Tonini v. State Bar

Citations: 46 Cal. 2d 491; 297 P.2d 1; 1956 Cal. LEXIS 205Docket: S. F. 19421

Court: California Supreme Court; May 15, 1956; California; State Supreme Court

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In the case of Edward Milton Tonini et al. v. State Bar of California, the Supreme Court of California is reviewing a recommendation from the Board of Governors of The State Bar to suspend petitioners Tonini and MacDonald from practicing law for three years. The Board charged both with soliciting legal business from ten individuals who had experienced injuries in accidents, in violation of professional conduct rules. The Board found the charges valid and recommended a one-year suspension for each count, with certain counts recommended to run consecutively for each petitioner. 

Petitioners argued that the Board's findings were unsupported by evidence; however, this argument was rejected. The court emphasized that it is not bound by the Board's findings and will assess the evidence's sufficiency independently. The petitioners had no prior disciplinary history, and the court outlined specific incidents involving each petitioner soliciting clients shortly after their accidents, including approaching injured individuals in hospitals and contacting family members for representation. The court's review is based on established rules that place the burden on the petitioners to demonstrate any errors in the Board’s findings or recommendations.

On June 13, petitioner MacDonald visited the family home in Southern California to contact L. P. Sisk, the surviving husband of Marie Sisk. On June 17, 1954, Mrs. Adele Harvey was involved in a minor car accident and was hospitalized. Subsequently, a man identifying himself as "Mr. MacDonald" called her, seeking to discuss the accident, but she missed the appointment. The caller later offered to visit her at home.

On August 5, 1954, Walter Horn was seriously injured in an accident and hospitalized under the name "Walter Harm." Petitioner Tonini visited him twice that day and had Horn sign a contract for legal representation. Despite Horn's intoxicated and unstable condition, Tonini notarized a verification for a complaint filed in Horn’s name, intending to obscure Horn's mental state to avoid implications of his lack of lucidity. The verification failed to comply with section 446 of the Code of Civil Procedure, which requires a statement if a pleading is verified by someone other than the party involved.

On August 30, 1954, William R. Reed's son was injured in an accident. That evening, Reed and his family visited the City and County Hospital, returning to San Jose early the next morning. Later that day, Tonini, impersonating another attorney, solicited Reed's case but was revealed to be acting on behalf of himself. On September 23, 1954, Clarence Urdahl was struck by a vehicle, sustaining serious injuries and was treated at two hospitals.

Peter Gray, also known as Garadis, an experienced claims investigator and licensed insurance and real estate broker, was acquainted with petitioner Tonini. On the morning after an accident, Tonini instructed Gray to visit Mr. Urdahl, a client in the hospital, as he was unable to do so himself. Gray obtained Urdahl's signature on a fee contract prepared by him. Later, Tonini informed his associate, MacDonald, about this new client and the signed contract. MacDonald subsequently met with Urdahl at the hospital and later received the signed agreement from Gray.

On October 28, 1954, Anthony Vargas was involved in an accident and, the following day, found a card from Tonini asking him to call. Vargas contacted Tonini, who expressed interest in representing him. Vargas later met with MacDonald to discuss his case. Notably, none of the involved parties had prior connections to either petitioner, and all solicitations were unsolicited.

Further evidence indicated Tonini engaged in fictitious transactions and failed to account properly to clients. Prior to a State Bar hearing, Tonini attempted to influence a witness, Mrs. Manson, suggesting she should hear his side before testifying. This behavior, along with the solicitation practices, led to findings that both petitioners engaged in "ambulance chasing," violating professional conduct rules. The Board of Bar Governors recommended punishment, which petitioners contested as excessive, but this claim was dismissed as meritless, emphasizing that the violated rule aimed to prevent unprofessional conduct in securing employment contracts.

The record reveals a significant disregard for professional obligations by the petitioners, driven by personal gain. As a result, they are to be suspended from practicing law for three years, allowing them time to reflect on their misconduct and rehabilitate. This decision draws on precedents such as Waterman v. State Bar, where an attorney was disbarred for similar infractions, and Mayer v. State Bar, where an attorney was disbarred for continuing to solicit clients during a suspension. However, a dissenting opinion argues that while the conduct is acknowledged as serious, the three-year suspension is excessively harsh, especially for young, inexperienced attorneys. The dissent suggests a one-year suspension would be more appropriate, aligning with disciplinary measures imposed in comparable cases. Additionally, relevant rules prohibit soliciting professional employment through advertisements, and specific procedural requirements for affidavits in legal pleadings are noted.