Cutler v. State Bar

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[L. A. No. 29327. In Bank. June 16, 1967.]

C. DeFOREST CUTLER Petitioner, v. THE STATE BAR OF CALIFORNIA, Respondent.

COUNSEL

C. DeForest Cutler, in pro. per., for Petitioner.

F. LaMar Forshee for Respondent.

OPINION

THE COURT.

This is a proceeding to review a recommendation of Disciplinary Board I of the State Bar of California that petitioner be suspended from the practice of law for three years on conditions of probation. The conditions of probation included actual suspension during the first six months and payment of $1,160 to Mrs. Johanna Neuwirth for [66 Cal. 2d 862] legal fees and costs incurred by her in recovering money that she had entrusted to petitioner when he was representing her as an attorney. The conditions further provide that if petitioner does not pay the said sum during the first six months of his probation, the period of suspension be extended until he makes the payment but in no event to exceed three years.

Facts: On or about November 22, 1965, petitioner advised his client, Mrs. Johanna Neuwirth, to deliver to him funds totaling $5,347.97 on his representation that he would hold the money in his trust account for her benefit. After receiving said sum from his client he deposited it in his trust account in the Highland Park Branch of the Security First National Bank on November 22, 1965.

Thereafter, without the knowledge or consent of Mrs. Neuwirth, he withdrew from the trust account and appropriated to his own use $4,082.39 of the sum he had received in trust. Said sum was not returned to her until May 1966 when restitution was made to her through her attorneys, Hart and Mieras. fn. 1

[1] Question: Should the recommendation of the disciplinary board be approved?

Yes.petitioner misappropriated $4,082.39 belonging to his client and for about six months used it for his personal needs. He failed and refused to repay the money for at least three months after he knew his client had demanded its return and after she had sued him and spent $1,160 in legal expenses in order to recover her money.

Petitioner has not filed any brief with this court wherein he questions the findings of the disciplinary board or their recommendation.

It is therefore ordered that C. DeForest Cutler be suspended from the practice of law in the State of California for three years; that execution of our order be stayed and that he be placed on probation for said three years upon condition that he be actually suspended for the first six months, that he pay to Mrs. Johanna Neuwirth the sum of $1,160 within said six months and if not that said six months' period of suspension be extended until said payment is made but in no event [66 Cal. 2d 863] to exceed three years, and that he comply with other conditions of probation prescribed in the transcript of proceedings filed herein by Disciplinary Board I of the State Bar of California. The probation period shall commence 30 days after the filing of this order.

FN 1. Petitioner testified before the local administrative committee of the State Bar: "... the purpose in allowing myself to utilize the funds that were used other than for Mrs. Neuwirth's benefit, were solely for the purpose of saving the $20,000 equity that I had in my own family residence, in order that the total amount of money that was in my residence could not only take care of paying Mrs. Neuwirth in full, but other clients who also were involved with what could have been a loss if I couldn't salvage this particular equity in the home."