Recent Public Discipline Cases
The rules for discipline of Idaho lawyers are established by the Idaho Supreme Court, through Section V of the Idaho Bar Commission Rules. IBCR 521 provides for two types of disciplinary sanctions: private discipline (for less-serious violations) and public discipline (for more serious violations). Only public discipline sanctions are announced publicly.
Questions about any public discipline case may be directed to the Bar Counsel's Office at (208) 334-4500.
B. TODD BAILEY
(Interim Suspension)
On May 3 2013, the Idaho Supreme Court issued an Order Granting Stipulation for Interim Suspension of License to Practice Law of Meridian attorney B. Todd Bailey.
The parties filed a Stipulation for Interim Suspension of License to Practice Law on April 10, 2013. The Idaho Supreme Court’s Order immediately suspended Mr. Bailey’s license to practice law, pursuant I.B.C.R. 510(a)(1), until all disciplinary matters referred to in the Stipulation are concluded. All such disciplinary matters will be held in abeyance until pending civil cases related to the disciplinary case are concluded at the respective trial court level. The Order also provides that the time Mr. Bailey spends on interim suspension shall be credited toward any eventual disciplinary sanction he may receive.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
PHILIP K. KLEINSMITH
(Public Reprimand)
On April 11, 2013, a Hearing Committee of the Professional Conduct Board issued a public reprimand to Philip K. Kleinsmith of Colorado Springs, Colorado. The Hearing Committee’s Order followed a stipulated resolution of an Idaho State Bar reciprocal disciplinary proceeding which resulted in the identical sanction that was imposed in Arizona and Utah.
Mr. Kleinsmith is a member of the bar in 26 states. In 2012, the Supreme Court of Arizona and a Utah court publicly reprimanded Mr. Kleinsmith. Mr. Kleinsmith admitted violating Rules 1.1, 1.3, 1.4, 1.5, 1.16, 5.3 and 8.4(d) of the Arizona and Utah Rules of Professional Conduct. Those rules are the equivalent of the same Idaho Rules of Professional Conduct.
In two separate cases in Arizona, Mr. Kleinsmith filed complaints that were ultimately dismissed for lack of service. In nine separate cases in Arizona, Mr. Kleinsmith certified the cases for arbitration despite the amount in question exceeded the threshold for the amount allowed for arbitration. In representing the same client, he failed to appear for two hearings in Wisconsin and billed the client for filing corrective motions to remedy his failures to appear. In a Florida matter, he made errors in preparing a real estate “Notice of Sale”. In withdrawing from a matter in which he represented the client, he failed to reasonably communicate with the client prior to filing his motion to withdraw.
The public reprimand does not limit Mr. Kleinsmith’s ability to practice law.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
DRAKE D. MESENBRINK
(Suspension)
On April 11, 2013, the Idaho Supreme Court issued a Disciplinary Order relating to the suspension of Drake D. Mesenbrink. The Idaho Supreme Court’s Order followed a stipulated resolution of an Idaho State Bar reciprocal disciplinary proceeding which resulted in the identical sanction that was imposed in Washington, a three-year suspension from January 18, 2013 through January 18, 2016, and specified conditions of reinstatement.
Mr. Mesenbrink was previously admitted to practice law in Washington in 1987. Mr. Mesenbrink was admitted to practice law in Idaho in 1988. Mr. Mesenbrink and the Washington State Bar Association stipulated to the Washington suspension. Mr. Mesenbrink admitted violations of Washington Rules of Professional Conduct 8.1(a), 8.4(c), 8.4(d), 8.4(l) and ELC 5.3(e). In the Washington case, Mr. Mesenbrink knowingly made false statements of material fact to the Washington State Bar Association by submitting a fabricated letter and falsified client ledger to the Association in connection with a disciplinary matter. The Washington State Bar Association recognized the following mitigating factors: that following the incidents above, Mr. Mesenbrink was diagnosed as suffering from major depression, has been taking medication, and his physician reports that with individual therapy and medication it would be unlikely that this kind of event would occur as it was out of character for Mr. Mesenbrink and that he had demonstrated clear remorse and understanding of the nature and character of his actions.
The Idaho Supreme Court’s Disciplinary Order also provided that before being reinstated to the active practice of law in Idaho, Mr. Mesenbrink must demonstrate that he has the mental capacity to practice law at the time of any reinstatement.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
BOBBY E. PANGBURN
(Disbarment)
On March 21, 2013, the Idaho Supreme Court issued its Remittitur ordering that the Court’s Opinion announced February 27, 2013 was final and awarding the Idaho State Bar $1,302.90 of costs. The Court’s Opinion ordered that Eagle attorney Bobby E. Pangburn be disbarred, effective February 1, 2010.
The Idaho Supreme Court Opinion concluded the disciplinary case filed on May 20, 2010. Mr. Pangburn was suspended from the practice of law in Idaho on January 31, 2008, as a result of a reciprocal disciplinary proceeding stemming from misconduct that occurred in Oregon. That reciprocal disciplinary proceeding resulted in a five-year suspension with three years withheld. However, before Mr. Pangburn requested reinstatement from that suspension, the Idaho State Bar filed a second complaint alleging professional misconduct in connection with Mr. Pangburn’s representation of two Idaho clients, Robert Hall and Robert Illingworth. The Opinion addressed the relevant facts regarding Mr. Pangburn’s representation of those clients.
Mr. Pangburn represented Mr. Hall during Mr. Hall’s prosecution for drug trafficking. Following his plea and sentence to 39 years in prison, Mr. Hall filed a pro se petition for post-conviction relief. In that petition, he advanced several claims for relief, one of which was ineffective assistance of trial counsel. Even though Mr. Hall’s petition asserted that Mr. Pangburn had previously provided ineffective assistance, the district court appointed Mr. Pangburn to represent Mr. Hall in the post-conviction proceedings. Mr. Pangburn did not notify the court of the conflict. Mr. Pangburn then filed an amended petition for post-conviction relief, removing the ineffective assistance of trial counsel claim. The district court eventually dismissed the remaining claims.
A different attorney represented Mr. Hall in his appeal from the denial of the post-conviction relief, and she requested a remand so that Mr. Hall could advance his ineffective assistance of trial counsel claim. The request was granted. On remand, the State and Mr. Hall’s new attorney stipulated that Mr. Hall was entitled to limited post-conviction relief consisting of a hearing on Mr. Hall’s Rule 35 motion to reduce his sentence. In the intervening four years that passed from the time Mr. Hall’s first post-conviction relief petition was filed, the original sentencing judge retired. After a hearing, the new judge granted Rule 35 relief and reduced Mr. Hall’s sentence from 39 years to 18 years. Based upon those circumstances, Mr. Pangburn admitted that he violated I.R.P.C. 1.3 [Failing to act with reasonable diligence], 1.7(a) [Conflict of interest] and 8.4(d) [Engaging in conduct prejudicial to the administration of justice].
With regard to the second case, Mr. Illingworth’s mother paid Mr. Pangburn $12,000 to represent her son in a post-conviction relief matter. The first $2,000 was a flat fee that covered Mr. Pangburn’s trip to Orofino to discuss the case with Mr. Illingworth. The remaining $10,000 was paid as a retainer for Mr. Pangburn’s representation in the post-conviction case. Shortly after payment of the retainer, Mr. Illingworth terminated Mr. Pangburn. Mr. Illingworth’s mother demanded that Mr. Pangburn return the full $12,000. Since Mr. Pangburn had performed some work on the case, he refused to return the money.
On July 31, 2006, Mr. Illingworth’s mother filed a claim with the Client Assistance Fund, seeking reimbursement. The Client Assistance Fund held a hearing and on June 27, 2007, determined that Mr. Pangburn owed Ms. Illingworth $7,280. On February 26, 2008, the Idaho Supreme Court rejected Mr. Pangburn’s challenge to the Client Assistance Fund’s findings. Mr. Pangburn did not return any of the money, so the Client Assistance Fund paid Ms. Illingworth $7,280 on March 13, 2008. Mr. Pangburn has not reimbursed the Client Assistance Fund. Based upon those circumstances, Mr. Pangburn admitted that he violated I.R.P.C. 1.16(d) [Failing to return unearned fees upon termination of representation] and 1.15(d) [Failure to keep property separate until the dispute between the lawyer and client was resolved].
Given Mr. Pangburn’s admissions that he violated those Idaho Rules of Professional Conduct, a Hearing Committee of the Professional Conduct Board conducted a hearing on April 4, 2011, to determine the sanction that it would recommend to the Court. On July 27, 2011, the Hearing Committee issued a decision recommending that Mr. Pangburn be disbarred. Mr. Pangburn filed a Motion to Alter or Amend that decision. On November 9, 2011, the Hearing Committee denied Mr. Pangburn’s Motion to Alter or Amend, but did recommend that Mr. Pangburn’s effective date of disbarment be February 1, 2010, which was the date that Mr. Pangburn would have been eligible to reinstate following his 2008 suspension.
The Court’s Opinion stated that the Court had conducted an independent review of the record and carefully considered the nature of the admitted violations of the Idaho Rules of Professional Conduct and the mitigating and aggravating circumstances. The Court concluded that the need to protect the public, the courts and the legal profession, dictated that the Court accept the Hearing Committee’s recommendation that Mr. Pangburn be disbarred. The Court disbarred Mr. Pangburn effective February 1, 2010.
Mr. Pangburn cannot apply for admission to the Idaho State Bar sooner than five years from the effective date of the disbarment. If Mr. Pangburn applies for admission, he will have the burden of overcoming the rebuttable presumption of “unfitness to practice law.”
This disbarment notice shall be published in the Advocate, the Idaho Statesman and the Idaho Reports. Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
DOUGLAS K. KNUTSON
(Suspension)
On December 28, 2012, the Idaho Supreme Court issued a Disciplinary Order suspending Idaho Falls attorney, Douglas K. Knutson, from the practice of law for a period of one year, with 90 days suspension to be served and the remaining 9 months of that suspension withheld, and placing him on probation following any reinstatement.
The Idaho Supreme Court found that Mr. Knutson violated I.R.P.C. 1.3 [“Diligence”], 1.4 [“Communication”], 1.15(a) [“Safekeeping Property”], 8.1 [“Bar Admission and Disciplinary Matters”] and I.B.C.R 505(e) [“Failure to Cooperate with or Respond to Disciplinary Authorities”]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar discipline case in which Mr. Knutson admitted that he violated those Idaho Rules of Professional Conduct.
Mr. Knutson’s misconduct related to two matters. In the first matter, Mr. Knutson represented a party in a divorce case. Mr. Knutson acknowledged that he failed to act with reasonable diligence and promptness in representing his client, primarily after the trial, by not promptly preparing a proposed supplemental divorce decree. Mr. Knutson also acknowledged that he did not keep his client reasonably informed about the status of her post-trial divorce action.
The second matter related to Mr. Knutson’s use of his trust account. After his operating banking account and personal banking account were closed, he used his trust account for personal matters and thus did not hold the property of clients or third persons in connection with representation separate from his own property, resulting in comingling personal and client funds in his trust account. However, since Mr. Knutson made personal deposits into his trust account, no client trust funds were lost or unaccounted for as a result of such comingling. Finally, Mr. Knutson acknowledged that he failed to respond to Bar Counsel with respect to the grievances underlying the allegations contained in the Complaint.
The Disciplinary Order provides that 90 days suspension will be served and 9 months will be withheld. Mr. Knutson will serve a two-year probation following any reinstatement, subject to conditions specified in the Order. Those conditions include that Mr. Knutson will serve the additional 9 month suspension if he admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during Mr. Knutson’s period of probation; Mr. Knutson must remain under the care of his healthcare providers; comply with any treatment regimen prescribed by his healthcare providers; practice under a supervising attorney; and provide quarterly reports to Bar Counsel concerning his trust account.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
CHERI K. GOCHBERG
(Resignation In Lieu of Discipline)
On November 20, 2012, the Idaho Supreme Court entered an Order Granting Stipulation to Resign in Lieu of Disciplinary Proceedings with respect to Utah and Idaho attorney Cheri K. Gochberg.
The Idaho Supreme Court Order followed the parties’ stipulation to permit a resignation in lieu of disciplinary proceedings in an Idaho State Bar reciprocal disciplinary proceeding. Ms. Gochberg was previously admitted to the practice of law in Utah. Ms. Gochberg was admitted to the practice of law in Idaho in April 2004, but had been an inactive member in Idaho since March 2008. Ms. Gochberg resigned in lieu of discipline from the practice of law in Utah following two felony convictions of driving under the influence of alcohol or drugs, one related to a September 2010 incident and one related to a February 2011 incident. She was sentenced in both cases in 2011. In the Utah proceedings, Ms. Gochberg admitted violating Utah Rules of Professional Conduct 8.4(b) (commission of a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects) and 8.4(a) (misconduct).
The Idaho Supreme Court accepted Ms. Gochberg’s resignation effective March 28, 2012. By the terms of the Order, Ms. Gochberg may not make application for admission to the Idaho State Bar sooner than five years from the date of her resignation. If she does make such application for admission, she will be required to comply with all bar admission requirements found in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttable presumption of “unfitness to practice law.”
By the terms of the Idaho Supreme Court’s Order, Ms. Gochberg’s name was stricken from the records of the Idaho Supreme Court and her right to practice law before the courts in the State of Idaho was terminated on March 28, 2012.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.CRAIG R. JORGENSEN
(Suspension)
On October 31, 2012, the Idaho Supreme Court issued a Disciplinary Order suspending Pocatello attorney Craig R. Jorgensen from the practice of law for a period of two (2) years, with all but four (4) months of such suspension withheld. The Idaho Supreme Court found that Mr. Jorgensen violated Idaho Rules of Professional Conduct 1.2(a) (failure to abide by client objectives), 1.3 (failure to act with reasonable diligence), 1.4 (failure to reasonably communicate with client), 1.15(b) (withdrawal of fees from client trust account only as fees are earned or expenses incurred), 1.16(a) (failure to withdraw from representation upon discharge), 1.16(d) (failure to return unearned fees and client file upon termination), and 8.4(d) (conduct prejudicial to the administration of justice).
The Idaho Supreme Court’s Disciplinary Order followed Findings of Fact, Conclusions of Law and Recommendation issued by a Hearing Committee of the Professional Conduct Board on September 24, 2012. A hearing before that Committee was conducted on August 28, 2012 to determine the appropriate sanction. The parties had entered into a Stipulation of Facts prior to the hearing in which Mr. Jorgensen admitted to violating the Idaho Rules of Professional Conduct referenced above.
The formal charge Complaint filed against Mr. Jorgensen by the Idaho State Bar on September 1, 2011, stemmed from his representation of A.M. in a federal court case in which A.M. sued her employer, 23 employees, and numerous other defendants for sexual harassment and discrimination, retaliation, and defamation. A.M. originally filed the lawsuit pro se on February 10, 2010. On June 23, 2010, certain defendants filed a Motion to Dismiss the defamation claim. A.M.’s response was due by July 19, 2010. On June 25, 2010, A.M. retained Mr. Jorgensen to represent her in the case and to respond to the motion. She paid him a $22,500 retainer to be charged at a $210 hourly rate. Mr. Jorgensen deposited the funds into his trust account on or about June 25, 2010. On June 30, 2010, Mr. Jorgensen filed a Notice of Appearance, but failed to ever file any other documents in the case, including A.M.’s response to the Motion to Dismiss. On July 28, 2010, the Court granted the Motion to Dismiss with prejudice based on A.M.’s failure to file a response to the motion. Mr. Jorgensen did not inform his client about the dismissal. Mr. Jorgensen also failed to inform A.M. about the dismissal and/or status of her case throughout the remainder of 2010.
In January 2011, A.M. notified Mr. Jorgensen that his representation was terminated and specified the attorneys she hired in substitution. Those attorneys also notified Mr. Jorgensen that they were taking over the case and requested that he return A.M.’s file and retainer. Mr. Jorgensen failed to withdraw from the representation until August 2011 and failed to return A.M.’s file or retainer.
With respect to A.M.’s $22,500 retainer, although initially deposited into Mr. Jorgensen’s trust account, he acknowledged that he did not earn the fee and did not maintain those funds in his trust account. Rather, he made draws on those funds for purposes unrelated to A.M.’s case. After A.M. filed a Client Assistance Fund claim against Mr. Jorgensen, he refunded her retainer on August 29, 2011. In October 2012, he paid A.M. interest on the retainer from the date she paid it, June 25, 2010, to the date he refunded it, August 29, 2011.
The Disciplinary Order also provided that following the four (4) month period of imposed suspension and reinstatement, if any, Mr. Jorgensen will serve a three (3) year period of probation on specified terms and conditions that include: reporting to a supervising attorney approved by Bar Counsel on a not less than monthly basis regarding the representation of his clients to assure that he is acting with reasonable diligence in representing his clients and keeping them reasonably informed about the status of their matters; certifying to Bar Counsel under oath on a monthly basis that he is acting with reasonable diligence in representing his clients and keeping them informed about the status of their matters; entering into fee agreements which are all in writing and none of which may be on a “fixed fee/earned on receipt” basis; providing to Bar Counsel’s Office a monthly written report or summary regarding his trust account; and obtaining and maintaining during the period of probation errors and omissions legal malpractice insurance coverage in a form acceptable to Bar Counsel. The Disciplinary Order further provided that if Mr. Jorgensen is found to have violated any of these conditions of probation then the entire withheld suspension shall be automatically and immediately imposed.
The Idaho Supreme Court also ordered that as a condition of reinstatement, Mr. Jorgensen must show that he has fully complied with the requirements of I.B.C.R. 517 (a)–(d) and otherwise satisfied all requirements of I.B.C.R. 518(b), and must reimburse the Idaho State Bar for all costs associated with this disciplinary proceeding pursuant to I.B.C.R. 506(j).
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, ID 83701, (208) 334-4500.
BENSON BARRERA
(Withheld Suspension)
On November 13, 2012, the Idaho Supreme Court issued a Disciplinary Order suspending Nampa attorney Benson Barrera from the practice of law for a period of one year with the entire year withheld and placing him on a two year disciplinary probation.
The Idaho Supreme Court found that Mr. Barrera violated Idaho Bar Commission Rule 505(b) [Conviction of a serious crime]. The Idaho Supreme Court’s Disciplinary Order followed a stipulated resolution of an Idaho State Bar disciplinary proceeding and related to the following circumstances.
In February 2011, Mr. Barrera was charged with felony aggravated assault. The charge stemmed from an incident in which Mr. Barrera head-butted another man in a public venue. Mr. Barrera described it as a bar fight with a former girlfriend’s ex-husband. In October 2011, the jury found Mr. Barrera guilty of felony aggravated assault. In December 2011, Mr. Barrera was sentenced to 60 days in jail with the possibility of early release and a five-year probation including terms that he complete a substance abuse evaluation and 200 hours of community service. Mr. Barrera was released from custody early after serving 37 days. In January 2012, Mr. Barrera appealed his conviction.
The Disciplinary Order provides that Mr. Barrera’s one-year suspension is withheld subject to the terms and conditions of a two-year probation, which include: avoidance of any alcohol or drug-related criminal acts, or alcohol or drug-related traffic violations; a program of random urinalysis; that he comply with the terms of his criminal probation; and if Mr. Barrera admits or is found to have violated any of the Idaho Rules of Professional Conduct for which a public sanction is imposed for any conduct during the period of probation, regardless whether the admission or determination occurs after the expiration of the probationary period, the entire withheld suspension shall be imposed.
The withheld suspension does not limit Mr. Barrera’s eligibility to practice law.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
M. PATRICK DUFFIN
(Resignation In Lieu of Discipline)
On September 27, 2012, the Idaho Supreme Court issued an Order accepting the resignation in lieu of discipline of Idaho Falls attorney, M. Patrick Duffin. The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following circumstances.
On July 18, 2012, the Idaho State Bar filed a formal charge Complaint and also filed a Petition for Interim Suspension of License to Practice Law with the Idaho Supreme Court. On July 30, 2012, the Idaho Supreme Court entered an Order granting the petition and placed Mr. Duffin on interim suspension effective July 30, 2012.
The Complaint alleged three counts of professional misconduct. With respect to Count One, Mr. Duffin admitted he violated I.R.P.C. 1.2(a), relating to the scope of representation, 1.3, relating to promptness, 1.4, relating to communication with a client, 3.2, relating to expediting litigation, 3.4(d), relating to discovery responses, and 8.1(b) and I.B.C.R. 505(e), relating to the failure to correspond with Bar Counsel. Count One related to Mr. Duffin’s representation of a personal injury client. In that case, Mr. Duffin failed to submit his client’s response to discovery, even after being directed to do so by the Court following a motion to compel. Following that, the defendants filed a motion for sanctions based upon that failure to respond to discovery and the Court’s order. Mr. Duffin did not file any response to that motion or submit any response to the discovery. He also failed to appear at the hearing on the motion for sanctions. When defense counsel then filed an affidavit for attorneys' fees and costs, Mr. Duffin did not file an objection to the requested fees and costs or respond to the affidavit. After a continued failure to respond to discovery, defendants filed a second motion for sanctions requesting the case be dismissed. Mr. Duffin did not file any response to that second motion for sanctions. The Court then entered an order dismissing the client’s case with prejudice. Finally, Mr. Duffin did not respond to Bar Counsel during the investigation of that grievance.
With respect to Count Two, Mr. Duffin admitted that he violated I.R.P.C. 1.2(a), relating to the scope of representation, 1.3, relating to diligence, 1.4, relating to communication, 1.7, relating to a conflict of interest, 3.2, relating to expediting litigation, and 3.4(d), relating to discovery, in connection with his representation of two different clients in two breach of contract cases. In the first case, Mr. Duffin did not diligently pursue the defense of the case which eventually resulted in the denial of a motion to set aside a default and award of costs and fees. In addition, Mr. Duffin failed to take diligent action on appeal, resulting in the dismissal of the appeal. In the second case, Mr. Duffin failed to diligently prosecute his client’s claims which resulted in a dismissal of his client’s claims and judgment being entered on behalf of the opposing party for attorneys’ fees. In addition, Mr. Duffin’s arrangement with these two clients, who were involved in cases against a common opponent, resulted in an impermissible conflict of interest.
With respect to Count Three, Mr. Duffin admitted that he violated I.R.P.C. 1.2(a), relating to the scope of representation, 1.3, relating to diligence and 1.4, relating to communication. In that case, the client hired Mr. Duffin to assist her with a home loan modification and paid Mr. Duffin for that representation. Mr. Duffin failed to take any material action on his client’s behalf, did not diligently pursue the representation and failed to communicate with his client. Mr. Duffin did refund all fees paid to the client.
The Idaho Supreme Court entered an Order accepting Mr. Duffin’s resignation effective September 27, 2012. By the terms of the Order, Mr. Duffin may not make application for admission to the Idaho State Bar sooner than five years from the date of his resignation. If he does make such application for admission, he will be required to comply with the bar admission requirements in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttable presumption of “unfitness to practice law.”
By the terms of the Idaho Supreme Court’s Order, Mr. Duffin’s name was stricken from the records of the Idaho Supreme Court and his right to practice law before the courts in the State of Idaho was terminated on September 27, 2012.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
MICHAEL J. McDONAGH
(Resignation in Lieu of Discipline)
On October 31, 2012, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Boise attorney, Michael J. McDonagh. The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that resulted from two grievances.
The first grievance, filed by the Idaho State Bar, related to Mr. McDonagh’s criminal charges in Ada County. On May 16, 2011, Mr. McDonagh issued a $10,000 paycheck to himself from his former employer and deposited the funds into his checking account. On February 15, 2012, he pleaded guilty to forgery. On June 20, 2012, the district court withheld judgment and placed Mr. McDonagh on a five-year probation. He has paid full restitution to the victims in that case. Mr. McDonagh admitted that his conduct in that matter violated I.R.P.C. 8.4(b) and (c) and I.B.C.R. 505(b).
The second grievance was filed by Mr. McDonagh’s former client, H.C. In December 2009, H.C. retained Mr. McDonagh to collect funds owed by a third party for construction work. Mr. McDonagh sent a demand letter but did not complete any further work. Between April 2010 and June 2011, he failed to provide correct information to H.C. about the status of his case. After H.C. terminated the representation, Mr. McDonagh failed to return any portion of the $2,500 retainer fee. Mr. McDonagh admitted that his conduct in that matter violated I.R.P.C. 1.2(a), 1.3, 1.4, 1.16(d) and 8.4(c).
The Idaho Supreme Court accepted Mr. McDonagh’s resignation effective October 31, 2012. By the terms of the Order, Mr. McDonagh may not make application for admission to the Idaho State Bar sooner than five years from the date of his resignation. If he does make such application for admission, he will be required to comply with all bar admission requirements found in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttable presumption of “unfitness to practice law.”
By the terms of the Idaho Supreme Court’s Order, Mr. McDonagh’s name was stricken from the records of the Idaho Supreme Court and his right to practice law before the courts in the State of Idaho was terminated on October 31, 2012.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.
DAVID E. RAYBORN
(Reinstatement)
On September 24, 2012, the Idaho Supreme Court issued an Order Granting Petition for Transfer to Active Status reinstating Pocatello, Idaho attorney David E. Rayborn to the practice of law in Idaho. Mr. Rayborn had previously been on disability inactive status since September 18, 2008 by order of the Idaho Supreme Court which was a result of a stipulated resolution to a formal charge of disciplinary case pending against him. Pursuant to the Supreme Court's September 18, 2008 Order, Mr. Rayborn was not allowed to apply for reinstatement for five years retroactive to September 12, 2006, the date on which he voluntarily transferred from active to inactive status.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, PO Box 895, Boise, Idaho 83701, (208) 334-4500.
ERIC J. SCOTT
(Public Reprimand)
The Professional Conduct Board of the Idaho State Bar has issued a Public Reprimand to Boise lawyer Eric J. Scott, based on professional misconduct. The Professional Conduct Board Order concluded a disciplinary proceeding that was initiated with a complaint filed on June 29, 2012. On September 24, 2012, a Hearing Committee of the Professional Conduct Board conducted a hearing on the Idaho State Bar’s Motion to Deem Admissions for Failure to Answer and for Imposition of Sanction. Mr. Scott chose not to answer due to a parallel contempt case with criminal implications. Following that hearing, the Hearing Committee entered its Order. That Order concluded that Mr. Scott violated I.R.P.C. 8.2(a), by making a statement concerning the qualifications or integrity of a judge that a reasonable attorney, considered in light of all his professional functions, would not have made under the circumstances.
Mr. Scott represented a criminal defendant charged with possession of an open container and battery. Magistrate Judge Thomas Watkins was assigned to the case. Following Judge Watkins’ decision denying defendant’s pre-trial motions, Mr. Scott filed a motion to withdraw as defendant’s counsel. In that motion, Mr. Scott argued that Judge Watkins erroneously applied a subjective test rather than an objective test in analyzing whether the defendant was in custody. Judge Watkins stated that the test for determining whether a suspect was in custody “is a subjective one and the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.”
Mr. Scott described this statement of the test as “stunningly nonsensical” and stated that “[w]ith all due respect to this Court, this statement makes no sense.”
Regarding the open container charge, Mr. Scott argued that Judge Watkins erroneously concluded that the defendant admitted to an officer that he had consumed alcohol in a public theater. Mr. Scott concluded that motion by stating, in part:
The Court’s errors in this case were so inexplicable and so great in number that Counsel has formed the belief that this Court is:
(a) lazy;
(b) incompetent;
(c) biased;
(d) prejudiced; or
[(e)] all or some of the above.
With all due respect, Counsel simply cannot escape this belief. There is no explanation for this Court’s ‘finding’ of a ‘fact’ that did not exist. It would be understandable if this Court overlooked a fact, but this Court made up a fact. It just so happens that this Court made up facts to the advantage of his former employer, the Boise City Prosecutor’s Office. Therefore, this Court is either biased toward them, prejudiced against Counsel, too lazy to actually listen to the recording of the relevant interview, or too incompetent to reach the correct conclusion from the facts. Therefore, Counsel lacks faith in this Court’s ability to objectively and competently serve as a fact-finder in this case.
For the reasons set forth above, Counsel also has no faith in this Court’s ability to competently and objectively interpret the law in this case. The Court’s stunningly nonsensical statement of the ‘test’ for determining custody speaks for itself. . . .
Following a hearing, Judge Watkins denied the motion to withdraw and Mr. Scott was served with a written charge of contempt. Following a hearing, Mr. Scott was found guilty of contempt, a matter that is currently pending on appeal. The defendant in the underlying case was acquitted of the battery charge and the open container charge was dismissed after the state rested its case.
The public reprimand also includes that Mr. Scott be placed on probation on the condition that he complete a one-year mentoring program facilitated by the Idaho State Bar. Mr. Scott voluntarily began the mentoring program before the disciplinary case was filed.
The public reprimand does not limit Mr. Scott’s eligibility to practice law.
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, PO Box 895, Boise, Idaho 83701, (208) 334-4500.
DAVID C. JACQUOT
(Resignation in Lieu of Discipline)
On September 27, 2012, the Idaho Supreme Court entered an Order accepting the resignation in lieu of discipline of Coeur d’Alene attorney, David C. Jacquot. The Idaho Supreme Court’s Order followed a stipulated resolution of a disciplinary proceeding that related to the following conduct.
On April 15, 2008, a federal grand jury in California indicted Mr. Jacquot on two counts of filing false income tax returns. On August 16, 2010, Mr. Jacquot was arraigned in California on three federal counts of Transportation of a Minor to Engage in Criminal Sexual Activity.
In March 2012, following two mistrials in the sexual misconduct case, Mr. Jacquot pleaded guilty to one count of filing a false tax return and one count of Travel with Intent to Engage in Illicit Sexual Activity. In the tax case, he was sentenced to time served and ordered to pay restitution and serve one year of supervised probation. In the sexual misconduct case, he was sentenced to time served and ordered to serve 25 years of supervised probation.
The Idaho Supreme Court accepted Mr. Jacquot’s resignation effective September 27, 2012. By the terms of the Order, Mr. Jacquot may not make application for admission to the Idaho State Bar sooner than five years from the date of his resignation. If he does make such application for admission, he will be required to comply with all bar admission requirements found in Section II of the Idaho Bar Commission Rules and shall have the burden of overcoming the rebuttable presumption of “unfitness to practice law.”
By the terms of the Idaho Supreme Court’s Order, Mr. Jacquot’s name was stricken from the records of the Idaho Supreme Court and his right to practice law before the courts in the State of Idaho was terminated on September 27, 2012
Inquiries about this matter may be directed to: Bar Counsel, Idaho State Bar, P.O. Box 895, Boise, Idaho 83701, (208) 334-4500.