On September 17, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 4.2(a) (Communication with Persons Represented by Counsel) and 8.4(a) (Misconduct).
An attorney was contacted by a minor whose parents were involved in a divorce proceeding in district court. The minor informed the attorney that the minor had been appointed a Guardian ad Litem (GAL), though the minor had not heard from the GAL in over two years. The minor asked the attorney for representation in the district court proceeding. The attorney researched the possibility of representation, and reviewed Ethics Advisory Opinion 07-02. That opinion addresses the situation that the attorney was presented with, and advises that in the case of a mature minor, an attorney may speak with the minor even without the permission of the GAL and not violate Rule 4.2. The attorney spoke again to the minor after conducting research. The attorney filed a Notice of Appearance in the case. The GAL filed a Motion to Strike Notice of Appearance of Counsel. The attorney conducted further research to determine if the minor was a “mature minor” as described in the ethics opinion. The attorney filed a response to the motion to strike. A pretrial hearing was held where the attorney’s representation was discussed. The attorney asked to withdraw from the case after the representation was challenged by the father’s counsel and the GAL. The court removed the attorney from the case, struck all of the pleadings that had been filed, and chastised the attorney for what had been done. The court stated that the attorney’s actions were “wrong,” “out of line,” “unethical,” and “inappropriate.” The attorney followed all orders of the court.
The Rules of Procedure for the Ethics Advisory Opinion Committee (“EAOC”) state: “A lawyer who acts in accordance with an ethics advisory opinion enjoys a rebuttable presumption of having abided by the Utah Rules of Professional Conduct.” The Utah Supreme Court has advised that it expects the OPC to take action whenever it believes a disciplinary rule has been violated and that the OPC cannot adequately perform that function if it is bound by the opinions issued by the EAOC. As was the case in this matter, the opinions are advisory, and the presumption that an attorney who follows an opinion has not violated a Rule is rebuttable and inconclusive.
On November 13, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Larry N. Long for violation of Rules 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), Rule 5.5 (Unauthorized practice of Law; Multijurisdictional Practice of Law), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
Mr. Long was hired by the complainant to represent a client on a violation of a Protective Order. The complainant originally met with a non-lawyer working for Mr. Long, on April 18, 2007. The complainant paid a $750 retainer fee to the non-lawyer. After Mr. Long failed to appear at a court hearing the complainant called Mr. Long to inquire about his failure to appear and spoke to the non-lawyer. After Mr. Long failed to appear at the next hearing scheduled, the complainant called to speak with Mr. Long and again only spoke with the non-lawyer. At one point, the non-lawyer planned to serve as a mediator for the parties in this dispute, while Mr. Long represented the client and while the non-lawyer was employed by Mr. Long. The non-lawyer prepared a mediation settlement document and sent it to opposing counsel for signature. The complainant was led to believe that the non-lawyer was an attorney. Mr. Long failed to effect measures to make reasonably certain that the non-lawyer as his employee complied with the Rules of Professional Conduct. Mr. Long failed to adequately supervise the non-lawyer’s activities to insure the non-lawyer was not engaging in the Unauthorized Practice of Law. Mr. Long allowed the non-lawyer to appear in court, contact an opposing party and conduct mediation proceedings at Mr. Long’s office.
On November 10, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against David C. VanCampen for violation of Rules 1.4(b) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
Mr. VanCampen represented a client who was charged with three misdemeanors. Mr. VanCampen failed to appear at two bench trials. Mr. VanCampen failed to notify his client that he was leaving the firm where he had been employed and that he was no longer representing the client. Mr. VanCampen failed to withdraw as counsel and failed to make sufficient arrangements to protect his client after terminating the representation. Mitigating factors included: Respondent’s stated intent not to resume the practice of law and Respondent’s apparent lack of intent to harm his client. Aggravating factors included: Respondent’s extensive disciplinary history and pattern of misconduct.
On July 23, 2009, the Honorable Kate A. Toomey, Third District Court, entered an Order of Discipline: Public Reprimand against Timothy Barnes for violation of Rules 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. This was a reciprocal discipline order based upon a Nebraska Supreme Court order of discipline.
The Nebraska Supreme Court found that Mr. Barnes accepted a flat-fee of $1500, plus $500 for expenses to obtain tax-exempt status for a non-profit corporation in February 2006. Mr. Barnes never completed the application. After several months had gone by, Mr. Barnes contacted the corporation to request additional information. When the corporation attempted to get clarification, they found that Mr. Barnes had moved to Utah without notifying the corporation. In January 2007, the corporation asked for Mr. Barnes to refund the money.
The Nebraska Counsel for discipline filed formal charges against Mr. Barnes in June 2007. After charges were filed Mr. Barnes refunded $1500 and promised to refund the remainder, however at the time of the hearing he had not refunded the remainder.
The Nebraska Supreme Court found that Mr. Barnes failed to complete the matter and failed to notify the non-profit corporation that he was unable to do so. He failed to return any of the money the corporation paid for his fees and expenses until after the Counsel for Discipline had filed formal charges against him. The Nebraska Supreme Court also found that the evidence did not show that Mr. Barnes repaid the full amount of his unearned fee. In mitigation, the Nebraska Supreme Court found that during some of the time that Mr. Barnes neglected his client’s legal matter, he was contending with a series of personal and family health issues and that he cooperated with the Counsel for Discipline, admitted most of the allegations in the formal charges and acknowledged responsibility for his actions. There was no record of other complaints against Mr. Barnes and he was no longer engaged in the private practice of law.
On October 20, 2009, the Honorable Vernice S. Trease, Third Judicial District Court, entered an Order of Interim Suspension Pursuant to Rule 14-519 of the Rules of Lawyer Discipline and Disability, suspending Richard D. Wyss II from the practice of law pending final disposition of the Complaint filed against him.
On December 1, 2008, Mr. Wyss pleaded guilty to Making a False Statement, a felony, United States Code Annotated § 1001(a)(2). The interim suspension is based upon the felony conviction.=