Attorney Discipline

Attorney Discipline
ADMONITION
On August 10, 2009, the Vice-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
1.1 (Competence), 1.6(a) (Confidentiality of Information), and
8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was hired to represent a client in a domestic matter
even though the attorney had not practiced in that area for over
two decades. The attorney did not have sufficient skills to provide
the representation necessary in the domestic case. When the
attorney filed a Motion to Withdraw, the attorney attached a
letter in which confidential and possibly prejudicial information
was disclosed.
ADMONITION
On August 1, 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 1.8(a) (Conflict of Interest: Prohibited Transactions) and
1.8(b) (Conflict of Interest: Prohibited Transactions) of the
Rules of Professional Conduct.

In summary:

An attorney had a tax and estate-planning practice, and upon
learning that several of the clients were seeking investments,
the attorney referred those clients to an investment fund as a
viable investment opportunity. As fund manager, the attorney
had a business or financial interest in the fund, since the fund
manager’s proposed compensation was based on the value
of fund assets, or investments. Every investor, including the
client-investors, was required to execute standard investment
agreements prior to investing in the fund. The attorney failed to
advise client-investors, in a separate writing, of the desirability
of seeking advice from independent counsel and failed to allow
them a reasonable opportunity seek such independent advice.
The attorney failed to obtain client-investor’s informed consent
to essential terms of the transaction, in a separate writing.

ADMONITION

On August 1, 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 1.15(a)
(Safekeeping Property), 1.15(b) (Safekeeping Property), 1.15(c)
(Safekeeping Property), 1.15(d) (Safekeeping Property), and
8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The Office of Professional Conduct received notice from a financial
institution that a check written against an attorney’s client trust
account created an overdraft against the trust account. The check
was not written on behalf of a client, but was instead written
against either fees earned or expenses incurred, and was used
by the attorney to purchase personal or business items. A
review of the attorney’s trust account records indicates that there
have been occasions in the past, when there existed significant
discrepancies between the expected balance and actual balance
of funds held in the client trust account. The attorney failed to
hold the clients’ advanced payments of fees separate from the
attorney’s property. The attorney failed to maintain complete
and accurate records of funds held in the client trust account.
The attorney failed to clearly identify the funds held in the trust
account as funds belonging to, and being held on behalf of,
each of the clients. The attorney failed to properly manage the
trust account. The attorney kept personal funds in the client
trust account in an amount exceeding that necessary to pay
regular bank service charges on the account. The attorney failed
to hold advance fees in the trust account, and to withdraw funds
only as fees were earned, or as expenses were incurred.

ADMONITION

On August 1, 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) of the Rules of Professional Conduct.
In summary:
The attorney represented a client in a divorce proceeding. The
attorney was aware that the opposing party was represented by counsel. The attorney contacted the opposing party on two
occasions without consent from that party’s attorney.

RECIPROCAL DISCIPLINE

On August 14, 2009, the Honorable Bruce Lubeck, Third District
Court entered an Order of Discipline: Suspension for two years
against Brian R. Rayve for violation of Rules 1.1 (Competence),
1.2(a) (Scope of Representation), 1.3 (Diligence), 8.4(b)
(Misconduct), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and
8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
On October 8, 2008, the United States Patent and Trademark
Office (“USPTO”) through its disciplinary process entered an
Order suspending Mr. Rayve from practicing law for two years.
On February 17, 2009, the Supreme Court of Ohio through its
disciplinary process issued an Order of reciprocal discipline
against Mr. Rayve suspending him from the practice of law for
two years. Mr. Rayve was the attorney of record for numerous U.S.
Patent applications, which he filed with the USPTO on behalf
of a client. Along with the petitions and other filings, Mr. Rayve
mailed checks made payable to the order of “Commissioner
for Patents.” Fifteen checks that Mr. Rayve sent to the USPTO
were returned unpaid due to insufficient funds. On numerous
occasions the USPTO mailed Mr. Rayve notices of abandonment
of the applications for having failed to file a timely response to
notices of abandonment, Mr. Rayve failed to respond timely and
pay the application fees. In one case, Mr. Rayve filed a notice of
appeal and a “Petition for Revival of Unintentionally Abandoned
Patent Application.” According to the petition, Mr. Rayve contacted
the USPTO and learned that the application had become abandoned
based on his failure to include the proper fee in his petition.
Upon information and belief, the client did not consent to the
abandonment of the application or other filings. In one case, the
USPTO granted the petition and informed Mr. Ryave of the two-month
period for filing an appeal brief. The USPTO later informed Mr.
Rayve that the appeal had been dismissed because he did not
timely file the appeal brief, and, consequently, (the application
had become abandoned because there were no allowable claims).
Upon information and belief, the client did not consent to the
abandonment of the application or other filings.
PUBLIC REPRIMAND
On August 1, 2009, the Chair of the Ethics and Discipline
Committee of the Utah Supreme Court entered an Order of
Discipline: Public Reprimand against David G. Turcotte for
violation of Rules 1.15(b) (Safekeeping Property), 1.15(c)
(Safekeeping Property) and 8.4(a) (Misconduct) of the Rules
of Professional Conduct.
In summary:
A company represented by Mr. Turcotte, entered into a third
party security agreement (“the Agreement”) with a bank. The
Agreement assigned a security interest to the bank and rights
to proceeds received by the company in a lawsuit wherein the
company was a plaintiff. Mr. Turcotte represented the company
throughout the lawsuit. Mr. Turcotte was aware of the existence,
terms and conditions of the Agreement. Even so, Mr. Turcotte
obtained a judgment in the lawsuit in favor of the company and
received funds on behalf of the company. Mr. Turcotte determined
that the bank was not owed any monies from the settlement proceeds
and disbursed the remainder of the settlement proceeds to third
parties other than the bank. In one case, he disbursed funds
that directly benefited entities owned or in the control of Mr.
Turcotte. Mr. Turcotte disbursed the money without notifying the
bank of receipt of the settlement funds.
DISBARMENT
On July 2, 2009, the Honorable James R. Taylor, Fourth District
Court entered an Order of Discipline: Disbarment against Richard J.
Culbertson for violations of Rules 8.4(b) (Misconduct), 8.4(c)
(Misconduct) and 8.4(a) (Misconduct) of the Rules of Professional
Conduct.
In summary:
On June 19, 2008, Mr. Culbertson pled guilty to three counts of
Communications Fraud, in violation of Utah Code section 76-10-1801,
second-degree felonies, and one count of Pattern of Unlawful
Activity, Utah Code section 76-10-1601, a second-degree felony.
Mr. Culbertson was sentenced to incarceration for a period of not
less than one year nor more than fifteen years in the Utah State
Prison. Mr. Culberston was ordered to pay restitution in the
amount of $1,149,544.89 plus interest.

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