Bluestein v. State Bar

Disciplinary Board of the State Bar that petitioner be suspended from the practice of law for six months.^[1]

Petitioner, who was admitted to practice in 1957, was charged with, inter alia, (1) violating his oath and duties as an attorney (see Bus. & Prof. Code, §§ 6103, 6067 & 6068) and committing acts involving moral turpitude (see Bus. & Prof. Code, § 6106) by using extortionary means to attempt to obtain payment of his attorney’s fee in a divorce action and (2) wilfully violating rule 3, Rules of Professional Conduct of the State Bar (see Bus. & Prof. Code, § 6077)^[2] by aiding and abetting an unlicensed person to practice law in California. Further particulars concerning the misconduct were also alleged. Petitioner denied the charges.

Whether Petitioner was Guilty of Misconduct in Connection with the Dorff Matter

In June 1970 Mrs. Robert Dorff retained petitioner to represent her in a divorce action. On July 29, 1970, Robert Dorff came to petitioner’s office and a fist fight ensued between Mr. Dorff and petitioner, following which petitioner made a citizen’s arrest and preferred criminal charges of assault and battery against Mr. Dorff. Petitioner estimated that as a result of the fight he incurred $200 property damage and $70 medical expenses.

A few days after the fight the Dorffs signed a marital settlement agreement, which called for the payment by Mr. Dorff of his wife’s attorney’s fee of $1,000 to petitioner following certain events.

Between the date of the fight and the commencement of the criminal trial against Mr. Dorff on September 28, 1970, the Dorffs reconciled. During this period petitioner had certain conversations with Mrs. Dorff

legal fee in a civil matter) is likewise supported by the recited evidence. Petitioner, in arguing to the contrary, points to testimony by himself as to what occurred during a conference in chambers with the judge at the criminal trial.^[3] It appears from petitioner’s testimony that the trial judge asked for an explanation after commenting that he understood “there is a civil matter . . something about attorney’s fees” and that the court “is not going to be a collection agency.” Petitioner informed the judge that “if this money, whatever the sum was, $500 or $700 or $1000 ... was paid to [petitioner], [he] would represent to the District Attorney . . . that [petitioner] felt [he] had been adequately compensated . . . under [Pen. Code, §] 1377.” The judge asked if petitioner had been compensated for his injury, and when petitioner replied he had not the judge said, “All right, then we will proceed.”

It does not appear from petitioner’s testimony that he informed the judge that the sum referred to by petitioner was for his attorney’s fee in the divorce action. Other evidence that may be viewed as conflicting was received as to whether petitioner told the judge that petitioner told Friedman that the money was in part for “the divorce fee.” The findings of the local committee and board differ as to what petitioner told the judge. We need not resolve that matter. Irrespective of what was said in chambers and the fact that the case then proceeded to trial, the heretofore recited evidence that was introduced at the instant proceeding shows that petitioner wilfully and wrongfully attempted to use criminal proceedings in order to collect a legal fee in the divorce action.

The next question is whether petitioner’s acts involved moral turpitude (see Bus. & Prof. Code, § 6106)^[4] or on some other basis warrant the imposition of discipline. The local committee concluded that those acts did not involve moral turpitude but were a violation of petitioner’s oath and duties as an attorney (see Bus. & Prof. Code, §§ 6103, 6067 & 6068)

and therefore warranted discipline. The board drew no express conclusions. The State Bar now argues, inter alia, that petitioner’s acts involved moral turpitude, and petitioner argues to the contrary.

Various oppressive methods of attempting to collect legal fees have been held to involve moral turpitude. (Lindenbaum v. State Bar, 26 Cal.2d 565 , 573 [ 160 P.2d 9 ]; McGrath v. State Bar, 21 Cal.2d 737 , 741 [ 135 P.2d 1 ]; see 1 Witkin, Cal. Procedure (2d ed.) pp. 211-212.) The fact that the attorney may be entitled to the fee he sought to obtain or to a fee does not exonerate him. {Lindenbaum v. State Bar, supra; McGrath v. State Bar, supra.) In McGrath the attorney intentionally withheld his client’s funds in an attempt to coerce payment of a fee. In Lindenbaum the attorney, in an attempt through fear to force the payment of his bill for legal services, made threats of action injurious to his client and another. Lindenbaum, in holding that the attorney’s conduct involved moral turpitude, noted that his acts constituted the crime of attempted extortion.

Even if the acts of petitioner did not constitute attempted extortion (see Pen. Code, §§ 518-524), it is clear that his making the heretofore recited statements indicating he would drop, or consider dropping, the criminal charges against Mr. Dorff if Mr. Dorff paid petitioner the attorney’s fee in the divorce action constituted an oppressive method of attempting to collect that fee^[5] and involved moral turpitude. Such a method of attempting to collect an attorney’s fee cannot be countenanced.

Petitioner also asserts, without elaboration, that “[i]f any law[s]” proscribed his conduct “they are sc vague and overbroad that they fail to give lawyers notice that the conduct is proscribed. (Rabe v. Washington, 405 U.S. 313 [ 31 L.Ed.2d 258 , 92 S.Ct. 993 ].)” The assertion was not made in the petition for review but instead in a letter received after oral argument. The assertion thus was untimely. (See rule 952(a), Cal. Rules of Court.)^[6] Furthermore, the assertion is general in nature;

petitioner points to no particular language in the statutes and rule involved in the instant charges as assertedly impermissibly vague, nor does he even specifically refer to those statutes and rule in connection with the above contention. Rabe involved a statute totally dissimilar to those involved here. The assertion does not sustain petitioner’s burden of showing that the board’s action is erroneous or unlawful. (Bus. & Prof. Code, § 6083, subd. (c); cf. Black v. State Bar, 7 Cal.3d 676 , 684 [ 103 Cal.Rptr. 288 , 499 P.2d 968 ] [general allegation that the findings are not supported by the evidence does not sustain petitioner’s burden].)

Several other assertions made by petitioner in the letter were not made in the petition for review and were thus untimely. Furthermore, these assertions also are not of such a character as to sustain petitioner’s burden.

Whether Petitioner Wilfully Violated Rule 3 by A iding or A betting an Unlicensed Person to Practice Law in California

In 1969 petitioner became acquainted with William Lynas who represented to petitioner that he was admitted to practice law in New York and had practiced in Europe. Lynas was not in fact admittéd to practice in New York or any state. Petitioner at all times knew that Lynas was not licensed to practice in California.

By February 1970 Lynas, who had an employment agency, obtained offices adjacent to those of petitioner and offered his services to petitioner as an assistant on matters requiring foreign contacts or knowledge of foreign law. At Lynas’ suggestion, petitioner caused to be put on his law office letterhead Lynas’ name followed by the words “Of Counsel.” There was no indication on the stationery that Lynas was not a member of the California State Bar.

On February 17, 1970, after one Mitchell Walman was arrested in Spain and charged with attempting to smuggle narcotics into that country, his wife Ellen, accompanied by his mother, Mrs. Morris Walman, and others, came to petitioner’s office.^[7] On that occasion they discussed with petitioner the problem presented by Mitchell’s arrest in Spain. According to Mrs. Morris Walman, petitioner said he had some

other “attorneys” in his office and would like them to hear “this” also and then brought in several men including Lynas and introduced them as his “associates” and said that “Lynas was more familiar with foreign law.” Petitioner, however, denied stating that Lynas was his “associate” or representing to her that Lynas was “authorized to practice law in California.” It was stipulated that petitioner told the Walmans that Lynas was an attorney in New York and had practiced in Europe.^[8] According to petitioner, he “just introduced the Walmans to . . . Lynas thinking he knew somebody that may be able to help them.” Lynas said he knew an attorney in Europe and would attempt to contact him.

Mrs. Morris Walman testified that she and Ellen returned to petitioner’s office to see him the next day and that he explained to them “Lynas would be handling our case because he knew more about Spanish law or Spanish whatever in the sense that he would be able to help us more.” Petitioner, however, when asked whether he had any contact with the Walmans after the initial meeting, stated he saw them a couple of times in the hallway and made comments such as “How are things going.” Petitioner also stated that he told the Walmans (apparently after the initial visit) that the attorney Lynas had contacted in Europe wanted $1,000 and that petitioner would gamble the $1,000 if it were his son. Petitioner further testified that Lynas told him that Lynas “was following up the case and . . . had gotten [the Walmans] in touch with some lawyer in Spain and that the lawyer in Spain was taking care of the thing.”

Mrs. Mitchell Walman paid the $1,000 to Lynas to retain the attorney in Europe. Lynas subsequently obtained $4,000 more from Mrs. Walman. It appears from petitioner’s uncontradicted testimony that he saw a document indicating Lynas sent the $1,000 to the attorney in Europe and that petitioner did not receive any of the additional $4,000 paid to Lynas.

The full extent of the services rendered by Lynas to the Walmans is unclear. There were several additional conferences between Mrs. Mitchell Walman and Lynas at which petitioner was not present. One or more of the conferences was in petitioner’s suite. He denied having

given Lynas permission to use the suite. Also, Lynas accompanied Morris Walman to Spain and introduced him to an attorney there. Mitchell Walman eventually received a prison term.

About April 1970 Lynas was arrested apparently for an offense unrelated to the instant matter. Thereafter the Walmans called petitioner when they were unable to reach Lynas, and petitioner informed them of Lynas’ arrest. Petitioner testified that the Walmans then told him about giving Lynas “all this money” and that he was very “aggravated.”

Both the board and local committee found, inter alia, that by his conduct petitioner “aided and abetted” Lynas to practice law in California and to receive compensation for such practice although not licensed to practice law in this state.

Petitioner contends that the board erred in finding that he “aided and abetted” Lynas to practice law in California. Petitioner asserts that he did not “aid or abet” Lynas to practice law since all he did was ask Lynas to try to find someone in Europe to assist the Walmans and that nothing Lynas did constituted the practice of law—that “assisting someone to obtain counsel in a foreign country is not the practice of law.” Petitioner further asserts that referring a person to foreign counsel is protected by the First Amendment of the federal Constitution, made applicable to the states by the Fourteenth Amendment. The State Bar’s position is that “Lynas’s services included the unauthorized practice of law and that Petitioner aided and abetted such practice.”

Rule 3 prohibits a member of the State Bar “from ‘directly or indirectly’ aiding or abetting the unauthorized practice of law.” (Italics added; see Crawford v. State Bar, 54 Cal.2d 659 , 666 [ 7 Cal.Rptr. 746 , 355 P.2d 490 ].)^[9] The practice of law “ ‘includes legal advice and counsel and the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.’ ” (Id., at p. 667, quoting from People v. Merchants Protective Corp., 189 Cal. 531 , 535 [ 209 P. 363 ].)

“Whether a person gives advice as to [local] law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice. ... To hold otherwise would be to state that a member of the [State] Bar

only practices law when he deals with local law, a manifestly anomalous statement.” (In re Roel, 3 N.Y.2d 224 [ 165 N.Y.S.2d 31 , 35, 144 N.E.2d 24 ] [app. dism. for want of substantial fed. question, 355 U.S. 604 ( 2 L.Ed.2d 524 , 78 S.Ct. 535 )].)

Giving legal advice regarding the law of a foreign country thus constitutes the practice of law, and the next question is whether such practice is unauthorized. Business and Professions Code section 6125 provides, “No person shall practice law in this State unless he is an active member of the State Bar.”^[10] (Italics added.)

Does “law” in section 6125 include foreign law? A similar question was presented in In re Roel, supra, 165 N.Y.S.2d 31 . There a lawyer admitted to practice in Mexico but not in New York, maintained an office in New York and advised members of the public on Mexican law. An action was brought to enjoin him from practicing law, and the trial court, inter alia, granted the injunction. On appeal the New York Court of Appeals, in its 5 to 2 decision affirming the order, held that “law” as used in the New York code section proscribing the unlicensed practice of “law” included foreign law. The court stated in part, “Protection of the members of the lay public of our State, when they seek legal advice ... is the basis of the requirements of licensing of attorneys by the State, and this protection must be deemed to embrace whatever kind of law or legal rights the layman seeks advice on .... [H] When counsel who are admitted to the Bar of this State are retained in a matter involving foreign law, they are responsible to the client for the proper conduct of the matter .... Moreover, the conduct of attorneys admitted here may be regulated by our courts [citations], and dealt with when they engage in unethical practices .... A foreign law specialist, on the other hand, is not subject to discipline; he need not be a lawyer of any jurisdiction; he may be without good character; and his activities may not even be regulated under the present state of the law.” Similarly here “law” as used in Business and Professions Code section 6125 includes foreign law. (See generally A.B.A. Opinions on Professional Ethics (1967) p. 586.)

Whether or not Lynas in fact advised the Walmans in California regarding Spanish law, it is apparent that petitioner operated so as to lead toward Lynas’ so doing by introducing Lynas to the Walmans at petitioner’s law office under the circumstances heretofore recited, informing them that Lynas was an attorney in New York and had practiced law in Europe, conveying to them the impression that Lynas was associated in some way with petitioner,^[11] and subsequently allowing Lynas to consult with the Walmans in California without any supervision by a member of the State Bar. Petitioner thus aided Lynas to practice law within the meaning of rule 3.^[12] “Aid” is synonymous with “help” (see Black’s Law Dict. (4th ed.)), and one meaning of “help” is “to operate so as to lead toward or bring about” (see Webster’s New Internat. Dict. (2d ed.)). The asserted First Amendment right to refer another to foreign counsel manifestly did not justify petitioner’s aiding Lynas to practice law in California.

The recited facts also show that petitioner knew what he was doing and intended to commit the acts. Thus his breach of rule 3 was wilful. (See Abeles v. State Bar, 9 Cal.3d 603 , 610-611 [ 108 Cal.Rptr. 359 , 510 P.2d 719 ].)^[13]

Discipline

In recommending the discipline to be imposed, the board took into consideration a prior proceeding against petitioner which resulted in his public reproval in 1965. In that proceeding it was established that, after accepting a fee for certain legal services to be performed, petitioner knowingly and with the intent of misleading his client falsely represented to the client that the services had been performed.