Discipline of Tanner, Matter of

• Decision Date: 26 June 1998
• Docket Number: No. 960541,No. 05015,05015,960541
• Parties: 346 Utah Adv. Rep. 20 In the Matter of the DISCIPLINE OF Mark H. TANNER, Bar
• Court: Utah Supreme Court

Page 399

960 P.2d 399

346 Utah Adv. Rep. 20

In the Matter of the DISCIPLINE OF Mark H. TANNER, Bar No. 05015.

No. 960541.

Supreme Court of Utah.

June 26, 1998.

Stephen R. Cochell, Kate A. Toomey, Salt Lake City, for Utah State Bar.

Brent D. Ward, Bret F. Randall, Salt Lake City, for Mark H. Tanner.

DURHAM, Associate Chief Justice:

The Utah State Bar (the Bar) appeals from a district court order suspending attorney Mark H. Tanner from the practice of law. We hold that Tanner's conduct requires disbarment, not merely suspension.

I. Facts

In 1989, Hurdley Evans hired Tanner to represent him in his attempt to recover $100,089 that Emery County authorities had seized from him. After various legal twists and turns, in May 1992, the United States Attorney's Office offered to settle the action by paying Evans $10,089--one tenth of the seized amount. Tanner accepted the settlement offer without Evans' permission after unsuccessfully trying to contact him. To accept the settlement, Tanner forged and back-dated a Special Power of Attorney. Tanner then had his wife, a notary, notarize the document with an expired seal to lend the document authenticity.

Tanner presented the document to an Assistant United States Attorney and settled the case. The attorney, relying on the forged document, turned the funds over to Tanner on December 23, 1992. Tanner, still without contacting his client, took $5,089 of the returned amount for himself as attorney fees and expenses. A short time later, Evans finally called Tanner's office. At that time Tanner told Evans about the settlement. One month later, Evans came to Tanner's office. Tanner told Evans that he intended to keep the entire settlement amount as his fee. Evans disagreed with this fee arrangement.

On December 22, 1993--a year after the settlement--a Federal Bureau of Investigation (FBI) agent questioned Tanner and his wife about the Special Power of Attorney. The two lied to the agent about the date of the document's preparation and the signature thereon. By this time, Tanner had started to serve as Emery County Attorney, an elected office.

Evans, in the meantime, found a new attorney and moved on January 13, 1994, to set aside the unauthorized settlement Tanner had negotiated. On January 25, 1994, Tanner retained an attorney, contacted the FBI agent, and made a full confession. The federal government then charged Tanner with intentionally making and using a false document in violation of 18 United States Code section 1001, and Tanner pled guilty to that felony. Tanner has since returned the $10,089 to the United States Attorney's Office, paid more than $10,000 in fines, and performed community service.

Based on the foregoing facts, the Bar brought a disciplinary action against Tanner. The trial court found that disbarment was the presumptively appropriate sanction given Tanner's admittedly criminal conduct but ordered suspension instead because it believed that the mitigating factors weighed in favor of that sanction.

II. Standard of Review

"Review of attorney discipline proceedings is fundamentally different" from judicial review in other cases. In re Babilis, 951 P.2d 207, 213 (Utah 1997). Given the uniqueness of disciplinary actions, we reserve the right to draw our own inferences from the trial court's factual findings, which we review under the clearly erroneous standard. Id.; State v. Pena, 869 P.2d 932, 935-36 (Utah 1994). Furthermore, if the evidence warrants, "we may make an independent judgment regarding the appropriate level of discipline." In re Babilis, 951 P.2d at 213.

III. Analysis

The trial court correctly concluded that the presumptively appropriate sanction was disbarment but incorrectly applied the aggravating and mitigating circumstances to arrive at its final sanction. Tanner's misconduct and the lower court's own comments about his behavior lead us to order Tanner's disbarment rather than suspension.

A. Presumptively Appropriate Sanction

Tanner settled a case without contacting his client, forged the client's signature, kept the settlement amount from the client, and then lied to an FBI agent about his activities. Tanner also pled guilty to false swearing, a felony requiring an intent to deceive. In accordance with that evidence, the lower court found that Tanner violated the Rules of Professional Conduct in multiple ways: (1) Rule 8.4(a)--violating the Rules of Professional Conduct through another's acts, (2) Rule 8.4(b)--committing a criminal act indicating dishonesty, (3) Rule 8.4(c)--being dishonest, and (4) Rule 8.4(d)--conducting oneself in a manner prejudicial to the administration of justice.

Rule 4 of the Standards for Imposing Lawyer Sanctions states:

[4.2] Disbarment is generally appropriate when a lawyer:

(a) knowingly engages in professional misconduct as defined in Rule 8.4(a),(d),(e), or (f) of the Rules of Professional Conduct with the intent to benefit the lawyer or another or to deceive the court, and causes serious or potentially serious injury to a party, the public, or the legal system, or causes serious or potentially serious interference with a legal proceeding; or

(b) engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft.

Standards for Imposing Lawyer Sanctions R. 4.2. Because the trial court found that Tanner knowingly engaged in professional misconduct under rule 8.4(a) and that he pled guilty to false swearing, his actions clearly fell within the province of rule 4.2(a) and (b). Thus, the trial court correctly concluded that disbarment was the presumptively appropriate sanction for Tanner's behavior.

As stated by the district court:

This is a difficult case for the Court in light of the findings of misconduct. Tanner's misconduct adversely reflects on his honesty, trustworthiness and fitness as a lawyer and reflects badly upon the profession. The violations are grievous. Under the Rules violated, the Court would have to find much more in mitigation to depart from disbarment.

B. Aggravating and Mitigating Factors

After determining that the presumptively appropriate sanction was disbarment, the trial court then looked to the aggravating and mitigating factors enumerated in the Standards for Imposing Lawyer Sanctions for guidance in assigning the final sanction. See Standards for Imposing Lawyer Sanctions R. 6.1. "To justify a departure from the presumptive level of discipline set forth in the Standards, the aggravating and mitigating factors must be significant." In re Ince, 340 Utah Adv. Rep. 53, 55, 957 P.2d 1233, 1237-38 (Utah 1998). Because we find that the trial court accorded undue weight to the mitigating factors, we conclude that the court erred in modifying the presumptive level of discipline. See id.

Rule 6 provides a non-exclusive list of circumstances a court should consider as aggravating or mitigating. See In re Babilis, 951 P.2d at 215 n. 15; Standards for Imposing Lawyer Sanctions R. 6. In considering those factors, the trial court found numerous aggravating factors. Tanner had a record of misconduct which included the misuse of a notary on another occasion. As a sanction, Tanner received a letter of caution requiring him to educate himself and his wife about the new notary public regulations. The trial court also found that Tanner acted in his own interests, not those of his client, both in settling the case quickly so he could take office as county attorney and in keeping the funds to enrich himself. ¹

Furthermore, Evans was highly vulnerable to Tanner's actions because of his adversarial relationship with the police and recurring absences from...