disbarred from the practice of law in this state. This recommendation was predicated upon certain findings of fact of local administrative committee No. 4, in and for the city and county of San Francisco. This committee found petitioner guilty of unprofessional conduct upon four separate and distinct accusations. Within the time provided by law petitioner duly filed in this court his petition for a review of the action of the Board of Governors of The State Bar recommending his disbarment in accordance with the provisions of section 26 of the State Bar Act. The Board of Governors has appeared herein and filed its answer to said petition and upon said petition and answer and the evidence and proceedings had before the Board of Governors and said administrative committee a transcript of which has been filed with the clerk of this court, said matter has been submitted for decision.

"Of the four accusations made against petitioner before the Board of Governors only one was in writing. This one was verified, not by the person aggrieved by the alleged misconduct of the petitioner, but by his attorney upon information and belief.

"Petitioner makes the contention that the filing of a complaint under oath is a necessary condition precedent to any proceeding which terminates in the discipline of an attorney by disbarment or suspension.

"Prior to the enactment of the State Bar Act, proceedings for the disbarment of attorneys were governed entirely by certain provisions of the Code of Civil Procedure. (Secs. 287 to 301.) The provisions of the code which provided for the procedure to be followed in the disbarment or suspension of an attorney are to be found in sections 289, 290 and 291, which read as follows:

"`Proceedings for removal or suspension. The proceedings to remove or suspend an attorney and counselor, under the first subdivision of section two hundred eighty-seven must be taken by the court on the receipt of a certified copy of the record of conviction. The proceedings under any of the other subdivisions of that section may be taken by the court for the matters within its knowledge, or may be taken upon the information of another.' (Sec. 289, Code Civ. Proc.)

"`Accusations. If the proceedings are upon the information of another, the accusation must be in writing.' (Sec. 290, Code Civ. Proc.)

"`Verification of accusation. The accusation must state the matters charged, and be verified by the oath of some person, to the effect that the charges therein contained are true, which verification may be made upon information and belief when the accusation is presented by an organized bar association.' (Sec. 291, Code Civ. Proc.)

"There is nothing in the State Bar Act which by direct enactment repeals or attempts to repeal any of these code sections. On the contrary, section 26 of the State Bar Act provides that, `Nothing in this act contained shall be construed as limiting or altering the powers of the courts of this state to disbar or discipline members of the bar as this power at present exists.' In the exercise of its power to suspend or disbar attorneys, the court is governed by the provisions of the above-quoted sections of the Code of Civil Procedure, and any proceedings, therefore, before the courts instituted for the purpose of disbarring or suspending from practice an attorney at law must be initiated by an accusation sworn to by a person who has actual knowledge of the facts alleged therein, except that when the accusation is presented by an organized bar association, the verification may be upon information and belief.

"The next question presented by the record before us is whether accusations originating before the Board of Governors of The State Bar and then certified to this court are subject to any different regulations than those imposed upon accusations made direct to this court.

"At this time it is well to call attention to the fact that the final order of disbarment or suspension of an attorney must in all cases be made by this court and that the Board of Governors of The State Bar has not been invested with power to make such final order. Proceedings, therefore, for the disbarment or suspension of an attorney, even when they are instituted in the first instance before the Board of Governors, are in fact proceedings before this court as no effective or final order can be made therein except by the court after such proceedings have been certified thereto by the Board of Governors of The State Bar. (Sec. 26, State Bar Act; In reShattuck, 208 Cal. 6 [279 P. 998].)

"The protection of the public from the `evil practices' of dishonest and dishonorable attorneys is of paramount importance to the bar of this state, as well as to the public generally. Nevertheless, sight should not be lost of the fact that the right to practice law is a valuable property right and that no attorney should be deprived of this right without a fair hearing and ample opportunity to disprove any accusations made against him. The legislature in the enactment of the above-quoted code sections was meticulous in safeguarding the right of an attorney by requiring that he be faced with a sworn accusation of the charges against him. If an attorney is guilty of misconduct so gross as to warrant disbarment or suspension, the party aggrieved should be willing to make an oath or affirmation of the truth of the charges preferred. If he is not guilty, it is only fair that he should have some recourse against anyone making an unfounded and unwarranted charge. In the absence of language clearly expressing that intention, we are loath to hold that the legislature by the enactment of the State Bar Act intended to eliminate the requirement that before an attorney may be disbarred or suspended a complaint verified by oath or affirmation must be filed against him.

"The only provision of the State Bar Act which in any manner touches this matter is found in section 34 thereof, which in part reads as follows:

"`The board, or any local administrative committee shall, of its own motion and without the filing or presentation of any complaint, or upon any complaint, if a complaint be filed, have power to initiate and conduct investigations of all matters affecting or relating to The State Bar, or its affairs, or the practice of the law, or the discipline of the members of The State Bar, or any other matter within the jurisdiction of The State Bar, and in the conduct of such investigations shall have power to take and hear evidence touching the matters under investigation, administer oaths and affirmations, and upon such investigations, and upon the trial or hearing of all matters, jurisdiction to try or hear which is given the said board or committee, shall have power to compel the attendance of witnesses and the production of books, papers and documents pertaining to the matter under investigation or to said trial or hearing, by subpoena issued as hereinafter provided. . . .'

"From this section of the State Bar Act it is seen that the Board of Governors or any local administrative committee shall of its own motion and without the filing or presentation of any complaint have power to initiate and conduct investigations of all matters affecting or relating to the discipline of the members of The State Bar. Just what is meant by the term `power to initiate and conduct investigation' of matters affecting the discipline of the members of The State Bar? We do not believe that the power to initiate and conduct investigations conferred by this section of the State Bar Act was intended to be coincident with the power to hear and try accusations against an attorney and upon such hearing and trial to make recommendations to this court looking toward an attorney's disbarment or suspension. Within the very section itself a distinction is made between such investigations and a trial or hearing, for the section provides that `upon such investigation, and upon the trial or hearing of all matters, jurisdiction to try or hear which is given to the said board or committee', the board or local administrative committee shall have power to compel the attendance of witnesses, etc. Moreover, this power to make recommendations after hearings had already been conferred upon the Board of Governors by section 26 of the State Bar Act. It is also to be noted that it is with reference to the conduct of investigations, which may or may not pertain to the disbarment or suspension of a member, that The State Bar is authorized to proceed with a complaint or accusation under oath. We are, therefore, convinced that the legislature intended by the use of the term `investigation' to mean nothing more than a systematic inquiry into the matters therein designated, and to confer upon the Board of Governors or the local administrative committee the means by compelling the attendance of witnesses, etc., to make such investigations effective.

"As there are no other provisions in the State Bar Act relative to any complaint or accusation upon which a trial or hearing and a recommendation of disbarment or suspension may be made, we are of the opinion that as to such complaints and accusations the code sections hereinbefore quoted still control.

"Respondent relies upon the case of Ex parte Wall,107 U.S. 265 [27 L.Ed. 552, 2 Sup. Ct. Rep. 569], in support of its action in proceeding against petitioner without any formal or verified accusations. The proceeding before the United States court for the disbarment of Wall was not initiated by any formal complaint against Wall. The court acted upon its own motion, much like the Board of Governors proceeded against petitioner herein in the proceeding now under review, and its action, which resulted in a judgment of disbarment of Wall, was sustained by the Supreme Court of the United States. But in the federal procedure for the disbarment of an attorney there was no statute which required, as do the statutes of this state, the filing of a verified accusation against the offending attorney. For this reason we do not think that the case of Ex parte Wall is applicable to disbarment proceedings instituted in this state.

"In holding that the power to initiate and conduct investigations conferred by section 34 of the State Bar Act does not measure up to the power to try and hear charges leading up to disbarment or suspension conferred by section 26, we do not wish to be understood as holding that the section contemplates nothing more than mere sleuthing expeditions. For if during the preliminary inquiry into matters affecting the discipline of members of the bar matters should be brought to light warranting a recommendation to this court that an attorney should be disbarred or suspended, a sworn complaint may then be filed with the local administrative committee or with the Board of Governors, and the said committee or board may proceed to hear and try the charge and make its findings and recommendation.

"Inasmuch as none of the charges against the petitioner is supported by the oath and affirmation of any party, other than the one which was verified upon information and belief, this court is without power in the absence of such sworn accusation to make an order of disbarment against the petitioner.

"In view of the opinion already expressed herein, it is not necessary to decide the numerous other questions presented by the petitioner, nor to pass upon the merits of the charges preferred against him."

We reiterate the view that the requirement of a verified complaint in this proceeding is jurisdictional; and we refrain from considering the merits of the charges against the accused because they are not properly before us.

We believe that whatever was the view of those who framed the State Bar Act in providing for the final disposition of disciplinary matters by the board of governors, that interpretation no longer obtains, since by judicial construction that power rests solely with this court. Under section 289 et seq. of the Code of Civil Procedure, this court has no jurisdiction to proceed except upon a verified complaint, as in any other criminal or quasi-criminal proceedings; and it therefore follows that such an alternative system to that provided by the code, as contended in the majority opinion herein, does not exist, since to give it existence and application would nullify in effect the code provision.

It may be conceded that the State Bar Act is a novel experiment in legislation in the United States; but it is equally true that it is not easily adjusted and fitted into the California system of laws. Only through modification by sympathetic interpretation of the Supreme Court has it been able to function at all. Through this process the original act has been emasculated to such an extent that it now bears slight semblance to the law as conceived by its framers. Certain powers claimed by its governing board under the act are no longer recognized; and what was conceived to be an act vesting full power and control over the admission and discipline of members of the bar has been practically nullified, in those respects at least, by decisions of this court. The disposition of disciplinary matters is now determined by the Supreme Court. It would seem to follow that the essential requirements of the court for jurisdiction should be met; and one of these is a verified complaint. Upon an unverified complaint, no person accused of a punishable offense can be brought into the courts; and we think that this is necessarily so in the interests of justice and fair dealing.

The lawyer is a member of an ancient and honorable profession. His reputation is his chief working capital. Like a woman's virtue, to question it is to do irreparable harm. One who is not willing to make his accusation under oath should not be permitted to destroy that reputation. It is no answer to say that if the accused is innocent he will be vindicated. The mere fact that he is brought before the bar is itself ruinous to his reputation in the community in which he resides. The procedure which The State Bar seeks to justify, and which the majority opinion sanctions, leaves the attorney without any effective protection against the loose and groundless charges so frequently made by disgruntled clients. If an attorney may be proceeded against upon the unverified complaint of any individual, then it is immaterial that later he may have a fair trial and an opportunity to establish his innocence. His reputation is vitally affected by the mere fact that he is being tried. Before an attorney is stigmatized for alleged wrongdoing, the accusation against him should be made by one who knows the truth of the charge and verifies it under oath. We deem this requirement based on elemental justice and anything less cannot be justified on the ground of expediency or any of the other reasons suggested. The Code of Civil Procedure makes the requirement, and without it, jurisdiction does not attach.

Rehearing denied.

Richards, J., Curtis, J., and Langdon, J., dissented.