Utah Supreme Court repudiates requirement for scrupulous examination of other bad acts evidence; affirms suspension of attorney who accepted construction work as fees thus depriving firm of earned fees; and affirms attorney suspension for commingling funds.

State v Thornton

The state sought review of the Court of Appeals decision reversing Thornton’s child rape and other convictions for inadequate examination of other bad acts evidence and Thornton sought review of the Court of Appeals decision affirming exclusion of evidence about the victim’s sexual experience. The Court, with one justice concurring separately, reversed on appeal and affirmed on cross appeal. It held the district court properly admitted the other bad acts evidence, but, that the Court of Appeals followed the Court’s precedent requiring “scrupulous examination” in it decision on the issue. The Court therefore repudiated the precedent requiring examination and on the record fact finding as the rules of evidence do not require any such scrutiny or fact finding and appellate review is for error in decisions not errors in reasoning. It also noted that Thornton did not preserve the argument that the bad acts evidence should have been evaluated act by act. It held that the evidence served to provide an narrative for Thornton’s role in the household, how he got access to the victim and how he may have been able to keep the victim silent, that these were relevant to the defense of fabrication and there was no prejudice which substantially outweighed the relevance as the acts did not involve other sex crimes or misconduct. As to the sexual experience issue, the Court held that the “physical evidence” exception to the general ban on such evidence was not implicated here as there was no physical evidence connecting anyone to the rapes and that evidence of a consensual relationship between victim and a friend was not fundamental or essential to his defense because he failed to lay a foundation for his claim that the evidence was essential to his claim that victim had an alternative basis for her knowledge of sexual intercourse than the rapes here. Justice Durham concurred separately arguing that the evidence of prostitution and other sexual activity in the household is not evidence that could serve to explain victim’s testimony about her experience during the rapes, but, failure to ask for an in camera examination or otherwise creating a record for comparison means Thornton’s argument fails.In the Matter of the Discipline of Joseph P. Barrett (Office of Professional Conduct v Barrett)

Office appealed the district court order suspending Barrett and Barrett appealed the district court’s factual findings. The Court affirmed in part, reversed in part and upheld the suspension. It rejected Barrett’s challenges holding there was no error in the district court crediting the client’s testimony here as they had good relationships with Barrett and were reluctant to testify and Barrett’s testimony was self-serving, there was no harm form an erroneous designation of certain disputed facts as stipulated as there was sufficient evidence to support the findings and the district court did not use its independently researched facts about Barrett’s law firm structure in setting a punishment and thus any error was harmless. It held that suspension was appropriate here given Barrett’s intentional misconduct in accepting construction work as attorney fees deprived the firm of earned fees. It held disbarment was not presumptive here as there was no theft of client funds and the Court refused to extend the presumption to stealing firm funds as the need for a bright line rule to deter client fund theft and thus keep public confidence in the members of the bar is not present when only firm funds are involved. It finally held that restitution here was not mitigating and reversed the finding of misconduct as to a reimbursement issue as there was no evidence the request violated any firm policy.

In the Mater of the Discipline of Abraham Bates (Office of Professional Conduct v Bates)

Office appealed the district court order suspending Bates for five months arguing he should be disbarred. The Court affirmed on different reasoning. It held that the facts here do not support the district court’s finding of a knowing misappropriation of client funds as Bates testified he did not know client funds unintentionally deposited in his operating account were used for payroll, he used the earned retainer to fund a settlement and he took draws on his lines of credit soon after the payroll withdraw evidencing a lack of intent to keep the money for himself and thus the presumptive sanction was a public reprimand. It held that Bates knowingly commingled client and firm funds, however, because he knew the retainer money was in the wrong account and did nothing to remedy the problem for the four weeks after he learned about eh problem and the use of the funds for payroll and the presumed sanction is suspension. It held the fat that the client trust fund went negative during the relevant period only proved negligence as the fact he “could” have learned about the specific client fund balances did not demonstrate he actually did. The Court finally held that the suspension was properly reduced from six to five months based on mitigating factors of lack of prior record, no selfish motive, and good faith efforts to make timely restitution, full disclosure, inexperience in law practice, an otherwise good reputation and Bates’ remorse.