Utah Court Rules – Published for Comment
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Posted: March 9, 2017
RPC 01.00 Terminology. Amend. In conformity with amendments to Rule 3.3, adds the definition of “reckless or recklessly.”
RPC 03.03 Candor toward the Tribunal. Amend. In response to In re Larsen, 2016 UT 26, adds a prohibition against a lawyer “recklessly” making false statements to a tribunal and repeals and reenacts Comment [3].
I would like a comment giving an example of what recklessness in this context would look like. If an attorney is required to Shepardize each case or risk being reckless, I think the rule goes too far. But if a lawyer sees on Westlaw or Lexis a warning that the case being cited has been negatively treated in the controlling jurisdiction and consciously chooses not to investigate, for fear of gaining knowledge which would require disclosure, I agree with the amendment.
There are several problems with the proposed amendments:
1. Is the Bar going to open an office whereby lawyers, prior to submitting motions and arguments, can clear them ahead of time so the OPC will not declare them “reckless” at the behest of a solo or small firm’s lawyer’s opponent, to disbar them for what the small firm or solo lawyer did or said in Court?
2. It is redundant. Rule 3.3 and URCP 11 and Judge’s inherent powers over lawyer conduct are sufficient.
3. Another problem is that it invites the OPC to invade a lawyer’s 1st amendment rights of speech, motions and actions in behalf of unpopular or politically sensitive clients’ positions in cases of first impression, or where the law is divided even at U.S. Supreme Court levels, etc.
4. The Association of Utah Cities and Counties if they don’t like a federal law suit can invite the OPC to use this accusation to try to discredit lawyers hailing them into federal courts, as was done to Mr. Larsen in federal court when he was prosecuted while suing Davis County.
5. This rule will not apply to the OPC prosecutors because NO Rules provide for its enforcement against them….while at the same time….the OPC prosecutors can prosecute the judges who disagree with them as being “reckless” under rule 14-506.
6. These proposed changes — make any defenses by lawyers prosecuted by the OPC for their in court speech and motions—non existent in light of the “civil standard” used for OPC prosecutions that automatically shifts the burden to the lawyer to prove innocence when the Prosecutors admit to the lower court judge (whom they can prosecute for what the judges say and do on the bench albeit after they return to practice [14-506(c)]) that they so lack evidence to support their charges that they require a default to proceed, as occurred in my own case on June 24, 2010. See, MacFarlane, In re, 350 P.2d 631, 10 Utah 2d 217 (Utah, 1960)(J. Wade dissent explaining how “civil” standard eliminates prosecutor’s burden)
7. given that Utah has no “impartial” triers who are exempt from the OPC prosecutors, no adversarial trials, no trial by jury, and no RULES, to govern “by rule” the Prosecutors for prosecutorial misconduct, these amendments make prosecuting lawyers for their court 1st amendment activities like shooting fish in a barrel.
8. If this committee, all of whom are prosecutable by the OPC Prosecutors wish to bring the U.S. Constitution to Utah, then change 14-517 “civil” standard to the U.S. Constitution’s U.S. Supreme Court’s “quasi -criminal” standard, adopt trial by jury as Texas does, and eliminate the Prosecutor’s powers over District Court judges and place retired and inactive judges as screening panel members… all possible unless you are afraid of being prosecuted on your own licenses.
for all the foregoing reasons, these amendments are but another nail in the coffin burying Utah lawyer’s rights, and further diminishing District Court Judges’ powers by persons not appointed by the governor or ratified by the senate…i.e. the People.