Bowen, In re

• Decision Date: 20 April 1973
• Docket Number: No. 11267,11267
• Citation: 508 P.2d 1240,95 Idaho 334
• Parties: In the Matter of Reed J. BOWEN, Attorney.
• Court: Idaho Supreme Court

Page 1240

508 P.2d 1240

95 Idaho 334

In the Matter of Reed J. BOWEN, Attorney.

No. 11267.

Supreme Court of Idaho.

April 20, 1973.

Reed J. Bowen, Idaho Falls, pro se.

Glenn A. Coughlan, Boise, Jerry V. Smith, Lewiston, Alden Hull, Wallace, Peter K. Church, Burley, and Clark Gasser, Pocatello, for Board of Commissioners of Idaho State Bar.

PER CURIAM.

Pursuant to a disciplinary proceeding, the Board of Commissioners of the Idaho State Bar has recommended that Reed J. Bowen, an attorney residing and practicing in Idaho Falls, Idaho, be suspended from the practice of law in this state for the period of six months and be required to pay all costs of the proceeding. In accordance with the Bar Commission Rules, formal hearing was held before a Committee on Discipline appointed by the Bar Commission. After the hearing, the Committee unanimously found that Mr. Bowen had been guilty of professional misconduct in violation of Canons Six and Eleven of the Canons of Professional Ethics, which were in effect when the alleged unethical conduct took place. The findings of the Committee on Discipline were approved and adopted by the Board of Commissioners as part of their recommendatory order.

Pursuant to Bar Commission Rule 168, Mr. Bowen has petitioned this Court for a review of findings of fact and recommendatory order of the Board of Commissioners, on the ground that the findings and order are contrary to the facts and evidence in the case.

The responsibility for ordering the suspension or disbarment of an attorney in Idaho rests ultimately with this Court. In re Edwards, 45 Idaho 676, 266 P. 665 (1928); Bar Commission Rules 167-68, 170. The Court is not bound by law to accept the findings of the Committee on Discipline and the recommendation of the Board of Commissioners. Nevertheless, such recommendation and findings are entitled to be given great weight. Himmel v. State Bar, 4 Cal.3d 786, 94 Cal.Rptr. 825, 484 P.2d 993, 998 (1971); In re Nelson, 78 N.M. 739, 437 P.2d 1008, 1009 (1968); In re Fullmer, 17 Utah 2d 121, 405 P.2d 343, 344 (1965); cf. In re Lee, 242 Or. 302, 409 P.2d 337, 339 (1965). This is especially true where testimonial evidence forms an important basis of the findings. See In re Burns, 55 Idaho 190, 209, 40 P.2d 105 (1935); In re Edwards, supra, 45 Idaho at 693; Himmel v. State Bar, supra, 4 Cal.3d 786, 94 Cal.Rptr. 825, 484 P.2d at 998. The Court will not leghtly disturb the findings of the Committee which had the opportunity to observe the demeanor of witnesses at first-hand and weigh and evaluate conflicting testimony. In a case of this sort, the burden is on the petitioner to show that the findings are not supported by the evidence or that the recommendation is erroneous. In re Plotner, 5 Cal.3d 714, 97 Cal.Rptr. 193, 488 P.2d 385, 386 (Cal.1971); Himmel v. State Bar, supra, 4 Cal.3d 786, 94 Cal.Rptr. 825, 484 P.2d at 998; see Bar Commission Rule 168. In this case, Mr. Bowen has not sustained this burden. Although the evidence relating to some of the matters at issue is conflicting, we are convinced that professional misconduct on the part of Mr. Bowen, which warrants his suspension from the practice of law in this state, was clearly established and that the Committee on Discipline and the Board of Bar Commissioners were justified in so finding.

Findings one and two relate to conduct on the part of Mr. Bowen in violation of Canon Six of the Canons of Professional Ethics, which reads as follows:

'6. ADVERSE INFLUENCES AND CONFLICTING INTERESTS

'It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.

'It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.

'The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.' (Emphasis added.)

Finding one states:

'As to Count One under the Complaint filed in the matter, it is the finding of the Committee on Discipline that Reed J. Bowen was acting as attorney for Edward L. Milton and Eastgate Terrace, Inc., a corporation; that Reed J. Bowen failed to make a full disclosure of his personal involvement and interest in the purchase of the propeties referred to as the Last Chance property; that Reed J. Bowen represented conflicting interests without making full disclosure as above noted. It is the conclusion of the Committee that Reed J. Bowen violated the provisions of Canon No. 6 of the Canons of Professional Ethics of the Idaho State Bar.'

Finding two states:

'As to Count Two under the Complaint filed in the matter, it is the finding of the Committee on Discipline that Reed J. Bowen was acting as attorney for Edward L. Milton and Eastgate Terrace, Inc., a corporation; that Reed J. Bowen failed to make a full disclosure of his personal involvement and interest in the purchase of the properties referred to as the First Street Property described in Count Two; that Reed J. Bowen represented conflicting interests without making full disclosure as above noted. It is the conclusion of the Committee that Reed J. Bowen violated the provisions of Canon No. 6 of the Canons of Professional Ethics of the Idaho State Bar.'

The first part of the hearing in this matter, at which the testimony of witnesses was taken, took place on March 24 and 25, 1972. The hearing was continued until October 6, 1972 and was concluded on October 7, 1972. The above mentioned Edward L. Milton did not appear at either time. Although subpoenaed to appear before the Committee on Discipline on March 24, 1972, Mr. Milton did not attend because of an alleged illness. At the second half of the hearing in October, 1972, it was disclosed that the sheriff was unable to serve a subpoena on Mr. Milton because he was out of the state. Therefore, a deposition of Mr. Milton, taken at the instance of the petitioner on December 10, 1971, was read into the record and published as his testimony. Counsel for petitioner stated at the portion of the hearing held in March, 1972, that his client 'would be agreeable to the fact of having (Milton's) deposition entered into the record as his testimony.'

Also admitted into evidence at the second half of the...