In re Discipline of Ennenga, 0999

• Citation: 2001 UT 111,37 P.3d 1150
• Decision Date: 18 December 2001
• Docket Number: No. 0999,No. 20000476.,0999,20000476.
• Parties: In the Matter of the DISCIPLINE OF Peter M. ENNENGA, No. 0999.
• Court: Supreme Court of Utah

37 P.3d 1150

2001 UT 111

In the Matter of the DISCIPLINE OF Peter M. ENNENGA, No. 0999.

No. 20000476.

Supreme Court of Utah.

December 18, 2001.

Brian R. Florence, Ogden, for Ennenga.

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

HOWE, Chief Justice.

INTRODUCTION

¶ 1 The Office of Professional Conduct (OPC) of the Utah State Bar appeals from a judgment of the district court suspending attorney Peter M. Ennega from the practice of law for six months and placing him on probation for three years for violating rules 1.4, 1.15, 8.1, 8.1(b), 8.4(b), and 8.4(c) of the Utah Rules of Professional Conduct. Ennenga cross-appeals, asserting that the trial court's sanction order was erroneous because it violated the constitutional prohibition against the application of ex post facto laws in the context of criminal punishments.

BACKGROUND

¶ 2 Ennenga was licensed to practice law in Utah in 1970. The OPC filed a complaint for disciplinary action against him based on the allegations in the informal complaints to the OPC of four of Ennenga's clients: JoAnn Wilson, Taner Yarbil, Rodney Glover, and Alice Durrant-Funk. The trial court made the following findings on each matter.

¶ 3 In 1991, Ennenga was retained by JoAnn Wilson to collect $18,000 owed to her business; he collected the money in May 1992. Days after, Wilson requested that Ennega hold the money for her in an interest bearing escrow account. Instead of doing so, Ennenga deposited a portion of the money in his personal checking account in October 1992 and retained the rest of it in the form of a cashier's check. He then spent the entire amount of his client's money on personal expenses. Wilson's accountant requested an accounting of the $18,000 in April 1993, but Ennenga did not comply. Wilson's subsequent attempts to communicate with Ennenga regarding the money were answered with unfulfilled promises to pay and other evasive tactics.

¶ 4 Taner Yarbil retained Ennenga in 1993 for a civil matter on a contingency fee basis. He gave Ennenga $750 of a $2,250 retainer, but Ennenga, without informing Yarbil, stopped any prosecution of the case after filing a complaint and serving one of the two defendants.

¶ 5 Ennenga failed to timely repay a $7,500 loan from his client Rodney Glover. The court found that Ennenga's "representation of Glover enabled him to learn certain details regarding Glover's financial condition," which information we presume prompted Ennenga to ask for the loan. Ennenga did not advise his client to consult with independent counsel regarding the transaction. After suing Ennenga for payment on the loan, Glover obtained a default judgment against him.¹

¶ 6 The trial court also found that Ennenga failed to respond to the OPC's requests for information on the Wilson, Tarbil, and Glover matters and also on a matter concerning another client, Alice Durrant Funk.² ¶ 7 Based on these findings, the trial court held on partial summary judgment and after trial on the remaining issues, that Ennenga had violated the following rules of the Utah Rules of Professional Conduct: 1.4 (by failing to communicate with Yarbil about his representation), 1.15 (by misappropriating Wilson's money), 8.1(b) (by failing to provide information to the OPC in three of the disciplinary matters), 8.4(b) (by misappropriating Wilson's money, a criminal act that reflects adversely on the lawyer's honesty), and 8.4(c) (by engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation in the Wilson matter).

¶ 8 Following a sanctions hearing, the court issued an order suspending Ennenga from the practice of law for six months, followed by a three-year probationary period. The trial court recognized that the presumptive sanction for misappropriating a client's money is disbarment; however, it concluded after weighing the mitigating and aggravating factors as it is directed to do under rules 4.1 and 6 of the Standards for Imposing Lawyer Sanctions that a departure from the presumptive sanction was justified. The OPC appeals this sanction judgment, contending that the trial court erred in concluding that the mitigating factors were sufficient to justify a departure from presumptive disbarment. Ennenga cross-appeals, contending that the trial court violated the constitutional prohibition against ex post facto laws by applying disciplinary rules that were promulgated after his misconduct occurred.

ANALYSIS

I. DISBARMENT

¶ 9 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). Ennenga does not dispute any of the material facts found by the trial court; thus we do not disturb them.

¶ 10 Our only duty, then, is to make our own determination on the correctness of the disciplinary sanction imposed. See Ince,957 P.2d at 1236. We look to the Standard for Imposing Lawyer Sanctions, chapter 15, of the Supreme Court Rules of Professional Practice for guidance in our decision. Rule 4 of these standards provides presumptive sanctions for certain conduct absent aggravating or mitigating circumstances. Pursuant to rule 4.2, the trial court correctly determined that the presumptive sanction for Ennenga's conduct was disbarment when it found that he had violated rules 1.15 and 8.4(b) and (c) of the Rules of Professional Conduct.³ Under subsection 2 of rule 4, the misappropriation of Wilson's money is sufficient to trigger that sanction even without the cumulative effect of his other misconduct. In addition, the trial court correctly stated that in order to overcome the presumption of disbarment, "the aggravating and mitigating factors must be significant." Ince,957 P.2d at 1237. In fact, they must be "truly compelling." Babilis,951 P.2d at 217.

¶ 11 Although the trial court correctly determined that disbarment was the presumptive sanction in this case, it erroneously concluded that the mitigating factors involved were sufficient to overcome that presumption.

¶ 12 In reviewing the trial court's analysis of the mitigating factors to be considered under rule 6.3 of the Standards for Imposing Lawyer Sanctions, we conclude that even the most mitigating of the factors the trial court relied on are not "truly compelling" or "significant" as is required by Babilis. In fact, some of the factors the trial court found to mitigate Ennenga's offenses are in fact aggravating.⁴ For example, the trial court stated that "there is a prior record of discipline, but less significant than 8.4 and not of the same sort of misconduct." The prior discipline was two reprimands that Ennenga volunteered he had received in the late 1980s for failure to file pleadings. While those failures are not as serious as misappropriating client funds, they are still violations of the Utah Rules of Professional Conduct and thus constitute serious misconduct.

¶ 13 The trial court also found that although Ennenga's effort "was not particularly timely, . . . he did completely rectify the consequences to Ms. Wilson." We commend Ennenga for paying Wilson her funds. However, he did not make repayment until he was forced to do so by threat of suit by Wilson and after she had made an informal complaint to the OPC. In addition, the record suggests that it was a hardship for Wilson to be without her funds, a significant amount of money, for five years. Further, Ennenga deceived Wilson during those five years to stall the inevitable discovery of his misconduct. The repaying of Wilson's money, though the right thing to do, was not accomplished in a way that mitigates the misappropriation.

¶ 14 The trial court also concluded that Ennenga's "personal and emotional problems [resulting from] his inability to meet his regular financial obligations" were mitigating factors. Although we understand that the pressure of not being able to meet one's financial obligations can be great, we cannot condone the taking of a client's money to resolve that problem, even with the intent to return their funds. Personal financial pressures cannot mitigate the offense of misappropriation. See In re Blumenstyk, 152 N.J. 158, 704 A.2d 1, 4 (1997)

("Family financial pressures cannot excuse an attorney's ethical dereliction.").

¶ 15 The trial court reasoned that the unreasonable delay in the disciplinary proceedings was a mitigating factor in this case. It found that although Ennenga contributed somewhat to the delay, "the delay is attributable as much or more to the OPC as it is to Mr. Ennenga." However, whether Ennenga's contribution to the delay was as much as or more than the OPC's contribution is not the issue. Instead we look at whether Ennenga's contribution was "substantial." Standards for Imposing Lawyer Sanctions rule 6.3. We conclude that it was.⁵ Not only did Ennenga fail to "facilitate moving the case forward . . . through the discovery process," but his attempt to hide his misappropriation of Wilson's funds significantly contributed to the delay in getting the process started. His contribution, combined with the trial court's finding that he did not show any prejudice from the delay, outweighs any mitigating effect the delay may have caused.

¶ 16 Finally, the trial court seemed to put great weight on the fact that "weighing the misconduct of Mr. Ennenga against the misconduct [of other attorneys disbarred by this court in recent years] shows a significant difference in the seriousness of the conduct, both as to the number of incidents, the motive of the attorney, and the time elapsed between misconduct and sanction." However, to the extent those attorneys were disbarred for misappropriating their client's funds, the misconduct was as serious. In addition, the standard for departing from the presumptive...