Rules of Professional Practice – Comment Period Closed May 12, 2022

Proposed rule 11-0583(c)(1) recommends delicensure in three circumstances but applies different standards. Subparagraphs (A) and (B) require that the lawyer knows there is an adverse relationship. Subparagraph (C), in contract, only requires that the lawyer “knowingly uses information.” In other words, a lawyer could be disbarred under (c)(1)(C) if he/she was unaware of the conflict at the time of the action. That is a realistic possibility, especially if it is an imputed conflict resulting where another member of a firm represents the other client. Rule 11-0583(c)(1)(C) should be changed to permit delicensure only if the lawyer “represents a client in a matter substantially related to a matter in
which ‘the lawyer knows’ the interests of a present or former client are materially adverse and . . . .”

These amendments seem thoughtful and well designed to help address situations where individual attorneys need to improve their professional conduct. My comment is more general in nature. I recently attended a CLE where a representative from the OPC gave a presentation. The presenter explained that the OPC receives almost 4,000 reports/complaints a year and, in 2021, took action in only about 80 cases. The presenter interpreted that data to mean that, although attorneys make a lot of people upset, they very rarely violate the rules of professional conduct. I believe there is another interpretation. Among Utah attorneys, the OPC has a reputation for being extremely lenient. The sense is that you don’t file a complaint with the OPC for a solution, because the OPC will seize upon any possible excuse to dismiss your complaint. You file with the OPC simply to put a problem attorney on notice that the misconduct has been seen. The letters of dismissal that the OPC issues are absurd. The OPC does not investigate complaints. It does not evaluate credibility. In fact, in responding to a complaint, an attorney can flat-out lie. The OPC will then explain to the complainant that it cannot consider the complainant’s statements to be more credible than the respondent’s. Therefore, it cannot arrive at any conclusion. If that is the case, then the OPC is a waste of time and money. Further, if misconduct has occurred during a court proceeding, the OPC will state that the misconduct should have been addressed as part of that proceeding. Therefore, the OPC would require private litigants to keep their cases open and pay the costs of taking matters to trial in order to address attorney misconduct, even if the substantive elements of their cases can be settled. If the OPC can find no other way to dismiss a complaint the OPC will create new rules. For example, my mother once asked an estate planning attorney for a copy of the documents he had prepared for her because she didn’t remember what she had signed and didn’t understand what the documents meant when she signed them. The attorney told her he would send the documents to her within 24 hours. He didn’t. Then he told my mother that she could pick the documents up–at this point, I was helping my mother because she was on the phone with the attorney, and she is hard of hearing. She and I went to the office. She was then told that she could look at the documents while she was there, but she couldn’t have copies. Then she was made to wait “while a room was prepared” for her. Then she was told she couldn’t look at the documents after all or have copies. I filed a complaint with the OPC. It should have been a simple case–my mother asked for copies of her documents; the attorney refused to give them to her. But the OPC decided that, at some point, my mother’s request for the documents expired–a brand new rule! At that point, it became my request rather than my mother’s request, and the attorney was justified in refusing the request after it turned into my request. When I finally got the documents, I learned that the attorney had filed a quit claim deed after being placed on notice that my mother did not understand or remember what she had signed. I let the OPC know. The OPC did nothing. To be entirely candid, within the profession, the OPC is a joke.