Discipline of Donald Gilbert

This opinion is subject to revision before final
publication in the Pacific Reporter

2016 UT 32

IN THE

SUPREME COURT OF THE STATE OF UTAH

In the matter of the Discipline of
DONALD D. GILBERT, JR.

DONALD D. GILBERT, JR.,
Appellant,
v.
UTAH STATE BAR,
Appellee.

No. 20150628
Filed July 20, 2016

On Direct Appeal

Fourth District, Provo
The Honorable Fred D. Howard
No. 100401646

Attorneys:
Lynn O. Poulson, Lehi, for appellant
Adam C. Bevis, Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:
¶1 Donald D. Gilbert, Jr. appeals the district court’s order
concluding that he violated the Utah Rules of Professional Conduct
and disbarring him from the practice of law. We affirm the district
court’s order and conclude that disbarment is an appropriate
sanction.
 Discipline of DONALD D. GILBERT, JR.
Opinion of the Court

BACKGROUND
¶2 Donald D. Gilbert, Jr. represented the Utah Down Syndrome
Association (the Association) and a number of its founders in a
dispute with the Utah Down Syndrome Foundation (the
Foundation). The Foundation is a Utah nonprofit corporation that
operates, in part, through fourteen county chapters. The chapters are
run mainly by volunteers who help the Foundation achieve its goals
of advocating for and providing support to members of the
community with Down syndrome.
¶3 In 2006, a number of the board members of the Salt Lake and
Utah County chapters (the Chapters) became concerned with the
Foundation’s operations. These board members questioned whether
the Foundation was complying with its governing documents and
Utah law. They hired Gilbert to consult with them on their corporate
governance questions. Eventually, a number of the Chapters’
officers, while still serving in their representative capacities for the
Chapters, formed the Association as a purportedly separate entity
with charitable purposes similar to the Foundation’s.
¶4 The Foundation responded by sending letters to six of the
Chapters’ officers, removing them from their positions within the
Chapters. The dispute between the Foundation and the officers
eventually boiled over into litigation. Gilbert represented the
Association, the Chapters, and certain members of the Chapters’
boards of directors in two lawsuits.
¶5 In the first suit, two of the Chapters’ board members, Eric
Holman and Melanie Taylor, retained Gilbert to file derivative
claims against the Foundation’s board of directors and officers on
behalf of the Foundation and the Chapters. Gilbert’s clients sought a
declaratory judgment that the president of the Foundation and other
officers lacked the legal authority to act on behalf of the Foundation.
The district court granted summary judgment to the Foundation’s
officers, determining that Holman and Taylor did not have standing
to file suit on the Foundation’s behalf.
¶6 In the second action, the Foundation sought an accounting
and the return of funds that the Foundation claimed the
Association’s founders had taken. The Foundation named Holman,
Taylor, and five additional board members of the Chapters (the
Individual Defendants) in the suit. The Foundation also named the
Association as a defendant. The Foundation alleged that the
Individual Defendants had acted unlawfully by continuing to access

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the Chapters’ bank accounts, which the Foundation claimed were in
actuality the Foundation’s bank accounts, after the Individual
Defendants had been removed from their Chapter positions.
¶7 The Foundation moved for partial summary judgment, which
the Individual Defendants did not oppose. The district court granted
the Foundation’s motion and issued an order requiring the
Individual Defendants to return all funds taken from the bank
accounts and enjoined the Individual Defendants from further
accessing funds in those accounts (the Injunction). Although Gilbert
did not represent the Individual Defendants in the second action at
the time the court entered the Injunction, Gilbert received a copy of
that order approximately five days after it issued.
¶8 After receiving the Injunction, Gilbert accepted four checks
for payment of $30,000 in attorney fees that were drawn on the bank
accounts the Injunction identified as belonging to the Foundation.
Holman, who was expressly enjoined from accessing those bank
accounts and who had been ordered to return the Chapter funds to
the Foundation by the Injunction, signed the first check for $6,000. 1
All four checks were signed, delivered, and negotiated after entry of
the Injunction.
¶9 At the time he accepted the checks, Gilbert knew, or should
have known, that the funds he received were the subject of litigation
and that the bank accounts from which the funds were taken were
subject to the Injunction. Nevertheless, Gilbert did not deposit the
monies into a trust account or otherwise hold the funds pending the
resolution of the dispute between his clients and the Foundation.
Nor, as the district court found, did Gilbert “notify the court . . . of
his intention to accept the . . . checks based on his position that [the
Injunction] was invalid, void, had expired, [and] did not apply to the
[funds] he received.” Rather, Gilbert simply cashed the checks and
kept the funds.
¶10 The Foundation eventually learned that Gilbert had received
payments from the bank accounts subject to the Injunction. The
Foundation filed a motion to disgorge and requested an order
requiring Gilbert to return the funds he had received from the
Chapters’ bank accounts. After a hearing on the Foundation’s

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The other three checks were signed by Chapter board members
1

who had not been expressly named in the Injunction.

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motion, the district court ordered Gilbert to return the attorney fees
to the Foundation.
¶11 Despite the district court’s order, Gilbert did not return the
legal fees he had received. The Foundation eventually filed a second
motion for disgorgement of funds. The court granted the
Foundation’s second motion and entered judgment against Gilbert
for $30,000, interest, and associated attorney fees. To date, Gilbert
has not returned the funds to the Foundation.
¶12 Two years after the district court issued the second
disgorgement order, a Foundation officer filed an informal
complaint against Gilbert with the Utah State Bar’s Office of
Professional Conduct (the OPC). After a screening panel
recommended formal action, the OPC initiated disciplinary
proceedings against Gilbert. The OPC’s complaint alleged that
Gilbert had violated five of the Utah Rules of Professional Conduct.
Gilbert’s defense centered on the validity of the Injunction and the
disgorgement order. He argued that the Injunction was void for a
variety of reasons, that he had no obligation to comply with a void
order, and that he was excused from complying with the
disgorgement order because the court lacked jurisdiction over him as
a nonparty to the actions.
¶13 Gilbert filed a third-party complaint pursuant to rule 14 of
the Utah Rules of Civil Procedure, impleading the Foundation into
his disciplinary proceeding. The district court granted Gilbert’s
motion, but this court reversed that decision. We held that third-
party complaints are inappropriate in attorney discipline
proceedings. In re Discipline of Gilbert v. Utah Down Syndrome Found.,
Inc., 2012 UT 81, ¶ 28, 301 P.3d 979. We concluded that “[n]either the
historical nor current framework for adjudicating attorney discipline
cases allows litigation of collateral matters in an attorney
disciplinary action.” Id. ¶ 29. We then remanded the case and
directed that “by denying impleader in this case, we do not dismiss
[Gilbert’s] third-party complaint on its merits.” Id. ¶ 28. We also
suggested that Gilbert “may pursue his third-party complaint in an
independent action.” Id.
¶14 On remand, the district court dismissed Gilbert’s third-party
complaint against the Foundation without prejudice. Gilbert objected
and moved for a new trial or new judgment. Gilbert contended, inter
alia, that Utah Rule of Civil Procedure 21 required the district court
to sever, and not dismiss, his third-party complaint. The district
court denied that motion.

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¶15 Gilbert also moved to stay or continue the disciplinary
proceedings until his third-party complaint against the Foundation
could be resolved. The district court determined that Gilbert had not
shown good cause to stay the disciplinary action. The court
concluded that the facts underlying the disciplinary proceeding have
“little to do with [Gilbert’s] appeal against [the Foundation],” and
that even if Gilbert were to succeed against the Foundation, the
resolution of that dispute “would not affect the issues in the
disciplinary case.”
¶16 The district court held a five-day bench trial. At the end of
the trial, the district court concluded that Gilbert had violated four of
the Utah Rules of Professional Conduct: rule 1.7(a) (Conflict of
Interest: Current Clients), rule 1.15(e) (Safekeeping Property), rule
3.4(c) (Fairness to Opposing Party and Counsel), and rule 8.4(d)
(Misconduct).
¶17 The district court then determined that disbarment was the
presumptive discipline under rule 14-605 of the Supreme Court
Rules of Professional Practice and reviewed aggravating and
mitigating circumstances. It found the following aggravating
circumstances: that Gilbert’s conduct evidenced a selfish motive; that
Gilbert had committed multiple violations of the Utah Rules of
Professional Conduct; that Gilbert continually refused to
acknowledge the wrongful nature of his actions and had
demonstrated a lack of remorse; that Gilbert had substantial
experience in the practice of law; and that Gilbert had “made no
effort to rectify the consequences of the misconduct,” including his
failure to repay any of the $30,000 owed to the Foundation. The court
determined that the absence of a prior disciplinary record and the
testimony of family and friends relating to his good character were
mitigating circumstances. Based on the many aggravating
circumstances and the relative lack of mitigating circumstances, the
court determined that the presumptive sanction of disbarment was
appropriate and entered an order disbarring Gilbert from the
practice of law. Gilbert appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Gilbert first argues the district court erred in concluding that
he violated the Utah Rules of Professional Conduct. “This court is
charged with governing the conduct and discipline of those
admitted to practice law in this state.” In re Discipline of Johnson, 2001
UT 110, ¶ 3, 48 P.3d 881. Accordingly, “[i]n matters of attorney
discipline, we review ‘findings of facts under the clearly erroneous

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standard’ while ‘reserv[ing] the right to draw different inferences.’”
In re Discipline of Brussow, 2012 UT 53, ¶ 13, 286 P.3d 1246 (second
alteration in original) (citation omitted).
¶19 Gilbert next contends that disbarment is an improper and
excessive sanction. We review the district court’s decision for
correctness because “our constitutional responsibility requires us to
make an independent [sanction] determination.” In re Discipline of
Jardine, 2015 UT 51, ¶ 16, 353 P.3d 154 (citation omitted).
¶20 Gilbert also contends that the district court erred by
improperly dismissing his third-party complaint against the
Foundation. Specifically, Gilbert argues that rule 21 of the Utah
Rules of Civil Procedure required the district court to sever, rather
than dismiss, his complaint. “A district court’s interpretation of a
rule of civil procedure presents a question of law that is reviewed for
correctness.” Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 2011 UT
82, ¶ 7, 267 P.3d 923. The district court’s dismissal of a third-party
complaint, however, is reviewed for abuse of discretion. See
Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (“We review
the district court’s order dismissing appellants for misjoinder under
an abuse of discretion standard.”); cf. In re Discipline of Gilbert v. Utah
Down Syndrome Found., Inc., 2012 UT 81, ¶ 14, 301 P.3d 979.
¶21 Gilbert’s final argument posits that the district court abused
its discretion in declining to stay the disciplinary proceedings to
permit him to resolve his complaint against the Foundation. We
review a district court’s refusal to grant a stay of proceedings for an
abuse of discretion. Lewis v. Moultree, 627 P.2d 94, 96 (Utah 1981) (“It
lies within the inherent powers of the courts to grant a stay of
proceedings. It is a discretionary power, and the grounds therefor
necessarily vary according to the requirements of each individual
case.”); see also Macris v. Sevea Int’l, Inc., 2013 UT App 176, ¶ 25, 307
P.3d 625.
ANALYSIS
I. GILBERT VIOLATED THE UTAH RULES OF
PROFESSIONAL CONDUCT
A. Rule 1.7 (Conflict of Interest: Current Clients)
¶22 Gilbert first challenges the district court’s conclusion that he
violated rule 1.7 of the Utah Rules of Professional Conduct. Rule 1.7
requires that a lawyer “not represent a client if the representation
involves a concurrent conflict of interest.” UTAH R. PROF’L CONDUCT
1.7(a). A concurrent conflict of interest exists if “[t]he representation

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of one client will be directly adverse to another client” or “[t]here is a
significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a
former client or a third person or by a personal interest of the
lawyer.” Id. R. 1.7(a)(1)–(2). Notwithstanding the existence of a
concurrent conflict of interest, a lawyer may in some instances
represent a client if, among other things, “each affected client gives
informed consent, confirmed in writing.” Id. R. 1.7(b)(4).
¶23 The district court found at least two rule 1.7 violations.2
First, the court found, “Once [Gilbert] accepted and cashed checks
_____________________________________________________________
2 In addition to the two violations discussed in the text, the
district court appears to have found an additional violation based
upon Gilbert’s concurrent representation of both the Foundation and
the Individual Defendants. Gilbert steadfastly maintains that the
district court erred because he never represented the Foundation.
The district court found, “Where [the Chapters] were not separate
entities from [the Foundation], their interests were adverse to the
interest of the [Individual Defendants].” On this point, the district
court’s order has a distinct “hoisted by his own petard” flavor, as it
appears that Gilbert did at times assert that the Chapters “are not
any sort of legal entity in any way, shape, or form,” but were part of
the Foundation as a means to argue that his clients could not comply
with, or were already in compliance with, certain court orders.
The record does not reflect the relationship between the
Foundation and the Chapters with enough precision to allow us to
opine on the ultimate correctness of the district court’s finding and
conclusion. Gilbert’s briefing similarly does not provide any
assistance in sorting out the relationship between the Chapters and
the Foundation. We therefore reject Gilbert’s challenges to this
portion of the court’s order as inadequately briefed. See Sanpete Am.,
LLC, v. Willardsen, 2011 UT 48, ¶ 64 n.14, 269 P.3d 118 (“We will not
address inadequately briefed issues.”); Johnson v. Johnson, 2014 UT
21, ¶ 20, 330 P.3d 704 (holding that to adequately brief an issue, the
party must include “the contentions and reasons of the appellant
with respect to the issues presented, including the grounds for
reviewing any issue not preserved in the trial court, with citations to
the authorities, statutes, and parts of the record relied on” and that
“[m]ere bald citation to authority, devoid of any analysis, is not
adequate” (citations omitted)). However, given the murkiness
cloaking the district court’s conclusion and the abundance of other
(continued . . .)

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written against funds in [the Chapters’] accounts, [his] interests in
getting paid and avoiding disgorgement of the legal fees he received
created a concurrent conflict with the interest of his clients and their
need to comply with the [Injunction].” The court determined that
“even if the concurrent conflict[] w[as] waivable, . . . Gilbert failed to
consult with each of his clients about the conflicts of interest and
obtain written waivers giving their informed consent.” Gilbert does
not challenge this conclusion.
¶24 Gilbert’s failure to contest this conclusion permits us to
uphold the district court’s rule 1.7 finding because we will not
reverse a ruling of the district court that rests on independent
alternative grounds where the appellant challenges only one of those
grounds. See State v. Roberts, 2015 UT 24, ¶ 38, 345 P.3d 1226.
Nevertheless, the district court correctly concluded that Gilbert’s
interests diverged from his clients’ once the court ordered him to
return the attorney fees. Although this alone would sustain the
court’s determination that Gilbert violated rule 1.7, we review
Gilbert’s challenge to the district court’s other rule 1.7 determination
because we examine the entirety of the record to determine the
appropriate sanction.
¶25 The district court next concluded that Gilbert
simultaneously represented the Individual Defendants, the
Chapters, and the Association “when a concurrent conflict of interest
existed between some of the parties’ interests.” Among other things,
the district court found that Gilbert, due to his representation of the
Individual Defendants, was unable to consult with or advise the
other board members of the Chapters to take actions that could be
contrary to the Individual Defendants’ interests.
¶26 Gilbert does not argue that the rules of professional conduct
permit his concurrent representation of the Individual Defendants
and the other Chapter board members. Instead, he contends that
“[n]ot a single one of [his clients] has come forward with any
complaint” about his concurrent representation, so there can be no
conflict. Although Gilbert does not express his argument in these
terms, his argument could be construed as one rooted in waiver. In
other words, since none of his clients complained about the
_____________________________________________________________
evidence demonstrating Gilbert’s violations, we will not factor this
particular rule 1.7 violation finding into our analysis of the
appropriate sanction for Gilbert’s actions.

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concurrent representation, they should be deemed to have waived
the conflict. Although a party can waive a rule 1.7 conflict in some
circumstances, each affected client must give informed consent,
confirmed in writing. See UTAH R. PROF’L CONDUCT 1.7(b). There is
no question that Gilbert never sought or received his clients’
informed and written consent to waive the conflict of interest. Thus,
the lack of complaint by Gilbert’s clients did not bar the district court
from finding a conflict of interest.
¶27 Gilbert has not established that the district court erred in
concluding that Gilbert’s representation of the Individual
Defendants, the Chapters, and the Association created a concurrent
conflict of interest. Nor has he established that the district court
erred in concluding that once the district court ordered him to
disgorge the attorney fees he had received, his interest in keeping
those fees created a concurrent conflict of interest that prevented him
from zealously representing his clients’ interests. 3
B. Rule 3.4 (Fairness to Opposing Party and Counsel)
¶28 Gilbert next challenges the district court’s determination
that he violated rule 3.4 of the Utah Rules of Professional Conduct.
Rule 3.4(c) instructs, “A lawyer shall not: . . . knowingly disobey an
obligation under the rules of a tribunal, except for an open refusal
based on an assertion that no valid obligation exists.” Id. R. 3.4(c).
¶29 While rule 3.4(c) does not define the term “open refusal” nor
describe how an attorney should openly refuse, other courts and
commentators have determined that at a minimum, this rule requires
an attorney to put a court on notice that the attorney will not comply
with the court-imposed obligation. See 1 GEOFFREY C. HAZARD, JR.,
WILLIAM W. HODES, & PETER R. JARVIS, LAW OF LAWYERING § 33.11

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3 Gilbert also summarily contends that the district court’s rule 1.7
conflict-of-interest determinations should be reversed because the
OPC “presented no complaining witness and had no standing itself
to assert a conflict of interest.” We reject this argument as
inadequately briefed. See State v. Timmerman, 2009 UT 58, ¶ 25 n.5,
218 P.3d 590 (“An issue is inadequately briefed if the argument
merely contains bald citations to authority [without] development of
that authority and reasoned analysis based on that authority.”
(alteration in original) (citation omitted) (internal quotation marks
omitted)).

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(4th ed. 2015) (noting that Model Rule 3.4(c) “permits good faith and
open noncompliance in order to test an order’s validity”); In re
Disciplinary Proceeding Against Jones, 338 P.3d 842, 853 (Wash. 2014)
(concluding that rule 3.4(c) of the Washington Rules of Professional
Conduct is violated when an attorney takes action contrary to a
court’s order unless the attorney openly and unequivocally refuses
to comply before the court); In re Disciplinary Matter Involving Ford,
128 P.3d 178, 181–82 (Alaska 2006) (concluding that an attorney
could have avoided a violation of rule 3.4(c) of the Alaska Rules of
Professional Conduct by “openly . . . informing the superior court
that he could not comply with the order” and stating that “[a]n
attorney may challenge a court order by motion, appeal, or other
legal means, but may not simply disregard it”).
¶30 In other words, rule 3.4(c) stands, at a minimum, for the
proposition that an attorney must either obey a court order or alert
the court that he or she intends to not comply with the order. An
attorney may not, as Gilbert did here, ignore a court order while
secretly hoping to have a trump card to play if non-compliance later
becomes an issue. See Chapman v. Pac. Tel. & Tel. Co., 613 F.2d 193,
197 (9th Cir. 1979) (“An attorney who believes a court order is
erroneous is not relieved of the duty to obey it. The proper course of
action, unless and until the order is invalidated by an appellate
court, is to comply and cite the order as reversible error should an
adverse judgment result.”); In re Disciplinary Action Against Igbanugo,
863 N.W.2d 751, 763 (Minn. 2015) (determining that an attorney
violated rule 3.4(c) of the Minnesota Rules of Professional Conduct
because the attorney’s failure to abide by a court order did not
include an open refusal before the court and declining to give weight
to the attorney’s belief that the obligation imposed by the court was
beyond the court’s authority); In re Disciplinary Matter Involving Ford,
128 P.3d at 181 (determining that an attorney violated Alaska Rule of
Professional Conduct 3.4(c) by unilaterally returning a check to an
out-of-state payor in contravention of a court’s order, despite the
court’s recognition that “difficulties may arise if an attorney honestly
believes he or she is caught between obligations to the client and
obligations to the court,” because “[i]f [the attorney] felt he was
obliged to disobey the superior court’s order, he should have done
so openly by informing the superior court that he could not comply
with the order”).
¶31 The district court determined that Gilbert violated rule 3.4(c)
“by failing to notify the court of his intention to accept the [attorney
fees] checks and disobey the [Injunction] prior to or concurrent with

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his acceptance of the checks.” The record indicates that Gilbert was
aware of, and had actually been served a copy of, the Injunction
before he accepted the checks from his clients. Gilbert contends,
without reference to rule or case law, that he was not required to put
the court on notice of his acceptance of the attorney fees in this
instance and that even if he did, his belief that the Injunction was
void relieved him of any obligation to comply with the court’s order.
¶32 Although Gilbert may have harbored reservations about the
order’s validity, he, in the district court’s words, “had a duty to
openly contest the order by filing a request to stay the order in court,
notify the court of his receipt of the . . . checks and at least hold the
monies in trust until the court ruled on the issue.” The district court
interpreted and applied rule 3.4(c) correctly. 4
C. Rule 1.15 (Safekeeping Property)
¶33 Gilbert also contends that the district court erred in
determining that he violated rule 1.15 of the Utah Rules of
Professional Conduct. Rule 1.15(e) requires,
When in the course of representation a lawyer is in
possession of property in which two or more persons
(one of whom may be the lawyer) claim interests, the
property shall be kept separate by the lawyer until the
dispute is resolved. The lawyer shall promptly
distribute all portions of the property as to which the
interests are not in dispute.
UTAH R. PROF’L CONDUCT 1.15(e).

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4 Gilbert relies on this court’s 1913 decision in In re Evans as
authority for the proposition that an attorney can ignore a void court
order. See 130 P. 217 (Utah 1913). In Evans, two attorneys were
disbarred for champerty, an illegal agreement to share lawsuit
proceeds with a person with no prior interest in the suit. The
attorneys were prohibited from practicing law until they returned
certain funds to the court. Id. at 220. On review, this court found the
disbarment order void and vacated it. Id. at 231. Nothing in Evans
suggests that an attorney can, consistent with Utah Rules of
Professional Conduct, ignore a court order. To the contrary, the
attorneys in Evans returned the funds as the district court ordered
prior to petitioning this court to vacate the court order. Id. at 220.

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¶34 The district court concluded that Gilbert violated rule 1.15(e)
in two ways. First, Gilbert failed to place any of the $30,000 in
attorney fees in a trust account despite knowing that both the
Foundation and his clients claimed ownership of the funds. And
second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to
the Foundation when ordered to do so by the court. See id. R. 1.15
cmt. 3 (“The undisputed portion of the funds shall be promptly
distributed.”); 1 GEOFFREY C. HAZARD, JR., WILLIAM W. HODES,
& PETER R. JARVIS, LAW OF LAWYERING § 20.03 (4th ed. 2015)
(concluding that rule 1.15(e) requires an attorney to “promptly make
proper disposition as to any undisputed portion, and expeditiously
seek to settle the dispute as to the remainder”); id. § 20.08
(concluding that rule 1.15(e) requires that “the lawyer . . . not take
advantage of physical control of the funds, but must scrupulously
abide” by the requirement that an attorney return funds no longer in
dispute); id. (“Rule 1.15(e) requires that any amounts that are not in
dispute be disbursed promptly according to paragraph (d), but that
the lawyer continue to segregate and keep safe the remaining funds
until the dispute can be resolved.” (emphasis added)). Gilbert does not
challenge any of the factual findings underlying the district court’s
conclusions. Nor does Gilbert contend that the district court’s order
misconstrued rule 1.15(e).
¶35 Instead, Gilbert contends that he did not violate rule 1.15(e)
because the Injunction was void. As explained above, an attorney
has a professional obligation to comply with a court order and
cannot unilaterally ignore a court order based on her belief that the
court’s order was wrongly determined. It logically follows that an
attorney cannot ignore rule 1.15(e)’s obligation to safekeep disputed
funds and disburse undisputed funds based upon a claim that the
district court’s order is void. Gilbert’s attack on the court’s rule
1.15(e) determination fails.
D. Rule 8.4 (Misconduct)
¶36 Gilbert also disputes the district court’s determination that
he violated rule 8.4 of the Utah Rules of Professional Conduct. Rule
8.4 defines professional misconduct and prohibits attorneys from
engaging “in conduct that is prejudicial to the administration of
justice.” UTAH R. PROF’L CONDUCT 8.4(d). The district court
concluded that Gilbert violated rule 8.4(d) by failing to comply with
the Injunction, by failing to comply with the district court’s
disgorgement order, and by assisting his clients’ violation of the
Injunction.

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¶37 Gilbert does not challenge the facts underlying the court’s
determination. Rather, Gilbert again contends that his actions did
not violate rule 8.4 because he had a good faith belief that the district
court’s orders were invalid. He points to comment 4 to rule 8.4,
which states, “A lawyer may refuse to comply with an obligation
imposed by law upon a good faith belief that no valid obligation
exists.” Id. R. 8.4 cmt. 4.
¶38 That comment does not, however, provide an attorney carte
blanche to ignore court orders. As explained above, the Utah Rules
of Professional Conduct contemplate the situation in which Gilbert
found himself: subject to an order he believed to be flawed. The rules
instruct an attorney in that situation to either comply or openly refuse
to comply. An open refusal permits the district court to assess the
attorney’s argument and allows opposing counsel to take action to
protect her client from the opposing attorney’s noncompliance. An
attorney cannot, consistent with the rules of professional conduct,
unilaterally and surreptitiously flout a court order. To the contrary,
willful disregard of a district court’s order without an open objection
constitutes conduct prejudicial to the administration of justice.
¶39 Despite the directive of the rules of professional conduct,
Gilbert declined to formally or openly object to the court’s order.
Instead, Gilbert disregarded the disgorgement order without taking
any action to appeal, stay, or otherwise object to the order. The
district court correctly noted, “Regardless of whether an attorney
believes that the attorney is entitled to fees from a client, if court
orders award the funds to others, the attorney violates rule 8.4(d) by
disregarding the orders.” See In re Disciplinary Action Against
Igbanugo, 863 N.W.2d at 763–64 (concluding that an attorney’s
“failure to comply with a court order is conduct prejudicial to the
administration of justice” despite the attorney’s contention that the
judge lacked authority to enter the order).
¶40 The district court did not err in determining that Gilbert’s
conduct was prejudicial to the administration of justice. We affirm
the district court’s conclusion that Gilbert violated rules 1.7, 1.15(e),
3.4(c), and 8.4(d) of the Utah Rules of Professional Conduct.
II. DISBARMENT IS AN APPROPRIATE SANCTION
¶41 Gilbert also contends that disbarment constitutes an
inappropriate sanction for his conduct. In matters of attorney
discipline, we have a responsibility to ensure that the correct
discipline is imposed. We owe no deference to the district court’s

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determination. See In re Discipline of Jardine, 2015 UT 51, ¶ 16, 353
P.3d 154.
¶42 Gilbert attacks the district court’s order on two fronts. First,
Gilbert argues that his conduct does not give rise to the presumption
of disbarment found in rule 14-605 of the Supreme Court Rules of
Professional Practice.
¶43 Rule 14-605 provides that disbarment is presumptively
appropriate when a lawyer
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.
SUP. CT. R. PROF’L PRACTICE 14-605(a).
¶44 Gilbert argues that the district court erred in finding that he
committed knowing violations of rule 8.4(d) and that the OPC failed
to present first-hand evidence of his intent to benefit himself.
Gilbert’s argument fails because a court is entitled to make findings
based on circumstantial evidence. Cf. Salt Lake City v. Carrera, 2015
UT 73, ¶ 11, 358 P.3d 1067 (“‘[I]t is a well-settled rule that
circumstantial evidence alone may be sufficient to establish the guilt
of the accused.’ Circumstantial evidence is particularly useful in
establishing intent because direct evidence of intent is rarely
available. . . . [C]ircumstantial evidence [may be used] to find intent
on the basis of reasonable inferences drawn from the evidence.” (first
alteration in original) (citation omitted)). Here sufficient
circumstantial evidence exists to support the district court’s findings.
¶45 The undisputed evidence demonstrates that Gilbert
knowingly violated rule 8.4(d) of the Utah Rules of Professional
Conduct, as required by rule 14-605(a). Gilbert knowingly ignored,
and continues to knowingly ignore, the court’s disgorgement order.
Gilbert was present and argued before the district court when the
court first ordered him to return the attorney fees. Gilbert does not
dispute that he was sent a copy of the court’s second order requiring
him to disgorge the $30,000 in attorney fees. The district court did
not need Gilbert’s testimony on the question of intent to properly

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conclude that Gilbert made a conscious choice to disobey these court
directives. 5
¶46 Gilbert also contends that insufficient evidence was
adduced at trial to support the district court’s findings that his
conduct caused serious or potentially serious injury. The district
court correctly noted that Gilbert’s actions caused injury to his
clients, the public, the legal profession, and the legal system. It found
that Gilbert’s conduct caused direct pecuniary harm to the
Foundation. To this day, the Foundation has not been able to collect
and use the $30,000 taken from its bank accounts to pay Gilbert.
Further, the court found that Gilbert’s disregard of multiple court
orders caused serious injury to the legal profession, legal system,
and the public by creating a general mistrust of attorneys and the
operation of the legal system. Last, the district court concluded that
Gilbert’s representation in spite of multiple conflicts of interest
“causes at least potential injury to the clients, and actual injury to the
legal system and the profession, by creating distrust of the system
and lawyers.”
¶47 We concur with the district court. The attorney, as
an officer of the court, “has the right to set the judicial machinery in
motion in behalf of another.” In re Integration & Governance of Utah
State Bar, 632 P.2d 845, 847 (Utah 1981). “To function properly in the
administration of justice the courts must retain control of
their officers,” including those attorneys appearing before the court.
Id. When attorneys knowingly ignore a court order, it promotes
distrust of the legal system and attorneys. Simply stated, Gilbert has
not demonstrated that his conduct should not trigger the
presumption of disbarment under rule 14-605(a) of the Supreme
Court Rules of Professional Practice.
¶48 Gilbert next argues that, even if the disbarment presumption
were to attach, his conduct does not merit disbarment. He argues
that we have generally ordered disbarment where attorneys have
misappropriated client funds or acted in an otherwise fraudulent or
dishonest manner. See, e.g., In re Discipline of Babilis, 951 P.2d 207, 217
(Utah 1997) (imposing the sanction of disbarment against an attorney
for his intentional misappropriation of client funds). Gilbert
_____________________________________________________________
5 Sufficient evidence also supports the district court’s conclusion
that Gilbert acted with the intent to benefit himself. Indeed, Gilbert
has offered no other justification for retaining the $30,000.

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distinguishes his conduct from situations where attorneys have been
disbarred for pilfering monies out of client trust accounts. Gilbert’s
argument is, in essence, that because his conduct did not amount to
outright theft, he cannot be disbarred. This is simply incorrect.
Gilbert finds himself in the position he is in not because $30,000
found its way into his personal bank account. Gilbert faces discipline
because he knew that the $30,000 his clients used to pay him came
from bank accounts that the district court had ordered the Individual
Defendants to refrain from accessing. He also faces discipline
because he ignored the district court’s orders requiring him to return
the wrongfully taken funds.
¶49 Although we are unaware of any case in which we have
considered the sanction for an attorney who accepts and retains
funds in violation of a court order, we have ordered disbarment
when an attorney has willfully refused to comply with a court order.
See In re Johnson, 830 P.2d 262, 263–64 (Utah 1992). In Johnson, a
district court suspended an attorney from the practice of law. Id. at
263. We determined that the attorney’s “continued . . . practice [of]
law in flagrant disregard” of the court’s suspension order violated
the Utah Rules of Professional Conduct, and we concluded that “[i]n
the interest of protection of the public and the legal profession, this
court must therefore order [the attorney’s] disbarment.” Id. at 263–
64. We came to this conclusion despite the attorney’s argument that
disbarment was inappropriate because he possessed a good faith
belief that he could show good cause for disregarding the
suspension order. See id. at 263.
¶50 Other courts have ordered disbarment for conduct similar to
Gilbert’s. In Cuyahoga County Bar Ass’n v. Wagner, 884 N.E.2d 1053
(Ohio 2008), the Ohio Supreme Court permanently disbarred an
attorney for his failure to comply with a district court’s order
requiring him to return a client fee. See id. at 1055–56. The attorney
represented a client before a United States Bankruptcy Court. After
the attorney failed to respond to the bankruptcy court’s requests and
failed to appear before the court, the court found the attorney in
contempt “and ordered him to return the client’s fee.” Id. at 1054.
The attorney did not. Id. The Ohio Supreme Court concluded, “[The
attorney’s] conduct in this matter . . . reflects a lack of regard for the
ethical and professional standards required of members of the bar.”
Id. at 1055. The court therefore ordered that the attorney be
permanently disbarred from the practice of law. See id. at 1055–56.

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¶51 Similarly, in Florida Bar v. Bailey, 803 So. 2d 683 (Fla. 2001),
F. Lee Bailey was disbarred for, among other things, his failure to
obey two federal court orders, see id. at 695. Bailey was ordered by
the district court to hold and not disburse assets related to an
ongoing court case. Id. at 693. Another court order required Bailey to
bring all designated assets to a court hearing. Id. Bailey subsequently
“took no action to segregate or safeguard” the funds. Id. The
Supreme Court of Florida concluded that “[e]ven if Bailey felt that he
was entitled to the [funds] in his personal account, this does not
permit him to act in contravention of two federal court orders.” Id.
The court reasoned, “[A]n attorney is not permitted to ignore and
refuse to follow a court order based upon his personal belief in the
invalidity of that order. To countenance that course is to court
pandemonium and a breakdown of the judicial system.” Id. (citation
omitted). In imposing disbarment, the court concluded that Bailey’s
“disregard of [the judge’s] orders demonstrate[d] a disturbing lack
of respect for the justice system and how it operates.” Id. at 694; see
also In re Nalls, 145 So. 3d 1011 (La. 2014) (disbarring an attorney for
his “knowing[] and willful[] attempt[] to practice law in disregard of
this court’s order of suspension” due to it manifesting a “conscious
intent to flout the authority of” the court); In re Disciplinary Action
Against Lundeen, 811 N.W.2d 602, 608 (Minn. 2012) (concluding that a
“failure to comply with court orders is a ‘serious violation’ and that
‘repeated failure to comply with court orders’ is itself a ground
for disbarment”); In re Klagsbrun, 717 N.Y.S.2d 297, 299 (App. Div.
2000) (“The respondent’s repeated disregard of court orders and
rules constitutes misconduct that goes to the heart of the judicial
system and warrants his disbarment.”); In re Rich, 559 A.2d 1251,
1257 (Del. 1989) (ordering the disbarment of an attorney for, among
other things, his disregard of multiple orders of the Delaware
Supreme Court, because the attorney’s actions “indicate[d] a lack of
regard for the profession which he has damaged”).
¶52 Even though we agree with Gilbert that his conduct presents
a different factual scenario from many cases in which we have
ordered disbarment, we do not agree with his contention that a
lesser sanction is therefore appropriate. We also agree with the
district court that the aggravating and mitigating circumstances
support the conclusion that disbarment is the appropriate sanction

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Opinion of the Court

for Gilbert’s conduct. 6 “[T]he distinction between disbarment . . . and
suspension . . . lies, in part, in ‘the attorney’s motive and in the
relative severity of the conduct.’” In re Discipline of Doncouse, 2004 UT
77, ¶ 16, 99 P.3d 837 (citation omitted). We have held that “[t]o
justify a departure from the presumptive level of discipline set forth
in the Standards, the aggravating and mitigating factors must be
significant.” In re Discipline of Ince, 957 P.2d 1233, 1237–38 (Utah
1998).
¶53 The district court found as aggravators: (1) Gilbert’s selfish
motive in disregarding the Injunction, (2) Gilbert’s violations of
multiple rules of professional conduct, (3) Gilbert’s refusal to
acknowledge any wrongdoing or demonstrate remorse for his
conduct, (4) Gilbert’s substantial experience in the practice of law,
and (5) Gilbert’s failure to comply with the district court’s order of
disgorgement or otherwise “rectify the consequences of his
misconduct.” The only mitigating circumstances the district court
found were Gilbert’s absence of a prior disciplinary record and the
testimony of family and friends relating to his good character.
¶54 Like the district court, we conclude that the aggravating and
mitigating circumstances confirm disbarment as the appropriate
sanction. Here, Gilbert concluded that his desire to keep the fees
outweighed the court’s interest in resolving and bringing finality to
the dispute. Indeed, Gilbert’s willingness to continually disregard
the district court’s orders is extremely troubling conduct for an

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6Gilbert’s disbarment is also consistent with the underlying goals
of our rules of professional conduct.
The purpose of imposing lawyer sanctions 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 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.
SUP. CT. R. PROF’L PRACTICE 14-602(b).

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officer of the court. Gilbert’s actions demonstrated a lack of respect
for the district court and the legal system as a whole. 7
¶55 But Gilbert’s lack of remorse and his unwillingness to
recognize his actions’ consequences constitute the most powerful
aggravating circumstances. At no point in the proceedings below, or
in those before this court, has Gilbert acknowledged an attorney’s
obligation to comply with court orders. At no time has he
acknowledged that our system suffers when attorneys refuse to
comply with court orders. Ultimately, it is this lack of respect for the
rule of law and the legal process that warrants Gilbert’s disbarment.
Otherwise, to paraphrase the Florida Supreme Court, “to
countenance [this blatant disregard of the court’s authority] is to
court pandemonium and a breakdown of the judicial system.” Bailey,
803 So. 2d at 693 (citation omitted).
III. THE DISTRICT COURT DID NOT ERR IN DISMISSING
GILBERT’S THIRD-PARTY COMPLAINT
AGAINST THE FOUNDATION
¶56 Gilbert argues that the district court erred by dismissing his
third-party complaint. 8 Gilbert contends rule 21 of the Utah Rules of

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7 In fact, in 2008, the district court emphasized that Gilbert needed
to comply with the court’s orders or face the consequences. The court
stated, “I don’t mean to be offensive but you can’t just make up your
own sets of rules and do what you want to do. If you didn’t get it
solved and worked out, that’s why you’re here. All right?” Gilbert
responded, “Judge, please understand, I would never intentionally
ignore a court order. I’m an officer of the court.” The district court
sagely predicted, “You could possibly get disbarred for it.”
8 This is not the first time this Court has had the opportunity to
examine Gilbert’s third-party complaint. See In re Discipline of Gilbert
v. Utah Down Syndrome Found., Inc., 2012 UT 81, 301 P.3d 979. In that
case, we reversed the district court’s decision to grant Gilbert’s third-
party impleader of the Foundation in this disciplinary action. Id.
¶ 28. We concluded that a third-party complaint is not appropriate
in a disciplinary proceeding and directed the district court to dismiss
Gilbert’s third-party complaint. Id. ¶¶ 25, 28–29. On remand the
district court dismissed Gilbert’s third-party complaint without
prejudice by granting the Foundation’s previously denied Motion to
(continued . . .)

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Opinion of the Court

Civil Procedure required the district court to sever, rather than
dismiss, his third-party complaint. We disagree. 9
¶57 Rule 21 states,
Misjoinder of parties is not ground for dismissal of an
action. Parties may be dropped or added by order of
the court on motion of any party or of its own initiative
at any stage of the action and on such terms as are just.
Any claim against a party may be severed and
proceeded with separately.
UTAH R. CIV. P. 21.
¶58 Gilbert argues that rule 21’s language, “Misjoinder of parties
is not ground for dismissal of an action,” mandates severance and
prohibits dismissal of a third-party complaint. Gilbert ignores,
however, that the dismissal referenced in that sentence is the original
action, not a third-party claim attempted to be joined to the
underlying action. In other words, rule 21 provides that misjoinder
of a party is not a basis to dismiss an entire action. See Acevedo v.
Allsup’s Convenience Stores, Inc., 600 F.3d 516, 522–23 (5th Cir. 2010)
(holding that a district court erred by dismissing an “entire action,
rather than simply dismissing the claims of any misjoined
plaintiffs”); Clay v. Martin, 509 F.2d 109, 113 (2d Cir. 1975)
(concluding that a complaint could not be dismissed based only on
the presence of “improper parties”); Sabolsky v. Budzanoski, 457 F.2d
1245, 1249 (3d Cir. 1972) (“Misjoinder or non-joinder of parties is not
ground for dismissal. The proper remedy in case of misjoinder is to
grant severance or dismissal to the improper party . . . .” (citation
omitted)); 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE §§ 1683–84 (3d ed. 2001).
Rule 21 derives from the federal equity rules and the English rules of

_____________________________________________________________
Dismiss Pursuant to Rule 12(b)(6) or, in the Alternative, Motion for
Summary Judgment.
9 Gilbert also complains that the district court prematurely
granted summary judgment to the Foundation. This argument
misapprehends the record. Although the Foundation styled its
pleading as both a motion to dismiss and a motion for summary
judgment, the court’s order indicates that it granted only the motion
to dismiss.

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practice existing at the adoption of the Federal Rules of Civil
Procedure. See id. § 1681. In contrast to those at common law, these
rules “generally allowed [a] plaintiff to amend the complaint to
correct a defect in parties. As a result, an action could proceed on its
merits despite an initial misjoinder or nonjoinder whenever the error
could be corrected without adversely affecting the parties to the
action.” Id. The district court correctly applied rule 21 and did not err
by dismissing Gilbert’s third-party complaint.
¶59 Gilbert also appears to argue that even if rule 21 does not
mandate severance, the district court abused its discretion in
dismissing, rather than severing, his third-party complaint. Rule 21
provides, “Any claim against a party may be severed and proceeded
with separately.” UTAH R. CIV. P. 21. 10 A party challenging the
district court’s decision to dismiss, rather than sever, must show that
the court abused its discretion. See 7 CHARLES ALAN WRIGHT, ARTHUR
R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE
§ 1688 (3d ed. 2001) (concluding that “[t]he grant or denial of a
motion to bring in or to drop a party lies in the discretion of the
judge” and that “[t]he trial court’s exercise of discretion will not be
disturbed on appeal unless an abuse is shown”); Strandlund v.
Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (“We review the district
court’s order dismissing appellants for misjoinder under an abuse of
discretion standard.”).
¶60 Other courts to have considered this question have
concluded that a trial court abuses its discretion only where the
district court’s dismissal of a third-party complaint prejudices a
party, such as by preventing the refiling of the dismissed party’s
claim. See Strandlund, 532 F.3d at 745; see also DirecTV, Inc. v. Leto, 467
F.3d 842, 845–46 (3d. Cir. 2006); Elmore v. Henderson, 227 F.3d 1009,
1012 (7th Cir. 2000).
¶61 In Strandlund, the court was required to determine whether
the district court “was permitted to drop appellants from the case or
whether it should merely have severed their claims.” 532 F.3d at 745.
The court concluded that rule 21 permits the dismissal of a party or

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10Rule 21 also provides, “Parties may be dropped or added by
order of the court on motion of any party or of its own initiative at
any stage of the action and on such terms as are just.” UTAH R. CIV. P.
21.

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Opinion of the Court

claim rather than a severance of a claim if the dismissal “will not
prejudice any substantial right.” Id. (citation omitted). A substantial
right is prejudiced, the court determined, “if dismissal of misjoined
parties were to result in the loss of otherwise timely claims.” Id. The
court concluded that the district court had deprived the dismissed
parties of a substantial right because the statute of limitations had
run on their claims and the dismissal would prevent them from
proceeding with claims that were originally filed within the statute
of limitations. Id. at 746.
¶62 Gilbert does not claim that the district court’s dismissal of
his third-party complaint without prejudice in any way prevented
him from filing his claim against the Foundation as an independent
action. Indeed, Gilbert does not claim any prejudice flowing from the
district court’s dismissal. Because Gilbert does not argue that he was
prevented from refiling his claim against the Foundation after the
court’s dismissal of his third-party complaint without prejudice, the
OPC is correct to note that “the correct way . . . to pursue those
claims” was to “refile the matter.”
¶63 The district court did not contravene rule 21 of the Utah
Rules of Civil Procedure or otherwise abuse its discretion by
dismissing, without prejudice, Gilbert’s third-party complaint
against the Foundation. Because Gilbert has not claimed that any
prejudice flows from the district court’s dismissal of his third-party
claim, he has failed to demonstrate that the court abused its
discretion. 11
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN
DECLINING TO STAY THE DISCIPLINARY ACTION
¶64 Gilbert also contends that the district court erred by
declining to stay the disciplinary proceedings until he could bring
and resolve his complaint against the Foundation. In attorney
discipline proceedings, “[u]pon a showing of good cause, a formal
action or a disability proceeding may be stayed because of
substantial similarity to the material allegations of a pending
_____________________________________________________________
11Gilbert also claims he was denied due process in the dismissal
of his third-party complaint because he was not provided a notice or
hearing prior to the district court’s grant of the Foundation’s motion
to dismiss. This contention is inadequately briefed. See State v.
Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590.

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criminal, civil, or disciplinary action.” SUP. CT. R. PROF’L
PRACTICE 14–517(d). The district court’s decision to grant or deny a
stay is discretionary, and we will not disturb it unless we determine
the district court abused its discretion. See Lewis v. Moultree, 627 P.2d
94, 96–97 (Utah 1981).
¶65 The district court declined to grant Gilbert’s motion to stay
the disciplinary proceedings because it concluded,
[E]ven if everything is as [Gilbert] alleges, this Court is
not required to issue a stay on the disciplinary matters.
. . . Whether [Gilbert] violated a court order when it
was in effect is a matter for the disciplinary proceeding
and has little to do with [his] appeal against [the
Foundation]. Should [Gilbert] succeed on appeal
against [the Foundation], his appeal would not affect
the issues in the disciplinary case against [him].
¶66 The district court did not abuse its discretion in declining to
stay the disciplinary proceeding. In essence, Gilbert contends that if
he could have proceeded against the Foundation, he would have
established facts that would have undermined the district court’s
conclusions that he violated the Utah Rules of Professional Conduct.
Gilbert contends that he would have established that the Chapters
were independent entities and that the Chapters, not the Foundation,
were the owners of the funds.
¶67 Gilbert is wrong to suggest that either of these findings, if
established, would have undermined the district court’s conclusions
or dictated a different outcome. Even if we were to assume that
Gilbert’s contentions are correct, they would not have changed the
district court’s ultimate conclusions. Gilbert’s violations of the Utah
Rules of Professional Conduct do not turn on whether the Injunction
and the disgorgement order were correctly entered. Rather, the
violations stem from the manner in which Gilbert represented his
clients, from his failure to safeguard disputed funds, and from his
choice to disregard multiple court orders without putting the court
or his opposing counsel on notice. Because the issues Gilbert wanted
to litigate against the Foundation would not have impacted the
district court’s analysis, the district court did not abuse its discretion
in refusing to stay the disciplinary proceedings.
CONCLUSION
¶68 Gilbert represented clients when he had a direct personal
interest that conflicted with his representation of those clients, he

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Opinion of the Court

disregarded the Injunction, and he facilitated his client’s violation of
the Injunction by accepting funds subject to that order. And Gilbert,
to this day, has disregarded the district court’s order requiring that
he disgorge the attorney fees he received from his clients. Regardless
of the validity of the Injunction and disgorgement order, the Utah
Rules of Professional Conduct require that Gilbert not knowingly
disregard those orders without making his intentions known to the
district court and opposing counsel. While we recognize that
disbarment is a severe punishment, it is appropriate here. We affirm
the district court’s order and conclude that disbarment is the proper
sanction for Gilbert’s misconduct.

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