Public Reprimand of Michael W. Starkweather
2012-OLR-6
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The Respondent, Attorney Michael W.
Starkweather (“Starkweather”), age 55, was
admitted to the practice of law in Wisconsin
on June 9, 1988 and practices in Sandy,
Utah. Starkweather is also registered as a
patent attorney before the U.S. Patent and
Trademark Office.
Starkweather is the sole owner of Advantia
Law Group (“Advantia”) which is a d/b/a of
Michael W. Starkweather, PC formed in 2003.
Advantia’s primary place of business is in
Sandy, Utah.
Starkweather engaged in the unauthorized
practice of law by appearing as lead counsel
in two cases in the United States Bankruptcy
Court for the District of Utah.
Starkweather was admitted to practice in
Wisconsin in 1988. His Wisconsin license is
active and in good standing. Starkweather
is not admitted to practice law in the
United States Bankruptcy Court for the
District of Utah. Starkweather is also not
admitted to practice law in the State of
Utah or the United States District Court for
the District of Utah.
In a Public Access to Court Electronic
Records (“PACER”) document Starkweather is
listed as lead attorney in the bankruptcy of
client J.L.G, filed on December 18, 2008 in
the United States Bankruptcy Court for the
District of Utah. Starkweather admits that
he appeared on behalf of J.L.G. at a 341
hearing before a trustee in his bankruptcy.
In another PACER document Starkweather is
listed as lead attorney in the bankruptcy of
E.V. and H.V., filed on October 8, 2008 in
the United States Bankruptcy Court for the
District of Utah. Starkweather admits that
he appeared on behalf of E.V. and H.V. at a
341 hearing before a trustee in their
bankruptcy.
OLR reviewed printouts of Advantia’s web
site dated August 27, 2010. On August 27,
2010 Starkweather’s biography page on
Advantia’s web site described his extensive
background in intellectual property,
corporate and securities laws.
Starkweather’s biography page did not
indicate that he was not licensed to
practice law in Utah, nor did it indicate in
which jurisdictions he was licensed to
practice. In contrast, another Advantia
attorney’s biography page on the web site
indicated she was a member of the Utah State
Bar and admitted to the United States
District Court for the District of Utah.
On August 27, 2010, Advantia’s web site
listed a Utah office and a California office
for Advantia. The address of Advantia’s
California office was in Santa Clara,
California.
OLR asked Starkweather whether Advantia had
a California office located at the Santa
Clara, California address that appeared on
his website.
Starkweather stated that Advantia had a
patent agent, not an employee of Advantia,
working on several projects for Advantia and
it was the patent agent who had an office in
Santa Clara, California. Starkweather
further stated, “Advantia was using that
office to conduct meetings, when in town.”
Starkweather further informed OLR that
Advantia did not have a lease agreement for
that or any other office in California, the
patent agent was not an employee of
Advantia, and therefore Advantia did not
have a California office in the traditional
sense of what constitutes an office.
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By representing J.L.G., as lead attorney in
his bankruptcy in United States Bankruptcy
Court for the District of Utah, and
appearing at a hearing before a trustee in
his bankruptcy, without being admitted to
practice in the United States Bankruptcy
Court for the District of Utah, Starkweather
violated SCR 20:5.5(a)(1), which states, “A
lawyer shall not…practice law in a
jurisdiction where doing so violates the
regulation of the legal profession in that
jurisdiction...”
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By representing E.V. and H.V., as lead
attorney in their bankruptcy in United
States Bankruptcy Court for the District of
Utah, and appearing at a hearing before the
trustee in their bankruptcy, without being
admitted to practice in the United States
Bankruptcy Court for the District of Utah,
Starkweather violated SCR 20:5.5(a)(1).
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By failing to indicate on his web site
biography page the jurisdictional
limitations of his practice, Starkweather
violated SCR 20:7.1(a) which states:
A lawyer shall not make a false or
misleading communication about the lawyer or
the lawyer’s services. A communication is
false or misleading if it: (a) contains a
material misrepresentation of fact or law,
or omits a fact necessary to make the
statement considered as a whole not
materially misleading.
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By listing a California office for Advantia
on its web site when Advantia did not have a
California office, Starkweather violated SCR
20:7.1(a).
On December 10, 2009, a man hired Advantia
to represent him in a bankruptcy. An
Advantia attorney other than Starkweather
was assigned to the matter. There was no
written fee agreement.
Also on December 10, 2009, the client paid
Advantia an advanced fee of $1,800 to
represent him in the bankruptcy. The
client’s $1,800 advanced fee, paid by credit
card, was deposited directly into Advantia’s
trust account at its bank in Utah.
In an affidavit dated July 13, 2010, the
assigned attorney stated he received an
email from Starkweather on February 25, 2010
requiring him to resign effective March 1,
2010. The assigned attorney stated his
resignation led to his forming a new firm.
The assigned attorney further stated in his
affidavit that there were certain real
property issues that had to be resolved
before the client’s bankruptcy could be
filed. The assigned attorney stated in his
affidavit that he did not perform any work
on the client’s bankruptcy during the months
of December 2009, January 2010 and February
2010.
In a letter to Starkweather dated March 24,
2010, the client formally demanded a refund
of the $1,800 advanced fee and directed
Starkweather to immediately remit the $1,800
advanced fee to the assigned attorney’s new
law firm.
In a second letter to Starkweather dated
June 1, 2010, the client again demanded a
refund of the $1,800 advanced fee because
Advantia never completed his bankruptcy and
directed the refund check to be sent
directly to him.
In a letter to the assigned attorney dated
June 10, 2010, an Advantia billing clerk
stated he had two documents attesting that
the assigned attorney completed the
bankruptcy and approved billing for the
bankruptcy while still at Advantia. The
billing clerk further stated, “With this
documentation, Michael Starkweather has
asked if you would take care of this client.”
In his response to the client’s grievance,
Starkweather stated he did not perform any
work for the client, never met the client,
and that the client’s bankruptcy case was
handled by the assigned attorney while he
was still at Advantia.
In an affidavit dated October 29, 2010, the
Advantia billing clerk stated that the
assigned attorney wrote “yes” next to the
client’s name on the Matter Trust Balances
Summary Report and he wrote his initials on
the Matter Trust Balance Transfer dated
February 11, 2010. The billing clerk
maintains in his affidavit that the assigned
attorney’s actions meant he authorized the
funds held in trust to be removed from the
trust account, and that the funds were
earned in the client’s case.
In the assigned attorney’s affidavit dated
July 13, 2010, he denied entering his
initials on the Matter Trust Balance
Transfer and stated the “yes” next to the
client’s name was only his confirmation that
the money had been deposited in the trust
account and was still in the trust account.
On February 18, 2010 the $1,800 advanced fee
paid by the client was deposited into
Advantia’s business checking account from
Advantia’s trust account.
Advantia sent an invoice dated March 9, 2010
to the client showing the withdrawal of
$1,800 on February 11, 2010 from the
Advantia trust account for payment of fees.
The client’s bankruptcy was filed in the
United States Bankruptcy Court for the
District of Utah on November 8, 2010 while
the client was being represented by the
assigned attorney’s new law firm.
Bankruptcy court records reviewed through
PACER indicate no bankruptcy filing on
behalf of the client prior to November 8,
2010.
In his response to the client’s grievance,
Starkweather stated he became suspicious
that the client’s bankruptcy was not filed
when he received the client’s letter dated
June 1, 2010. Starkweather offered to
refund the client the $1,800 advanced fee in
an offer to compromise a civil lawsuit, but
that offer was rejected. However,
Starkweather’s offer required the client to
sign a release and waiver in order to
receive a refund of his $1,800 advanced fee.
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By failing to provide written notice to the
client at least 5 business days before the
date on which the $1,800 disbursement was
made from his trust account to his business
account for the purpose of paying fees,
Starkweather violated SCR 20:1.15(g)(1),
which states:
(g) Withdrawal of non-contingent
fees
from trust account
(1) Notice to client. At least
5
business days before the date on which a
disbursement is made from a trust account
for the purpose of paying fees, with the
exception of contingent fees or fees paid
pursuant to court order, the lawyer shall
transmit to the client in writing all of the
following:
a. an itemized bill or other
accounting
showing the services rendered;
b. notice of the amount owed
and the
anticipated date of the withdrawal; and
c. a statement of the balance
of the
client’s funds in the lawyer trust account
after the withdrawal.
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By depositing the client’s $1,800 credit
card payment into his trust account at his
Bank in Utah, Starkweather violated SCR
20:1.15(e)(4)(e), which states, “A lawyer
shall not authorize transactions by way of
credit card to or from a trust account.
However, earned fees may be deposited by way
of credit card to a lawyer’s business
account.”
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By having a Utah IOLTA trust account, when
his only State of licensure is Wisconsin,
Starkweather violated SCR 20:1.15(e)(1)(a)
which states, “Each trust account shall be
maintained in a financial institution that
is authorized by federal or state law to do
business in Wisconsin and that is located in
Wisconsin or has a branch office located in
Wisconsin, and which agrees to comply with
the overdraft notice requirements of sub.
(h).”
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Having not earned the $1,800 advanced fee
paid by the client, by failing to refund the
fee without condition, Starkweather violated
SCR 20:1.16(d), which states, “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.”
In connection with his violation of SCR
20:1.15(e)(1), as a prior condition to the
imposition of this consent public reprimand,
the Respondent closed his Utah trust account.
Respondent has no prior discipline.
In accordance with SCR 22.09(3), Attorney
Michael W. Starkweather is hereby publicly
reprimanded.
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