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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 28, 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(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.4(a) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney acted negligently in stipulating to the Memorandum of Understanding and causing the dismissal of the client’s case after the attorney’s office received the client’s faxed letter stating that the client had reconsidered the settlement and did not want the Memorandum of Understanding submitted to the Court. The attorney’s conduct caused potential injury because the client’s decision on this matter should have been honored and the client should have been allowed an opportunity to challenge the enforcement of the Memorandum of Understanding. The attorney did subsequently file a motion to set aside the divorce decree; however, that motion was denied. The attorney negligently failed to reasonably communicate with the client prior to stipulating to the divorce decree.

ADMONITION
On August 8, 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 1.3 (Diligence), 1.4(a) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was hired to have a juvenile’s criminal record expunged. The attorney failed to reasonably communicate with his clients. The attorney failed to timely respond to the OPC’s request for information. The attorney was negligent and his misconduct inflicted little or no injury.

Aggravating factors:
Prior discipline history and substantial experience in the practice.

Mitigating factors:
Remorse and recent personal issues.

PUBLIC REPRIMAND
On August 27, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Kimberly J. Trupiano, for violation of Rules 3.3(a) (Candor Toward the Tribunal), 8.4(c) (Misconduct), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
A pro se individual pleaded guilty to criminal charges; was placed on probation; fined and ordered to complete further evaluation. Almost two years after the conviction, the judge was notified that the individual had not paid the fines nor completed the evaluation. The individual failed to appear and a warrant was issued for his arrest. Four years after the warrant was issued, Ms. Trupiano made a motion to recall the warrant on the individual on the basis that he had been deported shortly after his plea and sentencing so he could not complete the criminal matter. The documents filed by Ms. Trupiano implied that the individual had remained outside the country since his deportation. At the same time that Ms. Trupiano filed her motion to recall the warrant, Ms. Trupiano was representing the individual in a child custody matter in Utah that was scheduled to be heard approximately nine days after she had filed the motion to recall the warrant. Among the documents that Ms. Trupiano filed as part of the motion to recall and subsequent hearing on behalf of the individual was a non-notarized affidavit giving Ms. Trupiano permission to represent the individual. A notarized affidavit would have revealed that the individual was presently living in Kansas. In response to questions from the judge about Ms. Trupiano’s client’s sentencing, Ms. Trupiano never clarified that her client had returned to the United States after deportation. Ms. Trupiano phrased her responses to avoid disclosing her client’s location and trips to Utah. Ms. Trupiano’s statements were misleading and in fact misled the prosecution and the Court and she did nothing to correct the misrepresentation. The level of injury is injury to the legal system.

Mitigating factors:
No prior discipline; inexperience in the law; value of her services to the community; the judge’s belief that Ms. Trupiano is a good lawyer.

SUSPENSION AND PROBATION
On August 20, 2012, the Honorable L. A. Dever, Third Judicial District Court, entered an Order of Sanction suspending D. Scott Berrett from the practice of law for three years and placing him on probation for three years for violation 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), 1.5(c) (Fees), 1.15(a) (Safekeeping Property), 1.15(c) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 8.1(b) (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 eight matters:
In the first matter, a client hired Mr. Berrett to assist the client in collecting funds from the client’s client. In the second matter, a client provided Mr. Berrett with customer files in order to collect debts owed to a financial group. In the third matter, a client hired Mr. Berrett to represent the client in matters relating to the custody and visitation of a child. In the fourth matter, Mr. Berrett represented a client on a personal injury when he was associated with a law firm. In the fifth matter, the client retained Mr. Berrett to represent the client regarding three personal injury matters. In the sixth matter, a client paid Mr. Berrett to represent the client in a divorce case. In the seventh matter, a client hired Mr. Berrett to pursue a civil suit. In the eighth matter, a client hired Mr. Berrett via telephone, after receiving an advertising mailer from Mr. Berrett that referred to charges pending against the client.

In one matter Mr. Berrett lacked sufficient experience to properly complete the work he was hired to perform. In six matters Mr. Berret failed to abide by his client’s objectives with regard to their matters. In all matters Mr. Berrett failed to pursue the cases in a timely manner or failed to complete any meaningful work on the cases. In all matters Mr. Berrett failed to communicate with his clients by failing to return calls, emails, and text messages and failing to respond to faxes or mailed correspondence. In four of the matters Mr. Berrett failed to reasonably explain matters to his clients so they could make informed decisions about their cases. In four matters Mr. Berrett charged an unreasonable fee when he failed to perform any meaningful work on the matters. In three of the matters Mr. Berrett failed to have a written fee agreement with his clients. In one matter Mr. Berrett did not keep funds the clients paid separate from his own property. In one matter Mr. Berrett withdrew fees that were unearned. In seven matters Mr. Berrett failed to return the clients’ files and/or return any unearned fees when requested. In all matters Mr. Berrett failed to appear at the Screening Panel hearing. In five of the matters Mr. Berrett misrepresented the status of the case to his clients. In four of the matters Mr. Berrett failed to pursue the matters, thereby engaging in conduct that was prejudicial to the administration of justice.

Aggravating factors:
Prior record of discipline; dishonest or selfish motive; pattern of misconduct; multiple offenses; and substantial experience in the practice of law.

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