Posted: December 20, 2011
Rules Governing the Utah State Bar
USB 14-0503. Ethics and Discipline Committee. Amend. Adds a vice chair to the Ethics and Discipline Committee and establishes a screening panel member removal process.
USB 14-0510. Prosecution and appeals. Amend. Provides that a judicial officer’s failure to address or report alleged attorney misconduct is not evidence that misconduct has or has not occurred. Establishes that a screening panel’s involvement in the diversion process ceases once the material terms of a diversion contract have been agreed to.
USB 14-0533. Diversion. Amend. Provides that OPC, as secretary to the screening panel, memorializes the diversion contract.
Petition to Create Ethics Advisory Opinion Safe Harbor.
USB 14-0504. OPC counsel. Amend. Prohibits OPC from prosecuting a lawyer for an act expressly authorized by an ethics advisory opinion. Provides that a court is not bound by an the interpretation of an ethics advisory opinion. Permits OPC to request that the ethics advisory opinion committee review, modify or withdraw an ethics advisory opinion. Permits OPC to request that the supreme court review, affirm, reverse or modify an ethics advisory opinion.
This entry was posted in -Rules Governing the State Bar, USB14-0503, USB14-0504, USB14-0510, USB14-0533.
Rule 14-503 amendments. They do no go far enough.
Rule 14-503 makes the OPC prosecutor the secretary, virtually a de facto nonvoting member, of the screening panel. the screening panel should be absolutely separate from the OPC.
Next, the rule as amended provides for removal of a panel member, but strikes the reason why, and profers no other explanation. can a panel member be removed for how they vote on an attorney’s discipline? Panel members should have notice in the rule as to grounds for removal.
Further, in reviewing numerous Bar members going through the panel process, the OPC is NEVER, or virtually NEVER, calling all eight persons for a panel. The OPC only calls three members and determines who they are. The OPC is violating this rule on virtually all cases before screening panels. The OPC picks the ‘judges’ and limits their numbers and then gives them the information on the attorney while prosecuting the attorney? How fair is that?
This rule needs further changes. Thank you.
Rule 14-510 comment on proposed amendments.
The rule does not define what a ‘determination’ is and how it is different from a ‘recommendation’ to the OPC. Either the panel can make a decision regarding the attorney or it is left to the prosecutor OPC to make the decision based upon a recommendation from a panel without power. In preparing defenses for attorneys before a panel, this may be more than just a ‘hair splitting’ fine point.
the amendments should go farther. In virtually every case before the panel it is limited to the arbitrary and inflexible time of one hour and so the panel does not often hear all the attorneys witnesses.
Further, the rule and rule 14-511 does not define what is meant by ‘probable cause’ to refer an attorney to public trial in state court. A process that, along with, the initial informal complaint, automatically destroys an attorney’s future business due to the power of the accusations standing alone. Additionally, the ‘probable cause’ standard is very distinguishable from the ‘clear and convincing’ standard associated with serious property and license deprivations.
Rule 14-501 should be amended to read that the process is a quasi criminal one, consistent with In Re Ruffalo’s U.S. Supreme Court decision.
Rule 14-517 should be amended to have a ‘clear and convincing standard’ for the OPC to carry in its pre trial prosecution. Not the civil preponderance standard.
An attorneys public name and reputation warrant caution in the pretrial hearing stage and the Bar and Utah Supreme Court should amend the rules to be consistent with U.S. Supreme Court Due Process standards. Rules 14-501, 503, 510, 511, 517 work together, and all have U.S. Constitutional infirmities that can be corrected.
It is not an onerous burden for the Utah Supreme Court and Bar to amend the rules to meet U.S. Supreme Court Due Process standards. Violations of those standard renders every prosecution and decision to file a public complaint in state court null and void.
Further, rule 14-510 should be amended to oblige the OPC to file a sworn information, particularly if insurance companies may be relying on the Bar to prosecute an attorney for the motions they make in litigation against the insurance companies’ insureds.
Finally, rule 14-510’s suggestion that a judge’s non identification of misconduct for ‘in court’ litigation, as not persuasive, is an implied allowance for the OPC to displace the judge. Listen, there is not one single solitary U.S. Supreme court decision that suggests that one tribunal can try an attorney for ‘in court’ litigation allegations, that is within the inherent structure of the Court. There are many decisions stating the opposite. Only, exclusively, the judicial officer who is familiar with the totality of circumstances, can know if an attorney has or has not committed misconduct. To say differently opens the door to prosecuting attorneys for what they say and how they say it in the original tribunals.
Also, the rule probably needs to say ‘state’ judicial officers if it is to remain. And, the rule does not provide for a ‘right’ or ‘entitlement’ to examine and cross examine witnesses.
Finally, in reviewing approximately 330 public prosecutions of Utah attorneys, and where this counsel could identify those still on the Bar’s roles— those prosecuted attorneys were virtually all solo or small firms. Since 2007, approximately 85 or so could be found, and that is an elimination of approximately half a million dollars in small firm competition with the large firms if the attorneys are annually earning $60,000 average. It is this person’s opinion founded on this research that the Bar’s prosecutions and these rules are being used to eliminate economic competition of the small and solo firms, and it is like shooting fish in a barrell given the lack of the right of examination and cross examination in this rule.
Without a sworn information, without a flexible time for a hearing, without full panels being called, with the OPC as both the secretary and prosecutor choosing the panels, without the right of examination and cross examination of witnesses, now with lack of definition of terms, and now, with the OPC being allowed to displace the judgments of the sitting judges to allow for prosecution of attorneys for what they say and motions they make that the OPC at the behest of one party or the other, can use to destroy an attorney just by the charges standing alone.
comment rule 14-533
The OPC should not be the ‘secretary’ for the screening panel. An attorney before a screening panel should have a completely impartial hearing panel, and consisting of equal numbers of small firm and large firm attorneys or better persons not in economic competition with the attorney.
Rule 14-504 comment on ammendments.
This rule should probably give a time limit as to when the OPC is to challenge an advisory opinion. Otherwise they can do so at any time, so as to prosecute a specific attorney.
The Bar’s petition to enacted Rule 14-504(d)to rectify the situation in which Utah attorneys have been, for the past five years, unable to rely on the opinions issued by the Ethics Advisory Opinion Committee is laudable. An attorney who takes an action (or forgoes action) on the basis of the considered opinions of that Committee should not be vulnerable to prosecution by the Office of Professional Conduct if it happens to disagree with a Committee opinion.
The Bar’s proposed language purports to resolve the problem and provide a safe harbor to lawyers who rely on the Committee’s opinions. The petition appears to intend that a lawyer may rely upon a Committee opinion if the lawyer’s behavior is addressed by an opinion that has not been withdrawn, superseded, overruled or amended.
However, the Bar’s petition and, more particularly, the prosed rule contain potentially problematic language requiring that an opinion that a lawyer seeks as a safe harbor “must expressly recognize and approve the lawyer’s conduct” (emphasis in Petition). This could reasonably be interpreted by an aggressive prosecutor or Ethics and Discipline Panel as requiring a strict “all fours” congruence for the lawyer’s situation vis-à-vis that in an otherwise applicable ethics opinion. It might even be interpreted as requiring that the lawyer request and obtain an opinion specific to that attorney from the Committee in order to provide protection. Indeed, the wording in the proposed rule is most troublesome, as the lawyer is only protected for an “act that was expressly approved” by an ethics opinion.
A plain-English interpretation of “express approval” would be that the lawyer would be required to seek direct approval for the conduct in question. But, this would eviscerate the rule and put Utah lawyers in little better position than they are now. It is often impractical to seek “express approval” for an action that may not wait for the several months that might be required for the Committee to process a request. A lawyer whose conduct is reasonably within the ambit of a opinion should not have to seek ratification of his/her specific situation.
If this interpretation is not the intent of the Bar’s petition (and, it is my understanding that it is not), the language of the proposed rule should be modified to make it clear that the lawyer’s conduct will be subject to a reasonable application of one or more applicable, extant Utah ethics opinion. The use of the phrase “expressly approved” implies a far higher standard than would ordinarily be expected in a person’s compliance with an applicable law—whether a statute, rule or a judicial opinion.
To provide a reasonable safe harbor for ethical conduct, the proposed rule should provide that a lawyer who acts or fails to act in compliance with a currently effective and directly applicable ethics opinion shall not be subject to disciplinary action; the “expressly approved” requirement is seriously ambiguous and may provide very little protection to a lawyer who does not seek explicit approval or can’t match every factual predicate in the opinion.
The binding nature of an ethics opinion should not raise a higher barrier to its use by a lawyer than any other applicable law. OPC, for example, would be free to argue that the facts and circumstances of a particular situation did not fit the invoked opinion (this is consistent with the Bar petition’s note that applications would be “fact dependent”), but neither OPC nor an Ethics and Discipline panel would be entitled to ignore an applicable opinion and replace the Committee’s judgment by OPC’s or the panel’s.
An approach subsection (d) of Rule 14-504 that is more nearly aligned with the usual application of statutes, regulations and applicable case law would read (showing changes relative to the proposed rule):
(d) Effect of ethics advisory opinions.
The Office of Professional Conduct shall not
prosecute a Utah lawyer for violating the
Utah Rules of Professional Conduct for
conduct that is in compliance with an ethics
advisory opinion that has not been withdrawn
at the time of the conduct in question. No
court is bound by an ethics opinion’s
interpretation of the Utah Rules of
Professional Conduct.
Although “in compliance with” is itself subject to some interpretation, it provides the normal ability for either side of a prosecution issue to argue the extent to which the instant facts and circumstances are governed by the opinion in question. It would not be different from any normal legal proceeding in that regard, and it would reduce the likelihood of an overly zealous prosecutor to claim that a respondent lawyer’s inability to match every jot and tittle of an opinion renders the opinion of no application.