Idaho State Bar v. Jeffrey J. Hepworth

majority opinion

IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 53451

IDAHO STATE BAR, )

)

Petitioner-Appellant-Cross Respondent, ) Boise, June 2026 Term

)

v. ) Opinion filed: October 2, 2026

)

JEFFREY J. HEPWORTH, ) Melanie Gagnepain, Clerk

)

Respondent-Respondent on Appeal-Cross )

Appellant. )

Appeal from the Professional Conduct Board Hearing Committee of the Idaho State

Bar.

The decision of the Professional Conduct Board Hearing Committee finding a

violation of the Idaho Rules of Professional Conduct is affirmed, the recommended

sanction is vacated, and Respondent is suspended from the practice of law for 18

months, with the first 6 months enforced and the next 12 months conditionally

withheld.

Joseph N. Pirtle, Idaho State Bar Counsel, Boise, for Appellant-Cross Respondent.

Joseph N. Pirtle argued.

Law Offices of Comstock & Bush, Boise, for Respondent on Appeal-Cross

Appellant. John A. Bush argued.

MOELLER, Justice.

The Idaho State Bar (“ISB”) appeals from the withheld, one-year suspension recommended by the Hearing Committee of the Professional Conduct Board of the Idaho State Bar

(“Committee”) in this attorney discipline case. On May 31, 2023, the ISB filed an amended complaint against Jeffrey J. Hepworth, an attorney licensed by the Idaho State Bar, alleging he violated six provisions of the Idaho Rules of Professional Conduct (“Professional Conduct Rules”): 3.3(a)(1), 3.3(a)(3), 4.1(a), 8.4(c), 8.4(d), and 8.1(a). After an evidentiary hearing, the Committee determined by clear and convincing evidence that Hepworth had violated all six rules. The Committee’s recommended sanction was a withheld, one-year suspension.

5 8.4(d) It is professional misconduct for a lawyer to engage in conduct that

is prejudicial to the administration of justice.

6 8.1(a) An applicant for admission to the bar, or a lawyer in connection with

a bar admission application or in connection with a disciplinary

matter, shall not knowingly make a false statement of material fact.

A. Hepworth’s conduct at the employment discrimination trial.

The conduct at issue in the ISB’s amended complaint concerns the testimony of Hepworth’s non-retained expert witness, Justine Sweet, regarding the compensation she received for her testimony at trial. Hepworth called Sweet to testify about the results of the Global Appraisal of Individual Needs Assessment (“GAIN-1 Assessment”) she administered to Hilliard in 2017. The GAIN-1 Assessment is a series of psychological instruments used to assist with clinical diagnosis, placement, and treatment. On cross-examination, defendant’s counsel, Pamela Howland, asked Sweet, “[a]re you being paid for your testimony today?” Sweet responded, “$40.” Later, during his closing argument to the jury, Hepworth referred to Sweet’s statement that she was only paid $40, presumably to highlight the unbiased nature of her testimony:

And [Hilliard] ended up with Justine Sweet, who he had never met before

that. And Justine Sweet testified, and I was incredibly impressed with Justine

Sweet. She just finished a 12-hour stint at her place of employment where she deals

with drug addicts and very mentally disturbed people. She worked all night, 12

hours, and then showed up to court here for $40.

She wasn’t -- wasn’t a high-paid hired gun. She was a nice lady. And she

was qualified. She had had a lot of training. She almost had her Ph.D. She had her

master’s. She was just a little bit away from her Ph.D. in counseling. And she had

done a lot of substance abuse evaluations. And she was very familiar with the GAIN

test. The GAIN test, which is a [sic] certified by the State of Idaho as a qualified

substance abuse assessment tool.

And she literally sat down next to [Hilliard] and asked him questions for

two hours and put the information in herself on the computer and generated a report.

And there’s nothing, nothing to suggest Brent Hilliard has a substance abuse

problem.

(Emphasis added). The jury issued a verdict in favor of Hilliard and awarded him $664,275.40. The federal district court entered judgment in that amount against the defendants.

After the trial, Hepworth’s firm filed a bill of costs, a supplemental motion for taxation of costs, and a motion for attorney fees that itemized all the funds paid to witnesses. Upon reviewing these filings, Howland learned that (1) Hepworth’s firm had tendered a check to Sweet for $91.50

with a subpoena before her appearance at the trial; (2) Hepworth had personally signed and issued a check for $500 to Sweet the day after the trial; and (3) Hepworth had told Sweet before trial that she would be paid a “reasonable fee” for her time. On January 3, 2022, Howland filed a motion for a new trial or to alter or amend the judgment, a motion to set aside the judgment or amend findings or grant a new trial, and a motion for relief from the judgment under Federal Rules of Civil Procedure 59 and 60. Howland also filed a grievance with the ISB against Hepworth on March 8, 2022, based in part on the revelations concerning Sweet’s compensation.

The United States District Court for the District of Idaho scheduled a hearing on the motions and received briefing from the parties. Before the hearing, Hepworth filed an affidavit with the federal district court wherein he testified:

During trial I met with Justine Sweet on two occasions to prepare for her testimony.

I told her that we were paying the other expert fact witnesses for their time and we

expected to pay her a reasonable fee. She did not tell me how much she intended to

charge. I did not remember to follow up with her before she testified. On the witness

stand she truthfully testified she had been paid $40.00 in response to Pam

Howland’s question. I saw no reason to inquire further. . .

. . . I felt bad for Justine when she testified she had only been paid

$40.00. . . . In my opinion, Justine Sweet testified accurately and truthfully when

she testified in [c]ourt she had only received $40.00 for the day she was in [c]ourt.

I believe she had likely forgotten I promised to pay a reasonable fee for her time as

we had the other expert fact witnesses. At trial, it did not occur to me to ask her

more questions about her fee because I felt it was immaterial. . . . Pam Howland

knew as much as I did about the fee arrangements for the expert fact witnesses.

The federal district court conducted a hearing on the motions on August 29, 2022, and issued its Memorandum Decision and Order on September 14, 2022. See Hilliard v. Twin Falls Cnty. Sheriff’s Off., No. 1:18-CV-00550-CWD, 2022 WL 4235136 (D. Idaho Sept. 14, 2022). The court granted the TFCSO’s motion for a new trial and its motion for relief from the judgment. See id. at *1, *11. It found that “[t]he integrity of the judicial process and the legitimacy of the jury’s verdict were severely compromised by the circumstances surrounding payments made to Sweet[.]” Id. at *4. The court highlighted Hepworth’s (1) failure to fully disclose the $91.50 payment already made to Sweet before her testimony; (2) failure to clarify her testimony during the trial; and (3) reliance on her incorrect testimony in closing argument during which he “knowingly misrepresent[ed] the full extent of the compensation paid and promised to be paid to Sweet.” Id. at *4–5. The court also explained that it was

left with the inescapable conclusion that [Hepworth] knowingly presented to the

jury an inaccurate and incomplete portrayal of the compensation paid to and

promised to be paid to Sweet for her testimony. This fundamentally interfered with

the jury’s ability to weigh the credibility of Sweet’s testimony, vis-à-vis the other

witnesses and evidence, and with defense counsel’s ability to fully and fairly

present their case.

Id. at *5. The federal district court noted that “[w]hat is clear in the record is that [Hepworth] promised to pay Sweet a reasonable fee prior to trial and knew during her trial testimony that he owed Sweet a further payment[.]” Id. at *7. It also explained that Hepworth’s explanation that he “forgot” to pay Sweet until after trial was belied by the fact that he highlighted her testimony during closing argument and “unilaterally decided to pay Sweet an additional $500 . . . before receiving any invoice from Sweet.” Id.

The federal district court also explained that Sweet’s testimony was important to Hilliard’s claims and effective against the defendant’s arguments. See id. at *5. It noted that her testimony describing the results of the GAIN-1 assessment, which Hepworth used to weaken the argument that Hilliard had an addiction problem, “was central to the liability finding.” Id. Hepworth’s firm “described Sweet as a ‘critical’ witness.” Id. Her testimony was used to rebut the defendant’s arguments addressing Hilliard’s truthfulness and his fitness to return to work. Id. The issue of Sweet’s compensation was relevant to any bias or credibility determinations by the jury and the false information “gravely compromised the integrity of the judicial process by interfering with the jury’s task of weighing the credibility of Sweet’s testimony and rendering a fair and impartial verdict.” Id.

The federal district court rejected Hepworth’s argument that because Sweet’s testimony was both truthful and immaterial, there were no grounds for a new trial. Id. at *4. It reasoned that:

[t]he truth or falsity of Sweet’s testimony about her witness fee is not determinative

of the present motions. One interpretation of the record is that, when asked “[a]re

you being paid for your testimony today,” Sweet’s response of “$40” was truthful,

because she was entitled to an attendance fee of $40 for each day of her testimony.

28 U.S.C. § 1821(b). Conversely, because Sweet had received a payment in the

amount of $91.50 prior to trial, her response of “$40” could be viewed as untruthful.

This discrepancy does not change the [c]ourt’s conclusion stated herein. The basis

for granting a new trial is not any false testimony by Sweet but, rather, the

misrepresentations and conduct of [Hepworth] discussed herein which

substantially prejudiced the integrity and fairness of the trial process.

Id. at *5 n.4 (italicized emphasis added). As the court phrased it, Hepworth “deliberately emphasized Sweet’s testimony and the context of the same, to [Hilliard]’s unfair advantage, during

closing argument to bolster and contrast Sweet’s credibility from the other ‘high-paid hired gun[s].’ ” Id. at *5. As to materiality, it identified that Hepworth specifically cited her testimony in his closing argument and that Sweet’s testimony was “extremely influential to the issues before the jury” in a “close case with both parties having strong arguments and evidence supporting their respective positions.” Id. at *6.

Among its reasons for granting a new trial, the federal district court took issue with Hepworth’s conduct following Howland’s inquiry about Sweet’s compensation after Howland had reviewed the memorandum of costs. In short, Hepworth’s inconsistent statements about a purported “invoice” his firm received from Sweet after trial were “burdensome to reconcile and deeply troubling to the [c]ourt.” Id. at *7 n. 8. It described his explanations as “vacillating and incomplete.” Id. at *7. After providing various explanations to opposing counsel and the federal court, Hepworth’s firm “submitted a supplemental bill of costs reducing the amount sought for [the] post-trial payment to Sweet by one-half,” which Hepworth argued should make the defense “pleased.” Id.

Following the federal district court’s order granting a new trial, the parties notified the court that they had reached a settlement and filed a stipulated dismissal of the case with prejudice. The federal district court granted the stipulation and dismissed the case with prejudice on February 27, 2023.

B. Hepworth’s conduct following the Bar complaint.

Acting on information supplied by Howland, the ISB filed a disciplinary complaint against Hepworth on April 12, 2023, alleging violations of the Idaho Rules of Professional Conduct. The ISB later filed an amended complaint on May 31, 2023.

While the Bar matter was pending, Hepworth filed a motion in the federal district court on September 28, 2023, seeking to set aside the judgment of dismissal and the settlement agreement under Federal Rule of Civil Procedure 60(b). The motion was based on information Hepworth garnered from his deposition of Howland in the ISB disciplinary proceeding. Four days later, Hepworth filed a motion to vacate the evidentiary hearing with the Committee and stay actions in the disciplinary proceeding based on his motion to set aside the judgment in the federal case. Hepworth argued that, based on the information he obtained from Howland during the disciplinary proceedings, she committed fraud at the federal district court. The Committee granted the motion in part and stayed disciplinary proceedings until the federal case was resolved.

The federal district court denied the Rule 60(b) motion on January 24, 2024. On February 27, 2024, Howland filed a motion for attorney fees incurred defending against the motion. The federal district court granted that motion and found Hepworth acted “recklessly in filing the motion . . . thereby unreasonably and vexatiously multiplying the proceedings in [the] matter.” Hilliard, 2024 WL 1347168, at *3 (D. Idaho Mar. 29, 2024). It found that the motion was filed for the improper purpose of “avoid[ing] sanctions in the ISB proceeding.” Id. Not only was the motion not timely as to one claim for relief, but Hepworth’s alleged basis for the remaining motions was the “newly discovered evidence” that was available to Hepworth in 2022. See id. at *4. This “new evidence” was the allegation that Howland committed fraud by not “tender[ing] any compensation to Justine Sweet to account for the time she spent” for her deposition prior to trial. Id. The federal district court summarized its conclusions:

[Hepworth] waited to explore the issue with Ms. Howland [her lack of

compensation to Justine Sweet] until after a settlement agreement was reached,

after his client began receiving payments pursuant to the agreement, and after he

learned that Ms. Howland’s letter initiated an apparent investigation and eventually

led to formal charges by the ISB. Such suspect timing cannot be ignored.

Id. (footnote omitted). The district court granted Howland’s motion for fees and assessed the award against Hepworth personally. See id. at *5.

Hepworth filed an appeal of the district court’s decision with the Ninth Circuit Court of Appeals, which affirmed the federal district court on March 26, 2025. See Hilliard v. Twin Falls Cnty. Sheriff’s Off., Nos. 24-819, 24-2112, 2025 WL 914748 (9th Cir. Mar. 26, 2025). The panel’s memorandum order explained that the district court did not abuse its discretion. The Ninth Circuit panel, describing the federal district court’s findings of fact as “thoroughly supported by the record,” affirmed the federal district court’s conclusion that Hepworth “acted recklessly in filing the frivolous Rule 60(b) motion, thereby unreasonably and vexatiously multiplying the proceedings in this matter.” Id. at *1. It also upheld the federal district court’s conclusion that the motion “failed to raise any legitimate argument, tried to reopen a matter that had been closed for seven months due to the parties’ settlement, and appeared to have been brought by [Hepworth] for his own benefit.” Id.

C. The ISB proceedings.

Upon resolution of the pending federal case, the Committee lifted its stay of the disciplinary proceedings. The Committee issued its Order on Motions for Partial Summary Judgment in the disciplinary proceedings on September 30, 2025, concluding that Hepworth was “precluded from

relitigating the factual findings in the federal case based on issue preclusion.” Thus, the Committee took “judicial notice of the factual findings in the federal case” under Rule 525(m) of the Idaho Bar Commission Rules (“IBCR”), and Rule 201(b) of the Idaho Rules of Evidence (“IRE”). The Committee cited Ticor Title Co. v. Stanion, 144 Idaho 119, 124, 157 P.3d 613, 618 (2007), and stated that issue preclusion “has been routinely applied in disciplinary proceedings in the majority of other jurisdictions.” It then discussed each of the five factors from Ticor Title. In evaluating Hepworth’s arguments against summary judgment, the Committee observed that he “appear[ed] to conflate issue preclusion[,] which deals with facts[,] and claim preclusion[,] which deals with the outcome of claims.” It then found that, based on the federal district court’s findings, Hepworth had committed the ethical violations contained in Counts 1 through 5 of the amended complaint as a matter of law.

Count 6 of the ISB’s amended complaint alleged a violation of Rule of Professional

Conduct 8.1(a) based on Hepworth’s conduct and interactions with the ISB during the disciplinary proceedings. Since this behavior was not part of the federal district court’s findings, the Committee held an evidentiary hearing before making findings of fact. The conduct at issue in this count of the amended complaint is summarized below.

On September 29, 2022, after the federal district court entered its order granting a new trial, Hepworth sent Bar Counsel, Joe Pirtle, an email self-reporting “alleged misconduct.” At an evidentiary hearing with the Committee on October 22, 2025, Hepworth’s son and law partner, Grady Hepworth, explained that the decision to self-report stemmed from Grady’s attendance at an Inns of Court meeting where Bar Counsel made a CLE presentation that referenced the duty to self-report. Grady stated that neither he nor his father had knowledge of the Bar grievance filed by Howland at the time his father sent the email.

In the email, Hepworth made the following statements, which the ISB alleged conflicted with his account of the events during a hearing on Howland’s motion for a new trial and his affidavit submitted to the federal district court:

 “I have no specific memory of a discussion about paying [Sweet] for the time she spent

with me preparing for trial and testifying.”

 “Its [sic] possible I forgot to tell her we would pay her for her time.”

Specifically, the ISB alleged that these email statements conflicted with Hepworth’s earlier account of his fee discussions with Sweet at the hearing on the motion for a new trial at the federal district court:

 “[W]e had forgotten that I told her we would pay her for the time and I’m kind of weird

this way, Your Honor. When I tell somebody that I’m going to pay them for their time, I

mean it.”

 “I met with [Sweet] a number of times [before trial]. I knew I owed her money.”

Likewise, in an affidavit previously filed with the federal district court, Hepworth gave a materially different version of events:

 “We subpoenaed Ms. Sweet to testify at trial and paid the mandatory minimum travel and

witness fees when she was subpoenaed.”

 “During trial I met with Justine Sweet on two occasions to prepare her for testimony. I told

her that we were paying the other expert fact witnesses for their time and we expected to

pay her a reasonable fee.”

 “I blamed myself for not remembering to follow up with her to charge us her normal rate

for time. I felt responsible.”

 “I believe [Sweet] had likely forgotten I promised to pay a reasonable fee for her time as

we had the other expert fact witnesses.”

The Committee found that Hepworth’s statements in the email claiming he had “no

memory” of discussing compensation with Sweet or may have forgotten any discussion about compensation “directly contradict[ed] [Hepworth’s] prior statements to the [federal district] [c]ourt and the [c]ourt’s factual findings in the civil case.” It also found Hepworth’s testimony “not credible” after comparing it to his affidavit filed with the federal district court, which “unequivocally state[d] that he met with Sweet during the trial and he expected to pay her a reasonable fee.” The Committee concluded that the statements in the email “were made in connection with a disciplinary proceeding because he was self-reporting a potential violation of ethical rules.” It also concluded that, based on clear and convincing evidence, Hepworth had the intent required to find a violation of Rule 8.1(a) because he knew that the statements in the email were false based on his affidavit and statements at the federal district court.

The Committee determined that Hepworth should be sanctioned for the six rule violations it had found he violated. It recommended a one-year withheld suspension from the practice of law during which time he was subject to a single condition: that he abide by the Professional Conduct Rules. The ISB appealed, arguing that the sanction was “too lenient.” Hepworth cross-appealed,

maintaining that the Committee erred in finding that he committed any of the alleged rule violations.

II. STANDARDS OF REVIEW

“When this Court reviews an attorney discipline case, we ‘independently examine[ ] the record developed before the Professional Conduct Board to determine whether the evidence supports the findings and recommendations of the Board’s hearing Committee.’ ” Idaho State Bar v. Oleson, 175 Idaho 541, 548, 568 P.3d 83, 90 (2025) (alteration in original) (quoting Idaho State Bar v. Warrick, 137 Idaho 86, 90, 44 P.3d 1141, 1145 (2002)). “We review the Committee’s decision to ‘determine if it is clearly erroneous or arbitrary and capricious.’ ” Id. (quoting Warrick, 137 Idaho at 90, 44 P.3d at 1145; and then citing I.B.C.R. 509(d)(9)).

“Professional misconduct must be proven by clear and convincing evidence.” Id. (citing Wilhelm v. Idaho State Bar, 140 Idaho 30, 34, 89 P.3d 870, 874 (2004)). The burden of proof is on the attorney petitioner “to show the evidence does not support the Committee’s findings.” Idaho State Bar v. Frazier, 136 Idaho 22, 25, 28 P.3d 363, 366 (2001). If the evidence is substantial and competent, yet conflicting, it may still support a trial court’s findings of fact provided that those findings are not clearly erroneous. Weitz v. Green, 148 Idaho 851, 857, 230 P.3d 743, 749 (2010). “Whether a party presented sufficient evidence to meet the clear and convincing standard is a finding of fact that this Court will uphold if substantial and competent evidence supports it.” Snider v. Arnold, 153 Idaho 641, 644, 289 P.3d 43, 46 (2012).

“In reviewing the Committee’s sanction recommendation, this Court considers: (1) the

nature of the violations; (2) aggravating and mitigating circumstances; (3) the need to protect the public, the courts, and the legal profession; and (4) the moral fitness of the lawyer.” Oleson, 175 Idaho at 549, 568 P.3d at 91 (first citing Idaho State Bar v. Souza, 142 Idaho 502, 506, 129 P.3d 1251, 1255 (2006); and then citing Idaho State Bar v. Clark, 153 Idaho 349, 359–60, 283 P.3d 96, 106–07 (2012)). “The ultimate responsibility for assessing the facts and determining the sanction to be imposed rests with this Court.” Id. (citing Clark, 153 Idaho at 355, 283 P.3d at 102).

III. ANALYSIS

A. The Committee did not err by applying issue preclusion to the federal district court’s

findings of fact.

Hepworth argues that the Committee’s decision to apply issue preclusion and adopt the federal district court’s findings of fact was clearly erroneous. He distinguishes a federal district court’s power to impose litigation sanctions from the ISB’s power to impose professional

disciplinary sanctions. He cites a case from the Arizona Supreme Court holding that, “under [Arizona’s] rules, issue preclusion is not applicable in attorney disciplinary proceedings; only criminal convictions and disciplinary orders from other jurisdictions may be given preclusive effect.” Hancock v. O’Neil, 515 P.3d 695, 701 (Ariz. 2022). The genesis of that appeal was a federal district court case in which an attorney was sanctioned due to discovery fraud. Id. at 697. Hepworth asserts that “[t]his case is no different.”

In response, the ISB points to this Court’s analysis in Ticor Title Co. v. Stanion, 144 Idaho 119, 124, 157 P.3d 613, 618 (2007), for the application of issue preclusion, which the Committee applied in its Order on Motions for Partial Summary Judgment on September 30, 2025. The Committee noted that issue preclusion “has been routinely applied in disciplinary proceedings in the majority of other jurisdictions.” Caselaw from other jurisdictions supports this view. See, e.g., In re Caranchini, 956 S.W.2d 910, 912 (Mo. 1997) (en banc); In re Jordan, 518 P.3d 1203, 1236– 37 (Kan. 2022). The Committee then discussed how each of the five factors identified in Ticor Title applied here. Those factors are:

(1) the party against whom the earlier decision was asserted had a full and fair

opportunity to litigate the issue decided in the earlier case; (2) the issue decided in

the prior litigation was identical to the issue presented in the present action; (3) the

issue sought to be precluded was actually decided in the prior litigation; (4) there

was a final judgment on the merits in the prior litigation; and (5) the party against

whom the issue is asserted was a party or in privity with a party to the litigation.

Ticor Title Co., 144 Idaho at 124, 157 P.3d at 618. In evaluating Hepworth’s arguments opposing summary judgment, the Committee explained, as noted above, that he “appear[ed] to conflate issue preclusion[,] which deals with facts[,] and claim preclusion[,] which deals with the outcome of claims.” The Committee reiterated its adoption of this analysis in the Findings of Fact, Conclusions of Law, and Recommendation. On appeal, Hepworth does not address the Committee’s analysis applying Ticor Title in its order on partial summary judgment, which found issue preclusion applied to his proceedings.

The Idaho Bar Commission Rules do not specifically address “issue preclusion,” but they grant broad powers to the Committee under Rule 525 (“Additional Rules of Procedure”). Yet, these powers are subject to a high standard of proof: “[a]ny issue of fact shall be proved by clear and convincing evidence.” I.B.C.R. 525(e). Important to this case, Rule 525(m) (“Judicial Notice”) states:

A Hearing Committee may take judicial notice of facts entitled to such notice;

provided, however that the facts judicially noticed shall be specified by the Hearing

Committee either at the time of the hearing or at the time of declaring its finding of

facts, whichever it deems appropriate.

I.B.C.R. 525(m). While “judicial notice of facts entitled to such notice” is not defined, this rule shows that the Committee’s taking of judicial notice and accepting the federal district court’s order was not facially improper, as Hepworth argues. Further, we held in 2022 that issue preclusion barred an attorney from challenging some factual bases underlying a complaint from the ISB in a disciplinary matter. Idaho State Bar v. Smith, 170 Idaho 534, 544, 513 P.3d 1154, 1164 (2022). In short, this Court’s precedents contradict Hepworth’s contention that issue preclusion cannot apply in attorney disciplinary proceedings.

Hepworth contends that “the clear distinguishing factor of Smith . . . is that Smith was actually a party in two of the three cases underlying disciplinary action,” whereas Hepworth was not a party to the federal district court action at issue here. He also points out that Smith had an evidentiary hearing even though issue preclusion applied. This argument is unavailing because whether Hepworth was the real party in the Hilliard case did not affect his interest in defending Hilliard or himself in the Rule 59 and Rule 60 motion proceedings brought by TFCSO at the federal district court. His financial interests were aligned with Hilliard on the merits because he wanted to preserve the jury verdict and judgment in favor of his client. His interests were also aligned with Hilliard because defeating TFCSO’s motion for a new trial would require the federal district court to find he did not put forward misleading or false evidence to the jury or did not fail to correct false testimony. It is also telling that the federal district court imposed an award of attorney fees against Hepworth personally, which shows that it was his conduct at issue, not his client’s. Lastly, an evidentiary hearing was necessary in Smith because issue preclusion did not apply to all the factual bases underlying the ISB’s complaint. Smith, 170 Idaho at 544, 513 P.3d at 1164. That is comparable to the Committee’s actions below, where it held an evidentiary hearing on Count 6 because it concerned Hepworth’s email to Bar Counsel. That conduct was not before the federal district court and the Committee did not apply issue preclusion to that issue.

Based on our recent affirmation of issue preclusion in Smith and Idaho Bar Commission Rule 525(m), we conclude that the Committee did not err in applying issue preclusion to the proceedings below. Like in Smith, “many of the facts . . . have been the subject of past litigation and appeals, all of which were decided against [Hepworth].” See Smith, 170 Idaho at 544, 513 P.3d

at 1164. Hepworth’s arguments before the federal district court, the Committee, and on appeal are the same, notwithstanding his differing recollection of the facts at times. The federal district court summarized his arguments: “[Hilliard]’s response maintains that: Sweet’s testimony was truthful and accurate; the comments made during closing argument did not misrepresent the compensation Sweet had received at that point in time; and, no deception by [Hepworth] occurred as evidenced by the post-trial disclosure of all payments made to Sweet.” In his summary judgment motion to the Committee, Hepworth argued that “Justine Sweet did not testify falsely” and that he did not know how much Sweet had been paid.1 The federal district court concluded that Hepworth “knowingly presented to the jury an inaccurate and incomplete portrayal of the compensation paid to and promised to be paid to Sweet for her testimony.” The Committee’s reliance on this conclusion comports with the guardrails of issue preclusion. Its analysis addressed each factor of issue preclusion and was supported by substantial and competent evidence: the trial record from the federal district court, the hearing transcript and evidence from the Rule 59 and Rule 60 hearing brought by TFCSO at the federal district court, and the federal district court’s order on the Rule 59 and Rule 60 motions.

Beyond his argument that issue preclusion is facially improper, Hepworth makes various arguments asserting that issue preclusion was improper because the factual determinations of the federal district court did not sufficiently align with the professional rules to determine whether any violations occurred. Most of these points address whether Sweet’s testimony of “$40” was truthful or material, and whether Hepworth “knew” Sweet had already been paid more than $40. Hepworth did not raise these arguments in his opening brief as it pertains to issue preclusion; however, these arguments appear to repackage his points against the Committee’s findings and conclusions and whether they were clearly erroneous. Because they address the same issues, we will evaluate them in the remainder of our analysis.

B. We affirm the Committee’s conclusion that Hepworth violated Idaho Rules of

Professional Conduct 3.3(a)(1), 3.3(a)(3), 4.1(a), 8.4(c), and 8.4(d).

Initially, we note that it can be confusing at times to apply two evidentiary standards in the same case that sound somewhat alike: “clear and convincing” and “substantial and competent.” It is important to recognize that, when we refer to these standards, we are applying distinct concepts.

Hepworth’s memorandum on summary judgment in the disciplinary proceedings did not address the materiality of Sweet’s testimony.

As used in this opinion, the “clear and convincing” standard refers to the quantum of proof the ISB had to present to establish a violation occurred, while the “substantial and competent” standard refers to the probative value and admissibility of the evidence the Committee relied upon in reaching its conclusions. Put simply, the former measures the sufficiency of the evidence while the latter determines whether it is credible and legally relevant proof that “a reasonable mind might accept as adequate to support a conclusion.” See Laundry v. Franciscan Health Care Ctr., 125 Idaho 279, 281, 869 P.2d 1374, 1376 (1994).

In appealing the findings of the Committee, it is Hepworth’s burden to show the

Committee’s findings are not supported by substantial and competent evidence. Idaho State Bar v. Frazier, 136 Idaho 22, 25, 28 P.3d 363, 366 (2001). “Whether a party presented sufficient evidence to meet the clear and convincing standard is a finding of fact that this Court will uphold if substantial and competent evidence supports it.” Snider v. Arnold, 153 Idaho 641, 644, 289 P.3d 43, 46 (2012). Hepworth identifies six issues on appeal under the overarching claim that the “Committee Committed Clear Error by Failing to Identify or Address the Individual Elements [of] Proof Required to Find Violations of the [Idaho Rules of Professional Conduct] set forth in Counts One – Five.” Hepworth argues that Sweet’s testimony was immaterial, yet it was truthful. He maintains that it was reasonable for Hepworth not to correct Sweet’s testimony, and that he did not know Sweet had been paid or would be paid more than $40.

1. The Committee did not err in concluding that Hepworth violated Rule 3.3(a)(1).

Idaho Rule of Professional Conduct 3.3(a)(1) states: “(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer[.]” I.R.P.C. 3.3(a)(1). Comment 2 to Rule 3.3 further explains that “the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.” I.R.P.C. 3.3 cmt. 2. Relevant to Hepworth’s arguments on appeal, comment 8 states that “[a] lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. . . . [T]he lawyer cannot ignore an obvious falsehood.” I.R.P.C. 3.3 cmt. 8.

Hepworth argues that Rule 3.3(a)(1) cannot apply because Sweet’s trial testimony was true and the rule requires proof of a false statement. He cites the federal district court’s statements acknowledging that, in isolation, Sweet’s testimony of “$40” could be truthful or that it was a plausible interpretation of Howland’s question asking if Sweet was compensated for her testimony

“today.” The federal district court stated at the hearing on the motions “I intend to give the benefit of the doubt to Ms. Sweet . . . . I don’t think she was misrepresenting anything at the time.” In its order, the court explained that:

The truth or falsity of Sweet’s testimony about her witness fee is not determinative

of the present motions. One interpretation of the record is that, when asked “[a]re

you being paid for your testimony today,” Sweet’s response of “$40” was truthful,

because she was entitled to an attendance fee of $40 for each day of her testimony.

28 U.S.C. § 1821(b).

(Alteration in original). Hepworth argues that the Committee’s statement in its order on partial summary judgment that deemed the veracity of Sweet’s testimony “not relevant” is clearly erroneous. Therefore, he maintains that he could not be found in violation of the applicable professional rules because the underlying statement at the tribunal was true.

It is important to note that in referencing the Committee’s “not relevant” statement, Hepworth omits the reasoning following the Committee’s statement with an ellipsis. The excluded portion of the Committee’s statement reads in full, “this argument is not relevant because the [c]ourt’s factual findings that [Hepworth] provided misleading and deceitful statements were not based on Sweet’s testimony.” (Emphasis added). The Committee also emphasized that compliance with Rule 3.3(a)(1) required that any statement Hepworth made about Sweet’s compensation could not “omit[] essential information.”

Based on the findings from the federal district court, which were appropriately considered by the Committee, we conclude that substantial and competent evidence supports the Committee’s conclusion that Hepworth violated Rule 3.3(a)(1) when he failed to correct a false statement of material fact he made to the jury during closing argument. The district court found that Hepworth “knowingly presented to the jury an inaccurate and incomplete portrayal of the compensation paid to and promised to be paid to Sweet for her testimony.” That is because he had “full knowledge that Sweet had been tendered more than $40 prior to trial, and . . . had promised and intended to pay Sweet an additional sum of money prior to trial.” (Emphasis omitted). Importantly, the earlier payment of $91.50 and Hepworth’s promise to pay Sweet a fee for her time testifying at trial occurred prior to his closing argument in the employment discrimination trial. The $500 payment Hepworth gave Sweet the day after trial also preceded receiving an invoice from Sweet. Thus, it can be inferred from the circumstances that Hepworth knew his statement that Sweet “showed up to court here for $40. She wasn’t -- wasn’t a high-paid hired gun” was false because she had already been paid more than $40 and he knew he had promised to pay her a larger fee. As he stated at the

hearing on the motion for a new trial at the federal court, “I met with [Sweet] a number of times [before trial]. I knew I owed her money.”

We also note that Hepworth’s reliance on the federal district court’s footnote that “[t]he truth or falsity of Sweet’s testimony about her witness fee is not determinative of the present motions” is misplaced. Rule 3.3(a)(1) concerns false statements made by the attorney and the attorney’s failure to correct the false statement. The findings of the federal district court support its reasonable inference that Hepworth knew that the statements he made about Sweet’s remuneration during closing argument were false. We agree with the federal district court that an injury to the integrity of the trial occurred because the jury was intentionally urged to believe something that was false.

Hepworth also argues that the Committee erred because “the undisputed record” shows

Sweet was credible and her testimony could reasonably be interpreted as truthful. He also cites the comments to Rule 3.3, emphasizing that a lawyer should “resolve doubts” in favor of the client. Comment 8 states:

The prohibition against offering false evidence only applies if the lawyer knows

that the evidence is false. A lawyer’s reasonable belief that evidence is false does

not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence

is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus,

although a lawyer should resolve doubts about the veracity of testimony or other

evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

Rule 3.3 cmt. 8 (emphasis added).

Hepworth does not address the italicized portion of the comment to Rule 3.3 quoted above that explains that a lawyer’s knowledge that he was relying on false evidence can be inferred from the circumstances. Hepworth’s claim that he subjectively believed Sweet’s testimony was true is not reasonable. As the federal district court noted: (1) his firm had already issued a check for $91.50 before trial; (2) Hepworth met with Sweet before trial and “promised” to pay her a reasonable fee for her time; (3) Hepworth emphasized Sweet’s testimony in his closing argument by specifically noting she was only paid “$40” and contrasted that to the other higher-paid witnesses; and (4) he issued a check to Sweet for $500 immediately after trial. The Committee found this to be clear and convincing evidence that Hepworth violated Rule 3.3(a)(1). Considering these undisputed facts, we conclude that the Committee’s conclusion that Hepworth violated Rule 3.3(a)(1) was based on substantial and competent evidence.

2. The Committee did not err in concluding that Hepworth violated Rule 3.3(a)(3).

While Rule 3.3(a)(1), discussed above, refers to false statements of material fact, Rule 3.3(a)(3) applies to the offering of false evidence:

A lawyer shall not knowingly:

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s

client, or a witness called by the lawyer, has offered material evidence and the

lawyer comes to know of its falsity, the lawyer shall take reasonable remedial

measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse

to offer evidence, other than the testimony of a defendant in a criminal matter, that

the lawyer reasonably believes is false.

I.R.P.C. 3.3(a)(3) (emphasis added). Hepworth argues that Sweet’s testimony regarding the “$40” payment was not material as “a matter of undisputed fact and law” because it was impeachment evidence. Regardless, we explained the measuring stick for materiality in another appeal from a disciplinary matter:

[T]he test of materiality is whether (1) a “reasonable man would attach importance”

to the statement, or (2) “the maker of the representation knows or has reason to

know that its recipient” would regard the statement as important. Under neither

option is any weight given to the state of mind of the recipient of the questioned

statement—only the state of mind of the maker of the statement or of a “reasonable

man” placed in the position of the recipient is relevant.

Idaho State Bar v. Dodge (In re Dodge), 141 Idaho 215, 220, 108 P.3d 362, 367 (2005) (emphasis added) (quoting Def. A v. Idaho State Bar, 134 Idaho 338, 343, 2 P.3d 147, 152 (2000)).

Hepworth cites State v. Ellington, 157 Idaho 480, 482, 337 P.3d 639, 641 (2014), a criminal appeal where a defendant convicted of second-degree murder moved for a new trial based on the discovery of statements “in a textbook authored by the State’s accident reconstruction expert that . . . directly conflicted with the expert’s trial testimony.” This Court explained that the district court did not abuse its discretion when it denied Ellington’s motion for a new trial on the basis that this was not material evidence. Id. at 485–86, 337 P.3d at 644–45. Importantly, Ellington does not state that impeachment evidence cannot be material; rather, it holds that “[e]vidence is material when it has some logical connection with the consequential facts.” Id. at 486, 337 P.3d at 645 (citation modified). The comparison of the impeachment evidence below to the impeachment evidence in Ellington is inapposite because that evidence was not addressed to the calculations the expert witness performed for the trial and it “would not provide any evidence for or against any proposition advanced by either party.” Id.

Here, the record demonstrates that Sweet’s testimony was vital to the jury’s determination of employment discrimination. As the federal district court found in its order, Sweet’s testimony “was central to the liability finding.” Hepworth’s firm “described Sweet as a ‘critical’ witness” and her testimony was used to rebut the defendant’s arguments addressing Hilliard’s truthfulness and his fitness to return to work. The connections between Sweet’s testimony (addressing potential drug addiction), the arguments presented by both parties at trial, and the subject matter of the case (fitness to return to work and employment discrimination) support the federal district court’s conclusion that the testimony was material because a “reasonable man would attach importance” to the statement. Additionally, the fact that Hepworth chose to highlight Sweet’s testimony to the jury during his closing argument is telling; his emphasis on this testimony shows that he knew that the jury would “regard the statement as important.” See Dodge, 141 Idaho at 220–21, 108 P.3d at 367–68.

In attacking the materiality of the testimony, Hepworth claims that “[n]o amount of money could change [Sweet’s] testimony” because she was simply describing her administration of the GAIN-1 Assessment and “the objective computer-generated conclusions.” While that could be true, it was a matter for the jury to decide. Dinneen v. Finch, 100 Idaho 620, 626, 603 P.2d 575, 581 (1979) (“[T]he general rule is that testimony is for the jury to weigh, to consider or disregard[.]”). Moreover, it seems reasonable to conclude that Sweet’s explanation and interpretation of the “objective” results, no matter how minimal, makes the bias of her testimony relevant to the jury when weighing the credibility of her explanation of the GAIN-1 Assessment.

We acknowledge that Hepworth has cited several cases describing impeachment evidence

as an insufficient basis for a new trial under the Federal Rules of Civil Procedure and Federal Rules of Criminal Procedure. Among those cases is a Ninth Circuit case, United States v. Davis, 960 F.2d 820 (9th Cir. 1992), which fully supports the Committee’s view:

[I]mpeachment evidence, according to the government, is never sufficient to

warrant a new trial under [Federal Rule of Criminal Procedure] 33.

There is language in a number of our decisions which, at first blush, lends

support to this argument. We have held that when the effect of newly-discovered

evidence is merely to impeach a witness, a new trial is unwarranted. Here, however,

the appellants argue the newly-discovered evidence would do more than merely

impeach [a witness]; it would render his testimony useless. . . .

This reasoning is persuasive . . . if the witness’ testimony were

uncorroborated and provided the only evidence of an essential element of the

government’s case, the impeachment evidence would be “material[.]”

Id. (emphasis omitted) (internal citations omitted). See also United States v. Taglia, 922 F.2d 413, 415 (7th Cir. 1991).

Notwithstanding Hepworth’s citation of caselaw disfavoring impeachment evidence as

material, Davis shows that some impeachment evidence can be material. With that qualification and the test from Dodge in mind, the federal district court’s extensive explanation surrounding the importance of Sweet’s testimony to the parties and causes of action shows the Committee’s finding of materiality is supported by the record. Hepworth’s conduct, as described by the federal district court, weakens his stance on appeal because he cited Sweet’s testimony in his closing argument, using it to bolster Sweet’s credibility by demonstrating her lack of a financial motive, as opposed to the defendant’s “high-paid hired gun[s].”

Hepworth argues that the ISB “concede[d] that Sweet’s answer was not material” based on its admissions, but that characterization goes too far. A review of the ISB’s responses to Hepworth’s requests for admission demonstrates that the ISB did not concede a lack of materiality:

REQUEST FOR ADMISSION NO. 45: Please admit that Ms. Sweet’s

acceptance of the check issued October 26, 2021 on behalf of Plaintiff Brent

Hilliard could not have influenced the substance of the GAIN-I Assessment Sweet

performed upon Hilliard in August 2017.

RESPONSE NO. 45: Admit.

REQUEST FOR ADMISSION NO. 127: Please admit the $500 check

remitted to Sweet after trial could not have influenced Ms. Sweet’s administration

of the GAIN-I assessment upon Brent Hilliard in August 2017.

RESPONSE NO. 127: Admit.

The ISB conceded that Sweet’s compensation could not have influenced or altered the results of the GAIN-1 Assessment because she conducted the assessment in 2017, while the payments were made in 2021. But that concession does not dictate that the compensation paid to Sweet could not influence her later testimony about the assessment—i.e., the tone, emphasis, description, or characterization of the results. Further, whether the amount of Sweet’s compensation suggested she was a more credible witness was the province of the jury, as the federal district court stated.

Finally, Hepworth emphasizes that, due to Sweet’s status as a fact witness who is also an “expert[] with personal knowledge of facts,” she is exempt from the disclosure requirements under

Federal Rule of Civil Procedure 26(a)(2)(C). This means that payments to her could not affect the test result or her testimony. As with earlier points in his brief, Hepworth does not explain what limits, if any, apply to his proposed theory that makes Sweet’s testimony immaterial. Just because she was not required to make a formal disclosure of compensation does not mean Hepworth had no obligation to correct her testimony or refrain from presenting it in a misleading manner in his closing argument.

Returning to the text of Idaho Rule of Professional Conduct 3.3(a)(3), it is a violation of the rule when a “witness called by the lawyer[] has offered material evidence and the lawyer comes to know of its falsity” and that lawyer fails to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” I.R.P.C. 3.3(a)(3). Even if Hepworth did not know of the falsity of Sweet’s testimony at the time it was offered, he failed to take “remedial measures” when it was discovered as required by Rule 3.3(a)(3). That is because he issued a check to Sweet the day after the trial for $500 and, at the very least, he should have notified the tribunal after issuing the check. It is reasonable to “infer[] from the circumstances” that Hepworth knew Sweet’s statement of “$40” was false. See Rule 3.3 cmt. 8.

Although not consequential to our analysis, we also note that Hepworth’s characterization of Sweet’s testimony as solely impeachment evidence is somewhat disingenuous. His use of Sweet’s statement during closing argument to the jury served the dual purpose of bolstering his witness’s credibility while simultaneously impeaching the credibility of the defense’s witnesses by contrasting Sweet’s compensation with the “high-paid hired gun[s]” who testified for the other side. Hepworth’s marshalling of the testimony in the manner he did undercuts his argument that Sweet’s statement was mere impeachment evidence insufficient to be “material.”

We hold that the Committee’s conclusion that Hepworth violated Rule 3.3(a)(3) is

supported by substantial and competent evidence. Sweet’s testimony was material and Hepworth knew at the time it was elicited that her answer created a false impression he was obligated to correct. Critically, he knew it was false when he repeated it to the jury in closing argument, yet at no point did he bring this to the attention of the court or opposing counsel.

3. The Committee did not err in concluding that Hepworth violated Rule 4.1(a).

Rule 4.1(a) states, “[i]n the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person[.]” I.R.P.C. 4.1(a). As discussed previously, clear and convincing evidence shows Hepworth knew his statement to the jury

emphasizing Sweet’s testimony of “$40” and contrasting her statement with the defendant’s “highpaid hired gun[s]” was false. The federal district court’s order also found that the statement was material because it was “prejudicial” to the defense and amounted to “plain error resulting in a fundamental miscarriage of justice.” There is no dispute that the jury, the judge, and opposing counsel were “third person[s].” Thus, we hold that substantial and competent evidence supports the Committee’s conclusion that Hepworth violated Rule 4.1(a) during his closing argument.

Hepworth argues that the Committee erred in finding he violated Rule 4.1(a) because the ISB conceded that the facts “did not conclusively prove that Hepworth knew how much Sweet had been paid before trial” and that the “decision to pay her did not occur until after trial.” His claim that the ISB “conceded” it (at summary judgment) could not prove Hepworth knew how much his firm paid Sweet misses the point for two reasons. First, his argument about the ISB omits a key distinction; while the ISB conceded it could not prove Hepworth knew exactly how much Sweet had been paid, it argued that it was clear Hepworth knew Sweet had received more than $40. As comment 1 to Rule 4.1 states, “A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows to be false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.” I.R.P.C. 4.1 cmt. 1. The Committee’s determination that Hepworth knew Sweet was compensated more than $40 at the time she testified and during closing argument is reasonable and aligns with the commentary’s discussion of misrepresentations.

Second, if we accepted Hepworth’s argument that the timing of the $500 payment to Sweet rendered Sweet’s testimony and his statement at closing argument truthful, the Professional Conduct Rules would be ineffectual. An exchange with Hepworth’s counsel during oral argument before this Court illustrates this point. As a hypothetical, he was asked whether the testimony would be false if an attorney had promised to pay a witness a “$100,000 fee” after trial, yet the witness truthfully testified that she had been paid only $40 at the time of trial. In other words, is it ethical to allow an incorrect inference about the totality of a fee stand uncorrected, and then highlight that same inference in closing argument when the attorney knows he will later pay the witness more than her testimony suggested to the jury? Counsel acknowledged that this scenario would “trouble” him.

We agree that an attorney cannot be expected to know every minute detail of the actions his law firm’s employees take in support of a client, but the context matters. The record indicates

at least one other attorney at Hepworth’s firm worked on the Hilliard case. Hepworth’s testimony establishes that he was personally involved with witness selection, preparing witnesses for testimony, and discussing witnesses with opposing counsel during discovery and in preparation for trial. As one example, Hepworth testified at the federal district court that he personally communicated with expert witnesses to determine fees, request invoices, and schedule depositions. There are also text messages between Sweet and Hepworth discussing scheduling, testimony, and Hilliard’s case. Hepworth’s argument that he did not know Sweet had been paid $91.50 is not reasonable and was found to be false by the federal court and, even if true, still does not overcome the other clear and convincing evidence showing he violated Rule 4.1(a).

4. The Committee did not err in concluding that Hepworth violated Rule 8.4(c).

Rule 8.4(c) states, “[i]t is professional misconduct for a lawyer to: . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” I.R.P.C. 8.4(c) (emphasis added). Hepworth reiterates his prior arguments to show that the Committee erred in finding he violated Rule 8.4(c): Sweet’s testimony was true; her testimony was not material; he did not know she had already been paid $91.50; and he had no duty to correct her testimony. He also claims the Committee did not “address[ ] the intent necessary” to find he violated the rule.

The Committee cited the federal district court’s order, explaining that the order “found that [Hepworth] knowingly misrepresented the full extent of the compensation paid and promised to be paid to Sweet.” The federal district court concluded that “[t]he lack of transparency by [Hepworth] withheld the full extent of the compensation of Sweet from opposing counsel, the [c]ourt, and – most importantly – the jury.” Likewise, we conclude that the Committee properly found, based on the substantial and competent evidence in the record, that Hepworth’s failure to correct Sweet’s testimony, his failure to correct his own statements during his closing argument, and the reasonable inference of his knowledge of the falsity of both statements based on the facts, demonstrated that he engaged in misrepresentation in violation of Rule 8.4(c).

5. The Committee did not err in concluding that Hepworth violated Rule 8.4(d).

Rule 8.4(d) states that “[i]t is professional misconduct for a lawyer to: . . . engage in conduct that is prejudicial to the administration of justice[.]” I.R.P.C. 8.4(d). The Committee concluded that Hepworth engaged in conduct prejudicial to the administration of justice by (1) failing to correct Sweet’s testimony and then emphasizing it during closing argument “despite knowing that she had already been paid and would be paid more” than $40 and (2) compromising the integrity

of the judicial process, resulting in the vacatur of a jury award to his client. Hepworth again argues that Sweet’s testimony was not false, that he did not know how much Sweet had been paid at the time of her testimony and his closing argument, and that her testimony was not “evidence” that he presented.

We conclude that the findings of the federal district court were based on substantial and competent evidence and they provided clear and convincing evidence that Hepworth engaged in conduct prejudicial to the administration of justice. We emphasize the conclusions of the district court, which were based on (1) Hepworth’s misrepresentation of Sweet’s testimony by failing to correct it and (2) his emphasizing that testimony during his closing argument.

Initially, the federal district court explained why Hepworth’s conduct was prejudicial to opposing counsel:

It is wholly unreasonable for [Hepworth] to argue defense counsel should

have inquired further during cross examination, given the defense knew only that

Sweet was designated as a non-retained expert who testified that she had been paid

$40 for her appearance, consistent with the daily statutory witness fee required to

be tendered with a subpoena. The examination of Sweet was important to both

parties. The [c]ourt’s own recollection is that the cross examination of Sweet was

notably tense. Had the defense known Sweet had been promised payment of a fee

in addition to the statutory witness fee, defense counsel may have had a basis for

further cross examination challenging Sweet’s potential bias and credibility.

Withholding from the defense the complete measure of the compensation to be paid

to Sweet was prejudicial and unfairly impacted defense counsels’ ability [to] put on

their case.

The parties do not dispute the court’s characterization that the cross-examination of Sweet was a “tense” and “important” part of the trial. See Gilbert v. Radnovich, 171 Idaho 566, 573, 524 P.3d 397, 404 (2023) (“Trial judges are imminently [sic] more familiar with the issues and litigants than are those of us sitting in an appellate capacity.” (citation omitted)).

The federal district court next described how Hepworth’s conduct had infringed on the jury’s role:

[Hepworth] invaded the province of the jury. In our system of justice, the jury is

charged with making credibility determinations about the evidence and testimony.

Here, it was the jury’s exclusive role to weigh the credibility of Sweet and every

other witness who testified. . . . [Hepworth] withheld information from the jury

known only to him . . . .

Under these circumstances, the [c]ourt finds the integrity of the judicial

process itself was compromised and a serious miscarriage of justice occurred.

The court then explained that “[t]he misconduct associated with the compensation of Sweet extended beyond statements made in closing argument and compromised the entire judicial process itself by interfering with the jury’s central role and preventing the defense from fairly putting on its case.” (Emphasis added).

Beyond the compromised jury trial, Hepworth’s conduct after the federal district court granted Howland’s motion for a new trial imposed additional hardship on the federal courts. The Rule 60(b) motion for relief from the order granting a new trial he filed was frivolous and untimely under Federal Rule of Civil Procedure 60(c).2 He also sought relief under Rule 60(b) from the federal court’s stipulated order dismissing the case with prejudice entered on February 27, 2023. The federal district court found his argument that “new evidence” warranted relief from the dismissal was unfounded and that Hepworth had access to the same “evidence” almost two years prior to the court’s order.

Hepworth also argued under Rule 60(b)(3) that Howland committed fraud on the court.

The federal district court found “[t]here simply is no support for [Hepworth’s] claim that either the order of dismissal or the new trial order were obtained through fraud . . . .” On appeal, the Ninth Circuit affirmed the federal district court’s rulings on the Rule 60(b) motion, the assessment of attorney fees against Hepworth personally as a sanction under 28 U.S.C. § 1927, and the findings that Hepworth unreasonably and vexatiously multiplied the proceedings in the matter and that he acted recklessly in filing the frivolous Rule 60(b) motion. We agree with that assessment. By deciding to “double down” on his earlier lack of candor by filing unfounded motions months after a stipulated dismissal with prejudice and bringing a false accusation of fraud against opposing counsel without a modicum of evidence, Hepworth demonstrated that he learned nothing from his earlier mistakes. Instead, he lashed out vindictively against opposing counsel and, in the process, wasted everyone’s time and resources. When viewed in concert with Hepworth’s earlier

misconduct during the trial, this conduct squarely falls under Idaho Rule of Professional Conduct 8.4(d)’s contemplation of “conduct that is prejudicial to the administration of justice.”

For these reasons, we affirm the Committee’s conclusion that Hepworth violated Rule

8.4(d) based on substantial and competent evidence. Considering his repeated misrepresentations

Federal Rule of Civil Procedure 60(c) requires that a Rule 60(b) motion be filed no more than one year after the entry of the judgment or order from which relief is sought. Hepworth sought relief from the federal district court’s order granting Howland’s motion for a new trial on September 14, 2022. The Rule 60(b) motion was filed on September 28, 2023. Thus, as to the order granting a new trial, Hepworth’s motion was not timely.

and failures to correct testimony, the effect of those actions on the integrity of the trial, and his decision to file vexatious and baseless motions after the stipulated dismissal, his actions caused significant harm to the administration of justice.

C. We affirm the Committee’s finding that Hepworth violated Rule 8.1(a) when he made

a false statement to the ISB.

Count 6 alleged that Hepworth violated Rule 8.1(a) when he self-reported the misconduct via email to the ISB after the federal district court granted Howland’s motion for a new trial. Rule 8.1(a) states, “[a]n applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact[.]” I.R.P.C. 8.1(a). The Committee did not apply issue preclusion to the facts the ISB alleged concerning Count 6 of the amended complaint because this allegation was not addressed in the underlying civil trial. The Committee held an evidentiary hearing on this allegation and found that Hepworth’s email statements to the ISB “directly contradict[ed] the . . . prior statements to the [federal district] [c]ourt and the [c]ourt’s factual findings in the civil case.” It found his testimony at the hearing was not credible and concluded that clear and convincing evidence established that he made a false statement to the ISB in connection with a disciplinary matter.

We conclude that substantial and competent evidence supports this conclusion. Hepworth made statements in his email to the ISB that conflicted with his affidavit filed with the federal district court. As recounted earlier in this opinion, Hepworth stated in the email to the ISB that he had “no specific memory of a discussion about paying [Sweet] for the time she spent with me preparing for trial and testifying” and it was “possible I forgot to tell her we would pay her for her time.” In his affidavit, he stated that he “met with Justine Sweet on two occasions to prepare her for testimony” and “told her that . . . [he] expected to pay her a reasonable fee.” He also stated that he “believe[d] [Sweet] had likely forgotten I promised to pay a reasonable fee for her time as we had the other expert fact witnesses.” (Emphasis added). Hepworth filed the affidavit with the federal district court on January 24, 2022, and sent the email to the ISB on September 29, 2022.

Hepworth’s email to the ISB also conflicts with his statements at the hearing before the federal district court on the motion for a new trial on August 29, 2022. Hepworth explained his general practice of compensating expert witnesses for their time and requesting invoices from them. He then discussed Sweet specifically, and stated, “we had forgotten that I told her we would pay her for the time and I’m kind of weird this way, Your Honor. When I tell somebody that I’m

going to pay them for their time, I mean it.” He then said he “met with her a number of times. I knew I owed her money.” Hepworth offers no reasonable explanation for how he could tell a court that he informed his witness he would pay her for her time in addition to the statutory appearance fee, yet one month later tell the ISB in writing that he “had no specific memory of a discussion about paying [Sweet] for the time she spent with me preparing for trial and testifying.”

For purposes of Rule 8.1(a), Hepworth was making this statement to the ISB as “a lawyer . . . in connection with a disciplinary matter.” Rule 8.1(a). He has been a licensed attorney for approximately 40 years. Yet, the clear and convincing evidence in the record contains proof that he misrepresented the record to the Committee. This conduct supports the Committee’s conclusion that Hepworth violated Rule 8.1(a) by making false statements of material fact to the ISB.

D. The sanction recommended by the Committee was inadequate based on the

aggravating factors, including the severity and persistence of Hepworth’s unethical

actions throughout the course of the federal matter.

After concluding by clear and convincing evidence that Hepworth had violated six different rules of professional conduct, the Committee recommended that he serve a one-year withheld suspension to run concurrently with a one-year term of probation. The ISB appeals the Committee’s recommended sanction and argues that the aggravating factors warranted a more significant sanction. They claim Hepworth failed to take responsibility for his actions, blamed everyone else, and demonstrated a pattern of misconduct by making false statements in his email to the ISB. Hepworth argues in the alternative that if this Court upholds the Committee’s conclusions as to his ethical violations, the Committee’s recommended sanction was sufficient and supported by substantial and competent evidence.

The Committee’s recommended one-year withheld suspension and a simultaneous oneyear term of probation contained only one condition of probation: that Hepworth comply with the Professional Conduct Rules. Of course, this condition already applies to every attorney licensed to practice law in Idaho. In support of the recommendation, the Committee found the following mitigating factors in Hepworth’s favor: he had not been the subject of any prior disciplinary proceedings; he self-reported the matter before learning that a Bar complaint had been filed against him; his conduct posed no threat to the public; his focus on the client’s best interests during the trial and after; and his good professional reputation in the community. The aggravating factors the Committee identified included the following: his multiple violations (failure to correct testimony and then amplifying that testimony at closing argument); his substantial experience in the practice

of law (approximately 40 years); his refusal to accept accountability and “blam[ing] everybody but himself”; and his “engag[ing] in bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the Committee’s protective order in response to Howland’s deposition.”

“In reviewing the recommendations of the Committee with regard to sanctions, this Court determines if the sanctions are clearly erroneous or arbitrary and capricious.” Idaho State Bar v. Clark, 153 Idaho 349, 359–60, 283 P.3d 96, 106–07 (2012). Importantly, “this Court has discretion over the length of any suspension or other sanction imposed.” Idaho State Bar v. Smith, 170 Idaho 534, 553, 513 P.3d 1154, 1173 (2022). “Although [this] Court places great weight on the findings and recommendations of the hearing committee regarding sanctions, it is ultimately the responsibility of this Court to determine the sanctions available to the ISB.” Idaho State Bar v. Oleson, 175 Idaho 541, 561, 568 P.3d 83, 103 (2025) (internal quotation marks omitted) (citation omitted). The American Bar Association (“ABA”) standards for the implementation of sanctions on attorneys who violate the Professional Conduct Rules provide a useful reference. Id. at 562, 568 P.3d at 104 (citing Idaho State Bar v. Pangburn (In re Pangburn), 154 Idaho 233, 237, 296 P.3d 1080, 1084 (2013)).

We have previously observed that “[a]ttorneys are human beings who make mistakes; it is part of the profession. In some cases, it is what an attorney does after a mistake that defines him or her, ethically.” Clark, 153 Idaho at 357, 283 P.3d at 104. As the political adage goes, “sometimes the cover-up is worse than the crime.” Here, Hepworth’s actions after the discovery of his misrepresentations in federal court are deeply concerning. We will review these actions under the framework provided for aggravating factors in the ABA Standards for Imposing Lawyer Sanctions (1991, am. 1992).

1. Bad faith Obstruction

ABA Standard 9.22 provides helpful insight in reviewing Hepworth’s conduct. This

standard addresses “bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with the rules or orders of the disciplinary agency.” The Committee found that Hepworth failed to comply with a protective order granted to Howland when he deposed her as part of the disciplinary proceedings. In the order granting the protective order, the Committee explained that Hepworth sought irrelevant information (Howland’s compensation of other witnesses) and appeared to want to discredit Howland by establishing that she violated the Federal Rules of Civil

Procedure and the Idaho Rules of Civil Procedure. In short, it limited the production of documents to information regarding Sweet and limited the scope of questioning to statements made in Howland’s affidavits from the Hilliard case and her knowledge of Sweet’s compensation. Before the deposition, Hepworth requested approximately 24 exhibits that related to payments regarding other experts (not Sweet). The Committee found that Hepworth “willfully violated the protective order during the deposition by exceeding the scope of questioning.” It explained that the deposition transcript revealed a “primary motivation . . . to bully Howland into accepting [Hepworth’s] view of the facts rather than to seek relevant information to defend himself in this proceeding.” It is not as if Hepworth was blindsided by the Committee’s finding given the explicit limitations provided in the protective order.

Our review of the deposition transcript, and Hepworth’s email correspondence with

Howland’s counsel prior to the deposition, lead us to agree with the Committee’s assessment. Hepworth repeatedly explained his legal objections to the scope of the protective order and the Committee Chair’s decision, but good-faith disagreement did not give him license to violate the order throughout the proceeding. His later attempts to misuse this evidence in a Rule 60 motion for relief from the judgment in the federal district court were found to be vexatious and unfounded.

2. Years of Practice

Under ABA Standard 9.22(i), “substantial experience in the practice of law,” Hepworth’s conduct must be seen as more concerning considering his approximately 40 years of practice in the law. He is not a novice; rather, he has considerable experience in the practice of law as a trial attorney. This renders his actions surrounding the false statements and misrepresentations to the federal district court even more serious because he certainly knew better.

3. Multiple Offenses

Likewise, the factor in ABA Standard 9.22(d) for “multiple offenses” also plainly applies here. Because Hepworth violated six of the Professional Conduct Rules in multiple ways over an extended period, this cannot be excused as a momentary lack of judgment or written off as a onetime outlier.

4. Pattern of Misconduct

ABA Standard 9.22(c) addresses “a pattern of misconduct.” While some of Hepworth’s

actions may apply to multiple aggravating factors identified in Standard 9.2 (e.g., refusal to acknowledge wrongful nature of conduct or dishonest or selfish motive), what is most concerning

to this Court are Hepworth’s consistent decisions to prolong the legal process and deny responsibility for his actions at the expense of the legal system and opposing counsel. The federal district court’s summary of the confluence between the ISB proceedings and the actions at the federal district court is provided in bullets below:

 May 31, 2023: ISB files amended complaint against Hepworth.

 Hepworth subpoenas Pamela Howland, defendant’s counsel, for a deposition on the ISB

matter.

 The Committee grants Howland’s motion to quash subpoena in part and issues a protective

order regarding the permitted scope of questioning Howland.

 August 16, 2023: Howland’s counsel files a motion for fees and costs in connection to

filing the motion to quash.

 August 25, 2023: Hepworth personally takes Howland’s deposition.

 September 11, 2023: Howland’s counsel files a motion seeking sanctions against Hepworth

for violating the protective order.

 October 6, 2023: Howland’s counsel files a motion for another protective order, seeking to

prevent Hepworth from disclosing the letter she sent to the ISB in 2022 and her deposition

testimony outside of the ISB matter. The Committee imposed sanctions and granted the

protective order on November 7, 2023.

 In response to the second protective order, Howland files a motion to strike filings from

the ISB matter from the record in the federal district court case on November 9, 2023. As explained earlier in this opinion, the federal district court found Hepworth’s motion to set aside the judgment (the earlier dismissal) was not timely under the rules because it was filed more than one year after the judgment. As to Hepworth’s other claims in his motion, it concluded there was no evidence warranting a new trial and that the earlier order granting a new trial was not obtained through alleged fraud by Howland. These findings provide clear and convincing evidence that Hepworth filed an untimely and baseless motion to set aside or revisit an earlier judgment. This motion relied exclusively on unsubstantiated accusations of fraud and excerpts from a deposition taken during the disciplinary proceedings wherein Hepworth violated the Committee’s protective order. The federal district court summarized its conclusions:

[Hepworth] waited to explore the issue with Ms. Howland [(her lack of

compensation to Justine Sweet)] until after a settlement agreement was reached,

after his client began receiving payments pursuant to the agreement, and after he

learned that Ms. Howland’s letter initiated an apparent investigation and eventually

led to formal charges by the ISB. Such suspect timing cannot be ignored.

(Footnote omitted). The federal district court then assessed the award of attorney fees against Hepworth personally. Hepworth filed an appeal of the federal district court’s ruling on Hilliard’s Rule 60(b) motion with the Ninth Circuit Court of Appeals, which affirmed the district court’s ruling.

5. Other Deceptive Practices

Among the aggravating factors identified in ABA Standard 9.22 is subsection (f), which concerns the “submission of false evidence, false statements, or other deceptive practices.” ABA Standard 9.22(f) (emphasis added). This factor pertains directly to Hepworth’s conduct. First, after the misrepresentation was discovered, Hepworth gave differing accounts to opposing counsel and the federal district court about a purported “invoice” his firm received from Sweet after the jury trial. The federal district court concluded those explanations were “burdensome to reconcile and deeply troubling to the [c]ourt.” It described his explanations to opposing counsel as “vacillating and incomplete.” Eventually, Hepworth’s firm “submitted a supplemental bill of costs [to Howland] reducing the amount sought for [the] post-trial payment to Sweet by one-half.” These findings by the federal district court indicate “deceptive practices” in answering the court’s questions about events surrounding Sweet’s compensation and what was communicated between the parties. Of course, this is in addition to the underlying ethical lapses that are at the heart of this matter, as described throughout this opinion.

E. The sanction recommended by the Committee is vacated and replaced with one

reflecting the seriousness of Hepworth’s misconduct.

As the Committee noted, sanctions are determined on a case-by-case basis after reviewing the relevant factors. Idaho State Bar v. Souza, 142 Idaho 502, 505, 129 P.3d 1251, 1254 (2006). In addition, an appropriate sanction should consider the “violations as a whole.” Pangburn, 154 Idaho at 237, 296 P.3d at 1084. After carefully considering the findings of the Committee and the federal district court, we conclude that the totality of the clear and convincing evidence in the record supports a harsher sanction for Hepworth’s conduct. A one-year withheld suspension is simply not sufficient for the panoply of misconduct displayed here.

In considering a proper response to Hepworth’s conduct, “[t]here is some benefit in looking at what [this] Court has done in the past in assessing the appropriate sanction in [disciplinary]

case[s].” Idaho State Bar v. Frazier, 136 Idaho 22, 30, 28 P.3d 363, 371 (2001). In Clark, we imposed a three-year suspension on a lawyer who violated Rule 8.4(d) (conduct prejudicial to the administration of justice) by making false statements to the ISB that were inconsistent with the admitted exhibits and testimony. 153 Idaho at 360, 283 P.3d at 107 (Clark violated Rules 1.2, 1.3, 1.5(b), 1.16(d), and 8.4(d)). Likewise, in Souza, we imposed a three-year suspension (with 30 months withheld) on a lawyer who violated Rules 1.1, 1.3, 1.4, and 8.4(c) (professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation) and identified his long practice of law (30 years) as a significant aggravating factor. 142 Idaho at 506 & n.1, 508, 129 P.3d at 1255 & n.1, 1257. In Idaho State Bar v. Gantenbein, we imposed a 24-month suspension (with 18 months withheld) where the lawyer violated Rule 4.1(a) and Rule 8.4(c) by providing altered, false evidence to a tribunal. 133 Idaho 316, 318–19, 986 P.2d 339, 341–42 (1999). On the other hand, this Court imposed a 30-day suspension for an attorney who failed to correct the false testimony of a witness despite his knowledge of its falsity. Idaho State Bar v. Warrick (In re Warrick), 137 Idaho 86, 91–93, 44 P.3d 1141, 1146–48 (2002).

We acknowledge the mitigating factors the Committee found that weighed in favor of

Hepworth’s position when it considered an appropriate sanction. The applicable factors include ABA Standard 9.32(a) (absence of a prior disciplinary record) and 9.32(g) (character or reputation). We also recognize that Hepworth self-reported the matter, apparently unaware that Howland had already filed a grievance. However, we do not find the self-reporting nearly as persuasive as it might be because Hepworth made false statements in the email reporting the matter.

When considering whether to impose an actual suspension, as opposed to a period of

probation, ABA Standard 6.12 provides helpful guidance:

Suspension is generally appropriate when a lawyer knows that false statements or

documents are being submitted to the court or that material information is being

improperly 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.

ABA Standard 6.12 (emphasis added). ABA Standard 6.1 explains that “[a]bsent aggravating or mitigating circumstances,” suspension is appropriate for “conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or misrepresentation to a court[.]” ABA Standard 6.1.

Considering that much of Hepworth’s conduct falls within the aggravating factors of ABA Standard 9.2, and continued over an extended period of time, we conclude that the Committee’s recommended sanction was arbitrary and capricious because such a lenient sanction is not supported by the record and is insufficient based on the Committee’s own findings of severe ethical misconduct.

We conclude that the appropriate sanction for Hepworth in this case is an 18 month

suspension, with the first six months to be enforced and the next 12 months conditionally withheld. After the first six months, Hepworth can apply for reinstatement pursuant to Bar Commission Rule 518(b), provided that Hepworth: (1) not engage in the practice of law during the time of the term of his suspension and (2) attend 10 hours of continuing legal education focusing on ethics in addition to the 30 hours of continuing legal education (including ethics education) that are otherwise required every three years. A sworn statement by Hepworth attesting to his completion of these requirements must be submitted to the ISB before he resumes the practice of law.

IV. CONCLUSION

Based on the foregoing, and pursuant to Idaho Bar Commission Rule 506 and this Court’s inherent authority over Bar matters, we conclude and order as follows:

1. The Committee’s decision to take judicial notice of the federal district court’s findings in

the Hilliard employment discrimination trial, where Hepworth was counsel for Hilliard, is

AFFIRMED.

2. The Committee’s determination that Hepworth violated Idaho Rules of Professional

Conduct 3.3(a)(1), 3.3(a)(3), 4.1(a), 8.4(c), 8.4(d), and 8.1(a) (Counts 1 through 6) is

AFFIRMED.

3. The Committee’s recommended sanction of a withheld, one-year suspension from the

practice of law is VACATED.

4. Effective immediately, Hepworth is suspended from the practice of law in Idaho for a

period of 18 months, with the first 6 months enforced and the next 12 months conditionally

withheld, provided he complies with the following conditions for reinstatement:

a. Not engage in the practice of law during the term of his suspension; and

b. Attend an additional 10 hours of continuing legal education focusing on ethics.

Justice MEYER, and Justices pro tem PETTY, WILLIAMSON and WHITNEY,

CONCUR

Idaho State Bar v. Jeffrey J. Hepworth

Authorities cited

Opinion · public domain