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The Utah Supreme Court governs the licensing and discipline of lawyers
in Utah. The process of investigating alleged misconduct, the administration
of disciplinary hearings and the possibility of disciplinary action
against lawyers is set out in the Court’s Rules of Lawyer Discipline
and Disability. The rules are found in the Utah
Code of Judicial Administration under the court’s Rules of Professional Practice. The rules are
administered jointly by the Bar’s Office of Professional Conduct
and by the Court’s Ethics and Discipline Committee and the Committee’s
screening panels. The Committee and its screening panels are appointed
by the Court and are made up of community representatives and lawyers.
The purpose of the lawyer disciplinary process is to ensure and maintain
a high standard of professional conduct by those who undertake the
discharge of professional responsibilities as lawyers, to protect the
public, and promote the administration of justice. The Bar staff and
the Committee members will make every effort to treat each participant
in the process with courtesy, respect and professionalism. The Bar
is committed to responding timely to inquiries about the status of
disciplinary proceedings and requests for ethical guidance.
The Utah State Bar Office of Professional Conduct has prepared answers
to frequently asked questions to help members of the public and lawyers
to better understand what happens after a complaint against a lawyer
is filed. The answers do not create any rights, are complete only for
the specific question and are provided as a public service to generally
explain disciplinary proceedings.
In the event of any conflict or incompleteness between the
explanations and the rules, the rules alone will govern.
If you have questions about the rules or concerns about the actions
of the Bar staff or the Committee, you may contact the following:
Billy Walker, OPC Senior Attorney: (801)531-9110 or opc@utahbar.org
Bruce Maak, Committee Chair: (801) 532-7840 or bmaak@parrbrown.com
John
Baldwin, Bar Executive Director: (801) 297-7028 or john.baldwin@utahbar.org
Table of Questions
General Disciplinary Proceedings
1. What rules govern general disciplinary proceedings?
2. Is either the lawyer or complainant entitled
to an attorney?
3. What is the standard of proof and who has the
burden of proof?
4. What can a lawyer or complainant expect regarding
the length of the process?
5. What information will be given regarding the
status of the case?
6. Is there a statute of limitation applicable
to disciplinary proceedings?
7. What notice is the lawyer or complainant entitled
to?
8. Does a lawyer have an opportunity to respond
to an informal complaint?
9. Is a complainant entitled to see this response?
10. Can a lawyer get an extension of time to
respond to the informal complaint?
11. What are a lawyer’s and a complainant’s
rights at a screening panel hearing?
12. Can the disciplinary proceedings be held
in abeyance (temporarily put on hold) if a lawyer is involved in pending
criminal or civil litigation?
13. What if a lawyer settles with a client
who has filed an informal complaint, or the complainant is unwilling
to prosecute a complaint?
14. What happens if the screening panel directs
the Bar to file a formal complaint against a lawyer in district court?
15. Can a lawyer, a complainant, or the Bar,
engage in discovery (requests for information) prior to a formal complaint
being filed against a lawyer in district court?
16. Can a lawyer propose a settlement of a disciplinary
action pending against him or her and can the complainant object to
any settlement?
17. Can a lawyer simply resign from the Bar when
there are disciplinary proceedings pending against him or her?
18. What review is available for lawyers and
complainants for decisions made by the Bar, recommendations made by
a screening panel, or orders entered by a district court?
19. How long will any discipline that a lawyer
receives count against him or her?
20. How long are the records kept?
21. What information is publicly available about
informal complaints against a lawyer, any pending district court
actions, or a lawyer’s disciplinary record?
22. What if a lawyer is disciplined in Utah and
is licensed in other jurisdictions?
Interim Suspension Proceedings
23. What notice is
a lawyer entitled to?
24. Is a lawyer entitled to a hearing before being
placed on interim suspension?
25. What is the standard of proof in interim
suspension proceedings?
26. Can a lawyer petition a district court to
dissolve an order of interim suspension?
Reinstatement and Readmission Proceedings
27. When can a lawyer petition for reinstatement
after a suspension?
28. When can a lawyer petition for readmission
after disbarment?
29. When can a lawyer petition for readmission
if he or she was placed on interim suspension and then disbarred?
30. What if the Bar opposes a lawyer’s
petition?
31. Are reinstatement or readmission proceedings
confidential?
32. What is the standard of proof in reinstatement
and readmission proceedings and who has the burden of proof?
33. When can a lawyer petition again if the district
court rejects his or her petition?
34. What happens if a lawyer has been
suspended or disbarred in Utah based solely upon discipline imposed
by another jurisdiction and he or she is reinstated or readmitted in
the other jurisdiction?
Disability Proceedings
35. What if a lawyer is disabled?
36. What notice is a lawyer entitled to?
37. If a lawyer is unable to represent him or
herself can he or she get counsel?
38. How is a disability status terminated?
39. What rules govern disability proceedings?
40. What is the standard of proof and who has
the burden?
41. Are disability proceedings and their results
confidential?
42. Can the disability proceedings be held in
abeyance (temporarily put on hold) if a lawyer is involved in pending
criminal or civil litigation?
43. What if a lawyer who is also licensed in
other jurisdictions is placed on disability status in Utah?
General Disciplinary Proceedings
General Bar disciplinary proceedings usually begin when a member of
the public files a complaint with the Bar which asserts that a lawyer
has engaged in unethical conduct or violated the Rules of Professional
Conduct. A complaint filed by a member of the public or initiated by
the Bar itself is called an “informal complaint.” If the
Bar has investigated the informal complaint and presented the results
of the investigation to a screening panel and if the screening panel
concludes that probable cause exists to support the assertion, the
Bar may file a “formal complaint” in a district court.
1. What rules govern general disciplinary proceedings?
All disciplinary proceedings, including those following informal and
formal complaints, are conducted in accordance with the process described
in the Rules of Lawyer Discipline and Disability (the “Rules”).
The Rules are construed to achieve “substantial justice and fairness
in disciplinary matters with dispatch and at the least expense to all
concerned parties.”
- If a lawyer is been found to have engaged
in misconduct, the Standards for Imposing Lawyer Sanctions govern the
imposition of sanctions. The standards are found in the Utah Code Annotated.
- Service of a formal complaint is made under the Utah Rules of Civil
Procedure.
- Service of any other papers or notices required by the Rules is
made under the Utah Rules of Civil Procedure.
- The Utah Rules of Civil Procedure, the Utah Rules of Appellate
Procedure, and the Utah Rules of Evidence apply in formal disciplinary
actions.
- Appeals of District Court orders of public discipline are made
pursuant to the Utah Rules of Appellate Procedure.
Back to question index
2. Is either the lawyer or complainant entitled to an attorney?
- No. The Rules do not provide for a right to counsel for lawyers
or complainants in disciplinary proceedings. In this regard, disciplinary
proceedings are civil in nature not criminal. The complainant may
be represented by counsel or some other representative in a disciplinary
proceeding. The Bar encourages lawyers to seek legal counsel.
Back to question index
3. What is the standard of proof and who has the burden of
proof?
- Formal complaints are established by a preponderance of the evidence.
The Bar has the burden of proof in proceedings seeking discipline.
- The lawyer has the burden of proof in proceedings in which he or
she seeks a reversal of a Screening Panel recommendation of a private
admonition or the recommendation of a public reprimand.
Back to question index
4. What can a lawyer or complainant expect regarding the length
of the process?
- The Rules do not outline specific time-frames for the investigation
and processing of a disciplinary complaint. The Bar makes every effort
to investigate and process a case as quickly as possible.
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5. What information will be given regarding the status of
the case?
- The Bar must advise the complainant of its initial consideration
of the informal complaint within three months after it has been filed
and must promptly advise the complainant in writing of the subsequent
disposition of the informal complaint and the reasons for the disposition.
The Bar must also promptly notify the complainant and the lawyer
of the disposition of each matter.
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6. Is there a statute of limitation applicable to disciplinary
proceedings?
- Yes. Proceedings under the Rules must be commenced by the Bar within
four years of the discovery of the acts allegedly constituting a
violation of the Rules of Professional Conduct.
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7. What notice is the lawyer or complainant entitled to?
- Prior to sending a disciplinary complaint to a Screening Panel,
the lawyer will be served with a Notice of Informal Complaint by
regular mail at the address on record at the Bar, attached to which
is a true copy of the signed informal complaint, identifying the
possible violation(s) of the Rules of Professional Conduct raised
by the informal complaint as preliminarily determined by the Bar.
Whether or not a disciplinary complaint goes to a Screening Panel,
as part of the Bar’s screening and investigative process, it
is the Bar’s practice to notify lawyers of all properly notarized,
verified and signed informal complaints.
- The lawyer has at least 30-days notice of a hearing before a screening
panel.
The Rules do not require that the complainant receive a copy of the
Notice of Informal complaint or a copy of the Notice of Hearing before
a screening panel. However, since the complainant has a right to
appear at the screening panel, testify and bring witnesses (see below),
as a matter of policy, the Bar sends a notice of the screening panel
hearing to the complainant at the same time it sends it to the lawyer,
and the Bar also, prior to the hearing, sends a copy of the Notice
of Informal Complaint to the complainant along with all the information
the Bar will present to the screening panel.
- The lawyer and complainant are promptly notified of the disposition
of each informal complaint brought against the lawyer.
- The Bar notifies a lawyer and complainant by regular mail of a screening
panel decision to dismiss an informal complaint.
- A lawyer is served by regular mail at his or her address on record
at the Bar with a copy of a screening panel’s written recommendation
that he or she be admonished or publicly reprimanded.
- A lawyer is served by regular mail at his or her address on record
at the Bar prior to delivery of the screening panel’s recommendation
to the Committee chair.
- The recommendation states the substance and nature of the informal
complaint and defenses and the basis upon which the screening panel
has concluded, by a preponderance of the evidence, that the lawyer
should be privately admonished or publicly reprimanded.
- The lawyer may within 30 days from this notice file an exception
to the screening panel’s recommendation of a private admonition
or to the recommendation of a public reprimand.
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8. Does a lawyer have an opportunity to respond to an informal
complaint?
- Yes. A lawyer is required to submit a written and signed answer
to a Notice of Informal Complaint setting forth in full an explanation
of the facts surrounding the informal complaint, together with all
defenses and responses to the claims of possible misconduct.
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9. Is a complainant entitled to see this response?
- Yes. The Bar forwards a copy of the answer, if any, to the complainant.
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10. Can a lawyer get an extension of time to respond to the
informal complaint?
- Yes. The lawyer must file with the Bar within 20 days a written
and signed answer to the Notice of Informal Complaint, but for good
cause shown, the Bar may extend to time for filing an answer for
up to an additional 30 days.
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11. What are a lawyer’s and a complainant’s
rights at a screening panel hearing?
- The lawyer may appear before a screening panel and the complainant
has the right to appear before the screening panel and testify under
oath.
- The lawyer may and the complainant shall have the right to call
witnesses to testify under oath before the screening panel.
- Direct cross-examination is prohibited at screening panels except with request, and panel chair determines if it will materially assist panel.
- The lawyer may present to the screening panel an oral argument
with respect to the informal complaint.
- The lawyer may submit a written brief up to ten pages in length.
For good cause shown, the Committee chair or the chair’s delegate
may extend the length of the brief. A copy of the brief will be forwarded
by the Bar to the complainant.
- The lawyer and the complainant have the right to be present during
the presentation of evidence unless excluded by the screening panel
chair for good cause shown.
- Except as otherwise provided in the Rules, the lawyer may be present
before a screening panel whenever the Bar counsel is present.
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12. Can the disciplinary proceedings be held in abeyance (temporarily
put on hold) if a lawyer is involved in pending criminal or civil
litigation?
- Yes. The Committee may hold in abeyance a disciplinary proceeding
prior to the filing of a formal complaint when the allegations of
the informal complaint contain matters of substantial similarity
to the material allegations of pending criminal or civil litigation
in which the lawyer is involved.
- Upon a showing of good cause, a formal action may be stayed because
of substantial similarity to the material allegations of a pending
criminal, civil, or disciplinary action.
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13. What if a lawyer settles with a client who has filed an
informal complaint or the complainant is unwilling to prosecute the
complaint?
- Neither unwillingness of the complainant to prosecute an informal
or formal complaint, nor settlement or compromise between the complainant
and the lawyer, nor restitution by the lawyer, shall, in and of itself,
justify discontinuing disciplinary proceedings.
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14. What happens if the screening panel directs the Bar to
file a formal complaint against a lawyer in district court?
- The action is filed and the trial shall be held in the county in
which an alleged misconduct occurred or in the county where the lawyer
resides or practices law or last practiced law in Utah.
- If the lawyer is not a resident of Utah and the alleged misconduct
is not committed in Utah, the trial shall be held in a county designated
by the Chief Justice of the Utah Supreme Court.
- The lawyer or the Bar may, within 30 days after filing the action
or prior to the notice of trial setting, whichever comes first, request
a change of the judge assigned to the case.
- The Rules do not provide for a jury trial. The judge makes a decision
and enters findings of fact and conclusions of law.
- The proceedings are divided into an adjudication proceeding and
if there is a finding of misconduct, a separate sanctions hearing
as soon as reasonably practicable, but not more than 30 days after
entry of the findings of fact and conclusions of law. At the sanctions
hearing, the lawyer may offer relevant evidence of mitigation and
the Bar may offer evidence of aggravation. The district court shall
enter an order sanctioning the lawyer within 5 days after the sanctions
hearing.
- The imposition of sanctions are be governed by the Standards for
Imposing Lawyer Sanctions.
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15. Can a lawyer, a complainant, or the Bar, engage in discovery
(requests for information) prior to a formal complaint being filed
against a lawyer in district court?
- Yes. Any party, for good cause shown, may petition under seal the
district court for issuance of a subpoena, subpoena duces tecum,
or any order allowing discovery prior to the filing of a formal complaint.
Except for good cause shown, all petitions shall require a five-day
written notice to the opposing party prior to the issuance of an
order of subpoena.
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16. Can a lawyer propose a settlement of a disciplinary action
pending against him or her and can the complainant object to any
settlement?
- Yes. Before a formal complaint is filed, a lawyer may offer the
Bar a proposal for discipline by consent based on conditional admissions
in exchange for a disciplinary sanction, and final disposition of
the informal complaint. The proposal must include a waiver of a right
to screening panel and the disciplinary sanction proposal should
be consistent with disciplinary sanction authority of the Committee
chair. The Bar forwards the proposal to the Committee chair, with
a recommendation as to its disposition. The chair either accepts
or rejects the proposal. If the chair accepts the proposal, it enters
the appropriate order. If the proposed discipline by consent is rejected,
the proposal and the admissions shall be withdrawn and cannot be
used against the lawyer.
- After a formal complaint is filed, a lawyer may offer the Bar a
conditional admission to the complaint or a particular count in exchange
for a stated form of discipline and final disposition of the formal
complaint. The Bar forwards the proposal to the district court with
a recommendation for its disposition, which the court may either
accept or reject.
- If the district court accepts the proposal and the proposed discipline
includes public discipline, it enters the appropriate order. If the
proposed discipline by consent is rejected, the proposal and the
admissions shall be withdrawn and cannot be used against the lawyer.
- The Rules do not provide that a complainant may object to any proposed
settlement between the Bar and the lawyer.
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17. Can a lawyer simply resign from the Bar when there are
disciplinary proceedings pending against him or her?
- Yes. The Utah Supreme Court and the Bar continue to have disciplinary
jurisdiction over any formerly admitted lawyer with respect to acts
committed while admitted to practice in Utah. A lawyer may resign
from the Bar, prior to the adjudication of a pending complaint, with
the consent of the Supreme Court.
- The lawyer submits a Petition for Resignation with Discipline Pending,
to which the Bar may object or consent. If the Bar objects, the matter
is set for a hearing in district court. If the Bar consents, the
Supreme Court shall review the petition and enter an appropriate
order.
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18. What review is available for lawyers and complainants
for decisions made by the Bar, recommendations made by a screening
panel, or orders entered by a district court?
- If the Bar dismisses an informal complaint because it is frivolous,
unintelligible, barred by the statute of limitations, more adequately
addressed in another forum, or unsupported by fact, or which does
not raise the probable cause of any unprofessional conduct or which
the Bar declines to prosecute, and the complainant appeals the dismissal
to the chair of the Committee, the chair conducts a de novo (new)
review of the file and may either affirm the dismissal or require
the Bar to prepare a Notice of Informal Complaint for hearing by
a screening panel.
- The lawyer may file with the Committee chair an exception to a
screening panel’s recommendation to discipline the lawyer with
an admonition or a public reprimand.
- The lawyer may also request a hearing.
- The Committee chair or a designated screening panel chair will
hear the matter as soon as possible. The lawyer may be present for
the hearing and may call the complainant as an adverse witness for
purposes of cross-examination.
- Any discipline order by the district court may be submitted for
review by the lawyer or the Bar to the Utah Supreme Court pursuant
to the Utah Rules of Appellate Procedure. The complainant shall not
have a right of appeal except as provided specifically in the rules
for the appeal of a dismissal of an informal complaint.
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19. How long will discipline that a lawyer receives count
against him or her?
- In determining an appropriate sanction and only after having found
unethical conduct, a screening panel may consider discipline imposed
against a lawyer within the five years immediately preceding the
alleged offense. However, the Rules do not set a time limit for consideration
of prior discipline for disciplinary actions before the district
court. Under the Standards, when a lawyer engages in misconduct similar
to that for which the lawyer has previously been disciplined, the
appropriate sanction will generally be one level more severe than
the sanction the lawyer previously received, provided that the harm
requisite for the higher sanction is present. A prior record of discipline
may constitute an aggravating circumstance that may justify an increase
in the degree of discipline to be imposed.
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20. How long are the records kept?
- After seven years the Bar expunges all records or other evidence
of the existence of any informal complaint terminated by dismissal
or a declination to prosecute. The lawyer will be given prompt written
notice of the expungement.
- All screening panel testimony is recorded and preserved so long
as proceedings are pending, and in any event, not less than six months
following the hearing.
- The Bar maintains records of other discipline and disability matters
permanently.
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21. What information is publicly available
about informal complaints against a lawyer, any pending district
court actions, or a lawyer’s disciplinary record?
- After a file has been expunged at the end of seven years because
an informal complaint was terminated by dismissal or a declination
to prosecute, the Bar will respond to inquiries about the matter
by stating that “there is no record of such matter.” The
lawyer may answer any inquiry requiring a reference to an expunged
matter by stating that “no formal complaint was made.”
- Prior to filing a formal complaint against a lawyer in district
court, or the issuance of a public reprimand order by the chair of
the Committee pursuant to the Rules, the proceeding is confidential
except that the pendency, subject matter, and status of an investigation
may be disclosed by the Bar if the proceeding is based on allegations
that have been disseminated through the mass media, or include either
the conviction of a crime or reciprocal discipline.
- The proceeding is not deemed confidential if the lawyer has waived
confidentiality; if there is a need to notify another person or organization
in order to protect the public, the administration of justice, or
the legal profession; or the information is required in a subsequent
sanctions hearing.
- The district court for good cause shown may issue a protective
order prohibiting the disclosure of specific information and direct
that the proceedings be conducted so as to implement the order.
- Requests for non-public information shall be denied unless the
request is made by the Board of Commissioners, any Bar committee,
or the Executive Director of the Bar, and is required for the furtherance
of their duties. If the information is provided the lawyer is notified
in writing which identifies what information has been requested and
by whom, together with a copy of the information proposed to be released.
The lawyer has 21 days following the mailing of the notice to object
to the disclosure. If the lawyer objects, the information shall remain
confidential unless the requesting party obtains a court order authorizing
its release.
- If an otherwise authorized requesting party has not obtained a
waiver from the lawyer, and wants nonpublic information without giving
notice to the lawyer, the requesting party must certify specific
things identified in the rule.
- The Bar can disclose non-public information without notice to the
lawyer if the disclosure is made in the furtherance of an ongoing
misconduct investigation of that lawyer and the information sought
through that disclosure is essential to that investigation.
- Notices of suspension, disbarment, resignation with discipline
pending, transfer to and from disability status, and petitions for
reinstatements or re-admissions are published in the Utah
Bar Journal and in a newspaper of general circulation in each judicial district
within the state in which the lawyer maintained an office for the
practice of law. Additionally, carrying out its responsibility to
provide informal guidance on issues related to professional conduct,
the Bar publishes disciplinary results in the Utah
Bar Journal. The
Bar publishes summaries of private admonitions but omits any details
which identify the lawyer.
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22. What if a lawyer is disciplined in Utah and is licensed
in other jurisdictions?
- The Bar transmits notice of public discipline and resignation with
discipline pending to the disciplinary enforcement agency of every
jurisdiction in which the lawyer is admitted, and to the National
Discipline Data Bank maintained by the American Bar Association.
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Interim Suspension Proceedings
The Rules provide that the Bar may seek a lawyer’s interim suspension
pending final resolution of a disciplinary proceeding. These include
situations where a lawyer poses a substantial threat of irreparable
harm to the public and has either committed a violation of the Rules
of Professional Conduct or is under a disability (Rule
14-518), and
situations in which a lawyer is convicted of a crime that reflects
adversely on the lawyer’s honesty, trustworthiness, or fitness
as a lawyer in other respects (Rule
14-519).
23. What notice is a lawyer entitled to?
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24. Is a lawyer entitled to a hearing before being placed
on interim suspension?
- Yes. If the Bar files a petition pursuant to Rule
14-518, the district
court conducts a hearing before the lawyer is placed on interim suspension.
- There is no provision for a hearing under Rule
14-519. The lawyer
may, however, assert any jurisdictional deficiency which establishes
the interim suspension may not properly be ordered, such as that
the crime does not reflect adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects, or that
the lawyer is not the individual convicted.
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25. What is the standard of proof in interim suspension proceedings?
- Petitions for interim suspension pursuant to Rule
14-518 must be
established by clear and convincing evidence.
- In interim suspension proceedings pursuant to Rule
14-519, a certified
copy of a judgment of conviction constitutes conclusive evidence
that the lawyer committed the crime.
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26. Can a lawyer petition the district court to dissolve the
order of interim suspension?
- Yes. Under both Rule
14-518 and Rule
14-519, the lawyer may move
for dissolution of the order of suspension, and in that event, the
motion shall be heard and determined as soon as practicable. If a
lawyer is placed on interim suspension pursuant to Rule
14-519 and
the underlying conviction is reversed or vacated, the order of suspension
will be vacated.
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Reinstatement and Readmission Proceedings
When a lawyer has been suspended from the practice of law for violations
of the Rules of Professional Conduct (as contrasted with failure to
pay the annual licensing fee or comply with mandatory continuing legal
education requirements) and seeks to return to active status, the proceedings
are termed “reinstatement proceedings.” When a lawyer has
been disbarred and seeks to regain his or her license, the proceedings
are termed “readmission proceedings.”
27. When can a lawyer petition for reinstatement after a suspension?
- If the suspension has been for a period of six months or less,
the lawyer shall be reinstated at the end of the period upon filing
with the district court and serving upon the Bar an affidavit stating
that the lawyer has fully complied with the requirements of the suspension
order. If the Bar objects in a timely manner, the district court
conducts a hearing.
- If the suspension is for more than six months, the lawyer must
petition the district court for reinstatement.
- The lawyer must wait to petition until three months before the
period for suspension has expired.
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28. When can a lawyer petition for readmission after disbarment?
- A lawyer may petition for readmission no fewer than five years
after the effective date of the disbarment.
- Prior to the filing of a petition for readmission, the lawyer must
receive a report and recommendation from the Bar’s Character
and Fitness Committee, the lawyer must satisfy all other requirements
as set forth in the Bar’s Rules Governing Admission.
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29. When can a lawyer petition for readmission if he or she
was placed on interim suspension, then disbarred?
- If the lawyer was disbarred for the same misconduct that was the
ground for interim suspension, the lawyer may petition for readmission
at the expiration of five years from the effective date of the interim
suspension.
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30. What if the Bar opposes a lawyer’s
petition?
- The district court conducts a hearing at which the lawyer has the
burden of demonstrating by a preponderance of the evidence that he
or she has met each of the criteria set in Rule
14-525, or if not,
that there is good and sufficient reason why the lawyer should nevertheless
be reinstated or readmitted.
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31. Are reinstatement or readmission proceedings confidential?
- No. Upon the filing of a petition for reinstatement, the proceeding
is public. When a lawyer files a petition for reinstatement or readmission,
the Bar publishes a notice of the petition in the Utah
Bar Journal and a newspaper of general circulation in each judicial district
within the state in which the lawyer maintained an office for the
practice of law.
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32. What is the standard of proof in reinstatement and readmission
proceedings and who has the burden of proof?
- Petitions for reinstatement and readmission shall be established
by a preponderance of the evidence. The burden of proof in proceedings
seeking reinstatement or readmission is on the lawyer.
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33. When can a lawyer petition again if the district court
rejects his or her petition?
- Unless otherwise ordered by the district court, a lawyer may not
apply for reinstatement or readmission within one year following
an adverse judgment upon a petition.
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34. What happens if a lawyer has been suspended or disbarred
in Utah based solely upon discipline imposed by another jurisdiction,
and he or she is reinstated or readmitted in the other jurisdiction?
- The lawyer may petition for reciprocal reinstatement or readmission
in Utah. If the Bar objects in a timely manner, the district court
will hold a hearing.
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Disability Proceedings
If a lawyer has been judicially declared incompetent or is involuntarily
committed on the grounds of incompetency, the Bar may file a petition
with the district court for the immediate transfer of the lawyer to
disability status for an indefinite period until further order of the
district court.
If a lawyer alleges in the course of a disciplinary proceeding an
inability to assist in his or her defense due to mental or physical
incapacity, the district court shall immediately transfer the lawyer
to disability status pending determination of the incapacity. If the
district court finds the claim is valid, the disciplinary proceedings
are deferred until the lawyer is returned to active status. If the
district court finds the claim invalid, the disciplinary proceedings
resume.
35. What if a lawyer is disabled?
- Information relating to a lawyer’s physical or mental condition
which adversely affects the lawyer’s ability to practice law
shall be investigated, and where warranted, shall be the subject
of formal proceedings to determine whether the lawyer shall be transferred
to disability status.
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36. What notice is a lawyer entitled to?
- The Bar will serve a copy of the order transferring the lawyer
to disability status upon the lawyer, the lawyer’s guardian,
or, if no guardian or legal representative has been appointed, upon
the director of the institution to which the lawyer has been committed.
The district court then provides a notice to the lawyer of proceedings
in the matter as it deems proper and advisable.
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37. If a lawyer is unable to represent him or herself in a
disability proceeding, can he or she get counsel?
- The district court may appoint counsel to represent the lawyer
if the lawyer is without adequate representation.
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38. How is a disability status terminated?
- Any lawyer transferred to disability status shall be entitled to
petition for transfer to active status once a year, or at whatever
shorter intervals the district court may direct.
- The district court grants the petition upon a showing by clear
and convincing evidence that the disability has been removed.
- If a lawyer transferred to disability status on the basis of a
judicial determination of incompetence is subsequently declared to
be competent, the district court may dispense with further evidence
that the lawyer’s disability has been removed and immediately
order the lawyer’s reinstatement to active status.
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39. What rules govern disability proceedings?
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40. What is the standard of proof in disability proceedings
and who has the burden of proof?
- Petitions for transfer to and from disability status are established
by a preponderance of the evidence.
- The district court grants a petition for transfer to active status
upon a showing by clear and convincing evidence that the disability
has been removed.
- If a lawyer transferred to disability status on the basis of a
judicial determination of incompetence is subsequently declared to
be competent, the district court may dispense with further evidence
that the lawyer’s disability has been removed and immediately
order the lawyer’s reinstatement to active status.
- The burden of proof in proceedings seeking transfer to disability
status is on the Bar. The burden of proof in proceedings seeking
transfer from disability status is on the lawyer.
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41. Are disability proceedings and their results confidential?
- Proceedings for transfer to or from disability status are confidential.
All orders transferring a lawyer to or from disability status are
public.
- Hearings shall be conducted in the same manner as disciplinary
proceedings, except that all of the proceedings shall be confidential.
A notice of transfer to disability status will be published in the Utah
Bar Journal and in a newspaper of general circulation in each
judicial district within the state in which the lawyer maintained
an office for the practice of law.
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42. Can the disability proceedings be held in abeyance (temporarily
put on hold) if a lawyer is involved in pending criminal or civil
litigation?
- Yes. Upon a showing of good cause, a disability proceeding may
be stayed because of substantial similarity to the material allegations
of a pending criminal, civil, or disciplinary action.
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43. What if a lawyer who is also licensed in other jurisdictions
is placed on disability status in Utah?
- The Bar transmits notice of transfers to or from disability status
to the disciplinary enforcement agency of every jurisdiction in which
the lawyer is admitted, and to the National Discipline Data Bank
maintained by the American Bar Association.
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