Sheffield v. State Bar of Cal.

CARTER, J.

I dissent. From my examination of the record of this case I am persuaded that the majority opinion does not contain a fair statement of the facts and resolves all intendments against petitioner contrary to the settled rule in cases of this character. (Hildebrand v. State Bar, 18 Cal.2d 816 [117 P.2d 860]; Golden v. State Bar, 213 Cal. 237 [2 P.2d 325]; Aydelotte v. State Bar, 209 Cal. 737 [290 P. 41]; Fur-man v. State Bar, 12 Cal.2d 212 [83 P.2d 12].)

The majority opinion states that “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.” However, the record discloses that at the time Blake’s attorney suggested that petitioner withdraw as attorney for Mrs. Cornwell, petitioner advised him that he had sought advice from a secretary of The State Bar and three attorneys who were associates in his office as to whether or not it would be a violation of legal *633ethics for him to represent Mrs. Cornwell in said action, and that he had been advised by each of them that such conduct would not be unethical. He further offered to submit the matter to the trial judge at chambers and abide by his decision as to whether or not he should continue to represent Mrs. Cornwell in said action. This the attorney for Blake refused to do, and thereafter gave notice of motion to have petitioner excluded as attorney for Mrs. Cornwell, but before said motion was heard, petitioner served and filed a substitution of attorneys pursuant to which another attorney was substituted in his place. Petitioner did not thereafter participate in the case except to appear and request a continuance of the trial of the action upon the ground that the attorney substituted in his place was ill.

The attorney for Blake objected to a continuance and moved for judgment in favor of the defendant which was granted by the trial court. At the hearing before the Local Administrative "Committee in this proceeding, said attorney testified “It suddenly occurred to me I had what I might call a long shot and I could throw the case out of court by taking the position that Mr. Sheffield had no business in the case either physically or as attorney of record. . . . The plaintiff not being there in person or by an attorney, [the] judge thought it over a few minutes and finally ordered a default judgment, and that ended the case.”

In explanation of filing the second action for Mrs. Cornwell against his former client Blake, petitioner testified herein that “I have always taken the position, it was a different matter and wasn’t related in so far as one was a conflicting interest with the other. I took the position, and the other attorneys did likewise, that the injunction suit would lie regardless of whether there was a breach of contract. In other words, I believe the decisions are clear . . . that regardless of a contract of employment that you have with an employer that an employer in spite of that contract can enjoin you from coming on to his premises even during the life of that contract.” It is worthy of note, too, that adversary counsel testified herein that after he had been substituted for petitioner as counsel for the plaintiff Blake in the first action, he there argued that any claim by Mrs. Cornwell against Blake for damages would have to be brought in a subsequent action.

Petitioner’s testimony that he talked with some one at The *634State Bar office prior to filing the action for Mrs. Cornwell against his former client is confirmed by the adversary counsel in that action who, when called by The State Bar as a witness in this proceeding, testified, “I do believe in good faith he [petitioner] came here” to The State Bar and made inquiry as to the propriety of his filing the action “because he told me that right in the beginning. ’ ’ This witness further testified “I don’t think his intention was injurious, in effect to hurt Mr. and Mrs. Blake by reason of the prior employment. . . ., I don’t think Mr. Sheffield at any time was guilty of any conduct that would be worthy of any punishment from The State Bar. I feel I know as much about the case as anyone here. ’ ’

In challenging the sufficiency of the evidence to support the finding that in filing the first action he had acquired confidential information from Blake concerning matters litigated in the second action, petitioner refers to his undisputed testimony that he had not acquired such information and that the factual basis for each action rested on matters of record, the first being a possessory action predicated on title to the property, and the second being based on the employment contract which also had been recorded. Neither Blake, petitioner’s former client, nor Mrs. Cornwell, his client in the second action, was called by The State Bar. Adversary counsel was called and, as indicated above, he stated he did not believe petitioner had been guilty of any conduct warranting punishment.

The majority opinion quotes from the decision in Galbraith v. State Bar, 218 Cal. 329 [23 P.2d 291], as stating the applicable rule of law. It is there said, at page 333, that “an attorney is forbidden to do either of two things after severing his relationship with a former client. He may not do anything which will injuriously affect his former client in any matter in which he formerly represented him nor may he at any time use against his former client knowledge or information acquired by virtue of the previous relationship.” Petitioner does not challenge this rule but contends that under all the facts disclosed by the record he should not be disciplined for representing Mrs. Cornwell against Blake, his former client. His representation of Blake in the first action extended no further than the filing of the complaint and other than the fact that both actions trace their origin to Blake’s ownership of the property and Mrs. Cornwell’s operation of a beauty *635parlor thereon under contract with him, the evidence herein fails to disclose that petitioner obtained any confidential information during his relations with Blake which he could have used or did use to Blake’s disadvantage. In addition, according to petitioner’s uncontradicted testimony, he filed the complaint in the second action for Mrs. Cornwell only after he had made inquiry at The State Bar office and of his office associates as to the propriety of his proceeding in the matter. When challenged by Blake’s counsel prior to trial of the second action, petitioner immediately informed him that he had cleared the matter through The State Bar office and then offered to submit it to the trial judge in chambers before trial. The latter offer having been declined and a motion having been made by adversary counsel to exclude him from the ease, petitioner substituted himself out.

In my opinion the record in this case fails to establish a violation of rule 5 of the Rules of Professional Conduct, and is therefore insufficient to sustain the findings and recommendation of the Local Administrative Committee and Board of Governors. A reasonable and common sense application of this rule would not bar an attorney from accepting employment adverse to a former client unless such employment related “to a matter in reference to which he had obtained confidential information by reason of or in the course of his employment by such . . . former client.” The evidence is without conflict that no “confidential information” was obtained by petitioner from Blake. The latter did not testify in this proceeding, and his attorney testified positively that petitioner was not guilty of any misconduct whatsoever.

Obviously, rule 5 was adopted for the purpose of protecting a client against the use by his former attorney of confidential information obtained while the relationship of attorney and ' client existed between them. As so construed it has a highly salutary purpose. Those who have been engaged in the practice of law for a decade or more are cognizant of the fact that an attorney may accept employment against a former client in many matters without committing a violation of the above-mentioned rule.

In Golden v. State Bar, 213 Cal. 237, 247 [2 P.2d 325], it is stated that charges against an attorney “must be sustained by convincing proof to a reasonable certainty and any reasonable doubt should be resolved in favor of the accused.” Aside *636from any question as to the soundness of petitioner’s judgment in filing the second action against his former client, I find nothing in the record indicating that he intended thereby to take any advantage of such former client and the disciplinary proceeding should therefore be dismissed.