Utah Bar Journal

In summary:
The attorney negligently made misrepresentations to the opposing party’s counsel concerning a tape recording that did not exist. The misrepresentations served no other purpose than to delay or burden the opposing party.

In a second matter, the attorney failed to prosecute the clients’ case which included timely notifying the clients of and responding to the opposing party’s discovery requests and depositions. The attorney further failed to timely file a motion to withdraw from the case.

PUBLIC REPRIMAND
On December 20, 2007, the Vice-Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James I. Watts for violation of Rules 1.4(a) (Communication), 3.3(a) (Candor Toward the Tribunal), 5.3 (Responsibilities Regarding Nonlawyer Assistants), 8.1(a) (Bar Admission and Disciplinary Matters), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Watts placed his notary and sworn statement on a financial declaration when the document was not signed in his presence and the document was signed by his legal assistant without the client’s knowledge or permission. After Mr. Watts learned that the document had been falsified, he failed to inform the court. Mr. Watts failed to properly train his assistant to ensure that the assistant’s conduct was compatible with his ethical obligations. Additionally, Mr. Watts failed to keep his client reasonably informed concerning the case status.

PUBLIC REPRIMAND
On December 20, 2007, the Vice-Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James I. Watts for violation of Rules 1.4(a) (Communication), 1.5(a) (Fees), 1.15(a) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Watts charged an excessive flat fee on a case where he spent two hours on the client’s case. This included one phone call discussion and three to four phone messages. In making those phone calls, Mr. Watts did not obtain any meaningful results on behalf of his client. Mr. Watts failed to respond to the client’s request for information concerning his fee. Mr. Watts failed to properly safeguard his client’s money by placing it in his client trust account and failed to provide an accounting to the client. Mr. Watts failed to protect his client’s interests by failing to return the unearned fee.

DISBARMENT
On December 4, 2007, the Honorable Robin W. Reese, Third Judicial District Court, entered an Order of Disbarment disbarring Richard G. Hackwell from the practice of law for violations of Rules 1.2(c) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), 1.15(a) (Safekeeping Property), 1.15(b) (Safekeeping Property), 1.15(c) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 4.1(a) (Truthfulness in Statements to Others), 4.1(b) (Truthfulness in Statements to Others), 8.1(b) (Bar Admission and Disciplinary Matters), 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
In one matter, Mr. Hackwell made false statements to the adopting parents and an adoption agency about his client’s health care status and failed to respond to the OPC’s reasonable requests for information.

In a second matter, Mr. Hackwell assisted his client in demanding adoption fees in excess of fees permitted by statute and assisted his client in misleading a third party concerning his client’s due date in order to obtain additional money from the third party. Mr. Hackwell collected unreasonable attorney fees and costs given the work performed in the matter. During the representation, Mr. Hackwell collected funds from the third party, to be distributed to Mr. Hackwell, his client and others pursuant to an agreement. Mr. Hackwell failed to provide a full accounting of those funds or provide a refund of the unearned funds. Further, Mr. Hackwell failed to hold the funds in his trust account separate from his own money until use of the funds was authorized. Mr. Hackwell failed to distribute the collected funds in accordance with the agreement. Mr. Hackwell failed to hold disputed funds separate in his trust account until the disputes were resolved and he failed to distribute funds to those with undisputed interests in the funds. Mr. Hackwell made false statements to a third party concerning the payment and status of the funds he collected and he failed to disclose the error in the birth mother’s due date and fully disclose the status of the funds collected. Mr. Hackwell also failed to respond to the OPC’s Notice of Informal Complaint.

In a third matter, Mr. Hackwell failed to diligently finalize an adoption. Mr. Hackwell failed to respond to the requests for information and failed to inform his clients of the work performed to allow the clients to make informed decisions. Mr. Hackwell failed to return unearned fees after his representation was terminated. Mr. Hackwell also failed to respond to the OPC’s Notice of Informal Complaint.

In a fourth matter, Mr. Hackwell failed to diligently represent his client in an immigration matter. Mr. Hackwell failed to respond to the client’s requests for information and failed to inform his client of a hearing date to allow the client to participate. Mr. Hackwell also failed to communicate with the client’s new counsel to protect his client’s interests after he had been terminated from the representation.

In a fifth matter, Mr. Hackwell failed to diligently pursue the case on behalf of his client. Mr. Hackwell failed to respond to the client’s request for information and failed to keep the client apprised of the case. Mr. Hackwell failed to return unearned fees and costs at the termination of the representation. Mr. Hackwell also failed to respond to the OPC’s Notice of Informal Complaint.

In a sixth matter, Mr. Hackwell failed to diligently pursue an adoption on behalf of his client. Mr. Hackwell failed to respond to the clients’ requests for information and failed to keep the clients apprised of the case status. Mr. Hackwell failed to refund unearned fees at the termination of the representation. Mr. Hackwell also failed to respond to the OPC’s Notice of Informal Complaint.

ADMONITION
On December 17, 2007, 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(e) (Conflict of Interest: Prohibited Transactions), 1.8(j) (Conflict of Interest: Prohibited Transactions), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney provided financial assistance to a client by providing housing to the client. The attorney also engaged in sexual relations with the client during the representation of the client in a divorce and a criminal matter.

ADMONITION
On December 17, 2007, 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 1.7(a)(2) (Conflict of Interest: General Rule), 1.9(e) (Conflict of Interest: Former Client), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was hired to draft a codicil for the client’s parent. When the attorney obtained the parent’s signature, the attorney failed to inform the parent that the attorney did not represent the parent and that the parent may hire their own attorney. The attorney should have informed the parent of this because the parent could have reasonably believed that the attorney was the parent’s attorney. In subsequent representation concerning guardianship of the parent, the attorney had a conflict and the case was ultimately dismissed.

PUBLIC REPRIMAND
On December 13, 2007, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against C. Andrew Wariner for violation of Rules 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 4.1(a) (Truthfulness in Statements to Others), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Wariner was hired to represent a client in a personal injury action and a wrongful death action. Mr. Wariner accepted an insurance settlement offer without consulting with his client. Mr. Wariner failed to communicate with his client concerning the client providing medical releases to opposing counsel. Mr. Wariner falsely represented to an arbiter that his client approved the settlement and falsely represented to the insurance company’s counsel that he was unable to reach his client.

PUBLIC REPRIMAND
On December 13, 2007, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against John D. Sorge for violation of Rules 1.4(a) (Communication), 1.5(b) (Fees), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Sorge was hired to file two petitions on behalf of his client with the Utah State Board of Pardons for an early release hearing. Mr. Sorge failed to keep his client informed and comply with reasonable requests for information. Mr. Sorge did not communicate in writing the basis or rate of his fee to his client. Mr. Sorge did not file a second petition on behalf of the client. After the termination of the representation, Mr. Sorge failed to refund the unearned portion of the fee.

ADMONITION
On December 6, 2007, 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), 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), 8.1(b) (Bar Admission and Discipline Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney had an overdraft on the attorney trust account. The attorney failed to assure that the attorney’s bookkeeper was trained and acted consistent with the attorney’s professional responsibilities. The attorney failed to reconcile monthly bank statements and review individual client accounts. Further, the attorney failed to respond to requests for information from the OPC.

ADMONITION
On December 6, 2007, 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(b) (Misconduct) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was convicted of failure to report abuse of a child by pleading no contest to the charge. The attorney was told about the child abuse on two different occasions, but failed to report it to the authorities. The attorney had prior experience with child abuse cases and should have known the attorney’s obligation to report the abuse.

ADMONITION
On December 7, 2007, 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 8.1(b) (Bar Admission and Disciplinary Matters) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney received OPC’s requests for information and failed to timely respond to those requests for information.

PUBLIC REPRIMAND
On November 30, 2007, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Public Reprimand against Frank A. Berardi for violation of Rules 1.6(a) (Confidentiality of Information), 1.7(a) (Conflict of Interest: Current Clients), 3.7(a) (Lawyer as Witness), 4.2(a) (Communication with Persons Represented by Counsel), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Berardi represented a client in a criminal matter. One of the witnesses from whom Mr. Berardi planned to seek testimony was also a client of Mr. Berardi’s in a civil matter. Mr. Berardi’s civil client had also been indicted on drug charges, and was represented in the criminal matter by another attorney. Mr. Berardi met with his civil client to discuss the case against Mr. Berardi’s criminal client, but failed to obtain the consent of the civil client’s criminal defense attorney. Mr. Berardi used threats to obtain an affidavit from his civil client which, while helpful to Mr. Berardi’s criminal client, Mr. Berardi listed the affidavit as an exhibit, and planned to impeach the civil client’s testimony. Mr. Berardi had become a potential witness in the matter, based on the affidavit and the conditions under which it was obtained, and planned to cross-examine his own client.