Office of Professional Conduct v. Barrett
2017 UT 10
| Utah | 2017Background
- Joseph Barrett, an attorney at Snow, Christensen & Martineau P.C. (SCM), accepted construction work and personal payments from two clients (Williams and Petersen) while causing the firm to write off or refund substantial billed amounts, depriving SCM of fees.
- Williams paid Barrett $3,500 personally and expected legal services in exchange; SCM received only $700 of billed amounts and large write-offs were recorded. Barrett characterized writedowns as courtesies or compassion-based decisions.
- Petersen built a shed at Barrett’s home; Barrett paid Petersen ~ $5,000 though the shed cost ~$15,170; Barrett caused SCM to write off ~$8,913 and refunded a $2,500 retainer. Petersen testified the shed was exchanged for legal services.
- Barrett sought reimbursement for a California business-development lunch he did not personally attend, claiming a contemporaneous phone call with a potential client justified the request.
- The Office of Professional Conduct (OPC) sued; the district court found Barrett knowingly engaged in misconduct in violation of Utah Rule 8.4(c), concluded he misappropriated firm funds (but not client funds), and imposed a 150-day suspension.
- Barrett appealed the factual findings and sanction; OPC argued that intentional misappropriation of firm funds should presumptively require disbarment. The Utah Supreme Court affirmed most findings, rejected extension of a disbarment presumption to firm-fund misappropriation, reversed the finding as to the California lunch, and upheld a 150-day suspension.
Issues
| Issue | Plaintiff's Argument (OPC) / Alternatively relevant party | Defendant's Argument (Barrett) | Held |
|---|---|---|---|
| Were the district court’s factual findings (misappropriation deals with Williams/Petersen) clearly erroneous or biased? | OPC: Findings supported by witness testimony and records. | Barrett: Findings were erroneous, based on bad credibility calls, procedural mislabeling, and judge’s extra-record research; alleged bias. | Court: Findings affirmed; no bias; credibility determinations and facts supported by record. |
| Does intentional or knowing misappropriation of firm funds create a presumption of disbarment? | OPC: Extend presumption of disbarment (used for client-fund misappropriation) to firm-fund misappropriation. | Barrett: (Implicit) sanction should be less severe; facts do not warrant disbarment. | Court: Declined to extend presumption to firm funds; Ince dicta rejected; firm-fund misappropriation is serious but not automatically disbarring. |
| Was suspension the appropriate sanction (including whether rules 14-604/14-605 mandate disbarment or suspension)? | OPC: Disbarment appropriate given knowing misconduct and injury to firm. | Barrett: Suspension too harsh; errors in findings and bias warrant reversal/lesser sanction. | Court: Suspension appropriate—150 days—because conduct was knowing/intentional, caused actual injury, and mitigating factors (including restitution) were not compelling. |
| Did Barrett violate Rule 8.4(c) for requesting reimbursement for a lunch he did not attend? | OPC: Reimbursement request was deceptive and withheld information from SCM. | Barrett: He spoke to client by phone during the lunch and firm policy did not prohibit reimbursement in such circumstances. | Court: Reversed that finding; no evidence of intentional deception and no firm policy forbidding such reimbursement. |
Key Cases Cited
- In re Discipline of Corey, 274 P.3d 972 (Utah 2012) (explains standard of review and presumption principles in attorney discipline)
- In re Discipline of Babilis, 951 P.2d 207 (Utah 1997) (establishes presumption of disbarment for intentional misappropriation of client funds)
- In re Discipline of Ince, 957 P.2d 1233 (Utah 1998) (attorney disbarred for misappropriating firm and client funds; court clarifies its dicta should not be extended to firm-fund misappropriation automatically)
- Long v. Ethics & Discipline Comm. of the Utah Supreme Court, 256 P.3d 206 (Utah 2011) (discusses mental-state distinctions affecting sanctions)
- In re Discipline of Lundgren, 355 P.3d 984 (Utah 2015) (restitution is not mitigating absent evidence of remorse)
- In re Complaint Against Cassity, 875 P.2d 548 (Utah 1994) (reprimand imposed where misconduct was not intentional; contrasts negligent vs. intentional conduct)