IN RE DISCIPLINE OF JOHNSON, 3937

Decision Date18 December 2001
Docket NumberNo. 3937,No. 990806.,3937,990806.
Citation48 P.3d 881,2001 UT 110
PartiesIn the Matter of the DISCIPLINE OF Jamis M. JOHNSON, No. 3937.
CourtUtah Supreme Court

Stewart M. Hanson, Jr., Cameron S. Denning, Salt Lake City, for Johnson.

Kate A. Toomey, Salt Lake City, for the Utah State Bar.

HOWE, Chief Justice:

INTRODUCTION

¶ 1 Attorney Jamis Johnson was disbarred from the practice of law for intentionally misappropriating client funds, a violation of the Utah Rules of Professional Conduct. The trial court stayed the judgment pending any appeal. The Utah State Bar, through its Office of Professional Conduct (OPC), appeals from the order staying the judgment. Johnson cross-appeals from the judgment of disbarment.

BACKGROUND

¶ 2 In connection with his representation of a client, Johnson settled a case for $50,000. He deposited that money in a trust account as required by rule 1.15 of the Utah Rules of Professional Conduct, and tendered a check in the amount of $28,800 to his client as its share of the settlement. Upon receiving the check, the client told Johnson it was going to return it to him because he did not have authority to settle for $50,000 without the client's consent. In a letter to his client dated January 19, 1993, Johnson responded:

In our last conversation, you claimed to have returned the trust account check I sent you. I have not received that check. I have therefore stopped payment on that check.
If you want me to issue another check I will, but I will await your instructions in that regard.
In the meantime, I will hold the funds in trust. If I am compelled to take any further action on the matter, you will be billed at the previously discussed rate of $150.00 and I will, as the bill accrues, draw down such legal fees out of the amount of the trust account.

(Emphasis added.) In a letter dated January 26, 1993, Johnson's client responded:

I inadvertently failed to return the Trust Account check. Please find it enclosed herewith.
In response to your January 19, 1993 letter you may do as you wish with the funds, but you should be aware that you have not responded to our last conversation in which I suggested that we pursue arbitration or mediation. I am, therefore, proceeding formally against you under the laws of the State of Utah....
. . . [D]o not work on this matter or any other matter related to [this client] or any of its subsidiaries.

(Emphasis added.) The client then filed an informal complaint with the OPC alleging that Johnson had settled the case without authority; the complaint was later dismissed. Approximately fifteen months later, the client demanded payment of the $28,800 by letter dated April 15, 1994. When Johnson had not returned the funds by February 16, 1995, the client again sent a letter demanding payment within ten days. When the client did not receive payment, it made a second informal complaint to the OPC, alleging misuse of a client's funds. The OPC subsequently filed a formal complaint against Johnson on May 20, 1997, charging that he violated rule 1.15 of the Utah Rules of Professional Conduct by misappropriating $28,800 of client money. The Bar moved for summary judgment, which the trial court granted. Following a sanctions hearing, the court disbarred Johnson for misappropriation of client funds based on the following findings of undisputed fact:

Johnson held the client's $28,800 in a trust account.
Mr. Johnson attempted to deliver the $28,800 to the client and those funds were returned to Mr. Johnson.... Mr. Johnson placed the client's $28,800 in trust and agreed to hold the client funds in trust pending a resolution of their differences.
Thereafter the client requested the return of the funds, but Mr. Johnson did not return the $28,800.
Mr. Johnson converted the $28,800 for his own use.
Mr. Johnson offered no satisfactory explanation of why he kept the $28,800. His explanation of expenses for the threatened malpractice action by the client against Mr. Johnson is not a satisfactory explanation.

Johnson was granted a stay of the judgment of disbarment pending any appeal.

STANDARD OF REVIEW

¶ 3 This court is charged with governing the conduct and discipline of those admitted to practice law in this state. Thus in reviewing attorney discipline cases, "while we review the trial court's finding of facts under the clearly erroneous standard, we reserve the right to draw different inferences from the facts than those drawn by the trial court." In re Discipline of Ince, 957 P.2d 1233, 1236 (Utah 1998) (citation omitted); see also In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997)

. In addition, "our constitutional responsibility requires us to make an independent determination as to the [correctness of the discipline actually imposed]." Ince,

957 P.2d at 1236.

ANALYSIS

¶ 4 We address first whether the trial court's sanction of disbarment was appropriate and then turn to the issue of whether Johnson was properly granted a stay pending this appeal.

I. DISBARMENT SANCTION

¶ 5 Attorney discipline sanctions are governed by the Standards for Imposing Lawyer Sanctions, chapter 15 of the Supreme Court Rules of Professional Practice. These standards state that the purpose of sanctioning an attorney is

to ensure and maintain the high standard of professional conduct required of those who undertake the discharge of professional responsibilities as lawyers, and to protect the public and the administration of justice from lawyers who have demonstrated by their conduct that they are unable or likely to be unable to discharge properly their professional responsibilities.

Standards for Imposing Lawyer Sanctions rule 1.1. Rule 3 of those standards provides that after misconduct has been found, the factors to be considered in imposing a sanction include "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors."

¶ 6 These rules additionally provide that an order disbarring an attorney is generally appropriate absent mitigating or aggravating circumstances when he or she

(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 an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(c) engages in any other intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law.

Standards for Imposing Lawyer Sanctions rule 4.2.1

¶ 7 Subsection (a) above directs us to rule 8.4 of the Utah Rules of Professional Conduct for definitions of professional misconduct sufficient to trigger the sanction of disbarment. The first subsection of rule 8.4 provides that it is professional misconduct for an attorney to "[v]iolate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another." Utah R. Prof'l Conduct 8.4(a).

¶ 8 The trial court held that Mr. "Johnson violated rule 1.15(a), (b), and (c) . . . of the Rules of Professional Conduct when he intentionally misappropriated [his client's] funds for his personal or business use." After determining that Johnson had violated the Utah Rules of Professional Conduct, the trial court correctly weighed mitigating and aggravating factors and determined that, although Johnson's conduct was not as egregious as that of other attorneys who have been disbarred by this court in recent years, disbarment was the appropriate remedy under our case law because there were no substantial mitigating circumstances. We agree.

¶ 9 We held in Babilis that intentional misappropriation of a client's funds will result in disbarment absent "truly compelling mitigating circumstances." 951 P.2d 207, 217 (Utah 1997). We see no reason to deviate from this rule. The rule takes into consideration the factors listed in rule 3, including the duty violated, the lawyer's mental state, the potential or actual injury caused, and the existence of aggravating or mitigating circumstances. As we stated in Babilis, "[i]ntentional misappropriation of a client's funds is always indefensible; it strikes at the very foundation of the trust and honesty that are indispensable to the functioning of the attorney-client relationship and, indeed, to the functioning of the legal profession itself." Id. We will not abide such conduct.

¶ 10 Johnson does not dispute the fact that he did not return the $28,800 to his client upon demand. The trial court found that he made no satisfactory explanation for this failure. The court weighed the mitigating factors presented by Johnson and determined that they were not sufficient to warrant a lesser sanction. He contends that he "has maintained a practice for many years, which includes significant pro bono work, involvement in community organizations, and a good reputation among his fellows" and that he "is not the type of individual committing the type of acts" requiring disbarment. Although a good reputation and community service are commendable, they do not constitute "truly compelling mitigating circumstances" when there has been a misappropriation of client's funds. Id. at 217.

¶ 11 In addition, Johnson contends that the entire circumstances surrounding the misappropriation is a mitigating circumstance. Although he does not dispute that he used the $28,800 for personal or...

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