This opinion is subject to revision before
publication in the Pacific Reporter
2017 UT 10
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of JOSEPH P. BARRETT
OFFICE OF PROFESSIONAL CONDUCT,
Appellant and Cross-Appellee,
v.
JOSEPH P. BARRETT,
Appellee and Cross-Appellant.
No. 20150190
Filed February 22, 2017
On Direct Appeal
Third District, Salt Lake
The Honorable Robert P. Faust
No. 130907818
Attorneys:
Todd Wahlquist, Salt Lake City, for appellant
Robert K. Hilder, Park City, for appellee
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE PEARCE joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶ 1 Attorney Joseph Barrett exchanged legal services for
construction work on his home and yard, thereby depriving his law
firm, Snow, Christensen & Martineau P.C. (SCM), of the legal fees
accrued from those cases. The district court suspended Mr. Barrett from
the practice of law after it concluded that Mr. Barrett’s conduct violated
Discipline of JOSEPH BARRETT
Opinion of the Court
rule 8.4(c) of the Utah Rules of Professional Conduct. The Office of
Professional Conduct (OPC) appealed, urging us to hold that the
intentional or knowing misappropriation of firm funds, like the
intentional or knowing misappropriation of client funds, creates a
presumption of disbarment. Mr. Barrett cross-appealed, arguing that
the district court’s factual findings were clearly erroneous and a result
of bias and that suspension was too harsh a sanction. We affirm the
district court in part, reverse in part, and uphold the sanction of
suspension.
BACKGROUND
¶ 2 The misconduct allegations in this case stem from three
independent situations: two involving legal services Mr. Barrett
provided to clients in exchange for construction work on his home and
yard, and one involving Mr. Barrett’s reimbursement request for a
phone call with a potential client.
¶ 3 With respect to the first situation, Mr. Barrett began providing
legal services to Richard Williams in June 2007 when Mr. Williams
retained SCM and Mr. Barrett to represent his son in a criminal matter.
Over the next three years, Mr. Barrett worked on that case, a collection
matter for Mr. Williams’s company, and new criminal matters for Mr.
Williams’s son. In June 2010, Mr. Barrett requested that the firm write
off over $7,000 from Mr. Williams’s account. Around that time, Mr.
Williams’s brother-in-law began building a wrought-iron railing for
Mr. Barrett’s home, but he was unable to finish it. In July 2010,
Mr. Williams wrote a check to Mr. Barrett for $3,500, which Mr. Barrett
deposited into his personal account. According to Mr. Barrett,
Mr. Williams proposed that his brother-in-law work on the railing as a
“kind gesture” and Mr. Williams insisted on paying Mr. Barrett $3,500
so he could hire someone else to finish the job. Mr. Barrett claims that
he wrote off Mr. Williams’s bills as a professional courtesy so Mr.
Williams would continue to refer clients to Mr. Barrett and because he
believed it was the compassionate thing to do. But by 2012, of the
$8,612.07 that SCM billed to Mr. Williams’s account, Mr. Barrett had
written off $7,912.07. And Mr. Williams had paid SCM only $700 while
paying Mr. Barrett personally $3,500.
¶ 4 Moreover, Mr. Williams’s testimony was contrary to
Mr. Barrett’s. Mr. Williams testified that he had an unwritten
agreement with Mr. Barrett to exchange work on the railing for
Mr. Barrett’s legal services. Mr. Williams further testified that he
2
Cite as: 2017 UT 10
Opinion of the Court
understood the $3,500 he provided to Mr. Barrett to be for the balance
of what he owed Mr. Barrett for his legal work.
¶ 5 The second situation involves legal services Mr. Barrett
provided to David Petersen. Mr. Barrett began legal work for
Mr. Petersen in November 2010, when Mr. Petersen hired Mr. Barrett’s
firm to represent him in a custody case. Several months later,
Mr. Petersen started building a shed at Mr. Barrett’s home. Shortly
afterward, Mr. Barrett requested that the firm write off about half of
Mr. Petersen’s bill. Over the next couple of months, Mr. Barrett
requested that SCM write off the rest of Mr. Petersen’s bill, and the firm
refunded his $2,500 retainer. Mr. Barrett paid Mr. Petersen
approximately $5,000 for the shed, which had cost Mr. Petersen
$15,170.63 to build. In all, Mr. Barrett wrote off $8,913.54 from
Mr. Petersen’s account at SCM. Mr. Barrett stated that he wrote off
Mr. Petersen’s bills and refunded his retainer because he believed
Mr. Petersen would be unable to pay and needed the money to visit his
son. Mr. Petersen, however, testified that he had an agreement with
Mr. Barrett to build the shed in exchange for legal services.
¶ 6 The third and final situation arose in January 2012 when
Mr. Barrett requested reimbursement for a business development lunch
in California that he did not attend. Mr. Barrett’s wife attended the
lunch, and Mr. Barrett stated that he discussed business matters with a
potential client over a phone call that took place during the lunch.
¶ 7 In February 2012, SCM’s president confronted Mr. Barrett
about some of his reimbursement requests and subsequently reported
him to the OPC. After an investigation, the OPC filed a complaint in
district court in which it requested that Mr. Barrett be sanctioned based
on his dealings with Mr. Petersen and Mr. Williams and the
reimbursement request for the California lunch, which the OPC argued
involved “dishonesty and deceit.” The district court found that
Mr. Barrett accepted payment and construction services in exchange for
his legal work, thereby misappropriating firm funds. Regarding the
reimbursement request for the lunch in California, the court concluded
that Mr. Barrett violated Utah Rule of Professional Conduct 8.4(c) by
withholding “information that would allow [SCM] to properly evaluate
whether the expense was legitimate.”
¶ 8 All told, the district court found that Mr. Barrett committed
three different acts of attorney misconduct, each of which violated rule
8.4(c). The court then turned to the issue of the appropriate sanction,
which requires the district court to consider the professional duty that
3
Discipline of JOSEPH BARRETT
Opinion of the Court
the attorney has violated, the attorney’s mental state, the potential or
actual injury caused by the lawyer’s misconduct, and any applicable
aggravating or mitigating factors. SUP. CT. R. PROF’L PRACTICE 14-604.
The court found that Mr. Barrett acted knowingly and intentionally,
and it listed as aggravating circumstances a “[d]ishonest or selfish
motive,” the fact that there were multiple offenses, and “[r]efusal to
acknowledge the wrongful nature of the misconduct.” The court also
found four mitigating circumstances: (1) that Mr. Barrett did not have a
prior record; (2) that he had made restitution to his firm and sought “to
rectify the consequences of [his] misconduct”; (3) that he had
cooperated with the OPC; and (4) that he had a “partial understanding
of actions he should have taken with his firm to avoid the problems.”
¶ 9 The district court concluded that Mr. Barrett’s actions
constituted “conduct involving dishonesty, fraud, deceit, or
misrepresentation,” but, given that Mr. Barrett did not misappropriate
client funds, concluded that “disbarment . . . [was] not mandated in this
case.” After considering the duty that Mr. Barrett violated and
Mr. Barrett’s mental state, and weighing the aggravating and
mitigating circumstances, the court imposed a 150-day suspension,
which both parties appeal.
¶ 10 We have jurisdiction over attorney discipline matters under
Utah Code section 78A-3-102(3)(c).
STANDARD OF REVIEW
¶ 11 Because of our constitutional authority in attorney discipline
cases, “we employ a unique standard of review.” In re Discipline of
Corey, 2012 UT 21, ¶ 23 n.13, 274 P.3d 972. We presume the district
court’s findings of facts to be correct “unless they are arbitrary,
capricious, or plainly in error,” but we give less deference to the
findings than we otherwise would and “reserve the right to draw
inferences from basic facts which may differ from the inferences
drawn” by the district court. In re Discipline of Babilis, 951 P.2d 207, 213
(Utah 1997) (citation omitted). In reviewing the sanction imposed, “our
constitutional responsibility requires us to make an independent
determination as to its correctness.” In re Discipline of Ince, 957 P.2d
1233, 1236 (Utah 1998).
ANALYSIS
¶ 12 Mr. Barrett argues that we should hold that the district
court’s findings of fact were clearly erroneous and the result of bias,
prejudice, or misconduct on the part of the district judge. Mr. Barrett
4
Cite as: 2017 UT 10
Opinion of the Court
urges us to draw different inferences from the facts than the district
court did and find that he did not engage in misconduct and that
suspension is not warranted. The OPC urges us to uphold the district
court’s findings of fact but find that disbarment is the appropriate
sanction.
¶ 13 First, we reject Mr. Barrett’s attack on the district court’s
findings of fact, in the process finding no support for Mr. Barrett’s
allegations of bias. Second, we decline to extend our well-settled rule
that intentional or knowing misappropriation of client funds is a
presumptively disbarrable offense to the circumstances of this case.
Third, we agree with the district court that a 150-day suspension is the
appropriate sanction for Mr. Barrett’s misconduct.
I. THE DISTRICT COURT’S FINDINGS WERE
NEITHER ERRONEOUS NOR THE
PRODUCT OF BIAS OR MISCONDUCT
¶ 14 Faced with a slew of unfavorable factual findings by the
district court, Mr. Barrett urges us to draw contrary inferences from the
facts and hold that the district court’s findings were clearly erroneous.
Mr. Barrett argues that the district court erred in three ways: (1) making
erroneous credibility determinations, (2) originally marking two
disputed facts as “stipulated,” and (3) doing independent factual
research to determine whether SCM is a partnership or a corporation.
¶ 15 Mr. Barrett spends a large portion of his brief arguing that
the district court’s findings were erroneous and the result of bias,
prejudice, or misconduct on the part of the judge. But our review of the
record confirms the district court’s findings that Mr. Barrett entered
into deals with Mr. Petersen and Mr. Williams to exchange construction
work for legal services. We find no error in the district court’s crediting
the testimony of two witnesses who were on good terms with
Mr. Barrett, had benefited greatly from their deals with him, and were
apparently reluctant to land him in hot water. We also find no error in
the district court’s discounting Mr. Barrett’s self-serving account of his
own conduct, or in its drawing the inference that Mr. Barrett’s
explanation of both the construction services that Mr. Petersen and
Mr. Williams performed for him and the $3,500 check that Mr. Williams
gave him lacked credibility. And we agree with the district court as to
the purpose of the $3,500 check from Mr. Williams—namely, that it was
payment for legal fees, and not, as Mr. Barrett asserted, payment to
finish the wrought-iron fence. Therefore, we will not disturb the district
court’s findings of fact.
5
Discipline of JOSEPH BARRETT
Opinion of the Court
¶ 16 Mr. Barrett also argues that the district court erred in its
disciplinary order when it originally, albeit mistakenly, characterized
two facts as being stipulated before moving them to the “additional
findings of fact” section. We see no significance in this misstep. There
was ample evidence in the form of testimony from Mr. Williams and
Mr. Petersen to support these two facts—that SCM “was unaware that
Mr. Williams paid $3,500 directly to Mr. Barrett for legal services” and
that “[i]nitially, it was anticipated that a shed would be built for
approximately $5,000”—and no indication that the district court failed
to give careful consideration to the evidence bearing on these factual
findings. Additionally, Mr. Barrett has shown no error resulting from
the facts originally being listed as stipulated. The evidence does not
support that the inclusion of the facts in the “stipulated facts” section
was the product of bias. Indeed, the district court, after meeting with
the parties for over an hour regarding the proposed findings of fact,
offered to read the findings into the record formally, and Mr. Barrett’s
counsel declined.
¶ 17 Mr. Barrett’s final argument about the district court’s
findings involves the court’s extra-record research related to what duty
Mr. Barrett owed to his colleagues at SCM. At the sanctions hearing, the
district court judge stated that he “looked up to see if Snow Christensen
was a partnership or a corporation because we all know there’s
fiduciary duties between partners.” Despite his finding that SCM is a
corporation, the judge stated that he believes “that outstanding
principle still is there, . . . that we owe to the people with whom we
have business dealings . . . not [to] violate the trust and confidence
that’s reposed in those relationships.” This finding, while possibly an
improper use of judicial notice, did not affect the judge’s determination
of which sanction was appropriate. There is no indication that the judge
relied on it in any meaningful way; indeed, he did not even mention it
in his findings of fact or conclusions of law, or in his analysis of
aggravating and mitigating factors. 1
1 While the court’s independent research in this case was, in our
view, harmless, and while—depending on the source the court
consulted—the fact that it found may have been properly noticeable,
we caution courts to avoid independent factual research. UTAH CODE OF
JUDICIAL CONDUCT Canon 2, r. 2.9(C) (“A judge shall not investigate
facts in a matter independently, and shall consider only the evidence
presented and any facts that may properly be judicially noticed.”).
(cont.)
6
Cite as: 2017 UT 10
Opinion of the Court
¶ 18 We find no bias or prejudice in the district court’s findings of
fact, and our independent review leads us to the conclusion that the
court’s factual findings were correct.
II. SUSPENSION IS THE APPROPRIATE SANCTION
¶ 19 The district court found that Mr. Barrett violated rule 8.4(c) of
the Utah Rules of Professional Conduct, which states that “[i]t is
professional misconduct for a lawyer to . . . engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.” The court
determined that suspension was the appropriate sanction for
Mr. Barrett based on the nature of the injury he inflicted, the
aggravating and mitigating factors, and the fact that Mr. Barrett did not
misappropriate client funds. We agree with the district court that
suspension is the appropriate sanction in this case.
¶ 20 When determining the appropriate sanction, we take a two-
fold approach using Rules of Professional Practice 14-604 and 14-605.
Under rule 14-604, we assess “(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.”
In connection with this analysis, we look to rule 14-605, which outlines
the “generally appropriate” sanctions “[a]bsent aggravating or
mitigating circumstances.”
¶ 21 Rule 14-605(a) provides that disbarment is generally
appropriate when a lawyer
(a)(1) 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
Judges may take judicial notice only of facts that are “not subject to
reasonable dispute” because they are “generally known within the trial
court’s territorial jurisdiction” or “can be accurately and readily
determined from sources whose accuracy cannot reasonably be
questioned.” UTAH R. EVID. 201(b).
7
Discipline of JOSEPH BARRETT
Opinion of the Court
(a)(2) 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
theft; or the sale, distribution, or importation of
controlled substances; or the intentional killing of
another; or an attempt or conspiracy or solicitation of
another to commit any of these offenses; or
(a)(3) engages in any other intentional misconduct
involving dishonesty, fraud, deceit, or misrepresentation
that seriously adversely reflects on the lawyer’s fitness to
practice law.
¶ 22 Suspension, on the other hand, is generally appropriate when
a lawyer
(b)(1) knowingly engages in professional misconduct as
defined in Rule 8.4(a), (d), (e), or (f) of the Rules of
Professional Conduct and causes injury or potential
injury to a party, the public, or the legal system, or
causes interference or potential interference with a legal
proceeding; or
(b)(2) engages in criminal conduct that does not contain
the elements listed in Rule 14-605(a)(2) but nevertheless
seriously adversely reflects on the lawyer’s fitness to
practice law.
SUP. CT. R. PROF’L PRACTICE 14-605.
¶ 23 We turn first to the conduct for which disbarment is
generally appropriate. Relevant to this analysis, we note that the district
court found that Mr. Barrett violated his duty under rule 8.4(c) of the
Utah Rules of Professional Conduct by engaging in conduct “involving
dishonesty, fraud, deceit or misrepresentation.” We also note that the
district court found that Mr. Barrett acted knowingly and intentionally
and that he caused actual injury to SCM by depriving the firm of the
legal fees that Mr. Williams and Mr. Petersen owed. With our review of
the record in this matter in mind, we see no reason to deviate from the
district court’s findings.
¶ 24 Therefore, and in light of these findings, rules 14-605(a)(1)
and (a)(2) do not apply. Rule 14-605(a)(1) addresses violations of rule
8.4(a), (d), (e), or (f) of the Rules of Professional Conduct, but the
8
Cite as: 2017 UT 10
Opinion of the Court
district court found that Mr. Barrett violated only rule 8.4(c). And rule
14-605(a)(2) requires a determination that the lawyer’s actions were
“serious[ly] criminal,” but the district court did not make that finding
in this case, and, in any event, the OPC does not seriously contend that
rule 14-605(a)(2) applies to Mr. Barrett’s actions.
¶ 25 It is a closer question whether Mr. Barrett violated rule
14-605(a)(3), which punishes “intentional misconduct involving
dishonesty, fraud, deceit, or misrepresentation that seriously adversely
reflects on the lawyer’s fitness to practice law.” We have frequently
stated that intentional or knowing misappropriation of client funds
creates a presumption of disbarment under this section, noting that “it
strikes at the very foundation of the trust and honesty that are
indispensable to the functioning of the attorney-client relationship and,
indeed, to the functioning of the legal profession itself.” In re Discipline
of Babilis, 951 P.2d 207, 217 (Utah 1997); see also In re Discipline of Corey,
2012 UT 21, ¶ 21 & n.9, 274 P.3d 972. In its brief to this court, the OPC
asked us to extend this presumption to all acts of intentional or
knowing misappropriation of firm funds. At oral argument, the OPC
pressed the stronger position that we have already recognized that
misappropriation of firm funds is a presumptively disbarrable offense,
citing our opinion in In re Discipline of Ince, 957 P.2d 1233 (Utah 1998).
¶ 26 In Ince, we imposed disbarment after finding that the
attorney misappropriated money from both his firm and his clients,
thereby engaging in criminal conduct and actions that “seriously
adversely reflect on [the lawyer’s] fitness to practice law.” Id. at 1237.
We noted that whether “the majority of the money [the attorney] stole
came from his law firm rather than from a client neither changes the
essential nature of his conduct nor makes it any less serious,” and we
therefore adopted the position that intentional misappropriation of firm
funds merits disbarment. Id. But that language was merely dicta, which
we now reject, noting that Ince’s holding relied on facts that are not
applicable to Mr. Barrett’s case.
¶ 27 First, although we stated in Ince that stealing money from a
firm rather than from clients was not “any less serious,” we did so in
the context of the rule regarding criminal conduct, as the lawyer had
committed several acts of forgery, which “could have been prosecuted
9
Discipline of JOSEPH BARRETT
Opinion of the Court
as felonies or misdemeanors.” 2 Id. And although Ince also dealt with
actions that “seriously adversely reflect on the lawyer’s fitness to
practice law,” those involved writing checks against client accounts, so
disbarment was warranted on that basis. Id. Our holding in Ince was
therefore in keeping with our longstanding policy of treating
intentional or knowing misappropriation of client funds as a
presumptively disbarrable offense. See Babilis, 951 P.2d at 217.
¶ 28 Second, we clarify today that not all misappropriation is
created equal. Misappropriation of firm funds does not “undermine the
foundations of the profession and the public confidence” in the same
way that misusing client funds does. Id. A presumption of disbarment
for intentional or knowing misappropriation of client funds is
necessary to protect the “foundations of the profession and the public
confidence that is essential to the functioning of our legal system,” and
we have placed it among the top of our sanctionable offenses as a way
of putting attorneys on notice that such actions are “always
indefensible.” Id. But the same policy concerns do not arise where no
client money is at issue, and we want to leave no doubt in stating that
intentional or knowing misappropriation of client funds is intolerable.
Thus, we will not extend Ince to mean that where an attorney has
misappropriated firm funds but not client funds, the presumption of
disbarment must apply. In this case, Mr. Barrett did not misappropriate
client funds. We therefore decline to extend Ince’s ruling to hold that
disbarment is the appropriate sanction whenever an attorney
misappropriates firm funds, and we find that Mr. Barrett’s knowing
and intentional misappropriation of firm funds does not fall within rule
14-605(a)(3).
2 We also stated that Mr. Ince’s “taking for his own use and benefit
payments from clients that were supposed to be transmitted to [his
firm]” was an example of criminal conduct because it constituted theft.
In re Discipline of Ince, 957 P.2d 1233, 1237 (Utah 1998). Although
Mr. Barrett’s conduct is similar to Mr. Ince’s in that respect, we note
that in this case, the OPC did not argue that Mr. Barrett’s conduct was
criminal. The OPC briefly mentioned rule 14-605(a)(2) as a basis for
Mr. Barrett’s sanction but—noting that there is no “criminal conviction
for misappropriation under paragraph (a)(2),”—it focused its
prosecution entirely on sections (a)(1) and (a)(3). We therefore will not
consider Mr. Barrett’s misappropriation as criminal conduct for
purposes of our rule 14-605 analysis.
10
Cite as: 2017 UT 10
Opinion of the Court
¶ 29 Mr. Barrett’s conduct also does not fit into rule 14-605(b)—
the rule governing the circumstances under which suspension is
“generally appropriate.” As noted above, his conduct was not a
violation of Rules of Professional Conduct 8.4(a), (d), (e), or (f) as
required by rule 14-605(b)(1), and there was no determination that his
conduct was criminal as required by rule 14-605(b)(2).
¶ 30 Because rule 14-605 does not provide a “generally
appropriate” sanction for Mr. Barrett’s conduct, we focus on the factors
laid out in rule 14-604 to determine which sanction is appropriate. As
we have explained, rule 14-604 requires us to determine the
appropriate sanction with reference to “(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.” In this case, the duty violated by misappropriating firm funds
is key. As noted above, this violation is less serious than
misappropriating client funds and, while still a serious violation, merits
a lesser spot on the sanctions pyramid.
¶ 31 But Mr. Barrett’s intentional and knowing mental state
prevents the sanction from dropping further in severity. See Long v.
Ethics & Discipline Comm. of the Utah Supreme Court, 2011 UT 32, ¶ 67,
256 P.3d 206 (stating that reprimand is generally appropriate when
lawyer acted negligently); In re Complaint Against Cassity, 875 P.2d 548,
551 (Utah 1994) (imposing reprimand where lawyer failed to remit
client fees but did so in the context of a fee dispute, not intentional
misappropriation). Mr. Barrett has also not raised compelling
mitigating factors that would merit decreasing the severity of the
sanction.
¶ 32 Although Mr. Barrett’s misappropriation of firm funds is not
deserving of the “professional death-sentence” of disbarment, Corey,
2012 UT 21, ¶ 40, we hold that suspension is appropriate. Intentional or
knowing misappropriation of firm funds is a serious offense, and we
conclude that Mr. Barrett’s intentional and knowing mental state,
combined with the actual injury caused to his firm from losing the
client funds that were due to it, along with the lack of compelling
mitigating factors, merits a serious sanction. We therefore agree with
the district court that the aggravating and mitigating factors do not
justify deviating from suspension, and we uphold the court’s order of a
150-day suspension.
¶ 33 However, we part ways with the district court in two
respects. First, we do not find that Mr. Barrett’s repayment of
11
Discipline of JOSEPH BARRETT
Opinion of the Court
misappropriated funds constituted the mitigating circumstance that
there has been a “timely good faith effort to make restitution.” See SUP.
CT. R. PROF’L PRACTICE 14-607(b)(4). We have stated that restitution is
not a mitigating factor “where there is no evidence to show that
remorse was [the attorney’s] motivation for restoring the funds.” In re
Discipline of Lundgren, 2015 UT 58, ¶ 22, 355 P.3d 984; SUP. CT. R. PROF’L
PRACTICE 14-607(c)(1). “After an attorney’s misconduct is discovered,
restitution can be characterized simply as the ‘honesty of compulsion’
and may be evidence only of the lawyer’s ability to raise the money or
desire to avoid being disbarred rather than of a sincere desire to rectify
the wrongdoing.” Ince, 957 P.2d at 1238. Mr. Barrett repaid SCM only
after the firm accused him of misconduct, not as a result of self-
reporting. Therefore, we will not consider his restitution as a mitigating
factor.
¶ 34 Second, though we find suspension appropriate for the
Williams and Petersen matters, we reverse the district court’s holding
that Mr. Barrett violated rule 8.4(c) with regard to the California client
lunch. The district court found that Mr. Barrett’s reimbursement
request was deceptive because it went against the firm’s “informal
understanding” that an attorney should personally attend client
development lunches. But there is no evidence that SCM’s policies
prohibited Mr. Barrett from requesting reimbursement for a meal that
he did not attend when he had spoken to the potential client on the
phone. And in the absence of evidence that Mr. Barrett intentionally
deceived the firm as to his presence at the lunch, we do not believe his
conduct rises to the level that a sanction is necessary. We therefore find
that Mr. Barrett did not violate rule 8.4(c) as to the third allegation.
CONCLUSION
¶ 35 We reverse the district court’s finding that Mr. Barrett’s
requesting reimbursement for a client lunch that he did not personally
attend constituted misconduct, but we affirm the district court’s
determination that Mr. Barrett misappropriated firm funds by
accepting construction work from firm clients and then causing the
firm to write down their bills, and we uphold the district court’s order
of suspension.
12