In re Grant Macfarlane

PER CURIAM. Complaint was made to the Utah Bar Association charging respondent Grant Mac-farlane, Sr. with unprofessional conduct in exercising fraud and undue influence upon Wilda Gail Swan while acting as her attorney and confidential advisor: particularly that he did so in connection with the drafting of her will and codicils thereto, which made him a major beneficiary of her estate. The background facts are set forth in In re Swan’s Estate.1 A trial committee of three members of the Bar of neighboring Weber County was appointed to hear the matter. Having done so, the Committee recommended that Mr. Macfarlane should be disciplined. While the three agreed upon that conclusion, one of their number disagreed with the other two as to the method of reaching it. The Board of Commissioners of the Bar then considered the matter, including the recommendation of the Committee, and in turn recommended to this court that an order be entered suspending Mr. Macfar-lane from the practice of law for one year, and until he makes application to and is recommended for reinstatement by that Board. The facts in summary and as reflected in the Committee’s findings are: that respondent Macfarlane was the attorney and advisor for Miss Swan over a period of [219] several years; that he was a prominent and successful attorney, greatly superior to her in intelligence, emotional maturity and social status; that she was definitely limited in those respects and had a mentality of a 12-year old child; that he used his superior position and talents to ingratiate himself with her and to overreach and use undue influence in his dealings with her in bringing about the advantage to him in her will and codicils prepared by him, by which he would have taken substantially one-thiad of her estate of approximately $285,000. Further detailing the conduct by which this was accomplished is unnecessary except to say that there were unusually large gifts to him made shortly after her father died and his stabilizing influence ceased; a maintenance of joint bank accounts and careful protection of funds available to respondent therein. All these things were done without Miss Swan’s ever having the benefit of independent legal advice; and at no point did he ever suggest that she secure any, but on the other hand it appears that these matters were deliberately kept secret from anyone else including relatives, who, it might reasonably be supposed, would have advised and protected her interests with respect thereto. Respondent maintains that there is no affirmative proof of any undue influence upon Miss Swan or misconduct upon his part. He avers that conceding the facts narrated above would, in a civil proceeding, shift the burden to the attorney to show an absence of undue influence as we discussed in the Swan case, supra. But that is not so here. He places reliance upon the fact that the trial committee in its report, adopted by two members of the Committee, indicated that it relied upon the presumption upon which the finding and judgment in that case was based. Whereas, respondent argues that the burden of proof in this proceeding is entirely different in that the presumption of undue influence which arises from the confidential relationship does not apply and that the persuasion of his misconduct must be by clear and convincing evidence. We agree that because of the seriousness of the consequences to the attorney involved touching upon the important right to follow his vocation and make a livelihood, that such is the established rule.2 The argument of respondent above stated erroneously assumes that a disciplinary proceeding follows the usual pattern of a trial and appellate review. The function of the Committee was to investigate, to hold a hearing, to find the facts and make a recommendation to this court. The Bar Commission was not bound to accept the findings and recommendations of the Committee, but it was its prerogative to consider all of the facts and circum [220] stances of the matter including the findings and recommendation of the Committee, and to make its own determination and recommendation, which was done. It is true that this court would not follow the finding and recommendation of the Commission if it appeared to be arbitrary, nor unless it was supported by substantial evidence. But it is quite impractical to expect that there be a review of the mental process by which the conclusion was arrived at. We are not concerned with the niceties of the term “presumption” but with a survey of the foundational facts and whether reasonable minds might regard the overall picture as meeting the required standard of proof that respondent engaged in unprofessional conduct. Conduct of the character in question is practically always practiced in secret and frequently comes to light after the victim is deceased. In the final analysis, any presumption of undue influence from facts such as the instant ones is but a recognition of the inferences which reasonably may be drawn from such facts. On this problem it is relevant to observe that the propriety of the questioned conduct must necessarily be directed to the good conscience and ethical and moral standards of members of the Bar, and that the Bar Commissioners as its elected representatives are peculiarly suited to be the arbiters of such standards. They are vitally concerned with the general conduct of the Bar and its public relations and are also seriously concerned with a charge against a fellow member such as that involved in the instant proceeding. It is basic-that the responsibility is upon the Bar and the courts to supervise those licensed to practice and to disbar, suspend or discipline those guilty of infractions of . proper standards 3 because the practice of law is not a right accorded alKcitizens, but is a privilege extended only upon showing good character, meeting required qualifications and maintaining proper professional standards.4 In the prudent exercise of the power to discipline in order to maintain such standards lies the protection of the public and of the Bar itself. We accept the fact that the final responsibility is upon this court and that this involves more than mere rubber stamp endorsement of the actions of the Commission. Nevertheless, because of the considerations just discussed, we deem it discreet and proper to indulge considerable latitude to the actions and judgment of the Commission in such matters and would not disregard its finding and recommendation in the absence of some persuasive reason for doing so. [221] The Commission has followed the procedure outlined by its rules, afforded the respondent opportunity to be heard in explanation of the accusation, and upon the basis of its appraisal of the full factual picture has made its determination and recommendation, with which we see no cogent basis for disagreement. Therefore, in accordance with the recommendation of the Board of Commissioners, it is ordered that Grant Macfarlane, Sr. be, and he hereby is, suspended from the practice of law in the state of Utah for a period of one year from the time the remittitur issues, and until he is reinstated upon recommendation of the Board of Commissioners of the Utah State Bar. It is further ordered that Mr. Macfarlane pay to the Utah State Bar all proper taxable costs expended in conducting this proceeding. CALLISTER, J., having disqualified himself, WAHLQUIST, District Judge, participated in the hearing of this cause. Footnotes [1] In re Swan’s Estate, 1956, 4 Utah 2d 277, 293 P.2d 682. [2] In re McCullough, 1939, 97 Utah 533, 95 P.2d 13. [3] Utah Code Annotated, 1953, 78-51-12 et seq. [4] Utah Code Annotated, 1953, 78-51-19.