In re Grimes

• Decision Date: 21 March 2013
• Docket Number: No. 20110171.,20110171.
• Citation: 723 Utah Adv. Rep. 70,297 P.3d 564
• Parties: In the Matter of the DISCIPLINE OF Jonathon W. GRIMES.
• Court: Utah Supreme Court

297 P.3d 564

723 Utah Adv. Rep. 70

In the Matter of the DISCIPLINE OF Jonathon W. GRIMES.

No. 20110171.

Supreme Court of Utah.

Dec. 11, 2012.

Rehearing Denied Feb. 8, 2013.

As Amended March 21, 2013.

Gregory G. Skordas, Rebecca Hyde Skordas, Daniel R. Strong, Salt Lake City, for appellee.

Adam C. Bevis, Billy L. Walker, Salt Lake City, for appellant.

Justice PARRISH, opinion of the Court:

INTRODUCTION

¶ 1 In this attorney discipline case we are asked to review the district court's decision to depart from the presumptive sanction of disbarment and instead suspend attorney Jonathon W. Grimes for misappropriating client funds. ¹ First, we consider whether our decisionin In re Discipline of Crawley, 2007 UT 44, 164 P.3d 1232, permits a downward departure from a presumptive sanction of disbarment if the lesser sanction is paired with probation. Second, we evaluate whether Mr. Grimes presented truly compelling mitigating circumstances justifying a downward departure from the presumptive sanction.

¶ 2 The Standards for Imposing Lawyer Discipline (Standards) specify the presumptive sanctions for various types of attorney misconduct. We have previously recognized the authority of the district courts to depart from the presumptive sanctions by imposing probation. Id. ¶ 20. But we hold today that a district court may not depart from a presumptive sanction of disbarment absent truly compelling mitigating circumstances and we conclude that Mr. Grimes did not demonstrate such circumstances. As a result, we reverse the district court and disbar Mr. Grimes.

BACKGROUND

¶ 3 Jonathon Grimes obtained a license to practice law in 2005 and began working for attorney J. Kent Holland. Shortly thereafter, Bill Riordan hired Mr. Grimes to pursue an employment discrimination claim. Mr. Riordan paid Mr. Grimes a $10,000 retainer, which was deposited into Mr. Holland's trust account. In 2006, Mr. Grimes left Mr. Holland's firm and took Mr. Riordan's case with him. Mr. Holland's office thereafter transferred the remainder of Mr. Riordan's retainer, $7,070, to Mr. Grimes.

¶ 4 In 2007, Mr. Grimes stopped communicating with Mr. Riordan. Mr. Riordan attempted to contact Mr. Grimes numerous times by telephone, mail, and fax, but Mr. Grimes never responded. Moreover, Mr. Grimes failed to pursue Mr. Riordan's case, and it was subsequently dismissed. Mr. Grimes failed to inform Mr. Riordan of the dismissal. Eventually, Mr. Riordan learned of the dismissal and authorized Mr. Grimes to refile the case. But Mr. Grimes again stopped communicating. Ultimately, Mr. Riordan hired another attorney to resolve his claim. Mr. Riordan repeatedly asked Mr. Grimes to account for his retainer and to return the unused portion. Mr. Grimes initially denied having the retainer and later refused to return it.

¶ 5 Because of Mr. Grimes's conduct, Mr. Riordan filed an informal complaint with the Utah State Bar's Office of Professional Conduct (OPC). The OPC served Mr. Grimes with a Notice of Informal Complaint, but Mr. Grimes failed to respond. The Screening Panel of the Ethics and Discipline Committee of the Utah State Bar (Screening Panel) then held a hearing and directed the OPC to file a formal complaint against Mr. Grimes.

¶ 6 The OPC filed a complaint alleging that Mr. Grimes had violated eight of the Rules of Professional Conduct (Rules), including rules 1.2(a) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.4(b) (communication), 1.5(a) (fees), 8.4(a) (misconduct), 8.4(c) (misconduct), and 8.4(d) (misconduct). After a hearing, the district court concluded that Mr. Grimes had violated all of the rules, except rule 1.4(b).²

¶ 7 Having found that Mr. Grimes had violated the Rules, the district court held a sanctions hearing and issued an Order of Sanction (Order). First, the district court found that Mr. Grimes failed to be diligent, communicative, and honest in his representation of Mr. Riordan. Second, it determined that Mr. Grimes knew the $7,070 check from Mr. Holland's office was Mr. Riordan's unearned retainer, that Mr. Grimes received the check, deposited it into his personal account, and spent it for his personal use. Additionally, the court found that Mr. Grimes failed to tell Mr. Riordan he received the retainer and, on several occasions, dishonestly told Mr. Riordan he did not have it. Third, the district court concluded Mr. Grimes injured Mr. Riordan by delaying resolutionof his case and forcing him to retain and pay for another attorney. Finally, the district court recognized that the presumptive sanction for misappropriation of client funds, absent truly compelling mitigating circumstances, was disbarment.

¶ 8 The district court then reviewed the aggravating and mitigating factors in Mr. Grimes's case. With respect to the aggravating factors, the district court found that Mr. Grimes had a selfish and dishonest motive because he lied about having Mr. Riordan's retainer and because he converted the retainer to his personal use without having earned it. The district court also found that Mr. Grimes refused to acknowledge his wrongdoing both to Mr. Riordan and at the hearing before the Screening Panel. It also noted that Mr. Grimes had not paid any restitution to Mr. Riordan.

¶ 9 Next, the district court considered the mitigating factors. It found that Mr. Grimes had no prior record of discipline and did not have extensive experience in the practice of law. It further found that Mr. Grimes suffered from emotional and personal problems related to his finances, marriage, and his family's health. Based on testimony from members of the criminal defense bar, the court found that Mr. Grimes “has a good reputation, is hard working[,] and is considered to be honest.” Finally, it found that Mr. Grimes had undertaken interim reforms because he had stopped practicing civil law and had removed himself as a signatory on his firm's trust account.

¶ 10 The district court did not enter any factual findings or conclusions of law weighing these aggravating and mitigating circumstances, nor did it make any explicit finding that the mitigating circumstances were truly compelling. Instead, relying on our decision in In re Discipline of Crawley, 2007 UT 44, 164 P.3d 1232, it found that justice would best be served by a downward departure from the presumptive sanction of disbarment. Accordingly, the district court suspended Mr. Grimes from the practice of law for three years and stayed all but 181 days of the suspension. It conditioned the stay on the following probationary terms: Mr. Grimes could not practice law during the suspension, could not violate the Rules of Professional Conduct, must report to a supervising attorney, must complete an ethics and professional conduct course, and must pay court-scheduled restitution to Mr. Riordan.

¶ 11 The OPC filed a timely appeal of the Order. We have jurisdiction pursuant to section 78A-3-102(3)(c) of the Utah Code.

STANDARD OF REVIEW

¶ 12 The Utah Constitution grants us authority to “govern the practice of law, including ... discipline of persons admitted to practice law.” Utah Const. art. VIII, § 4. Accordingly, “[w]hile we will ordinarily presume [the district court's] findings of fact to be correct and will not overturn them unless they are arbitrary, capricious, or plainly in error, we accord them less deference in matters of attorney discipline.” In re Discipline of Corey, 2012 UT 21, ¶ 23 n. 13, 274 P.3d 972 (internal quotation marks omitted). And, “we reserve the right to draw inferences from basic facts which may differ from the inferences drawn by the [district court].” Id. (internal quotation marks omitted). Ultimately, “[a]s to the discipline actually imposed, our constitutional responsibility requires us to make an independent determination as to its correctness.” In re Discipline of Crawley, 2007 UT 44, ¶ 17, 164 P.3d 1232 (internal quotation marks omitted).

ANALYSIS

¶ 13 The Standards outline the factors to be considered in imposing sanctions for attorney misconduct. Their purpose 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.

Sup. Ct. R. Prof'l Practice 14–602(b).

¶ 14 The Standards specify that the relevant considerations in imposing sanctions are “the duty violated,” “the lawyer's mental state,” “the potential or actual injury caused by the lawyer's misconduct,” and “the existence of aggravating or mitigating factors.” Id. 14-604(a)-(d). The factors “permit[ ] flexibility and creativity in assigning sanctions in particular cases of lawyer misconduct.” Id. 14-602(d).

¶ 15 While the Standards offer flexibility, they also provide a framework and prescribe presumptive sanctions for certain types of misconduct. See id. 14-603, 14-605. Disbarment is the presumptive sanction for intentional misappropriation of a client's funds. In re Discipline of Babilis, 951 P.2d 207, 217 (Utah 1997). This severe sanction is appropriate because “[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. In cases of intentional misappropriation of client funds, we previously have ruled that a downward departure from the presumptive sanction of disbarment is appropriate only when a lawyer demonstrates “truly compelling mitigating circumstances.” In re Discipline of Johnson, 2001 UT 110, ¶ 9, 48 P.3d 881 (internal quotation marks omitted).

¶ 16 In this case, the parties agree that the presumptive sanction for Mr. Grimes's misappropriation is disbarment. Thus, we...