Vickers v. State Bar , 32 Cal. 2d 247 ( 1948 )

THE COURT.

Upon the petition of Charles J. L. Vickers, this court issued a writ to review a disciplinary proceeding in which the Board of Governors of The State Bar recommended that he be disbarred.

The notice to show cause charged Vickers with three counts of professional misconduct. First, The State Bar asserted, he intentionally misled the court in connection with a petition for special letters of administration upon the estate of Olive Agnes Vickers, also known as Agnes Kirk. The second count alleged that after accepting a fee for legal services, he told a client that his action would soon come to trial when, in fact, no complaint had been filed. Finally, Vickers was charged with the appropriation of a typewriter belonging to a client. Each of these charges was denied by the petitioner and the matter proceeded to a hearing before a local administrative committee.

As a witness in his own behalf, Vickers related that on September 2, 1942, in the Superior Court of Los Angeles County, his wife (nee Georgia Moore) obtained an interlocutory decree of divorce. Olive Kirk was an acquaintance at this time. On a visit to Ohio, she became ill and Vickers joined her there. Early in November they started for California by plane, but on account of travel priorities only got as far as El Paso. They went to a hotel there and registered as man and wife.

On November 21st, about a week after their arrival, Vickers consulted William A. Cocke, an El Paso attorney specializing in Mexican divorces. There is considerable conflict in the testimony as to how Cocke’s name was obtained. Vickers’ testimony was that Olive made the appointment and persuaded him to go to see Cocke. At a meeting in Cocke’s office on that day, certain legal aspects of the proposed proceeding were discussed and a number of papers were signed. Some of them concerned statistical data in regard to the marriage of Vickers and Georgia Moore; others, including a power of attorney, written in Spanish, Vickers signed without reading or inquiring about their contents.

The same day, Vickers and Cocke crossed the international boundary line to Juarez, Mexico, and in a public building there Vickers signed “some Spanish roll.” Vickers testified at one time that he believed this signature was “for the divorce” but he later said that it was only for the purpose of establishing residence, which accords with Cocke’s explanation of the document. Several persons were present at the time of signing the roll but no testimony was taken nor was anything translated for Vickers. He “got a divorce decree” at that time, he told the committee, but his later testimony shows that he was not referring to a judgment in writing. Vickers and Cocke then returned to El Paso and Vickers did not make any further appearance in the matter.

Two days later, in El Paso, upon an affidavit stating that he was a single man, Vickers obtained a license to marry Olive. They immediately went through a marriage ceremony before a local judge. The following day, a complaint for divorce by Vickers against Georgia was filed in the Civil Court of First Instance in Juarez.

After the marriage ceremony Vickers and Olive resumed their journey to Los Angeles by plane and lived in her apartment. During the next five months, they lived together as man and wife, and introduced each other as such. In May, 1943, because of Olive’s ill health, they went to Texas. Deciding to stay there, Vickers secured part-time employment at electrical work and in a cigar stand. Early in July, they received word that property located in Los Angeles, title to which stood in the name of Olive, was about to be sold. They returned to Los Angeles and Olive died there on July 29th.

A few days later, Vickers filed a petition for special letters of administration “In the Matter of the Estate of Olive Agnes Vickers, also known as Olive Agnes Kirk.” In this petition Vickers alleged that he was the husband of the decedent. At the same time, he petitioned for letters of administration. The petition for special letters was granted immediately, but before the date set for the hearing of the application for letters of administration, a creditor of the decedent petitioned for revocation of the special letters which had been granted. In this petition, it was alleged that these letters had been granted to Vickers upon “the stated ground of necessity to enable him to pay decedent’s funeral and interment expenses” but that he “made no move to have the body taken care of’’and decedent’s mother “was forced to pay the expenses of funeral services and interment.” Upon a hearing, the special letters were revoked and the decedent’s mother was appointed administratrix of the estate.

In his testimony before the committee, Vickers gave two reasons for malting application for special letters of administration. First, he said, he was without funds, and burial expenses amounting to approximately $352 could not be paid unless he obtained the money from the estate. His second reason was that because of the death of Olive, the escrow for the sale of her property could not be completed. The holder of a second trust deed then threatened to foreclose, and special letters were applied for in order to complete the escrow and save the equity in the property.

The State Bar charges that, in making application for special letters of administration, Vickers intentionally misled the court as to the true facts by representing that he was the husband of the decedent. At that time, it is alleged, Vickers knew, or should have known, that such a statement was untrue. Other allegations are that the same statement was included in his petition for letters of administration and each of them was made “for the sole purpose of obtaining letters of administration of an estate in which you had no legal interest or right thereto as an heir at law or otherwise, nor any legal right to apply for such letters.”

According to the probate judge who granted the petition for special letters of administration, Vickers stated to him that the decedent was his wife. The representations in regard to the nature of the property owned by the decedent, and its value, were substantially the same as those made in the petition. When he made the order, he had no knowledge of the prior marriage to Georgia nor of the divorce proceedings. At that time, the judge told the committee, “he appeared as any reasonable person would have appeared under the same circumstances, having recently experienced a death in his immediate family, ... he seemed to be upset and disturbed mentally. ’ ’

As justifying his representations to the probate court, Vickers told the committee that when Olive died he was without funds and had to borrow money for her burial expenses; the purpose of the proceeding was to obtain money to finance the funeral and purchase a grave. And following the issuance of special letters of administration to him, he told the attorney for the mother of the deceased «that as he was going into the Army he could not act as administrator; he was not interested in the estate beyond providing money for funeral expenses, and would be satisfied to allow the mother and her attorney to make a fair distribution of the property. The estate to be administered upon was in part his separate property, he claimed, but to avoid a deficiency judgment on record against him, he had Olive Kirk take title to the home, in which there was about an $800 equity, in her maiden name. According to this testimony, Vickers received only $16 from the estate.

Joseph Musgrove, the attorney for the mother, testifying for The State Bar, told the committee that he had obtained the revocation of Vickers’ letters, and then had the mother appointed as administratrix. In discussing the matter with him, said Musgrove, the explanation made by Vickers for his conduct was that “she wanted to be married and to please her I did go through with the ceremony.” But Vickers added, "I also had it annulled.” Further, Musgrove quoted Vickers as saying, "for the purpose of administering the estate I think this ceremony that we went through in Texas will be sufficient to qualify me as her husband even though the marriage wasn’t valid.”

Manuel Ruiz, Jr., licensed to practice in California and also in Mexico, testified on behalf of The State Bar, that at the time in question, there was merely a one-day residential requirement for a divorce proceeding, and after the suit was commenced, unless the action was contested, the plaintiff did not have to return; all necessary appearances could be made by counsel. However, he added, where the defendant did not contest or raise an issue, the shortest time within which a default could be entered under the circumstances related by Vickers was about 18 days from the date of filing the complaint. Moreover, entry of default, he said, was a prerequisite to the pronouncing of judgment and the issuance of a decree.

Upon this evidence the local committee found that the allegation of Vickers in the petitions for letters of administration concerning his marital relationship to Olive Agnes Vickers "was false and untrue and was known by the respondent to be false and untrue and was made for the purpose of deceiving the judge of the Superior Court before whom . . . [those petitions] would be heard, and the judge before whom the petition for special letters of administration was heard was deceived by said allegation.” The finding in regard to the charge that Vickers had made false representations to a client is in favor of the petitioner. As to the last count, the committee determined that a client of Vickers loaned him a typewriter, reasonably worth $56, which he sold for $30 without accounting for the proceeds, notwithstanding a demand from the client.

The committee’s conclusions of law from these findings were that in making the representations to the court in the probate matter and in selling the typewriter without paying its reasonable value, Vickers committed acts of moral turpitude, and violated his oath and duties as an attorney at law; also, the committee concluded, he commingled his property with that of a client. As discipline, the committee recommended that on count one Vickers be disbarred; that count two be dismissed ; and on count three, that he be suspended for a period of six months. Except for two inconsequential changes, the findings of the local administrative committee were adopted by the Board of Governors, which recommended that the petitioner be disbarred. In fixing the degree of discipline, the Board of Governors took into consideration the suspension of Vickers for two years on account of professional misconduct, ordered by this court on July 5, 1944 (Bar Mise. 1808).

The petitioner contends that the evidence is insufficient to support the findings of the Board of Governors. In defense of his representations to the court in the probate matter, he argues that as he went through a marriage ceremony with Olive Kirk in Texas, he was her husband, and his status as such could be affected only by an annulment of the marriage; no annulment ever was had, hence, in law, he was the husband of Olive Kirk at the time of her death. Moreover, Vickers says, his action did not involve professional misconduct as such, but related only to his private life. As to the other charge, he asserts that Guthrie, the client who left the typewriter with him, solicited and received considerable legal advice without paying for it, and is “a skilled and congenital cheating ehisler.” Under these circumstances, Vickers contends, the penalty recommended by the Board of Governors was much too severe. But in any event, he concludes, the board erred in taking into consideration his two-year suspension from the practice of law for professional misconduct. In support of its action, The State Bar contends that there is no deficiency in the evidence as to either offense, that the punishment recommended is justified, and that in fixing discipline a prior suspension may be considered.

Section 6103 of the Business and Professions Code provides as to an attorney that “any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” By section 6068, subsection (d) of that code, it is stated that, “It is the duty of an attorney to . . . never seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” In the same code it is further provided that an attorney may be disbarred for “[t]he commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relation as an attorney or otherwise, and whether the act is a felony or misdemeanor or not. (§ 6106.)

Vickers’ commission of the acts of professional misconduct charged in count one of the order to show cause depends first upon whether his representation to the probate court was in fact untrue, and secondly, whether he knew that his statement was false and he intended thereby to deceive the court. In this latter connection the recently stated rule is that ‘ ‘ [t] he presentation to a court of a statement of fact known to be false presumes an intent to secure a determination based upon it and is a clear violation of the quoted provision [§ 6068, subsec. (d)]. . . . The conduct denounced by the Business and Professions Code is not the act of an attorney by which he successfully misleads the court, but the presentation of fact, known by him to be false, which tends to do so” (Pickering v. State Bar, 24 Cal.2d 141, 144-145 [148 P.2d 1]).

After the matter was argued before this court, it was “referred to the Board of Governors of The State Bar with instructions to take further evidence with respect to the circumstances surrounding petitioner’s divorce allegedly obtained in the State of Chihuahua, Mexico, from Georgia Vickers, and his good faith in subsequently representing to the probate court his marital relationship to Olive Agnes Vickers.” In the later proceedings, Vickers stated to the committee that at the time of making application for special letters of administration,. he believed he was the legal surviving husband of Olive. In explanation of his belief, Vickers said that Cocke “had me sign a register, and told me that was all that was sufficient. That you only had to have one day’s lapse and you were entitled to your divorce.”

This is in direct conflict with Cocke’s version of the conversation. The attorney summarized his statements to Vickers as follows: “I told Mr. Vickers that service of summons on his wife in the absence of waiver was absolutely essential to legality . . . that approximately not less than twenty-one days would have to elapse from the date of service before the decree could issue . . . [and] four to six weeks, usually five weeks, would have to elapse from the date of registration before the decree could issue, even in the absence of contest.... I advised him, of course, that the summons would have to be served after the action was filed but before any decree could issue.” To be noted in this connection is Vickers’ statement at the first hearing before the committee in regard to Cocke’s explanation of the law. Vickers then testified: “He did say that in order to effect the validity of [the decree of divorce] ... as far as the United States is concerned that they were going to serve notice upon [Georgia]. ...”

In relating his explanation to Vickers concerning the Mexican law, Cocke said, “I did not tell Mr. Vickers that the whole proceeding ‘was all over,’ and he had secured a divorce from Georgia Josephine Moore Vickers. I probably did tell him that his preliminary steps had all been taken and I would not need him further unless a contest arose.”

This accords with the record, which shows that three days later, which was after the marriage ceremony with Olive, a complaint was filed in the Civil Court of First Instance at Juarez whereby Vickers commenced an action for divorce against Georgia. A week later, at Los Angeles, she was served with a copy of the summons and complaint," but no further proceedings have been had. As stated by Cocke, this was “because Mr. Vickers never put me in a financial position to make the final tax payment which was a condition precedent to securing the divorce decree. I heard nothing from Mr. Vickers, notwithstanding I wrote him several letters. ’ ’

Following the presentation of evidence, the committee made supplemental findings of fact. It found that Vickers went to the office of the mayor of Juarez and affixed his signature to a certificate of registration, thereby becoming eligible to commence a proceeding for divorce. But that registration, as Vickers then well knew, had no other force or effect. Other findings are that at the time of Vickers’ purported marriage to Olive, he “knew and was well aware that the same was of no legal force or effect . . .; and further, knew and was well aware that he was not divorced from Georgia. ...”

Upon consideration of the evidence, the findings formerly made were affirmed and the issue of the good faith of Vickers’ representation to the court was determined adversely to him. Vickers knew or should have known, the committee found, that the allegation of his petitions to the probate court concerning his relationship to Olive was false and untrue. That representation, the committee further found, was made with the object of intentionally misleading the court as to the true facts “and for the sole purpose of obtaining letters of administration of an estate in which . . . [he] had no legal interest or right whatsoever, nor any legal right to apply for such letters.” From these facts, the committee concluded in the same form as its original recommendation, that Vickers violated his oath and duties as an attorney at law within the meaning of the Business and Professions Code, and again recommended that he be disbarred from the practice of law.

When the supplemental proceeding reached the Board of Governors, Vickers made a motion for a hearing de novo. The motion was denied but he was allowed to present certain additional evidence. He testified to substantially the same facts as he had stated to the committee and asserted that he “honestly believed” he had done everything necessary to obtain a Mexican divorce. He also declared that at the time of his appearance in the probate court he not only “honestly believed” that Olive was his wife, but still has that belief. “I was absolutely acting in good faith in obtaining the Letters of Special Administration . . . [T]here was no doubt in my mind; my only purpose was to see that she got a decent burial.”

Other testimony of Vickers was that he did not secure the marriage license in El Paso in the belief that his previous marriage had been dissolved. “I knew I had a year to wait on the California action,” he explained. But, according to his belief, he insisted, the Juarez action resulted in his being free to marry notwithstanding the fact that in California the decree of divorce was not final.

The interlocutory decree of divorce obtained by Georgia could not have become final before September 2, 1943. This was over nine months after the marriage ceremony in El Paso and also after the time of filing the petitions for letters of administration. It is elementary that an interlocutory decree of divorce does not dissolve the union. The parties continue to be husband and wife until the entry of a final decree after the lapse of one year. (Civ. Code, § 61, subsec. 1, and § 132.) There is no substance whatever to the assertion of Vickers that by virtue of the Texas ceremony he was technically the “husband” of Olive under a voidable marriage. At all times shown by this record he was the husband of Georgia and by the terms of section 61 of the Civil Code, his purported marriage to Olive not only was “illegal and void from the beginning” but subject to collateral attack at any time. (Estate of Elliott, 165 Cal. 339 [132 P. 439].)

Vickers has had a legal education and some experience in divorce litigation. His marital status at the time of the marriage ceremony with Olive and when she died primarily depended upon the status of his marriage to Georgia. He admits knowledge of all of the essential facts of the proceeding brought by Georgia, and considering all of the circumstances surrounding his acts with Olive in El Paso, the findings of fact and conclusions of law made by the administrative committee, and adopted with minor changes only by the Board of Governors, are fully justified by the evidence.

It is argued that, at the worst, Vickers was in the position of a putative or de facto spouse, and for that reason had a standing in court in matters relating to property. But his argument begs the question, for the principal issue in the present case is whether or. not he acted in good faith in representing that he was the surviving husband of Olive. He relies upon Schneider v. Schneider, 183 Cal. 335 [191 P. 533, 11 A.L.R. 1386], and Coats v. Coats, 160 Cal. 671 [118 P. 441, 36 L.R.A.N.S. 844], but in these cases the parties who entered into the marriage acted in good faith and honest belief in their right to do so.

Concerning the complaint of Vickers as to the severity of the discipline recommended, the representation to a court of a fact known by an attorney to be false is a serious matter, particularly when that fact relates to his own affairs and is the basis for an order by which he obtains financial advantage. Vickers has been under suspension as discipline imposed in two proceedings brought upon four different complaints against him, and the record of his prior misconduct was properly considered by the Board of Governors in reaching a determination as to the discipline to be recommended upon the present charge. (Herron v. State Bar, 24 Cal.2d 53 [147 P.2d 543]; McGregor v. State Bar, 24 Cal.2d 283 [148 P.2d 865]; Prime v. State Bar, 18 Cal.2d 56 [112 P.2d 881].) However, the recommendation by the Board of Governors in the present proceeding will be modified, and it is ordered that the petitioner be suspended from the practice of law for a period of three years commencing 30 days after the date of the filing of this opinion.