« Thinking of Swimming With the Sharks: Lessons Learned While Starting a Practice | Main | Looking for the Lorax on Utah’s Capitol Hill: »

Attorney Discipline

Utah State Bar Ethics Hotline

Call the Bar’s 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 Bar’s 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 June 1, 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), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
While representing a client on a criminal matter, the attorney failed to comply with the Appellate Court's rules and procedures in the appeal of the client's case resulting in a failure to provide competent representation to the client. While the attorney's failures did not result in injury to the client's legal interests, such failures did expose the client to potential injury and did cause harm to the public, the legal system and the profession. The attorney acted negligently and the repeated failures in connection with the appeal displayed a lack of reasonable diligence and promptness in representing the client.

ADMONITION
On June 7, 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 1.15(a) (Safekeeping Property), 1.15(b) (Safekeeping Property), 1.15(c) (Safekeeping Property), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), 5.3(c) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney deposited unearned fees into his general operating account. The attorney did not maintain a ledger for his attorney trust account. The attorney neglected to review his firm's accounting records. The attorney kept excess earned funds in his trust account. The attorney provided inadequate instructions to the nonlawyer staff regarding the obligation to safekeep client funds and property; the attorney simply told the assistant the account could never be overdrawn.

ADMONITION
On June 21, 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 1.2(c) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.4(a)(2),(3) and (4) (Communication), 1.5(b) (Fees), 5.3(a) (Responsibilities Regarding Nonlawyer Assistants), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The fee agreement provided that the attorney Òagreed to render legal service for all aspects of the bankruptcy case, including certain listed tasks.Ó The attorney claims that practitioners understand that a Òbankruptcy caseÓ only extends through confirmation. The attorney did not timely explain his understanding of the limited nature of his representation to the client and failed to properly limit the scope of his representation to exclude seeking sanctions. The client raised a mortgage company's collections contacts with the attorney's assistant early in the relationship. The assistant told the client in several conversations to document and inform the attorney's office of all contacts with the mortgage company so the attorney could pursue sanctions on the client's behalf. The client repeatedly provided responsive information to the assistant, who told the client the assistant was maintaining a file so that the attorney could file for sanctions. The client repeatedly asked the attorney's office over a period of almost two years to seek sanctions, not only for monetary recovery, but also to stop the harassment by the mortgage company. However, it was not until almost two years later that the assistant informed the client that the attorney would not seek sanctions against the mortgage company because of doubtful collectability of any judgment. A disagreement ultimately arose between the attorney and the client as to sanctions. The attorney did not consult with the client in a timely manner to resolve the disagreement over pursuit of sanctions.

The attorney's nonlawyer assistants had most of the contact with the client, including the preparation and review of legal documents, with only limited contact between the attorney and the client. There was little or no injury from the attorney's violations.

Mitigating factors:
Absence of prior record or discipline; absence of a dishonest or selfish motive; difficulties of a small practice representing the general public at reasonable, accessible rates.

Aggravating factor:
Committed multiple offenses with regard to the clients; refused to acknowledge the wrongful nature of his misconduct, either to the client or the disciplinary authority; restrictions against nonlawyer assistants of practicing law; substantial experience in the practice of law.

PUBLIC REPRIMAND
On June 7, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against C. Danny Frazier, for violation of Rules 1.3 (Diligence), 3.2 (Expediting Litigation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Frazier represented a client in a criminal matter. Mr. Frazier failed to appear at a jury trial scheduled in the matter. Mr. Frazier represented another client in a criminal matter and failed to appear at a pre-trial conference in that matter. Mr. Frazier failed to act with reasonable diligence and failed to act with commitment and dedication to the interests of his clients by failing to appear at a jury trial in one matter and a pre-trial conference in another. Mr. Frazier's failure to appear at the trial and pretrial conference caused injury to the public, the legal system and the profession. Mr. Frazier's failure to appear in court for the jury trial and pre-trial conference resulted in a failure to reasonably expedite his client's cases. Mr. Frazier's mental state was negligent.

PUBLIC REPRIMAND
On June 6, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered four Orders of Discipline: Public Reprimand against James H. Deans, for violation of Rules 1.15(a) (Safekeeping Property), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary, in four separate cases:
Mr. Deans presented a check to a financial institution to be paid from his IOLTA trust account. The check was returned for insufficient funds. The financial institution sent to Mr. Deans a notice that he had insufficient funds in his IOLTA trust account. The OPC sent Mr. Deans an insufficient funds letter requiring a response. Mr. Deans did not respond to the OPC's letter. Mr. Deans did not separate his client's funds from funds of other clients by accounting properly for each client's funds. Mr. Deans's negligence led to insufficient funds in his IOLTA trust account. Mr. Deans failed to provide information as properly requested by the OPC.

PUBLIC REPRIMAND
On June 28, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Ryan R. West, for violation of Rules 1.1 (Competence), 1.4(a) (Communication), 1.4(b) (Communication), 1.5(a) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. West failed to provide competent representation to his client. Mr. West did not have a good understanding of IRS appellate procedure and as such missed opportunities to advance his clients' interest. Mr. West lacked a good understanding of Tax Court procedure. This resulted in Mr. West being unable to appear in court because of his failure to gain admission to the Bar of the Tax Court. It also resulted in Mr. West failing to challenge adequately penalties that had been assessed against his client. Mr. West's involvement of a trained tax lawyer was inadequate; he did not involve the lawyer enough in the case. Mr. West failed to communicate adequately with his client and to keep him informed about developments. There were numerous emails from the client asking for updates. The client reached out to IRS counsel because he could not obtain information from Mr. West. Mr. West admitted that earlier he had reached the conclusion that the case was unwinnable yet he failed to communicate that to the client before the eve of trial. Mr. West's waiting until the eve of the trial to explain to his clients his assessment of the case resulted in his clients feeling compelled to capitulate to the IRS's demands. In light of Mr. West's lack of experience in tax cases, the fee charged was unreasonable. The unreasonable fee caused actual injury to the client. Actual injury to the client also occurred in the form of additional lawyer fees incurred, the loss of an opportunity to challenge alleged penalties and the inability to reassess the case and perhaps settle earlier and cut off interest accrual. Mr. West's state of mind was general negligence.

INTERIM SUSPENSION
On July 6, 2012, the Honorable Marvin D. Bagley, Fifth Judicial District Court, entered an Order on Rule 14-518 Hearing granting the OPC's Petition for Interim Suspension against JoAnn S. Secrist.

In summary:
Respondent filed numerous pleadings in district and appellate courts containing statements of personal opinion that were neither relevant nor helpful to the case. The pleadings raised concerns about whether Respondent was providing adequate representation for her clients.

STAYED SUSPENSION AND PROBATION
On May 11, 2012, the Honorable Fred D. Howard, Fourth Judicial District Court, entered a Findings of Fact, Conclusions of Law, and Order of Discipline suspending Michael Humiston from the practice of law for one year, with all but three months of the suspension stayed in favor of probation for a period of nine months in violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.4(a) (Communication), 1.4(b) (Communication), 1.6(a) (Confidentiality of Information), 1.7(b) (Conflict of Interest: General Rule), 1.14(a) (Client Under a Disability), 1.15(a) (Safekeeping Property), 1.15(b) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), 8.1 (Bar Admission and Disciplinary Matters), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary, there are three matters.
In the first and second matters:
A tribe retained Mr. Humiston to help it establish itself as an American Indian tribe recognized by the U.S. Government. Mr. Humiston represented the tribe and the Chief Executive of the tribe, as an individual, in several lawsuits. After receiving from the Chief Executive fishing citations received by members of the tribe as evidence of encroachment on tribal sovereignty rights, Mr. Humiston entered appearances in court to defend several of the members regarding the citation prosecutions. In two cases, Mr. Humiston did not meet with the members or otherwise contact them about the citations to notify them about the individual representation. Mr. Humiston tried to remove the first member's fishing citation case to federal court without consulting with the client. Mr. Humiston did not keep the client informed or explain the removal. The state stipulated to stay prosecution of the first member's citation pending a ruling on a motion in one of the tribe's cases. Later Mr. Humiston withdrew the motion but did not notify the client about the withdrawal of the motion and the effects it could have on the prosecution stay.

Mr. Humiston filed a complaint on behalf of the second tribal member in federal court. During this time, Mr. Humiston disagreed with the Chief Executive about litigation tactics and other aspects related to the representation of the tribe and the Chief Executive. Mr. Humiston did not inform the member about the federal lawsuit until about seven months later in part because he did not want the Chief Executive to know about the lawsuit. The second tribal member eventually agreed to the representation to defend the citation case with conditions. Mr. Humiston did not advise the client that he believed one of the conditions would be inappropriate and he did not comply with all of the conditions. Later, Mr. Humiston filed an affidavit to support his motion to withdraw as counsel for the tribe. In the affidavit and later when speaking to a reporter, Mr. Humiston made statements against his client's interests. Before filing the affidavit and speaking to the media, Mr. Humiston failed to consult with his client, the Tribe, as to the veracity of the statements he made in the affidavit and to the media and he failed to consult with and obtain his client's consent to reveal information related to the representation.

While representing a client in a divorce, Mr. Humiston and his assistant took over all of the client's finances because he believed the client was unable to care for herself. Mr. Humiston and the assistant paid the client's bills but did not maintain the client's money in his trust account until the bills were paid. Although requested, the assistant and Mr. Humiston did not provide the client an accounting of her money and expenses. Mr. Humiston or his staff took possession of the client's car. The client was initially led to believe the car was repossessed to teach her to refer debt collection calls to her attorney to handle. After the car broke down while the assistant was driving it, Mr. Humiston arranged for a mechanic to repair the car in exchange for legal work he agreed to perform for the mechanic. Mr. Humiston disclosed information about the client's family history to the mechanic without the client's permission. The client moved out of the living arrangements made by Mr. Humiston's assistant with her father's assistance. Mr. Humiston disliked the father's influence on the client. Mr. Humiston advised his new client, the mechanic, to place a lien on the client's car and refused to tell the divorce client the location of the mechanic who had the car. Mr. Humiston received settlement funds from the ex-husband for the client but he did not place the funds in his trust account or deliver them to the client. Without consulting with his client, Mr. Humiston advised the ex-husband to stop payment on the settlement funds and told him he could consider the obligation to pay suspended until he received reasonable assurance from Mr. Humiston that the client and not her father would receive the money. After the client terminated the representation and requested her file, Mr. Humiston refused to return the file directly to the client and she had to hire new counsel to get her file. In response to the client's bar complaint, Mr. Humiston informed the OPC that the ex-husband had place a stop payment order on the settlement check and did not inform the OPC that he requested that the ex-husband place the stop payment order.

RECIPROCAL DISCIPLINE
On June 6, 2012, the Honorable Tyrone Medley, Third Judicial District Court, entered an Order of Reciprocal Discipline: Suspension suspending Richard A. Bednar from the practice of law to run concurrently with his Virginia suspension. Mr. Bednar violated the following Rules 1.3 (Diligence), 1.4 (Communication), 1.15(a) (Safekeeping Property), 1.15(c) (Safekeeping Property), 1.16 (Declining or Terminating Representation), 8.1(a) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Mr. Bednar is a member of the Utah State Bar and is also licensed to practice law in Virginia. The Virginia State Bar Disciplinary Board issued a Memorandum Order suspending Mr. Bednar from practicing law for three years. An Order was entered in Utah based upon the discipline order in Virginia.

In summary:
In the first matter, the Complainant retained Mr. Bednar with regard to an issue relating to the Complainant's military discharge. The Complainant paid Mr. Bednar's firm a fee. Initially, Mr. Bednar performed services but then failed to finish the work. The client called the Naval Discharge Review Board and determined that nothing had been submitted on his behalf. The Complainant filed a complaint with the Virginia State Bar. Mr. Bednar failed to file a written response to the bar complaint.

In the second matter, the Complainant alleged that over the five months preceding the filing of his complaint, he had tried without success, to have Mr. Bednar reply to him concerning having his military records submitted to the applicable military review board. Bar Counsel sent a copy of the Complainant's Bar complaint to Mr. Bednar, demanding that a written answer thereto. Mr. Bednar failed to file a written response and failed to comply with demands for information.

In the third matter, the Complainant engaged Mr. Bednar to evaluate his legal matter regarding his military discharge. The Complainant paid Mr. Bednar an advanced fee and then was unable to reach Mr. Bednar. Bar Counsel sent a copy of the Complainant's Bar complaint to Mr. Bednar, with a letter demanding that a written answer be filed. Mr. Bednar failed to file a written response.

In the fourth matter, the Complainant hired Mr. Bednar regarding a medical discharge issue involving the Navy. The Complainant was made aware that Mr. Bednar's law partner was accepting federal employment and therefore Mr. Bednar would continue with the Complainant's representation, however, the Complainant received an adverse decision from the Board for Correction of Naval Records. Mr. Bednar agreed to file a Petition with the Naval Discharge Review but never did. Mr. Bednar closed his office and moved to Utah. The Complainant did not receive notification of Mr. Bednar closing his office. An audit found that Mr. Bednar's escrow account had computational and other discrepancies.

DISBARMENT
On May 1, 2012, the Honorable Randall Skanchy, Third Judicial District Court, entered a Findings of Fact, Conclusions of Law, and Order of Disbarment against Jeremy M. Rogers 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(d) (Safekeeping Property), 1.16(d) (Declining Representation), 3.14 (Meritorious Claims and Contentions), 5.3(b) and (c) (Responsibilities Regarding Nonlawyer Assistants), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Rogers's case was the result of four complaints that were filed against him.
In the first matter, Mr. Rogers was hired to represent a client after she was injured in a car accident. The client was treated by a Chiropractor. Mr. Rogers signed a lien for payment. He failed to put the money in his client trust account and failed to distribute funds to his client and to the Chiropractor even though numerous attempts were made to retrieve the money by both parties.

In the second matter, the clients hired Mr. Rogers and his company HELP, LLC to assist them in taking steps to delay or stop the foreclosure of their home. The fee agreement indicated that HELP would negotiate with the lender and file a case against the lender among numerous other things. The clients paid Mr. Rogers a flat fee for his services. Besides the flat fee there was also a contingency fee of 1% of any reduction in principal on the property that occurred as a result of HELP's services. Mr. Rogers advised the clients to discontinue making their monthly mortgage payments and that he would file a Complaint. For approximately six months the clients tried to communicate with Mr. Rogers with no response. Although a Complaint was eventually filed, Mr. Rogers failed to serve it and the Complaint was dismissed along with numerous other Complaints that Mr. Rogers's filed. The clients notified Mr. Rogers that their home would be sold at auction, but Mr. Rogers did not respond and the home was eventually sold at auction. Sanctions were assessed against Mr. Rogers for filing frivolous actions. The clients asked for their files and for a full refund. Mr. Rogers did not refund any money.

In the third matter, the clients hired Mr. Rogers and his company, HELP Law who promised to file legal action within fifteen days or the client would receive his money back. The clients met with Mr. Rogers and signed a Retainer Agreement with HELP Law and with Mr. Rogers as its attorney. The clients paid a fee to Mr. Rogers. In addition to the fee, Mr. Rogers and HELP Law would receive a contingency fee of 20%. The clients attempted to contact Mr. Rogers many times to determine the status of their case. He failed to respond. The clients decided to contact the federal court and learned that no case had been filed on their behalf. After trying to reach Mr. Rogers on several occasions without response, the clients told Mr. Rogers that they did not want to proceed and wanted their money returned. The clients' home went into foreclosure and was ultimately sold in a short sale for a loss. Mr. Rogers failed to return any of the fees paid by the clients.

In the fourth matter, the clients built a home but began to experience financial difficulties and hired Mr. Rogers. A non-lawyer acting on behalf of Mr. Rogers sent the clients a Retainer Agreement. The clients paid a fee to Mr. Rogers for his representation. Numerous contacts were made with the non-lawyer over several months with the non-lawyer giving legal advice to the clients. Mr. Rogers failed to contact the clients himself. Numerous requests for information followed with no response. The clients informed Mr. Rogers of the impending sale of their home at auction with no response. A non-lawyer working for Mr. Rogers gave legal advice to the clients including attempting to assist them in filing a Bankruptcy. The clients' Petition was denied because of an improper filing. The clients' home was sold at auction. Mr. Rogers refused to return any of the clients' money even though they requested a refund.

The court found that Mr. Rogers intentionally misappropriated client funds and that there was no evidence of a truly compelling mitigating factor. The court found that the following aggravating circumstances applied: dishonest or selfish motive; pattern of misconduct; multiple offenses; refusal to acknowledge the wrongful nature of the misconduct involved, and lack of good faith effort to make restitution.

About

This page contains a single entry from the blog posted on September 26, 2012 8:51 AM.

The previous post in this blog was Thinking of Swimming With the Sharks: Lessons Learned While Starting a Practice.

The next post in this blog is Looking for the Lorax on Utah’s Capitol Hill:.

Many more can be found on the main index page or by looking through the archives.

The Utah State Bar presents this web site as a service to our members and to the public. Information presented in this site is NOT legal advice. Please review the Terms of Use for more policy, disclaimer & liability information - ©Utah State Bar email: info@utahbar.org