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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 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.


ADMONITION

On January 11, 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) (Conflict of Interest: Current Clients), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

The attorney represented a client in two collection actions. The attorney failed to adequately respond to the client’s requests for information. The attorney also represented the client’s daughter. The attorney did not obtain a waiver based on informed consent for the concurrent representation. The attorney did not explain the implications of the concurrent representation. The implications were highlighted during a hearing where the attorney could not fully respond to the complaint and could not disclose information about future problems facing his client because one of the clients had not consented, even though the information was obtained, at least in part, pursuant to the representation. To the extent that the attorney obtained waivers, the waivers were not confirmed in writing. The attorney did not promptly return his client’s file when requested. The attorney’s violation of the Rules was negligent and caused little or no injury beyond the toll on his professional relationship with his client.


Aggravating factors:

Length of time it took for the attorney to return the file and the attorney’s position with respect to attorney-client privilege.


Mitigating factors:

Most of the work performed was uncompensated and this was the attorney’s first offense.


PUBLIC REPRIMAND

On December 21, 2011, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James F. Nichols, for violation of Rules 1.1 (Competence), 1.5(b) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

At no time did Mr. Nichols and his client discuss the ultimate fee agreement or reach an agreement concerning fees and expenses. Mr. Nichols failed to communicate with his client about the true scope of the representation or how the fees and expenses were to be paid. Mr. Nichols did not possess the requisite legal knowledge, skills, and competence to properly advise the client concerning foreclosure matters and Mr. Nichols did not acquire those skills during the representation. There was actual injury in that the client expended unnecessary sums in attorney fees. Mr. Nichols acted negligently.


Aggravating factors:

No remorse and excuses contradicted by the Respondent’s own evidence.


Mitigating factors:

Absence of prior record of discipline; personal or emotional issues; and inexperience in the practice of law.


PUBLIC REPRIMAND

On December 21, 2011, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against James F. Nichols, for violation of Rules 1.4(a) (Communication), 1.5(a) (Fees), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

Prior to his withdrawal as counsel, Mr. Nichols failed to inform his client of a pending Order to Show Cause that had been issued in the case. Since Mr. Nichols did not complete the work to be performed in this case, his retainer was unreasonable and excessive. Even though Mr. Nichols knew how to contact his client, Mr. Nichols took no steps for two months to withdraw. When Mr. Nichols did finally withdraw, he failed to inform his client of the withdrawal. Mr. Nichols did not advise his client concerning the status of the case. Mr. Nichols did not prepare, file and serve a “Notice to Appear or Appoint” as directed by the Court. There was actual injury in that Mr. Nichols’s client had to hire new counsel and may have incurred additional fees. Mr. Nichols’s mental state was negligent.


Aggravating factors:

No restitution; no sincere remorse; excuses contradicted by the evidence; and refusal to acknowledge wrongful conduct.


Mitigating factors:

Absence of prior record of discipline; personal or emotional issues; and inexperience in the practice of law.


PUBLIC REPRIMAND

On January 9, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Philip C. Patterson, for violation of Rules 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer), Rule 1.4(a)(5) (Communication), 1.5(c) (Fees), 1.16(a)(1) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

Mr. Patterson knowingly failed to consult with his client and obtain her consent before he stipulated to the opposing party’s Summary Judgment Motion and thereby failed to abide by his client’s decision concerning the merits of the case. Mr. Patterson’s conduct caused injury to the public and the legal system because he deprived his client of the opportunity to have her case considered on the merits as she wished. Mr. Patterson failed to communicate to his client his belief that opposing the Summary Judgment Motion would be a violation of the rules. Mr. Patterson’s failure to so communicate was knowing and such failure to communicate caused injury. Mr. Patterson negligently failed to enter into a written contingent fee agreement with his client. Mr. Patterson knowingly failed to withdraw from the representation when he knew that he and his client had fundamentally conflicting views concerning the merits of the case and Mr. Patterson believed that his continuing representation would violate the rules. Mr. Patterson’s conduct caused injury to the public and to the legal system because it denied his client the opportunity to engage new counsel or represent herself and have her case decided on the merits.


Aggravating factors:

Vulnerability of the complainant due to her lack of legal knowledge and experience.


Mitigating factors:

Absence of prior discipline; absence of a dishonest or selfish motive; cooperative attitude in disciplinary proceedings; remorse and acceptance of responsibility.


PUBLIC REPRIMAND

On December 8, 2011, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Shawn D. Turner, for violation of Rules 5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice of Law), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

Mr. Turner utilized as a paralegal a person he thought was a retired California attorney when the paralegal came to Mr. Turner with a legal problem of a friend. It was agreed that the paralegal would do as much “ministerial” work as possible to keep costs down and that Mr. Turner would review, correct, and sign pleadings and generally act as counsel. The paralegal prepared and Mr. Turner made “stylistic” changes to an Answer and thereafter an Answer, Counterclaim, and Third-Party Complaint. Mr. Turner communicated with the client through the paralegal. The client paid the paralegal for services rendered believing that the paralegal would pass the money to Mr. Turner. The client viewed the paralegal as his attorney. As a product of the client learning that the paralegal was not paying Mr. Turner and also learning that the paralegal was not a California attorney, the client terminated the services of the paralegal and Mr. Turner. Mr. Turner knew that the paralegal was not admitted to practice law in the State of Utah.


SUSPENSION

On December 8, 2011, the Honorable John R. Morris, Second Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Discipline suspending Bradley N. Roylance from the practice of law for a period of three years for violation of Rules 8.4(b) (Misconduct) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.


In summary:

On March 11, 2010, Mr. Roylance entered guilty pleas to two counts of Sexual Abuse of a Minor, class A misdemeanors. Mr. Roylance was sentenced to serve 180 days in the Davis County Jail, pay a $400.00 fine, serve 24 months probation, complete DNA testing with payment of the fee, and abide by Group A sex offender conditions.


The Court found that the crimes of which Mr. Roylance has been convicted reflect adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects.


Aggravating factors:

Prior record of discipline; dishonest or selfish motive; multiple offenses; vulnerable victim; substantial experience in the practice of law; and illegal conduct.


Mitigating factors:

Good faith efforts to make restitution or rectify the consequences of his misconduct; cooperative attitude toward disciplinary proceedings; good character and reputation; interim reform; criminal penalties and sanctions; and remorse.

DISBARMENT

On December 16, 2011, the Honorable Thomas Low, Fourth District Court entered Findings of Fact, Conclusions of Law and Order of Disbarment against Nelson A. Moak for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees), 1.15(a) (Safekeeping Property), 1.15(c) (Safekeeping Property), 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, there are two matters:

Mr. Moak was hired to represent clients in a bankruptcy matter. At their initial meeting the clients signed a Flat Fee Payment Agreement. After their initial meeting, the clients called Mr. Moak several times to see if their Bankruptcy Petition (“Petition”) had been filed. Mr. Moak changed his office phone number without notifying his clients. Mr. Moak filed the Petition several months after the initial meeting. Mr. Moak failed to provide the Court with all the necessary documents for their bankruptcy filing. Mr. Moak did not appear at the Meeting of Creditors. Mr. Moak failed to perform sufficient work to earn the fee that he collected. Mr. Moak did not submit a response to the Notice of Informal Complaint (“NOIC”). Mr. Moak did not appear at the Screening Panel Hearing.


The OPC received three notices of insufficient funds from a financial institution regarding Mr. Moak’s attorney trust account. Several checks had been written on Mr. Moak’s attorney trust account causing insufficiencies. The OPC sent letters to Mr. Moak requesting a response. Mr. Moak never submitted a response to the OPC. Mr. Moak mismanaged his client trust account by allowing his attorney trust account to go into the negative. Mr. Moak either failed to deposit unearned fees into his trust account and/or withdrew funds that were not earned. The OPC sent a NOIC to Mr. Moak for all three notices of insufficient funds. Mr. Moak did not submit a response to the OPC. Mr. Moak did not appear at the Screening Panel Hearing.


Aggravating factors:

Dishonest or selfish motive; Obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary authority; and substantial experience in the practice of law.

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