Attorney Discipline

Utah State Bar Ethics Hotline
Call the Bar’s 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 Bar’s 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.
ADMONITION
On March 15, 2012, 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 3.5(b) (Impartiality and Decorum of the Tribunal), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.
In summary:
The attorney represented an employer in an administrative hearing before the Workforce Services Board. After receiving an unfavorable ruling, the attorney represented the employer in an appeal of the unemployment eligibility decision before the Utah Court of Appeals. The Utah Court of Appeals affirmed the decision and issued its decision. The attorney sent a letter to the judges involved in the case. The letter was entered on the court’s docket. A copy of the letter was not sent to opposing counsel on the case. The letter criticized the court’s decision and asked the court to reconsider the merits of his arguments. The criticism was made in a disrespectful and condescending manner. At the time the attorney sent the letter to the judges, the time for appealing the decision had passed.
Mitigating factors:
Absence of prior discipline and absence of dishonest or selfish motive.
Aggravating factors:
Refusal to acknowledge wrongful conduct and begrudging acknowledgment that the language could be offensive.
ADMONITION
On March 22, 2012, 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 1.2(a) (Scope of Representation) and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.
In summary:
An attorney was hired for a bankruptcy matter. The attorney failed to adequately communicate with the client regarding the consequences of the trustees’ objections. The failed communication with the clients resulted in the attorney allowing the conformation hearing to go forward with an unacceptable payment plan for the debtors. The client should have approved the payment in advance. The attorney failed to communicate with the clients regarding the consequences of the hearing and the strategy being employed. The attorney’s behavior was generally negligent and caused injury.
Mitigating factors:
Lack of prior discipline.
ADMONITION
On March 26, 2012, 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 8.4(c) (Misconduct) and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.
In summary:
The attorney was hired to represent a client in a custody and child support matter. The attorney received an initial payment with additional payments to be paid in the future. As the representation progressed, the client was unable to make payments and the amount owed to the attorney continued to grow. The client and the attorney exchanged text messages where the attorney indicated the client could pay the bills in “other ways.” In an effort to persuade the client, the attorney indicated they would write off a set amount of the bill for each “visit.” Although it appears that the client considered accepting the attorney’s offer, the client did so only because the client did not want the attorney to withdraw from representation. The client acknowledged that the attorney’s representation was not negatively impacted by the text message exchanges. After the client submitted the complaint to the OPC, the attorney was offered a diversion, with one of the terms being that the attorney would write off the remainder of the client’s bill. The attorney negligently sent an email to the client believing that the client was aware of the diversion proposal. The attorney believed that the terms of diversion were not determined with regard to whether any fee waiver would be less than the total outstanding amount. Little injury was caused. (more…)

Attorney Discipline

Utah State Bar Ethics Hotline
Call the Bar’s 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 Bar’s 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.

ADMONITION
On March 1, 2012, 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) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney held personal funds in the attorney’s client trust account in excess of the minimal amount allowed to maintain the account.
ADMONITION
On January 26, 2012, 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), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney failed to respond to requests for admissions served on the client which resulted in the facts being deemed admitted. The attorney failed to respond to the Office of Professional ConductÕs Notice of Informal Complaint. The attorney’s conduct caused little harm as it is not clear whether the judge considered the deemed admissions. The attorney’s conduct was negligent.
Mitigating factors:
Remorse; absence of prior record of discipline; absence of a dishonest or selfish motive.
ADMONITION
On January 26, 2012, 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), 1.4(a) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney failed to timely prepare documents needed to finalize a client’s divorce decree. The attorney failed to diligently pursue child support issues raised by his client. The attorney failed to keep the client informed about the status of the finalization of the divorce decree. The attorney failed to inform the client about opposing counsel’s motion seeking the release of the monies held in escrow that the client wanted held until the child support dispute was resolved. The attorney failed to respond to the Office of Professional Conduct’s Notice of Informal Complaint. The attorney’s conduct was negligent and caused little injury.
Mitigating factors:
Remorse; absence of prior record of discipline; absence of a dishonest or selfish motive.

PROBATION

On February 8, 2012, the Honorable Deno G. Himonas, Third Judicial District Court, entered an Order of Discipline: Probation against Holly J. Mahoney for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Ms. Mahoney was hired to represent a client regarding the special education needs of the client’s son. The client paid Ms. Mahoney a retainer fee and signed a retainer agreement. Ms. Mahoney failed to file a due process request with the school on behalf of the client’s son. The attorney failed to respond to numerous e-mails and telephone calls from the client over a nine month period. Ms. Mahoney did not send monthly billing statements to the client as outlined in the retainer agreement. Due to Ms. Mahoney’s lack of diligence and communication, the client terminated her services and sought new counsel. The client asked Ms. Mahoney for his file and a refund. After the client submitted his complaint to the OPC, Ms. Mahoney returned his file, but did not refund his fees. Ms. Mahoney indicated to the client that he owed additional fees but that she was willing to waive the fees and call it even. (more…)

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.

ADMONITION
On January 5, 2012, 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 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney missed a trial setting by failing to attend the trial. The attorney did not promptly inform the client of the missed trial. The attorney also tried to cover up the reason for missing the trial.
ADMONITION
On January 6, 2012, 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 1.4(a) (Communication), 1.7(a) (Conflict of Interest: Current Clients), 1.7(b)(4) (Conflict of Interest: Current Clients), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney represented a client in a claim against a woman. At a supplemental proceeding hearing in the case, the woman informed the attorney that she objected to the amount of the claim against her and indicated she was trying to collect money owed to her by her ex-husband from their divorce settlement. The attorney filed a complaint on behalf of the woman against her ex-husband to obtain payment for his client. The attorney did not give the woman a chance to comment on the complaint. The attorney did not provide the woman a copy of the complaint after it was filed. The attorney did not alert the woman to the Motion to Dismiss filed in the case, even though it might adversely affect her rights. The attorney did not consult the woman as to the opposition of the Motion to Dismiss. Based on the brief conversation at the supplemental proceeding, the attorney did not communicate adequate information and explain about the material risks of and reasonably available alternatives to the representation necessary for the woman’s informed consent. The attorney did not obtain the woman’s informed consent and therefore had an impermissible conflict. Even if the attorney had obtained the woman’s informed consent to the conflict of interest, that consent was not confirmed in writing. The attorney’s violations were negligent. The woman has suffered little injury.
ADMONITION
On December 21, 2011, 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 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney and partner in a firm were representing a client. The firm dissolved and the attorney and the partner divided the cases that were pending. Upon dissolution of the law firm, the attorney should have, but did not, communicate with the client concerning who would be representing the client in the future. The attorney should have, but did not, ascertain who had the client’s file. The attorney should have, but did not, see what, if any, fee should have been refunded as unearned to the client. The attorney who had appeared in the client’s case should have formally withdrawn from the case. (more…)

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.

ADMONITION
On July 28, 2011, 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) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney failed to maintain the client trust account where the funds were kept separate or clearly identified at all times. The attorney’s conduct was negligent. There was little to no injury.
Mitigating factors:
Personal or emotional problems; Cooperative attitude toward proceedings; Substance abuse.
ADMONITION
On July 28, 2011, 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 8.4(d) (Misconduct) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney charged a client for representation after the attorney had been appointed to represent the client because the client was indigent. The attorney failed to file a Motion to Withdraw once the attorney discovered that the client was no longer indigent. The attorney’s conduct was negligent. The injury caused by the attorney’s conduct was minimal.
Mitigating factors:
Absence of prior record; Imposition of other penalties or sanctions; Belief by attorney that filing client Affidavit of Indigency would cause him to reveal confidential client communications and expose the client to possible criminal charges.
ADMONITION
On June 30, 2011, 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 1.1 (Competence), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney sought an ex-parte temporary restraining order to stop a trustee’s sale that was scheduled to take place the next day. The court determined that the motion was facially defective, since it did not certify in writing what efforts the attorney had made to contact opposing counsel and did not include an affidavit or verified complaint addressing how the plaintiff might suffer irreparable injury before a hearing could be held. The judge denied the motion without prejudice so that the attorney could correct its deficiencies and issued a written order shortly after reading the motion describing its defects.
After receiving the ruling the attorney attempted to give notice to the defendant by faxing the motion and memorandum to the office and to another attorney’s office; although the attorney was not sure whether the other attorney was representing the defendant. The attorney attempted to contact the other attorney by phone but was unable to reach the other attorney. The attorney was unable to fax the documents to the other attorney but eventually was able to send them by email. (more…)

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. (more…)

Attorney Discipline

RESIGNATION WITH DISCIPLINE PENDING
On April 14, 2010, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning R. Bradley Neff 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 September 23, 2008, Mr. Neff entered into a plea in abeyance to three Class A Misdemeanor counts of Attempted Failure to Render a Proper Tax Return. Mr. Neff was required to complete 40 hours of community service and pay restitution of $13,936.37 in addition to the $197,139.57 previously paid.
SUSPENSION
On March 11, 2010, the Honorable Denise Lindberg, Third District Court entered an Order of Discipline: Suspension for one year and Probation for one year against David VanCampen for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), 1.5(b) (Fees), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary there are two matters:
In the first matter, Mr. VanCampen was retained to file modification papers in a divorce and custody case. Mr. VanCampen was paid and provided with the client’s information. Almost a month later, the client initiated contact with Mr. VanCampen at which time he reported that he lost the information that his client had provided and requested it be provided again. The client provided the information to Mr. VanCampen a second time. Mr. VanCampen failed to file any papers with the court on the case. The client attempted to contact Mr. VanCampen on numerous occasions. Mr. VanCampen failed to return all but three of her calls. During the three calls, Mr. VanCampen provided no real assistance and made promises to perform services that were never performed. Mr. VanCampen failed to return his client’s file, provide an accounting, or return unearned fees to his client. Mr. VanCampen failed to provide meaningful legal services necessary to prosecute his client’s case. Mr. VanCampen was served a Notice of Informal Complaint (“NOIC”), but failed to timely respond.
In the second matter, Mr. VanCampen was hired to file documents to seal the client’s case and attempt to negotiate an expungement. The client called Mr. VanCampen’s office several times, but did not receive a call back. Mr. VanCampen’s assistant told the client that there was a hearing scheduled. When the client appeared for the hearing, Mr. VanCampen did not appear. Mr. VanCampen failed to contact the client to explain what was going on in the case despite numerous calls by the client to speak with him. Mr. VanCampen failed to return unearned fees to his client, failed to return his client’s file, and failed to provide the legal services for which he was hired. Mr. VanCampen was served a NOIC, but failed to timely respond.
Aggravating circumstances include: prior record of discipline; pattern of misconduct; multiple offenses; and substantial experience in the practice of law.
Mitigating circumstances include: personal or emotional problems.
ADMONITION
On May 10, 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 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. (more…)

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. (more…)

Attorney Discipline

ADMONITION
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).

In summary:
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.
PUBLIC REPRIMAND
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.
In summary:
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. (more…)

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. (more…)

Attorney Discipline

ADMONITION
On April 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 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In Summary:
An attorney was hired to represent a client in a Social Security Administration matter. After the briefing schedule was set, the attorney missed the first deadline to file the brief on behalf of
the client. The attorney asked for an extension and was givenone. The attorney missed the deadline and asked for extensions six additional times. Ultimately, when the brief was not filed after the seventh extension of time, the Commissioner filed a Motion to Dismiss for failure to prosecute the claim. The attorney did not respond to the Motion to Dismiss on behalf of the client. The attorney failed to notify his client of the Motion to Dismiss. The case was dismissed. Although the attorney filed an appeal of the dismissal, the U.S. District Court upheld the dismissal. The attorney’s explanation for not filing the pleadings was that he
had delegated preparation of the documents to his paralegal.

ADMONITION
On April 10, 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 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), Rule 5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice of Law), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In Summary:
An attorney assisted a nonlawyer in the unauthorized practice of law. The attorney acknowledged that the nonlawyer had been in trouble in the past for the unauthorized practice of law. The attorney was aware that the nonlawyer was using business cards with the words “Legal Representative” on them. In spite of this, the attorney agreed to meet with the “clients” of the nonlawyer. The attorney was aware of at least one letter sent to a client
which by the letterhead implied that the nonlawyer was a lawyer and wherein the nonlawyer purports to provide legal advice to a client. The nonlawyer was clearly associated with the attorney. The attorney failed to supervise the nonlawyer’s activities.
INTERIM SUSPENSION
On March 30, 2009, the Honorable James R. Taylor, Fourth Judicial District Court, entered an Order of Interim Suspension Pursuant to Rule 14-519 of the Rules of Lawyer Discipline and
Disability, suspending Richard J. Culbertson from the practice of law pending final disposition of the Complaint filed against him.
In Summary:
On June 19, 2008, Mr. Culbertson pleaded guilty to and was convicted of three counts of Communications Fraud – 2nd Degree Felony, Utah Code Annotated § 76-10-1801, and one count of Pattern of Unlawful Activity – 2nd Degree Felony, Utah Code Annotated § 76-10-1601.
The interim suspension is based upon the felony convictions.
PUBLIC REPRIMAND
On March 16, 2009, the Honorable Kevin K. Allen, First District Court, entered an Order of Public Reprimand against Raymond N. Malouf for violation of Rules 1.2(a) (Scope of Representation and Allocation of Authority between Client and Lawyer) and 8.4(a) (Misconduct) of the Rules of Professional Conduct. Mr. Malouf was further ordered to attend Ethics School, pay attorneys fees and costs to the OPC, and turn over disputed funds held in his trust account (more…)

Attorney Discipline

ADMONITION
On February 25, 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 1.9(a) (Conflict of Interest: Former Clients) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
An attorney was hired to represent a client in a divorce matter. The attorney’s office sharing arrangement was the functional equivalent of being in the same firm as a family member. The attorney took a case against a former client of his family member.

RESIGNATION WITH DISCIPLINE PENDING
On February 11, 2009, the Honorable Matthew B. Durrant, Associate Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning David W. Snow for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.15(a) (Safekeeping Property), 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary there are three cases:
Mr. Snow was hired to help his client resolve various debt issues. Mr. Snow was given a large sum of money to resolve the client’s outstanding debt. Mr. Snow was to receive 15% of the amount he was able to reduce his client’s debt. Mr. Snow failed to pursue the work he was hired for in a timely matter. Mr. Snow failed to communicate with his client and failed to return the unused funds that should have remained in his trust account. Mr. Snow commingled his client’s funds with his own funds and used his client’s funds to pay his own expenses.
In another matter, Mr. Snow was given a large sum of money to assist a client in resolving various debts. Mr. Snow was to receive 15% of the amount he was able to reduce his client’s debt. Mr. Snow negotiated with a creditor and the client approved payment to settle the debt. Mr. Snow did not mail the check to the creditor until after the settlement offer had expired. Mr. Snow’s client expressed frustration communicating with Mr. Snow. Many of the client’s creditors had not had contact with Mr. Snow. A new fee arrangement was negotiated with Mr. Snow and his client. After some time had passed, and Mr. Snow had only settled one more account, the client indicated he would handle the remaining accounts himself. Mr. Snow has yet to return the unused portion of his client’s money. Mr. Snow failed to keep his client’s money in his trust account and used the client’s money to pay his own debts.
In the last matter, Mr. Snow was hired to represent a client in a bankruptcy proceeding. Mr. Snow filed the bankruptcy petition and then had no contact with his client for several months. Mr. Snow filed an objection to the trustee’s Motion to Dismiss and stated the failure to file the declaration was because of his delay. Mr. Snow failed to timely file notices of two creditors, causing his clients to be unable to include the two creditors in their bankruptcy, and failed to respond to his client’s inquiries. (more…)

Attorney Discipline

PUBLIC REPRIMAND
On November 26, 2008, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Roy D. Cole for violation of Rules 1.8(a) (Conflict of Interest: Current Clients: Specific Rules), 1.15(a) (Safekeeping Property), 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Cole was hired by a client that gave Mr. Cole Power of Attorney entrusting items of personal property to Mr. Cole. Mr. Cole accepted property from his client without the proper safeguards in place; without keeping records; and without keeping the client’s property separate from his property. Mr. Cole did not provide an accounting which was full, accurate, and timely to his client. Mr. Cole failed to take steps to protect his client’s interests upon termination of the representation.

SUSPENSION
On November 26, 2008, the Honorable David L. Mower, Sixth District Court entered an Order of Discipline: Suspension for one year against Stony V. Olsen for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), 1.5(b) (Fees), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Olsen was hired to represent a client’s interests in a bankruptcy action by objecting to the debtors’ discharge on the basis of fraud. Mr. Olsen was paid $1000. Mr. Olsen failed to provide his client with written notification of the basis or rate of his fee. Mr. Olsen attended the creditors’ meeting but did not file the objection. Mr. Olsen did not inform his client that he did not file the objection and of the subsequent discharge. After the client received the notice from the bankruptcy court, the client attempted to reach Mr. Olsen but was not immediately successful.
Later, Mr. Olsen filed a lien against the debtors’ property on behalf of his client even though the debtors had filed a bankruptcy action and their obligations had been discharged. The debtors’ counsel sent a letter to Mr. Olsen and his client informing them that the lien was improperly filed and demanded its release. Mr. Olsen’s client was at first unsuccessful in reaching him regarding the lien. Mr. Olsen did finally release the lien but did not return unearned attorney fees.
SUSPENSION AND PROBATION
On November 19, 2008, the Honorable Randall N. Skanchy, Third District Court entered an Order of Discipline: Suspension of two years and Probation of one year against Russell S. Hathaway for violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.4(a)(2) (Communication), 1.4(a)(3) (Communication), 1.4(a)(4) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), 1.15(b) (Safekeeping Property), 1.16(a) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 3.4(c) (Fairness to Opposing Party and Counsel), 3.4(d) (Fairness to Opposing Party and Counsel), 8.1(b) (Bar Admission and Disciplinary Matters), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary there are six matters:
The six matters involved representation in two post divorce matters; two civil matters; a civil litigation matter; and a Qualified Domestic Relations matter. In the Qualified Domestic Relations matter, Mr. Hathaway did nothing after approximately seven months of representation. (more…)

Attorney Discipline

Attorney Discipline
PUBLIC REPRIMAND
On October 23, 2008, the Honorable Robert K. Hilder, Third District Court, entered an Order of Discipline: Public Reprimand against Samuel J. Conklin for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees), 1.5(b) (Fees), 1.16(d) (Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Conklin was hired to protect his client’s current wife’s assets. Mr. Conklin was given a retainer. Mr. Conklin set up a trust but would not relinquish the trust documents until he was paid additional money.
Mr. Conklin was also hired to do paperwork to establish his client’s current wife’s business. Mr. Conklin made errors in the Limited Liability Company (LLC) papers. However, Mr. Conklin failed to address the mistakes he made in establishing the LLC. Mr. Conklin requested and received additional money. Mr. Conklin did not give his clients a receipt for the monies. On numerous occasions Mr. Conklin’s clients requested an accounting of their funds, but were never given one. Mr. Conklin also failed to timely respond to the OPC’s Notice of Informal Complaint.
DISBARMENT
On October 17, 2008, the Honorable James R. Taylor, Fourth District Court, entered an Order of Discipline: Disbarment against Troy L. Crossley for violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.16(d) (Declining or Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.3(a) (Candor Toward the Tribunal), 3.4(a) (Fairness to Opposing Party and Counsel), 3.4(c) (Fairness to Opposing Party and Counsel), 8.1(b) (Bar Admission and Disciplinary Matters), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
In one matter, Mr. Crossley was hired to file a bankruptcy. Mr. Crossley’s clients asked that the equipment they purchased for their restaurant be listed in the bankruptcy. Mr. Crossley informed his clients that the bank could not collect on the equipment after it was discharged. His clients sold the equipment back to the dealer they had purchased it from. The bank had a lien against the equipment and filed an adversary proceeding seeking a judgment against Mr. Crossley’s clients. Mr. Crossley put the incorrect amount of the equipment on the bankruptcy. Mr. Crossley did not explain to his clients how this error could effect their bankruptcy. Mr. Crossley notified his clients of the adversary proceedings. Mr. Crossley left the law firm he was working for and did not notify his clients. Mr. Crossley sent his clients discovery requests that had been served on him by the bank. His clients responded and sent the documents back to Mr. Crossley. Mr. Crossley failed to answer the bank’s discovery requests and failed to conduct any discovery on behalf of his clients. Mr. Crossley failed to meet with the bank’s counsel to discuss the pretrial orders. Mr. Crossley failed to respond to the proposed Pretrial Order and the subsequent motion to compel. Mr. Crossley was present when the trial date was set. Three days before trial Mr. Crossley filed a motion to continue. One day before trial Mr. Crossley filed a motion to set aside the pretrial order arguing that his mistakes were excusable neglect under the federal rules. Mr. Crossley stipulated, via telephone conference, that his clients owed the bank over $20,000.00. Judgments were entered against Mr. Crossley’s clients. The clients did not approve of the stipulation. Mr. Crossley’s clients learned of the judgment when they were closing on their home. When confronted by his clients, Mr. Crossley indicated they had lost and there was nothing they could do about it. (more…)

Attorney Discipline

Attorney Discipline
ADMONITION
On July 18, 2008, 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 1.2(c) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.2(d) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney represented a client in a real estate transaction. Attorney was left alone with the closing documents after the documents, including a deed, had been executed. The attorney removed the original, two-page version of the legal description and attached an altered version of the property’s legal description to the quit claim deed. The attorney made the changes while alone with the executed documents. The attorney altered a signed deed, delivered to be recorded, by changing property description, and by whiting out the stated number of pages on the deed’s face. The attorney did not intend to misrepresent or defraud anyone, but was attempting to correct what he understood to be a ministerial error that had been made when the wrong description was attached.
PROBATION
On July 16, 2008, the Honorable Dino Himonas, Third District Court entered an Order of Discipline: Probation for one year against Mark R. Emmett for violation of Rules 1.3 (Diligence), 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. Emmett represented a debtor in a Chapter 7 bankruptcy matter. Mr. Emmett failed to file papers required to advance the bankruptcy matter, including the Statement of Financial Affairs and Schedules. Mr. Emmett did not inform his client that he had ceased work on her case. Due to Mr. Emmett’s failure to file the required papers, the court dismissed his client’s bankruptcy case, and Mr. Emmett failed to inform his client of the dismissal. Mr. Emmett suffered from depression. Mr. Emmett did not withdraw from his representation of his client once it became apparent his mental condition was impairing his ability to pursue the matter.
Resigned with Displine Pending
On May 16, 2008, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning Wesley F. Sine.
In summary:
On February 4, 2005, Mr. Sine was found guilty of four counts of mail fraud pursuant to United States Code, Title 18, section 1341. Mr. Sine was sentenced to serve 70 months in prison and ordered to pay $2,294,000.00 in restitution to the victims.

Attorney Discipline

Attorney Discipline
ADMONITION
On June 23, 2008, 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 3.2 (Expediting Litigation), 3.3(d) (Candor Toward the Tribunal), 7.3(a) (Direct Contact with Prospective Clients), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney solicited professional employment from a person in a nursing home without invitation and without contacting the person’s family members. The attorney filed an Ex-Parte Motion for Appointment of Counsel along with a Request for Guardianship and Conservatorship for the person in the nursing home. The attorney did not disclose all material facts to the tribunal in his ex-parte communications including how the attorney was in contact with the client; the fact that Adult Protective Services (APS) was not investigating all of the children of the client, and that his client was not in imminent harm. The attorney continued to fight over the appointment of counsel with his client’s children after APS determined there was no exploitation. The attorney’s response to the OPC and personal attacks toward his client’s children were unprofessional and detrimental to the administration of justice.
Mitigating factor: isolated incident and not a pattern.
ADMONITION
On May 22, 2008, 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 4.4(a) (Respect for Rights of Third Persons), 8.4(e) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
The attorney’s client, a government agency, inadvertently sent confidential information to a person who had an open case with the agency. When the person did not return the documents on request, the attorney called the person leaving a message that threatened to have the police come to retrieve the documents, to seek criminal charges or to get a warrant in order to affect the return of the documents, however the attorney had no creditable legal recourse for these threats. The Committee determined that the attorney’s voicemail was inappropriate and unprofessional.
PUBLIC REPRIMAND
On May 12, 2008, the Honorable Robert P. Faust, Third District Court, entered an Order of Discipline: Public Reprimand against Jeanne T. Campbell Lund for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.16(a) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
On or around October 2002, Ms. Lund and her husband were retained to pursue a personal injury case. On April 17, 2003, the Utah Supreme Court accepted her husband’s resignation with discipline pending from the Utah State Bar. Ms. Lund’s husband became her office manager and/or legal assistant. Ms. Lund did not timely pursue settlement or litigation of her client’s personal injury case. During the representation, Ms. Lund failed to timely communicate with her client concerning the status of his case. At the end of 2003 or the beginning of 2004, Ms. Lund left the practice of law to work in the mortgage business. Ms. Lund failed to notify her client that she was not pursuing his personal injury case. Ms. Lund did not notify the insurance company for the opposing party that she was withdrawing as counsel from the case. After Ms. Lund began working in the mortgage business, she failed to supervise her husband’s access to the client’s file. In or around March 2004, her husband engaged in settlement negotiations with the insurance company in the personal injury case. Her husband accepted a settlement offer for the client, but did not inform the client of the settlement offer. Her husband did not receive the client’s authorization for the settlement offer prior to accepting the final settlement. On or about March 16, 2004, the insurance company issued a settlement check payable to Ms. Lund’s husband and the client. Although the settlement check was endorsed and cashed the client did not endorse the settlement check and did not receive any of the monies from the settlement check. At the time of the settlement negotiations with the insurance company, Ms. Lund did not directly supervise her husband’s work. (more…)