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Discipline Corner
With this issue of the Utah Bar Journal, the Utah State Bar's Office of Professional Conduct resumes its publication of the discipline summaries in the monthly feature denominated the
"Discipline Corner." Publication of the Discipline Corner ceased in 1999, pending resolution of a defamation action brought against the Utah State Bar by Gary W. Pendleton. The
case was recently resolved in favor of the Bar through an interlocutory appeal to the Utah Supreme Court, and the Discipline Corners will once again be published on a regular basis. See
Pendleton v. Utah State Bar, 2000 UT. 77.
Members should be aware that the Discipline Corner summaries are intended not only to alert members of the Bar and Bench that a particular lawyer has been disciplined, but also to help
educate others as to potentially problematic conduct. The entries are, of necessity, summaries, and readers are cautioned that individual cases differ in their particular details and in
the weight accorded aggravating and mitigating circumstances.
PUBLIC REPRIMAND
On June 3, 1999, the Honorable J. Dennis Frederick, Third Judicial District Court, entered an Order of Reprimand reprimanding Dwight J. Epperson for violation of Rules 1.1 (Competence),
1.2 (Scope of Representation), 1.4 (Communication), 1.5 (Fees), 1.7 (Conflict of Interest: General Rule), 1.8 (Conflict of Interest: Prohibited Transactions), and 8.4 (Misconduct) of the
Rules of Professional Conduct.
Epperson was retained to represent a client in an attempt to have a trustee removed from a trust of which the client was a contingent beneficiary. Epperson was successful in having the
trustee removed and was appointed as successor trustee. The trust assets were primarily a house which had been the client's late father's home, and the client lived in the house.
To allow the client to remain in the house, Epperson recommended that the client borrow against the equity in it, so that there would be cash available to pay the client's monthly living
expenses. The client could not work and was later determined to be disabled, after which she received social security payments as her only source of income other than monthly payments
from the trust.
When there were no liquid assets in the trust and the client's social security income was insufficient for her basic needs, Epperson negotiated a loan for $20,000 at 10% interest per
annum. The lenders were Epperson's mother-in-law and father-in-law. The terms of the loan were unfair and not beneficial to the trust, and the sale price was below market value. As part
of the loan arrangement, the lenders obtained an option to purchase the house, and after two years, the lenders exercised the option. Epperson did not obtain a written waiver of any
conflict of interest regarding the sale of the house to his in-laws, and did not tell the client to seek independent counsel regarding the loan arrangement. After Epperson's in-laws
exercised their option, the client was forced to move from the house.
During his tenure as trustee and his continued representation of the client, Epperson also made loans from the trust assets to his family's limited partnership and to other clients for
personal and business expenses. The borrowers repaid these loans from the trust with interest ranging from 8% to 12% interest per annum. The interest income on all loans made by Epperson
to himself, his friends, and his family never exceeded $600 per year. The Office of Professional Conduct found no evidence indicating that Epperson misappropriated trust assets for
personal and business use.
Subsequent to the client filing a Bar complaint and a Screening Panel of the Ethics and Discipline Committee voting that there was probable cause for public discipline in this matter,
attorneys for the client and Epperson negotiated a civil settlement which resulted in the sale of the house by Epperson's in-laws. The sale proceeds were given to the client as part of
the settlement. Epperson also provided a full accounting of trust assets and his billing for legal services.
Mitigating circumstances include: absence of prior record of discipline; timely good faith effort to make restitution or to rectify the consequences of the misconduct; inexperience in
trust management; good character and reputation; imposition of other penalties or sanctions; and remorse.
ADMONITION
On June 3, 1999, 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), and 1.4
(Communication) of the Rules of Professional Conduct.
The attorney was hired to represent a client in a family law matter. Thereafter, the attorney failed to competently perform services on behalf of the client, failed to diligently represent
the client, and failed to adequately communicate with the client.
PUBLIC REPRIMAND
On June 10, 1999, the Honorable Glenn Iwasaki, Third Judicial District Court, entered an Order of Reprimand reprimanding Kathryn Collard for violation of Rules 3.4(a), (c), (d), and (f)
(Fairness to Opposing Party and Counsel), 4.1 (Truthfulness in Statements to Others), and 8.4(d) (Misconduct) of the Rules of Professional Conduct.
Collard represented a client in federal litigation involving the termination of the client's employment. The employer fired the client allegedly because she could not perform her duties as
a result of having multiple sclerosis. Collard also represented the client in a medical product liability class action lawsuit. As part of the class action, the client was evaluated by a
neurologist, whose report stated that the client was disabled. This report was to establish the client's qualification for a class settlement in the medical product liability case.
In the employment action, Collard and opposing counsel held an attorney's planning meeting pursuant to the Federal Rules of Civil Procedure. Collard stated that she would produce, as part
of her required initial disclosures, all medical records pertaining to her client's multiple sclerosis condition. Following the meeting Collard and opposing counsel prepared and filed a
report that provided that Collard would produce "medical records from date of plaintiff's last work day for defendant."
Thereafter, Collard failed to produce the neurologist's report. Opposing counsel sent a letter to Collard requesting a supplemental production of her client's current medical records prior
to taking the client's deposition, but Collard failed to produce any further medical records. The opposing party issued a subpoena duces tecum requiring Collard's client to produce at the
deposition all medical records in her possession or control. At the deposition, the client said she had seen no other doctors for any conditions. Following the client's deposition,
opposing counsel served a request for production of documents asking Collard's client to produce all medical records from any source for a specified period of time. Collard filed a
response on behalf of her client stating that her client had produced all of the medical records in her possession.
The opposing party discovered that Collard had previously mentioned the neurologist's report to an employee of the opposing party, but Collard had stated the report stated the client was
without disability.
After being given notice that opposing counsel had subpoenaed the medical records of the neurologist who treated the client, Collard spoke with the neurologist's secretary and requested
that a certain letter from the neurologist to Collard not be produced in response to the subpoena. The opposing party filed a Motion for Sanctions in Federal District Court and the court
sanctioned Collard.
Mitigating circumstances include: absence of prior record of discipline; imposition of other penalties or sanctions; and remorse.
ADMONITION
On June 30, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.7 (Conflict of Interest: General Rule), 1.8
(Conflict of Interest: Prohibited Transactions), and 3.7 (Lawyer as Witness) of the Rules of Professional Conduct.
The attorney represented a client in litigation involving the development of real property. A dispute arose between the client and another person regarding the real estate development,
including whether a partnership existed. The attorney also represented a corporate entity of which his client was an officer and which was a third party defendant in the litigation.
At some point the client needed money to complete the real estate development project and was unable to obtain institutional funding. The client asked the attorney if the attorney knew of
any source to obtain a loan that would facilitate completing the development project. The attorney referred the client to a Limited Liability Corporation ("LLC") of which the
attorney was a member. The LLC issued a construction loan to the client and his wife, secured by a trust deed on the property.
The attorney gave the client and his wife a letter regarding a potential conflict of interest, including a reference to Rule 1.7(b) of the Rules of Professional Conduct. The letter also
advised the client to consult with other counsel regarding the loan transaction. The client and his wife waived the potential conflict of interest as disclosed to them in the letter and
also waived an independent legal consultation.
Eventually, the client defaulted on the loan and the development company foreclosed on the trust deed on the property. At that point, the attorney acknowledged that an actual conflict of
interest existed and withdrew as counsel for the client.
ADMONITION
On July 12, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.15(a) and (c) (Safekeeping Property) and
8.4(a), (b), and (c) (Misconduct) of the Rules of Professional Conduct.
The attorney acted as a title agent for a title insurance company, and was to collect insurance premiums and remit thirty percent of the premiums within thirty days. The attorney received
funds in which the client had an interest, but failed to promptly notify it of their receipt. The attorney failed to promptly deliver to the client funds to which it was entitled and
failed to promptly render a full accounting for the funds being held in trust.
After being contacted by the Office of Professional Conduct, the attorney paid the outstanding title insurance premiums to the client and provided it with an accounting. At all times, the
attorney held the funds in a trust account and the balance of the account remained in excess of the amount owed to the client.
DISBARMENT
On July 16, 1999, the Honorable Homer F. Wilkinson, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Judgment of Disbarment disbarring Bruce J. Udall from
the practice of law for violation of Rules 1.15(a), (b), and (c) (Safekeeping Property) and 8.4(a) and (c) (Misconduct) of the Rules of Professional Conduct.
Udall misappropriated client funds and converted them to his own use.
The court found the following aggravating circumstances: prior record of discipline; dishonest or selfish motive; pattern of misconduct; multiple offenses; obstruction of the disciplinary
proceedings by intentionally failing to comply with rules or orders of the disciplinary authority; refusal to acknowledge the wrongful nature of the misconduct involved; substantial
experience in the practice of law; lack of good faith effort to make restitution or to rectify the consequences of the misconduct involved; and illegal conduct.
DISBARMENT
On July 21, 1999, the Honorable Darwin C. Hansen, Second Judicial District Court, entered Findings of Fact, Conclusions of Law, and Judgment of Disbarment disbarring David Y. Payne from
the practice of law for violation of Rules 8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
Payne was charged with two second-degree felony counts of giving false or inconsistent statements in both deposition and trial testimony. The charges were reduced to two class A
misdemeanors alleging an "attempt," to which Payne pled guilty on April 3, 1998.
On December 10, 1998, Payne was placed on interim suspension pursuant to Rule 19, Rules of Lawyer Discipline and Disability.
The court concluded that Payne knowingly and intentionally engaged in professional misconduct as defined in Rules 8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional
Conduct and that the criminal acts reflected adversely on Payne's honesty, trustworthiness, or fitness as a lawyer. The court further concluded that when Payne knowingly and intentionally
engaged in professional misconduct, he did so with the intent to benefit himself and to deceive the court, and his misconduct caused serious or potentially serious harm to a party and the
legal system and caused serious or potentially serious interference with a legal proceeding as defined in Rule 4.2(a), Standards for Imposing Lawyer Sanctions.
The court found the following aggravating circumstances: prior record of discipline; dishonest or selfish motive; a pattern of misconduct; multiple offenses; refusal to acknowledge the
wrongful nature of the misconduct involved; substantial experience in the practice of law; lack of good faith effort to make restitution or to rectify the consequences of the misconduct
involved; and illegal conduct.
The court found the following mitigating circumstances: personal or emotional problems; good character or reputation; imposition of penalties or sanctions; and remorse.
DISBARMENT
On July 26, 1999, the Honorable Frank G. Noel, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Judgment of Disbarment disbarring Robert A. Bentley from the
practice of law and ordering him to pay restitution for violations of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.7
(Conflict of Interest: General Rule), 1.15(a) and (b) (Safekeeping Property), 1.16(a) and (d) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 3.4(c) (Fairness to
Opposing Party), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
Bentley was retained to represent two clients in an eviction matter. Bentley failed to accomplish the eviction and failed to pursue the appropriate remedies. Bentley's check covering the
filing fee for the clients' Complaint was returned for insufficient funds, causing the filing to be deemed ineffective. Bentley failed to communicate with the clients and abandoned his
representation of them without taking steps reasonably practicable to protect their interests. Bentley's failure to expedite the litigation in the eviction matter ultimately resulted in
the dismissal of the case for failure to prosecute. Bentley failed to respond to the Office of Professional Conduct's requests for information concerning this matter and failed to appear
for the Screening Panel hearing.
Bentley was retained to represent two clients in a wage and compensation claim against one of the client's brothers while representing the brother in a divorce action, without obtaining
the clients' consent thereto. Bentley drafted and filed an inaccurate Complaint and misrepresented to the clients the status of their case. Bentley "misplaced" funds given to
him by the clients' former employer, which were intended to be forwarded to the clients. Bentley failed to communicate with the clients.
Bentley was retained to represent a client in obtaining the return of property held in pawn. Bentley failed to obtain the property, and failed to return funds the client had given him to
redeem the property. Bentley failed to return the client's telephone calls and terminated the representation without taking steps reasonably practicable to protect the client's interests.
Bentley failed to respond to the OPC's requests for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley was retained to represent a client seeking an annulment. Bentley misrepresented to the client that the annulment papers had been filed, when in fact they had not. Bentley failed to
return the client's telephone calls and failed to return the money paid to him by the client, despite the client's demand that he do so. Bentley failed to respond to the OPC's requests
for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley was retained to represent a client in a quiet title action. Bentley failed to timely file an Answer on the client's behalf, failed to timely respond to discovery, and failed to
respond to the opposing party's Motion for Summary Judgment, which was granted by the court. Bentley's inaction resulted in the loss of the client's property. The client was unable to
communicate with Bentley for long periods and Bentley abandoned the representation without taking steps reasonably practicable to protect the client's interests. Bentley failed to return
the client's retainer fee, despite having failed to earn it.
Bentley undertook representation of a client when the client's initial attorney became incapacitated. Bentley received funds, belonging to the client and intended for use in a settlement,
from the client's initial counsel. Bentley cashed the check and failed to apply the funds to the settlement. Bentley failed to respond to the OPC's requests for information concerning
this matter and failed to appear for the Screening Panel hearing.
Bentley was retained to represent a client in obtaining a restraining order. Thereafter, the client instructed Bentley to desist working on her case, but Bentley ignored her communications
and failed to withdraw. Bentley failed to provide a statement of the amount of time he spent on the client's case and failed to return the unused portion of the retainer fee upon request.
Bentley failed to communicate with the client. Bentley failed to respond to the OPC's requests for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley failed to complete the domestic law matters for which a client had retained him and failed to appear for a hearing scheduled in the client's case. Bentley failed to return the
client's telephone messages, and failed to respond to a letter from the client. Bentley abandoned the representation while a court matter was pending without taking steps reasonably
practicable to protect the client's interests. Bentley failed to respond to the OPC's requests for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley undertook representing a client in a personal injury action, but failed to rapidly file and serve the Complaint, contrary to the client's instructions. Bentley failed to file the
Complaint until seventeen months after he undertook the representation, and failed to serve it until six months after it was filed. Bentley failed to respond to the OPC's requests for
information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley undertook representing a client in a child custody action, but failed to provide any meaningful legal services. Bentley failed to communicate with the client. Bentley failed to
respond to the OPC's requests for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley represented one of the parties in a paternity action. Bentley failed to obey several court orders requiring him to prepare proposed findings of fact and conclusions of law. Bentley
abandoned the representation without taking steps reasonably practicable to protect the client's interests. Bentley failed to respond to the OPC's requests for information concerning this
matter and failed to appear for the Screening Panel hearing.
Bentley failed to diligently provide meaningful legal services to a client in connection with settling claims made against her by various medical care providers, and in investigating a
possible malpractice action against her former attorney. Bentley failed to respond to the client's request for an accounting and misappropriated the unearned portion of the legal fees the
client paid him. Bentley failed to respond to the OPC's requests for information concerning this matter and failed to appear for the Screening Panel hearing.
Bentley failed to provide meaningful legal services to a client in connection with the client's child support matter. Bentley failed to inform the client of a settlement offer from the
opposing party. Bentley failed to respond to the client's request for an accounting of his services and the amount the client paid him. Bentley failed to respond to the OPC's requests for
information concerning this matter and failed to appear for the Screening Panel hearing.
Additionally, Bentley failed to pay court-ordered restitution, and continued to practice law in violation of an Order of Interim Suspension.
ADMONITION
On August 31, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 8.1(b) (Bar Admission and Disciplinary
Matters) of the Rules of Professional Conduct.
The Office of Professional Conduct received a complaint against the attorney and wrote to the attorney on three separate occasions requesting a response to the allegations. The attorney
belatedly responded to these requests. Thereafter, the OPC wrote to the attorney requesting specific information related to the complaint, but the attorney failed to respond.
ADMONITION
On September 10, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 1.4 (Communication) of the Rules of
Professional Conduct
The attorney was hired to represent a client in a bankruptcy action. The client told the attorney that the client wanted to reaffirm several of her debts. The attorney did not advise the
client to the extent reasonably necessary to enable the client to make informed decisions regarding the client's case, and did not reaffirm the debts the client wanted reaffirmed.
DISBARMENT
On September 14, 1999, the Honorable Timothy R. Hanson, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Judgment of Disbarment disbarring Jamis M. Johnson
from the practice of law for violation of Rules 1.15(a), (b), and (c) (Safekeeping Property) of the Rules of Professional Conduct.
The court found that Johnson intentionally misappropriated client funds. Johnson held the client's funds in a trust account. Johnson attempted to deliver the funds to the client but the
funds were returned to Johnson. There was a dispute about the settlement into which Johnson had entered on behalf of the client, and the client advised Johnson he could do as he wished
with the funds. Johnson agreed to hold the client's funds in trust pending a resolution of the dispute. Thereafter, the client requested return of the funds, but Johnson did not return
them. Johnson converted his client's funds for his own use. The court found that the removal of the funds belonging to the client from the trust account constituted misappropriation.
The court found the following mitigating factors: no prior record of discipline and good character or reputation. The court found that the mitigating circumstances were not sufficient to
warrant something less than disbarment.
Note: This matter is presently on appeal and cross-appeal to the Utah Supreme Court. The District Court stayed Johnson's disbarment pending appeal; the OPC has appealed the stay of
judgment pending appeal.
DISBARMENT
On September 23, 1999, the Honorable Guy R. Burningham entered a Default Judgment and Judgment of Disbarment disbarring James L. Thompson from the practice of law for violation of Rules
8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
On December 17, 1998, Thompson was found guilty on three counts of felony tax evasion for knowingly and intentionally filing false tax returns with the State of Utah.
The court found that Thompson knowingly and intentionally filed false tax reports with the State of Utah, conduct which involved serious criminal conduct involving dishonesty, fraud,
deceit, and misrepresentation. In committing these acts, Thompson violated Rules 8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
The court further found that Thompson's acts reflect adversely on his honesty, trustworthiness and fitness to practice law and disbarment is the appropriate and the presumptive discipline
in this matter as described in the Standards for Imposing Lawyer Sanctions, Rules 4.2(a), (b), and (c).
ADMONITION
On October 31, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 5.1 (Responsibilities of a Partner or
Supervisory Lawyer) of the Rules of Professional Conduct.
An associate attorney of the law firm of which the attorney was the principal was retained to represent a couple in a custody modification matter. The couple's relationship with the
associate and the law firm deteriorated and they unsuccessfully attempted to reach the associate for approximately one month. The attorney eventually informed the couple that the
associate would no longer represent them.
The attorney assured the clients that the matter would be investigated and they would be contacted. Despite three visits to the law firm, the clients were unable to obtain their file until
approximately two months later, and at that time were only given a partial copy of it.
Although the attorney met with the associate and instructed the associate to return the file to the couple, the associate did not do so. The associate later informed the attorney that the
associate had returned the file, but the attorney did not contact the clients to verify that this was the case.
Mitigating circumstances include: lack of dishonest or selfish motive and cooperative attitude toward the disciplinary
proceedings.
Aggravating circumstances include: substantial experience in the practice of law.
SUSPENSION
On November 2, 1999, the Honorable Leslie A. Lewis, Third Judicial District Court, entered an Order of Suspension suspending David R. Maddox for a period of three years for violation of
Rules 1.15 (Safekeeping Property) and 8.4(a), (b), and (c) (Misconduct).
Maddox was a partner in a law firm. The firm discovered that Maddox misappropriated client funds for his own use and confronted him about it. Maddox acknowledged wrongdoing. The day after
the firm confronted him, Maddox contacted the Office of Professional Conduct and informed it he had misappropriated funds.
The OPC believed that even though the presumptive level of discipline was clearly disbarment in this case, the mitigating factors were sufficiently substantial and compelling to warrant a
downward departure from the presumptive discipline.
ADMONITION
On November 25, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 1.4 (Communication) of the Rules of
Professional Conduct.
The attorney was appointed to represent someone in an appeal of a criminal conviction. The attorney requested and received an extension of time in which to file the appeal for the purpose
of meeting with the client to discuss the matter. The attorney subsequently failed to meet with the client.
While preparing an appellate brief, the attorney determined that the client's concerns regarding ineffective assistance of counsel had no good faith basis. The attorney decided to argue
the appeal on a different basis, but failed to inform the client of this decision. The attorney failed to adequately communicate with the client throughout the appeal.
In a second matter, the attorney was appointed to represent someone in an appeal of a criminal conviction. The attorney was provided a copy of the client's Petition for Extraordinary
Relief and began researching the issues raised in it. During the course of conducting legal research, the attorney was unable to find case law in support of the client's Petition. The
attorney failed to contact the client prior to an evidentiary hearing to inform the client of the results of the legal research and the attorney's position that there existed no good
faith basis to pursue the Petition. At the evidentiary hearing the attorney informed the court and the client that no good faith argument could be made to support the client's Petition.
The court granted the government's Motion to Dismiss. The attorney failed to afford the client an opportunity to take whatever steps the client felt were necessary to protect his
interests.
Mitigating circumstances include: absence of a dishonest or selfish motive; cooperative attitude towards proceedings; inexperience in habeas corpus proceedings.
ADMONITION
On November 25, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 3.2 (Expediting Litigation) of the Rules of
Professional Conduct.
The attorney represented a client in a divorce action in which a third party attempted to intervene. The attorney failed to respond to numerous written and oral communications from counsel
for the third party.
ADMONITION
On December 20, 1999, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 8.4(g) (Misconduct) of the Rules of
Professional Conduct.
The attorney agreed to represent a client pro bono in a divorce matter. The attorney and client later engaged in sexual relations. The sexual relationship was brief and began at the urging
of the client; the attorney later terminated the sexual relationship with the client. The professional relationship continued for approximately six weeks.
The attorney's professional performance was not affected by the affair; nevertheless, it may have adversely affected the working relationship between the client and the attorney because
the attorney may have lost the ability to advise and counsel the client effectively.
Mitigating circumstances include: absence of prior record of discipline; cooperative attitude toward proceedings; good character and reputation; and remorse.
SUSPENSION
On January 31, 2000, the Honorable Homer F. Wilkinson, Third Judicial District Court, entered an Order of Suspension suspending Alan E. Barber for three years for violation of Rules 1.1
(Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.7(b) (Conflict of Interest: General Rule), 1.8(a) (Conflict of Interest: Prohibited
Transactions), 1.16(a), (b), and (d) (Declining or Terminating Representation), 3.7(a) (Lawyer as Witness), 4.4 (Respect for Rights of Third Persons), and 8.4(a) and (d) (Misconduct) of
the Rules of Professional Conduct.
Barber was retained to represent a client in divorce proceedings. He assured the client the divorce should only take six months to complete and would only cost $1000. The divorce took
substantially longer than one year, and Barber charged the client more than $12,760. The major property of the marriage was a house, which ended up in foreclosure as a result of Barber's
advice to the client. Barber advised the client not to make payments on the house because it was part of the dispute. When the house was sold, the couple had to pay back payments,
attorney's fees, and foreclosure costs. Barber did not keep the client informed of the progress of the case or of the foreclosure. Barber delayed filings with the court because of a
dispute over the amount of his legal fees. Barber additionally failed to keep the client advised of what was happening with the client's claim on her husband's 401k plan.
Barber represented a client in a divorce/annulment/separate maintenance matter. During the course of the representation, Barber had an inappropriate and perhaps sexual relationship with
his client and that relationship caused many difficulties in the legal matter.
Barber was retained to assist a client in preparation of immigration documents for four of the client's employees. Barber was paid a retainer. After one week the client determined that he
did not want Barber to represent the employees, and advised Barber that he had hired another lawyer. Barber told the client that the law firm would return the retainer because he had not
begun work on the matters. Thereafter Barber failed to return the unearned fees.
Barber was retained to represent several clients in immigration matters. In one case, Barber filed a Notice of Appearance and on that date the case was set over for a hearing on the merits
and a deadline was set for filing a suspension application. Barber did not file a suspension application, nor did he appear at the scheduled hearing. The client tried to contact Barber by
telephone but received a recorded message stating that Barber was ill. The client was required to proceed with his case, the asylum application was denied, and the client was granted
voluntary departure. In another case, Barber filed a Notice of Appearance and the case was set for a hearing. Barber did not appear for the hearing. The client stated that he tried to
reach Barber for three days but was unable to, and was informed that Barber was sick and that a family member had died. The client indicated to the judge that Barber had not spent any
time with him to prepare for the hearing. The client was required to proceed with his case, the asylum application was denied, and the client was granted voluntary departure. The judge
received a detailed response from Barber explaining the circumstances, and felt the response was satisfactory. After Barber failed to appear for three more hearings with other clients,
the judge wrote to him, asking Barber to respond within thirty days. Barber never responded.
Barber was retained to represent a family in an asylum case before the Immigration Court. During the course of the representation, Barber failed to prepare for the hearing, failed to
communicate with the clients regarding their asylum applications, and lied to them when he told them that they would qualify for a new amnesty. Barber failed to appear for their hearing
and when the judge and the government attorney tracked him down by phone, Barber advised that they were "just pro bono clients" and he had a criminal trial in another state.
Barber was retained to assist a client in the asylum process and to file for suspension of deportation before the Immigration Court. Each time the client made a payment to Barber, Barber
claimed he did not have the time or the paper to write the client a receipt, saying he would provide one later. Barber attended the first court appointment with the client and asked that
the judge continue the case. Barber continued the second appointment without telling the client until the morning of the hearing. Barber also failed to appear at the trial. The client was
ordered to proceed with the trial without counsel, and was ordered to leave the country. When the client returned home after the trial she found her immigration documents had been dropped
off at a neighbor's house. Barber failed to keep appointments with the client and failed to respond to the client's telephone call.
Barber was retained by a client to litigate suspension of the client and the client's family's deportation case before the Immigration Court. The client gave Barber the documentation
proving the client and his family had been in the United States for ten years. Barber appeared at the scheduling hearing and a trial was scheduled. Prior to trial the client was unable to
contact Barber and believed Barber had "just disappeared." Barber failed to appear for the trial. The judge asked if the client was aware that there is no asylum from Mexico,
and the client told the judge that they were not asking for asylum. The client was informed that Barber had never filed the request for suspension of deportation. The client has been
unable to obtain the file with the family's original documents.
Barber was retained by a client to prepare, file, and litigate the client's suspension of deportation case before the Immigration Court. Barber appeared at the scheduling hearing and the
judge told him to file the suspension application. A trial was scheduled. One of the receipts Barber gave to the client showed "Retainer for I-485." Barber was not supposed to
file an I-485; rather the judge told the client to file an EOIR-40. On the day of the trial, the client was unable to reach Barber and Barber did not appear. Barber failed to respond to
calls from the client requesting the client's file with the client's original documents needed for submission to the INS.
Barber was retained by a client to file and litigate suspension of deportation for the client, his wife, and his four children before the Immigration Court. The client gave Barber the
documentation to support the application, including the children's birth certificates, tax records, and bank records. Barber lost the documentation and told the client to obtain new
documentation. After a trial was scheduled, the client unsuccessfully attempted to contact Barber and was told by Barber's secretary not to be concerned, that Barber would be in court.
Barber failed to appear for the trial. At the trial the client was told that Barber had never filed the applications. The judge told the client to get a new lawyer and rescheduled the
trial. The client was unable to obtain his file with the original documents from Barber.
Barber was retained to represent a client in an asylum claim. The client gave Barber documents in Spanish that proved the facts to establish the client's claim for asylum. Barber and the
client appeared at a hearing on the request for asylum. Barber stated that he had lost the documents and, therefore, none were presented to the judge. Thus, the client's request was
denied. Barber asked the client for additional fees so that Barber could appeal the denial. The client delivered a check to Barber and was told that he would pursue the appeal.
Thereafter, the client had no communication with Barber. The client later applied for extension of his employment authorization. The client received a Notice of Denial denying his
employment authorization and advising him that he lost his appeal because it was not timely filed. The client received an order to report to Immigration in Salt Lake City for deportation.
The client retained another attorney, but both have been unable to obtain the client's file from Barber. The client continued to receive statements from Barber's former office requesting
payment of attorney's fees billed by Barber.
Aggravating circumstances include: pattern of misconduct; multiple offenses; vulnerability of victims; and substantial experience in the practice of law.
Mitigating circumstances include: no prior record of discipline; personal or emotional problems; and cooperative attitude toward proceedings.
DISBARMENT
On February 15, 2000, the Honorable Timothy R. Hanson, Third Judicial District Court, entered an Order of Disbarment disbarring Phillip A. Harding from the practice of law for violation of
Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.5 (Fees), 1.15(b) (Safekeeping Property), 5.5(a) (Fees), 8.1(b) (Bar Admission
and Disciplinary Matters), and 8.4(a), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
Harding was retained to represent a client on a contingency fee basis in a personal injury matter. Harding failed to proceed with the representation until more than two years after the
client filed a complaint with the Office of Professional Conduct. Approximately one month before the statute of limitations on the client's claim expired, Harding advised the client that
governmental immunity would bar suit against the defendants involved, and he should seek alternate counsel if he wanted another legal opinion on the matter.
Harding was retained by a client to complete divorce proceedings. Thereafter, the client paid Harding attorney fees, but Harding failed to render an accounting to her despite repeated
verbal and written requests. Harding provided no meaningful legal services to the client. Harding failed to keep the client reasonably informed about the status of her matter and failed
to promptly comply with her reasonable requests for information. Harding reported to the client that her divorce matter had been set for trial, even though no date had been scheduled and
he had failed to file the paperwork necessary to move the matter forward. The client was forced to retain new counsel to conclude her divorce, and Harding delayed delivering her file to
her new counsel, despite repeated requests.
Harding was retained by clients to obtain modification of a divorce decree, to collect unpaid child support and to file suit for trespass and resulting property damages to their residence
by a construction company. Although a fee was paid to Harding in the domestic relations matter, he failed to provide any meaningful legal services. Because Harding delayed in obtaining
service on the client's ex-spouse in the child support matter, the clients lost a substantial amount of money in child support. In the trespass action, Harding failed to name the correct
construction company as defendant, and failed to name the city, county, and state as defendants before the statute of limitations expired. Harding failed to keep the clients reasonably
informed about the status of their matters, and did not promptly comply with their reasonable requests for information. Harding made material misrepresentations to the clients regarding
the status of their cases. Harding was suspended from practicing law approximately two years after initiating his representation of the clients, but continued to represent them and never
informed them of his suspension. When the clients discharged Harding, they were unable to find successor counsel in the trespass matter because of the manner in which the case had been
handled, and were advised to renegotiate representation with Harding after reminding him that the statute of limitations was about to expire. The clients did so, but although aware of
their dissatisfaction, Harding allowed the statute of limitations to run without adding the additional parties.
Harding was suspended for failure to meet continuing legal education requirements; he admitted to his law partners that he knew he had been suspended. During the period of his suspension,
Harding continued to represent clients and was observed appearing in District Court. Harding failed to respond to the OPC's request for information concerning this matter.
Aggravating circumstances include: prior record of discipline; dishonest or selfish motive; a pattern of misconduct; multiple offenses; obstruction of the disciplinary process by
intentionally failing to comply with rules or orders of the disciplinary authority; submission of false evidence; false statements or other deceptive practices during the disciplinary
process; refusal to acknowledge the wrongful nature of the misconduct involved either to the client or to the disciplinary authority; vulnerability of the victim; substantial experience
in the practice of law; lack of good faith effort to make restitution or to rectify the consequences of the misconduct involved; and illegal conduct.
RESIGNATION PENDING DISCIPLINE
On February 17, 2000, the Honorable Richard C. Howe, Chief Justice, Utah Supreme Court, executed an Order Accepting Resignation Pending Discipline in the matter of Richard A. Higgins. In
the Petition for Resignation Pending Discipline, Higgins admitted that he violated Rules 8.4(a), (b), and (c) (Misconduct) of the Rules of Professional Conduct.
Higgins pled no contest in State v. Higgins to two counts of unlicensed broker dealer, a third degree felony, and one count of attempted securities fraud, also a third degree felony.
RESIGNATION PENDING DISCIPLINE
On February 17, 2000, the Honorable Richard C. Howe, Chief Justice, Utah Supreme Court, executed an Order Accepting Resignation Pending Discipline in the matter of Earl S. Spafford.
Spafford has been on interim suspension since October 23, 1996. In his Petition for Resignation Pending Discipline, Spafford acknowledged that on January 28, 1997, the Honorable William
B. Bohling, Third Judicial District Court, made findings of fact and conclusions of law which Spafford accepted, and could not successfully defend against the charges. Spafford also
admitted that the findings and conclusions were grounds for disbarment.
The Supreme Court's Order provided that prior to making application for readmission to the Utah State Bar, Spafford must reimburse any money paid out on his behalf by the Utah State Bar's
Client Security Fund, and must satisfy any restitution orders or agreements, whether civil or criminal.
ADMONITION
On February 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 5.5 (Unauthorized Practice of Law) of the
Rules of Professional Conduct.
The attorney failed to timely pay annual licensing fees and as a result, was placed on administrative suspension. The Utah State Bar mailed a certified letter to the attorney advising of
the administrative suspension, but the certified letter was returned unopened and undelivered after three unsuccessful attempts to deliver it. The attorney filed a civil complaint on
behalf of a client while suspended. Shortly thereafter, the attorney was informed of the suspension and on the same day paid the professional dues and the reinstatement fee.
ADMONITION
On March 3, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.7 (Conflict of Interest: General Rule) and
2.2(b) (Intermediary) of the Rules of Professional Conduct.
A married couple contacted the attorney regarding possible representation in a divorce action. During the initial meeting the attorney recommended that the husband and wife each hire their
own attorney to protect their individual interests in the divorce action. The couple insisted that they agreed on all divorce and custody issues and did not want the expense of retaining
separate counsel. The attorney drafted the Divorce Decree containing the language agreed upon by the couple, including child visitation language that differed from the Utah Standard
Visitation Schedule. The attorney informed the couple that the language regarding the husband's visitation rights was too vague and recommended that they adopt the Utah Standard
Visitation Schedule. The couple insisted on using the visitation language granting the husband visitation "by mutual agreement" as opposed to the Standard Visitation Schedule.
Prior to filing the Divorce Decree the wife instructed the attorney to add language concerning the husband's chronic health problems and to change the language regarding his visitation
rights to "restricted visitation." The attorney questioned whether the husband had agreed to the changes and was told that he agreed. The attorney made the changes requested by
the wife and the Divorce Decree was filed and subsequently entered by the court. Several weeks later the husband informed the attorney that he had not agreed to the "restricted
visitation" language. The attorney prepared and filed a Motion for Relief of Judgment on behalf of the husband. The court denied the motion; nevertheless, the husband's visitation
rights do not appear to have been legally altered by the modified language in the Divorce Decree.
Mitigating circumstances include: absence of prior record of discipline and timely good faith effort to make restitution or to rectify the consequences of the misconduct involved.
ADMONITION
On March 9, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.7 (Conflict of Interest: General Rule) and
4.4 (Respect for Rights of Third Persons) of the Rules of Professional Conduct.
The attorney's spouse and two brothers-in-law were members of a family who owned and operated a business. The attorney's father-in-law died and an acrimonious family dispute ensued over
the ownership and operation of the family business. There was litigation by the family with another relative of the deceased over the family business. Also involved were issues involving
dividing the estate of the father-in-law and surviving mother-in-law. In the dispute over the ownership and assets of the family business, the attorney represented the attorney's spouse,
both brothers-in-law, and the mother-in-law against another party. During the representation, the attorney prepared a voting trust agreement for the mother-in-law that effectively gave
control of the family business to one brother-in-law while effectively evicting the second brother-in-law from the business.
The attorney's representation of the mother-in-law in drafting the voting trust and simultaneous representation of all the beneficiaries was directly adverse to the second brother-in-law's
interests. A dispute arose between the second brother-in-law and the other family members creating a conflict of interest. A dispute also arose between the attorney's personal interest in
the family dispute and the attorney's role as an attorney for the various family members, which also created a conflict of interest. The attorney failed to consult with the various family
members regarding the conflict and failed to explain the implications of the common representation. In the course of dealing with the second brother-in-law, the attorney used means that
had no substantial purpose other than to embarrass or burden the second brother-in-law. The attorney's letters and comments to the opposing party and opposing counsel in the litigation
with the deceased's relative were unprofessional and rude.
DISBARMENT
On March 7, 2000, the Honorable Thomas L. Kay, Second Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Disbarment disbarring John M. Bybee from the
practice of law for violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining or
Terminating Representation), 8.1 (Bar Admission and Disciplinary Matters), and 8.4(a), (b), (c), and (d) (Misconduct) of the Rules of Professional Conduct.
Bybee represented a client in the sale of a family-owned house. The house was sold, and Bybee was to prepare documents in connection with the sale, collect the profit, and distribute it
equally between the client and her two brothers. Bybee deposited the proceeds from the sale of the house into his trust account for safekeeping until they could be distributed. Bybee gave
only a portion of the money to the client and represented that the balance was for legal services he had performed. Bybee failed to promptly give the client the proceeds of the house and
failed to promptly give her an accounting of the portion of the funds that he kept for legal fees. Bybee gave only a small and undetermined amount of money to the client's brother, but
substantially less than the share to which the brother was entitled. An attorney on behalf of the client demanded an accounting of these disputed funds claimed by Bybee, but Bybee failed
to keep the disputed funds separate until there could be an accounting and severance of the client's interest and the dispute resolved. Bybee intentionally misappropriated the client's
funds for his personal and business use.
Bybee represented one of the brothers and his wife in the sale of another house. After the house sold, an amount of money remained and was to be used to pay debts the clients had
accumulated. Bybee was to make sure that those debts were paid from the proceeds of the house. The profit from the sale of the house was deposited into Bybee's trust account but not all
of the debts were paid. The clients received only part of the funds from Bybee. Bybee failed to give the clients their share of the proceeds from the house and failed to provide them with
an accounting of the legal fees that he deducted. The clients disputed Bybee's distribution of the funds from the sale of their house and claimed an interest in the funds in Bybee's
possession. An attorney on behalf of the clients demanded an accounting, but Bybee failed to keep the funds separate until there was an accounting and severance of the clients' interest
and the dispute resolved.
Bybee represented a client participating in a class action lawsuit. The client received a letter informing her that a partial settlement check had been sent to Bybee on her behalf, and the
client went to Bybee's office to demand that he give her the settlement funds. Bybee had received the settlement check, had endorsed the check with the client's signature, deposited the
funds, and disbursed the funds for his personal and business use. Bybee claims he had this authority pursuant to his retainer agreement with the client. Bybee never notified the client of
his receipt of the settlement funds. When questioned, Bybee told the client that he did not have her funds, then wrote her two checks on his business account. When the client attempted to
cash the checks she was told there were insufficient funds to cover one of them. The client disputed Bybee's distribution of the funds from the partial settlement of the class action
litigation. The client claimed an interest in the funds in Bybee's possession. An attorney on behalf of the client demanded an accounting of these disputed funds. Bybee failed to keep the
funds separate until there was an accounting and severance of the client's interest and the dispute resolved. Bybee misappropriated the client's settlement funds for his personal or
business use, then paid funds to the client that belonged to him or to other clients.
The Office of Professional Conduct received several non-sufficient funds or overdraft notices from the bank that held Bybee's trust account. The OPC requested on numerous occasions that
Bybee produce trust account and billing records, but he failed to do so.
Bybee was retained to represent a client in a custody matter and a criminal matter. In the criminal matter the client paid Bybee a retainer. Bybee told the client that if the case went to
a jury trial he would charge an additional amount. The client paid Bybee a portion of the additional amount. The case did not go to a jury trial and the client asked Bybee to return the
unearned funds. Bybee did not return them, but told the client he would apply the funds to his work on the client's custody matter. Thereafter, Bybee provided no meaningful legal services
and refused to return the unearned funds to the client. There was no retainer agreement for the custody matter, and the client never received a bill for services performed.
Bybee was retained to represent a client in a child support and paternity action. Bybee failed to adequately, diligently, and competently represent the client and failed to communicate.
While representing the client, Bybee closed his local office and did not respond to the client's telephone calls and letters. Bybee failed to respond to the OPC's requests for information
regarding this matter.
Bybee was retained to represent a client in the amendment of a Decree of Divorce. He failed to adequately, diligently, and competently represent the client and failed to communicate. While
representing the client, Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee charged the client an excessive fee and failed to promptly
deliver or account for client funds that he was holding. Bybee failed to respond to the OPC's requests for information regarding this matter.
Bybee was retained to represent a client in divorce proceedings. He failed to adequately, diligently, and competently represent the client and failed to communicate. While representing the
client, Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee failed to respond to the OPC's requests for information regarding this
matter.
Bybee was retained to represent a client regarding modification of support payments. Bybee failed to adequately, diligently, and competently represent the client and failed to communicate.
While representing the client, Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee failed to respond to the OPC's requests for
information regarding this matter.
Bybee was retained to represent a client in a divorce modification matter. Thereafter, while refinancing his home, the client discovered that there was allegedly an outstanding unpaid debt
owed by him to Bybee. The client and his wife attempted to contact Bybee about this, but Bybee would not respond to their inquiries. Finally, Bybee returned the client's telephone calls.
The client requested a detailed billing statement for the alleged debt, but Bybee failed to provide it. Bybee charged the client an excessive fee for the legal services provided. Bybee
failed to respond to the OPC's requests for information regarding this matter.
Bybee was retained to represent a client regarding paternity issues and child support payments. Bybee failed to adequately, diligently, and competently represent the client, including
failure to attend hearings in the paternity matter and failure to communicate with the client. Following termination of the representation, Bybee failed to take steps reasonably
practicable to protect the client's interest and failed to surrender papers to which the client was entitled. Bybee charged the client an excessive fee. Bybee failed to respond to the
OPC's requests for information regarding this matter.
Bybee was retained to represent a client in a divorce action. Thereafter, Bybee failed to adequately, diligently, and competently represent the client and failed to communicate. While
representing the client, Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee failed to respond to the OPC's requests for information
regarding this matter.
Bybee was retained to represent a client in a lawsuit involoving an apartment complex. Bybee failed to adequately, diligently, and competently represent the client and failed to
communicate. While representing the client Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee failed to respond to the OPC's requests
for information regarding this matter.
Bybee was retained to represent a client in a name change action. Bybee failed to adequately, diligently, and competently represent the client and failed to communicate. While representing
the client Bybee closed his local office and failed to respond to the client's telephone calls and letters. Bybee failed to promptly deliver or account for client funds that he was
holding. Bybee failed to respond to the OPC's requests for information regarding this matter.
ADMONITION
On March 14, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 4.4 (Respect for Rights of Third Persons) of
the Rules of Professional Conduct.
In the hallway of the Federal District Courthouse, the attorney raised his middle finger at a party to litigation.
ADMONITION
On March 15, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 4.2 (Communication with Person Represented by
Counsel) and 8.4(a) and (d) (Misconduct) of the Rules of Professional Conduct.
The attorney represented a client in a civil matter. During the course of the representation, the attorney interviewed the client's minor children without the presence of their Guardian ad
Litem.
Mitigating circumstances include: full and free disclosure and cooperative attitude toward proceedings and remoteness of prior offenses.
Aggravating circumstances include: prior discipline.
SUSPENSION
On April 5, 2000, the Honorable Leslie A. Lewis, Third Judicial District Court, entered an Order of Discipline By Consent: One Year Suspension suspending R. LaMar Bishop from the practice
of law for one year for violation of Rules 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Declining or Terminating Representation), 5.5 (Unauthorized Practice of Law), and 8.4(a) and (d)
(Misconduct) of the Rules of Professional Conduct.
Bishop was retained to represent a client in tax matters. Bishop failed to act with reasonable diligence and promptness in representing the client and failed to keep the client reasonably
informed about the status of her case. After the client terminated Bishop's legal services, Bishop failed to promptly return the client's file.
Bishop was placed on administrative suspension for failing to pay his Bar dues in 1995, 1996, 1997, and 1999. During some of the time that Bishop was on administrative suspension, he
provided legal services to clients.
SUSPENSION
On May 1, 2000, the Honorable Stephen L. Henriod, Third Judicial District Court, entered an Order: Suspension suspending Peter M. Ennenga for six months for violation of Rules 1.4
(Communication), 1.15 (Safekeeping Property), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(b) and (c) (Misconduct) of the Rules of Professional Conduct.
Ennenga violated Rule 8.1 in numerous instances by failing to provide information requested by the Office of Professional Conduct.
Ennenga violated Rule 1.4 by failing to communicate with a client. After filing a Complaint, Ennenga failed to continue to work on the matter and failed to inform the client of that fact.
With respect to Rules 1.15, 8.4(b) and 8.4(c), Ennenga collected funds for a client who requested that Ennenga hold the funds in trust. Ennenga never deposited the money into a trust
account, but instead deposited part in his personal checking account and had part converted into a cashier's check, all of which he eventually used for himself. Ennenga repaid the client
in 1997 after she filed an informal complaint against him with the OPC and retained an attorney to take action against him.
Aggravating circumstances include: prior record of discipline for matters of a different nature; a pattern of misconduct; multiple offenses; obstruction of the disciplinary proceedings;
refusal to acknowledge the wrongful nature of the misconduct involved; vulnerability of victim; substantial experience in the practice of law; lack of good faith effort to make
restitution; and illegal conduct.
Mitigating circumstances include: absence of prior record of discipline; personal or emotional problems; timely good faith effort to make restitution or to rectify the consequences of the
misconduct involved; good character or reputation; unreasonable delay in the disciplinary proceedings; interim reform; remorse; and remoteness of prior offenses.
Note: This matter is presently on appeal and cross-appeal to the Utah Supreme Court.
SUSPENSION
On May 2, 2000, the Honorable Frank G. Noel, Third Judicial District Court, entered an Order of Discipline: Suspension suspending Stanford V. Nielson from the practice of law for thirty
days for violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), and 8.4(a), (c), and (e)
(Misconduct) of the Rules of Professional Conduct.
Nielson was retained to represent a client in a divorce action in the most cost-effective and time-efficient manner possible. The client asked Nielson how funds could be safeguarded from
her husband during the pendency of the domestic proceedings. Nielson advised the client to give him two checks, one for the initial retainer fee and one for funds to be held in trust
earmarked as legal fees, thus, shielding the money from court review. Nielson assured the client that the second check would not be applied toward fees unless the client first authorized
him to do so. Nielson failed to immediately place the funds in trust, and deposited the second check two days after the client claimed she terminated Nielson's services. Nielson denies
the client terminated his services at that time. The client alleges she never received the letter Nielson purportedly mailed to her in which Nielson memorialized a telephone conversation
he claims he had with her authorizing the use of the funds. The client denies the conversation took place. The client further alleges she did not see a copy of a Retainer Agreement or an
itemized billing from Nielson until he forwarded her file to her successor counsel. Nielson failed to advise the client that she could seek an expedited Restraining Order, but instead
attempted to procure a Temporary Restraining Order, which was not obtained for more than thirty days.
Aggravating circumstances include: prior record of discipline; dishonest or selfish motive; submission of false evidence, false statements, or other deceptive practices during the
disciplinary process; refusal to acknowledge the wrongful nature of the misconduct involved; vulnerability of the victim; substantial experience in the practice of law; and lack of good
faith effort to make restitution or to rectify the consequences of the misconduct involved.
Mitigating circumstances include: the client's acknowledgement that the funds could be used for attorneys fees, if needed.
ADMONITION
On May 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.16(d) (Declining or Terminating
Representation) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
The attorney was retained to represent a client in a custody matter. Two months after the representation began, the attorney transferred the client's file to another attorney without the
client's knowledge or consent.
ADMONITION
On May 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 1.5 (Fees) of the Rules of Professional Conduct.
The attorney was retained to represent an out-of-state client in divorce proceedings. The proceedings were contentious and the parties could not resolve their differences by agreement. The
attorney did not have the client sign a written fee agreement, although the attorney knew it was reasonable to believe that the fees for the representation would exceed $750.
ADMONITION
On May 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 5.5 (Unauthorized Practice of Law) of the Rules
of Professional Conduct.
The attorney was suspended for non-compliance with mandatory continuing legal education requirements, but continued to practice law while on administrative suspension.
ADMONITION
On May 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 5.5 (Unauthorized Practice of Law) of the Rules
of Professional Conduct.
The attorney was suspended for failing to pay his annual Bar licensing dues, but continued to practice law while on administrative suspension.
ADMONITION
On May 22, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 1.7(b) (Conflict of Interest) of the Rules of
Professional Conduct.
The attorney's firm was retained by a client ("Client 1") to represent the client's company ("Company A"). The attorney had knowledge that a second company
("Company B") was affiliated with Company A and was also owned by Client 1. The attorney also represented a second client ("Client 2"), and was unaware that Client 2
was a real estate agent licensed with Company B. The attorney's representation of Client 1's companies was materially limited by his responsibilities to Client 2, in that Client 2
employed the attorney to review a commission contract with Company B.
Mitigating circumstances include: absence of prior record of discipline; absence of dishonest or selfish motive; full and free disclosure to the client prior to the discovery of any
misconduct and cooperative attitude toward proceedings; and remorse.
Aggravating circumstances include: substantial experience in the practice of law.
SUSPENSION
On June 2, 2000, the Honorable David S. Young, Third Judicial District Court, entered an Order Revoking Probation, Lifting Stay, and Ordering Suspension of Dean Becker From the Practice of
Law for two years for violating his probation.
On May 31, 2000, the Office of Professional Conduct and Becker filed a stipulation in which Becker stipulated that he violated his probation and his probation should be revoked and the two
years suspension assessed against him.
ADMONITION
On June 8, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.3 (Diligence) and 8.4(a) and (d) (Misconduct)
of the Rules of Professional Conduct.
The attorney was retained to represent a client in a personal injury matter. The client identified potential expert witnesses, but the attorney failed to timely communicate the names to
opposing counsel and they were excluded from testifying at trial.
Mitigating circumstances include: cooperation with the Office of Professional Conduct.
SUSPENSION
On June 14, 2000, the Honorable James R. Taylor, Fourth Judicial District Court, entered an Order of Discipline By Consent: Three Months Suspension and Two Year Probation suspending
Jacqueline de Gaston from the practice of law for three months for violation of Rules 1.1 (Competence); 1.3 (Diligence); 1.4 (Communication); 4.2 (Communication with Persons Represented
by Counsel); and 8.4(d) (Misconduct) of the Rules of Professional Conduct.
de Gaston was admitted to practice law in December 1997. Thereafter she commenced practice as a solo practitioner. Although her intent was to limit her practice to simple divorce and
adoption cases, de Gaston became involved in more complex, disputed matters and agreed to represent numerous clients in various areas of the law. In some of these matters, de Gaston
failed to provide competent representation to clients in that she failed to have the legal knowledge, skill, thoroughness, and preparation reasonably necessary to represent these clients.
In her representation of some clients, de Gaston failed to act with reasonable diligence and promptness. de Gaston failed to keep some of her clients reasonably informed and failed to
explain matters to the extent reasonably necessary to enable the clients to make informed decisions regarding the representation. In some matters, de Gaston inappropriately tried to
contact and obtain affidavits from children who were represented by counsel. On one occasion de Gaston attempted to have a District Court clerk back-date the date of filing on pleadings.
Mitigating circumstances include: absence of prior record of discipline; personal or emotional problems; inexperience in the practice of law; interim reform; and remorse.
Following the three month suspension, de Gaston was placed on a term of probation of two years and reports to a supervising attorney.
ADMONITION
On June 28, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 1.4 (Communication) and 8.4(a) (Misconduct) of
the Rules of Professional Conduct.
The attorney was retained to represent a client in a paternity suit. Thereafter, the client moved out of the country. Although the client advised the attorney of current addresses and
telephone numbers, the client was unable to communicate with the attorney. The client left several voice mail messages for the attorney, but the attorney failed to return many of the
calls. The attorney failed to adequately keep in contact with the client, failed to respond to the client's reasonable requests for information regarding the client's cases, and failed to
explain the cases to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
Mitigating circumstances include: absence of prior record of discipline; absence of dishonest or selfish motive; cooperative attitude toward disciplinary proceedings; good character and
reputation; and remorse.
Aggravating circumstances include: vulnerability of victim and substantial experience in the practice of law.
RESIGNATION PENDING DISCIPLINE
On August 11, 2000, the Honorable Richard C. Howe, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation Pending Discipline in the matter of Kim David Olsen.
In April 1992, while administratively suspended for failing to pay his Utah State Bar dues, Olsen contacted a member of the Arizona State Bar to request that the Arizona attorney make
application on his behalf to appear in a matter in Arizona pro hac vice. Olsen told the Arizona attorney that he was a member in good standing of the Utah State Bar. Olsen later filed an
application to appear pro hac vice in the Superior Court of the State of Arizona, Maricopa County. In the application, Olsen represented that he was a member in good standing and admitted
to practice in the Utah Supreme Court.
In September 1994, the Supreme Court of Arizona censured Olsen for his conduct and ordered him to pay $401.24, plus interest, for costs. Olsen failed to satisfy this judgment.
In March 1994, Olsen pled guilty to five counts of fraudulently obtaining a controlled substance, a third degree felony; one count of unlawful possession of a controlled substance, a third
degree felony; and one count of escape from official custody, a class B misdemeanor.
In March 1998, Olsen held himself out as an attorney during a time he was aware that he was suspended from the practice of law in Utah for non-payment of Bar dues.
In May 1998, Olsen pled guilty to two counts of fraudulently obtaining a controlled substance, a third degree felony, and one count of issuing bad checks, a third degree felony.
On October 8, 1998, Olsen was placed on interim suspension by the Third Judicial District Court.
In October 1999, Olsen pled guilty to one count of attempted forgery, a class A misdemeanor, and one count of attempted theft by deception, a class A misdemeanor.
RESIGNATION PENDING DISCIPLINE
On August 11, 2000, the Honorable Richard C. Howe, Chief Justice, Utah Supreme Court, executed an Order Accepting Resignation Pending Discipline in the matter of Len R. Eldridge.
Eldridge was retained to represent a client in a suit against the client's employer. Eldridge wrote to the employer, then commenced litigation. During the course of the representation the
client moved out of the United States and back, but remained in contact with Eldridge. Thereafter, the client was unable to reach Eldridge to ascertain the status of the litigation. The
client later learned that her suit had been dismissed without her knowledge.
Eldridge was retained to assist a client in obtaining agency review of the denial of the client's nursing license. The client only met Eldridge at the initial meeting. Thereafter, with the
exception of sending him a copy of one letter, Eldridge failed to return phone calls, failed to respond to the client's written requests for information, and failed to attend scheduled
appointments.
Eldridge was retained to represent a client in a divorce and custody dispute. Eldridge prepared an Order to Show Cause and the judge agreed to order the client's ex-husband to pay child
support. Eldridge failed to prepare the order, and because the judge did not receive it, the file was sent back to juvenile court.
Eldridge was retained to represent a client in a domestic mater. Eldridge prepared a Service of Protective Order to be served on his client's ex-husband. The client was later notified that
Eldridge had not filed the original documents and therefore the documents could not be filed. This resulted in opposing counsel requesting a hearing to vacate the protective order. The
client was not informed of the hearing and neither she nor Eldridge was present. The client's failure to appear at the hearing resulted in an Order of Default being entered. Eldridge
failed to inform the client of hearings and orders and failed to respond to the dispute or to discuss the impact with the client. Eldridge misappropriated funds belonging to the client
when he endorsed a check made payable to him and the client as her portion of a tax refund. Although the client repeatedly requested an itemized billing statement, Eldridge failed to
provide one.
Eldridge was retained to represent a client in an annulment. Eldridge twice prepared divorce documents rather than annulment papers and filed the annulment based on irreconcilable
differences. Eldridge verbally agreed to a fee of $340 to $350 if uncontested ($125 per hour and service fees) but then charged the client $200 per hour and billed her $150 to file the
annulment (the filing cost is $82). Eldridge failed to communicate with the client and misrepresented on two occasions that he had filed and served the papers in a timely manner, when in
fact he had not. Eldridge also misrepresented to the client that her estranged husband was in default and that the default judgment was on the judge's desk, when in fact it was not.
Eldridge was retained to represent a client in a custody matter. During the representation Eldridge failed to return telephone calls or respond to numerous written communications from the
client and failed to notify the client of a court hearing. At the hearing the client was ordered to sign over his interest in the marital home. Eldridge failed to inform the client of the
court's ruling and the order was not complied with. Opposing counsel brought the matter back before the court and was awarded attorney's fees. Eldridge failed to inform the client that he
owed attorney's fees to opposing counsel. Eldridge wrote four post-dated checks to opposing counsel to cover the remaining attorney's fees owed by the client. There were insufficient
funds in Eldridge's general business account to cover the fourth check and it "bounced" as a result. The client informed Eldridge of the bounced check and requested that he
immediately forward a cashier's check or money order to opposing counsel. Eldridge failed to promptly send payment to opposing counsel.
Eldridge was retained to represent a client in a divorce modification matter. Previously, the client complained to the Office of Professional Conduct about Eldridge's representation of her
in the divorce modification and a Screening Panel was convened to review the complaint. At the hearing Eldridge assured the client that he was diligently working on her matter. Following
the hearing, the client received a notice from opposing counsel informing her that she needed to obtain new counsel. The client attempted to contact Eldridge by telephone to find out why
she needed to retain new counsel, but he failed to return her telephone calls. The client received no notice or explanation from Eldridge regarding the termination. The client retained
new counsel and requested that Eldridge return her file, but he failed to do so.
Eldridge represented the plaintiff in a civil matter. During the course of that action, Eldridge submitted a Motion and Order in Supplemental Proceedings although he knew, or should have
known, that there was no judgment in effect upon which an Order in Supplemental Proceedings could be issued pursuant to Rule 69(o) of the Utah Rules of Civil Procedure. The court entered
the Order and opposing counsel filed a Motion to Set Aside which the court granted.
SUSPENSION
On August 29, 2000, the Honorable Tyrone E. Medley, Third Judicial District Court, entered an Order of Discipline by Consent suspending Margaret E. Hiller-Polster from the practice of law
for three years for violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.8(j) (Conflict of Interest: Prohibited Transactions), 1.5
(Fees), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), 8.4(a), (c), and (d) (Misconduct) of the Rules of Professional Conduct. Two years of the suspension
are stayed; Hiller-Polster will be on supervised probation during those two years.
Hiller-Polster agreed to open a joint-checking account with her client for the purpose of hiding assets from the client's husband, to pay attorney fees, and to otherwise provide for the
client's needs. The client deposited funds into the account. Over a two month period Hiller-Polster withdrew all funds from the joint account without obtaining the client's express
consent or providing any billing statements, receipts, or the like, until after the account had been depleted. In addition, Hiller-Polster's fees appeared excessive, and one charge to
acquire pleadings from an out-of-state firm was not paid by Hiller-Polster to any out-of-state firm.
In a separate matter, Hiller-Polster was retained to represent a client in a divorce action. Hiller-Polster charged the client fees that the OPC deems excessive. Thereafter, the client
terminated Hiller-Polster's legal services and hired another attorney to represent her. Hiller-Polster was contacted by the attorney who requested that the client's file be provided to
him. Hiller-Polster made arrangements for the attorney to pick up the original file at a local copy center. Hiller-Polster had the file photocopied, but left the client to pay the bill,
which exceeded $300.
Hiller-Polster was retained to represent a third client in a lawsuit against the client's former employer. Hiller-Polster and the client entered into a fee agreement and Hiller-Polster was
given a retainer fee. Thereafter, Hiller-Polster missed a filing deadline. Hiller-Polster was also retained to represent the same client in a divorce action. Hiller-Polster and the client
entered into a fee agreement and Hiller-Polster was given a $500 retainer fee. Hiller-Polster knowingly provided inaccurate information to the court concerning the client's hourly wage
represented on her child support worksheet.
Hiller-Polster was retained to assist two clients in a dispute between the clients, who are property managers, and the Home Owners Association of a property they managed. Although the
representation would cost far in excess of $750, no retainer agreement was provided to the clients. Hiller-Polster improperly withdrew from the case and charged fees that the OPC believes
are excessive given Hiller-Polster's experience and abilities in this field of practice. Also, Hiller-Polster placed attorney liens on existing client property that was not the subject of
litigation and refused to timely remove the liens.
Mitigating circumstances include: no prior record of discipline.
Aggravating circumstances include: refusal to acknowledge the wrongful nature of the misconduct and lack of good faith effort to make restitution or to rectify the consequences of the
misconduct.
SUSPENSION
On August 30, 2000, the Honorable Leon A. Dever, Third Judicial District Court, entered an Order of Discipline suspending David A. Reeve from the practice of law for a period of six months
for violation of Rules 4.3(b) (Dealing With Unrepresented Person) and 8.4(a) and (c) (Misconduct) of the Rules of Professional Conduct. The entire six months of the suspension was stayed
upon condition that Reeve pay full restitution and attend Ethics School.
Reeve represented the sellers of real property located out-of-state. A potential buyer was interested in the property and contacted the sellers about purchasing it. Thereafter, Reeve
contacted the buyer and an agreement was reached whereby the individual would make an initial down payment, followed by monthly payments.
The buyer sent Reeve a down payment, then made monthly payments directly to the sellers. Thereafter, the buyer decided to pay the remaining balance on the property, and in attempting to do
so discovered there was a lien on the property. The buyer had incorrectly assumed there were no liens on the property by virtue of the fact that in the Sale of Real Estate, prepared by
Reeve, no liens are noted. Reeve had, however, indicated to the buyer that the sellers would provide first mortgage information.
Unbeknownst to the buyer, the out-of-state property went into foreclosure and was sold at a trustee's sale. The buyer was not represented by legal counsel in the real property matter and
misunderstood Reeve's role. Prior to the foreclosure, Reeve contacted the buyer and asked her to loan him money, to be repaid in thirty days. The buyer agreed, and wired the funds to
Reeve the following day. Although Reeve told her he would repay the loan within thirty days, he failed to do so.
Mitigating circumstances include: cooperative attitude toward the disciplinary proceedings.
Aggravating circumstances include: selfish motive and substantial experience in the practice of law.
ADMONITION
On August 31, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 3.4(d) (Fairness to Opposing Party and
Counsel) and 8.4(a) and (d) (Misconduct) of the Rules of Professional Conduct.
The attorney represented a client in an employment matter. In responses to interrogatories and in oral responses during the client's deposition, the client failed to disclose a former
employer. The client had identified the former employer to the attorney prior to the responses being served, but represented to the attorney that the client's relationship with the former
employer had been one other than that of an employer/employee relationship. Based on the client's statements, the attorney told the client that it was not necessary to disclose the
identity of the former employer since it did not appear that there was an employer/employee relationship. The attorney should have known that the relationship between the client and the
former employer was an employer/employee relationship and should have known that the former employer should have been disclosed both in the interrogatory responses and during the
deposition of the client.
Mitigating circumstances include: personal or emotional problems and inexperience in the practice of law.
ADMONITION
On August 31, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rule 1.5(b) (Fees) of the Rules of Professional
Conduct.
The attorney undertook the legal representation of a new client, and it was reasonably foreseeable that total attorney fees would exceed $750. Although the attorney verbally communicated
the hourly rate to the client, the attorney did not communicate in writing the basis for the fee.
Mitigating circumstances include: absence of prior record of discipline; absence of dishonest or selfish motive; timely good faith effort to rectify the consequences of the misconduct
involved; and cooperative attitude toward the disciplinary proceedings.
ADMONITION
On September 7, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 5.3 (Responsibilities Regarding Non-Lawyer
Assistants) and 1.7 (Conflict of Interest: General Rule) of the Rules of Professional Conduct.
A law firm was retained to represent an individual client in a lawsuit against a city. The attorney had an "of counsel" relationship with the firm. After the firm filed the
lawsuit, the attorney brought to the firm the city as a client in another matter. The attorney gave the new client file for the city to a legal assistant to check for conflicts within the
firm. The legal assistant failed to correctly perform the conflicts check, resulting in a client number being assigned to the city as a client in the second matter, and a new client file
being opened. Other attorneys in the firm commenced working on the second city matter. The attorney essentially turned the matter over to other attorneys in the firm who then performed
the legal services for the city. While the firm performed legal work for the city in the second matter, other attorneys in the firm continued to represent the individual client against
the city.
When the conflict was brought to the firm's attention, the firm notified both clients. Although the city was willing to waive the conflict, the individual client was not willing to waive
it. Accordingly, the firm withdrew from the representation of both clients.
SUSPENSION
On September 11, 2000, the Honorable Lyle R. Anderson, Seventh Judicial District Court, entered an Order of Discipline By Consent: Six Months Suspension suspending Natasha Hawley from the
practice of law for six months.
In May 1998, Hawley and the OPC entered into a Stipulation for Discipline By Consent, pursuant to which Hawley was placed on a one year probation to be monitored by the OPC. As part of the
stipulation, Hawley agreed that if during the one year probationary period she was arrested and convicted of an alcohol-related offense, her license to practice law would be suspended for
six months. During the probationary period Hawley was twice arrested and convicted on alcohol-related criminal offenses, but failed to report these arrests to the OPC as required by the
terms of her probation. Pursuant to the terms of the 1998 stipulation and order, Hawley was suspended for six months for violating their terms.
RESIGNATION PENDING DISCIPLINE
On September 22, 2000, the Honorable Richard C. Howe, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation Pending Discipline in the matter of Scott C. Pierce.
Pierce represented a client in a bankruptcy action. During the course of the representation Pierce signed the client's name on multiple bankruptcy documents, including a sworn Declaration
Concerning Debtor's Schedules. Pierce believed he had the authority to sign the documents but acknowledged that without a Power of Attorney, he technically did not. The bankruptcy trustee
assigned to the client's action brought the signatures to the court's attention and the bankruptcy was dismissed.
Additionally, Pierce continued to practice law during a period when he was suspended for non-compliance with mandatory continuing legal education requirements.
DISBARMENT
On November 8, 2000, the Honorable Boyd Bunnell, Seventh Judicial District Court, entered Findings of Fact, Conclusions of Law and Order of Contempt and Judgment of Disbarment disbarring
Wendy L. Hufnagel from the practice of law.
On May 31, 2000, the court entered an Order of Suspension suspending Hufnagel from the practice of law for one year and imposing requirements including the notification requirements of
Rule 26, Rules of Lawyer Discipline and Disability. The Order of Suspension provided that Hufnagel's failure to comply with Rule 26 would constitute contempt, and would be punishable with
further disciplinary action. The order further required Hufnagel to promptly respond in writing to any further requests from the Office of Professional Conduct concerning alleged
unethical conduct. The order also required Hufnagel to file and serve on the OPC an inventory and accounting of all client files and client and third party funds held by her during a
specified period. The order also required Hufnagel to submit to binding fee arbitration in the event that any of her clients allege a fee dispute and consent to arbitration.
Hufnagel failed to comply with Rule 26 and the various other requirements set forth in the Order of Suspension, including failing to file the inventory and accounting for client files and
funds. After the Order of Suspension had been entered, several of Hufnagel's clients retained new attorneys to represent them, and those attorneys wrote letters and made telephone calls
to Hufnagel's office requesting either the client's file or an accounting of retainers paid to her. Hufnagel did not return many of these clients' files and did not refund unearned
portions of the clients' retainers.
The court found Hufnagel in contempt for failing to comply with the Order of Suspension pursuant to Rule 26(e), Rules of Lawyer Discipline and Disability and Rule 5.2, Standards for
Imposing Lawyer Sanctions. The court also appointed a trustee over Hufnagel's law practice with the authority to take possession of client files and records, and any trust accounts and
records.
The court found the following aggravating circumstances: multiple offenses; obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the
disciplinary authority; and lack of good faith effort to make restitution or to rectify the consequences of the misconduct involved.
SUSPENSION
On November 9, 2000, the Honorable Sandra N. Peuler, Third Judicial District Court, entered Findings of Fact, Conclusions of Law and Order of Suspension and Probation suspending Keith
Henderson from the practice of law for two years for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.7 (Conflict of Interest: General Rule), 3.2 (Expediting
Litigation), 3.4 (Fairness to Opposing Party and Counsel), 8.1 (Bar Admission and Disciplinary Matters), and 8.4(d) (Misconduct) of the Rules of Professional Conduct. All but six months
of the two-year suspension is stayed.
Henderson was retained to represent a married couple in a bankruptcy matter. The main purpose of the bankruptcy filing was to discharge tax debts for which the clients were being
garnished. Henderson filed the bankruptcy action too early to be able to discharge all of the clients' taxes. During the bankruptcy proceedings Henderson represented the wife against the
husband in a divorce action. Henderson did not obtain a written conflict of interest waiver. In the divorce decree the husband was ordered to reimburse the wife for the tax debts which
had been the subject of the bankruptcy proceedings. The clients sued Henderson for malpractice and were awarded a judgment; Henderson took more than two years to pay the judgment. During
the course of the malpractice litigation, Henderson filed an Affidavit in Opposition to Motion for Summary Judgment in which he alleged that the clients made the decision to file the
bankruptcy case early. During the course of the same litigation at a later deposition, Henderson admitted he erred in the filing date. The Office of Professional Conduct sent seven
letters to Henderson before he responded to its request for information concerning this matter.
Henderson was retained to represent a client regarding a wage claim based upon termination from employment. The client expected Henderson to file his wage claim, but he failed to do so.
Henderson took no action to protect the client from losing his wage claim by operation of the statute of limitations and also refused to return the unearned retainer. Additionally,
Henderson failed to return the client's phone calls. Henderson failed to respond to the OPC's requests for information regarding this matter.
Henderson was retained to represent a client regarding a worker's compensation claim. During the four month period of the representation the client called Henderson approximately thirty
times, and Henderson only returned two or three of the calls. On two occasions Henderson assured the client that his office was working on the client's file and that the client's file was
"getting big." Thereafter, Henderson met with the client, at which time the client saw his file contained only the same three or four papers he had given Henderson months
earlier. Henderson failed to respond to the OPC's requests for information concerning this matter.
Henderson was retained to represent a client regarding a worker's compensation matter. The client filled out and signed a form as requested by Henderson. During the four month period of
the representation the client telephoned Henderson fifty or more times. Henderson only spoke with the client personally once or twice. During this period, Henderson advised the client
that the application for hearing had been filed with the Industrial Commission. The client thereafter contacted the Commission and learned that the forms had not been filed. Upon being
contacted by the client, Henderson acknowledged that his secretary forgot to file the application and stated that he would do it immediately. Thereafter, the client again learned that the
application for hearing had not been filed. Henderson sent a letter to the client indicating that the application for hearing had been filed; nevertheless, the application was not filed
until after the letter was sent. The OPC sent five letters to Henderson regarding this matter before he filed a response.
Henderson represented the defendant in a divorce action. Henderson failed to appear at a pretrial conference held before the commissioner. Opposing counsel telephoned Henderson, who had
failed to calendar the conference, and Henderson thereafter appeared late for it. Some months later Henderson failed to appear at a pretrial conference with the judge. Henderson did not
appear because he was not able to resolve the case by stipulation and anticipated opposing counsel would simply obtain a trial setting. The judge awarded attorney's fees to opposing
counsel as a result of Henderson's failure to appear at the court hearing. Henderson failed to pay the fees until more than one year later. Henderson had difficulty communicating with his
client because of the client's out-of-state incarceration. The case was delayed based upon Henderson's inability to communicate with his client, his failure to appear at court
proceedings, and his failure to communicate with opposing counsel.
In five other matters, Henderson failed to respond in a timely manner to the OPC's requests for information regarding the substance of the informal complaints.
The court found the following aggravating circumstances: prior record of discipline, pattern of misconduct, multiple offenses, obstruction of the disciplinary proceeding by intentionally
failing to comply with the rules or orders of the disciplinary authority, refusal to acknowledge the wrongful nature of the misconduct involved, either to the client or the disciplinary
authority, substantial experience in the practice of law, lack of good faith effort to make restitution or to rectify the consequences of the misconduct involved.
The court found the following mitigating circumstances: absence of dishonest or selfish motive; imposition of other penalties or sanctions; remoteness of prior offenses; and time period of
the complaints.
SUSPENSION
On November 14, 2000, the Honorable Timothy R. Hanson, Third Judicial District Court, entered an Order of Suspension and Probation suspending Suzanne Benson from the practice of law for
three years for violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.16 (Declining or Terminating Representation),
5.5(a) (Unauthorized Practice of Law), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a), (b), (c) and (d) (Misconduct) of the Rules of Professional Conduct.
Benson was placed on interim suspension on August 24, 1995, but by agreement with the Office of Professional Conduct and approval by the court, the beginning of the three year suspension
was set at August 24, 1997.
Benson was suspended from the practice of law for failure to comply with continuing legal education requirements and later for failure to pay her Bar dues. Although she was suspended,
Benson continued to represent a client. Benson failed to respond to the OPC's requests for information regarding this matter.
Benson was retained by a client to draft testamentary documents, but failed to provide the legal services for which she was hired and failed to communicate with the client. Benson failed
to respond to the OPC's requests for information regarding this matter.
Benson was retained by a client to obtain support from the client's mother's estranged husband. Benson failed to provide the legal services for which she was retained and failed to
communicate with the client. Benson failed to respond to the OPC's requests for information regarding this matter.
Benson was retained to represent a client in a civil action. A judgment was obtained in the client's favor but Benson failed to take sufficient action to collect it, and failed to
communicate with the client. Benson also failed to return the client's file. Benson failed to respond to the OPC's requests for information regarding this matter.
Benson was retained by a client to obtain a step-child adoption. Benson received a retainer but failed to provide the legal services for which she was hired and failed to communicate with
the client regarding the representation. Benson failed to respond to the OPC's requests for information regarding this matter.
Benson was retained to represent a client in a domestic relations matter. Benson failed to provide the legal services for which she was hired and failed to communicate with the client
regarding the representation.
Benson was employed by a law firm that had been retained by a client. Benson was to provide legal services to the client for the law firm, but failed to provide sufficient services.
Benson was retained to represent several other clients but failed to provide the legal services and failed to communicate with these and other clients regarding the representation.
Benson was arrested and charged with misdemeanor counts of criminal trespass and retail theft concerning a shoplifting matter. Benson pled guilty and was fined and placed on probation.
Mitigating circumstances include: personal or emotional problems; mental disability or impairment due to Benson's diagnosed substance abuse problems; and remorse.
ADMONITION
On November 21, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 3.2 (Expediting Litigation) and 8.4(a) and
(d) (Misconduct) of the Rules of Professional Conduct.
The attorney represented the plaintiff in a medical malpractice action. The attorney failed to respond to discovery requests and failed to comply with court orders compelling responses. As
a result of the attorney's failure to comply with discovery requests, the District Court dismissed the client's Complaint without prejudice. The attorney appealed the dismissal, but the
Utah Court of Appeals upheld it.
Mitigating circumstances include: absence of prior record of discipline; cooperation with the Office of Professional Conduct; the client was unavailable much of the time to respond to
discovery because of ill health, and in some instances did not cooperate with the attorney in discovery matters; the attorney did not fail to respond to all discovery requests in the
case, which was pending over a long period.
Aggravating circumstances include: substantial experience in the practice of law.
DISBARMENT
On November 22, 2000, the Honorable Donald Eyre, Jr., Fourth Judicial District Court, entered an Order of Disbarment disbarring Mark K. Stringer from the practice of law. This order was
entered pursuant to an Affidavit of Consent from Stringer.
PUBLIC REPRIMAND
On November 27, 2000, the Honorable Tyrone E. Medley, Third Judicial District Court, entered an Order of Discipline: Public Reprimand reprimanding Michael L. Labertew for violation of
Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 3.2 (Expediting Litigation), and 8.4(a) and (d) (Misconduct) of the Rules of Professional
Conduct.
Labertew was retained to represent a client in a personal injury action concerning injuries suffered in an automobile accident. The client hired Labertew to file claims against the
insurance company of the driver of the other vehicle and the government entity responsible for the stoplight at the intersection where the accident occurred. Labertew failed to do the
necessary research regarding the requirements of filing a claim against a government entity, and failed to file the necessary notice with the entity responsible for the stoplight.
Labertew's failure to timely file notice with the government entity resulted in the client's claim against it being barred by the applicable statute of limitations. During the course of
the representation, Labertew failed to promptly return some of the client's telephone calls and failed to keep the client reasonably informed about the status of her case. Labertew failed
to promptly obtain the client's disability rating following her surgery, which resulted in an unnecessary delay in her case.
Mitigating circumstances include: no prior record of discipline; and cooperation with the OPC during its investigation.
Aggravating circumstances include: substantial experience in the practice of law.
SUSPENSION
On November 28, 2000, the Honorable Donald J. Eyre, Fourth Judicial District Court, entered an Order commencing November 7, 2000, whereby Wayne B. Watson has been suspended from the
practice of law for one year stayed back to nine months arising out of violations of Rules 1.15 and 1.7 of the Utah Rules of Professional Conduct.
ADMONITION
On November 28, 2000, 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) and 8.4(a) (Misconduct)
of the Rules of Professional Conduct.
The attorney represented a client in a criminal matter. The attorney did not conduct research to determine whether the prosecution's presentation of the case constituted double jeopardy.
The client was convicted on all counts and sentenced to concurrent terms at the Utah State Prison. On appeal, the Utah Court of Appeals found that by failing to research the relevant law
concerning whether the client was facing double jeopardy, the attorney provided ineffective assistance of counsel.
SUSPENSION
On November 29, 2000, the Honorable Ronald E. Nehring, Third Judicial District Court, entered an Order of Suspension suspending Isaac B. Morley from the practice of law for three years for
violation of Rules 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees), 1.15(a) and (b) (Safekeeping Property), 3.2 (Expediting
Litigation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(b), (c), and (d) (Misconduct) of the Rules of Professional Conduct. Morley has been on interim suspension since
December 14, 1998.
Morley was retained to represent a client in a personal injury matter. Later, Morley was retained to represent the same client in a divorce and child custody matter. Morley continued a
custody hearing on three separate occasions without informing the client or seeking his approval. Morley failed to timely pursue the personal injury matter and the divorce matter, causing
unnecessary delays and hardship for the client. Morley provided no meaningful representation after being retained by the client. Morley made misrepresentations to the client concerning
the status of the personal injury matter.
Morley cashed a client trust account check at a grocery store and the check was returned for insufficient funds. An attorney for the grocery store contacted Morley about the bounced check
but Morley refused to pay the store. There was no proof that Morley misappropriated client funds by these actions.
Morley was retained to represent a client in a divorce matter, but failed to perform any meaningful legal services on the client's behalf. The client made numerous attempts at written and
telephonic communication with Morley, but was unsuccessful. Morley refused to refund the unearned fees to the client even after the client demanded that he do so. Morley failed to respond
to the Office of Professional Conduct's requests for information regarding this matter.
Morley was retained to represent a client in a bankruptcy and civil matter, but failed to perform any meaningful legal services on the client's behalf. Although the client made numerous
attempts to contact Morley regarding his legal matters and to request refund of unearned fees, Morley failed to answer the client's demands and did not refund the unearned fees. Morley
failed to respond to the OPC's requests for information regarding this matter.
Morley was retained to represent a client in a child support matter, but failed to perform any meaningful legal services on the client's behalf. The client instructed Morley to prepare and
file a stipulation, but he failed to do so. On more than one occasion, Morley informed the client that he had prepared the stipulation and that court dates had been set and subsequently
postponed, but Morley had not prepared the stipulation and no court dates had been set. The client made numerous attempts to contact Morley, but Morley failed to respond.
Morley was retained to represent a client in an uncontested, out-of-state divorce matter, but failed to perform any meaningful legal services on the client's behalf. Morley told the client
a court date had been set and then said the date was cancelled because a stipulation had been reached when actually there was no stipulation and Morley had preformed no work on the
matter. Morley failed to communicate with the client. Morley's failure to pursue the client's divorce resulted in the client having to retain another attorney. Morley failed to respond to
the OPC's requests for information regarding this matter.
Morley wrote a check to a Nevada hotel and casino when he knew or should have known that there were no funds in his account to cover the check. Morley left Nevada and failed to appear at a
pre-trial conference regarding the check. After threat of forfeiture of Morley's bond, he appeared and pled nolo contendre to the criminal charge of drawing and passing a check without
sufficient funds with intent to defraud. Morley failed to respond to the OPC's requests for information regarding this matter.
Morley was charged with two counts of criminal non-support, class A misdemeanors, after becoming grossly delinquent on his court-ordered child support payments. Morley appeared, entered
not guilty pleas, and a pretrial conference was set. Morley failed to appear for the first pretrial conference and a bench warrant was issued. Thereafter, Morley failed to appear at three
pretrial conferences.
In addition to suspending Morley for three years, the court ordered that Morley cannot be reinstated to the practice of law until he has fulfilled all sanctions relating to the bench
warrant and the criminal charges arising from the support issues have resulted in a final disposition, and all sanctions other than probation completed.
SUSPENSION
On December 1, 2000, the Honorable Anne M. Stirba, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Suspension suspending Paul Gotay from the
practice of law for six months for violation of Rule 8.4(d) (Misconduct) of the Rules of Professional Conduct. All but the first forty-five days of the suspension were stayed.
Gotay, the owner of an office building, was involved in an altercation with a tenant who was moving out of the building. Gotay witnessed the tenant attempting to dismantle some electronic
telephone equipment located in the building. Gotay approached the tenant and questioned him regarding the removal of the equipment and acrimonious words were exchanged. Gotay retrieved a
gun from his office and proceeded to brandish it in the presence of others who were there for the purpose of assisting the tenant remove his possessions from the building. Gotay acted in
the belief that the tenant would assault him. Following initial questioning by police officers, Gotay disposed of the gun by placing it in a garbage dumpster.
PUBLIC REPRIMAND
On December 4, 2000, the Honorable James R. Taylor, Fourth Judicial District Court, entered an Order of Discipline By Consent: Reprimand reprimanding Earl B. Taylor for violation of Rules
1.3 (Diligence) and 1.4 (Communication) of the Rules of Professional Conduct.
Taylor was retained to represent a couple in a bankruptcy matter. Taylor filed the bankruptcy on the clients' behalf but it was dismissed at the first creditors' meeting because Taylor
failed to timely file the proper pleadings. After the matter was dismissed, Taylor assured the clients that he would meet with the judge and take care of everything. Thereafter the
clients attempted to reach Taylor on several occasions but he did not return their calls. Taylor failed to rectify the dismissal of the clients' bankruptcy filing. In the three other
client matters, Taylor also violated Rules 1.3 (Diligence) and 1.4 (Communication). Taylor agreed to return fees to one client, and agreed to submit to binding fee arbitration in the
three other matters.
Mitigating circumstances include: personal or emotional problems; and remorse.
ADMONITION
On December 20, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 4.4 (Respect for Rights of Third Persons)
and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
The attorney represented a client in a criminal matter in which the client was charged with sexual abuse of a child. During the first preliminary hearing, counsel for the government
apprised the attorney's co-counsel that using a specific term when referring to the child's undergarments caused the child extreme embarrassment and distress. Immediately before trial,
counsel for the government called the attorney's co-counsel to reiterate the request that a specific term not be used when questioning the child. At trial, during his cross-examination of
the child, the attorney used language the attorney knew would embarrass the child to obtain information that was already part of the record.
ADMONITION
On December 26, 2000, an attorney was admonished by the Chair of the Ethics and Discipline Committee of the Utah State Bar for violation of Rules 4.2(a) (Communication with Person
Represented by Counsel) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
The attorney represented the petitioner in a civil action; the opposing party was also represented by counsel. At the client's request, the attorney drafted legal papers for the opposing
party's signature and filing, including a Notice of Dismissal of Counsel and Cancellation of OSC Hearing, whereby the opposing party dismissed the opposing party's counsel.
PUBLIC REPRIMAND
On January 18, 2001, the Honorable David K. Winder, United States District Court, entered an Order of Public Reprimand reprimanding Charles F. Loyd for violation of Rules 1.3 (Diligence),
3.2 (Expediting Litigation), and 8.4(d) (Misconduct) of the Rules of Professional Conduct.
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