In Re Phillips

CARTER, J., Dissenting.

I dissent.

I am in entire accord with everything contained in the masterly dissenting opinion prepared by Mr. Justice Shenk and I unqualifiedly concur in the views expressed by him therein.

To my mind it is nothing short of paradoxical to say that an order of disbarment can be predicated upon a plea or verdict of guilty which has been vacated and set aside or upon a judgment which is no longer in existence. Such is the legal effect of the conclusion reached in the majority opinion in this case.

Section 1203.4 of the Penal Code provides:

“Every defendant who has fulfilled the conditions of his probation for the entire period thereof, or who shall have been discharged from probation prior to the termination of the period thereof, shall at any time prior to the expiration of the maximum period of punishment for the offense of which he has been convicted, dating from said discharge from probation of said termination of said period of probation, be permitted by the court to withdraw his plea of guilty and enter a plea of not guilty; or if he has been convicted after a plea of not guilty, the court shall set aside the verdict of guilty; and in either case the court shall thereupon dismiss the accusation or information against such defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted.”

When the foregoing provision has been complied with, the clear and unqualified legal effect is that there is no plea or verdict establishing the guilt of the defendant, and even the accusation or information upon which such plea or verdict could be predicated has been dismissed. How it is possible to predicate an order or judgment of disbarment upon such a plea or verdict is beyond my comprehension.

Not only is the legal conclusion reached by the majority opinion astounding, but its practical effect is shocking to my sense of justice. An attorney who would enter a plea of guilty of a violation of section 476a of the Penal Code for issuing a cheek overdrawing his bank account $1.00 and was granted probation would be automatically disbarred. Whereas, if disciplinary proceedings were instituted against said attorney before the State Bar, the discipline, if any administered to him, would probably not exceed that of a short period of suspension or reprimand. The lack of uniformity in discipline resulting from the application of the rule announced in the majority opinion is so shocking that the necessity for an immediate change in the provisions of sections 6101 and 6102 of the Business and Professions Code should appeal very forceably to the members of the legislature, to the end that disbarment thereunder be not permitted in cases where probation is granted and the conditions thereof fulfilled.