In Re McCullough , 97 Utah 533 ( 1939 )

I concur generally with what has been stated in the prevailing opinion. There is, however, one part with which I do not agree, that appeals to me of sufficient importance to justify comemnt. That is the treatment of the Sutfin case.

It, I believe, should not be treated as one of unprofessional conduct by solicitation. McCullough knew nothing of this case until the desires of Mrs. Sutfin, or what were said to be her desires, were relayed to him over the phone by Mr. Lingenfelter. The evidence justified a conclusion on his part that she did wish to see him. She had waited quite some time at St. George, Utah. He was delayed, and, as a result, arrived after her departure. Plaintiff was chided by Mr. Lingenfelter for being so late. It was the latter who suggested the telephone call to Las Vegas, Nevada, to have Mrs. Sutfin notified to await McCullough's arrival. That the Nevada sheriff misunderstood Lingenfelter's call or that Lingenfelter gave the sheriff the wrong information which led to an erroneous arrest of Mrs. Sutfin, should not be charged to McCullough as evidence of an intent on his part to force himself upon her. It does not appear that she was antagonistic to him when he arrived in Las Vegas. She was unsettled as to what to do until she consulted her counsel in Arizona. Plaintiff was not then employed. He returned home, and later wrote the letter quoted in the prevailing opinion. McCullough was not the moving party in this case. He carried out the requests and suggestions of others who had had contact directly or indirectly with Mrs. Sutfin. There is nothing to show any relationship between Lingenfelter and McCullough except friendship.

I do not, however, uphold his letter. Whether carelessly or intentionally so worded, it strongly conveys improper suggestions as to the status of attorney Pickett. It is quite apparent how it would easily undermine any possible consideration of the latter by Mrs. Sutfin. That the reference to Mr. Pickett is in the form of information coming from another does not excuse it. The necessity for including any reference to another attorney was so minor as compared with its harmful potentialities, that it is not to be wondered one considers it with skepticism. Whether uttered or written in solicitation of a case, or under circumstances where the client sought the attorney, it is equally subject to a severe censureship. But it alone should not necessarily make that solicitation which, without it, is not. Aside from this reference to Mr. Pickett, the letter expresses no more than might well be expressed between an attorney and a prospective client who have met at the client's suggestion to determine whether the attorney shall be employed.

The case of Fish v. State Bar of California, 214 Cal. 215,4 P.2d 937, cited in the prevailing opinion, gives good examples of solicitation, personally, as well as through an agent. But those facts do not fit the subject matter of this discussion.