Attorney Discipline

Since the publication of the Jan/Feb issue of the Utah Bar Journal, there has been some discussion among members of the Bar regarding a notice in the Attorney Discipline section. That notice concerned a respondent’s reliance upon an opinion issued by the Ethics Advisory Opinion Committee. To provide some clarification to this discussion, the OPC is printing this letter, which was the source material for the disciplinary note:

April 5, 2007
Augustus G. Chin, President
Utah State Bar
Dear Gus:
At a recent court conference, the justices discussed the treatment of opinions issued by the Ethics Advisory Opinion Committee of the Utah State Bar and reviewed your letter of December 8, 2006, as well as the memoranda prepared by Gary Sackett and Billy Walker.
As you know, lawyer discipline is a Supreme Court responsibility. The Office of Professional Conduct (ÒOPCÓ) works under the CourtÕs direction and regularly reports to it. The Court expects the OPC to take action whenever it believes a disciplinary rule has been violated. It is the CourtÕs view that the OPC cannot adequately perform this function if it is bound by the opinions issued by the Ethics Advisory Opinion Committee.
The Court values and appreciates the excellent work of the Ethics Advisory Opinion Committee. It has relied upon the committeeÕs analysis and substantive research in the past, and it will continue to do so in the future. As I stated in my letter to you of August 10, 2006, the Court believes that a lawyer who acts in accordance with an opinion issued by the Ethics Advisory Opinion Committee should enjoy a rebuttable presumption of having abided by the Rules of Professional Conduct. However, that presumption should not be conclusive, and it is important for the Court to have the opportunity to address interpretations of the Rules of Discipline about which there may be uncertainty.
In view of its position, the Court requests the Bar Commission to make whatever changes are necessary to the rules governing the Ethics Advisory Opinion Committee to provide that the committeeÕs opinions are advisory only.
Thank you for your attention to this matter.
Sincerely,
Christine M. Durham
Chief Justice
cc: Billy Walker
John Baldwin
ADMONITION
On March 24, 2010, 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 1.3 (Diligence), 1.8(h) (Conflict of Interest: Current Clients: Specific Rules), 1.15(c) (Safekeeping Property), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
A client retained an attorney to assist in having the clientÕs sister appointed as personal representative of the clientÕs late fatherÕs estate and to help resolve estate issues. The attorney did not act with reasonable diligence or promptness in accomplishing these objectives. The attorney claimed the lack of diligence was because the client did not want to pay the attorney to accomplish this task. The attorneyÕs claim was undermined by the fact that within days of the client obtaining a new lawyer, the clientÕs sister was appointed the personal representative of the estate. The attorney did not accomplish in four months what the clientÕs new attorney did in three days. The attorneyÕs fee agreement with the client contains a provision that prospectively limits the attorneyÕs potential liability for malpractice. The client had no opportunity to seek advice of separate counsel on that provision. In this case, the attorney charged the client a retainer, which was deposited in the attorneyÕs operati g account.
PUBLIC REPRIMAND
On February 10, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Brian W. Steffensen for violation of Rules 1.5(a) (Fees), 1.5(b) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Steffensen met with a potential client for a free consultation. The client met with Mr. Steffensen for a second time and paid for the consultation. Mr. Steffensen did not explain the terms of his retention. Mr. Steffensen charged his client and failed to perform any meaningful work on the case. In this respect, Mr. Steffensen did not file a response to a lawsuit that had been filed against his client and failed to file for a continuance of an upcoming court hearing.
Aggravating factor: dishonest or selfish motive.
PUBLIC REPRIMAND
On February 9, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Bruce L. Nelson for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 4.2(a) (Communications with Persons Represented by Counsel), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Nelson was hired to represent a client in a divorce matter. Mr. Nelson failed to respond to a counterclaim made against his client. Mr. Nelson failed to respond to a Motion for Entry of the Divorce Decree and a Default Judgment was entered against his client. Mr. Nelson counseled his client to give up certain rights with respect to a Protective Order. Mr. Nelson failed to communicate with his client when representing the client and then tried to contact his former client without the consent or permission of his clientÕs new attorney after the client hired someone else. The client incurred significant attorneyÕs fees as a result of Mr. NelsonÕs actions. Mr. Nelson also failed to respond to OPCÕs lawful request for information.
Aggravating factors: failure to cooperate with the OPC, prior record of discipline.
PUBLIC REPRIMAND
On February 9, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Franklin R. Brussow for violation of Rules 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. On March 11, 2010, Mr. Brussow filed a Petition/Request for Review with the Utah Supreme Court.
In summary:
Mr. Brussow was hired to represent a client in court. Mr. Brussow failed to provide an accounting to his client when one was requested. Mr. Brussow could not completely account for his fees and did not know how much his client had paid. Mr. BrussowÕs billing records were inadequate and incomplete. Mr. Brussow failed to provide his client the file upon request. Mr. Brussow failed to provide his clientÕs file to his clientÕs new attorney when it was requested of him. Mr. Brussow held his clientÕs file while demanding payment of a third-party bill by his client in exchange for the file.
PUBLIC REPRIMAND
On March 18, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Roberto G. Culas for violation of Rules 1.1 (Competence), 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Culas was the managing attorney in many cases he had with the Workers Compensation Fund. Mr. Culas admitted that he lacked the requisite skill and knowledge to handle Worker Compensation cases. Mr. CulasÕ paralegal was assisting Mr. Culas in the Workers Compensation matters. Mr. Culas failed to have sufficient measures and training in place to ensure his paralegalÕs conduct was professional and compatible with the Rules of Professional Conduct. The paralegalÕs conduct included holding himself out as an attorney. The paralegal demanded information he was not entitled to by law.
Aggravating factor: Mr. CulasÕ prior disciplinary history.
PUBLIC REPRIMAND
On March 24, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against J. Kent Holland for violation of Rules 1.15(a) (Safekeeping Property), 1.15(d) (Safekeeping Property), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Holland received funds from a client who hired an associate in his office. Mr. Holland deposited the funds into his client trust account. At one point the associate attorney left the office and took the client and client file with him. The young associate requested the unearned funds left in the account. Mr. Holland sent the check to the associate but did not let the client know what had happened to the funds. The client, on several occasions, requested accounting of the funds from Mr. Holland. Mr. Holland failed to provide the client with an accounting or refund. Mr. Holland failed to explain to the client what had happened to the funds in the trust account or provide any documentation for more than a year. Mr. Holland failed to respond to the OPC after requests were made and failed to provide the necessary documentation establishing what happened to the clientÕs funds, until he presented the documentation to the Screening Panel of the Ethics and Discipline Committee.
PUBLIC REPRIMAND
On March 24, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against S. Austin Johnson for violation of Rules 1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Johnson was hired to assist a client in obtaining a labor certification. Mr. Johnson failed to communicate with his client. Mr. Johnson failed to keep his client informed about the progress of the case. The client tried repeatedly to reach Mr. Johnson, but was never successful. Mr. Johnson only communicated with the client after the client filed the Bar complaint against him. Mr. Johnson failed to notify his client of the relocation of his office. Mr. Johnson failed to comply with reasonable requests for filing materials. Mr. Johnson did not provide key documents to the client until the day of the Screening Panel Hearing of the Ethics and Discipline Committee. Mr. Johnson failed to provide the entire file to the client as requested. The Panel found injury in that the client has had to hire another lawyer and pay additional, substantial fees.
PUBLIC REPRIMAND
On March 24, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against S. Austin Johnson for violation of Rules 1.15(d) (Safekeeping Property), 8.1(b) (Bar Admission and Disciplinary Matters) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Johnson represented several patients of a clinic in connection with vehicular accidents. Mr. Johnson failed to timely notify the doctor at the clinic of settlements with clients for which the doctor had provided medical services. Mr. Johnson failed to disburse funds owed to the doctor and the clinic when the cases were settled by his office and only provided funds to the clinic after the Bar complaint was filed against him. Mr. Johnson failed to provide an accounting to the doctor even after several requests. Mr. Johnson failed to respond to the OPCÕs request for information. Mr. Johnson caused injury to the clinic, the doctor, and to his clients by his failure to disburse the funds in a timely fashion.
INTERIM SUSPENSION
On January 26, 2010, the Honorable Paul G. Maughan, Third Judicial District Court, entered an Order of Interim Suspension Pursuant to Rule 14-519 of the Rules of Lawyer Discipline and Disability, suspending Jeffrey M. Gallup from the practice of law pending final disposition of the Complaint filed against him.
In summary:
On January 22, 2009, Mr. Gallup entered a no contest plea to one count of Violation of a Protective Order, a 3rd degree felony. On April 30, 2009, Mr. Gallup entered a guilty plea to one count of Violation of a Protective Order, a 3rd degree felony. On June 30, 2009, Mr. Gallup entered a guilty plea to one count of Violation of a Protective Order, a 3rd degree felony. On August 18, 2009, Mr. Gallup entered a guilty plea to two counts of Driving Under the Influence of Alcohol/Drugs. The interim suspension is based upon the felony convictions.
RESIGNATION WITH DISCIPLINE PENDING
On February 24, 2010, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning Richard D. Wyss II for violation of Rules 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
On December 1, 2008, Mr. Wyss pleaded guilty to one count of Making a False Statement, a felony, pursuant to United States Code 18 ¤ 1001(a)(2). Mr. Wyss was sentenced to 36 months probation, $100 assessment, $188,548.92 in restitution, and the performance of 300 hours of community service.
SUSPENSION
On March 9, 2010, the Honorable Bruce Lubeck, Third District Court entered an Order of Discipline: Suspension for three years against Brian R. Rayve for violation of Rules 1.3 (Diligence), 1.5(a) (Fees), 1.15(d) (Safekeeping Property), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Rayve was retained by a client to perform some trademark work. Mr. Rayve was paid but failed to perform any substantive work on the case. Mr. Rayve failed to provide an accounting to his client. Mr. Rayve sent his client an email asking for information so he could do the work on the case. The client had previously provided all of the information necessary to do the work. When his client requested a refund of the fee paid, Mr. Rayve refused to refund any portion of the fee. Mr. Rayve failed to respond to the Notice of Informal Complaint. Mr. Rayve failed to attend the Screening Panel Hearing of the Ethics and Discipline Committee.
Aggravating circumstances include: a pattern of misconduct; refusal to acknowledge the wrongful nature of the misconduct; a lack of good faith effort to make restitution or to rectify the consequences of the misconduct involved (including filing papers with a tribunal while suspended); substantial experience in the practice of law; a prior record of discipline; and obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary authority.
SUSPENSION
On February 24, 2010, the Honorable Tyrone E. Medley, Third District Court entered an Order of Discipline: Suspension for three years beginning June 1, 2010, against Justin K. Roberts for violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), 1.15(b) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 8.1(a) and (b) (Bar Admission and Disciplinary Matters), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary there are six matters:
Mr. Roberts was hired to represent clients in a lawsuit, to raise counterclaim issues, and to bring a different civil lawsuit against another party. Mr. Roberts failed to enter his appearance in one of the civil matters. Mr. Roberts did not pursue the other civil matter and did not timely explain his case strategy to his client. The client contacted Mr. Roberts for a status update. Mr. Roberts failed to keep his client informed about the status of his cases. When the representation was terminated, the client requested a refund and an accounting of the retainer. Mr. Roberts failed to timely provide his client with an accounting of the retainer fees. Mr. Roberts did not refund any of the retainer. Mr. Roberts failed to file a notice of withdrawal in one of the civil cases. Mr. Roberts did not forward notice of the Order to Show Cause to his former client which Mr. Roberts received after his services were terminated. Mr. Roberts failed to timely respond to the OPCÕs Notice of Informal Complaint (ÒNOICÓ).
In another matter, Mr. Roberts was hired to defend a client against a domestic violence charge and represent the client in a divorce. Mr. Roberts informed the client that he would reset the arraignment hearing. At the next meeting, Mr. Roberts advised the client he did not need to attend the arraignment and gave the client a new court date. Mr. Roberts did not obtain an Order from the court continuing the arraignment. Mr. Roberts did not attend the arraignment and the court issued a bench warrant for his client. After reaching a stipulated settlement in the divorce, the court directed Mr. Roberts to file an Affidavit of Jurisdiction and Grounds along with the Findings of Fact, Conclusions of Law and Decree of Divorce. Mr. Roberts did not timely file the paperwork needed to finalize the divorce matter. Mr. Roberts failed to return his clientÕs calls for status information about the divorce. When the client was able to find Mr. Roberts, Mr. Roberts informed the client that he filed the documents requested by the court but the court lost the documents and he would re-file them. By the time of the filing of the informal Bar complaint against Mr. Roberts, the documents requested by the court had not been filed with the court. Mr. Roberts failed to timely respond to the OPCÕs NOIC.
In another matter, Mr. Roberts was hired to represent a client in a divorce. Mr. Roberts did not timely file a petition for divorce and serve it. Mr. Roberts informed the client that he would reset the Order to Show Cause Hearing for another date with the court. Mr. Roberts informed the client that he changed the hearing date with the court and that he did not need to appear in court. Mr. Roberts did not file a Motion to Continue the Order to Show Cause Hearing with the court and did not appear for the hearing. At the Order to Show Cause Hearing, the court granted the requests of the clientÕs spouse based on Mr. RobertsÕ clientÕs failure to appear. Mr. Roberts failed to answer his clientÕs requests for information about the case. Mr. Roberts failed to explain to his client the options regarding setting aside the Order from the Order to Show Cause Hearing. The client gave Mr. RobertsÕ office a letter from the Office of Recovery Services (ÒORSÓ) regarding unpaid child support. Mr. Roberts failed to timely contact his client about the ORS letter. Mr. Roberts failed to timely respond to the OPCÕs NOIC.
In another matter, Mr. Roberts was hired to pursue a tort claim. Since his clientÕs claims were based on repressed memories of abuse as a child, an expert witness would be needed to testify concerning the clientÕs repressed memories to prove the claim. Mr. Roberts failed to fully research expert witnesses to prepare the case prior to filing the complaint. Mr. Roberts requested that the prison officials serve the defendant in prison but he failed to timely follow up to ensure that the correct inmate had been served. Mr. Roberts failed to obtain a certificate of service of the summons or other proof of service on the defendant. Mr. Roberts failed to file any proof of service of the summons in the case. Mr. Roberts failed to return his clientÕs telephone calls for information about the status of the case. The court dismissed the complaint for failure to prosecute. Mr. Roberts failed to inform his client about the dismissal of his complaint. Without consulting with his client about the dismissal and re-filing of the complaint, Mr. Roberts re-filed the complaint. Mr. Roberts failed to take the steps necessary to perfect service of process within the 120 days after the filing of the second complaint. Mr. Roberts failed to explain to the client the ramifications of failing to timely complete service of process of the second complaint. Mr. Roberts failed to timely respond to the OPCÕs NOIC.
In another matter, Mr. Roberts was hired to continue work on a pending tort case. Opposing counsel filed a motion to dismiss the complaint for failure to prosecute. The client paid Mr. Roberts a flat fee for the tort case. The client gave Mr. Roberts a signed and notarized statement for Mr. Roberts to immediately file with the court. Mr. Roberts did not file the notarized document with the court. Mr. Roberts did not enter an appearance of counsel for the tort case and failed to respond to the Motion to Dismiss to preserve his clientÕs claim. Mr. Roberts did not request an extension of time to respond to the Motion to Dismiss from opposing counsel or the court. Mr. Roberts did not keep his client informed about the case. The client called Mr. Roberts several times for information about the case. Mr. Roberts did not return his clientÕs voicemail messages. The client learned from the court that the case had been dismissed with prejudice for failure to prosecute. The client requested that Mr. Roberts refund the attorneyÕs fees that were paid and return the clientÕs file. He did not refund any of the attorneyÕs fees he collected, nor did he return the file to the client. Mr. Roberts made material misrepresentations to the Screening Panel of the Ethics and Discipline Committee in response to the clientÕs complaint regarding discussions he had with his client and documents he claimed to have given to his client.
In the last matter, Mr. Roberts was hired to represent a client in an adoption and termination of parental rights matter for a child in the clientÕs care. Mr. Roberts verbally agreed to handle the case for a flat fee plus costs. During the initial meeting, Mr. Roberts discussed filing a motion with the court for alternate service. Mr. Roberts misrepresented to the client that he filed the adoption petition and a Motion for Alternate Service for the birth parents with the Third District Court around February 2007. The client called Mr. Roberts multiple times to inquire when the birth mother would be served. Mr. Roberts failed to return most of his clientÕs requests for information about the case. Mr. Roberts misrepresented to the client that the judge had approved the motion for alternate service before it was filed. Mr. Roberts did not give his client the case number or the judge assigned to the case upon the clientÕs request. Months later, Mr. Roberts informed his client that the court clerks had lost the paperwork, so he would have to re-file the case. The client paid Mr. Roberts cash for publication of the summons upon Mr. RobertÕs request. Mr. Roberts did not place the legal notice. The client terminated Mr. RobertsÕ representation. By the time the representation was terminated, Mr. Roberts had filed the petition and alternate service motion and was awaiting the courtÕs ruling regarding the motion. The client requested a full refund of the fees paid for Mr. RobertsÕ legal fees and the costs paid for publication of the summons. The client also requested the return of the file. Mr. Roberts refused to refund any of the fees and failed to refund the money paid for the publication of the summons. Mr. Roberts failed to provide his client the file.

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