In re James Murrell JONES
No. 19095
Supreme Court of Utah
Feb. 8, 1985
696 P.2d 1215
James M. Jones, pro se.
C. Jeffry Paoletti, Salt Lake City, for respondent.
HOWE, Justice:
Petitioner James Murrell Jones appeals from a recommendation of the Board of Commissioners of the Utah State Bar to this Court that he be disbarred from the practice of law in this state.
After a jury trial, Jones was convicted of two felony counts of theft by deception. We affirmed the convictions, State v. Jones, Utah, 657 P.2d 1263 (1982), and denied his petition for rehearing. We denied a subsequent motion for disbarment filed by the Board of Commissioners and instructed the Board to afford petitioner a hearing and to make recommendations to this Court based upon that hearing. After a hearing before a panel of the Board of Commissioners, the Board recommended that Jones be disbarred by this Court. Petitioner raises two issues on appeal. First, he was not allowed an opportunity to offer to the hearing panel evidence mitigating his felony convictions. Second, Rule 32 of the Rules of Integration and Management of the Utah State Bar, which requires mandatory disbarment upon a felony conviction, violates constitutional due process requirements.
Although Rule 32 mandates that Jones be automatically disbarred, the Board afforded Jones the procedural protections and rights found in Rule 11(A) of the Rules of Discipline of the Utah State Bar and Rule II, section 4 and Canon 1, DR 1-102(A)(4) of the Revised Rules of Professional Conduct of the Utah State Bar. Under the latter rule, the Board must exercise its discretion whether to recommend disbarment of an offending attorney. It did so by holding a hearing and affording Jones the opportunity to present mitigating evidence that would justify discipline short of disbarment. The record clearly demonstrates that the hearing panel gave petitioner‘s attorney the opportunity to present mitigating evidence. Petitioner declined to personally appear at the hearing, and his counsel chose to present no evidence. Inasmuch as petitioner was afforded this opportunity but chose not to exercise it, he was not denied due process. In re Gudmundson, Utah, 556 P.2d 212 (1976). We adopt the Board of Bar Commissioners’ recommendation that he be disbarred.
It is ordered that James Murrell Jones be disbarred from the practice of law in the courts of this state effective upon the issuance of the remittitur.
HALL, C.J., and DURHAM, J., concur.
STEWART, Justice (concurring):
I agree that the order of disbarment in this case should be sustained. I do not agree, however, that a licensed attorney should be automatically disbarred for conviction of any felony, as Rule 32 of the Rules of Integration and Management of the Utah State Bar appears to require. If Rule 32 were limited to convictions of felonies which are malum in se, automatic disbarment would be justified. However, we live in a day when the statutes of the United States and the State of Utah create numerous crimes which are punishable as felonies even though they are only malum prohibitum and do not involve moral turpitude. As to such crimes, it seems to me that Bar sanctions should be applied on a case-by-case basis so that the nature of the crime and the degree of culpability of the attorney are considered in determining the severity of the sanction imposed. I do not mean to say that no sanction should be imposed when an attorney commits a crime that is only malum prohibitum, but suspension for a given period, or some other remedy, may be more proportionate to the conduct than automatic disbarment.
ZIMMERMAN, J., concurs in the concurring opinion of STEWART, J.
Sharon Slater BURTON, Jane Ann Johns, Carol Westmoreland and Donna Schultz, Plaintiffs and Respondents, v. Leonard W. BARKER, Jean E. Russell, aka Jean E. Jalbert, Carl Slater, Leleaha Beveridge, Ruth Andrews, Athleen Rice, and Kathleen Ray, Defendants and Appellants.
No. 19631
Supreme Court of Utah
Feb. 13, 1985
696 P.2d 1217
Robert A. Echard, Ogden, for plaintiffs and respondents.
HOWE, Justice:
This is an appeal by the defendant Leonard W. Barker from a judgment entered against him for $20,000 on the plaintiffs’ first cause of action of their complaint. The second cause of action against the defendant Jean E. Russell, aka Jean E. Jalbert, was dismissed by the trial court on motion of the plaintiffs. The trial court did not act or rule on the third cause of action alleged in the complaint against the defendants Carl Slater, Leleaha Beveridge, Ruth Andrews, Athleen Rice, and Kathleen Ray. All of these defendants were served with summons, and the defendant Beveridge filed a pro se answer. The default of the defendants Rice and Ray was entered by the clerk of the court. No further proceedings were taken against the defendants Slater and Andrews.
In its findings of fact, which were prepared following the trial of the first cause of action, the court stated that “the plaintiffs’ action against the co-defendants will be dealt with in a separate Findings of Fact, Conclusion of Law and Judgment.” Thus the case has only been partially tried, and the claims of the plaintiffs against the defendants in the third cause of action have not been disposed of by the trial court. In view of this state of the record, the appeal must be dismissed as not having been taken from a final judgment. Since it is conceivable that one of the defendants in the third cause of action may desire to appeal a judgment which may be rendered against him or her, we cannot now entertain piecemeal the defendant Barker‘s appeal. We must wait until the conclusion of the proceedings in the trial court and handle all appeals at that time.
Appeal dismissed.