Tuesday, December 11, 2012

"Truly Compelling Mitigating Circumstances" Not Found In Utah Disbarment

The Utah Supreme Court has held that a district court does not have discretion to depart downward from the presumptive sanction of disbarment for misappropriation absent "truly compelling mitigating circumstances."

The court further held that the attorney, who had used an advanced fee as his own, did not present such evidence.

The court rejected a number of asserted mitigating factors as insufficient to meet its standard.

The  attorney's lack of prior discipline and inexperience did not help. Indeed, the court remarked that it was "unremarkable" that he had no prior discipline as he only was admitted in 2005.

The attorney's pro bono efforts, favorable character evidence, asserted remorse and efforts to reform his practice likewise were not treated as truly compelling mitigation. Finally, his health, family and financial pressures did  not establish such mitigation. (Mike Frisch)


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