Utah Bar Journal

In summary:
In a civil litigation matter, the attorney failed to explain to the clients the effects of a binding settlement offer, and failed to adequately respond to the clients’ requests for information. The attorney provided no documented evidence of communication with the clients.

SUSPENSION
On September 24, 2007, the Honorable Glenn K. Iwasaki, Third Judicial District Court, entered Findings of Fact and Conclusions of Law and Order of Discipline: Suspension against Mark A. Besendorfer, for violations 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), 1.16(a) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 8.4(b) (Misconduct), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. Mr. Besendorfer has been suspended for a period of three years, two years of the suspension are stayed with Mr. Besendorfer serving a one year unstayed suspension, effective November 15, 2007.

In summary:
In one matter, Mr. Besendorfer was hired to pursue a medical malpractice action. After Mr. Besendorfer filed a complaint, it was dismissed for failure to serve the summons. Mr. Besendorfer refiled the action. Thereafter, the opposing party filed a motion for summary judgment which was granted. Mr. Besendorfer informed his client that the case was proceeding, including that opposing party’s motion for summary judgment was not successful. Mr. Besendorfer had not responded to the motion for summary judgment. Throughout the representation, Mr. Besendorfer informed his client that the trial dates were set, but were subsequently postponed. He also informed his client that there was settlement offer when there was not. The client sued Mr. Besendorfer and was awarded damages based on Mr. Besendorfer’s misconduct.

In a second matter, Mr. Besendorfer was hired to pursue a civil claim. The clients paid Mr. Besendorfer for the filing costs. Mr. Besendorfer informed his clients that he had obtained a judgment on their behalf and the matter was on appeal, when in fact no judgment had been obtained on their behalf. During the representation, which lasted nearly eight years, Mr. Besendorfer generated voluminous paperwork although he had failed to proceed with the lawsuit. The paperwork included pleadings and documents that he photocopied from other client files that included judges signatures to mislead the clients to appear that the matter was proceeding forward. Mr. Besendorfer also paid money out of his own pocket to his clients to further fabricate that there was collection on the judgment. At the time Mr. Besendorfer admitted his failures, some of the statute of limitations had passed on the clients’ claim.

ADMONITION
On October 10, 2007, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.3 (Diligence) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was appointed to represent an individual in a criminal case. After a guilty plea had been entered, the individual requested that the plea be withdrawn. The plea was not timely withdrawn because the attorney failed to open mail and/or properly calendar the plea withdrawal deadline.

PUBLIC REPRIMAND
On September 13, 2007, the Honorable John R. Anderson, Eighth Judicial District Court, entered an Order of Discipline: Public Reprimand against Karen Allen for violations of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
In her representation of a client in a divorce matter, Ms. Allen did not open all of her mail and missed the notice the court issued setting the matter for a bench trial. Due to her mismanagement of her mail, Ms. Allen did not prepare for the bench trial nor did she inform her client of the bench trial. Also during the representation, Ms. Allen did not explain the divorce process and a stipulation to the extent that her client understood the process. Ms. Allen failed to respond to opposing counsel’s request that she approve as to form the decree of divorce. Ms. Allen failed to provide a copy of the proposed decree of divorce to her client prior to submission with the court. Ms. Allen also failed to notify her client of the conclusion of the case. Ms. Allen failed to timely submit a response to the Office of Professional Conduct’s Notice of Informal Complaint.