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In re Discipline of Barrett

Supreme Court of Utah

February 22, 2017

In the Matter of the Discipline of Joseph P. Barrett
v.
Joseph P. Barrett, Appellee and Cross-Appellant. Office of Professional Conduct, Appellant and Cross-Appellee,

         On Direct Appeal Third District, Salt Lake The Honorable Robert P. Faust No. 130907818

          Todd Wahlquist, Salt Lake City, for appellant.

          Robert 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.

          OPINION

          HIMONAS, JUSTICE

         INTRODUCTION

         ¶ 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 suspension.

         BACKGROUND

         ¶ 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 client.

         ¶ 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 problems."

         ¶ 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 ...


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