The Utah Supreme Court has reversed a lower court and disbarred a Salt Lake attorney who misrepresented remediation efforts in an in environmental contamination case.
With one justice dissenting, the court ruled Friday that Byron L. Stubbs' conduct warranted more than the three-year suspension imposed by 3rd District Judge J. Dennis Frederick.The disbarment stems from Stubbs' work on behalf of Tool Design Engineering and Manufacturing Co. State regulators issued a notice of violation to the firm in 1988 after finding dangerously high levels of lead and chrome in a ditch at its South Salt Lake property.
Tool Design entered into a consent decree with the state the following year, promising to remediate the contamination. In 1991, the state accused the company of failing to comply with the terms of the decree.
According to the court record, a contractor later removed a substantial amount of the contaminated soil and dumped it at the Salt Lake County Landfill, a violation of the consent decree. Though Stubbs told the workers to stop the removal, he failed to report the action to the state, Associate Chief Justice Christine Durham said.
Stubbs also withheld information about the soil removal during a March 13, 1992, meeting with representatives of Wasatch Environmental Inc., which was testing and sampling the soil in advance of the remediation work.
That same day, he suggested to Tool Design officials that they literally cover up the violation by replacing the soil that had been improperly removed with clean dirt and then contaminating it with liquid pumped from the firm's chrome rinse tank, Durham said.
A company employee refused to go along with the illegal plot and alerted the Attorney General's Office. The scheme was never carried out, but the employee's tip triggered an investigation.
Durham said during the course of that investigation, Stubbs helped Tool Design officials prepare a letter to the state that contained false information regarding the removal of the contaminated soil. Based on that letter, Stubbs was charged with communications fraud. He pleaded guilty to the misdemeanor charge on July 26, 1996.
Four months later, Stubbs attempted to explain his criminal conduct to the Utah State Bar by claiming that he had informed the state about the soil removal.
Although the State Bar recommended disbarment, Frederick concluded that mitigating circumstances -- including inexperience in criminal and environmental law and absence of selfish motive -- outweighed aggravating circumstances.
The State Bar appealed, saying the penalty was too light, and Stubbs appealed, saying it was too harsh.
Writing for the majority, Durham agreed with the State Bar. She said that besides the "pattern of dishonesty," Stubbs' conduct caused a potential public health hazard by delaying the proper treatment and disposal of the contaminated soil.
Justice I. Daniel Stewart dissented, arguing that the lower court was in a better position than the Supreme Court to evaluate mitigating circumstances.
Stubbs' attorney, Kendall S. Peterson, called the disbarment excessive punishment and a "sad event." He said Stubbs, 67, has practiced law for more than 35 years with no other blemish on his record. And nothing he did in the Tool Design case involved personal gain or self-interest, Peterson added.
"The purpose of lawyer discipline is to protect the public from an attorney who represents a danger," Peterson said. "In my opinion, Mr. Stubbs doesn't present a danger to anyone."