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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.


The evening before the attorney sent an email to the opposing attorney advising that opposing attorney that the attorney had filed a motion for a TRO and per the judge’s request, “I sent notice to you and advised you that you will have an opportunity to be heard on” a set date and time. No hearing had, in fact, been set for that day and time. The opposing attorney received the email message regarding the purported hearing and both attorneys were at the courthouse the following morning. The attorney did not provide the court a certificate describing his efforts of the preceding evening to provide notice to the opposing attorney but did file a verified copy of the complaint that morning.


The attorney stated that they did not intend that this be a full hearing but simply a chance for the attorney to talk to the court in the presence of opposing counsel to clarify what the attorney should do to perfect the motion. The attorney believed, based on what the court clerk said, that the attorney could discuss the matter with the court the next day if opposing counsel was present.


PUBLIC REPRIMAND

On July 8, 2011, the Honorable Tyrone E. Medley, Third District Court, entered an Order of Discipline: Public Reprimand against Jared L. Bramwell, for violation of Rules 1.5(a) (Fees), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

Mr. Bramwell was hired to represent a client in pending civil matters. Opposing counsel, in one of the cases filed a Motion for Prejudgment Writ of Attachment (“Motion”) and supporting Memorandum. Mr. Bramwell filed a Memorandum in Opposition to Plaintiff’s Motion for Prejudgment Writ of Attachment. Judge Robert P. Faust heard argument on the Motion. Judge Faust ruled as follows:


“After reviewing the file and now being fully informed, the court grants the motion for the prejudgment writ of attachment against the [client’s] Utah house only. The prejudgment writ of attachment is NOT against their house in Texas. The house can be sold, but the proceeds must be held in an account in Utah and cannot be distributed.”


Opposing counsel mailed Mr. Bramwell a proposed Order documenting Judge Faust’s ruling. Opposing counsel mailed a Prejudgment Writ of Attachment (“Writ”) to Mr. Bramwell stating what Judge Faust had ruled. A Trust Deed between Jared Bramwell and the client was recorded in Salt Lake County. The stated purpose of the Trust Deed was to: (a) secure payment of attorney’s fees, costs and interest in the principal sum of $500,000.00; and (b) to secure indebtedness evidenced by an attorney retainer agreement between Mr. Bramwell and the client. At the time Mr. Bramwell recorded the Trust Deed he was not owed $500,000 in attorneys fees. At most, at the time the Trust Deed was recorded, the client owed Mr. Bramwell and his firm less than $75,000. Mr. Bramwell did not send notice to opposing counsel or to the Court that the Trust Deed had been recorded. Mr. Bramwell executed and recorded the Trust Deed without notice to the opposing counsel, and during the time period after the Court had issued its ruling but before the Order had been signed. Partly because of Mr. Bramwell’s actions with respect to the Trust Deed, the Court held a two-day Contempt Hearing, but declined to hold Mr. Bramwell in contempt.


DISBARMENT

On August 1, 2011, the Honorable L.A. Dever, Third District Court, entered Findings of Fact, Conclusions of law, and Order of Disbarment against Thomas V. Rasmussen for previously violating the Court’s Order of Sanction. Mr. Rasmussen has appealed the sanction to the Utah Supreme Court.


In summary:

A Sanction Order was issued by the Court on July 21, 2010. The Order provided that Rasmussen was suspended for one year with all but 181 days suspended. Pursuant to Rule 14-526(a) of the Rules of Discipline and Disability, the effective date was thirty days later on August 20, 2010. The thirty-day period provided by the Rule is to allow Mr. Rasmussen the time to wind down his practice and cease representing clients.


Mr. Rasmussen continued to practice beyond the August 20th deadline. During the period of suspension Rasmussen made thirty-six appearances in seventeen courts. There were eleven cases where Rasmussen entered an appearance on the case after the effective date of his suspension and there were nine cases where he appeared where charges were not even filed against his clients until after the effective date of his suspension. This establishes Mr. Rasmussen was taking on new matters during his suspension.


Rasmussen filed with the Court an affidavit stating that during the period of suspension he had not practiced law. The affidavit was not truthful.


Rasmussen stated in Court that he violated the suspension Order. His position was that because he needed money he had to violate the Order and practice law.


RESIGNATION WITH DISCIPLINE PENDING

On July 14, 2011, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning Gary W. Nielsen 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 March 22, 2010, Mr. Nielsen entered a guilty plea to one count of Theft, a second degree felony. Mr. Nielsen was sentenced to one year in the Summit County Jail with six years probation with Adult Probation and Parole, restitution in the amount of $346,248.58, and to not practice law in the State of Utah without the approval of the Utah State Bar.


SUSPENSION

On August 8, 2011, the Honorable Kate A. Toomey, Third District Court, entered Findings of Fact, Conclusions of Law, and Order of two-year suspension against John McCoy, for violation of Rules 1.15(a) (Safekeeping Property), 1.15(c) (Safekeeping Property), 8.1(d) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

Mr. McCoy did not promptly withdraw earned fees from the trust account and therefore some portion of the money in the trust account belonged to him. By failing to promptly withdraw his earned fees from his trust account, he commingled his funds with client funds. Mr. McCoy had a line of credit attached to the trust account that initiated regular and automatic withdrawals in the amount of $25 per month from his trust account. Such an arrangement is improper. Mr. McCoy did not eliminate the automatic “ready credit” withdrawals until after he had appeared before a Screening Panel of the Ethics and Discipline Committee of the Utah Supreme Court.


In December 2008, Mr. McCoy issued a check written against his trust account. On January 29, 2009, there were insufficient funds in the trust account to cover a check Mr. McCoy wrote against the account. Funds belonging to his clients were used to pay monthly automatic loan withdrawals and to pay the fee for the check written against insufficient funds. Mr. McCoy failed to maintain complete account records for the funds in his trust account. There are no trust account ledgers and no client ledgers, and relying on the bank statements is insufficient because they do not provide sufficient information to appropriately manage the trust account.


Mr. McCoy suffered a near-catastrophic injury on January 5, 2009, that rendered him at least partially incapacitated for weeks. Mr. McCoy failed to respond to three demands for information from the OPC. His lack of initial response to the bank notice may be explained to some extent by his January injury, but by the time the OPC contacted him in February, he had returned to work, and by July, Mr. McCoy could have provided additional information, but did not.


Aggravating factors:

Prior record of discipline, multiple offenses, obstruction of the discipline proceedings, refusal to acknowledge the wrongful nature of the misconduct, substantial experience in the practice of law, and lack of a good faith effort to rectify the consequences of the misconduct.


Mitigating factors:

Lack of dishonest or selfish motive, good reputation in the legal community.

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This page contains a single entry from the blog posted on November 7, 2011 8:59 AM.

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