In Re Bridwell , 25 Utah 2d 1 ( 1970 )

CROCKETT, Chief Justice

(dissenting) :

It is appreciated that the consideration this court gives a recommendation of the Bar Commission in a disciplinary proceeding is not the same as the review of a judgment of a trial court, nor of ar. order of an administrative agency.¹ Nevertheless, it is my opinion that for the same reasons that presumptions of verity are indulged in favor of those judgments and orders, some deference should be indulged to the findings and recommendations of the Bar Disciplinary Committee and the State Bar Commission; , and that accordingly, we should assume that they believed those aspects of the evidence, and the reasonable inferences to be drawn therefrom, that support their findings and recommendations; and that we therefore should survey the evidence in that light, and sustain their findings and recommendations unless it appears that they have acted capriciously, arbitrarily or unreasonably.

This disciplinary proceeding against the respondent George E. Bridwell is based upon charges of misdoings in handling the affairs of one Eugene Wagner. It should be kept in mind that the question whether and to what extent Wagner may have been involved in blameworthy conduct is not our primary concern in this proceeding. Assuming it to have been so in whatever degree, that should provide no basis for an attorney to aid and abet him, much less to take advantage of such a situation and manipulate it to his own gain. This record covers their business over several years. It would be impractical to include in this opinion any extensive detail of the facts except in brief summary of certain salient aspects thereof as found by the Commission:

(1) Wagner was in fear because of apprehension over income taxes and went to Switzerland; (2) he placed his trust in Bridwell to take care of his affairs; (3) Bridwell, knowing the situation Wagner was in and how difficult it would be for him to ascertain and cope with any misdoings of Bridwell, betrayed his trust and exerted efforts to keep Wagner frightened and in exile; (4) in doing so he employed the withholding of information and misrepresentation as to facts; (5) meanwhile he was taking for himself all of the money from Wagner’s enterprise he could get hold of and failing to account for it. The major item was a refund of $15,520 from the federal government about which respondent withheld information, and later made false representations and failed to account until compelled to do so; and similarly with respect to an item of $4,000 repayment of a loan from the Metropolitan Finance Company.

It is deemed appropriate to set forth certain of the Bar Commission’s findings relating to the issue here involved because they reflect the facts clearly shown by the record:

a. That the attorney in the cablegrams and letters offered in evidence, used threats and coercion without explanation to extract an additional $2,000.00 fee; that no emergency circumstances existed justifying the coercion exercised. [Referring to exhibits 10, 11, 12, 13, 14 and 15].

b. That the attorney did not properly account for the sums received from Dunn & Bradstreet as indicated by exhibit 28 for $225.50, exhibit 29 for $79.00, and exhibit 30 for $78.44. The proof does not establish that other funds apparently remitted by Dunn & Bradstreet were in fact received by the attorney.

That the attorney with authority to incur the expenses of a trip to Switzerland, took $4,000.00 of the repayment made by Metropolitan Finance Company and used this money for that trip, and thereafter never made any accounting to his client itemizing- the expenditure of the $4,000.-00. That near October 9, 1961, the Federal government refunded to the attorney $15,520.00 for his client; that the client made repeated requests of the attorney for an accounting showing the disbursement of said funds, but that the attorney never made any accounting to the client. That the attorney advised the client that the funds received on the government refund were deposited in a trust account for the benefit of Precisa and Wagner which statement was untrue. That after repeated requests by the client for an accounting one was provided by Accountant Nielson on October 29, 1962, as reflected in exhibit. 36, indicating the monies had previously been disbursed principally to the attorney and Accountant Nielson.

c. The attorney’s request to a govern'ment auctioneer to withhold a chandelier from the sale and the attorney’s purchase of the chandelier on the following day when no other competitive bidders were expected to be present was a representation of conflicting interests.

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e. * * * that the attorney did in fact represent both Schubach and Wagner and Precisa companies, and there is evidence that he related to Wagner and Precisa Company that he had taken steps to protect the building so that they could regain possession. That the attorney in exercising the option on behalf of Pre-cisa and in signing that interest to Schu-bach who subsequently made a $10,000.00 profit on the transaction was contrary to the best interest of his client, Wagner and Precisa. That the interests of Schu-bach and Precisa and Wagner were hostile to each other, and the attorney’s representation of both parties constituted a breach of his duty to his client and a representation of conflicting interests.

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g. That the attorney’s withdrawal of sums of money (except the original $14,-000.00) from the client’s corporate assets for additional legal fees was without the authorization or knowledge of the client. That there was some discussion between the attorney and the client that there may be additional sums to be paid on the attorney’s fees, but there was no authorization nor knowledge as to withdrawal or use of funds under the attorney’s control as attorney’s fees exceeding the $14,000.00 original figure. That the records indicate that $19,425.00 and $4,000.00 had already been taken by the attorney before the first trip to Switzerland when the necessity for additional attorney’s fees were verbally discussed.

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* * * That the action of the attorney in preparing and securing the adoption of minutes of the stockholders meeting in Switzerland were for the protection of the attorney in an effort to exonerate himself from any wrongdoing or excuse any previous conduct for which he felt he might ultimately have some responsibility to his client.

h. That the attorney accepted labor and materials for the improvement of the attorney’s home from a contractor tenant of the client’s corporation and then credited the tenant with the value of said labor and materials on the tenant’s rent, which rent should have been paid to the client’s corporation.

In supplementation of the foregoing findings the following portion of the record is quoted which clearly indicates that Mr. Bridwell was taking unfair advantage of the difficult situation his client was in to benefit himself:

MR. BERTOCH: * * * referring to exhibit 10, which is August 3, 1961,

Mr. Bridwell said:

Received your letter of July 26, the contents noted. Under no circumstances are you to return now. New developments make mandatory you send $2,000 to me at once. Personal conference urgent and imperative. Further letters useless. Your continued total confidence necessary, or I must withdraw;

and, of course, the substance of Mr. Wagner’s letters were,

Well, what’s the emergency? Why do you need $2,000 ?

And the cable of 8 August is:

August 3 letter received and noted. Imperative for many important reasons you. send $2,000 at once. You will fully agree when I see you.

Then he gets another letter, and then his telegram later in August, he says,

Letter of August 8 received and noted. ■ You do not seem to understand English language. No more arguments or excuses, or you may lose five years of work and gain a life of exile. Do exactly, repeat exactly, as stated or forget it, • and I will then later be at liberty to write yoti full details on why your house of cards fell.

It is impossible for me to understand why Mr. Bridwell, if he could send three telegrams over a period of a couple of weeks, why he couldn’t have written a letter and explained what was so urgent and why he needed $2,000, rather than acquire the money in the manner in which he acquired it. I think that is the really material evidence substantially with respect to that particular item.

MR. ADAMS : May I inquire whether or not on the date of the cables or the first one of August 3, 1961, the client had been advised of the settlements made some months earlier?

MR. BERTOCH: There is nothing in the evidence that I know of that he had been advised of any settlements, and yet it was testified by Mr. Bridwell that settlements had been made several months prior to the September visit to Switzerland.

If the rule of review set forth at the beginning hereof is applied to' the record brought before us, and as illustrated by the parts included herein, I cannot see any basis upon which to justify a conclusion that the Commission acted capriciously, arbitrarily or unreasonably in the findings it made. On the contrary, I am convinced that they have performed their somewhat unpleasant duty in a conscientious and judicious manner, making findings adverse to Mr. Bridwell only when the evidence clearly so indicated. The alternatives confronted are whether to agree to the recommended order of outright disbarment, or to the conclusion arrived at by the majority of this court that the disbarment should be limited to a period of one year. In that connection it is to be observed that an order of outright disbarment is not necessarily a permanent thing. An attorney, though disbarred, by following the required procedure as to making proof of his qualifications, and as to his good moral character, may become reinstated in his profession. Upon the basis of what I have here-inabove set forth I think the findings and recommendation of the Bar Commission are justified and I would follow their recommendation. (All emphasis added.)

CALLISTER, J., concurs in the dissenting opinion of CROCKETT, C. J.

1 . In re Fullmer, 17 Utah 2d 121, 405 P.2d 343; cf. In re MacFarlane, 10 Utah 2d 217, 350 P.2d 631.