Attorney Discipline

Utah State Bar Ethics Hotline
Call the BarÕs Ethics Hotline at (801) 531-9110 Monday through Friday from 8:00 a.m. to 5:00 p.m. for fast, informal ethics advice. Leave a detailed message describing the problem and within a twenty-four hour workday period a lawyer from the Office of Professional Conduct will give you ethical help about small everyday matters and larger complex issues.

More information about the BarÕs Ethics Hotline may be found at www.utahbar.org/opc/opc_ethics_hotline.html. Information about the formal Ethics Advisory Opinion process can be found at www.utahbar.org/rules_ops_pols/index_of_opinions.html.
PUBLIC REPRIMAND
On November 4, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Kerry F. Willets for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Willets was hired to seek relief under Chapter 7 of the US Bankruptcy code. Mr. Willets received from his client an executed Reaffirmation Agreement. Mr. Willets claims that the Reaffirmation Agreement was sent to the bank, however, Mr. Willets admitted that he failed to confirm that the bank (1) had received the necessary document and (2) filed it. The failure of having the Reaffirmation filed caused the client to have his car unnecessarily repossessed, to miss work, and to re-open and remedy his bankruptcy action pro se. When notified by the client that the bank repossessed the vehicle, Mr. Willets failed to take any action to rectify the situation and failed to communicate with his client. Mr. Willets did not respond to the OPC’s Notice of Informal Complaint (“NOIC”).
Mitigating factors:
After the client re-opened his own bankruptcy case, Mr. Willets reimbursed fees and costs paid and worked with the client and the bank to relieve the client of any penalties.
Aggravating factors:
Prior record of discipline for similar rule violations; Obstruction of the disciplinary proceeding by failing to comply with the Rules to respond to the OPC’s NOIC.
PUBLIC REPRIMAND
On October 29, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James H. Alcala for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Alcala was hired to represent a client in legal matters. Mr. Alcala failed to follow-up with any regularity regarding the scheduling of an interview for his client with the Mexican Consulate, resulting in the client failing to appear. Mr. Alcala failed to return any calls or emails to his clients, demonstrating a severe lack of diligence. Mr. Alcala failed to keep his clients reasonably informed of the status of their immigration case. Mr. Alcala failed to return phone calls. Mr. Alcala required the paralegals in his office to communicate with his client rather than Mr. Alcala having some level of direct contact with his clients. Mr. Alcala failed to timely return the client’s file after it was requested numerous times.
Mitigating factors:
Remoteness and relatively low level of severity of prior offenses and absence of a dishonest or selfish motive.
Aggravating factors:
Prior record of discipline; multiple offenses; and vulnerability of the clients.
PUBLIC REPRIMAND
On October 29, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James H. Alcala for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Alcala was hired to represent a client in matters relating to the consular process and obtaining an I-601 waiver. Mr. Alcala failed to act with reasonable diligence in advancing the client’s case. Mr. Alcala failed to timely communicate critical information to the clients, including the fact that the immigration case had been closed. Mr. Alcala failed to keep his client reasonably informed of the status of his immigration case. Mr. Alcala failed to keep his client informed of the progress on his case, including that an interview at the Mexican Consulate had been scheduled, and later, that the case had been dismissed. Mr. Alcala failed to keep his client informed, so that the client could make necessary informed decisions.
Mitigating factors:
Remoteness and relatively low level of severity of prior offenses; absence of a dishonest or selfish motive; and Respondent refunded fees to the Complainants.
Aggravating factors:
Prior record of discipline; multiple offenses; and vulnerability of his client.
PUBLIC REPRIMAND
On October 29, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James H. Alcala for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(b) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Alcala was hired to provide legal services to a client and the client’s husband in a family-based immigration petition and adjustment of status. The client later signed a second agreement for an appeal on the adverse decision issued in the first matter. Mr. Alcala failed to offer evidence that the labor certification filed by the client’s husband’s employer was approvable when filed, as required by applicable statute. Mr. Alcala failed to provide the court with updated tax returns for the individuals sponsoring the client’s husband, which should have been submitted prior to the trial. Mr. Alcala refused to take the continuance offered by the judge to obtain the necessary tax returns and evidence related to the certification. Mr. Alcala failed to act with diligence by failing to obtain and present the necessary documentation in advance of the trial. Mr. Alcala failed to adequately explain the decisions available to the clients at trial, including failing to explain the consequences of their decisions.
Mitigating factors:
Remoteness and relatively low level of severity of prior offenses; absence of a dishonest or selfish motive; and legitimate belief in the correctness of the legal position taken at trial.
Aggravating factors:
Prior record of discipline; multiple offenses; and vulnerability of the clients.
PUBLIC REPRIMAND
On October 1, 2010, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Matthew G. Nielsen 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:
Mr. Nielsen forged prescriptions for a controlled substance. Mr. Nielsen pleaded no contest to a crime of forging prescriptions. Mr. Nielsen’s plea was held in abeyance. Mr. Nielsen successfully completed Drug Court and completed all his urine tests, and Mr. Nielsen attended all hearings. Mr. Nielsen did not harm any clients by his prior drug addiction.
Mitigating factors:
No prior criminal history; no prior discipline history with the OPC; remorse; commitment to continuing drug treatment; and plan for recovery.
RECIPROCAL DISCIPLINE
On October 27, 2010, 2010, the Honorable Keith Kelly, Third Judicial District Court, entered an Order of Discipline: Admonition against an attorney for violation of Rules 1.3 (Diligence), 1.16(a) (Declining or Terminating Representation), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. This was a reciprocal discipline order based upon an Order from the United States Court of Appeals for the Tenth Circuit.
In summary:
An individual filed a pro se notice of appeal and a case was opened with the attorney designated as counsel of record. The attorney was sent a case opening letter containing specific directives with regard to the filing of an entry of appearance, payment of the filing fee, filing a docketing statement, and filing a transcript order form. Instructions were provided as to the obligations under Appellate rules and the attorney was encouraged to contact the court with any questions about operating procedures. No action was taken by the attorney. Later, the court sent the attorney a notice that the attorney had not complied with the court’s directives. The attorney was advised that the attorney had not filed a copy of the transcript order form or a statement of why a transcript was not ordered in compliance with the Appellate rules; the attorney had not filed an entry of appearance as required by the Appellate rules; that the attorney had not filed a docketing statement as required by the Appellate rules; and that the prescribed fee for the appeal had not been paid. The attorney was given an extension of time to perform these obligations. Again, no response of any kind was forthcoming. Later, the court issued an order to the attorney directing the attorney to the attorney’s obligations or be subject to the risk of a disciplinary sanction. Again, no response of any kind was filed. The court subsequently removed the attorney as counsel of record in the appeal due to neglect of the case and failure to comply with court orders. The attorney subsequently filed a response to the show cause order by counsel. The attorney did not dispute the facts that resulted in the Appellate disciplinary proceeding. The attorney asserted, however, that other circumstances should be taken into consideration. Specifically, the attorney asserted that the attorney was under the impression that the attorney had been discharged by the client and that there were no further obligations as to the representation of the client. Respondent acknowledged that the attorney’s understanding of the attorney’s duties was erroneous.
In mitigation the OPC considered the following: personal problems.
INTERIM SUSPENSION
On October 20, 2010, the Honorable Keith Kelly, Third Judicial District Court, entered an Order of Interim Suspension Pursuant to Rule 14-519 of the Rules of Lawyer Discipline and Disability, suspending Gary W. Nielsen from the practice of law pending final disposition of the Complaint filed against him.
In summary:
On March 22, 2010, Mr. Nielsen entered a guilty plea to one count of theft, a 2nd degree felony. Based on that guilty plea, on July 26, 2010, a Judgment and Commitment was entered against Mr. Nielsen. The interim suspension is based upon the felony conviction.
INTERIM SUSPENSION
On October 18, 2010, the Honorable Denise P. Lindberg, Third Judicial District Court, entered an Order of Interim Suspension pursuant to Rule 14-519 of the Rules of Lawyer Discipline and Disability, suspending Stephen T. Hard from the practice of law pending final disposition of the Complaint filed against him.
In summary:
On December 3, 2009, Mr. Hard was found guilty of one count of conspiracy and eight counts of wire fraud, aiding and abetting, all felonies. The Judgment and Probation/Commitment Order based on the guilty verdict was entered June 23, 2010. The interim suspension is based upon the felony convictions.
PROBATION
On October 13, 2010, the Honorable Denise P. Lindberg, Third District Court, entered an Order of Discipline: Probation against Nathan Drage for violation of Rules 1.4(b) (Communication), 1.7(a)(2) (Conflict of Interest: Current Clients), 1.8(a)(1) (Conflict of Interest: Current Clients: Specific Rules), 1.8(a)(2) (Conflict of Interest: Current Clients: Specific Rules), 1.15(a) (Safekeeping Property), 1.15(b) (Safekeeping Property), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Drage and an individual have had an attorney-client relationship on previous legal matters. Mr. Drage and the individual have had business dealings in the past where there was no attorney-client relationship. The individual and his wife were served with a Complaint from a credit card company. Mr. Drage agreed to represent the individual and his wife in the credit card matter. Mr. Drage decided on a strategy allowing entry of a Default Judgment against the individual and his wife. Mr. Drage did not inform or explain the basis of his strategy to the individual or his wife. Mr. Drage also represented the individual in connection with a merger. The individual was promised 15,000 shares of stock from the merger. The individual received 10,000 shares. The individual sued for the remaining 5000 shares. The suit could not be handled by Mr. Drage because Mr. Drage had business dealings with the principals involved in the merger. Mr. Drage did not clarify the terms of his various business transactions with his clients. Mr. Drage did not disclose in writing information necessary to clarify the business relationships in a manner that could be understood by his clients. Mr. Drage did not inform his client in writing of the desirability of seeking independent legal counsel on the business transactions. Mr. Drage did not keep client funds related to a legal matter in a separate account. Mr. Drage intermingled his own funds with his legal client’s funds. Mr. Drage did not segregate business funds from funds related to his legal practice; examples of this are nine checks written on Mr. Drage’s trust account were returned for insufficient funds.
DISBARMENT
On September 16, 2010, the Honorable Robert Faust, Third District Court, entered an Order of Discipline: Disbarment against Reed R. Braithwaite for violation of Rules 1.15(a) (Safekeeping Property), 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Braithwaite represented a client’s son in a personal injury case. Mr. Braithwaite effectuated a settlement in the personal injury case and received settlement funds. Mr. Braithwaite deposited the settlement funds in his attorney trust account. Mr. Braithwaite then proceeded to transfer the settlement funds from his attorney trust account to his operating account. Mr. Braithwaite transferred money to pay his attorneys fees. Mr. Braithwaite transferred money to pay a medical lien regarding the client’s case. Mr. Braithwaite anticipated money from his federal income tax refund. Mr. Braithwaite removed the remaining settlement funds from his trust account to pay operating expenses. Mr. Braithwaite loaned himself money from his trust account with the intent of paying back the money from his receipt of his tax refund. The tax refund was intercepted due to Mr. Braithwaite’s delinquent student loan accounts, thus Mr. Braithwaite never received his federal income tax refund. Mr. Braithwaite was unable to give his clients the amount due to them under the settlement agreement. Mr. Braithwaite transferred the client’s remaining settlement amount from his trust account to pay his expenses without the permission of the client.

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