In Re Morse

MOSK, J., Dissenting.

I dissent from the majority’s disposition increasing Morse’s actual suspension to three years. I agree with the Review Department of the State Bar Court (review department) that Morse’s misconduct merits no more than a 60-day actual suspension.

Although Morse’s mass mailings were misleading and cannot be condoned, he committed no felony, he acted openly and not surreptitiously, he did not seriously mishandle any client’s affairs, and, as the review department concluded, he did not act in bad faith. As a result of lengthy litigation through the court system he has already been subject to substantial civil penalties. A three-year probation and sixty-day actual suspension will be sufficient to make abundantly clear to Morse, and to the rest of the bar, that his interpretation of Business and Professions Code section 17537.61 was erroneous, and that his mass mailings based on this faulty interpretation violated ethical obligations of an attorney.

The record reveals that Morse mistakenly believed that section 17537.6 categorically exempted attorneys from its strictures. On its face, the statute arguably appears to do so. Section 17537.6 regulates “homestead filing service[s],” but subdivision (e)(1) of that section provides that the definition of a “homestead filing service” “does not include any service performed by an attorney at law authorized to practice in this state for a client who has *215retained that attorney or an employee of that attorney acting under the attorney’s direction and supervision.” The statute may be colorably construed to exempt an attorney such as Morse, who solicits and retains clients through mass mailings. Only when the statute is construed in light of its legislative history is his contention that the statute does not apply to him definitively refuted. (See People v. Morse (1993) 21 Cal.App.4th 259, 270-271 [25 Cal.Rptr.2d 816].) He certainly had a right to litigate the meaning and validity of the statute. But the majority opinion contains more than a subtle suggestion that Morse is being severely punished for exercising that right—and for having the temerity to seek review of his State Bar case in this court—rather than for any grievous wrongdoing.

The majority’s prescribed punishment also deviates from prior case law. As illustrated by the two most apposite cases (Gadda v. State Bar (1990) 50 Cal.3d 344 [267 Cal.Rptr. 114, 787 P.2d 95] (Gadda); Leoni v. State Bar (1985) 39 Cal.3d 609 [217 Cal.Rptr. 423, 704 P.2d 183] (Leoni)), mass solicitations, even those that are misleading, have not generally warranted harsh discipline. In Gadda, the attorney mailed between 500 and 800 letters to past and present clients, advertising his ability to advise them on a new immigration law, although that law had not yet passed. He also seriously mishandled the affairs of two of his immigration clients, forcing one of them to go into hiding in order to avoid a deportation order that was the result of the attorney’s gross negligence. In mitigation, he demonstrated a commitment to pro bono work. We upheld a two-year stayed suspension, a three-year probation, and a six-month actual suspension for the attorney’s misconduct (Gadda, supra, 50 Cal.3d at pp. 356-357), which, taken in its totality, is arguably more serious than that of Morse.

In Leoni, two attorneys mailed approximately 250,000 letters to defendants in small claims and municipal court actions, or to owners of real property in foreclosure. The letters were found to be misleading and to have violated several of the Rules of Professional Conduct. The attorneys, who had each practiced law for over 30 years with no prior disciplinary record, and who made a good faith effort to make the letters truthful, were given merely a reprimand. (Leoni, supra, 39 Cal.3d at p. 628.)

Following the recommendation of the review department, I would subject Morse to a one-year stayed suspension, a three-year probation, and a sixty-day actual suspension. These penalties, as well as the defeat of Morse’s legal claims, the $340,000 in civil penalties and restitution assessed against him, and the conditions of supervision during his probation, will clearly be enough to send the message to this petitioner and others that such solicitation *216schemes will not be tolerated, thereby protecting the public. But I cannot share the majority’s enthusiasm for a draconian penalty that will banish him from the legal profession for a period that is barely short of permanent.

Petitioner’s application for a rehearing was denied November 16, 1995, and the opinion was modified to read as printed above. Werdegar, J., did not participate therein.

*217Appendix A

HOMESTEAD INFORMATION SHEET

WHAT IS THE PURPOSE OF HOMESTEAD EXEMPTION? - The policy underlying all homestead laws is to provide a place for the family where they may reside and enjoy the comforts of a home, free from the anxiety that it may be taken away from them.

WHO MAY RECORD A DECLARATION OF HOMESTEAD? - Every homeowner may record a Homestead. In fact, unrelated persons can record separate Homesteads on the same property if each person owns a portion of it. A Homestead will remain in effect until the house is sold or until you decide to abandon it by recording another document. You are only entitled to one Homestead at a time.

WHO IS ELIGIBLE FOR THE HOMESTEAD EXEMPTION? - Every homeowner who resides in his/her home is entitled to this protection. The basic requirement is that the dwelling be your principal place of residence. Thus, rental properties or a second home do not qualify. However, if you own an apartment building where you reside in one unit, Homestead Exemption will apply to the entire building.

WHAT KIND OF PROPERTY IS COVERED? - Your principal place of residence may be protected by a Declaration of Homestead. This may include, but is not limited to, the following: a house, a condominium, a duplex, a community apartment project, a planned development, a mobile home, a boat, other water-borne vessels, or a stock cooperative.

DECLARED HOMESTEAD INFORMATION AND BENEFITS

In today’s society, it is possible to become involved in a lawsuit at one time or another. Hopefully, you will not. Many times a lawsuit is caused by circumstances beyond our control.

When you owe someone money, they are considered your creditor. If a creditor sues you in court and wins, they can record a lien against your home. This is often called judgment lien.

(1) JUDGMENT LIENS: When a Declaration of Homestead has been properly prepared and recorded, it prevents most judjgment liens from attaching to your home if the declaration was recorded prior to a creditor recording his judgment. Simply stated, the recording of a Declaration of Homestead can keep certain judgment liens “off your home”.

NOTE: This benefit becomes very important when you want to sell your home. Title companies usually will not establish a clear title unless and until all liens are paid. By recording a Declaration of Homestead, you can sell your home and put the exempt proceeds ($30,000 to $75,000) in a new home within six months without having to use that money to pay for existing judgments that were protected by virtue of the declared homestead. This ONE TIME recording will last as long as you own (or are buying) and live in the home.

(2) WHAT ARE THE AMOUNTS OF PROTECTION?

EQUITY PROTECTED FROM LIEN ATTACHEMENT IN AMOUNTS UP TO:

HUSBAND AND WIFE.....................................$45,000

HUSBAND AND WIFE (when one or both is 65 or older or ^disabled).......75,000

HEAD OR MEMBER OR **FAMILY UNIT........................45,000

HEAD OR MEMBER OF FAMILY UNIT (when declarant is 65 or old or disabled) .................................................75,000

*218SINGLE PERSON (65 or older or disabled).........................75,000

SINGLE PERSON.........................................30,000

NOTE: $30,000.00 available to each person owning an interest in the home, e.g., unnamed co-owner living in the home.

* Disabled individuals can include those receiving Social Secuity Disability or SSI benefits and others who are incapable of substantial gainful employment.

** This can be an individual who has a dependent close relative under his or her care and maintenance who resides on the premises.

DO THE PROTECTION LIMITS EVER INCREASE? - Yes. The California State legislature periodically raises the declared homestead protection amounts as shown above. You automatically receive any increases that are made without having to record any additional documents.

(3) SELLING THE HOME: AFTER you voluntarily sell your home, if you invest the exempt proceeds in another home with six months, the previously exempted amount of equity WILL REMAIN PROTECTED WHILE MOVING TO A NEW RESIDENCE. By recording a Declaration of Homestead on the new home within six months, your protection continues from the date of the original homestead recording. In other words, YOUR PROTECTION IS CONTINUOUS AND UNINTERRUPTED EVEN THOUGH YOU SELL YOUR HOME.

(4) PROTECTION CONTINUES AFTER DEATH: Any surviving spouse, or other member of the deceased declared homestead owner’s family, will be protected under the declared homestead providing (a) they are living in the dwelling at the time the declared homestead owner dies, and (b) they inherit all or part of the deceased owner’s interest in the dwelling. This is true even if the surviving person was not listed in the Declaration of Homestead.

WILL MY HOMESTEAD DECLARATION PREVENT ME FROM REFINANCING MY PROPERTY? - No. Homestead Exemption does not apply to mortgages or deeds of trust placed on the property. You’ll be free to refinance the property or obtain second and third deeds of trust.

CAN I REMOVE HOMESTEAD IF I WANT TO? - Yes. You may remove a homestead at any time by recording a form called Abandonment of Homestead. Also, if you change your principal place of residence and record a new Homestead, the first Homestead recorded would cease to exist by operation of law. When you sell your home, the homestead on it is automatically removed.

ARE THERE DISADVANTAGES TO RECORDING A DECLARATION OF HOMESTEAD? - No. Homestead is a valuable right given to you by law. By recording a Declaration of Homestead, you are exercising your right to protect your home to the maximum extent allowed by law.

WHAT SITUATIONS ARE NOT COVERED BY HOMESTEAD EXEMPTIONS?

1. Judgment liens recorded before you recorded your Declaration of Homestead will attach to your home (this is why it is wise to record your Declaration of Homestead as soon as possible).

2. Loans or debts secured by the property (mortgages, deeds of trust, etc.) are not covered by the Homestead Exemption. When you voluntarily use your home as security for a debt, Homestead Exemption usually will not protect you.

3. When a contractor puts labor or materials into repairs or improvements on your property and you do not pay him, Homestead Exemption will not protect against his mechanics’ lien.

*2194. Homestead Exemption will not protect against a judgment for spousal, child suppport, or tax liens.

SOME ADDITIONAL BENEFITS OF RECORDING A DECLARATION OF HOMESTEAD

1. Your Homestead Declaration will prevent any judgment liens from attaching to the house - up to an amount equaling the total of most liens and encumbrances on the house and your Homestead Exemption: i.e., if your house is worth $100,000 with first and second mortgages totaling $80,000 and your Homestead Exemption as a married person is $45,000, judgment liens will not attach up to $125,000 (e.g., $80,000 plus $45,000).

2. If your have not homesteaded your home, and judgment liens have been filed against it, title insurance companies may not establish a clear title until all liens have been paid off. This may make it difficult, if not impossible, to sell your nonhomestead home.

3. If a creditor tries to force a sale of your home, with a Declaration of Homestead you’ll have an important advantage over him in court. The creditor has the burden of proof to show why you should not be allowed the Homestead Exemption. Otherwise, the court will take your Declaration at its face value and grant you the exemption.

4. A recent court decision has established that property protected under a declared homestead may not be subjected to prejudgment attachment. A prejudgment attachment, if placed on your home, would make it virtually impossible to sell or refinance your home pending the outcome of the litigation.

WHAT IS THE PROCEDURE FOR RECORDING A DECLARATION OF HOMESTEAD?

- Just completed the enclosed retainer/information form and drop it in the mail. We will prepare the original documents for your signature and forward them to you with recording instructions. The cost for our service is $18.00.

NOTE: Please remit only $18.00 with your retainer information form to Morse & Associates. There will be a $5.00 recording fee (payable to the county recorder in your area), and a small fee (usually $2.00) to have your Homestead Declaration notorized.

MORSE & ASSOCIATES IS NOT AFFILIATED WITH ANY LENDING INSTITUTIONS.

All further statutory references are to this code.