                 IN TIIE SUPREME COIJRT OF THE STATE OF IDAHO
                                 Docket No.38792

 IN THE MATTER OF JAY P. CLARK.                   )
 ATTORNEYATLAW.                                   )   Boise, June 2012 Term
                                                  )
 IDAHO STATE BAR,                                 )   2012 Opinion No. 113
                                                  )
     Petitioner-Respondent,                       )   tr'iled: July 6,2012
                                                  )
                                                  )   Stephen W. Kenyon, Clerk
                                                  )
 JAY P. CLARK                                     )
                                                  )
     Respondent-Appellant.                        )
                                                  )

        Appeal from Idaho State Bar Professional Conduct Board Hearing Committee.

        The Committee's Findings of Fact, Conclusions of Law and Recommendation
        are affirmed. The Committee's recommendation with regard to sanctions is
        adooted. Costs are awarded to Respondent.

        Larry D. Purviance, Dalton Gardens, for Appellant.

        Brad Andrews, Idaho State Bar, Office of the Bar Counsel, Boise, for
        Respondent

W. JONES, Justice
                                    I. NATURE oF THE CASE
       Jay P. Clark ("Clark"), a licensed Idaho attomey since 1996, appeals the Findings of Fact,

Conclusions of Law, and Recommendation filed by the Hearing Committee of the Professional
Conduct Board of the Idaho State Bar ("Committee"), which suspended Clark from the practice
of law and imposed certain conditions should he ever seek any transfer to an active        status
license. Clark asserts that the Committee's decisions are not supported by clear and convincing
evidence. Clark also contends that the Idaho State Bar ("ISB") violated his due process and First
Amendment rights.
                       II. FACTUAL   AND PRoCEDURAL BACKGRoUND

A.     Varela's DUI Citation
       On the night of May 28, 2005, Mateo Varela ("Varela"), who was eighteen years old at
that time, was at a graduation party with some friends. Alcohol was served at the party. Varela
admits that he drank alcohol during the party and eventually blacked out. He asserts that he does
not remember most ofthe events that occuned that night.
       Upon leaving the party, Ronny Bergh ("Bergh"), Varela's friend, discovered that his
truck was missing. Assuming that Varela took his tuck because he was the last person seen
around it, Bergh and a friend drove to Varela's parents' home. Upon finding Varela with his
parents on their front lawn, Bergh inquired about his   truck. Varela stated that he did not know
where Bergh's truck was and that he caught a ride home with some friends earlier that night.
       Varela's parents eventually called the police. An officer arrived at the scene, and located
Bergh's truck "down the street in front of 1200 Elm Streef in Mountain Home, Idaho. It was
discovered that Varela had Bergh's keys and duffle bag in his possession, both of which were in
Bergh's truck when it was taken. Varela's cell phone was later found in Bergh's truck. No one
witnessed Varela driving that night. Varela contends that he does not remember driving Bergh's
truck home from the party.
       When questioned by an officer with the Mountain Home Police Department, Varela
initially denied driving Bergh's truck. Upon further questioning, Varela allegedly admitted to
driving the truck while under the influence of alcohol, asserting to the officer, "[t]ake me, I drank
and I drove   home." Varela contends that   he does not remember making that admission.

       Varela was later arrested for underage drinking. After failing the field sobriety test,
Varela refused to undergo a breathalyzer examination. Thereafter, Varela was given a Citation
for Driving under the Influence of Alcohol. The Citation stated that Varela refused to take the
breathalyzer examination. Varela was also served with a Notice        of Suspension for Failure of
Evidentiary Testing ('Notice of Suspension"). The Notice of Suspension stated that pusuant to
LC. $ 18-8002, Varela's Idaho license would be           suspended   for refusal to submit to    the

breathalyzer examination, unless he showed cause why he refused to undergo evidentiary testing
at a hearing no later than June 6, 2005, with the Elmore County Magistrate Court. Formal
charges were filed on May 31,2005, by Prosecutor Phil     Miller ("Miller") of the Mountain Home
Prosecuting Attomey's Offi ce.
B.     Varela's Retention of Clark
       On May 31,2005, Varela retained Clark to represent him in this matter. Upon allegedly
presenting the Citation to Clark and informing him that he refused to take the breatlnlyzer
examination, Varela contends that he told Clark that he wanted a show cause hearing before the
magisuate court bcaus€ he did not want to lose his driver's license, which was a requirement for
his   job.   Varela asserted that Clark agreed to request a show cause hearing at their initial
consultation meeting on that day. Clark asserts that during their initial consultation, Varela told
him that he did not drive Bergh's truck that night.
        Clark admitted that he knew Varela did not want to lose his driver's license. Clark stated
that he explained to Varela during that meeting that he had seven days to challenge Varela's
refusal to take the breathalyzer examination. He also asserted that he told Varela that he may
have sufficient grounds for a show cause hearing because no one witnessed him driving Bergh's
truck that night. Contrary to prior statements that he made on the record and the admissions that
he made in his Answer, Clark later reversed course and testified that Varela never told him at
that meeting that he refused to take a breathalyzer examination because such a "critical issue"
would surely have been reflected in his notes.
C.      Clark Did Not Timely File a Request for a Show Cause Hearing with the Elmore
        County Magistrate Court On or Before June 6, 2005
        On or around May 31, 2005, Clark filed a plea of not guilty, responses to Miller's
discovery requests, and a motion to continue. Clark was served discovery on June 3, 2005, by
Miller. Clark never     submitted a request for a show cause hearing with the Elmore County
Magistrate Court on or before June 6, 2005, pursuant to I.C.        $ 18-8002(4).     Instead, Clark
mistakenly filed that request with the Idaho Transportation Departrnent C'ITD), allegedly on or
around June 6. 2005.
        On or around June 6, 2005, Varela called the ITD to veri$ the status of his license. He
was informed by ITD staff that his request for a show cause hearing had been sent to the ITD in
enor. Varel4 desperate to avoid a license    suspension, thereafter went to Clark's   office. Varela
testified that at that meeting Clark informed him that the request was properly submitted and
that, in any event, a hearing was irrelevant because his request had no merit.
        Clark testified that he never intended to request a show cause hearing, asserting that
Varela would lie on the stand and that he would be required to resign as counsel as a result. He
contends that he came to this conclusion after he received the police report from Miller when he
allegedly leamed that Varela admitted that he drove Bergh's truck while intoxicated and that his
case involved a refusal   to take a breathalyzer examination. Clark also testified that he called
Varela on June 3, 2005, to advise him that there were no grounds for the show cause hearing
based on a review      of the police report. Varela denies that Clark called him on that        day.
                                                 ?
Furthermore, the alleged call was not reflected         in any billing statement. Again,       Clark's
testimony contradicts his prior statements that he made on the record and the admissions in his
Answer, which generally assert that Clark initially believed Varela's claim had merit and that he
knew that Clark refused a breathalyzer examination.
        On June 10, 2005, Clark's former assistant, Joni Vann ('Vann"), faxed a letter dated June
6, 2005, to the ITD requesting a hearing on Varela's license suspension. The letter appeared to
be signed by Clark and set forth various grounds for the license suspension hearing. A notation
on the fax cover page indicated that it may be a duplicate request. Clark testified that he never
specifically authorized the ITD request. Instead, he contended that it was a standard form letter
that his staff was hained to automatically send as a stop-gap in all DUI cases. Varur was
generally authorized to sign letters for Clark and often signed his name on court filings and other

documents. Erin Rembert ("Rembert'), Clark's Office Manager, identified the signature on the
letter as Clark's signature.
        On that sarne day, Vann also faxed a copy of the letter that she previously sent to the ITD
to Miller, asserting on the fax cover page's remark section that the attached letter was sent "in
enor to the Idaho Transportation Departrnent on June         6."   The remark section of the fax cover
page further asked whether Miller would object to a show cause hearing even though Clark had

not requested a hearing with the Elmore County Magistrate Court. Miller responded on June 20,
2005, contending that "failure to properly present a request for a refusal hearing before the court
results in the court losing jurisdiction over the matter."
        Clark contends that the Jrme 10, 2005, request and letter sent to Miller were not expressly
or impliedly authorized by him, and that Vann sent them to Miller because she felt sony for
Varela. Clark testified that he will not take responsibility for either the letter or request because
Vann sent them on her own account. In his Answer, Clark admitted that he authorized the fax
and the letter.

D.      Clark Did Not Engage in Plea Negotiations with Miller
        In response to Varela's visit on June 6,2005, Clark agreed to plea bargain with Miller in
order to withdraw varela's license suspension because, at that time, varela's primary concern
was keeping his   job. clark testified   that he never spoke with Miller in order to pursue a plea
bargain because there was no legal cause for a refrrsal hearing. He firther stated that he did not
initially pursue a plea because Varela had a better chance of getting a favorable deal the longer
his case "languished."
E.     Varela's Retention of Egusquiza
       On June 20, 2005, Varela terminated Clark's representation and retained attomey
Mitchell Egusquiza ("Egusquiza") to represent him in this matter. Egusquiza filed a Notice of
Substitution of Auomey on June 28, 2005. Egusquiza thereafter filed a motion for a hearing
with regard to Varela's license suspension with the Elmore County Magistrate Court pursuant to
I.C. $ 18-8002, contending that Clark's enoneous frlings with the ITD were grounds for an
extension of the June 6,2005, deadline. The motion was denied on hiy 22,2005. Egusquiza
thereafter filed a motion to dismiss the criminal DUI charge on July 6, 2005. Varela eventually
entered a plea of guilty to the charge of Minor in Consumption. On July 22, 2005, the magistrate

court then entered a Judgment         of Conviction and an Order Suspending Valera's Driving
Privileges for 180 days begiruring on June 6, 2005. As a result of the suspension of his license,
Varela eventually lost his job.
F.     Clark Never Produced       a   Written   Fee Agreement   for His Representation of Varela
       On or around May 31, 2005, Varela paid Clark a $500 retainer fee for his representation.
Varela testified that Clark did not review the basis or rate of the fee with him, and that he does
not remember signing any fee agreement. He firther contended that, at that time, he understood
that the fee included Clark's representation for the license suspension hearing and the underlying
DUI charge. Varela also claimed that he did not know whether the fee was refirndable or
nonrefundable.
       Clark testified that Varela signed a nonrefimdable fee agreement and that the $500
retainer payment was earned upon receipt. Clark frrther contended that his staff prepared all fee
agreements and that Varela's fee agreement was           in   Varela's file, which he provided to
Egusquiza. Egusquiza testified that Varela's file did not include any fee agreement. Clark has
never produced a fee agreement relating to his representation of Varela. Clark asserts that he did

provide an example ofa typical fee agreement to Varela at one time.
       Rembert, who was not employed by Clark during his representation of Varel4 testified
that Clark prepared all fee agreements. Rembert opined that portions of Varela's frle may have
been discarded upon the suspension     ofClark's practice. In this vein,   she stated,   "[u]nfortunately,
after the office felt that a satisfactory response was given to the ISB in September 2005 on this
matter, records were discarded, including some that may have been helpful in this case." She
also opined that Varela's fee agreement existed because       it   was offrce policy that every client
must sign a written fee agreement.
         On July 19, 2005, by a formal letter prepared by Egusquiz4 Varela requested a refirnd     of
the retainer monies paid for Varela's "misgivings" with regard to Clark's handling of his case.
On July 22, 2005, Clark claimed that the fee was nonrefundable. He also requested further
elaboration of any of Varela's "misgtvings."
G,       Valera's Grievance
         On August 15,2005, Varela filed a complaint with the         ISB.   Egusquiza helped Varela
draft the grievance, gave him legal advice with regard to the grievance, and filed various letters
with the ISB in support of Varela's claim. Clark contends that Varela would have never filed the
grievance   if it were not for Egusquiz4 who   he contendb has deep animosity for him, which stems
from their interactions as opposing counsels in the Severson murder trial in Mormtain Home.
clark   asserts that Egusquiza is part   of the "good old boys network" of attomeys in Mountain
Home whereas he was tre "Lone Ranger." He claims that he closed his practice and was
eventually "forced out of town" because ofhis disagreements with the ' good old boys network."
        on August 26, 2005, the ISB       sent a letter to clark requesting a response to varela's
grievance. On September 2, 2005, Clark sent Varela a letter to the address that Varela listed on
the grievance offering an itemized statement and partial refrurd in the amount of $21g.75. The
lefter informed varela that he could pick up the refund at clark's office. on September 16,
2005, Clark sent another letter to the same address requesting that Varela make an appointrnent
to pick up his refirnd. Varela testified that he did not reply to Clark's September letters because
he did not want to speak to Clark or schedule an appointment.

       clark testified that he never refused to retum the unused portion of the $500 fee. He
claimed that he did not send a refund check to Varela by mail because his office had three
different addresses for Varela. He further asserted that he did not send the check to Egusquiza to
forward to Varela because he did not trust Egusquiza.
H.      The October 7th Affidavit
        In a letter dated october 7,2005, clark responded to varela's grievance. The letter
included a backdated billing statement, a copy of the backdated refund check issued to Varel4
and a proposed afEdavit ('the   Affidavif).   The copy of the refrrnd check was written by clark to
Mateo Varela, dated June 5th, 2005. When asked why he sent a copy of a check to the ISB
instead of the original check, Clark stated, "Well, somebody could have corrected me on that,
and I would have been happy to send it again." The billing statement and the check included a

$37.50 charge for a phone call from Varela on June 21, 2005, before any refund was requested,
but after the check was purportedly written. Clark testified that his staff must have mistakenly
prepared the backdated billing statement and check.

        The letter stated that the Affidavit was to be presented to Varela "for him to review and
sign, which if he does might prevent him from being sued for libel and slander." It further asked
the ISB to advise him     if Varela refused to sign the Affidavit,      so he could consider legal action.

The Affrdavit consisted of statements that were intended to suggest that Clark did not err in his
representation of Varela and that the grievance was prepared by Egusquiza.
        Clark claims that the Affrdavit is simply a demand letter containing only true statements
created to provide Varela with an opportunity to conect the record in order to avoid a lawsuit            for
libel or slander. In this vein, Clark stated that the Affidavit is "[a] threat in the           sense that

[Varela] should tell the truth. If he's telling the truth, there's no threat." He elaborated, "[m]y
intention [in sending the Affidavit] would be to try to motivate him to tell the truth            -   to say,
'You know what? There's consequences for ruining            a person's career based on false statements.

There should be consequences for        that."' He frrther    stated,   'I   considered what my   full legal
authority was and what it is to do, and I still believe I have absolutely [sic] legal authority under
the Constitution of the State and the United States to threaten somebody to sue, and that's
exactly what the case law says      I   have the right to   do."   Varela refused to sign the Affrdavit
because he claimed the statements in      it were not true. He   also contended that he would not have

filed a grievance with the ISB had he known that he could get sued for libel or slander.
        On or around May of 2010, Varela called Clark to reiterate his request for a refund.
Thereafter, Clark sent Varela a refirnd check in the amount of$218.75. Clark discontinued his
practice in 2006,   afi   his license to practice law was placed on affrliate status in February of
2010. Clark   is now a    full time farmer, and he contends that he has no intention of practicine law
in ldaho in the future.
        The ISB filed its Complaint on May 20 , 2009 . Clark filed his Answer on Jrliy 22, 2O09 .
On March 10, 2010, Clark filed a Motion to Dismiss the Complaint. On April 9, 2010, the
Hearing Committee entered         its Order Denying Clark's Motion to Dismiss the              Complaint.
Thereafter, the Committee issued its Finding of Fact, Conclusions of Law, and Recommendation
on April 7,2011, holding that Clark violated I.R.P.C. 1.2, 1.3, 1.5(b),   l.l6(d), and 8.a(d). Clark
then timely frled his Notice of Appeal on April 27 ,2011.
                                      UI. IssuEs oN APPEAL
1.      Whether Clark's due process rights were violated by the delay in filing the Complaint?
2.      Whether the Committee's decisions that Clark violated I.R.P.C. 1.2, I .3, 1.5(b) and
        I . 16(d) are supported by clear and convincing evidence?

3.      Whether the Committee's decision that Clark violated I.R.P.C. 8.4(d) infringed Clark's
        First Amendment rights and is suppoded by clear and convincing evidence?
4.      Whether the Committee's decision with regard        to   sanctions   is clearly eroneous or
        arbitrary and capricious?
                                    IV.   STANDARD oF REvrEw

        In an attomey discipline matter, this Court will examine the hearing committee's decision
to determine if it is clearly erroneous or arbitrary and capricious. Idaho State Bar v. Everard,
142ldaho I09,    ll2,   124 P.3d 985, 988   (2005). "The misconduct must be proven by clear and
convincing evidence." Wilhelm v. Idaho State Bar, 140 Idaho 30, 34, 89 P.3d 870, 874 (2004).
The disciplined attomey bears the burden of establishing that the evidence does not support the
                                                             22,25,28 P.3d 363,
hearing committee's findings. Idaho State Bar v. Frazier,l36 Idaho
366(2001)(citingldahoStateBarv.Twty,l28ldaho794,797,9l9P.2d323,326(1996)). Itis
ultimately the responsibility of this Coufi to assess facts and to determine appropriate sanctions.
Idaho State Bar v. Gantenbein,l33 Idaho 316,319,986 P.zd 339,342 (1999); Frazier,l36
Idaho at 30, 28 P.3d, at 371   .


                                            V. ANALYSF
A.     Clark's Due Process Rights Were Not Violated by the ISB's Delay in Filing the
       Complaint
       Clark asserts that his due process rights were violated by the ISB's delay in filing the
Complaint. Clark further contends that the Findings of Fact, Conclusions of Law,                and
Recommendation was filed in violation of I.B.C.R. 509(dX6). With marginal elaboration, Clark
also invites this Court to rule on all the relevant issues presented in his prior submissions,
including the denial of his Motion to Dismiss.
       Clark initially responded to Varela's Grievance on October 7, 2005. Clark points out that
he received no further correspondence ftom the ISB until       it filed the Complaint on May     20,
2009, after he closed his practice and allegedly destroyed portions of Varela's frle even though
he never received a final disposition from the ISB regarding its investigation into this matter.
Considering Clark's prior disciplinary history, it is likely that he knew that an investigation into a
grievance is not officially closed until he receives a final disposition letter from the                 ISB. As a
result, any loss of exculpatory evidence on the part of Clark regarding the destruction of Valera's
file is wholly of his own making. Furthermore, this Court recognizes that it is quite curious how
Clark has the ability to produce those portions of Varela's file that suit his needs in this action.
             In attomey discipline cases, this Court held that a proponent must show that a delay in
filing   a   complaint hindered an attomey's ability to defend himself or herself. Everard,l42 Idaho
ar 116, 124 P.3d at 992. There is no proof in this case that the delay hindered Clark's ability to
defend himself or was intended to gain an unfair tactical advantage. In fact, the delay is mostly
attributable to Clark, not the       ISB. During the time        between when Clark frled his response to
Varela's grievance and the filing of the Complaint, the ISB had the daunting task of investigating
five other grievances filed between October of 2003 and January of 2006 against Clark by his
former clients. All of those grievances were investigated separately, but also together                  a.s;   a group

to determine if they presented a pattem of misconduct as per standard ISB procedure. Four of
those grievances were concluded with private reprimands.l Varela's grievance resulted in formal

charges, while the remaining grievance was dismissed by final disposition                      letter.   Therefore,
Clark's due process rights were not violated.
             With regard to Clark's contention that the ISB violated I.B.C.R. 509(dX6), that rule
provides the general procedure for disciplinary proceedings. Formal charge proceedings, as in
this case, are govemed by I.B.C.R. 511(hxl), which reads in relevant part:
             (l)Semice on Parties. The Hearing Committee shall send to the Clerk, who shall
             serve upon   all parties, the findings fact, conclusions
                                                              of                   law and  of
             recommendations within 28 days following the conclusion of the hearing.
Idaho Bar Commission Rule 511(hxl) must be read in context with I.B.C.R. 525(D, which states
in relevant part:
             (i) Time Requirements. Except as is otherwise provided in these Rules, the time in
             which any act or any thing is to be done or performed is not jurisdictional.
Therefore, Clark's claim that the Committee violated I.B.C.R. 509(dX6) is without merit.




 ' From July 23, 2004 to Fetrtla'ry 26,2009, Clark was issued five private reprimands, which this Court considered in
this Ooinion.
       As for Clark's invitation for this Court to rule on all the relevant issues presented in his
prior submissions, this Court will not search the record on appeal for unspecified enor.          See   Bach
v. Bagley, 148 Idaho 784,790,229 P3d 1146, 1152 (2010). To the extent that Clark requests
that this Court consider the denial of his Motion to Dismiss with regard to his invitation that this
Court rule on all the relevant issues presented in his prior submissions, this Court               will   not
address that denial because   it is not   an appealable   order. See I.A.R. l1(a).
B.     The Comnittee's Decisions that Clark Violated I.RP.C. 1.2,1.3,1.5(b), and 1.16(d)
       Are Supported by Clear and Convincing Evidence
       The Committee determined that that there is clear and convincing evidence establishing
that Clark violated I.R.P.C. 1.2, 1.3, 1.5(b), and        l.l6(d).   Clark contends that these decisions are
not supported by clear and convincing evidence. For the reasons that follow, this Court holds
that the Committee's decisions are supported clear and convincing evidence and are not clearly
erroneous or arbitrary and capricious.

        l.   The Committee's Decisions that Clark Violated I.R.P.C. 1.2 and I .3 Are Supported by
             Clear and Convincing Evidence
        The Committee held that there was clear and convincing evidence establishing that Clark
violated I.R.P.C. 1.2 and 1.3 because he did not diligently pursue his client's objectives by filing
a request for a show cause hearing and plea bargain with Miller. Clark contends that the
Committee's decisions that Clark violated I.R.P.C. 1.2 and 1.3 are not supported by clear and
convincing evidence because filing the request for a show cause hearing would have required
him to pursue a frivolous claim without merit in law or fact.
        Idaho Rule     of   Professional Conduct 1.2 addresses               the scope of an      attomey's
representation ofhis or her client. It states in relevant part:
         (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions
        conceming the objectives of representation and, as required by RuIe 1.4, shall
        consult with the client as to the means by which they are to be pursued. A lawyer
        may take such action on behalf of the client as is impliedly authorized to carry out
        the representation. A lawyer shall abide by a client's decision whether to settle a
        matter. In a criminal case, the lawyer shall abide by the client's decision, after
        consultation with the lawyer, as to a plea to be entered, whether to waive jury trial
        and whether the client will testiff.
Idaho Rule of Professional Conduct 1.3 states that "[a] lawyer shall act with reasonable diligence
and promptness in representing a client."




                                                     l0
         Clark did not abide by Varela's decisions conceming the objectives of representation and
whether to settle the matter. Clark does not dispute that Varela sought his representation
primarily for the purpose of avoiding the suspension of his driver's license in order to keep his
job.    Clark initially told Varela that a request for a show cause hearing had            merit.   He

enoneously filed that request with the ITD on two separate occasions even though he now claims
it   was frivolous. Instead   of being   honest with his client and remedying the situatioq Clark
manufactured an excuse after the fact and later lied to Varela and, eventually, the Committee
during his testimony, which contains many contradictions to his admissions in his Answer and
his statements that he made on the record. When Varela requested that Clark plea bargain with
Miller in an effort to avoid the suspension ofhis license and keep hisjob, Clark never engaged in
any plea bargaining with Miller even though he assured Varela that he would. As a result of
Clark's deceit, Varela lost his right to appeal the suspension ofhis license and hisjob.
         In his briefs and during oral argument, Clark relies primarily on his contention that filing
a show cause hearing with the Elmore County Magishate Court would be frivolous and that he
should not be punished for mistakenly filing that request with the     ITD.   Regardless of Clark's
contentions, it is readily apparent that the Committee's decision was not wholly dependent on
Clark's erroneous filings with the ITD. Attomeys are human beings who make mistakes; it is
part of the profession. In some cases, it is what an attomey does after a mistake that defines him

or her, ethically. In this vein, the Committee was more concemed with Clark's conduct after his
elroneous filings when it rendered its decision. The Committee considered the contradictions in
Clark's testimony, his inability to recognize the serious nature of these proceedings and to
concede facts and issues that were not       in dispute, and his constant shifting of blame to his
support   staff. Thus, the fact that Clark made an erroneous frling with the ITD was only one
factor that the Committee considered, and it seems that this was merely a marginal consideration.
Had Clark simply been honest with his client, admitted to his mistake and attempted to plea
bargain with Miller, this matter would likely not have proceeded as it has to this point.
         With regard to Clark's claim that filing a request for a show cause hearing is frivolous,
Clark's assertion is preposterous because he filed that request with the ITD on two          separate

occasions and later sent a fax    to Miller requesting a jurisdictional waiver. Although Clark
testified that he did not authorize the June lOth fax or letter, this Court is not convinced that



                                                  ll
Vann took it upon herself to negotiate with       Miller.   Regardless, in Clark's Answer, he admits
that he authorized that fax and letter.
        Clark contends that this Court should consider his assedion that he is now a firll time
farmer who has no intention of ever practicing law in Idaho agair; and that upholding the
Committee's decision will tamish his reputation as a farmer. Clark's assertion that he does not
intend to practice law is inelevant because he could seek reinstatement to active status at any
time. The record    is replete with fabricated documents, contradictions and flat out lies, which the

Committee considered when it rendered its decision.            If Clark's   reputation is tamished,   it will
simply be due to his conduct. The Committee's decisions that Clark violated I.R.P.C. 1.2 and
1.3 are supported by clear and convincing evidence and are not clearly enoneous or arbitrary and

capricious.
        2.    The Committee's Decisions that Clark Violated I.R.P.C. 1.5ft) and              I.I6d)     Are
              Supported by Clear and Cowincing Evidence
        The Committee held that there is clear and convincing evidence establishing that Clark
violated I.R.P.C. 1.5(b) and 1.16(d) because Clark did not properly communicate the scope ofhis
representation and the basis or rate of the fee to Varel4 did not enter into a written fee agreement
with Varelq failed to promptly refi.md any advance payment of the uneamed portion of the fee,
and failed to pay interest on the uneamed portion               of the fee. Clark contends that the
Committee's decision that he violated I.R.P.C. 1.5(b) and 1.16(d) are not supported by clear and
convincing evidence because he commruricated the scope of his representation and the basis or
rate of the fee to Varela via a contemporaneous billing statement. He also contends that Varela
did sigt a written fee agreement and that he did timely attempt to retum the remaining uneamed
portion of the fee, which was documented in the copy of the purported refund check sent to the
ISB.
        Idaho Rule of Professional Conduct 1.5(b) states:
        The scope of the representation and the basis or rate of the fee and expenses for
        which the client will be responsible shall be communicated to the client,
        preferably in writing, before or within a reasonable time after commencing the
        representation, except when the lawyer will charge a regularly represented client
        on the same basis or rate. Any changes in the basis or rate of the fee or expenses
        shall also be communicated to the client.
Idaho Rule of Professional Conduct 1.16(d) addresses the termination of representation by a
lawyer or his or her client or potential client, and states:


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       Upon termination     of  reprcsentation, a lawyer shall take steps to the extent
       reasonably practicable to protect a client's interests, such as giving reasonable
       notice to the client, allowing time for employment of other counsel, surrendering
       papers and property to which the client is entitled and refunding any advance
       payment of fee or expense that has not been earned or incurred. The lawyer may
       retain papers relating to the client to the extent permitted by other law.
       This Court holds that Clark did not effectively communicate the scope of his
representation or the basis or rate of his fee to Varela. Varela testified that he was not aware of
the basis or mte of fee or the scope of Clark's representation of       him. As   mentioned before,
Clark's actions with regard to his representation of Varela are contradictory. Clark knew
Varela's primary objective in hiring him was to keep his driver's license and job, yet Clark acted
contmry to his client's objectives and was not truthful with him throughout his representation.
The record establishes that Clark never effectively communicated his strategy to Varela and that
he made decisions on his own account, without considering Varela's interests.

       Varela does not remember signing any written fee agreement. Egusquiza testified that
Clark never provided any fee agreement         in   Varela's   file.   Clark has been given ample
opportunity to produce Varela's fee agteement. lnstead of producing it, he now shifts blame to
his support staff, who he contends generally handled those matters, even though Rembert
testified that Clark prepared all the fee agreements for his clients. In the altemative, Clark
contends that Varela's fee agreement may have been destoyed when he closed his practice or
that Egusquiza fraudulently concealed the fee agreement in an effort to discredit          him.   As
mentioned before, Clark knew that the investigation ofVarela's grievance was never closed. As
a result, he should have taken steps   to preserve Varela's fee agreement if it ever existed, which
this Court recognizes that it likely did not exist. Therefore, his claims are without merit.
       Clark's actions are inconsistent with his assertion that the fee was nonrefundable. ln July
of2005, Clark initially responded to Varela's request for   a refund   by asking why he was entifled
to a "non-refundable fee;" but, after Varela filed his grievance, Clark reversed course and wrote
two letters to Varela asking him to pick up his partial refund check at his office along with a
backdated itemized statement. Therefore, this Court holds that Clark was required to refund the
uneamed portion   ofthe fee.
       Contrary to his prior assertion, Clark never produced a reflmd check to the ISB to be
forwarded to Varela. Instead, Clark provided only a copy        ofa refund   check written to Varela.

The check was clearlv backdated to June 5. 2005, before Clark was terminated from his

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representation, which calls into question the legitimacy      of that check. When Clark         did
eventually refund the uneamed portion of the fee, nearly five years after Varela made his initial
request   for a refund, Clark did not include interest. Therefore, this Court holds that        the

Committee's decisions that he violated I.R.P.C. 1.5(b) and 1.16(d) are supported by clear and
convincing evidence and are not clearly erroneous or arbitrary and capricious.
C.        The Committee's Decision that Clark Violated I.R.P.C. 8.4(d) Did Not Infringe
          Clark's First Amendment Rights and Is Supported by Clear and Convincing
          Evidence
          The Comrnittee held that there was clear and convincing evidence establishing that Clark
violated I.R.P.C. 8.4(d) by engaging in conduct that is prejudicial to the administration ofjustice
because he made false statements       to the ISB in   response   to Varela's grievance that   were

inconsistent with the admitted exhibits and testimony and because he threatened Varela in the
Affidavit in order to persuade him to withdraw his grievance. Clark contends that the
Csmmittee's decision that he violated LR.P.C. 8.4(d) violated his First Amendment right to
defend himself against false statements made by clients or former clients. He also asserts that
the Committee's decision that he violated I.R.P.C. 8.4(d) is not supported by clear and
convincing evidence.
          Clark has no First Amendment right to threaten his former client with a lawsuit. Clark
does not provide any convincing argument or authority with regard to this issue. Clearly, the
Affidavit was intended to pressue Varela into recanting his allegations of misconduct, which
this Court recosrizes as conduct prejudicial to the administration of justice. Clark admits that
the Affrdavit was indeed a "threat." The fact that Clark sent the Affidavit to the ISB is
inapposite because Clark requested that it be forwarded to Varela for his signature. Furthermore,
Clark made false statements to the ISB in response to Varela's grievance. Clark's testimony, the
admitted exhibits, and Clark's prior statements and responses to Varela's grievance are replete
with contradictions and fabrications. Therefore. the Committee's decision that Clark violated
I.R.P.C. 8.4(d) is supported by clear and convincing evidence and is not clearly erroneous or
arbitrary and capricious.
D.        The Committee's Recommendations With Regard to Sanctions Is Approved
          In reviewing the recommendations of the Committee with regard to sanctions, this Court
deterrnines   if the sanctions are clearly erroneous or arbitrary and capricious. "This Court must
consider the nature    of the violations, mitigating and aggravating   circumstances, the need to

                                                 l4
protect the public, the courts and the legal profession, and the moral frtness of the attomey." See
Idaho State Bar v. Sotna, l42 ldaho 502,506, 129 P.3d 1251, 1255 (2006). Because ofthe
reasons mentioned       in   the previous sections, this Court holds that the         Committee's
recommendation with regard to sanctions is not clearly erroneous or arbitrary and capricious.
Therefore, this Court adopts the Committee's recommendations in their entirety including, but
not limited to, the following terms and conditions.
         Clark is suspended from the practice of law in Idaho for a period of three (3) years.
Eighteen (18) months of his suspension is withheld upon Clark being granted permission to
transfer his license from affiliate to active status under the applicable Idaho Bar Commission
Rules.
         Before Clark is eligible for transfer or reinstatement to active practice in Idaho, he must
receive approval pursuant to LB.C.R. 304, 305, and 518(b). Prior to transfer to active status or
reinstatement, he must also demonstrate that he fully complied with the requirements of I.B.C.R.
516 and 517 and that, during the time between the issuance of this Opinion and Clark's transfer
or reinstatement, he passed the Multistate Professional Responsibility Exarnination. Clark is also

required to reimburse the ISB for the costs associated with this appeal and the underlying
proceedings, and he must pay Varela $109.37, which reflects the interest due with regard to the
uneamed portion of the fee.

         Upon any transfer or reinstatement to active status, Clark shall be placed on a period   of
probation for three (3) years upon the following terms and conditions:
         (l) If Clark
                    is found to have violated any Idaho Rule of Professional Conduction
            for which a sanction is imposed for any conduct that occuned between the
            date of Clark's suspension through the period of his probation, then the
            withheld suspension shall be immediately imposed.

         (2) Clark must conduct his practice in a manner so as to avoid grievances or
             complaints being submifted to the Board. Recognizing that such grievances or
             complaints are beyond the control of an attomey, he must also frrlly cooperate
             with the ISB in any investigation into such matters.

         (3) As a condition   of Clark's  reinstatement and probation, he is required to
            maintain errors and omissions legal malpractice insurance during the
            probationary period, providing at least $ 100,000/$300,000 coverage in a form
            and subject to the conditions that the ISB determines is appropriate.
                                           VI. CoNcLUsroN


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       Clark's due process and First Amendment rights were not violaied. Furthemrore, the
Committee's decisions regarding I.RP.C. 1.2, 1.3, 1.5(b), 1.15(d), and E.4(d) are supported by
clear and convincing evidence and are not clearly erroneous or arbitrary and capricious. This
Court affrmrs the Committ€e's Findings of Fact Conclusions of Law, and Recommendation, and
adopts the Committee's recommendation with regard      to sanctions. Neither party   requested

attorney's fees. Costs are awarded to the ISB.
       Chief Jnstice BURDICK, Justices EISMANN, J. JONES and Justicepro temKIDWELL
CONCUR.




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