Idaho State Bar v. Clark Clerk's Record v. 2 Dckt. 38792

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Idaho State Bar v. Clark Clerk's Record v. 2 Dckt.38792

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Idaho State Bar v.

Jay P. Clark ISB Case No. FC 09-05

Volume II Pages 257-552

Bradley G. Andrews Bar Counsel Idaho State Bar P. O. Box 895 Boise, ID 83701 (208) 334-4500 ISB No. 2576

JAN 1 8 2011

BEFORE THE PROFESSIONAL CONDUCT BOARD OF THE IDAHO STATE BAR

IDAHO STATE BAR,

Plaintiff,

v.

JAY P. CLARK,

Respondent.

) ) ) ) ) ) ) ) ) ) )

Case No. FC 09-05

PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW & RECOMMENDATION

The Hearing Committee of the Professional Conduct Board ("Committee") conducted a

hearing on December 2 and 3, 2010. Based upon its review of the record before the Committee,

the Committee recommends to the Idaho Supreme Court that Respondent be suspended from the

right to practice law in the State of Idaho, as further described herein. That recommendation is

based upon the following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

Procedural Background

1. On May 20, 2009, Plaintiff filed its Complaint. On July 22, 2009, Respondent

filed his Answer to the Bar Complaint ("Answer").

Proposed Findings of Fact, Conclusion of Law & Recommendation - 1 257

2. On or about March 10, 2010, Respondent filed his Motion to Dismiss Complaint.

On April 1, 2010, Plaintiff filed Plaintiff's Opposition to Respondent's Motion to Dismiss

Complaint (Filed Under Seal). The Committee heard argument on Respondent's Motion to

Dismiss on April 8, 2010. On April 9, 2010, the Committee entered its Order Denying

Respondent's Motion to Dismiss.

3. Prior to the hearing, Plaintiff and Respondent resolved the allegations contained in

Count One of the Complaint to the satisfaction of both parties. Consequently, the hearing was

conducted on the allegations contained in Counts Two through Five of the Complaint. At the

hearing, the following exhibits were admitted, primarily by stipulation: Plaintiff's Exhibits 40

through 89, and Respondent's Exhibit L, N, and O. The hearing was reported by M & M Court

Reporting Service and a transcript of the hearing constituting 480 pages was prepared. Mateo

Varela and Mitchell Egusquiza testified on behalf of Plaintiff at the hearing. Respondent Jay

Clark, Chris Melgaard and Erin Rembeli testified on behalf of Respondent. Mr. Egusquiza

testified on rebuttal for Plaintiff.

Facts as Admitted or Established at Hearing

4. The Complaint and the Answer establish a number of admissions of fact, identified

by reference to the paragraph of the Complaint and the Answer. Additional facts were presented

at hearing and are identified by reference to the hearing transcript or respective exhibit.

5. Jay P. Clark, hereinafter referred to as "Respondent," was admitted to the practice

of law in the State of Idaho in 1996, at which time he took the oath required for admission,

wherein he agreed to abide by and follow the Idaho Rules of Professional Conduct as adopted

and amended by the ISB and the Rules of the Idaho Supreme Court. At all times mentioned


herein, Respondent has continuously been a member of the ISB under the jurisdiction of the

Idaho Supreme Court. (Complaint ~ 1, and Answer ~ III).

6. The Supreme Court of the State of Idaho has approved and adopted the Idaho

Rules of Professional Conduct, governing the ethical conduct of attorneys licensed to practice in

the State of Idaho, which Rules were in effect at all times relevant herein. (Complaint ~ 2, and

Answer ~ III).

7. On May 28,2005, Mateo Varela was cited with driving while under the influence

of alcohol. Mr. Varela was not physically inside the vehicle he was accused of driving at the

time of his arrest. According to the Mountain Home Police Department incident report, Mr.

Varela was intoxicated and had the keys to the vehicle in question. Mr. Varela initially denied

driving the vehicle, but later told the officer, "Take me, I drank and drove home." Mr. Varela

failed the field sobriety tests. He refused the breathalyzer test and was served a Notice of

Suspension for Failure of Evidentiary Testing ("Notice of Suspension"). (Complaint ~ 26, and

Answer ~ III).

8. Mr. Varela was also served an Idaho Uniform Citation ("Citation"), which

referenced his refusal to take the breathalyzer test. (Exhibit 40, p. 9).

9. The Notice of Suspension stated that pursuant to Idaho Code § 18-8002, Mr.

Varela's Idaho driver's license would be suspended for refusal to submit to an evidentiary test

for alcohol concentration offered by the arresting officer. The Notice of Suspension also stated

that "[Mr. Varela had] the right to submit a written request within seven (7) days to the Elmore

County Magistrate Court for a hearing to show cause why [he] refused to submit to or complete

evidentiary test and why [his] driver's license should not be suspended." Therefore, the request

for hearing was to be submitted to the Elmore County Magistrate Court ("Court") no later than


June 4, 2005. However, because June 4, 2005 was a Saturday, the request was to be submitted

by Monday, June 6, 2005. (Complaint ~ 27, and Answer ~ III).

10. On May 31, 2005, prosecutor Phil Miller filed a misdemeanor DUI charge against

Mr. Varela. (Exhibit 67). He also filed the arresting officer's Affidavit of Refusal to Take

Alcohol Test and Affidavit of Probable Cause for .Arrest. (Exhibits 41 and 43).

11. Also on May 31, 2005, Mr. Varela retained Respondent to represent him in the

DDI case. Mr. Varela informed Respondent that he did not want to lose his driver's license and

therefore wanted to request a show cause hearing before the Court. (Complaint ~ 28, and

Answer ~ III).

12. Mr. Varela testified that he brought the Citation to the May 31,2005 meeting with

Respondent and informed Respondent that he had refused the breathalyzer test. (Transcript p. 47

(hereinafter Tr.)). He testified that Respondent agreed to request a hearing based on the refusaL

(Tr. pp. 47-49).

13. In his October 2005 response to Bar Counsel, Respondent stated that he explained

to Mr. Varela during their May 31,2005 meeting that the Notice gave Mr. Varela seven days to

challenge the refusal. (Exhibit 76, p. 2). He stated that he also inforined Mr. Varela during that

meeting that he may have sufficient grounds to challenge the refusal based on Mr. Varela's

statement that he was not driving at the time of arrest. (Id.)

14. At hearing, however, Respondent testified that he was not aware during the May

31,2005 meeting that Mr. Varela's case involved a refusal and stated that such a "critical issue"

would have been reflected in his meeting notes. (Tr. p. 200).

15. On or around May 31, 2005, Mr. Varela paid Respondent a $500 retainer fee. (Tr.

pp. 49-50). Mr. Varela testified that he did not review or sign a fee agreement for Respondent's


services and understood at the time that the $500 fee included Respondent's representation for

the license suspension hearing and underlying DUI charge. (Tr. pp. 49-50, 97, 107).

16. Respondent testified that Mr. Varela signed a fee agreement that stated the $500

retainer fee was a nonrefundable payment earned upon receipt. (Tr. pp. 218-220, 233-234,283).

He testified that his staff prepared all fee agreements for clients and that Mr. Varela's fee

agreement would have been included in the file his office sent to Mr. Varela's substitute counsel,

Mitchell Egusquiza. (Tr. pp. 218-220, 283-284).

17. Mr. Egusquiza testified that the file he received from Respondent did not include

any fee agreement. (Tr. p. 407).

18. Respondent's fonner assistant, Erin Rembert, testified that Respondent, not his

staff, prepared all fee agreements for clients. (Tr. pp. 402-403).

19. On May 31, 2005, Respondent filed, on Mr. Varela's behalf, a plea of not guilty

and discovery requests. (Complaint ~ 29, and Answer ~ III).

20. On June 3, 2005, Respondent received discovery responses from Mr. Miller.

(Exhibit 47). A Notice of Service indicating that the discovery responses were hand-delivered to

Respondent was filed with the Court at approximately 3:30 p.m. on June 3,2005. (Exhibit 79, p.

3).

21. In his October 2005 response to Bar Counsel, Respondent stated that he informed

Mr. Varela on June 3, 2005, that the Court would not find sufficient grounds for the refusal

because Mr. Varela had admitted to driving while intoxicated. (Exhibit 76, p. 3). He stated that

he informed Mr. Varela that if they proceeded to hearing, Mr. Varela would be required to

perjure himself and Respondent would be required to withdraw. (Id.)


22. Respondent testified that he called Mr. Varela on June 3, 2005, to discuss the

contradictory statements reflected in the police report and to advise Mr. Varela that he had "zero

chance" of winning at a hearing on the license suspension. (Tr. pp. 205-206, 230).

23. Mr. Varela denied that Respondent called him or otherwise communicated with

him on June 3, 2005. (Exhibit 79, p. 1, Tr. p. 91). Respondent's billing statement did not reflect

a telephone call to or from Mr. Varela or an office conference with Mr. Varela on June 3, 2005.

(Exhibit 76, p. 5).

24. Respondent failed to submit a written request for a show cause hearing to the

Court by June 6, 2005. (Complaint ~ 29, and Answer ~ III).

25. Mr. Varela subsequently lost his job because he did not have a valid driver's

license. (Tr. p. 65).

26. On June 6, 2005, Mr. Varela called the Idaho Transportation Department ("ITD")

to verify the status of his driver's license. (Tr. pp. 52-53). He was informed that his request for

a hearing had been sent to the ITD in error because the request should have been filed with the

Court. (Id.) Mr. Varela testified that he then called Respondent, who informed him that the

request was properly submitted to the ITD and that, in any event, a hearing was irrelevant

because Mr. Varela's case was without merit. (Tr. pp. 54-55). On that day, Mr. Varela reiterated

his request for a hearing. (Tr. p. 55).

27. Respondent acknowledged that he spoke with Mr. Varela about his case on June

6,2005. (Tr. p. 230). He testified that he informed Mr. Varela that he could still file the hearing

request that day but Mr. Varela lacked grounds to challenge probable cause. (Tr. pp. 210-212).

He testified that Mr. Miller still had authority at that time to withdraw the license suspension in

exchange for a guilty plea to the DUI charge. (Tr. pp. 222-223, 292-293). He testified that he


informed Mr. Varela that he would talk to Mr. Miller and attempt to "cut a deal" because

keeping the driver's license was important to Mr. Varela. (Tr. p. 223). Respondent testified that

when he spoke with Mr. Miller within a few days of his discussion with Mr. Varela, Mr. Miller

was not receptive to withdrawing the suspension in exchange for a DUI plea. (Tr. pp. 224-225).

Respondent also testified, however, that he never spoke with Mr. Miller at any time after June 6,

2005, to pursue a plea offer. (Tr. pp. 226, 292-293). He indicated during his testimony that

although he told Mr. Varela that he would contact Mr. Miller about a plea offer, he did not do so

because Mr. Varela had a better chance of obtaining a favorable plea deal the longer his case

"languished." (Tr. p. 226).

28. In his October 2005 response to Bar Counsel, Respondent stated that Mr. Varela

came to his office the week of June 6, 2005, and was "desperate" to avoid the license suspension

because he would lose his job. (Exhibit 76, p. 3). He acknowledged that his office had already

submitted a hearing request to the ITD as standard procedure. (Id.) Respondent stated that he

agreed to talk to Mr. Miller about withdrawing the suspension in exchange for a guilty plea to the

DUI charge. (Id.) He stated, however, that no such offer was made by Mr. Miller in Mr.

Varela's case. (Id.)

29. On June 10,2005, Respondent's former assistant, Joni Vann, faxed a letter to the

lTD requesting a hearing on Mr. Varela's license suspension. (Exhibit 86). The letter, dated

June 6, 2005, appeared to be signed by Respondent and set forth various grounds for the license

suspension hearing. (Exhibit 86, pp. 2-5). In a notation on the fax cover page, Ms. Vann

indicated that the letter may be a duplicate request. (Exhibit 86, p. 1).

30. Respondent testified that the ITD letter was a "fonn letter" that his staff was

trained to send as a "stop gap" in all DUI cases. (Tr. p. 213). He testified that Ms. Vann signed


his name on the letter, which he had not seen at any time prior to the hearing. (Tr. pp. 216-217,

244-247). He testified that he did not sign or authorize the letter and suggested that someone had

obtained the letter from his original file without his knowledge. (Id.) The letter, which served

no purpose in Mr. Varela's license suspension matter, was provided to Plaintiff by the ITD.

31. At hearing, Respondent's former assistant, Erin Rembert, identified the signature

on the ITD letter as Respondent's signature. (Tr. p. 399).

32. Also on June 10, 2005, Respondent faxed to Mr. Miller a copy of the letter he had

""'fitten to ITD. On the fax cover sheet, Respondent stated that the attached letter requesting a

hearing on Mr. Varela's license suspension was sent "in error to the Idaho Transportation

Department on June 6, 2005." Respondent asked whether Mr. Miller would object to a hearing

even though Respondent had not requested a hearing with the Court. (Complaint ~ 30, and

Answer «J III).

33. Despite his admission in the Answer, Respondent testified at hearing that Ms.

V ann sent the June 1 0, 2005 letter to Mr. Miller without his knowledge or authorization. (Tr. pp.

270-271,273-275).

34. On June 20, 2005, Mr. Miller responded to Respondent's request that he consent

to a hearing. Mr. Miller stated that "failure to properly present a request for a refusal hearing

before the court results in the court losing jurisdiction over the matter." Mr. Miller did not agree

to waive the jurisdictional requirement. (Complaint ~ 31, and Answer ~ III).

35. Respondent admitted that he did not initiate plea negotiations with Mr. Miller in

an effort to have Mr. Varela's license suspension terminated after receiving Mr. Miller's June 20,

2005 letter. (Ir. pp. 272, 333).


36. Shortly after June 20, 2005, Mr. Varela terminated Respondent's representation

and retained attorney Mitchell Egusquiza. On June 28, 2005, Mr. Egusquiza filed a Notice of

Substitution of Attorney. On July 6, 2005, Mr. Egusquiza filed a Motion for Hearing ("Hearing

Motion") in Elmore County requesting a hearing pursuant to Idaho Code § 18-8002 to detemline

whether Mr. Varela's license should be suspended for refusal to submit to an evidentiary test for

alcohol concentration. (Complaint 1 32, and Answer 1 III).

37. Mr. Egusquiza testified that he filed the Hearing Motion in an effort to "realign"

Mr. Varela's case after Respondent failed to file a timely hearing request with the Court. (Ir. p.

130). If the COUl1 had granted the Hearing Motion, Mr. Egusquiza testified that he planned to

question the arresting officer about the circumstances of Mr. Varela's arrest, including whether

the officer or any witnesses actually observed Mr. Varela in actual physical control of the vehicle

while under the influence. (Ir. pp. 130-132). Contrary to Respondent's statements, Mr.

Egusquiza testified that Mr. Varela would not have been required to testify as a witness if a

license suspension hearing had been granted and Mr. Egusquiza did not anticipate calling Mr.

Varela as a witness. (Ir. pp. 132-133).

38. On July 19,2005, Mr. Egusquiza sent Respondent a letter stating that Mr. Varela

requested a refund of the $500 retainer fee based on "misgivings" about Respondent's handling

of the criminal case. (Exhibit 68).

39. On July 22, 2005, the Court denied Mr. Egusquiza's motion for a hearing on Mr.

Varela's license suspension. The motion was denied because a hearing had not been requested

by June 6, 2005, pursuant to Idaho Code § 18-8002. The Court also ordered the suspension of

Mr. Varela's driver's license and all driving privileges for 180 days. (Complaint 1 33, and

Answer 1 III).


40. Also on July 22, 2005, Respondent sent Mr. Egusquiza a letter asking him to

explain Mr. Varela's "misgivings" and why Mr. Varela would be entitled to a refund of a "non

refundable fee." (Exhibit 69).

41. At hearing, Respondent testified that he never refused to return the unused portion

of his $500 fee. (Tr. pp. 282, 312, 318).

42. On August 15, 2005, Mr. Varela filed a grievance against Respondent. (Exhibit

70). He stated that after ITD informed him that Respondent filed his hearing request with the

wrong entity, he called Respondent and was informed that the request was properly filed with

ITD and that ITD would notify the Court. (Exhibit 70, p. 2). He asserted that Respondent also

told him at that time that he had no defense to the DDI charge and refusal and therefore he would

not prevail at hearing. (Id.) Mr. Varela stated that Respondent never informed him that the $500

fee was nonrefundable and denied that he signed a fee agreement. (Id.)

43. On August 29, 2005, Respondent received a letter from Bar Counsel's Office

requesting a response to Mr. Varela's grievance. (Exhibit 72).

44. On September 2, 2005, Respondent V\/fote to Mr. Varela offering an itemized

statement and a refund in the amount 0 f $218.75. He informed Mr. Varela that he could pick up

the refund check at Respondent's office. (Complaint ~ 45, and Answer ~ III).

45. On September 16, 2005, instead of mailing the refund check to Mr. Varela,

Respondent wrote another letter to him asking that Mr. Varela schedule an appointment to pick

up the refund check. (Complaint ~ 45, and Answer' III).

46. Respondent testified that he did not send the refund check to Mr. Varela because

his office had three different addresses for Mr. Varela and he did not know where the refund

check should be mailed. (Tr. pp. 234, 294). However, Respondent's September 2, 2005 and


September 16, 2005 letters were sent to the same address Mr. Varela entered on his grievance.

(Exhibits 70, 73 and 74).

47. Respondent also testified that he did not send the refund to Mr. Egusquiza directly

because he did not trust Mr. Egusquiza. (Tr. p. 234).

48. Mr. Varela did not reply to Respondent's September 2005 letters because he did

not want to speak with Respondent or schedule an appointment to obtain the refund. (Exhibit 79,

p. 3, Tr. p. 69).

49. On October 11, 2005, Respondent submitted a letter to Bar Counsel responding to

Mr. Varela's grievance. (Exhibit 76). He enclosed with that response a proposed affidavit

(" Affidavit") for Mr. Varela's signature. Respondent stated in his letter to Bar Counsel that the

Affidavit was being presented to Mr. Varela "for him to review and sign, which if he does might

prevent him from being sued for libel and slander." (Complaint ~ 49, and Answer ~ III). The

Affidavit consisted of statements by Mr. Varela that Respondent had essentially not erred in his

representation. (Complaint ~ 50, and Answer ~ III).

50. Respondent asked Bar Counsel to advise him immediately if Mr. Varela refused

to sign the Affidavit so he could consider legal action. (Exhibit 76, p. 3).

5l. Respondent testified that the Affidavit gave Mr. Varela an opportunity to correct

the record and constituted a "threat" only ifMr. Varela failed to tell the truth. (Tr. pp. 237, 278-

279). Respondent acknowledged that he threatened to sue Mr. Varela if Mr. Varela refused to

sign the Affidavit. (Tr. p. 287).

52. In his reply to Bar Counsel, Mr. Varela stated that he would not have filed the

grievance against Respondent if he thought it would "get [him] sued." (Exhibit 79, p. 2). He


further stated that the statements in the Affidavit that Respondent demanded he sign were not

true. (Id.)

53. Mr. Egusquiza testified that he felt compelled under LR.P.C. 8.3 to submit a letter

to Plaintiff regarding this disciplinary matter because Respondent threatened to sue Mr. Varela if

Mr. Varela refused to sign the Affidavit. (Exhibit 78, Tr. pp. 152-153, 170,408). He testified

that he was also concerned about Respondent's failure to disclose all relevant documents to

Plaintiff in the disciplinary investigation. (Tr. p. 152).

54. Respondent's October 11,2005 response also included a billing statement that he

stated he prepared himself. (Exhibit 76, pp. 2, 5). The statement reflected that: on Friday, June

3, 2005, Respondent reviewed discovery and prepared court documents; on Saturday, June 4,

2005, he prepared a letter to ITD and called the Court; and on Sunday, June 5, 2005, he called

Mr. Miller. (Exhibit 76, p. 5).

55. At hearing, Respondent testified that his staff prepared the billing statement with

erroneous dates. (Tr. p. 249). He testified that his calls to the Court and Mr. Miller would have

been made on June 3, 2005 or June 6, 2005. (Id.)

56. Respondent also enclosed with his October 11, 2005 response a copy ofa $218.75

refund check, which he stated was "written by [him] to Mateo Varela, dated June 5th, 2005."

(Exhibit 76, pp. 2,4). The amount of the refund check, dated June 5, 2005, reflected a $37.50

charge for a phone call from Mr. Varela on June 21, 2005, before a refund was requested but

after the refund check was purportedly written. (Exhibit 76, pp. 4, 5).

57. At hearing, when questioned about the date of the check, Respondent testified that

his staff prepared the backdated check. (Tr. pp. 376-77).

Proposed Findings of Fact, Conclusion of Lavv & Recommendation - 12 268

58. In or around May 2010, Mr. Varela called Respondent to reiterate his request for a

refund. Respondent sent Mr. Varela a refund check for $218.75. (Tr. p. 72).

Prior Idaho Discipline

59. On July 23, 2004, Bar Counsel's Office issued a private reprimand to Respondent

relating to his representation of a client, Rowland Zior. Mr. Zior hired Respondent in June 2002,

to assist him in collection on a promissory note. Respondent drafted a complaint which

contained inaccurate calculations because Respondent only used figures contained in the actual

promissory note and not additional figures that Mr. Zior had provided, i.e. amounts already paid,

amortization schedules, due dates. Despite repeated requests to have Respondent contact him,

Mr. Zior did not hear from Respondent from August 2002 until he filed his complaint with the

Bar in February 2003. Mr. Zior did not receive any monthly billing statements, even though he

requested one on several occasions. On February 28, 2003, Mr. Zior terminated Respondent's

services and requested that Respondent return Mr. Zior's $1,000 retainer. After investigation,

Bar Counsel's Office concluded that Respondent violated LR.P. C. 1.4 by not keeping his client

reasonably informed about his case and not promptly complying with reasonable requests for

information and LR.P.C. 1.5(t) for failing to provide his client with an accounting of fees after

reasonable requests. The private reprimand letter also indicated that Mr. Zior and Respondent

completed the Idaho State Bar's fee arbitration process and the dispute about the retainer and

fees due and paid Respondent had been resolved. (Exhibit 80).

60. On August 5, 2008, Bar Counsel's Office issued a private reprimand to

Respondent relating to his representation of Shanon Harbaugh. The grievance was filed by the

Elmore Prosecuting Attorney, Aaron Bazzoli. Mr. Bazzoli filed the complaint after he received

information from authorities from Elko, Nevada, regarding Respondent. A counselor in a local


drug rehabilitation center reported to the Elko police that Respondent contacted a patient (his

client) at the center, told her she was in danger and advised her he was on the way to Elko to pick

her up and return her to Idaho immediately. The allegations were that Respondent knowingly

made false statements of material fact and used means with no other purpose than to embarrass,

delay or burden third persons. After investigation, Bar Counsel's Office concluded that there was

clear and convincing evidence that Respondent violated LR.P.C. 4.1 by making false statements

of material fact regarding the circumstances surrounding the brealc-in at his office and in

statements made to his client regarding a secret service agent accompanying him to Elko.

Respondent also violated LR.P.C. 8.4(d) by failing to appropriately report the break-in at his

office and by taking his client's well-being and safety into his own hands when he took her from

the rehabilitation facility in Elko. (Exhibit 81).


Respondent regarding his representation of Catherine Allen in a divorce. Ms. Allen retained

Respondent on January 27, 2005, signed an Attorney-Client Contract, paid Respondent a $1,500

retainer and $118 filing fee. Ms. Allen's primary concern was whether she would be able to

maintain her current military medical insurance if she proceeded with a divorce. On March 22,

2005, Ms. Allen went to Respondent's office, spoke to his assistant, and requested a refund of

her $1,500 retainer, due to Respondent's failure to fully advise her about her eligibility for

medical benefits despite her request nearly two months earlier. The assistant did not refund the

retainer. On March 23, 2005, Ms. Allen sent Respondent a letter stating that he had not

performed any work on her case or responded to her calls, and requested a refund. On March 24,

2005, Respondent sent Ms. Allen a letter advising her that she would retain her military benefits

if she divorced her husband, but the letter did not address her request for a refund. On March 29,

Proposed Findings of Fact, Conclusion of Lmv & Recommendation - 14 270

2005, Respondent sent Ms. Allen a letter regarding her phone conversation with his assistant the

prior day. Respondent stated that her request for written confirmation of her military benefits

was the first time she had indicated that she would not accept his legal opinion on the matter. He

also enclosed a copy of the Attorney-Client Contract and stated the retainer was non-refundable.

Later that day, Respondent sent Ms. Allen another letter regarding their latest conversation and

stated that her refusal to meet with him for a scheduled appointment to discuss her case was a

breach of the contract, since he could not represent somebody who refused to meet with him. On

March 31, 2005, Ms. Allen retained another attorney to represent her in the divorce. On April 8,

2005, Ms. Allen filed a small claims action against Respondent for refund of her retainer and

filing fee. Judge Bieter entered judgment in the small claims case ordering Respondent to pay

Ms. Allen $743, plus $50 in costs. Respondent filed a Motion for Trial De Novo from that

Judgment. However, later when the clerk reviewed the file, the clerk determined that the

Judgment had not been appealed, the case was not set for hearing and Ms. Allen could execute

on the Judgment. A Writ of Execution issued and Respondent paid Ms. Allen as required under

the Judgment and in satisfaction of the Writ. Following investigation, Bar Counsel's Office

found that Respondent violated LR.P.C. 1.16(d) by failing to refund Ms. Allen's advance

payment of fees and expenses that were not earned or incurred. (Exhibit 82).


Respondent relating to his representation of Kevin Amerson. In July 2003, Mr. Amerson

retained Respondent to represent him in a personal injury action for injuries suffered in a car

accident. Mr. Amerson and Respondent executed a contingency fee contract. In April 2004,

Respondent also filed a provisional patent application for Mr. Amerson related to Mr. Amerson's

gas canister invention known as the "Expeller." In August 2004, Mr. Amerson settled his


personal injury case for $13,500. On September 9, 2010, Geico sent Respondent a settlement

check for $8,500, which represented the full settlement, less $5,000 in medical fees already paid

by Geico. On September 16, 2004, Mr. Amerson and Respondent executed a contingent fee

reconciliation agreement regarding the disbursement of the Geico settlement funds. After

distribution of the funds, Mr. Amerson filed a grievance contending that after he settled his

personal injury case, Respondent offered him a net settlement of $2,200, which he refused.

According to Mr. Amerson, Respondent subsequently agreed to give him approximately $4,000,

on the condition that Mr. Amerson pay him 5% of the future revenues from Mr. Amerson's

Expeller. Mr. Amerson stated that he signed the agreement Respondent offered because he

needed the money for rent. Mr. Amerson also claimed that Respondent owed him money

because the $5,000 settlement from Geico for medical bills was not subject to the one-third

contingency fee. Bar Counsel's Office concluded that Respondent violated LR.P.C. 1.8(a) by

failing to advise Mr. Amerson, in writing, of the desirability of seeking independent legal

counsel, and failing to give Mr. Amerson a reasonable opportunity to seek advice of independent

legal counsel with respect to Respondent's agreement with Mr. Amerson to pay Respondent 5%

ofthe future revenues from the Expeller. (Exhibit 83).

63. On February 26, 2009, Bar Counsel's Office issued a private reprimand to

Respondent relating to his representation of Larry Severson. The grievance was filed by attorney

Terry Ratliff. The complaint stemmed from the allegation that Respondent had a conflict of

interest with respect to his representation of Mr. Severson in a criminal and a civil case. Mr.

Severson was charged with murdering his wife, Mary Severson ("Mary"). Respondent

represented Mr. Severson in that criminal case. After Mary's death, Mary's mother made a

claim against Mr. Severson for Mary's insurance proceeds based upon the "Slayer Statute."


Under the Slayer Statute, Mr. Severson would not collect his share of Mary's life insurance

proceeds if convicted of her murder. Respondent represented Mr. Severson in that civil case.

After investigation, Bar Counsel's Office concluded that Respondent violated LR.P.C. 1.9(a).

Bar Counsel's Office found that prior to her death, Mary consulted with Respondent about

whether her use of Hydroxycut pills was related to her recent illness. Respondent admitted that

Mary asked him to investigate the cause of her illness, which seemed due to the Hydroxycut

pills. Bar Counsel concluded that Respondent's defense of Mr. Severson in the murder case, in

which he was accused of poisoning Mary with Hydroxycut pills, was substantially related to

Respondent's representation of Mary in the investigation of why the Hydroxycut pills were

making her sick. Since Mary could not, and did not consent to the conflict, Respondent should

not have undertaken representation of Mr. Severson in his criminal case. Bar Counsel's Office

also concluded that Respondent violated LR.P.C. 3.7, which prohibits a lawyer from acting as an

advocate for a client when the lmvyer is likely to be a necessary witness in the case. Respondent

undertook the representation of Mr. Severson in the murder case, despite the fact that he met

with the victim in the case and discussed her marriage and her use of Hydroxycut pills. Those

matters were certain to be significant issues in the murder trial. The information Respondent

gained from Mary would be important to both the prosecution and defense of Mr. Severson.

Although Respondent withdrew from the criminal case when the prosecution called him as a

witness, he knew or should have known he was likely to be called as a necessary witness and

therefore should not have agreed to the representation. (Exhibit 84).

II. CONCLUSIONS OF LAW

64. With respect to Count Two, the following Idaho Rules of Professional Conduct

apply and provide:


Rule 1.2: Scope of Representation

(a) Subject to paragraphs (c) and (d), a la\V-yer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 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 la\V-yer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a la\V-yer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 - Communication

(a) A la"",),er shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule l.O(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; including a request for an accounting as required by Rule I.S(£); and (5) consult with the client about any relevant limitation on the la\V-yer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.


65. With respect to Count Three, Idaho Rule of Professional Conduct 8.4(c) applies

and provides:

Rule 8.4 - Misconduct

It is professional misconduct for a lawyer to:

(c) engage In conduct involving dishonesty, fraud, deceit or misrepresentation.

66. With respect to Count Four, the following Idaho Rules of Professional Conduct

apply and provide:

Rule 1.5 - Fees

(b) 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 \vriting, before or within a reasonable time after commencing the representation.

Rule 1.16 -- Declining or Terminating Representation

(d) Upon termination of representation, 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 laVv'Yer may retain papers relating to the client to the extent permitted by other law.

67. With respect to Count Five, Idaho Rule of Professional Conduct 8.4(d)

applies and provides:

Rule 8.4 -- Misconduct


(d) engage in conduct that is prejudicial to the administration of justice;


68. Respondent's private discipline is relevant to this formal charge proceeding and to

a consideration of sanctions. Idaho State Bar v. Malmin, 139 Idaho 304, 311, 78 P.3d 372, 378

(2003).

69. An attorney's request of a grievant to withdraw his grievance in a disciplinary case

which requires a grievant to make factual and legal representations to Bar Counsel with which the

grievant does not agree, is conduct prejudicial to the administration of justice. People v. Bennett,

810 P.2d 661 (Colo. 1991).

70. Idaho Bar Commission Rule 520 provides that all grIevances, complaints,

testimony and other presentation or arguments submitted to Bar Counsel "shall be absolutely

privileged, and no civil litigation predicated thereon may be instituted or maintained."

Respondent's threat to sue Mr. Varela, for defamation based on the allegations presented to Bar

Counsel was without merit under I.B.C.R. 520 and constitutes conduct prejudicial to the

administration of justice.

71. With respect to Count Two of the Complaint, and based primarily upon Findings

of Fact 7-13,19,20,24-30,32-37,39 and 42 above, the Committee concludes that Plaintiff has

proven by clear and convincing evidence that Respondent violated Idaho Rules of Professional

Conduct l.2, l.3, and 104.

72. With respect to Count Three of the Complaint, and based primarily upon Findings

of Fact 12-18,20-24,26-33,40-47 and 54-57 above, the Committee concludes that Plaintiff has


Conduct 8A(c).

73. With respect to Count Four of the Complaint, and based primarily upon Findings

of Fact 15-18, 38, 40, 41, 43-48 and 54-58 above, the Committee concludes that Plaintiff has



Conduct 1.5(b) and 1.16(d).

74. With respect to Count Five of the Complaint, and based primarily upon Findings

of Fact 49 through 54 above, the Committee concludes that Plaintiff has proven by clear and

convincing evidence that Respondent violated Idaho Rules of Professional Conduct 8.4( d).

75. The Committee has also considered the ABA Standard For Imposing Lawyer

Sanctions, (hereinafter "ABA Standards") to determine the appropriate sanction to recommend in

this case. (ABAIBNA La\\ryers Manual on Professional Conduct No. 119 at ~ 01 :801-01 :844

(1992). ABA Standard 3.0 addresses the factors to be considered and the Committee has

considered the duties violated, Respondent's mental state, the actual or potential injury caused by

Respondent's misconduct and the existence of aggravating or mitigating factors. (Id. 01.815).

76. For purposes of ABA Standards discussed below, Reprimand is defined as public

censure under I.B.C.R. 506(d). §2.5 CId. 01 :812).

77. With respect to the conclusions of law relating to Count Two, the Committee

considered ABA Standards 4.4, 4.42 and 4.43. Those ABA Standards provide:

4.4 Lack of Diligence

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client:

4.42 Suspension is generally appropriate when:

(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.

Proposed Findings ofF act, Conclusion of Law & Recommendation - 21 277

The commentary to ABA Standard 4.42 provides that, "suspension should be imposed when a

laVvyer knows that he is not performing the services requested by the client, but does nothing to

remedy the situation, or when a lawyer engages in a pattern of neglect, with the result that the

laVvyer causes injury or potential injury to the client. Most cases involve lavvyers who do not

communicate with their clients."

4.43 Reprimand is generally appropriate when a laVv)'er is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client

78. The Committee concludes, based upon the above Findings of Fact and Conclusions

of Law, that Respondent did not perform services requested by Mr. Varela relating to the

suspension of his license because Mr. Varela refused to submit to the breathalyzer examination.

Respondent did not timely file a request for the suspension hearing with the proper venue, and

when he filed the same request for a suspension hearing with the wrong agency, he argued that

the request for a suspension hearing in the proper venue was frivolous. Moreover, Respondent

did nothing to remedy the situation: he did not properly request a suspension hearing and he did

not negotiate a potential plea that might restore Mr. Varela's license promptly. The Committee

concludes that Respondent knew that he was not performing the services requested by Mr. Varela,

did nothing to remedy the situation and that resulted in injury to Mr. Varela, the loss of his ability

to have a suspension hearing in the proper venue.

79. With respect to Count Three, the Committee considered ABA Standards 4.6, 4.62,

4.63 and 7.2 in connection with the Conclusions of Law the Respondent was involved in conduct

involving dishonesty, fraud, deceit, or misrepresentation. Those ABA Standards provide:


4.6 Lack of Candor

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases where the lawyer engages in fraud, deceit, or misrepresentation directed toward a client:

4.62 Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.

The Commentary to ABA Standards 4.62 states, "the most common cases are those in which a

la'Wyer misrepresents the nature of the services performed."

4.63 Reprimand is generally appropriate when a lawyer negligently fails to provide a client with accurate or complete information, and caused injury or potential injury to the client.

7.2 Suspension is generally appropriate when a la'Wyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.


of Law, that Respondent knowingly provided varying and inconsistent accounts of: (1) the

circumstances related to requesting a license suspension hearing with the Idaho Transportation

Department; (2) whether he was aware that Mr. Varela refused a breathalyzer test when he

originally met with him; (3) who prepared, authorized and/or signed fee agreements, the hearing

request letter sent to lTD, correspondence to Mr. Miller, billing statements and refund checks; and

( 4) his refusal to return unearned fees to Mr. Varela.

81. With respect Count Four, the Committee considered ABA Standards 4.1, 4.12 and

4.13 in connection with the conclusions of law that Respondent failed to commll:nicate the basis


or rate of his fee to Mr. Varela and upon termination of representation, did not refund any

advance payment of fee that had not been earned to Mr. Varela. Those ABA Standards provide:

4.1 Failure to Preserve the Client's Property

Absent aggravating or mitigating circumstances, upon application of the factors set out in 3.0, the following sanctions are generally appropriate in cases involving the failure to preserve client property:

4.l2 Suspension is generally appropriate when a laVvyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

The Commentary to ABA Standard 4.12 states, "the most common cases involve lavvyers who ...

fail to remit client funds promptly."

4.13 Reprimand is generally appropriate when a lavvyer is negligent in dealing with client property and causes injury or potential injury to a client.

The Commentary to ABA Standard 4.13 states, "lavvyers who are grossly negligent in failing to

establish proper accounting procedures should be suspended; reprimand is appropriate for lawyers

who simply fail to follow their established procedures."


of Law, that Respondent did not enter into a written fee agreement with Mr. Varela, that

Respondent did not clearly communicate that the basis of Mr. Varela's fee was "non-refundable,"

that he failed to promptly refund any advance payment of fee to Mr. Varela that had not been

earned, and that Respondent knew, or should have known, that he was dealing improperly with

client property. The Committee also finds that Respondent initially rejected Mr. Varela's request

for a refund of any advance payment of fee that had not been earned and did not suggest that he

was willing to refund any advance payment of fee that had not been earned until after Mr. Varela


filed a grievance with Bar Counsel's Office. Finally, although Respondent refunded fees to Mr.

Varela, he did not do so until Mr. Varela filed a grievance with the ISB, did not refund those fees

to Mr. Egusquiza when he knew Mr. Egusquiza was representing Mr. Yarela and did not include

interest when he refunded money to Mr. Varela 5 years after Mr. Varela requested a refund and

Respondent indicated he would.

83. With respect to Count Five, the Committee considered ABA Standards 6.1, 6.12,

6.13,6.2,6.22, and 6.23 in connection with the conclusions of law that Respondent's conduct was

prejudicial to the administration of justice. Those ABA Standards provide:

6.1 False statements, fraud, and Misrepresentation

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonest, fraud, deceit, or misrepresentation to a court;

6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

6.2 Abuse of the legal process

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving failure to expedite litigation or bring a meritorious claim, or failure to obey any


obligation under the rules of a tribunal except for an open refusal bases on an assertion that no valid obligation exists.

6.22 Suspension is appropriate when a laVv)'er knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.

6.23 Reprimand is generally appropriate when a lav,ryer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.

84. The Committee concludes, based upon the above Findings of Fact and

Conclusions of Law, that Respondent's conduct was prejudicial to the administration of justice

and he knew that he \vas improperly interfering with this disciplinary proceeding by asking Mr.

Varela to make statements in the proffered Affidavit that were not true and the Affidavit was

proffered in an effort to improperly attempt to effect a dismissal of the disciplinary proceeding.

The Committee also concludes that Respondent knew he made false statements to Bar Counsel in

response to the investigation of Mr. Varela's grievance and those statements were inconsistent

with the admitted exhibits and Respondent's testimony.

85. The Committee considered the ABA Standards relating to aggravating factors or

circumstances in arriving at its recommendation. ABA Standards 9.1, 9.21 and 9.22 identify the

factors which may be considered in aggravation and provide:

9.1 After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to Impose.

9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed.

9.22 Factors, which may be considered in aggravation. Aggravating factors include: (a) prior disciplinary offenses;


(b) dishonest or selfish motive; ( c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by

intentionally failing to comply with rules or orders of the disciplinary agency;

(f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; G) indifference to making restitution; (k) illegal conduct, including that involving the use of

controlled substances.

86. The Committee concludes, based upon the above Finding of Fact and Conclusions

of Law, Respondent: has a significant prior disciplinary record; had a dishonest and selfish

motive in connection Vvith his handling of Mr. Varela's request for a refund of unearned fees;

engaged in a pattern of misconduct; committed multiple violations of the Idaho Rules of

Professional Conduct; by submitting the Affidavit to Mr. Varela in the course of the disciplinary

proceeding, engaged in bad faith obstruction of the disciplinary proceeding; submitted false

statements and engaged in deceptive practice during the disciplinary process; refused to

acknowledge the VvTongful nature of his conduct at hearing, and refused to acknowledge issues of

fact that were really not in dispute at hearing; represented a vulnerable client; had substantial

experience in the practice of law; and showed indifference to making restitution to Mr. Varela.

The Committee acknowledges that Respondent refunded unearned fees to Mr. Varela in 2010,

without interest, approximately five years after his initial request for a refund of the unearned

fees.

87. The Committee has also considered Idaho State Bar v. Souza, 142, Idaho 502, 129

P.3d 1251 (2006). In that case, the Idaho Supreme Court found that Mr. Souza violated I.R.P.C.


1.1, 1.3, 1.4, and 8.4(c). In evaluating the mitigating and aggravating factors in that case, the

Idaho Supreme Court indicated it is appropriate to take into account the impact of the attorney's

misconduct on his clients. The Court recognized that Mr. Souza inexpilicably failed to move his

client's personal injury suit forward and could not have been unaware of his client's plight.

Throughout Mr. Souza's representation, his client "attempted to contact him again and again."

When Mr. Souza chose to respond, "he offered only false assurances that action was being taken."

The Court recognized that the harm suffered by clients goes beyond simple monetary loss, the

clients hire their counsel to serve as their "representative and champion," and that Mr. Souza

could have intervened at many points during his client's struggles, but he did not.

Idaho Supreme Court also recognized that "a lawyer has many responsibilities, but his

responsibilities to his client are chief among them. It is appropriate in attorney discipline cases to

consider as an aggravating factor the degree of harm suffered by the client."

The Coro.mittee also considered that the Idaho Supreme Court ordered that Mr. Souza be

suspended for 36 months with 30 months withheld and imposed conditions of probation following

reinstatement, including that Mr. Souza must not violate any of the Idaho Rules of Professional

Conduct; must maintain errors and omissions legal malpractice insurance throughout the

probationary period, providing coverage in a form acceptable to the Professional Conduct Board

and insure that the insurance carrier notify the Professional Conduct Board directly of any

changes to that policy; that Mr. Souza practice under the guidance of a supervising attorney

during probation; that Mr. Souza notify the ISB in writing and under oath, that he is acting with

reasonable diligence and promptness in representing his clients, is keeping his clients reasonable

informed about the status of their matters, is promptly complying with request for information

about his representation of clients and is representing his clients consistent with his

Proposed Findings of Fact, Conclusion of Lavt! & Recommendation - 28 284

responsibilities under the Idaho Rules of Professional Conduct. Finally, the Court ordered Mr.

Souza to tender to the ISB for his clients benefit, the full amount of the settlement offer plus the

legal rate of interest of the date of that offer.


Conclusions of Law, that Respondent did not honor his responsibilities to Mr. Varela and Mr.

Varela suffered harm as a result of Respondent's conduct. When Respondent did respond to Mr.

Varela, he was not forthcoming about what he was doing on his behalf and misrepresented the

status of the case to Mr. Varela. Mr. Varela was denied an opportunity for a license suspension

hearing because Respondent did not take action in a timely fashion, seek to negotiate a plea and

subsequently Mr. Varela lost his job. Mr. Varela suffered monetary loss relating to

Respondent's failure to refund an advance payment of fee that had not been earned for five

years.

89. The Committee has also considered the Idaho State Bar v. Malmin, 139 Idaho 304,

78 P.3d 371 (2003). The Idaho Supreme Court found that Ms. Malmin violated I.R.P.C. 1.3, 1.4,

1.5(f), 8.4(c) and 8.1 (a). The Court found that Ms. Malmin violated I.R.P.C. 1.3 by failing to "act

with reasonable diligence and promptness in representing a client" and noted that "although a six

week delay before completing a requested action is not a hard and fast rule demonstrating lack of

diligence, under circumstances where, as here, the lawyer only has to file documents already

prepared and the client calls repeatedly for a status update, the lawyer has failed to meet

professional standards." Id. at 309, 78 P.3d at 376. With respect to the violation of I.R.P.c. 1.4,

the Court found that Ms. Malmin failed to provide her client with requested information and

actually misled her client by telling her papers had been filed when, in fact, they had not. With

respect to the violation of LR.P.C. 8.4(c), the Court concluded that for approximately six weeks,


Ms. Malmin either personally, or through her staff, made knowingly false statements to her client

regarding the filing of certain documents. The Court concluded that there was a clear inference

that Ms. Malmin purposely deceived her client by telling her papers had been filed, when Ms.

Malmin clearly knew they had not been. The Court concluded that that evidence alone was

sufficient clear and convincing evidence to support the finding that Ms. Malmin knowingly

deceived her client in violation ofLR.P.C. 8.4(c).

With respect to the allegation that Ms. Malmin violated LR.P.C. 8.4(c) by misleading the

Idaho State Bar in its investigation of the grievance, the Court concluded that Ms. Malmin

violated that rule by providing the Idaho State Bar three varying accounts for the delay in filing

the pleadings on behalf of her clients over the course of the investigation, each of which was an

incorrect statement of the facts. The COUli indicated that the evidence in support of that claim of

misconduct was almost entirely documentary. The Court affirmed the Hearing Committee's

findings of fact and ultimate conclusion that Ms. Malmin violated LR.P.C. 8.4(c) because the

three varying accounts of her professional conduct were made "knowing they were not true and

that she made those misstatements of fact rather than admitting to the Idaho State Bar that she had

engaged in misconduct."

In determining the recommended sanction that Ms. Malmin be suspended from practicing

for six months, be placed on probation for two years, be required to sit for and pass the Multistate

Professional Responsibility Exam and be required to pay the Idaho State Bar for costs incurred in

prosecuting the case, the Hearing Committee and the Court considered aggravating factors.

Among the aggravating factors recognized by the Hearing Committee and the Court were the

follov/ing:


(2) In both the previous disciplinary action, as well as the present case, Malmin has failed to admit v\Tongdoing and blames others to deflect the blame.

(3) Malmin proffered knowingly false testimony under oath before the hearing committee.

(4) Malmin failed to demonstrate to the committee an appreciation of the serious nature of her misconduct.

Id. at 312, 78 P.3d at 379. In affirming that sanction, the Court found that suspension was

appropriate to convey to Ms. Malmin the importance of candor and the severity of her offenses.

The Court also determined that following the six-month suspension, a two-year probation was

necessary in order for the Court to make certain Ms. Malmin had learned from her mistakes and

had her practice under appropriate control. The Court decided requiring Ms. Malmin to take the

MPRE was appropriate because the test should help her understand the ethical standards to which

she is held. Finally, the Court believed that paying the Idaho State Bar's costs was appropriate

because she could have avoided the necessity of the disciplinary proceeding if she had only been

honest with her client and the Idaho State Bar from the beginning. Id.


of Law, that Respondent failed to file a request for a suspension hearing with the Magistrate

Court, despite Mr. Varela's requests that Respondent file it and his subsequent request for a status

update about that. Respondent also did not provide Mr. Varela with requested information and

actually misled Mr. Varela about the suspension hearing request. The Committee also concludes

that the varying accounts for his professional conduct relating to the suspension hearing and

representation of Mr. Varela over the course of the investigation of Mr. Varela's grievance and at

hearing, were not consistent and included incorrect statements of fact and that Respondent knew

at the time that the statements were made to the Idaho State Bar that the statements were not true.


Finally, the Committee concludes that Respondent failed to admit wrongdoing and sought to

blame others to deflect his professional responsibility; proffered knowingly false testimony under

oath before the Hearing Committee and failed to demonstrate to the Committee an appreciation of

the serious nature of the misconduct.

III. RECOl\1MENDATION

91. Based upon all the forgoing Findings of Fact and Conclusions of Law, the

Committee recommends as follows:

a. That Respondent be suspended from the practice of law in the State of Idaho for a

period of two years, and that 18 months of said suspension be withheld. The

Committee appreciates that Respondent's license is an affiliate license and

recommends that the six month suspension be immediately served, regardless of

the Respondent's current affiliate license status. However, the Committee

recommends that none of the withheld suspension or the probation set forth below,

be imposed unless and until Respondent requests, and is granted, permission to

transfer his license from affiliate status to active status under the applicable Idaho

Bar Commission Rules, currently LB.C.R. 304 and 305, and is reinstated from his

suspension under LB.C.R. 518.

b. That following any transfer to an active status license, and reinstatement,

Respondent be placed on a period of probation for two years following such

transfer and reinstatement, upon the follo'W1ng the terms and conditions.

1. If Respondent 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 between the date of Respondent's suspension through the two year


period of probation, regardless whether that admission or detelmination

occurs after the expiration of probation, then the entire withheld suspension

shall be immediately imposed and served by Respondent, in addition to any

other sanction that is imposed for any such admission or determination of

misconduct during that time. (Thus, by way of example, if Respondent

admits or is found to have violated any of the Idaho Rules of Professional

Conduct in any formal charge case relating to his conduct during the period

of his actual suspension and probation, then the withheld portion of his

suspension shall be automatically and immediately imposed upon

Respondent regardless whether that admission or determination is after the

expiration of his probation);

n. That Respondent conduct his practice and representation of his clients in a

manner so as to avoid any grievances or complaints being submitted to Bar

Counsel's Office. However, recogmzmg that such gnevances

and/complaints are beyond the control of the attorney, Respondent must

fully cooperate with Bar Counsel's Office in the investigation of any such

complaints or grievances; and

111. As a condition of reinstatement and probation, Respondent be required to

maintain errors and omissions legal malpractice insurance during the

probationary period, providing at least $100,000/$300,000 coverage in a

form that the reinstatement Hearing Committee determines is appropriate.

Such coverage shall be in a form acceptable to the reinstatement Hearing


Committee and insure that the insurance carner notify Bar Counsel's

Office directly of any changes to that policy;

c. As a condition for reinstatement under I.B.C.R. 518, Respondent shall be required

to fully comply with I.B.C.R. 517 and shall be required to take and pass the

Multistate Professional Responsibility Examination;

d. As a condition of reinstatement, Respondent shall reimburse Plaintiff for the costs

associated with this proceeding, including, without limitation, the costs of the

hearing and the hearing transcript, certified mailings and all other expenses related

to this disciplinary proceeding.

e. That before being eligible to be reinstated to the active practice of law in Idaho,

Respondent must first receive approval to transfer from affiliate or inactive status

to active status under the applicable Idaho Bar Commission Rules, currently

I.B.C.R. 304 and 305. Thereafter, Respondent must also be reinstated by a

Hearing Committee of the Professional Conduct Board consistent with I.B.C.R.

518(b). To be reinstated, Respondent must demonstrate that he has fully complied

with the requirements of Idaho Bar Commission Rules 516 and 517;

f. As a condition of reinstatement, Respondent must pay Mr. Varela $109.37

reflecting interest at the rate of 10% for the five years between Mr. Varela's

request and payment.

Finally, these Findings of Fact, Conclusions of Law & Recommendation shall be

considered the final findings and recommendations under I.B.C.R. 51 1 (h)(3), if neither party files

a motion to alter or amend these Findings of Fact, Conclusions of Law & Recommendation

within fourteen days after this document has been served upon the parties and thereafter the Clerk


is directed to serve a copy of these Findings of Fact, Conclusions of Law & Recommendation as

the final Findings of Fact, Conclusions of Law and Recommendation upon the parties.

DATED this ___ day of ______ 2011.

Thomas Wllitney, Chair Professional Conduct Board

DATEDthis ___ dayof ______ 2011.

DATED this ___ day -------

Linda Edwards Professional Conduct Board

2011.

Richard Clifford Professional Conduct Board


RESPECTFULLY SUBMITTED this o I <{ day of j-pl1J 2011.

/2 ~ )/1 / t/Av~J(~~

Bradley G. Andrews ( Bar Counsel


CERTIFICATE OF MAILING

I hereby certl y t at on the . ,- day of . ~ 'f h '~\ ~ ~ 2011, I served a true and correct

copy of the foregoing PROPOSED FINDIN . OF F T, CONCLUSIONS OF LA W &

RECOMMENDATION by depositing the same in the U.S. mail at Boise, Idaho, each enclosed in a

separate, sealed, stamped envelope, and addressed as directed as follows:

Thomas W. Whitney, Chairman Professional Conduct Board 604 S. Washington Street, Ste. 1 Moscow,ID 83843

Linda M, Edwards Professional Conduct Board P.O. Box 5070 Ketchum, ID 83340

Richard G, Clifford Professional Conduct Board 828 8th Ave. Lewiston,ID 83501

Sue Nelson Clerk of the Professional Conduct Board

I further certify that I served a true and correct copy of the aforesaid document( s) upon Bar Counsel/Deputy Bar Counsel for the Idaho State Bar by personally delivering said copy to Office of Bar Counsel at the Idaho State Bar, 525 W. Jefferson, Boise, Idaho.

293

CERTIFICATE OF SERVICE

('\ "t~ I hereby certify that on the ex 0 day of -=:!~~.!...&i.~L-_ 2011, I served a true and

correct copy of the foregoing PROPOSED FINDING OF FACT, CONCLUSIONS OF LAW

AND RECOMMENDATION upon the following, by U.S. mail, to the address indicated below:

Larry D. Purviance Attorney for Respondent 2151 Hayden Ave. Hayden, ID 83835

Sue Nelson, Clerk Professional Conduct Board


LARRY D. PURVIANCE Attorney at Law 2151 Hayden Avenue Hayden, ID 83835 Telephone: (208) 635-5388 Facsimile: (208) 635-5389 BarNo.: 4999


FILE NO: FC 09-05 IDAHO STATE BAR,

Plaintiff,

v.

MEMORANDUM OF PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW

JAYP. CLARK,

Re ondent.

COMES Now Respondent Jay Clark, by and through his attorney of record, Larry D.

Purviance, and submits these purposed findings of facts and conclusions of law to conclude the

Panel's ruling from the hearing held in the above-entitled case on December 2 and December 3,

2010.

1. Respondent's Constitutional Due Process Rights Were Violated By the Bar's Unreasonable Delay in Initiating the Proceedings.

Before making specific findings of facts or conclusions of law, the Panel must address

legal issues raised by the Respondent pursuit to his motion to dismiss these proceedings. It was

the Panel's previous ruling (made at the hearing on Respondent's Motion for Summary

Judgment) that these issues would have to be addressed after the evidentiary hearing because of

the various material factual disputes. Now that all evidence in this case has been presented, the

RESPONDENT'S PROPOSED FINDINGS OF FACT A1\TO CONCLUSIONS OF LAW Page 1

295

issue of unreasonable delay by the Bar must be addressed, since it 'will temper this Panel's

findings regarding whether the Bar has proven any disputed facts with clear and convincing

evidence, as is required under the rules.

On October 7, 2005, Respondent responded to the substance of the Bar's allegations

found in Counts Two, Three, Four, and Five ofthe Complaint, which response included twenty

five (25) attached documents. No response from the Bar to the Respondent was made

whatsoever following the Bar's receipt of Respondenfs letter and documents, until the formal

filing of the Complaint in this case on May 20,2009. During that forty (40) month period which

ensued, there were no further communications whatsoever ben¥een the Bar and the Respondent

concerning this matter. The Bar failed to provide any evidence justifying their delays in pursing

this matter. This matter of diligence has been made an issue by the Bar, which claimed that the

Respondent violated IRE 1.3 by failing to timely file a case objecting to a license suspension

within a seven-day time frame.

The Bar has not provided any explanation for the approximate three and one-half year

delay in the preparation and filing of their Complaint as to Counts Two through Five. The

allegations as made are very similar, if not identical, to the issues presented by the Bar's original

letter to the Respondent back in September 2005. Based thereon, it does not appear that any

additional investigation or fact finding of any kind was needed to account for the delay.

All attorneys are entitled to fair notice of charges and the opportunity to be heard in a

timely fashion, as the license to practice law is a constitutionally protected interest. Matter oj

Kenney, 399 Mass. 431,435, 504 N.E.2d 652 (1987). The Idaho Supreme Court also cited

United States V. Lovasco, 431 U.S. 783 (1977), when faced with the same issue in Idaho State

Bar v. Scott Everard, Docket No. 30978 (2005), by stating that "delay in instituting criminal

RESPONDENT'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Page 2

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prosecution does not violate due process unless the prosecutor delayed bringing the charges in a

deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard

of its probable prejudicial impact upon the defendant's ability to defend against the charges)." ld

at 10.

While the Bar's ethical duties are not directly relevant to this case, some benefit must be

given the Respondent when weighing the evidence, since his ability to refute these claims must

have been at least somewhat hampered by the unexplainable delay by the Bar in pursuing this

case.

IV Count Two ofthe Complaint Diligence in Pursing Every Available Defense a Client \Vishes to Pursue, Versus the Filing of Frivolous Lawsuits.

For the Bar to find clear and convincing evidence that Respondent violated a series of

ethical duties, mostly stemming from the Respondent's refusal to file an action at the request of

his then client, the Bar has the burden of proof to first define what type of action is at hand --

civil or criminal -- before the Bar can then find clear and convincing evidence relevant to a

particular ethical duty the Respondent had. Although many of the allegations listed under Count

Two and Count Three of the Complaint refer to Mr. Varela's criminal case involving a OUI,

leaving the reader with the strong impression that the Respondent's failure to act was prejudicial

to Mr. Varela's criminal case, the Bar failed to make any allegation under Count Two or Count

Three of the Complaint that would distinguish the type oflegal action requested by Mr. Varela as

either criminal or civil. The Panel finds, however, that the unrefuted evidence presented at the

hearing was quite the opposite -- that the true nature of the legal action requested by Mr. Varela

was not to further a particular defense relevant to his criminal case, but, rather it was the

Respondent's failure to initiate a civil case.


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For the Bar to fail to make any factual allegation or provide any evidence at the hearing

to establish the fundamental nature of the legal action that was allegedly not taken, makes it

difficult for the panel to find by clear and convincing evidence that Respondent failed to fulfill a

particular ethical duty is an exercise applied far differently depending on whether a legal action

is criminal or civil. If the Panel were to follow the suggestions and innuendos left by the Bar,

that the inaction complained of was part and parcel to the pursuit of a criminal case, when in

reality Respondent made a professional decision not to pursue a civil action, the Panel would be

required to treat one the same as the other, leading to disastrous consequences.

For the Bar to allege that Respondent failed in his ethical duty simply by not following

his client's wishes, while at the same time failing to distinguish what type of case was at hand,

strongly implies that the Bar is requiring attorneys to initiate and pursue every civil case that a

client brings to him, regardless of the merit. Because the Bar has a history of pursing disbarment

of attorneys for pursing frivolous claims, surely the Bar cannot be alleging what it appears to be.

The Bar alleges that Respondent failed in his ethical duties to his client, Mateo Varela, by

failing to timely file a request for a hearing to the Elmore County Magistrate Court no later than

Monday, June 6, 2005. (Paragraph 27 of the complaint.) The Bar alleges that failure to timely

file a request constitutes a violation of I.R.P.C. 1.2, 1.3 and lA.

Mateo Varela testified on direct examination that he called Respondent's office on the

day of the filing deadline (pg. 54 transcript) to ask for the status of his case. Respondent made it

very clear to Mr. Varela that he would not be pursing a case to object to his license suspension

which resulted from the refusal to take the breathalyzer exam. Mr. Varela also testified that

Respondent did not believe that he had a viable case to reverse the license suspension by stating

that Mr. Varela "'didn't have a chance to win it" (pg. 55).


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The Bar offered no evidence to refute the Respondent's testimony tr'1at the proceeding to

refuse Mr. Varela's license suspension would be a separate case from that of Mr. Varela's DUI

case and that it would be a civil case, not a criminal case (pg. 208-209). Respondent also

testified that he agrees with the Bar's contention that in criminal cases the attorney is bound by

the rules of ethics to present all possible defenses and follow the wishes of the client to pursue

the case as the client may see fit. (Pg.208.)

In deciding what ethical obligations the Respondent is bound to, it is critical for the Panel

to make a determination of what type of case the license suspension case would have been.

There was no evidence presented by the Bar indicating that said case was part of the criminal

case, nor did the failure of pursing that case in any way jeopardize the available defenses to Mr.

Varela in the criminal case. Any confusion that the license suspension was part and parcel of the

criminal case is misplaced, and stems from the fact that both cases arise from the same set of

factual circumstances. Furthermore, Mr. Varela admitted that Respondent timely communicated

to his client that he would not be pursing the civil case prior to the deadline for filing the case.

(Pg. 56-57, Pg. 208-209). Mr. Varela also admitted that it was "early June" when he first spoke

to Mr. Equsquiza about his case. There was no evidence presented giving any reason why Mr.

Vare1a could have pursued his civil case, either on his own or with other legal counsel.

For this Panel to find that any attorney representing a client in a DUI case must also

represent them in a license suspension case, if the client so desires, would be in effect extending

the U.S. Constitution's Sixth Amendment right to counsel from criminal cases to civil cases that

involve the same factual pattern as the underlying criminal case. This Panel is not prepared to

hand off that burden to every Public Defender's office in the State ofIdaho.


299

For example, if Mr. Varela had insisted that Respondent file a Notice of Tort Claim

against the State on the day of the deadline, claiming that the State was grossly negligent in

maintaining their breathalyzer machines, the Respondent should not have a mandatory duty to

pursue that claim just because the underlying facts relevant to that case are the same for a

criminal case.

The Bar also alleges in Count Two that Respondent was not diligent. The Court docket

in the case of State v. Mateo Varela indicates that Respondent had made a request for discovery

to the State on May 31, 2005; that Respondent was able to receive the State's discovery response

via hand delivery from the Prosecutor's office also on May 31,2005; that Respondent was able

to prepare and promptly file a Notice of Appearance and Plea of Not Guilty on behalf ofMr.

Varela on May 31,2005; and, by all accounts, these tasks were completed the same day Mr.

Varela had his initial consultation with the Respondent. (See the Respondent's contemporaneous

billing statement dated Sept. 1,2005, as was originally sent to the Bar on October 7, 2005.)

From the record, it appears that the Respondent had acted with sufficient diligence to

obtain the necessary documents to allow him to decide in good faith whether to pursue a motion

and hearing to reverse the driver's license suspension before the deadline to file that request on

June 5,2005. Furthermore, no new facts came into existence after that date that would have

supported a good faith argument, either in fact or in law, relevant to the issue of the driver's

license suspension.

As for the first two allegations contained in Count Two, the Panel cannot find by clear

and convincing evidence find that the Respondent acted in violation of LR.P.C 1.2 or 1.3 by not

timely filing documents related to Mr. Varela's license suspension case, since its pursuit was not

technically relevant to Mr. Varela's criminal case.


300

As for the third allegation found in Count Two, Mr. Varela freely admitted on direct

examination that the Respondent informed him prior to the deadline for filing his claim that

Respondent did not believe the claim was meritorious, and that he was therefore not going to

pursue it. Therefore, as to the facts presented in support of Count Two, this Panel cannot find by

clear and convincing evidence that the Respondent violated either I.R.P.C. 1.2, 1.3 or 104.

V Count Three

The Respondent's explanation to the Bar and to the Mountain Home City Prosecutor that

a letter to the Idaho Transportation Department was sent "in error" and was a matter of "standard

procedure" is actually correct, based on the many other DUI files that the Respondent produced

from that time frame. Over ninety percent (90%) of these DUI cases involved similar letters

being sent to the Idaho Transportation Department, and all were timely sent, as required under

Idaho Code.

The Bar's allegation that the Respondent did not speak to Mr. Varela on Friday, June 3,

2005, contrary to the assertions made by the Respondent, are also not supported by the record.

The fact that Respondent received the State's discovery responses on June 3, 2005, as well as the

Respondent's documentation which indicated that those documents were sent to Mr. Varela on

Friday, June 3, 2005, makes it doubtful that the Bar could prove by clear and convincing

evidence that the Respondent did in fact not have any communication with Mr. Varela on that

date. The affidavit of Respondent's staff also supports his contention that, because the reading

of discovery took the Respondent .75 hours instead of the normal .2 or .3 hours that he normally

would charge for reading discovery responses, the extra time spent by Respondent on Mr.

Varela's case that Friday, June 3, 2005, was most likely to communicate with the client the

details found in those discovery responses.


301

The Bar cannot support its allegations that the Respondent committed fraud or purposely

engaged in deceit by way of the Respondent's explanation of the letter sentto the Idaho

Department of Transportation since the record clearly supports the Respondent's explanation that

the letter was sent by mistake, and that it is sent in DUl cases as "standard procedure."

VI Count Four Should be Dismissed, Since the Respondent Did Communicate His Basis of Fee Via Contemporaneous Billing Statements \Vhich Were Provided to the Bar on Oct 7, 2005.

The Bar's allegation that the Respondent did not communicate the basis or

rate of his fee to Mr. Varela is also without merit. While the Idaho Rules of

Professional conduct do not require that attorney and clients must have a signed

contract between them in regard to fee arrangements, Respondent did provide an

example of the Fee Agreement that would have been presented to Mr. Varela-

which is nearly identical to the executed fee agreements as found in all the other

DUl cases that the Respondent was involved in during that two year time period.

More importantly, the Bar's allegation that the Respondent did not

communicate the basis or rate of the fee to Mr. Varela, which is required by the

rules, directly conflicts with the contemporaneous billing that was referenced to

and attached to the Respondent's response to the Bar dated October 7,2005-

nearly four years before the Bar filed its formal complaint in this action. This

billing statement is referred to on page two of Respondent's letter as follows: "24.

Billing statement prepared by myself, dated September 1,2005." As is clearly

marked by each entry under "transaction", there is an indication of what the exact

amount of time is charged to the client for the particular day in question, as well as


302

the fee per hour, with a calculation of what that particular entry cost the client in

dollars and cents.

The Bar cannot explain how in any way this is not a direct and timely

communication to the client of the basis or rate of the fee being charged.

Therefore, Count Four must be dismissed.

VIII. Count Four Must Also Be Dismissed Because the Bar's Allegation That the Respondent Failed to Return the Unearned Fee is False.

Respondent made an attempt to return Mr. Varela's unearned fee, as was

documented in the Respondent's letter to Mr. Varela, dated September 2,2005.

The letter states as follows, "Even though you have not requested a refund of the

unused portion of your retainer, I am willing to do so."

In response to this same allegation, on October 7, 2005, Respondent sent

directly to the Bar, his check for $218.75 made payable to Mateo Varela, which

fact was also included on page two of Respondent's letter to the Bar. No further

communication from the Bar to the Respondent was ever made in regards to this

matter until the Respondent received the Formal Complaint nearly four years later.

Consequently, it was rational for the Respondent to assume that the Bar had

properly delivered these funds to Mr. Varela. There was no other communication

to the Respondent concerning that payment whatsoever. Not only should this

allegation be dismissed, the Bar should have to give an explanation of what it has

done with these funds if they were not timely presented to Mr. Varela.

IV Count Five Should be Dismissed Because the Bar Cannot Show how the Respondent's Preparation of a Proposed Affidavit Sent to Bar Counsel Can in Any Way Be a violation of I.R.P.c. 8.4(d), as the Bar


303

Has No Evidence That the Statements Prepared For Mr. Varela's Review Were Knowingly False Statements.

With regard to the "Affidavit of Mateo Varela" as prepared by the Respondent in reply to

the Bar's letter to the Respondent in September 2005, the Bar has not produced 3.J."1y evidence to

show that any of the statements found in it were false. Furthermore, the Bar has not presented

any arguments based in fact or law to support the Bar's allegation that any statement by the

Respondent that he would sue Mr. Varela for libel and slander, ifMr. Varela had in fact made a

false statement about the Respondent, could be conduct prejudicial to the administration of

justice, especially since there is no evidence or allegation that the Respondent ever offered this

proposed affidavit to Mr. Varela.

It would have been the responsibility of Bar counsel to weigh its value and offer it to Mr.

Varela ifhe had thought such were prudent, which is why the Respondent would have only

offered it to Bar Counsel, and not to Mr. Varela.

Furthermore, if this allegation of the Bar were to be true, attorneys would be completely

unable to defend themselves from false statements made by clients or former clients. Given that

an attorney's reputation, especially in the small tOVvTIS of rural Idaho, can be destroyed with just

one false and highly inflammatory remark, the thought of attorneys having no legal recourse for

any such event is untenable.

As the Bar does not have any evidence or rationale to support the allegation that the

offering of a proposed affidavit to Bar counsel is conduct prejudicial to the administration of

justice, Count Five must be dismissed.

CONCLUSION


304

For all of the reasons asserted in these Proposed Findings of Fact and Conclusions of

Law, and in the Respondent's Brief in Support of Summary Judgment, the Complaint against the

Respondent must be dismissed in its entirety_ ~

DATED this..QO day of January, 2011

Respondent's Witness List

LARRY D. PURVIANCE Attorney for Defendant

- 11 305

CERTIFICATE OF MAIL~G

I hereby certify that on the ~O-p..- day of r /2011, I served a true and conect

copy of the foregoing MEMORANDUM a ~fu FINDINGS OF FACTS AND

CONCLUSIONS OF LAW by depositing the same in the U.S. mail at Boise, Idaho, each enclosed in a

separate, sealed, stamped envelope, and addressed as directed as follows:

Larry D. Purviance Attorney for Respondent 2151 Hayden Avenue Hayden, ID 83835

Thomas \V. Whitney, Chairman Professional Conduct Board 604 S. Washington Street, Ste. 1 Moscow, ID 83843

Linda M. Edwards Professional Conduct Board P.O. Box 5070 Ketchum, ID 83340

Richard G. Clifford Professional Conduct Board 828 8th Ave. Lewiston, ID 83501

~~ Sue Nelson Clerk of the Professional Conduct Board

I further certify that I served a true and correct copy of the aforesaid document(s) upon Bar Counsel/Deputy Bar Counsel for the Idaho State Bar by personally delivering said copy to Office of Bar Counsel at the Idaho State Bar, 525 W. Jefferson, Boise, Idaho.

306

BEFORE THE PROFESSIONAL CON DUCT BOARD

OF THE IDAHO STATE BAR

O ORI

I DAHO STATE BAR,

Pl a i nt i f f,

v . Case No . FC 09 - 05

JAY P . CLARK , VOLUME I

Respondent .

TRANS CRIPT OF PROCEED I NGS

DECEMBER 2 , 20 1 0

- . SOUTHERN RE PORTE D BY. 1-800-234-9611

Court T)I,-80ISE..rIlh. POCATELLO 10

RBA'"RBABA R. BURI\.l:£D8-~11No . ~~3-081s' eportlng

1::l.1 tAr f bl ' • TWIN FALLS, 10 • ONTARIO OR Servn:;e, nC. l C 208-734-1700 541 -881-1700

Since 1970 • HAILEY, 10 208-578-1049

NORTHERN 1-800-879-1700

• COEUR D' ALENE, ID 208-765-1700

• SPOKANE WA 509-455-4515

www.idahocourtreporting.com 307 Registered Professional Reporters

BEFORE THE PROFESSIONAL CONDUCT BOJ , i

INDEX

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IDAHO STATE RAR, Plaintiff, )

v. ) Case No. FC 09-05 JAY P. CLARK, ) VOLUME I

Respondent. )

TRANSCRIPT OF PROCEEDINGS DECEMBER 2,2010

REPORTED BY: BARBARA R. BURKE, CSR No. 463 Notary Public

APPEARANCES Professional Conduct Board:

Page

THOMAS W. WHITNEY, CHAIRMi\..N 604 S. Washington Street, Suite 1 Moscow, ID 83843 LINDA M. EDWARDS P.O. Box 5070 Ketchum,ID 83340 RICHARD G. CLIFFORD 828 8th Avenue Lewiston, ID 83501

For the Plaintiff: BRADLEY G. ANDREWS Bar Counsel CARALEE LAMBERT Assistant Bar Counsel Idaho State Bar 525 West Jefferson P.O. Box 895 Boise, ID 83701-0895

For the Respondent: Larry D. Purviance Law Office BY LARRY D. PURVIANCE

24 2151 W. Hayden Avenue 25 Hayden Lake, ID 83853

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TESTIMOJ\T)T OF MA.TEO CARLOS VARELA PAGE Direct examination by Mr. Andrews 34 Cross-examination by Mr. Purviance 77

Redirect examination by Mr. Andrews 106 Recross-examination by Mr. Purviance 108 Redirect examination 110 I 8

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TESTIMONY OF MITCHELL LEE EGUSQUlZA

I Direct examination by 11r. Andrews 118

11 Cross-examination by Mr. Purviance 157 12 Redirect examination by Mr. Andrews 178 13 TESTIMONY OF JAY PHILLIP CLARK 14 Direct examination by Mr. Purviance 183 15 Cross-examination by 11r. Andrews 241 16

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EXHIBITS PLAINTIFF'S HEARING EXHIBITS: 40. Mountain Home Police Department

Incident Report and enclosures, dated 5/28/2005

41. Affidavit of Refusal to Take Alcohol Test, dated 5/28/2008

42. LD.T. Notice of Suspension for Failure of Evidentiary Testing, dated 5/28/2008

43. Affidavit of Probable Cause for Arrest, dated 5/28/2005

44. Jay Clark's Notes, dated 5/3112005 45. Notice of Appearance and

Plea of Not Guilty, CR-2005-2252, dated 5/3112005

46. Request for Discovery and Notice of Service, CR-2005-2252, dated 5/3112005

47. Response to Request for Discovery and Notice of Service, CR-2005-2252, dated 6/03/2005

48. State's Request for Disclosure of Evidence and Notice of Alibi, CR-2005-2252, dated 6/03/2005

Page 4

(Premarked)

(208)345-9611 M & M COl.JRT REPORTING (208)345-8800 (fax)

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EXHIBITS EXHIBITS PLAJl'.<'TIFF'S HEARING EXHIBITS: 49. Notice of Service, CR-200S-2252,

dated 611 0/200S

(premarked~ 2 PLA.Th'TIFF'S HEARING EXHIBITS: (Premarked)

50. Defendant's Response to Plaintiffs Rule 16 Discovery Request, CR-2005-2252, dated 6/10/200S

51. Fax letter to Philip Miller from Jay Clark, dated 6/10/2005

52. Letter to Jay Clark from Philip Miller, dated 6/20/2005

53. Motion to Continue and Notice of Service, CR-200S-2252, dated 6/21/2005

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54. Response to Defendant's 15

Motion to Continue Jury Trial, 16

CR-200S-2252, dated 6/2112005 17

55. Notice of Hearing, CR-200S-22S2, 18

dated 6/23/2010 19

56. First Supplemental Response to 20

Discovery, CR-2005-2252, dated 6/24/2005 21

57. Notice of Service, CR-2005-2252, 22

/ dated 6/24/200S 23

(Exhibits continued)

EXHIBITS

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66. Notice of Hearing, CR-2005-2252, dated 8/18/2005

67. Idaho Repository Register of Actions, CR-2005-2252, dated 5/07/2010

68. Letter to Jay Clark from Mitchell Egusquiza, dated 7/19/2005

69. Letter to Mitchell Egusquiza from Jay Clark, dated 7/22/2005

70. Bar Complaint, Mateo Varela to Bar Counsel's Office, dated 8/15/2005

71. Letter to Office of Bar Counsel from Mitchell Egusquiza, dated 8112/2005

72. Letter to Jay Clark from Julia Crossland, dated 8/2612005

73. Letter to Mateo Varela from Jay Clark, dated 9/02/2005


75. Letter to Julia Crossland from Jay Clark, dated 9/23/2005

! I

(Exhibits continlled)

EXHIBITS

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PLAINTIFF'S HEARING EXHIBITS: 58. Notice of Substitution of Attorney

(Mitchell Egusquiza), CR-2005-22S2, dated 6/28/2005

(Premarked 2 PLAINTIFF'S HEARING EXHIBITS: 76. Letter to Julia Crossland from

(Premarked)

59. Motion for Hearing Regarding License Suspension, CR-2005-2252, dated 7105/2005

60. Motion to Dismiss, CR-2005-2252, dated 7/06/2005

61. Order Denying Motion and Order to Continue, CR-2005-2252, dated 7/06/2005

62. Amended iVlidavit of Mateo Varela, CR-2005-2252, dated 7/07/2005

63. Objection to Defendant's Motion for Suppression Hearing, CR-2005-2252, dated 7/111200S

64. Order Suspending Driving Privileges Under Section 18-8002, Idaho Code, dated 7/21/2005

65. Order Denying Motion for Hearing Regarding License Suspension, CR-2005-2252, dated 7/22/2005

(Exhibits continued)

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Jay Clark with a copy 0[$218.7S check, statement, and Affidavit of Mateo Varela, dated 10/07/2005

77. Letter to Mateo Varela from Julia Crossland, dated 10/12/2005

78. Letter to Julia Crossland from Mitchell Egusquiza, dated 10/25/200S

79. Letter to Julia Crossland from Mateo Varela, dated 10/25/2005

80. Letter to Jay Clark from Brad Andrews, ISB No. 03-047, dated 7/23/2004

81. Letter to Jay Clark from Julia Crossland, ISB No. 04-015, dated 8/05/2008

82. Letter to Jay Clark from Julia Crossland, ISB No. 05-088, dated 8/07/2008

22 83. Letter to Jay Clark from 23 Julia Crossland, ISB No. 05-139, 24 dated 8/07/2008 25 (Exhibits continued)

(208)345-9611 M & M COURT REPORTlNG (208)345-8800 (fax)

309

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EXHIBITS 2

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PLAINTIFF'S HEARING EXHIBITS: 84. Letter to Jay P. Clark and

11 (Premarked) 2

DECEMBER 2,2010 - 9:15 A.M. (Exhibits 40-83 marked.)

Terry S. Ratliff from Julia A. Crossland, dated 2/26/2009

85. Judgment of Conviction, i

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Withheld Judgment, Commitment Order, Probation Agreement and Order, Case No. CR-2005-0002252

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86. Idaho Transportation Department -Driver Services - Hearing Request for Administrative License Suspension, dated 7/15/2005

14 87. Client Information Sheet, 15 dated 6/21/2005 16 88. HandVvTitten notes prepared by 1i Jay P. Clark 18 89. Objection the Defendant's 19 Motion for BAC Hearing; 20 1 21 1 22 I 23 1 24 1 25 1

EXHIBITS 2 RESP01\TDENTS HEARING EXHIBITS: 3 L. Letter to Idaho Transportation 4 Department, Driver Services 5 Section, from Jay Clark 6 Re: Varela hearing request, 7 dated 6/06/2005 8 N. Attorney-Client Contract-9 Standard Fee

10 O. Complaint, Case No. CV-2002-1413 11 1 12

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CHAI~"J \\1HITNEY: We're on the record in the matter of the Idaho State Bar versus Jay P. Clark. This is Case No. ISB FC 09-05.

It's December 2nd, 2010, and it's 9: 15 in the morning. This is the time set for the dispositional hearing on this case.

Before we begin, are there any preliminary motions from either side?

MR. ANDREWS: No. MR. PURVLA.NCE: No. CHAIRMAN WHITNEY: We had a brief

discussion off the record before we began today's hearing, and I believe there has been some resolution of Count I of the Complaint; is that correct, Counsel?

MR. ANDREWS: Yes. I'll offer it as a stipulation. We have resolved Count 1. We have an agreement that the resolution is not part of this case, and we have agreed to proceed to hearing on Counts II, III, IV, and V.

Then the other issue I would cover is that we've got an agreement to stipulate to the admission ofwhafs been marked as Exhibits 40

Page 12

through 84, and I'll provide the Hearing Committee with a copy of Exhibit 84 -- and also Exhibit L from the Respondent's exhibit list.

So we will have a binder available for the witnesses so that they can review those. They will be tabbed similar to what the Hearing Committee has so they can just follow through those.

CHAIR.1V1AN W"1UTNEY: All right. There were a number of issues covered, Mr. Purviance. Is it accurate that you have resolved Count I by stipulation?

MR. PURVIANCE: Yes. CHAIRMAN WHITNEY: And then your

understanding is Counts II, III, IV, and V are at issue today?

MR. PURVIANCE: Yes. CHAIRlv1AN \\1HITNEY: And how about the

stipulation to admit Exhibits 40 through 84 and Exhibit L? Is that stipulated on behalf of Mr. Clark?

MR. PURVIANCE: It is. CHAIRMAN WHITNEY: Okay. Thank you.

24 Anything else before we begin? 25 MR. ANDREWS: I will provide -- this is

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1 Exhibit 84 for the Hearing Committee. 1

2 CHAIR.,\1AN WHITh"'EY: Thank you. 2

3 Do either side want to make an opening 3

4 statement before we start with testimony? 4

5 MR. PURVIANCE: I believe I would. 5 5 MR . .Al\TDREWS: Yes, I think we can open. 6

7 CHAIRMAN \VHITNEY: All right. Well, 7

8 Mr. Andrews, if you would go ahead and start 8

9 ili& 9 10 MR. Al\TDREWS: Do you want us to stand 10

11 or sit? 11

12 CHAIRMAN WHITNEY: Whatever you want. 12

June 6th of 2005, or June 10th of 2005, or both. Then, following that, he submitted --

on June lath he sent the same request for a hearing that was sent to the Department of Transportation to the Prosecutor in the criminal case with a note or a fax cover sheet that said, "This was sent in error to the Department of Transportation. Will you consider allowing a hearing on the refusal?"

Then about ten days later, the Prosecutor wrote back and basically said that it's his understanding that since the request for

13 MR. ANDREWS: Okay. I think it's a 13

14 little bit easier for us to sit. 14

15 CHAIRMAN WHIThTEY: You may move 15

15 the courtroom. 16

17 MR. ANDREWS: Sometimes I may -- yes. 17

a hearing was not filed with the Elmore County Magistrate Court in a timely fashion, that he did not have jurisdiction to stipulate to allow the license suspension hearing and, therefore, he was not going to be able to stipulate to that.

18 I'll be brief because we have 18

19 previously briefed issues relating to the Motion 19

20 To Dismiss, and we submitted a pre-hearing brief, 20

Shortly after that, Mr. Varela made a decision to switch Counsel and was represented for the remainder of the case by Mitch Egusquiza.

21 so I'll try not to be too repetitive. 21

22 This case relates to Mr. Clark's 22

23 representation of Mateo Valero who was arrested 23

24 and charged with a Driving Under the Influence in 24

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Count II alleges that Mr. Clark failed to abide by his client's decisions regarding the objections to the representation, did not act with reasonable diligence during that time, did

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1 Mr. Varela refused the breathalyzer reasonably consult with his client about his 2 test, so there was no BAC. 2 objections. 3 Mr. Varela first met with Mr. Clark on 3 Now, all of the factual allegations in 4 May 31 st, 2005, and Mr. Clark's representation 4 Count II have been admitted. 5 lasted approximately one month. 5 Now, at the risk of -- you have that 6 The crux of the problem in the criminal 6 available, but I have explained that the 7 case, as it results to this case, was the failure 7 underlying -- but of significance to this case 8 to submit a request for a hearing regarding a 8 is that it was admitted that on May 31, 2005, 9 license suspension for refusal of the blood 9 Mr. Varela retained Mr. Clark to represent him on

10 alcohol examination. 10 the DUI case. 11 The statute that was applicable 11 Mr. Varela infonned him that he did not 12 required that it be filed in seven days, and I 12 want to lose his driver's license and, therefore, 13 think the seven days expired on a Saturday, so 13 wanted to request a show cause hearing before the 14 that would put it on June 6th of 2005 with the 14 Elmore County Magistrate Court. 15 Elmore County Magistrate. 15 Also admitted is that he sent the same 16 On refusals, the request for an 16 request that I previously discussed on June lOth 17 evidentiary hearing goes to the Elmore County 17 to Mr. Miller, stated it was sent in error to the 18 Magistrate. 18 Department of Transportation, and asked whether 19 On cases where the Defendant submits to 19 the Prosecutor would object to a hearing even 20 a blood alcohol examination and fails, then a 20 though the hearing had not been requested with 21 request for a hearing about the license 21 the Elmore County Magistrate Court. 22 suspension on that is filed with the Idaho 22 It's also stipulated that or admitted 23 Department of Transportation. 23 that the Prosecutor responded that the failure to 24 Now, Mr. Clark did file a request for 24 properly present a request for a refusal hearing 25 hearing with the Department of Transportation on 25 before the Court results in the COUli losing

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jurisdiction over the matter, and he did not I agree to waive the jurisdictional requirement. I 2

After the representation was terminated I 3

and he retained Mr. Egusquiza, Mr. Egusquiza I 4

filed a motion for hearing in Elmore County I 5

requesting a hearing under the statute to i 6

deternline whether the license should be suspende4 7

for refusal to submit to the evidentiary test for I 8

alcohol concentration. I 9

On July 22nd, the Court denied that 10

motion. The motion was not granted because the 11

hearing had not been requested by June 6th, 2005, 12

pursuant to the applicable Code, and the Court 13

ordered Mr. Varela's driver's license and 14

privileges suspended for 180 days. 15

I think, with respect to Count II, we 16

disagree that -- the disagreement is not with the 17

factual predicate; the disagreement is the 18

applicability of the Rules of Professional 19

Conduct to those facts. 20

Count III alleges that Mr. Clark 21

violated Rule 8.4(C) with respect to his 22

representations to his client and to the Idaho State Bar about the purported reasons for not submitting the request for a hearing regarding

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to refund the money by mail, and it wasn't refunded in a timely fashion.

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Count V relates to J\.1r. Clark's reply to Mr. Varela's grievance. His response to the investigation included a proposed Affidavit of Mr. Varela, and that's part of -- the Affidavit is part of the record, and there will be testimony about the Affidavit.

We submit and we briefed the elements that relate to the case law on this issue and the application of the rule which would be 8.4(D), Conduct Prejudicial to the Administration of Justice.

The principle is, is the threat to sue Mr. Varela relating to his grievance is with the Idaho State Bar's Conduct Prejudicial to the Administration of Justice.

There's two prongs to that: One is witnesses have immunity under the applicable Rules of Professional Conduct -- I'm sorry -not the Rules of Professional Conduct -- the Bar Commission rules that are rules adopted by the Idaho Supreme Court; and there's also -although the Grievant is not in charge of their grievance once they submit it to onr office, a

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I the refusal. The crux of that Count is that the 1 Grievant's refusal to participate is obviously 2 misrepresentations relate to whether there was a 2 relevant to how a case will proceed. 3 failure to file the request for hearing with 3 I don't think that the letter that 4 Elmore County instead of the Department of 4 accompanies the Affidavit can be read in any way 5 Transportation was an error or by design. 5 other than to constitute a threat to Mr. Varela. 6 The evidence will show that the 6 In fact, in his submission to the Bar -- I'll 7 inconsistencies result in explanations that are 7 paraphrase him -- I think he stated that, "If I 8 misrepresentations. 8 would have realized that I would have been sued, 9 Count IV relates to whether Mr. Clark 9 that I had the possibility of being sued for

10 communicated the basis of his attorney fee to his 1 10 submitting this to your office, I would have 11 client and whether, upon termination of his 111 never started the process." 12 representation, he refunded an advance payment 0t 12 So since we've got a number of items 13 a fee that had not been earned. i 13 that are admitted in the Complaint and we've been 14 There are basic facts that relate to . 14 able to work together with respect to the 15 the return of the fee, and earlier this year 15 exhibits, there's a lot of information that is 16 Mr. Clark refunded $218.75 of the $500 paid to 16 somewhat new to the Hearing Committee that's not 17 Mr. Varela, so we don't dispute that; however, 17 necessarily new to Counsel, but we'll try not to 18 there is a dispute about there was a prior 18 be too repetitive. We'll put on some witnesses. 19 request. He did not offer a refu.nd until the 19 I think, in talking to Mr. Purviance 20 grievance was filed, a..'1d that that grievance was 20 about this, I think we will be able to fmish 21 provided to him by our office. 21 today and we will make whatever -- we will make 22 At that time, he did twice offer to 22 our efforts to do that. Thank you. 23 Mr. Varela that he can come by his office to pick 23 CHAIRMAN WHITNEY: Thank you. 24 up the refund check. Mr. Varela declined; and I 24 Mr. Purviance? 25 think that the issue is that it's a simple task 25 MR. PURVIANCE:

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here today. I appreciate your attention to these matters. 2

Just to start out my statement, I would 3

ask the Hearing Committee to tum to the portion 4

of the response to the Request for DiscovelY that 5

I believe is 47, 48, and 49. 6

In that, there is a document that has 7

a criminal misdemeanor case under the laws of the State of Idaho. A BAC hearing request is a civil case. The only issue in it is the mandatory suspension that comes when one refuses a test by a law enforcement officer that is reasonably requested and is founded on probable cause and reasonable suspicion.

Mateo Varela's traffic record. It looks like a 8

typewritten page, and it's -- in my file it's 9

directly after the Mountain Home Police 10

Department Incident Report. There's an Idaho 11 Unifolm Citation, and then there's a page that 12 looks like gobbledygook to most lay people. It 13

starts out by -- the word on the top is "Term 00," 14

and then it says, "Message routed," and it's 15

essentially a summary of Mr. Varela's record 16

at the time Mr. Clark took his criminal case on 17

May 31st, 2005. 18

Are we all on the same page? 19

MR. CLIFFORD: No. 20

CHAIRMAN WHITNEY: Almost. 21 MS. EDWARDS: I am. 22

What I have just pointed out to you is the possibility that a criminal practitioner in this state who does not notice that his client has a CEL under this argument could potentially find themselves in up to four or even five ancillary civil proceedings on that same driver's license -- including the possibility of judicial review. If it's a felony DlJI, you could have the potential for a lifetime revocation of a license when your client tells you that he has a misdemeanor DUI; in fact, he has a felony DUI. That triggers a lifetime CEL suspension. That involves the Department of Transportation and a federal administrative agency.

Apparently, I would have to get

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MR. CLIFFORD: We're here. 23 CHAIRMAN \VHITNEY: Are you all on tha 24

involved in all of those other license suspensions with all of those different entities if you

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1 MR. CLIFFORD: Yes. 1 defense proceeding is coflated with a BAC 2 MR. PURVIANCE: I would have to say 2 hearing. 3 that our main disagreement here is on the 3 Next, when I was going down through it, 4 interpretation of the scope of the rules here. 4 on the very last line where it says, "Suspension 5 As a criminal defense practitioner, in 5 7/27/2004 until 11115/2005," it states his 6 light of the Bar Counsel's argument, I have shock 6 license was suspended for failure to maintain 7 waves running through my body in regards to the 7 insurance, and it says, "Full SR22 3/02/2005." 8 duty of an attorney who has just recently been. 8 In this case, the police didn't charge 9 retained by a client. 9 Mr. Varela with a Driving Without Privileges.

10 Now, I'll go down here through this. 10 Arguably, they could have under that line right 11 If you go to the line that says, "May be same as 11 there and would have had probable cause to do so 12 page 01 for official investigation purposes only," 12 ifthere was probable cause to charge him with 13 and you go down to the part that says, "CEL 13 a DUI. 14 status - not licensed," if your new client, who 14 My question is, given that this 15 you have no discovery on, has a CEL and he has 15 suspension here was for failure to maintain SR22 16 been arrested for the same charge that Mr. Varela 16 insurance after a variety of prior suspensions, 17 was charged with, there is a potential for -- by 17 does the attorney now have a duty to advise the 18 my calculations -- up to five different license 18 client on this suspension, as well? 19 suspension hearings. One is before a federal 19 Does the attorney have the duty to send 20 administrative body, one is before the Department 20 some SOli of a letter to the Department of 21 of Transportation on the CEL, one could be a BA 21 Transportation on that issue if the police later 22 refusal, and one could be a normal ALS suspensio 22 on decide to charge you with a Driving Without 23 for a normal driver's license. 23 Privileges? 24 I guess my point here is that a BAC 24 So what I'm wondering here -- and what 25 hearing is not part of a criminal case. A DUI is 25 I'm asking the Hearing Committee to think about --


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this issue really does come down to the issue of does an attorney have a duty to file a separate 2 civil proceeding upon taking a criminal case? 3

Your decision here today -- I'm going 4 to emphasize - is going to send shock waves 5 through the Defense Bar in this state if this 6 Committee rules the way that Bar Counsel 7 suggests. 8

Mr. Clark took this case on May 31 st, 9 2005. On June 3rd, 2005, he received this 10 discovery that you now have. 11

We are dealing with one of the shortest 12 time limits that I know of in law. You have 13 seven days after the date of arrest to either 14 file an ALS Suspension hearing request with the 1 15 Department of Transportation or, alternatively I 16 like here, a Request for a BAC Hearing with the ! 17 Magistrate Court. You have seven days to make up18 your mind from the date that your client was 1 19 arrested. I 20

This client came in on May 31 st, which 121 was three days after he was arrested. Given the 22 discovery that was received in this case on 23 Friday, June 3rd, Mr. Clark was presented with a 24

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If you read through the Mountain Home 1 Police Department Incident RepOli, Mr. Varela 2 was -- the reason the police became involved in 3 this case, to begin with -- and Mr. Bergh, the 4 complaining witness, actually lays out the time 5 lines very succinctly. 6

Mr. Varela was approached by the 7

police. He was never stopped. He was nowhere 8 near a vehicle, but he was approached by the 9 police. That becomes a significant factor here 10 on whether a BAC hearing request could have or 11 should have even been filed in this case because 12 a BAC hearing request is based on whether the 13 police had probable cause or reasonable suspicion 14 to believe that the Defendant was under the 15 influence of alcohol. 16

99 percent of the time, a traffic stop I 17 is what initiates a DUI. It just stands to 18 reason. The police notice someone driving 19 erotically, and they stop them which, under the 20 Fourth Amendment of the United States 21 Constitution, is a seizure. 22

A BAC hearing or an administrative 23 license suspension hearing that you file with the 24 State Department of Transportation both almost 25

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alv,'ays contest the validity of the original stop. That almost always is the key factual predicate for filing either one of those motions.

Well, here, if you read the report of the Mountain Home Police Department, Mr. Varela was never stopped. They were investigating a vehicle that was taken from a party and driven to the address where the police met up with Mr. Varela.

At no time during this encounter, according to the Mountain Home Police Department, was Mr. Varela detained, held, an-ested, or not been free to leave.

During this consensual encounter benveen the police and Mr. Varela, he readily admitted that he had been driving and driving under the influence.

If you read Mr. Clark's notes, he told Mr. Clark that he had consumed around five alcoholic beverages, which for the normal person would clearly be over the legal limit.

In this case, it's even worse. He's under the age of 21, so any alcohol in his body whatsoever can constitute an Underage DUI, and

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charged under. So the police get his admissions -- and

even more than that -- for a while he denied that he drove the victim's vehicle to where the police spoke to Mr. Varela.

Wilen the police arrived there, .Mr. Varela was there ,vith a duffel bag that was taken from the victim's vehicle. He had the key to the vehicle in his pocket, and he informed the police that it must have an-ived there by magic. He didn't really have a good explanation.

Our investigator, who is here before the Hearing Committee today, paced off the distance beween where Mr. Varela was approached by the police and where the vehicle was found, and it's less than 150 feet away. Mr. Varela is standing there telling the police he had no idea where the key came from; it must have appeared in his pocket by magic.

So duri_ng this whole conversation there was no restraint on Mr. Varela. There's no reason to even give him Miranda warnings because he's not even in custody.

These are all issues that lay the groundwork for an ALS suspension or a BAC


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1 suspenSIOn. 1

2 Mr. Varela -- finally, after the police 2 3 continued badgering him -- I'll use that word 3

4 here since I am a criminal defense attorney -- 4

5 finally, he turned around and put his hands 5

s behind his back and stated, "Take me. I drank, 6

7 and I drove home." 7

8 For Mr. Clark to have filed a civil 8

9 proceeding in front of the Magistrate Judge 9

10 that's separate and apart from the DUI case -- 10

11 they have different case numbers -- one of them 11

12 is a civil proceeding, one of them is a criminal 12

13 proceeding -- he would have to make under the 13

14 Rules of Civil Procedure and the rules that guide 14

15 all attorneys, he would have to make a good faith 15

16 investigation and believe -- and under the 16

17 prevailing law -- that arguing to the Magistrate 17

18 Judge that there was no probable cause or 18

19 reasonable suspicion that Mr. Varela was stopped 19

20 at the time this set of events took place would 20

21 be to have filed a frivolous motion. 21

22 It would be to extend the scope of his 22

23 duty that he agreed to do with this Defendant, 23

24 and it would be an entirely separate case. 24

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1 the Police Report, you will find what is 2 sometimes called a "Batch Report" that shows 2

3 indeed an attempt was made to file a BAC hearing 3

4 request, and it was given a separate case number 5 from the DUI case and ultimately, as the State 6 Bar's attorney said, the Court ruled that it had 7 been filed too late. 8 Mr. Clark's notes, upon receiving his 9 client, indicate that his client told him he was

10 not driving. That was on May 31 st. Mr. Clark's 11 notes are in the exhibits before you -- actually, 12 it's Exhibit 44. 13 By June 3rd, Mr. Clark had both the

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15 statement of Mr. Bergh who is a victim of a -- 15

16 they were originally investigating whether 17 Mr. Varela took his car and drove it without his 18 consent. That's the reason the police originally 19 approached Mr. Varela. 20 Mr. Clark on June 3rd was already, 21 by my calculations, six days into the seven-day 22 period. He's got a client that told him he was 23 not driving. The Police Report that Mr. Clark 24 received on June 3rd and the witness' statements

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:Mr. Clark, therefore, has to look at whether he could prevail in a BAC hearing when the basis almost always is whether the police stopped this individual unrightfully under the Constitution.

99 percent of the time in -- and Mr. Clark will testify to this -- in a BAC hearing the only witness on the stand is the police officer, and he's got a client that has told him he was not driving. You have a fast decision to make on whether you are going to suborn perjury because that's clearly what Mr. Clark -- and I understand his distress at the consequences of refusing the blood alcohol content request -- this is a client that's very result-oriented. He just wants his license back. He's distressed about that consequence, but under these rules not only would this BAC hearing request have obviously failed -- because there's plenty of reasonable suspicion and probable cause to believe that this person drove under the influence and should have submitted to the blood alcohol content request -- but to have put his client on the stand at that hearing would have

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Based on the arguments and the actual facts of this incredibly short Statute of Limitations, which is the best way to call it, and the fact that the State Bar is arguing that a criminal defense attorney who is representing someone on a criminal case has a duty to file a BAC hearing request when his client hasn't asked for it -- and, furthermore, is convinced that it won't prevail -- is going to send shock waves through the criminal Defense Bar in this state.

I would suggest that this Hearing Committee should look very carefully at these facts and determine, using your own reason and your o\vn experience, whether this extension of these duties is within the Rules of Professional Conduct, and I would submit at this time that they are not. Thank you.

CHAIRMAN WHITNEY: Thank you, Mr. Purviance.

Bar Counsel, are you ready with your first witness?

MR. A.NDREWS: Yes. Call Mr. Varela.

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1 CHiUR-MA.cl\,) W1{IThcY: Mr. Varela, go ahead 2 and have a seat right there. Raise your right 3 hard so you can be sworn, please. 4 (Mateo Carlos Varela sworn.) 5 CHiURMAN \\'1UThcY: Sir, before 5 Mr. Andrews starts questioning you, can you state 7 your name for the record, please, and spell your 8 first and last name. 9 THE W1ThTESS: It's Mateo Varela.

10 M-a-t-e-o. "V" as in Victor, a-r-e-l-o. 11 CHiURMAN WHIThcY: Thank you, sir. 12 I just want to remind you that -- you see the 13 Court Reporter who is taking the record today, so 14 try to speak up because we don't have a P A system. 15 THE WITNESS: Okay. 15 CHiURMAN WHITNEY: One other thing is 17 when you're answering questions, in nonnal 18 conversation you can nod your head or say 19 "Um-hmm" or "Hnun-um." You can't do that here 20 because again we're trying to make a transcript 21 of everything. 22 THE WITNESS: Okay. 23 CHiURMAN WHITNEY: Thank you very much 24 Slr. 25

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A. Yes. Q. \\lbere do you work? A. Suds Tavern.

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Q. Can you just give us a brief descliption of your employment background.

A. I was working at The Carpet Shop during this, and then I was let go.

Then I went to work for Swire Coca Cola in Meridian. I worked for there for a year.

Then I went to work for Budweiser Distributing, and worked there for five years -or four-and-a-half years.

Then I worked at Idaho Distributing in July of this year. I quit Idaho Distributing to work at Suds Tavern.

Q. You mentioned that you were working for a carpet distributor at the time of your arrest in the criminal case?

A. Yes. Q. What was the name of your -A. The Carpet Shop. Q. Yes. A. \\lbat was the name of my position? Q. No, the name of the shop.

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1 are ready. Q. Oh, okay. And what did you do there? 2 2 A. I was a laborer and a flooring 3 MA TEO CARLOS VARELA, 3 apprentice. 4 first duly sworn to tell the truth relating to 4 Q. And was driving a portion of your job? 5 said cause, deposes and says: 5 A. Yes. We had a big contract out at the 6 DIRECT EXAMINATION 6 Air Force Base, so I was driving back and forth 7 QUESTIONS BY MR. MTDREWS: 7 to the Air Force Base every day. 8 Q. Mr. Varela, how old are you? 8 Q. Okay. I would like you to do your best 9 A. 24 years old. 9 to desclibe to me your criminal record.

10 Q. And how old were you at the time that 10 A. Okay. At 16, I believe, I was arrested 11 you were arrested for the DUI that Mr. Clark 11 for Possession of Paraphernalia. Then at 17 I 12 represented you on? 12 had a Minor In Consumption ticket. Then when I 13 A. 18. 13 was 18 -- no, sorry. When I was 18 I got my 14 Q. Can you give us just a brief 14 Minor In Consumption ticket. 15 description of your educational background. 15 Then last April of last year I had 16 A. I went to high school at Mountain Home 16 a DUI. 17 High, and I later went on to Borah High in Boise. 17 Q. That would be April of2009? 18 Q. Did you graduate? 18 A. Yes. 19 A. Yes. 19 Q. Or 2010? 20 MS. EDWA.RDS: Can you speak up just a 20 A. 2009. 21 bit, please. 21 Q. Have you ever been convicted of 22 THE WITNESS: Yes. 22 Reckless Dliving? 23 Q. (BY MR. ANDREWS) When did you graduate. 23 A. Yes, I have. 24 A. 2006. 24 Q. Okay. 25 Q. And are you currently employed? 25 A. I was 15.


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Q. Okay. \1\'hat happened in that? 1

A. I was given a fine, and my license was 2

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Q. Did you plead to Reckless Driving or 4

did you plead to a Basic Rule? 5

A. It was a Reckless Driving. 6

Q. Did you have a Basic Rule violation? 7

A. A speeding ticket? 8

Q. Yes. 9

A. Yes. 10

Q. Okay. How old were you then? 11

A. I was 16 when I got my Minor -- or 12

Possession of Paraphernalia and speeding ticket. 13

Do you want to know the rest of my 14

tickets? 15

Q. Sure. 16

A. In 2008 I had two speeding tickets, I 17

think. 18

Q. At the time that you were arrested for 19 the DUI in 2005, did you have a driver's license? 20

A. Yes. 21

Q. And it was current? 22

A. Yes. 23

Q. Vv'bat was the resolution of your most 24

Q. How do you know Jay Clark? A. I hired him to be my attorney. Q. Okay. Tell me what happened that

resulted in your arrest and, you know, just tell us in your own terms and be -- tell us as much as you can about it.

A. I was at a graduating party for, at the time, the class below me. I blacked out and pretty much came to when I was being arrested.

Q. Okay. You remember more about it than that, don't you? I mean, did you chink at the party?

A. Yes. Q. Okay. How much did you drink? A. I drank -- that I remember, I drank

three beers. I -- you know, I don't know for a fact

or not, but I'm pretty positive that I was slipped something that one night.

Q. Okay. Vv'bat do you think you were slipped?

A. From what I hear, Ecstasy. Q. Does that also go by the name "Roofie"? A. I don't know.

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April of 2009? A. I have heard it, yes. 2 A. I got a Withheld Judgment on that, a 2 Q. SO what happened in terms of -- when 3 year of probation, and a fme. 3 you were getting ready to leave the party, what 4 Q. Did you complete your probation? 4 happened? 5 A. Yes. 5 A. I called my father for a ride, and I 6 Q. And was the Withheld Judgment 6 guess he was on his way to pick me up. 7 dismissed, do you know? 7 I was standing out in front of the 8 A. Well, there was a year of supervised 8 house, and a friend of mine, Ronny Bergh pulled 9 probation, and then I'm currently on unsupervised 9 up. He had been working that day -- or that

10 probation. So there's one more year left on it. 10 night or something -- and he came to say 11 Q. SO you haven't fmished your probation 11 congratulations to everybody, you know, or just 12 period yet on that DUI? 12 say, "Hi." He left his truck running out front. 13 A. No, I guess. 13 My dad got there. I was gone. 14 Q. Tell me what happened in that DDI. 14 Ronny was outside wondering where his 15 \vilat happened? 15 truck was. My dad and him know each other, so 16 A. I was heading home from a promotion for 16 Ronny went around looking for his truck with 17 my job, fell sleep at the wheel, and got in a car 17 my dad. 18 accident. I didn't hit anything or anybody. 18 Later, he found the truck was parked 19 Q. You wrecked your employer's car? 19 down a block from my house, my parents' house, 20 A. Yes. 20 and I was at home. I had been home for a couple 21 Q. Anything else you can think ofin terms 21 of hours now when they finally found the truck. 22 of a criminal background charges, criminal charges? 22 Q. Did your father and Ronny come in and 23 A. No, sir. 23 talk to you about the truck? 24 Q. Okay. Do you know Jay Clark? 24 A. Yes. 25 A. Yes. 25 Q. Vv'bat happened about that?


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A. I told him at the time I didn't know what happened. I didn't know how it got there. 2

The keys to the truck were in my 3

pocket. My cell phone was in the huck. 4

Then I think that -- the cops had came 5

because he might have reported his buck missing. 6

Wilen they got there, they asked me if I drove 7

because at the time I told them, "No, I didn't 8

drive," because I didn't remember -- I honestly 9

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Then I kind of came to, and I was 11

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house and I kind of, you know, was like, "Wow, 13

what's going on? Vvhy am I talking to the cops?" 14

That's when they anested me for Driving Under 15

the Influence. 16

Q. How far was the truck from your house? 17

A. It was about a block. 18

Q. Was it on the same street, or a 19

different street, or -- 20

A. It was on a different street. 21

Q. Do you remember driving the truck to 22

that location? 23

A. No. 24 ?

Page 42

Page 43

A. It's a Saturday. Q. It was a Saturday. A. So it was Friday night we were out, and

then by the time --Q. \Vere you an'ested after midnight, do

you recall? A. It was after midnight, so it was the

28th. Q. SO you were an'ested on Saturday, the

28th; is that right? A. Yes. Q. You can just put that there.

(Indicating. ) A. (Putting the document on the table.) Q. \¥hen you were anested, did the police

give you any papers or anything like that? Did you get a Citation? Did you get anything else?

A. I got a Citation and then a Temporary Permit to go get my driver's license.

Q. Okay. So what did the Temporary Permit say? I mean, just -- not specifically, but what did you understand it meant?

A. \Vell, they made it very clear -- when I st3.1ied to come to reality, I guess, they made it

Page 44

A. A year behind me, so he should have 1 refused to blow, I had seven days to request a 2 been about 23. 2 hearing or I would lose my driver's license for 3 Q. SO he's not your dad's age; he was 3 180 days. 4 closer to your age at the time? 4 Q .. So did you understand that you had a 5 A. Yes. 5 temporary license for seven days? 6 Q. What day of the week was it? 6 A. Yes. 7 A. I think it was a Wednesday night. 7 Q. You refused a blood alcohol-- the 8 Q. The party? 8 breathalyzer? 9 A. Yes. I'm not sure of day of the week 9 A. Yes.

10 that was. 10 Q. Do you recall why you did that? 11 MR. ANDREWS: With your permission, 11 A. No. 12 just have a blank calendar of 2005. (Handing 12 Q. Do you recall your discussion with the 13 document to the witness.) 13 police about that? 14 Q. (BY MR. ANDREWS) I think June is on 14 A. No. 15 top. Is May part of that calendar? 15 Q. Do you recall a discussion with the 16 A. Yes. So it was a Tuesday. 16 police about the key being in your pocket? 17 Q. What date were you anested? 17 A. No. 18 A. Or -- 18 Q. Do you recall--19 Q. Look at May. You're on June. 19 A. 1--20 A. I think I was arrested on a Tuesday, 20 Q. Go ahead. 21 correct, the 31 st? 21 A. \¥hen they were arresting me in front of 22 Q. Take a look at -- I'll represent to you 22 the house, when I said I kind of came to a little 23 you were arrested on the 28th. 23 bit, I didn't -- I remember having them tell me 24 A. On the 28th. 24 that the keys were in my pocket, and I had no 25 Q. What day of the week is the 28th? 25 idea why they were in my pocket. So I didn't


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1 remember about the keys. 2 Q. iilld I think you said you had been home 3 for a couple hours? 4 A. Yes. s Q. SO you were arrested a little bit after 6 midnight, you thought? 7 A. I think so. 8 Q. Was it dark? 9 A. It was dark. Yes.

10 Q. Okay. And so you don't recall why you 11 did or did not take the blood alcohol examination 12 or the test? 13 A. No, I don't. 14 Q. Anything else about the arrest that you 15 recall? 16 A. One of the reasons why I think I was 17 slipped something is because the jailer told me 18 that I was acting really weird, you know, I 19 wasn't acting like I was just under the influence 20 of alcohol. 21 He said I was -- you know, when he went 22 into the drunk tank I was crawled up under the 23 bench. He asked what I was doing, and I said it 24 was hot up there.

Page 46

thing a bunch of times because my hands were 2 sweating really bad. I think he was an EMT or 3 something, and he said it was one of the signs 4 that he saw when people are, you know -- and I 5 have never -- besides not knowing that I have 6 taken it -- done anything like that, and I would 7 never do that. So I can't really relate to it 8 besides it being slipped to me. 9 Q. Okay. How long were you at the jail?

10 A. I don't know how long. 11 Q. Did you spend the night? 12 A. No. My dad carne and bailed me out. 13 Q. SO did your dad post bail for you? 14 A. Yes. 15 Q. All right. Vvnat did you do next about 16 the DUI charge? 17 A. I hired Mr. Clark to be my attorney. 18 Q. Okay. Do you remember when you went 19 see Mr. Clark? You can look at the calendar. 20 I'll represent to you that I don't 21 think there's any dispute it was the 31st of May. 22 Is that correct? 23 A. Yes. 24 Q. What day of the week was that? 25 A. Tuesday.

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Q. When you went to see Mr. Clark, did you have any papers with you?

A. I took my Citation and my Temporary Permit.

Q. That was given to you the night of the arrest?

A. Yes. Q. What did you tell him about your--

just tell me what happened. Vvnat did he ask you and what did you tell him?

A. I told him -- he asked me what had happened. I told him, you know, just what I've told you guys, the whole story and what I knew.

Q. Did you tell him that you weren't driving?

A. I believe I told him that I didn't know if I drove or not.

Q. Okay. Just a minute. Did you tell him that you blacked out?

A. Yes. Q. Did you tell him that you had Ronny's

bag? Just, to the best of your recollection, what did you tell him about the night of the arrest?

Page 48

you guys. Q. Okay. Did you tell him that nobody saw

you driving? A. Yes, because I -- you know, I mean, it

was a couple of days ago. Talking to everybody trying to fmd out what happened, nobody seemed to see me driving.

Q. SO nobody saw you leave the pmiy, and nobody saw you park the car -

A. No. Q. -- and walk or anything like that? A. No.

13 Q. I mean, as you're sitting here, do you 14 think you were driving that night? 15 A. I -- I don't know. I can't say, "Yes" 16 or "No" because, I mean, I -- maybe somebody 17 drove me in the car and gave me the keys. Maybe 18 I was in the passenger seat, and my phone fell 19 out. I don't know. 20 Q. But nobody from the paliy came forward 21 and told you that they drove you home? 22 A. Correct. 23 Q. And you kind of snooped around a bit to 24 see if you could find anything out; correct? 25 A. Yes. .


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Q. \'v'hat did you tell Mr. Clark about 1

your license? 2

A. I asked him about it because this was 3

the first time I ever been charged with a DUL I 4

told him about the seven days -- or asked him 5

about it, and he said that he would request a 6

hearing for it. 7

Q. Did you tell him that you refused the 8

breathalyzer? 9

A. Yes, because that's the whole reason 10

he would have to make the request for the healing 11

was for that -- 12

Q. Did you talk about the terms or the 13

fees for your representation? 14

A. He told me it was $500 for a retaining 15

fee, and I paid him in cash. 16

Q. Did you pay him cash that day or did 17

you pay him later? 18

A. I believe I paid him all at once. 19

Q. Well, what was your understanding about 20 what did the $500 -- what was that for? 21

A. For him to represent me. 22

Q. Okay. On the DUI case? 23

A. Everything. 24

Page 50

Page 51

to jury trial and it could be more? \Vas that your understanding?

A. Yes. Q. Do you have any recollection of any

discussion about the fee being nonrefundable? A. No. Q. \Nben you left the -- how long did you

meet with Mr. Clark, do you recall? A. Do you mean the first visit? Q. Yes. A. Maybe for an hour after the arrest. Q. When you left, what did you think was

going to happen about your license? A. I thought that I was going to have a

hearing on that, basically, and try and save my license.

Q. What was your understanding of what that hearing would be about?

A. That I would go for a hearing to explain why they didn't have probable cause for -- why they -- for the breathalyzer.

Q. Okay. To refuse -- they didn't have probable cause to refuse the breathalyzer?

A. Or to take it in the first place.

Page 52

1 A. I saw it as the request for hearing and even offer it? 2 the DUr. 2 A. Yes. 3 Q. You saw it as the same thing? 3 Q. Okay. And did he tell you you might 4 A. Yes. It was all together. 4 not prevail on that hearing -- you might not win? 5 Q. Did you have an understanding whether 5 A. He didn't tell me anything at first. 6 that fee was nonrefundable? 6 It was just, "Let's get the hearing first.!! 7 A. No, I didn't. 7 Q. Okay. So what was your objective in 8 Q. Did you have an understanding whether 8 hiring :Mr. Clark about your license? 9 the fee could be more or less than $500? 9 A. . I didn't want lose my license. It was

10 A. He told me that it would be more than 10 pretty important, so --11 $500, I think, ifit went to a jUly trial maybe -- 11 Q. Vlhy was it important? 12 or maybe ifit went past the -- than as the 112 A. Because I drove -- you know, when I was 13 normal thing. 13 15 and I got my license suspended for a Reckless 14 Q. \Vbat do you mean by "normal"? 14 Driving ticket, that was a pain, and I didn't 15 A. If it went past, you know -- say it 1 15 want to go through that again. 16 went to jury trial and it was more than the 1 16 Q. Okay. Take a look at the calendar. 17 standard -- I don't know how to explain it. If 17 What day of the week is June 3rd? 18 it went further past more work involved than I 18 A. Friday. 19 guess a normal case. 19 Q. Do you recall talking to Mr. Clark on 20 Q. Just a plea? Is that what you mean? 20 June 6th -- let me put it this \vay: 21 A. Yes, a plea. 21 After you met with Mr. Clark on the 22 Q. SO if you plead guilty to something, 22 31 st, when was the next time you talked to him? 23 then you understood that that was covered? 23 A. It was June 6th. 24 A. Yes. 24 Q. Okay. 25 Q. But if you didn't plead guilty, it went 25 A. It was about my license.


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Q. Tell me what happened about that. A. I knew -- because I was counting down

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the days because I was going to lose my driver's license -- I called the Idaho Department of 4

Transportation and asked them "\Vhat's going on?' 5

That's Vi"hen they told me it was sent to the Vi'fOng 6

place; it was supposed to go to the court.

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told you --A. That it was supposed to go to the

courthouse. Q. .And did you talk to him about that? A. Yes. Q. And did he tell you that the Department

of TranspOltation was wrong? A. Yes. The Department of Transportation

was wrong. Q. Okay. So what did he tell you was 10

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A. To make sure my license was valid -to see if my license was valid.

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license was still valid? A. Yes. Q. What did they tell you? A. They said no, it was not. Q. It was not valid, so you didn't have a

valid driver's license? A. Yes. Q. Did you speak to Mr. Clark in that time

frame? A. Yes. I called him and asked --

June 6th is when I called. The lady -- that's when she told me it was supposed to go to the

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conrthonse, not to them She said she received i 25

A. That's when he told me that when I got -- it didn't matter if I got a hearing or not, that I had -- that I didn't have a chance to win it.

Q. Okay. Did you ask him to still proceed with trying to have a hearing or did you --

A. I believe I did, yes. I think I still wanted a -- I wanted to keep having a hearing because I didn't want to lose my license. That was the biggest thing, was I didn't want to lose my driver's license, so I wanted to keep pushing in whatever way we could to try to keep my driver's license

Page 54 Page 56

something, but it was supposed to go to the Q. And did he tell you that he wouldn't 2 courthouse. 2 keep pushing or that he would? 3 That's when I called :MI. Clark, because 3 A. I think we kind of ended at I didn't 4 I was lost and confused and I wanted to know what 4 have a chance to win, but, you know, he would 5 was gomg on. 5 check on it or something like that. 6 Q. V\'hat did you ask? 6 Q. Okay. At the time that you were having 7 A. I asked him -- or I told him, you know, 7 that discussion with Mr. Clark, had you seen the 8 that my driver's license was suspended, and I was 8 Police Reports or anything like that? 9 wondering if we were going to COUlt or what's the 9 I mean, you had your Citation and I

10 deal. 10 think you had your Notice of Suspension. Had you 11 Q. And what did he tell you? 11 seen any other Police Reports. 12 A. He said that -- no. I also explained 12 A. No, I didn't -- well, I think I might 13 that the lady at the Department of Transportation 13 have seen my Police RepOlt. 14 told me it was sent to the wrong place, and I 14 Q. When did you think you had seen your 15 told him about that, and he said, "No, it's 15 Police Report? You have seen it since, I take 16 supposed to go to the Department of TranspOltation. '16 it. You have seen it? 17 Then that's when he kind of started 17 A. Oh, yes, I've seen it. 18 giving me the lUnaround on I didn't have a case, 18 Q. Do you remember having a Police Report 19 anyway, so it wouldn't matter if! got a hearing 19 when you called the Department of Transportation? 20 or not. 20 A. No. I don't think I had seen it yet--21 Q. Okay. At the time that you spoke, did 21 by then, no. 22 he tell you that he submitted a request for 22 Q. Wbat happened next about your driver's 23 hearing to the Department of Transportation? 23 license being revoked? Wben did you next have 24 A. Yes. 24 occasion to talk to anybody about your driver's 25 Q. But the Department of Transportation 25 license?


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Page 57

A. I think I -- I kept checking the Department of Transportation on it. After realizing it wasn't going anywhere, I got ahold of :Mr. Clark and asked what was going on.

Q. \Vhat did he tell you? A. The next time we spoke he kind of --

you know, he made it sound like I didn't have a chance to win, and to quit wOIl)"ing about it --just kind of being really sketchy.

Everything kind of went from, "Hey, it's all good," to -- I don't know what was going on.

Q. What did you do about it? A. I was asking around at my family's

restaurant, and somebody told me about Mitch Egusquiza -- because I was complaining about all this and, you know, the way he was kind of treating me and everything that was going on. That's when I heard, you know, about Mitch, and I went and talked to Mitch.

Q. Do you remember about when that was? I think Mitch substituted in as counsel in late June. Do you recall using that kind of -- that time frame, do you recall when you talked to Mitch?

Page 58

to him. Q. What did you talk to him about? A. I explained everything that was going

on between me and Mr. Clark and the whole thing with my driver's license. I explained my case to him.

That's when he told me, "Well, you had a case. We can still try and go for it."

Mr. Clark told me that I didn't have a shot at getting my driver's license back because of the hearing -- at the hearing -- I didn't have a shot at the hearing for the review, but Mitch told me I did. He explained to me why and how I had a case.

I think that's when he got kind of concerned with how I was treated by Mr. Clark, represented, and he took it from there.

Q. Did you hire him at that time? Did you just talk to him as a friend or --

A. It was a consultation, a free consultation when I went in to see him.

Q. And then did you decide to hire him? A. Yes.

24 Q. And what were your arrangements with 25 him? Did you agree to pay him?

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A. Yes. Q. Wnat was the arrangement? A. I don't know what the amount was. Q. Was he going to bill you for his time

or did you --A. I think I paid some money up front, and

then he was letting me pay the rest with payments. It might have been somewhere around $200 each payday or something like that.

Q. SO you paid some money up front, and then you agreed to pay money as you went?

A. Yes. Q. Okay. In the book in front of you,

I would like you to take a look at Exhibit 51. Do you remember ever seeing that

sometime around June 10th of 2005? A. I believe Mitch showed this to me. Q. Okay. Take a look at Exhibit 52.

Had you seen that when Mr. Clark was representing you?

A. Some of the duration of when he was representing me, yes, but I don't remember exactly when it was.

Q. Is this the time frame that you were ?

Page 60

1 A. Yes. 2 Q. Okay. Did you fire Mr. Clark, or did 3 you call Mr. Clark to tell him that you didn't 4 want him to represent you anymore? 5 A. No. Mitch let me know that he would, 6 I guess, let him know that Mitch was going to be 7 representing me. 8 Q. SO Mitch contacted him? 9 A. Yes.

10 Q. Okay. All right. 11 Did you know when your trial date was 12 set before you hired Mr. Egusquiza? 13 A. I don't remember if I did or not. 14 Q. Okay. What did Mr. Egusquiza do in 15 your case about your license? 16 A. He contacted the Department of 17 Transportation -- or the Prosecuting Attorney --18 I can't remember which one -- to ask if there was 19 any chance of -- ifI could have a second shot at 20 it because Mr. Clark, I guess, screwed up the 21 first time. 22 Q. Would you take a look at Exhibit 59. 23 Do you remember authorizing him to file 24 a motion about your license suspension? 25 A. Mitch?


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Q. Yes. A. Yes.

Page 61

Q. And did he prepare an Affidavit for you in support of that? Do you recall that?

Take a look at Exhibit 62. Is that your signature on page 2 of Exhibit 62?

A. Yes. Q .. A.nd what did you understand -- did

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Mr. Egusquiza tell you what the grounds for your 9

request for a hearing were or how it would work i 10

ifitwas granted? 111 A Y 112 "~. es. Q. Okay. What did he tell you? 13

A. About the hearing? 14

Q. Yes. 15

A. I guess if we got the hearing, then we 16

would go to explain why, you know, that I refused 17

the breathalyzer. 18

Q. Okay. Did you get to go to hearing? 19

A. No. 20 I

Q. What happened? 121

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Q Okay What happened in the case after I 25

Page 621

the hearing was -- the hearing regarding your driver's license suspension was denied?

A. My case against Mr. Clark or my DUI charge?

Q. No. In your criminal case, what happened?

A. They later on got it dropped to a Minor In Consumption because they had no proof that I was driving -- which was the whole grounds for the request for a hearing.

Q. Okay. Were you sentenced on the Minor In Possession?

A. It was Minor In Consumption. Q. I'm sorry. Minor In Consumption. Were

you sentenced? A. Yes. Q. Do you remember what the sentencing -

what the telms were? Just to the best of your -A. It was on -- (Pause.) Q. We have a copy of that Judgment. If

there's no objection --

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MR. ANDREWS: -- 85. (Exhibit 85 marked).

Page 63

CHAIRMA~ wlIITNEY: Plaintiffs 85 is being admitted without objection; is that COlTect?

MR. Pl.JRVlANCE: That's true. CHAIRMAN WHITNEY: Thank you. So

Plaintiffs 85 is admitted. Q. (BY MR. ANDREWS) I'll show you what

has been marked as Exhibit 85. That will speed things up a bit.

So you did get a Withheld Judgment on that; cOlTect?

A. Yes. Q. And you were fined $1,000 with $700

suspended and court costs. Do you recall that? A. Four days SILD, yes. Q. Did you complete two days in jail or

did you do the SILD? A. I did the SILD. Q. You were on unsupervised probation for

a year; is that COlTect? Look down at the bottom.

A. Yes, unsupervised. Q. Okay. And about in the middle of the

page -- your driver's license was suspended for Page 64

180 days? A. Yes. Q. But that began June 6th of2005? A. Yes. They backdated it for me. Q. At the time that you were sentenced,

did you have your license back? A. Yes. Q. You were sentenced in January? A. Yes. Q. SO you--A. I just had to pay a reinstatement fee.

Even though it wasn't suspended again, they ordered me to pay the reinstatement fee.

Q. Who did you pay the reinstatement fee to?

A. The Department of Transportation. Q. SO after the 180 days ran, you went and

got your license back? A. Yes. Q. All right. I want to go back to the

June of 2005 time frame. MR. PURVIANCE: No. 22 After you lost your license, what MR. ANDREWS: -- why don't we mark thi

as Exhibit -- where are we? MS. Hill: Exhibit 85.

23 happened with respect to your employment? 24 A. I guess it was kind of a pain because

I 25 I had to keep getting picked up and dropped off. (208)345-9611 M & M COURT REPORTING (208)345-8800 (fax)

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A. Yes. 2 3

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So they pretty much let me go because I didn't have a driver's license.

Q. \\filen did they let you go? 2 3

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Q. Okay. \\1hat did you guys talk about that?

A. It was in late November, I believe. Q. Of2005? A. Yes.

A. We just both agreed that the way he handled my case, the way he was acting, that he should -- yes, we should file it.

Q. Okay. Take a look at Exhibit 70. 7

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Q. And did you look for work after that? A. Yes, I did. I got -- my buddy got me a Is that the Complaint that you filed?

job at Coca Cola in December. A. Yes. 10

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Q. In December? A. Yes. Q. SO you found another job? A. Yes.

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Q. And if you look at the second page of that exhibit and the third page, is that your statement --

Q. Was that ajob that required driving? A. No. It was a warehouse job. Q. You got your license back pretty quick

after that, though, didn't you? A. Yes. Q. All right. During the time that

A. Yes. Q. -- that you submitted? A. Yes. Q. Did anyone help you prepare that? A.Mitch did. Q. Did they type it up for you? A. Yes.

Mr. Egusquiza represented you, did you discuss the fees that you paid to Mr. Clark?

Q. Okay. \\Thy don't you take a minute to read that, and then I just want to ask you --

A. Yes. I want you to let me know if it's accurate. Q. What did you tell him? A. Yes, it is. A. He asked me how much I had paid him. Q. And then did -- take a look at

I told him, and I thought that I '",'as treated 66\

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Exhibit 71 Is that something that Mitch gave to Page Page 68

unfairly and I should get a refund. you to also submit with your Complaint? 2 Q. You should what? 2 A. Yes. 3 A. I should get a refund from Mr. Clark. 3 Q. SO you submitted your statement and 4 Q. Take a look at Exhibit 68. 4 Mitch's letter? 5 It's copied to the client. Was that 5 A. Yes. 6 you at the time? 6 Q. Is that correct? 7 A. Yes. 7 A. Yes. 8 Q. Do you remember getting a copy of this? 8 Q. All right. \\Then did you send that? 9 A. Yes. 9 If you look at page 1 of Exhibit 70,

10 Q. Did you authorize Mr. Egusquiza to send 10 when did you send that to the Bar. 11 that letter? 11 A. On which page? 12 A. Yes. 12 Q. Exhibit 70, page 1. Do you remember 13 Q. What was the response, do you remember? 13 when you sent this in to the Bar? 14 Take a look at Exhibit 69. Did you 14 A. I think it was around August 15th. 15 ever see a copy of that? 15 Q. Okay. All right. 16 A. Yes, I did. 16 Then take a look at Exhibit 73. 17 Q. \\That happened after that? Did 17 Do you remember receiving that letter 18 Mr. Egusquiza do anything? 18 on September 2nd, 2005? 19 A. Yes. Me and him met several times on 19 A. I didn't know if this was sent to my 20 it, about -- kind of just like, "Hey, how is it 20 parents' address or -- no, I -- yes, it was sent 21 going? What's going on with this?" and he let me 21 to my parents' address, but -- (Pause.) 22 know -- he showed me. 22 Q. Were you living with your parents at 23 Q. Okay. At some point, did you talk to 23 the time? 24 him about filing a Complaint with the Idaho State 24 A. I was, yes. 25 Bar? 25 Q. Okay. So do you remember seeing


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Exhibits 73 and 74? 2 A. I believe I saw 74. 3 Q. Okay. Did you make an appointment to 4 go pick up the check?

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we had. Q. Take a look at Exhibit No. 79. Look on

page 2. In paragraph 4 where -- if you go down

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to the portion, "Had I thought that filing a Complaint against Mr. Clark would get me sued, I would not have done anything."

8 put me through, I didn't really want to see him. 9 Q. Okay. Take a look at Exhibit 77, please.

1Q Do you remember receiving Exhibit 77 11 with Mr. Clark's response to your grievance? 12 A. Yes. 13 Q. Well, take a look at Exhibit 76. Back 14 up one. 15 Do you remember receiving that, 76? 16 I think you're --17 A. Yes. 18 Q. Look at the -- there's an Affidavit for 19 you at the end of it. 20 A. Yes. I remember getting that. 21 Q. Okay. Wnat did you do when you 22 received that Exhibit 76? 23 A. I took it to Mr. Clark. 24 Q. I'm sorry?

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A. Yes. Q. What did you mean by that? A. I was 18, and I didn't know how

everything worked exactly. I wanted to file a Complaint because I thought it deserved to be filed, but then I guess I kind of got scared by the whole being sued thing.

Q. Okay. In response to -- are you looking at Exhibit 79?

A. Yes. Q. Is that what you sent to our office in

response to Mr. Clark's letter to our office? A. Yes. Q. And Mitch's office helped type that up? A. Yes. Q. \Vhen Mitch's office helped type it up,

is it still in your words? Is it your words and ?

Page 70 Page 72

1 took it to Mitch. A. Yes. We went over it. Yes. 2 Q. And did you have a conversation with 2 Q. You went over it. Mitch told you to be 3 Mitch about it? 3 sure that you were comfortable with it when you 4 A. Yes. 4 sent it in? 5 Q. What was the nature of your conversation? 5 A. Yes. 6 A. I think Mitch just kind oflaughed and, 6 Q. Now, you have since received a $218.75 7 you know, kind of it was more of an "icing on the 7 check from Mr. Clark; is that cOlTeet? 8 cake" of everything that was going on. 8 A. Yes. 9 Q. Did you read the Affidavit? 9 Q. Okay. Tell me how that came about.

10 A. I did, yes. 10 A. I believe it was the last time I was 11 Q. Were you willing to sign it? 11 contacted from the Idaho State Bar about this 12 A. No. 12 case. It got -- I don't know what the term is, 13 Q. Vvbat did you think about, you know, the 13 but it got pushed further back. 14 letter? Did it concern you? 14 You know, I kind of -- I was kind of 15 A. Yes, it did. It kind of, you know, 15 broke at the time -- honestly, I mean, this thing 16 scared me. I hadn't ever been sued before or 16 was taking forever, so I asked -- I thought it 17 anything. 17 was a long shot, but I was going to call and see 18 Q. Okay. What did you think about that? 18 if he's still willing to give me that check. He 19 Did you talk to Mitch about it? 19 sent it a couple of days later. 20 A. Yes. 20 Q. SO you received it in the mail? 21 Q. Did Mitch think that you might get 21 A. Yes. 22 sued? 22 Q. Okay. And that was, to the best of 23 A. No. 23 your recollection, earlier this year? 24 Q. What did he tell you? 24 A. Yes. 25 A. I don't remember our conversation that 25 CHAIRMAN WHITNEY:

(208)345-9611 M & M COURT REPORTING

Can I intenupt? (208)345-8800 (fax)

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I'm not sure I understood the testimony. MR. A.~'DREWS: Sure. CF .. AIRJ'v"LAN VvWTNEY: You said, "I gave

hin1 a call and asked about the check." Who is the "him."

THE Vv1Th'ESS: Mr. Clark.

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CHAlR1\1AN VvWTNcY: Okay. Did you speak 7

to Mr. Clark directly or one of the offIce staff. I 8

THE VlITh'ESS: Yes -- Mr. Clark. I 9

at the time. Q. Wllat's that address? A. I didn't -- no, this isn't -- this was

my address. Q. Okay. A. It was before, but not at the time of

this letter. Q. SO you recall receiving it? A. I don't remember.

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called his offIce, and I talked to him. CHAlR1\1..A..,.~ VvWTh'EY: Thank you. I just

wanted to clarify. I wasn't sure if the "him"

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MR. ANDREWS: We will move for the admission of Exhibit 86 because I guess I could have asked that fIrst and saved us all a lot of

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Mr. Andrews, go ahead. CHAIRMAN \VI-IITNEY: Any objection? MR. A.1\TDREWS: Okay. Wlly don't we mark

this. I just thought of another exhibit. What MR. PtJRVIANCE: No. CHAIRMAN WHITt\lcY: 86 will be admitted

are 'Ne on here? without objection. MS. HILL: Exhibit 86. (Exhibit 86 marked.)

Which is the exhibit, the whole thing? MR. ANDREWS: Yes. It's the combination

of --Q. (BY MR. AN'DREWS) I'm so sorry. Let me show you what has been marked as Exhibit 86. Would you take a look at that.

CHAIRMAN \VHITNEY: Oh, I see what you're saying. Thank you.

My question is, do you remember receiving Exhibit 86 in mid-July, 2005?

So Exhibit 86 is a five-page document. Mr. Purviance, have you seen the whole thing?

MR PIIRVIANCE' I have i 25

Page 741 25 A Yes

Page 76

1 Q. It says on page 1 that your driving 11 ClLAIR:MAN WHITNEY: Mr. Andrews, we can 2 privileges are valid. Do you see at the bottom 2 go ahead when you're ready. 3 \vhere it's all check-marked? 3 MR. AJ'mREWS: Yes. This might clarify 4 A . Okay. 4 this -- I'm sorry. Let's just see if we can 5 Q. Did you understand that your driving 5 close up. I have created a problem. 6 privileges were valid when you received this? My! 6 Q. (BY MR. A..l"'IDREWS) Take a look at 7 question is, did you st31i driving after you 7 Exhibit 64. Have you got that? Do you remember 8 received this? 8 getting that in your case? 9 A Yes. 9 A. Yes.

10 Q. You thought your -- 10 Q. Okay .. And so did you understand that 11 A. Because I remember calling, and it 11 your privileges were suspended for 180 days 12 was -- my license was valid. It was on like a 12 commencing on June 6th, 2005? 13 day-to-day basis -- I was calling every day to 13 A. Yes. 14 check on it if it was valid. 14 Q. And you got that on July 21 st of 2005 15 Q. At the Depaliment of TranspOliation? 15 or somewhere close in that time? 16 A Yes. 16 A. Yes. 17 Q. Was the fax. cover sheet that's part 0 f 17 Q. June 6th of 2005 for 180 days? 18 86, was tbatsentto you, as well? 18 A. Yes. 19 A Okay. So I'm lost. You asked me ifI 19 MR. ANDREWS: Thank you, Mr. Varela. 20 received this; correct? 20 That is all I have ofMr. Varela. 21 Q. Yes. Do you remember receiving it? 21 ClLAlRMAN WHITNEY: Thank you, 22 I mean -- let's -- is that -- were you living at 22 Mr. Andrews. 23 that -- is that an address that you were living 1 23 It's 11 :00. We haven't had a break 24 where you would receive mail in July of '05? 24 since we started this morning. Let's take a 25 A No. I was living at my parents' house 25 ten-minute break and be back here at 11:10 for


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cross-examination. 1

(Recess taken.) 2

CHAlR11AN VlHITh'EY: Let's go back on the 3

record. It's 11: 12. We just finished the 4

moming break. 5

We had concluded the testimony by 6

Mr. Varela on direct, and now it's time for 7

cross-examination -- if there will be any. 8

Mr. Purviance, did you want to 9

on the left side that says, "SUSP 9/27/2000." Do you see where that is?

A. 9127/2000? Q. Yes. That's when you were suspended

for your -- your driver's license was suspended for your first --

A. Minor In Consumption. Q. Yes. A. Yes.

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cross-examine Mr. Varela? 10

MR. PURVIANCE: Yes. 11

Q. And then you were suspended again on 10/16/2002 for Reckless Driving. Do you see that?

CHAlR11AN WnIThTEY: Go ahead when 12

ready to proceed. 13

14 14

15 CROSS-EXAMINATION 15

16 QUESTIONS BY MR. PURV~~CE: 16

17 Q. Mr. Varela, in your book would you turn 17

18 to Exhibit No. 43. 18

19 If I'm wrong on that, I'm going to ask 19

20 you to keep turning until you get to a document 20

21 that is captioned "Mountain Home Police Department 21

22 Incident Report." 22

23 Actually, it's 47, I think. Do you see 23

24 something called the "Mountain Home Police 24

A. No. It wasn't for the charge of the Reckless Driving. It was for -- I had SR22 Insurance.

Q. But you were suspended for a month -almost a month there, 10116 to 11115?

A. Yes. Q. And then you were suspended again on

12129/2002 until 1I28/2003? A. Yes. Q. And then you were suspended again on

9/05/2003 until 11115/2005? A. Correct. Q. And then you were suspended again on

25 "? ? ?

Page 78 I Page 80

1 A. "Crime Incident Report "? 1 A. Yes, I see that one. 2 Q. Yes. 2 Q. Then, finally, on that record that was 3 A. Yes. 3 run on May 28th, 2005, you were suspended on 4 Q. Have you seen that report before? 4 7/27/2004 until 111l5/2005? 5 A. Yes. 5 A. Yes. 6 Q .• -\TId have you read it? 6 Q. SO this DUI and refusal that you hired 7 A. Yes. 7 Jay to help you on, that would have been your 8 Q. Would you tum to right after that 8 seventh suspension in your life? 9 Mountain Home Police Department Incident Report 9 A. What all those suspensions were from

10 it's like four pages. 10 wasSR22insurance. 11 Then there's a ticket that's called an 11 Q. Right. 12 Idaho Uniform Citation, No. 37590. Is that right 12 A. You have to maintain insurance. 13 after that Incident Report? 13 Q. Right. After you're suspended, and if 14 A. Idaho Uniform Citation? 14 you don't, you get re-suspended? 15 Q. Yes. 15 A. Yes, until you pay again, and then you 16 A. Yes. 1 16 have to pay another reinstatement fee. 17 Q. Then, [mally, there's a page that 17 Q. Right. But would you agree, from my 18 should be next that shows your driving record. 18 reading of this, that the BAC refusal that you 19 A. Yes. 19 got with Jay was your seventh suspension? 20 Q. And do you see a date on that? 20 A. No. There was a few in there -- yes. 21 A. Where is the date at? 21 Q. Okay .• And then your testimony is that 22 Q. It's on the third line down. It says, 22 you received another DUI in 2009? 23 "5/28/2005." 23 A. Correct. 24 A. Yes. 24 Q. And you were suspended on that; correct? 25 Q. Would you look down to the fIrst item 25 A. Correct.


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Q. Did you refuse to blow on that case? 1

A. Yes, I did. 2 Q. Okay. And so you got a one-year 3

license suspension on that, did you not? 4

A. Yes. 5

Q. Are you still suspended on that? 6

A. No. 7

Q. Betvi7een your 2009 Dur and 2005, did YOUI' 8

have any other alTests of any kind? i 9

A. Between -- \10 Q. Between the time that you were arrested 11

on Jay Clark's case until you were arrested on 112

the 2009 DUr, did you have any other arrests? 1 13

A. No. \14 Q. SO that 2009 Dl.J1 would be your eighth . 15

license suspension? 16

A. Actually, if you want to count them, 17

I've had probably nine now because I was late on 18

an insurance payment last month, so they 1 19

suspended my license again. I 20

Q. Okay. So you're suspended right now? 121

A. No. It only stays suspended until you 122

pay the insurance again. 123 Q. Okay. So when you came in to see 124

Mr Clark on May 31 st, )010 (sic), yoa had jast I 75

Page 82

been arrested for your first DUI? A. Con'ect. Q. May 31st, 2005. I'm sorry.

Would you turn back to the Mountain Home Police Department Incident Report. The report states that Mr. Bergh was the one that called the police on you. Does that sound' familiar to you?

A. r think he called the police on his truck being missing, not on me.

Q. Right. Yes -- because the truck was missing?

A. Yes. Q. And then he anived a short time later

at your parents' house where you were? A. Correct. Q. And they actually found the pickup not

very far away? A. A block -- about a block away from the

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A. Con'eet. I told them that I remember having beers.

Q. Okay. At what point in that evening did you black out?

A. Right after that -- right in the middle of that third beer.

Q. Okay. /illd you don't remember getting into Mr. Bergh's pickup?

A. No. Q. But you probably did drive it there,

didn't you? A. I don't know. Q. You were the only person at your house,

and you had the duffel bag from that vehicle, did you not?

A. It was a backpack. Q. Okay. You took it out of the pickup? A. Yes. I had it at my parents' house. Q. And you left your cell phone in the

pickup? A. Yes. Q. And you had the key to the pickup in

your pocket? A. Yes. Q It Iva S in yonr pocket')

Page 84

A. Yes. Q. SO it would appear that -- it would be

pretty logical that you were the one who drove there?

A. Yes, I guess you could say that. Q. You signed an Affidavit that went to

court once you hired Mitch Egusquiza to represent you?

A. Are you asking me? Q. Yes. A. Yes. Q. In that Affidavit -- it would be

Exhibit No. 62 if you can turn to that. Do you see the Affidavit that you

signed under oath? A. Did you say 62? Q. I believe it is 62. A. Yes, I see it. Q. Do you see paragraph No.5? A. Yes.

21 Q. And you were extremely intoxicated at 21 Q. You stated that no law enforcement 22 that point? 22 officer or any other witness actually observed 23 A. Yes. 23 you in physical control of the operation of a 24 Q. And you told the Bar that you had three 24 motor vehicle? 25 beers? 25 A. Correct.


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Q. But you're not disputing here today that you probably did drive that night?

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A. I don't remember. I can't say that I did or I didn't.

Q. You don't have any memory? A. No memory. Q. You were that drunk? A. Yes. Q. Okay. But the law enforcement officers

at the scene -- and you're not disputing what was in the Police Report -- probably actually did have a pretty good idea that you had driven that truck, did they not?

A. The police officer? Q. Yes. A. Yes. They believed that I did. Q. Well, given the fact that you were

within sight of the pickup, and you had the duffel bag out of the pickup, and your cell phone was found in the pickup, wouldn't a logical conclusion be that you drove that pickup there?

A. The pickup was down the street. It wasn't in my sight.

Q. But you had the keys to it. A I did have the keys to it, and my

Page

1 cell phone was in the huck. 2 Q. But a person would think that you 3 probably were the one that drove it there? 4 A. Yes. 5 Q. And, in fact, the police did think that? 6 A. Yes. 7 Q. And that's why you were arrested; 8 correct? 9 A. Correct.

10 Q. Yet, on the night that you were 11 arrested, you told the police that you had no 12 idea how the key got into your pocket? 13 A. Yes. I told them that. 14 Q. And you told them that it must have 15 gotten there by magic? 16 A. I guess so. 17 Q. You did? 18 A. That's what the report says. I don't 19 remember, though. 20 Q. That's probably not true, is it? 21 A. What? 22 Q. The key probably didn't get in your 23 pocket by magic. 24 A. Probably not. 25 Q. That's a lie, isn't it?

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A. 'What's that? Q. That the key got into your pocket by

magIC. A. I was intoxicated that night. Q. But that wasn't the truth? A. I don't know. Q. Well, did it get in there by magic? A. Vv'hat do you think? Q. I don't think it did. A. Okay. Q. SO I don't think you were telling the

truth, were you? A. Okay, okay. I was intoxicated that

night. Q. But you weren't telling the truth? A. I don't know. Q. Okay. And at that point in time, you

actually admitted to the police that you drank and drove?

A. That was in the Police Report, yes. Q. And you don't dispute that? A. I didn't remember. Q. But you don't have any reason not to

think that you told them that? A That 11la~ in the Police Report

Page 88

I believe that the cops were telling the truth, that I said that. I don't remember saying that.

Q. SO you don't have any reason to believe that that's not true?

A. I don't know. Q. Yet, in your Affidavit that you filed

7 with the cOUli you state that the police had 8 no -- you stated under oath that they couldn't

I 9 have knO\vn that you were driving? 110 A. Yes -- because obviously nobody saw me

11 drive; right? 12 Q. But you told them you drove? 13 A. Oh, yeah. I also told them that the 14 keys got in my pocket by magic. 15 Q. SO you told at least one lie that 16 night? 17 A. I don't know how to -- yeah. I was 18 intoxicated. I don't remember.

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19 Q. All right. So, you basically -- when 20 you came in to see Jay Clark, you basically 21 thought that with this being your seventh 22 suspension, that an attorney should be able to 23 get you back out on the road again? 24 A. No. I came to Jay Clark -- not knowing

125 how refusal works, besides what was on my pennit (208)345-9611 M & M COlJRT REPORTING (208)345-8800 (fax)

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Page 89 Page 91

stating that I needed to request a hearing. a hearing? Q. Okay. A. Yes.

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A. I went to him because he's a lav;'Yer. I was 18 years old. I asked him what we needed to do or "What's this request for a hearing thing all about?" He said, "Well, we need to request a hearing to get your license back, you know, to explain -- to have a chance at getting your license back, we need to request a hearing. If

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Q. Okay. iilld you probably think that that was in response to that Police Report I just went through with you on; correct?

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Q. Okay. But then Jay received this

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the Police Report or the fact that he realized that I wasn't going to have a hearing, anyway, so he was trying to kind of butter me up without saying that he missed the date.

Police Report and -- the Police Report and your prior record after you first visited with him on May 31 st; correct?

A. Yes. He received it after the first visit.

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Q. And he went over that repo1i with you, ! 16

didn't he? i 17

A. He sent the request before the report. 118

Q. But he called you on the 3rd. A. I don't remember ifhe did or not. Q. But he could have? A. I don't remember that. It's pretty

long ago. Q. You just don't remember the date? A. Yes. It was five years ago. I don't

remember exactly. Q. But my question is, you don't dispute i 19

that he received the Police Report on June 3rd. 1

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Q. SO it's your testimony that he could

That would be Friday of that week. MR. ANDREWS: We will stipulate that it i 22

was hand delivered to him on June 3rd. 1123

MR. PURVIANCE: Okay. 24

MR ANDREWS' I think you're asking him, 25 I

Page 90

have called you on June 3rd? A. No, he didn't call me. Q. Did he call you on the 6th? A. I called him on the 6th. Q. Vv'hat time? A I don't know what time

Page 92

1 ifhe knew if somebody else had a document. 1 Q. And that was when he told you that you 2 MR. P1JRVIA~CE: Okay. 2 didn't have a chance at a hearing? 3 Q. (BY MR. PURVIANCE) Sometime aroun 3 A. I don't know if it was on the 6th or 4 then you were shown the Police Report; correct? 4 the 10th that he told me that, but I did call him 5 A. Correct. I don't know if it was on 5 on the 6th after I called the Department of 6 that Friday. 6 Transportation. 7 Q. Okay. But it was either on that Friday 7 Q. Okay. And on that day he told you that 8 or soon thereafter; right? 8 you probably would not win at a hearing? 9 A. Yes. It was -- I definitely received 9 A. I don't remember if it was on that day.

10 it before the 10th. 10 Q. It could have been? 11 Q. You probably actually heard Jay talk 11 A. Maybe. 12 about it on the 3rd or the 6th; right? 12 Q. Okay. You told Jay Clark that you 13 A. I know that light after I hired him, 13 drank five beers on the day that you came in for 14 he said that he would send that request off. 14 your first appointment, didn't you? 15 Then after we -- after he got the Police RepOli, 1 15 A. I don't remember if I told him three or 16 that's when we talked about it. 16 five beers. 17 Q. And he told you at that time when he 1 17 Q. You don't remember what you told him? 18 got the Police Report that a heating would not -- 18 A. No, I don't remember ifI told him 19 you would not win that? 19 three or five. 20 A. No, not then. 20 Q. But your memory right now is that you 21 Q. What's that? 21 had three? 22 A. He told me -- are you asking me if he 22 A. Three, yes. 23 told me that on the 3rd? 23 Q. Okay. But on the day that you came in 24 Q. On one day there, after he got the 24 to see Jay Clark, you could have told him that 25 discovery, he told you that you would not win at 25 you had five?


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A. Yes. Q. Okay. And that was right at the point

where you had just been arrested, con'ect, light after you had been arrested?

A. I talked to him right after I had been arrested.

Q. About three days after. A. Yes. Q. So your memory would be pretty good at

that point in time; right? A. Yes. Q. And you told Jay that you weren't even

dliving on that day, didn't you? A. Yes -- because I didn't know if I was

or not. Q. Well, you didn't tell him--A. I couldn't tell him that I was driving

because I didn't know ifI was driving or not. Q. Okay. Would it surprise you to know

that you told Jay that you, in fact, weren't driving on that day?

A. Would it surprise me if I told him that I didn't?

Q. Yes. A No, because -- I mean why wonld I tell

Page

him that I wasn't driving if I didn't know? Q. His notes say that you did. A. Say that I didn't -- I told him I

wasn't driving? Q. Yes. A. Okay. Then I told him I wasn't driving. Q. And you told him that when you blacked

out it usually takes 12 to 13 beers for you to black out?

A. I was going off of previous times I have been drinking, yes. I mean, it definitely wasn't that few of beers that would cause me to --

Q. To black out? A. To black out, yes. Q. Okay. But you didn't actually see

17 anyone put "Roofies" in your dlink that night, 18 did you? 19 A. Well, ifI would have, I probably 20 wouldn't have drank it. 21

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Q. SO you're just guessing? A. Yes. Q. You don't have any reason to believe

24 that? 25 A. Yeah.

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Page 95

Q. You knew who the guy's truck was that you took?

A. Yes. Q. Do you remember standing by the pickup

while it was running? A. I don't remember after the three or

five beers. Q. Okay. But you very well could have

gotten into that truck and drove it over to where your parents' house was?

A I don't know. Q. You're not disputing that you did? A. I can't say, "Yes" or "No." Q. Okay. And you also told Jay that

nobody saw you driving? A. Correct. Q. You told Jay that you left with two

girls that night; correct? A No. I was hanging out with two girls

that night. Q. Okay. So you're denying that you told

him that you left with two girls? A. Yes.

MR. PURVIANCE: I would like to have this marked as an exhibit

Page 96

MR. ANDREWS: Since you guys are letters, which letter?

MS. HILL: I believe it's Exhibit N. (Exhibit N marked). MR. PURVIANCE: IfI can approach the

witness? CHAIR.lv1AN WHITNEY: Please do. That's "N" as in "Nancy"? MR. PURVI.Au.~CE: Yes.

Q. (BY MR. PURVIANCE) I've handed you what Jay Clark would represent is the Standard

12 Fee Agreement that he gives new clients when they 13 come in to hire him. 14 A. I'm sorry? 15 Q. Jay Clark would tell you that that is 16 the Fee Agreement that he gives to every DUI 17 client when they come in. 18 A. He told me? Is that what you --19 Q. No, I'm telling you. 20 A. Oh, okay. 21 Q. Do you have any reason to believe that 22 that was not what was handed to you on the very 23 first time that you came in? 24 A. I don't believe I received this, no. 25 Q. But could you have? You may not have

(208)345-9611 M & M COlJRT REPORTING (208)345-8800 (fax)

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Page 97

1 received it, but was perhaps --2 A. I know that me and Mr. Clark's first 3 times together was kind of a quick -- I was just 4 kind oflike one of those get-you-in-and-out type 5 of deals. 6 I never really sat down like I did with 7 Mitch --8 Q. Okay. 9 A. -- or like my last attorney with my

10 last DUI that I had. 11 Q. Okay. But my question is, could you 12 have signed something that looks like that? 13 A. Did I sign something like this? 14 Q. I said, could you have signed something 15 like that? 16 A. I don't think so. 17 Q. You don't think you did, or you just 18 don't remember? 19 A. I don't think I did, no. 20 MR. PURVIANCE: Okay. I would ask that 21 that be admitted as part of the record. 22 CHAIRMAN WHITNEY: Any objection? 23 MR. ANDREWS: Just to -- well, I have 24 no objection, except that it's between Mr. Clark

Page 98

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questioning Mr. Varela. MR. PURVIANCE: All right.

Q. (BY MR. PURVLb,.NCE) So, eventually, you did hire Mitch Egusquiza; right?

A. COlTect. Q. And you pled guilty to Minor in

Consumption? A. Yes. Q. And that was your second Minor In

Consumption, for that offense? A. Yes. Q. And your license was suspended for six.

months on that? A. Yes. Q. Correct? A. Yes. Q. And that was backdated to June 6th? A. June 6th or June 2nd, yes. Q. And that was for 180 days? A. Yes. Q. And you hired Mitch to get your license

back for you, did you not? A. I hired Mitch because I needed a new

attorney.

Page 100

1 MR. PURVIANCE: That is correct. 1 back? 2 CHAIRMAN WHITNEY: Okay. Exhibit -- 2 A. Yes. 3 MR. ANDREWS: Hold on. Excuse me. If 3 Q. And Mitch didn't get it back for you? 4 everybody is willing to waive the confidentiality 4 A. No, he didn't. 5 of that exhibit -- 5 Q. And, in fact, once you pled guilty to 6 MR. PURVIANCE: We would rather mark 6 Minor In Consumption, your license was suspended 7 out the name on it. 7 just like it would have been had you gone to a 8 MR. ANDREWS: Well-- 8 hearing on the BAC and lost? 9 CHAIRMAN WHITNEY: Well, I don't want 9 A. There is a difference between--

10 it to have to be marked over once it has been 10 because a refusal of a breathalyzer is 180 days 11 admitted, so -- did you have any more questions 11 with no dliving permit, no dliving privileges 12 for :Mi. Varela only? 12 whatsoever. 13 MR. PURVIANCE: Not on that. 13 IfI would have gotten the six months 14 CHAIRMAN WHITNEY: Let's do this: 14 on my Minor In Consumption, I would have had 15 Mr. Varela, you go ahead and hand that 15 30 days and I would have had a work permit. 16 back to Mr. Purviance; and then, Mr. Purviance, 16 Q. That's if the Judge gives you one. 17 at the next break you can redact it and then 17 A. No. You get a work permit. You just 18 bring it up again, and we will-- presumably, 18 get 30 days absolute sentence, and then you get a 19 since there is no objection, admit it. 19 work permit. 20 MR. A..1\JDREWS: I'll ask him some 20 Q. But you have to go in to the Judge with 21 questions after that -- 21 Proof of Insurance to get a restricted permit; 22 CHAIRM.AJ.~ WHITNEY: Okay. So we will 22 correct? 23 just take -- Mr. Purviance, bring that up again 23 A. Yes. You pay a fee to get a permit. 24 once it's redacted and then we will take it up, 24 Q. Okay. And what is your testimony that 25 but you can go ahead and continue with 25 Mitch charged you?


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Page 101

A. I don't remember a dollar amount. It's 1 I

Page 103

A. No. I was still living there. 1

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been, you know, so long, I can't remember exactly I 2

how much it was. ' 3

Q. Okay. ,Vhen you got the letter from the Department of Transportation, though, it went to your parents' house and you weren't living there then; right?

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Q. But, to the best of your memory, you started out with $200?

A. I don't remember. Q. Did you sign a written Fee Agreement

with him? A. Yes. Q. Okay. That was because you made

payments all along? A. For--Q. You said that you were making $200

payments every --A. I don't remember if I paid half and

then another half or if it was four payments. I just remember that when I sat down with him, he gave me a fee and we worked out a payment arrangement.

Q. But you don't remember how much the fee was?

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A. That Exhibit 86? Q. Yes. A. That was sent to my previous address.

It was my parents' address, and I was living at my parents' address at that time, so this --I didn't get this, no.

Q. And so that letter was sent to the address that was on your driver's license; correct?

A. Correct. Q. That's how the Department of

Transportation got it? A. Correct.

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A. No. 22

Q. You don't remember how many payments 23

Q. Okay. And you are aware that not having your current address on your driver's license in the state of Idaho is a misdemeanor offense, are you not?

A. No, I am not aware of that. you made?

Page 102

Q. You don't know how much the payments 2

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were? A. No. Q. What day did you sign that on? A. I don't remember. Q. SO when Jay Clark offered you the

refund the first time back in 2005, you just didn't want to go in and get it? .

A. I can't remember if the letter was sent 10 to my parents' house or -- I can't remember --11 either that, or if it was somehow forwarded to 12 Mitch's office. 13 Q. Okay. 14 A. And he showed me a copy of that. 15 Q. Okay. So you could have got gone in 16 and gotten your refund in the summer of2005? 17 A. I guess so, yes. 18 Q. You just chose not to? 19 A. Yes. 20 Q. Okay. But you're saying that the 21 letter came to your parents' house? 22 A. That's what it's addressed to. The 23 1 etter is addressed to my parents' house. 24 Q. And by then, you were no longer living 25 there?

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Page 104

A. Well, I actually got pulled over a couple of days ago, and I have the wrong address on my current driver's license.

Q. And the cop told you that it was --that that's a misdemeanor in itself?

A. No. Q. Okay. A. I know that you're supposed to keep

your ID with your current address. Q. Right. A. But I don't think they go around

handing out misdemeanor citations for it. Q. Right. But you have 30 days to put

it on, your new address, when you move? A. Okay. Q. Is that what the police officer told

17 you? 18 A. Yes. 19 Q. How many times did Jay Clark tell you 20 altogether that the BAC hearing would not 21 succeed? 22 A. I don't know how many times. 23 Q. At least three? 24 A. I don't know how many times. 25 Q. According to your testimony previously,


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I counted at least three times on your direct 111 examination. Would that be fair to say? 2

A. That three different points in time he ' 3 told me this? I 4

Q. Yes. \' 5 A. Well, there was the one point when it 6

\vas past due, and he told me -- I don't lenO\V any i 7

other time after that. I 8 It was kind of more of a -- I think it I 9

might have been one more time after that or mayb~ 10 two times. I 11

Q. But your testimony was that he told you 112 one time on June 6th, 2005? 13

A. Okay. 14 Q. Does that sound correct? 15 }\. Yes. 16 Q. Okay. Mitch Egusquiza charged you a 17

lot more than $500 to represent you in this DUI 18 case, did he not? 19

}\. Yes, I believe so. 20 Q. Okay. He didn't charge you $500 for 21

the DUI and a BAC hearing; he charged you a lot 22 more than that, did he not? 23

A. I don't think it was that much more. 24

Page 106

Q. Do you think it was double? 111 A. I don't think it was double, no. 2 Q. Okay. But it was a lot more than $500? I 3 A. I don't know how much money it was. 4

You'll have to get it from him. ~ 5 MR. PURVIANCE: Okay. I have no 6

further questions at this point. 7 CHMR.\1AN WHITNEY: Mr. i\ndrews, an, 8

redirect? I 9 MR. PURVIANCE: I do want to offer 10

Exhibit N now that the names have been redacted. 11 If I could approach? (Handing document to 12 Chairman Whitney.) 13

CH}\IRMAN WHITNEY: Thank you. So I'Viel4 got the original of Exhibit N, and the redaction 15 has been made. i\ny objection, Mr. i\ndrews? 16

MR. }\NDREWS: I want to ask him some 17 questions about it fIrst. 18

CH}\IRlvIAN WHITNEY: Okay.

21 REDIRECT EXAMIN}\ TION

19 ,20

21 22 22 QUESTIONS BY MR. J\NDREWS:

Page 107

)\. The 10th day of December, 2002. Q. Okay. Do you have any recollection of

signing a Fee Agreement similar to that or any Fee }\greement with Mr. Clark?

A. No, I do not. Q. Okay. Vlhen Mitch wrote a letter to

:Mr. Clark asking for a refund, did he send you a Fee }\greement?

A. No. Q. Did he send Mitch a Fee }\greement? A. No. Q. When the Bar provided you with

Mr. Clark's response to your grievance in October of 2005, did you recall ever seeing a Fee Agreement?

}\. No. Q. SO, as we sit here, do you have any

recollection at all of signing a Fee }\greement of any nature with Mr. Clark?

A. No. Q. i\nd, in fact, one has never been

provided to you with your name and with the dates of your representation on it, has it?

A. No.

Page 108

I don't have an objection to Exhibit N, but I do object to it being offered for the purpose of any inference that Mr. Varela signed such a Fee Agreement.

CH}\IRMAN WHITNEY: Okay. Exhibit N then will be admitted without objection.

I'll take the exhibit from you, Mr. Varela.

THE WITNESS: (Handing document to Chailman Whitney.)

CHNRMJ\N WHITNEY: I've got the original of Exhibit N.

Mr. Purviance, we're really still in your cross because that was your last thing, was to offer Exhibit N.

MR. PURVIJ\NCE: Right. CHNRl\1J\N WHITNEY: Do you have any

other questions? MR. PURVIANCE: I do just have just

one more. CHNRMJ\N WHITNEY: Go ahead.

23 Q. (BY MR. J\NDREWS) Mateo, I've shown 23 RECROSS-EXAMIN}\TION 24 you -- what's the date on Exhibit N up at the 24 QUESTIONS BY MR. PURVIJ\NCE: 25 top, the fIrst paragraph? 25 Q. Mr. Clark sent Mr. Egusquiza the entire


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file: cOlTect? 1 Q. "Yes"? 2 A. My Police Report and everything? 2 A. Yes. 3 Q. Everything in the file. 3 Q. Were you charged with Underage DUI? 4 A. I think so, yes. If it ,vas not Clark, 4 A. Yes. 5 it was the Prosecuting Attorney; right? I don't 5 Q. Did you tell him that? '3 know. 6 A. Yes. 7 Q. You never looked at the file that 7 Q. Did you tell him you weren't driving? 8 1\1itch Egusquiza had? 8 A. Yes. 9 A. No, I did look at it. I looked at my 9 Q. Did you tell him you were at a

10 Police RepOIt and everything. 10 "lock-down underage drinking party"? 11 Q. With Mitch or with Jay? 11 A. Yes. 12 A. Mitch. 12 Q. What's that mean? 13 Q. SO you don't know what was in the file 13 A. The parents had it for, you know, the 14 that was sent to Mitch Egusquiza? 14 friends or whatever, but no one was allowed to 15 A. Everything or -- 15 leave. 16 Q. You didn't actually see the file that 16 Q. Okay. Why did you leave? 17 Jay Clark sent to Mitch Egusquiza? 17 A. I guess at some point in time I called 18 A. I believe Mitch showed me everything. 18 my dad and asked him to come and pick me up. 19 Q. You don't know for sure, though? 19 Q. Okay. Was that permissible by the 20 A. I think he did, yes. 20 other family? 21 MR. PURVIA.~CE: Okay. I have no 21 A. \Vhat do you mean? 22 further questions. 22 Q. Was the family okay with that, if 23 CHAIRMAN WHITNEY: Any redirect, 23 somebody called their parents to pick them up? 24 l'v1r. Andrews? 24 A. Yes.

Page 110 Page 112

1 REDIRECT E~\1INATION him that you had five beers, blacked out, and it 2 QUESTIONS BY MR. ANDREWS: 2 usually takes 12 to 13 beers? 3 Q. Do you recall telling Mr. Clark at your 3 A. I do remember telling him it takes 4 initial conference with him that somebody was 4 around that number at the time. 5 giving people "Roofie," a date rape drug? 5 Q. Okay. We talked about the "Roofies." 6 A. Yes. 6 The truck belonged to Ronny Bergh, a 7 Q. And do you recall telling him that ,7 friend? 8 nobody saw you driving? J 8 A. Yes. 9 A. Yes. 9 Q. Who is Michelle Randalls?

10 Q. Did you recall the discussion you had 10 A. She was a girl that we both know. She 11 with Mr. Purviance that you had Ronny's backpac ,11 was driving around looking for the vehicle. 12 truck keys, cell phone -- your cell phone was in 112 Q. Okay. When you say, "we," you and 13 the truck? 13 Ronny know her? 14 A. Yes. 14 A. Yes. We went to school with her. 15 Q. Okay. So you recall telling him that, 15 Q. Do you hang out with Ronny? Is he a 16 telling Mr. Clark? 16 friend -- was he a friend at the time? 17 A. Oh, Mr. Clark? 17 A. Yes. When we were younger, we hung out 18 Q. Yes. At your initial meeting. 18 quite a bit. 19 Let's do it this way: 19 Q. Okay. What does the house on Canyon 20 Take a look at Exhibit 44. 20 Creek Road mean? 21 A. Okay. 21 A. That's where the party was. I mean, it 22 Q. I'll represent to you those are notes 22 wasn't -- it wasn't on Canyon Creek Road. It was 23 made of your 5/31105 meeting with Mr. Clark; 23 off of Canyon Creek Road, so I'm not sure --24 correct? I 24 Q. That's where the party was that night; 25 A. (Nodding head.) 125 that's not your house?


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A. Yes. 1 CRt;..IR.11i'l ... N \'iiJ:llTh~Y: Let's break for 2 Q. See, "Saw truck flying down road. 2 lunch untill :30, and then we will resume with 3 Showed up at parents' house"? 3 your next witness. 4 A. Somebody had seen the truck. 4 Then, Mr. Purviance, you have got at 5 Q. Okay. We don't know who that is, 5 least one witness that you are going to put on 6 though? 6 today; is that right? 7 A. No. 7 MR. PlJRVIA.NCE: Two, hopefully. 8 Q. Okay. You had Ronny's bag -- and I 8 CHAIRl\1i\N \'iiJ:llTh~Y: Did you say when we 9 think you said it was a backpack? 9 were talking at the last break you have one

10 A. Yes. 10 scheduled for tomorrow? 11 Q. You had his truck keys? 11 MR. P1JR VlANCE: Yes. 12 A. Yes. 12 MR. CL\R.K: Or she would be available 13 Q. Your cell phone was in the truck? 13 for telephone, but she leaves Wyoming at 6:00 14 A. Yes. 14 tonight, so she will be here tomorrow morning. 15 Q. And nobody saw you driving? 15 MR. ANDREWS: I have talked to him --16 A. No. 16 and I'll talk to him again. I don't want to 17 Q. And then you left with tViTO girls. 17 prejudice anybody as far as having anybody come, 18 Is that -- any recollection of that? 18 but if they want to do it by phone, we can work 19 A. I don't know about left -- I didn't 19 that out. 20 leave with two girls. I was standing out 20 I think, just for planning purposes, 21 there -- I was hanging out at the pmi)' with 21 I think that Mitch will not be as long as 22 two girls. 22 Mr. Varela was. So just in terms of planning --23 Q. Okay. All right. When you called your 23 CHAIRl\1AN VlHITNEY: Okay. We are happy 24 dad to pick you up, did you tell him that you 24 to hear the traveling witness by phone out of 25 were gomg -- T

Page 114 Page 116

taking anybody else home? i 1 in person tomorrow morning, whatever you prefer. 2 A. No. 2 MR. PlJRVIANCE: We will talk it over at 3 Q. Mitch never told you you would win a 3 lunch and make a decision. 4 hearing -- he never guaranteed that you would win 4 CHAIRMAN WHITNEY: All right. We will 5 the hearing if you got a hem'ing? 5 see you all at 1 :30, then. We are in recess. 6 A. No, he didn't. 6 (Recess taken.) 7 Q. In fact, did he tell you that you might 7 CHAIRlvlAN WHITNEY: Let's go back on the 8 not win the hearing? 8 record. 9 A. He told me that I had a shot. He 9 It's 1: 3 9 p.m., and we are still on the

10 explained that there was a reason for the hearing -- 10 Plaintiffs Case in Chief. 11 that I had a reason for the hearing. 11 Mr. Andrews, are you ready to call your 12 Q. Did you ever get a chance to have that 12 next witness? 13 shot? 13 MR. ANDREWS: Yes. We would call 14 A. No. 14 Mitch Egusquiza. 15 Q. MR. ANDREWS: That's all I have. 15 (Mitchell Lee Egusquiza sworn.) 16 CHAIRMAN WHITNEY: Recross? 116 CHAIRMAN WHITNEY: Go ahead and have 17 MR. PURVIANCE: I have nothing further. 117 seat. Sir, if you would, state your name and 18 CHAIRMAN W1HTNEY: Okay. Mr. Varelar 18 spell your last name for the record. 19 you're done. Thank you for coming. You can 19 THE WITNESS: My name is Mitchell Lee 20 leave as you desire. 20 Egusquiza. 21 THE WITNESS: Okay. Thank you. 21 CHAIRMAN WHITNEY: Thank you. 22 CHAIRMAN VvHITNEY: It's 11:55. 22 Mr. Andrews, go ahead. 23 Mr. Andrews, you have got one more 23 MR. ANDREWS: I can trip over his name 24 witness in your Case in Chief; is that right? 24 constantly, or I can call him "Mitch" if it's 25 THE WITNESS: COlTect. ' 25 okay with the Hearing Committee?


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CHAIRMAN \VHITNEY: It's fine with us 1

2 it's okay with the witness. 2

THE \VITNESS: Everyone calls me 3

"Mitch, II other than "Mr. Purviance." 4

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A. It's a sale practice. I'm the only attorney in the office. I am a general practitioner, for the most part.

I do primarily Climinal defense, domestic relations.

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MITCHELL LEE EGUSQUIZA, 6

first duly sworn to tell the truth relating to 7

said cause, deposes and says: 8

I am appointed by the Attorney General's office as a Special Deputy Attorney General where I do paternity establishment cases, contempt

DIRECT EXAMINATION 9

QUESTIONS BY MR. ANDREWS: 10

Q. State your age for the record. 11

A. I will be 50 in two days. 12

Q. What is your -- just give a brief 13

description of your educational background. 14

A. I went to Vallivue High School. 15

After that, I went to Treasure Valley 16

cases, those sorts of things -- but that is primarily what I do.

I don't do any real specialty law, bankruptcy, those sorts of things.

Q. Okay. Do you know Mr. Clark? A. Jay Clark, I do. Q. What's the nature of your relationship? A. Jay Clark, after he passed the Bar,

1Cl

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Community College. 17

I went to Boise State, got my 18

undergraduate degree in Criminal Justice, and 19

started practicing in Mountain Home. I don't know when that was, but we had cases together -on opposite sides.

went on to University ofIdaho where I got my 20 degree and passed the Bar. 21

Q. When did you graduate from Idaho? 22

23 A. I believe '87 -- September of'87. 23

24 I think in September of'87 I was sworn in, so 24

Q. Do you know Mateo Varela? A. I do. Q. And did you represent Mr. Varela? A. I did. Q. I will give you some of the notes from

Page 118 Page 120

Q. Have you been licensed to practice in 1 \\lnat is on your next exhibit? 2 Idaho since your swearing in in 1987? 2 MS. HILL: 87. 3 A. Yes. 3 (Exhibit 87 marked.) 4 Q. Where do you practice? 4 Q. (BY MR. ANDREWS) My question is, when 5 A. Mountain Home, Idaho. 5 did you -- do you recall when you first agreed to 6 Q. And have you practiced there -- 6 represent Mr. Varela? 7 A. No. 7 A. In referring to -- what Exhibit 87 is, 8 Q. -- your entire career? 8 it's a Client Information Sheet that's from my 9 A. No. I 9 office. It does have a date of6/21105. That

10 Q. Okay. Just -- 1 10 would have been the first time that I would have 11 A. Not to cut off your questioning, but I 11 met with him. 12 went to Boise, came to Boise after graduating and 12 Q. Okay. At the bottom of the first page 13 passing the Bar, went to work for Steve Beer of 13 of Exhibit 89 --14 Beer & Cain. I worked there for a year and a 14 A. 89? 15 half, approximately. 15 Q. I'm sorry. 87. My bad. 16 Thereafter, I started my own firm and 16 Is that a sticky note. 17 worked in Boise for probably another year and a 17 A. This is the $850 or $800 that you're 18 half. 18 referring to --19 Judge McLaughlin was a practicing 19 Q. Yes. 20 attorney in Mountain Home. He got the Magistrat 20 A. -- that is actually not part of my 21 appointment there in Elmore County, and I went 21 Client Information Sheet. That would have been a 22 down and bought his office and have practiced in 22 post-it note that would have been attached to the 23 Mountain Home ever since -- I guess 19 years. 23 original Client Intake Sheet. 24 Q. Okay. What type of general description 24 That would have been a note from my 25 is your practice in Mountain Home? 125 secretary to myself. That wouldn't have been


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prepared on 6/21; it \li'ould have been some ~:me II 1 The "May 28th," I assume that would be 2 after that date. 2 the date of the Citation; that he had hired 3 Q. Can you kind of interpret what those 3 Mr. Clark the follow I\10nday after the 28th.

notes refer to? I 4 Then there's notes, "No witness to 4

5

6 A. This \vould be a note from my secretary. 5 driving." I just would have been inquiring as to

Apparently, she would have had some contact witli 6 whether or not there was any witnesses. 7 Mateo in regard to the fee, and she was asking me I 7 I don't know what the "Don't recall --" 8 whether I was going to charge him $850 or $800. i 8 and that may have been something in regard to a 9 The circle on the $800 would have been an I 9 question I asked him, and he says he doesn't

10 indication that that's what I would have been 1 10 recall. I don't know what that means. 11 charging him. t 11 "The report inconsistent." What that 12 It looks like -- and I don't have 12 means is -- in the Police RepOlt I believe there 13 specific recollection of it -- but it looks like 13 was statements from Mateo -- I'm trying to recall 14 there would have been a first payment of$400. 14 what -- basically, I think he denied drinking, 15 Q. Okay. 15 but he had admitted -- no. He had admitted

A. And then there's -- below the $800 l16 drinking, but he had denied driving, but then 17 figure it says -- that is a question to myself 17 admitted maybe that he had drove or something in 18 from Nancy Cunningham, who was my secretary a 18 regard to "Go ahead and arrest me," and so I was

16

19 the time, any possible pay agreement -- and that 19 just making a note in that regard. 20 would have been to me, as well. 20 Q. Okay. Do you remember anything else 21 Then the final part, "Jay Clark sent 21 you talked about with Mateo during your first 22 DOT request on June 10th." That's something that 22 conference? 23 I would have had asked my secretary to check out 23 A. The first conference -- typically, my 24 after meeting with Mateo the first time because I i 24 first conferences are fairly short. So I, you 25 was trying to figure out YJilhat had occnrred 125 ¥.now -- and becan:;e he had di:;closed that he was

Page 122 I Page 124

1 Q. Okay. And then page 2 of Exhibit 87. I 1 being represented by 1'v11'. Clark, I probably would 2 Is that part of your client intake? II 23 have talked to him about, you know, "My hands are 3 A. That would be the second page, I off, and you need to really work with Mr. Clark 4 believe, of my Client Intake Sheet. So this I 4 on this thing and not me," but nothing 5 would all be one, one exhibit. 5 specifically in regard to that day. 6 Q. Okay. 6 MR. ANDREWS: We will move for the 7 A. Those would be notes that I would have 7 admission of Exhibit 87. 8 jotted down on June 21st, 2005, at the time I was 8 MR. PURVIANCE: No objection. 9 meeting with Mateo. 9 CHAIRMAN VlHITNEY: 87 will be admitted.

10 Q. Okay. I have a little trouble reading 10 Q. (BY MR. ANDREWS) Had Mateo talked to 11 your handwriting. Can you -- 11 Mr. Clark about your representation at this time, 12 A. You'd be the first one that's ever had 12 do you recall? 13 that trouble. (Laughter). 13 A. My recollection for June 21st, Mateo's 14 Q. -- interpret that for us? 14 first appointment, I did not know Mr. Clark was 15 A. Going through it, the first entry is 15 involved at the time the appointment was set. 16 "our charge 19 years old." That tells me that's 16 After we met during the course of the 17 what the Citation was, and at that time he was 17 consult, he did disclose that Mr. Clark was 18 19 years old. 18 representing him. 19 The "Refusal --" the second ently, I 19 I don't recall a whole lot more 20 would have asked him whether he blew or not, so 20 discussion at that point in time. 21 that tells me what I need to do with the two 21 I know that I had a follow-up where he 22 different requests -- if there is one. 22 said he wanted me to substitute in and represent 23 The third entry is "Jay Clark," so 23 him on the case. That would be more in line with 24 somewhere in there he told me that Jay Clark was 24 that post-it note. 25 representing him -- had represented him. 125 Q. Okay. Take a look at Exhibit 58.

(208)345-9611 M & M COT .. JRT REPORTING (208)345-8800 (fax)

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Page 125 ?ade 127

1 A. Yes. I'm there. occurred prior to the June 28th, so somewhere 2 Q. That's the Notice of Substitution. You 2 between June 21st and 28th that these notes were 3 substituted in -- I think it got filed a couple 3 prepared. 4 of days later, but does the 28th of June sound 4 The second one is the Motion To Dismiss, 5 about right for the substituting? 5 "Lack of probable cause to stop, no evidence of 6 A. That would have been the date either 6 actual physical control ofvehic1e while under 7 myself or Mr. Clark had signed that document, 7 the influence." That's just my notes that I'm 8 June 28th of2005. 8 going to need to file a motion. 9 Q. I guess my question is, did Mateo ask 9 Then the third one is "Motion for a BAC

10 you to contact Mr. Clark and effect the 10 and Affidavit," and then I was just going through 11 substitution? 11 kind of an Affidavit what was going to be included 12 A. Boy, I don't -- I really don't recall. 12 in there -- that he retained Mr. Clark on 13 I mean, typically that would be what would 13 5/31105, that he had paid $500 cash. The 14 happen. ! 14 Citation was on -- and I didn't have it in front 15 I don't specifically recall whether or

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15 of me so I have a blank date. My secretary would 16 not I contacted Mr. Clark or he had told 16 have been able to fill that in. 17 Mr. Clark that he didn't want him to represent 17 Then on June 10th, there was a DOT 18 hiLll any flllther. I don't know. 18 hearings request, and that refers back to that 19 Q. And is my understanding correct that 19 post-it note from my secretary. She had garnered 20 your fee arrangement was $800 for the 20 that information for me. 21 representation in the DUI case and any related 21 This was a refusal -- which the 22 matters to that arrest? 22 significance on the refusal is that you fIle your 23 A. Yes. It had been $800 that I would 23 request through the County -- in this case, 24 have requested for fees. That would have 24 Elmore County, as opposed to the DOT, Department

Page 126 Page 128

1 well as trying to realign the ALS issue that was myself. 2 presenting itself. 2 Then there's "Job in jeopardy. No 3 Q. Okay. I think you provided us with 3 one --" and the rest of the note -- basically, it 4 some other notes. We will mark them as 4 is a little cut off on the bottom here, but 5 Exhibit 88. 5 basically, there's no identity, there's nobody 6 (Exhibit 88 marked.) i 6 else that saw him. 7 Q. (BY MR. ANDREWS) I'll hand you What'1' 7 Q. Excuse me. On nobody saw him --8 been marked as Exhibit 88. What is that exhibit? 8 A. Saw Mateo in the vehicle. I think 9 A. This would be some notes that I had 9 there was a cell phone left in there or

10 prepared on behalf of Mateo. 10 something, but I don't know. 11 Q. Okay. I don't see a date. Do you have I 11 Q. At the top there's handwriting that 12 any -- 12 doesn't appear to be your handwriting. 13 A. It would have been prepared after or 13 A. I think my secretary must have wrote 14 about the time that he indicated that he wanted 14 that when she faxed that over to your office just 15 to retain my services. 15 a few days ago. 16 Q. Okay. Again, I'm having a little 16 Q. Okay. 17 trouble reading because you have -- can you kind 17 A. 'Vait a minute. No, no oh, no, no, no. 18 of just go through the notes for us and kind of ,18 No, I don't know whose handwriting that is, but 19 interpret them? 1 19 the letter to Clark "want $500 back" would be a 20 A. There's no guaranty I can read them 20 note to myself. 21 either. 21 It's not my writing so I assume it must 22 No. I says, "Stipulate to substitute 22 be Nancy Cunningham'S, my secretary at the time, 23 attorney." So I was going to prepare a stipulation 23 telling me that Mateo wanted me to send a letter 24 to substitute myself in for Mr. Clark. 124 to Jay trying to get the $500. 25 That tells me that that would have 25 "File Complaint with the State Bar."


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1 Maybe that's indicating that that's what Mateo we have seven days to request a hearing. If you 2 was intending to do. 2 don't request that hearing within seven days: you 3 Q. Do you kno\r,r when those notes were added 3 lose the right to do that. 4 to this? 4 Because this Citation was issued more 5 A. No, I have no idea. I assume sometime 5 than seven days prior to this motion and my 6 in 2005. 6 involvement, that time had run. So I was trying 7 MR. ANDREWS: I move for the admission 7 to realign at that point in time trying to get to 8 of Exhibit 88. I 8 the ALS to get -- to see if the Court would grant

MR. PURVIANCE: No objection. I 9 me a hearing to allow me to present some CHAIRMAN WHITNEY: 88 will be admitted

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l 10 testimony. 11 Q. (BY MR. A.~DREWS) Okay. In the exhibit 11 Had we got to the hearing, my strategy 12 book, if you can tum to Exhibit 59, please. 112 is pretty simple. At that point in time, the

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A. Yes. 1 13 arresting officer, the officer that issued the Q. What was that and what was -- 114 Citation, I would have celtainly put him on the

15 A. This is the -- do I need to identify 1 15 stand and asked him a series of questions about 16 it, or have they already been identified? j16 what he observed and whether any witnesses 17 MR. ANDREWS: They have been admitted. . 17 observed my client in actual physical control of

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18 THE W1TNESS: Okay. This is the motion 18 the vehicle because they had to do two things in 19 that I filed onbehalfofMateo. 19 my opinion: One,theyhadtoputhiminthe 20 Q. Okay. And did you prepare Exhibit 62 , 20 vehicle -- which there was no witnesses to do

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21 to be filed in conjunction with that motion? 121 that; and two, even if they put him in the 22 A. Yes. That would be -- that would be 22 vehicle, they were going to have to show that he 23 similar to the notes that I have made on the last 23 was under the influence at that time. 24 exhibit. 124 There was no doubt that he was under 25 The 62 nob, there's a calendar SblCk 25 the influence at the time he contacted the police

Page 130 I Page 132

1 in here. I 1 officers, but that wasn't -- he was, if I recall 2 Q. Okay. We were just using that for I 2 correctly, a block or two away from the suspect 3 dates. 3 vehicle that he supposedly had drove. So there 4 A. Okay. I thought I was missing a second 4 ,vas a time delay in that, as well. 5 page. 5 So that's what I was going to try to do 6 Yes, I prepared that after getting that 6 if I got the hearing set. 7 infOlmation from Mr. Varela. 7 Q. Do you remember if there was a time 8 Q. And that's the notes that relate to 8 delay between the time that Mateo arrived home 9 Exhibit 88, related to that? 9 and the time that the police came?

A. Correct. 110 A. Well, there had to be a time delay. I

11 Q. You probably got that infOlmation from 11 I don't recall -- I don't even know if he was at 10

12 Mateo, I take it, to file that? 12 home or ifhe wasn't still at a pmty. I don't 13 A. Yes. 13 recall that -- the facts of that, but there is 14 Q. Okay. What was your strategy for a 14 obviously a time delay because he was away fi'om 15 suspension hearing if your Motion For Hearing 15 the vehicle a number of blocks -- whether it was 16 regarding the license suspension was granted? 16 one, or two, or three -- and I don't recall 17 A. Well, do I need to explain why this 17 exactly how far away he was from the vehicle, but 18 motion was filed? 18 he wasn't in the vehicle, so there had to be some 19 Q. Yes. Go ahead. 1 19 sort of delay. 20 A. The reason the motion was filed was 20 Certainly, that would open the door as 21 because when Mr. Clark was representing Mateo 21 to whether or not, you know, he had consumed 22 he had filed a Request For Heming with the 22 alcohol, you know, during a period of time --23 Department of Transportation. This was a 23 assuming that they could even put him in a car. 24 refusal DUI. 24 Q. Did you anticipate calling Mateo as a 25 Under the 18-8002 -- 18-8002 form -- 25 witness if a hearing was granted?


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A. No. Q. Why is that? A. I didn't need to. I mean -Q. Okay.

Q. That wasn't -- was it expected? A. Yeah. I mean -- yeah. I knew I had

a -- I knew that there VI'as probably a very slim possibility of the Judge granting me a -- he

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A. Here's the deal:

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Even on the criminal case, if I put 6

Mateo under oath, he's going to -- he's probably 7

didn't give me an oppOltunity. I thought he would at least give me an opportunity to come in, but we didn't get a hearing.

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going to hurt his case. I mean, it's not going 8

to help his case. 9

They have the burden of proof -- at 10

least in the criminal case -- and I felt like at 11

least in the ALS he would have -- that's our 12

presumption -- I had a duty to move forward, and 13

I could do that through a third-party witness, 14

the officer. I 15

Q. Okay. 116 MR. ANDREWS: Let's mark this. We will 17

mark it as Exhibit 89. It's a pleading. I 18

apologize. I thought this was part of the 1 19

record, but it wasn't included. j 20

(Exhibit 89 marked.) 21

Q. (BY MR. ANDREWS) Can you tell me wh t22

Exhibit 89 is? 23

A. 89 is an objection that was filed by 24

Q. And when you talked to Mateo about his license suspension, what did you tell him about if he had a hearing? \Vhat do you generally tell clients, and Mateo specifically, about the chances of success?

A. Well, I told him that -- my recollection is that actually getting a hearing is not very likely, but if we do get the hearing, I felt comfortable we could prevail on it because of the -- it's a jurisdictional issue as far as the court is concerned. So it wasn't a real good likelihood of getting it, getting the hearing, but I had hoped to.

Q. Did you also file a Motion To Dismiss? A. The criminal -- the DUI charge? Q. Yes. A. Yes, I did. Q Exhibit 60, is that that motion? Phi! Miller He's a member of Ashcraft & Miller -- 1 25

Page 134. Page 136 I

1 they're a private firm in Mountain Home, but they A. 60? 2 also do the City -- they have a private contract 2 Q. 60, yes. 3 for the City prosecution in misdemeanor cases, so 3 A. I've got an 86 here. I don't know if 4 any case that Mountain Home Police Department is 4 it fell out or what. 5 involved in, they will have the responsibility of 5 But to answer your question, yes, 6 prosecuting that. 6 that's the Motion To Dismiss that I filed. 7 This would be an objection -- yes. 7 Q. What happened in Mateo's criminal case 8 This would be an objection to my motion -- 8 after filing these motions and the order? \\1hat 9 Q. Okay. 9 was the eventual resolution?

10 A. -- Exhibit 89. 10 A. I filed two motions. He lost the one 11 Q. Okay. 11 motion in regard to the ALS. 12 MR. ANDREWS: I'll move for the 12 The Motion To Dismiss ultimately --13 admission of Exhibit 89. 13 I don't think we even had to go to hearing on it. 14 CHAIRMAN VvlUTNEY: Any objection? 14 I believe Phil Miller, the Prosecutor, 15 MR. PURVIANCE: No. 15 agreed with my argument that he couldn't satisfy 16 CHAIRMAN WHITNEY: 89 will be admitted 16 his burden. 17 Q. (BY MR. ANDREWS) To close the loop on 17 My recollection is Mateo ended up 18 this, please take a look at Exhibit 65. 18 entering a plea to Minor In Possession -- or 19 A. Yes. 19 Minor In Consumption. It's basically the same 20 Q. What was the resolution of your motion 20 statute. 21 for a hearing? 21 Q. Okay. At some time when you were 22 A. Judge Massoli, a Magistrate Judge in 22 representing Mateo, did at some point you guys 23 Elmore County at the time, entered this order 23 discuss or did he discuss with you money that he 24 denying it. That would be an order denying my 124 paid to Mr. Clark? 25 :motion to try to get the ALS hearing set. 25 A. Yes. I think that was early on. What


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he had -- I guess I probably -- he had misgivings in regard to how Mr. Clark had represented him, and I know there were some discussions about that.

I know that eventually -- I didn't want to get involved -- I didn't want to be here, obviously, but I did agree to wlite a letter to Mr. Clark requesting that he return some of the money.

Q. Okay. A. I don't recall if I said a specific

amount. Q. Take a look at Exhibit 68. A. 68? Q. 68. Yes. A. Yes. Q. That's the letter that you wrote.

Then take a look at 69. Is that the response to your letter?

A. Yes. 68 -- just to COITect myself, it does have $500 figure on it.

Q. Okay. A. And Jay Clark 69 is the response I

received from my July 19th letter to Mr. Clark.

Page 138

to that request?

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A. No -- can I clarify? 2 Q. Go ahead. 3

A. Mateo had some real issues at that 4

point in time with Mr. Clark and what had 5

happened -- and I didn't really want to get 6

involved. I was hired to try to realign the ALS 7

and represent him on the climinal defense, and I 8

told Mateo, "I don't really want to be involved," 9

but I did tell him that he had certain avenues: 10

One was to go through your office, 11 the Bar Association. I think I may have 112

mentioned that he could take him to a Small 1 13

Claims Court and have the Judge hear that, but at I 14

that point in time, you know, my whole design was 15

"I'm done with it." I 16

I wrote the letter. Mr. Clark said, 17 you know, basically, "No," what I took it at, 18

so I told Mateo, you know, "Go do what you need 19

to do." 20

Q. Okay. Do you know what he did? 21

A. Yes. He went to the -- he filed a 22

23 Complaint with the Bar Association. 24 Q. Okay. Take a look at Exhibit 70, 25 please.

Page 139

I think J\1r. Mateo indicated your office helped him with this. Can you explain the assistance that he may have been provided?

A. Sure. After I had my initial conversation with Mateo with regard to his options, he went and obtained the form somehow -and I don't know how he did that, to be honest with you.

He came back into my office. The only real involvement I have on this thing is Nancy Cunningham, my secretary, asked me whether or not she could help on -- or she could type that because Mateo said he didn't have the ability to type it.

So my office, Nancy Cunningham, would have assisted him in typing it, but I didn't have -- I don't even know if I even met with Mateo at that time.

This case was still going on, to my recollection, so he could have, but I didn't get involved until later.

Q. Okay. Take a look at Exhibit 71. Did you prepare that for Mateo for

purposes of providing his Complaint to Bar ?

Page 140

A. Yes. That would have been the initial involvement I had in it.

Q. And that was basically to support kind of what you have testified to here, your thoughts about his underlying charge?

A. Correct -- well, the defense that was available to him.

Q. Okay. And specifically with regard to the license suspension; correct?

A. Right. I haven't read this, but I know that I also had some issues with regard to the issue on the climinal side, as well.

Q. Right. Okay. Correct. Then I would like you to take a look at

Exhibits 72, 73, and 74. Do you have any recollection of

discussing those with Mr. Varela? A. 73 and-Q. And 74. A. Exhibit 73, that's a letter to Mateo

from Jay Clark. It was during a period of time that I was representing him. There is one on September 2nd and on September 16th, 2005?

Q. Right. A. I don't have any specific recollection


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of me discussing those letters with Mateo. 1

Q. All right. Have you seen him since? 2

A. I think I've seen him through the 3

course of this. 4

Q. Yes. "\Vbat do you think? Do you have 5

any thoughts about the letters? 6

A. Well, I don't know what the purpose of 7

the letters were. I mean, it was pretty clear -- 8

I know that -- I don't know if it's part of the 9

exhibits, but it was pretty clear that Mr. Clark 10

had back in June or July, whatever the date of 11 the letter in response to me was, that he wasn't 12

going to pay it back. 13 So I assume this is some SOlt of 14

off-stream on Mr. Clark's pmt. 15

Q. All right. 16

A. I know that the Bar Complaint was filed 17

somewhere right in this time frame. I don't know 18

ifit was immediately before these letters went 19

the 20th, or the 22nd, or something like that that he was in my office.

Q. When you say your "response," you're referring to -- just so we get your time frame here -- Exhibit 78?

A. Yes. Q. SO we're in the mid to late October

time frame; COlTect? A. COlTect. Q. Okay. "\Vhen Mateo brought this to you,

what did he say? A. I think initially he was upset with me,

to be honest with you, because when I gave him his options, you know, I said, "I'm not going to deal with anything," but there were two things that I thought he could do and one was the Bar Complaint or Small Claims that I recall.

When he came back in, he was upset, to say the least. He wasn't really upset with

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out, but I think it was. 20

I think that I had seen that the Bar 21

Complaint was in August, so -- I guess it would 22

be a response to the Bar Complaint to Mateo. 23

me, but he was disturbed -- I guess is probably a better term -- because now he thought he was going to get sued by Mr. Clark with regard to the liable and slander allegations.

Q. All right. Take a look at Exhibit 76, 24 Q. \¥hat did you tell him about that?

Page 142 Page 144

A. Yes. 1 of crap. You know, when I read this thing, this 2 Q. Have you seen that before? 2 is what motivated me to do what I thought I 3 A. Yes, I have. 3 needed to do. I didn't think that was 4 Q. How did that come to your attention? 4 appropriate at all. 5 A. Mateo brought this into my office. 5 Q. What did that motivate you to do? 6 I would have to refer to my follow-up 6 A. To do my -- well, I called -- at that 7 letters on the date of it, but sometime after 7 point in time, I had got ahold of -- somewhere in 8 October 7th, 2005, which was when I sent my reply 8 there I got ahold of Phil Miller because I did 9 in, Mateo brought this into my office, that he 9 not know at the time ofthe mitial consultation

10 indicated to me that he had received from your 10 that there had been some communications between 11 office in response to the allegations he made 11 Phil Miller and Jay Clark in regard to Mr. Clark 12 against Mr. Clark. 12 asking for a letter -- or sending a letter asking 13 Q. Maybe if you will look at Exhibit 77, 13 for a hearing -- asking Phil Miller to grant him 14 that might help us out a little bit. I think it 14 hearing on the ALS. I heard that sometime after 15 was sent to him on October 12th, so it would be 15 that. 16 sometime in that time frame? 16 Once I started doing that, I stmted 17 A. Correct. He would have had it sometime 17 looking at what the packet contained, and I 18 after October 7, 2005. 18 noticed that the packet did not include 19 I spent a couple of days digging 19 Mr. Clark's letter to Phil Miller and 20 through the file and checking some things out. 20 Mr. Miller's response back. 21 I believe I even called Mr. Miller in regard to 21 So I called Phil to see ifhe had 22 getting some information. 22 copies of that because I had intended to respond 23 So, you know, say it took me two or 23 at that point in time to this October 7,2005, 24 three days to prepare my response -- it would 24 letter that Mr. Clark had sent threatening Mateo. 25 have been somewhere between probably the 12th, 25 Phil dug it up and faxed it over to me.


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I think I even included that in my response -- one of those responses where I noted that Mr. Clark's file didn't include that

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5 Q. I have noticed that we don't have those 5

6 attached to your letter, but I think they're part 6

7 of the record. So let's just take a minute to 7

8 look at that. 8

9 Look at Exhibit 51, please. 9

10 A. Okay. 10

11 Q. That's the June 10th fax cover sheet 11 12 from Jay Clark's office to Phil Miller that 12

13 you're referring to in your letter? 13

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A. Yes. I've got 51. Yeah -- yes. 14 I'm sorry. ! 15

Q. Then take a look at Exhibit 52. In ' 16

your letter, you refer to the letter from Phil 17

18 Miller to Jay Clark dated June 22nd. That's what 18

19 you're referring to there? 19

20 A. Yes. 20

21 Q. SO that didn't come up when you filed 21

22 your motion? 22

23 A. No. I didn't know this, but I think in 23

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25 I think I -- this all occnrred June 20th That 1 25

Page 147

Affidavit. \Ve also went through the letter that

accompanied the Affidavit threatening to sue him. Mateo ,vas trying to figure out whether

he should try to alleviate the litigation by signing that, and so I went through the Affidavit and ,\'e went point through point and I asked him whether or not he could under oath sign that as being accurate. He said no, he couldn't.

So we felt like that that Affidavit --I don't know where Mr. Clark, without having any contact with Mateo as long as he did, would even have the right to draft an Affidavit without Mateo's input -- Mr. Varela -- I keep calling him "Mateo." Sorry.

Q. If you kind of grab the Affidavit, it's in Exhibit 76.

Have you located that? A. Yes. Q. SO Paragraph 1. Did you have

any objection -- did you or Mateo have an objection to Paragraph 1 ?

A. I don't know -- paragraph 2. Q. Well, paragraph 1 says that the Bar

Complaint IVas prepared by yon or your staff Page 148

would have been the date before Mateo first came I 1 A. Yes. I mean --2 to my office. I filed my motion to try to I 2 Q. I'm sorry. 3 realign -- or to try to get that hearing set 3 A. You're wanting what I object to or--4 thereafter. I 4 Q. Y es. You or Mr. Varela. 5 I think what had -- where this -- where 5 A. Okay. Basically, we disagreed --6 I garnered this information is my conversations 6 I disagreed with paragraph No.1. I conceded 7 with Phil Miller with regard to his objection. 7 that Nancy Cunningham did do -- did type them, 8 Q. Okay. 8 but I didn't add anything other than the letter 9 A. And I think at that point -- I didn't 9 that was attached explaining that, you know, what

10 really do anything with it until we got this 10 had happened. 11 final letter from Mr. Clark, and then I called 11 I don't believe Mr. Varela agreed to 12 Phil-- because I didn't have it in my file, 12 paragraphs 2 and 3. 13 as well, and you didn't have it, so I called 13 Paragraph 4, oh, both of us, Mr. Varela 14 Phil Miller. He's the one that provided these to 14 and myself, didn't feel that was even close to 15 me. That would be the exhibits that should have 15 being accurate. Mr. Clark had sent a letter to 16 been attached to my letter and referenced on 16 us in response to my letter saying, "\\Thy should 17 page 2. 17 he?" 18 Q. Okay. Let's turn to Exhibit 78. 18 At that point in time, I don't know if 19 A. 78 or 77? 19 I was familiar with the September letters -- so 20 Q. 78. 20 the September 2nd and September 16th letters 21 A. Okay. 21 where there was the $218 language in it when I 22 Q. What position did you take with respect 22 first met with Mateo. 23 to the proposed Affidavit for Mr. Varela? 23 Q. Okay. 24 A. Well, I sat down with Mateo when he 24 A. I think there was the other one that --25 brought that in, and we went through the 25 paragraph 9 says, "Mr. Clark and I received the


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1 Police Reports plior to the deadline, and that he 2 revievi1ed it on that date and received it, which 3 was June 3rd, 2005. 4 Mateo indicated to me at that point in 5 time that he wasn't there, so that's when I said, 6 "You can't sign it if you don't know what 7 Mr. Clark did or did not do." 8 I will add that I believe there was a 9 billing statement, an itemized statement--

10 Q. That is part of Exhibit 76? 11 A. That is part of Exhibit 76. I don't 12 believe there was an entry for June 3rd, 2005, 13 that Mr. Clark had reviewed the discovery 14 as he indicated in the Affidavit and wanted 15 Mr. Varela to sign. I don't see the --16 Q. On Exhibit 76, there is an entry 17 "6/3/2005, Re: Discovery." Have you found the 18 statement? 19 A. I haven't. 20 Q. It is part of Exhibit 76. 21 A. Oh, here it is. Okay. tiRe: 22 Discovery." But Mateo said he wasn't there. 23 Q. Okay. All light. 24 Did you have any other problems with

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Page 150

A. I don't know -- not to nit-pick --2 I don't know, but the biggest problem I had was 3 that there was an Affidavit that said, "You sign 4 it, and it may alleviate him from being sued." 5 I think there was some language to that --6 Q. By "that," are you referring to the 7 letter --8 A. Yes. 9 Q. -- page 1 of Exhibit 76?

10 I'll put it this way: 11 Was your primary obj ection Paragraph 1 12 and the last paragraph of the letter? 13 A. Paragraph 1, page -- the last 14 paragraph, page 3, basically where he may 15 consider legal action ifMr. Varela refuses to 16 sign that Affidavit. "It gives him a means to 17 recant the other misrepresentations that he has 18 told." 19 Q. Thank you. 20 A. Signed, "Jay P. Clark." 21 Q. Okay. The last thing I want to --22 did you -- on Exhibit 78 on the third page you

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Q. 'What were your thoughts about that? A. Well, if you look at 76 where it has an

itemized accounting of what Mr. Clark had done for Mateo, he has on 6/2112005, "A call from client and .3." He charged $37.50, which brought him to the balance up to $218.75.

I didn't catch it at first, but then I stmied looking at the check Mr. Clark had sent in, and it's dated June 5th, 2005, but it has the same dollar amount, $218.75, and so it appeared to me that Mr. Clark was attempting to back date the check to get back into -- to support his previous letters, I guess, but the problem with that is that he deducted out on June 21 st the $37.50, which generated the balance back to the client of$218.75, but the check date is June 5th, 2005.

So either Mr. Clark has a crystal ball knowing that Mateo is going to call him, you know, some 315 days later or he backdated the check. That was my interpretation of it.

Q. You concluded that you -- all right. I take it -- you said before you

thought you had an obligation to write this ?

Page 152

A. I did. Q. And what was the basis of your feeling

you had an obligation to wlite this letter? A. Well, I guess it's a combination of

what was going on: The threat to sue Mateo; the failure to send over his entire file from you guys with Phil Miller's letters was critical because he was taking a position that Mateo was going to have to peIjure himself, but that wasn't really what happened.

Jay missed a deadline. You know, we all do. I understand that, and I don't have a problem with that, but what I have a problem with is what happened after that, you know, suggesting that I -- you know, I'm typing this up and doing work, a Complaint against him, but he was trying to cover that all up, and that's where I felt that I had a duty to step in and disclose that to the Bar Association.

Q. Okay. And then Exhibit 79, take a look at that. I think Mateo testified that you or your office assisted him with that. Can you explain the assistance with regard to that letter?

25 A. Yes. 25 A. I know that I was a lot more involved (208)345-9611 M & M COURT REPORTING (208)345-8800 (fax)

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\vith this letter than the first letter that was 1

sent out that we typed. 2

I'm sure I helped him point out, 3

you know, errors and inconsistencies that I 4

thought, you know, he should make available to 5

the Bar Association. So I was a lot more 6

involved than the first time. 7

The first time I was just really trying 8

to get something out the door, honestly; and then 9

once the Affidavit and stuff came in, then I 10

became a lot more involved. 11

Q. Did you charge him anything for this 12

work -- charge Mateo for the work? 13

A. I haven't charged Mateo for anything 14

other than the initial-- ifit's $800, other 15

than that. I didn't charge him for anything 16

else. 17

Q. You didn't enter into a separate 18

agreement related to anything else; you did this 19

out of your obligation? 20

A. COITect. I didn't charge him. 21

MR. ANDREWS: That's all I have. 22

MS. ED\V ARDS: Can Ijust clarify one 23

thing you said? 24

Page 154

concerned because the June 10th letter from Mr. Clark to the Prosecuting Attorney and the response to that were not included in what you called "the packet. "

Were you talking about the file that Mr. Clark sent to you or his response to the State Bar?

THE\VITNESS: The response to the State Bar.

MS. EDWARDS: Thank you. THE WITNESS: I don't -- can I follow

that up a little bit? I don't recall getting a whole lot from Mr. Clark's office. I know that I

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hearing, an)T\vay," and he goes, "\Vell, I've already told Jay Clark, 'No.'"

I let that go -- I didn't even get it

Page 155

at that point in time. The only time I really got it was when I started -- when the Affidavit came out, and then I started digging because I felt like, well -- and then I don't know if I called Julie or asked them if it was in there or not, but that's how I got it, and I forwarded it on to the Bar Association.

MS. EDWARDS: Thank you. CHAIR.t\1AN WHITNEY: I'd like to follow

up with one question: Before anything happened with Bar

Counsel, did you send a letter to Mr. Clark's office asking, "Give me your whole file for this client"?

THE \VITNESS: I don't -- I don't know. I doubt I did, I mean, to the best I can come up with.

CHAIRMAN \VHITNEY: And did you ever -even if you didn't ask for it, did you ever receive any certification from Mr. Clark saying, "Mitch, here's my whole file for this client"?

Page 156

CHAIRMAN WHITNEY: Just a letter from him, a phone call, anything saying, "Yes, Mitch, you've got the whole file."

THE WITNESS: Probably not. I mean, I know I got some things, you know. I don't even know how I got it. I don't know if my secretary ran over and grabbed it.

I don't recall Jay and I really even discussing the substitution issue. Probably the only thing I really sent him was probably that letter saying, you know, "Mateo has some misgivings. How about the $500?"

CHAIRMAN \VHITNEY: All right. Thanks. Mr. Purviance, cross-examination?

MR. PURVIANCE: Yes.

17 Discovery Response about the time I got involved, 17 CROSS-EXAMINATION 18 so -- 18 QUESTIONS BY MR. PURVIANCE: 19 MS. EDWARDS: Wasn't that June 10th 19 Q. You're not going to be upset at me if 20 letter and the response included in the file that 20 I call you "Squeeze," are you? 21 you got? 21 A. If you call me what? 22 THE WITNESS: No. The only way I 22 Q. "Squeeze." That's what we used to 23 became aware of that is when I filed my motion, 23 call you. 24 I believe Phil Miller had made reference because 24 A. Go ahead. (Laughter.) 25 I -- I was trying to argue, "Hey, give us a 25 Q. You were the Prosecutor for about--


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in Glenns Ferry for quite a long time, weren't

A. Yes. Q. How many years? A. About 5,6, 7, somewhere in there. Q. And they even eventually merged that

into the Elmore County Prosecuting Attorney's Office?

A. Yes. They disbanded their -Q. Police Force?

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you is as part oftheir job duties, Public Defenders aren't allowed to file BAC hearing requests because it's a civil case.

A. If you say so. I don't know. Presently, I can answer that question.

Back when I was prosecuting for the City of Glenns Feny in the early '90s, I don't know -I don't know.

Q. Okay. A. I'm not even celtain -- I don't even

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A. -- City Police and contracted v,'ith the County.

Q. How many DUIs during that period of time do you reckon that you prosecuted?

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know for sure when the refusal and the additional penalties came into effect. I'm not even celtain whether or not we even had that when I was prosecuting back then.

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A. I have no idea. Q. Hundreds? A. No. It's Glenns Ferry. Q. Yes. About 100? A. I wouldn't know. I don't know how to

answer that. I mean, you know, obviously, there ,vere several, but I couldn't put a number on that.

Q. And as part of a plea agreement on a DUI, you know, a final resolution where the Defendant pleads gllilty to either a DI TI or an

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To answer your question presently, in 2005, what you're asking for, the Public Defender's office would not file -- as part of their appointment for the Defendant would not file an ALS request --

Q. Or a BAC request? A. -- or a BAC request. Q. And that's because a criminal case

invokes the 6th Amendment Right to Counsel whereas a civil case does not?

A I think that's a fair statement Page 158 Page 160

1 Inattentive or a Reckless -- say something less -- Q. Okay. So the Public Defender wouldn't 2 a lesser charge -- as prot of the plea agreement, 2 handle an ancillary civil case because it's a 3 you have withdrawn the Affidavit of Refusal 3 separate case? 4 whether or not a hearing has been filed? 4 A. I assume so. We're not talking a 5 A. I don't think there was an ALS 5 Public Defender here. 6 suspension when I was prosecuting. 6 Q. Fair enough. 7 Q. No, I don't mean an ALS -- aBAC 7 A. Okay. 8 Affidavit in return for the Defendant's plea of 8 Q. And it's really not much of an object 9 guilty to a DUI? 9 in a plea agreement situation for the Prosecutor

10 A. Me, as a Prosecutor? 10 to withdraw the Affidavit of Refusal and dismiss 11 Q. Yes. I 11 a refusal suspension in return for a plea on a 12 A. Probably. I 12 DUI? 13 Q. Okay. You probably did it several 13 A. Rephrase -- I don't know. 14 times? 14 Q. In terms of mechanics on how you do it? 15 A. I doubt it. 15 A. If you have requested -- if you have 16 Q. Well, one of the -- 16 requested a hearing on a refusal, it's very 17 A. We didn't have very many DUI cases down 17 common that they will withdraw the Affidavit of 18 there. 18 Refusal in exchange for a plea of guilty to a 19 Q. Do you remember how the Public 19 DUI. 20 Defenders office was constructed in Elmore County? 20 Q. I guess --21 A. When? 21 A. If you have not requested the hearing 22 Q. While you were a Prosecutor. In other 22 and it has gone -- that hearing time has passed, 23 words, when -- 23 jurisdictionally, I think it is a big issue on --24 A. When Frazier had it? 24 Q. But it can be done mechanically. If 25 Q. Yes. In other words, what I'm asking 25 the Prosecutor and the Defense attorney agree on


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Page 161

that as an outcome, the Prosecutor can make a motion to the Court and ask that the Affidavit of Refusal be vacated?

A. Aiter the seven days -Q. Yes. A. I guess it could be. Q. And your testimony is that v"hile you

were a Prosecutor, you may have done that? A. No. Q. Okay. A. No, I would never have withdrew

an Affidavit of Refusal if there was never a hearing request. Why would I? There would be no jurisdiction.

Q. Okay. Not even in return for a plea agreement?

A. No. I have never done that, as far as I can recall. It wouldn't make any sense.

If there was a pending hearing -- if you had requested the hearing, and we have the hearing tomorrow, and he has a charge ofDUI, I would have done that on -- if that was --I have done it in my private practice numerous times defending people -- they withdraw the A ffidavit of Refusal after pleading guilty to a

Page

DUI but that was only after I've requested a hearing, which is different than what we have here.

Q. And you eventually did file a Motion To Dismiss?

A. Yes. Q. And --A. In this case, in Mateo's case. Q. And that was under -- basically, the

time limit for filing a Motion To Dismiss in a

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criminal case is covered by Rule 16 of the Rules of Criminal Procedure; correct?

A. Yes. Q. And you have 20 days to file that? A. Okay. Q. Does that sound fair? A. That sounds fair. Q. And either a Motion To Dismiss or a

Motion to Suppress you have 20 days -- and that's jurisdictional?

A. I don't know if that's jurisdictional procedure.

Q. Well, we can debate that, but --A. We can if you want. Q. In any case, the rule states that you

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have 20 days to file it? A. The rule does state that. Q. Okay. A. But--

Page 163

Q. In the case of your Motion To Dismiss, however, that was filed more than 20 days?

A. Well, from when? Q. From when he went through his Oliginal

an-aignrnent. A. Yes. DUling the period that Mr. Clark

had represented him, if you include that, yes. If you include my involvement, I don't

believe so. I think I made the appearance, and I filed it within the 20 days.

Q. But from the time that Mr. Clark appeared, it was more than 20 days?

A. Right. So maybe Mr. Clark should have filed the motion.

Q. But Mr. Miller didn't object to that late file.

A. Not to my recollection. Q. You saw his response to the Motion To

Dismiss? A. Right. Q Yon saw his response to the Motion To

Page 164

Dismiss; correct? It's one of the exhibits that you were going through just now.

A. I think it was a response to the motion for the ALS.

Q. Well, the response --MR. ANDREWS: It's part of the record.

We did go through it, but I'll find it for you if you want to get to it.

THE WITNESS: Well, in any event, I got it done.

Q. (BY MR. PURVIANCE) But Mr. Miller didn't obj ect to the late filing?

A. Whatever the document says, it says. I don't know.

Q. Okay. A. I don't recall if I ever saw it. Q. All right. And you had a -- just for

the Hearing Committee's information -- the probable cause/reasonable suspicion standard at a BAC hearing is about the same as what it is at a suppression motion; correct?

A. Pretty much, yes. The burden has probably shifted, but --

Q. Yes. In a BAC hearing and a Motion to Suppress hearing, the burden is on the Defendant


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more on a Motion to -- more in regard to a Motioni 5

to Suppress or Dismiss, right, as opposed to an I 6

ALS where the burden basically stays with the 1 7

Defendant throughout that hearing. 8 9

absolute defense that he was found -- or was found away from the vehicle?

A. It isn't an absolute defense, absolutely not. It's a factor that I felt needed to be raised, though.

Q. Okay. But, in other words, just because the police arrived there after the vehicle was parked doesn't really -- isn't really a fatal flaw in the State's case?

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Q. Right. The burden on a Motion to Suppress, however, the burden is on the State where it's a warrantless seizure?

A. Um-hrnm. (Nodding head.)

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could have put him there, they can have cameras, they can have video recording.

Q. Is that right? There can be any other number of pieces A. That's correct. Yes. 14 of evidence that can establish that case.

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Q. SO the standard is different. So at a BAC hearing, the Defendant has even a higher

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18 burden than a Motion -

A. I don't know if it's a higher burden, but he has to carry that burden the whole way.

Q. Right. And on a Motion to Suppress on a warrantless seizure, the State has the burden?

A. Correct. Q. And the burden stays with them? A. (Nodding head.)

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Q. And including circumstantial items like the cell phone being found in the pickup?

A. Sure. Q. And the fact that a duffel bag was

found with the Defendant and away from the pickup, would that be a circumstantial --

A. I don't recall the duffel bag thing, but I recall the cell phone and a -- I'm sure

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125 you'll correct me if I'm wrong -- bnt there might-Page 168

A. Correct. even have been keys to the vehicle in Mateo's 2 Q. Okay. You made a statement regarding 2 pocket. 3 1\1ateo's -- \vhere they found him as far as in 3 Q. That's correct. 4 relation to the vehicle allegedly that he was 4 A. I recall those two pieces of evidence 5 driving without the owner's permission? 5 that are out there that could tie him into the 6 A. Correct. 6 vehicle. It doesn't necessarily mean that he 7 Q. A.nd you stated that you weren't sure 7 drove the vehicle, but there is some evidence 8 how long the time delay was from the time that 8 that suggests he did. 9 the vehicle was parked until the police arrived 9 Q. Including leaving his cell phone in the

10 to start questioning Mateo? 1 10 suspect vehicle? 11 A. Um-hrnm. (Nodding head.) 11 A. Yes. A passenger could do that or he 12 Q. Correct? 12 could do that himself. 13 A. Correct. 13 Q. Fair enough. Then we also have his own 14 Q. Do you know what -- you're familiar 14 statement that he drank and drove? 15 with the term "retrograde extrapolation"? 15 A. Yeah. There was a couple different 16 A. Explain it for me. 16 statements, if! recall. I haven't reviewed 17 Q. That means that the police can -- or 17 those Police Reports, but I think he denied --18 the State can argue that the BAC at the time that 18 and he made some sort of statement about having a 19 they apprehended the Defendant can relate back to 19 knife, and then maybe right towards the end he 20 the time that he was actually driving. 20 said, "Go ahead and arrest me. I drove," or 21 A. Um-hrnm. (Nodding head.) 21 something like that. 22 Q. SO, in other words, that's not 22 Q. Okay. And he actually said he drank 23 necessarily a barrier? 23 and drove. 24 A. Well, what do you mean by "barrier"? 24 A. 'Vhatever -- maybe. 25 Q. In other words, it's not necessarily an 25 Q. I guess what I'm getting at is in this


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kind of a case \vhere you basically have his 1

statement in conjunction with three pieces of 2

circumstantial evidence -- including the fact 3

that that vehicle was close by -- that's probably 4

enough to carry the State's burden -- or it could 5

be? 6

A. It could be. Can I clarify something, 7

ilioo~? 8 Q. Sure. 9

A. The issues that brought my involvement 1 10

into this case is not whether Jay Clark should 11

have filed with the State, with Elmore county. 112

The fact of the matter is, he didn't. 1 13

We all make mistakes -- we've all done 14

that -- and I don't have any problem with that. i 15

You know, I don't want to get up here i 16

and confess my sins of the things that I have 117

forgotten to do representing a client. I don't i 18

have a problem with that. 119

Because I hied to get it back in Ii 20 alignment -- I wasn't successful, but had I got 21

it in alignment, I would have argued the things I 22

that you're talking about, we're talking about -- 123

and I may have lost them, and I may have won it. 124 Q But did yon lose him on the Motion To 25

Page 1701

Dismiss. A. Let me finish, if I may, please.

All of that is "water under the bridge" because it's really not what I have an objection to in regard to Mr. Clark and what he did -- it's after that.

Q. Sure. A. It's this Affidavit, Larry, and

suggesting that I'm doing what I'm not supposed to be doing, and threatening and -- those are the things that I have -- that's why I got involved.

Q. But, ultimately, your Motion To Dismiss is basically based on the same legal arguments that a BAC hearing would have been based on?

A. Sure, sure. Q. And you lost that. A. The motion for what? Q. The Motion To Dismiss. A. How did I lose the motion? On the DUI? Q. Yes.

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A. How did I lose that? Q. Fair enough.

Page 171

Finally, Mateo eventually pled guilty to a second offense Underage Consumption?

A. I believe so. Q. And that carried a six-month license

suspension? A. I believe so. Q. And an Underage DUI carries the same

suspension, does it not? A. In 2005 wasn't there a change in

statute? Similar, similar. There's no fine. There's a larger suspension -- because the BAC is .04 and not .08, that the fine -- you know, the jail time goes away, but there is a larger suspension for a minor.

Q. And there is j ail time potentially on a second offense, but there is not an Underage DUI?

A. Second offense --Q. Underage Consumption. A. Yes. Q. But there is not on an Underage DUI? A. I don't believe so. Q. And, in fact, on the Underage

Consnmption that Mateo pled gnilty to, he Page 172

actually did in fact get suspended jail time? A. I would have to -- Mateo was the age of

majority when he received the Citation, was he not? Was this a Minor in Consumption, a Minor DUI?

Q. It was an under 21 DUI. A. Oh. I don't recall that, but to answer

your question, I believe Mateo received a fine on the Minor in Consumption, he had suspended jail, and a backdated driver's license suspension.

Q. Right. And then he pleaded up with the same suspension that he got on the BAC, in essence?

A. Yeah, yeah -- and they ran concurrent, the two suspensions. He served one driver's license suspension.

If I recall correctly, that was -- by the time we did the minor plea on the Consumption, he had already had his driver's license back, so we backdated it.

A. The State conceded. They dismissed the 21 Q. That's correct. DUI and pled it out to a Minor in Consumption.

Q. SO you went to a hearing on that? A. I didn't have to. Q. Okay.

22 A. He didn't have any additional suspension. 23 Q. But he ended up serving some time on 24 the Sheriff Labor Program; correct? 25 MR. ANDREWS: Exhibit 85 may be in


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there if you want to --THE WITNeSS: I don't recall. If 2

that's what it says, that's what it says. 3

Q. (BY MR. PURVIANCE) According to the 4

Judgment I have, he was imposed 30 days of jail 5

with 21 days suspended and served -- 6

A. Two days or four days were served. 7

Q. And he could not have been given jail 8

time on an Underage DUl, could he not have? 9

A. No. 10

Q. /\nd you tried to do the BAC motion after the seven days?

A. Yes. Q. And you told Mateo that that's what you

were going to do -A. Yes. Q. -- when you arranged a fee for him? A. Yes.

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I charged back in 2005, but I don't know. Q. Right, but you -- you think that was

fair for filing both of them? A. Yes. Q. Okay. A. That was cheaper than what I normally

charge, you know, but I felt sorry for Mateo. Q. You nOlmally would charge more than

that for both the BAC hearing and the DUI? A. Yes. Q. And in your experience of handling BAC

hearings, those basically require about as much work as a Motion to Suppress; correct?

A. Yeah. Pretty much. Q. Because the issues are about the same? A. The issues are similar, yes.

The BAC hearing, the only thing that really seems to change is I need to make sure that if the State is not bringing in -- the State

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Q. And you have succeeded in getting Judges or Prosecutors to waive the seven-day requirement, have you not?

is pretty good about bringing in their arresting offIcers on the Motions to Suppress and Dismiss.

A. No, not to my recollection. Q. Then why would you file a motion even

if you have never succeeded in it? A W]})! not')

Q. Might as well try it, huh? A. Might as well try it.

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Q. Okay. But you were pretty confident when you filed that motion that it wouldn't work?

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A. I didn't give it much of a chance, no, but here is the deal:

7 He changed attorneys, his previous 8 attorney messed it up -- those things happen--9 and so I had to try.

10 Q. Okay. And the $850 that you charged 11 I\1ateo was for both the DUI and a BAC hearing; 12 correct? 13 A. I think it's $800 if you look at the--14 I circled the $800 fee, but it would have been 15 for representing him on the DUl and tlying to get 16 the ALS or the refusal hearing set. 17 Q. And that also paid for the Motion To 18 Dismiss? 19 A. Yes. Everything. I was going to 20 charge him $800 for everything. 21 Q. SO, basically, $800 -- would it be fair 22 to say that that's what attorneys charge in 23 Elmore County for both a DUI offense and filing 24 a BAC hearing?

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On the refusals, the State -- sometimes I have to give something. The rest of them, I really don't have to.

Q So a B A C act:n ally reqll ires a bit more Page 176

work than a Motion to Suppress -- sometimes if you have to Subpoena the officer?

A. Yes. Q. Subpoenas aren't fun to draft and try

to get them served. A. Well, yeah. If they're on the

computer, I guess they have to get stamped and get it over to the Sheriffs Office.

Q. You just hand it overto the Sheriff's office?

A. You serve them for free it it's a 12 criminal case, so I don't find it too taxing. 13 Q. But that is not something you would 14 have to do if you were just doing a DUI climinal 15 case? 16 A. Not necessarily. I mean, that's the 17 difference, but, you know, basically the same 18 issues. You're kind of doing all the same thing. 19 You're using the same actors, the same facts, the 20 same arresting officers. 21 Q. The same legal theory? 22 A. Pretty much.

24 State to put on the same identical testimony on 25 A. I guess. I don't know. 1

23 Q. And you're basically requiring the

That's what 25 either one of them? (208)345-9611 M & M COURT REPORTING (208)345-8800 (fax)

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A. No. On the refus2.1, you have got to --2 I've got the burden, so I'm putting on that

exchange for your client pleading guilty to 2 the DUL"

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testimony. Q. Right. So it's even more work than a

Prosecution motion? A. Cross-examination -- call it direct

examination -- it's all the same. Q. It's all the san1e?

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A. It's very similar -- come on. 9

Q. But a Suppression Motion is a little 10

bit easier since you don't have the burden of 11

proof on a warrantless seizure? 12

A. I guess. 13

Q. Okay? 14

A. Technically, maybe. 15

MR. PURVL\NCE: Okay. I guess I have 16

nothing further at this point. 17

CHAIRMAN w1-IITh'EY: Okay. Mr. Andrews 18

any redirect? MR. ANDREWS: Yes. I think just a

couple of questions.

RED IRECT EXA.11INA TION Q"lJESTIONS BY MR. A}·rDREWS:

Page 178

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But \vhen that hearing hasn't been requested and the seven days have ran, that it would be uncommon that that occurred. I did file the motion trying to get it, but I wasn't successful in getting it.

So I doubt I had that conversation, "Hey, this will work," because the seven days had ran.

Q. Did you have any discussion with Mr. Varela whether he preferred to plead to a DDI or a Minor in Consumption?

A. Well, his preference was definitely the minor. He didn't want to have the DDT. Now, there are some benefits, you know, there's getting rid of a DDI -- and I don't recall -- he was the age of majority so, you know, I didn't recall that it was a minor DDI under 21, but in any event, that's what I wanted to do was get rid of the DDT. He didn't want to have it on the record if at all possible.

You certainly don't want to tell an employer, "Hey, I had a couple of Minors in

Page 180

hearing on the Motion To Dismiss was vacated? 1 that sounds a heck of a lot better than telling 2 A. That's my recollection. I filed the 2 an employer, "I had a DUI in 2005 or 2006." That 3 motion. Mr. Miller, the Prosecutor for the 3 is definitely an advantage, even though it was 4 City of Mountain Home and I discussed it, and we 4 four days of SILD. 5 worked out a resolution. 5 MR. ANDREWS: That's all I have. 6 Q. You didn't have to re-notice it up -- 6 Thank you. 7 A. No. 7 CHAlRMfu"i WHITNEY: Any recross, 8 Q. -- you incorporated that into your 8 Mr. Purviance? 9 negotiations? 9 MR. PURVIANCE: No.

10 A. Yes. 10 CHAJRMAN WHITNEY: Thank you, sir. 11 Q. Did you consider or discuss with 111 You may step down. 12 Mr. Varela pleading guilty to the DUI in exchange '12 THE WITh'ESS: All right. Am I released, 13 for a withdrawal of the Affidavit of Refusal of 13 and can I go back to my abode in Mountain Home? 14 his license suspension? 14 MR. At-·;rDREWS: Yes. 15 A. Probably not. I mean, I may have, but 15 THE W1TNESS: All right. Thank you. 16 here's the problem -- that there was no hearing 16 CHAIRMAN WHIThTEY: Do you have anymore 17 requested. I know I probably had some conversatio 17 witnesses, Mr. Andrews? 18 and said, "If the hearing was requested, this is 18 MR. MTDREWS: I think we've agreed that 19 typically what happens" -- as what Mr. Purviance 19 we can proceed v.rith Mr. Clark's case -- and 20 is trying to say is that typically you have a 20 rather than call him direct, we will just handle 21 hearing set for refusal, and the guy is charged 21 it on cross-examination. 22 with DUI -- it's very common that the Prosecutor 22 CHAIRMfu"i WlIITNEY: So does the Bar rest 23 and you get together, and they will offer to 23 at this point, then? 24 withdraw the Affidavit of Refusal, which is an 124 MR. ANDREWS: Yes, with that understanding. 25 absolute driver's license suspension, "-- in ,25 CHAIRMAN WHITNEY: Okay. It's 3:03.


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Does anyone want to take a break before we start? 1

MR. PURVIANCE: Yes. 2 CHAl.R1\1AL~ \VHITh'EY: Let's do that. 3

the time you went to Northwest Nazarene? A. No. I grew up in Middleton. We were

still living nOlth of -- well, I lived at the dorms, but my family was living in Middleton.

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Let's take a break 3..'1d be back here at 3: 15. I 4

(Recess taken.) I 5

CHiJRMAN WlllTNEY: Okav. We're back o~ 6 • i

Q. Vfhen did your family move to Mountain Home?

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the record in the case of State of Idaho versus II 7

J.P. Clark, No. FC 09-05. 8

It's 3: 18 in the afternoon on Thursday, I 9 I

December 2nd. ! 10

Bar Counsel is here representing the 111 State of Idaho. Mr. Clark is present, as he has 112

been throughout the day, represented by his .13

attorney Larry Purviance. 114

A. Right about the same time I graduated from NNU. That would have been back in the spring of 1990.

MS. EDWARDS: Can I just ask you to move forward a little bit?

THE WITNESS: Oh, I'm sony. MS. ED\V ARDS: My view was blocked.

Thank you. 15

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The State -- the Prosecution, rather -- \15

the Bar has rested its Case in Chief, and we are 116

now ready for the presentation by the Defense. 117

Q. (BY MR. PURVIA1\JCE) So, basically, you went to law school and your family relocated to Mountain Home?

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Mr. Purviance, do you have any case I 18

to present? 119

MR. PURVIANCE: I do. I will be 120

calling Jay Clark. i 21

A. Yes. I didn't start law school until 1993. I farmed full-time for three years in between.

Q. And so, basically, you made a decision 20

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CHAl.R1\1AN WHITNEY: Thank you. 122

Mr. Clark, if you would just step right 123

to relocate in Mountain Home because that's where your family was living?

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up here and be sworn. I will administer the oath 124

to yOll I 25

A. Yes. I always assisted with the family [ann, actually I was always very involved urith

Page 182 1 Page 184

(Jay P. Clark sworn.) 1 my father in farming. 2 CHAIRMAN WHITNEY: Go ahead and have 2 Q. Okay. And you basically have taken 3 seat there. 3 over the farm in the last few years; is that fair 4 Mr. Clark, if you would state your name 4 to say? 5 for record, please, and spell your last name. 5 A. Yes. My dad and mom finally retired in 6 THE WITNESS: Jay Phillip Clark, 6 late 2007, so I've been farming full-time since 7 C-l-a-r-k. 7 then, but I really ended the full-time practice 8 CHAI~\-1AN W'HITNEY: Thank you. 8 of law back in 2006. 9 Mr. Purviance? 9 Q. And what month in 2006 did you end your

10 10 practice of law? 11 JAY PHILLIP CLARK, 11 A. It wasn't a specific moment, but it was 12 First duly sworn to tell the truth relating to 12 more during the latter part of the year, really, 13 said cause, deposes and says: 13 trying to wind dOWTI. It took some time with 14 DIRECT EXAMINATION 114 several hundred active cases. 15 QUESTIONS BY MR. PURV1ANCE: 15 Q. Okay. And then you basically went on 16 Q. Jay, how long have you been an 16 Affiliate status in February of this year? 17 attorney? 17 A. Yes. 18 A. I was admitted to the Bar in September, 18 Q. I'm going to let the Hearing Board know 19 1996. 19 I'm kind of going to have to detour here in order 20 Q. And where did you get your undergraduate 20 to lay the basis for what comes afterwards -- and 21 degree? 21 I would ask for some forbearance from the Hearing 22 A. Northwest Nazarene University in Nampa. 22 Committee because I feel that Jay has a very 23 Q. And what was your degree in? 23 important point to make with this part of the 24 A. Social Sciences, Education. 24 direct examination. 25 Q. And were you living in Mountain Home at 25 Jay, tell me about Lany Severson.


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A. \Vell, that was a First Degree Murder I case. I was involyed with a number of aspects of i 2

that. 3

Q. Vlhat aspects of that were you involved 4

w~? 5

A. Initially, I was co-counsel in the 6

criminal side of that case, and also co-counsel -- 7

and there was a probate civil side of that case, 8

also. I 9

Q. And how many attorneys do you reckon 1 10

there were in Mountain Home at the time the /11

Severson case was going on? 112

A. Well, including the Prosecutors, the 1 13

Public Defenders, and the private practice i 14

attorneys, there's 12 to 14, something like that. 115

Q. SO 'would it be fair to say that most of \16

the town was involved in one aspect or another of I 17

the vmious cases that emanated from Larrv i 18 - I Severson? 1 19

A. Yes. Almost every attorney in 1 20

Mountain Home. .21

Q. And the actual murder took place in 122

approximately 2001 ? 23

A. Yes. Approximately 2001 or 2002. [24

Q And the actllal murder trial took place ! 25 Page 186

in 2004. Would that be fair to say? 2 A. Or 2005.

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3 Q. And then the various other litigation, 4 was it finished by 2005 or was it --5 A. Actually, the last thing that happened 6 was actually in this building where I argued in 7 front of the Idaho Supreme Court in the probate 8 case, and Mitch Egusquiza was actually the 9 opposing counsel. That was one of the very last

10 things to happen. I believe that was in early 11 2006.

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Page 187

A. It was a dividing line. It became pro and con for and against, a lot of -unfortunately, it just created a lot more animosity. There was already quite a bit in Mountain Home.

I know Magistrate Judge Epis commented several times to various attorneys in town about how he was disgusted with the animosity that was going on between and amongst the attorneys in Mountain Home.

Q. And bear in mind I left 110untain Home in 2003, but as I've watched the legal ins and outs, would it be fair to say that there were various factions of attorneys that would switch sides in various cases, and one attorney would be handling part ofthe probate case and then it became a Public Defender and that sort of thing?

A. Yes, that's true. Particularly, there was one group it always seemed like I was on opposite sides of the fence with, and that was Coors Mincing and Terry Ratliff, and they always -- for whatever reason, we were always against each other, and it turned into quite a personal battle.

Q \Vhen you say, "personal battle," urhat

do you mean by that? A. Well, even just during the Severson

cases at one point Mr. Egusquiza not only threatened to sue me, he actually fIled a personal lawsuit against me claiming that, essentially, I had taken or stolen his client's truck, a 1996 Dodge RAM truck.

Page 188

Q. And who was his client at that point in time?

A. His client would have been the Estate of Mary Severson, the Decedent.

Q. That was the murder victim in the Severson murder?

A. Correct. 15 believe that was the Appellate Public Defender's 15 Q. And how was that case fmally resolved? 16 OffIce. 16 A. Well, that case was resolved quite 17 Q. Okay. Fair enough. 17 summarily and quite quickly because the fIrst 18 Would it be fair to say -- would it be 18 time we had a status conference in front of 19 fair to characterize the Severson cases as being i 19 Judge Neville, the Fourth District Judge here in 20 "extremely disruptive" in Mountain Home? 20 Boise, I informed the Counsel present at that 21 A. Well, it was just one of those big 21 time that said 96 Dodge RAM, during all relevant 22 events that, unfortunately, it helped polarize 22 times, was on a lot ovmed by a dealership in the 23 the legal community in Mountain Home. 23 Nampa-Caldwell Boulevard in Nampa, owned by tha 24 Q. When you say, "polarize," what do you 24 dealership; and a simple $8 DMV records request 25 mean by that? 25 could have shown that.


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It ,vas a very unfortunate situation, but, of course, Judge Neville said, you know, "This case had better end right now."

1 even look at me and tumed the other way when I 2

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Q. And he was refening to Mr. Egusquiza? 4

A. Yes. Actually, his partner and 5

co-counsel, Terry Ratliff, was on the phone, and 6

it was a status conference. I appeared in 7

person, but Terry Ratliffwas on the phone. 8

Q. And Terry Ratliff and Mitch Egusquiza 9

were the two attorneys that you always seemed to 10

be on opposite sides of dUling this Severson 11

murder drama? 12

A. That was just one example of the bad 13

blood that existed between Mr. Egusquiza and 14

myself. 15

animosity was being generated by. Q. And where did you find -- what did you

find out? A. Well, unfortunately, Mr. Egusquiza \vas

just spreading these rumors constantly, and I really don't understand how or why or what was the root of it.

Q. But it just went on over a long period of time?

A. Correct. Q. And you don't know what the reason for

that was?

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Q. Okay. Was there another case where 16

that "bad blood," as you call it, exhibited 17

itself? 18

A. Yes. There was a Magistrate case where he represented the family of Nina Patterson, and she was the District Court Clerk at the time in 1\10untain Home.

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A. I really don't, other than I was always looked at as the outsider because I never worked for anybody -- I started just by myself, never partnered with any other attorney -- and so I was always the "Lone Ranger," and he's the target for the "good old boys" there in Mountain Home.

He had said in court on the record that -- refening to myself -- "Anybody that lives on bugs and lives in a -- eats bugs and

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Q. And it is a "good old boy" network there?

A. Oh, yes, without a doubt. Q Describe that

Page Page 192

lives in a cave would understand his argument," A. \Vea, it's just the "click." You have 2 and he won that case in the Magistrate Court 2 to be as -- it's just one of those very political 3 there and also won attorney's fees. 3 things -- if you're not in the little group on 4 I appealed that to Judge Bail -- 4 the inside, you're always looked at with 5 Q. Here in Boise? 5 suspicion. I mean, it's kind of how that 6 A. -- here in Boise, the FOUlih District 6 networks works. I was never accepted into the 7 Judge Bail, and she reversed that decision I 7 group -- Ijust wasn't. 8 completely and ordered the return of the fees and 8 Q. And you don't have any knowledge of why 9 the return of the property. 9 that was?

10 That was about 2003, but it seemed like I 10 A. No, I really don't, because it was just 11 all that did was make the animosity worse betweed 11 one of those things -- the "Hatfields and McCoys." 12 us. 112 Once they get going, they just don't stop, and 13 Q. And then that kind of reached apeak 13 they just snowball. 14 with the Larry Severson case; is that fair to 14 Q. Was this feud between you and 15 say? 15 Mr. Egusquiza one of the reasons why you 16 A. That's correct. 16 basically decided to go on Affiliate status? 17 Q. This personal animosity that existed, 17 A. Well, I mean, that was quite a while 18 what other fOIIDS did it take? 18 after I really sUlTendered my law firm and 19 A. Well, it's a small town. It felt like 19 basically gave up towards the end of2006. I 20 a college fraternity at times, but just the 20 just had had enough, and again I really didn't 21 rampant gossip and infighting. 21 want to go on in that atmosphere. 22 It got to the point where Mr. Egusquiza 22 I would have moved, but I knew 23 had told so many -- so much gossip about myself 23 eventually I would -- I decided to just go ahead 24 that court personnel wouldn't talk to me. 24 and take over the family farm whenever that 25 The security at the courthouse wouldn't 25 opportunity arose.


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It tumed out in later 2007 \vhen I did, it was because my dad had a stroke, and that happened about a year after I had made that decision, so that's what happened, but Ijust had had enough.

There was so much of this kind of stuff that it was -- it was just a "no win" situation forme.

Q. When you think about that history, how do you think of that in terms of this Bar's emphasis on civility?

A. Well, you could have a book about it, but actually, implementing that is an entirely different deal.

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You know, a perfect example of that 15

would be, you know, Judge Epis yelling at us all 16

the time -- and all we have to do is pick up the 17

phone and communicate -- and it seemed like 18

because of this animosity, there wasn't the 19

simple courtesy of communicating. 20

Just the transfer of the case from one 21

attomey to another attomey -- like what 22

happened in this case. Mr. Egusquiza could have 23

called me and asked me anyihing. I would happil~ 24

helped him but -- i 25

Page 1941, Q. There was just no communication?

2 A. That air of cooperation never existed. 2

3 Q. And even when it comes to something 3

4 simple like even transferring a case to someone, 5 that just doesn't happen without a lot of 6 animosity? 7 A. Well, it sure could have, but I didn't 8 know how to heal all the wounds there that

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A. Well, I have the stack of pleadings there, but the Complaint was filed and then basically there was a status conference, but it was complicated in the sense that it got bounced around between Magistrate and District Court because they didn't know what to do with it.

Q. Was that disqualified in Mountain Home under the Rules of Civil Procedure?

A. I believe it was. That's one reason it went to Judge Neville.

Q. And the case that you referred to as the "attomey fees case" involving the Nina Patterson case, did someone in that case also disqualify the local District Judge?

A. I believe so -- just because of Nina Patterson being the Clerk for the District Judge there.

Q. Okay. And that's why Judge Bail heard the appeal?

A. Correct. Q. Let's start with the case that we have

right now. Had you represented Mr. Varela before?

A. No. The first time I met him was the day that he came in for his initial cOilSnltatiold-

Page 196

Q. And had you ever represented anyone in his family?

A. No, not to my knowledge. Q. Okay. So he basically walked in from

nowhere? A. Well, I knew who his parents were

because I often would eat at the Carlos' Restaurant in Mountain Home. That was his

9 existed between us. It just was -- it was -- it 9 parents' -- his parents own that restaurant. 10 made it really hard. It just made it worse for 11 evelybody. 12 Q. And, in your opinion, is that 13 symptomatic in Mountain Home, Idaho? 14 A. Oh, absolutely. I mean, the difficulties 15 arose in every single case. 16 Q. And the Severson case was basically the 17 "straw that broke the camel's back"? 18 A. Yes. That really brought out the worst 19 of a lot of it, absolutely. 20 I mean, it's pretty hard to work with 21 Counsel in a town when they're accusing me of 22 stealing a truck with no basis. 23 Q. And what stage of that case was that 24 case in when it was finally dismissed by --25 Judge Neville, I believe you said?

10 Q. But he basically just pulled your name 11 out of the phone book? 12 A. Yes. I don't remember -- that would 13 have been on that -- on my initial Consult Sheet 14 I have a spot where it says, "Referred by," but 15 I don't know what happened -- I mean, that was in 16 the Oliginal file. 17

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Q. Okay. But you knew Mr. Bergh? A. Well, I knew more of his parents, but I

knew them. They were a farming family. Yes, I knew the Berghs.

Q. How long had you known the Berghs? A. His mom had worked at the courthouse,

23 too, for a number of years; and I knew his dad as 24 a farmer for at least 15 years.

125 Q. And when you spoke to Mr. Varela on


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]\1ay 31 st, 2005, for the first time, in your notes 1

you referred to the fact that he mentioned 2 ]\1r. Bergh? 3

from his memory is that he wasn't driving. Q. Okay. It..nd the next entry on it states

how much he had to drink. 4

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A. Yes. Yes, that's correct. 4

Q. What did you think ofthat? 5

A. Yes. There was "The lock -down underage drinking party," and then after that it says,

A. Well, I mean, that was a significant 6

7 point just because it was somebody that I was 7

3 familiar with for me, and I was just looking for 8

-- you know, like the initial stages of the case 9

to find something that would help me find out 10

what's really going on in the case, especially 11

with -- there were two or three other initial 12

"Had five beers, blacked out. Usually takes 12 to 13 beers."

Q. He told you that normally, to be that drunk, he would have to drink 12 to 13 beers?

A. Yes. I mean, those entries really speak for themselves. I mean, they're pretty straightforward.

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consultations that day, and I don't have a lot of 13

time to really develop the theory of a case 14

initially, but any kind of an acquaintance or 15

connection that I can find with this case and 16

what's going on is helpful. 17

Q. Okay. Why don't you tum to your notes 18

in that binder as far as what your notes were on 19

Q. When you were thinking about this case, without any discovery or anything like that in your possession, when you think about someone coming in and telling you on a DUI that they have had 12 to 13 drinks, and they're completely blacked out, does your mind start thinking about potential ramifications of being that drunk?

the day that you did an intake of :Mr. Varela. I 20

A. Do you remember what exhibit number '21

that is? 22

MR. ANDREWS: 44. 23

THE WITNESS: Okay. Thank you. I 24

A. Well, like you know, have been in criminal defense for 10 or 12 years -- and at that point it was only 7 or 8 years -- but still at that point at least 70, 80,90 DUls -- I don't know, a barrage of them -- and where I used to be the Public Defender appointed to all the underage Q (BY MR PI ill VI ANeE) In looking at that

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is that pretty much a routine intake note -- 1 drinking cases for Elmore County, obviously, you 2 notes of your intake when you take something like 2 know, this indicates this is a person that is a 3 a misdemeanor DUl case? 3 seasoned drinker. You know, it takes a long time 4 A. Yes, although in conjunction with that, 4 to be able to be develop the ability to drink 5 there would also have been in the file a standard 5 that much alcohol. 6 form for intakes in DUls that ask more basic 6 Q. Are there enhanced penalties for an 7 questions about alTests and so forth, but this 7 excessive DUI if you drink that much? 8 would be the typical notes on a DUI case. 8 A. Oh, certainly. 9 Q. And the first entry that you have on 9 Q. And what are those enhanced penalties?

10 there, it states that he wasn't driving. 10 A. Well, I don't recall right offhand what 11 A. Correct. 11 it is for the Underage DUI, but certainly on a 12 Q. To the best of your memory -- and 12 regular DUI it doubles -- the penalty is double 13 I know it's been five years, so somewhat memories 13 plus, you know, all the penalties double with the 14 fade, but -- , 14 idea that these are the people that are really 15 A. Five-and-a-halfyears. 15 getting in wrecks and hurting and killing people. 16 Q. Okay. But he flat out told you that he 16 Q. Did he indicate at any time during this 17 was not driving? 17 initial intake that he had refused a BAC? 18 A. Well, the note there is pretty unequivocal. 18 A. You know, I would be very shocked ifhe 19 "\Vasn't driving." The only reason I would have 19 had told me and I hadn't wrote it down because--20 wrote that was because of his statement that he 20 and that's a critical issue. I don't see, you 21 told me was not driving. 21 know, that that's written anywhere, so he must 22 Q. He didn't say, in other words, that 22 not have told me. 23 no one saw him drive; he stated that he wasn't 23 Q. Okay. And at that point in time he had 24 driving? 24 a memory of whose truck he was driving? 25 A. This would mean that his recollection 25 A. Well, he did. He said he had a memory


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of quite a few things. He mentioned a truck, that it was Ronny Bergh's truck and all these other details that, you know, we have gone over in the Police Reports.

Apparently, without seeing the Police Repoli, he was able to regurgitate all these items to me because I celiainly hadn't seen or heard anything in the case, except what he was telling me at the time.

Q. Yes. So all of a sudden he has a memory that he was, in fact, driving Ronny Bergh's truck?

A. Well, he did. He had a memOly. This was his recollection of all the events at the time.

Q. He had a memory of where he had been when he got that drunk?

A. Yes. Q. How do you know that? A. It was this house on Canyon Creek Road.

Above that it says, "Locked-down underage drinking party."

Q. Then the next entry there is kind of curious -- if I can paraphrase it. It looks like it says to me, "Sa':v tmck flying down road

Page 203

1 A. Yes. That's what the note was 2 referring to. 3 Q. Okay .. And then there's finally the 4 "cell phone in truck." 5 A. That it v,/as his cell phone, and he left 6 it in the truck. 7 Q. And then finally, "He states that 8 nobody saw him driving"?

I, 9 A. Right.

10 Q .. And he was able to remember all of this i 11 without looking at the Police Report? i 12 A. Yes. That's all I had at the time, was : 13 his memory. 114 Q. And that was on May 31st, 2005? I 15 A. COlTect. 1 16 Q. Did you believe him when he said he [17 wasn't driving? 1 18 A. Well, I didn't have anything to dispute /19 that. He really came across at the time as, you 1 20 know, a nice young man, and I had no reason not 121 to believe him. 122 Q. Okay. But that eventually changed, did \23 it not?

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24 A. \Vell, certainly. You know, a lot of , 25 times I don't get the discovery for a couple of

Page 202 i Page 204

Showed up at parents' house." 2 Do you recall what exactly that meant? 3 A. Just that he claimed to me that he sees 4 the truck flying down the road. I mean, this 5 is -- I mean, that's what it indicates. 6 Q. Not that he was driving it, but he saw 7 it go by? 8 A. Right. 9 Q. SO, in essence, he was more or less

10 denying that he drove the vehicle? 11 A. Well, certainly, yes. He was denying 12 he drove the vehicle and denied that he drove 13 at all. 14 Q. Okay. And then the next entry is, 15 "He had Ronny's bag." Do you recall what he 16 meant by that? 17 A. No. No, I don't. 18 Q. Did he indicate that he had taken that 19 from the truck? 20 A. Well, just based on the notes, you 21 know, he says, "Truck, Ronny Bergh," and it said 22 he had Ronny's bag. 23 Q. And then it says, "Had his truck keys." 24 What did that indicate to you? Did that indicate 25 it was Ronny Bergh's keys?

I 1 weeks, in any case, but I was fortunate enough in .i 423 this case to get the Discovery Response from , Mr. Miller.

I remember him personally -- he set it

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5 down on the counter in my office. He walked by I 6 my office from his office to the courthouse, so 'I 7 that happened quite often.

8 It was on that Friday, that following

I 9 Friday, and so I had plenty of 0ppoltunity to

10 review the Police RepOli, review the statements,

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11 review the critical evidence in the case. 12 Q. What did that mean to you?

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13 A. Well, I was extremely disappointed with 14 Mr. Varela. You know, it was very clear to me --

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15 I mean, as we've seen in the Police Report, it is 16 extremely evident that Mr. Varela admitted to

117 driving. 1 18 There's no more powerful evidence that 1 19 he was driving and drinking than his own 1 20 admission, and there's no evidence that that I 21 statement was made while he was under duress or 22 while he was interrogated -- anything else to 23 indicate that that wasn't really the truth of

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24 what happened. 25 Q. And that was close to the time when he

(208)345-9611 M & M COLlRT REPORTING (208)345-8800 (fax)

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A. Exactly. That was the moment. That 2 was the time. 3

Q. And that rendition that is in the 4

Police Report is dramatically different than \vhat 5

he told you on May 31 st? 6

A. Yes. It's 180 degrees different. I 7

There was a lot more detail than there : 8

is in some of these Magistrate cases. I mean, I 9

So in probably 80 to 90 percent of the DUI cases there's an ALS, an Automatic License Suspension, because -- at least that's been my experience -- because these people get arrested after they're stopped and after they are given a breathalyzer exam; and if they fail the breathalyzer exam, blow over .08, then their license is suspended.

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you had -- because it otherwise was a crime scene! 10

with a missing vehicle, you had this really 1"

Q. (BY MR. PURVIANCE) But that's through the Department of Transportation; that's not a court proceeding?

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detailed statement from Ronny Bergh and -- ,12

I mean, this was irrefutable kind of stuff. 1,3 You piece together all the details from /'4

the Police Repoli and those statements, and then I 15

you look at him and say, "Wow, this is a lot 1,6 different than what it was a couple of days ago." ) 17

Q. And what did you do when you got that , 18

A. Right. It does the same thing, but it goes through entirely different mechanisms and different avenues to accomplish the same thing.

It's a different type of -- it's a different suspension, but it is still a driver's license suspension.

In the sense that if you refuse to take 19

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Police Report and reviewed it? 1'19 A. Well, I called him up and talked to 20

the breathalyzer exam, your license is automatically suspended after that. In that sense, it's also

him that Friday. i 21 anALS. So the fundamental difference is you

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Q. And what did you say to him? 122

A. I said, "Well, you know, this is a 1 23

really tough case. !I I 24

Yon knov,! now that I see there's a i 25 ,

would never want to automatically file a motion for a BAC hearing because it could jeopardize and prejlJdice the DT TI case So there's a number of

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refusal involved -- I mean, it would be great to factors to consider before filing a BAC case. 2 file a motion for a BAC hearing -- I've done that 2 Ifwe file the BAC and then the facts 3 at least a dozen times in the 70 or 80 cases I've 3 weren't there, then the Magistrate may have 4 have had before -- but I said, "Boy, there is 4 already made up his mind about the guilt in the 5 really a zero chance you would have of winning 5 DUI case or it may become much harder to suppress 6 or of prevailing. " 6 evidence in the DUI case. 7 There is a lot of difference, of 7 So the whole thing has to be looked at 8 course, between a BAC hearing and an ALS hearing 8 together. So it has to be -- even though the BAC 9 Q. And what are those differences? 9 hearing is a civil proceeding with a different

10 A. Well, an ALS hearing where the letter 10 case -- and, in that sense, you are filing a 11 just gets fired off routinely in every DUI case -- 11 lawsuit -- that lawsuit is still reviewed by the 12 at least they had staff that was trained to do 12 same Judge that's considering the criminal case. 13 that -- if there's no prejudice that there was or 13 So there are a lot of ramifications 14 was not an ALS or we decided not to defend an ALi 14 there to consider. 15 orto -- there's a Hearing Administrator with the 15 Q. And in a BAC hearing, which goes to the 16 Idaho Department of Transportation that would 16 court, you're under all of the duties under the 17 review that if that became a case. 17 Civil Procedures Rules of Procedure and the 18 So it's completely different than a BAC I 18 Evidentiary Rules that you're not under on an 19 hearing where the motion, at least in Elmore 1,9 ALS suspension? 20 County, is filed with the same Magistrate that 20 A. Right. The fundamental difference, 21 hears the DUI case. 21 from an ethical standpoint, is that in a criminal 22 MS. EDWARDS: Can you please tell me 22 case, in a DUI case -- just like in any other 23 what "ALS" stands for? 23 criminal case -- an attorney really doesn't have 24 THE WITNESS: Oh, I'm sorry. 24 a choice but to exercise every available defense 25 "Automatic License Suspension." 25 . That's the right that we've decided that


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Defendants get. As attorneys, we don't get to pick and

choose what defenses we think might be viable in a criminal case; we basically throw them all out there.

The flip side is that attorneys are excused from the liability if those defenses don't have merit because, hey, the guy's libeliy may be in jeopardy.

The fundamental aspects of the rules and the laws and the Constitution of the country gives the attorneys this blank check to throw everything out there that may be used to keep a person from going to jail -- knowing that there's not going to be liability against the attorney for filing or pursuing something that's groundless, that may otherwise be considered fiivolous, or without merit.

Q. But a BAC hearing could be since it's not a criminal case?

A. Right -- and that's where the confusion could take place because, in some sense, it appears to be a criminal case because it comes out of the initial fact pattern that is involved

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probable cause to stop you and then basically intelTogate you -- it's not there in this case. It's simply not there because the officer ,vas called by his parents to investigate a missing vehicle.

So there's no legal maneuvering that would nonnally be found that says, "Oh, yes, did the officer believe that this person had committed a crinle? Was there probable cause that this person committed a crime before the vehicle was pulled over?" That's, you know, 99 percent of the cases, and it just wasn't there in this case.

Q. Jay, hang on. So, basically, not only did you catch your client lying, but in reading the Police Report there was no quote/unquote "traffic stop" that would invoke the protections of the Fourth Amendment?

A. That's con-ect, and that's where most of these hearings -- that's the activity, the nexus of most of these hearings, FOUlth Amendment rights and duties under the Fourth Amendment.

I didn't even have to go into the credibility or lack thereof of my client. I mean, obviously, it was a seriolls issue, but

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case; it's a civil case. regardless of that, there's no dispute that he 2 So Rule 3.1 says that whatever we file 2 admitted to all of this. 3 under the civil case, it has to have merit. We 3 Q. Okay. 4 have to have a good faith be1iefthat this 4 A. It's insunnountable evidence. 5 could -- that we could prevail either in fact or 5 Q. i\nd based on your experience as a 6 in law, that we can prevail, and that is simply 6 criminal defense attorney, the police had 7 not required in a criminal case. 7 probable cause? 8 Q. SO after reading the discovery on 8 A. Oh, well, without a doubt. I mean, the 9 June 3rd, what did you think of your ethical 9 circumstantial evidence was incredible, amazing.

10 duties as far as filing the BAC? 10 You couldn't get more circumstantial evidence 11 A. Weli, as much as -- and this also came 11 than this. 12 up, of course, the following Monday when Mateo 12 There was just zero evidence 13 said, yes, he did come in or he did call me up 13 conflicting with Mr. Varela's original statement 14 Monday, June 6th. 14 that he wasn't driving -- except that later 15 He didn't remember whether I talked to 15 I guess he said he blacked out, but he already 16 him or not on that Friday, but he defmitely I 16 admitted -- it doesn't matter -- it's not a 17 remembers the following Monday me talking to him 17 defense that you blacked out after you have 18 I said, "Look, we can still file the 18 already told the police officer that you have 19 BAC motion. I've done it many times, I've won 19 been drinking and driving. 20 many times, and I know what it takes to do that." 20 Q. Well, as a practical matter, based on 21 We still could have done it that day. i 21 the fact that your client proclaimed that he 22 But I don't see with your admission 22 blacked out, what does that do as far as putting 23 that you were driving and drinking alcohol -- and 23 him on the stand in a BAC hearing? What does 24 the fact that 90 percent of the time these things 24 that do strategically to his DDI case? 25 get thrown out because the officer doesn't have 25 A. Well, strategically, that puts him in


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the worst of both worlds. Not only is he unable 1

to take back the admissions that he made, but now 2

be can't testify to anything that happened 3

because that would be conflicting with his 4

assertion now that he blacked out. So he has 5

zero evidence to support it. He painted himself 6

into a corner. 7

Q. Okay. And you had discussions with him 8

both on June 3rd and June 6th on this specific 9

issue? 10

Q. As opposed to an ALS letter that's sent out, it's just a forn1 letter?

A. Right. It's simply a fonn letter where the other is an actual, for all practical purposes, a lawsuit that has to be filed.

Q. Okay. At one point you did send the entire file over to Mitch Egusquiza?

A. Well, I don't have an independent recollection of that.

That was the standard practice whenever

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A. Yes. 11

Q. And the ALS hearing request, how is 12

that generated by your office since it's not a 13

court finding? 14

a new attorney became involved in a case. That happens to all attorneys and, you know, when that happens we give the file -- we pass it downstream, as it goes.

A. Well, at all times I had at least 15

!\Vo full-time personnel and at least one or two 16

Since I never did find -- at least my staff couldn't find this file in this case after

part-time. 17

The document that was sent to the Idaho 18

so many months, we just figured that it must have gone to Mr. Egusquiza's office.

Department of Transportation case was a fonn letter, and the staff was trained to send that off routinely in every DUI case.

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20 Q. SO you more than likely sent the whole

file over to Mr. Egusquiza's office? A. I would be very surprised if it didn't

go that direction. There's no factual assertions in that form letter, so there's nothing specific at all to the case. It simply acts as a "stop gap" in case it turns Ollt this is an antomatic license

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Q. And, in fact, some of these documents that you have seen today are the first time that yon have seen those either in discovery or in any

Page Page 216

suspenslOn case. 1 other -- since Mr. Egusquiza got the file? 2 Q. And it takes a few days for those to be 2 A. That's correct. There was one document 3 sent out, as well? 3 in particular -- I believe it's this one over 4 A. Yes. I mean, it's one of those simple I 4 here that's marked Exhibit 86 -- and today is the 5 mechanical items. It's easy to delegate to staff 15 first time that I have seen that. 6 when you have a couple hundred pending cases, an 6 I understand that the first page of it 7 there's no prejudice. 7 probably went to Mateo Varela's residence, but 8 If it turns out it's not an automatic 8 the second page is a fax cover sheet from Joni Vann 9 license suspension case, the Idaho Department of 9 who worked for me at the time.

10 Transportation would simply disregard it. 10 It looks like her handwritten note on 11 Q. And on May 31 st when you spoke to your 11 there. The date is June 6th, but her handwritten 12 client for the first time, you didn't know 12 note says, "June 10th, 2005," and her writing 13 whether he had taken a breathalyzer test or 13 says, "Possibly a duplicate request," and it's 14 refused it? 14 signed by Joni Vann from my office. This is the 15 A. Well, whether I did or not, whether he 15 first time that I can recall seeing that. 16 could have told me or not, or could have told my 16 Q. And what is the date on that? 17 staff or not, there's too many ways for -- that 17 A. Well, there's several dates. The date 18 communication may not have happened or it may, 18 of the signature and the handwriting is June 10th. 19 so it's just one of those standard procedures 19 Q. What is the date of the fax? 20 that we have in every DUI case. 20 A. Well, on the top it looks like from my 21 Q. But an attorney has to file a BAC case 21 fax machine in my office, "June 10th," and then 22 with his signature on it and attesting that it's 22 it also has a date "June 6th" in the caption. 23 made in good faith under the Rules of Civil 23 Q. And that's an attempt to -- that 24 Procedure; cOlTect? 24 someone in your office must have thought that 25 A. Yes, completely different. 25 there was -- they were just sending out routinely

(208)345-9611 M & M COliRT REPORTING (208)345-8800 (fax)

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a duplicate?

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A. Yes. And so this would have been nice 2

to know, but today is -- I mean, I imagine 3

somebody got this out of the original file that 4

came from my office, but this is the first I have 5

seen of it to date. 6

Q. Okay. And that indicates to you that 7

the entire file was sent to Mitch Egusquiza? 8

A. Well, it must be somewhere. Somebody 9

has it because this is the kind of unique detail 10

that would be in that outside leaf of the file 11

folder. 12

Q. Okay. 13

MR. PlJRVIANCE: Can he be handed the 14

Respondents first exhibit. I think it was -- 15

CHAIRMAN WHITNEY: Exhibit A or N? 16

MR. PURVIANCE: Exhibit N I think 17

it was. 18

CHAIRlvfAN WHITNEY: I think the Clerk i 19

has that. 20

MR. PURVIANCE: It's basically the 21

Fee Agreement. I 22

MS. HILL: Yes. (Handing document to 123 the witness.) 124

CHAIRMAN VlHITNEY' So Mr Clark now has?5 Page 218 1

Page 219

place for that client; otherwise, they're not allowed to accept payment.

Q. And if such a Fee Agreement would have been done in this case and the file was sent to Mitch Egusquiza, like he said it was, would that Fee Agreement have been sent in that file to him as well?

A. Yes. It would be in the same file. We don't keep an independent file.

Q. Okay. And in your opinion here today, was such a Fee Agreement signed with Mr. Varela?

A. Oh, yes. I would again be extremely surprised if this had not been, in fact, included -or one almost identical to this, but also said a $500 retainer.

It's the same language I had in there since early January 1997 when I first started to when I quit.

Q. And you did that on every case? A. Every case -- except, of course, on a

contingent case there is a different agreement. Q. Okay. This wasn't a contingent case? A. Right. In civil cases there is some

different language, too. Q And YOll heard Mr Varela's testimonv -' ,

Page 220

1 the original and, as far as I know, the only copy 1 that he can't remember whether or not he signed 2 of Respondent's N. 2 such a thing? 3 MR. PURVIANCE: Okay. Thank you. 3 A. Right. 4 Q. (BY MR. PURVIANCE) \\That has just bee 4 Q. But you think he did? 5 handed to you, Jay? 5 A. Oh, I really believe he did. I would 6 A. This is an Attomey-Client Contract, 6 be just shocked if -- it would have to be quite 7 Standard Fee Agreement from my office. 7 the anomaly if that hadn't occurred. 8 Q. And is that something that you prepare 8 Q. And you sent the entire file to· 9 for each criminal case? 9 Mitch Egusquiza?

10 A. Well, personnel in my office would. 10 A. That would be the standard practice. 11 I mean for each case -- whether it be criminal, 11 Q. And just today you fmally saw 12 civil, standard fee or contingent, there has to 12 something that obviously carne out of the file 13 be a contract. 13 since that time -- since you sent that file off 14 There's people in my office that were 14 to Mr. Egusquiza? 15 hired to make sure that there needs to be a 15 A. That's correct. 16 contract prepared for each client. 16 MR. ANDREWS: I'll object to that. 17 Q. And you don't necessarily do that 17 It didn't corne from Mitch Egusquiza's file. 18 yourself? 18 CHAIRMAN WHITNEY: Wnat was the 19 A. No. 19 question again? 20 Q. It was your office policy at the time 20 THE \V1TNESS: He's talking about 21 to have that done when a new client came in? 21 Exhibit 86. 22 A. Absolutely. You know, the same person 22 CHAIRMAN W'1IITNEY: Mr. Purviance, wha 23 that handles the money up in the front area of 23 was your question that drew the objection? 24 the office also makes sure -- absolutely has the 24 MR. PURVIANCE: I asked him if that 25 duty to make sure that there is a contract in 25 would have been sent with the whole file over


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to 1'.1r. Egusquiza. CHAIRJ\,1AN Vv1HTNEY: Oh. A . .;.'ld you're 2

talking about Exhibit 86, not N? 3

the next week. You know, I just know that it was about

the same time there was that fax where again 2 3

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MR. PURVlAc1-..JCE: Right. 4

CHAIRJ\,1AN \VHITNEY: Okay. Then, 5

Ms. Joni Vann had sent a document to Mr. Miller's office. That was basically an invitation to

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Mr. L'\ndrews, your objection was -- 6

MR. ANDREWS: 1\1y objection is there's 7

no testimony from Mr. Egusquiza that Exhibit 86 8

carne from his file. 9

CHAIRMAN WHITNEY: Okay. I'll sustai 10

that objection. 11

Q. (BY MR. PURVIANCE) As a practicing 12

criminal defense attorney in Mountain Home, you 13

heard the discussion about the possibility of 14

having a BAC Affidavit vacated in return for a 15

plea of guilty to a DUI? 16

A. Yes. That's something that actually 17

1\1r. Miller and myself have done on a number of 18

occasions. 19

discuss a settlement for the whole thing, the whole case, after discussing the case a couple of times with Mr. Varela -- and that arose out of Mr. Varela's plea that he just really, more than anything else, needed a work permit to go to his work, to be able to drive. I understood that.

I sympathized with him, and I said, "Well, let's see if we can cut a deal with the Prosecutor. "

Q. And what were his feelings on cutting a deal for -- pleading to a DUI charge in return for the dismissal of the --

A. Mr. Varela or Mr. Miller? Q. Mr. Varela first.

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That was just something that was still 20

available as a "bargaining chip" in a DUI case. 21

Q. SO even though he didn't let -- even 22

though he objected to you filing a Request for a 23

A. Mr. Varela, 0 f course, even though originally -- initially, you know, the picture he painted was that he could not have been guilty of a DUI; he was innocent of all of this; this

BAC Hearing, that doesn't necessarily mean that 24 wasn't him driving.

Page 222 Page 224

suspension vacated? the criminal defense world a "coming to Jesus 2 A. Yes. That's correct. The Prosecutor -- 2 meeting" about accepting liability and admission 3 and, of course, I disagreed with his statement in 3 of the DUI, but then making a realistic and 4 this particular case he said he no longer had 4 taking a good look at the situation and saying, 5 jurisdiction, and I don't believe that at all 5 "Okay, what's really impoltant to you right now? 6 because I know in other cases very similar that 6 What do you really have to have -- even ifit 7 even where we didn't have a motion or and a 7 meant jail time, even ifit meant having the SR22 8 hewing on a BAC, that as the case progressed, as 8 insurance and all these other things, he could 9 it evolved with the client and myself, it became 9 live with that -- he decided ifhe could just get

10 clear that the best resolution would be in the 10 a work permit to drive to work. 11 case that he or she would go ahead and plead 11 So this is -- you know, this is typical 12 guilty to a DUI in exchange for the prosecution 12 of how these cases often evolve as the client and 13 revoking or removing that absolute license 13 attorney discuss and talk about realistically 14 suspension that came with the refusaL 14 what should be the outcome of the case. 15 Q. Even though the suspension had already 15 Q. And in your discussion with Mr. Miller, 16 gone into effect? 16 to the best of your memory, when was that? 17 A. Oh, absolutely. 17 A. With Mr. Miller, it would have been, 18 Q. And that's quite common in Elmore County? 18 you know, within a few days after I had some very 19 A. I've seen it many times. The Prosecutor 19 intense conversations with Mr. Varela. 20 still has that authority to pull that absolute 20 Q. Okay. And in talking to Mr. Miller, 21 license suspension, and that was the purpose of 21 was he receptive to the idea of pulling the 22 discussing that with him. 22 Affidavit of Refusal if Mr. Varela pled guilty to 23 Q. On what date was that discussed? 23 the DUI? 24 A. It would have been the following week I 24 A. He didn't appear to be and that was 25 after that -- after I got the discovery -- later 125 really surprising to me. Apparently -- you know,


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I don't know why he decided that he would not deal with that.

Q. Wait, wait, wait. He was opposed to

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the idea of allowing you to go ahead with the BAC hearing, but was he also opposed to the idea of dismissing the Affidavit of Refusal if your client plead guilty to a DUI?

He 1 8 MR. ANDREWS: Asked and answered. answered that. I 9

CHAIRMAN WHITNEY: I will ovenule the I 10

objection. [ 11

Mr. Purviance, can you just break that 112

up or in two because I think: there's -- I understand i 13

why Mr. Andrews is objecting. 1114 MR. PURVIANCE:. Okay. It was compound 15

CHAIRM.A.N VlHITNEY: It is a little , 16

unclear. If you would just ask that again so it will be clear.

Q. (BY MR. PURVIANCE) In talking to Mr. Miller, he was opposed to the idea of waiving jurisdictional impediment to going forward with a BAC hearing?

A. Correct. Q. Does that not follow that he was

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of Refusal if your client pled guilty to the underlying DUI charge?

A. That's correct. I never pushed the pleading to DUI at that time because I thought, "Well, there's plenty of time. \Ve can see what arises. "

You know, I had a lot of cases with Mr. Miller, and I always found him to be very workable.

Mr. Miller was not in that little click, and I found him a lot more workable than other attomeys, but I also found with Mr. Miller that the longer the case languished, the more likely you could get a good deal because -- as a

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time, and like we saw this case ultimately go, it didn't settle until a couple of days before it

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was scheduled for jury trial. 19

Q. SO I guess what I'm trying to get at is 20

Page 227

jurisdictional bar for you to have filed a BAC hearing -- meritless, or meritorious; correct?

A. Correct. Q. Did you ever find that Mr. Miller would

object to pulling the Affidavit after refusal even if you did not file the Request for a BAC Hearing?

A. No. He would never -- that wasn't an issue. As long as the final outcome in the case was fair, that was never -- the procedural part of it was never at issue.

MS. ED\V ARDS: Can I clarify? Did you or did you not have discussions with Mr. Miller about some sort of deal?

THE WITNESS: I'm sorry? MR. ANDREWS: He testified he never

discussed it. THE WITNESS: Maybe I misunderstood

the question. MS. EDWARDS: You didn't have

discussions with him about a deal? THE WITNESS: Yes. We never -- in

this pariicular case, we never discussed it. That's tme.

MS EDWARDS· Thank YaH Page 228

Q. (BY MR. PURVIANCE) But your history was it was a completely functional plea agreement -

A. Right. It was very functional. Q. -- whether or not you filed a Request

for a BAC Hear·ing? A. Correct. Q. You heard Mr. Egusquiza's testimony

that he charged Mr. Var·ela a $800 retainer for a BAC hearing and to represent him on the DUI charge?

A. Yes. Q. And you charged Mr. Varela $500? A. Yes. Q. At the time that you had your initial

consultation with him, did you ever agree to do both a DUI and a refusal?

A. No. I mean, I didn't have any indication or any reason to believe that I did. I would have most likely -- usually, I would ask for an additional retainer to do the additional

in your history with Mr. Miller, you obviously had cases where the client didn't even come into

21 case.

23 your office until after seven days; correct? 122 Q. And at the point in time where you

23 first talked to Mr. Varela, according to the 24 notes that you took, contemporaneously on 24 A. Oh, celiainly.

25 Q. And that would have been a 25 May 31 st, 2005, had he even told you that he had (208)345-9611 M & M COURT REPORTING (208)345-8800 (fax)

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refused the intoxilyzer test? 1

MR. ANDREWS: I object to the question, 2

go and hear it fi-om somebody else, you know, just go for it.

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and my objection is based upon the admission to 3

paragraph 28 of the Complaint. It says, "on 4

.May 31, 2005, Mr. Varela retained Respondent to 5

Q. But in this case did you have any misgivings about him retaining Mr. Egusquiza as his attorney, given your view of Mr. Egusquiza?

represent him in the DUI case. Mr. Varela 6 A. Well, I mean, unfOltunately for me,

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infornled Respondent he did not want to lose his 7

driver's license and therefore wanted to request 8

Mr. Egusquiza sought to characterize Mr. Varela's shortcomings as one of my own, and that's --

a show cause hearing before the Elmore County 9 you know, that's not fair at all. 10 Iv1agistrate Court." 10 You know, I ce1tainly didn't set up 11 That was an admitted fact, and I have 11 the facts in this case to make it impossible for

given a great deal of leeway because I think it's 12 Mr. Varela to prevail in a civil hemi.ng, the 12

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appropriate to give a great deal of leeway, but 13

if we're going to start testifying about things 14

that have been admitted, then I have a problem 15

with that. 16

BAC, and I didn't -- just because I didn't do something that cost my client money didn't mean that somehow I failed my representation, and I strongly disagree with Mr. Egusquiza's attempt

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CHAIRMA..l\J \\i1-IITNEY: I'm looking at the 17

Answer. (Pause.) 18

Mr. Purviance, what is your response 19

to -- attempt in this case to file a BAC when he could not explain today how exactly he was going to prevail in that.

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to that? 20 MR. P1JRVIANCE: I was just asking him 21

to give some background 'of what actually occurred 22

there. 23

CHAIRMAN WHITNEY:

Q. Yet, he charged his client for that? A. Exactly. I don't believe that's ethical. Q. And in the same token, for you to have

filed a BAC hearing, given what you learned on June 3rd and after discussing it twice with your

I Page 230 Page 232

1 allegation was admitted. also would have been unethical at that point? 2 MR. PURVIANCE: Okay. 2 A. Well, yes, without a doubt. 3 Q. (BY MR. PURVIANCE) By June 3rd, once 3 Q. For you to have filed that motion? 4 you got the discovelY, did that change your 4 A. Absolutely. You know, if somebody 5 viewpoint on this case? 5 would come here and tell me what the hindsight of 6 A. \Yell, it certainly did in just that -- 6 five-and-a-half years oftime -- especially 7 I mean, obviously, like I said earlier, it was an 7 somebody like Mr. Egusquiza who has been a 8 entirely different picture of what Mr. V m-ela 8 Prosecutor -- and say, "This is exactly how I'm 9 painted when he first stepped through the door. 9 going to beat this wrap, and this is how I could

10 Q. And you communicated that change to him 10 have won," I didn't hear that in so many words 11 on June 3rd? 11 today. 12 A. Yes. 12 I didn't hear any recipe that indicated 13 Q. And on June 6th? 13 to me today that this gave my client a decent--14 A. Yes. 14 even a possibility to prevail in the case. 15 Q. Once 1'v1r. Varela retained Mr. Egusquiza, 15 He says, yes, he filed the Motion To 16 substituted in Mr. Egusquiza as his attorney of 16 Dismiss and said he got this great deal for the 17 record, what were your feelings on that? 17 client. There's no difference. He got j ail, he 18 A. \Yell, I understand that sometimes the 18 got the license suspension -- he got all the 19 personalities just butt heads, and I just -- 19 other things that the DUI offered. 20 you know, sometimes clients just need to hear it 20 There was no win there, and there was 21 from other people. 21 no evidence that he discovered that would have 22 You know, after 10 or 12 years and a 22 allowed him to win under any circumstance. 23 couple of thousand clients, there's a lot of 23 Evelything else is just trying to make me 24 clients that I had that we just don't see eye to 24 look bad. 25 eye on, and I think that's great. Ifhe needs to 25 Q. And you heard his testimony regarding


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the fact that whether in a BAC hearing or in a DUI prosecution, there certainly Vi'as a very 2

strong case circumstantially that Mr. Varela 3

was driving? 4

A. Right. And certainly -- you knO\V, 5

certainly in a DUI defense, that's fine. 6

You always give it a try. I never got that 7

opportunity because the case was taken away 8

from me -- well before there was any kind of 9

trial -- but certainly you have got to give it a 10 try, but how on earth do you win? There was just 11 no way. 12

Q. And based upon your history, the 13 exchange of letters that occurred here, what are 14 your feelings on that? 15

A. The letters exchange between 16 Mr. Egusquiza and myself? 17

Q. Yes, and the final Bar Complaint. 18 A. Well, it's unfortunate, but it 19

illustrates that Mr. Egusquiza was obviously not i 20 willing to work with me in any way. 121

You know, it seemed like every time ,22

I tried to help and was offering some refund or ! 23 so forth, it was used against me even though, 124 yon know, it ""'as my belief that there was this 7'1

Page 234

contract that said, "This is earned upon receipt. This $500 is the minimum retainer, and it's not 2

refundable." That's fine. You know, I tried to 3

make offers to appease Mr. Egusquiza. 4

Q. And you heard Mr. Varela's comment that 5

he basically just decided not to come into the 6

office to pick up his refund? 7

A. Yes. And I can understand -- if he 8

didn't want to come in, just give my office staff 9

a call. \¥e didn't know exactly where it was . 10

supposed to be mailed -- we had three different 11

addresses for him. 12

Frankly, we didn't trust Mr. Egusquiza 13

to send it to his office. We really believed 14

that he was going to do everything he could to ' 15

put me in a bad light. 16

Q. Have you had previous disputes? 17

A. Oh, yes. It was an all-out battle with 18

him doing everything that he could to do that, 19

put me in a bad light. 20

Obviously, he spent many, many hours 21

trying to mischaracterize a lot of things that 22

happened here in this case. 23

Q. What was your relationship like with 24

Mr. Varela before he retained Mr. Egusquiza? 25

Page 235

A. Well, I had nothing against him personally. Ijust felt like -- I mean, he's in a tough situation, but I didn't know him at all before this case, and we only talked a few times. I saw him a few times -- just a few times.

You know, it wasn't any different than a lot ofDUI cases where you have a situation where a person got himself in quite a jam.

Q. And you disagree with Mr. Egusquiza's contention that there was no -- what do you think of his characterization that there was no proof that anyone saw this client driving?

A. Well, there's absolutely no requirement that somebody would have to see a person driving a vehicle.

The client admitted to driving, and usually that's the most probing proof you could have in a case, his own admission. It's as good as a videotape of him driving, unless there's some element of duress.

Q. And you didn't see that either from your client's description or from the Police Report?

A. No. Mr. Varela never raised the issue at all ofdllress It was never - never an Issue

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either in my representation or Mr. Egusquiza's representation.

Q. Okay. And then as this feud progressed to the filing of a Bar Complaint, what were your feelings about what was going on -- the interaction between you and Mr. Egusquiza?

A. Well, it's unfortunate that it comes down to, you know, a misunderstanding about the workings of the case like this.

There was an oppOltunity to capitalize on that, and so Mr. Egusquiza took full opportunity to try to capitalize on that.

Q. I guess I just want to ask you point blank -- with all of the water that's gone under the bridge, did you feel like Mr. Egusquiza was basically using this client to ruin you?

A. Well, it was -- I mean it did, he has. He forced me out of town. I mean, he got everything he wanted.

I mean, I gave up practicing law in Mountain Home. This kind of nastiness from him on a daily basis? Nobody can put up with that. This is -- it's just an awful thing.

I mean, at the time I was feeling so overwhelmed, you know -- and then they throw in


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there these lies about how they said I told him 1

2 to go to Oregon and get an Oregon driver's 2

3 license and all these other things that are 3

4 coming out -- I mean, it was just like somebody 4

need to stop right at 5 :00 -- pick up a child or something like that?

MR. PlJRVIANCE: I've got some phone calls to make at 5:00.

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\J,7as \vriting an editorial to the Statesman every 5

day saying I molested children, and it's 6

overwhelming. 7

CHAIRMilN \VHITNEY: Okay. So can you use the time now? We've got 28 minutes. Can you use that time effectively?

Finally, Ijust said, "You know what? 8 MR. ANDREWS: Sure.

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Here is an A.ffidavit that I sent to the Bar" -- 9

and the Bar could do with it what it wants, but 10

CHAIRMAN WHITNEY: It looks like we're coming back tomorrow.

that Affidavit spelled out what had happened and 11

the truth, and it gave Mateo Varela a chance to 12

correct the record. 13

Q. Do you feel like Mr. Egusquiza used 14

MR. ANDREWS: Yes. We are coming back tomorrow, but I can use the time if you wish or-

CHAIRMAN WHITNEY: Let's go ahead, then.

this proceeding to continue this feud that he had 15

16 with you? 16

A. Oh, yes, absolutely. I mean, you heard 17

him say today that he really got into the case 18

once he saw the Mfidavit. 19

MR. ANDREWS: May we take a short break? It's \\'arm in here --

CHAIR.\1AN WHITNEY: You bet. Yes. Let's take ten minutes. Be back in here at 4:40.

(Recess taken.)

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Apparently, what really upset him, 20

as he stated today, was the fact that I said in 121

my Affidavit that Mr. Egusquiza had helped 122

CHAIRMAN WHITNEY: Let's go back on the record.

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Mr. Varela or prepared these complaints to the 1 23

It's 4:40, and at this time it's time to begin cross-examination of Mr. Clark by Mr. Andrews.

We will go forward with this, and then bar for Mr. Varela, and that was somehow really I 24

upsetting to him 1 25

Page 238 I Page 240

Of course, as we know now, that's true. we will take a break at 5:00. I mean, that's what they did, and -- MR. ANDREWS: Okay.

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MR. ANDREWS: I'll object to that as mischaracterizing the testimony ofMr. Egusquiza.

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CHAIRlvlAN WHITNEY: Don't worry about it if you don't finish; you can always continue

5 MR. PURVIANCE: I didn't even ask a 6 question, so -- 6

7 CHAIRMA.N Vv1UTNEY: I vv'i11 sustain that 7

8 0 bjection. We will strike that last statement. 8

tomorrow. MR. ANDREWS: I don't want to keep

anybody past when they have appointments.

9 Q. (BY MR. PURVIANCE) .-\nd, in your 9 CROSS-EXAMINATION 10 opinion, these letters that were exchanged 10 QUESTIONS BY MR. ANDREWS: 11 between your office and between the Bar and 11 Q. Mr. Clark, is it possible that you did 12 Mr. Egusquiza and the Bar and you was just a 12 not recall that this was a refusal case as of 13 continuation of the same feud that had gone on 13 May 31, the first visit with Mr. Mateo? (Sic) 14 for quite some time? 14 A. It's possible that I was provided with 15 A. Oh, yes, absolutely. 15 some information or that I knew that it could 16 Q. And that it eventually drove you out of 16 have been a refusal case on May 31st, that's 17 the practice oflaw? 17 correct. 18 A. Absolutely. 18 Q. And you don't dispute that he informed 19 MR. PURVIANCE: I have no further 19 you that he didn't want to lose his driver's 20 questions. 20 license that day and, therefore, wanted to 21 CHAIRMAN WHITNEY: Cross-examination 21 request a show cause hearing before the Elmore 22 :Mr. Andrews? 22 County Magistrate Court? 23 MR. ANDREWS: Yes. 23 A. I don't imagine anybody wants to lose 24 CHAIR.MAN WHITNEY: Before you start, 24 their driver's license, but I don't know that he 25 does anyone need to -- it's 4:32. Does anyone 25 would have understood enough to ask for a show

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cause hearing. Q. But you ivould have understood enough

to tell him that's where it would occur on a

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4 refusal? 4

5 A. COlTect. Absolutely_ 5

6 Q. Now, did you have any doubt that he was 6

7 dliving that car after your initial conference on 7

8 May 31st? 8

9 A. Well, I think the opposite is true. 9

10 I guess maybe I don't understand your question. 10

11 Q. Did you believe that he wasn't driving 11

12 that vehicle? 12

13 A. Well, the only information I had on 13

14 May 31 st was what he told me. He told me that 14

15 wasn't driving. 15

16 Q. How about when he told you that he had 16

17 Ronny's bag, his truck keys, his cell phone was 17

18 in the truck, and that nobody saw him driving? 18

A. Yes, that's the information -- just 19

20 what I wrote. 1 20

21 Q. Well, how do you square that nobody saw i 21

22 him driving with he wasn't driving? 122 A. Well, they're two entire entirely 1 23

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25 Q And one is at the beginning, and one is 1 25

Page 243

A. No, but usually there are -- there really isn't a COUlt file that exists until the Prosecutor starts sending documents. Our standard office procedure is just to wait for the discovery request.

Q. Would it surprise you if the Affidavit of Probable Cause was filed on May 31 st?

A. No. I mean --Q. Would it surprise you -- do you have

any reason to believe that the Affidavit in Support of Probable Cause was not filed on May 31st?

A. No. Q. Do you have any reason to believe

that the Affidavit of Refusal wasn't filed on May 31st?

A. No, but I don't know of any criminal defense attorneys that go and take the extra time to dig through a file when the Prosecutor will provide that. They have a legal obligation to provide that in due course.

Q. But if you were confused on whether it was a refusal or he took the breathalyzer, you could have found that out; cOlTect?

A Yes, if there was a real pressing need Page 244 Page 24211

1 at the end; correct? to find that out. 2 A. Right -- I mean, close to the end. 2 Q. In fact, did you find it out when the 3 Q. But you believed him, that he wasn't 3 Prosecutor served the Discovery Response to you? 4 driving the vehicle? 4 A. COlTect. 5 A. Well, at the time -- 5 Q. Okay. So you knew it was a refusal on 6 Q. At the time, on May 31 st. 6 June 3rd? 7 A. I had no reason not to believe him. 7 A. Without a doubt. 8 Q. How about when he said nobody saw him 8 Q. Take a look at Exhibit 86. It's -- I 9 driving after you discussed this? I mean, the 9 think it's a --

10 notes aren't taken contemporaneous; this is over 10 A. This one? (Indicating.) 11 thecourseof--howlongdidyoumeetwithhim? 11 Q. Yes. Look at page 2. 12 A. Well, it was probably within that 112 On June 6th -- was the June 6th letter 13 half-hour to one-hour typical initial consultation, 13 that's attached to that fax cover sheet faxed to 14 something like that. 14 the Idaho Depmtment of Transportation? 15 Q. On your statement, would it be accurate 15 A. Yes. 16 that you indicated the initial consultation was a 16 Q. Okay. Is that your signature on it? 17 half-an-hour? 17 A. Doubtful, actually. 18 A. That sounds right. 1 18 Q. What do you mean, "doubtful "? Who 19 Q. SO after ahalf-an-hour with Mateo, you 19 signed it for you? 20 didn't know whether he was driving or not? 20 A. Probably, Joni Vann. 21 A. Well, all I know is what he told me. 21 Q. Probably? You can't tell your signature? 22 Q. Okay. And as of May 31 st, you had -- 22 A. Well, it wasn't mine, but they could 23 or after May 31 st, did you take a look at any of 23 have -- usually, they would put the "Dictate and 24 the COUlt file or send anybody from your office 24 send without a signature to avoid delay," but--25 to take a look at the court file? 25 Q. Do you have any reason to believe you


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didn't sign this document? A. Oh, certainly. This was all something 2

assigned to Joni VaD.J1. She was the one handling 3

ili~. 4 Q. I understand she handled it, but did 5

you sign that letter? 6

A. No, I doubt it. She just sends off the 7

form letter, faxes the form letter. 8

Q. Take a look at Exhibit 69. Did you 9

sign that? 10

A. Could be. Probably. 11

Q. Do you know your signature? Is that 12

your signature on Exhibit 69? 13

A. I mean, probably. I mean, it's just a 14

scribble. 15

Q. SO is it probably your signature on the 16

last page of Exhibit 86? 17

A. No. The difference is this was a very 18

specific letter that I had written. The other 19

one is a form letter. 20

Q. Do you have an automatic signature 21

machine in your office? 22

A. Other than my staff, no. They just -- 23

that she failed to do it, and she was told with every DUI case she needs to send out a letter.

Q. Whether the letter is applicable or not?

A. Correct. Q. SO your testimony is that this letter

was sent out without your knowledge? A. Without my personal knowledge, yes. Q. lo\nd you didn't instruct your staff not

to file the letter because it was inapplicable to the situation in Mr. Varela's case?

A. Well, if I would have had a chance to instruct her, I would have said, "No, we don't need to send that letter," but apparently, I didn't get that opportunity.

Q. SO you didn't have a chance to tell her between June 3rd and June 6th not to send the letter?

, A. Apparently, not. Q. And you didn't have a chance to tell

her not to send the letter after June 6th? A. Well, whether I had a chance or not,

it wasn't done, but it wasn't something -- there 24 Q. Your staff can sign -- so you're 24 was no consequence or prejudice either way to the

Page 246 Page 248

1 staff could sign your signature that close as a 1 Q. In Exhibit 76, would you turn to the 2 signature on Exhibit 86? 2 statement, the billing statement. (Pause.) 3 A. I give my authority to my staff a lot 3 Have you located that? 4 of times to sign form letters for me, and if it's 4 A. Yes. 5 a form letter, I allow them to do that. 5 Q. There's an entry on June 3rd that you 6 Q. WhO would be the -- would Joni have 6 read the discovery, and you prepared the initial 7 signed this -- 7 court documents -- the Notice of Plea of Not 8 A. Most likely. 8 Guilty, Notice of Appearance, and your Discovery 9 Q. -- ifit wasn't you? 9 Request; correct?

10 A. Most likely, yes. 10 MR. PURVIANCE: I'm sorry. Could you 11 Q. If you look at the top of the second 11 tell me which -- oh, the statement of Jay Clark? 12 page to Exhibit 86, it looks -- it shows that 12 MR. ANDREWS: Yes. 13 this was faxed from your office on June lOth; 13 MR. PURVIANCE: Okay. 14 isn't that cOlTect? 14 Q. (BY MR. ANDREWS) That's consistent 15 A. Yes. 15 with your testimony that you prepared the initial 16 Q. And that Joni put on, "It's possibly a 16 court documents, and you read the discovery on 17 duplicate request"? 117 June 3rd; correct? 18 A. It appears that she wrote that, yes. I 18 A. Yes. 19 Q. Would she need your authorization to 19 Q. Okay. The next entry is a letter to 20 send the request on June 10th? 20 the Department of Transportation on June 4th, 21 A. No. She was -- this was totally her 21 "No charge." 22 own deal. 22 A. Yes. 23 Q. Why would she do that? 23 Q. Okay. Did you prepare that letter? 24 A. I'm just speculating -- I guess she was 24 A. Well, like I said many times, it's a 25 concerned that she didn't do it the first time, 25 form letter that -- actually, that letter was

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prepared by Paul Clark, my uncle, an attorney in Lewiston, and I \vas able to get a copy of that from him.

Q. But you put that on Saturday you drafted the letter to the Department of Transportation.

A. \Vell, I never make any QuickBooks entries. My staff, the whole time I practiced, made the entries.

I don't know why they put the 4th. Obviously, that was incorrect. We probably weren't there on Saturday. They just didn't put the right date on the entry.

Q. Did you remember calling the court on Saturday, the last entry?

A. No. That wouldn't be correct. Q. And did you recall calling Mr. Miller's

office on Sunday? A. No. That would be either the 3rd or

the 6th, obviously. Q. Look at the top page of Exhibit 86,

please. It's cc'd to your office. Do you recall receiving a copy of

Exhibit 86? .A I don't

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~Vi'ould have done without me even looking at it because I was no longer the attorney.

Q. Is it your practice not to keep a copy of your files when another attorney substitutes in for you in the middle of the representation?

A. It depends on the case, but a lot of times we just hand the attorney the file.

Q. In Exhibit 76, the first two pages, there's a number of documents that you provided to our office with your response on October 7, 2005. How did you get those documents?

A. Well, I imagine they were all copies saved in the file or we got them from the court.

CHAIRMAN WHITNEY: Wait a minute. I'm sorry. I'm missing what the exhibit was you referred Mr. Clark to.

MR. AJ\TDREWS: 76, pages 1 and 2. CHAIRMAN WHITNEY: Okay. You have

already answered partially, Mr. Clark, and I apologize for intenupting you. I just wanted to make sure I had the correct document in front of me. So go ahead and complete your answer.

THE WITNESS: I still had several full-time staff members, and this is what they uronId have done to help me gather the

Page 252

1 Q. Okay. I think you have indicated that infonnation. 2 you sent your entire file to Mr. Egusquiza? 2 They would have -- they may have gotten 3 A. That would have been the standard 3 some of the documents from Mr. Egusquiza's office. 4 procedure. 4 I really don't recall where they got those 5 Q. Okay. And Mr. Egusquiza substituted 5 documents. 6 in on June 28th of , 05; correct? 6 Q. (BY MR. ANDREWS) Vvho would have put 7 A. I believe so. 7 those documents together? 8 Q. Do you have any explanation why this 8 A. My full-time staff at the time. It 9 letter was not part of your file? 9 looks like it was Erin Rembert and Serena Cannon

10 A. You're referring to the front page of 10 were at least two people that were there at the 11 Exhibit 86? 11 time. 12 Q. Yes. 12 Q. Is that your signature on page 3 of 13 A. I have no idea. I don't even know 13 Exhibit 76? 14 where it came from. 14 A. I believe so. 15 Q. It came from the Idaho Depmiment of 15 MR. ANDREWS: I think we're close 16 Transportation. 16 to 5:00. 17 A. Okay. Maybe, like I said earlier, 17 CHAIRMAN WHITNEY: Is this a good 18 these things could have been -- or probably were 18 stopping time for the day? 19 in the file; it's just that they were in 1 19 MR. ANDREWS: It's a decent stopping 20 Mr. Egusquiza's possession. 20 time, yes. 21 Q. But how could it be in -- do you recall 21 CHAIRMAN WHITNEY: Okay. So we'll 22 sending documents on to Mr. Egusquiza a month 22 resume at 9:00 tomorrow. 23 after he subbed in or three weeks after he 23 Any other issues you want to take up on 24 subbed in? 24 the record before we break for the day? 25 A. That would have been something my staff 25 MR. ANDREWS: I think we'll be fine on


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-;:he record. I Lhink we have this room tomorrow. MS. HILL: I believe so. MR .. Au"JDREWS: I'm anticipating a

rebuttal witness, and I'm anticipating calling the rebuttal witness by phone.

I don't see that we have a phone in

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here, so I have no problem with -- we'll start in here, and if we have the capacity to move over to the Bar, I would ask your indulgence.

I mean, I'm going to have Mr. Egusquiza testify on rebuttal. I can have him come back, but I would ask the indulgence of Counsel and the Hearing Committee that, if possible, that we do . it by phone so I don't have to make him drive II

back. CHAIRMAN WHITNEY: From Mountain Hamel MR. Ac"\JDREWS: C0.rrect. . I CHAIRMAN WHITNEY: How long of a dnve .

is it from Mountain Home? THE WITNESS: It takes 45 minutes. MR .. ANDREWS: I was going to say a

half-an-hour, but I was going to admit -(Laughter.)

CHAIRMAN WHITNEY. Mr Clark. YOll can

Page 254

1 go ahead and step down. 2 MR. ANDREWS: I have no problem. I can 3 get in touch with him. I did release him from 4 the Subpoena, but I can sure get him back. I 5 will call him, and I will fInd out. I will have 6 some additional information. 7 CHAIRMAN W'HITNEY: All right. 8 Mr. Purviance, at this time do you have 9 an objection to Bar Counsel's rebuttal witness

10 testifying by telephone? 11 MR. PURVIANCE: No. 12 CHAIRMAN WHITNEY: Okay. So there's 13 no objection to the telephone testimony. 14 I was checking my phone to see if I can 15 get a signal in here, and it's only one bar. 16 THE REPORTER: Are we off the record? 17 CHAIRMAN WHITNEY: Yes, we can go or 18 the record. 19 (Discussion held off the record.) 20 (Hearing adjoumed at 5:05 p.m.) 21

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I, 3ARBARA BURKE, CSR NO. 463, Certified

Shorthand Reporter, certify:

That the foregoing proceedings were taken

before me at the time and place therein set

forth, at which time the witness was put under

oath by me;

That the testimony and all objections made

at the time of the examination were recorded

stenograph~cally by me and were thereafter

transcribed;

That the foregoing is a true and correct

transcript of my shorthand notes so taken;

I further certify that I am not a relative

or employee of any attorney or any of the parties,

nor financially interested in the action.

I declare that the foregoing is true and

correct.

j ,,-k4 Dated this ~~ day

Notary Public for Idaho

2 o( 0 . ---,--

My Commission expires 4-30-2014.

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236:4 237:9,10,24 112:1,2 199:6,7,9 189:3 Boulevard 188 :23 Cain 118:14

238:11,12253:10 began 11:14 64:3 beverages 27:20 bounced 195:4 cake 70:8

254:9,15 beginning 241:25 big 36:5 160:23 Box2:7,19 calculations 22: 18

BARBARA 1 :24 behalf 12:20 186:21 boy 125:12 191:22 30:21

bare 154: 14 126:10 129:19 biggest 55:22 150:2 206:4 calendar 42: 12, 15

bargaining 221 :21 belief210:4 233:25 bill 59:4 boys 191 :21 46:1952:16

barrage 199:24 believe 11:1513:5 billing 149:9 248:2 Brad8:14 129:25

barrier 166:23,24 21:626:1529:16 binder 12:4 197:19 BRADLEY 2: 13 call 32:3,22 53:8

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193: 1 0 49:1955:1959:17 44:23 45:548:23 77:598:17115:1 91:21,2292:4

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based 26: 13 32: 1 . 84: 17 88: 1,3 142:14154:12 225:12239:16 151:4,19156:2,20

170:13,14202:20 94:2396:3,21,24 175:25177:11 240: 1 252:24 156:21,23 177:6

212:5~20 229:3 105:20109:18 183:11 187:4 breathalyzer 14: 1 180:20189:17

233:13 117:23 122:4 black 83:4 94:9,14 44:849:951:21 210:13 223:25

basic 18:14 37:5,7 123:12 136:14 94:15 51:2361:18 234: 1 0 254:5

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basically 15: 11 149:8,12 154:24 94:7 112: 1 199:6 214:13 243:23 53 :4,22,23 54:3

51:1588:19,20 163:13 171:5,8,23 199: 18 212: 15,17 bridge 170:3 56:1973:1077:24

123:14 128:3,5 172:8186:10,15 212:22213:5 236: 15 78:11 82:7,9

136:19 138:18 194:25 195:9,15 blank42:12127:15 brief11: 13 13: 18 91:11,20,2392:5

140:3 148:5 203:16,21 211:8 209:12236:14 13:2034:1435:4 111 : 1 7,23 113 :23

150:14 162:9 216:3 220:5222:5 blew 122:20 117:13 142:21 144:6,21

165:7169:1 228:18231:21 block40:1941:18 briefed 13:1919:9 146:11,13 154:4

170:13 174:21 241:11 242:7 82:19,19132:2 bring 98: 18,23 155:8 193:24

175:12 176:17,23 243:10,14244:25 blocked 183: 13 bringing 175:19,20 205:20211:4

183:15,21184:2 250:7252:14 blocks 132: 15 broke72:15194:17 calling 74:11,13 132:24 147:14


?age 258

181:21249:14,17 243:7,11 175:7,8223:16 226:15 219:1 222:9 253:5 cause/reasonable 226:2228:10 civil 23:2,13 25:3 224:12225:7

calls 117:3 239:4 164: 19 248:21 29:8,12,14159:3 226: 1 ,22231: 14 camel's 194: 17 cave 190:1 charged 13 :24 159:24 160:2 231 :20,25 232: 13 cameras 167: 11 ce'd 249:22 22:1728:149:4 185:8 195:8208:9 232:17235:12,16 Cannon 252:9 CEL 22: 13, 15,21 100:25105:17,22 208:17210:1,3 236:16247:25 Canyon 112:19,22 23:11,19 111:3151:5 214:23218:12 clients 96:12

112:23 201 :20 cell41:483:19 153:14174:10 219:23231:12 135:11 230:20,23 capacity 253:9 85:1986:1110:12 175:1178:21 civility 193: 11 230:24 capitalize 236: 10 110:12 113:13 228:8,12231 :20 claimed 202:3 client's 15:22 188:6

236:12 128:9 167:18,24 charges 38:22,22 claiming 188:5 235:22 caption 216:22 168:9203:4,5 charging 121: 11 Claims 138: 14 CLIFFORD 2:9 captioned 77:21 241: 17 cheaper 175:6 143:17 21:20,23 22:1 car 30: 17 38: 1 7, 19 certain 138: 1 0 check 8:4 18 :24 clarification close 76:5,15

48:9,17 132:23 159:10,12 56:5 69:4 72:7,18 107:25 134:17148:14 241:7 certainly 13 1 : 14 73:4 74:14121:23 clarify 73 : 12 76: 3 169:4 204:25

CARALEE 2:15 132:20 179:23 150:24151:8,12 138:2 153:23 242:2246:1 career 118:8 200:8,11 201:7 151: 16,21 209: 12 169:7227:12 252:15 carefully 32: 12 202:11203:24 checking 57:1 Clark's 4:13 13:22 closer 42:4 Carlos 3:3 33:4 226:24 230:6 142:20254: 14 14:4 19:3 27:18 Coca 35:8 65:9

34:3 196:7 231:10233:2,5,6 check-marked 74:3 30:8,1069:11 Code 6:20 17: 13 carpet 35:6,17,21 233:10245:2 Chief 114:24 71 :1981:1297:2 27:25

35:25 certification 116:10181:16 107:13 141:15 coflated 24: 1 carried 171:6 155:23 child 239: 1 144:19 145:3,12 Cola 35:8 65:9 carries 1 71:9 certified 155:25 children 237:6 154:13 155:15 college 117: 1 7 carry 165:19169:5 chance 55:1556:4 chip 221:21 180:19 190:20 cases 14: 19 119:8,9 57:860:1989:8 choice 208:24 class 39:8 combination 75: 19

119:18134:3 92:2114:12174:5 choose 209:3 clear 43:23,25 152:4 158:17184:14 206:5237:12 chose 102: 18 141:8,10204:14 come 18:2325:1 185:18 186:19 247:12,16,20,22 circle 121:9 222:10225:18 40:22 43:24 96:13 187:15 188:3 chances 13 5: 12 circled 174: 14 clearly 27:21 31: 12 96:17111:18 200: 1 205:9206:3 change 171: 11 circumstance Clerk 189:21 115:17135:6 207:2211:12 175:18230:4,10 232:22 195:16217:19 142:4 145:21 214:6219:23 changed 174:7 circumstantial click 192: 1 226: 11 155:19177:9 222:6224:12 203:22 167:17,22 169:3 client 9: 14 15:25 191:2210:13 226:7,16,22235:7 characterization 212:9,10 16:117:2318:11 220: 17226:22

cash 49: 16,17 235: 11 circumstantially 22:9,1423:10,17 232:5 234:6,9 127:13 characterize 233:3 24:1825:19,21 253:12

catch 151:7 211:15 186:19231:7 Citation 21 : 12 30:9,9,2231:9,15 comes 23:4 184:20 ca use 4: 11 16: 13 charge 19:24 22:16 43:17,1847:3 31 :24 32:7 66:5 194:3 209:23

23:624:11,12 24:8,12,2237:25 56:978:12,14 96: 1797:25 120:8 236:7 26:1429:1831:20 46:1662:479:12 122:17123:2 120:21,23 122:2,4 comfortable 72:3 34:5 51:20,23 105:21 121:8 127:14131:4,14 131:17151:5,16 135: 16 94:12 117:8 127:5 122: 16 135:22 172:3 155:17,24169:18 coming 114: 19 182:13 211:1,9 140:5 153:12,13 citations 104:12 179:1 188:8,10 199:16224:1 212:7229:9 153: 16,21 158:2 City 134:2,3 157:11 211:15,24212:21 237:4 239:10,11 240:21 241:1 161:21 174:20,22 159:6 178:4 214:12218:16,21 commencing 76:12


:?age 259

I comment 234:5 computer 176:7 constantly 116 :24 240:4 142: 17 143:8,9 commented 187:6 con 187:2 191 :8 continued 5:25 153 :21 162: 12 Commission 19:22 conceded 148:6 constitute 20:5 6:25 7:25 8:25 164:1,21 165:14 Commitment9:7 170:21 27:24 29:3 165:22,25 166:1,6 committed211:9 concentration 17:9 Constitution 26:22 contract 10:836:5 166:12,13 167:25

211:10 concern 70:14 31:5209:11 134:2218:6,13,16 168:3172:21,24 Committee 12:2,7 150:24 constructed 158:20 218:25234:1 174:12175:13

13:120:1621:4 concerned 58: 16 consult 16:1124:17 contracted 157:11 188:14190:16 24:2525:728:13 135:18 154:1 196:13 control 84:23 127:6 191:13 195:20 32:12 116:25 246:25 consultation 58:20 131:17 197:4198:11 184:22253:14 concluded 77:6 58:21 144:9 conversation 28 :20 203:15211:19

Committee's 151 :22 195:25228:15 33:1870:2,5,25 214:24216:2 164: 18 conclusion 85:21 242: 13,16 139:5 178:17 220:15222:2

common 160:17 concurrent 172:14 consultations 179:8 225:23 226:3,23 178:22222: 18 Conduct 1: 1 2:2 197: 13 conversations 227:2,3228:6

communicate 17:20 19: 12, 16,20 consumed 27: 19 146:6224:19 229:25237:13 193: 18 19:21 32:16 132:21 convicted 36:21 240: 17241:5

communicated conference 110:4 Consumption Conviction 9:6 242:1 243:24 18:10 230:10 123:22,23 188:18 36:12,1462:8,13 convinced 32:8 244:4 246:14

co mmunicating 189:7 195:3241:7 62:1479:799:7 cooperation 194:2 247:5248:9,17 193:20 conferences 123 :24 99: 1 0 100:6,14 Coors 187:21 249:16250:6

communication confess 169: 17 136:19 170:22 cop 104:4 251:21253:18 194:1 214:18 confident 174:3 171 :4,20,25 172:4 copied 66:5 correctly 132:2

communications confiden tiality 172:9,18 179:13 copies 144:22 172:17 144:10 98:4 179:25 251:12 correspondence

community 117: 17 conflicting 212: 13 contact 121:6 cops 41:5,12,14 145:4 186:23 213:4 125:10147:12 88: 1 cost 231 :14

complaining 26:5 confused 54:4 contacted 60:8,16 copy 8:4 12:262:20 costs 63:15 57:15 243:22 72:11 125:16 66:8,15 102:14 counsel 2: 14,16

Complaint 7: 11 confusion 209:21 131 :25 218:1249:2,23 7:1311:1715:19 10:1011:1620:13 congratulations contained 144: 17 251:3 20: 17 25:7 32:20 66:2467:8 68: 1 40: 11 contemplating corner 213:7 57:21 155:15 71:6,12 128:25 conjunction 129:21 113 :25 correct 11: 17 42:21 159:23 181:11 138:23 139:24 169:2 198:4 contemporaneous 46:2248:22,24 186:9 188:20 141: 1 7,22,23 connection 197: 16 242:10 63:4,12,21 68:6 194:21253:13 143:17 147:25 consensual 2 7: 14 contemporaneou ... 72:7 74:20 79:23 Counsel's 7:12 22:6 152:16 195:2 consent 30: 18 228:24 80:23,24,2582:2 139:25 254:9 229:4233:18 consequence 31: 1 7 contempt 119:8 82:1683:1 84:25 count 11:16,19 236:4 247:24 content 31: 15,23 86:8,989: 13 90:4 12:11 15:21 16:4

complaints 237 :23 consequences contention 235: 1 0 90:591:5 93:3 17:16,21 18:1,9 complete 38:4 31: 14 contest 27: 1 95:16,1898:1 19:381:17

63:17 251:22 consider 15:8 contingent 218: 12 99:5,15 100:22 counted 105: 1 completely 190:8 150:15178:11 219:21,22 103:14,15,18 counter 204:5

199:17 206:18 208:1,14 continuation 105:15 109:1 counting 53:2 214:25228:2 considered 209: 17 238:13 110:24 114:25 country 209: 11

complicated 195:4 considering 208: 12 continue 5:12,16 125:19 130:10 Counts 11 :22 12: 15 co mpound 225: 15 consistent 248: 14 6:1298:25237:15 137:20 140:6,9,13 county 14: 15,17


?age 26'J

15:13 16:14,21 covered 12: 10 CR-2005-2252 4: 15 5:19,21,236:5,8 246:22 17:5 18:4118:21 50:23 162:11 4:1821,255:3,6 6: 10,13,15,18,21 dealership 188 :22 127:23,24 134:23 co-counsel 185 :6,7 5: 13,1 7, 18,21,22 6:247:4,6,8,10,12 188:24 157:7,12 158:20 189:6 6:4,7,9,12,15,17 7:14,16,18,20,22 dealing 25: 12 169:12 174:23 crap 144:1 6:23 7:3,6 8:6,8,10,12,15,18 deals 97:5 200: 1 206:20 crawled 45:22 CSR 1:24 8:21,249:5,13,15 debate 162:23 222: 18 229:9 created 76:5 187:3 Cunningham 10:7145:18151:9 Decedent 188:11 240:22 credibility 211 :24 121:18139:11,15 dates 61 :23 107 :22 December 1 : 1 7

couple 40:20 45:3 Creek 112:20,22,23 148:7 130:3 216:17 11:1,665:9,10 48:572:19104:2 201:20 Cunningham's day 36:740:942:6 107:1 181:10 125:3 142:19 crime 78:1 205:10 128:22 42:9,2546:24 decent 232: 13 168:15 177:21 211:9,10 curious 201 :24 49:1752:1774:13 252:19 179:24 203 :25 criminal 14:6 15:5 current 37:22 90:2492:7,9,13 decide 24:22 58:22 205:17214:6 21: 17 22:5,25 103 :20 104:3,9 92:23 93: 13,21 decided 192: 16,23 223:7226:18 23: 1,9,2525:3 currently 34:25 102:4 107:1 124:5 206:14208:25 230:23 29:4,1232:5,6,10 38:9 181:13 195:25 224:9225:1 234:6

course 124:16 35: 1836:938:22 custody 28:23 197:13,20210:21 decides 23 :25 141:4 145:24 38:22 62:5 117:19 cut118:11128:4 237:6240:20 decision 15: 19 25:4 189:2 206:8 119:4 133 :6, 11 223: 13 252:18,24 31:11116:3 210:12219:20 135:22 136:7 cutting 223: 15 days 14:12,13 183:21 190:7 222:3 223:20 138:8 140: 12 CV-2002-1413 15:1017:1525:14 193:4 238:1242:11 159:22162:11,12 10:10 25: 18,2230:21 decisions 15 :22 243:21 176:12,14185:7 C-I-a-r-k 182:7 43 :25 44: 1 ,3,5 declare 30:25

court 15:1416:14 186:13 199:21 48:549:5 53:3 declined 18:24 16:21,25,25 17:10 208:12,21,23 D 63:16,1764:1,17 deducted 151: 14 17:13 19:2325:18 209:4,20,23,25,25 D 2:22,23 3: 1 72:1976:11,17 defend 206: 14 30:633:13 53:7 210:7212:6218:9 dad 40:13,15,17 93:799:19 100:10 Defendant 14:19 54:963:15 84:7 218: 11 221: 13 46:12,13 111:18 100:15,18 104:2 26:1529:23 88:7 131:8 135: 18 224:1243:17 113:24 184:5 104: 13 117: 12 157:25159:18 138:14161:2 critical 152:7 193:2 196:23 125:4 128:15 164:25 165:8,16 186:7 189:21,23 200:20 204: 11 dad's 42:3 131:1,2,5 142:19 166:19 167:21 190:2,24 195:5 cross 108:14 daily 236: 22 142:24 151:20 Defendants 209: 1 207:11 208:16 Crossland 7: 16,21 dark45:8,9 161:4 162:14,19 Defendant's 5:5,15 213:14229:10 8:3,8,9,11,17,20 date 25: 14,1942: 17 163:1,6,14,16 6:169:18158:8 240:22242:24,25 8:239:5 60: 11 78:20,21 173:5,6,7,7,12 167:15 243:2248:7,16 cross-examination 91:10,16106:24 179:4,9 180:4 Defender 160:1,5 249:14251:13 3:5,11,1577:1,8 110:5 120:9121:2 205:17214:2 187:17199:25

courtesy 193 :20 77:15156:14,17 123:2 125:6 224: 18226: 18,23 Defenders 158:20 courthouse 53 :25 177:6180:21 126:11 127:15 day-to-day 74: 13 159:2 185:14

54:255:3 190:25 238:21 239:23 141:11 142:7 deadline 149:1 Defender's 159: 17 191:2 196:22 240:9 146:1 149:2 152: 11 186:15 204:6 cross-examine 150:24 151:11,16 deal 54: 1 0 133:5 defending 161 :24

courtroom 13:16 77:10 216:11,16,17,19 143:15 174:6 defense 22:5 24: 1 cover 11:23 15:6 crux 14: 6 18: 1 216:22217:6 193:14223:13,16 25:629:4 32:5,10

74:17 145:11 crystal 151: 18 222:23 249:13 225:2226: 14 119:4 125:25 152:17216:8 CR-2005-00022S2 dated4:5,7,10,12 227:14,21 229: 12 138:8 140:6 244:13 9:9 4: 13, 16,19,22,25 229:13232:16 154:15 160:25

5:4,7,9,11,14,17


P.:::::rro -----'::::i'- 261

167: 1,3 181: 17 191 :25 disagree 17: 1 7 163:23 164:1 152:15 170:9,10 199:21 208 :24 description 34: 15 231:16235:9 165:6170:1,12,18 176:14,18234:19 212:6,17221: 13 35:4 117:14 disagreed 148:5,6 174:18175:21 dollar 101: 1 1 51 : 1 0 224:1 233:6 118:24235:22 222:3 178:1 232:16 domestic 119:5 243: 18 deserved 71: 12 disagreement dismissal 223 : 1 7 door 132:20 153:9

defenses 209:3,7 design 18:5 138:15 17:17,1822:3 dismissed 38: 7 230:9 definitely 90:9 desire 114:20 disappointed 170:21 194:24 dorms 183:4

94:11179:14 detail 205:8 217: 1 0 204: 13 dismissing 225: 6 DOT 121:22 180:3 210:16 detailed 205: 12 disbanded 157:9 225:25 127:17,24

degree 117: 19,21 details 201:3 disclose 124: 1 7 dispositional 11 : 8 double 106: 1,2 182:21,23185:1 205: 14 152:18 dispute 18: 17,18 200:12,13

degrees 205:7 detained 27: 12 disclosed 123 :25 46:21 87:21 89: 19 doubles 200: 12 delay 132:4,8,10,14 determine 17:7 Disclosure 4:23 203:18212:1 doubt 131 :24

132: 19 166:8 32:13 discovered 232:21 240:18 155:19158:15 244:24 detour 184: 19 discovery 4: 17,20 disputes 234:17 179:8 191:24

delegate 214:5 develop 197: 14 5:6,21 21:522:15 disputing 85: 1, 10 212:8232:2241 :6 delivered 89:23 200:4 25: 11 ,23 90:25 95:12 244:7245:7 denied 17:10 28:3 Dictate 244:23 149:13,17,22 disqualified 195:7 doubtful 244: 17,18

62:2 123:14,16 difference 100:9 154:16,17 199:14 disqualify 195: 14 downstream 168:17202:12 176: 17 206:7 203 :25 204:2 disregard 214: 10 215:13

denying 6: 11 ,22 207 :22 208 :20 210:8 215:25 disruptive 186:20 dozen 206:3 95:21 134:24,24 232:17245:18 222:25 230:4 distance 28:14 draft 147:13 176:4 202:10,11 differences 206:9 243:5244:3248:6 distress 3 1 : 13 drafted 249:5

Department 4:3 different 22: 18 248:8,16 distressed 3 1 : 1 7 drama 189:12 9:10 10:4 14:23 23:2429:1141:20 discuss 65:20 Distributing 35: 11 dramatically 205:5 14:25 15:4,7 41:21 105:3 136:23,23178:11 35:13,14 drank 29:6 39:15 16:1818:421:11 122:22 162:2 223:6224: 13 distributor 35: 1 7 39:1587:1892:13 22:20 23:2024:20 165:15 168:15 discussed 16: 16 District 188:19 94:20 168: 14,22 25: 1626:2,25 193:14205:5,7,17 178:4 222:23 189:21 190:6 drew 220:23 27:5,11 30: 14 206:18207:13,14 227:17,23242:9 195:5,14,16 drink 39:11,14 53:4,854:13,16 207:15,16208:9 discussing 140: 17 disturbed 143:20 94:17199:3,9 54:23,2555:6,8 214:25219:21,24 141:1 156:9 dividing 187: 1 200:4,7 56:1957:260:16 230:8234: 11 222:22 223:7 DMV 188:24 drinker 200:3 64:1674:1577:21 235:6241:24 231 :24 document 21 :7 drinking 94: 11 77:25 78:982:5 difficulties 194: 14 discussion 11: 14 42:13 43:1475:23 111:10 123:14,16 92:5 103:3,16 dig243:19 44:12,1551:5 77:2090:1 106:12 199:5200: 1 127:24 130:23 digging 142:19 56:7 110:10 108:9125:7 201:22204:19 134:4206:16 155:6 124:20 179: 11 164:13213:18 210:23212:19 207:10213:19 dilemma 25 :25 221 : 14 224: 15 216:2217:23 drinks 199:17 214:9244:14 diligence 15:24 254:19 223:4245:1 drive 41:9 83: 10 248:20249:5 direct 3:4,10,14 discussions 13 7:3 251 :21 85:288:11 198:23 250:15 34:677:7105:1 213:8 227: 13,21 documents 215 :23 223:11 224:10

depends 251:6 117:9177:6 disgusted 187: 8 243:3 248:7,16 253:15,19 deposes 34:5 117:8 180:20 182:14 dismiss 6:9 13:20 250:22251:9,11 driven 27:785:12

182:13 184:24 127:4 135:21 252:3,5,7 Driver9:1110:4 Deputy 119:7 direction 215 :22 136:6,12 160:10 Dodge 188:7,21 driver's 16:12 describe 36:9 directly 21: 1 0 73: 8 162:5,10,18163:5 doing45:23 144:16 17:1422:23 23:13


?a 262

37:2043:1944:2 53:3,1854:8 55:23,2556:22,24 58:5,1062:2 63:25 65:279:5 103:13,20104:3 172: 1 0, 15,19 178:25207:16 229:8 237:2 240:19,24

driving 6: 19 13:24 24:9,2226:19 27:16,1630:10,23 31:1036:4,6,22 37:4,6,2541:15 41:2247:1548:3 48:7,1452: 14 62:965:1474: 1,5 74:778:1879:11 79:13 88:993:13 93:17,18,2194:1 94:4,695:15 1 00: 11 , 11 11 0: 8 111:7 112:11 113:15 123:5,16 166:5,20198:10 198:17,19,21,24 199:1 200:24 201:11 202:6 203:8,17204:17 204:19210:23 212:14,19223:24 233:4235:12,14 235:16,19241 :7 241 :11,15,18,22 241 :22242:4,9,20

dropped 62:764:25 drove 28:4 29:7

30:1731:2141:7 47:1748:17,21 52:1284:3 85:21 86:3 87:1988:12 95:9123:17 132:3 168 :7, i 4,20,23 202:10,12,12 238:16

drug 110:5

drunk 45:22 85:7 199:9,19201:17

due 105:7243:21 duffel 28:7 83:14

85:19167:20,23 dug 144:25 DUI 16:1022:25

23:15,18,1824:13 26: 18 27:2429: 1 0 30:534:11 36:16 37:2038:12,14 46: 1649:4,23 50:262:4 80:6,22 81:8,13,1582:1 96:1697:10 105:18,22 111:3 122:16 125:21,25 130:24 l35:22 157:24,25 158:9 158:17 160:12,19 161:21162:1 170:19,22171:9 171:18,22172:5,6 173:9174:11,15 174:23 175:9 176:14178:12,22 179:2,12,15,17,19 179:21 180:2 198:3,8 199:16 200:7,11,12 206:11,21207:2 207:25 208:5,6,22 212:242l3:21 214:20221:16,21 222:12223:16,23 224:3,23225:7 226:2,4228:9,16 229:6 232: 19 233:2,6235:7 247:2

DUls 157:13 198:6 199:23

duly 34:4 117:7 182:12

duplicate 216: 13 217: 1 246: 17

duration 59:21

duress 204:21 235:20,25

duties 32:15 159:1 208:16210:10 211:22

duty 22:8 24: 17,19 25:229:23 32:6 133:13 152:18 218:25

E E2:1,13:14:15:1

6:1 7:1 8:1 9:1 10:1

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7:13,15,17,19,21 8:3,7,9,11,13,16 8:19,229:3 10:3 20:3 24:20 66: 11 68:4,1770:14 71: 19,25 75:7 96:2 102:9,21,23 103:2,12 107:6 128:19,23 137:7 137:17,19,24 138: 17 140:20 141: 12 144: 12,12 144:19,24145:6 145:13,17,17 146:11,16 147:2 148:8,15,16150:7 150:12151:25 152:3,24153:1,1 154:1,20155:15 156:1,11 206:10 213:20,23215:1,2 215:3 244:12 245:6,8,8,19,20 246:5 247:2,3,6 247:10,14,18,21 248:19,23,25,25 249:5250:9

letters 96:2 141: 1,6 141:8,19 142:7 148:19,20151:13 152:7233:14,16 238: 1 0246:4

letting 59:7 let's 52:674:22

76:4,2477:3 98:14110:19 115:1116:7 133:17 145:7 146: 18 18 1 : 3 ,4 195:21 223:13 239:13,18,20

Lewiston 2: 11

(208) 345-9611 M & M COURT REPORTING (208)345-8800 (fax)

385

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249:2 liability 209:7,15

224:2 liable 143 :23 liberty 209:8 license 6:7,23 9: 12

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186:3 little 13: 1444:22

45:5 122:10 126:16128:4 142:14154:12 177:10183:11 192:3225:16 226:10

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190: 1 living 68:22 74:22

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199:4 logical 84:3 85:20 Lone 191:20 long46:9,10 51:7

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looked 109:7,9 191: 17 192:4 208:7

looking 40: 16 71:16112:11 144:17 151:8 197:8,25203:11 229: 17 251: 1

looks 21:8,1397:12 121:12,13201:24 216: 10,20 239:9 246:12252:9

loop 134:17 lose 16:1244:2

52:953:3 55:21 55:22 131:3 169:25170:19 171:1229:7 240:19,23

losing 16:25 lost 54:4 64:22

74:19 100:8 136:10169:24 170:16

lot20:1575:12 105:18,22 106:3 124:19 152:25 153:6,11154:13 154:14180:1 187:2,3 188:22 194:5,19 197:13

203:24205:8,16 206:7208:13 226:7,11,15 230:23 234:22 235:7246:3251:6

lunch 115:2 116:3 lying 211: 15

M M2:6 machine 216:21

245:22 magic 28: 10,19

86:15,2387:3,7 88:14

Magistrate 14: 15 14:18 15:1416:14 16:21 25:1829:9 29:17118:20 134:22 187:6 189:19 190:2 195:5205:9 206:20 208:3 229:10240:22

mail 19:1 72:20 74:24

mailed 234: 11 main 22:3 maintain 24:6, 15

80:12 majority 172:3

179: 18 making 101:13

123:19224:3 man203:20 mandatory 23:3 maneuvering211 :6 mark 62:23 73: 15

98:6 126:4 133: 17 133:18

marked 11 :2,25 63:2,973:19,21 95:2596:498:10 119:25 120:3 126:6,8 133:21 216:4

Mary 188:11 Massoli 134:22

:\'1ateo 3:3 6: 14 7:11,17,198:5,7 8:1213:2321:8 33 :4,934:3 106:23 119:20 121:7,24122:9 123:13,21 124:10 125:9 126:10 128:8,23129:1,19 130: 12,21 132:8 132:24133:7 135:8,11 136:17 136:22 138 :4,9, 19 139:1,5,13,18,23 140:20141:1,23 142:5,9143:10 144:24146:1,24 147:4,12,15,21 148:22 149:4,22 151:4,19152:5,8 152:21 153:13,14 156:11 166:10 171:3,25 172:2,8 173:14174:11 175:7210:12 216:7237:12 240:13242:19

Mateo's 124:13 136:7 147:14 162:8 166:3 168:1

matter 11:4 17: 1 54:1955:14 169:13212:16,20

matters 21:2 125:22

McCoys 192: 11 McLaughlin

118:19 mean39:1143:21

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Page 269

155:19156:4 merged 157:6 179: 19 Mitchell 3:9 6:4 7:8 motions 11: 10 27:3 157:20 158:7 Meridian 35:9 J\'1inors 179 :24 7:9,148:10 l36:8,10 175:21 166:24 168:6 merit 209:8,18 minute47:1867:20 116:15,19117:6 motivate 144:5 176:16178:15 210:3 128: 17 145:7 Mitch's 68:4 71:21 motivated 144:2 186:25188:1 meritless 227:2 251:14 71:23 102:12 motor 84:24 192:5,17194:14 meritorious 227:2 minutes 239:6,18 molested 237:6 Mountain 4:3 194:20196:15 Message 21: 15 253:21 mom 184:5 196:22 21: 1026: 1 27:5 197:6 198:25 messed 174:8 Miranda 28:22 moment 184: 11 27:11 30:1434:16 199:10,11 202:4,5 met 14:3 27:8 52:21 mischaracterize 205:2 77:21,2478:9 204:12,15205:9 66:19 120:11 234:22 Monday 123:3 82:4 105:25 118:5 205:13206:1 124:16139:17 mischaracterizing 210: 12,14,17 118:20,23,25 211:25212:8 148:22 195:24 238:4 money 19: 1 59:6,10 119:17134:1,4 214:4217:3 Michelle 112:9 misdemeanor 23: 1 59: 11 106:4 178:4 180:13 218:11 221:24 mid 143:7 23:18 103:21 136:23 137:9 182:25183:5,17 228:17230:7 middle 63:2483:5 104:5,12 134:3 218:23231:14 183:22185:11,21 231:6,14235:2 251:5 198:3 month 14:5 79: 15 186:20,23 187:5 236: 17, 18,20,24 Middleton 183 :2,4 misgivings 137: 1 79:1681:19184:9 187:10,11189:22 237:4,17238:2 midnight43:5,7 156:12231:4 250:22 191:21 194:13 242:2,9243:8 45:6 misrepresentations months 99: 13 195:7 196:8 244:18245:14,14 mid-July 73 :24 18:2,8 150:17 100: 13 215: 1 7 221:13236:21 253: 11 Miller5:8,1116:17 missed 91 : 1 0 morning 11:7 253:17,20

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n'lechanicaI214:5 154:24 163:19 251: 15 6:9,11,16,22 9:19 253:9 Inechanically 164: 11 178:3 mistakes 169:14 13:1917:5,11,11 moved 192:22

160:24 204:3 221: 18 misunderstanding 29:21 60:24127:4 murder 185: 1 ,22 Inechanics 160:14 223: 18224: 15,17 236:8 127:8,9129:18,21 185:25186:13,13 Inechanisms 224:20225:20 misund erstood 130:15,18,20 188:12,13 189:12

207:13 226:8,10,12,21 227:18 131: 5 134: 8,20,25 M-a-t-e-033:10 meet51:8242:11 227:4,13 Mitch 15:2057:14 135:21,25 136:6 meeting 110: 18,23 Miller's 144:20 57:18,19,21,24 . 136:11,12145:22 N

121 :24 122:9 152:7223:4 58:1259:17,25 145:24 146:2 N2:1 3:110:896:3

224:2 249:17 60:5,6,8,2567: 17 154:23 161:2 96:4,8106:11,15

member 133:25 Mincing 187:21 67:2570:1,3,6,19 162:4,10,18,19 106:24108:1,5,12

members 251 :24 mind25:19187:11 70:21 72:273:13 163 :5,18,22,25 108:15217:16,17

memories 198: 13 199:18208:4 84:797:799:4,21 164:3,21,24165:5 218:2221:3

memory 85:5,6 mine40:8244:22 99:23 100:3,25 165:5,9,17,20 name33:7,835:20

92:2093:9101:4 minimum 234:2 105:17107:6,10 169:25170:12,17 35:23,2439:23

198:12 199:1 minor36:12,14 109:8,11,12,14,17 170:18,19173:11 98:7 107:22

200:24,25201:11 37:1262:7,11,13 109:18 114:3 173:23174:4,17 116:17,18,19,23

201:13,16203:13 62: 1479:799:6,9 115:21 116:14,24 175:13176:1 182:4,5196:10

224:16 100:6,14136:18 117:4155:24 177:5,10178:1,3 names 106: 11

mentioned 35:16 136:19170:22 156:2 186:8 189:9 179:6206:2,19 Nampa 182:22

138:13 197:2 171:16172:4,5,9 215:7217:8219:5 207:23 210:19 188:23

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nastiness 236:21 nature 70:5 107: 19

119:15 Nazarene 182:22

183: 1 near26:9 necessarily 20: 17

166:23,25 168:6 176:16218:17 221 :24

need 89:6,9 122:21 124:3 127:8 129:15130:17 133:3 138:19 175:18230:20 238:25239:1 243:25246:19 247:14

needed 89:1,4 99:23 144:3 167:4 223:10

needs 218: 15 230:25 247:2

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Neville 188: 19 189:2 194:25 195:10

new20:16,1722:14 96:1299:23 104:14215:11

218:21 nexus 211 :21 nice 203:20217:2 night 39: 1940: 10

42:743:346:11 47:5,2348:14 85:286: 1087:4 87: 1488:1694:17 95: 18,20112:24

Nina 189:20 195:12 195:16

nine 81 :18 nit-pick 150:1 NNU 183:8 nod 33:18 Nodding 110:25

165:12,24166:11 166:21

nonrefundable 50:651:5

normaI22:22,23 27:2033:1750:13 50:14,19

normally 175:6,8 199:8211 :7

north 183:3 Northwest 182:22

183: 1 Notary 1:25 note 15:6 120:16,22

120:24 121:5 123:19124:24 127:19,25128:3 128:20198:1,18 203:1 216:10,12

noted 145:2 notes4:l3 9:16

27:1830:8,11 94:2 110:22 119:24121:4 122:7 123:4 126:4 126:9,18 127:2,7 129:3,23 130:8 197:1,18,19198:2 198:8202:20 228:24242:10

notice 4:8, 14, 18,21

4:245:3,13,18,22 6:37:323:10 26:1956:10 125:2 248:7,8

noticed 144: 18 145:5

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20:1230:4 112:4 l32:15157:21 167:13 185:2 196:23 197:21 207:25 221: 18 251:9

numbers 29: 11 numerous 161:23

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l33:7147:8 181 :24

object 16: 19 108:2 148:3 160:8 163:19 164:12 220:16227:5 229:2238:3

objected221 :23 objecting 225: 14 objection 6: 16 9:18

62:21 63:4 75:14 75:1797:22,24 98:19 106:16 108: 1,6 124:8 129:9 133:24 134:7,8,14146:7 147:21,22 150:11 170:4 220:23 221:6,7,11225:11 229:3,25238:8 254:9,13

objections 15:23 16:2

objective 52:7 obligation 151:24

152:3 153:20 243:20

observed 84:22

131:16,17 obtained 139:6 obviously 20: 1

31:1988:10 132:14137:7 157:20200:1 211 :25 220:12 226:21 230:7 233:20234:21 249:11,20

occasion 56:24 occasions 221: 19 occur 241:3 occurred 121 :25

127:1 145:25 179:5220:7 229:22 233:14

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offense 99: 10 103:22171:4,18 171:19174:23

offer 11:18 18:19 18:2252:1 106:10 108:15178:23

offered 102:6108:2 232: 19

offering 233 :23 offers 234:4 offhand 200: 1 0 office 2:22 7:12,13

18:21,23 19:25 20:1071:18,19,21 71:23 73:8,10 102:12 118:22 119:2,7 120:9 128: 14 138: 11 139:1,9,15,25 142:5,9,11 143:2 145:12 146:2 152:22 154:13 155:16 157:8 158:20159:17 176:8,10186:16 204:5,6,6213:13 215:18,20216:14

216:21,24217:5 218:7,10,14,20,24 223:5 226:23 234:7,9,14238:11 242:24243:4 245:22246:13 249:18,22251:10 252:3

officer 23: 5 31: 9 84:2285:14 104:16 131:13,13 133:15176:2 210:25211:3,8 212:18

officers 85:9 132: 1 175:21 176:20

official 22: 12 off-stream 141: 15 oh 36: 1 56: 17 75:21

88: 13 96:20 110:17128:17 129:25 148: 13 149:21 172:7 183:12 191:24 194:14200:8 206:24211:7 212:8219:12 220:5221 :2 222:17226:24 234:18237:17 238:15245:2 248:11

old 34:8,9,1037:11 41:2589:4122:16 ; 122:18 179:25 191:21,22

once 19:25 49:19 84:798:10,24 100:5 144:16 153:10 192:12 230:3,15237:19

one-hour 242:13 one-year 81:3 open 13:6 132:20 opening 13:3 operation 84:23 opinion 131:19


388

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194:12219:10 paced 28: 13 part 11:2019:6,7 101: 11,14,16,23 144:25145:12,17 231:25238: 1 0 packet 144: 17,18 22:13,2542:15 102: 1 146:7,12,14 152:7

opportunity 135:5 154:4 74:1797:21 119:3 peak 190:13 154:24 135:6 192:25 page3:321:9,12,19 120:20 121:21 penalties 159: 12 Philip 5:8,11 204:9233:8 21:2522: 1261:6 122:2 133:19 200:6,9,13 Phillip 3: 13 182:6 236:10,12247:15 63:2567:10,11 141:9,15 145:6 penalty 200: 12 182:11

opposed 127:24 68:9,11,1271 :3 149:10,11,20 pending 161: 19 phone 41:4 48: 18 165:6215:1225:3 74:178:17120:12 157:23 158:2 214:6 83:1985:1986:1 225:5,20,25 122:1,3 130:5 159:1,17 164:6 people 21: 13 46:4 110:12,12113:13

opposing 186:9 146 : 1 7 150: 9, 1 3 184:12,23 187:16 110:5 161:24 115:18,24128:9 opposite 119:19 150:14,22216:6,8 227:10250:9 200:14,15207:4 156:2167:18,24

187:20 189:11 244:11245:17 partially 251: 19 218:14230:21 168:9189:6,8 241:9 246:12249:21 participate 20: 1 252: 1 0 193:18196:11

options 139:6 250:10252:12 particular 216:3 percent 26: 1731:6 203:4,5239:3 143:14 pages 78:10251:8 222:4227:23 207:1 210:24 241:17253:6,7,15

order 6: 11,12,19,22 251 :17 Particularly 187: 18 211 :11 254:14 9:7,8 115:25 paid 18:16 49:16 partner 189:5 perfect 193: 15 physical 84:23 134:23,24 136:8 49:1959:6,10 partnered 191: 19 period 30:2238:12 127:6131:17 184: 19 65:21,24101:15 party 27:7 39:7,12 61:24 132:22 pick 18:2340:6

ordered 17: 14 127:13 136:24 40:3 42:8 48:8,20 140:21 157:13 69:4 111:18,23 64:13 190:8 174:17 111:10112:21,24 163:10191:11 113:24193:17

Oregon 237:2,2 pain 52: 1464:24 113:21 132:12 perjure 152:9 209:2234:7 239: 1 original 27:1 painted 213:6 199:5201:22 perjury 31: 12,25 picked 64:25

106:15 108:12 223:22230:9 part-time 213: 17 permissible Ill: 19 pickup 82: 17 83:8 120:23 163:8 papers43:1647:2 pass215:13 permission 42: 11 83:17,20,2285:18 196:16212:13 paragraph 71 :4 passed 117:21 166:5 85:19,20,21,22 217:4 218:1 84:19 106:25 119:16160:22 permit 43: 19,20 95:4 167:18,22

originally 30: 16,18 147:20,22,23,24 passenger 48: 18 47:4 88:25 100: 11 picture 223:21 223:21 148 :6,13,25 168: 11 100:15,17,19,21 230:8

outcome 161:1 150:11,12,13,14 passing 118: 13 100:23223:10 piece 205: 14 224:14227:9 150:23229:4 paternity 119:8 224:10 pieces 167:13 168:4

outs 187:13 paragraphs 148: 12 pattern 209 :24 person 27:2031:21 169:2 outside 40: 14 Paraphernalia Patterson 189:20 83:13 86:2116:1 place 29:20 51:24

217: 11 36:1137:13 195:13,16 189:8 200:2 51:2553:754:14 outsider 191:17 paraphrase 20:7 Pau1249:1 209:14211:8,10 185 :22,25 209:22 overrule 225: 1 0 201 :24 Pause62:1968:21 218:22235:8,14 219:1 overwhelmed parents 40: 19 229:18248:2 personal 187 :23 ,25 Plaintiff 1:8 2:12

236:25 41:1268:20,21,22 pay49:17,1858:25 188:5190:17 Plaintiffs 4:2 5:2,5 overwhelming 74:25 82:15 83:18 59:7,11 64:11,13 247:8 6:2 7:2 8:29:2

237:7 95:10102:10,21 64: 14 80: 15, 16 personalities 63:3,7 116:10 overworked 226: 16 102:23 103:4,9,10 81 :23 100:23 230:19 planning 115 :20,22 owned 188:22,23 111:13,23 113:3 121:19 141:13 personally 204:4 plea 4: 15 50:20,21 owner's 166:5 196:6,9,9,18 payday 59:9 235:2 136:18 157:23

202:1 211:4 payment 18:12 personnel 190:24 158:2,8 160:9,11 P park48:9 81:19101:18 213:16218:10 160:18 161:15

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plead 37:4,5 50:22 26:10,14,1927:5 potentially 23: 11 presenting 126:2 86:3,20,22,24 50:25 179: 12 27:8,11,1528:2,4 171:17 presently 159:5,15 90: 11 91:3 92:8 222:11 225:7 28:6,10,15,17 powerful 204: 18 pressing 243 :25 94:19118:17

pleaded 172: 11 29:230:1,14,18 practical212:20 presumably 98: 18 124:1130:11 pleading 133: 18 30:23 31:3,9 215:4 presumption 133:7 135:3 137: 1

161:25178:12 43:1544:13,16 practice 118:1,4,25 133:13 142:25 143:20,25 179:1 223:16 56:8,11,13,15,18 119:1 161:23 pretty 39:9,18 154:16 156:4,9,10 226:4 77:21,2478:9 184:7,10185:14 52:1061:2365:1 158:12,13 164:23

pleadings 195:1 82:5,7,985:11,14 215:10220:10 65:1684:385:12 169:4178:15,17 pleads 157:25 86:5,11 87:18,20 238:17251:3 91:1493:9131:12 207:1 216:7 please 33:3,7 34:21 87:25 88:7 89: 11 practiced 118:6,22 141 :8,10164:22 242:12244:20,21

69:9 96:7 129: 12 89:11,2090:4,15 249:8 174:3175:14,20 245:11,14,16 134:18 138:25 90:1891:4,7 practicing 118: 19 176:22 194:20 249: 11 250: 18 141 :25 145:9 104:16 109:2,10 119: 17 221: 12 198:1,18199:11 probate 185:8 170:2 182:5 123:12 131 :25 236:20 prevail 31 :232:9 186:7187:16 206:22249:22 132:9 134:4 149: 1 practitioner 22:5 52:4 135:16210:5 probation 9:838:3

pled 99:6 100:5 157:10,11 166:9 23:9 119:3 210:6231:12,19 38:4,9,10,11 170:22 171 :3,25 166:17 167:7 predicate 17:18 232:14 63:20 224:22 226: 1 168:17201 :4,5 27:2 prevailing 29: 17 probing235:17

plenty 31 :20204:9 203:11 204:10,15 prefer 116: 1 206:6 problem 14:676:5 226:5 205:5,15,19 preference 179:14 previous 94: 1 0 150:2 151:13

plus 200:13 211:16212:6,18 preferred 179:12 103:8 151:13 152:13,13 169:15 pocket28:9,19 41:4 235:22 prejudice 115: 17 174:7 234: 17 169:19 178:16

44: 16,24,25 83 :23 policy 218 :20 206: 13 207:25 previously 13: 19 229:15253:8 83:25 86:12,23 political 192:2 214:7247:24 16:16 104:25 254:2 87:288:14168:2 portion 21:4 36:4 Prejudicial 19:12 pre-hearing 13 :20 problems 149:24

point22:2466:23 71:5 19: 16 primarily 119:4,10 procedural 22 7: 1 0 82:22 83:3 87: 17 position 35:23 preliminary 11: 10 primary 150: 11 procedure 29:14 93:2,10105:6 146:22 152:8 Premarked4:25:2 principle 19:14 162:12,22195:8 1 06: 7 Ill: 1 7 positive 39: 18 6:2 7:2 8:29:2 prior 18:1824:16 208:17214:24 124:20131:7,12 possession 36: 11 10:2 89:12 127:1 131:5 243:4250:4 136:22 138:5,15 37:1362:12 prepare61:367:16 149:1 procedures 208: 1 7 144:7,23 146:9 l36:18199:15 126:23 129:20 private 134:1,2 214:19 147: 7,7 148: 18 250:20 139:23 142:24 161:23 185:14 proceed 11 :21 20:2 149:4 153:3,25 possibility 20:9 218:8248:23 privileges 6: 19 33:25 55:1777:13 155:4177:17 23:9,14135:4 prepared 9: 16 17: 15 24:9,23 180:19 180:23 184:23 221:14232:14 121:1 126:10,13 74:2,676:11 proceeding 24: 1 188:3,8 190:22 possible 121: 19 127:3 130:6 100: 11 25:3 29:9,12,13 197:7 199:22,23 179:22240: 11,14 147:25218:16 pro 187:2 207: 11 208:9 200:23215:6 253:14 237:23248:6,15 probable 4: 11 23:6 237: 15 228:22232: 1 possibly 216: 13 249:1 24:11,1226:14 proceedings 1: 16 236:l3 246:16 present 16:24 29:1831:2051:20 23: 13

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M & M COURT REPORTING (208)345-8800 (fax)

401

BEFORE THE PROFESS I ONAL CONDUCT BOARD


IDAHO STATE BAR,

Plaintiff,

v. Case No . FC 09-05

JAY P . CLARK, VOLUME II

Respondent.

TRANSCRIPT OF PROCEEDINGS

DECEMBER 3, 2010

~ SOUTHERN REPORT.L.JD BY: 1-800-234-9611

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, II TWIN FALLS, 10 II ONTARIO OR S~<f'Vfee, fn e~ l c 20B-734-1700 541-B81-1700

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Registered Professional Reporters www.idahocourtreporting.com 402

I

BEFORE THE PROFESSIONAL CONDUCT BOAJ 1 INDEX

VOLUME I:

Page 258

2

OF THE IDiiliO STATE BAR

IDAHO STATE BAR,

Plaintiff, )

v. ) Case No. FC 09-05

JAY P. CLARK, ) VOLillvlE II Respondent. )

TRANSCRIPT OF PROCEEDINGS

DECEMBER 3,2010

REPORTED BY:

BARBARA R. BURKE, CSR No. 463

APPEARANCES Professional Conduct Board:

Page 257

3 THOMAS W. \VHITNEY, Chairman 4 604 S. Washington Street, Suite 1 5 Moscow, ID 83843 6 LINDA M. EDWARDS 7 P.O. Box 5070 8 Ketchum, ID 83340 9 RICHARD G. CLIFFORD

10 828 8th Avenue 11 Lewiston, ID 83501 12 For the Plaintiff: 13 BRADLEY G. ANDREWS 14 Bar Counsel 15 CARALEE LAMBERT 16 Assistant Bar Counsel 17 Idaho State Bar 18 525 West Jefferson 19 P.O. Box 895 20 Boise, ID 83701-0895 21 For the Respondent: 22 Larry D. Purviance Law Office 23 BY LARRY D. PURVIANCE 24 2151 W. Hayden Avenue 25 Hayden Lake, ID 83853

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TESTIMO:NY OF MJl..TEO C.iillLOS VARELA

Direct examination by Mr. Andrews 34

Cross-examination by Mr. Purviance 77

Redirect examination by Mr. Andrews 106

Recross-examination by Mr. Purviance 108

Redirect examination 110

TESTIMONY OF MITCHELL LEE EGUSQUIZA

Direct examination by Mr. Andrews 118

Cross-examination by Mr. Purviance 157

Redirect examination by Mr. Andrews 178

TESTIMONY OF JAY PHILLIP CLARK

Direct examination by Mr. Purviance 183

Cross-examination by Mr. Andrews 241

VOLlJ11E II:

Cross examination by J\.1r. Andrews 268

18 Redirect examination by Mr. Purviance 297

19 Recross examination by Mr. Andrews 316

20 Redirect examination by J\.1r. Purviance 326




24 Redirect examination by Mr. Purviance 375 25 /

PAGE

Page 259

1 TESTIMONY OF CHRIS MELGAARD PAGE

2 Direct examination by Mr. Purviance 378

3 Cross examination by Mr. Andrews 384

4 TESTIMONY OF ERIN REMBERT

5 Direct examination by Mr. Purviance 387

6 Cross examination by Mr. Andrews 398



9 Recross examination by Mr. Purviance 403

10 REBUTTAL TESTIMONY:

11 TESTIMONY OF MITCHELL LEE EGUSQUIZA

12 Direct examination by Mr. Andrews 406 13

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EXHIBITS PLAlNTIFF'S HEARING EXHIBITS: 40. Mountain Home Police Department

Incident Report and enclosures, dated 5/28/2005

41. Affidavit of Refusal to Take .AJcohol Test, dated 5/28/2008

42. LD.T. Notice of Suspension for Failure of Evidentiary Testing, dated 5/28/2008

43. Affidavit of Probable Cause for Arrest, dated 5/28/2005

44. Jay Clark's Notes, dated 5/3112005 45. Notice of Appearance and

Plea of Not Guilty, CR-2005-2252, dated 5/3112005

46. Request for Discovery and Notice of Service, CR-2005-2252, dated 5/31/2005

47. Response to Request for Discovery and Notice of Service, CR-2005-2252, dated 6/03/2005

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EXHIBITS PLAINTIFF'S HEARING EXHIBITS: 58. Notice of Substitution of Attorney

(Mitchell Egusquiza), CR-2005-2252, dated 6/28/2005

59. Motion for Hearing Regarding License Suspension, CR-2005-2252, dated 7/05/2005

60. Motion to Dismiss, CR-2005-2252, dated 7/06/2005

61. Order Denying Motion and Order to Continue, CR-2005-2252, dated 7/06/2005

62. Amended Affidavit of Mateo Varela, CR-2005-2252, dated 7/07/2005

63. Objection to Defendant's Motion for Suppression Hearing, CR-2005-2252, dated 7/11/2005

64. Order Suspending Driving Privileges Under Section 18-8002, Idaho Code, dated 7/21/2005

65. Order Denying Motion for Hearing

Page 262

(Premarked)

48. State's Request for Disclosure of Evidence and Notice of Alibi,

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Regarding License Suspension, CR-2005-2252, dated 7/22/2005

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EXHIBITS PLAlNTIFF'S HEARING EXHIBITS: 49. Notice of Service, CR-2005-2252,

dated 6/1 0/2005

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EXHIBITS PLAINTIFF'S HEARING EXHIBITS: 66. Notice of Hearing, CR-2005-2252,

dated 8/18/2005 50. Defendant's Response to Plaintiffs

Rule 16 Discovery Request, CR-2005-2252, dated 6/10/2005

5 1. Fax letter to Philip Miller from Jay Clark, dated 6/10/2005

52. Letter to Jay Clark from Philip Miller, dated 6/2012005

53. Motion to Continue and Notice of Service, CR-2005-2252, dated 6/21/2005

54. Response to Defendant's Motion to Continue Jury Trial, CR-2005-2252, dated 6/2112005

55. Notice of Hearing, CR-2005-2252, dated 6/23/2010

56. First Supplemental Response to Discovery, CR-2005-2252, dated 6/24/2005

57. Notice of Service, CR-2005-2252, dated 6/24/2005

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67. Idaho Repository Register of Actions, CR-2005-2252, dated 5/07/2010

68. Letter to Jay Clark from Mitchell Egusquiza, dated 7/19/2005

69. Letter to Mitchell Egusquiza from Jay Clark, dated 7/2212005

70. Bar Complaint, Mateo Varela to Bar Counsel's Office, dated 8/15/2005

71. Letter to Office of Bar Counsel from Mitchell Egusquiza, dated 8/1212005

72. Letter to Jay Clark from Julia Crossland, dated 8/26/2005


74. Letter to Mateo Varela from Jay Clark, dated 9/1612005

75. Letter to Julia Crossland from Jay Clark, dated 9/23/2005

23 I 24 I 25 (Exhibits continued)

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(Premarked)


404

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EXHIBITS j.1 PLAlNTIFF'S HEARING EXHIBITS: (Premarked 2

76. Letter to Julia Crossland from I 3

EXHIBITS RESP01\.TDENT'S HEllliING EXHIBITS: L. Letter to Idaho Transportation

Department, Driver Services Section, from Jay Clark

CPremarked)

Jay Clark with a copy of$218.75 check, 4

statement, and Affidavit of Mateo Varela, I 5

dated 10/07/2005 II 76

77. Letter to Mateo Varela from Re: Varela hearing request, dated 6/0612005

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Julia Crossland, dated 10il2/2005 78. Letter to Julia Crossland from

Mitchell Egusquiza, dated 10/25/2005 79. Letter to Julia Crossland from

Mateo Varela, dated 10/25/2005 80. Letter to Jay Clark from

Brad Andrews, ISB No. 03-047, dated 7/2312004

16 81. Letter to Jay Clark from

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N. Attorney-Client ContractStandard Fee

O. Complaint

17 Julia Crossland , ISB No. 04-015, 117 18 dated 8/0512008 19 82. Letter to Jay Clark from 20 Julia Crossland, ISB No. 05-088, 21 dated 8/07/2008 22 83. Letter to Jay Clark from 23 Julia Crossland, ISB No. 05-139, 24 dated 8/07/2008 25

Page 265

1 EXHIBITS

(premarkedj 2 PLAINTIFF'S HEARING EXHIBITS: 3 84. Letter to Jay P. Clark and 4 Terry S. Ratliff from 5 Julia A. Crossland, dated 2/26/2009 6

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85. Judgment of Conviction, Withheld Judgment, COlmnitment Order, Probation Agreement and Order, Case No. CR-2005-0002252

86. Idaho Transportation Department -Driver Services - Hearing Request for Administrative License Suspension, dated 7115/2005

87. Client Infonnation Sheet, dated 6/2112005

88. Handwritten notes prepared by Jay P. Clark

89. Objection the Defendant's Motion for BAC Hearing;

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DECEMBER 3,2010 - 9:00 A.M. (Exhibit 0 marked.)

Page 267

CHAIRMAN VvHITNEY: Let's go ahead and go on the record.

It's December 3rd, 2010. This is the case of Idaho State Bar, Plaintiff, versus J.P. Clark, Respondent, Case No. FC 09-05.

Bar Counsel is present representing the Idaho State Bar. Mr. Clark is present represented by his attorney of record, Lany Purviance.

The Hearing Committee is here assembled: Linda Edwards, Richard Clifford, and me, Tom Whitney.

This is the second day. It's about 9: lOin the morning, and we are still on the Defendant's Case in Chief and Rebuttal.

17 Mr. Clark was on the stand when we 18 broke yesterday, and Mr. Andrews was in the 19 middle of his cross-examination. 20 Mr. Andrews, did you have more 21 cross-examination you wanted to do today? 22 MR. ANDREWS: Yes. 23 CHAIRMAN WHITNEY: So, Mr. Clark, if 24 you would resume the stand, please. Go ahead and 25 have a seat. Just state your name for the record

(208)345-9611 M & M COURT REPORTING (208)345-8800 (fax) 405

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Page 268 [

and spell your last name. THE WITNESS: Jay Clark, C-l-a-r-k. CHAIRMAN Vv'HITNEY: Mr. Andrews?

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JAY PHILLIP CLARK, 5

previously duly sworn to tell the truth relating 6

to said cause, deposes and says: 7

CROSS-EXAMINATION 8

(continued) 9


Q. Morning. 11

A. Morning. 12

Q. Let's start off with Exhibit 51, please. 13

I'll represent to you that in the 14

response to the Request For Production of 15

documents that three pages -- the three pages 16

that were also included in this that are not a 17

part of Exhibit 51 were Exhibit L. Do you have 18

any problem with that? 19

A. No. 20

Q. All right. Did you send Exhibit 51, a 21

copy of Exhibit 51, to Mr. Varela? 122

A. At the time of my representation of 23

h· ? !~ lID. I Q Correct i 25

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Page 270

talked to the Idaho Department of Transportation, and they had told him that the letter wasn't necessary.

So, as he testified, he thought it was a mistake, was told it was a mistake, and he probably told Joni it was a mistake.

Q. I thought that you testified that he talked to you.

A. Well, everybody that calls the office -when they call, they first talk to the assistant. So he would have had to have talked to Joni, and he most cel1ainly would have talked to her about the case before he would have talked to me.

Q. Okay. Did you authorize this letter? A. No. I mean, this was her letter. Q. Is Joni able to ask the Prosecuting

Attorney ifhe would object to having a hearing? A. No. That would have been outside her

authority, but, you know, the reason that her name is listed as part of the letterhead is so that she is able to make communications to the other offices, and they often -- all paralegals and the staff, the assistants, and all the legal offices communicate regularly back and f011h to each other

Page 271

A. That would have been the standard Q. Did you authorize her to ask the 2 office practice, to give clients a copy of 2 Prosecuting Attorney ifhe would object to having 3 everything that was prepared in the case. 3 a hearing? 4 Q. Was there any cover correspondence that 4 A. Well, I wouldn't have authorized her, 5 goes with those? 5 no, to ask for that. 6 A. You know, generally none, unless there 6 Q. Do you disagree with that statement? 7 needed to be some explanation that would have 7 Did you disagree with the request to the 8 been again the staff member that was handling 8 Prosecuting Attorney to ask him whether he would 9 that case -- or assisting me with that case. 9 object to having a hearing?

10 Q. Who would that have been in this 10 A. Yes. What I would have liked to and 11 situation? 11 what I would have done with Mr. Miller -- I mean, 12 A. This same person is Joni Vann. 12 we had -- I probably called him several thousand 13 Q. Okay. Is Exhibit 51 true? 13 tirnesinthatten-yearperiod--587-9797. 14 A. "True" in the sense that yes, it 14 We enter into plea negotiations or 15 appears to be that Joni Vann did write the 15 discuss a case. I call him up and say, "Tammy, 16 Prosecutor's Office and send them a copy of the 16 can you get me Phil?" I talk to Phil. Say, 17 fonn letter. 17 "Phil, I would like to talk to you about this DUI 18 Q. Was the provision, "This letter was 18 case. Can we throw out the Affidavit of the 19 sent in error to the Idaho Department of 19 refusal BAC in exchange for a plea bargain?" 20 Transportation on June 6th," is that true? 20 Q. And you didn't do that. You testified 21 A. Her statement that was "in error"? No. 21 yesterday that you didn't do that. 22 I mean, only in the sense that it wasn't 22 A. That's correct, yes. I hadn't gotten 23 necessary, and I'm sure that she became a little 23 to that point yet on this case. 24 rattled or maybe even upset after Mateo Varela 24 Q. Okay. 25 called her on the 6th and told her that he had 25 A. And that would have been normally what


406

Page 272

1 I had done a thousand times -- I mean a thousand 2 calls -- I probably did it a couple hundred times 3 with Phil Miller on other cases. So that would 4 have been the standard protocol on this case. 5 Q. On Exhibit 52, approximately ten days 6 later, he wrote you indicating that he did not 7 believe that he could waive the jurisdictional 8 requirement; correct? 9 A. Yes.

10 Q. Okay. And you didn't initiate any plea 11 negotiations with Mr. Miller at that time, either? 12 A. No, not at that time. I only had the 13 case a few more days. 14 Q. 1fMr. Miller did not object and 15 permitted a heming, you would have proceeded to 16 a hearing on the refusal; correct? 17 A. No. No, there's no way I would have 18 pursued that. 19 Q. And then why didn't you withdraw this 20 request of Phil? 21 A. I don't know that I recalled or knew 22 that that was a request made to him, and I 23 certainly -- like I said, there's no way that 24 Mateo could have prevailed on that hearing.

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Q. And you never told Jom to not send any communication about a suspension hearing to the Department of Transportation; that was done without your knowledge?

MR. PlJRVIANCE: I'm going to object again. I believe it's been asked and answered.

CHAIRMA ... l\J WHITNEY: Mr. Andrews, what' your response to that objection?

MR. ANDREWS: I think it was answered, so I'll move on.

CHAIRMAN WHITNEY: Well, I'll tell you my confusion -- and I don't know who -- if you want to follow up on this.

My confusion about the answers that have been given is whether or not Jom Vann was impliedly authorized to send out this letter. That's my confusion.

So I don't know if either of you wants to follow up with that, but that's where I am with that question.

So, Mr. Andrews, go ahead. Q. (BY MR. ANDREWS) Well, I'll ask it.

Was Joni Vann impliedly authorized to send this letter?

?

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1 say, of the thousand or so Magistrate COUlt cases Q. Exhibit 51. 2 I had there, when I bring a civil hearing it has 2 A. The fax cover sheet. Not from me, 3 some merit; there's some possibility that it 3 I mean --4 could possibly be won. 4 Q. Okay. 5 The criminal case is totally different. 5 A. It appears that at this point, 6 Yes, the State always has that burden beyond a 6 especially in light of the other fax cover sheet 7 reasonable doubt to show that they have -- they 7 that I just saw for the time yesterday where she 8 can meet every element of the case. 8 re-faxed the request apparently on June 10th to 9 Q. I understand that. I want to know 9 the Idaho Department of Transportation, that she

10 whether you authorized Exhibit 51 and the request 10 really got confused and started faxing the letter 11 to whether the Prosecutor would object to having 11 all over the place. 12 a hearing? 12 The only thing I can think of what 13 MR. PURVIANCE: I'm going to object. 13 happened is because Mateo had called her and 14 I think it's been asked and answered. 14 talked to her after talking to the Idaho 15 CHAIRMAN \VHITNEY: Sustained. 15 Department of Transportation, and she just didn't 16 Q. (BY MR. ANDREWS) So that I'm clear, 16 know for sure what to do and just stalted sending 17 your testimony is you knew nothing about this? 17 the letter. 18 A. It depends on at what time. I certainly 18 Q. But she was not impliedly authorized to 19 know about it now. 19 ask Phil ifhe would object to a hearing, was she? 20 Q. Well, as of June 10th. 20 A. No. I would never authorize an 21 A. No. I didn't know what she was doing 21 assistant to do that. 22 with that pmticular request. 22 Q. SO will you take responsibility for 23 Q. And as of June 3rd, you knew it was a 23 that statement as the laVvyer in charge of the 24 refusal? 24 assistant and in charge of the office? 25 A. Absolutely. ,25 A. See, there's a huge difference between


407

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1 that letter -- 1

2 Q. Will you take responsibility for that 2

3 statement? 3

4 A. If she had put my name and I had 4

5 authorized that, and it said, "This is from 5

6 Jay Clark," and she typed it, like the form 6

7 letter, yes, I'll take responsibility for the 7

8 contents of the form letter, but I won't -- I 8

9 can't control what another person sends in their 9

10 own name, in their own communication to another 10

11 office. 11

12 Q. You can't control what a non-Ia"wyer 12

13 sends? 13

14 A. I mean, I can try, but I can't control-- 14

15 she says, "Let us know." I would have said, "Let 15

16 me know. Signed, Jay Clark." 16

17 If a staff member wants to communicate 17

18 with another office, certainly they have the 18

19 right to communicate, but to control every single 19

20 communication that they state in their own name 20

21 is a lot different than controlling what I -- 121 22 what they type for me. I just hope you can

122 23 appreciate the difference. 23

24 Q. On Exhibit 86 that we talked about ' 24

25 yesterday -- and specifically, with regard to the 125

number, and so it refers to that person, but there's no facts specific to the case.

Q. Okay. So if there's no facts specific to the case, your office is authorized to sign your name to that type of correspondence?

A. To a form letter, yes. Q. Let's take a look at Exhibit 76, please.

Do you recall Exhibit 76 and sending that to the Idaho State Bar -

A. Yes. Q. -- in response to Mr. Varela's Complaint? A. Yes. Q. Okay. Did you intend the Affidavit and

that letter -- you intended that that Affidavit and the letter as a threat to Mr. Varela, didn't you?

A. A threat in the sense that he should tell the truth. If he's telling the truth, there's no threat.

Q. Okay. Did you agree -- you were here when he testified about his reaction to when he received it?

A. Yes, I heard his testimony. Q. Was his reaction as you expected or

intended? Page 277 Page 279

signed letter to the Idaho Department of A. I'm not sure. I just expected him to 2 Transportation -- if I understood your testimony 2 tell the truth. 3 correct, you testified you did not sign that 3 Q. Well, okay. And ifhe didn't agree to 4 letter? 4 tell the truth, according to what you believe the 5 A. But I auth0l1zed the letter. I 5 truth was, what was your intention? 6 authorized that signature, I authorized those 6 A. My intention would be to try to 7 contents of that letter, and I authorized that to 7 motivate him to tell the truth -- to say, 8 be sent out on every single DUI case because 8 "You know what? There's consequences for ruining 9 80 percent of them are automatic license I 9 a person's career based on false statements.

10 suspensIOn cases. 10 There should be consequences for that. " 11 Q. I understand that. ' 11 There are consequences for disrupting 12 I want to understand whether -- do you 12 people's lives by making statements like -- you 13 consider that the equivalent of a pleading? 13 didn't hear him refute that he lied about the 14 A. No. It's a form letter. A pleading is 14 fact that he said that I told him to go to Oregon 15 a lawsuit. 15 and get a phoney driver's license. That was a 16 Q. Is it a legal letter requesting a 16 complete fabrication and a lie. He didn't try to 17 hearing? Is it something that a non-Iav,ryer would 17 correct that yesterday. He knew that was a 18 send? 18 lie -- just to ruin my career. 19 A. Perhaps. It is not to a court; it's a 19 Q. Okay. So you believe that Mr. Varela's 20 fOIID letter. It's not -- it's devoid of factual 20 sole purpose of filing a grievance was to ruin 21 specifics to the case. 21 your career? 22 Q. It's got the Citation number on there, 22 A. As Mr. Egusquiza testified, those 23 and it's got all of the grounds identified for a 23 documents were prepared by him. Mr. Egusquiza 24 license suspension hearing; correct? 124 was the instrument to cause the damage that was 25 A. It has his name, driver's license 25 done.


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Q. Okay. Let's talk about that -- if you 1

can tum to the Affidavit. 2

You recall MI. Egusquiza's testimony 3

that he believes that the Affidavit required him 4

to report the provision of the Affidavit to the 5

Bar under his obligations under Rule 8.3; 6

correct. 7

CfLA,.IRMAN WHITNEY: Let me interrupt yo 8

for a second. We are on the last two pages of 9

Exhibit 76? 10

MR. ANDREWS: Correct. 11

CHAIRMAN WHITNEY: Okay. Mr. Clark, 12

you can go ahead and answer. 13

THE WITNESS: Well, I recall his 14

testimony. That's what he said. 15

Q. (BY MR. ANDREWS) Okay. And you also 16

heard Mr. Varela and Mr. Egusquiza's testimony 17

about the Complaint, which is Exhibit 70. Do you 18

recall that, that his office helped him type it, 19

but it was Mr. Varela's words? 20

A. Yes, and that's what I see in the 21

Affidavit -- it was prepared by Mitch Egusquiza. 22

Q. Okay. And before you sent this to 23

:Mr. Varela, did you have any information that 24 . ? 25

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that, and that's exactly what he did. He testified that he did research, he

went and gathered documents, he talked to Phil Miller's office -- he did much preparation.

Q. Did you do any investigation into that before you sent this?

A. Yes. I mean, absolutely. I mean, whatever we did, I made sure that every one of these items were true before we sent it to your office.

Q. How about Item 4? Was it true that you never refused to return the unused portion of the retainer?

A. No, I never refused to return the unused portion. When he sent me a letter saying Mr. Varela has misgivings about my representation and "please send the whole $500," that's different than refusing to return the unused portion.

I wrote him back and said, "Please explain what misgivings Mateo has." I never received a response to that, but I did go ahead and send another letter saying, "Well, okay. Here is the unused portion, "even, though he didn't ask for that in that first letter to me.

Page 283

A. I don't understand your question. 1 was upon termination of the representation to 2 They -- 2 return the unearned fees to Mr. Varela without a 3 Q. \Vell, to you does "prepare" mean that 3 request? 4 they typed it? 4 A. Yes, but my --5 A. I would say they are pretty similar, 5 Q. Then why didn't you do that? 6 yes. 6 A. Because we had a contract. The unused 7 Q. When you read Paragraph I, is the 7 portion says, "Anything after the first $500." 8 intention of Paragraph 1 that Mitch Egusquiza's 8 If! decide that there's an unused portion, I 9 office typed the Complaint for Mateo? 9 could return that, but my contract says, "The

10 A. It's pretty unambiguous to me. It 10 $500 is earned upon receipt." That's a minimum 11 says, "were prepared by his staff." 11 payment to be made. That's why I at least wanted 12 Q. It's not unambiguous to me. Is there 12 to discuss the situation. 13 any difference between "prepare" and "just 13 Q. This is the Fee Agreement that we don't 14 typing" in your mind? 14 have; correct? 15 A. \Vell, I think "prepared" would include 15 A. Well, it's an exhibit, the standard 16 typing and organizing information, which is what 16 form. 17 Mr. Egusquiza testified he did. 17 Q. It's the standard fOlm. Do you have a 18 Q. Did you do any investigation into that 18 Fee Agreement with Mr. Varela? 19 before you sent this? 19 A. I imagine it's in the file that we 20 A. Investigation? I mean -- 20 don't have -- that I don't have. Somebody has 21 Q. Did you call Mitch and ask him what his 21 it. Yes, there's a --22 involvement was with the preparation of 22 Q. And I think you testified you think 23 Exhibit 70? 23 that Mr. Egusquiza has it. 24 A. Are you saying that's a false statement? 24 A. At one time, I believe he did. I mean, 25 It's not. It's absolutely true. He testified to 25 there's still documents coming out of that file

(208)345-9611 M & M COLlRT REPORTING (208)345-8800 (fax)

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that I haven't seen since I had the file, so 1

somebody has the file. 2

Q. You're presuming that there's documents 3

Q. Before you sent Exhibit 76, did you consider or investigate whether there was any immunity available to persons filing a glievance?

coming out of that file that -- 4 A Well, absolutely. In fact, as I wrote 5

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A. Well, the second page of Exhibit 86 is 5

a document I hadn't seen since 2005, and somebod! 6

got it from somewhere. 7

-Q. We got it from the Department of 8

in the Memorandum to Dismiss, the Bar is limited in their authority to restrict my First Amendment right -- and every attorney's First Amendment right.

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Transportation. Okay? I'll be -- 9

A. Okay. 10

Q. Paragraph 9. How did you expect 11

Mr. Varela to include in his Affidavit what you 12

had done? 13

A. Well,just like he testified. He 14

didn't refute that. 15

Q. But he doesn't have knowledge of what 16

you did. 17

Did you have any correspondence that 18

you sent to him, including the Police Report, 19

that you provided him in the discovery? 20

A. Well, but No.9 is saying that, 21

"Mr. Clark and I received the Police Report prior 22

to the deadline to file a proper request." 23

Q. But do you have any -- is there 24

The Bar has a lot of power, but it still can't exceed the Constitution of the United States and the Constitution of the State of Idaho.

In those cases, especially So sa vs. Direct TV, it says, "The Bar cannot obstruct a person's unfettered access to the courts, regardless of whether there's an investigation of a Complaint ongoing or not."

That's a very powerful a case, and I did not see a response from the Bar to that case.

Q. You looked at the Immunity Rule, and you believe that it did not apply?

A I believe the U.S. Constitution applies. Q. Well, did you believe it applied? A The Immunity Rule in the Bar rules?

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that Mr. Varela had a Police Report on June 3rd? A It doesn't trump the U.S. Constitution. 2 A. His testimony. It says -- 2 Would you agree with me? 3 Q. He didn't testifY that he had it, I 3 Q. No, I don't -- we don't have to debate 4 don't believe. 4 that. 5 A. Well, he testified -- 5 Do you understand that the Bar 6 MR. PURVIANCE: I'm going to object; 6 Commission rules are rules of the Idaho Supreme 7 it's argumentative. 7 Court and adopted by the Idaho Supreme Court? 8 CHAIRMAN\VHITNEY: Well, Mr. Andrews 8 A And they still don't trump the--9 asked a question -- Mr. Clark had raised the 9 Q. I understand. My question was, did you

10 issue about Mateo Varela's testimony. Mr. Andrews 10 consider that before you submitted this letter to 11 was responding to that. 11 Mr. Varela? 12 So I'm going to sustain the objection 12 A I considered what my full legal 13 to that particular question, but re-ask your 13 authority was and what it is to do, and I still 14 original question because we don't have an answer 14 believe I have absolutely legal authority under 15 to that yet. 15 the Constitution of the State and the United 16 Q. (BY MR. ANDREWS) Did you understand 16 States to threaten somebody to sue, and that's 17 Mr. Varela to testifY that he had a copy of the 17 exactly what the case law says I have the right 18 Police Report in the discovery on June 3rd, the 18 to do. 19 physical possession of those documents? 19 Q. And that's exactly what you did? 20 A. I can't say exactly ifthat was his 20 A Even in the midst of a Bar investigation, 21 testimony or not yesterday. I don't recall that, 21 absolutely. 22 but my recollection at the time that I did this 22 Q. You threatened to sue him if he didn't 23 Affidavit was that that was, in fact, true -- 23 sign the Mfidavit? 24 that he and I had reviewed the Police Report 24 A That's what it says in my letter. 25 prior to the deadline to file a proper request. 25 Q. Look at page 2 of Exhibit 76, please.


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1

The paragraph that begins, "Option 4B." 2 MS. EDW.ARDS: I'm sorry, Mr. Andrews. 2

3 Which exhibit? 3

4 MR. ANDREWS: Exhibit 76, page 2. 4

5 After the enumerated items, it's the first 5

6 paragraph. It begins with "Option 4B. ft 6

7 THE \VITNESS: Yes. 7

8 Q. (BY MR. ANDREWS) Okay. Is that true? 8

9 A. Yes. Yes -- and he probably had the 9

10 suspension advisory with him. You know, as is 10

11 typical, I go over whatever documents he had I 11

12 with him, and I did, and apparently I explained 112

13 it to him. 13

14 Q. Tum to page 3 and the first paragraph. 14

15 Is that paragraph accurate? 15

16 A. Absolutely, but that's different than 16

17 whether he could prevail on a DUI case. 17

18 Q. I didn't ask that. I just asked, "Is 18

19 it accurate?" 19

20 A. Yes. 20

21 Q. And then the next paragraph that i 21

22 begins, "I also told him." Is that paragraph 122

23 accurate? 23

24 A. It's accurate in the sense that he said 24

25 that he would testify that he 'Ihlasn't drivina --b

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way, that was something that, like I said, was assigned to the person that did it and --

Q. Well, but I read this to say that the letter had already been sent to the Department of Transportation at the time that you talked -- at the time that you were discussing Fliday, June 3rd.

A. It says the letter had already been sent. I take that to mean prior to the expiration of the time frame, which would have been after the 6th.

It doesn't say, "Refer back to Friday, June 3rdrd. ff

Q. When you read it in context, you don't think that that's referring -- you think that that doesn't say that as of Friday, June 3rd, a letter had already been sent?

A. Well, it's ambiguous as to what date that's referring to, whether it means prior to the expiration of the time frame or any other time frames. It's not clear.

Q. Then go to the following paragraph. Is that accurate -- is the first sentence accurate?

A. Yes.

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1 just like he told me the day when he came in and 1 CHAIRMAN WHITNEY: Which sentence are 2 saw me. 2 you talking about? 3 I said, "Well, if you think that's the 3 MR. ANDREWS: "The following week 4 only __ " that apparently would be the only 4 Mr. Varela came into my office and was desperate 5 evidence to SUppOlt his contention that he was 5 to avoid the six-month suspension because he 6 not driving. 6 would lose his job." 7 I said, "You can't do thatbecause that 7 Q. (BY MR. ANDREWS) Is that accurate? 8 would be lying because you told the police you 8 A. Yes. g were driving," and that, in fact, is the truth. 9 Q. The next sentence says, "I said I would

10 Q. He never told the police that he drove 10 talk to Philip Miller about it, the City Prosecutor, 11 Mr. Bergh's vehicle, did he? 11 even though I told him there would be no chance 12 A. No, but he did tell him that he drove. 12 whatsoever to reverse the suspension if this went 13 Q. I understand that. 13 to hearing." Did you tell Mr. Varela that? 14 A. And that's all he needed for the DUI. 14 A. Probably, yes. 15 He didn't have to drive Mr. Bergh's pickup to be 15 Q. "And sometimes Mr. Miller will agree to 16 guilty of these other things. 16 drop a refusal in lieu of a plea to a DUI, but 17 Q. And your position is that there was no 17 that would have been the only way the refusal 18 legal cause for a refusal hearing? 18 could have been dropped in this case, and no such 19 A. There was not -- it was not a 19 offer was ever __ " 20 meritorious case under Rule 3.1. 20 A. Yes. I imagine that was supposed to 21 Q. Look at the third paragraph. Had the 21 say, "-- no such offer was ever made." 22 standard letter already been sent to the 22 Q. Okay. And was the fax to Mr. Miller, 23 Department of Transportation on June 3rd? 23 Exhibit 51, was that what you did in response to 24 A. I don't know. Apparently -- it looked 24 Mateo visiting your office? 25 like it was actually sent out the 6th, but either 25 A. You're referring to Exhibit 51?


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1 Q. 51, yes. 2 A. No. Like 1 said in my letter, I said 1 3 would talk to Phil Miller. That's what I usually 4 do, is 1 pick up the phone and I call him. 5 Q. But you never did? 6 A. I didn't make a plea bargain, like 1 7 testified to. 8 Q. And Mateo's license was suspended? 9 A. Yes.

10 Q. Okay. Do you find that your actions 11 were consistent with Mr. Varela's objectives as 12 he expressed in your office that week? 13 A. I did, to what my maximum ethical 14 authority was. He mighthave said, "I want you 15 to sue everybody out there because it's 16 everybody's fault." That doesn't mean 1 could 17 file frivolous lawsuits. 18 1 mean, that would be what the Bar is 19 trying to say -- that I have a duty to file a 20 civil lawsuit even though there's no factual 21 basis for the civil lawsuit. 22 Q. Let's put that aside. 23 At this time you couldn't -- you did 24 request a hearing -- your office requested a

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1 expressed to you that he wanted his license back? 2 A. And like I said, there wasn't -- yes. 3 I think I have answered that. 4 Q. Okay. 5 MR. ANDREWS: With the Committee's 6 indulgence -- (Pause.) 7 Q. (BY MR. ANDREWS) If Mr. Egusquiza does 8 not have a Fee Agreement in his file, will you 9 concede that you did not enter into a Fee

10 Agreement with Mr. Varela? 11 A. No. Mr. Egusquiza sued me, saying I 12 stole a vehicle. Obviously, I don't trust him. 13 Obviously, he's going to do a lot of 14 things to disrupt and hann my career. If that 15 means not presenting documents to the Bar, I'm 16 sure that's a lot less innocuous than suing me 17 for a vehicle that 1 didn't steal. 18 Q. You testified you didn't send the check 19 to Mr. Varela because you had three different 20 addresses; correct? 21 A. I said that -- yes, that he did have 22 three different addresses, but he could have 23 called me and we would have been happy to send it 24 to him. He never called and asked. 25

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talked to Mr. Miller about a plea, and wouldn't 1 a look at Exhibit 70. There's a mailing address of 1102 Maple Drive; COlTect? that have been consistent with Mr. Varela's 2

objectives to try to get his license back? 3

Wasn't that his primary objective that week? 4

A. And that's exactly what I would have 5

done. The case was languished for six more 6

months after I had it. 7

Q. And if it languished for six more 8

months, his suspension would have remained in 9

effect and would have expired, as it did, and his 10

objectives to have his license and his job would 11

not have been satisfied; is that correct? 12

A. Right. Hopefully, I would have gotten 13

that done faster than Mr. Egusquiza. 14

Q. Okay. But nothing was done in the 15

A. Yes. Q. Okay. That was sent to you by the Bar

via Exhibit 72 on August 26, 2005; is that correct?

A. Yes, but even when I sent you guys the check, it still never got sent to him in five-and-a-half years.

Q. Just please answer my question. Did you receive Exhibit 70 on August -

on or about August 6, 2005? A. Well, 1 probably received it after the

Bar received it and it was sent to me. Q. And then if you take a look at

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approximate month that you represented Mr. Varela 16

to accomplish that objective to have his license 17

Exhibit 73, you wrote Mr. Varela on September 2nd at that address; correct?

back? 18 A. Yes. i9 A. Now you're talking, though -- you're 19 Q. And then you wrote him again at that 20 talking in the few days between that June 6th to 20 address on September 16th. That's Exhibit 74; 21 June 10th -- to June 21st when he went to talk to 21 correct? 22 Mitch Egusquiza. In just those few days, I did 22 A. Yes. 23 not enter into a plea negotiations with 23 Q. And you had his address, and you just 24 Phil Miller. 24 didn't send the check? 25 Q. Despite the fact that Mr. Varela 25 A. Well, Mr. Varela said he may not have


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received these letters because he may have not been living there at the time. I didn't say that I didn't have his address.

Q. You said you had three different addresses.

A. And I thought that since he lived right in town, the easiest way to make sure he got it was he could stop by and get it or call and make arrangements. He never called.

Q. You also said that you believed that --I think you believe that if you sent the check payable to Mr. Varela to !\1r. Egusquiza's office, that it would not get to him?

A. No, I don't believe so. I mean, I sent it to the Bar, and it never got to him.

Q. We have been through that. The Bar didn't receive a check; it received a copy of the check.

A. Well, in five-and-a-half years, how come the Bar can't tell me that they didn't receive the check when I say in my letter that, "The original check is included"?

Q. Because we didn't have the Oliginal check.

Page 297

on that, and I would have been happy to send it agam.

Q. Well, did you not trust Mr. Egusquiza to give that check to Mr. Varela -

A. No, absolutely. Q. -- in September of2005? A. Absolutely not. Q. Did you think that Mitch Egusquiza

would steal that check? A. He would do a lot of different things

to make me look worse to the Bar. Q. Do you think he would not place it in

trust if there was a dispute as to the check? A. I don't know what he would do, but it

certainly wouldn't be the straightforward thing that you're supposed to do.

MR. ANDREWS: That's all I have. CHAIRMAN WHITNEY: Redirect? MR. PURVIANCE: Yes.

21 REDIRECT EXAMINATION 22 QUESTIONS BY MR. PURVIANCE: 23 Q. Jay, I want to talk about there was 24 some issues yesterday when Mr. Egusquiza was 25 testifYing.

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The Motion To Dismiss that he filed and got a reduction to an Under Age Consumption charge was premised on the reasonable doubt status or standard that climinal cases have; correct?

A. Correct. Q. And a BAC hearing, on the other hand,

is where the Defendant has the burden of proof? A. That's correct. There's a huge

difference there. Q. Why is a BAC refusal-- why does the

Defendant have the burden of proof on that? A. Well, because it's like any other civil

case in the sense that when the Plaintiff brings a civil case, the Plaintiff has the duty to prevail, and on all the elements of their case.

That duty in a civil case never gets transferred over to the Defendant, unless the Defendant files their own counterclaims, but in a criminal case the -- and that's probably one reason why the rules are always that in a criminal case, the defense attorney needs to really throw everything out there because in a criminal case, the burden always stays with the

lurays have to prove each and every Page 299

element beyond a reasonable doubt, and a lot of 2 things can happen, you know, that could prevent 3 the State from doing that. 4 In this case, a DUI -- I mean, even 5 though there is insurmountable evidence, you 6 know, maybe somebody -- something could happen 7 that would cause the jury to feel there was some 8 doubt as to all the elements of the case, and 9 that's completely different than the situation of

10 a BAC hearing. 11 Q. And also the BAC hearing, it even goes 12 beyond most civil cases -- not only does what 13 I'm getting at is for you to explain the concept 14 of the implied consent on your driver's license. 15 A. Well, the State of Idaho has never 16 ruled that a driver's license is a property 17 right; they believe that it's still a privilege. 18 When you agree to get a driver's 19 license, you also agree that that license will be 20 sunendered if you don't meet all the conditions, 21 and one of those conditions is that you agree to 22 submit to evidentiary testing when asked by a 23 police officer. 24 This makes it a lot tougher in a BAC 25 hearing because you have to prove that you did


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your part to comply with the agreement that you 1 doesn't help you earn good faith in the eyes of made to the State ofIdaho when you got your 2 the Prosecutor in the sense that why would they driver's license. So that's a heavy burden to 3 be more willing, as opposed to less willing, to overcome that has to be overcome in a BAC 4 work with you in a future plea negotiations? hearing. 5 Furthermore, Mountain Home only has two

Q. And is it correct to say that it's 6 Magistrates -- unlike Boise that has six -- or I almost a presumption against the Defendant if 7 don't know how many they have now -- but the they refuse, that they have refused wrongfully? 8 Magistrates are in complete control of the

A. Oh, certainly. I mean, that's the 9 hearing, and they really get irritated quickly if heavy presumption there. 10 you bring something like this kind of hearing

There would be that law enforcement 11 without any kind of basis. It just seems like officer there that would testify as to all the 12 you're just wasting their time, and they really reasons that he had for requiring you to take 13 don't like it. that breathalyzer exam. 14 Q. And Magistrate Judges are human beings,

Q. Not that he has to -- it's already 15 too, when it comes time for sentencing. If you assumed that you have to submit to that; correct? 16 have a client that has been suspended seven times

A. Right. 17 and has actually fairly egregious facts like Q. Okay. I'm just trying to draw a 18 this, what has your experience been with how

picture here. 19 Judges treat them at sentencing? On a continuum of the burden of proof 20 I want you to go into the issue of the

that a Defendant has in a criminal case, 21 Defendant's failure to take responsibility. versus -- which is nothing -- versus in a BAC 22 A. Well, like the Idaho Supreme Court has hearing, they are almost on opposite -- would you 23 held many times, the Magistrates have a vast

25 the spectmm? . 25 and they rarely overturn a sentence as being agree that they are almost on opposite ends of 124 amount of discretion when it comes to sentencing,

Page 304

1 individual with an incredible history of driver's 2 license suspensions and other problems, and it 3 would also come out in sentencing that he blew --4 I believe it was a .17 or .18 the year before, 5 which is -- it's lot of alcohol for a 17 -year-old. 6 \\Then the facts of this case and the 7 situation would come out, the Prosecutor usually 8 would call Mr. Bergh to testify about how 9 intoxicated Mr. Varela appeared.

10 If the Judge finds all this out and 11 then realized that this is the same person that 12 tried to establish in a BAC hearing that the 13 officer had no grounds to give him a breathalyzer 14 test, I think that would be quite aggravating and 15 could really exacerbate the situation. 16 Q. And as a practicing Climinal defense 17 attorney, that's a tactical consideration that 18 you arrive at after reading the discovery? 19 A. Absolutely. The Judge isn't going to 20 get -- I mean, obviously, the Judge understands 21 ethical duties. He understands you have to fight 22 the case, especially when a lot of times you are 23 a Public Defender or whatever, and you have to 24 fight the case to the best of your ability on the

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Mr. Egusquiza? A. Yes. Q. And that was filed in 2003? A. I believe so.

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Q. And that was dismissed without any further court proceeding at the pretrial conference?

A. Yes. Q. Tell the Bar Commission how that

occurred in front of Judge Neville when that happened.

A. Well, I discussed it somewhat yesterday; just that once Judge Neville -- just very informally -- of course, the status conferences are very informal.

I had a printout from the DMV that showed that at the time that this was filed, the vehicle that I was being sued for as being taken was already owned and was for sale by a used car dealership on the Nampa-Caldwell Boulevard over by Nampa.

I don't think that Judge Neville was very amused by the situation, and he suggested to Counsel that it summarily be dismissed.

ANCE) Was that done? Page 307

1 is not in the context of a BAC hearing. A. Yes. 2 Q. Particularly, a frivolous BAC hearing? 2 Q. How long after that period was that 3 A. Correct. 3 done? 4 Q. I'm handing you what has been marked as 4 A. I don't recall. I just dropped it and 5 Respondents Exhibit O. I would like to give a 5 walked away. 6 copy of this to the Bar Commission. 6 Q. You didn't ask for attorney fees or 7 MR. CLIFFORD: Thank you. 7 anything like that? 8 CHAIRMAN WHITNEY: Okay. 8 A. No. 9 MR. PURVIANCE: I guess I needed 9 Q. \Vby did you not ask for attorney fees?

10 another copy of that. 10 A. You know, that's a good question. 11 MS. EDWARDS: That's fine. 11 I guess the overall situation was that, 12 CHAIRMAN WHITNEY: That's okay. No, 12 you know -- it's hard to admit, I guess, but I 13 wait. I haven't seen that before. 13 was just intimidated by them -- and particularly 14 Mr. Purviance, do you have a copy of 14 Mr. Egusquiza -- and, I mean, it would have been 15 Respondents O? 15 something probably relatively easy to get, but I 16 MR. PURVIANCE: Yes. 16 was happier just to walk away and just forget 17 MR. ANDREWS: I have no objection to 17 about it. 18 its admission. 18 Q. Was that an attempt to appease him? 19 CHAIRMAN WHITNEY: Okay. Respondents 19 A. Well, I was hoping it would be. 20 will be admitted without objection. 20 Q. And that was after several year-s of 21 MR. PURVIANCE: Can you give another 21 almost relentless attacks against your credibility 22 copy to the Commission -- or the attorney, maybe? 22 both in and out of the courthouse? 23 THE WITNESS: You bet. 23 A. Well, it was just all, you know, the 24 Q. (BY MR. PURVIANCE) Jay, is that a 24 same sort of stuff, but--25 copy of the lawsuit that was filed against you by 25 Q. When you were accused of stealing a


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vehicle without any foundation, how did that make 1 was the original of Respondents O? you feel? 2 MR. PTJRVIANCE: Yes. 2

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MR. ANDREWS: I'll object to the fonn 3

of the question. 4

CHAIRMAN \VHITNEY: I am going to give that to Mr. Clark so it ends up with the Clerk at

CHAIRMAN VlHITNEY: Sustained. 5

Q. (BY MR. PuRVIANCE) What did that do tt 6

you emotionally when you got sued wrongfully like I 7

the end of the day. Mr. Purviance, you can restate your

question regarding Exhibit 76 if you want.

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that? I 8

MR. ANDREWS: I'll object to the form j 9

of the question. 10

Q. (BY MR. PURVIANCE) When you wrote that Affidavit, you already suspected that, you know, Mitch was up to his usual tricks; right?

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CHAIRMAN WHITNEY; It's sustained for 11

couple of reasons -- we've plowed this ground, 112 and its borderline relevance. 13

Q. (BY MR. PURVIANCE) So when you fout 4

out that the case was being taken over by Mitch, 15

did you think about that differently than you 16

normally would have had another attorney taken 17

over? 18

A. Well, for all the reasons that I have 19

spoken about. You know, there's the potential 20

for what just happened -- what has happened. 21

So, yes. 22

Q. SO you were quite aware that, one way 23

or another, that something bad was going to 24

? 25

MR. ANDREWS: Object to the fonn of the question.

CHAIRMAN WHITNEY: Sustained. Q. (BY MR. PURVIANCE) What was your

thinking when you prepared that Affidavit? A. Well, I certainly wasn't trying to hann

anybody, but there has to be some defense to an action taken by somebody to destroy somebody else's career -- and, you know, ifhe would have signed it, maybe it would have been maybe helpful.

Everything is true and, you know, I was just desperate to find some way to "stop the bleeding," to stop this situation.

Q. And you were trying to clear your name

Page 309 Page 311

A. I always hope that it doesn't, but yes. things? 2 Q. And when it comes to dealing with 2 A. Well, yes, it would have been helpful. 3 Mitch Egusquiza, something generally does? 3 You know, I mean, it would have been 4 A. Well, it's been -- 4 more direct than writing editorials to the 5 MR. ANDREWS: I'll object to the fonn 5 newspaper and so forth. 6 of the question. 6 Q. You didn't do that, though, did you? 7 CHAIR11AN WHITNEY: Sustained. 7 A. No. This would be hopefully more 8 Q. (BY MR. PURVIANCE) So when you wrotf 8 useful. 9 this Affidavit, what were you trying to -- what I 9 Q. And that was your purpose, then, was to

10 was your actual objective on that? 10 clear your name? 11 A. Well, it was -- 11 A. Certainly. 12 CHAIRl\1AN WHITNEY: Let me interrupt 12 Q. What would happen to an attorney if 13 you, Mr. Clark. 13 they advised a client that they could go to 14 Mr. Purviance, are you talking about 14 Oregon and get a new driver's license? 15 Exhibit 76? 15 A. Well, it seems to be illegal. It's 16 MR. PURVIANCE: Yes. 16 fraud, at a minimum, and it seems like that would 17 CHAIR11AN WHITNEY: And when you sa ,17 be good grounds for disciplinary problems --18 "this Affidavit," you're talking about the last 18 issues, definitely. 19 two pages of Exhibit 76? 19 Q. Not only would that be illegal, it 20 MR. PURVIANCE: Yes. 20 would be dishonest? 21 CHAIR11AN WHITNEY: Okay. Thank you 21 A. Incredibly dishonest. 22 Do you have those, Mr. Clark? 22 Q. And yet, the paperwork that was 23 THE WITNESS: Yes, I do. Thank you. 23 prepared by Mitch Egusquiza's office charged you 24 CHAIRMAN WHITNEY: Now, I'm going to 24 with that? 25 let you answer in a second, but this one here 25 A. Yes, it did.


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MR. ANDREWS: Object to the form of the question.

CHAIR..:M.:A.1-.J WRITNEY: Sustained. Q. (BY MR. PURVIANCE) Vv'here did you

the idea that this was what Mr. Varela was saying about you?

A. Well, at the time I read it or heard it somewhere in the documents, and I was responding to that.

Q. Okay. And those documents were prepared by who?

A. Well, I had reason to believe that they were prepared by Mr. Egusquiza and his staff.

Q. Okay. And you heard Mr. Varela's testimony yesterday that he knew that he could come to your office and get the reimbursement for the retainer, but he just chose not to?

A. Yes. Q. Yet, in his Bar Complaint he said that

you refused to return it. A. There was no refusal. Q. Okay. So that was a false statement

that was made to the Bar? A. Correct. Q And the part about advising him that he

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ethical violation? A. Yes. Q. As far as the immunity that the Idaho

. State Bar has dUling a grievance preceding, does that cover ex-clients going around town telling falsehoods about you?

A. No. MR. ANDREWS: Object to the form. The

rule speaks for itself. CHAIRMAN WHITNEY: Mr. Purviance, it

sounds like you're asking him to comment on the legal effect of the rules -- which you can certainly do in your Closing Argument -- but at this point, as to Mr. Clark, I will sustain that objection.

Q. (BY MR. PURVIANCE) Okay. Mr. Varela went to at least one attorney with these allegations?

A. Yes, apparently. Q. That was outside of the Bar glievance

that was filed? A. In that sense, yes. Q. And was that part of the reason why you

prepared this Affidavit? A Well, yes I mean, I can llnderstand if

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could go to Oregon and get a new driver's license a previous client has issues about my 2 was a false statement that was made to the Bar? 2 representation that he feels was inadequate --3 A. Correct. 3 I can understand in a typical situation with the 4 Q. And had his contention that you -- a 4 Bar that he goes to the Bar and makes those 5 request for an ALS -- paragraph 2, that a request 5 statements and so forth, and that's something to 6 needed to be filed with the Department of 6 be addressed, but this went way beyond that. 7 Transportation was a falsehood? 7 Q. Okay. More of the same? 8 A. Yes, but at least I could see how he 8 A. Yes. g could be confused by that because he knew one had 9 MR. ANDREWS: Object to the fOllU.

10 been sent -- had been sent, a letter sent, but to 10 CHAIRMAN WHITNEY: Sustained. The 11 say that "they needed to be filed there" implied 11 "Yes" is stricken. 12 that I didn't know what was the correct procedure 12 Q. (BY MR. PURVIANCE) In your dealings 13 and that was, of course, false. 13 with Mr. Egusquiza's office, what was it like 14 Q. And that was a falsehood that was sent 14 transferring the files back and forth and trying 15 to the Idaho State Bar? 15 to deal with the hand-over of this case to his 16 A. That's correct. 16 office? 17 MR. ANDREWS: Object to the form. 17 A. Well, unfortunately, there wasn't any 18 CHAIRMAN WHITNEY: Sustained. 18 communication there after a client would transfer 19 Q. (BY MR. PURVIANCE) And paragraph No. 519 to another attorney for whatever reason. 20 was also a statement that was made to the Idaho 20 I was always concerned about that 21 State Bar. What were you trying to do with that? 21 because that seems like that's a critical time 22 A. I don't remember the details of -- 22 for the attorney to transfer all their thoughts 23 I was just trying to make it clear that I never 23 and impressions, their work product. 24 told him to be dishonest. 124 A lot of -- at that point, you know, an 25 Q. Okay. And that would be a very serious 25 attorney may have a lot of critical ideas about a


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case that most often aren't 'written in the notes or written in the file and, unfortunately, all that gets lost if the subsequent attorney just

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doesn't call or communicate. 4

That's where, you know, the lack of 5

professionalism is damaging to the clients 6

because, of course, the clients suffer when that 7

kind of atmosphere is created. j 8 MR. PURVIANCE: I have no further 9

questions. 10

CHAIRMAN WHITNEY: Recross, Mr. Andrews. 11

MR. ANDREWS: Yes. I'll try to go in 12

reverse order. 13

RECROSS-EXAMINATION QUESTIONS BY MR. MTDREWS:

Q. I think it's clear to say that you didn't trust Mr. Egusquiza at the time that he transitioned or substituted in to represent l\1r. Varela; correct?

A. Well, at any time; correct. Q. Did you just hand your file over to

Mitch Egusquiza without retaining copies of everything?

Page 317

if they asked my office, they may have just given it to him, yes.

Q. Given this acrimonious background, you would just hand over your file -- including, I think, according to your testimony, a Fee Agreement to Mr. Egusquiza without retaining copies?

A. Well, in hindsight that seems foolish, but at the time I hadn't had this particular trouble with Mr. Egusquiza.

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A. It looks like date of delivery on the next page is August 29th, 2005.

Q. Yes. A. And so September 2nd. Q. And so September 2nd, Exhibit 73, is

that the first time you offered him a refund? A. That's the first time I wrote to him

and offered him a refund. Q. But you had rejected the refund before

that, had you not? A. No. I say in my July 22nd letter --

I said, "Please explain the misgivings Mateo has, and please explain why he would be entitled to a refund of a non-refundable fee when he chose to pay for another attorney on his own. "

I didn't -- it's a little different than saying, "No, no"; just "Please tell me why, and let's talk about it, It and I never received a response to that.

Q. Do you understand why he didn't want to talk to you about it at the time?

A. Well, this letter was written to Mitch, Mr. Egusquiza, and I was asking Mr. Egusquiza to please explain.

return of unearned fees without a request, did you?

A. Well, because the position was that, as the contract says, that the initial $500 is earned upon receipt. It's not returned.

Q. Did you send that contract with that letter?

A. No. I probably should have said, "Please refer to the contract that's in the

Page 319

file," and that would have been a perfect time for him to look at that contract in the file or Q. But before this case, you had had

trouble with Mr. Egusquiza? 12 tell me, "Hey, I don't have a contract in the A. Yes. 13 file that says it's a nonrefundable fee," and

14 Q. You never offered to provide any unused 14 then I would say, "Okay. Well, maybe there is a 15 retainer or unearned retainer to Mr. Varela until 15 misunderstanding," and maybe that's a great time 16 he filed a Bar Complaint; is that cOlTect? 16 to resolve the issue. 17 A. No, that's not correct. 17 Q. I apologize if! asked this before, but 18 Q. The Bar Complaint was filed on 18 is it your practice when a lawyer substitutes in 19 August 15th. wilen did you offer Mr. Varela a 19 to provide the new lawyer with your Fee Agreement? 20 refund before August 15th of2005? 20 A. Well, there's not a separate file; 21 A. Well, the Bar received Mr. Varela's 21 there's usually just one folder or one file. 22 Complaint fonn August 15th, but-- 22 Q. Is it your practice to not look at the 23 Q. And you received it on -- if you look 23 file and just provide everything to the substituting 24 at Exhibit 72 -- sometime after August 26,2005; 24 lawyer, including your Fee Agreement? 25 correct? Exhibit 72. I'm sorry. 25 A. On misdemeanor cases, that happened

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1 many, many times, yes. 1

2 Q. Do you understand that the same ethical 2

3 duties would attach to a license suspension 3

4 hearing \vhen somebody takes the breathalyzer 4

5 and fails it? 5

6 A. That same ethical -- 6

7 Q. The same ethical duties that you 7

8 discussed that apply to a refusal hearing would 8

9 apply to a BAC when somebody takes the blood 9

10 alcohol exam and challenges that with the 10

11 Department of Transportation? 11

12 A. No, it's completely different. 12

13 Q. Why is it completely different? 13

14 A. Because it's an informal review on the 14

15 telephone. A lot of times, there's not any 15

16 witnesses. 16

17 You can ask the person if they can just 17

18 look at these documents to see if there's a 18

19 reason for the suspension at all. 19

20 There's not a lot -- a lot of times 20

21 there isn't sworn testimony. 21

22 It is certainly not in front of the 22

23 Court or in front of a Judge. It's just 23

24 100 percent different. 24

Page 321

1 administrative license suspension hearing; 1

2 correct? 2

3 A. Yes, there can be. 3

4 Q. At the option of either party; correct? 4

5 A. Yes. 5

6 Q. And when there's testimony and when 6

7 there's any argument made, it's made before a 7

8 Hearing Officer appointed by the Department of 8

9 TranspOltation; correct? 9

10 A. Yes. It's just over the phone. It's 10

11 just a telephone hearing. 11

12 Q. Don't you have the same ethical 12

13 obligations to a Hearing Officer in an 13

14 administrative proceeding that you have with a 14

15 Magistrate Judge in a refusal? 15

16 A. Well, the same ethical rules are there, 16

17 they exist, they don't change. 17

18 Q. Yes. You have the same duty to tell 18

19 the truth to both parties; correct? 19

20 A. Yes. 20

21 Q. In those cases -- and when I say, 21

22 "those cases," I'm talking about where a person 22

23 takes the breathalyzer test and challenges the 23

Page 322

in your experience, that the majority -- if not the overwhelming majOlity of those cases -- are people that are alTested in their vehicle --stopped in their vehicle and arrested following driving?

A. Oh, certainly. Q. Okay. And you said that in 90 percent

ofthose cases, you send a request for a suspension hearing to the Department of Transportation; correct?

A. That's not what I said. What I said that 90 percent of all DUI

cases involve an ALS, but I said that in 100 percent of Dur cases we sent out off that form.

Q. You send that out. And I think you testified that it's a "stop gap"?

A. It's a standard protocol. Q. It's a standard protocol, and I think

you testified it's a "stop gap." Ifthe person that submits a request

for a Department of Transportation hearing has no defense whatsoever, what do you do?

A. There's a fundamental difference between sending --

Page 323

over -- I'll give you the circumstance. They're pulled over by the police. They say to the police, "I have been drinking. I'm driving this car." I failed the field sobriety test. I go and take the breathalyzer exam, and it's over the limit?

A. Well, you still have other issues in that particular situation -- other issues that were not present in Mateo Varela's case because most of the time you still get to look to see if the officer had reasonable suspicion to stop the vehicle, to begin with.

Q. Let's back up one second. The person is weaving on video in front of the cop and says, "I'm weaving because I'm intoxicated and I'm driving my vehicle." What do you do?

A. Well, you still have the Constitutional analysis. I mean --

Q. Is the Constitutional analysis not available in a refusal hearing?

A. Oh, certainly, it is. Most of the time -- that's what is confusing to a lot of people in this case. Most of the time --

24 suspenslOn. 24 Q. You have answered my question. 25 In those cases, is it accurate to say, 25 A. Okay.

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Q. Why did you file -- you didn't file a request for a refusal hearing as a "stop gap" in }'1r. Varela's case; correct?

A. Because it wasn't-Q. Just--A. Yes. Q. And could you have withdrawn a refusal

request? If you filed a request for a refusal hearing and you concluded that you had no defense, could you have withdrawn that?

A. No. I mean, in the sense that that motion stays in the file. The Judge --

Q. But you don't have to have it heard? A. No, but you can't pull it back out of

the Court's file. Q. And you can't pull the Department of

Transportation's back --A. They throw it away if it's not --Q. If it's in the file, but you don't

proceed, how does that prejudice your client? A. The informal officer that hears an

ALS case does not --Q. In a refusal. If you file a motion of

refusal hearing on June 6th with the Elmore

Page 325

don't have basis, and you just -- you file a pleading with the Court saying, "We withdraw our motion, and we will not proceed to hearing," is that viable?

A. Except you wasted the client's money. I mean, there's motions that have to be

prepared, and it still violates Rule 3.1 because you filed a civil suit without a factual basis, and there's not the same rule for sending off a form letter. The rules don't apply to the form letter like they do filing a lawsuit.

Q. You don't consider that you have an obligation under 3.1 and 3.3 in submissions to the Department of Transportation?

A. Sending a fOID1 letter is completely different than filing a lawsuit.

Q. SO you don't believe that those two rules apply equally to the Department of Transportation?

A. If I was going to file a lawsuit with the Department of Transportation, it would apply eqUally.

MR. ANDREWS: I have nothing fuliher. CHAIRMAN WHITNEY: Any redirect,

Mr. Purviance?

MR. PURVIANCE: I just have one 2 question. 3

4 REDIRECT EXAlv1INA TION 5 QUESTIONS BY MR. PURVIANCE: 6 Q. I want you to talk a little bit about

Page 326

7 what, in fact, often happens at an ALS hearing. 8 Have you ever asked the ALS officer 9 that you just want him to review the police

10 officer's Affidavit and then generate an opinion 11 where it was obvious that the police officer had 12 probable cause? 13 A. Right. That's something that happens 14 quite a bit, too, is if -- and sometimes I do 15 this -- because the critical element usually in a 16 DUI case of whether the Constitutionality of the 17 Fourth Amendment, whether that applies, that 18 whole analysis occurs before the officer 19 generally even talks to the person. 20 Usually, you know, whether they have 21 the Constitutionality to stop the person to begin 22 with is usually 90 percent of the Motions to 23 Suppress, the Motion To Dismiss, the BAC hearings, 24 all those issues -- that is the issue, the

Page 327

1 Sometimes I even ask the officer, 2 "Officer" -- and, in fact, this happens a lot --3 I say, "Can you review these Police Reports and 4 see if you can find -- or I would like to hear 5 your opinion of whether there was the 6 Constitutionality -- whether that burden was met 7 by the police officer." 8 There's no testimony on the phone, and 9 it's just a phone call. He already has the

10 documents, and he reviews those. 11 It doesn't cost anything in the sense 12 that he sends out an opinion then in a couple of 13 weeks, and it's an interesting analysis of what 14 he believes is the Constitutionality of the 15 officers and before they stopped that vehicle. 16 Then it's something I may use in the 17 Motion to Suppress later as some background, 18 some -- he will site some cases, and there may be 19 something of probative value there. 20 Q. And contrary to that is that ALS 21 Heming Officers say, "Hey I don't think the cop 22 had probable cause here"? 23 A. Sometimes they do. Of course, most of 24 the time they think the officer has probable 25 cause.


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Q. That's true, but sometimes they start 11 1 out the conversation by saying, "I already have 2

got my mind made up. There was no probable caus 3

here"? 4

A. Yes. They're kind of experts at 5

reading Police RepOlts, and they go through it I 6

fairly quickly and decide based on the Police I 7

Report. I 8 Q. Okay. Contraly-wise, like I stated, I 9

several times a BAC hearing is a lawsuit -- 1

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A. Correct. 11

Q. -- where the Prosecuting Attorney has i 12

to present live testimony sworn under oath to the 1 13

Judge -- 14

A. Con-ect. 15

Q. -- and has to Subpoena them for that? 16

A. Correct. 17

Q. And possibly Subpoena lay witnesses, 18

which would have been done here; correct? 19

A. Correct. 20

Q. In fact, there may have been several 21

lay witnesses that would have had to come to 22

comi for this? 23

A. Correct. 24

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Page 330

exchange for the plea? THE WITNESS: Well, that could have

happened. Usually, our best grounds for getting a DUI negotiated, though, is after we've had a chance to file a Motion To Dismiss the DUI with the -- or the Motion to Suppress Evidence -- just as :Mr. Egusquiza did. I imagine that's also why Mr. Egusquiza didn't immediately try to negotiate that.

He also tried to attack the criminal case to see if there was any grounds procedurally or Constitutionally to attack the criminal case, and he felt that that was our best chance to get a satisfactory plea agreement.

By the way, if you look at the Notice of Suspension form, he still had a temporary license until June 28th. That's part of that form, where his license wasn't suspended technically until June 28th. So his license never got suspended until after I was the attorney in the case.

MS. EDWARDS: So if the best chance to negotiate was after filing a Motion to Suppress, why didn't you do that?

Page 331

1 officers? that I would have liked to have had a chance to 2 A. Correct. 2 do. It is usually not something done immediately. 3 Q. iJI at County and City expense? 3 Once you file it, you have to give --4 A. Correct. Yes. 4 you have to file it in 14 days, give the other 5 Q. SO that really is the difference 5 party 14 days for a hearing, get a hearing date 6 between a BAC hearing and an ALS hearing? 6 set, and usually it takes at least 30 days to get 7 A. Yes. 7 a healing for a Motion to Suppress-- I mean, 8 MR. PURVIANCE: Thank you. 8 that would be very quick. 9 CHAIR11AN \VHITNEY: Recross, 9 \Ve're lucky -- in Elmore County the

10 Mr. Andrews? 10 dockets aren't too buried like here in Ada County, 11 MR. ANDREWS: I have nothing flllther. 11 but it can take three, four, six months to get a 12 CHAIRMAN WHITNEY: I have got a few 12 Motion to Suppress hearing date. 13 questions, but before we do those, let's -- do 13 MS. EDWARDS: But I think my question 14 you have any questions? 14 was why didn't you file one then during his 15 MS. EDWARDS: I do. I just have a 15 possibly loss of employment and your 16 question. 16 understanding of that and the time that it takes 17 I think you testified yesterday that 17 to get the hearing -- and that's your best 18 on June 6th or possibly the 3rd you told 18 impression -- but why didn't you go ahead and 19 Mr. Varela that he didn't have any grounds for 19 file one? 20 this hearing, and you understood from him that 20 THE WITNESS: You're asking on that 21 getting his license back was his primruy 21 date, June 6th or --22 objective and he might lose his job ifhe didn't 22 MS. EDWARDS: Or at any time before 23 get it back. 23 you didn't represent him--24 Why didn't you then call the Prosecuting 24 THE WITNESS: In those following two 25 Attorney and try to get the license back in 25 weeks -- you know, ideally, if you're looking at


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what was absolutely the very best thing I could 1

have done, that might have been, yes, the very 2

best thing. 3

Do 90 percent of criminal defense 4

attorneys do that in the first couple of weeks of 5

a case? No. 6

MS. EDWARDS: Okay -- and why not? 7

Just because you don't get to it? Is there some 8

reason or it just -- it kind of gets in a list of I 9

cases, and you get to it as you can do it? 10

THE WITNESS: Usually, it takes -- 11

you have to spend a couple of weeks acquiring 12

information and data, and maybe I wanted to talk 13

to a police officer or talk to Ronny Bergh or, 14

you know, and usually I guess that's why. 15

To see in a criminal case an attorney 16

file a Motion to Suppress before the first month 17

or a few weeks of a case would be incredibly 18

unusuaL 19

MS. EDWARDS: Thank you. , 20

CHAIRJv1AN WHITNEY: Do you have any 21

questions? 22

MR. CLIFFORD: I just have one. 23

On Exhibit 36, on the first page, I 24

just have a point I yuanted to clear lJp 25

Page 333

You said, "In the following week Mr. Varela came into my office and I said I would talk to Phil Miller about it, the Prosecutor," but I guess my question is you never did actually talk to Phil Miller about it?

THE VlITNESS: I never -- I don't remember if I actually talked to him or not, but I know that we weren't able to have a -- I don't remember why, but we never engaged in the actual plea negotiations at that time.

I can't remember for sure if I talked to him or not, but that would have been -- you know, we communicated frequently.

I never had a problem talking to Mr. Miller. He was always velY available by phone, and I was available to him by phone, and we talked all the time.

MR. CLIFFORD: It could have been? THE WITNESS: Yes.

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CHAIRMAN WHITNEY: Mr. Clark, do you 20

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Page 334

THE WITNESS: Yes. CHAIRIviA.N WHITNEY: Where it says,

"Dictated by Mr. Clark and mailed without signature in his absence to avoid delay," that was applied by use of a rubber stamp; correct?

THE WITNESS: Yes.

CHAIRMAN WHITNEY: Do you remember when you obtained that rubber stamp for your office?

THE WITNESS: Well, I probably had it the whole time, but it's always an issue of whether it would be consistently applied or not.

CHAIRMAN WHITNEY: Well, you're anticipating my question because -- my next question, rather.

Do you have Exhibit 86 in front of you? THE WITNESS: Yes. CHAIRMAN WHITNEY: Now, I understood

your testimony in response to Mr. Andrews' questions to be that you could not confirm whether you actually applied the signature to exhibit -- the original of Exhibit 86. Do I have that right?

THE WITNESS: Right, because it -oftentimes, the staff had authority to sign or scribble my name, although it would have been

Page 335

more appropriate to use the stamp that you just referred to -- it would be more appropriate.

CHAIRMAN \VHITNEY: Well, you said, "Staff had the authority to scribble my name." You mean, though, you gave your staff authority to sign letters on your behalf?

THE WITNESS: Yes, and even sign checks. CHAIRMA...1\J WlIITNEY: Did you train them

to replicate your signature? THE WITNESS: Well, I think they both-

J oni and Erin, they both did that. Whether they took any training -- it's just kind of a scribble, so --

CHAIRMAN WHITNEY: Well, do you have 73 in front you? Do you have Exhibit 73?

THE WITNESS: Yes. To answer your question, I have seen Ms. Rembert -- who will testify here this morning -- I have seen her sign some of my checks -- I have seen me sign it -and, I'm sony, I couldn't tell the difference a lot of times.

22 THE WITNESS: Yes. 22 I mean, the point would always be, 23 CHAIRMAN WHITNEY: It appears it's 23 did I give her the authority? I have never had 24 stamped that -- the stamp that was used on the 24 an instance where that they did something on a 25 original of that letter; right? 25 check or signed something that I hadn't given

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Page 336 Page 338

them authority to. that appear on Exhibits 73 and, 74, and 86? 1

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CHAIRMAN Vv1UTNEY: But you have got Exhibit 73 in front of you?

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THE WITNESS: I hope they would appear similar.

THE WITNESS: Yes. 4

CHAJRMAN Wl1ITNEY: And that one, you 5

actually recall signing your signature on 6

CHAIRlviAN \VHITNEY: You don't have a whole different signature where you write out in legible letters, "Jay P. Clark"?

Exhibit 73; is that right? THE WITNESS: I probably did. I mean,

ifit wasn't a -- yes, I probably signed that.

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CHAIRMAN \VHITNEY: I thought you told 10

Mr. l'\ndrews in response to one of his questions 11

THE WITNESS: No. It's just a scribble. CHAIRMAN WHITNEY: It's always a

scribble like this? THE \VITNESS: I mean, not exactly, but

it's just a scribble. It's not really legible. 10

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that you signed that letter, Exhibit 73. THE WITNESS: Yes. Okay. CHAIRMAN \VHITNEY: Well, did you? THE WITNESS: I believe so. I mean,

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CHAIRMAN Vvl1ITNEY: So getting back to the stamp, the rubber stamp appears in

I Exhibit 75; right?

THE WITNESS: Right. I don't have an independent recollection of actually signing that, but it seems like the kind ofletter that I would -- you know, it seems like 118

CHAIRMAN \vlIITNEY: And you had that stamp in your office before you ever met Mr. Mateo (sic); right?

it was something I was doing right then and 1 19

signed it. 20

THE \VITNESS: Maybe for seven or eight years.

Page 3371 I

CHAIRMAN Wl1ITNEY: How about 74? Do 21

you have Exhibit 74 in front of you? 122 THE \VITNESS: Yes. I 23

CHAIRMAN WHITNEY: And did you actuaU14

sign the original of Exhibit 74? ! 25

CHAIRMAN WHITNEY: I may have misstated -- Mr. Varela.

Did you train your staff when to use the rubber stamp that'S, "Dictated by Mr. Clark and mailed without signature in his absence to

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THE WIThTESS: It's the same thing. I I 1 avoid delay," versus when to apply your signature 2 don't have an independent recollection, but I 2 on a form? 3 probably did. 3 THE WITNESS: Well, I mean, I explained 4 CHAIRMAN WHITNEY: Do you have the 4 to them that there's no -- the easier thing is to 5 ability to recognize your signature for other 5 use the stamp. It's a commonly recognized mode 6 legal documents? 6 of operation in a lot ofthe offices, that it's 7 THE WITh'ESS: Like I said, when Erin 7 better to do that. 8 and I -- you know, Erin and I sign stuff, and I 8 During this time -- well, between '97 9 don't necessarily -- I can't really tell the 9 and 2005 or 2006 I probably had 40 different

10 difference. I can't really tell whether she 10 office personnel. 11 signed it or I signed stuff. 11 You know, it would be probably more 12 CHAIRMAN WHITN'EY: Have you ever signe 12 professional to always use the stamp, but what 13 a Deed for a piece of real property in your life? 13 I explained -- you know, as you know, as long as 14 THE WIThTESS: Oh, yes. 14 I gave them the authority to sign my name on a 15 CHAIRMAN WHITh'EY: If we were to find I 15 particular document, then they would have the 16 that, does your signature looked like Exhibits 16 authority either way.

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17 73,74, and 86? 17 CHAIRMAN WHITNEY: How long would you 18 THE WIThTESS: Well, yes, except my 18 have a staff person in your office? Overthe 19 signature isn't -- I don't have one of those 19 40-some that you had, how long would you have the 20 signatures that stay the same -- but these were 20 person in your office before you took that staff 21 letters that I authorized to send out from my 21 member aside and said, "You have the authority to 22 office. 22 sign something"? 23 CHAIRMAN WHITh'EY: So if we found a 23 THE WITNESS: Well, I don't -- I mean, 24 Deed to real property that you had signed, would 24 Ms. Rembert worked for me for over five years --25 the signature on that look like the signatures 25 almost five years, I think:, and it didn't take


Page 340 Page 342

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too long before she became Office Manager, but 1

wasn't ever a set time or a period oftime 2

because every person was so different in their 3

abilities and their ability to understand 4

documents, interpret them, and work, you know -- 5

particularly if there was a huge difference 6

between a form letter and a letter that was 7

factually rich. 8

CHAIRMAN WHITNEY: But looking at 9

Exhibit 86, we -- do you still have 86 in front 10

of you? 11

THE WITNESS: I'll flip to it. Yes. 12

CHAIRMAN WHITNEY: If we look at the 13

initials at the bottom of that letter, it says 14

"]PC: jrv." 15

THE WITNESS: \\There? 16

CHAIRMAN WHITNEY: Right below the 17

CHAIRMAN \Jv1{ITNEY: But it would not have been with your specific authority on that check?

THE W1TNESS: Probably not. CHAIRM.W WHITNEY: You said, in

response to Mr. Andrews questions about Exhibit 76, your letter -- and it's the third page 0 f that letter -- not the one that -- the first page has the numbered list, the second page has the continued numbered list, and the third page has the signature.

You said, in response to one of Mr. Andrews' questions, a comment about the truth of the case. Do you remember that testimony that I'm asking you about, knowing the truth of the case?

THE WITNESS: Yes.

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signature. 18

THE WITNESS: Oh, yes. CHAIRlv1AN WHITNEY: So that was not

Ms. Rembert who typed that letter?

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CHAIRMAN WHITNEY: Did you believe-when you wrote this letter, Exhibit 76, did you believe you knew the truth about what happened to Mateo Varela on the night he was arrested?

THE WITNESS: No. She didn't work 22

there at the time. 23

CHAIRMAN \VHITNEY: And "JRV" was 24

that -- who wa:i> that? ' 125

THE \\llTNESS: Well, I knew what the evidence was that was available, and there has never been any other evidence to contradict that, in that sense, the tmtb That's tbe evidence

Page 341 Page 343

1 THE WITNESS: Just like on the cover 2 sheet for that letter, "Joni R. Vann." 3 CHAlRMAN 'WHITNEY: And she was 4 specifically authorized to sign letters for you? 5 THE WITNESS: Yes, I -- you know, I had 6 authorized her to send out this form letter on 7 every DUI case. S CHAIRM.W \VHITNEY: But was she

that we would have available to us in a case. It 2 wasn't what .MI. Mateo Varela had said. 3 CHAIRMAN WHITNEY: So when you wrote 4 this letter, Exhibit 76, you believed you knew 5 the truth to the extent that the truth, as you 6 understood it, was not what.MI. Varela had said? 7 THE WITNESS: Correct. 8 CHAIRMAN WHITNEY: Is that right?

authorized to sign letters for you other than a 9 THE WITNESS: Yes. 9

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fonn letter? 10 CHAIRMA..~ WHITNEY: And how did you know THE WITNESS: No. I mean, it would 11

have to be -- she would have to get specific 12

authority. 13

CHAlRMAN WHITNEY: So if we look back 14

to Exhibits 74 and 73 --let's stmi with 73 first. 73 is not what you have described as a fonn letter, is it?

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THE WITNESS: No. 18

CHAIRMAN WHITNEY: But the same JRV - 19

that's "Joni R. Vann"; right? THE WITNESS: I'm sorry. You're

looking at 74? CHAIRMAN WHITNEY: 73. So the same

Joni Vann typed that letter; correct?

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that? THE WITNESS: Based on all of the

evidence provided by the State of Idaho through the Prosecutor's office in the case.

The truth -- like I said, and the truth, in a sense, is that is the evidence that was available in the case.

CHAIRMAN WHITNEY: But you would agree, wouldn't you, that lawyers never really know the truth of the factual events in which they work precipiently?

THE REPORTER: Excuse me. r can barely hear you.

CHAIRMAN WHITNEY: I'm sorry. THE WITNESS: Correct. 25 You would agree that lawyers never


Page 344

1 really know the truth of the factual occurrences 2 to which they work percipiently? 2

3 THE WITNESS: Well, in that sense, I 3

4 believe you're talking about absolute truth, but 4

5 not truth in the sense of who would prevail in a 5

6 proceeding. I see those as two different things. i 6 I

7 CHAIRMAN WHITNEY: Do you believe thai 7

8 what Mr. Varela told you in your office on : 8

9 May 31st, 2005, could be true at the same time 9

10 that the officer's Police Report could be true? 10

11 THE WITNESS: Are you asking me, is it 11

12 theoretically possible that the statements 112

13 Mr. Varela made to me on May 31 st are true, and 13

14 everything that I discovered in the case also 14

15 were to be true? 15

16 CHAIRMAN WHITNEY: Yes. 16

17 THE WITNESS: No. Impossible. 17

18 CHAIRMAN WHITNEY: Okay. How so? 18

19 THE WITNESS: Because he stated he 19

20 wasn't driving to me, and he stated to the police 20

21 officers that he had been driving and drinking. 21

22 CHAIRMAN WHITNEY: Anything else? 22

23 THE WITNESS: Well, I would have to 23

24 refer back to my notes and to the Police Report 24

25 to really go through all the discrepancies 345

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2 discrepancy? 2

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4 THE WITNESS: Okay. 4

5 CHAIRMAN WHITNEY: Your notes are in 5

6 here, and I think they're -- 6

7 MR. ANDREWS: 44. 7

8 CHAIRMAN WHITNEY: -~ 44. And you haT 8

9 got Exhibit 44 in front of you, don't you? 9

10 THE WITNESS: Correct -- I should 1

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11 rephrase that. 111 12 You're asking me to find discrepancies 112

13 relevant to his case; right? There's a lot of 13

14 other discrepancies that probably wouldn't be 14

15 relevant to whether or not he would be able to 15

16 prevail at a BAC hearing, and there's also other 16

17 facts that would be relevant to whether or not 17

Page 346

you also testified about the absolute truth, and you explained the distinction between those two.

I'm asking you how come you cannot, as a lawyer, reconcile Mateo Varela's version of the facts with the officer's version of the facts in a way that every person is telling the truth?

THE WITNESS: Well, in reviewing these notes here again, there's really just the one critical fact and that is that he said to me that he had not driven a motor vehicle that night.

If you go to the Police Report, it says Mateo -- at the bottom of the first page it says, "Mateo then admitted in his own words he had been drinking and that he drove home."

MR. ANDREWS: I don't mean to interrupt but could you read the next --

MS. EDWARDS: Vlhich exhibit again? MR. ANDREWS: Could you read the next

thing after he said --MS. EDWARDS: I'm sorry. Which exhibit

are you reading from? MR. ANDREWS: Exhibit 40, page -- it's

page 2 of the Mountain Home Police Department Incident Report. It's about the fourth page from the top

Page 347

MS. EDWARDS: '\!hat paragraph? MR. ANDREWS: The first paragraph. I

don't mean to interrupt, but he said, "Take me. I drank and I drove home." I would just like him to read the next two sentences.

CHAIRMAN WHITNEY: You know, to be honest, I still don't know where the reading is coming from.

MR. ANDREWS: Exhibit 40. CHAIRMAN WHITNEY: I have got the

Police Report. I just don't find the page. MR. ANDREWS: At the bottom it says,

"page 2" in very small print. MS. EDWARDS: Right here.

(Indicating. ) CHAIRMAN WHITNEY: Great. Thanks. MR. ANDREWS: He stopped reading

18 the State could show beyond a reasonable doubt \ 18 with -- and this will just save a question later, 19 whether or not he was guilty of what he had been 19 but I would like you to read the next tV/O

20 charged. 20 sentences, too. 21 Maybe I should ask you again what 21 CHAIRMAN WHITNEY: Is everyone on the 22 you're asking. 22 same page? We're on the Police Rep0l1 that is 23 CHAIRMAN WHITNEY: Thank you. I'm n01· 23 page 2 of Exhibit 40. 24 asking you for that. 24 Let me just read the statement by the 25 You testified about the truth, and then 25 police officer. Are you there, Mr. Clark?


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THE WITNESS: Yes. 2 CHAIRMAN Vv1llTNEY: "\Vhen he said 3 he turned around and put his hands behind his 4 back and stated, 'Take me. I drank and drove 5 home.' Mateo, however, did not admit to driving 6 Mr. Bergh's vehicle. I then informed Mateo that 7 he was under arrest for under age drinking." 8 Did I read that right? 9 THE WITNESS: Yes.

10 CHAIRMAN WHITNEY: And is it that one 11 statement that made you think that Mateo had lied 12 to the 0 fficer? 13 THE Vv1TNESS: That event and the four 14 or five sentences there where he said repeatedly 15 that -- not only that he drove here to the 16 police, but that he told me that he wasn't 17 driving. 18 Also, if you look at just what he told 19 me on the 31 st, he couldn't have known that 20 anyway because he told me he had blacked out. So 21 he wouldn't know if he had driven or not. He 22 wouldn't be able to even refute his own 23 testimony, his own statement. 24 CHAIRMAN WHITNEY: So he told you he

Page 349

THE WITNESS: Yes. 2 CHAIRMAN WHITNEY: -- on May 31 st, 3 2005, and then you read the officer's report 4 where Mateo made an incriminating statement to 5 the officer --6 THE WITNES S: Yes. 7 CHAIRMAN \VHITNEY: -- and, based on 8 those two things, you concluded that Mateo was 9 lying to you?

10 THE WITNESS: Well, yes. I mean, 11 because -- even though he said he blacked out, he 12 tried to make statements about what had happened 13 or not happened. 14 How could he testify on some of these 15 other details had he really blacked out -- or 16 either had never completely blacked out all the 17 time he did or he was just trying to fill in the 18 gaps with other things that he didn't remember. 19 But the most important thing -- really 20 at issue is the relevant fact for the Judge to

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Page 350

THE WITNESS: Okay. I thought you were asking how I came to the conclusion that he lied to me, period, not on May 31 st, 2005.

CHAIRMAN \\'HITNEY: And that was a prior question, but right now --

THE WITNESS: Okay. CHAIRMAN VlHITNEY: -- I'm focusing on

he told you, "I wasn't driving," and then you said -- you read in the Police Report where he made an incriminating statement. Then you also said, "He told me details, but he also told me he had blacked out. If

THE WITNESS: I'm sorry. I thought you were still asking about ultimately how did I determine that he wasn't being truthful in his response.

CHAIRMAN \VHITNEY: We'll come back to that.

I just want to focus on the statement that he gave you on May 31st, 2005. At some point forward, you determined he was not being truthful to you?

THE WITNESS: Okay. I misspoke, then. I really had no reason to come to the conclusion

I just assumed that he was. I thought you were asking about

ultimately. CHAIRl.1AN WHITNEY: Oh, no.

Page 351

Now we are having a miscommunication because I don't mean that you formed the opinion he was not being truthful on May 31st.

I'm talking about you formed the opinion that his May 31st, 2005, statement to you was false.

THE WITNESS: Okay. CHAIRl.1AN WHITNEY: You later formed

that conclusion; right? THE WITNESS: Right. CHAIRMAN WHITNEY: And you still

believe it; right? THE WITNESS: In five-and-a-halfyears,

there still has not been any evidence to suggest that this police officer lied when he said, "Mateo told me was driving. If

CHAIRMAN WHITNEY: But you know that sometimes police officers do lie; right?

THE WITNESS: Sure. Absolutely. CHAIRMAN \VHITNEY: And that could have

25 May 31st, 2005? (208)345-9611

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25 happened in this case; right? M & M COURT REPORTING (208)345-8800 (fax)

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THE \VITNESS: Always, it's theoretically 11 possible. 2

CHAIRMAN \VHITNEY: Now, Mateo -- yoy 3

were in the room here when he testified I 4

yesterday; right? I 5

THE \\r1TNESS: Yes. I 6

CHAIRMAN \VHITNEY: And you heard hirh 7

explain that he spoke to other friends and family 8

members about the evening in question before he 9

came to your office; right? 10

THE \VITNESS: Oh, yes. 11 CHAIRMAN \VHITNEY: So that would 12

explain why he would know details that occUlTed 13

while he was blacked out; is that correct? 14

THE WITNESS: Oh, that's true, yes. 15

CHAIRMAN \VHITNEY: Mr. Clark, isn't it 16

true that he could have made these statements to 17

the officer while he was blacked out and simply 18

not been accurate when he told the officer that 19

he drove? 20

THE WITNESS: It actually would appear 21

the opposite -- that it was a lot more likely he 22

was actually telling the truth to the officer and 23

later unable to remember that. 24

Page 353

Page 354

Mateo Varela could not have that case decided by the Judge at a BAC refusal hearing.

THE WITNESS: Well, he could. I mean, are you asking now whether theoretically he could have the hearing? He could have the hearing.

CHAIRMAN \VHITNEY: And you didn't file the request for one; is that correct?

THE \VITNESS: That's correct. CHAIRMAN \VHITNEY: And he told you he

wanted a hearing? THE WITNESS: Yes, that's COlTect. CHAIRMAN \VHITNEY: Okay. I don't have

any other questions. MS. EDWARDS: I'm sony. Ijust have a

couple more. I notice on your statement there's one

entry for a call from your client on June 21 st, but I don't see any other entries about meetings, or calls, or anything with Mr. Varela.

What was the procedure you used for deciding what entries got on the billing statement in terms of conversation with the client?

THE WITNESS: Well, what I would do is

Page 355

1 there's evidence to in good faith file a case 1 entries if I thought about them, and I would give 2 based on the evidence I had at that time, I mean, 2 the little notebook to -- at that time it would 3 do we really want attorneys out there filing 3 have been Bobbie Jean Jones, and she would --4 lawsuits when this is the evidence that we have, 4 Bobbie Jean would put all the entries into the 5 that there is no way we could prevail in court? 5 computer. 6 CHAIRMAN \VHITNEY: But that's not my 6 You know, fortunately for my clients, 7 question. 7 a lot of stuff got done that they never got 8 The question is, do you admit that 8 charged for. 9 Mr. Varela could have been truthful in telling 9 MS. EDWARDS: So you gave us the --

10 you, "I did not drive a motor vehicle," and see 10 or in the exhibits or the notes that you made of 11 that Mr. Varela could have been inaccurate 11 your initial intake meeting with Mr. Varela, but 12 because of his blacked out state when he admitted 12 these other notes in your notebook, I mean, did 13 to the officer that he drove? 13 you make those when you talked to him on the 14 THE \VITNESS: That would be possible, 14 phone? 15 but who is going to be there to present that 15 THE WITNESS: Well, if! wanted him to 16 evidence, that theoretical evidence? 16 be billed for those, I would have to write those 17 I mean, how would that ever get 17 down and the assistant there would have to put 18 presented in court in a way that it could be 18 those entries in the computer. 19 admissible evidence? 19 MS. ED\V ARDS: And were those notes 20 CHAIRMAN \VHITNEY: Well, Mr. Clark, mr20 anything more than that you talked to him, or 21 question wasn't designed to ask you to ask me a 121 were they substantive notes like your other notes 22 question. '22 were? 23 THE \VITNESS: I'm sorry. 23 THE WITNESS: No. That would just be a 24 CHAIRMAN \VHITNEY: My question was 24 little -- who it was and what it was that I did, 25 designed to get you to tell us why it is that 25 just the information they would need to make that


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entry in the computer. 1

MS. EDWARDS: So did you have any 2 Mateo could have won is if somebody had documented it with -- say, video the entire

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practice of making notes during phone 3

conversations like of what you told the client, 4

scene, something just completely unexpected and unforeseen and unbeknownst to anybody there.

what advice you gave them, things like, "No, you 5 Q. 'What I'm getting at is, you knew 6 don't have any grounds for this hearing," or you 6 Mr. Bergh?

just did that verbally and that would be it? 7 A. Yes. 7

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THE WITNESS: Well, a lot of times, 8

yes, there would be notes taken. 9

Q. And you have known him for a long time? A. Well, I knew his parents for a long

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MS. EDWARDS: Did you take them with 10

Mr. Varela? 11

time, but I knew Ronny Bergh and because they're fanners.

THE WITNESS: You know, I could have. 12

I really don't know. 13

Q. And you knew Mr. Bergh as a person that was truthful?

They may not have been taken ifI 14

didn't feel it would it be something that I 15

would not remember. You know, ifit was 16

something I knew I was going to remember or if 17

it was something that I didn't need -- some vital 18

fact that I would have needed for a subsequent 19

hearing. 20

MS. EDWARDS: Okay. 21

CHAlRMAN WllTNEY: Any more questions MR. CLIFFORD: No. CHAlRMAN WllTNEY: So, Mr. Purviance,

A. Well, absolutely, he was seen as a very credible witness.

Q. And in your experience of being a criminal defense attorney, it's usually the lay witnesses that are the most credible?

A. Well, yes. I mean, his statement is extremely detailed. He itemized the time to the minute of everything that happened.

Like I say, still -- in a criminal case I still would proceed with something as a desperate attempt to do something, but it cannot

Page 357 Page 359

1 upon questions from the Committee? 2 MR. PURVIANCE: I do, in light of some 3 ofthe questions here. 4

5 REDIRECT EXAMINATION 6 QUESTIONS BY MR. PURVIANCE: 7 Q. Is it ethical to file a frivolous 8 lawsuit as leverage in another case? 9 A. No.

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the motion with this kind of evidence out there. Q. But I'm just saying, as far as you're

thinking that led to your conclusion that Mr. Varela was lying to you, it was not just based on the officer's testimony; it was also based on the statement of that lay witness?

A. Yes. Those were included with the Police Reports.

Q. Okay. As a practical matter, 10 Q. A.nd there was a question about filing a 10 Mr. Varela's statement to you that he was blacked 11 Motion to Suppress. That usually involves a 11 out when all of this happened -- and that's what 12 traffic stop or seizure? 12 he told you --13 A. Yes. 13 A. Right. 14 Q. There was no traffic stop here? 14 Q. -- versus what he told the police 15 A. Correct. 15 officers, there's a conflict there; right? 16 Q .. A.nd,aspartofyourthinkingwhenyou 16 A. Yes. 17 concluded that Mr. Varela was lying to you, you 17 Q. As a practical matter in a BAC hearing, 18 didn't just have the officer's written statements? 18 can you put your client on the stand to testify 19 A. That's correct. The State in a BAC 19 that he was blacked out; therefore, he doesn't 20 hearing could have prevailed even if the officers 20 remember whether he told the cops that he was 21 would have been lying. 21 driving? 22 Q. And that is based on an independent 22 A. Well, no, because he wouldn't be --23 lay witness? 23 like I said, he wouldn't be able to refute his 24 A. Yes. There was such an overwhelming 24 own testimony, but even --25 flood of evidence that really the only way that 25 Q. Particularly, based on the fact that he


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Page 360 I I had told you that he was blacked out \,,'hen he madF 1

those statements? I 2

A. Correct. Even Mr. Egusquiza would I 3

agree you wouldn't put your client on the stand 4

in a BAC hearing because it would be highly II 5 prejudicial in the DUI case. 6

Q. Especially if he took the stand and I 7

testified that he was so drunk, he was blacked I 8

out when he made the statements? i 9

A. Well, obviously, there would be no way 10

at all then to win the DUI case. 11

MR. PURVIANCE: Thank you. 12

CHAIRMAN WHITNEY: Mr. Andrews? 13

MR. ANDREWS: A couple of questions. 14 15

RECROSS-EXAMINATION 16


Q. Did you ever interview Ronny Bergh? 18

A. No. 19

Q. Did you interview any of the witnesses 20

that you received -- any of the witnesses that 21

you received in the discovery and did you talk to 22

the officer? 23

A. I'm thinking that I did actually talk 24

to Michelle Reynold, who was involved, bllt that 125

was another person that I had known for -- well, 2 I have known her family for a long time. She was 2

3 the person that drove around looking for the 3

4 vehicle. 4

5 Q. Did she see Mr. Varela driving the 5

6 vehicle? 6

wasn't there, ofMr. Varela? A. An arrest, yes. Q. He was arrested? A. Correct.

Page 362

Q. And then I'm a little -- unfortunately, I'm still not clear about Exhibit 86.

I understood you said yesterday it was signed by Joni Vann without your authOlization.

A. Well, no. I mean, it was a form letter sent out. She was authOlized to send out a completed form letter.

Q. Was she specifically authorized to send this letter?

A. Yes. I mean, in the sense that that was the standard protocol, and that was within the authority she would have been granted under the standard protocol of the office.

Q. SO she had the authority to sign letters requesting a hearing on behalf of your clients?

A. She had the authority -- on this particular form letter, she had authority.

Q. And I know in Exhibit 76 there's an inference, at least to me, that you said it was sent before Jane 6th, 2006

Page 363

Is there any -- do you have any basis to believe that a letter that was dated June 6th of 2006 was sent any time before June 6, 2006?

A. No. Q. And is there some reason that you

didn't tell her not to send this letter because 7 A. I don't believe so. 7 this was a refusal case? 8 Let me back up. The most important 8 A. I don't know. I don't recall. 9 people I talked to, besides Mateo Varela, too, 9 Q. Do you have e-mail? Are you connected

10 were his parents. I did discuss the case, at 10 bye-mail to your staff? 11 least a little bit, with his parents. 11 A. Not at the time, probably not, no. 12 Q. Okay. This is a follow-up of one of 12 I mean, it was just -- it was very difficult to 13 Ms. Edwards' questions. 13 train staff and, like I said, it was a "stop gap." 14 I'll represent to you that in response 14 Anything that would not be in the 15 to the Request For Production when we asked for 15 slightest way prejudicial to the client, better 16 your file that your original notes were a part of 16 to have a standard procedure to send out these 17 that file, but that there are no other notes of 17 letters in every DUI case. 18 any interviews with any witnesses or any notes 18 MR. ANDREWS: That's all I have. 19 regarding conversations with Mr. Varela or anyon 19 MS. EDWARDS: I'm sony. Ijust have 20 else. I 20 one more question. 21 A. Yes. Not that I know of. 21 On the Notice of Suspension, which is 22 Q. In response to one ofMr. Purviance's 22 part of Exhibit 47, at the end -- well, about 23 questions, you said there -- you were talking 23 two-thirds of the way through that -- it doesn't 24 about a stop. 24 have any identifying numbers or anything --25 There was a seizure in this case, 25 after the witness' statements that were provided


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to the police, and then there is the Notice of Suspension. 2

THE WITNESS: I think it's the last 3

and they told him, "No." Are you saying that the information they gave him was wTong or he misunderstood it in some way?

page before Exhibit 48. 4

MS. EDWARDS: No, it's not. It's 5

before the Affidavit of Refusal. 6

THE WITNESS: I'm sorry. Did you say 7

the Notice of Suspension sheet? 8

MS. EDWARDS: Oh, I guess it is in here 9

a couple of times. It is the last page before 10

848, also, another copy of it. 11

My question is, you said his license 12

wasn't -- was still good until June 28th, so 13

THE WITNESS: No, but I think --I thought that that could have been for a number of reasons. I think he had another suspension pending at the time.

Going back to these -- the printout in the Police Report that says, "Suspended February 10,2004, until November 15th, 2005, for failure to maintain insurance; and then another suspension that began July 27th, 2004, that also was to last until November 15th, 2005.

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where -- and that this Notice of Suspension would 14 MS. EDWARDS: And that was because he tell him that. Where do you find that? Where 15

does it show that? 16

THE WITNESS: Below the second block 17

line it says in all caps it says, "Notice of 18

Suspension," and then it says, "If you have 19

failed the evidentiary test, your driving 20

privileges are hereby suspended." 21

No.5: "30 days from the date of 22

service." The date of service was May 28th, 23

2005. 24

didn't have insurance? THE WITNESS: Apparently. MS. EDWARDS: Okay. Thank you. MR. ANDREWS: I have a follow-up

question to that.

RECROSS-EXAMINATION QUESTIONS BY MR. ANDREWS:

Q. You were here when Mateo testified that he had his license as of the date of the arrest,

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Page 365 Page 367

1 for No.5. I misspoke. A. That he--2 If you go above that, No.4 says, "If 2 Q. He had his license -- he had a valid 3 you refuse to take or complete any of the offered 3 driver's license on May 28th, 2005? 4 tests, pursuant to Section 18-8002 Idaho Code --" 4 A. Okay. 5 and it talks about seizing his driver's license -- 5 Q. He testified to that. Do you have any 6 H __ you will be issued a Temporary Permit." 6 reason to dispute that? 7 MS. EDWARDS: Where is that? I'm sorry. 7 A. Dispute his testimony? 8 THE WITNESS: 4A. 8 Q. Correct. 9 MS. EDWARDS: Okay. So then where is 9 A. Well, just based on what I just read.

10 the Temporary Pemlit because down at the bottom 10 Q. Well, those were for failure to 11 it says, "Permit issued: No," and they checked 11 maintain insurance; and he testified that as soon 12 the box "No." 12 as you paid your insurance, you were reinstated? 13 THE WITNESS: That is correct, and 13 A. Well, but that -- it says -- I'm just 14 that's because he didn't have a license in his 14 reading that report that says --IS possessIOn. 15 Q. I understand what you're reading, but 16 Normally, if you have the license in 16 did you have that discussion with him the week of 17 your possession, they will take the license and 17 June 6th? Did you tell him that he didn't have 18 give you this as a substitute license. 18 to worry; he could drive? 19 I know that part is confusing because 19 A. No. No, I didn't. 20 the document then isn't a temporary license, but 20 Q. Because you didn't think he could drive 21 it says in the Notice that his actual privileges 21 as of June 6th consistent with what he was told 22 would be suspended in 30 days. 22 by the Department of Transportation? 23 MS. EDWARDS: Now, I think he testified 23 A. No. I went over this form. 24 that he called the Department of Transportation 24 Q. You told him that he could drive? 25 on June 6th and asked ifhis license was valid, 25 A. Well, if the suspension advisory says


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that he will be suspended an additional suspension -- if he wasn't already suspended, it would be suspended again effective June 28th, 2005.

Q. He was reinstated 3/0212005, so --A. Okay. Q. -- he had a valid driver's license. A. Apparently. We never know--Q. Did you advise him to drive after

June 6th? A. No. We hardly ever know for sure,

I mean, if somebody is --Q. SO err on the side of precaution, given

the vagaries of the check marks here --A. Well, no, not --Q. -- and it is wise not to drive? A. Well, no, in the sense that I wasn't

aware of what other suspensions he would have. Q. I appreciate that, but did you talk to

him about them? A. I don't have a specific recollection of

what I talked to him about, but with every DUI client, we talk to them about the suspension advisory and go through it to make sure that

Page 369

Q. He was confused about it, though, wasn't he? You heard the testimony. If it was crystal clear to him on June 3rd, why is he

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calling the Depmtment of Transportation and then 4

returning to your office later that week and 5

asking about his privileges? A. Well, I do recall his testimony, but

I don't recall that he was crystal clear about anything.

Q. Okay. And you didn't help him become crystal clear about anything with respect to his dliving privileges?

A. No. I'm saying he didn't testifY very clearly about anything yesterday, but I celtainly would have read to him this form.

MR. ANDREWS: Okay. I don't have anything further.

CHAIRMAN WHITNEY: Mr. Purviance,

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Page 370

they have dIiving privileges? A. Well, yes. It would be really hard to

know because it could depend on a lot of things out of my control -- whether or not he maintained insurance and so forth.

Q. And actually, usually when you get a Driving Without Privileges case with a full write-up from the Department of TranspOltation, that's the only way that you can be sure whether a person like this has driving privileges?

A. Right. That's correct. Q. The driving packet from the Department

of Transportation is much more detailed than this teletype driving record just from Idaho?

A. Yes, that's correct. Q. And oftentimes the driving record that

comes from the Department of Transportation has out-of-state suspensions?

A. Right. Absolutely. Q. And the type of suspension that he was

looking at -- or the type of suspension that he claims he was reinstated on -- were financial responsibility laws; cOlTect?

A. Correct.

Page 371

month-to-month, do they not? A. Right. He could even be suspended for

child support or any number of things. Q. But the actual last two suspensions in

that printout --A. Oh, yes. Q. -- he was reinstated on March 22nd, but

by May 28th, he could have indeed been suspended again?

A. Or by April 22nd he could have been suspended again.

Q. Okay. But when you're carrying SR22 insurance, you have to keep the Department of TranspOltation informed at all times?

A. Correct. Q. COlTect? A. Right.

MR. PURVIANCE: Thank you. 19 redirect? 19 CHAIRl\1AN \VHITNEY: Mr. Andrews, 20 1 20 recross-examination? 21 REDIRECT EXAMINATION 21

22 QUESTIONS BY MR. PURVIANCE: 22 RECROSS-EXA\1INATION 23 Q. In light ofthat question, when a 23 QUESTIONS BY MR. ANDREWS: 24 person has the kind of suspension history that 124 Q. There's no record of any of these 25 Mr. Varela has, it's often really unclear whether 25 suspensions, other than what was provided to you


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small detail. 1

Let me just ask a couple of questions, 2

and then you can each ask questions, and then 3

we'll get this sorted out. Okay? 4

Mr. Clark, you have got Exhibit 47 in 5

front of you? 5

THE WITNESS: Yes. 7

CHAIRMAN WHITNEY: I want you to page 8

down 1,2,3,4,5,6,7,8,9,10,11,12 -- 9

on the 12th page of Exhibit 47. 10

THE WITNESS: Yes. 11

CHAIRMAN WHITNEY: That's the printout 12

of the driving record for Mr. Varela; right? 13

THE WITNESS: From the NCIS, yes. 14

CHAlRMAN \VHITNEY: The NCIS -- 15

Page 374

THE WITh'ESS: Oh, okay. Yes. CHAIRMAN \VHIThTEY: That means -- you

have seen these before; right? THE WITh'ESS: Oh, many, many times. CHAIRMAN WHITNEY: Jillions of them;

right? THE WITNESS: Well, quite a few, yes. CHAIRMAN WHIThTEY: Okay. The guy was

valid on May 28th, 2005, because it says, "Valid"; right?

THE WIThTESS: Correct. CHAIRMAN WHITNEY: Now, Mr. Andrews is

asking about the suspensions. Go down to the very last line of

suspensions. It says, "/SUSP/7-27-2004 until 11115/2005." Do you see that?

THE WITh'ESS: Correct. CHAIRMAN WHITNEY: Failed to maintain

insurance; correct? THE WITNESS: Yes. CHAIR..\1AN WHITNEY: But you keep reading

on that same line and it says, "Full SR22 03-02-2005"; right?

THE WITNESS: Yes. CHAIRMAN WHTTNFY So be was sllspended,

Page 375

but that suspension was cleared by his SR22 on March 2nd; right?

THE WITNESS: Yes. CHAIRMAN WHITNEY: So he was valid when

he was arrested on May 25th, 2005. THE WITNESS: Yes. Well, according to

the State ofIdaho. CHAIRJv1AN WHITNEY: According to the

State ofIdaho. We don't know anything about other states -- that doesn't show up; right?

THE WITNESS: Right. CHAIRMAN WHITNEY: Do you have any

other questions, Mr. Andrews? MR. ANDREWS: No. CHAIRMAN WHITNEY: Mr. Purviance, any

15 THE WITNESS: Or the NCIC. I'm sorry. 15 other questions? 17 CHAIRMAN WHITNEY: The NCIC -- and t~ 17 18 date is 5/28/2005? 18 REDIRECT EXAMINATION 19 THE WITNESS: Correct. 19 QUESTIONS BY MR. PURVIANCE: 20 CHAIRMAN VVlIITNEY: That's when he was 20 Q. Given this record, would you tell a 21 arrested; right? 21 person that he has privileges to drive, even 22 THE WITNESS: Correct. 22 though on here it says, "Valid"? Given the 23 CHAIRMAN WHITNEY: Go down to the 23 recurring suspensions, would you put yourself at 24 middle third -- one-third down the page. There's 24 risk by telling this person unequivocally that 25 an "* * OPR status/valid." Do you see that? I 25 they had privileges to drive, given this record?


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Page 3751 I

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A. As an attorney, I wasn't paid to give him that opinion. 2

CHAIR,\1..A,N VvlIITNEY: It's 11 :30. Let's be back at 1145.

If I was going to give him that 3 (Recess taken.) opinion, I would have had to do a lot of research 4

and really dig into how long did he pay for the 5

CHAIRMA,~ \VHITNEY: Weare back on the record in Idaho State Bar versus J.P. Clark.

SR22 insurance. Was it really on a month-to-month 6 It's 11 :54, and we're still on Mr. Clark's Case basis, you know, as a lot of times it is? Was it 7 in Chief. good until April 2nd, May 2nd, June 2nd? The 8 Mr. Purviance, do you have any other last time he paid March 2nd. 9 witnesses you want to call?

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The Idaho Department of Transportation 10

has a better record, and we could have asked for 11

MR. PURVIA,~CE: Chris Melgaard. (Chris Melgaard sworn.)

the complete record ifhe really wanted me to 12

give him -- to render him a legal opinion on 13

CHAIRMAN WHITNEY: Thank you. Sir, if you would, just state your name for the record

that. 14 and spell you your last name. Q. Yes. That's my question. Thank you. 15

CHAIRMAN WHITNEY: Okay. Mr. Clark, 16

MR. PURVIANCE: Spell your fIrst and last name, please.

you can step down. Thank you. 17 THE WITNESS: C-h-r-i-s. M-e-l-g-a-a-r-d. MR. CLIFFORD: Can I have one quick 18

question? 19

CHAIRMAN WlIITNEY: Yes. Sorry. '20 MR. CLIFFORD: On Exhibit 76, when you 21

get about the fifth page back when you get to 22

your billing statement -- 23

CHRIS MELGAARD, first duly sworn to tell the truth relating to said cause, deposes and says:

DIRECT EXAMINATION QUESTIONS BY MR. ANDREWS:

THE WITNESS: Yes. 24 Q. Mr. Melgaard, what is your occupation?

Page 377 Page 379

1 bit confused. At the page before, we have a agent, I'm a photographer, and I do 2 check dated June 5th for $218.75, and on June 5th 2 investigations -- I'm an investigator. 3 you didn't balance that, but 16 days later it 3 Q. And you have been employed to do an 4 balances to that amount after the check was 4 investigation in this case? 5 written. 5 A. Yes, I have. 6 THE VvITNESS: Yes. I don't know why 6 Q. Would you turn to the Mountain Home 7 the office person that wrote that check felt that 7 Police Depmtment Incident Report that is 8 it should have been backdated. 8 attached to Exhibit 46, I believe -- 47 --9 I don't think it mattered at all, and I 9 I'm sony.

10 think the check should have had the date whenever 10 A. I'm there. 11 it was printed. Obviously it wasn't printed on 11 Q. And you have read that report? 12 June 5th. 12 A. Yes. 13 So for record keeping purposes, it is 13 Q. And as part of your investigation in 14 better to keep track for whatever date it is, but 14 this case, did you actually go to the three 15 they must have felt -- I would have to speculate 15 addresses that are mentioned in that Police 16 it would be cleaner or neater for their record. 16 Report? I think there's an 1102 Maple, there is 17 She's going to be here, and she can testify to 17 a 610 McMurtry, and one other one I'm not 18 that. 18 seemg --19 MR. CLIFFORD: Thank you. 19 A. 1200 Elm. 20 CHAIRMAN WHITNEY: Mr. Purviance, an 20 Q. 1200 Elm. 21 questions on Mr. Clifford's questions? 21 A. Yes. 22 MR. PURVIANCE: No. 22 Q. Have you visited those sites? 23 CHAIRMAN WHITNEY: Mr. Andrews, an 1 23 A. Yes. 24 questions on Mr. Clifford's questions? 24 Q. And as palt of your visit there, did 25 MR. ANDREWS: No. 25 you measure the amount of time and distance


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Page 380 Page 382

1 between each of those addresses? 2 A. Yes. 3 Q. Starting out with 610 McMurtry, where 4 in Mountain Home is that located? 5 A. I guess it -- I would say it is in the 6 center, but it's kind of towards the west. 7 Q. Okay. And it's your understanding from 8 the Police Report and from your investigation 9 that that's where the party was that --

10 A. That's correct. 11 Q. That Mr. Varela was at when he took 12 Mr. Bergh's car? 13 A. Correct. 14 Q. How far from there to the spot where 15 the Police Report mentions Mr. Bergh's vehicle 16 was found? 17 A. Approximately 1200 Elm. That would be 18 1. 75 miles, according to odometer. 19 Q. And how long did that take you to 20 drive? 21 A. Five minutes. 22 Q. And when you went from McMurtry to Elm, 23 did you also go by the police station? 24 A. No, I didn't, but I'm aware that

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Now, Maple goes straight up, and all it does is tum into Elm. So they're adj acent comers -- to my surprise.

Q. And as an estimate, how far apart would these two houses be?

A. I paced it off at 150 feet, you know, from the comer --

Q. Go ahead. I'm sony. A. From the comer of 1102 Elm, which

would probably be the closest place where they were standing, to the middle of 1210 -- I'm sorry -- from the comer of 1102 Maple to about the center of the yard on 1210 Elm.

Q. That was about 150 feet? A. Yes. Q. And you went out there at night? A. Yes. Q. And from either the Maple address or

the Elm address, were both the houses visible at night?

A. Yes. I was also there in the day, too. Q. Okay. But at night? A. Yes. Q. Because this arrest took place in the

?

Page 381 Page 383

Q. Of -- 1 A. Yes. I stood there, and I was kind of 2 A. -- Elm going down -- I believe it's 2 like -- there's all kinds of view here. I can 3 Third Northeast. 3 see all the way to the other end of Elm, which is 4 Q. And how far from the police station is 4 two blocks away, because there just aren't any 5 Elm Street? 5 trees there. 6 A. I didn't actually measure that, but I 6 Q. The Police Report -- and I'm not sure 7 would say it's 2,000 feet. 7 where it says that, but it basically says that 8 Q. Okay. Is it even a city block? 8 the two addresses are a couple of blocks apart. 9 A. I'm not sure what a block is, but 9 A. Yes. There's two blocks, and then some

10 probably two blocks. 10 testimony of one or two blocks, and then more 11 Q. Two blocks. And did you measure the 11 than one block as I recall. 12 amount of time it took you to get from the Police 12 Q. And your fmding was that both of those 13 Department to Elm Street? 13 estimates are inaccurate? 14 A. Actually, I didn't. 14 A. Yes. 15 Q. What would you guess would be the 15 Q. They're much closer than one block? 16 distance -- or the amount of time it would take 16 A. Oh, yes. It's across the street. 17 to drive from one to the other? 17 Q. And, in your opinion, if you were on 18 A. 20,30 seconds. 18 1102 Maple Drive and you were looking over to the 19 Q. All right. And as far as the Elm 19 Elm Street address, would a vehicle have been 20 Street address that's listed in the report, how 20 clearly visible from there? 21 far is it from 1102? 21 A. Yes. 22 A. Maple Street? Well, Maple is -- 22 Q. Okay. Even at night? 23 1 102 Maple Street is on the southwest comer of 23 A. Even at night. 24 Maple and 12th, and at the 121011200 location is 24 Q. SO a person who was in the middle of 25 actually on the nOliheast comer of 12th and Elm. 25 the yard on Maple Street would not have been a


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very credible witness to say that they didn't 1

know how that truck got there? 2

MR. A..1\,TDREWS: Object to the fonn. 3

Q. (BY MR. PlJRVIANCE) In other words -- 4

let me rephrase that. I'm sorry. 5

If you're standing at the Elm Street or 6

the Maple Street address and you're looking over 7

to the Elm Street where the Police Report states 8

that this vehicle was found, you would be 9

virtually looking across the street at that 10

vehicle? 11

i\. Yes. 12

Q. It's not a block or two away, like the report says?

A. No.

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MR. PlJR VIANCE: Okay. I have no 1 16

further questions. )17 CHAIRMAN WHITNEY: Cross, Mr. Andrews 18

19

CROSS-EXAMINATION 20


Q. Is the Police Report inaccurate? 22

A. I have no idea. 23

Q. When Mr. Bergh said that his truck was 24 ?

Page

1 A. Well, I think: we're comparing two

Page 386

SIT.

MR. PURV1ANCE: We've got another difficult name for the Court Reporter -- it's Erin Rembert.

CHAIRMAN WHITNEY: Come right around here and be sworn.

(Erin Rembert sworn.) CHAIRMAN WHITNEY: Go ahead and have

a seat. You may be asked to refer to some

exhibits. These are the original exhibits here, so you can look at them, but make sure you leave them when you're done.

THE WITNESS: Okay. CHAIRMAN W1UTNEY: Just state your name

for the record and spell your last name. THE WITNESS: My name is Erin Rembert.

E-r-i-n, R-e-m-b-e-r-t. MR. PURVIANCE: I think you had better

spell "Erin," too. THE WITNESS: E-r-i-n. CHAIRMAN WHITNEY: Go ahead,

Mr. Purviance.

Page 387

first duly sworn to tell the truth relating to 2 pieces of evidence. It doesn't match the other 3 one. I can't say whether -- if he says the truck 4 is "a quarter a mile away," but I heard "a block 5 away," you know, that's what he says.

2 said cause, deposes and says: 3 DIRECT EXAMINATION 4 QUESTIONS BY MR. PURVIANCE: 5 Q. Where do you currently reside?

6 The address in the Police Report says 6 A. Cheyenne, Wyoming. 7 it's right across the street. 7 Q. And what do you do there? 8 MR. ANDREWS: I have nothing further. 8 A. Currently, I stay home with my 9 CHAIRMAN WHITNEY: Redirect 9 children.

10 .Mi. Purviance? 10 Q. And when did you move to Cheyenne? 11 MR. PURVIANCE: No. 11 A. The end of June - beginning of July of 12 CHAIRMAN WHITNEY: You may step dow .12 this year. 13 MS. EDWARDS: I do have one question. 113 Q. And you went from Mountain Home to 14 CHAIRMAN WHITNEY: Oh, I'm sorry. 14 Cheyenne because your husband is stationed with 15 MS. EDWARDS: Did you do your 15 the United States Air Force? 16 investigation at the time that Mr. Clark was 16 A. That's correct. 17 representing Mateo, or did you do it just for 17 Q. And in 2005 were you residing in 18 this Bar hearing? 18 Mountain Home? 19 THE WITNESS: Just for this Bar hearing. 19 A. I moved to Mountain Home in Aplil of 20 MS. EDWARDS: Thank you. 20 2005. 21 CHAIRMAN WHITNEY: Any questions? 21 Q. All right. And was your husband 22 MR. CLIFFORD: No. 22 stationed at Mountain Home Air Force Base? 23 MR. PURVIANCE: That's all I have for 23 A. Yes, he was. 24 this witness. 24 Q. What's his position? 25 CHAIRMAN \\JHITNEY: You can step down, 25 A. He is a Master Sergeant Elect, and he's


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an Explosive Ordinance Disposal Tecfuiician. A. Karen Bonecher. 2 Q. That sounds kind of dangerous. 2 Q. And so any entry into a Quick Books 3 A. A little bit. 3 application would have been done by her --4 Q. He's a decorated veteran? 4 A. Yes. 5 A. He is. 5 Q. -- before the period of May 31st until 6 Q. He has won two bronze stars? 6 2007 is your testimony? 7 A. He has. 7 A. Well, in 2006 I -- on May 31st, 2005, 8 Q. Okay. And how long has he been in the 8 I did not work for Jay. 9 Air Force? 9 Q. When did you leave there?

10 A. About 13-and-a-halfyears. 10 A. When did I leave --11 Q. All right. In ApIil of 2005, what was 11 Q. Jay Clark's office. 12 your position? 12 A. June 2010. 13 A. I left Phoenix -- I worked for the 13 Q. Okay. I'm sorry. I misunderstood. 14 Arizona Heart Institute as a cardiovascular 14 And as part of your duties, you did the 15 technician. When we moved here, I left that 15 intakes on say, for instance, DUI cases? 16 position. 16 A. Yes. 17 My oldest son was just a year when we 17 Q. And as part of your duties on those, 18 got here, and so I was horne with him for a few 18 did you routinely send out an ALS letter on 19 months while we got settled. 19 those? 20 Then I started looking for ajob in the 20 A. We did. 21 late SUlllilier of2005. 21 Q. Automatically? 22 Q. All right. And when you found the 22 A. Yes. 23 position, what was that position? 23 Q. And that was done with no communication 24 A. It was working for Mr. Clark in his law 24 sometimes from Mr. Clark?

Page 389 Page 391

Q. And as part of your duties, you helped followed. 2 him compile the documents that were Mr. Clark's 2 Q. And were you the person that did that 3 response to the grievance ofMr. Varela? 3 while you were there? 4 A. I did. 4 A. Yes. 5 Q. And you were the Office Manager? 5 Q. And during that period of time you 6 A. Yes. 6 also, in response to the Bar grievance filed by 7 Q. \Vhat does that mean in this law office? 7 Mr. Varela, you tried to find Mr. Varela's file? 8 A. In the law office I oversaw the daily 8 A. Correct. 9 operations of the office. 9 Q. Tell me about finding a file.

10 There was another assistant, so I would 10 A. Well, the files that were no longer 11 oversee their work and help them, put together 11 open cases were stored in the basement of the 12 files, file court pleadings, and enter charges 12 office. 13 into QuickBooks, do payroll, and those types of 13 I didn't work for Jay when Mr. Varela 14 duties. 14 was a client -- only after the Bar Complaint came 15 Q. SO were you the only one that entered 15 in. When I went to look for his file, it could 16 entries in the QuickBooks? 16 not be located. 17 A. At that time, I was not. We had a 17 Q. And did you find that to be unusual? 18 bookkeeper at that time. 18 A. Well, yes, because if you saw the 19 Q. All right. And how long was that 19 number of boxes of files and everything --20 bookkeeper there? 20 there's a master list organized of where the old 21 A. Oh, probably until 2007, I believe. 21 files should be found, and so most of the time it 22 Q. And when did that person start working 22 was pretty "dead on" -- that if I went to look 23 for Mr. Clark? 23 for something that happened before I was there, 24 A. Sometime in 2006, I would assume. 24 I could go down and locate it. 25 Q. What was that person's name? 25 Q. Okay. How did you compile the court


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Page 392

documents and everything that was included yvith 1

Mr. Clark's response to the Bar grievance? 2

A. We went to the courthouse and asked for 3

a copy of the docket, and a copy of anything 4

pertinent to the file, and recovered our missing 5

palts of it that way. 6

Q. All right. And so, basically, you 7

copied off the court file? 8

A. Yes. 9

Q. AId you also had authority to sign 10

routine letters for Jay? 11

A. Yes. 12

Q. And you would sign his signature on it? 13

A. Yes -- or use a stamp that we had. 14

Q. Either one? 15

A. Yes. 16

Q. And that was pretty common -- 17

A. Yes. 18

Q. -- around the office? 19

A. Yes. 20

Q. Tell me about the relationship between 21

Jay's office and Mitch's office. 22

A. From the time that I started working 23

for Jay, there was obviously some tension. 24

Page 393

Page 394

that to? A. I had never met Mitch personally, but

it just seemed like there was, you know, a lot of tension between he and Jay and some -- just an obvious dislike.

I had heard, you know, that Jay wasn't particularly fond of Mitch, and that Mitch was definitely not fond of him, but I always felt that our office conducted things -- tried to make everything run as smoothly as possible with no cooperation from that office.

Q. And when you talk about "no cooperation," what kind of thing would -- tell me some of the facts that led you to believe or where you arrived at that conclusion.

A. Well, like I said, when you would call the office, you know, saying, "Oh, we need to set a court date. Can you get back to me with Mitch's any available dates?"

"Oh, yeah, I'll get back to you right away," and then it would be a couple of days or you would need to keep following up.

It was always, "Well, we need to set a court date within these dates. Well, he doesn't

Page 395

1 because you would -- if you called the office for 1 going to have to do something outside." 2 any reason and identified where you were calling 2 It didn't seem like a working 3 from, I mean, the tone even of the staff would 3 relationship. 4 change. 4 You know, I would call other members 5 It was really hard to communicate in a 5 at other offices and, "Oh, yeah, let's see what 6 friendly manner of, "Hey, you know, I need some 6 we can do," and, "I'll leave a note for so-and-so," 7 open court dates," or anything like that. 7 and, "Oh, yeah, I'll leave a note for Jay, and 8 I mean it just had to be down to, 8 I'll get back with you," and there was never any 9 "Well, we will fax them to you." There was no 9 of that between Mitch's office and our office.

10 friendly communication. There was no follow-up 10 Q. SO there was basically no cooperation --11 on anything that could have been solved -- or not 11 A. No. 12 solved, but dealt with without the formality of, 12 Q. -- from his office? 13 "We'll fax this to you." You know, I mean just 13 A. No. 14 the day-to-day operations of it just was not a 14 Q. You compiled the documents -- were you 15 friendly atmosphere. 15 the one that worked mainly on compiling 16 Q. Would you term the interaction between 16 Mr. Clark's response to the Bar grievance? 17 the offices as "uncivil"? 17 A. I would say, "Yes, probably." 18 A. Not "uncivil" because, I mean, the work 18 Q. Was there anyone else involved in that? 19 was still getting done back and forth, you know, 19 A. Like I said, we had a bookkeeper at the 20 but definitely not -- it was kind of -- "Oh, I 20 time, but I don't believe that she would have 21 don't really want to call there" because it just 21 been involved in doing that. I assume it would 22 was -- you know, you could immediately feel the 22 probably have been just me. It was a long time 23 pressure that -- the strain of having to deal 23 ago. 24 with someone from there. 24 Q. Okay. And, as part of your duties, you 25 Q. All right. And what did you attribute 25 learned how to sign Jay's signature?


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A. It's a pretty easy signature -- and it 1

was stuff that he said, you know, "Routine stuff 2

you can do and I know you're doing it, so it's 3

fme to go ahead and do," and I'd leave the 4

copies for him. 5

Q. And then you would sign his name to it? 6

A. y~. 7 Q. And over the period of time when you 8

were working there, how many times do you reckon 9

that you signed a letter something like that for 10

Mr. Clark? 11

A. Oh, my gosh. A lot. I don't know. 12

Q. Hundreds? 13

A. Probably. 14

Q. All right. And were you there when the 15

file was sent to Mr. Egusquiza's office? 16

A. No. 17

Q. That had already happened? 18

A. I would assume so because I never saw 19

the actual original file. 20 Q. All right. And how long did you look 21

for the file in the basement of Mr. Clark's 22

office? 23

A. Days. I mean, whenever I had a chance, 24

Page 397

tore the place apart looking for it. At that point, you know, being kind of

new and wanting to -- not being able to complete my job was a little bit nerve wracking.

Q. SO you spent days looking for it, and you finally concluded --

A. It had to be taken by the client or sent to the other attorney.

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Page 398

no further questions. CHAlRMAN W1UTNEY: Thank you.

Cross-examination, Mr. Andrews? MR. ANDREWS: I have a few questions.

CROSS-EXAMINATION QUESTIONS BY MR. ANDREWS:

Q. When did you stmi working for Mr. Clark?

A. September of2005. Q. Did you routinely sign requests for

administrative license suspension hearings? A. Yes, on the DUIs that we did. Q. Did you ever use the, "Dictated, but

not read" stamp? A. Specifically on those documents, I

don't remember. I did use the stamp, though, on some things.

Q. And what was the policy for when you would use the stamp and when you would sign Mr. Clark's name?

A. The stamp, I think, was used more on something that was not as routine that I knew what was going on -- exactly what was going out.

Page 399

On page 3 of Exhibit 76, take a look at that. Who signed that letter?

A. That's Jay's signature. Q. Is your -- are you that good? A. Huh? Q. Are you that good in copying that

signature? A. Mine doesn't look -- I can tell the

Q. And particularly on misdemeanor files like a DUI case or say a misdemeanor case, would you routinely send over the original file if another attomey substituted in?

9 difference between his and mine.

A. If a client requested that their file or the other attomey requested a file, then yes, we would send it.

Q. Okay. How many times while you were there did you do that?

A. Probably just a handful. Q. All right. But, basically, it was your

office policy to send over the original file? A. Um-hmm. (Nodding head.) Q. You need to answer audibly for the

Court Reporter. A. I'm sorry. Yes.

10 Q. Okay. Can you take a look at 11 Exhibit 86, please, and then go to the last page. 12 Did you sign that? 13 A. No, I did not. 14 Q. Do you know who signed it? 15 A. It looks like Jay's signature to me. 16 Q. Okay. Retum to Exhibit 76, please. 17 CHAIRMAN WHITNEY: Did you say, "76," 18 Mr. Andrews? 19 MR. ANDREWS: 76, yes, sir. 20 CHAIRMAN WHITNEY: Thank you. 21 Q. (BY MR. ANDREWS) On page 1, Ijust 22 want you to take a look at No.6, "My 23 consultation notes," dated May 31, 2005. 24 Would you also take a look at

MR. PURVIANCE: At this point, I have 25 Exhibit 44.


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Page 400

To the best of your recollection, is 1

Exhibit 44 the Consultation Notes dated May 31, 2

2005, that were included with the October 7, 3

2005, letter which is Exhibit 76? 4

A. I don't know if they were the 5

Consultation Notes because I did not work for 6

Mr. Clark in May of 2005, but they are notes in 7

his handwriting. 8

Q. Do you have any independent 9

recollection of including those notes with 10

Exhibit 76? 11

A. I don't. 12

Q. Do you recall finding those 13

Consultation Notes when you were looking for 14

the file? 15

A. I do not. 16

Q. Those Consultation Notes weren't 17

available anywhere but within the office; would 18

that be con-ect? 19

A. I would assume they would have been 20

part of the file. 21

Q. Okay. 22

A. Like I said, at that point I wasn't 23

there, so I don't know. 24

MR ANDREWS· Okay I have no umher 125

Page 401

questions. 1

CHAIRMA"J WHITNEY: Wait. Well, we'll 2

come back to us. Go ahead on redirect examination.i 3 I 4 I

REDIRECT EXAMINATION QUESTIONS BY MR. PURVIANCE:

Q. You stated that you can tell the difference between your signature and Jay's

I 5

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9 signature. 9

10 Can you tell the difference between 10

11 Jay's signature and Joni's signature -- 11

12 A. I don't know that I have ever seen 12

13 Joni's signature. 13

14 Q. -- when she signed for Jay? 14

15 A. I don't know that I have ever really 15

Page 402

Did you go to Mitch's office and ask for copies, that you recall?

THE W1TNESS: Not that I can recall. MS. EDWARDS: And so do you know where

you got the notes that were attached? THE WITh"ESS: I don't. MS. EDWARDS: Okay. Thank you. CHAIRMAN WHIThTEY: Any follow-up on the

Committees, questions, Mr. Purviance?

more.

MR. PlJRVIANCE: I have none. C~MAN WHITNEY: Mr. Andrews? MR. A.l\ffiREWS: No further questions. CHAIRMAN WHITNEY: Thank you -MS. EDW.ARDS: I'm sony. I have one

CHAIRMAN WHITNEY: Go ahead. MS. EDWARDS: When you were there, what

was the policy with regard to Fee Agreements? Were you involved in that at all with clients?

THE WITNESS: Every client was given a Fee Agreement at the beginning in their consultation when they decided to have Mr. Clark represent them.

MS. EDWARDS: And who gave them the a greem ent')

Page 403

THE WITNESS: Jay did, Mr. Clark. MS. EDWARDS: So it wasn't done by any

of the other staff? THE WITNESS: No. MS. EDWARDS: Thank you.

RECROSS-EXM1INA TION QUESTIONS BY MR. ANDREWS:

Q. Did you look for a Fee Agreement? CHAIRMAN WHITNEY: Wait, wait, wait.

You're out of order. Mr. Purviance is first. MR. PURVIANCE: I don't have any

questions. MR. ANDREWS: I'm sorry. CHAIRMAN WHITNEY: Further

16 looked at a document that she would have signed 16 cross-examination? 17 for Jay, so I don't know. 17

18 MR. PURVIANCE: Okay. I have no 18 RECROSS-EXAMINATION 19 further questions. 19 QUESTIONS BY MR. ANDREWS: 20 CHAIRMAN WHITNEY: Mr. Andrews? 20 Q. Did Mr. Clark ask you to look for a Fee 21 MR. ANDREWS: Nothing further. 21 Agreement to include with Exhibit 76? 22 CHAIRMAN WHITNEY: The Committee? 22 A. Well, that was part of the file. I 23 MS. EDWARDS: I just have one question. 23 don't recall him asking me specifically to find 24 You said you went to the court and made 124 that as part of the file. 25 copies to attach to this response to the Bar. 25 MR. ANDREWS: Okay.

(208)345-9611 M & M COURT REPORTING Thank you. (208)345-8800 (fax)

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Page 4041 CHAIR1v1AN WHITNEY: Okay. You can stet 1

down, Ma'am. Thank you. I 2 MR. PURVIANCE: The Respondent would 3

rest. 4

CHAIRMAN \VHITNEY: Thank you, 5

:Mr. Purviance. 6

Mr. Andrews, lunch is on the way. Is 7

Mr. Egusquiza ready to be called by telephone? 8

MR. ANDREWS: I believe so, but I would 9

ask for a short recess so I can get in touch with 10

him and see if he's in his office. 11

CHAIRMAN \VHITNEY: Okay. Let's go off 12

the record. 13

(Discussion held 0 ff the record.) I 14

(Recess taken.) 15

CHAIRMAN \VHITNEY: Back on the record 16

in the State ofIdaho -- Idaho State Bar versus 17

J.P. Clark. The Case No. Number is 09-05. It's 18

1: 15 p.m. 19

Mr. Clark is present with his attorney, 20

Larry Purviance. 121 Bar Counsel is present representing the 22

Idaho State Bar. 23

The Committee is present in its 24

Page 405

presentation of evidence. The Respondent has rested, and now 2

we're back onto the Bar's case in -- or we are 3

going to stmi, rather, the Bar's case in 4

rebuttaL 5

Mr. Andrews, do you have any witnesses 6

in rebuttal? 7

MR. ANDREWS: One witness that we 8

agreed to contact by phone -- although the 9

Subpoena was still good for two days. So we will 10

call Mitch Egusquiza. I'll just try to contact 11

him. 12

(Discussion held off the record.) 13

MR. EGUSQUIZA: This is Mitch. 14

CHAIRMAN WHITNEY: Mr. Egusquiza, !hi 15

is Tom Whitney, and you have been called by 16

Brad Andrews as a witness in rebuttal for the 17

Page 406

MR. EGUSQUIZA: Okay. It's raised. (Mitchell Lee Egusquiza sworn.) CH.4JRMAN WHITNEY: Sir, I am going to

hand you over to Bar Counsel in just a moment. I just want to make sure that the COUli

Reporter can hear the phone okay. THE REPORTER: Yes, I can. THE WITNESS: All right. Do you want

me to say something? CHAIRMAN WHITNEY: You're fine. Mr. Andrews?

MITCHELL LEE EGUSQUIZA, first duly sworn to tell the truth relating to said cause, deposes and says:

DIRECT EXAMINATION QUESTIONS BY MR. ANDREWS:

Q. Mitch, can you hear us? A. I can barely hear. Q. Okay. We may -- we'll come closer to

the phone. Mitch, do you have your file relating

to Mateo Varela before you? A. I do.

that file? A. I have. Q. Is there a Fee Agreement between

Mr. Clark and Mr. Varela in your file? A. No.

Page 407

Q. Have you ever seen a Fee Agreement between yourself and -- I mean, between Mr. Clark and Mr. Varela?

A. No. Q. Have you ever destroyed any Fee

Agreement between Jay Clark and Mr. Varela? A. No. Q. There's been some testimony during

Mr. Clark's Case in Chief about the potential motivation of your participation in this disciplinary proceeding. I'm not going to spend time detailing that.

18 State Bar in the same case that you testified in 18 I would like to ask you a question and 19 yesterday. 19 that is, is there any aspect of any personal 20 MR. EGUSQUIZA: Okay. 20 animosity between you and Mr. Clark that has 21 CHAIRMAN \VHITNEY: Are you okay with 21 motivated any of your actions with respect to 22 testifying right now? 22 your representation of Mr. Varela? 23 MR. EGUSQUIZA: Yes, that's fme. 23 A. No. 24 CHAIRMAN WHITNEY: Okay. Sir, if you 24 Q. Has there been any aspect of personal 25 would raise your right hand and be sworn again. 25 animosity between you and Mr. Clark that has


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1 motivated your participation in this disciplinary 1 I just don't take a DUr and send the 2 proceeding, including Wliting the letter to Bar 2 Department of Transportation a letter because 3 Counsel's office that you testified about 3 it's -- if it's a refusal, that's not where it's 4 yesterday when you testified about you felt you 4 supposed to go. 5 had a professional obligation to report? 5 In every DUI I have, I certainly 6 A. No. The initial letter that was sent 6 attempt to get either a hearing request with the 7 to Mr. Clark, which I think we've coined it the 7 court or with the Department of Transportation. 8 "misgivings letter," that was at the request of 8 MS. EDWi\RDS: So ifit's not a refusal 9 Mateo. 9 case; if it's one where they have blown, is it

10 That response from Mr. Clark was 10 part of your protocol to automatically submit one 11 received -- I gave Mateo his options that I 11 to the Depaliment of Transportation. 12 thought were available to him. I 12 THE WITNESS: If it's a BAC alcohol --13 \Ve did -- Nancy Cunningham did type the 13 related BAC greater than a .08, yes, because we 14 letter. I did write the letter in regard to 14 do get alcohol and drug cases and -- I don't know 15 outlining the facts, and I was at that point 15 if you want to go into great detail on that, but 16 completely -- I thought -- done with the scenario. 16 basically, they can have a Citation, but there 17 The only time that I really actively 17 won't be a Department suspension on that 18-8002 18 got involved was after the Affidavit and those 18 that I referred to yesterday, that won't be 19 responses that were prepared by Mr. Clark were 19 issued until the blood results are back. 20 given to me by Mateo, which I testified to 20 MS. EDWARDS: Okay. 21 yesterday. At that point in time, I felt 21 THE WITNESS: So in some cases that 22 compelled to do the response that I did. 22 happens. Once that's back, the Department sends

So it had nothing to do with any bad 1 23 a Notice, and then at that point in time I would 23

24 feelings between myself and Mr. Clark. 24 request a hearing.

A s far as testifying y estero ay, YO" Page 409 125 MS EDWA RDS' Okay Thaok Y~~ge 411

served me with a Subpoena for yesterday, as well 1 CHAIRMAN WHITNEY: Any follow-up by Bar

25

2 as today, and that's why I was there. 2 Counsel? 3 MR. ANDREWS: Thank you. I have no 3 MR. ANDREWS: No. 4 fuliher questions. 4 CHAIRlv1AN WHITNEY: Any follow-up to 5 CHAIRMAN WHITNEY: Mr. Purviance? 5 the Committee's questions, Mr. Purviance? 6 MR. PURVIANCE: I have no questions of 6 MR. PURVIANCE: No. 7 this witness. 7 CHAIRMAN WHITNEY: Mr. Egusquiza, thank 8 CHAIRMAN WHITNEY: Committee? 8 you very much for your testimony today. 9 MS. EDWARDS: I just have one question - 9 THE WITNESS: Okay. Am I completely

10 and I apologize because this is a question that I 1 10 released from my Subpoena now? 11 should have asked yesterday -- it's really I 11 MR. ANDREWS: Yes. 12 outside the scope of rebuttal, so if you want to 12 THE WITNESS: All right. Okay. 13 object I'm giving you fair warning. 13 thank you. Bye. 14 In your practice, generally, when you 14 CHAIRMAN WHITNEY: Mr. Andrews, anymore 15 get a DUI case do you automatically send a letter 15 rebuttal witnesses? 16 requesting a hearing with the Depmiment of 16 MR. ANDREWS: No. 17 Transportation? Is that a standard protocol 17 CHAIRMAN WHITNEY: Mr. Purviance, any 18 for you? 18 witnesses on surrebuttal? 19 THE WITNESS: No. I detennine whether 19 MR. PURVIANCE: No. 20 it's a refusal or whether they blew, and then 20 CHAIRlv1AN WHITNEY: We're going to take 21 once they have submitted to the evidentiary 21 just two or three minutes here before your oral 22 testing, if they blew greater than the .08, I 22 arguments, unless the lawyers would like more 23 know that the ALS -- Department ofTransportatio 23 than that. Would you like more time to put your 24 needs to be submitted, and I do that once I have 124 oral argument together? 25 made that detennination. 25 MR. PURVIANCE: No.


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1 CHAIRMAN \VHITNEY: We will just take a 2 few minutes. 3 (Recess taken.) I

I 4 CHAIRMAN WHITNEY: Let's go back on th, 5 record. 6 Before we do the Closing Arguments, we I 7 had an off-record discussion just a few minutes 8 ago about the schedule for concluding the case. 9 I would like to put that on the record

10 because I think it's something that's agreed by 11 the parties. So I will read out my notes for 12 that and ask you if this is, in fact, what both 13 sides agreed to. 14 We had asked for a transcript to be 15 prepared and asked that the transcript be 16 prepared by December 17th, 2010. That will be 17 provided to both parties. 18 The Committee has asked both parties 19 for Proposed Findings of Fact and Proposed 20 Conclusions of Law, and the parties will submit 21 those to the Committee by January 17th, 2011. 22 And one thing that we didn't mention is

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was guilty of a crime; it's not about whether Mr. Varela would have won or lost a refusal hearing; it's not about Mitch Egusquiza versus Mr. Clark.

If the response to Mr. Varela's Complaint had admitted a mistake and had been forthright in the explanation to Bar Counsel's office, it's pretty difficult for me to see how the case would proceed to this point, but this case is primarily about the allegations in Count II, and then it flows from Count II, and that is that Mr. Clark failed to diligently pursue Mr. Varela's objectives, and he failed to reasonably communicate with him, and those are the rules that have been alleged in Count II.

Rule 1.2 is "Acting consistently with the clients objectives," while Rule 1.3 is "Pursuing them diligently," and Rule 1.4 is reasonably communicating with the client about the course of the case and to give the client information necessary for the client to make informed decisions about the representation.

It's clear, and it's clear and 23 I would like to receive them bye-mail, as 24 opposed to mailing hard copies to the Bar and

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convincing evidence that Mr. Varela and Mr. Clark weren't on the same page; that's just -- it's

.25 Page 413 Page 415

out. So I'll give you -- you may have my e-mail determination, necessarily, who is correct or 2 address. I will give it you right now. It's 2 who is incOITect because it doesn't matter in 3 [email protected]. 3 terms of that it didn't achieve Mr. Varela's 4 MS. EDWARDS: E-mail would be fine. 4 objectives. 5 MR. CLIFFORD: E-mail is great. 5 The crux of that case is Mr. Clark's 6 CHAIRMAN WHITNEY: Then the Committee s 6 own testimony in response and that is the 7 decision will be issued by February 14, 2011. 7 inconsistency with either a request for a refusal 8 Is that your agreement, Mr. Andrews? 8 hearing; or if you're unable to request a refusal 9 MR. ANDREWS: That is my agreement. 9 hearing because of the absolute certainty of the

10 CHAIRMAN WHITNEY: And is that the 10 insurmountable hurdles to that success, then 11 Respondent's agreement, Mr. Purviance? 11 proceed to the next step when the client is in 12 MR. PURVIANCE: It is. 12 your office that week and asking, "What about my 13 CHAIRMAN WHITNEY: Okay. If there is 13 privileges? I need my driving privileges. I 14 nothing else, we will move straight to your 14 need my job." At that juncture the objectives of 15 Closing Argument, Mr. Andrews. 15 the client were clear. 16 MR. ANDREWS: Thank you. I'm not going 16 We've had a great deal of testimony 17 to review the testimony and the exhibits in 17 that one of the options -- at that point, we know 18 detail, but I am going to talk a bit about each 18 it was too late to request a refusal hearing; it 19 of the Counts and I'll talk about that, but 19 just wasn't going to happen because it hadn't 20 before I do, I want to talk about what this case 20 been requested, it hadn't been requested with 21 isn't about. 21 Elmore County Court. 22 This case isn't about a mistake, filing 22 I don't believe that Mr. Varela 23 something with the Department of Transportation 23 understood that it wasn't going to be pursued. 24 versus filing it with the Elmore County Court on 24 I think the evidence is clear that he -- all of 25 a refusal; it's not about whether Mateo Varela 25 the allegations Count II are admitted. It is


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1 clear that they discussed this at the initial 2 conference; they discussed filing a refusal 3 request with the Elmore County Magistrate. 4 If the representation was going to take 5 a different tact to achieve the objectives, then 6 do it; that is, consult with the Prosecutor and 7 see if there's a possibility of a plea agreement 8 or a bargain immediately that would enable the 9 client to have his driving privileges maybe in

10 exchange for something -- maybe a deal that he 11 did not want, but a deal that was never presented. 12 So part of the real crux of the problem 13 in Count II is not what happened or what didn't 14 happen, but two things we'll never know: We will 15 never know whether a refusal hearing would have 16 been successful or unsuccessful. That's a loss 17 of a material right of a client. We will also 18 never know whether Mr. Miller would have agree 19 to drop the refusal in exchange for a DUI in the 20 time frame between the time that Mr. Varela was 21 represented by Mr. Clark from May 31 st through 22 somewhere in the vicinity of June 28th. It just 23 didn't happen. That's a lack of diligence, it's 24 lack of respect for the client's obj ectives, and

Page 417

1 client what the objectives are going to be. 2 Now, that is independent of any of the 3 attempts to testify around this issue, and part 4 of the problem with this is just -- own up to a 5 mistake. 6 We've heard that sending something when 7 you know it's a refusal on potentially Monday, 8 but the only one that we really know that was 9 filed was on June 10th, four days after it was

10 due. 11 So there's no -- it's hard to escape

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fact. None of this happened contemporaneous; this is back-filling and coming up with an explanation for conduct that's not tIlle.

Ifthere's absolutely no way the Judge had sufficient grounds to refuse the test for alcohol and that he'd have to withdraw immediately ifhe chose to peIjure himself with a felony, commit perjury, then there's no reason to send a fax to the Prosecutor asking him to reinstate the refusal hearing. Which way is it?

So I think that it's clear that it wasn't this giant -- this ethical dilemma that has been presented. We've had testimony that there was a strategy -- call the police officer and don't call Mateo. Would it succeed? \Vho knows? But again, Mateo -- Mateo's final parting comments from the witness stand, "All I wanted was a shot," and "Did you get a shot?" "No."

You can't go back and undo the shot. His license was suspended; he lost a job; there's damage. That's the damage that flows from the failure to pursue the client's objectives, the lack of diligence, and the lack of communication.

All we're talking about in Count II is

Page 419

that have been alleged and the facts that have been developed.

I talked briefly about Count III. CHAIRMAN WHITNEY: Can I interrupt you

and ask a question about Count II? MR. ANDREWS: Yes. CHAIRMAN WHITNEY: You have got three

rules that are implicated in Count II: Failure to pursue Client's objectives, lack of diligence, and lack of communication.

MR. ANDREWS: Yes. 12 the conclusion that that was done in an eff011 to 12 CHAIRMAN WHITNEY: But wouldn't it 13 somehow resurrect a right, but it was done in the 13 be -- couldn't the facts be explained by saying, 14 wrong location, but important along with that is 14 "Well, Mr. Clark did act diligently, just 15 that that same date is a recognition that it was 15 erroneously? 16 done improperly; and that is the same date, 16 MR. ANDREWS: No, because I don't think 17 Exhibit 51, that Department of Transportation 17 the facts establish that the Department of 18 letter, was sent to Mr. Miller with the fax cover 18 Transportation letter was sent on June 6th. It's 19 sheet that indicates, "Can we have a refusal 19 dated that. 20 hearing on this?" 20 The Depart..ment of Transportation 21 Now, I'm kind of going to jump a little 21 letter, Exhibit 76, shows it was faxed on the 22 bit into Count III, but that's inconsistent. 22 10th, and that's from their records and they 23 It's inconsistent with his own testimony, and 23 don't have records of anything else. That's 24 it's inconsistent with Exhibit 76. 24 confmned by Mitch Egusquiza's testimony. We 25 I submit that this is all after the 25 have the sticker that was at the bottom of the


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intake. His staff called and they said, "When 1

did this file with the Department of 2

Transportation?" 3

and it was June 10th. 4

CHAIRMAN WHITNEY: But you're not 5

saying that the missing of a filing deadline by a 6

few days amounts to ethical lack of diligence, 7

are you? 8

MR. ANDREWS: When it's coupled with 9

not pursuing the client's objectives, yes. 10

CHAIRMAN WHITNEY: Well, that -- 11

MR. ANDREWS: Not in and of itself -- 12

CHAIRl\1AN WHITNEY: Yes. That's my 13

question is you can say, "Okay, the lawyer and 14

the client agreed at the first meeting that the 15

lawyer would request a refusal hearing"; and the 16

lawyer then doesn't do that on time, but doesn't 17

abandon the case -- maybe he just files it a 18

little late -- but that's still diligent under 19

the meaning of the Ethical Rules, isn't it? It's 20

not like you could characterize him as ignoring 21

the client matter. 22

MR. ANDREWS: No, but you can 23

characterize ignoring the client matter because 24

nothing

because they -- the client told him what he wanted and the lawyer didn't do it, but how is that a lack of diligence on the lawyer's part?

MR. ANDREWS: I think it relates -it's closely related to this -- to the -- I mean, these are hard -- I understand what you're asking. It's hard to parcel out each one.

If I put them in order, it's 1.2 and communication, as opposed to diligence. It's either tell the client what you're going to do or not do and have a good understanding; and then pursue the client's objectives based upon the change in course. I appreciate that cases change in course all the time.

So the lack of diligence is reflected in not doing anything after the 10th when the client is in the office that week and saying, "I have a concern. "

If I had to tell you which one it is, 1.2 or 1.3, I would tell you it's 1.2.

CHAIRMAN WHITNEY: And 1.2 is the obj ectives?

MR. ANDREWS: Yes. I think it's primarily a failure to -- and this is quite

Page 421 Page 423

1 CHAIRMAN WHITNEY: And that gets int 1 and/or communicate about that. 2 your argument about Mr. Clark not following up 2 The rule says, "You communicate with 3 with the Prosecutor about this problem? 3 the client about the means by which the 4 MR. ANDREWS: Correct. I'm not saying, 4 objectives are to be pursued." Okay? There was 5 in and of itself, missing a deadline is a lack of 5 a lack of communication; that one person on the 6 diligence -- and that's what I was trying to say -- 6 6th of June calls the Department of Transportation 7 that's not what this case is about. 7 and says, "Is my license current?" Then it kind 8 CHAIRMAN WHITNEY: But assume for a 8 of snowballs from there. 9 minute Mr. Clark and Mateo Varela met on 9 Well, you know, as after the 6th, you

10 May 31 st, and Varela said to Clark, "I'm paying 10 know, a refusal hearing was due. I appreciate 11 you, lawyer, to represent me on the DDI and get 11 that. 12 me a refusal hearing." Okay? Are you with me 12 CHAIRMAN WHITNEY: Well, with the lack 13 so far? 13 of communication, lawyer and client meet on 14 MR. ANDREWS: Yes. 14 May 31st; and the following week they do, in 15 CHAIRMAN WHITNEY: The lawyer says, 15 fact, communicate. The client calls the lawyer; 16 "I'm accepting, your money, Client. I will 16 the lawyer takes the call, and they talk. So it 17 represent you on the DDI. I will try to get you 17 wasn't quite clear to me--18 a refusal hearing." 18 MR. ANDREWS: It's did he reasonably 19 Monday -- or a few days later, before 19 communicate to him the information necessary for 20 the deadline passes, you're in Mr. Clark's shoes 20 the client to make informed decisions? 21 and you think, "You know what? I cannot 21 CHAIRl\1AN WHITNEY: But the client had 22 ethically do that. I'll do something else," 22 already made a decision, and the decision was, 23 and so he goes on with the criminal case. 23 "Lawyer, I want you to get me a refusal hearing," 24 Now, I can see that hypothetical being 24 and the client never backed off of that decision. 25 a failure to pursue the client's objectives 25 He always -- he kept wanting that.


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Page 424

MR. ANDREWS: He kept wanting that, but he also wanted -- but he also made it clear to the lawyer -- the client doesn't have to tell us exactly what to do. The clients set the objective, and the lawyer sets the means.

The objective is, "My license --" it's right out of Exhibit 76. "He came into my office and was desperate to avoid the six-month suspension because he would lose his job. I said I'd talk to Philip Miller about it, and even though there was again no chance whatsoever to reverse the suspension and this went to hearing, sometimes he would agree to drop a refusal in order to plead to a Dill."

So there it is. Ifthey had that conversation, how are the client's objectives continued at that point?

CHAIRMAN WHITNEY: But where is the lack of communication by Mr. Clark there? He and Mateo Varela spoke that week -- and they each characterized the conversation somewhat differently, but I'm trying to get at where exactly is the lack of communication?

MR. ANDREWS: I don't think that

Page 425

on. I don't think. he knew that there was this potential plan with Mr. Miller. I think he still thought that there was a possibility to have a refusal hearing because, you know, unbeknownst t him, it's been requested again in Transportation on the 10th, and it's been sent to Mr. Miller. There is still the possibility of refusal here, but -- now, to a client, that's a possibility; to Counsel, we know that's futility.

CHAIRMAN WHITNEY: Yes. MR. ANDREWS: Okay. Then it's not

doing anything to achieve the client's objectives . after that date.

CHAlRMAN WHITNEY: But this communication thing. They talk -- I'll grant you, for the sake of argument, Mr. Varela didn't know what was going on -- but Mr. Clark did, in fact, communicate with him.

Couldn't you characterize that as the lawyer attempted to explain the case to client and failed because he's a poor communicator?

MR. ANDREWS: Well, yes, but I think that's part and parcel of communication. You have to work at it to have -- make sure that the

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Page 426

I mean, yes, it can be poor, but you have to communicate, you know, talk to the client about the objectives. "Here is what we're going to do. Relax. We would have lost the hearing. I'm going to go fix it."

CHAIRMAN W1UTNEY: So I think part of my concern is we're offering a high standard of proof here.

We know that Mr. Clark spoke to Mateo Varela during that week -- and assuming, for the sake of argument, that Mr. Varela still didn't understand everything. Can Mr. Clark be found to be, you know, have violated this rule by a clear and convincing standard if he, in fact, made a good faith attempt to communicate to the client and just didn't get the message across?

MR. ANDREWS: The answer to that is "Yes" because you have to reasonably communicate so that the client can -- information that's useful to the client under the rule.

I'll concede to you that the primary crux of Count I is 1.2, and it slides on a continuum -- and I'm fme if the Hearing Committee concludes that it's 1.2, and they find

Page 427

1 I think it was pled kind of -- it's 2 pled ifit was within the client's objectives, 3 then they weren't accomplished. If the client's 4 objectives were refusal, it wasn't accomplished. 5 But if the client's objectives remained 6 the same, "Do the best you can to protect my 7 license," and the means to accomplish those 8 objectives changed, then it drifts away from 9 diligence and communication back to failure to

10 pursue the objectives. 11 CHAlRMAN \VHITNEY: Okay. 12 MR. ANDREWS: Moving on to Count III, 13 I think the inconsistencies have been addressed 14 in the written submissions to Bar Counsel's 15 office, the exhibits, and finally Mr. Clark's 16 own testimony. 17 They -- and again this relates back to 18 Mr. Varela's objectives. It's not specified in 19 that, but the question is did he -- you know, did 20 he make misrepresentations about his inconsistent 21 statements? The answer is "Yes." 22 The primary inconsistencies are set 23 forth in Exhibit 86, you know, which I guess we

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24 finally determined was signed with authorization; 25 Exhibi t 51, which is the fax to Mr. Miller; and 25 client understands what's going on.


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Page 4281 they are inconsistent with respect to his response to the Complaint, Exhibit 76, and his 2 own testimony. We spent a great deal of time 3 with that, and the bottom line is that either you 4 can pursue a refusal hearing or you can't, but 5 just choose one and remain consistent. 6

When the client comes in -- why spend 7 time with futility if it's not part of the 8 inconsistent pattern of statements? 9

So I think the failure to -- the 10 position that you could not file a refusal 11 hearing, you know, came after discussions with 12 the client. 13

I'll concede that there is conflicting 14 evidence on what they talked about on the 3rd, 15 although Mr. Varela said he didn't talk to him on 16 the 3rd and Mr. Clark says he did. 17

I think that the thing that makes it 18 clear and convincing is there is no billing entry 19 on the 3rd for a conference with his client. 20 There's other billing entries on the 3rd for 21

and if this was a primary discussion about, 23 "We've got to change our tactic," I would submit 24

statement. I think that that's another instance of

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the existence of a Fee Agreement -- and I'm not asking for your argument on Count IV yet -- but what's your position as to whether or not a written Fee Agreement existed between Mr. Varela and Mr. Clark?

MR. ANDREWS: My position is there's no Fee Agreement.

CHAIRMAN WHITNEY: So what is your position with respect to Mr. Clark's asseliion that there was?

MR. ANDREWS: It doesn't exist. I mean, it's either in his file -- I mean, we've got his notes -- I'll be flat -- I just don't believe it. I don't believe him, and I think that the evidence is clear why we don't believe him.

First, it's we can't find the file, but we can find the notes from May 31st; then the file went to Mitch's office. I just don't think it's believable or credible that a lawyer sends his Fee Agreement to another lawyer in the middle of a case.

There's more. When Mr. Egusquiza wrote the letter and said, "Mateo is having misgivings

Page 431

you know, "It's a nonrefundable retainer. What are the misgivings?" The retainer is not attached to that. an inconsistency to maintain that there was a

conversation when the client says, "I don't recall that conversation. I don't recall talking to him that day," and, to the best of my

4 Now, he's going through Counsel. If

ability -- and this is all more contemporaneous than us sitting here, admittedly, a long time after the fact.

The Complamt was filed in the middle ofMr. Varela's criminal case, and the Response was filed three months before he was -- he had a plea. He was still serving his suspension at the time. In the Response reflects, you know, a check that's backdated and a statement that's not accurate.

Then it leads right to the Count V, and that is the Affidavit, and Mr. Varela's response to the Affidavit and that being conduct prejudicial to the administration of Justice.

CHAIRMAN WHITNEY: Are you about to move on to Count V -- because I have a question with regard to Count III --

5 you want to say, "Counsel, with all due respect, 6 I don't think I have an obligation to refund" --7 I do not disagree that his intention was that it 8 be nonrefundable, but Mateo testified quite 9 clearly what his understanding was, and that was

10 if it went to trial, he's going to have to pay 11 more than $500. Okay? Remember that. 12 If it's a fixed fee, then the fixed fee 13 would be $500, you know, true; and if you don't 14 have a -- it's not required under the rule to 15 have a written Fee Agreement, but it is required 16 under the rule to explain the Fee Agreement to 17 the extent that the client understands the Fee 18 Agreement, and the best way when you are in 19 charge of the Fee Agreement is to write it down. 20 I mean it's an 18-year-old client, you 21 know, and a lawyer. The 18-year-old client 22 remembers, and I think it's credible. "I 23 remember if this went to trial, I would have to

MR. ANDREWS: Okay. CHAIRMAN WHITNEY:

124 pay more than $500." That is inconsistent with -- your position orl25 it is a nonrefundable retainer.


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Ijust don't think it exists. I think 1 it was a mistake within the office. I think they 2 intended to do it. I think they do it in, you 3

know, most of the cases, but it didn't happen in 4 this case. 5

CHAlRMAN WHITNEY: So assuming -- 6 just assume, for the sake of argument, that the 7 Committee finds credible Mr. Varela's statement 8 that there was no written Fee Agreement; that the 9 Committee disbelieves Mr. Clark's statement that 10 there was a wlitten Fee Agreement. \\lhere do we I 11 put that in your Count III? Do we put that under I 12 "Dishonesty"? 13

MR. ANDREWS: That's Count IV. 14 CHAlRMAN \VHITNEY : Well, is the 15

assertion that there was a written Fee Agreement 16 when there wasn't, is that something that fits 17 into Count III in terms of dishonesty, fraud and 18 deceit, and misrepresentation? 19

MR. ANDREWS: Yes. Yes, I think it 20 does, but it also relates to Count IV, and that's 21 the failure to communicate the basis of the fee 22 and the failure to return an unused fee. 23

If it was a nonrefundable retainer, 24 then commnnicate that to the client and don't 25

Page 433

Hearing Committee. Erin Lambeli just testified -- she

picked up Exhibit 86 and said, "That's

Page 434

Mr. Clark's signature.: How long did we spend on that yesterday? That's emblematic of the inability to just admit something. Just admit that there's a mistake. Just admit that this is how it went. Instead, it's justification for conduct after the fact that doesn't stack up.

I think we've covered Count IV. Count V relates to the conduct

prejudicial to the administration of justice. We have briefed that. There's a couple of principles at issue.

Mateo received that Affidavit and understood that Affidavit for exactly what it was, a threat. Mr. Clark finally testified it was a threat -- it's a threat to back him away from a disciplinary case.

I understand that it's a chance to --the explanation that it's a chance to set things straight, but it's also a threat.

Mr. Varela, contemporaneously with that, wrote a letter -- I think it's Exhibit 79 -contesting the points that he conld not agree

Page 435

return any money. If it was not a nonrefundable with in the Affidavit; and I think tellingly he 2 retainer and it was consistent with Mr. Varela's 2 testified and tellingly in that letter -- I mean, 3 understanding, then he failed to return the 3 the letter had its intended effect when he said, 4 unearned fee. 4 "Had I thought that filing a Complaint against 5 I appreciate he wrote letters, but it 5 Mr. Clark would get me sued, I would not have 6 was after the Bar Complaint and we have 6 done anything." It's an I8-year old client --7 consistently taken the position that you should 7 an 18-year old ex-client. At the time he had 8 not have to file a Bar Complaint to have a lawyer 8 been an ex-client for three months. 9 comply with their obligation under Rule 1I6D, an 9 It also resulted in Mr. Egusquiza

10 that is to return the unearned portion of the fee 10 determining that he had an obligation to report 11 within the reasonable time after the 11 that under Rule 8.3, and I think he was con-ect. 12 representation is terminated. 12 I want to just tell you -- Mr. Egusquiza 13 So I look at that one as you can't have 13 is not driving the bus. This is not where --14 it both ways: It is unrefundable, show me the 14 we're not picking up something that Mr. Egusquiza 15 Fee Agreement; and absent a Fee Agreement theres15 handed to us and said, "You've got to go do this." 16 clear and convincing evidence that it was not 16 It's just -- it's not like that, and you heard 17 non-refundable because the refund was made. 17 him testify. This doesn't have anything to do 18 I think part of the -- frankly, part of 18 with personal animosity. I think that's a red 19 the difficulty wi th Count III is that it's not 19 herring. I don't think that that has anything to 20 difficult from our standpoint, but there's 20 do with this. 21 misrepresentations that happened during this 21 I think it's again emblematic of it's 22 hearing. I mean, it shouldn't be that 22 somebody -- everything in this case has been 23 difficult -- we shouldn't have to spend that much 23 somebody else's fault. Not once have we heard 24 time to find out whether he signed a letter, and 24 from Mr. Clark, "I made a mistake, and it's my 25 I think that's a misrepresentation to this 25 fault."


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I think there's a lack of remorse, and i 1

I think that's important. I think the lack of 2

remorse is important from the standpoint of the 3

believe are mitigating and those that we believe are aggravating to enable the Hearing Committee to make a reasoned decision about sanction.

sanction. We'll include a sanction recommendatio 4

with our Findings of Fact -- if you would like me 1 5

to make one, I will -- but one of the things I 6

before we get to that point is I want the , 7

Committee to have the opportunity to review the I· 8

prior discipline. There's five private 9

reprimands that have been issued. According to 110

my calculations, I think he practiced law about 1111

12 years and, frankly, that's not a good record. 112

The other thing that we will do is we will provide what we think are similar cases if we can locate them. I know you want that.

Generally speaking, we try the case; and as part of this process, you know, we will provide that.

So that concludes my closing remarks. I appreciate the Hearing Committee's time and questions if you have any other.

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That's also the record that this ' 13 MS. EDWARDS: Ijust have one question: case -- I mean, at some point you can't just 14 Ifwe were to believe Mr. Clark's continually privately reprimand. The ABA 15 statement that the June 10th letter that was standards, which I will include in our Findings 16

and Conclusions, talk about aggravating factors, 17

and that's a primary aggravating factor. 18

You know, I appreciate the mitigating 19

factors in this case. The mitigating factors 20

faxed to the Prosecuting Attorney was done totally by the Legal Assistant and without his input or knowledge, would you still consider that action by her to be attributable to him under your Counts that talk about false statements?

are, obviously, that he paid $218.75 to Mr. Varela 21

this year. I would invite the Hearing Committee 22

to take another look at that bill, and if the 23

Hearing Committee deems appropriate -- and I'll 24

MR. ANDREWS: Yes. I don't think that we -- I mean, I don't think that when we send substantive documents or letters to other counsel, that it's approp11ate to have non-lawyers prepare

Page 437 Page 439

additional money that should be returned to If you do that, stand up and take 2 Mr. Varela based on that statement. I think that 2 ownership of it. If your staff does something 3 that's a mitigating factor. 3 with your permission, then stand up and take 4 I also think that a mitigating factor 4 ownership of it. Don't dissemble and say, "Well, 5 in this is Mr. Varela got a pretty good deal. He 5 Joni sent that." 6 got a deal that he was okay with -- as well he 6 I tell you, I was offended that -- and 7 should. He got a Minor in Consumption, but he 7 I am offended -- that staff has the -- that staff 8 did lose ajob. 8 routinely sends out the Department of 9 So, from a legal perspective, it was a 9 Transportation suspension letters. I think those

10 benefit for him to come up with a -- to plead 10 are substantive 11 guilty to a Minor in Consumption, and he served 11 legal documents. Those are documents that have 12 the -- the license suspension was retroactive, 12 the client's name, the client's infraction number 13 but he did lose his license and he did lose his 13 on it, and it requests a hearing, and it states 14 job. 14 nine to ten grounds --legal grounds, you know--15 Now, the damage that I see -- that's 15 everything from, "There was no legal right to 16 part of the damage, but the other damage is a 16 stop, there was no legal11ght to -- there was no 17 couple ofthings I talked about. 17 recognition that the person was in the car right 18 We will never know what the refusal 18 down to the Constitutional issues." 19 would have been, and that's a lost right. When 19 I mean, staff do not file documents 20 clients lose rights as a result of the failure of 20 with administrative agencies that are that 21 the attorney to pursue the client's objections, 21 substantive. 22 then that's damage as well under the ABA 22 Now, if they do, stand up and take 23 standards governing discipline. 23 ownership of it and stand up and take ownership 24 When we put our Findings and Conclusions 24 that, "I should have told them it was a refusal 25 together, we go through those factors that we 25 case, so don't bother to send it; it's worthless."


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1 Then I think sending a letter to the that, it would be helpful. 2 Prosecutor, "\Vill you consider doing this?" 2 MR . .Al'\DREWS: I will give you a 3 I mean, this isn't -- this is basically lathering 3 ballpark idea. I think that a suspension is 4 the ball to the non-lawyers staff and saying, 4 appropriate. I think that a two-year suspension 5 "See what you can do about getting Mateo a 5 is appropriate, but I also think it's appropriate 6 refusal. He's bugging us about his license." 6 to withhold a portion of that suspension. 7 That's what is going on. 7 As we're sitting here, I could --8 MS. EDWARDS: I guess my question is, 8 I mean, part of this is that he's an Affiliate 9 is that failure to properly supervise the staff; 9 member and so he's not licensed to practice.

10 or, in your view, does that rise to the level of 10 So there's kind of a strange argument that 11 his making false representations because part of 11 suspension is kind of "piling on," but I think a 12 what you're saying is, "Something has to be false 12 suspension is appropriate. 13 here because they're inconsistent," and he's 13 I think that you could withhold up to a 14 saying, "Well, maybe they're inconsistent, but I 14 year-and-a-half of the suspension, but I leave it 15 didn't even know she did this." 15 to you. 16 Do you still attribute that to him as a 16 I think that the withheld portion 17 false representation? 17 relates to the misrepresentations and the 18 MR. ANDRE\VS: Yes. I mean, I don't 18 misrepresentations that I think happened during 19 know all the elements of the criminal law, but it 19 this hearing and the difficulty that we had with 20 seems like forgery to me. I mean, stamp it. 20 getting, just frankly, straight answers. 21 You know, look, I appreciate -- and 21 I also think that a two-year probation 22 I know we're going to hear it -- I appreciate the 22 would be appropriate. Our general terms of 23 dilemma, and I've got to tell you I've done 23 probation are the withheld pOliion of the 24 these. 24 suspension is not enforced unless the conditions

Page 441 Page 443

1 MR. ANDREWS: The dilemma that you have Now, in his case it wouldn't -- none of 2 seven days from the client walking in that you've 2 this would kick in -- I mean, he could serve the 3 got to file something. I have done these. They 3 suspension while he's on Affiliate status, but 4 are difficult, but you have seven days. 4 none of the withheld or the probation would kick 5 The law doesn't require perfection in 5 in unless and until he activates his license or 6 seven days, but it requires -- just do it. You 6 requests to transfer his license from Affiliate 7 know, just either do it or don't do it. 7 membership to Active membership. 8 I think that when you have a staff 8 For the Committee's edification, 9 member send a letter to the Prosecutor requesting 9 Affiliate membership just means you can't lOa substantive hearing, again, you have to take 10 actively practice law. It's not inactive. You 11 ownership of that. And if you don't take 11 pay a reduced licensing fee, you -- I think you 12 ownership of that, I think you're making a 12 get The Advocate -- I can't recall whether you 13 misrepresentation to this Committee. 13 vote -- I think it also entitles you to vote on 14 CHAIRMAN WHITNEY: Anything more? 14 issues that are issues before the Bar membership. 15 MS. EDWARDS: No. 15 The way we generally work probation is 16 CHAIRMAN WHITNEY: l<\.nytbing? 16 if you're detelmined to have violated a Rule of 17 MR. CLIFFORD: No. 17 Professional Conduct during the time of probation, 18 CHAIRMAN WHITNEY: I would like to hea 18 then the withheld suspension is served in 19 your recommendations if you know what they are 19 addition to any additional penalty. 20 today. 20 Then I'll propose some other things 21 I'm not intending to limit you in your 21 that I think, you know, address what I believe in 22 written submission, but this is likely the only 22 terms of protection. Generally speaking, we will 23 time the Committee gets together in person. 23 oftentimes require some type of malpractice 24 So if you know what your recommendations 24 insurance during the term of probation -- and, 25 are going to be or have a ballpark idea about 25 frankly, I haven't analyzed whether he did or did


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It can be -- if you're out for a not have that when he was practicing. Most people -- ifhe did, great, so it's not much of an imposition.

2 lengthy period of time, it can be portions ofu~e 3 Bar -- the entire or portions of the Bar

Then there are some other standard tenns that we would include.

4 examination. 5 MR. CLIFFORD: Thank you.

That's kind of my feeling. I think 6 CHAIRlv1.AN \VHITNEY: Thank you, Mr. Andrews.

I came into this a little bit less -- I think 7 Let's take a break for just two minutes.

that I was looking for acknowledgment and remorse, and I didn't see it, and that troubles me.

8 (Recess taken.) 9 CHAIRMAN WHITNEY: Let's go back on the

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MR. CLIFFORD: \Vhat is the process for 11

going from Affiliate status to full? 12

MR. ANDREWS: You address your request 13

to the Board of Commissioners, and then they make 14

a determination -- depending on how long you have 15

been out, there's different standards, but 16

generally speaking, if you're out for I think -- 17

I'm going to have look at the rule. 18

MR. CLIFFORD: I guess what I'm getting 19

at is, is it a pretty easy process? 20

MR. ANDREWS: It's just like everything 21

else. After you have been out for a while, the 22

burden becomes a little bit higher to establish 23

to the Board of Commissioners that you're capable 24

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Page 445

MR. CLIFFORD: Knowledgeable? MR. ANDREWS -- academically -- yes, 2

academically. So a lot of it depends on what you 3

do in the off time. 4

MR. CLIFFORD: Eligible? 5

MR. ANDREWS: Yes. If you're doing 6

things that are legally related -- and my 7

impression of Mr. Clark is that he's involved in 8

quite a bit of real estate. That's kind of 9

keeping current in, you know, in one aspect of 10

the law. 11

So I think it would be -- they're going 12 to ask questions about this case, the Board, and 13

so there's a process where you can go before the 14

Board of Commissioners. 15

The Board of Commissioners makes a 16

recommendation to the Supreme Court, and the 17

Supreme Court has the ultimate authority to 18

re-license. 19

MR. CLIFFORD: Can you require like 20

CLEs or -- 21 MR. ANDREWS: Yes. By rule, there's 22

CLEs -- and oftentimes, depending upon how long 123

person is Affiliate or inactive, they may require 24 certain courses or more CLEs. 25

record, then. Bar Counsel has completed its Closing

Argument. Mr. Purviance, did you want to make a

closing argument. MR. PURVIANCE: I do. CHAIRMAN WHITNEY: Thank you. Please

go ahead. MR. PURVIANCE: In regard to Count II

of the Complaint, I think the evidence is very clear that Mr. Clark consulted both on the 3rd of June and on the 6th of June with his client, particularly June 3rd, which was really the day -- that afternoon I think it's undisputed that the discovery was received in this case.

Page 447

can make an informed decision on whether the client's wishes on how to proceed are meritorious or not.

It's clear from the rules that filing a meritorious or a frivolous lawsuit is a Violation of the Rules of Conduct.

We have conflicting rules here. I have actually spoken with several attorneys in NOlihern Idaho on this exact issue, and the consensus seems to be -- and I'm telling you this from a public policy standpoint -- that attorneys, since the State Bar is asking for public sanctions -- people read those decisions and try to decipher, you know, what they mean.

The consensus seems to be in this case you filed a BAC -- and many times you have no discovery at all -- you file it and then immediately withdraw it because you're not sure whether it's a frivolous lawsuit or not, but at least you preserved that incredibly short time limit for filing such a petition because you really can't determine many times without any discovery or anything else whether the petition is meritorious or not. You just don't have the time.


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I just want to say that, you know, Mr. Mateo (sic) obviously has been through many suspensions before. You know, from the standpoint of a practitioner, the public policy in this state is overwhelmingly against Mr. Mateo (sic) getting his license back on June 6th, 2005; in fact, the law is so -- and there's really sound public policy reasons why that is true.

All of the discussions we're having about the technicalities of whether it should have been filed or, you know, all of this --the point being the State of Idaho is unequivocal in its intention to keep Mr. Mateo (sic) off the road. We can't think about this case and just disregard that profound public policy.

The fact that Mr. Mateo (sic) is result oriented in what he thinks can be achieved here is directly contrary to the law and to public policy in this state. We need to keep those things in mind.

These decisions that are made, these actions that attorneys take, they're not in a vacuum. We're dealing with real life and death decisions made in real-time.

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preserve the client's rights even if the lavvyer determines that the lawsuit may ultimately be frivolous?

Let me give you an example. Assume, for the sake of argument, that Mr. Varela and Mr. Clark met on the 31 st. The client tells the lawyer, "Get me a refusal hearing. Defend me on this DUI," and lawyer tells client, "I will get your refusal hearing. I will represent you on the DUI"; and subsequent to that, the la\vyer determines, "Hey, that refusal h~aring would be frivolous in my view."

Doesn't the lawyer have a duty to file the request before the Statute of Limitations so that the clients rights are preserved and then tell the client, "You've got to get another lawyer because I can't go forward on that case If?

MR. PURVIANCE: I think that when you're dealing with a client who is charged with a crime like that, like this one, your primary concern is the access to the criminal case.

I mean, if this were my case, given this client's prior record, I would be -- in many ways this particular situation is the legal

Page 451

here -- this formal Complaint was filed five 1 out along the side the road at an accident scene --2 years after this. Mr. Clark got this client 2 one false move in that criminal case, and your 3 May 31st and really made the decision on June 3r ,3 client is done. 4 four days later after he got the discovery that 4 I've been practicing criminal defense 5 was requested on the velY day his client showed 5 for 16 years. Never would I agree to -- in this 6 up. 6 particular factual situation, never would I agree 7 We're out there -- we have to make 7 to file a BAC hearing in this case. 8 decisions for our clients. Obviously, we do have 8 CHAIRMAN WHITNEY: And how come? 9 to take into consideration what their desires 9 Why not?

10 are, but many times their desires are absolutely 10 MR. PURVIANCE: You've got several 11 solidly against what the law will allow. That's 11 problems with it. First and foremost, I know how 12 what is going on here. 12 Prosecutors react to this kind of thing. They 13 You know, I think Mr. Clark's testimony 13 can and will hold that against your client for 14 that he called Mr. Mateo (sic) on the 3rd when he 14 making them put this much work through. I've had 15 got the discovery is absolutely credible. He 15 it happen many times. 16 called him again on the 6th. 16 In your plea negotiations, they will 17 Obviously, when you have a client 17 tell you, you know, "Your client made me go 18 that's very frantic about losing his license, 18 through a BAC hearing and it was garbage, so 19 which will in turn lead to his loss of employment -1 19 I'm not going to be real willing to be real 20 which, obviously, that happened -- but in this 20 negotiable on this criminal case." 21 case the working of the law, that is precisely 21 I've had that happen many times. I'm 22 how the law envisions the result to be. That is 22 not here to testify, but that has happened to me 23 precisely the outcome the law desires here. 23 many times. 24 CHAIRMAN WHITNEY: But doesn't the 124 Motions to Suppress, BAC hearings --25 lawyer have a responsibility to the client to 25 Prosecutors do not like going through those,

(208)345-9611 M & M C01..JRT REPORTING (208)345-8800 (fax)

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particularly if they are not meritorious. Their view of it is, flYour client is 2

not taking responsibility. He thinks he should 3

be able to go out and drive immediately after 4

something like this --" and these are particularly I 5

egregious facts. I 6

In these kinds of cases, the Prosecutor, 7

you know, in response to a BAC hearing could fill 8

the Driving Without an Owners Consent later on 9

just to add salt to the wound. I've had that 10

happen. They will enhance cases. 11

Ifit's a second or third offense DUI, 12

you know, they will tell you right off the bat, 13

"You plead him to the first offense, and we won't 14

enhance it." That's the way this game goes. 15

CHAIRMAN WHITNEY: But I hear you 16

enumerating a bunch of risks to the client, but 17

isn't the lawyer's job to tell the client the 18

risks and still let the client determine the 19

goals for the representation? 20

MR. PURVIANCE: \Vithin the scope of the 21

Rules of Professional Conduct. Ultimately, the 22

attorney is responsible for the outcome and the 23

kind oftactics that are chosen in this kind of 24

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Page 454

facts that could, if true, they could have been a complete defense to everything -- the refusal and the DUI; right?

MR. PURVIANCE: I don't believe it would be a defense against a refusal because you would have to put your client on the stand to say that. Then you open him up for cross-examination -you open up a world of hUli on that.

CHAIR. .. MAN WHITNEY: And again, you get back to risks, but under the Ethical Rules, the client gets to decide whether or not to testify. The lawyer just has to tell him the risks, but it is the client who must make the decision whether or not to testify; right?

MR. PURVIANCE: Yes. The only way you can win a BAC hearing, under your theory, is for this client to have testified.

CHAIRMAN WHITNEY: Okay. MR. PURVIANCE: And I would withdraw

before I would do that. That would put this client in so much legal jeopardy on the criminal case that you would be -- you know, we're "to do no harm," and that would definitely be harming your client.

Page 455

CHAIRMAN WHITNEY: But even in this taking the stand, I would have to withdraw 2 case, there's no dispute that Mr. Varela 2 because of the almost certain legal ramifications 3 mentioned the "Roofies" the very first day he met 3 of that choice. Ijust don't think you could--4 with Mr. Clark; right? 4 I don't think you could stand by and allow that 5 MR. PURVIANCE: Yes. 5 to happen. 6 CHAIRMAN WHITNEY: There's no dispute 6 CHAlRMAN WHITNEY: Okay. 7 about that? 7 MR. PURVIANCE: Like I say, you know, 8 MR. PURVIANCE: No. 8 in this kind of case the decision that you have 9 CHAIRMAN WHITNEY: And any involunta 9 here has widespread public policy ramifications.

10 intoxication -- if someone really did slip a 10 You know, like I say, we're trying to grapple 11 "Roofie" to Mr. Varela and that caused his bad 11 with what those might be, given this incredibly 12 behavior, even assuming he drove the car, 12 short time limit. 13 involuntary intoxication would be a complete 13 I think I can truthfully say that I do 14 defense to both cases for Mr. Varela, wouldn't it? 14 not think there is a shorter time limitation in 15 MR. PURVIANCE: I think Mr. Varela also 15 the state ofIdaho under any other law. I just 16 told Mr. Clark that he had consumed five beers. 16 can't think of any other law. If you can, let me 17 In looking at the results, the police 17 know, but I just don't think there is. 18 were able to get him on the Horizontal Gauge 18 So an attorney -- you know, really in 19 Nystagmus, and on the walk and tum, and the 19 this kind of situation an attorney really has to 20 leg stand, Ijust don't think "Roofies" would 20 depend on its gut feeling with such scant 21 have done that. 21 information, such scant -- you know, you have to 22 CHAIRMAN WHITNEY: But it's possible; 22 make very fast decisions that may affect this 23 right? 23 person's entire life. 24 MR. PlJRVIANCE: Sure, it is. 124 I mean, I appreciate Bar Counsel's 25 CHAIR11AN WHITNEY: And Mr. Varela had 25 argument, but the idea that somehow we're


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1 supposed to neglect our experience and training 1 2 in this kind of case and just stand by while a 2 3 client is clearly going to make a bad decision -- 3

4 and I think Mr. Clark is very sincere -- he tried 4 5 twice on the 3rd and the 6th telling his client, 5 6 "You know, this is very dangerous for what you 6 7 are attempting to do here. You should not do 7 8 this," you know and I just don't -- you know, the 8

9 second is part of this factual situation really 9 10 bothers me. 10 11 Mr. Egusquiza enters the case sometime -- 11 12 it sounds like he's talking to this client even 12 13 before the suspension begins. Mr. Egusquiza, wh113 14 is such a critic ofMr. Clark, can't get him his 14 15 license back for four months or more -- maybe 15 16 five months? Yet, Jay Clark is here and he's 16 17 supposed to be making these quick decisions the 17 18 instant he gets the discovery. I think that's an 18 19 unfair burden. 19 20 I think we have to look at this outside 20 21 of a vacuum and realize that Jay Clark has been 21 22 entrusted with the knowledge and experience that 22 23 he's had from ten years of this. 23 24 You know, you always hire a local 24 25 attome~1 Ihejl kno:w the lay of the 1a

Page 457

1 know how judges think. They know how Prosecutor 1 2 think. They know how Prosecutors react. Your 2 3 client doesn't know any of those things. 3 4 To just disregard the attempts that 4 5 Jay Clark made here to try to talk some sense 5 6 into this guy, you know, it's just really 6 7 unfortunate. 7 8 It ignores his entire experience of 8

9 working in this locality with this Prosecutor, 9 10 with these judges, knowing the pattem of how 10 11 this Court deals with this kind of thing, knowing 11 12 how this Prosecutor reacts to it. It's just 12 13 saying, "Well, you might as well not even be a 13 14 professional." This kid could go in and -- 14 15 you know, someone just off the street could just 15 16 advise him, "Yeah, I can go in and get your 16 17 license back for you." You know, it's kind of 17 18 like that. 18 19 We're professionals for a reason. 19 20 we give informed advice. In this case, you give 20 21 informed advice in a very rapid manner. 21 22 I believe that Jay's advice was sound, 22 23 and it was delivered on the 3rd and on the 6th. 23

Page 458

He gets discovery on an entire case --gets the case on the 31 st. Four days have already lapsed since the arrest.

In three more days, he gets the discovery, and he's talked to his client twice by June 6th. That is not lack of diligence; that is not lack of communication, and that is trying to guide your client in the correct way of doing it.

By the time Mr. Egusquiza takes over the case in June and starts dealing with this client, starts turning him around -- and starts, in my opinion, turning him against Jay -- Jay's ability to work with this client is essentially taken away from him at that point in time.

I'm not saying that Mr. Egusquiza deliberately set out to torpedo this relationship, but he certainly had his preexisting views on Jay Clark -- and that had to color that. Again, we are not here in a vacuum. That had to color what happened.

Well, his client stops even communicating with him, basically, for a period oftime. He's listening to Mr. Egusquiza. He's listening to his advice. He fmally pays him

Page 459

is the price that it costs to do a DUI and a refusal in Elmore County. He testified that that's the prevailing rate.

He filed a motion for BAC hearing long after the date was past, long after the seven days were passed, and you have to ask yourself, you know, whether that should have been done -whether your client should have been asked to pay money for that kind of a motion, given even Mr. Egusquiza's testimony that it was highly unlikely to have prevailed. That was the same exact opinion that was reached by Jay Clark on June 3rd and June 6th of 2005.

I think there's a pretty good comparison here between the tactics of two people on the same client, what they were able to achieve, and what the client's desires were. He didn't get his license back, and that is the public policy ofIdaho.

As far as the Count III --MR. CLIFFORD: Can I ask a quick

question? MR. PURVIANCE: Sure.

24 There is no problem there with communication; 24 MR. CLIFFORD: This is just something 25 there's no problem there with diligence. 25 that is troubling me, so please excuse me if it's


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not appropriate. In Exhibit 76, on page 3, Mr. Clark 2

MR. PURVIANCE: I think Jay Clark testified to this.

states, "I have represented many individuals --" i 3

the second-from-the-end paragraph. "I had I 4

CHAIRM.A . .N \VHITNEY: And I'll sustain that. Just confine your comments -- I don't want

represented many individuals who had refusals and 5

was very familiar with the legal standards." I 6

to limit you in your closing, except when you talk about that aspect of the case -- first of

You keep stressing that this is the I 7 all, don't feel like you've failed because we hammered that -- you hammered that over and over again. I mean, we heard it.

shortest time frame in Idaho law. That being the 8

case -- and it seems like, "Wow that is a short 9

time frame." Wouldn't the tendency, if you're 10 Then just confme your argument to what you got out of Mitch Egusquiza and Mr. Clark. going to be real diligent with your client and he 11

has had a refusal to file for the hearing -- if 12 MR. ANDREWS: My objection is not to the topic, but it's the generalization that every ALS is one way and every --

you're going to send out an automatic letter to 13

the Department of Transportation on the other 14

side, wouldn't you almost want to make a practice 15 CHAIRMAN WHITNEY: Sure. We can sort the wheat from the chaff. So it's a good to file for that to protect that seven days and 16

then even rescind it if you have come to 17 objection, but we don't want to cut off your argument. Go ahead and make your argument. reasoning with your client rather than just lose 18

the right by not filing? 19 MR. PURVIANCE: Jay testified that, MR. PURVIANCE: Or I suppose you could 20 you know, in many cases that -- and I'm trying my

best to collect his testimony -- you get an ALS hearing examiner on the phone.

file it and then withdraw from the case. 21

MR. CLIFFORD: That's what I'm saying. 22

MR. PURVIANCE: That seems to be the consensus from DUI attomeys and criminal defens

Often it's, you know, Jay's description. It's just a few seconds long. "Do you want me to

?" " " Page 461 Page 463

withdraw from it, charge your client for it, and down the tube it goes. I mean, that's actually the outcome from your client.

MR. CLIFFORD: I'm not saying, "File it and withdraw from the case __ ff

MR. PURVIANCE: You have to withdraw from it because it's frivolous. You can't pursue a frivolous course of action, regardless of whether your client wants you to or not.

MR. CLIFFORD: Okay. Thank you. MR. PURVIANCE: I think Count III--

and again I'm looking at this as a practical matter on these Idaho Department of Transportation ALS suspension hearing requests.

I think -- you know, in some ways I feel like I've failed to get across the technicalities of how a BAC hearing works versus an ALS hearing. My experience has been that wit ALS hearings, they are incredibly infOlmal -they are nothing like court. You know, I--

MR. ANDREWS: I hate to interpose an objection, but I think he's testifying. We have covered -- ifhe wants to talk about what the evidence was --

That's what the hearing amounts to. 2 Again, I think, especially given where 3 the arguments are on Count II, I think the public 4 policy here would be that an attomey had also 5 better figure out a way of automatically 6 generating an ALS hearing request, as well. 7 I think that Mr. Clark letting his 8 staff do it by filing a form letter that just is 9 automatically generated by a DUI case, I think

10 that that is something that a -- I think every 11 attorney had better do that. 12 CHAIRlv1AN WHITNEY: Well, let me ask you 13 about that question because I -- to be perfectly 14 honest with you, I cannot see an advantage to 15 clients as a whole of sending the ALS demand in 16 every case, especially to a client like Mr. Varela 17 where he didn't have an ALS hearing coming. He 18 only had a refusal hearing coming. 19 So the only benefit to the automatic 20 letter seems to be to the lawyer; that the lawyer 21 doesn't have to figure out, "Okay, in this D1JI 22 case I need to send a letter, and in this DUI 23 case I don't." Am I right about that? 24 MR. PURVIANCE: You know, I have to say 25 that I believe that the amount oftime that it


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took to get discovery in this case is an anomaly. I think that to get the discovery that quickly is truly unusual.

I think -- from a public policy standpoint, I think most DUI attorneys are going to get their discovery two, maybe three weeks after they request it.

CHAlRMAN \VHITNEY: But we know from testimony that Mr. Varela came to his first meeting with Mr. Clark with his goldenrod refusal fonn; right?

MR. PURVIANCE: That's true -- and they did speak about the refusal hearing.

CHAIRMAN WHITNEY: So Mr. Clark knew that Mr. Varela did not need an ALS hearing request because he didn't have an ALS suspension; right?

MR. PURVIANCE: That is true. CHAlRMAN WHITNEY: So wasn't a separate

ethical violation for him to -- for him, meaning Clark -- for Mr. Clark to send a letter to the Idaho Department of Transportation as a matter of his office policy because he was giving third parties infonnation about a confidential client

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too. CHAIRMAN WHITh'EY: But the client who

just has a refusal case -- not an ALS suspension --a client who refuses to blow is facing a hearing at the Magistrate Court over that refusal, but is not facing an administrative license suspension with a hearing however in Boise, doesn't that client have a right to have his embarrassing information that he was charged with DlJI just not given to the Department of Transportation?

MR. PURVIANCE: Probably. CHAlRMAN WHITNEY: Okay. MR. PlJRVIANCE: But how are you going

to stay within -- you know, we're required to have diligence, and here we have less than four days.

You know, I mean, it's like getting a case where the client shows up, you know, one year -- 364 days after a car accident. What do you do?

CHAlRMAN" WHITh'EY: Well, Mr. Purviance, I appreciate your comments so much -- and I want you to point out to me if I'm wrong about something -- and I'm going to answer your question

Page 467

MR. PURVIANCE: Well, you know, I can't and the "how" as it occurs to me is that when the 2 testify to how the ALS works, but the mechanics 2 DUI charged client walks into the office, on a 3 of it are that the Affidavit of Refusal from the 3 case-by-case basis the lawyer determines client 4 police officer is already there at the Department 4 needs an ALS demand, client needs a refusal 5 of Transportation. That gets sent immediately. 5 demand, client needs neither -- on every single 6 CHAIRMAN WHITNEY: But not in this case 6 DlJI client -- and that doesn't strike me as much 7 because he only had a -- Varela only had a 7 of a burden, quite frankly, because even if you 8 refusal; he didn't have an ALS. So the 8 have stafffuat are trained to do this, you can 9 Department of Transportation never got anything 9 check the box that says, "ALS," you can check the

10 from the officer in this case. 10 box that says, "Refusal," or you can do nothing. 11 MR. PURVIANCE: That's true. 11 Is that so hard? 12 CHAIRMAN VvHITNEY: That's right, isn't it. 12 MR. PURVIANCE: Well, you know, that's 13 MR. PURVIANCE: Yes. 13 assuming that your clients know what happened to 14 CHAIRMAN \VHITNEY: So Mr. Clark reall 14 them. That's assumes that you can actually believe 15 had no business telling people at the Department 15 your client about what happened. 16 of Transportation that this client had a DUI 16 I have a client right now that doesn't 17 charge, did he? 17 know what happened -- who was so drunk and passed 18 MR. PURVIANCE: Well, first of all, 18 out, he doesn't know whether he refused or 19 it's a matter of public record -- and I do agree 19 whether he blew. 20 that it was a mistake to send it there at that 20 CHAlRMAN \VHITNEY: That's a very good 21 point in time, but given this short time limit -- 21 point. 22 and, as a practical matter, how you would have to 22 MR. PURVIANCE: This is kind ofthe 23 deal with any DUI after this decision that this 23 nature of a DUI case. They often don't have a 24 panel makes, I think that -- I believe probably 24 very good memory of what happened. 25 I'm going to start sending off one in every case, 25 CHAIRMAN WHITNEY: Sure, sure, that's a


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get -- you know, they can't even get an open date for a court hearing. You can't even do that. 2 You can't even get routine, you know, agreements 3

basically just a fundamental lack of appreciation for Mr. Varela's rights to make a decision -right, wrong, or indifferent.

on routine things. That's where this -- that's 4 I also just have to comment that it where this Affidavit is from. It's an act of 5

desperation. 6

You know, the Rules of Professional 7

kind of dawned on me that we've heard quite a bit about Rule 3.1 and "frivolous." The Depariment ofTranspOliation letter is frivolous because,

Conduct, you know, cannot be interpreted out of 8

how this relationship had gone, and it can't be 9

taken out of context of those letters that were 10

exchanged back and fOlih. You can't take that 11

out of context with everything that's gone on 12

before. 13

I think the Motion to Dismiss, you 14

know -- and I still don't think that the First 15

if you look at the rule, there's absolutely no basis in law or fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law."

So we spent plenty of time on, "I couldn't proceed under that same rule to request a refusal hearing." I heard in closing

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Amendment argument has been rebutted here. I 16

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of Professional Conduct to make statements that, 18

you know, rebut false statements that are made 19

that the consensus is, "File the refusal request, and then deal with your client and withdraw," in the same nature that I guess you can withdraw the Department of Transportation.

about you. I don't think you give up those 20

rights. You have a right to defend your good 21

name, and this Affidavit went nowhere. 22

I'm repeating some of the evidence 23

here. I believe it's consistent with the items 24

I would suggest that the evidence is clear that a refusal hearing -- that "there was a basis in law and fact for doing so that was not frivolous, which includes a good faith argument for an extension, modification, or reversal of

" Page 477 Page 479

1 would ask the Hearing Committee to review the It's not the dilemma that they paint; 2 items in the Motion To Dismiss, and I would ask 2 it's advise your client, talk to your client 3 you to follow those arguments in your conclusion. 3 about what they may be doing may be contrary to 4 That would be my Closing Argument. 4 their good interest, it may be strategically 5 CHAIRMAN WHITNEY: Okay. Thank you 5 disadvantageous to the client, but fully advise 6 Mr. Purviance. 6 the client and make the decision. 7 Any rebuttal, Mr. Andrews? 7 What happened here was he made the 8 MR. ANDREWS: I just have a couple of 8 decision, and then didn't file the refusal 9 points. 9 hearing. It's not the dilemma, and it's not as

10 I think that, you know, there's still a 10 difficult as it's painted. These are fairly 11 fundamental failure to accept responsibility. 11 basic concepts that we deal with every day in all 12 We're at the conclusion. 12 of our cases. 13 I just -- it strikes me that one of the 13 Bad things can happen if you file it, 14 statements that he said that, "The client fmally 14 but good things can happen if you file it. 15 wore him down." You know, a client doesn't have 15 In a nut shell, that's, generally 16 to wear their lawyer down. That's not the way it 16 speaking, what we always tell our clients. 17 works. We have an obligation to give our clients 17 Thank you. 18 advice, to advise them what we think the best 18 CHAIRMAN WHITNEY: Thank you, 19 strategy is, and then the client has the decision 19 Mr. Andrews. 20 to make a choice. 20 Any surrebuttal, Mr. Purviance? 21 We have all had plenty of clients that 21 MR. PURVIANCE: No. 22 have made choices contrary to those that we have 22 CHAIRMAN WHITNEY: Okay. Well, it has 23 made, but it's not our case, it's not our 23 been a very well presented case on both sides. 24 Judgment; it's the clients case. 24 It's a difficult case for us, and we thank you 25 I think that a lot of what I heard was 25 both for your professionalism and your


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thoroughness. 2 We will be in recess, then. 3 (Hearing concluded at 3:11 p.m.) 4

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1 very good point, but in this case and in lots of 2 cases the clients will walk in the office with 3 both their ticket and their form -- or that the 4 officer gives them, that long fme print form 5 that says, "Either you have got an ALS hearing 6 coming your way if you demand it or you've got to 7 refuse it." 8 In those cases, can't you just decide 9 for every client what that client needs and do

10 no more than that client needs? 11 MR. PtJRVIANCE: I'm trying to think 12 back of the number of times over the last 16 years 13 where a client actually showed up with that 14 document, and -- I mean, in all seriousness. 15 MR. ANDREWS: With all due respect, 16 we're drifting again from the facts. 17 MR. PURVIANCE: I mean, you're dealing 18 with a client that's in crisis. There's just no 19 way around it. 20 This specific crime actually has an 21 element where your client isn't going to 22 necessarily have a very good memory of what 23 happened.

CHAIRMAN WHITNEY: Okay. Well, thank

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MR. PURVIANCE: I think: he was tlying to fulfill his client's wishes but, you know, he had huge misgivings against them.

I mean, if your client wishes to commit legal suicide, I guess you kind of have to help them.

MS. EDWARDS: My other question is, is there a time limit on the ALS request?

MR. PURVIANCE: It's seven days, as well. They are both seven days.

I think this letter that was generated was just out of an abundance of caution, you know? I think we constantly have to make stabs at --you know, it's kind of a relentless situation where you constantly have to be dealing with your client and trying to meet their needs, and it changes. Sometimes it changes hour by hour. It's not -- it's never anything fixed that you can say, you know, "Right now I absolutely believe that this is what we're going to do."

MS. EDWARDS: And I understand your strategy, but my question is ifhe's saying, "Ethically I can't do this, how do you reconcile that statement with the fact that he did it four

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1 MS. EDWARDS: I'm sorry. Could I just 1 MR. PURVIANCE: I think his client 2 ask -- I'm going to ask basically the same 2 fmally wore him down. 3 question I asked Mr. Andrews. 3 MS. EDWARDS: Okay. Thank you. 4 How do you deal with the fact that in 4 MR. PURVIANCE: As far as Count IV 5 one statement he's saying, "I determined that he 5 goes, I think it is quite correct that the -- I 6 shouldn't have a BAC hearing, and in another 6 think: Jay is certain and his staff that testified 7 letter it says, "Well, it was sent to the wrong 7 is certain that a written Fee Agreement is 8 agency by mistake, and so can we have it now"? 8 generated on every case. 9 MR. PURVIANCE: Well, I think there 9 She testified that she spent enormous

10 were several conversations that occurred. I'm 10 amount of time trying to fmd the file, and she 11 not necessary going to specifically say what I 11 could not. I do not think that there's an 12 think Mr. -- or I'll just call him "Mateo" -- it 12 ethical basis there. 13 seems like to me testified that he came in again 13 I think the office policy here is 14 after the 6th. It seems like to me there were 14 unequivocal that a written Fee Agreement was 15 three separate occasions there where he came in, 15 generated on each and every single case. 16 and it seems like to me that that request came 16 Count N Count V, I kind of want to 17 after possibly the third one. 17 address those together. There--18 MS. EDWARDS: I guess my question, is 18 CHAIRMAN WHITNEY: Can I intenupt you 19 how do you deal with the fact that the client is 19 on Count N, the written Fee Agreement? 20 saying on the one hand, "Ethically, I could not 20 MR. PURVIANCE: Sure. 21 ask for a BAC hearing," and on the other hand 21 CHAIRMAN WHITNEY: Here is my 22 there's a document saying, "We want a BAC hearing' 7.22 recollection of the testimony -- and I want you 23 "This is late, but will you give us one?" 23 to correct me if you know that I'm wrong. 24 MR. PURVIANCE: How do I respond to that?1 24 I recall Mr. Varela saying there was no 25 MS. EDWARDS: Yes. 25 Fee Agreement. I recall Mr. Clark saying he does


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not recall signing one with Mr. Varela, and 1 Mr. Clark saying yesterday he thought one was 2 routinely signed by his staff. 3

Then we heard from staff today who 4 said -- the staff member who testified -- who 5

said, "No, Mr. Clark signed those." Then your 6 exhibit has a signature by Mr. Clark on that 7 exhibit. 8

So most of that cuts against the 9 existence of a Fee Agreement in this case, 10 and most came from the mouth of your client. 11

MR. PURVIANCE: That's cOlTect. 12 CHAlRMAN WHITNEY: So from that, 13

how are we able to reconcile the testimony and 14 conclude that there was, in fact, a written Fee 15 Agreement between Jay Clark and Mateo Varela? 16

MR. PURV1ANCE: We have a missing file 17 here. There was a lot of diligence trying to 18 find it. It's clear that the original was sent 19 to the other office -- and I'll leave it at that. 20

CHAlRMAN WHITNEY: Thank you, sir. 21 MR. PURVIANCE: Mateo's testimony on 22

Count IV was that he knew that he could receive 23 the fee. My only comment on that is his 24 testimony is clear "I meY", I could iii

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when he already had Mitch Egusquiza as his attorney is pretty far-fetched.

Yes, he is 18 years old, but he was being represented by Mitch Egusquiza. There were many letters that were -- or several letters that were going back and forth, and there was already a well developed attorney-client relationship there.

The Affidavit itself had no effect. Nobody signed it. Nobody used it for anything. Clearly, it did not deter Mateo from pursuing this; it just had no effect.

You know, in Jay Clark's testimony about this atmosphere that has prevailed in Elmore County -- "this truly poisonous cesspool" I think he refelTed to it -- where a Magistrate Judge is repeatedly pleading with these attorneys.

You know, it's kind oflike the Rodney King statement, you know, "Why can't we just get along?" You know, it's a small town. There's just a few lawyers there.

Jay Clark's testimony that he was constantly under attack, there was whispering

Page 475

I just chose not to." accused him of -- you know, to accuse him of 2 If you review his testimony, you will 2 stealing a vehicle? 3 see that that is actually his testimony. I think 3 You can't just take this Affidavit out 4 I'm able to argue the inferences from that 4 of context -- you just can't do it. There's a 5 statement. 5 long relationship there. This client was in 6 I think by then there was a poisoning 6 Jay Clark's -- it's clear from his testimony that 7 of the relationship that happened. I think all 7 they're enemies, and already there's a whispering 8 of the evidence that you have here is really 8 campaign going on accusing Jay of doing things 9 clear on that. I mean, for a client to choose 9 like, you know, advising his client to go to

10 not to come in and get a fee because, you know, 10 Oregon to get a duplicate license, you know, and 11 for whatever reason I think a good inference from 11 there's already a -- you can tell from Jay's 12 that is that the relationship has been poisoned. 12 distress over this Affidavit about what is going 13 Finally, the Affidavit. Again, you 13 on here. It seems like to me that there is a 14 know, over the past year in The Advocate I've 14 systematic breakdown of civility in Elmore -- you 15 seen several arguments about civility. You know, 15 know, if you listen to Jay's testimony -- you 16 it -- and I agree that that is a wonderful public 16 have a copy of the lawsuit. You know what the 17 policy for the Idaho State Bar to emphasize, and 17 outcome of that was. 18 I think it needs repeated emphasis. 18 There is bitter acrimony here. You 19 The Affidavit that was sent to the 19 know, when you have his paralegal testify that --20 Idaho State Bar -- and I think it's very clear 20 you know, between the offices you can't even get 21 here that Mateo never signed it, and he didn't 21 routine things done, you know, that would really 22 sign it because he was being represented by 22 benefit both parties. 23 Mitch Egusquiza. 23 You know, you've got such a breakdown 24 I just find any statement on his pali 24 in civility where, you know -- staff members when 25 that, you know, he was concerned about being sue~25 they call each other, you know, they can't even


457

1 REPORTER'S CERTIFICATE

2

3 I, BARBARA BURKE, CSR NO. 463, Certified

4 Shorthand Reporter, certify:

5 That the foregoing proceedings were taken

6 before me at the time and place therein set

7 forth, at which time the witness was put under

8 oath by me;

9 That the testimony and all objections made

10 at the time of the examination were recorded

11 stenographically by me and were thereafter

12 transcribed;

13 That the foregoing is a true and correct

14 transcript of my shorthand notes so taken;

15 I further certify that I am not a relative

16 or employee of any attorney or any of the parties,

17 nor financially interested in the action.

18 I declare that the foregoing is true and

19 correct.

20 Dated this 1cL~ da y 0 f J):~~--, 2--01Q· 21

22 _:Q..t2dW.~5iQ,L/4~ ___ _ 23 BARBARA BURKE, CSR NO. 463

24 Notary Public for Idaho

25 My Commission expires 4-30-2014.

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accept 477: 11 addition 443: 19 Affidavit 260:6, 11 472:10,16 and/or 423: 1

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accomplished 443:21444:13 408:18429:18,19 402:16446:17 427:21466:24

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23 488

368:7372:8,15 driving 262: 19

288:25 289:6,9 322:5 323:3,16 344:20,21 348:5 348:17350:8 351:20359:21 361:5 364:20 369:12370:1,7,10 370:12,14,16 372:8373:13 415:13 416:9

duties 304:21 320:3 320:7389:1,14 390:14,17 395:24

duty292:19298:15 298:17321:18 450:13

E E257:1,1258:1

260: 1 261:1 262: 1 263:1 264:1 265:1 266:1

435: 13 452:9 earn 302: 1 drop291:16416:19 earned283:10

424:13 319:5 dropped 291 : 18

307:4 drove289:10,12

346: 14347:4 348:4,15352:20 353:13361:3 453:12

drug410:14 drunk 360:8

467:17 due417:10 423:10

431:5468:15 DUI271 :17277:8

288:17289:14 291:16299:4 303:3322:12,14 326: 16 330:4,5 341:7 360:6,11 363:17368:22 390:15397:10 409:15410:1,5 416:19421:11,17 424:14450:8,10 452: 12 454:3 459: 1 460:24 463:9,21,22 464:5 465:16,23466:9 467:2,6,23

DUls 398:13 duly 268:6378:20

387:1 406:14 duplicate 475: 1 0

easier 339:4 easiest 296:7 easy301:21307:15

396: 1 444:20 edification 443: 8 editorials 311:4 Edwards 257:6

267: 12288:2 305:11 329:15 330:22331 :13,22 332:7,20346:17 346:20347:1,14 354:14355:9,19 356:2,10,21 361:13363:19 364:5,9365:7,9 365:23 366:14,17 385:13,15,20 401:23402:4,7,14 402:17,24403:2,5 409:9410:8,20,25 413:4 438: 13 440:8441:15 469:1,18,25470:7 470:21 471:3

effect293:10 314:12435:3 474:9,12

effective 368:3 effort417:12 egregious 302: 17

452:6 Egusquiza 258:9

259: 11 262:4 263:8,9,14264:10 279:22,23 280:22 281: 17 283 :23 293:14,22294:7 294:11 297:3,8,24 301: 12306: 1 307:14309:3 312:13 316:18,23 317:6,10,12 318:23,23330:7,8 360:3404:8 405:11,14,15,20 405:23 406: 1 ,2,13 411:7414:3 430:23435:9,12 435:14456:11,13 458:9,15,23,25 462:11473:23 474:1,4

Egusquiza's 280:3 280:17281:8 296:12311:23 315: 13 396: 16 419:24459:10

eight338:19 either 272: 11

274:18289:25 321:4 339: 16 349:16382:18 392:15410:6 415:7422:10 428:4 430:12 441:7468:5

Elect 387:25 element273:8

299:1 326:15 468:21

elements 298: 16 299:8440:19

Eligible 445:5 Elm 379: 19,20

380:17,22381 :2,5 381 : 13 , 19,25 382:2,9,13,19 383:3,19384:6,8

Elmore 324:24

331:9413:24 415:21 416:3 459:2474:15 475:14

else's 310: 19 435:23

embarrassing 466:8

emblematic 434:5 435:21

emergency 450:25 emotionally 308:7 emphasis 473: 18 emphasize 473: 1 7 employed 379:3 employment

331:15449:19 enable 416:8438:2 enclosures 260:4 ends 300:24 310:4 enemies 475:7 energy 301:19 enforced 442:24 enforcement

300:11 engaged 333:9 enhance 452: 11,15 enormous 471 : 9 enter 271: 14

293 :23 294:9 389: 12

entered 389: 15 enters 456: 11 entire 358:2446:3

455:23 457:8 458:1

entirety 404:25 entitled 318: 13 entitles 443: 13 entries 354:18,21

355:1,4,18389:16 428:21

entrusted 456:22 entry 354: 17 356: 1

390:2428:19 enumerated 288:5 enumerating

452: 17 envisions 449:22 Epis 272:25 equally 325: 18,22 equivalent 277: 13

450:25 Erin 259:4 335: 11

337:7,8386:4,7 386:17,20,25 434:2

err368:13 erroneously 419: 15 error 269:19,21 escape 41 7: 11 especially 275:6

286:13 303:3,23 304:22 360:7 463:2,16

essentially 458: 13 establish 304: 12

419:17444:23 estate 445:9 estimate 382:4 estimates 3 83: 13 ethical 292: 13

304:21314:1 320:2,6,7321:12 321:16357:7 358:25418:12 420:7,20454:10 464:20471:12

ethically 421 :22 469:20470:23

evening 352:9 382:25

event 348: 13 events 343 :20 everybody 270:9

292:15 everybody's 292: 16 evidence 260:24

289:5 299:5 330:6 342:23,24,25 343:13,16351:18 353:1,2,4,16,16 353:19357:25 359:1 385:2405:1


468

414:23 415:24 428:15430:15 433:16446:19 461:25473:8 476:23478:20

evidentiary 260:9 299:22 364:20 409:21

exacerbate 304: 15 exact447:9 459: 12 exactly 282:1

285:20287:17,19 293:5338:10 398:24424:4,23 434:16

exam300:14 320:10323:5

examination 258:4 258:6,8,10,12,14 258:17,18,19,20 258:21,22,23,24 259:2,3,5,6,7,8,9 259: 12297:21 326:4357:5 369:21 375:18 378:22387:3 401:3,5406:16 446:4

examiner 462:22 example450:4 exceed286:10 excessive 303 : 1 exchange 271: 19

330:1416:10,19 exchanged 476: 11 excuse 343:22

459:25 exhibit 267:2

268: 13, 18,18,21 268:22 269: 13 272:5273:10 275:1 276:24 278:7,8280:10,18 281:23283: 15 284:5286:1 287:25288:3,4 291:23,25294:25

295:1,5,11,16,20 305:5309:15,19 310:7 317:24,25 318:5332:24 333:21 334: 15,21 334:21 335:15 336:3,7,12,22,25 338: 14340: 1 0 342:7,19343:4 345:9346:17,20 346:22347:9,23 362:6,23 363:22 364:4 373:5,10 376:21 379:8 398:25399:1,11 399:16,25400:2,4 400:11403:21 417:17,24419:21 424:7427:23,25 428:2434:3,24 460:2472:7,8

exhibits 260:2 261 :2,25262:2,25 263 :2,25 264:2,25 265:2266:2 337:16338:1 341 :15355:10 386:11,11413:17 427: 15

exist 321: 17 430:11 existed 430:4 existence 430: 1

472:10 existing 478: 12,25 exists 432: 1 expect 284: 11 expected 278: 24

279:1 expense 329:3 experience 302: 18

322:1 358:16 456:1,22457:8 461: 19

experts 328:5 expiration 290: 1 0

290:20 expired 293: 10

explain 282:20 299:13 318:12,13 318:24352:8,13 425:20431:16

explained 288: 12 339:3,13 346:2 419:13

explanation 269:7 414:6418:3 434:21

Explosive 388: 1 expressed 292: 12

294:1 extension 478: 11

478:24 extent 343:5 431:17 extremely 358:20 ex-client435:7,8 ex-clients 314:5 eyes 302:1 e-mail 363:9,1 0

412:23413:1,4,5 E-r-i-n386:18,21

fabrication 279: 16 facing 466:4,6 fact279:14285:23

286:4289:9 293:25301:14 326:7327:2 328:21 346:9 349:20356:19 359:25412:12,19 418:1 423:15 425:18426:14 429:9434:9436:5 448:7,16469:4,19 470:24472:15 478:9,22

factor 436:18 437:3 437:4

factors 436: 17,20 436:20437:25

facts 278:2,3 302: 17 304:6 345:17346:5,5 394:14408:15

418:25419:1,13 419:17452:6 454:1468:16

factual 2 77 :20 292:20325:8 343 :20 344: 1 451:6456:9

factually 340:8 failed 323:4364:20

374:18414:11,12 425:21 433:3 461:17462:7

fails 320:5 failure 260:9

302:21366:11 367:10416:25 418:22419:8 421 :25 422:24,25 427:9428:10 432:22,23437:20 440:9477:11

fair 409: 13 fairly 302:17 328:7

479:10 faith 302:1 353:1

426:15478:10,23 false 279:9 281:24

312:22 313 :2, 13 351:10438:20 440: 11,12,17 451:2 476:19

falsehood 313:7,14 falsehoods 314:6 familiar 460:6 family 352:8 361:2 far 314:3 359:2

380:14381:4,19 381 :21 382:4 408:25421:13 459:20471 :4

farmers 358:11 far-fetched 474:2 fast455:22 faster 293: 14 fault 292:16 435:23

435:25 fax 261:8 275:2,6

Page 489

291:22393:9,13 417:18418:9 427:25

faxed 419:21 438: 16

faxing 275: 10 Fe 256:9267:7 February 366: 10

413:7 fee 266:9283: 13, 18

294:8,9317:5 318:14319:13,19 319:24402: 18,21 403:9,20407:3,6 407:10430:1,4,7 430:21 431: 12,12 431:15,16,17,19 432:9,11,16,22,23 433:4,10,15,15 443: 11 471:7,14 471:19,25472:10 472: 15,24,25 473: 10

feel 299:7 308:2 356:15393:22 461: 17462:7

feeling 444:6 455:20

feelings 408 :24 feels 315:2 fees 283:2307:6,9

319: 1 feet 381:7 382:6,14 felony418:7 felt 330:13 377:7

377:15394:8 408:4,21

field 323:4 fifth 376:22 fight 304:21,24 figure 463 :5,21 fIle 283: 19,25 284: 1

284:2,4,23 285 :25 292: 17,19294:8 301:18316:2,22 317:4319:10,11 319: 13,20,21,23


469

p;:,ro - '-"'-::1'- 490

324:1,1,12,15,19 427: 15,24434: 17 flat 430: 13 393:19427:23 fuUy479:5 324:23 325:1,20 458:24471 :2 flip 340:12 474:6476: 11 fundamental

330:5331 :3,4,14 473:13 477:14 flood 357:25 forthright 414:6 322:23477:11 331:19332:17 financial 3 70:22 flows 414:10 fortunately 355:6 478:1

353: 1 354:6357:7 fmd292:10 310:22 418:21 forward 350:21 further 306:6 316:9 358:25,25361:16 327:4337:15 focus 350: 19 450: 17 325:23 329:11

361: 17 389:12 345:12347:11 focusing 350:7 found 308:14 369:17384:17

391:7,9,15392:5 364:15391:7,17 folder 319:21 337:23 380:16 385:8 398: 1

392:8396:16,20 403:23426:24 follow 274:13,19 384:9388:22 400:25401:19,21 396:22397:11,13 430:17,18433:24 303:18477:3 391:21 426:12 402: 12403: 15 397:14,20400:15 471:10472:19 followed 391: 1 foundation 308: 1 409:4 400:21 403:22,24 473:24 following 290:22 four 303:5,13 Furthermore 302: 5 406:22407:1,4 fmding 383:12 291:3322:4 331:11 348:13 futility 425:9 428:8

412:25420:2 391:9400:13 331:24333:1 417:9449:4 future 302:4

428:11 430:12,17 fmdings412:19 394:22421:2 456:15458:2 430: 19433:8 436:5,16,25 423:14 466:16470:24 G

439:19441:3 437:24 follow-up 361: 12 fourth 326: 1 7 G257:9,13

447: 17 450: 13 fmds 304: 1 0432:8 366:18393:10 346:24 game452:15

451:7452:8 fme 305:11 396:4 402:8411 :1,4 frame 290: 10,20 gap 322:16,19

460: 12, 16,21,25 405:23406:10 fond 394:7,8 416:20460:8,10 324:2363: 13

461:4462:25 413:4426:23 foolish 317:8 frames 290:21 gaps 349: 18

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478:16479:8,13 first 261 :20270: 1 0 388:9 436:12442:20 gathered 282:3

479:14 282:24 283:7 foremost 451: 11 443:25467:7 Gauge 453:18

filed 298:1 301: 12 286:6,7288:5,14 forgery 440:20 frantic 449:18 general 442:22

305 :25 306:3,17 290:23 303:4 forget 307:16 fraud 311 :16 generalization

313:6,11314:21 318:6,7332:5,17 form269:17276:6 432: 18 462:13

317:16,18324:8 332:24341:16 276:8277:14,20 frequently 333: 13 generally 269:6

325:8391:6417:9 342:9346: 12 278:6283:16,17 Friday 290:6, 12, 16 303:17309:3

429:10,12447:16 347:2378:15,20 308:3,9309:5 friendly 393 :6,10 326:19409:14

448:11 449:1 387: 1 403: 11 310:11312:1 393:15 438:7443:15,22

459:4 406:14420:15 313:17314:8 friends 352:8 444:17479:15

lues 298: 19315:14 430:17451:11 315:9317:22 ' frivolous 292: 17 generate 326: 1 0

389:12391:10,19 452:14453:3 322:14325:10,10 301: 18,25303:21 generated 463:9

391:21 397:9 462:6464:9 325:15330:16,18 305:2357:7447:5 470:11471:8,15

420:18 465:18476:15 339:2340:7341:6 447:19450:3,12 generating 463:6

Iiling279:20 286:3 fits 432: 17 341 :10,17362:9 461 :7,8478:6,7 getting 299: 13

301 :25303:21 five 339:24,25 362:11,22367:23 478:10,23 329:21 330:3

325:11,16330:23 348: 14380:21 369: 15 372:23 front 306: 1 0 338:12358:5

353:3357:10 436:9449:1 384:3463:8 320:22,23 323: 14 393:19440:5

413:22,24416:2 453:16456:16 464:11 466:25 333:21 334:15 442:20 444: 19

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447:21 460:19 295:9296: 19 formal 449: 1 340: 10 345:9 giant 418: 12

463:8 351: 17 formality 393: 12 373:6 give 269:2297:4

fill 349: 17 fix 426:5 formed 351 :6,8,12 fulfill 4 70:2 303:9,19304:13

fma1418:16 fixed 431: 12,12 forth 270:24311:5 full 287: 12370:7 305:5,21310:3

fmally 397:6 470: 18 315:5,14370:5 374:22444:12 323:1 331:3,4 335:23 355: 1


470

365:18376:1,3,13 413:1,2 414:19 442:2450:4 457:20,20469:23 476:20477:17

given 274:15 301:17317:1,3 335:25368:13 375:20,22,25 402:20408:20 450:22455:11 459:9463:2 465:21466:10

gives 468:4 giving 409: 13

464:23 go 267:3,4,24

274:21 279:14 280: 13 282:21 288:11290:22 302:20303: 12 311:13 313:1 316:12323:4 328: 6 33 1 : 18 344:25 346: 11 365:2368:24 373:23374:14 379:14380:23 382:8 386:8,22 391 :24 396:4 399:11 401:3 402:1,16404: 12 410:4,15412:4 418:19426:5 435:15437:25 445:14446:9,17 450:17451:17 452:4 457:14,16 462:18475:9

goals 452:20 goes 269:5 299: 11

315:4 382: 1 421:23452:15 461:2471 :5

going 273: 13 274:5 285:6,12294:13 303:15304:19

308:24309:24 310:3314:5 325:20353:15 356:17366:8 376:3 377: 17 381:2395:1 398:24,24405:4 406:3407:16 411:20413:16,18 415:19,23416:4 41 7: 1 ,21 422: 1 0 424:25425:17,25 426:3,5431:4,10 440:7,22441 :25 444:12,18445:12 449:12451:19,25 456:3460:11,13 464:5465:25 466: 13,24468:21 469:2,11 470:20 474:6475:8,12

goldenrod 464: 1 0 good 302: 1 307: 1 0

311:17353:1 364:13376:8 399:4,6405: 1 0 422:11 426:15 436:12437:5 459:14462:16 467:20,24468:1 468:22473: 11 476:21 478:10,23 479:4,14

gosh 396:12 gotten 271 :22

293:13 governing 437:23 grant425:15 granted 362:16 grapple 455: 1 0 great319:15

347:16410:15 413:5415:16 428:3444:2

greater 409:22 410:13

grievance 279:20

286:3 314:4,20 389:3 391:6392:2 395:16

ground 308:12 grounds 277:23

304: 13 311: 17 329: 19330:3,11 356:6418:5 439: 14,14

guess 305:9307:11 307:12332:15 333:4364:9380:5 381:15427:23 440:8444:19 469:18470:5 478: 18

guide 458:8 guilty 260: 15

289:16345:19 414:1437:11

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262:1263:1264:1 265: 1 266: 1

hammered 462:8,8 hand 298:7 316:22

317:4405:25 406:4469:20,21

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308 :25 311: 12 415:19416:14,23 432:4451:15,21 452:11 455:5 479:13,14

happened 275:13

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happens 326:7,13 327:2410:22

happier 307:16 happy 294:23

297:1 hard307:12370:2

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343 :23 406:6,18 406: 19440:22 441:18452:16

heard 278:23 280:17312:7,14 324: 13 352:7 369:2385:4394:6 417:6435:16,23 462:9472:4 477:25478:5,15

hearings 326:23 398: 12451:24 461:20

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405:13

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Pa 492

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Julia263:16,21 264:3,8,9,11,17 264:20,23265:5

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signatures 337:20 337:25

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489


IDAHO STATE BAR, )

) ) ) )

) ) ) )

)

)

Plaintiff,

v.

Case No. FC 09-05

FU,rnINGS OF FACT, CONCLUSIONS OF LA\V, AND RECOMMENDATION

JAY P. CLARK,

Respondent.

The Hearing Committee of the Professional Conduct Board ("Committee") conducted a

hearing on December 2 and 3, 2010. Based upon its review of the record before the Committee,

the Committee recommends to the Idaho Supreme Court that Respondent be suspended from the

right to practice law in the State of Idaho, as further described herein. That recommendation is

based upon the following Findings of Fact and Conclusions of Law.

I. FINDL~GS OF FACT

Procedural Background

1. On May 20, 2009, Plaintiff filed its Complaint. On July 22, 2009, Respondent

filed his Answer to the Bar Complaint ("Answer").

Findings of Fact, Conclusion of Law and Recommendation - I

490

2. On or about March 10, 2010, Respondent filed his Motion to Dismiss Complaint.

On April 1, 2010, Plaintiff filed Plaintiff's Opposition to Respondent's Motion to Dismiss

Complaint (Filed Under Seal). The Committee heard argument on Respondent's Motion to

Dismiss on April 8, 2010. On April 9, 2010, the Committee entered its Order Denying

Respondent's Motion to Dismiss.

3. Prior to the hearing, Plaintiff and Respondent resolved the allegations contained in

Count~Q);1~e9JJ:b~~~CWllplaint to the satisfaction of both parties. Consequently, the hearing

was conducted on the allegations contained in Counts Two through Five of the Complaint.

At the hearing, the following exhibits were admitted, primarily by stipulation: Plaintiff's

Exhibits 40 through 89, and Respondent's Exhibit L, N, and O. The hearing was reported

by M & M Court Reporting Service and a transcript ofthe hearing constitutil1g4§gp~ges

was prepared. Mateo Varela and Mitchell Egusquiza testified on behalf of Plaintiff at the

hearing. Respondent Jay Clark, Chris Melgaard and Erin Rembert testified on behalf of

Respondent. Mr. Egusquiza testified on rebuttal for Plaintiff.

Facts as Admitted Qr Established at Hearing

4. The Complaint and the Answer establish a number of admissions of fact, identified

by reference to the paragraph of the Complaint and the Answer. Additional facts were

presented at hearing and are identified by reference to the hearing transcript or respective

exhibit.

of law in the State of at which time he took the oath required for

admission, wherein he agreed to abide by and follow the Idaho Rules of Professional

Findings of Fact, Conclusion of Law and Recommendation - 2

491

Conduct as adopted and amended by the ISB and the Rules of the Idaho Supreme Court.

At all times mentioned herein, Respondent has continuously been a member of the ISB

under the jurisdiction of the Idaho Supreme Court. (Complaint' 1, and Answer ~ III).

6. The Supreme Court of the State of Idaho has approved and adopted the Idaho

Rules of Professional Conduct, governing the ethical conduct of attorneys licensed to

practice in the State of Idaho, which Rules were in effect at all times relevant herein.

(Complaint,2, and Answer' III).

7. On May 28,2005, Mateo Varela was cited with driving while under the influence

of alcohol. Mr. Varela was not physically inside the vehicle he was accused of driving at

the time of his arrest. According to the Mountain Home Police Department incident

report, Mr. Varela was intoxicated and had the keys to the vehicle in question. Mr. Varela

initially denied driving the vehicle, but later told the officer, "Take me, I drank and drove

home." Mr. Varela failed the field sobriety tests. He refused the breathalyzer test and

was served a Notice of Suspension for Failure of Evidentiary Testing (''Notice of

Suspension"). (Complaint' 26, and Answer' III).

8. Mr. Varela was also served an Idaho Uniform Citation ("Citation"), which

referenced his refusal to take the breathalyzer test. (Exhibit 40, p. 9).

9. The Notice of Suspension stated that pursuant to Idaho Code §18-8002, Mr.

Varela's Idaho driver's license would be suspended for refusal to submit to an evidentiary

test for alcohol concentration offered by the arresting officer. The Notice of Suspension

also stated that "[Mr. Varela had] the right to submit a written request within seven (7)

days to the Elmore County Magistrate Court for a hearing to show cause why [he]


492

refused to submit to or complete evidentiary test and why [his] driver's license should not

be suspended." Therefore, the request for hearing was to be submitted to the Elmore

County Magistrate Court ("Court") no later than June 4, 2005. However, because June 4,

2005 was a Saturday, the request was to be submitted by Monday, June 6, 2005.

(Complaint, 27, and Answer' III).

10. On May 31, 2005, prosecutor Phil Miller filed a misdemeanor DU1 charge against

Mr. Varela. (Exhibit 67). He also filed the arresting officer's Affidavit of Refusal to Take

Alcohol Test and Affidavit of Probable Cause for Arrest. (Exhibits 41 and 43).

11. Also on May 31, 2005, Mr. Varela retained Respondent to represent him in the

DUI case. Mr. Varela infonned Respondent that he did not want to lose his driver's

license and therefore wanted to request a show cause hearing before the Court.

(Complaint' 28, and Answer' III).

12. Mr. Varela testified that he brought the Citation to the May 31, 2005 meeting with

Respondent and infonned Respondent that he had refused the breathalyzer test.

(Transcript p. 47 (hereinafter Tr.)). He testified that Respondent agreed to request a

hearing based on the refusal. (Tr. pp. 47-49).

l3. In his October 2005 response to Bar Counsel, Respondent stated that he explained

to Mr. Varela during their May 31,2005 meeting that the Notice gave Mr. Varela seven

days to challenge the refusal. (Exhibit 76, p. 2). He stated that he also infonned Mr.

Varela during that meeting that he may have sufficient grounds to challenge the refusal

based on Mr. Varela's statement that he was not driving at the time of arrest. (Id.)


493

14. At hearing, however, Respondent testified that he was not aware during the M~ay

31, 2005 meeting that Mr. Varela's case involved a refusal and stated that such a "critical

issue" would have been reflected in his meeting notes. (Ir. p. 200).

15. On or around May 31, 2005, Mr. Varela paid Respondent a $500 retainer fee. (Ir.

pp. 49-50). Mr. Varela testified that he did not review or sign a fee agreement for

Respondent's services and understood at the time that the $500 fee included Respondent's

representation for the license suspension hearing and underlying DUI charge. (Tr. pp.

49-50,97, 107).

16. Respondent testified that Mr. Varela signed a fee agreement that stated the $500

was a nonrefundable payment earned receipt. (Tr. pp. 218-220, ~ ~~~~~~~~~~ ~C ~~ ~~~~~ ~~~

233-234,283). He testified that his staff prepared all fee agreements for clients and that

Mr. Varela's fee agreement would have been included in the file his office sent to Mr.

Varela's substitute counsel, Mitchell Egusquiza. (Tr. pp. 218-220, 283-284).

17. Mr. Egusquiza testified that the file he received from Respondent did not include

any fee agreement. (Tr. p. 407).

18. Respondent's former assistant, Erin Rembert, testified that Respondent, not his

staff, prepared all fee agreements for clients.

19. On May 31, 2005, Respondent filed, on Mr. Varela's behalf, a plea of not guilty

and discovery requests. (Complaint' 29, and Answer' III).

20. On June 3, 2005, Respondent received discovery responses from Mr. Miller.

(Exhibit 47). A Notice of Service indicating that the discovery responses were hand-

Findings ofF act, Conclusion of Law and Recommendation - 5

494

delivered to Respondent was filed with the Court at approximately 3:30 p.m. on June 3,

2005. (Exhibit 79, p: 3).

21. In his October 2005 response to Bar Counsel, Respondent stated that he infoID1ed

Mr. Varela on June 3, 2005, that the Court would not find sufficient grounds for the

refusal because Mr. Varela had admitted to driving while intoxicated. (Exhibit 76, p. 3).

He stated that he informed Mr. Varela that if they proceeded to hearing, Mr. Varela would

be required to perjure himself and Respondent would be required to withdraw. ad.)

22. Respondent testified that he called Mr. Varela on June 3, 2005, to discuss the

contradictory statements reflected in the police report and to advise Mr. Varela that he had

"zero chance" of winning at a hearing on the license suspension. (Tr. pp. 205-206,230).

23. Mr. Varela denied that Respondent called him or otherwise communicated with

him on June 3, 2005. (Exhibit 79, p. 1, Tr. p. 91). Respondent's billing statement did not

reflect a telephone call to or from Mr. Varela or an office conference with Mr. Varela on

June 3, 2005. (Exhibit 76, p. 5).

24. Respondent failed to submit a written request for a show cause hearing to the

Court by June 6, 2005. (Complaint -U 29, and Answer -U III).

25. Mr. Varela subsequently lost his job because he did not have a valid driver's

license. (Ir. p. 65).

26. On June 6, 2005, Mr. Varela called the Idaho Transportation Department ("lTD")

to verify the status of his driver's license. (Tr. pp. 52-53). He was informed that his

request for a hearing had been sent to the lTD in error because the request should have

been filed with the Court. (Id.) Mr. Varela testified that he then called Respondent, who


495

informed him that the request was properly submitted to the ITD and that, in any event, a

hearing was irrelevant because 11r. Varela's case was without merit. (Tr. pp. 54-55). On

that day, :Mr. Varela reiterated his request for a hearing. (Tr. p. 55).

27. Respondent acknowledged that he spoke with:Mr. Varela about his case on June 6,

2005. (Tr. p. 230). He testified that he informed Mr. Varela that he could still file the

hearing request that day but Mr. Varela lacked grounds to challenge probable cause. (Tr.

pp. 210-212). He testified that :Mr. Miller still had authority at that time to withdraw the

license suspension in exchange for a guilty plea to the DUl charge. (Tr. pp. 222-223,

292-293). He testified that he infoffi1ed Mr. Varela that he would talk to :Mr. Miller and

attempt to "cut a deal" because keeping the driver's license was important to Mr. Varela.

(Tr. p. 223). Respondent testified that when he spoke with 11r. Miller within a few days

of his discussion with :Mr. Varela, Mr. Miller was not receptive to withdrawing the

suspension in exchange for a DUI plea. (Tr. pp. 224-225). Respondent also testified,

however, that he never spoke with J\1r. Miller at any time after June 6, 2005, to pursue a

plea offer. (Tr. pp. 226, 292-293). He indicated during his testimony that although he

told Mr. Varela that he would contact Mr. Miller about a plea offer, he did not do so

because :Mr. Varela had a better chance of obtaining a favorable plea deal the longer his

case "languished." (Tr. p. 226).

28. In his October 2005 response to Bar Counsel, Respondent stated that :Mr. Varela

came to his office the week of June 6, 2005, and was "desperate" to avoid the license

suspension because he would lose his job. (Exhibit 76, p. 3). He acknowledged that his

office had already submitted a hearing request to the lTD as standard procedure. (Id.)


496

Respondent stated that he agreed to talk to Mr. Miller about withdrawing the suspension

in exchange for a guilty plea to the DUI charge. (Id.) He stated, however, that no such

offer was made by Mr. Miller in :Mr. Varela's case. (Id.)

29. On June 10,2005, Respondent's former assistant, Joni V3lll, faxed a letter to the

ITD requesting a hearing on Mr. Varela's license suspension. (Exhibit 86). The letter,

dated June 6, 2005, appeared to be signed by Respondent and set forth various grounds

for the license suspension hearing. (Exhibit 86, pp. 2-5). In a notation on the fax cover

page, Ms. Vann indicated that the letter may be a duplicate request. (Exhibit 86, p. 1).

30. Respondent testified that the ITD letter was a "form letter" that his staff was

trained to send as a "stop gap:'jl1 ~~llJ::)lJI cases., (Tr. p. 213). He testified that Ms. Vann

signed his name on the letter, which he had not seen at any time prior to the hearing. (Tr.

pp. 216-217, 244-247). He testified that he did not sign or authorize the letter and

suggested that someone had obtained the letter from his original file without his

knowledge. (ld.) The letter, which served no purpose in Mr. Varela's license suspension

matter, was provided to Plaintiff by the lTD.

31. At hearing, Respondent's former assistant, Erin Rembert, identified the signature

on the lTD letter as Respondent's signature. (Tr. p. 399).

32. Also on June 10,2005, Respondent faxed to Mr. Miller a copy of the letter he had

written to ITD. On the fax cover sheet, Respondent stated that the attached letter

requesting a hearing on Mr. Varela's license suspension was sent "in error to the Idaho

Transportation Department on June 6, 2005." Respondent asked whether Mr. Miller


497

would object to a hearing even though Respondent had not requested a hearing with the

Court. (Complaint ~ 30, and Answer fi III).

33. Despite his admission in the Answer, Respondent testified at hearing that Ms.

Vann sent the June 10, 2005 letter to Mr. Miller without his knowledge or authorization.

(Tr. pp. 270-271, 273-275).

34. On June 20, 2005, Mr. Miller responded to Respondent's request that he consent

to a hearing. Mr. Miller stated that "failure to properly present a request for a refusal

hearing before the court results in the court losing jurisdiction over the matter." Mr.

Miller did not agree to waive the jurisdictional requirement. (Complaint ~ 31, and

Answer ~ III).

35. Respondent admitted that he did not initiate plea negotiations with Mr. Miller in

an effort to have Mr. Varela's license suspension terminated after receiving Mr. Miller's

June 20,2005 letter. (Tr. pp. 272, 333).

36. Shortly after June 20, 2005, Mr. Varela terminated Respondent's representation

and retained attorney Mitchell Egusquiza. On June 28, 2005, Mr. Egusquiza filed a

Notice of Substitution of Attorney. On July 6, 2005, Mr. Egusquiza filed a Motion for

Hearing ("Hearing Motion") in Elmore County requesting a hearing pursuant to Idaho

Code § 18-8002 to determine whether Mr. Varela's license should be suspended for refusal

to submit to an evidentiary test for alcohol concentration. (Complaint ~ 32, and Answer ~

III).

37. :Mr. Egusquiza testified that he filed the Hearing Motion in an effort to "realign"

:Mr. Varela's case after Respondent failed to file a timely hearing request with the Court.


498

(Tr. p. 130). If the Court had granted the Hearing Motion, Jvfr. Egusquiza testified that he

planned to question the arresting officer about the circumstances of Mr. Varela's arrest,

including whether the officer or any witnesses actually observed Mr. Varela in actual

physical control ofthe vehicle while under the influence. (Tr. pp. 130-132). Contrary to

Respondent's statements, Mr. Egusquiza testified that Mr. Varela would not have been

required to testify as a witness if a license suspension hearing had been granted and Mr.

Egusquiza did not anticipate calling Mr. Varela as a witness. (Tr. pp. 132-133).

38. On July 19,2005, Mr. Egusquiza sent Respondent a letter stating that Mr. Varela

:((;guested a refund of the $500 retainer fee based on "misgivings" about Respondent's

handliD,KQf th~criminal case. (Exhibit 68).

39. On July 22, 2005, the Court denied :Mr. Egusquiza's motion for a hearing on Mr.

Varela's license suspension. The motion was denied because a hearing had not been

requested by June 6, 2005, pursuant to Idaho Code §18-8002. The Court also ordered the

suspension of Mr. Varela's driver's license and all driving privileges for 180 days.

(Complaint ~ 33, and Answer ~ III).

40. Also on July 22, 2005, Respondent sent Mr. Egusquiza a letter asking him to

explain Mr. Varela's "misgivings" and whY¥~'~'\T<irela would be entitled to a refund of a

"non-refiIpcifibleJee;' (Exhibit 69).

41. At heariI1~,~(;~pondent testified that he never refused to return the unused portion

ofhis$5QQJ~e:~(Tr. pp. 282, 312, 318).

42. On August 15, 2005, Mr. Varela filed a grievance against Respondent. (Exhibit

70). He stated that after ITD informed him that Respondent filed his hearing request with


499

the wrong entity, he called Respondent and was informed that the request was properly

filed with ITD and that ITD would notify the Court. (Exhibit 70, p. 2). He asserted that

Respondent also told him at that time that he had no defense to the DUI charge and

refusal and therefore he would not prevail at hearing. (Id.) Mr. Varela stated that

Respondent never informed him that the $500 fee was nonrefundable and denied that he

signed a fee agreement. (Id.)

43. On August 29, 2005, Respondent received a letter from Bar Counsel's Office

requesting a response to Mr. Varela's grievance. (Exhibit 72).

44. On September 2, 2005, Respondent wrote to Mr. Varela offering an itemized

statement and a refund in the amount of $218.75. He informed Mr. Varela that he could

pick up the refund check at Respondent's office. (Complaint GJ 45, and Answer GJ III).

45. 2005, instead of mailing the refund check to Mr. Varela,

Respondent wrote another letter to him asking that Ivtr. Varela schedule an appointment to

pickuptherefundcheck. (Complaint ~ 45, and Answer GJ III).

46. Respondent testified that he did not send the refund check to Mr. Varela because

his office had three different addresses for Mr. Varela and he did not know where the

refund check should be mailed. (Tr. pp. 234,294). However, Respondent's September 2,

2005 and September 16, 2005 letters were sent to the same address Mr. Varela entered on

his grievance. (Exhibits 70, 73 and 74).

47. Respondent also testified that he did not send the refund to Mr. Egusquiza directly

because he did not trust Mr. Egusquiza. (Tr. p. 234).


500

48. :Mr. Varela did not reply to Respondent's September 2005 letters because he did

not want to speak with Respondent or schedule an appointment to obtain the refund.

(Exhibit 79, p. 3, Tr. p. 69).

49. On October 11,2005, Respondent submitted a letter to Bar Counsel responding to

:Mr. Varela's grievance. (Exhibit 76). He enclosed with that response a proposed

affidavit ("Affidavit") for Mr. Varela's signature. Respondent stated in his letter to Bar

Counsel that the Affidavit was being presented to Mr. Varela "for him to review and sign,

which if he does might prevent him from being sued for libel and slander." (Complaint ~

49, and Answer ~ III). The Affidavit consisted of statements by :Mr. Varela that

Respondent had essentially not erred in his representation. (Complaint ~ 50, and Answer

50. Respondent asked Bar Counsel to advise him immediately if:Mr. Varela refused to

sign the Affidavit so he could consider legal action. (Exhibit 76, p. 3).

51. Respondent testified that the Affidavit gave Mr. Varela an opportunity to correct

the record and constituted a "threat" only if Mr. Varela failed to tell the truth. (Tr. pp.

237, 278-279). Respondent acknowledged that he threatened to sue Mr. Varela if Mr.

Varela refused to sign the Affidavit. (Tr. p. 287).

52. In his reply to Bar Counsel, Mr. Varela stated that he would not have filed the

grievance against Respondent if he thought it would "get [him] sued." (Exhibit 79, p. 2).

He further stated that the statements in the Affidavit that Respondent demanded he sign

were not true. (rd.)


501

53. MI. Egusquiza testified that he felt compelled under LR.P.C. 8.3 to submit a letter

to Plaintiff regarding this disciplinary matter because Respondent threatened to sue MI.

Varela if Mr. Varela refused to sign the Affidavit. (Exhibit 78, Tr. pp. 152-153, 170, 408).

He testified that he was also concerned about Respondent's failure to disclose all relevant

documents to Plaintiff in the disciplinary investigation. (Tr. p. 152).

54. Respondent's October 11, 2005 response also included a billing statement that he

stated he prepared himself. (Exhibit 76, pp. 2, 5). The statement reflected that: on

Friday, June 3, 2005, Respondent reviewed discovery and prepared court documents; on

Saturday, June 4, 2005, he prepared a letter to ITD and called the Court; and on Sunday,

June 5, 2005, he called Mr. Miller. (Exhibit 76, p. 5).

55. At hearing, Respondent testified that his staff prepared the billing statement with

erroneous dates. (Tr. p. 249). He testified that his calls to the Court and Mr. Miller

would have been made on June 3, 2005 or June 6, 2005. (rd.)

56. Respondent also enclosed with his October 11,2005 response a copy ofa $218.75

refund check, which he stated was "written by [him] to Mateo Varela, dated June 5th ,

2005." (Exhibit 76, pp. 2, 4). The amount of the refund check, dated June 5, 2005,

reflected a $37.50 charge for a phone call from Mr. Varela on June 21, 2005, before a

refund was requested but after the refund check was purportedly written. (Exhibit 76, pp.

4,5).

57. At hearing, when questioned about the date of the check, Respondent testified that

his staff prepared the backdated check. (Tr. pp. 376-77).


502

58. In or around May 2010, 11r. Varela called Respondent to reiterate his request for a

refund. Respondent sent Mr. Varela a refund check for $218.75. (Ir. p. 72).

Prior Idaho Discipline

59. On July 23, 2004, Bar Counsel's Office issued a r~primand to Respondent

relating to his representation of a client, Rowland Zior. Mr. Zior hired Respondent in

June 2002, to assist him in collection on a promissory note. Respondent drafted a

complaint which contained inaccurate calculations because Respondent only used figures

contained in the actual promissory note and not additional figures that 11r. Zior had

provided, i.e. amounts already paid, amortization schedules, due dates. Despite repeated

requests to have Respondent contact him, Mr. Zior did not hear from Respondent from

August 2002 until he filed his complaint with the Bar in February 2003. 11r. Zior did not

receIve any monthly billing statements, even though he requested one on several

OCBaSlOns. On February 28, 2003, 11r. Zior terminated Respondent's services and

requested that Respondent return Mr. Zior's $1,000 retainer. After investigation, Bar

Counsel's Office concluded that RespondentviQJated I.R.E.C.lAbynotkeeping his

client reasonably informed about his case and not promptly complying with reasonable

requests for information and LR.PC. 1.5C£) for failing to provide his client with an

accounting of fees after reasonable requests. The private reprimand letter also indicated

that Mr. Zior and Respondent completed the Idaho State Bar's fee arbitration process and

the dispute about the retainer and fees due and paid Respondent had been resolved.

(Exhibit 80).


503

60. On August 5, 2008, Bar Counsel's Office issued a private reprimand to Respondent

relating to his representation of Shanon Harbaugh. The grievance was filed by the Elmore

Prosecuting Attorney, Aaron Bazzoli. Mr. Bazzoli filed the complaint after he received

information from authorities from Elko, Nevada, regarding Respondent. A counselor in a

local drug rehabilitation center reported to the Elko police that Respondent contacted a

patient (his client) at the center, told her she was in danger and advised her he was on the

way to Elko to pick her up and return her to Idaho immediately. The allegations were that

Respondent knowingly made false statements of material fact and used means with no

other purpose than to embarrass, delay or burden third persons. After investigation, Bar

Counsel's Office concluded that there was clear and convincing evidence that Respondent

violated LR.P.C. 4.1 by making false statements of material fact regarding the

circumstances surrounding the break-in at his office and in statements made to his client

regarding a secret service agent accompanying him to Elko. Respondent also violated

LR.P.C. 8.4( d) by failing to appropriately report the break-in at his office and by taking his

client's well-being and safety into his own hands when he took her from the rehabilitation

facility in Elko. (Exhibit 81).


Respondent regarding his representation of Catherine Allen in a divorce. Ms. Allen

retained Respondent on January 27, 2005, signed an Attorney-Client Contract, paid

Respondent a $1,500 retainer and $118 filing fee. Ms. Allen's primary concern was

whether she would be able to maintain her current military medical insurance if she

proceeded with a divorce. On March 22, 2005, Ms. Allen went to Respondent's office,


504

spoke to his assistant, and requested a refund of her $1,500 retainer, due to Respondent's

failure to fully advise her about her eligibility for medical benefits despite her request

nearly two months earlier. The assistant did not refund the retainer. On March 23, 2005,

Ms. Allen sent Respondent a letter stating that he had not performed any work on her

case or responded to her calls, and requested a refund. On March 24, 2005, Respondent

sent Ms. Allen a letter advising her that she would retain her military benefits if she

divorced her husband, but the letter did not address her request for a refund. On March

29, 2005, Respondent sent Ms. Allen a letter regarding her phone conversation with his

assistant the prior day. Respondent stated that her request for written confirmation of her

military benefits was the first time she had indicated that she would not accept his legal

opinion on the matter. He also enclosed a copy of the Attorney-Client Contract and stated

the retainer was non-refundable. Later that day, Respondent sent Ms. Allen another letter

regarding their latest conversation and stated that her refusal to meet with him for a

scheduled appointment to discuss her case was a breach of the contract, since he could

not represent somebody who refused to meet with him. On March 31, 2005, Ms. Allen

retained another attorney to represent her in the divorce. On April 8, 2005, Ms. Allen

filed a small claims action against Respondent for refund of her retainer and filing fee.

Judge Bieter entered Judgment in the small claims case ordering Respondent to pay Ms.

Allen $743, plus $50 in costs. Respondent filed a Motion for Trial De Novo from that

Judgment. However, later when the clerk reviewed the file, the clerk determined that the

Judgment had not been appealed, the case was not set for hearing and Ms. Allen could

execute on the Judgment. A Writ of Execution issued and Respondent paid Ms. Allen as


505

required under the Judgment and in satisfaction of the Writ. Following investigation, Bar

Counsel's Office found that Respondent violated LR.P. C. 1.16( d) by failing to refund Ms.

Allen's advance payment of fees and expenses that were not earned or incurred. (Exhibit

82).


Respondent relating to his representation of Kevin Amerson. In July 2003, Mr. Amerson

retained Respondent to represent him in a personal injury action for injuries suffered in a

car accident. Mr. Amerson and Respondent executed a contingency fee contract. In April

2004, Respondent also filed a provisional patent~~Eplication for Mr. Amerson related to

Mr. Amerson's gas canister invention known as the "Expeller." In August 2004, Mr.

Amerson settled his personal injury case for $13,500. On September 9, 2004, Geico sent

Respondent a settlement check for $8,500, which represented the full settlement, less

$5,000 in medical fees already paid by Geico. On September 16,2004, Mr. Amerson and

Respondent executed a contingent fee reconciliation agreement regarding the

disbursement of the Geico settlement funds. After distribution of the funds, Mr. Amerson

filed a grievance contending that after he settled his personal injury case, Respondent

offered him a net settlement of $2,200, which he refused. According to Mr. Amerson,

Respondent subsequently agreed to give him approximately $4,000, on the condition that

Mr. Amerson pay him 5% of the future revenues from Mr. Amerson's Expeller. Mr.

Amerson stated that he signed the agreement Respondent offered because he needed the

money for rent. Mr. Amerson also claimed that Respondent owed him money because

the $5,000 settlement from Geico for medical bills was not subject to the one-third


506

contingency fee. Bar Counsel's Office concluded that Respondent violated LR.P.C. 1.8

(a) by failing to advise Mr. Amerson, in writing, of the desirability of seeking

independent legal counsel, and failing to give Mr. Amerson a reasonable opportunity to

seek advice of indepel1dent legal counsel with respect to Respondent's agreement with

Mr. Amerson to pay Respondent 5% of the future revenues from the "Ec:J;.peller. (Exhibit

83).

63. On February 26, 2009, Bar Counsel's Office issued a private reprimand to

Respondent relating to his representation of Larry Severson. The grievance was filed by

attorney Terry Ratliff. The complaint stemmed from the allegation that Respondent had a

conflict of interest with respect to his representation of Mr. Severson in a criminal and a

civil case. Mr. Severson was charged with murdering his wife, Mary Severson ("Mary").

Respondent represented Mr. Severson in that criminal case. After Mary's death, Mary's

mother made a claim against Mr. Severson for Mary's insurance proceeds based upon the

"Slayer Statute." Under the Slayer Statute, Mr. Severson would not collect his share of

Mary's life insurance pr()ceedsifconvicted of·her murder. Respondent represented Mr.

Severson in that civil case. After investigation, Bar Counsel's Office concluded that

Respondent violated LR.P.C. 1.9(a). Bar Counsel's Office found that prior to her death,

Mary consulted with Respondent about whether her use of Hydroxycut pills was related

to her recent illness. Respondent admitted that Mary asked him to investigate the cause

of her illness, which seemed due to the Hydroxycut pills. Bar Counsel concluded that

Respondent's defense of Mr. Severson in the murder case, in which he was accused of

poisoning Mary with Hydroxycut pills, was substantially related to Respondent's


507

representation of Mary in the investigation of why the Hydroxycut pills were making her

sick. Since Mary could not, and did not consent to the conflict, Respondent should not

have undertaken representation of Mr. Severson in his criminal case. Bar Counsel's

Office also concluded that Respondent violated LR.P.C. 3.7, which prohibits a lawyer

from acting as an advocate for a client when the lawyer is likely to be a necessary witness

in the case. Respondent undertook the representation of Mr. Severson in the murder case,

despite the fact that he met with the victim in the case and discussed her marriage and her

use of Hydroxycut pills. Those matters were certain to be significant issues in the murder

trial. The information Respondent gained from Mary would be important to both the

prosecution and defense of Mr. Severson. Although Respondent withdrew from the

criminal case when the prosecution called him as a witness, he knew or should have

known he was likely to be called as aneceSf)ary witness and therefore should not have

agreed to the representation. (Exhibit 84).

II. CONCLUSIONS OF LA'V

64. With respect to Count Two, the following Idaho Rules of Professional Conduct apply

and provide:

Rule 1.2: Scope of Representation

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 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 testify.


508

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circun1stances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counselor assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Rule 1.3: Diligence

A lawyer shall act with reasonable diligence and promptness in representing a client.

Rule 1.4 - Communication

(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0( e), is required by these Rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; including a request for an accounting as required by Rule 1.5(f); and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to pennit the client to make informed decisions regarding the representation.

65. With respect to Count Three, Idaho Rule of Professional Conduct 8.4C c) applies and

provides:




509

(c) engage III conduct involving dishonesty, fraud, deceit or misrepresentation.

66. With respect to Count Four, the following Idaho Rules of Professional Conduct apply

and provide:

Rule 1.5 - Fees

(b) 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 ViTIting, before or within a reasonable time after commencing the representation.

Rule 1.16 - Declining or Terminating Representation

(d) Upon termination of representation, 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.

67. 'With respect to Count Five, Idaho Rule of Professional Conduct 8.4(d) applies

and provides:



(d) engage in conduct that is prejudicial to the administration of justice;

68. Respondent's private discipline is relevant to this formal charge proceeding and to a

consideration of sanctions. Idaho State Bar v. Malmin, l39 Idaho 304, 311, 78 P.3d 372, 378

(2003).

69. An attorney's request of a grievant to withdraw his grievance in a disciplinary case

which requires a grievant to make factual and legal representations to Bar Counsel with which the


510

grievant does not agree, is conduct prejudicial to the administration of justice. People v. Bennett,

810 P.2d 661 (Colo. 1991).

70. Idaho Bar Commission Rule 520 provides that all grievances, complaints, testimony

and other presentation or arguments submitted to Bar Counsel "shall be absolutely privileged, and

no civil litigation predicated thereon may be instituted or maintained." Respondent's threat to sue

Mr. Varela, for defamation based on the allegations presented to Bar Counsel was without merit

under LB.C.R. 520 and constitutes conduct prejudicial to the administration of justice.

71. With respect to Count Two of the Complaint, and based primarily upon Findings of

Fact 7-13, 19, 20, 24-30, 32-37, 39 and 42 above, the Committee concludes that Plaintiff has


Conduct l.2 and 1.3.

72. With respect to Count Three of the Complaint, the Committee does not conclude

that Plaintiff has proven by clear and convincing evidence that Respondent violated Idaho Rules

of Professional Conduct 8.4(c).

73. With respect to Count Four of the Complaint, and based primarily upon Findings of

Fact 15-18, 38, 40, 41, 43-48 and 54-58 above, the Committee concludes that Plaintiff has proven

by clear and convincing evidence that Respondent violated Idaho Rules of Professional Conduct

l.5(b) and 1. 16(d).

74. 'Vith respect to Count Five of the Complaint, and based primarily upon Findings of

Fact 49 through 54 above, the Committee concludes that Plaintiff has proven by clear and

convincing evidence that Respondent violated Idaho Rules of Professional Conduct 8.4(d).


511

7S. The Conm1ittee has also considered the ABA Standard For Imposing Lavvyer

Sanctions, (hereinafter "ABA Standards") to detennine the appropriate sanction to recommend in

this case. (ABAIBNA Lawyers Manual on Professional Conduct No. 119 at ~ 01:801-01:844

(1992). ABA Standard 3.0 addresses the factors to be considered and the Committee has

considered the duties violated, Respondent's mental state, the actual or potential injury caused by

Respondent's misconduct and the existence of aggravating or mitigating factors. (Id. 01.81S).

76. For purposes of ABA Standards discussed below, Reprimand is defined as public

censure under LB.C.R. S06(d). §2.S (Id. 01:812).

77. With respect to the conclusions of law relating to Count Two, the Committee

considered ABA Standards 4.4, 4.42 and 4.43. Those ABA Standards provide:

4.4 Lack of Diligence

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving a failure to act with reasonable diligence and promptness in representing a client:

is generally appropriate when:

(a) a lawyer knowingly fails to perfonn services for a client and causes injury or potential injury to a client; or (b) a lawyer engages in a pattern of neglect and causes injury

or potential injury to a client.

lawyer knows that he is not perfonning the services but does nothing to

remedy the situation, or when a lawyer engages in a pattern of neglect, with the result that the

lawyer causes injury or potential injury to the client. Most cases involve laW)'~E~who do not

communicate with their clients."


512

4.43 Reprimand is generally appropriate when a lawyer is negligent and does not act with reasonable diligence in representing a client, and causes injury or potential injury to a client


of Law, that Respondent did not perform services requested by 11r. Varela relating to the

suspension of his license related to the refusal to submit to the breathalyzer examination.

Respondent did not timely file a request for the suspension hearing with the proper venue, and

when he filed the same request for a suspension hearing with the wrong agency, he argued that the

request for a suspension hearing in the proper venue was frivolous. Moreover, Respondent did

nothing to remedy the situation: he did not properly request a suspension hearing and he did not

negotiate a potential plea that might restore Mr. Varela's license promptly. The Committee

concludes that Respondent knew that he was not performing the services requested by 11r. Varela,

did nothing to remedy the situation and that resultecijl1iJ:ljllry to Mr. Varelct, the loss of his ability

to have a suspension hearing in tl:t~pmper venue.

79. \Vith respect Count Four, the Committee considered ABA Standards 4.1, 4.12 and

4.13 in connection with the con,clusions of law that Respondent failed to communicate the basis

or rate of his fee to 11r. Varela and termination of representation, did not refund any advance

payment of fee that had not been earned to Mr. Varela. Those ABA Standards provide:

4.1 Failure to Preserve the Client's Property

Absent aggravating or mitigating circumstances, upon application of the factors set out in 3.0, the following sanctions are generally appropriate in cases involving the failure to preserve client property:


513

4.12 Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client.

The Commentary to ABA Standard 4.12 states, "the most common cases involve laVvyers who ...

fail to remit client funds promptly."

4.13 Reprimand is generally appropriate when a la"wyer is negligent in dealing with client property and causes injury or potential injury to a client.

The Commentary to ABA Standard 4.13 states, "la"wyers who are grossly negligent in failing to

establish proper accounting procedures should be suspended; reprimand is appropriate for laVvyers

who simply fail to follow their established procedures."


of Law, that Respondent did not enter into a written fee agreement with Mr. Varela, that he failed

to promptly refund any advance payment of fee to Mr. Varela that had not been earned, and that

Respondent knew, or should have known, that he was dealing improperly with client property.

The Committee also fmds that Respondent initially rejected Mr. Varela's request for a refund of

any advance payment of fee that had not been earned and did not suggest that he was willing to

refund any advance payment of fee that had not been earned until after Mr. Varela filed a

grievance with Bar Counsel's Office. Finally, although Respondent refunded fees to Mr. Varela,

he did not do so until Mr. Varela filed a grievance with the ISB, did not refund those fees to Mr.

Egusquiza when he knew Mr:I:g:tIsqlliL';a was representing Mr. Varela and did not include interest

when he refunded money to Mr. Varela 5 years after Mr. Varela requested a refund and

Respondent indicated he would.


514

81. With respect to Count Five, the Committee considered ABA Standards 6.1, 6.12,

6.13,6.2,6.22, and 6.23 in connection with the conclusions oflaw that Respondent's conduct was

prejudicial to the administration of justice. Those ABA Standards provide:

6.l False statements, fraud, and Misrepresentation

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonest, fraud, deceit, or misrepresentation to a court;

6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

6.13 Reprimand is generally appropriate when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.

6.2 Abuse of the legal process

Absent aggravating or mitigating circumstances, upon application of the factors set out in Standard 3.0, the following sanctions are generally appropriate in cases involving failure to expedite litigation or bring a meritorious claim, or failure to obey any obligation under the rules of a tribunal except for an open refusal bases on an assertion that no valid obligation exists.

6.22 Suspension is appropriate when a lawyer knowingly violates a court order or rule, and there is injury or potential injury to a client or a party, or interference or potential interference with a legal proceeding.


515

6.23 Reprimand is generally appropriate when a lawyer negligently fails to comply with a court order or rule, and causes injury or potential injury to a client or other party, or causes interference or potential interference with a legal proceeding.


Conclusions of Law, that Respondent's conduct was prejudicial to the administration of justice

and he knew that he was improperly interfering with this disciplinary proceeding by asking Mr.

Varela to make statements in the proffered Affidavit that were not true and the Affidavit was

proffered in an effort to improperly attempt to effect a dismissal of the disciplinary proceeding.

The Committee also concludes that Respondent knew he made false statements to Bar Counsel in

response to the investigation of Mr. Varela's grievance and those statements were inconsistent

with the admitted exhibits and Respondent's testimony.

83. The Committee considered the ABA Standards relating to aggravating factors or

circumstances in arriving at its recommendation. ABA Standards 9.l, 9.21 and 9.22 identify the

factors which may be considered in aggravation and provide:

9.1 After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to Impose.

9.21 Definition. Aggravation or aggravating circumstances are any considerations, or factors that may justify an increase in the degree of discipline to be imposed.

9.22 Factors, which may be considered in aggravation. Aggravating factors include: (a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by

intentionally failing to comply with rules or orders of the disciplinary agency;


516

Cf) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;

(g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct, including that involving the use of

controlled substances.

84. The Committee concludes, based upon the above Finding of Fact and Conclusions

of Law, Respondent: has a significant prior ~L~VLf-'LLLL'~L record; had a dishonest and selfish

motive in connection with his handling of Mr. Varela's request for a refund of unearned fees;

engaged in a pattern of misconduct; committed multiple violations of the Idaho Rules of

Professional Conduct; by submitting the Affidavit to Mr. Varela in the course of the disciplinary

proceeding, engaged in bad faith obstruction of the disciplinary proceeding; refused to

acknowledge the i¥Tongful nature of his conduct at hearing, and refused to acknowledge issues of

fact that were really not in dispute at hearing; represented a vulnerable client; had substantial

experience in the practice of law; and showed indifference to making restitution to Mr. Varela.

The Committee acknowledges that Respondent refunded unearned fees to Mr. Varela in 2010,

without interest, approximately five years after his initial request for a refund of the unearned

85. The Committee has also considered Idaho State Bar v. Souza, 142, Idaho 502, 129 P.

3d 1251 (2006). In that case, the Idaho Supreme Court found that Mr. Souza violated LR.P.C. 1.1,

1.3, 1.4, and 8.4(c). In evaluating the mitigating and aggravating factors in that case, the Idaho

Supreme Court indicated it is appropriate to take into account the impact of the attorney's

misconduct on his clients. The Court recognized that Mr. Souza inexplicably failed to move his


517

client's personal injury suit forward and could not have been unaware of his client's plight.

Throughout :Mr. Souza's representation, his client "attempted to contact him again and again."

When Mr. Souza chose to respond, "he offered only false assurances that action was being taken."

The Court recognized that the harm suffered by clients goes beyond simple monetary loss, the

clients hire their counsel to serve as their "representative and champion," and that Mr. Souza

could have intervened at many points during his client's struggles, but he did not.

Idaho Supreme Court also recognized that "a lawyer has many responsibilities, but his

responsibilities to his client are chief among them. It is appropriate in attorney discipline cases to

consider as an aggravating factor the degree of harm suffered by the client."

The Committee also considered that the Idaho Supreme Court ordered that :Mr. Souza be

suspended for 36 months with 30 months withheld and imposed conditions of probation following

reinstatement, including that :Mr. Souza must not violate any of the Idaho Rules of Professional

Conduct; must maintain errors and omissions legal malpractice insurance throughout the

probationary period, providing coverage in a form acceptable to the Professional Conduct Board

and ensure that the insurance carrier notify the Professional Conduct Board directly of any

changes to that policy; that Mr. Souza practice under the guidance of a supervising attorney

during probation; that :Mr. Souza notify the ISB in writing and under oath, that he is acting with

reasonable diligence and promptness in representing his clients, is keeping his clients reasonable

informed about the status of their matters, is promptly complying with request for information

about his representation of clients and is representing his clients consistent with his

responsibilities under the Idaho Rules of Professional Conduct. Finally, the Court ordered Mr.


518

Souza to tender to the ISB for his clients benefit, the full amount of the settlement offer plus the

legal rate of interest of the date of that offer.


of Law, that Respondent did not honor his responsibilities to Mr. Varela and Mr. Varela suffered

harm as a result of Respondent's conduct. 'Vhen Respondent did respond to Mr. Varela, he was

not forthcoming about what he was doing on his behalf and misrepresented the status of the case

to Mr. VaI-~l~, ~Mr. Varela was denied an opportunity for a license suspension hearing because ~--""""~""~-'"--

Respondent did not take action in a timely fashion, seek to negotiate a plea and subsequently Mr.

Varela lost his job. Mr. Varela suffered monetary loss relating to Respondent's failure to refund

an advance payment of fee that had not been earned for five years.

87. The Committee has also considered the Idaho State Bar v. Malmin, 139 Idaho 304,

78 P.3d 371 (2003). The Idaho Supreme Court found that Ms. Malmin violated LR.P.C. 1.3, 1.4,

1.5(f), 8.4(c) and 8.1(a). The Court found that Ms. Malmin violated LR.P.C. 1.3 by failing to "act

with reasonable diligence and promptness in representing a client" and noted that "although a six-

week delay before completing a requested action is not a hard and fast rule demonstrating lack of

diligence, under circumstances where, as here, the lawyer only has to file documents already

prepared and the client calls repeatedly for a status update, the lawyer has failed to meet

professional standards." Id. at 309, 78 P.3d at 376. With respect to the violation of LR.P.C. 1.4,

the Court found that Ms. Malrnin failed to provide her client with requested information and

actually misled her client by telling her papers had been filed when, in fact, they had not. With

respect to the violation of LR.P.C. 8.4(c), the Court concluded that for approximately six weeks,

Ms. Malmin either personally, or through her staff, made knowingly false statements to her client


519

regarding the filing of certain documents. The Court concluded that there was a clear inference

that Ms. Malmin purposely deceived her client by telling her papers had been filed, when Ms.

Malmin clearly knew they had not been. The Court concluded that that evidence alone was

sufficient clear and convincing evidence to support the finding that Ms. Malmin knowingly

deceived her client in violation ofLR.P.C. 8.4(c).

With respect to the allegation that Ms. Malmin violated LR.P.C. 8.4(c) by misleading the

Idaho State Bar in its investigation of the grievance, the Court concluded that Ms. Malmin

violated that rule by providing the Idaho State Bar three varying accounts for the delay in filing

the pleadings on behalf of her clients over the course of the investigation, each of which was an

incorrect statement of the facts. The Court indicated that the evidence in support of that claim of

misconduct was almost entirely documentary. The Court affirmed the Hearing Committee's

findings of fact and ultimate conclusion that Ms. Malmin violated LR.P.C. 8.4(c) because the

three varying accounts of her professional conduct were made "knowing they were not true and

that she made those misstatements of fact rather than admitting to the Idaho State Bar that she had

engaged in misconduct."

In determining the recommended sanction that Ms. Malmin be suspended from practicing

for six months, be placed on probation for two years, be required to sit for and pass the Multistate

Professional Responsibility Exam and be required to pay the Idaho State Bar for costs incurred in

prosecuting the case, the Hearing Committee and the Court considered aggravating factors.

Among the aggravating factors recognized by the Hearing Committee and the Court were the

following:


520

(2) In both the previous disciplinary action, as well as the present case, Malmin has failed to admit wrongdoing and blames others to deflect the blame.

(3) Malmin proffered knowingly false testimony under oath before the hearing committee.

(4) Malmin failed to demonstrate to the committee an appreciation of the serious nature of her misconduct.

Id. at 312, 78 P.3d at 379. In affirming that sanction, the Court found that suspension was

appropriate to convey to Ms. Malmin the importance of candor and the severity of her offenses.

The Court also determined that following the six-month suspension, a two-year probation was

necessary in order for the Court to make certain Ms. Malmin had learned from her mistakes and

had her practice under appropriate control. The Court decided requiring Ms. Malrnin to take the

MPRE was appropriate because the test should help her understand the ethical standards to which

she is held. Finally, the Court believed that paying the Idaho State Bar's costs was appropriate

because she could have avoided the necessity of the disciplinary proceeding if she had only been

honest with her client and the Idaho State Bar from the beginning. Id.


of Law, that Respondent failed to file a request for a suspension hearing with the Magistrate Court

despite Mr. Varela's requests that Respondent file it and his subsequent request for a status update

about that. Respondent also did not provide Mr. Varela with requested information and actually

misled Mr. Varela about the suspension hearing request. Finally, the Committee concludes that

Respondent failed and sought to blame others to deflect his professional

responsibility, and failed to demonstrate to the Committee an appreciation of the serious nature of

the misconduct.


521

III. RECOMMENDATION

89. Based upon all the forgoing Findings of Fact and Conclusions of La\\T, the

Committee recommends as follows:

a. That Respondent be suspended from the practice of law in the State of Idaho for a

period of THREE years, and that EIGHTEEN months of said suspension be

withheld. The Committee appreciates that Respondent's license is an affiliate ,--.'"~- -."

license and recommends that the EIGHTEEN month suspension be immediately

served, regardless of the Respondent's current affiliate license status. However,

the Committee recommends that none of the withheld suspension or the probation

set forth below, be imposed unless and until Respondent requests, and is granted,

permission to transfer his license from affiliate status to active status under the

applicable Idaho Bar Commission Rules, currently I.B.C.R. 304 and 305, and is

reinstated from his suspension under I.B.C.R. 518.

b. That following any transfer to an active status license, and reinstatement,

Respondent be placed on a period of probation for THREE years following such

transfer and reinstatement, upon the following the temlS and conditions.

1. If Respondent admits or is found to have violated any of the Idaho Rules of

Professional Conduct for which a sanction is imposed for any conduct

between the date of Respondent's suspension through the THREE year

period of probation, regardless whether that admission or determination

occurs after the expiration of probation, then the entire withheld suspension

shall be immediately imposed and served by Respondent, in addition to any

Findings a/Fact, Conclusion a/Law and Recommendation - 33

522

other sanction that is imposed for any such admission or determination of

misconduct during that time. (Thus, by way of example, if Respondent

admits or is found to have violated any of the Idaho Rules of Professional

Conduct in any formal charge case relating to his conduct during the period

of his actual suspension and probation, then the withheld portion of his

suspension shall be automatically and immediately imposed upon

Respondent regardless whether that admission or determination is after the

expiration of his probation);

11. That Respondent conduct his practice and representation of his clients in a

manner so as to avoid any grievances or complaints being submitted to Bar

Counsel's Office. However, recognizing that such grievances and!

complaints are beyond the control of the attorney, Respondent must fully

cooperate with Bar Counsel's Office in the investigation of any such

complaints or grievances; and

Ill. As a condition of reinstatement and probation, Respondent be required to

maintain errors and omissions legal malpractice insurance during the

probationary period, providing at least $100,000/$300,000 coverage in a

fornl that the reinstatement Hearing Committee determines is appropriate.

Such coverage shall be in ~ form acceptable to the reinstatement Hearing

Committee and insure that the insurance carrier notify Bar Counsel's Office

directly of any changes to that policy;


523

c. As a condition for reinstatement under LB.C.R. 518, Respondent shall be required

to fully comply with LB.C.R. 517 and shall be required to take and pass the

Multistate Professional Responsibility Examination;

d. Respondent shall reimburse Plaintiff for the costs associated with this proceeding,

including, without limitation, the costs of the hearing and the hearing transcript,

certified mailings and all other expenses related to this disciplinary proceeding.

e. That before being eligible to be reinstated to the active practice of law in Idaho,

Respondent must first receive approval to transfer from affiliate or inactive status

to active status under the applicable Idaho Bar Commission Rules, currently

LB.C.R. 304 and 305. Thereafter, Respondent must also be reinstated by a

Hearing Committee of the Professional Conduct Board consistent with LB.C.R.

518(b). To be reinstated, Respondent must demonstrate that he has fully complied

with the requirements of Idaho Bar Commission Rules 516 and 517;

f. Respondent must pay Mr. Varela $109.37 reflecting interest at the rate of 10% for

the five years between Mr. Varela's request and payment.

Finally, these Findings of Fact, Conclusions of Law & Recommendation shall be

considered the fmal findings and recommendations under LB.C.R. 511 (h)(3), if neither party files

a motion to alter or amend these Findings of Fact, Conclusions of Law and Recommendation

within fourteen days after this document has been served upon the parties and thereafter the Clerk

is directed to serve a copy of these Findings of Fact, Conclusions of Law and Recommendation as

the final Findings of Fact, Conclusions of Law and Recommendation upon the parties.


524

7th April DATED this ____ day of _______ 2011.

Th~e~~-Professional Conduct Board

7th DATED this ___ day __ A_p_r_il ___ 2011.

~.;'\.~ 'S".. ',- ",. ~ ..... <~~ __ c..~p-~~

Linda Edwards Professional Conduct Board

4th DATED this day ---- 2011. -------

April

Professional Conduct Board


525


I hereby certify that on the ~~ day of ~ 2011, I served a true and correct

copy of the foregoing FINDINGS OF FACT, CONCLUSIONS OF LAW AND

RECOMMENDATION by depositing the same in the U.S. mail at Boise, Idaho, each enclosed in a

separate, sealed, stamped envelope, addressed and directed as follows:

Larry D. Purviance Attorney for Respondent 2151 Hayden Avenue Hayden, ID 83835

Thomas W. Whitney, Chairman Professional Conduct Board 604 S. Washington Street, Ste. 1 Moscow, ID 83843


Richard G. Clifford Professional Conduct Board 828 8th Ave. Lewiston, ID 83501

Sue Nelson Clerk of the Professional Conduct Board

I further certify that I served a true and correct copy of the aforesaid document( s) upon Bar Counsel/Deputy Bar Counsel for the Idaho State Bar by personally delivering said copy to Office of Bar Counsel at the Idaho State Bar, 525 W. Jefferson, Boise, Idaho.

526

Bradley G. Andrews Bar Counsel Idaho State Bar P.O. Box 895 Boise, ID 83701 (208) 334-4500 ISB No. 2576


IDAHO STATE BAR, Plaintiff,

v.

JAY P. CLARK, Respondent.

) ) ) ) ) ) )

FC 09-05

MEMORANDUM OF COSTS

Consistent with Paragraph 89.d. of the Findings of Fact, Conclusions of Law, and

Recommendation filed on April 7, 2011, Plaintiff, the Idaho State Bar, hereby submits its

Memorandum of Costs. Plaintiff requests that the Hearing Committee enter a second

recommendation in this case that these costs be included in any Disciplinary Order issued by the

Idaho Supreme Court in this case. These costs are correct to the best of the Idaho State Bar's

knowledge and belief. The attachments to this Memorandum are relevant documentation of

these costs.

1. AT & T - Scheduling Conference Call - 8113/09 13.15

2. AT & T - Scheduling Conference Call - 12/29/09 9.09

3. AT & T - Conference Call - Hearing re: Motion to Dismiss- 4/811 0 114.80

4. AT & T - Scheduling Conference Call- 5/2411 0 12.15

5. AT & T - Scheduling Conference Call - 8/24/10 6.76

MEMORANDUM OF COSTS - 1

527

6. M & M Court Reporting Transcript of Hearing on Respondent's Motion to Dismiss on 4/8/1 0 496.00

7. Jimmy Johns - Lunch for PCB Hearing 12/3110 92.00

8. M & M Court Reporting Transcript of Hearing - 12/211 0 1602.50

9. M & M Court Reporting Transcript of Hearing - 12/3/10 1443.00

10. Hearing Committee Member Hearing Expense Richard G. Clifford - 12/2/10 & 1213/10 625.82

11. Hearing Committee Member Hearing Expense Thomas Whitney-12/2/10 & 12/3110 847.13

12. Hearing Committee Member Hearing Expense Linda Edwards - 12/211 0 & 12/3/10 599.64

13. Witness Fees and mileage for Hearing - Mateo Varela - 12/2110 43.04

14. Witness Fees and mileage for Hearing - Mitchell Egusquiza - 12/211 0 126.44

TOTAL $6031.52

DATED this l ~t;:. day of ~, 2011.

v Bradley G. Andrei Bar Counsel


528


I hereby certify that on the l{C1- J I I day of tt1?M , 2011, I served a true and

iI

correct copy of the foregoing MEMORANDUM OF COSTS upon the following by first class

mail, postage prepaid, addressed and directed as follows:

Larry D. Purviance Attorney for Respondent 2151 Hayden Ave. Hayden, ID 83835


~{ [\ Braa ey G. Andrews Bar Counsel

529

Sue Nelson

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AT&T TeleConference Services [[email protected]] Monday, May 24, 2010 3:21 PM Sue Nelson AT&T TeleConference Reservation Confirmation - HOST Copy (HSN2517)



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Information is subject to change. If so, you will be notified by a TeleConference Associate. Cancel reservat ions at least 30 minutes before start time to avoid No Show fees. Please review this information and contact TeleConference Services at (800)526-2655 if there are any changes.

------------- Identification - ------------Conference Name:



--------------- ---------- ---- Featu res Selected ------------------------- ----~Call for Last Minute Updates ~Roll Call

ost Dial Out

* Should you need assistance during your conferencer please press # then 0 for a list of menu options including Specialist assistance.

* SpecialTip: Always remember to set a date for a follow-up conference while all participants are on the call.

* If your individual TeleConference account is not used within a six month period r deactivation will occur.

* If you have any questions regarding this service or your accountr please call (800)526-2655 and a Specialist will assist you.

OPERATOR DIALED PARTICIPANT LIST . Participant Name Reach Number

NELSON, SUE (208)334-4500 PURVIANCE, LARRY (208)277-8790 CLIFFORD, RICHARD (208)746-3270

EDWARDS, LINDA (208)788-8163 WHITNEY, THOMAS (208)882-6872


Ext. 1878

Mon May 24 2010 16:20 :54

1 533

I /0 P

Sue Nelson


AT & T TeleConference Services [teleconferences @att.com] Monday, July 19, 2010 8:48 AM Sue Nelson AT & T TeleConference Reservation Confirmation - HOST Copy (HSN2491)






-- -- -- - - --- -- ----- -- --------- Featu res Selected - --- - --- ---- ---- - -- ------ - ---~Call for Last Minute Updates ~Roll Call

ost Dial Out

Conference Arranger: Phone Number:

SUE NELSON (208)334-4500 Ext: 1876

SUE NELSON 00 Ext: 1878





* For your protection, do not publish your conference Access Information (e.g., Dial In Number, Access Codes.).

Participant Name Reach Number NELSON, SUE (208)334-4500

PURVIANCE, LARRY (208)635-5388 CLIFFORD, RICHARD (208)746-3270

EDWARDS, LINDA (208)788-8163 WHITNEY, tHOMAS (208)882-6872


Ext. 1878

Mon Jut 19 2010 09:47:33

1

534

"Q~21 West Franklin Street

'. PO. Box 2636

Boise,ID 83701-2636

Phone: (208) 345-9611

Bradley G. Andrews Idaho State Bar 525 West Jefferson P.O. Box 895 Boise, ID 83701-0895

Fax: (208) 345-8800

Phone: (208) 334-4500 Fax:

Witness: Prehearing conference

Case: Idaho State Bar v. Clark

Invoice

(208) 334-2764

------------------------------------------------------------Venue: Professional Conduct Board

Case #: Fe 09-05

Date: 4/8/2010

Start Time: 3:00 PM

End Time: 4:40 PM

Reporter:

Claim#:

File#:

EH

EHA

Barbara Burke

Transcript Charges for Executive Hearing

Attendance Fee - Executive Hearing - Half Day

Fed. I.D. # 82-0298125

$5.50 72

$100.00

Sub Total

Payments

Balance Due

We appreciate your business!

2347984

$396.00

$100.00

$496.00

$0.00

$496.00

535

12-(n-2(110 ChkU 90 Open 12:09 PM Tkr u lIegU 5 12'09 PM

5 #4 Turkey Tom 5 ADO cheese

#1 Pepe #2 Big John

ADO cheese 2 #3 Totally Tuna

#6 Vegetarian

3 Diet Coke (med) Coke (med)

10 J i mm ''''gu I arCh i ps Val ... LY

22.50 3.75 4.50 4.50 0.75 9.00 4.50

3.00 1.00

10.00 0.00

Subtotal 63.50 Del Fee 9.14

Sales Tax (6%) 4.36 ==========

Total '77.00 HouseAce Tendered 77 .00 [5 --------------- ------------------- ---Idaho State Bar ~n in}

525 W JEFFERSON STf~-BOISE 208-334-4500

Bonni e Hi II

***************

Jimmy Johns #1191 598 Main st 208-955-7250

Check No: 90 Reg# 5 De live ry Trans Time: 12/3/2010 12:09 PM

Acct Info: HouseAce

Pre Auth: $77.00

Gratuity: ___ .l '5 Tota I Charge: -tt-~ 0\:) ____ ,,'

filII J ~ ~ 1 ~ / 536

M & M COURT REPORTING SERVICE, INC. FED ID. NO. 82-0298125

"Excellence in Court Reporting Since 1970"

Billed to: Bradley G. Andrews Idaho State Bar 525 West Jefferson P.O. Box 895

Boise, ID 83701-0895

Job # (23981 B4) Invoice # 36258B5

Case:

Witness: Date:

Charges:

Idaho State Bar v. Clark

Hearing 12/2/20109:00:00 AM


Attendance Fee - Executive Hearing - Half Day

_/ Del, c .)

Billed: 12/10/2010

Claim #

$5.50 255 $1,402.50

$100.00 2 $200.00

$0.00 1 $0.00

Sub Total $1,602.50 $0.00

$1,602.50


(Return this section with check)

SOUTHERN OFFICE

421 W. Franklin Street P.O. Box 2636 Boise, ID 83701-2636

208-345-9611 208-345-8800 (fax) 1-800-234-9611

email m-and-m@q~estoffi7ce let

Remit Payment'\!"

Billed to: Invoice # Billed: Amount Due:

Bradley G. Andrews 3625885 12/10/2010 $1,602.50

NORTHERN OFFICE

816 E. Sherman Ave, Ste. 7 Coeur d' Alene, ID 83814-4921

208-765-1700 208-765-8097 (fax) 1-800-879-1700

email [email protected]

Remit Payment r 1 537

M COURT REPORTING SERVICE, I~ FED ID. NO. 82-0298125

"Excellence in Court Reporting Since 1970"

Billed to: Bradley G. Andrews Idaho State Bar 525 West Jefferson P.O. Box 895

Boise, ID 83701-0895

Job # (2602284) Invoice # 3626085

Case:

Witness:

Idaho State Bar v. Clark

Hearing

Date: 12/3/2010 9:00:00 AM

Charges:


Attendance Fee - Executive Hearing - Half Day'

,-- / rC-, c q. a,.S

1- S d') V. .j All), t \f4;~ \L-

Billed: 12/10/2010

Claim #

$5.50 226 $1,243.00

$100.00 2 $200.00

Sub Total Payments

Balance Due

$1,443,00 $0.00

$1,443.00

HEARING - VOLUME /I

(Return this section with check)

SOUTHERN OFFICE

421 W. Franklin Street P.O. Box 2636 Boise, fD 83701-2636

208-345-9611 208-345-8800 (fax) 1-800-234-9611

email [email protected] /

Remit Payment 0l/


Billed to: Invoice # Billed: Amount Due:

Bradley G. Andrews 36260B5 12/10/2010 $1,443.00

NORTHERN OFFICE

816 E. Sherman Ave, Ste. 7 Coeur d'Alene, ID 83814-4921

208-765-1700 208-765-8097 (fax) 1-800-879-1700

email [email protected]

Remit Payment [] 538

~:-

IDISB~ Expense Report wri;::?F-I,;~T;:}. ~ '.~/r ~ Qc·-'-·'~M"""\.~""":'~""'-;T! --1 •. :\\r",,:Z:i' " -\' I I • 1. • ';' .I':! " . S\?' Il} .;~I .\l I:., { . r"L::r..~ ... ,; ~~t-~: ... "..0.:011 .............. ;s:::.-,,~~_~.;,.:..?f!;"!-l,

THE (D.~HO LAW J'O:JKDATJori . ll.lHKJ riA!'!:: IlO\R

)lAME: ~.£) G?- r2~z:CEogj} . Nature of Business: ..::z:s-tJ ",''';- ;T/l y';:: c~ Fe df?-ClS""

Make Check Payable To: LI:::;.-~j) c?c..:Z:Z::Z::rJ£./2 Address: e2?p- ,P77/ &£&dC

L~rs-7Z?A) ,_ :L'y PXS<3/ . /-

(Nallle 0/ Semiflar, Name of BoardiCommillee, }Jar Exam Grading. etc.)

Check one: Idaho Stale Bar I:£(" Idaho .Law Foundation 0 Idaho Volunteer La\vyers Program 0 ______ Scction 0

Please complete separate reports if you have eJ.petl$es due jiYJm dijfereJll orgcmizations .

-:..L ------~-~ - - ~.- . -- ..... - -- - - '" - -- . - ... _,...._ . ........... .-. ...... _-- .

DATE: /o?ft///c;? /.x/&'a~o /~3//0 /O?~7:--/D TOTALS Transportation

Air :?F,Y 00 .;?c?~ t7Cl To and From Temlinals Aulo Mileage

(.50¢ per mile-effective 111/1 OJ

Taxi

Parking and Tolls

Lodging S7?J-rFpAr s;,p s- /Io~ J" . '" /b"",;."£"tJ C' i1/2 m S"40'£ /J/cAlE?' ~ ~ z::;-Al Meals

Breakfast '7.50 P,s-v 7 S-o O?;(.SQ Lunch /cJ,s-O ~CJ SO /'/.!C'v.r:P t:../J /o,.s;-o 7/.-- 57/ Dinner /6/,5-0 /£. ~c) /.?c;-o yj? ~

MiscelumeOllS

Tips Telephone

Other (Itemize)

g ~(Jc?i: -r (!lfl'<.. hN1'7JL /3?7cx /3'~?;;< TOTAL EXPEf"t'SES .t;'t/C/. 3;{ 3Y; 5?J 0lY. Ql-r) / ~o-t) s ~0lS: ?d

SignCd:Ur~ ~ Date: /4~ Less Travel Advance Due, ifapplicablc: $ -G-

Total Out of Pocket Expenses: S 6,;( S. f?;;<,

Approyc" ~" ~ y 7

$ba0:~~ r ._ Total to be lleillllJul'j'ed to Payee:

Date: 7!p/r; Tola/ to be Returned IIl1SBIILF: $ \.

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MUklGAGE PRO 208-322-5581

" G NATU R E

:count Information; ~'W .barik of am elica. com

~Il billing Inquiries to! Ulk of !:uTlotica. J. Box 15026 ilrn iof.<ton., DE WS5G-1502f.'>

.11 pl!Iymon\.$ to: cl uf Alncrictl. J. tiny ~01200 '~ Allt;dm., CA 90030·J;!OO

stomer Service:

100.;');)2.7302

1<.00.222.7.365 TI'Y)

TmnSl"ctJofl P",,1i1l5

Dare Ders

11/ 28 12/01

12/ 13 12/13 12( 13 12/13

RICHAnD C CI.1FFORD

Acoount r..Jumber: "1117341020629429 November 13 - !Rcomoor 13, 2010

New Belanr,e Total ........................ .... .................... ........................ $384.00 Curn~nt Payment Due ....... .. .... .... ............ ......................................... $15 .00

Total Minimum Payment Due .................. ........... .......................... .. ... $:l5.00 Payment Due D~le .......... ...... ................... .. ............................... .... 1(10/ 11

Late Paymenl Warning; If we do not recoive your Tot",1 Minimum Payment by the c1at~ I/!';I.eej above, you may have to pay B late fee of up to $35.00.

Total MltllrnulT'l ·~ym .. nl Warning: It you make only the Total Minimum Payment each period, YOI.J will pay more in interest and it will ta1<~ you lon,l1,er to payoff your balanoo. For example;

If you would like information about crodit counseling services. call 1-856-300·5238.

Refsf'9nce DBSCflpuon Numf>9r

Purchases and AdJu9(menU

. . ....

Previous Balance ...... .. .. .. .................. $0 .00 P2\Yments and Othot C, .. uiLs .................... o .OO l'u[(',hases and Adjustments ................ 384.00 Fees Oharged .......................... __ .................. _ .. O.OO

lnterast Charged ............................................... O.OO

New Balance Total ................... _ ....... $384.00

Credit Line ............................ ... .. . $10,000.00 Credit Availat'\e .. .... ................. .... .. $:-> .Gjf;OO

Statement Closing D"te ............... .. :1 7/ 1.3/ 10 Days ipBilling Cyclo .. .. ................... .......... :11

Acc-ovnl NumD9f Am&unt lOl~f

ALASKA AIR 0272100512 SEATTLE WA 1631 0428!2- 3&1.00 CLJFFORD(RICHI\RD 12(01 LWS/OOI RNDflW 80l/LWS .) /j " b\1" bp'>Yr . $384.00

f~\ Intere$t Charl!ed I ) Interest Charged on Balance Transfers 0.00 ImereRt Charged on Cash Advan"",,,,, 0 .00 oct"ltinLl:::ld on nc;tt P~EI .:

540

Bud· t .. ~ Thank you for renting from Budget

RENTAt.HUMBER CAR NUMBER CAE! GHOUl"

237662876 4LOG(JS92 c

CLIFFORD ,RICHARD BeN = KP653G BCD = T999S00 CV . CAXXXXXXXXXXX4008

« OUT Bor 01DEC10/1802 HI ~ IN BOr 04DEC10/1219 MI ~ 89 MI@ 00 = i!l HR@ 27. 00 = g 3 DY@ 35.99 = ~DISCOUNT 5.0 :: ~ W"10.00% FEE = fi $ 0 56 /DY ERF = 5 $ 10.00 EXTN FEE :: ~ TAXABLE SUBTOT = ~ TAX 6.000% = ~ ~$1.70/DAY FEE :: ~ FUEL SERVICE ~ I:r

OJ 20342 * = 20431 "0 f

(11

g. 107.97 1i.,

5,40 1 11 43 '

1. 68 ~ 10.00 S!'

125. 68 ~ 7 54 g 5.10 e.

~ !"

~ TOTAL CHA.RGES "" 138.32 * ··CONCESSION RECOVeRY rEE "$1 .20fDY CUST FAC FEE(14 DAY KAX)& $.50fDY VLF RECOUP ENERGY RECOVERY FEE

Receive rental receipts by email overy flme you toot. "'iiIii __ 1I Arla got access to speci!IJ orlars & more. Soe tevers~ ~ U . J

541

~

JISBI Expense Report I£lO.HO STATE IlAR

NAME: 7otl.A. Wl+1nJFI{ Nature of Business:

WjI:~":Y~"" "'mT,y; ::;-'~'::"'r"'" 'f:/~r. 7.\' .. :; ·I~,+ <~~:'.,,;,., :". "'., . • ~i-l. THE IDAHO LAW F(mNDATIO~ ,

P~. ~ ~ : +v.cJ ~ Fedt ,..OS

Make Check Payable To: (HoM It> tv \ uJ H rrN F '( (Name of Seminar, Name of Board/Committee, Bar Exam Grading, otc.)

Check one: Idaho State Bar EI' Idaho Law Foundation 0 Address: P.D \ Eok tYI? ifO<J.U3W 11> g?tlf?' Idaho Volunteer Lawyers Program 0 Section 0

Please comp/eto separalo reports it you have expenses due from different organizations.

- - . - - - - - ~. .... - - _._-- .., - -- - -- - --- - _. - -

DATE: (2"/,/ID f 2./7..(10 rz(~ 11f:J TOTALS T ra nsporta tion

Air 37g,l{n To and From Terminals Auto Mileage

(.501 per mile-offoctive 111110) Taxi Parking and Tolls

Lodging .-:::p -"7 3,.., 1,7'7 Meals

Breakfast I ",If" I, ,l15

A

Lunch 3 h?D*- ('~ I v \l\c.R 'n t. \ V<:\'-e.$ Cwl£: rtG,cRH Dinner ,rlM,,"7vc...· Z. ~ t?2.. tA-W U\--;:t. lee. ~otGte ~')

Miscellaneous Tips S',oD (Lv-Jd \\A.on ) Telephone Other (Itemize)

TOTAL EXPENSES B ,8.l(O 1'11 0 ' 3'Pf, '72- $ 8L{7tl::'

~LtlVtt(J. .,#, .4 Date: tz(b(ZO!tJ

Less Travel Advance Due, if applicable: $ ... Signed: ~h Total Out of Pocket Expenses: $ 8i.f7d'3

~tt~ { 4,/(0 Total to be Reimbursed to Payee: $ ~Lf'7,I3>

Approved: Date: Total to be Returned to ISBilL F: $

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Alaska Airlines and Horizon Air - Purchased Rese

I My Account I Newsletter I En Espa nol

My Trips I Thomas - Sign Out

Vacatlpn Packages ~ Eled!on!e TImetables Route MaD Show All...

StARCH SEl.£CT ReVIEW TRAVELERS SEATS RESERVE CONFlIUdAllON

Confirmation - Purchased Reservation Your reservation Is complete. Print this page for your cheCK-in and airport use. A confirmation letter, Including your Itinerary, receipt and consumer notices, will be e-malled to you.

You may cancel or make one change to this flight Itinerary with no penalty within 24 hours of purchase. Many reservations may be cha nged or canceled online, or you can contact us by phone prior to the flight.

Enter ReQylred Traveler Documentation Add Itinerary to a calendar forward Itine@ry to a Friend

Trip Information

i'ill1i1itE" ..... :<~'~~~:'~ ~~:: ."- ,~c. d.;i~~D:i~~~":i':'-. ;;;;.-,,:.:.::..~~":~j n1reiliiSl:~ n,= ~ .• ::,=~~ ~ Pullman/Moscow (PUW) Boise (BOI) Coach . One stop . More .. ,

3:15 pm Wed, Dec 1 5:53 pm Wed, Dec 1 Total: ZZJ ,,\0 • 1 hr 10 m," Horizon Air 2217

~ Horizon Air 2399

~ Horizon Air 2214

E-tlcket:

Boise (BOI) 8:35 pm Fri, Dec 3

Seattle, WA (SEA) 10:20 pm Fri, Dec 3

Need II Hotel?

Seattle, WA (SEA) 9:07 pm Fri, Dec 3

Pullman/Moscow (PUW) 11:18 pm Fri, Dec 3

alaskaalr.com works with Orbltz to guarantee you the lowest prices on your hotel reservations.

Got a Ride? alaskaalr.com works with Orbltz to guarantee you the lowest prices on your car reservatlons .

Change seats

Coach • Nonstop • ~

Co!e .... Nonstop • ~

Total: 646 m! • 3 or 43 min

.~-,,,"-"--n(lo~ A V.II - ---

o Air Carrier Access Act requ lnas us-tO make certain seats available to customers with disabilities. If you are aSSigned-one of these seats and a quallfled person requests It, you will be reao:ommodated at the airport In another seat-- Seats have not been assigned • • We were unable to ao:ommodate your seat request, please see an airport agent on your day of departure to change your seat(s).

Fare Summary

The VISA ending with *** ... u7644 has been charged a total of USD $378.40 .

.EiWt Taxes 8s Fees Chargers)

Airfare for Thomas Whitney: $350.00 $28.40 $378.40

Amount Charged: IUSP$378.401 m (CurrenkY Conyerler)

FormlD: 2bdb1149fbaf749129245b417b9cdblSc

For additional assistance with your reservation call Alaska Airlines Reservations at 1-800-AlASKAAlR (1-800-252-7522) or Horizon Air Reservations at 1-800-547-9308.

-j

https:/ Iwww.alasi<aair.comfbooking/ssl{booi<lng.aspx

11/30{10 8:25 AM

Page 1 of 2

543

Inn a. Suites 495 S. Cap itol • Boise, ID 83702 official sponsor u.s. olympic team

USA

Phone (208) 331-1900 • Fax (208) 331-1903 Q%?-

WHITNEY, THOMAS 604 S. WASHINGTON #1

MOSCOW, ID 83843 US

name address

II the dahil/crodit can! you are u;ing for cbatk ·in I: attach,d 10 a blnk or ch""kin~ !ceount, a hold Will be placed aD tho account lor the full anticipated dollar amount to ba owed 10 !hI butaL inclurfrng utimated incidsDlals, tluaugh yaur data of chack·aul and sucb funda win nbl be relaand ler n businlt$ll haurl from 1m. dale of check-out or loagsr at the dilcrlltian of your financial mtulion.

Confinnation: 88386531

'\213/2010 PAGE

1211/2010 564712 r"'BONE FISH ROOM SERViCE·· ..

1211/2010 584732 MOVIE

121112010 584732 MISC· SALES T tv(

1211/2010 585009 GUEST ROOM

1211/2010 585009 ROOM Ttv(ES

12/212010 585325 MOVIE

121212010 585325 MISC· SALES T tv(

121212010 585588 GUEST ROOM

121212010 585588 ROOM Ttv(ES

room number: arrlvill date: departure date:

.duIVc:hlld: room ~te:

RATE PLAN HH# AL

918ISXCIL 121112010 6:27:00PM 121312010

1/0 $149.00

LVO

subject 10 tppDcabil lalas. accapancy. III atbar loxal. Plnse do not leave any munay er items of valu. unalland.d in A lafa dapOJh bD' il avaaobls IDr you in Ihe lobby. I agra. lhat my liability lor this bat is not wailed Bnd agr ••

bald pananally fI.bl. in the evant Ihal Ib, indicated parson, campEny Dr association laill 10 pay for any pan or Ihe full . of ihilsii charvas. I have raqilasled weekday dBlivBlY 01 USA TadBY. II rafusad. I credll of $0.75 wiD b. appfiad 10

In Iho BYOllt of an etn8rgancy. I, or ~cmaon. in my palty, raquire special oVBcuation ani:lan::e dUB to a phy~icil dilability. i.rflC.la yIU by cha:king bere: 0

$35.Q3 - J M 1Ae,.v . -$44.00----e....-~ $149.00

$19.37 $ 14 99 ~ ...$O,ge e-.

$149.00 ~

$19.37

WILL BE SETTLED TO VS ·7844 $403.55 - >117i ~iv EFFECTIVE BALANCE OF $0.00

ESTIMAT 0 CURRENCY TOTAL

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account no. date of charge folio/check no .

15224fi A card member name authorization initial

establishment no. and location .. t,b~:Iun.nl agr ... to llllUoit to cud hold.r fOI paynent purchases & services

taxes

tips & misc.

signature of card member

X tobot llmount

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Ha' Penny Bridge Irish Pub Happy Fish Sush1 & Martini Bar

855 Broad St., Suite 250 Boise, ID a3702

Server: Jody 10:00 PM B4/1

(208) 343-5568

DOB: 12/02/2010 12/02/2010

4140033

VISA 4194340 Card #XXXXXXXXXXXX7844 Magnet 1C card present: WHITNEY THOMAS ~l Approval: 32207C

Amount: 18.82

+ Tip: _._._!{.eo = Total: 2-2.,tz --_ ..... ------

x. ---.-~.-. ~Je accept Cash,

Vlsa, Mle, AmeK, and Diners Sorry, No Checks!

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200-342-

Server: Julie Ticket: 1012020022 lxn: 20

Visa 7844

Txn Id: 1202201734

Amount:

+ Tip:.

::: Total:

12/02/2010 1: 14 PM

Invoice: 0000113546

\¥f\: **** Approval~ 412d7~

26.50

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Expense Report RECEi V ED

DIEC Y 3 2mo Tl:IE IDAHO Lil.w FOIJNi:WfION

NAME: L- \ N 1)(-1 L'i) \.:v ( \ l~~) <:;' Nature o/2&~ltt;t$?T'-P;~A.a 1,-,,·,,-1 L,>.~ ,-, <:. 4 D-"c: .... :-\-.. \ -\<'U,,--)-- ' ("$~ (Name of Seminar, Name of BoaI'd/Committee, Bar Exam Grading, etc,) --

Make Check Payable To: L \ \'-J D'-'" c ... ;5)\:...) ~ )1- $ .?::.

Address:Y ,1.J ' 0'(:' ;<'" '$ \) -; \J Check one: Idaho State Bar,'!a: Idaho Law Foundation 0

'~~\L.\'\ 0 1'-'\ 1:: \) 8':.'7 ?'" D Idaho Volunteer Lawyers Program 0 ______ Sectiol1 0

Please complete separale reports if you have expenses due from different organization

All items must be accompanied by suppol'ting vouchers (except mileagH See reverse side for ISBIILF Expense Policy.

It -JJifriFfl.;1M -;---, 1;)./ ;'/, D 1 7 ~L2!' ~ 1";;>/; Z V

rrallSpOitation Air To and From Termin.als Auto Mileage (50.5¢ per mile (1/1/08 to 6/30/08)

Auto Mileage . S.o ( ....... , \-eI t; (~&-~r mile (7/1108 and after)

Taxi Parking and Tolls

Lodging Meals

Breakfast LUllch

Dinner MiscellaneQus

Tips Telephone Other (Itemize)

TOTAL EXPENSES

• J I ' , i

~~ .O~J I ~~. C:C'~ 17'-> ,~.\e...<> II"'? \;.) " ,~ ,\~

!J. -St.ff~ ..... ~- ~r-"r-'-i~'S.-'

It! _ _ , y if. . ':> '-'

$1' tJ, I!:? f13 -7. --; "I 'l'i S. '8- . ,;L '/

I ,+~ oc J t ) ,'1 1.;, {p '),S' )

,). ) ,J- . ":S ~ ) S C;" '/u / 10 $, '& 1 (19 tj ~

S· d , c· ~ l \ 19ne: .... ' ~G-.......:. ("~ ~ Date; l~/ I G / 0 r I

Less Travel Advance Due, if applicable: Total Out of Pocket Expenses:

~ Approved: Jh ~(h~. l ~(I~ {I v' l , ' Date: '. . ... r:o~~l to. be Reimbursed to Payee:

H ,: Total to b~ Retumed to ISBIILF:

TOTALS

l / t::>.e.(5" -1-9~H-cr

c;l . 'S C

::,'?<O . II

'-I / I \J :~')

$J.&-~~~S'4-·

$

i ~~'-:-5-y$'i72t-~~~-,).-j$

5i---gq .1...rr..,lI.

5'9 Cff • (oE..j

5ci <r ."~

Fe 09-05 CIa Hearing/Witn

COMMENT

Fee & Hi

IDAHO STATE BAR P.O. BOX 895

BOISE. ID 83701 (208) 334·4500

o imburseme

KEYBANK NAnDNAL ASSOC1AnON BOISE. IDAHO 83701

92·155·1241

DATE

11/19/10

PAY Forty-Three Dollars and 04 Cents

TO THE

ORDER

OF

DAHO STATE BAR VENDOR ID

OUR VOUCHER NUMBER

COMMENT

HateD Varela

1110 j B 2 j 3111 I:. 2 '-t ~ 0 ~ 5 5 5 i:

NAME PAYMENT NUMBER

YOUR VOUCHER NUMBER DATE AMOUNT

AUTHORIZED SIGNATURE

73000 '-to 3 bill

CHECK DATE

AMOUNT PAID DISCOUNT WRITE·OFF

&l!!o. ~

38233

AMOUNT

$43.04

38233 '\

I I\lET

547

IFe 09-05 CIa k Hear ing/lt/i tn

COMMENT

IDAHO STATE BAR P.O. BOX 895

BOISE, ID 83701 (208) 334-4500

o imburseme

KEYBANK NATIONAL ASSOCIA nON BOISE, IDAHO 83701

92·155-1241

DATE

11/19/10

PAY One Hundred Twenty-Six Dollars and 44 Cents

TO THE

ORDER

OF Mitchell Egusquiza

11= 0 3 B 2 3 • III I:. 2 4 ~ 0 • 5 5 5 I:

'AHO STATE BAR VENDOR ID I NAME PAYMENT NUMBER

I OUR VOUCHER NUMBER YOUR VOUCHER NUMBER DATE AMOUNT

'MMENT

7 3 0 DOL. 0 3 b III

ICHECK DATE I , I AMOUNT PAID DISCOUNT WRIIE·OFF

'\

I

38231

·PJl

38231

AMOUNT

$126.44

38231

NET

548


I hereby certify that on the 1t./-1~ day of ~ 2011, I served a true and correct

copy of the foregoing MEMORANDUM OF COSTS by email and by depositing the same in the U.S.

mail at Boise, Idaho, each enclosed in a separate, sealed, stamped envelope, addressed and directed as

follows:

Larry D. Purviance Attorney for Respondent 2151 Hayden Ave. Hayden, ID 83835 Ipurviancelaw@,gmail.com

Thomas W. Whitney, Chairman Professional Conduct Board 604 S. Washington Street, Ste. 1 Moscow,ID 83843 [email protected]

Linda M. Edwards Professional Conduct Board P.O. Box 5070 Ketchum, ID 83340 lme7@,cox.net

Richard G. Clifford Professional Conduct Board 828 8th Ave. Lewiston, ID 83501 dick@,cafinancialservices.com

~J!._~/ Sue Nelson Clerk of the Professional Conduct Board

I further certify that I served a true and correct copy of the aforesaid document(s) upon Bar CounsellDeputy Bar Counsel for the Idaho State Bar by personally delivering said copy to Office of Bar Counsel at the Idaho State Bar, 525 W. Jefferson, Boise, Idaho.

549

#3401 P.DOI /003

LARRY D. PURVIANCE Attorney at Law 2151 Hayden Avenue Hayden, ID 83635 Telephone: 208-635-5388 Facsimile: 208-635-5389 Bar No. 4999


FILE NO: Fe 09-05 IDAHO STATE BAR,

NOTICE OF APPEAL Plaintiff! Appellee,

v.

JAYP. CLARK,

TO THE ABOVE NAMED APPELLEE, IDAHO STATE BAR; AND THE CLERK OF THE ABOVE-ENTITLED COURT.

NOTICE IS HEREBY GIVEN THAT:

1. The above-named Appellant JAY P. CLARK hereby appeals against the

above-named Appellee to the Idaho Supreme Court from the Hearing Committee of the

Professional Conduct Board ofthe Idaho State Bar Association's Findings of Fact,

Conclusions of Law and Recommendations, fil~ on April 7, 2011.

2. The party has a right to appeal to the Idaho Supreme Court, and the Fi.odings

of Fact described in paragraph 1 above is an appealable order under and pursuant to

Idaho Bar Commission Rule 511.

NOTICE OF APPEAL

550

:L .. P R • L ! ~ L U J. 1 :.:.. L. : :, d #3101 2.CD2 /003

PRELIMINARY STATEMENT OF ISSUES ON APPEAL:

3. Respondent! Appellant contests all of the Findings of Fact, Conclusions of

Law and Recommendations of the Hearing Committee contained in its April 7., 2011,

Recommendation, which was served on Respondent! Appellant on April 8, 2011.

4. A Rcporter's Transcript ofthe Hearing held on December 2 and 3,2010, before

the Hearing Committee, has been prepared to be made a part of the Court record~

pursuant to Idaho State Bar Commission Rules, and was required to be scrved on the

Idaho Supreme Court within 21 days after the service of the Findings of Fact and

Conclusions of Law.

5. The Appellant requests that the following be included in the clerk's record:

a. An documents submitted to the Committee and admitted into evidence

regarding the Disciplinary Hearing; and

b. Transcript of the Disciplinary Hcaring

6. I certify that service has been made upon all parties required to be served.

DATED THIS XI'<fA-day of April, 2011

NOTICE OF APPEAL

551

A?R.27.2811 12:58


I hereby certify that a true and correct copy of the foregoing was served by U.S. Mail and/or facsimile on the ~ day of April 2011, to the following:

Idaho Supreme Court PO Box 83720 Boise, ID 83720-0101

Bradley G. Andrews Bar Counsel P.O. Box 895 Boise, In 83701

Thomas W. Whitney

Fax No: (208) 334-2616

Fax N{).: (208) 334-2764

Chainnan of the Professional Conduct Board Whitney & Whitney, LLP 604 S. Washington. Suite 1 Moscow, LD 83843 Tel: 208-882-6872 Fax: (208) 441-9575


Richard G. Clifford Professional Conduct Board 8288thAve. Lewiston, TD 83501

Sue Nelson Clerk, Professional Conduct Board Idaho State Bar P.O. Box 895 Boise, ID 83701

NOTICE OF APPEAL

Fax (208) 334.2764

p~~p~~=g=-e---------------

552

Idaho State Bar v. Clark Clerk's Record v. 2 Dckt. 38792

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