Posted: July 30, 2015
Rules Governing the Utah State Bar
USB 14-0301. Standards of Professionalism and Civility. Amend. Advises lawyers to educate themselves about the risks of using social media.
USB 14-0503. Ethics and Discipline Committee. Amend. Provides for a third committee vice chair appointed by the Supreme Court. Allows a chair or vice chair of one screening panel to serve on another.
USB 14-0510. Prosecution and appeals. Amend. Describes the role of the screening panel as investigator and fact finder. Requires an OPC summary – if provided to a screening panel – to also be provided to the respondent and to include any additional violations. Allows the respondent to address any violations. Permits the screening panel to find additional violations during the hearing. Describes the process by which the respondent may address the additional violations. Requires a formal complaint to be filed if a screening panel finds probable cause for public discipline or if the misconduct is similar to a pending formal complaint. Allows evidence of prior discipline to be presented at the hearing. Allows for multiple cases to be presented to one screening panel. Allows the OPC 30 days to file a response to respondent’s exceptions. Allows the chair to extend the time to file an exception or response so the respondent or OPC can obtain a transcript of the hearing.
USB 14-0517. Additional rules of procedure. Amend. Clarifies that a screening panel chair screens complaints against OPC counsel, committee members and bar commissioners before the appointment of a special counsel.
USB 14-0533. Diversion. Amend. Requires that the OPC agree to diversion before the Diversion Committee can consider the respondent’s request for diversion.
The OPC is already far too powerful. The bar refuses to opine on questions presented to it and simply refers the requesting attorney to the rules. However, their opinions abound when they feel that a rule has been violated.
In 14-510(b)(1), the OPC is now given the further power of “fact-finder”. Now the OPC determines which cases to pursue, does the “fact-finding”, picks the panel, pays the Chair who reviews appeals and then allows the OPC to appeal a panel hearing to their own chair. This rule makes the OPC even more powerful and continues to erode the due process to attorneys that we all fight to protect for other people. Allowing the OPC to give the panel a copy of its “findings” is patently unfair to the Respondent.
In (b)(7)(f), the language is too loose. What does :similar” mean? With no direction, lawyers are again left to the mercy of the OPC and court rulings after the fact.
(b)(9) violates due process as well as it allows one panel to hear about multiple accusations. Can you imagine bringing in the same jury for each crime a criminal is charged with? What if one accusation is merited and the other(s) is/are not? What is the likely result going to be to that Respondent? The most likely result is “guilt for one accusation is guilt for all accusations”.
The short seven-day notice requirement at 67-69 should be changed to thirty days consistent with the rest of the rule to allow a written respondent’s brief on the newly-alleged violations at least ten days prior to any hearing consistent with the rest of the rule, and the rule should specify that the notice of the newly-alleged violations be mailed to respondent’s preferred mailing address of-record with the Utah State Bar.
Like all of us who have held prosecution power and discretion know, there is temptation to sit on things until the last minute before disclosing so as to comply with rules but maximize advantage.
I disagree with the changes proposed to the Diversion Rule. The entire foundation and purpose of the rule was to give attorneys an avenue to have their issues addressed without OPC involvement. The Rule itself defines what cases can be in diversion and attorneys should be given the opportunity to seek resolution, treatment or other form of correction without OPC determining the outcome or even potential of diversion eligibility.
The Court previously established the Diversion Committee as a group of experienced lawyers who are to make an independent judgment on whether certain “less serious misconduct” might best be addressed with the imposition of non-disciplinary, remedial measures on a contractual basis. The proposed change would reduce this key element of the current diversion process to a near nullity.
The current rule reads: “In a matter involving less serious misconduct as outlined in subsection (c), upon receipt of an informal complaint and before filing a formal complaint, THE RESPONDENT MAY HAVE THE OPTION OF ELECTING to have the matter referred to diversion, the appropriateness of which will be determined by the chair of the Diversion Committee after consultation with OPC.” (Emphasis added.) Giving the attorney a true option seems consistent with the original intent of a diversion program, as described in the Utah Bar Journal by then-President of the Utah State Bar, Lori Nelson: “The purpose and intent of the [diversion] rule is to get attorneys the help they need early in the process prior to their conduct escalating to the commission of serious misconduct. Hopefully the existence of the rule will promote rehabilitation of attorneys and provide them with assistance they need TO AVOID FORMAL PROSECUTION FOR MISCONDUCT, whether the assistance is in the form of law office management . . . or something else.” (Emphasis added.)
Yet, the proposed rule change would have the effect of appointing the Office of Professional Conduct as judge and jury on the question of whether an attorney whose conduct has come to OPC’s attention as a prosecutor is a suitable subject for a diversion program under the rule. In effect, this places OPC at the gate of the Diversion Committee and transfers most of the independent judgment currently residing with the Committee to OPC.
I would like to believe that the Court’s original adoption of the rule and the appointment of experienced lawyers to implement the diversion policy was intended to give the Diversion Committee the authority to make an independent judgment that (1) the lawyer’s misconduct in question is “less serious,” as carefully defined in paragraphs (c) and (d) of the rule. The proposal would reduce the Committee to the largely ministerial function of approving a proposed diversion contract with terms that OPC has already agreed to.
OPC already exercises wide and powerful investigative and charging authority. Transferring to it the additional authority to make decisions concerning punishment or remediation—even as a gatekeeper—is a major expansion of its already extensive power and is inconsistent with the laudable public-policy goal of diverting lawyers with less serious offenses to a remediation program as soon as feasible with the goal of making them better lawyers and better serving the public.
The diversion rule should be left as is (perhaps for clarification, with the deletion of “may” in line 2). OPC would, of course, still play the consultancy role provided in the paragraph (a) of the current rule.
I urge the Court not to adopt this proposed change to Rule 14-533.