In Re Discipline of Doncouse

2004 UT 77, 99 P.3d 837, 508 Utah Adv. Rep. 3, 2004 Utah LEXIS 192, 2004 WL 2029603
CourtUtah Supreme Court
DecidedSeptember 10, 2004
DocketNo. 20020916
StatusPublished
Cited by4 cases

This text of 2004 UT 77 (In Re Discipline of Doncouse) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Discipline of Doncouse, 2004 UT 77, 99 P.3d 837, 508 Utah Adv. Rep. 3, 2004 Utah LEXIS 192, 2004 WL 2029603 (Utah 2004).

Opinion

PARRISH, Justice:

T1 The Office of Professional Conduct (OPC) of the Utah State Bar appeals from a judgment of the district court suspending attorney Russell T. Doncouse from the practice of law for one year based on his violation of the Utah Rules of Professional Conduct during a previously ordered ninety-day suspension. The OPC argues that Doncouse's misconduct warranted disbarment. We disagree, but hold that the suspension ordered by the district court should be increased from one to three years, the longest period of suspension authorized under our rules.

BACKGROUND

T2 On March 1, 2002, the district court entered an order suspending Doncouse from the practice of law for a period of ninety days.1 On June 7, 2002, the OPC initiated contempt proceedings against Doncouse for allegedly continuing to practice law during the period of his suspension. The OPC based its contempt claim on allegations of three specific instances of misconduct, which were the subject of an evidentiary hearing before the district court.

T3 First, the OPC alleged that Doncouse engaged in the unauthorized practice of law during the period of suspension by attempting to gain access to an inmate client at the Utah State Prison. After arriving at the prison, Doncouse identified himself as an attorney and presented his bar card. He also initialed papers as the attorney of record for the client. Doncouse testified that he was attempting to drop off a file requested by the client because the attorney who was to handle the case during Doncouse's suspension was not available. Doncouse identified himself as an attorney because he did not know whether prison officials would prohibit a suspended attorney from delivering a file. When questioned by prison officials about his status, however, Doncouse acknowledged his suspension.

T 4 Second, the OPC alleged that Donecouse engaged in the unauthorized practice of law by filing a reply document on behalf of a client during the ninety-day suspension. The document was signed by Doncouse as the relevant party's attorney. Doncouse testified that he prepared the reply document before the suspension began, even though it was not filed until after the start of the suspension, and that he belatedly realized that filing the document after his suspension began would constitute the unauthorized practice of law.

[5 Third, the OPC alleged that Doncouse engaged in the unauthorized practice of law [839]*839by undertaking the representation of a new client during the suspension period. Don-couse testified that he did not begin actual representation of the client until after the suspension ended, but there was evidence at the hearing that Doncouse spoke with an individual regarding a potential medical malpractice action, supplied information relevant to the individual's claims, and took pictures to be used in support of the claims before the end of the suspension period.

T6 The OPC argued that disbarment was the appropriate sanction for these three instances of misconduct. The OPC relied additionally on the fact that Doncouse had filed an affidavit of compliance with the court near the end of the suspension period in which he had represented that he had complied with the order of suspension. Given the evidence of misconduct, the OPC argued that the affidavit was false.

T7 On the basis of the evidence presented at the hearing, the district court made the following findings of fact:

On April 3, 2002, Doncouse requested access to an inmate client at the Utah State Prison. Doncouse identified himself as an attorney, used his Bar number, and signed papers identifying himself as the attorney of record for the inmate.
On April 22, 2002, Doncouse filed on behalf of a client ... a paper captioned "Reply to Defendant's Objection to Plaintiffs Motion to Vacate Motion to Dis-migs".... The paper was signed by Don-couse and held him out as the attorney of record for the client.
On May 81, 2002, Doncouse submitted to the Court an Affidavit of Compliance stating that he "refrained from the practice of law during the period of March 1, 2002 through May 31, 2002." That statement was false.
In May 2002, Doncouse undertook the representation of [a new client] in a personal injury matter. Doncouse failed to disclose to [the client] that Doncouse was suspended from the practice of law and therefore could not accept new client matters.

T8 On the basis of these factual findings, the district court found Doncouse in contempt for violating its prior order of discipline. It additionally concluded that Don-couse violated the Utah Rules of Professional Conduct. Specifically, the court found that Doncouse violated rule 5.5 (by continuing to practice law, including holding himself out as an attorney and filing papers in court while his license was suspended); rules 8.1(a) and 8.4(c) (by making misrepresentations of fact to prison officials and the court by holding himself out as an attorney); and rule 8.4(d) (by filing a paper in court for a client when he was not authorized to practice law, and by filing an affidavit of compliance falsely stating that he had complied with the court's order 'of suspension). The district court found that suspension was the presumptive sanction for the misconduct and, upon considering aggravating and mitigating factors, concluded that Doncouse should be suspended for one year. Although the OPC requested disbarment, the district court found that disbarment would be "too harsh for the types of transgressions that occurred."

ANALYSIS

T9 In reviewing attorney discipline cases, "we review the trial court's finding of facts under the clearly erroneous standard." In re Ennenga, 2001 UT 111, ¶ 9, 37 P.3d 1150 (quotation and citation omitted). However, "we reserve the right to draw different inferences from the facts than those drawn by the trial court." Id. (quotation and citation omitted). In this case, Doncouse does not dispute the factual findings of the district court, and we therefore do not disturb them.

£10 A different standard, however, applies to our review of the sanction imposed by the district court. It is our duty to make an independent determination as to the appropriate sanction to be imposed. See id. at 119-10. In so doing, we rely on the Standards for Imposing Lawyer Sanctions for guidance. These standards state that the purpose of sanctioning an attorney is

to ensure and maintain the high standard of professional conduct required of those who undertake the discharge of professional responsibilities as lawyers, and to pro[840]*840tect 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.

Standards for Imposing Lawyer Sanctions, Rule 1.1.

111 Rule 83 of the standards provides that the factors to be considered in determining the appropriate sanction for attorney misconduct are "(a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors." Id. Rule 3.1. Rule 4 of the standards provides presumptive sanctions for certain misconduct, including disbarment and suspension.2

T12 Disbarment is warranted as a presumptive sanction under rule 4 if a lawyer:

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Bluebook (online)
2004 UT 77, 99 P.3d 837, 508 Utah Adv. Rep. 3, 2004 Utah LEXIS 192, 2004 WL 2029603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-discipline-of-doncouse-utah-2004.