MacFarlane, In re, 9051

• Decision Date: 01 April 1960
• Docket Number: No. 9051,9051
• Parties: d 217 In re Grant MACFARLANE, Sr., Disciplinary Proceeding, Utah State Bar.
• Court: Utah Supreme Court

Page 631

350 P.2d 631

10 Utah 2d 217

In re Grant MACFARLANE, Sr., Disciplinary Proceeding, Utah

State Bar.

No. 9051.

Supreme Court of Utah.

April 1, 1960.

John H. Snow, Salt Lake City, for plaintiff.

Edward W. Clyde, Ray R. Christensen, Ned Warnock, Salt Lake City, for defendant.

PER CURIAM.

Complaint was made to the Utah Bar Association charging respondent Grant Macfarlane, 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. Macfarlane 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 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-third 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, surpa. 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 circumstances 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 all citizens, 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. 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.

WADE, Justice (dissenting).

The recommendation by the Bar Commission is based on our affirming the trial court's finding of fraud and undue influence in a will contest case of In re Swan's Estate ¹ where there is a more detailed statement of the case.

There we held that '[W]here a confidential adviser is made the beneficiary in a will, receives gifts or possible benefits from transactions with the person who relies on his advice and counsel on such matters in the making or execution of which he actively participates, a presumption of fraud and undue influence arises, which shifts the burden of persuading the trier of the fact that there was no fraud or undue influence.' Based thereon we affirmed trial court's finding against Macfarlane although we held that there was no substantial evidence against him. Thus holding that the contestant had no burden to produce substantial evidence as long as the trial court was not convinced that he was free from fault. We further held that the basic facts which created this presumption, namely, that Macfarlane as attorney and confidential adviser drew Wilda Gail Swan's will bequeathing to him about $100,000 worth of property, which is much more than she left to her sister and sole heir, Theo Swan Hendee, was some evidence of fraud and undue influence for they showed motive and opportunity for him to overreach her. We further held that this was speculative and not substantial evidence of his fault, and if the burden of persuasion were not shifted to him a finding against him on that question would have been beyond the bounds of reason. We further noted that since at the time of the trial the testatrix was dead and unable to give her version of their dealings, he held a decided advantage over the contestant in the production of evidence of what occurred between them. In other words, he could fabricate a story of their dealings without fear of direct contradiction. We concluded that without the shift of the burden of persuasion by the presumption from the contestant to Macfarlane the case would have been reversed. We also held that Macfarlane's own testimony supported by independent testimony of corroborating...