Utah State Bar News & Announcements

SUSPENSION

On November 29, 2004, the Honorable Derek Pullan, Fourth Judicial District Court, entered Findings of Fact, Conclusions of Law, Ruling and Order of Suspension: Three Years suspending Daniel D. Heaton for a period of three years, effective October 20, 2004, for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees) 1.5(b) (Fees), 1.15(b) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), 8.4 (a) and (c) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Heaton was retained to represented a client in a bankruptcy matter. The client and the creditors attempted to contact Mr. Heaton for three months without success. Mr. Heaton filed the client’s bankruptcy six months later, and then failed to attend the creditor’s meeting. In another matter, Mr. Heaton was retained to handle an expungement of records. Four months had passed when the client called Mr. Heaton to check on the progress of the case. Two months later Mr. Heaton informed the client he had misplaced the file but would refund the client’s fees and assured the client he would attend to the matter promptly. Mr. Heaton refunded half of the fee to the client and kept half of the fee for the remaining paperwork. The client attempted to contact Mr. Heaton thereafter without success. In a third matter, Mr. Heaton was retained to represent a client in a bankruptcy matter. The client paid Mr. Heaton’s attorney’s fees but when the client attempted to contact Mr. Heaton, he had vanished. Mr. Heaton failed to timely respond to the OPC’s requests for information in all three matters. In a fourth matter, Mr. Heaton engaged in the unauthorized practice of law by assisting a client in a lawsuit while placed on administrative suspension for failure to pay his Bar dues to the Utah State Bar.

Mitigating factors include: no prior disciplinary record; substantial personal or emotional problems; willingness to make full restitution; affected by an impairment or disability for which Mr. Heaton sought and completed treatment.

ADMONITION

On January 19, 2005, 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(b) (Communication), 1.16(d) (Declining or Terminating Representation), 5.3 (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was retained to represent a client in a divorce matter. The client requested that the attorney communicate the status of the case through the client’s parent. The attorney did not follow up on requests and questions and failed to effectively communicate with the client’s parent. The attorney also failed to supervise the attorney’s secretary regarding client contact and failed to timely return the client’s file.

ADMONITION

On January 19, 2005, 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 1.5(a) (Fees), 1.16(d) (Declining or Terminating Representation), 8.1(a) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was retained to represent a client in two cases. The client terminated the attorney’s services before the work was concluded and requested a refund of attorney’s fees. The attorney filed a motion to withdraw from both cases. The scope of the trial did not justify the extent of the preparation the attorney claimed. The attorney refused to refund any portion of the fees. The attorney testified to the Screening Panel of the Ethics and Discipline Committee of the Utah Supreme Court that the client only requested that the attorney withdraw from one case when the attorney had filed motions to withdraw from both pending cases on the same day.

ADMONITION

On January 20, 2005, 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 retained to represent two clients in a lawsuit but the attorney did little or nothing to pursue the clients’ case until about eight months after being retained. The attorney did not understand the outstanding obligations when retained and failed to respond to outstanding discovery requests served upon the clients’ former attorney. The attorney also failed to pursue a new stipulated discovery plan with opposing counsel and failed to file a notice of withdrawal when the attorney ceased representation. The attorney did not respond to the clients’ attempts to communicate with the attorney and did not communicate the attorney’s change of business location to the clients. The attorney did not respond to the Office of Professional Conduct’s requests for information.

Mitigating factor included: No prior record of discipline.

ADMONITION

On January 24, 2005, 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:
An attorney drew a check for the interest from the attorney’s IOLTA account to the Utah Bar Foundation. The attorney authorized the firm’s bookkeeper to write off the non-negotiated IOLTA check and write a new check against the trust account to transfer the interest to the firm’s operating account based on the misunderstanding that the money belonged to the firm. Later, the Utah Bar Foundation negotiated the check for IOLTA interest rendering the attorney’s trust account overdrawn. Upon receipt of the overdraft notice the firm transferred the funds from its operating account to the trust account to cover the overdraft.

PUBLIC REPRIMAND

On January 31, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against S. Austin Johnson for violation of Rules 1.2 (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Johnson was retained by a client in an immigration matter. The client instructed Mr. Johnson not to apply for a TN visa because the client wanted permanent residency. Mr. Johnson sent the client an engagement letter stating that he would pursue and conduct research on a TN visa. The client communicated the discrepancy, but Mr. Johnson did nothing to rectify the error. Mr. Johnson missed a deadline for filing an application for a H-1B visa. The draft documents for the H-1B visa were sent to the client for approval after the deadline. Mr. Johnson did not keep his client reasonably informed of the status of the matter and did not promptly comply with requests for information. Mr. Johnson charged the client for research on a TN visa when he was specifically instructed not to pursue that visa and he failed to complete the entire application.

Aggravating factors include: Mr. Johnson failed to appear at the Screening Panel hearing pursuant to Rule 32 of the Rules of Lawyer Discipline and Disability; Mr. Johnson refuses to acknowledge the wrongful nature of the misconduct involved; Mr. Johnson lacked a good faith effort to rectify the consequences of the misconduct, in particular conducting and billing for the TN visa research; failure to communicate with the client in a reasonable manner and instead, continued to make demands throughout this proceeding for work that was not requested; and Mr. Johnson failed to resolve/communicate, and instead made demands through this proceeding that the client owed him for the TN application, which was not requested and not done.

NOTICE APPOINTING TRUSTEE TO PROTECT THE INTERESTS OF THE CLIENTS OF THE LATE MELVIN E. LESLIE

On February 4, 2005, the Honorable Joseph C. Fratto, Jr., Third Judicial District Court, entered an Order Appointing Trustee to Protect the Interests of the Clients of Melvin E. Leslie. Pursuant to Rule 27 of the Rules of Lawyer Discipline and Disability, Gary Atkin is appointed as trustee to take control of client files and other property that was in Mr. Leslie’s possession, and distribute them to the clients.