*1 the office of munici- appointment er the or residence within justice peace, of the
pal HANSEN, Disciplinary In re Robert B. precinct, within a town located city or Proceeding. a resident of that person who is precludes No. 15605. running for the office of municipality, justice peace. county precinct Supreme Court of Utah. holding the office of a We conclude peace city in a or municipal justice of Aug. legally designated within town located maintaining residence within or precinct, town, per- city preclude or does not
such of the coun- running for the office
son from justice peace.
ty precinct XI, 1, Constitution of
Article Section as a recognizes precinct county, and not of
subdivision empowers 17-16-5 municipality.
city or No such county precincts. to create municipalities. to cities or
power given is appointment is made that
The claim peace, ipso municipal justice of
facto, the boundaries of precinct; creates a municipali- those of the
which coincide with claim in the support for this
ty. We find no Indeed,
Constitution, the statutes. or has delineated two legislature
78-5-32 viz., peace, justices classifications county precincts, holding office
those commissions, and county duly created peace; county justices
called being municipalities, office in
those peace. The municipal justices of the
called hold say person may goes on
statute town, county, city the offices of both peace.
justice of the provides:
17-16-1 eligible county, district
No time of his who at the precinct office county, elector of such is not an
election precinct
district de- it can be seen foregoing From the Stark, Wikstrom, Frances M. LaVar E. and electors of all residents are fendants Florence, Greenwood, Pamela Ogden, Brian have for county precinct Bar. City, Lake for Utah State Salt are, They there- office. for elective filed properly fore, have their names entitled to Gibbs, J. Clyde, Edward W. William G. primary election upcoming placed on Greene, Jr., City, Lake Thomas Salt ballot. B. Hansen. Robert
CROCKETT, Justice: disciplinary proceeding relating This is a allegations unprofessional conduct *2 Hansen, Attorney However, Robert B. General of the al Conduct. respect to an investigation aspect case, of Utah. After due and other of that State same the com holding hearings by disciplinary plaint the of its is that respondent, the in an inter committee, view with a the Utah State Bar Commission television reporter, made state ments adopted findings concerning the and recommended to the of strength prose cution’s case and respondent attorney that be the likelihood of its out come. The practice reported from the law statements were suspended for one on pubiic television, all of which was found year. be a violation of Rule DR findings The of the Bar as to conduct 7-107(B)(6). required profession- meet the did not types: preface al are two to considering standards related to the find ings just recited and what delays delinquencies and should be collecting and done them, about clients; there are certain remitting money to his foundational other principles to be had in mind. It is not to be related to activities in connection with the questioned that the licensing of an attorney prosecution City Piepenburg Lake v. Salt permits him to hold himself out to pub charge wherein the was showing porno- lic as one learned and skilled in handling graphic movie.1 legal problems procedures, that he will appears prior being It that elected as become identified with and take care of his General, Attorney respondent was in- clients interests with reasonable diligence in the operation agen- volved of a collection high degree and a of fidelity. Neither is it cy large which handled a number of questioned be that in this instance there respect accounts. One is that with has been failure to some extent to measure to one of these accounts he failed to main- up high to that standard. Accepting the adequate tain records the funds collect- foregoing as a premise, the question of crit ed, permitted collected to be ical concern is as to just what is the funds, commingled with his own did not appropriate penalty corrective or sanction prompt render and sufficient accounting to imposed. to be In assuming responsibil prompt his clients and make remittance of ity of this Court to make that determina funds, reasonably cooperate failed to tion, we think it is both wise and desirable communicate with his clients or with their to consider all relevant factors. counsel, subsequently engaged and that re- Speaking generality, it is to be realized mittance to his client was not made until that the attainment of profession usually pressures applied collateral respon- represents, in addition years of edu- dent. cation devoted to that purpose, the commit- Another matter of similar character re- ment of a lifetime to a man’s career and lated the handling of a divorce therefore, that deprivation privi- support, compa- collection child in which lege something which should not be done rable were made. lightly, nor at all unless the attorney is charge of misconduct in connection guilty of some culpable wrong or there is with the case of Lake City Piepen Salt v. some other serious matter to justify that burg that, is of a different character. It is kind of surgery on his means of livelihood. General, Deputy Attorney he associated special This application has in the instant prosecution himself as counsel for the case because Mr. Hansen has been elected in connection therewith caused investi by the people of this state as its Attorney gation to be prospective jurors, made of General and thus has various important re- which included the interviewing of their sponsibilities to fulfill in which he would be neighbors, friends and church officials. hampered, extent, at least to some by his Concerning this the Bar found that there suspension practice. This is said with- was no violation of the Rules of Profession out intending any disparagement of the office should have received a more principle that being penalty. one from held severe exempt should any misdoings, nor from accountable We foregoing have reviewed the matter therefor. On the proper penalties just and previous awareness of our declarations of hand, we are con- in matters such as that, though this Court it is prerogative *3 here, before which occurred cerned and of the court to make the General, Attorney election as respondent’s matters,2 findings and orders in such we duties, public he pertain to his do not and regard will nevertheless the findings and held more accountable nor not be should recommendation of the Commission as ad- would harshly with more than others dealt visory, and will accord them some degree be. indulgence, of and be inclined act in respondent’s con- accordance therewith unless condoning appears that Without Bar, appropriate arbitrarily it is the Commission has acted or un- as found duct disputes reasonably.3 that his evidence for us to note to set forth his findings; and also those thereof, In recognition upon our con failures as in excuse of such explanation sideration of all of the factors involved in they were due in He avers that occurred. situation, particularly this the fact that entrusting of to others necessity part finding there is no any dishonesty of responsibilities incident to some of his misdoing, willful but the derelictions com into the private practice transition plained appear neglect be matters of matters stated in political field. Other indiscretion, opinion it is our that that, include the facts al- amelioration justice ends of and the purposes of this complainants though it is true that proceeding will best be served our decla delay considerable and incon- put were ration the improprieties that wherein re business, their respect to their venience spondent high failed to conform to the stan finally fact collected and money was in diligence and fidelity dard of which should Also to be considered remitted to them. up be measured to by members of the Bar the fact composite of this situation is subject render him to censure a repri that, being offi- part due in to his Further, he mand. is ordered to reimburse cial, respondent put great has been to a Bar the Utah State actual and nec time, expense effort and amount of essary expenses incurred connection great amount of adverse subjected disciplinary proceeding. with this in relation to these and criticism publicity proceedings. No court costs are awarded. important, is the fact
Finally, and most no im- made Commission WILKINS, (concurring Justice with hold- respondent any dishonesty, puting to the ing). wrongdoing. any willful or intentional I concur with the of the majority it had taken into account stating that opinion but add these comments. mitigation, prop- the Commission claims of infra, position in its own This Court since as noted has erly characterized its emphasized that: “. . . if at times as a standard of re- brief in its statements present concerning findings had been view the Bar’s or evil intent rec- fraudulent ” that, any they adopted “if ommendations that should be . and further they arbitrary, capricious, result of unless are unrea- been found to be the violations had sonable, supported by . or not substantial deliberate misconduct willful and Fullmer, Fullmer, supra In re P.2d 343 note 2. In re 17 Utah 2d 405 (1965); 474 P.2d re Bar (1970); State ex rel. Schwab v. Slate 116 Association, 1237 Wash.2d 493 P.2d ones, (or language).1 yes similar At transgressions evidence other not —but however, times, empha- this has compel depriving sanction of Mr. Hansen made sized that the recommendations practice of his license to law. And I make be in the Bar are . . independently these observations Mr. ” . . . category as same Attorney Hansen’s status as General this responsi- . because it is our fact . State, believe, which I as does Mr. Justice attorney, bility discipline erring Maughan dissenting opinion, in his is not delegate that to others duty we cannot properly before us and therefore irrele- . ”.2 vant to our determination. Even where Court announced concluding thought. One Do these com- adoption requiring standard of review holding suggest ments and this impel unless the Bar’s recommendations relaxation the code of re- arbitrary, capricious, or unreasonable I sponsibility. think not. I rather prefer to *4 words), (or that a acknowledged similar judgment believe that this Court’s consti- . “. . is proceedings review of Bar a tutes frontal and unobscure declaration of ordinary appeal not like an or administra- unaccompanied, however, the by rebuke — tive review the order to made is because be punishment of suspension which could be the of . .”.3 responsibility this court imposed. suggest duality I that of respectfully this by Restraint here this Court is a not single (appearing standards both within flouting of our just honored code. It is that with compared case in one the and cases punishment when the measure of con- is other) contradic- creates uncertainties and sidered, the of majority this and Court require reanalysis. tions which now members of the Bar Commission the view clarity guidance, I believe and this I, course, differently. matter of respect the unequivocally that Court should state Commissioners, views of the not suggesting by advisory the Bar are recommendations deficiency for a moment a in ability them of only delegate as “. . .we cannot sensitivity, but I do here share those duty attorneys] to others disciplining [of sanction, which, concerning views as noted ».4 ante, is the responsibility of the Utah Su- majority minority As noted in the and preme Court.
opinions, by findings the Bar Commission — —determined, so, properly and that Mr. HALL, J., concurs expressed in views of disciplinary was in violation in the concurring opinion of rules of the Bar. The recommendation WILKINS, J. however, year suspension, my opin- in MAUGHAN, (dissenting). Justice ion, judgment is too severe. The reasons, censure herein is the following stated sufficient —there For I dissent. The proportionality law, between the violations and evidence precedential adduced and case view, imposed by sanction in my require Court —be- affirmance of the rec- flagrant cause and dishonesty misconduct ommendation of the Board of Commission- Violations, are not here. serious involved ers. Macfarlane, 217, reducing punishment 1. See by In re 350 recommended 631, Fullmer, (1960); Badger Additionally, Utah 633 In re 17 2d P.2d Bar I. In re see 343, (1965); Badger 344 re Hughes, (1975), 405 P.2d where [Badger I], 27 2d 1275 Utah 493 P.2d stated it . . “. nor bound (1972); Johnston, Utah, P.2d and In re 524 .", Bar recommendation of the Commission . (1974). 594 though upheld that recommendation to the extent noted therein. Bridwell,
2.
In re
25 Utah
P.2d
2d
474
116
[Badger II],
Badger
In re
Also see
28
Fullmer,
supra,
In re
note 1
at
fessional Conduct State he Lowry, sent to Mrs. stating he would retain and finish the suit and have a supports adduced the find- The evidence progress report by April 15th. report No following: ings. It shows was furnished. A third letter was mailed Lowry employed In J. E. Hansen to 10, 1972, February together with Mrs. Low- sums from Allen recover certain Gardner ry’s own records of the checks she had These agents Boothe. two were and Leslie received and requesting an accounting. Company, Insurance of Franklin Life One of these letters by Hansen, was found Lowry, regional manager, was re- Mr. shortly before the hearing, unopened. Mr. of his sponsible agents. for overdraws Both Lowry’s son he testified made several re- and Boothe had drawn advances Gardner quests telephone over the to Hansen for an unearned commissions. Their defi- against accounting. None was forthcoming. Lowry, of Mr. cit was regard In account, the Gardner no although the action was filed in the name money was received from him Life, after 1964. of Franklin the sums collected were Furthermore, Hansen made no Lowry efforts to paid Mr. and after his death in collect on this Lowry. account after 1964 to Mrs. that date. 1975, Gardner died leaving apparent no es- peri- Between 1965 and Mr. Hansen tate. The finding neglect sustained amounts on odically collected the Boothe this eleven year file, old which indicated no began remitting suit. collection efforts had been despite made directly Lowry. Mrs. sums On twelve repeated requests including an attempt by 30,1968 separate occasions between October Lowry to have the file turned over to other 14, 1970, May pay- Hansen received counsel. ments on the Boothe suit and made no anyone remittance to until after the com- II, In Count the Board found: plaint was filed with the Bar in 1976. (a) That Hansen perform undertook to supports The evidence legal services for one Winona Emarine in *6 to maintain complete Hansen failed the collection of child support, and that adequate records of the funds he collected. client; he collected funds for this appeared After he had before the screening (b) That Hansen notify failed to his committee, suggestion, at its Hansen at- client funds; of the receipt of said tempted prepare accounting compiled to an (c) That Hansen failed to maintain receipt from At the hearing, his books. complete adequate records of the garnish- established Hansen had filed a client; funds collected to his ment proceeding on the Boothe suit and (d) That Hansen failed to maintain Security obtained from First Bank. $68.11 complete and adequate records of the Hansen admitted he could find no record to collected; funds which he happened show what to those funds. (e) That Hansen failed Lowry The evidence indicated Mrs. wrote funds over to this client promptly letter, 6, 1968, May requesting dated an received, requested when to do so accounting. response. She received no She client; by his by registered 4, sent another mail on March (f) 1971, That foregoing response. with no conduct consti- During this time IV, Lowry 9, Mrs. tuted violations of Rule sought the assistance of her Canon DR son, 9-102(B)(l), request (3)5 who contacted Hansen to the Rules of Profes- matter be lawyer. turned over to another Bar; sional Conduct of the Utah State “(A) 4. A 1, shall not: 5. supra. See note
(3) Neglect [******] matter entrusted to him.”
§11 (g) Upon That the said acts did constitute a her return in July, she contacted Hansen, violation of the of Section 78- who her informed that he thought U.C.A.1958;6 51-42, he money owed her but he’d have to check (h) his That Hansen failed to maintain the records. Mrs. proceeded Emarine separate in a times; funds collected trust contact him several other each time commingled the same with account and him, she was able to reach Hansen claimed funds; his own he hadn’t had time to check his records. He (i) That the acts described violated the offered her good to indicate his $100 faith. 9, provisions of Rule DR 9- This sum was subsequently sent her attor- 102(A) Rules of Professional Con- ney. After checking the records of the duct of the Utah State Bar.7 court, clerk of the Mrs. Emarine employed attorney an to effect recovery of her mon- Again, supports the evidence the find- ey. This was done about August ings. Her attorney also received a check for perform legal Hansen undertook serv- $50.00. Emarine the collection ices for Winona Mrs. Emarine’s contacted Han- her support payments child from former requested sen and accounting an husband, and the Berry deposited Belcher. Belcher funds. This was done letters checks, dated Au- generally which were in the sum gust August $65.00, August with the Clerk of the Court. Hansen did not make an picked up accounting Hansen either the checks or had subsequently the clerk mail them to him. Pursuant action was filed against him, attorney granted him. power of Hansen deposited the checks and them in endorsed Other than the payments aforementioned his bank account. $150.00, Hansen pay any refused to sums July From 1966 to Mrs. Emarine procured until Mrs. Emarine the cancelled payments support
received
for child
from
husband,
checks from her
former
July
Hansen. From
1969 to
Mr.
December
proved
checks,
fact,
had
deposit-
been
1974, Mrs. Emarine neither heard nor re-
ed in Hansen’s bank account and had been
any
support payments
ceived
child
cleared
the bank. Mrs. Emarine was
Emarine,
Hansen.
In December
Mrs.
able
procure
these cancelled checks only
Hawaii,
residing
who was
received a
piecemeal
in a
Belcher,
fashion from Mr.
communication from Mr. Hansen including
and later his widow.
only
Then and
then
an affidavit. The affidavit was to assist in
funds,
did Hansen disburse the
after de-
past-due
collection of
support;
child
ducting
attorney’s
fee.
recited the sums of
Mrs. Emarine
paid
on September
$449.28
allegedly
support.
received for child
had
*7
production
after the
of some of Belch-
sign
Mrs. Emarine refused to
and sent Han-
$1,285.00
er’s checks.
deposited
Hansen
stating
sen a letter
that she had not re-
with the clerk of the court
September
on
inquiring
ceived the
where he
27, 1975,
paid
which was
January
on
the figures
had obtained
recited in the affi-
production
after
of additional can-
responded
figures
davit. Hansen
celled checks of Belcher.
produc-
After the
from the clerk of the court
obtained
checks,
tion of the remaining
paid
verify
that he would check his records to
February
on
1977. A
$599.00
total of
correspondence
the amounts. The last
from
$2,483.28 in child support money.
Hansen was dated March
1975. Mrs.
III,
In Count
the Board found:
upon
Emarine did write another letter but
receiving
reply
(a)
a
pur-
decided
defer
That Hansen associated as counsel
suing
July
prosecution
the matter until
at which
in the
of a criminal case and
City,
time she returned to
Lake
participated
case;
Salt
Utah.
in the trial of the
2, supra.
3, supra.
6. See note
7. See note
The disagreement
appro-
of the
centers on the
(b)
prior
That
to commencement
priate sanction for the misconduct.
It is
a re-
trial,
with
Hansen communicated
undisputed
place
that this court does not
a
City television
Lake
porter
Salt
stamp
rubber
endorsement on
recom-
station,
report-
he told the
at which time
bar; for,
fact,
mendation
the final
made re-
investigations had been
er that
discipline
an
erring attor-
jurors and that
prospective
garding
Nevertheless,
ney is with this court.11
obtained, Han-
the information
based on
court has devised a standard that
it will
the defendant would
was certain that
sen
sustain the recommendation of the Bar
two
acquitted, and that at least
not be
arbitrarily,
Commission unless
has acted
jury
to be
jurors would cause
capriciously,
unreasonably.12
applica-
convic-
hung
jury
if the
did not find for
of this
tion
standard
should be reiterated
tion;
purpose
disciplinary proceeding
of this interview
(c) That the substance
punish
attorney,
not to
but to admonish
by the said television chan-
reported
was
protect
public against
him and to
future
news;
evening
on its
nel
transgressions
part.
on his
The sanction to
what,
imposed
jus-
be
is determined
(d)
extra-judicial state-
That Hansen’s
all,
tice and fairness to
this court’s judg-
person
ment was such that
reasonable
ment should be.13
it to be disseminat-
expected
would have
by the television station which was
ed
argument
vigorously
The
has been
urged
communication, and that
public
means of
the recommendation of the Bar Com-
unduly
mission is
severe in that
was such that it was reason-
Hansen’s
its substance
misconduct was
trial;
not found to be willful and
ably likely to interfere with a fair
deliberate. There should be an immediate
(e)
violated the
That the acts described
clarification that there was no
as to
IV,
7, DR 7-
of Rule
Cannon
Hansen’s intent or scienter.
It is an act of
107(b), (6);8
dissembling
suggest any
in the
omission
(f)
That the acts described violated
findings is
positive
tantamount
7, DR 7-
provisions of Rule
specific finding,
regard.
in this
107(D).9
specific
rules which Hansen was
survey
After a careful
of the record the
have
found to
violated are set forth in
adopted by
Bar should be
1, 3, 4, 8,
perusal
footnotes
9. A
prior ruling
accordance with its
this court in
express provisions
clearly
of these rules
in-
done,
findings ap
that such be
unless the
express
requisite
dicates an
intent is not
with
pear
arbitrary,
to be
or not in accord
constitute
a violation.
It matters not
duty
of the evidence.10
whether the
preponderance
violated
inadvert-
shall
plaint,
of an arrest
mencement of the
out
extrajudicial
the case.”
son would
of the
“(B)
(6)
prosecution
trial,
not,
Any opinion
A
information,
accused,
*8
n
communication and that relates to:
make or
expect
warrant,
statement
[*]
the time of the
or defense of a criminal matter
the
or law
to be dissemenated
as to
trial,
n
evidence,
participate
or arrest
indictment,
that a
the
firm
n
disposition
guilt
or the
associated
reasonable
filing
[*]
until the com-
or innocence
the issuance
making an
of a com-
merits of
[*]
of with-
means
per-
11. In Re
sonable
records of the court in the case.”
relates to the
or other matters that are
interfere with a fair
quote
ed means of
631
(1960);
Re
from or refer without comment to
Macfarlane,
In Re
trial, parties,
would
public
trial,
10 Utah 2d
expect
communication and that
reasonably likely
except
or issues in the trial
to be disseminat-
note
217,
that he
10, supra.
350 P.2d
public
may
174,
Badger,
In
Re
27 Utah 2d
813
Larsen,17
In Re
ence, neglect,
incompetence
part
or
the
In
on
the attorney failed to
attorney;
the
duty is constant
account for funds on a claim forwarded to
the client
invasion
interests of
the
him. This court
sustained the recom
regardless
constant
motive
remains
suspension.
mended three month
In In Re
Indeed,
there
attorney.
intent of the
Lund,18 the attorney commingled his client’s
or
express finding in both
I and
was an
Counts
funds with his own and failed to account to
a violation
that Hansen’s acts constituted
II
his client. This court ruled that
the one
is,
fact,
This
a criminal
78-51-42.14
of §
year suspension
by
recommended
Bar
statute,
implicit
requisite
therein is
did not
capricious
Commission
seem
or too
defined,
to commit the crime
intent
therein
light
onerous in
of the obvious indiscretion
viz.,
by
attorney
refusal
In In
attorney.
Hughes,19
Re
money
property
of the client re-
deliver
found,
attorney was
under two separate
by
attorney
in the
of his
ceived
course
complaints,
have commingled his clients
business, within a reasonable
personal
funds with his
funds. This court
by
time after demand
entitled
ruled
year suspension
the one
recom
A refusal under this statute can-
thereto.
mended
the Bar Commission was not
mere
or ne-
not be deemed
inadvertence
Wade,20
In In Re
unreasonable.
the attor
but a deliberate and intentional
glectful,
ney was
to have neglected
found
to attend
to refuse.
decision
to his clients’ affairs which were entrusted
year suspension
care,
Is the
recommended
to his
and that he failed to maintain
just
Bar Commission
by the
a fair
complete records of his client’s funds and
public?
to both Hansen and the
judgment
did not account to the client therefor. This
determinative,
Although not
review of
approved
court
as appropriate a suspension
action in other
of similar
this court’s
cases
from
for a
practice
period of
years
two
as
is instructive.
misconduct
by the
recommended
Board of Commission
Fullmer,21
In In Re
ers.
the attorney was
Hatch,15
In In Re
attorney
collected
found
two
under
counts to have converted
purpose
from his client for the
money
belonging
money
regard
to his clients.
In
attorney
it to
paying
party.
a third
attorney’s
to the
attempt
to explain the
years
for four
without
retained
circumstances, this court responded that the
paying
discharge
his client’s
either
attorney appeared to have been more con
obligation
requesting
instructions
his own
cerned with
situation than with the
court
disposition.
for its
This
held
his client
effect
upon
his conduct had
others and his
year suspension
the one
recommended
responsibilities
to the Bar and
justified.
of Commissioners was
the Board
public.
Although
attorney urged
Steffensen,16
Re
In In
refus-
suspension
the recommended
three
client,
after demand
pay,
ed to
severe,
years
unduly
adopted
this court
$38.99,
sum of
which was the amount re-
the recommendation.22
maining
judgment
after
collection of a
cases,
Board of
all
the aforecited
this- court
attorney’s
deduction
fees. The
adopted
suspension
month
the recommended
made
recommended a three
Commissioners
extenuating
due to
suspension
circumstanc-
Board
Commissioners. When
This
attending the transaction.
court Hansen’s acts of misconduct
ensu-
es
and the
ing
compared
recommendation.
recommended sanction are
approved
supra.
(1972).
note
20. 27 Utah 2d
497
22
14. See
P.2d
(1945).
Utah
15.
108
deem
cious, or unreasonable. injection into this matter of the sta- Hansen, viz., Attorney of Mr.
tus
General, from outside the record. comes part of the record made in the is not
Such Conse-
proceedings before Commission. before us.
quently, such is not SWAN,
Jeannette U. Plaintiff Appellant,
v.
Dr. Robert H. LAMB and Dr. Dennis D.
Thoen, Respondents. Defendants and
No. 14823.
Supreme Utah.
Aug.