Summary
The Utah Supreme Court reviewed attorney-discipline sanctions imposed on Franklin Brussow for violating Utah Rules of Professional Conduct 1.15(d) and 1.16(d). The court affirmed the finding that Brussow failed to provide an accounting of advance fees but reduced the sanction for that violation from a public reprimand to an admonition because it caused no demonstrated injury. The court affirmed a public reprimand for withholding the client's file because the conduct injured the client by causing additional time and expense.
Topics
Practice areas
Questions Presented
- Whether Brussow violated Utah Rule of Professional Conduct 1.15(d) by failing to provide an accounting of advance fees and other funds the client might be entitled to receive.
- Whether an admonition or public reprimand was the appropriate sanction for the Rule 1.15(d) violation.
- Whether Brussow violated Utah Rule of Professional Conduct 1.16(d) by refusing to provide the client's file upon request.
- Whether an attorney may retain a client's file as a lien or otherwise withhold it because of unpaid fees or expenses.
- Whether a public reprimand was the appropriate sanction for the Rule 1.16(d) violation.
- Whether mitigating or aggravating circumstances not presented to the Screening Panel could be considered for the first time on appeal.
Holdings
- Utah Rule of Professional Conduct 1.15(d) requires an attorney to provide an accounting of funds or property the client is entitled to receive, including unearned advance fees. Because Brussow received an advance retainer and other payments without accounting for whether they had been earned, and failed to provide an accounting upon request, he violated Rule 1.15(d).
- An admonition, rather than a public reprimand, was the appropriate sanction for Brussow's Rule 1.15(d) violation because the failure to provide an accounting caused little or no injury and did not interfere with a legal proceeding.
- Utah Rule of Professional Conduct 1.16(d) requires an attorney to provide the client's file upon the client's request after termination of representation. Brussow violated the rule by withholding Langley's file.
- Rule 1.16(d) does not permit an attorney to retain a client's file as a lien or security for unpaid fees or expenses.
- A public reprimand was the appropriate sanction for the Rule 1.16(d) violation because withholding the file injured Langley by causing her to incur time and expense to obtain or recreate the file.
- The court would not consider evidence or arguments concerning mitigating or aggravating circumstances that were not presented to the Screening Panel.
Key quotations
“In sum, rule 1.16(d) requires the attorney to surrender the documents that a client is entitled to receive, as opposed to other documents, which the attorney may have generated on behalf of the client but which the client is not entitled to receive.” (1253)
“Thus, while other jurisdictions may permit an attorney to assert a lien on a client's file, rule 1.16(d) and its official comments make it clear that there is no exception to an attorney's duty to provide a client's file that would allow an attorney to hold a retaining lien on the file for unpaid fees or expenses.” (1254)
Factual background
Brussow represented Anita Langley in a domestic-relations proceeding under a fee agreement involving an advance retainer and subsequent payments. He provided only one billing statement and did not provide an accounting after Langley requested one. After Langley terminated the representation, Brussow refused to provide her client file until fees for deposition transcripts were paid, causing Langley and her new attorney to spend time and money obtaining or recreating file materials.
Procedural history
A Screening Panel concluded that Brussow violated the professional-conduct rules and recommended a public reprimand. The Committee Chair denied Brussow's exception and sustained the recommendation. The Utah Supreme Court affirmed the findings of violations but modified the sanction for the rule 1.15(d) violation from a public reprimand to an admonition.