In the Matter of the DISCIPLINE OF Jamis M. JOHNSON, No. 3937.
No. 990806
Supreme Court of Utah
Dec. 18, 2001.
Rehearing Denied April 25, 2002.
2001 UT 110
HOWE, Chief Justice
Stewart M. Hanson, Jr., Cameron S. Denning, Salt Lake City, for Johnson. Kate A. Toomey, Salt Lake City, for the Utah State Bar.
CONCLUSION
¶ 29 Although we affirm the district court‘s holding that the magistrate had probable cause to issue the search warrant, we conclude that the district court erred in finding the “all records” search warrant was overbroad under the United States Constitution. The “all records” warrant complied with the Fourth Amendment‘s particularity requirement because Barton‘s affidavit demonstrated there was probable cause to believe that Norris‘s businesses were permeated with fraud. We therefore reverse the district court‘s overbreadth ruling and remand the case for further proceedings consistent with this opinion.
¶ 30 Chief Justice HOWE, Associate Chief Justice RUSSON, Justice DURHAM, and Justice WILKINS concur in Justice DURRANT‘s opinion.
Durham, J., filed opinion concurring in part and dissenting in part;
Wilkins, J., filed opinion concurring in part and dissenting in part.
INTRODUCTION
¶ 1 Attorney Jamis Johnson was disbarred from the practice of law for intentionally misappropriating client funds, a violation of the
¶ 2 In connection with his representation of a client, Johnson settled a case for $50,000. He deposited that money in a trust account as required by
In our last conversation, you claimed to have returned the trust account check I sent you. I have not received that check. I have therefore stopped payment on that check.
If you want me to issue another check I will, but I will await your instructions in that regard.
In the meantime, I will hold the funds in trust. If I am compelled to take any further action on the matter, you will be billed at the previously discussed rate of $150.00 and I will, as the bill accrues, draw down such legal fees out of the amount of the trust account.
(Emphasis added.) In a letter dated January 26, 1993, Johnson‘s client responded:
I inadvertently failed to return the Trust Account check. Please find it enclosed herewith.
In response to your January 19, 1993 letter you may do as you wish with the funds, but you should be aware that you have not responded to our last conversation in which I suggested that we pursue arbitration or mediation. I am, therefore, proceeding formally against you under the laws of the State of Utah....
... [D]o not work on this matter or any other matter related to [this client] or any of its subsidiaries.
(Emphasis added.) The client then filed an informal complaint with the OPC alleging that Johnson had settled the case without authority; the complaint was later dismissed. Approximately fifteen months later, the client demanded payment of the $28,800 by letter dated April 15, 1994. When Johnson had not returned the funds by February 16, 1995, the client again sent a letter demanding payment within ten days. When the client did not receive payment, it made a second informal complaint to the OPC, alleging misuse of a client‘s funds. The OPC subsequently filed a formal complaint against Johnson on May 20, 1997, charging that he violated
Johnson held the client‘s $28,800 in a trust account.
Mr. Johnson attempted to deliver the $28,800 to the client and those funds were returned to Mr. Johnson. . . . Mr. Johnson placed the client‘s $28,800 in trust and agreed to hold the client funds in trust pending a resolution of their differences. Thereafter the client requested the return of the funds, but Mr. Johnson did not return the $28,800.
Mr. Johnson converted the $28,800 for his own use.
Mr. Johnson offered no satisfactory explanation of why he kept the $28,800. His explanation of expenses for the threatened malpractice action by the client against Mr. Johnson is not a satisfactory explanation.
Johnson was granted a stay of the judgment of disbarment pending any appeal.
STANDARD OF REVIEW
¶ 3 This court is charged with governing the conduct and discipline of those admitted to practice law in this state. Thus in reviewing attorney discipline cases, “while we review the trial court‘s finding of facts under the clearly erroneous standard, we reserve the right to draw different inferences from the facts than those drawn by the trial court.” In re Discipline of Ince, 957 P.2d 1233, 1236 (Utah 1998) (citation omitted); see also In re Discipline of Babilis, 951 P.2d 207, 213 (Utah 1997). In addition, “our constitu-
ANALYSIS
¶ 4 We address first whether the trial court‘s sanction of disbarment was appropriate and then turn to the issue of whether Johnson was properly granted a stay pending this appeal.
I. DISBARMENT SANCTION
¶ 5 Attorney discipline sanctions are governed by the
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.
¶ 6 These rules additionally provide that an order disbarring an attorney is generally appropriate absent mitigating or aggravating circumstances when he or she
(a) knowingly engages in professional misconduct as defined in
Rule 8.4(a), (d), (e), or (f) of the Rules of Professional Conduct with the intent to benefit the lawyer or another or to deceive the court, and causes serious or potentially serious injury to a party, the public, or the legal system, or causes serious or potentially serious interference with a legal proceeding; or(b) engages in serious criminal conduct, a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation . . . or an attempt or conspiracy or solicitation of another to commit any of these offenses; or
(c) engages in any other intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer‘s fitness to practice law.
¶ 7 Subsection (a) above directs us to
¶ 8 The trial court held that Mr. “Johnson violated rule 1.15(a), (b), and (c) . . . of the Rules of Professional Conduct when he intentionally misappropriated [his client‘s] funds for his personal or business use.” After determining that Johnson had violated the
¶ 9 We held in Babilis that intentional misappropriation of a client‘s funds will result in disbarment absent “truly compelling mitigating circumstances.” 951 P.2d 207, 217
¶ 10 Johnson does not dispute the fact that he did not return the $28,800 to his client upon demand. The trial court found that he made no satisfactory explanation for this failure. The court weighed the mitigating factors presented by Johnson and determined that they were not sufficient to warrant a lesser sanction. He contends that he “has maintained a practice for many years, which includes significant pro bono work, involvement in community organizations, and a good reputation among his fellows” and that he “is not the type of individual committing the type of acts” requiring disbarment. Although a good reputation and community service are commendable, they do not constitute “truly compelling mitigating circumstances” when there has been a misappropriation of client‘s funds. Id. at 217.
¶ 11 In addition, Johnson contends that the entire circumstances surrounding the misappropriation is a mitigating circumstance. Although he does not dispute that he used the $28,800 for personal or business purposes, he asserts that there is a question of fact about whether the client was even entitled to that money.2 He argues that when the client, after rejecting his tender of the money, terminated the attorney-client rela-
tionship and told him to do with the money what he would, his own obligation to keep the money in trust ended. He argues further that his client owed him money from other transactions including fees for protecting his interest in this case, and thus he was entitled to a portion of the $28,800 he initially tendered. We disagree.
¶ 12 The
¶ 13 Johnson also contends that “[a]bsent a finding by the trial court of ‘serious criminal conduct’ ” his case does not meet the requirements for presumptive disbarment in rule 4.2. We reject that argument here as we did in Babilis. First, disbarment is appropriate when an attorney‘s conduct falls within any one of the three subsections of rule 4.2. The trial court‘s finding that Johnson knowingly violated
II. STAY PENDING APPEAL
¶ 15 In appealing from the order granting Johnson‘s motion for a stay pending his appeal to this court, the OPC seeks “guidance on the important issue of the availability for stays of judgment in cases in which the district court has determined that the attorney‘s misconduct is so serious that it warrants disbarment.” Our resolution of this issue today cannot affect the parties in this action and is therefore moot. We generally refrain from deciding moot questions because of our policy against issuing advisory opinions. In re Giles, 657 P.2d 285, 286 (Utah 1982). However, this case warrants an exception to this policy because the issue is one of wide public concern, and because of the short period any one litigant is affected by it, the issue is ” ‘capable of repetition yet evading review.’ ” Id.; see also KUTV v. Conder, 668 P.2d 513, 516 (Utah 1983); Wickham v. Fisher, 629 P.2d 896, 899-900 (Utah 1981).
¶ 16 The standard a trial court must follow in granting an attorney‘s motion for stay of a judgment of sanction pending appeal of that judgment is a question of first impression in this court. We look to the rules governing attorney discipline proceedings to resolve it.
enunciated a firm rule in Babilis and may well have been decided differently today.
a trial court can grant a motion for stay pending appeal “in its discretion and on such conditions for the security of the adverse party as are proper.”
¶ 17 Pursuant to our constitutional charge to “govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law,”
¶ 18 The trial court found that “the likelihood of harm to the public should Johnson be allowed to practice law during the pendency of this appeal is slim.” We agree. Johnson‘s conduct warranting disbarment was a serious one-time offense and not a continuing pattern of misconduct that was likely to recur while he was allowed to continue to practice pending his appeal to this court.
¶ 19 The judgment of disbarment is affirmed. The trial court did not err in granting Johnson‘s motion for a stay pending his appeal to this court.
¶ 20 Associate Chief Justice RUSSON and Justice DURRANT concur in Chief Justice HOWE‘s opinion.
DURHAM, Justice, concurring and dissenting:
¶ 21 I concur in Part I of the majority opinion, but cannot join Part II. This court is charged by the Utah Constitution with the obligation to regulate the practice of law. We have delegated the screening, fact-finding, and initial judgment regarding discipline to the Utah State Bar and to the district courts, but we retain the final authority to oversee the system. When the prosecuting entity and the disciplined attorney accede to the appropriateness of the disciplinary sanction imposed by the trial courts, or at least fail to challenge it, we lend our constitutional authority to the finality of the determination. Such trial court decisions, of course, create no precedent for the disposition of other cases. Where a sanction is challenged, however, this court undertakes a function that goes beyond the review of an individual case. We arbitrate questions of proportionality, rules of law, and guidelines for the imposition of sanctions that have general application for the practice of law in Utah. Our decisions interpret the
¶ 22 Given the significance of our institutional role in the process of imposing sanctions, I am troubled by the procedural analysis of my colleagues. Disbarment is the “ultimate” sanction in the context of disciplinary proceedings. Once it is effected, there is, in a professional sense, no turning back. A disbarred lawyer must instantly close his practice, dismiss his clients, and remove himself from all litigation and transactions in which he has been engaged as a lawyer. There is little likelihood that a practice could be restored or regenerated if this court were to reverse the sanction after appeal, particularly given the many months required to resolve such appeals.
¶ 23 Trial courts have a more limited perspective on the disciplinary system than does this court. A trial judge is often called on to “predict” the answer to a question of first impression involving the rules and the scope of appropriate sanctions. It is not at all unexpected that a trial judge‘s best assessment of the trend of developing law turns out to be “wrong” in the sense that this court will reject it and opt for a different interpretation or policy. Where the judgment is equivalent to a professional death penalty, I believe that this court‘s review should precede execution.
¶ 24 This case presents a useful example. The facts ultimately support the sanction of disbarment, but it is in my view a very close question. An otherwise upright and commendable lawyer has committed one enormous error of judgment and behavior, for which he is to experience the complete loss of his career and reputation. It has been a very difficult decision for at least this member of the court to disbar. Simultaneously, this lawyer‘s misconduct, although meriting disbarment, constituted no interim danger to the public whatsoever during the pendency of the appeal. Had this court disagreed with the trial judge on the sanction, and had there been no stay of execution, a career might have been dismantled unnecessarily. I therefore take a view different from any of those supported by my colleagues. I believe that where disbarment is ordered by the trial judge and an appeal is taken, there should be an automatic stay unless there has been a showing sufficient to support an interim suspension under rule 18(a), either in the trial court proceedings themselves or on motion by the Bar. I don‘t want to overdo the analo-
WILKINS, Justice, concurring and dissenting:
¶ 25 I concur in part I of Chief Justice Howe‘s opinion. I respectfully dissent to part II. The trial court should not have stayed the judgment.
¶ 26 I agree that once a judgment of disbarment is entered by the trial court, the burden should be on the lawyer to seek, and establish adequate grounds for, a stay of the disbarment pending review by this court. The obligation is on the lawyer to prove the entitlement to a stay by demonstrating to the trial court that the lawyer does not pose a substantial threat of irreparable harm to the public during the course of the review. Moreover, even making such a motion and showing should not entitle the disbarred lawyer to a stay of the disbarment pending review. Quite the contrary, the trial judge, acting as our agent in this type of proceeding, has broad discretion in deciding whether or not a stay is appropriate. In my opinion, we are unwise to create a presumption in favor of granting a stay. It would be better to require the disbarred lawyer to convince the trial court, or us, that he or she has a substantial likelihood of success on review by this court before granting a stay.
¶ 27 At risk here is not only the livelihood of the lawyer, but the confidence of the public in the court‘s ability to police the ranks of those admitted to practice law. An interim suspension should be imposed when needed to protect the public. A disbarment should be effective when entered by the trial court, under all but the most unusual circumstances. Only when the lawyer can demonstrate that the disbarment is likely to be reversed on review by this court should the public be required to suffer continued exposure to the disbarred lawyer. Our duty to protect the public is higher than any duty to the disbarred lawyer, once the lawyer has been accorded a full measure of due process and evenhanded justice by the trial court. Only when the quality of that justice is in real doubt should a stay be granted.
RICHARD C. HOWE
CHIEF JUSTICE