In Re Badger

CALLISTER, Chief Justice:

The Disciplinary Committee of the Utah State Bar recommended that Mr. Badger be disbarred. The Board of Commissioners adopted this recommendation. This court has previously stated that it would look upon the findings and recommendation of the Bar Commission with indulgence and would not disregard its action unless there was something to persuade this court that the Commission had acted capriciously, arbitrarily, or beyond the scope of its powers or was plainly in error.¹

The Disciplinary Committee predicated their recommendation of disbarment on the grounds set forth in the findings and conclusions in the Third and Sixth Counts of the Complaint filed against Mr. Badger. These findings and conclusions were as follows:

Third Count: Findings of Fact

1. That between September, 1967, and December, 1967, Mr. Badger was involved as an attorney for an unincorporated business known as Federal Check Clearing House, owned by Ardco, a corporation, and J. M. Harrison; that while such attorney and as Sales Manager of Federal Check Clearing House, he solicited various merchants for, and on behalf of Federal Check Clearing House, and offered them the services of Federal Check Clearing House to collect such dishonored checks that the merchants might receive, and in such representations he indicated that he was an attorney and that if the checks couldn’t be collected without a law suit, that he could take the makers of such dishonored check to Court beause [sic] he was a lawyer and that the checks would be collected without •any expense to the merchant.

2. That at least one merchant, Albert-.son’s, Inc., upon the representation of Mr. Badger, did enter into an agreement through Mr. Badger to have Federal Check Clearing House collect dishonored checks for them.

3. That Mr. Badger advised and assisted J. M. Harrison in drafting the documents contained in Exhibits 13 and 14, and also in setting up the method of operation of Federal Check Clearing House, and that such documents and the method of the operation of Federal Check Clearing House were designed by Mr. Badger to convey to the lay public that Federal Check Clearing House was a branch of the Federal Government and operated with all the authority and power of the Federal Government behind it, and that dishonored checks were automatically referred to it for processing. That Mr. Badger was actively engaged in the operation of the Federal Check Clearing House business during its inception and for several months after it began collecting dishonored checks for various merchants. That the documents in Exhibits 13 and 14 represented to debtors that their dishonored checks were being processed by computers and that such debtors would automatically be liable for not only the amount of the check but also for certain processing charges, attorneys’ fees and for punitive damages.

4. That in October and November, 1969, letters were sent ortt to various debtors by Federal Check Clearing House upon letterheads of Mr. Badger and over his stamped signature, which letters, among other things, recited that he represented Federal Check Clearing House and made demand upon the debtor for immediate payment of the check plus $7.00 attorneys’ fees and costs, and recited that if this amount was not paid by a certain date, that Summons would automatically be issued and that the debtor would be required to pay additional Court costs and punitive damages, and said letter also referred to the UUtah [sic] Penal Code, and indicated that issuance of a dishonored check was a criminal offense.

5. That Mr. Badger, as an attorney, also assisted in the preparation of the Summons form which was utilized in Court actions wherein Federal Check Clearing House was plaintiff in matters involving dishonored checks.

6. That Ardco was part owner of Federal Check Clearing House, and Mr. Badger was Sales Manager of Ardco and had an option to purchase Ardco stock; that Ardco paid Mr. Badger commission and salary for his .services, and Mr. Badger was financially interested in the success and profitability of Federal Check Clearing House.

CONCLUSIONS OF LAW:

That Mr. Badger, by such acts, violated rules of ethics of the U Utah [sic] State Bar as follows:

1.Rule No. 9

2. Rule No. 28

3. Rule No. 29

4. Rule No. 32.

That Mr. Badger, by such acts, was in violation of the following sections of the Utah Code:

1. 78-51-27(2) — That Mr. Badger, in the name of Federal Check Clearing House, promised to merchants a valuable considera-ation, to-wit: that the merchant would not be required to pay any expense of collection, including attorneys’ fees, as an inducement for the merchant to place dishonored checks received by the merchant in the hands of Federal Check Clearing House for collection and for Court action if necessary.

2. 78-51-31 — That Mr. Badger was deceitful in the letter that he had prepared for sending to various debtors by Federal Check Clearing House in that such letter gave the impression that Federal Check Clearing House was an entity of the Federal Government and also that such debtors would be legally liable for attorneys’ fees, collection charges, and punitive damages.

3. 76-19-6 — Mr. Badger prepared, or assisted in the preparation of the letter dated October 27, 1967, as part of Exhibit 13, and letter dated November 28, 1967, as part of Exhibit 14, which letter was adapted to imply to the persons to whom these letters were sent a threat to accuse such person of a crime, and that such threat was made for the purpose of Federal Check Clearing House receiving payment of not only the amount of the dishonored check, hut, in addition, attorneys’ fees and certain collection charges.

Sixth Count: Findings of Fact.

1. That on or about February 24, 1964, in an action entitled Richard Bigler, Plaintiff vs. George Badger and Lajuana I. Badger, his wife, defendants, Dale Howell and Nora Cox Howell, his wife, defendants and intervenors, Third Judicial District Court for Salt Lake County, Civil No. 134741, it was found by the trial judge in the Findings of Fact and Conclusions of Law that Mr. Badger was guilty of practicing common law fraud upon the Howells and judgment was entered in favor of the Howells and against Mr. Badger in the sum of $20,000.00 plus interest and attorney’s fees of $2,500.00.

2. That on September 2, 1969 and after the Complaint against Mr. Badger was filed with the Board of Commissioners of the Utah State Bar, and the hearings thereon had been commenced before the Disciplinary Committee, Mr. Badger through his attorney made an effort ex parte to have the Findings of Fact and Conclusions of Law in said case No. 134741 modified; and on said date, upon motion of Mr. Badger, Stewart M. Hansen, Trail [sic] Judge in the original case, executed an order dated September 2, 1969 which purported to modify or correct the original Findings of Fact and Conclusions of Law and Judgment in said case.

3.That the Complaint covering the actions of Mr. Badger in the Howell transaction was made to the Utah State Bar Association by Dale Howell by letter dated July 22, 1965.

CONCLUSIONS.

That the adjudication by the trial judge in case No. 134741 that Mr. Badger committed fraud upon the Howells was such evidence of conduct indicative of bad moral character as to justify disciplinary action by the Utah State Bar; that the action taken by Mr. Badger to correct or modify the Findings of fraud theretofore made by the trial judge in said case No. 134741 was doen irregularly, was ineffectual and did not legally change the original Findings.

A survey of the record before us reveals no basis upon which to conclude that the Commission acted capriciously, arbitrarily, or unreasonably in the findings. In fact, they found adversely to Mr. Badger only in those instances where the evidence clearly so indicated.

Mr. Badger urges that disbarment is too harsh a discipline for the circumstances of this case. A similar argument that suspension would be sufficient punishment was advanced in In Re Platz.² This court responded that such a contention ignores the real purpose of disbarment proceedings. Where the specifications in such proceedings charge the attorney with acts and conduct which are clearly to the effect that he does not possess the attributes that entitle him to continue to practice his profession, the purpose of disbarring him is not to punish him but to protect the public.

The Bar Commission has recommended that Mr. Badger’s conduct justifies disbarment; such a recommendation, in the final analysis constitutes a value judgment, which may be accepted, modified, or rejected by this court. However, this court has established a standard that it will sustain the recommendation of the Bar Commission unless it has acted arbitrarily, capriciously, or unreasonably. If the alleged severity of the recommendation be evaluated by this standard, there is no ground upon which this court can predicate a departure from it.

It is therefore ordered and adjudged that George H. Badger be disbarred from practicing law in the courts of this state effective upon issuance of the remittitur.

TUCKETT and CROCKETT, JJ, concur. HENRIOD, J, does not participate herein.

1 . In Re Fullmer, 17 Utah 2d 121, 122, 405 P.2d 343 (1965); In Re Bridwell, 25 Utah 2d 1, 474 P.2d 116 (1970).

2 . 42 Utah 439, 132 P. 390 (1913).