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ADMONITION
On January 10, 2001, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules
1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
The attorney represented a married couple in an adoption matter. During the course of the representation the attorney failed to keep the clients reasonably informed
about the status of their matter. Thereafter, the attorney's law office was closed, but the attorney failed to notify the clients of the attorney's whereabouts.
The attorney abandoned the representation of the clients without taking reasonable steps to protect their interests.
SUSPENSION
On January 23, 2001 the Honorable Leslie A. Lewis, Third District Court, entered Findings of Fact, Conclusions of Law, and Order of Suspension
suspending H. Delbert Welker from the practice of law for thirty days for violation of Rules 1.15(a) and 1.15(b) (Safekeeping Property) of the Rules of
Professional Conduct.
Welker represented three clients in separate personal injury matters. Welker signed written medical reports and doctor's liens ("medical provider lien")
with a chiropractic clinic for medical services provided to the clients; the clients also signed the medical liens. Pursuant to the written medical provider liens,
Welker was directed by the clients "to pay directly" to the chiropractic clinic "such sums as may be due and owing" for "medical service
rendered" to the clients and "to withhold such sums from any settlement, judgement or verdict as may be necessary to adequately protect said
clinic." Neither Welker nor the clients disputed the amount owed to the clinic.
Welker moved his law practice out-of-state and for approximately six months did not have a trust account in Utah for the purpose of holding client and third-party
funds as required by Rule 1.15 of the Rules of Professional Conduct. Welker was able to settle the clients' personal injury matters, and he distributed the
clients' settlement funds by paying himself attorney's fees on a contingency percentage basis and by distributing to the clients their portion of the funds. When
Welker distributed the settlement funds to himself and to the clients, he did not promptly pay the amount owed to the chiropractic clinic for medical services
provided to the clients. When Welker settled the clients' personal injury matters and distributed the settlement funds to himself and to the clients, he did not
promptly notify or account to the chiropractic clinic regarding the funds he was holding for the clinic pursuant to the medical provider liens. Welker did not keep
the complete records of his trust account concerning the settlement funds for the required period of five years after the termination of the representation. Welker
eventually paid all money owed to the clinic on the three client matters. Welker did not receive any additional funds in the three client matters other than the
funds due him for fees and costs. Any funds that were to be paid over to the chiropractic clinic were paid over to the clients. At no time did the chiropractic
clinic seek repayment from the three clients.
ADMONITION
On January 25, 2001, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules
1.7(c) (Conflict of Interest: General Rule) and 1.10 (Imputed Disqualification: General Rule) of the Rules of Professional Conduct.
The attorney represented a client in a divorce action. As part of the divorce action, there were contested issues relating to whether certain pieces of property
were part of the marital estate, and if so, how that property should be divided. One piece of property was in dispute between the client's estranged spouse and
certain of the spouse's business associates. The disputed ownership issue raised questions concerning whether the property would be included in the marital estate
and the value of the property. The divorce court made rulings, including the division of the marital estate property, and awarded a credit to the client of not
less than a specified amount, or one-half of the actual sale price of the property. By the time of the court's ruling, the client had surrendered any interest in
the properties that were in dispute in the litigation, which involved a dispute over the ownership interest that the estranged spouse had in various companies.
Following the divorce, the court's rulings as to the division of the property, and at the divorce court's direction, the attorney began preparing proposed findings
of fact and conclusions of law pursuant to the divorce court's instructions. In its ruling, the court ordered the client's estranged spouse to report to the client
regarding on-going litigation regarding various lawsuits, the results of which might affect the value of property awarded to the client.
Thereafter, the client's estranged spouse approached the attorney's law partner and asked that the partner represent him in two lawsuits, one concerning the
property and another concerning issues involving litigation with a former employer. The attorney informed the client in writing concerning the estranged spouse's
request to retain the attorney's partner in the property and litigation matter. The attorney informed the client that the client's interest was adverse to the
estranged spouse's in the divorce, but that their interests were not adverse in the property and in the other litigation matter because the partner would
essentially be protecting or recovering property from third parties that might be part of the marital estate. The client faxed a letter to the attorney in which
the client stated that until the client and the attorney had an opportunity to discuss the attorney's partner representing the estranged spouse, the client was
opposed to the representation. Six days later the client sent another letter to the attorney's firm in which she conditionally waived any conflict and agreed to
allow the attorney's partner to represent the estranged spouse as long as two conditions were met. The two conditions to the waiver were: (1) that the divorce
litigation be finalized and (2) that the client be kept informed of the progress in the litigation in which the attorney's partner was representing the estranged
spouse. The divorce was not finalized because of unresolved objections to the proposed findings of fact. One of the conditions was not met by the time the partner
began representing the client's estranged spouse, and consequently the client's waiver was not perfected.
Although the client's "interests" were not adverse to the estranged spouse's "interests" in the litigation over the pieces of property, the
client was an adverse party in a separate matter. Rule 1.7(c) is not based on an "interest" analysis but rather strictly on an "adverse
parties" analysis.
ADMONITION
On January 25, 2001, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules
1.7(c) (Conflict of Interest: General Rule) and 1.10 (Imputed Disqualification: General Rule) of the Rules of Professional Conduct.
The attorney's law partner represented a client in a divorce action. As part of the divorce action, there were contested issues relating to whether certain pieces
of property were part of the marital estate, and if so, how that property should be divided. One piece of property was in dispute between the client's estranged
spouse and certain of the spouse's business associates. The disputed ownership issue raised questions concerning whether the property would be included in the
marital estate and the value of the property. The divorce court made rulings, including the division of the marital estate property, and awarded a credit to the
client of not less than a specified amount, or one-half of the actual sale price of the property. By the time of the court's ruling, the client had surrendered any
interest in the properties that were in dispute in the litigation, which involved a dispute over certain ownership interests that the estranged spouse had in
various companies. Following the divorce, the court's rulings as to the division of the property, and at the divorce court's direction, the attorney began
preparing proposed findings of fact and conclusions of law pursuant to the divorce court's instructions. In its ruling, the court ordered the client's estranged
spouse to report to the client regarding on-going litigation regarding various lawsuits, the results of which might affect the value of property awarded to the
client.
Thereafter, the client's estranged spouse approached the attorney and requested representation in two lawsuits, one concerning the property and another concerning
issues involving litigation with a former employer. The attorney's partner informed the client in writing concerning the estranged spouse's request to retain the
attorney in the property and litigation matter. The partner informed the client that the client's interest was adverse to the estranged spouse's in the divorce,
but that their interests were not adverse in the property and in the other litigation matter because the partner would essentially be protecting or recovering
property from third parties that might be part of the marital estate. The client faxed a letter to the attorney's law partner in which the client stated that until
the client and the law partner had an opportunity to discuss the attorney representing the estranged spouse, the client was opposed to the representation. Six days
later the client sent another letter to the attorney's firm in which she conditionally waived any conflict and agreed to allow the attorney to represent the
estranged spouse as long as two conditions were met. The two conditions to the waiver were: (1) that the divorce litigation be finalized and (2) that the client be
kept informed of the progress in the litigation in which the attorney's partner was representing the estranged spouse. The divorce was not finalized because of
unresolved objections to the proposed findings of fact. One of the conditions was not met by the time the attorney began representing the client's estranged
spouse, and consequently the client's waiver was not perfected.
Although the client's "interests" were not adverse to the estranged spouse's "interests" in the litigation over the pieces of property, the
client was an adverse party in a separate matter. Rule 1.7(c) is not based on an "interest" analysis but rather strictly on an "adverse
parties" analysis.
ADMONITION
On January 29, 2001, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 8.4(d)
(Misconduct) of the Rules of Professional Conduct.
The attorney represented the plaintiff in a personal injury matter stemming from an automobile accident. The client reached a settlement of the personal injury
claim with the defendant driver's ("driver") insurance carrier. Prior to the settlement agreement, the client's insurance company notified the driver's
insurance carrier of its subrogation claim for personal injury protection ("PIP") payments made to the client. The client's settlement amount was to
include a payment to the client's insurance carrier for the PIP payments paid to the client.
The client's insurance carrier informed the attorney that it would be handling its subrogation claim directly through arbitration with the driver's insurance
carrier. In a letter to the driver's insurance carrier the attorney confirmed the settlement amount and indicated that the client recognized the client's insurance
carrier's subrogation claim. The client executed a release in the amount of the settlement. The driver's insurance carrier informed the client's insurance carrier
that its interest had been protected by including its name in the settlement draft along with the attorney's and the client's names. The driver's insurance carrier
issued two checks in accordance with its settlement agreement with the client. One check was made payable to the attorney, the client and the client's insurance
carrier; the second check was made payable to the attorney and the client to cover the balance of the settlement. The attorney, on behalf of the client, alleged
that the settlement had not made the client whole and notified the client's insurance carrier that he felt it should not receive the total amount for its lien for
PIP payments provided. The client's insurance carrier disagreed, and refused to negotiate directly with the client regarding its subrogation claim. The attorney
returned the disputed check to the driver's insurance carrier and requested that a new check be issued without the client's insurance carrier as a payee. The
driver's insurance carrier refused to issue a new check and returned the disputed check to the attorney. Thereafter, while the attorney had possession of the
check, someone endorsed the check with the words: [CLIENT'S INSURANCE CARRIER], PER LTRS 3/31/95 - 12/8/95, and deposited the check into the attorney's trust
account, where it remained until the attorney deposited it into the court in litigation initiated by the client's insurance carrier. When the attorney negotiated
the check, the attorney notified the client's insurance carrier that funds would be held in trust until the dispute was resolved.
ADMONITION
On February 2, 2001, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.1
(Competence), 1.3 (Diligence), 1.5 (Fees), 3.2 (Expediting Litigation), 8.1 (Bar Admission and Disciplinary Matters), 8.4(a) (Misconduct), and 8.4(d) (Misconduct)
of the Rules of Professional Conduct.
The attorney represented a client in a termination of parental rights matter. A four day trial was scheduled. On two of the first four days of trial, the attorney
was fifteen to twenty minutes late for the beginning of trial, and late returning after the lunch recesses. On each day the attorney failed to alert the court to
any need for such delays. The court continued the remaining days of the trial to approximately one month later. On the day set to begin the trial, the attorney
failed to appear and did not call the court to explain the absence. The trial began in the attorney's absence. The client had flown in from out-of-state and was
present. Another attorney involved in the matter located the attorney and reported the attorney's whereabouts to the court. The attorney claimed to be in another
court. The judge's clerk attempted to reach the attorney, but was unable to do so. Eventually, the judge was able to reach the attorney who offered a series of
contradictory explanations for being absent from the trial. The attorney's failure to appear forced the judge to declare a mistrial. The court ordered the attorney
removed from the case, and ordered the attorney to reimburse the client for any fees paid. The attorney reimbursed the fees paid.
Mitigating factors include: imposition of other penalties and sanctions.
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