Discipline of Donald Gilbert
2016 UT 32
| Utah | 2016Background
- Gilbert represented chapter officers and the Utah Down Syndrome Association in disputes with the Utah Down Syndrome Foundation; litigation produced an Injunction ordering certain chapter officers to return chapter funds to the Foundation.
- Gilbert received and cashed four checks totaling $30,000 drawn on bank accounts the Injunction identified as belonging to the Foundation; he did not hold the funds in trust or notify the court before depositing them.
- The Foundation moved to disgorge; the district court ordered Gilbert to return the fees and later entered judgment for $30,000 plus interest and fees; Gilbert has not returned the funds.
- The Utah State Bar (OPC) initiated disciplinary proceedings alleging violations of multiple Utah Rules of Professional Conduct; Gilbert disputed the Injunction’s validity and impleaded the Foundation (which this Court later held inappropriate in a disciplinary proceeding).
- Following a five-day bench trial, the district court found violations of rules 1.7, 1.15(e), 3.4(c), and 8.4(d), found multiple aggravating factors (selfish motive, multiple violations, lack of remorse, experience, failure to rectify), and disbarred Gilbert; he appealed.
Issues
| Issue | Plaintiff's Argument (OPC/Bar) | Defendant's Argument (Gilbert) | Held |
|---|---|---|---|
| Whether Gilbert violated conflict-of-interest rule (Rule 1.7) | Gilbert’s retention of disputed fees and concurrent representation created non-waivable conflicts; no informed written waivers were obtained | The Chapters/clients did not complain; Gilbert disputes representing the Foundation and contends no conflict existed | Court upheld Rule 1.7 violations (informed written consent absent; personal interest conflicted with client interests) |
| Whether Gilbert violated tribunal-obligation and safekeeping rules (Rules 3.4(c) & 1.15(e)) | Gilbert knowingly disobeyed the Injunction and disgorgement order, failed to notify the court of noncompliance, and failed to hold disputed funds in trust | He believed the Injunction was void and thus not binding | Court found violations of 3.4(c) and 1.15(e): attorney must obey or openly refuse a court order and must segregate disputed funds and promptly distribute undisputed portions |
| Whether Gilbert’s conduct constituted misconduct prejudicial to administration of justice (Rule 8.4(d)) | Willful disregard of court orders and facilitating client violations prejudices the administration of justice | Good‑faith belief the orders were invalid excused his conduct | Court held Gilbert violated 8.4(d); belief in invalidity does not permit secret noncompliance; conduct was prejudicial |
| Whether disbarment was appropriate and whether proceedings/severance and stay rulings were erroneous | Disbarment is presumptively appropriate under rule 14‑605 for knowing 8.4(d) violations causing serious harm; dismissal of third‑party impleader and denial of stay were proper | Gilbert argues disbarment excessive; rule 21 required severance not dismissal; proceeding should be stayed pending related litigation | Court affirmed disbarment (aggravators outweighed mitigators), upheld dismissal of third‑party complaint without prejudice, and found no abuse in denying a stay |
Key Cases Cited
- In re Discipline of Gilbert v. Utah Down Syndrome Found., Inc., 301 P.3d 979 (Utah 2012) (third‑party impleader improper in disciplinary proceeding)
- In re Discipline of Jardine, 353 P.3d 154 (Utah 2015) (appellate court independently reviews sanction choice)
- In re Discipline of Johnson, 830 P.2d 262 (Utah 1992) (disbarment warranted for flagrant disregard of court orders)
- Salt Lake City v. Carrera, 358 P.3d 1067 (Utah 2015) (circumstantial evidence can establish intent)
- Cuyahoga County Bar Ass’n v. Wagner, 884 N.E.2d 1053 (Ohio 2008) (attorney disbarred for failing to comply with court order to return client fee)
- Florida Bar v. Bailey, 803 So. 2d 683 (Fla. 2001) (disbarment for disregarding court orders holding/safeguarding funds)