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REPRIMAND
On November 15, 2002, the Honorable James L. Shumate, Fifth Judicial District Court, entered an Order of Discipline: Public Reprimand, reprimanding Douglas D. Terry for
violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a)(Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Terry was retained to
represent a client in a personal injury matter. Mr. Terry prepared and filed a Complaint on behalf of his client, but failed to serve it upon the defendant. The case was dismissed for
failure to prosecute; Mr. Terry refiled it. Mr. Terry received discovery requests from the defendant, but failed to file discovery responses, claiming he could not locate his client,
although the client had provided her new address. The case was eventually dismissed with prejudice against Mr. Terry's client. A few months later, Mr. Terry met his client by chance and
told her that he would attempt to rectify the matter. After that meeting, Mr. Terry did not return his client's telephone calls, or rectify the matter, or compensate her for any errors he
made.
Mitigating factors include: absence of prior record of discipline; absence of dishonest or selfish motive; and remorse.
Mr. Terry also has made restitution to his client.
ADMONITION
On November 5, 2002, an attorney was admonished by the Chair of the Ethics and Discipline Committee for
violation of Rules 1.2(b) (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
In one matter, the attorney was retained to negotiate a settlement in a client's divorce. The fee agreement stated that the client's fee was non-refundable. When the attorney did not
obtain a settlement, the attorney did not alert the client that an answer to the divorce petition needed to be filed, and the attorney did not answer the divorce complaint on behalf of
the client by the deadline. The client received a default notice and immediately went to the attorney's office for advice. The attorney did not advise the client that the attorney would
not attend the default hearing and that the client should attend; an order of default was entered against the client. After the default was entered, the attorney would only agree to
attempt to negotiate the matter for an extra fee. The client retained a new attorney to seek to set aside the default, and eventually reached a settlement with the former spouse. The
attorney refunded the client's fees, and agreed to change the non-refundable clause in future fee agreements.
In another matter, the attorney was retained to represent a client in
a divorce and child custody matter. The attorney's fee agreement stated that the client's fee was non-refundable. The attorney did not keep the client informed about the case and did not
consult with the client about matters as they arose. The parties agreed to hire an independent child custody evaluator but the evaluator was not retained. The attorney failed to keep the
client reasonably informed about the case and to explain the matter to the extent reasonably necessary to enable the client to make informed decisions regarding the appointment of a child
custody evaluator. The attorney also failed to inform the client that the opposing party filed a motion to bifurcate the divorce from the other issues in the case until after the court
granted the motion and the time for an appeal had run.
Mitigating factors include: absence of a prior record of discipline; absence of a dishonest or selfish motive; full and free
disclosure to the client or the disciplinary authority prior to the discovery of any misconduct or cooperative attitude toward proceedings; good character or reputation.
ADMONITION
On November 12, 2002, an attorney was admonished by the Chair of the Ethics and Discipline Committee for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4
(Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney represented a client in a criminal matter. The client entered a guilty
plea and, as advised by the attorney, waived his right to a pre-sentence investigation. After sentencing, the client moved to withdraw the guilty plea. The court ordered an alienist
report. For the next thirty months and despite three court orders, the attorney failed to arrange for and obtain the report. Throughout this time the attorney failed to communicate with
the client, who remained jailed. The client finally requested new counsel and the court, finding ineffective assistance of counsel, granted the request.
ADMONITION
On
November 15, 2002, an attorney was admonished by the Chair of the Ethics and Discipline Committee for violation of Rules 1.3 (Diligence), 3.4 (Fairness to Opposing Party and Counsel), and
8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney was retained to represent a client in a probate matter. The attorney performed work for three
months, but thereafter failed to give the matter the attention it required. When the client attempted to terminate the attorney's services, the attorney convinced the client to continue
the representation. The attorney provided limited services and again stopped giving the matter appropriate attention. The attorney changed employment during representation of this client
and failed to timely and formally withdraw from the client's matter.
Mitigating factors include: absence of a prior record of discipline; absence of a dishonest or selfish motive;
full cooperation with the Office of Professional Conduct; and good character and reputation.
ADMONITION
On November 21, 2002, an attorney was admonished by the Chair of
the Ethics and Discipline Committee for violation of Rules 8.4(a) (Misconduct), 8.4(c) (Misconduct), and 8.4(d) (Misconduct) of the Rules of Professional Conduct.
In summary:
An
attorney was paying alimony to a former spouse, who was involved in a new relationship. The attorney completed magazine subscriptions in the name of the former spouse's new partner,
addressed to the former spouse's home. The attorney did not introduce, or attempt to introduce the magazine subscriptions as evidence during an action concerning alimony; the conduct
served no purpose other than to inconvenience the magazine businesses, the former spouse, and the spouse's partner.
Aggravating factors include: substantial experience in the practice of law.
Mitigating factors include: no prior record of discipline; suffering from personal or emotional
circumstances; demonstrated a cooperative attitude towards the proceedings by admitting to the underlying conduct; good character or reputation in the legal community; and remorse.
DISBARMENT
On December 31, 2002, the Honorable L. A. Dever, Third Judicial District Court, entered an Order of Disbarment, disbarring Mark C. Jahne from the practice of law for
violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.15(a) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 4.4
(Respect for Rights of Third Persons), 8.1 (Bar Admission and Disciplinary Matters), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
In one case, Mr. Jahne was retained to represent a client in a workman's compensation case with the federal government. The client gave Mr. Jahne a retainer of $750. Mr. Jahne did not
provide any meaningful legal services on behalf of the client. Mr. Jahne sent the client a refund check from his trust account, but the trust account check was returned because of
insufficient funds. Mr. Jahne responded to the OPC's investigative letter and indicated that he had repaid the funds and that he did not have a trust account. Subsequently, in a personal
bankruptcy filing, Mr. Jahne listed the money owed to this client as an outstanding debt. The personal bankruptcy filing also indicated that Mr. Jahne had not filed income taxes for
several years.
In another case, Mr. Jahne was opposing counsel in a small claims matter. A settlement agreement had been reached in the case, but as a condition, the defendant was
to provide the address of the defendant's sister so that she could be served with a summons. The defendant provided the information, but the information provided to Mr. Jahne was
incorrect. The defendant immediately attempted to rectify the error. However, despite the earlier agreement, the defendant still was required to appear at court because Mr. Jahne did not
dismiss the suit, although he had sufficient time to do so. At court, Mr. Jahne directed the defendant into the wrong courtroom. The defendant realized the deception and proceeded to the
correct courtroom, however, Mr. Jahne and his client did not appear for the hearing and the matter was dismissed. Mr. Jahne failed to respond to the Office of Professional Conduct's
("OPC's") Notice of Informal Complaint ("NOIC").
In a third case, Mr. Jahne was retained to represent a client in a divorce matter. Mr. Jahne failed to answer
the divorce complaint. As a result, a default judgment was entered against his client. Mr. Jahne entered into a settlement agreement with his client to compensate the client for his loss
due to Mr. Jahne's failure to represent him. Mr. Jahne missed several payments and then stopped paying the client. Mr. Jahne failed to respond to the OPC's NOIC.
Aggravating
factors include: dishonest or selfish motive, pattern of misconduct, multiple offenses, obstruction of the disciplinary proceeding, submission of false evidence, false statements or other
deceptive practices, lack of good faith effort to make restitution or rectify consequences of misconduct, illegal conduct, and substantial experience in the practice of law.Mitigating
factors include: absence of prior discipline.
RESIGNATION PENDING DISCIPLINE
On November 20, 2002, the Honorable Christine Durham, Chief Justice, Utah Supreme Court,
executed an Order Accepting Resignation Pending Discipline concerning Bryan C. Robinson.
In summary:
Mr. Robinson issued checks in his capacity as a licensed insurance agent.
The checks were returned because there were insufficient funds in the Title Escrow Account. Additionally, Mr. Robinson did not properly disburse funds he held in trust. Mr. Robinson
failed to respond in writing to the Office of Professional Conduct's Notices of Informal Complaint concerning ten complaints against him.
ADMONITION
On December 12, 2002,
an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah Supreme Court for violation of Rules 1.5(a) (Fees), 1.7(b) (Conflict of Interest: General Rule),
and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was retained to represent a client to secure a release from prison, or a firm parole date
or parole hearing. The attorney was the managing director of a prison reform corporation. The attorney agreed to hold the client's retainer in trust until research into the merits of the
claim was concluded, and agreed the prison reform corporation would cover some of the legal fees. The client subsequently learned that the attorney was barred from having contact visits
with inmates because the attorney had violated Utah State Prison regulations. The attorney charged the client to lift the attorney's contact restrictions. The prison reform corporation
was not funded and could not contribute to the legal fees. The attorney's ability to represent the client was compromised because of his interest in the prison reform corporation.
ADMONITION
On December 30, 2002, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah Supreme Court for violation of Rules 1.16(d)
(Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney
was retained to represent a client in negotiating a settlement with the IRS or to represent the client at trial. The attorney failed to keep the client advised of notice of a trial, and
did not properly withdraw from the representation. The attorney failed to respond to the Office of Professional Conduct's specific request for information concerning why the client was
not advised of the notice of trial setting.
ADMONITION
On January 6, 2003, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah
Supreme Court for violation of Rules 1.16(d) (Declining or Terminating Representation) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was
retained to represent a client in a criminal matter. The client paid the attorney a fee to cover the case, excluding any appeal. The client entered into a plea agreement, agreeing to
obtain counseling and within six months provide proof of counseling and file a motion to dismiss. The attorney failed to file a motion to dismiss at the end of the six month period and
the court issued an order to show cause. The order to show cause was mailed to the attorney, who forwarded it to the client. The attorney did not appear at the show cause hearing, and
although the client provided proof of counseling, the court ordered a bench trial. During the show cause hearing, the court noted that the attorney was still counsel of record. The
prosecutor prepared an order dismissing the case, which was signed by the judge.
ADMONITION
On January 6, 2003, an attorney was admonished by the Chair of the Ethics and
Discipline Committee of the Utah Supreme Court for violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.16(d) (Declining or Terminating Representation), and 8.4(a)
(Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was retained to represent a client to recover back wages. The attorney filed a complaint on behalf of
the client. The client did not receive any communication from the attorney concerning the status of the case. Approximately one year later, the client contacted the court and learned that
an order to show cause for failure to prosecute had been issued and the case was to be dismissed in one week. On the day the case was dismissed, the attorney filed a response to the
court's order to show cause. One month later, the attorney filed a motion to set aside the dismissal and for a scheduling conference. No opposition was filed to the motion, no notice to
submit for decision was filed, and no further action was taken on the motion. The case remains dismissed and the attorney did not file a withdrawal of counsel.
ADMONITION
On January 6, 2003, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah Supreme Court for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4
(Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) and (d) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was retained to
represent a client to prepare a citizenship application for the client's minor adopted child. Approximately one year later, the attorney told the client the application had been filed and
to wait eighteen to twenty-four months for a reply. The client contacted the attorney nearly three years later to ascertain the status of the application. The attorney advised the client
to contact the Immigration and Naturalization Service ("INS") directly. The INS told the client it had not received the application. The client contacted the attorney, who
agreed to investigate the matter. Thereafter, the attorney failed to return numerous telephone calls from the client. When the client spoke to the attorney, the attorney informed the
client there was nothing to report. The client requested a refund and the return of the file within two weeks. When the refund and file were not returned promptly, the client attempted to
contact the attorney, without success. The client later learned the child became a citizen under the Child Citizenship Act of 2000. The attorney did not inform the client of the new
legislation during their previous telephone conversation. The attorney eventually refunded the retainer fee to the client.
ADMONITION
On January 6, 2003, an attorney was
admonished by the Chair of the Ethics and Discipline Committee of the Utah Supreme Court for violation of Rules 8.4(a) and (d) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney filed an appearance to represent a defendant in a criminal matter pending in Justice Court. The attorney failed to appear at court for a hearing on a motion to
suppress, and failed to request a continuance of the proceedings, or make other alternate arrangements with the court and the prosecutor.
ADMONITION
On January 7, 2003,
an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah Supreme Court for violation of Rules 1.3 (Diligence), 1.4(b) (Communication), 1.5(c) (Fees), 3.2
(Expediting Litigation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was retained to represent a client in a personal injury matter who
was assaulted. The attorney accepted the case for a contingent fee, but did not prepare a written contingency fee agreement. The attorney served a complaint on the employer of the
assailant. The attorney did not timely pursue discovery to identify the assailant. The attorney did not communicate with the client regarding the case status. The attorney allowed the
client's case to be dismissed because of failure to prosecute. Additionally, the attorney did not explain the client's rights to the client to the extent necessary for the client to
properly protect the client's ability to reverse the dismissal.
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