Although the Utah State Bar can’t comment on specifics of current attorney discipline investigations because of Utah Supreme Court confidentiality rules, the Bar wants everyone to understand how the process works and to know how important ethics are to the legal profession.

If you see potential ethics violations in public court records, in the media, or on the Internet, you can notify the Office of Professional Conduct (OPC). This may not be necessary, however, as the OPC watches for such incidents, and it can initiate an investigation and prosecute without a Bar complaint.

If you write to the OPC without any first-hand experience or evidence, the OPC may decline to prosecute your specific case, but may continue to investigate other cases with more evidence regarding the same respondent (the accused attorney).

Similarly, the OPC may dismiss a Bar complaint if other overlapping cases have more evidence or witnesses.

Because of the confidentiality rules, the OPC can not describe the specifics of these overlapping notifications and complaints, but it is important to understand that a decline-to-prosecute decision or a dismissal is not necessarily a vindication of the respondent, especially if there are ongoing investigations or prosecutions by other entities.

By waiting for these external proceedings to conclude, the OPC will have the most evidence for presenting cases to the Ethics and Discipline Committee screening panel (which includes non-lawyers), and, potentially, the district court. In some cases, the OPC may elect to wait, due to respondents being reluctant to risk incriminating themselves on criminal charges, so they would be less likely to cooperate with investigations. Also, the rules allow respondents to request that OPC cases be put on hold while other proceedings unfold. Therefore, the rules prevent the OPC from unilaterally setting timetables for prosecutions.

Because of the confidentiality rules, you may not hear about OPC investigating a case or preparing for a screening panel hearing. There may be no public announcement until the Ethics and Discipline Committee orders a public reprimand to be issued or a civil suit is filed. We should never come to the false conclusion that silence on OPC investigations means there is inactivity on a pending investigation or that an investigation is not underway.

Visit http://www.utcourts.gov/resources/rules/ucja/#Chapter_13 to see the Utah Supreme Court’s ethics rules for attorneys, Rules of Profession Conduct; then scroll down to Chapter 14, Articles 5 to see the Rules of Lawyer Discipline and Disability, which directs the attorney discipline process.

If you have questions, comments, or suggested changes for any rules, please contact Utah State Court Appellate Court Administrator Tim Shea at tims@utcourts.gov or Steven Johnson, Advisory Committee on the Rules of Professional Conduct Chair at stevejohnson5336@comcast.net.

Appropriate rule changes often take months of discussion by the rules committee before a final draft is presented to the Utah Supreme Court for its approval. After the Court hears the recommendation, the proposed rule is posted for public comment. If no comments are received—or if the comments are all favorable to the rule and if the Court favors the proposed change—it will be adopted by the Court. It there are opposing comments, the Court usually asks the rules committee to review and respond to them; then the Court makes its final decision. It is through this painstaking process that, under the direction of the Utah Supreme Court, attorneys and non-attorneys have developed an effective and fair set of ethics rules and procedures for attorney discipline.

 

For more about the discipline process, see The Salt Lake Tribune’s March 4 op-ed piece.