Discipline of Crawley/Henderson

2007 UT 44
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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In the Matter of the Discipline Nos. 20060451
of Steven Crawley, #0750. 20060452
In the Matter of the Discipline F I L E D
of J. Keith Henderson, #1459.
May 25, 2007
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Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 040905620
The Honorable Leon Dever
No. 040903585
Attorneys: Kate A. Toomey, Billy L. Walker, Salt Lake City, for
Office of Professional Conduct
Gregory G. Skordas, Rebecca C. Hyde, Salt Lake City,
for Steven Crawley
John T. Caine, Ogden, for J. Keith Henderson
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DURRANT, Justice:
INTRODUCTION
¶1 The Office of Professional Conduct (the “OPC”) appeals
two district court decisions, which are consolidated for purposes
of our review. In each case, the district court sanctioned an
attorney found to have violated the Rules of Professional Conduct
with suspension but, in one case, stayed the suspension and
placed the attorney on probation and, in the other case, gave the
attorney leave to petition the court to stay the suspension for a
period of probation. The OPC asks this court to articulate
guidelines regarding the use of probation as a sanction and to
review the use of probation in the two cases at issue. Because
we think it salutary that district courts have the discretion to
impose probation as they see fit under the Standards for Imposing
Lawyer Sanctions, we decline to adopt specific guidelines
regarding probation.
BACKGROUND

Nos. 20060451, 20060452 2
¶2 For the purpose of reviewing the use of probation in
sanctioning attorneys for misconduct, we consolidated the two
cases before us. But we review the facts of each case and the
specifics of the misconduct at issue with respect to each
attorney below.
I. STEVEN CRAWLEY
¶3 Steven Crawley was a shareholder in the law firm of
Babcock, Bostwick, Scott, Crawley and Price and represented one
of the firm’s clients, Interwest Construction (“Interwest”), in
two matters relevant to his misconduct. The first matter
involved a primary claim against Interwest and its three third-
party claims against other entities. Although each of these
claims would have been enhanced by an expert report or affidavit,
Crawley failed to obtain either. As a consequence, Interwest
lost some of its third-party claims for lack of supporting
evidence, and the district court assessed attorney fees against
it. The court later granted summary judgment against Interwest,
citing the lack of an expert report as part of the reason.
Crawley not only failed to inform Interwest that some of its
third-party claims had been dismissed and that attorney fees had
been assessed against it, but also misrepresented to both
Interwest and the firm the status of the matter following summary
judgment.
¶4 The second matter involved an action against Interwest
for breach of contract and Interwest’s counterclaim for breach of
contract and negligence. As in the first matter, Interwest’s
position would have been enhanced by an expert report or
affidavit, which Crawley again failed to obtain. The district
court entered summary judgment against Interwest on its
negligence counterclaim specifically because of the absence of an
expert report, but Crawley informed Interwest that its
counterclaim was dismissed for reasons other than this. The
court later entered an amended judgment against Interwest, which
Interwest decided to appeal. Although Crawley informed Interwest
that the firm would appeal the judgment and, later, that an
appeal had in fact been filed in the matter, Crawley never filed
the appeal.
¶5 Crawley’s misconduct also involved actions he undertook
while he was responsible for managing the firm’s business affairs
and finances, including renewing the firm’s professional
negligence insurance coverage. When filling out a renewal
application for that insurance coverage, Crawley checked the box
marked “No” in response to the following question: “At this
time, does any applicant know of any act, omission, or

3 Nos. 20060451, 20060452
circumstance that could reasonably give rise to a professional
liability claim against any of the following: the firm, any past
or present attorneys in the firm, or any predecessor firm.”
Crawley also signed the form as the “Authorized Principal or
Applicant” and, in so doing, asserted that the statements he made
on the form were true and that he had not misstated, omitted, or
suppressed any material fact. But Crawley should have been aware
that his handling of the two Interwest matters could reasonably
have given rise to a professional liability claim against Crawley
himself and the firm, and he failed to disclose this on the
application.
¶6 Based on the above facts, to which both the OPC and
Crawley stipulated, the district court found that Crawley had
violated the following rules of the Utah Rules of Professional
Conduct: 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3
(Diligence), 1.4(a) (Communication), and 8.4(a) and (c)
(Misconduct). The court also found the following aggravating
factors: multiple offenses, conduct involving the elements of
intentional dishonesty in the form of affirmative
misrepresentations or omissions, and Crawley’s substantial
experience. And the court found the following mitigating
factors: the absence of any other discipline during Crawley’s
twenty-eight-year career; the physical, personal, and emotional
problems from which he was suffering at the time of the
misconduct; that restitution was made; Crawley’s good character
reputation in the community; and his display of substantial
remorse. The district court also noted that Crawley had been
candid with the court and had done nothing to evade
responsibility for his actions, that he had suffered a
substantial loss of value in the firm, and that there was a
possibility of other penalties and sanctions associated with his
misconduct.
¶7 The district court determined that the appropriate
presumptive sanction for Crawley’s misconduct was suspension.
After weighing the aggravating and mitigating factors, the court
concluded that Crawley should be suspended from the practice of
law for one year but that the suspension should be stayed in
favor of eighteen months of probation with the following
conditions: Crawley’s misconduct is subject to public
disclosure, he cannot engage in litigation or make any appearance
in court, he cannot advertise, he must donate twenty-five hours
of pro bono service, he must be seen by a mental health
professional every four months and must bring a diagnosis of
anxiety or depression to the court’s attention, he must not
violate the Rules of Professional Conduct, and he must take and
pass the Multistate Professional Responsibility Examination.

Nos. 20060451, 20060452 4
II. J. KEITH HENDERSON
¶8 The district court made the following findings with
respect to J. Keith Henderson. Henderson represented William
Blakley in a matter relating to an on-the-job accident in which
the truck Blakley was driving overturned. Specifically, Blakley
retained Henderson to pursue unpaid workers’ compensation claims
that Blakley had filed with the workers’ compensation insurance
carrier. Henderson knew that Blakley was also pursuing a
personal injury claim against another driver involved in the
accident, but did not advise Blakley that a settlement in the
personal injury case could affect his workers’ compensation
claims. Around January 2000, Blakley’s personal injury attorney
settled the personal injury claim.
¶9 Without determining the status of Blakley’s personal
injury claim, Henderson, in February 2000, filed an Application
for Hearing requesting a hearing before the Utah Labor Commission
regarding Blakley’s workers’ compensation claims. The insurance
carrier responded with a counterclaim for reimbursement for past
payments and offset of future payments to Blakley because he
received settlement proceeds from the defendant in his personal
injury case. The Labor Commission set a hearing for June 2,
2000. Henderson did not give Blakley a copy of the insurance
carrier’s response prior to this hearing.
¶10 On June 2, Henderson met with Blakley as they traveled
to the hearing and immediately prior to it. At the hearing, the
administrative law judge (“ALJ”) continued the hearing without
date to see if the parties could reach a settlement regarding
compensation for Blakley. Prior to and after the hearing,
Henderson again failed to fully explain to Blakley how the
settlement in his personal injury case would affect his pending
and future workers’ compensation claims.
¶11 Blakley did not hear from Henderson after the June 2
hearing until he received a letter from Henderson dated
November 30, 2000. The letter stated that the insurance carrier
had a right to the third-party personal injury settlement and
that Blakley was not entitled to recover a workers’ compensation
award.
¶12 On November 9, 2000, the district court suspended
Henderson from the practice of law for unrelated matters for two
years, but stayed all but six months of the suspension.
Henderson neither notified Blakley that he was being suspended
from the practice of law and could no longer represent him nor
told Blakley that he would need to find a new attorney or
represent himself pro se in the matter. Henderson also failed to

5 Nos. 20060451, 20060452
provide Blakley with a copy of his file. Additionally, Henderson
did not notify Blakley that the next hearing in his case was set
for February 27, 2001, and that Blakley should attend.
¶13 On February 27, 2001, the ALJ conducted a status
hearing in Blakley’s case. When Henderson failed to appear at
the hearing, the ALJ telephoned him. Henderson told the ALJ that
he had withdrawn from the case because it settled, and the ALJ
directed Henderson to file a withdrawal of counsel within ten
days so that the case could move forward. Not only had the case
not settled as of February 27, 2001, Henderson did not submit the
requested withdrawal of counsel until October 15, 2002.
¶14 Based on these findings, the district court concluded
that Henderson violated the following rules of the Utah Rules of
Professional Conduct: 1.1 (Competence), 1.4 (Communication),
1.16(d) (Declining or Terminating Representation), 3.3(a) (Candor
to the Tribunal), and 8.4(a) and (d) (Misconduct). After
analyzing the factors of rule 3 of the Standards for Imposing
Lawyer Sanctions, the district court concluded that the
presumptive sanction for Henderson’s misconduct was suspension.
In considering the actual sanction to be imposed, the court found
these aggravating factors: a prior record of discipline, a
dishonest or selfish motive, multiple offenses, obstruction of
the disciplinary proceeding, a refusal to acknowledge the
wrongful nature of the misconduct, substantial experience in the
practice of law, and the lack of a good faith effort to rectify
the consequences of the misconduct. As to mitigating
circumstances, the court acknowledged that Henderson’s counsel
argued that Henderson gained nothing, including financial
benefit, from his actions, and that Henderson presented evidence
of good character from a practitioner in the same field.
¶15 The district court weighed the aggravating and
mitigating circumstances and decided that suspension was the
appropriate sanction for Henderson’s misconduct. The court
suspended Henderson for one year, but granted him leave to
petition the court to stay all but three months of that
suspension on certain conditions. Henderson, however, chose not
to petition for such leave.
¶16 The OPC has, in both the Crawley and Henderson matters,
appealed the parts of the district court orders suspending the
attorneys but either staying that suspension, as in Crawley’s
case, or granting leave to petition for a stay of that
suspension, as in Henderson’s case. The OPC has asked us not
only to review the sanctions imposed in both matters, but also to
review the use of probation generally and provide specific
guidelines for its use in sanctioning attorneys for misconduct.

1 In re Ince, 957 P.2d 1233, 1236 (Utah 1998).
2 Id.
3 See In re Ennenga, 2001 UT 111, ¶ 10, 37 P.3d 1150.
Nos. 20060451, 20060452 6
ANALYSIS
¶17 Under article VIII, section 4 of the Utah Constitution,
we have the authority to “govern the practice of law, including
admission to practice law and the conduct and discipline of
persons admitted to practice law.” In reviewing cases involving
attorney discipline, we “review the trial court’s findings of
fact under the clearly erroneous standard,” but “reserve the
right to draw different inferences from the facts than those
drawn by the trial court.”1 As to the discipline actually
imposed, our “constitutional responsibility requires us to make
an independent determination as to its correctness.”2 In this
case, neither Crawley nor Henderson disputes the factual findings
of the district courts; we therefore leave those findings
undisturbed.
¶18 When reviewing sanctions in attorney discipline cases,
we rely on the Standards for Imposing Lawyer Sanctions for
guidance.3 The standards explain the purpose of sanctions and of
the standards themselves:
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.
. . . .
. . . The standards constitute a system
for determining sanctions, permitting
flexibility and creativity in assigning
sanctions in particular cases of lawyer
misconduct. They are designed to promote:

4 Standards for Imposing Lawyer Sanctions, Rule 1.
5 Id. 2.1.
6 Id. 2.
7 Nos. 20060451, 20060452
1.3.(a) consideration of all
factors relevant to imposing the
appropriate level of sanction in an
individual case;
1.3.(b) consideration of the
appropriate weight of such factors in
light of the stated goals of lawyer
discipline; and
1.3.(c) consistency in the
imposition of disciplinary sanctions for
the same or similar offenses within and
among jurisdictions.4
¶19 Rule 2 of the standards lists the specific sanctions
available to be “imposed on a lawyer upon a finding or
acknowledgement that the lawyer has engaged in professional
misconduct.”5 These sanctions are as follows: disbarment,
suspension, interim suspension, reprimand, admonition, probation,
resignation with discipline pending, other sanctions and remedies
(including restitution, assessment of costs, limitation upon
practice, appointment of a receiver, and a requirement that a
lawyer take the bar examination or professional responsibility
examination), and reciprocal discipline.6 The standards offer
specific guidance as to four of these sanctions; rule 4 outlines
circumstances under which disbarment, suspension, reprimand, and
admonition are the appropriate presumptive sanctions. And rules
21 and 22 of the Rules of Lawyer Discipline and Disability offer
guidelines for seeking resignation with discipline pending and
reciprocal discipline. Thus, of the sanctions listed in rule 2,
only probation and “other sanctions and remedies” lack details
guiding their use.
¶20 This does not mean, however, that courts are provided
no direction as to probation or other sanctions and remedies.
Rule 3 of the standards provides guidelines that should be
considered in imposing sanctions, which are “the duty violated,”
“the lawyer’s mental state,” “the potential or actual injury
caused by the lawyer’s misconduct,” and “the existence of

7 Id. 3.
8 In re Ince, 957 P.2d 1233, 1237-38 (Utah 1998).
9 Standards for Imposing Lawyer Sanctions, Rule 6.2.(b).
10 Id. 6.2.(g).
11 Id. 6.2.(f).
12 Id. 6.2.(e).
Nos. 20060451, 20060452 8
aggravating or mitigating factors.”7 In the ordinary case, after
finding that an attorney has violated the Rules of Professional
Conduct, a court considers the factors of rule 3 and determines
the presumptive level of discipline with respect to the
guidelines given in rule 4. It then weighs the aggravating and
mitigating circumstances in determining the sanction that should
ultimately be imposed and departs from the presumptive level of
discipline if the aggravating and mitigating factors are
“significant.”8
¶21 The OPC argues, however, that this process has produced
undesirable results with probation being inappropriately imposed
as a final sanction. To guide district courts in their use of
probation, the OPC asks us to adopt guidelines detailing the
circumstances under which probation is not appropriate. The OPC
argues that probation should never be available where an
attorney’s “misconduct reflects an absence of integrity that
cannot be remedied with further training or supervision.” The
OPC believes this is the case when the duty violated was the duty
to deal honestly with clients, tribunals, or third parties and
when the attorney’s mental state in committing the misconduct was
knowing or intentional. Furthermore, the OPC maintains that
probation should not be available, even absent misconduct
involving an attorney’s knowing or intentional dishonesty, when
certain aggravating factors are present that “suggest that the
[attorney] is unlikely to cooperate with the OPC and has not
demonstrated the self-awareness that is a necessary component of
a true commitment to change.” Specifically, the OPC identifies
the following aggravating factors that should preclude probation:
a dishonest motive;9 a “refusal to acknowledge the wrongful
nature of the misconduct involved”;10 the “submission of false
evidence, false statements, or other deceptive practices during
the disciplinary process”;11 and the “obstruction of the
disciplinary proceeding by intentionally failing to comply with
rules or orders of the disciplinary authority.”12

13 Id. 1.3.
14 2004 UT 77, 99 P.3d 837.
15 Id. ¶ 19.
9 Nos. 20060451, 20060452
¶22 We appreciate the OPC bringing this issue to our
attention; we decline, however, to adopt its proposed guidelines
or fashion any of our own design. We are satisfied--indeed
pleased--with the discretion currently being exercised by
district courts in sanctioning attorneys for misconduct. It is a
delicate and often difficult task to craft sanctions appropriate
for individual attorneys, no two of which have engaged in the
same misconduct under the same aggravating and mitigating
circumstances. The standards “permit[] flexibility and
creativity in assigning sanctions,”13 and the district courts
have embraced this approach.
¶23 Our district court judges do a remarkable job of
fulfilling a stated purpose of the standards--protecting the
public and the administration of justice--while still providing
the opportunity, when appropriate, for attorney rehabilitation.
Were we to limit the circumstances under which probation is
available, we would very likely undermine the ability of the
district courts to so effectively maintain this balance. In
fact, we note that the imposition of probation with the right
conditions may in some cases be more protective of the public
than a period of suspension. Rather than simply punishing
(suspending) an attorney for misconduct and then allowing the
attorney to resume the practice of law, a district court that
imposes probation and designs attorney-specific terms provides an
opportunity for the attorney to change his or her ways and, in so
doing, protects the public from that attorney’s future
misconduct. Importantly, in this respect ours is a self-
correcting system. Where probation does not adequately
rehabilitate a lawyer, district courts will be wary of imposing
similar probationary terms in similar situations in the future.
¶24 In Crawley’s case, we find that the district court
appropriately exercised its discretion and uphold the sanction it
imposed: a one-year stayed suspension with eighteen months of
probation subject to a multitude of conditions. We also uphold
the district court’s sanction with respect to Henderson and, in
doing so, express the following concern. In In re Doncouse14 we
stated that “[t]o serve as an effective deterrent for further
misconduct, the penalty for violating an order of suspension must
be more severe than the original suspension.”15 Henderson’s
misconduct occurred, in part, while he was serving a two-year

Nos. 20060451, 20060452 10
suspension, with all but six months of that suspension stayed.
Although Henderson’s sanction in this matter should be more
severe than the stayed suspension that he violated, we decline to
impose a more severe sanction now because the OPC did not appeal
on this issue. We thus uphold the sanction imposed by the
district court of a one-year suspension with leave to petition
the court for probation. But we put the bar and bench on notice
that less severe terms of suspension and probation are
inappropriate sanctions for an attorney who violates the terms of
an existing suspension or probation.
CONCLUSION
¶25 We decline to adopt specific guidelines regarding the
use of probation as a sanction for attorney misconduct. District
courts are exercising appropriate discretion in fashioning
individualized sanctions involving probation for attorneys, and
we wish to maintain that discretion. Additionally, we uphold the
sanctions imposed by the district courts on Crawley and
Henderson.
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¶26 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.