In the Matter of the Discipline of Joseph P. Barrett
Joseph P. Barrett, Appellee and Cross-Appellant. Office of Professional Conduct, Appellant and Cross-Appellee,
Direct Appeal Third District, Salt Lake The Honorable Robert
P. Faust No. 130907818
Wahlquist, Salt Lake City, for appellant.
K. Hilder, Park City, for appellee.
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham, and Justice Pearce joined.
1 Attorney Joseph Barrett exchanged legal services for
construction work on his home and yard, thereby depriving his
law firm, Snow, Christensen & Martineau P.C. (SCM), of
the legal fees accrued from those cases. The district court
suspended Mr. Barrett from the practice of law after it
concluded that Mr. Barrett's conduct violated rule 8.4(c)
of the Utah Rules of Professional Conduct. The Office of
Professional Conduct (OPC) appealed, urging us to hold that
the intentional or knowing misappropriation of firm funds,
like the intentional or knowing misappropriation of client
funds, creates a presumption of disbarment. Mr. Barrett
cross-appealed, arguing that the district court's factual
findings were clearly erroneous and a result of bias and that
suspension was too harsh a sanction. We affirm the district
court in part, reverse in part, and uphold the sanction of
2 The misconduct allegations in this case stem from three
independent situations: two involving legal services Mr.
Barrett provided to clients in exchange for construction work
on his home and yard, and one involving Mr. Barrett's
reimbursement request for a phone call with a potential
3 With respect to the first situation, Mr. Barrett began
providing legal services to Richard Williams in June 2007
when Mr. Williams retained SCM and Mr. Barrett to represent
his son in a criminal matter. Over the next three years, Mr.
Barrett worked on that case, a collection matter for Mr.
Williams's company, and new criminal matters for Mr.
Williams's son. In June 2010, Mr. Barrett requested that
the firm write off over $7, 000 from Mr. Williams's
account. Around that time, Mr. Williams's brother-in-law
began building a wrought-iron railing for Mr. Barrett's
home, but he was unable to finish it. In July 2010, Mr.
Williams wrote a check to Mr. Barrett for $3, 500, which Mr.
Barrett deposited into his personal account. According to Mr.
Barrett, Mr. Williams proposed that his brother-in-law work
on the railing as a "kind gesture" and Mr. Williams
insisted on paying Mr. Barrett $3, 500 so he could hire
someone else to finish the job. Mr. Barrett claims that he
wrote off Mr. Williams's bills as a professional courtesy
so Mr. Williams would continue to refer clients to Mr.
Barrett and because he believed it was the compassionate
thing to do. But by 2012, of the $8, 612.07 that SCM billed
to Mr. Williams's account, Mr. Barrett had written off
$7, 912.07. And Mr. Williams had paid SCM only $700 while
paying Mr. Barrett personally $3, 500.
4 Moreover, Mr. Williams's testimony was contrary to Mr.
Barrett's. Mr. Williams testified that he had an
unwritten agreement with Mr. Barrett to exchange work on the
railing for Mr. Barrett's legal services. Mr. Williams
further testified that he understood the $3, 500 he provided
to Mr. Barrett to be for the balance of what he owed Mr.
Barrett for his legal work.
5 The second situation involves legal services Mr. Barrett
provided to David Petersen. Mr. Barrett began legal work for
Mr. Petersen in November 2010, when Mr. Petersen hired Mr.
Barrett's firm to represent him in a custody case.
Several months later, Mr. Petersen started building a shed at
Mr. Barrett's home. Shortly afterward, Mr. Barrett
requested that the firm write off about half of Mr.
Petersen's bill. Over the next couple of months, Mr.
Barrett requested that SCM write off the rest of Mr.
Petersen's bill, and the firm refunded his $2, 500
retainer. Mr. Barrett paid Mr. Petersen approximately $5, 000
for the shed, which had cost Mr. Petersen $15, 170.63 to
build. In all, Mr. Barrett wrote off $8, 913.54 from Mr.
Petersen's account at SCM. Mr. Barrett stated that he
wrote off Mr. Petersen's bills and refunded his retainer
because he believed Mr. Petersen would be unable to pay and
needed the money to visit his son. Mr. Petersen, however,
testified that he had an agreement with Mr. Barrett to build
the shed in exchange for legal services.
6 The third and final situation arose in January 2012 when
Mr. Barrett requested reimbursement for a business
development lunch in California that he did not attend. Mr.
Barrett's wife attended the lunch, and Mr. Barrett stated
that he discussed business matters with a potential client
over a phone call that took place during the lunch.
7 In February 2012, SCM's president confronted Mr.
Barrett about some of his reimbursement requests and
subsequently reported him to the OPC. After an investigation,
the OPC filed a complaint in district court in which it
requested that Mr. Barrett be sanctioned based on his
dealings with Mr. Petersen and Mr. Williams and the
reimbursement request for the California lunch, which the OPC
argued involved "dishonesty and deceit." The
district court found that Mr. Barrett accepted payment and
construction services in exchange for his legal work, thereby
misappropriating firm funds. Regarding the reimbursement
request for the lunch in California, the court concluded that
Mr. Barrett violated Utah Rule of Professional Conduct 8.4(c)
by withholding "information that would allow [SCM] to
properly evaluate whether the expense was legitimate."
8 All told, the district court found that Mr. Barrett
committed three different acts of attorney misconduct, each
of which violated rule 8.4(c). The court then turned to the
issue of the appropriate sanction, which requires the
district court to consider the professional duty that the
attorney has violated, the attorney's mental state, the
potential or actual injury caused by the lawyer's
misconduct, and any applicable aggravating or mitigating
factors. Sup. Ct. R. Prof'l Practice 14-604. The court
found that Mr. Barrett acted knowingly and intentionally, and
it listed as aggravating circumstances a "[d]ishonest or
selfish motive, " the fact that there were multiple
offenses, and "[r]efusal to acknowledge the wrongful
nature of the misconduct." The court also found four
mitigating circumstances: (1) that Mr. Barrett did not have a
prior record; (2) that he had made restitution to his firm
and sought "to rectify the consequences of [his]
misconduct"; (3) that he had cooperated with the OPC;
and (4) that he had a "partial understanding of actions
he should have taken with his firm to avoid the
9 The district court concluded that Mr. Barrett's actions
constituted "conduct involving dishonesty, fraud,
deceit, or misrepresentation, " but, given that Mr.
Barrett did not misappropriate client funds, concluded that
"disbarment . . . [was] not mandated in this case."
After considering the duty that Mr. Barrett violated and Mr.
Barrett's mental state, and weighing the aggravating and