DocketNumber： L. A. 18639
Judges： Carter
Filed Date： 8/3/1943
Status： Precedential
Modified Date： 10/19/2024
By a notice to show cause, The State Bar charged John Foster Sheffield with: “Violating your oath and duties as an attorney and counselor at law within the meaning of Section 6103 of Article 6 of the Business and Professions Code of the State of California, as the same are prescribed by Sections 6067 and 6068 of Article 4 of the Business and Professions Code of the State of California; and violating Rules 5 and 7 of the Rules of Professional Conduct of the State Bar of California; and the commission of acts involving moral turpitude and dishonesty within the meaning of Section 6106 of Article 6 of the Business and Professions Code of the State of California. ...” Following a hearing upon these charges, the Board of Governors recommended that Sheffield be suspended from practice for a period of three months. In response to a writ of review issued by this court upon Sheffield’s petition, the record of the proceeding has been presented for consideration.
It appears that in 1941, H. L. Blake retained the petitioner in connection with a dispute over premises which were the subject of a contract between him and Grace S. Cornwell. As attorney for Blake, who paid him $50, the petitioner filed in the superior court a complaint in which there was demanded from Mrs. Cornwell an accounting under the contract and damages for its breach; the plaintiff also asked the court for an injunction and declaratory relief. Sheffield later filed an amended complaint. Upon these complaints, a restraining order was issued.
Shortly afterward, Blake obtained other counsel who was substituted for the petitioner. The action was then prosecuted to a judgment by which Mrs. Cornwell was enjoined from
Five months later, the petitioner, as attorney for Mrs. Cornwell, filed a complaint against his former client in which she sought damages for a breach of the same contract which was the subject of the prior action. Soon after this complaint was filed, according to the findings of fact made by the Local Administrative Committee, the attorney for Blake demanded that Sheffield withdraw from the action upon the ground that he had represented Blake in the same matter. Sheffield refused to do so. Blake’s counsel then moved the court to require Sheffield’s withdrawal from the ease. On the day of and shortly before the hearing of this motion, petitioner served on Blake’s attorney a copy of a substitution of attorneys in which another, attorney was substituted for him. The motion was nevertheless pressed, and the court ordered that Sheffield “be excluded . . . from taking any part in the trial of the . . . action as attorney of record for plaintiff, or as an attorney assisting or cooperating with any other attorney of record of said plaintiff, or at all.”
Notwithstanding this order, at the time the action was set for trial Sheffield appeared on behalf of counsel of record for Mrs. Cornwell and requested a continuance. Following several continuances, Blake’s counsel moved for a dismissal of the action upon the ground that Mrs. Cornwell’s rights had been concluded by the judgment in the former litigation. This motion was granted.
Upon these facts the committee determined that the petitioner had violated his oath and the duties of an attorney at law. In making this determination, the committee stated that the members “are of the opinion that respondent has violated one of the most important and fundamental rules governing the relationship between attorney and client. ... We can imagine certain instances where there might be a reasonable doubt as to the propriety of an attorney occupying a position adverse to a former client, but the present one certainly does not fall within such a zone of doubt. There would appear to be no question but that the subject matter of the two actions involved was exactly the same. The pleadings and judgment of dismissal in the second action would seem to be conclusive in this regard.” The committee recommended
When the matter came before the Board of Governors, the petitioner appeared with his counsel who made a statement. By unanimous vote the findings of fact of the committee were adopted. Two members of the board voted against the committee’s recommendation of suspension for three months upon the ground that it is insufficient; all of the other members present adopted that recommendation.
The first point urged by the petitioner is that the findings of fact and conclusions of law made by the committee are not based upon the charges against him as stated in the notice to show cause. He asserts that he was charged with unethical conduct in representing conflicting interests and that the committee found that he had not done so. But the findings follow exactly the wording of the notice to show cause except that they omit any mention of rule 7 which the committee found had not been violated.
Sheffield also asserts that the evidence is insufficient to support the findings and recommendations of The State Bar and that they are contrary to it. He calls attention to the fact that no complaining witness testified, and relies upon the testimony of Blake’s attorney, who volunteered the opinion to the committee that the petitioner “was guilty of no act that could be worthy of punishment by The State Bar.” He also relies upon the fact that the transcript shows no evidence of any confidential information received by him from Blake.
The Rules of Professional Conduct adopted by The State Bar provide: “A member of The State Bar shall not accept employment adverse to a client or former client, relating to a matter in reference to which he has obtained confidential information by reason of or in the course of his employment by such client or former client,” (Rule 5.) A reasonable construction of it, said this court in Galbraith v. State Bar, 218 Cal. 329 [23 P.2d 291], “suggests that the subsequent representation of another against a former client is forbidden not merely when the attorney will be called upon to use confidential information obtained in the course of the former employment, but in every case when, by reason of such subsequent employment, he may be called upon to use such confidential information.” And the court also declared, adopting-its statement in Wutchumna Water Co. v. Bailey, 216 Cal. 564 [15 P.2d 505], that “an attorney is forbidden to do either of two
The evidence against the petitioner shows a disregard of this rule and also of the elementary principles of good faith and fair dealing upon which it rests. He could not have filed the complaint against Mrs. Cornwell without obtaining from Blake information concerning the contract sued upon and the facts relating to the conduct of the parties in connection with the premises since that time. Yet five months later he represented Mrs. Cornwell in an action brought by her to secure damages on account of her eviction from the premises which were the subject of the same contract and ignored the order of court which excluded him from further participation in the case.
Sheffield’s defense, as set forth in his answer to the notice to show cause and as related in his testimony, is that when Mrs. Cornwell consulted him he informed her that he did not know whether, with propriety, he could represent her. He then telephoned to the Los Angeles office of The State Bar and asked for B. W. Hendrick, an assistant secretary. To the person who represented himself to be Hendrick, he stated the facts and inquired whether he could ethically act as attorney for Mrs. Cornwell. Petitioner was informed, he declared as a witness in his own behalf, that if he had not received any confidential information from Blake, which could be used against him in the second action, there was no reason why he could not represent Mrs. Cornwell. An employee of The State Bar testified, however, that at the time of this asserted telephone call Hendrick was no longer in its employ. This witness also stated that, after Hendrick left the employ of The State Bar, two or three persons acted in his place and a telephone call concerning a question of ethics was placed with another one of the secretaries. And although the petitioner testified that he had asked for and spoken with Hendrick, the conversation, he later stated, might have been had with someone else.
The petitioner also testified that before undertaking to represent Mrs. Cornwell, he discussed the proprieties of the matter with three attorneys with whom he had an office association. According to his testimony, they told him they knew of
But this testimony did not impress the committee as being entitled to any great weight. If Sheffield discussed the matter with any employee of The State Bar qualified to give an opinion, the committee concluded, it appears improbable that he disclosed all of the essential factors. It may also be observed that no employee of The State Bar can give an attorney permission to violate the Business and Professions Code or the Rules of Professional Conduct. An opinion of a fellow attorney is likewise no defense to wrongdoing, although the leniency of the committee’s recommendation indicates that it gives some consideration to this evidence.
It is ordered that John Foster Sheffield be suspended from the practice of law for a period of three months, effective thirty days after the filing of this opinion.