Utah Court Rules – Published for Comment
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Posted: July 28, 2020
The proposed amendments reflect the recommended reforms to lawyer discipline and disability proceedings and sanctions contained in the American Bar Association/Office of Professional Conduct Committee’s Summary of Recommendations (October 2018).
The Rules do not clearly state whether the OPC must file a new complaint when it takes over a case from a non-participating Complaintent or if it just “slips” into the Complaintent’s spot.
The OPC should be required to provide clear notice to the Respondant if it is taking over the case.
I have a number of concerns about the proposed Rules.
Rule 11-503:
(c)(3)-(5): OPC is not a private entity. Disciplinary actions should be available in some form to the members of the Bar and the public. OPC attorneys are, after all, acting in a public trust. Misconduct by OPC counsel affects the reputation and integrity of the OPC, hence should be public.
11-5048(a):
Those subject to the jurisdiction of the Supreme Court and OPC includes “any formerly licensed Lawyer with respect to acts committed while admitted to practice of law or with respect to acts subsequent thereto” — so if Rule 8.4(g) is adopted, a former lawyer could be subject to OPC sanctions for conduct after ceasing to practice? Or will “law related” condition limit that scope?
Rule 11-512:
Where is the subpoena power found? Is there a statute providing this authority? Is the Supreme Court just saying it can delegate this to an informal proceeding? How exactly would a third party come to be within the jurisdiction of the Committee or its Chair? On what basis does this authority exist? How is it that third-parties are being forced to bear the costs of a subpoena in what is plainly not a civil or criminal case? And why is it that third parties should carry such a burden?
From what court is the subpoena issued? And how is it that a subpoena issues from a court that does not have a case before it? The existing rule (14-503(g)) requires application to a court — a court issues the subpoena. That at least is formally and procedurally defensible. Handing off subpoena powers to parties to a private, informal proceeding is something quite different. Because there is no case before a court, no subpoena could properly issue and whatever document is sent out is without legal authority.
What is a “proper application” under 512(b)? I suppose it is something other than a motion or the Rule would say a motion. So what is an application? And who gets served with the application? The subject of the subpoena? What kind of service? Absent personal service, i.e., under URCP 4, how does the court even pretend to have jurisdiction over the third party? Does the court apply the standard rules about motions on subpoenas? Can it shift the costs?
There are separate rules for enforcing and quashing a subpoena. But the rule on quashing gives no indication of how a request to quash is made. Is it a letter to the chair of the Committee or to the Court or what? Would a third party have to bear the costs of creating a case for the court to hear the request? Is the request made by a motion? I am at a loss to see why a third party is denied appeal rights about subpoenas in this context. I doubt that such a provision is constitutional under either the US or Utah constitutions. This provision makes the denial of a request to quash unreviewable — no one would file the appeal after the final order in the proceedings, which can be expected, on the current OPC level of productivity, to come 3 or 4 years later. The chair of the Committee can quash a subpoena because?? How could a person who is not a judge quash a subpoena, which is an order of the court?
Does URCP 45 govern the geographic scope of subpoena? E.g., is production limited to the county of residence? How about payment for costs? Does 45(a) apply? Why not say how this Rule relates to Rule 45?
11-520(a):
Is the Chief Disciplinary Counsel an at-will employ, like other lawyers in the OPC? Shouldn’t the Rule say one way or the other? If Chief Counsel is not an at-will employee, what are the conditions of employment? And why treat that person differently from the other lawyers?
11-523:
All of the questions and concerns set out above re 11-512.
Why are the provision of 523 different from 512? Here Rule 45 plays a direct role in determining whether a subpoena may be quashed, but not in 512. It is difficult to identify an reasonable grounds for such a difference.
I take it that the import of 512 and 523 is that the OPC and Respondent may subpoena one another for information? That implies civil discovery rules do not apply and that would imply there is no case, hence no power of subpoena. It is curious that 523 provides for a subpoena against the Respondent expressly, but 512 gives no express power to subpoena OPC. Why?
11-524:
(A) says that both OPC and the Respondent can lie about whether a complaint was made? Why is it not sufficient to say that the Complaint was unfounded? Or was dismissed? Or OPC has no record of a complaint and does not keep unfounded complaints for more than three years?
11-530(g)(2)(B):
The deadline for an appeal by a Complainant of dismissal is based on time from mailing of the notice of dismissal. So Notice of Dismissal is mailed, not served. But any appeal must be served on OPC. Served how? By mail? By email? Why not have OPC serve the Notice of Dismissal on the Complainant? The Complainant is obviously a party to the proceeding, so why is it not treated as one? How does the Complainant’s “notice of appeal” get from the OPC to the Committee Chair or Vice-Chair? How long may OPC hold the Notice of Appeal before forwarding to the Committee?
I am little puzzled by the requirement that complainants must aver under penalty of perjury but OPC makes no similar averments. The filings are not with a court so there is nothing like even Rule 11 as a condition for OPC filings and statements. Coupled with the secrecy of any complaint re or discipline of OPC counsel, it makes OPC counsel more or less supervised in name only.
Rule 11-537:
These provisions appear to concern proceedings before the Committee. Perhaps say that in the title of the Rule or in the body.
Rule 11-542(f)(2), (3)
The notice should be served on the Complainant, and a reasonable period for appeal allowed, i.e., 21 days. Complaints about OPC counsel et al. should not be given special treatment abbreviating the rights and opportunities of the Complainant. It is already a rather cosy arrangement — the complaint is considered by people who work quite closely with OPC et al. and have ongoing work relationships. In that context appearance of neutrality in process is more important.
Rule 11-565(d)
Respondent should be able to submit a declaration. State law says so (§78B-18a-101 et seq.), so the Rule should also say affidavit or declaration.
Rule 11-569
Doesn’t this belong in the Rules of Professional Conduct? As is, a lawyer can be suspended from practice for contempt re child support but that is not professional misconduct. Seems odd. What would OPC do with the notice of suspension?
Rule 11-581(g)(4)
Respondent should be able to submit a declaration. State law says so (§78B-18a-101 et seq.), so the Rule should also say affidavit or declaration.
Rule 11-590
Respondent should be able to submit a declaration. State law says so (§78B-18a-101 et seq.), so the Rule should also say affidavit or declaration.
My comment concerns recommendation 5.2 “Membership and Training.” I have been a public member on the ethics and discipline screening panel for two years. I think it is a mistake to reduce the public members from 2 to 1. There are two reasons for this:
1) I think the public viewpoint is important, and will be lost with only 1 member.
It doesn’t happen often, but several times the other non-lawyer and I have had very different views on a case than the lawyers. Sometimes the lawyers assume things we don’t, or vice versa. I’m thinking of a session a couple of months ago where in the initial vote, the other non-lawyer and I voted for one thing and all the lawyers voted the other way. It was a very “12 Angry Men” session–during the discussion, one by one, the lawyers changed their vote and ultimately everyone agreed with us. It was all very friendly and professional, but the discussion was heated. I’m pretty tough, but I’m not sure how it would have gone if I was the only non-lawyer in there. I might have caved.
You’re probably familiar with the research on token people. If there’s 1 minority, or 1 woman in a room, their voices tend not to be heard. If there are 2 or more, there’s a better chance they’ll be heard. I think the same dynamic applies here.
2) If a public member must attend or the session is cancelled, it’s nice to have 2 public members available.
At most sessions the other public member and I are both in attendance. But if one of us has to miss, we check in with the other one to make sure they can cover for us. We’ve made accommodations for each other. I moved a family vacation because they had a wedding they wanted to attend, and I didn’t want the committee to suffer. This would obviously be more difficult if there was only 1 public member.
11-503(a)(1)
One of the primary recommendations of the ABA was that the OPC be taken out from underneath the Bar and put under the supervision of the Supreme Court. The Oversight Committee is a Supreme Court Committee. So, why is the Executive Director of the Bar an ex-officio, non-voting member of the Oversight Committee?
11-503(c)
The rule allows someone to file a complaint alleging malfeasance by the Chief Disciplinary Counsel, but there is no mechanism for anyone to contact the Committee regarding general concerns about the OPC’s process for handling bar complaints. In my opinion, the current Chief Disciplinary Counsel of the OPC is beyond reproach with regard to integrity and the uniform application of the rules. Malfeasance seems extremely unlikely. However, the OPC is not infallible with regard to its procedures. One of the Committee’s duties is to “develop and implement realistic performance metrics.” But if the Committee relies solely on the OPC’s representations, how can the Committee properly assess the OPC’s performance? I have reached out to the Committee asking for the opportunity to discuss concerns but have received no response. If the Committee is truly going to “Oversee” the OPC then it needs to be receptive to the input of those outside the OPC. Outlining a mechanism for this in the rule would seem reasonable.
11-512(a)
This rule requires a Respondent to give the OPC 7 days notice before the Committee chair can authorize a subpoena. However, under rule 11-531(b), if the OPC is going to add new rule allegations against a Respondent at the screening panel phase, the OPC has to give the Respondent its summary outlining the new allegations 14 days before the hearing. The problem is that a subpoena demanding the production of documents must allow the person being served with the subpoena at least 14 days to comply. So, if the OPC notifies a Respondent about new allegations 14 days before the hearing, and if the Respondent needs to subpoena documents in order to defend against the allegations, there is not enough time because the Respondent has to wait 7 days before the Committee chair can even issue the subpoena. The reality is that if the OPC is going to add rules at the screening panel phase, they know they are going to do that long before the hearing ever takes place. Months pass between when the OPC notifies the Respondent they are referring the case to a screening panel, and when the hearing actually takes place. And, with few exceptions, nothing happens during those months. The OPC already has all the information it is going to get. It is not uncommon for an OPC investigation to last more than a year before the case is heard by a screening panel. There is no reason a Respondent can’t be given more than 14 days notice of new rule violations. In short, when a Respondent’s livelihood is on the line, he/she should be given sufficient time to subpoena documents that could help preserve that livelihood. These two rules conflict in that regard.
11-514(e)
Committee members are disqualified from representing any Respondents for a year after they leave the Committee. This is the kind of rule that often gets glossed over because we are used to seeing things like this. But what is the purpose? Who does this serve? What interest is being protected? If a former Committee member has no prior relationship with a Respondent then what is the harm in the former Committee member representing them? How does that harm the Respondent? How does that harm the OPC? How does that harm the Committee? If the concern is that the former Committee member might be appearing before a screening panel of which he/she was formally a member, then the 1 year prohibition does not address this concern. Committee members can sit for 2 consecutive terms of 3 years each.
11-520(b)(A)
The report should include statistics about how long it takes cases to get resolved. Delay was a major point of emphasis in the ABA’s report regarding the disciplinary system and statistics that address delay should be included in the annual report.
11-520(d)
Again, what is the purpose of this? See comments above regarding 11-514(e). Rule 1.11 of the Rules of Professional Conduct provides sufficient protections related to former prosecutors. This seems like a solution in search of a problem.
11-530(c)
One of the primary concerns raised in the ABA review of the system was the length of time it takes to resolve cases. This rule requires the OPC to advise a complainant of the status within three months, but it doesn’t impose any requirement for disposition. It is not uncommon for cases to take over a year, and sometime up to two years, to resolve. These cases hang over the heads of respondents and are a source of anxiety. I am aware of cases where attorneys self-reported serious misconduct and the cases are still pending more than two years later. There should be a mechanism in place for respondents to have a case dismissed for failure to prosecute. If there are questions about an attorney’s fitness to practice law then it should not take over a year to do something about it.
11-534(a)
Under 11-510(b) the Committee chair is responsible for “determining that screening panels have a uniform basis for judgments rendered;” But under 11-524(a) the chair is powerless to do anything about it if they find the panels do not have a uniform basis for judgments. This rule takes away the chair’s authority to dismiss or modify a screening panel recommendation. How can the Chair do his/her job if all they are doing is rubber-stamping a panel’s determination?
11-561(a)
“Before the OPC initiates an Action or issues a public reprimand….” Can the OPC now issue public reprimands?
11-561(e) and (f)
Paragraph (e) says information is confidential unless the request for information is approved by the OPC. However, paragraph (f) says a Respondent is only entitled to notice of disclosure if “the Committee decides to provide nonpublic information…” What if the OPC decides to disclose the information? Then the Respondent does not get notice?
11-561(i)
Complainants are not bound by the confidentiality rule. This is problematic. During the course of an OPC investigation, the Complainants receive copies of information provided by a Respondent and obtained by the OPC. They also receive a copy of the file at a screening panel hearing. This could include documents that were obtained by 3rd parties. If complainants are not bound by the confidentiality rule, then there should be protections in place that prevent them from getting copies of all the documents in the OPC’s investigation file. There is nothing to discourage a complainant who is dissatisfied with the outcome of the OPC investigation from taking matters into their own hands and distributing confidential information on social media.
11-563(b)
Giving the courts alternatives to immediate suspension is a good change. Immediately suspending an attorney based on an incomplete investigation was too harsh. Allowing limits on practice areas and supervision is a good idea.
11-563(d)
This rule allows a respondent to move to dissolve or modify interim discipline. However, it says the motion “will be heard and determined as expeditiously as justice requires.” Paragraph (a) of the rule requires a court to hold a hearing that could suspend an attorney within 14 days of the attorney being served. If an attorney can be suspended within 14 days, why shouldn’t he/she have the right to have that suspension dismissed or modified within 14 days? Their livelihood can be put on hold in 14 days, but their ability to undue that sanction is at the mercy of a court’s calendar? If the sanction is justified then there is no harm in holding the hearing within 14 days. But if the sanction is not justified then the respondent can suffer serious harm by having to wait.
11-565
This rule allows a Respondent to stipulate to discipline before a matter is submitted to a screening panel and after a complaint is filed in district court. However, it does not allow stipulated discipline during the time between when a matter is referred to a screening panel and when a formal complaint is filed. This often takes months. It would conserve OPC, committee and court resources if a respondent could stipulate to discipline during that window. It is not uncommon for either the OPC or Respondent to learn new facts or see them differently during a screening panel hearing. What is the benefit of having to wait for a formal complaint to be filed before a Respondent can stipulate to discipline?
11-581(g)
This rule provides guidelines for imposing probation. That is a good addition. However, the rule requires a respondent to demonstrate some form of “disability.” What does that mean? Who gets to decide what qualifies as a disability? Going through a traumatic divorce or health crisis with a family member could lead to a lapse that constitutes a rule violation, but would that qualify as a “disability?” Probation could be a rehabilitative sanction that benefits many lawyers, but it can’t serve its purpose if “disability” is too narrowly defined.
11-584
I think it is great to spell out in this manner when various sanctions are appropriate. Hopefully this can lead to early resolution of many disciplinary cases. However, there is one gap that has always troubled me. A lawyer can be delicensed for selling marijuana, but only suspended for rape. The rule lists several ways a lawyer can lose his/her license based on how money is handled, but completely ignores sexual offenses.
Also, it does not make sense that if an attorney engages in conduct involving dishonesty, fraud, deceit or misrepresentation the only options for sanctions are delicensure or reprimand. Why not suspension? A reprimand is for negligent conduct. How can you be negligently dishonest? How can a misrepresentation reflect adversely on your fitness to practice law if it was negligent? That makes no sense. The rule should allow for suspension in cases that do not warrant delicensure.