In the Matter of the Discipline of Donald D. Gilbert, Jr. (Gilbert v Utah State Bar)

Gilbert appealed the order of disbarment entered against him. The Court affirmed. It held that Gilbert violated the Rules of Professional Conduct by having a conflict of interest between himself and clients because he retained money that his clients were under court order to return to a nonprofit entity and did not obtain consent to continue representation or otherwise prove waiver; violated Rule 3.4 by failing to notify the district court hat Gilbert intended to not obey the injunction requiring the return of the money at the time he accepted and negotiated the checks form his clients; violated Rule 1.15 by not safeguarding the money in his trust account or by retuning money as directed in the injunction; and violated 8.4 by not returning the money. The court held disbarment was appropriate here because he consciously chose to disobey orders to return the moneys at issue, injured the party to whom the money belonged and the legal profession and system by undermining public trust in attorneys and may have harmed his clients as well, disbarment has been imposed when attorneys refuse to obey a court order and other states have disbarred attorneys for conduct materially indistinguishable from Gilbert’s  and the aggravating circumstances here, including Gilbert’s selfish motive, his violation of four different rules, failure to acknowledge wrongdoing or show remorse, his substantial experience in practice failure to obey or otherwise rectify the consequences  are substantial . The Court held that the district court did not error in dismissing Gilbert’s third party claim against the entity owned the monies wrongly retained as Rule of Civil Procedure 21 only applies to the initial complaint not third party actions and in any event there was no prejudice to gilbert as he can simply file a new action. The Court finally held there was no error in denying Gilbert’s motion to stay the disciplinary proceeding as none of the factual issues in his claim against the nonprofit entity had any relevance to the issues in the disciplinary hearing.

Gilbert v Third District Judges Maughan and Faust

Gilbert sought extraordinary relief from a series of disgorgement orders and denials of motion to set eh orders aside. The Court denied his petition. It held that as to three orders from 2007, 2008 and 2010, Gilbert unreasonably waited two years to challenge the disgorgement orders at the district court level and, after being notified in an earlier opinion of the Court of the possibility of extraordinary relief waited over two more years to seek such relief, that these delays were not justified and thus relief was not warranted. It held that as to a 2014 order, Gilbert was on notice by the earlier opinion of the need to intervene and raise his personal jurisdiction defense, he failed to intervene and seek direct and thus extraordinary relied was unavailable as there was an adequate and speedy avenue of relief.