I dissent. I am in accord with the majority opinion, except as to the judgment therein pronounced. The appropriate judgment, based on that opinion, is a dismissal of all charges against petitioner.
Upon the record, no other judgment seems warranted. This young man committed no crime and this court so holds. Nevertheless, a local administrative committee of The State Bar stigmatized him as a criminal and recommended his disbarment. The Board of Governors of The State Bar disapproved the local committee's report and reduced the punishment to suspension for fifteen months. Of the fifteen members of the board, only eight signed the order; two members dissented and five were either absent or did not vote. This court disapproves the recommendation of the board and further reduces the suspension to nine months; but its judgment nevertheless leaves the stain of suspension upon his record.
Does the punishment fit the offense? It is based on violations of rules III and X of the Rules of Professional Conduct of The State Bar. No moral turpitude confronts us in this case. The most that can be urged against petitioner is an unfortunate association and an error in judgment and interpretation on a question which has been highly debatable. With reference to rule III, in a situation akin to this, The State Bar Committee on legal ethics ruled that the conduct complained of here was not improper. This ruling was later withdrawn, but the point is that if the elders of the bar were perplexed by this ethical problem, is it not unreasonable to hold a mere fledgling in the law to a correct interpretation at his peril? With reference to rule X, on advising the commencement of actions without being consulted in reference thereto, petitioner believed that in dealing with his employer, Lauden, as the agent of the plaintiffs, he was well within the rule. While this rule is a salutary one, its strict provisions have been honored more in the breach than in the observance in many of the larger offices of this state. It is said to be a not uncommon practice for lawyers for banks, trust companies, insurance companies, automobile associations, and as correspondents of foreign attorneys, to prepare and file papers without direct contact with parties in interest. I do not condone this procedure, but, judging *Page 260 from petitioner's attitude as disclosed by the record, if his attention had been called to these irregularities in his conduct, he would have promptly discontinued them. A mere suggestion of change in practice would have been sufficient. But no intimation or warning was ever given to this young man by any member or officer of The State Bar that his activities were questionable.
Both the board and this court have overlooked or disregarded the really important feature of this case. The outstanding constructive accomplishment of The State Bar since its organization, which in itself is sufficient to justify the experiment of a self-governing bar, is the corrective influence it has had over its membership through educational methods alone. Smith attended the Del Monte meeting of The State Bar. He heard there a denunciation of activities similar to those in which he had been engaged. Immediately upon his return, he announced to his employer that he would accept no more cases from him, but would only dispose of the unfinished business. Thereafter, he completely severed his relations with Lauden, relinquishing a salary of $250 per month. No charge had been made against him, but he voluntarily discontinued a profitable employment. To some of us this action may seem commonplace, but to this struggling young lawyer it meant starting anew. To the practitioner who can look back to the starvation period of the beginner, the action of this young man appears highly commendable. If, through education, The State Bar can induce its members voluntarily to clean house, its disciplinary powers need seldom be invoked. They were not called for in this case. Their purpose had already been fully achieved by this courageous step which petitioner had taken. We should not ignore this significant act. No parallel situation has yet been presented to this court.
There can be no justification for tarnishing this young man's name by a disciplinary judgment unless it may serve to help him or others. He needed no help; he had voluntarily abandoned the activities which were frowned upon. With ten thousand lawyers in this state, and with ambulance chasing in one form or another a familiar practice for at least the last quarter of a century, this youth less than two years admitted to the bar, was made the subject of a *Page 261 test case. I think that he is an unfortunate victim of the war against ambulance chasing, a war that must go on until the practice is eliminated, but, in this campaign, the guns might first be trained on the giants, instead of the pigmies. I agree with the majority that the petitioner has been sufficiently punished; but I think that justice can only be done by dismissing the charges and clearing his name.
Curtis, J., concurred.