In re Barclay

• Decision Date: 26 July 1933
• Docket Number: 5324
• Citation: 24 P.2d 302,82 Utah 288
• Court: Utah Supreme Court
• Parties: In re BARCLAY

24 P.2d 302

82 Utah 288

In re BARCLAY

No. 5324

Supreme Court of Utah

July 26, 1933

Appeal from Board of Commissioners of Utah State Bar.

In the matter of the disbarment of Lawrence J. Barclay. From the recommendations made by the Board of Commissioners of the Utah State Bar, accused appeals.

Accused ordered suspended from the practice of law, with directions.

Lawrence J. Barclay, of Salt Lake City, for appellant.

E. A Rogers and E. C. Jensen, both of Salt Lake City, for respondent.

OPINION

PER CURIAM.

In 1931 our State Legislature enacted a law creating the Utah State Bar (Laws of Utah 1931, c. 48, p. 165). Pursuant to that act a complaint was filed with the bar commission charging that:

"L. J. Barclay, a member of the said Utah State Bar, has knowingly and willfully violated Subdivision 2 of Section 331 of Compiled Laws of Utah 1917, which reads as follows:

"'2. Willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession and any violation of the oath taken by him or of his duties as such attorney and counsellor.'

"And that the said L. J. Barclay has committed acts involving moral turpitude which render him an unsafe and improper person to be entrusted with the powers of an attorney at law, as follows, to-wit:

"That the said L. J. Barclay willfully and knowingly at Salt Lake City, Utah, between the 19th day of November, 1929 and the 25th day of November, 1929, received from one C. G. Teerlink the sum of $ 453.00 lawful money of the United States of America, which said money was then and there the property of one J. A. Checketts and which the said L. J. Barclay then and there well knew was the property of said J. A. Checketts, and which said money was to be kept safely by the said L. J. Barclay and to be delivered to the said C. G. Teerlink upon demand; that thereafter, and to-wit, on or about the 30th day of April, 1930, the said C. G. Teerlink demanded from the said L. J. Barclay the redelivery of said sum of money, but the said L. J. Barclay has failed, neglected and refused to return said money to the said C. G. Teerlink and has appropriated the same unlawfully to his own use."

The board of commissioners referred the matter of the charge made against Mr. Barclay to a committee on discipline under the provisions of section 15 of the act above mentioned. Hereafter in this opinion we shall refer to Mr. Barclay as the accused. Upon being cited to appear and plead to the complaint, the accused demurred thereto. The board of commissioners of the Utah State Bar appointed attorneys E. A. Rogers and E. C. Jensen to conduct the prosecution. The demurrer filed by the accused was upon the grounds that the complaint failed to allege sufficient facts to state a cause of action and that subdivision 2 of section 331 had been repealed before the complaint was filed. The demurrer was overruled. Thereupon the accused answered. The answer denied generally the allegations of the complaint, and alleged that the $ 453 was paid to him by Mr. Teerlink as and for attorney's fees. Upon the issues thus joined a hearing was had. At the conclusion of the hearing, the committee found the issues against the accused, and recommended that he "be suspended from the practice of law in the State of Utah and that his license to practice law in the State of Utah be suspended for a period of six months, and until he makes restitution of the aforesaid sum of money, together with interest thereon, to the person entitled thereto, and pay the costs of these proceedings." The transcript of the evidence and the proceedings had before the committee, together with its recommendations, were certified to the board of commissioners. The board approved the findings made by the committee, and made the same recommendations that were made by the committee. The accused has brought the matter to this court for review pursuant to provisions of section 18 of the act.

The demurrer to the complaint was properly overruled. It is true that section 331 was repealed by the act creating the Utah State Bar (Laws of Utah 1931, c. 48, § 23, p. 172). It is quite generally held that the power is inherent in the proper court to discipline, suspend, or disbar an attorney for misconduct, independent of any express provision of a statute conferring such authority. 6 C. J. 582. Such is the doctrine announced by the court in Re Evans & Rogers, 22 Utah 366, 62 P. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794; In re Snow, 27 Utah 265, 75 P. 741; In re Evans, 42 Utah 282, 130 P. 217; In re Platz, 42 Utah 439, 132 P. 390; In re Hilton 48 Utah 172, 158 P. 691, Ann. Cas. 1918A, 271; In re Hanson, 48 Utah 163, 158 P. 778; In re Burton, 67 Utah 118, 246 P. 188. It is also urged by the accused that he is not charged with any infraction of any announced rule of this court, and that therefore the complaint is fatally defective. There is no merit to that contention. The power of this court to discipline or strike from its roll of attorneys one who has been found guilty of improper conduct is not limited to cases where such attorney has been guilty of an infraction of its rules. Independent of statutory law, and independent of rules of court, there has grown up in England and in this country a common-law code of ethics for the guidance of those who are granted permission to engage in the practice of law. An infraction of the rules of conduct established at common law may subject an attorney to suspension or disbarment without regard to whether such conduct is expressly condemned by a statute or by a rule of court. The cases heretofore cited from this jurisdiction in effect support such view. Nor is there any merit to the claim made by the accused that the Utah State Bar commission was without jurisdiction to hear the cause upon the stated ground that the Utah State Bar did not exist at the time of the alleged commission of the acts of misconduct. Prior to the enactment of the law creating the Utah State Bar, this court was vested with authority to mete out punishment to attorneys who were guilty of misconduct in the practice of their profession. That authority under the act remains in this court. Before the act became law, the manner of making an investigation into the alleged misconduct of an attorney was left to the discretion of this court. The procedure provided for in the act is calculated to aid in such investigation. All that the act did as affecting the question urged by the accused was to change or more accurately fix the procedure that should be followed in investigating the conduct of an attorney accused of wrongdoing in his professional capacity. It is elementary law that a newly created method of procedure may be employed in an inquiry into acts of alleged misconduct which occurred prior to the creation of such new procedure.

Touching the merits of the charge made against the accused, the evidence without conflict establishes these facts: The accused is an attorney at law, admitted to practice before this and the other courts of Utah. At the time complained of he resided at, and was engaged in the practice of his profession at, Salt Lake City, Utah. During the month of November, 1929, and for some time prior thereto, the accused was acting as attorney for one C. G. Teerlink. For his services the accused was paid a retainer. At first the retainer paid was merely nominal, but the amount was increased so that at the time complained of the amount of the retainer fee agreed upon was $ 50 per month. C. G. Teerlink was engaged in the management of two apartment houses, one known as the Seagull Apartment which was owned by him, subject, however, to a mortgage in favor of the National Security Corporation; the other apartment house was known as the Stewart-Andrea, which was owned by the National Security Corporation. As manager of the Stewart-Andrea Apartment, Mr. Teerlink collected the rents. From the rents so collected, he paid the running expenses such as coal used for heating and costs of general repairs. The remainder of the rent money was paid to J. A. Checketts, who was the general manager of the National Security Corporation. At the time Mr. Teerlink was employed to manage the Stewart-Andrea Apartment, no definite agreement was had as to his compensation. He was told that he would be paid either in cash or would be given credit on the mortgage which the National Security Corporation held on the Seagull Apartment. On various occasions Mr. Teerlink attempted to secure a definite agreement with and payment by the National Security Corporation of the amount that should be paid him for services as manager of the Stewart-Andrea Apartment. ...