Rules Governing the Utah State Bar

Rule 14-510 has many problems and the changes proposed are admirable.
14-510(a)(2) should minimally require all NOIC meet In Re Worthen standards, an assumption that should be spelled out. The OPC when filing a complaint should file a notarized statement that the facts asserted are true and accurate, and if a complainant is able to file their own notarized statement, the OPC should not file a NOIC in their behalf to avoid this requirement.
(a)(3) a Rule 11 investigation should take place prior to filing of the NOIC, not after. There is nothing ‘informal’ for the attorney receiving a NOIC and the OPC should know exactly what In Re Worthen requires prior to issuing a NOIC.
(a)(4) should require minimally contacting the attorney subject to an investigation to obtain their side of the story as part of potential resolution.
(b)(2) should be 30 days. If an attorney is to be hung, then unless they are an immediate danger, should be allowed 30 days given busy schedules of the attorney and of potential witnesses.
Witnesses ‘must be allowed’ to testify.
The screening panel hearing must be of a duration long enough to accomodate hearing all the witnesses willing to appear live or telephonically.
A written brief may also be allowed to be submitted as quickly as possible, recommended within ten days, but may be shorter for good cause shown. [not every accused attorney can obtain counsel quickly, or prepare a written brief within ten days of a hearing when there is only 21 days proposed from the notice of the hearing until the hearing.]
(b)(3)The complainant, and if the OPC is the complainant, must appear at the hearing, and must testify under oath. If an electronic execution is to take place, then the accused as well as the accusor should have to appear and testify under oath.
(b)(4) direct examination and cross ex should be absolutely allowed. If one is to accuse then examination and cross ex to challenge the accusor and accused should be allowed,unless the screening panel is to be like a criminal grand jury.
(b)(5) it is a direct conflict for the prosecutor OPC to be the Ethics and Discipline committee’s secretary. Such a position fosters a conscious or unconscious reliance upon the prosecutor placing them in an unfair position with the screening panel. This position invites the screening panel to adopt the OPC’s recommendations as a working partner with it, that destroys impartiality of the screening panel. They need their own secretary and should have no contact with the OPC aside from receipt of its briefs as for the accused.
(b)(6) In keeping with Worthen, this rule should spell out that the EDC’s screening panel has a duty to provide the accused with analysis, records of the screening panel’s independent investigation, and basis of their ‘determination’ that goes beyond merely saying the “preponderance of evidence shows”…
(b)(6)(A) In Re Ruffalo, is a U.S. Supreme Court decision that holds attorney discipline cases are quasi-criminal. As such, an attorney should not be held to be declaring guilt if the Bar cannot make its case without the attorney’s admissions. If there is proof of wrongdoing, misconduct, the standard should be clear and convincing evidence, and the right to be silent. If the rule 11 investigation is done initially, then there should be no problem with this standard.
(b)(6)(D)& (E) the rules provide no standards references for when or how the screening panel is to determine when the confidentiality of an attorney is to be utterly destroyed by a formal complaint and public law suit. Such ambiguity is intolerable under Ruffalo, Worthen that require clear notice before proceedings begin against an attorney of the why, how, and context within which the screening panel, EDC chair, and OPC arrived at the ‘determination’ of a filing a public formal complaint.
(b)(7) should include the determination of filing a formal complaint. The OPC’s filing of a public suit is in and of its self a public ‘reprimand’ that places the entire world on notice of the Bar’s opinion of the attorney, without the attorney having any thing stating “the substance and nature of the informal complaint and defenses and the basis upon which the screening panel has concluded, ” and should read by ‘clear and convincing evidence’ “that the respondent should be admonished, or publicly reprimanded” or subject of a formal complaint. ”
(b)(9) abeyance ‘shall’ be had under the conditions therein.
(c) should read “Exceptions to admonitions, public reprimand, or filing of a formal complaint” with all being given rights of in house appeal and a new hearing.
(d)(3) there burden of the EDC screening panel and OPC as prosecutor should remain, and not shift to the respondent to demonstrate there was absolutely no legal basis for the screening panel hearing.
(d)(4) the word ‘may’ should read ‘shall’ and the exceptions should not be to the OPC but to the EDC screening panel making its determination.
Finally, a new rule should be enacted so that attorneys can appeal directly to the Utah Supreme Court, without going through a lower court without the authority to (a) set policy, (b) ascertain if a rule is vague, ambiguous or conflicting with another rule, (c) control the Utah Supreme Court ethics and discipline committee actions separate from the Bar’s OPC, (d) determine if adequate due process in the proceedings below meet Utah standards as only the Supreme Court can set.
As Justice Durham sets forth in her part concurrence and dissent, In Re Discipline of Johnson, 2001 UT 110¶¶21,23
“¶21This court is charged by the Utah Constitution with [1] the obligation to regulate the practice of law. …. [2] We arbitrate questions of proportionality, [3] rules of law, and [4] guidelines for the imposition of sanctions that have general application for the practice of law in Utah. Our decisions [5] interpret the Rules of Professional Conduct and [6] develop the principles of application that will guide lawyers, the Bar, and the trial courts……
¶23 Trial courts have a more limited perspective on the disciplinary system than does this court. A trial judge is often called on to “predict” the answer to a question of first impression involving the rules and the scope of appropriate sanctions. It is not at all unexpected that a trial judge’s best assessment of the trend of developing law turns out to be “wrong” in the sense that this court will reject it and opt for a different interpretation or policy. Where the judgment is equivalent to a professional death penalty, I believe that this court’s review should precede execution.”) Emphasis added.)
As long as attorneys must fund their own prosecution with their dues, then the criminal protection standards accompanying the state prosecution of any attorney should apply based upon the higher U.S. Constitutional protections found in In Re Ruffalo, and its progeny.
Thank you for allowing this comment and petition to the governing body making the rules under Utah’s Constitution’s Art. VIII sec. 4 mandates.
Yours sincerely,
Susan Rose