Long v. Ethics
| Decision Date | 21 June 2011 |
| Docket Number | 20091019,20091020.,Nos. 20091018,s. 20091018 |
| Citation | 2011 UT 32,685 Utah Adv. Rep. 32,256 P.3d 206 |
| Parties | Larry N. LONG, Petitioner,v.ETHICS AND DISCIPLINE COMMITTEE OF THE UTAH SUPREME COURT, Respondent. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
John A. Snow, Alex B. Leeman, Salt Lake City, for petitioner.Billy L. Walker, Adam C. Bevis, Salt Lake City, for respondent.Associate Chief Justice DURRANT, opinion of the Court:
INTRODUCTION
¶ 1 Attorney Larry Long challenges two orders of public reprimand and an order of admonition issued by the Utah Supreme Court's Ethics and Discipline Committee (the Committee). The Committee imposed the discipline after finding that Mr. Long's conduct in three separate matters violated the Utah Rules of Professional Conduct. In his challenge to this court, Mr. Long argues that the Committee's orders of discipline should be vacated on three grounds. First, he asserts that by failing to provide detailed findings of fact in support of its disciplinary recommendations, the Committee's screening panel violated his due process rights, violated the Utah Rules of Lawyer Discipline and Disability, and deviated from our precedent requiring that we treat attorney discipline cases like administrative agency determinations. Second, he argues that the Committee erred in concluding that his conduct violated rules 1.5(a), 3.1, 5.3(a), and 5.5(a) of the Utah Rules of Professional Conduct. Finally, he contends that the Committee's recommended sanctions are inappropriate.
¶ 2 We hold that the Committee's findings of fact were sufficient under the principles of due process, our rules, and our precedent. We also uphold the Committee's conclusion that Mr. Long violated rules 1.5(a) and 3.1 of the Utah Rules of Professional Conduct. But because we conclude that there is not sufficient evidence to support a finding that Mr. Long's conduct violated rules 5.3(a) or 5.5(a), we vacate the order of public reprimand based on these rule violations. Finally, as to the remaining order of public reprimand and order of admonition, we hold that the Committee's recommended sanctions are appropriate.
¶ 3 This case involves the consolidation of three informal complaints filed with the Utah Office of Professional Conduct (the OPC) against Larry Long, an attorney. Because each complaint involves distinct facts, we address the background for each complaint individually.
¶ 4 The first complaint, filed by Stephen Shepard, alleged that Mr. Long charged Mr. Shepard an unreasonable fee for legal services and pursued a frivolous lawsuit to recover those legal fees (the Shepard Matter). Mr. Shepard first learned of Mr. Long's services when Mr. Long mailed him correspondence about a free legal consultation with After receiving this correspondence, Mr. Shepard and Mr. Long met the day before Mr. Shepard was scheduled for an initial court appearance for a DUI and other related charges. Following their meeting, Mr. Long agreed to represent Mr. Shepard on an emergency basis for a hearing the next day. Mr. Shepard paid Mr. Long one hundred dollars for this service.
¶ 5 After the initial court appearance, Mr. Shepard signed a flat fee agreement for $6,600, under which Mr. Long agreed to represent Mr. Shepard “up to and including the pre-trial conference or preliminary hearing and subsequent sentencing upon entry of a plea.” The agreement also provided that the $6,600 fee would “be fully earned [ ] once substantial services have been performed by [Mr. Long].”
¶ 6 Approximately two days after the initial court appearance, Mr. Shepard contacted Mr. Long's office to inform Mr. Long that he had decided to retain another attorney. Although Mr. Shepard contacted Mr. Long's office, Mr. Long did not learn that Mr. Shepard had hired another attorney until Mr. Long attended a hearing in Mr. Shepard's case a few weeks later. After seeing Mr. Shepard's new attorney, Mr. Long ceased working on Mr. Shepard's case. Mr. Shepard did not pay Mr. Long for services beyond the initial court appearance.
¶ 7 Six months after Mr. Shepard terminated Mr. Long's representation, Mr. Long's office sent the flat fee agreement to a collection agency. The collection agency then filed a lawsuit against Mr. Shepard for $7,775.34, the full amount of the flat fee agreement plus interest. After receiving notice of the lawsuit, Mr. Shepard discussed the collection action with an attorney who tried to negotiate a settlement.
¶ 8 As a result of this lawsuit, Mr. Shepard filed a complaint with the OPC. The OPC mailed Mr. Long a Notice of Informal Complaint and provided Mr. Long with an opportunity to respond to the allegations of misconduct. After Mr. Long provided a response, the OPC conducted a preliminary investigation and provided Mr. Long with a copy of its findings. The OPC's investigation found that Mr. Long's actions violated the rules of professional conduct. As a result of this finding, the OPC referred the Shepard Matter to the Committee. 1 Pursuant to the Utah Rules of Lawyer Discipline and Disability (the RLDD), part of the Supreme Court's Rules of Professional Practice, the Committee's screening panel (the Screening Panel) held a hearing at which Mr. Long and Mr. Shepard testified and presented evidence.2
¶ 9 At the hearing, Mr. Shepard stated that he did not believe that he had hired Mr. Long to represent him. In response, Mr. Long testified that he had spent a total of six hours working on Mr. Shepard's case, and that this would constitute approximately $1,500 in legal fees. Additionally, Mr. Long stated that when the collection agency contacted him about a possible settlement with Mr. Shepard, he initially told them that he would agree to a settlement amount of $1,500. Mr. Long also testified that he instructed the collection agency to terminate the lawsuit after Mr. Shepard contacted the OPC. At the hearing, Mr. Long admitted that it was “absolutely not” reasonable for an attorney to charge $6,600 for six hours of work.
¶ 10 Based on this evidence, the Screening Panel concluded that Mr. Long had violated rules 1.5(a),3 3.1,4 7.1,5 7.5(d), 6 and 8.4 7 of the Utah Rules of Professional Conduct. The Screening Panel made a recommendation to the Committee Chair that Mr. Long receive a nonpublic admonition.8 In recommending an admonition, the Screening Panel considered it a mitigating factor that Mr. Shepard did not actually pay Mr. Long an unreasonable fee.
¶ 11 Mr. Long filed an exception to the Committee Chair, arguing that the Screening Panel's recommendation was not supported by substantial evidence and that its findings of fact were insufficient to support its conclusions. The Committee Chair held a hearing at which Mr. Long presented evidence. The Committee Chair rejected Mr. Long's arguments, upheld the Screening Panel's recommendation, and imposed the sanction of a nonpublic admonition.
¶ 12 In the second complaint, Greg Nelson alleged that Mr. Long had failed to adequately supervise his nonlawyer assistant, Joe Scheeler, and that Mr. Scheeler had engaged in the unauthorized practice of law (the Nelson Matter). Mr. Nelson contacted Mr. Long's office on April 18, 2007, seeking legal representation for a friend, David Merritt, who was incarcerated for allegedly violating a protective order. Mr. Nelson met with Mr. Scheeler, a nonlawyer employee of Mr. Long's firm, paid a retainer fee of $750, and signed a flat fee agreement for Mr. Long to represent Mr. Merritt. Although Mr. Nelson paid for legal representation, Mr. Long did not appear at the initial hearing in Mr. Merritt's case. When Mr. Long did not appear at a second hearing in Mr. Merritt's case, Mr. Scheeler told Mr. Nelson that he would handle the matter himself “as a mediator.” Two days later, Mr. Nelson paid an additional $1,100 to resolve Mr. Merritt's criminal case.
¶ 13 On May 2, 2007, Mr. Long received a letter from an attorney who had been hired by Debbi Smith, the individual who filed the protective order in Mr. Merritt's criminal case. The letter stated that Ms. Smith and Mr. Long's client, Mr. Merritt, needed to resolve an issue concerning property division but could not contact one another in light of the protective order. Three weeks after Mr. Long received this letter, Mr. Merritt signed a flat fee agreement in which Mr. Long agreed to represent him.
¶ 14 On June 1, 2007, Mr. Scheeler conducted a mediation between Mr. Merritt and Ms. Smith. Mr. Scheeler then drafted a settlement agreement that addressed the division of personal property between the parties. Although the settlement agreement listed Mr. Long as Mr. Merritt's attorney, Mr. Long did not participate in the mediation, nor did he participate in drafting the settlement agreement. In a letter dated June 11, 2007, Mr. Long informed the prosecutor in Mr. Merritt's criminal case that Mr. Merritt and Ms. Smith had voluntarily completed a mediation with Mr. Scheeler and were working on a settlement agreement.
¶ 15 Mr. Nelson subsequently filed a complaint with the OPC. The OPC mailed Mr. Long a Notice of Informal Complaint and provided Mr. Long with an opportunity to respond to the allegations of misconduct. After Mr. Long provided a response, the OPC conducted a preliminary investigation and provided Mr. Long with a copy of its findings. As part of the OPC investigation, Mr. Nelson stated that, based on his interactions with Mr. Scheeler, he thought Mr. Scheeler was an attorney. The OPC investigation also concluded that Mr. Long's website listed Mr. Scheeler as a “legal mediator.” After completing its investigation, the OPC found that Mr. Long's actions violated the rules of professional conduct. The OPC then referred the Nelson Matter to the Committee. The Screening Panel held a hearing at which Mr. Long testified and presented evidence. At the hearing, Mr. Long admitted that he first met with Mr. Merritt on June 19, 2007, after the mediation. Mr. Long also stated...
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