In Re Knowlton
800 P.2d 806
Utah
1990
Check Treatment

*1 20-7-5.1(1) candidate, (Supp.1990). prob- Ann. The on the ballot as a write-in name § case, in “yes” “no” lems discussed the first Searle the boxes. without filing as the conflict between the such Searle, in After our earlier decision for a write-in the deadline candidate and it, leg- apparently response in direct to ballots, printing of date for the absentee 17-5-21, part in islature amended section exist, they certainly may may still cre- (4). en- by eliminating subsection It also problems, but ate future because section 20-7-5.1. The amended acted new where present repealed statute is clear section states: are problems longer no one was those (1) only there is one candidate When interpretation given dispositive of the be county attorney general at the elec- the statute.2 or fewer in counties that three have Accordingly, deny peti- Mr. Searle’s members county who are electors of the County Briggs tion and instruct Clerk Bar, good standing of the Utah State place Mr. name on the ballot for Searle’s that county shall cause candi- clerk Daggett County Attorney compliance affiliation, any, party if date’s name and with section 20-7-5.1 of the Code. separate placed on a section following question: ballot A.C.J., HALL, C.J., HOWE, (name candidate) be elected to “Shall Yes_ DURHAM, JJ., concur. STEWART county attorney? office of the No_” (2) If the of “no” votes for number “yes” exceeds the number

candidate candidate, the candidate is

votes for the office, nor may not take

not elected past in the he continue office prior resulting

end of the term appointment. election or KNOWLTON, Benjamin P. F-220. (3) person qualified If no files for No. 880448. county attorney provided as office of 20-4-9, county governing Section Supreme Court Utah. body appoint county as shall Oct. 1990. 17-5-21. provided Section Rehearing Denied 1990. Nov. (Supp.1990). Ann. 20-7-5.1 Utah Code § provision language new language plain clear. Under

statute, only one candidate for if there is three or

county attorney county .in eligible to fill that electors who

fewer

office, candidate must the name of that one “yes” or “no”

appear on the ballot with the (1). provided as in subsection

question, 20-7-5.1 has no of section

Subsection applicable it that would make

restrictions pursuant

only who file to candidates 20-4-9; rather, applies it on its face

section candidates, file whether accord-

to all procedures in section 20-4-9 or

ing to the candidates. Utah Code

run as write-in provision applies conflict with article note that VIII, we find that subsection 2. Because Constitution, candidates, which of the Utah the difficult section 16 we need not address all (3), require public prosecutors be allows seems to question subsection raised VIII, county attorney. Utah Const. art. appointment We elected. See of a

condition that Knowlton Lehmberg Trujillo Karen Basso as restitu- prior conclusion of the six-month suspension period. The Board recom- that, mended if Knowlton does not make months, by restitution the end of the six be suspended remaining for five months. challenges Knowlton both the findings of fact and the recommendation discipline. for Knowlton by was retained Ellis and Kar- Lehmberg, en who at the time were hus- wife, band and negotiate the sale of a legally by Lehmberg house owned Ellis parents, Henry Karen’s and Elaine Basso. Karen previously had been the house, quit- sole owner of the but had husband, claimed her interest to her Ellis Lehmberg, parents and her to avoid certain obligations arising prior marriage. from a successfully completed Knowlton the sale April paid of the house 1982 and was $2,000 legal pro- for his services. The sale Burdick, City, A. Lake for Christine Salt $5,599.95, proceeds duced net Bar. Utah State deposited in his trust account. Roberts, City, Thom D. Salt Lake for Lehmberg filed Karen for divorce within Knowlton. house, two weeks of the sale of the and the proceeds disputed became a marital

sale STEWART, represent Justice: did not asset. Knowlton either proceeding. Ellis or Karen the divorce Attorney Benjamin peti- P. Knowlton hearing attended a tioned this Court to review proceeding the divorce where he acknowl- law, fact, conclusions of and recommenda- Uno, edged to the district court Judge discipline of the Board of tion for Commis- presiding proceed- judge over divorce of the Utah State Bar. After inves- sioners holding proceeds that he was ing, hearings by hearing panel tigation Judge sale of the house trust. Uno Discipline the Ethics Committee to continue to hold the ordered Knowlton Bar, panel’s adopted the Board conclu- trust, $600, except monies in for which was following violated the sions that Knowlton repair belonging a car to be used to provisions Code of Professional Ellis. Karen and (en- 1-102(A)(4) (1971): Responsibility DR held in trust was involving dishonesty), The cash that Knowlton gaging in conduct Lehmberg in 1-102(A)(6) to Karen the divorce (engaging in conduct that awarded being informed Kar proceeding. After adversely reflects on fitness to mo law), Lehmberg’s counsel that trust (failing DR 9-101 even en to avoid to her and not impropriety).1 The nies had been awarded appearance Lehmberg, claimed an at Ellis that Knowlton sus- Board recommended Ann. torney’s pursuant to Utah Code practice of pended from the law for 1989) (1987)(amended legal months, stayed on the 78-51-41 with five months Conduct Responsibility Utah Rules of Professional 1. The Utah Code of Professional (1988). Rules of Profes- case oc- is found in the Utah Revised conduct in the instant adopted new rules Conduct. This Court sional prior curred to 1988. conduct, January professional effective well, performed fees him for services owed 25 Utah 2d at 474 P.2d at 116. We found, Lehmberg. The Board have observed that “we do not consider the did not establish sufficient punishment recommendations of “[Knowlton] made attor and clear evidence amount of the the Bar to be in the same category as we *3 claimed; ney’s which fact, he all evidence do findings their because it our is respect outstanding to with the amount of responsibility discipline an erring attor attorney’s ney-” fees owed therefore, Id. We need de was, best, speculative.” at deciding When Knowl fer the Board in what ton did not the trust monies to Karen constitute appropriate discipline. In this Lehmberg, pursued she it is regard, imperative a civil action and in mind bear judgment against obtained a Knowlton in of attorney the review disciplinary proceed $5,599.95,plus the amount of ings interest from is fundamentally judi different from 5, February 1983.2 cial review agency pro administrative ceedings. The Utah Constitution autho 1986, May Discipline the Ethics and power rizes this Court’s regulate Committee of the Bar issued a formal com- practice law, and that pro includes the plaint Knowlton, against hearings and mulgation discipline of rules of and en February hearing were held in 1988. The obligations forcement of ethical of attor panel concluded that Knowlton had violated VIII, neys. Utah Const. art. 4.§ the Revised Rules of Professional Conduct discipline ultimately and recommended the traditionally regulated courts have adopted by hearing panel the Board. The law, practice often with the assist- intentionally found that Knowlton convert- Although ance of bar associations. personal ed the trust monies to his use and performs Utah State Bar essential func- aggra- that his intentional conduct was an investigating complaints, tions in adjudicat- vating panel mitigat- factor. The found no facts, ing recommending discipline, it is ing stipulated factors. ultimately responsible this Court that is discipline, although recommendation of discipline. bar The matter of sanctions of- stipulate findings did not to the of fact or issues, ten raises delicate and difficult be- conclusions of law. destroy lawyer’s pro- cause sanctions can fessional life and livelihood. This Court will not overturn the protect public sanctions are essential to findings arbitrary, Board’s unless are Imposing from unethical conduct. sanc- capricious, plainly in error. In re John and, protect public tions that at the ston, 593, (Utah 1974); 524 P.2d 594 In re time, appropriate same to the offense 2, Bridwell, 1, 116, 25 2d 474 P.2d 116 requires careful consideration of a number (1970); Fullmer, 121, 122, In re 17 Utah 2d of factors those who are familiar 343, (1965). Nevertheless, 405 P.2d 344 law, practice professional standards, may accord less deference to Board find practice before the courts of the state. ings unique because of the nature of disci plinary knowledge actions and our of the Our case reflects relationship law Although nature of the of law. we between this Court and Bar. The Bar’s adopt “arbitrary” “capricious” stan findings and advisory recommendations are evaluating findings dard for the factual Judd, 435, (Utah only. In re 629 P.2d 437 Board, only general we do so as a 1981); Hansen, 413, In re 586 P.2d 417 n. 4 proposition right and reserve the to draw (Utah 1978); Hansen, 805, In re 584 P.2d facts, inferences from basic dif (Utah 1978). 807 The Court is not bound fer from the inferences drawn by the recommendation of the Board. Board. Blackham, 694, (Utah P.2d 588 696

Moreover, 1978); 892, Hughes, there is a valid distinction for In re 534 P.2d 892 (Utah 1975); purposes 258, review King, between the Board’s find In re 7 Utah 2d 260, ings (1958). Indeed, and its recommendations. In re Brid 322 P.2d 1096 violation, nonpayment judgment 2. The Board did not find that Knowlton's non- of the payment judgment appeal. of the civil was an ethical not an issue on

«09 Cantrell, (Okla. on a of occasions v. 734 this Court has number P.2d 1293 departed 1987). the Bar’s recommendation.

Blackham, (two-year suspen- P.2d recommended; censure, public repri- adopted

sion proposed The Board mand, ordered); payment of costs hearing panel that Knowl Hansen, (one-year 586 P.2d 413 disbarment 1-102(A)(4), ton violated DR DR 1 recommended; public reprimand and resti- -102(A)(6),and DR 9-101 of the Revised ordered); Hansen, tution 584 P.2d 805 Rules of Professional Conduct. The Board recommended; (one-year suspension public properly found that Knowlton’s act of con censure, reprimand, payment of actual verting belonging funds to one client as expenses necessary of the Bar or- payment *4 for a debt owed another client dered); 174, 27 Badger, In re Utah 2d 493 1-102(A)(4). is dishonest conduct under (1972)(disbarment recommended; P.2d 1273 The record indicates that Knowlton knew ordered), aside, disbarment order set 28 $4,999.95 trust; indeed, he held the in 240, (1972) (two-year Utah 2d 501 P.2d 106 acknowledged Judge open in court Uno ordered); Bridwell, suspension 25 2d 1, (disbarment recommended; that he held those monies in trust. Knowl- 474 P.2d 116 however, argues, ex- one-year suspension payment per- of ton that he had ordered). penses of Bar See also legal Lehmberg formed services 302, (Utah Judd, 1984) (citing 682 P.2d 304 paid for which he was not and that after Hansen, 805). 584 P.2d advice, seeking legal he asserted an attor- ney’s against the trust monies. The sum, ordinarily pre this Court will Board found that Knowlton did not estab- findings of sume that the Board’s fact attorney’s lish a valid lien and that correct, although may set those find we property funds were the of Karen Lehm- ings supported by aside if are not berg proceeds produced by not Knowl- warrants, evidence. If the evidence Lehmberg.3 ton for Ellis When the district independent judgment re make an plus court awarded monies interest to Kar- garding appropriate discipline, level of always give Lehmberg proceeding, in the although we serious considera en divorce and recommendations duty either surrender Knowlton had a are similar of the Board. These standards appeal or court order if he the monies applied to the standards of review a thought deprived him of a attor- it lawful jurisdictions. number of other Burrell v. ney’s lien. Ass’n, Bd. the Alaska Bar Disciplinary in- maintains that he did not 1985); 240, (Alaska P.2d 242 In re 702 tentionally convert the trust monies but 1080, Arrick, 16, 18, Ariz. 775 P.2d 161 that, advice, seeking legal he errone- after (en banc); Bar 1082 Jones v. State attorney’s lien and mere- ously asserted an 273, 286, 170, Cal., 49 777 P.2d Cal.3d judgment. ly made an honest mistake of 397, (1989)(en banc); 178, Cal.Rptr. 261 405 Arguably, explanation possible was Supreme Disciplinary Bd. the Haw. repre- of the fact that Knowlton had view 554-55, 546, Haw. 592 Bergan, v. 60 Court Karen in the sented Ellis and Lutz, 814, (1979); In re 100 Idaho P.2d 819 Nevertheless, their house. sale of 45, 48, (1979); 592 P.2d 1365 State that Knowlton’s conversion of Claiborne, Board found P.2d 471 v. Bar of Nev. (Nev.1988); knowing intentional. the funds was rel. Okla. Bar Ass’n State ex counterclaim, (amended attorney appears ing who a Utah Code Arm. 78-51-41 1989) party upon attorney’s has a lien his client’s cause provided for an lien in certain counterclaim, to a circumstances: of action or which attaches verdict, judgment report, in his decision compensation an and coun- proceeds to the thereof in client’s favor and governed by agree- selor for his services is ment, come, they may and can- whosesoever hands express implied, re- which is not affected settlement between not be strained law. From the commencement action, parties judgment. or after of an answer contain- before an or the service

The Board’s determination that affirmed, The Board’s order is 1-102(A)(4) supported by suspension violated DR begin two weeks from the evidence, opinion. date of this especially in view of the court directing order Knowlton to retain the funds trust. Since Knowlton’s conduct C.J., HALL, DURHAM, J., concur. 1-102(A)(4),

is in violation of DR we do not need to address the issue of ZIMMERMAN, whether (concurring Justice 1-102(A)(6) Knowlton violated DR dissenting): and DR 9-101.4 join Stewart, I opinion of Justice ex- VII(b) cept give that I

Rule of the Procedures of Disci- would not months to pline provides: “Any restitution Utah State Bar Trujillo, Ms. an amount which has been suspension term stayed by due her for many years. This was the Supreme suspend- Court conditioned on the recommendation, Bar’s here, part but I attorney’s ed compliance with certain terms company the Bar. I justifi- can see no stayed suspension.” conditions of the long repayment cation for such a period. I case, In this the Board recommended that *5 require repay would Knowlton to that sum suspended practice Knowlton be from the within one month of the date of opin- months, law six with five months ion. stayed subject (1) to the conditions that actually suspended be for 30 days; pay restitution of HOWE, C.J., Associate concurs in the Lehmberg Trujillo prior to Karen concurring dissenting opinion period ZIMMERMAN, to the conclusion of the six-month J.

suspension; prosecuting

Bar’s proceed- costs of these

ings. Additionally, the Board recom-

mended that should Knowlton fail to com-

ply discipline pay- order restitution, subject

ment of

imposition remaining five months of suspension. majority A of the Court penalty appropriate.5

believes that this is majority 4. improperly judicial A of the Court has determined that it that he could tribunal, influence a unnecessary is to address Knowlton’s other vio- official, legislative body, public or as lations. I believe that the Board’s 9-101(C). prohibited by Although some of determination that Knowlton violated DR 9-101 is not the ethical considerations found in Canon 9 deal supported by At the evidence. time in generally profes- more with the avoidance of question, DR 9-101 stated: impropriety, sional Knowlton did not violate Avoiding Appearance DR 9-101 Even the specific rules found in DR 9-101. Impropriety. (A) lawyer accept private employ- A shall not view, my suspension, a six-month even if upon ment in a matter the merits of which he stayed, oppressive five months is and unrea- judicial capacity. has acted in a (B) suspension A sonable. short from the lawyer accept private employ- A shall not destroy is sufficient in most cases to ney’s practice. an attor- ment in a matter in which he had substantial suspension A months is responsibility public employ- while he was a tantamount to a disbarment. Petitioner's con- ee. view, my egregious. duct is event, (C) lawyer imply A shall not state or that he disciplines equivalent bar are not the improperly upon is able to influence irrele- sanctions, yet criminal that seems to be the tribunal, grounds any body, legislative vant adopted. model the Bar has I think that it is public official. impose overlong period ill-advised to an of sus- alleged None of Knowlton's misconduct in- pension stay part gain leverage and then of it to accepting private employment volved in a mat- compel comply an with other judicial capacity ter in which he acted in a or as 101(A) specific ample public employee prohibited by remedies. There are means to as DR 9— (B). compel compliance implying Nor did his conduct involve short of that.