STUFF THAT'S GOING

ON WITH ATTORNEY DISCIPLINE IN UTAH...

 

February 16, 2018

2018 UT 6


LaJeunesse was the Presiding Administrative Law Judge with the Utah Labor Commission.  LaJeunesse had adopted a policy that ALJ's could reject medical reports written in worker's compensation cases, and request new reports,  without disclosing the rejected reports to the parties.  The Labor Commission determined this practice violated the statute and terminated LaJeunesse.  The OPC then prosecuted him for engaging in conduct that was prejudicial to the administration of justice, thus violating Rule 8.4(d).  The district court found that LaJeunesse did not violated the rule, he simply adopted a good faith, but mistaken, interpretation of the law.  The OPC appealed.  To say the Utah Supreme Court took issue with the OPC's brief on appeal would be an understatement. The Court summarized the deficiencies this way: "...the brief fails to append the district court's decision to its brief,...fails to cite the record to show where its arguments were preserved below,...and fails to identify specific findings or conclusions of the district court that the OPC is challenging on appeal or to marshal evidence or legal authority in support of arguments for reversal of such findings, or conclusions."  Although the Court recognized it could have affirmed the decision on those grounds alone, it elected to address the merits of the appeal, "because the responsibility to oversee the attorney discipline process is ours under the Utah Constitution." In short, the Court held that an attorney does not violated rule 8.4(d) when that adopt a good faith, but mistaken, interpretation of law. 

January 8, 2018

The Committee was asked to opine on an attorney's duties in a situation where the attorney was retained by a firm to consult on a particular subject matter.  The Committee concluded that, although there would be no attorney client relationship with the firm's client on who's matter the attorney was retained to consult, the attorney may still owe a duty of confidentiality with regard to information obtained about the matter.

August 15, 2017

2017 UT 50
Ms. Rose was prosecuted for filing briefs in both state and federal courts that were described by the judges as being "bizarre," "legally meritless," "frivolous," "utterly incomprehensible," and "not based in reality."  The prosecution of Ms. Rose carried on for over eight years before the judge struck her Answer and entered a default against her.  Ms. Rose refused to participate in the sanction portion of her trial and was disbarred.  On appeal, rather than challenge the appropriateness of her disbarment, Ms. Rose argued the Utah attorney discipline process was unconstitutional.  The Utah Supreme Court found that Ms. Rose had failed to adequately brief the issues and affirmed the order of the district court.

April 2017

In 2016 the Utah Supreme Court commissioned a review of their attorney discipline system by the American Bar Association's Standing Committee on Professional Discipline.  The report was issued in April  2017 and recommended numerous changes to the system.  The report is now being studied by a committee appointed by the Utah Supreme Court, which will make recommendations as to which, if any, of the ABA's suggestions should be adopted. The report is posted on the Utah Court's website and can be accessed by following the link below.

February 22, 2017

391 P.3d 1039, 2017 UT 11 (Utah 2017)

Mr. Bates mistakenly deposited unearned advanced fees into his operating account, rather than his trust account.  Once he discovered the mistake, however, he left the money in his operating account, rather than move it to his trust account.  Shortly thereafter, Mr. Bates transferred all the funds in his operating account to his payroll account and used the money to pay his employees.  He was accused of intentionally misappropriating client funds.  The district court determined that Mr. Bates acted negligently, rather than intentionally, and suspended him for five months.  The OPC appealed, arguing that Mr Bates should have been disbarred.  The Utah Supreme Court found that while Mr. Bates knowingly commingled client funds by leaving the unearned money in his operating account, his use of those funds for his firm's payroll was only negligent.  Therefore, the Court upheld the five month suspension, rather than disbar Mr. Bates, which was the sanction argued for by the OPC. 

February 22, 2017

391 P.3d 1031 (Utah 2017)


While employed at a firm, Mr. Barrett was hired to represent a man in a custody modification.  Mr. Barrett provide the legal services and generated corresponding bills for his work.  However, rather than have the client pay the firm, Mr. Barrett reached an agreement whereby the client would build a shed in Mr. Barrett's backyard.  The client built the shed and Mr. Barrett asked the firm, who was unaware of the agreement, to write off the bills.  Mr. Barrett reached a similar agreement with another client where he asked the firm to write off the bills of a client who partially built a railing on Mr. Barrett's porch.  However, when the client wasn't able to complete the railing, he paid Mr. Barrett in cash, who kept the money, rather than give it to the firm.  Although the district court found that Mr. Barrett violated rule 8.4(c) by misappropriating funds, the court suspended Mr. Barrett for 150 days, rather than disbar him because he took firm money, not client money.  It is well settled law in Utah that if an attorney intentionally steals money from a client, he will be disbarred. On appeal, the OPC argued the presumptive sanction of disbarment for misappropriation should apply, regardless of whether the victim was a client or the attorney's firm.  The Utah Supreme Court disagreed and affirmed the suspension.  In the words of the Court, "not all misappropriation is created equal." 

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