In response to recent concerns about how attorney discipline is handled, we would like to explain how the legal profession helps to ensure that lawyers in Utah practice in an ethical manner.
The Utah Constitution gives the Utah Supreme Court the responsibility to regulate the practice of law. The Utah State Bar was established in 1931 under the authority of the Utah Supreme Court to fulfill that responsibility, which includes licensing attorneys, providing continuing legal education and, when necessary, seeking the imposition of discipline.
Attorneys must pass an ethics exam and a character and fitness review before taking the Bar Exam. Once they have been admitted to practice, attorneys are required to follow the Utah Supreme Court’s Rules of Professional Conduct (also known as the ethics rules). In addition to following the ethics rules, Utah attorneys are subject to rules of civility and professionalism. And, of course, all attorneys are subject to the same laws and enjoy the same rights as every citizen.
The Utah Supreme Court monitors compliance with the ethics rules through the Office of Professional Conduct (OPC), which, although it is funded by Bar dues paid by attorneys, is independent of the Bar and its board of governance. The OPC reviews and investigates allegations of attorney misconduct to determine if there are grounds for discipline; the OPC also helps educate attorneys on the nuances of complying with the ethics rules.
The OPC uses the procedures established by the Utah Supreme Court’s Rules of Lawyer Discipline and Disability. The Standards for Imposing Lawyer Sanctions are used to impose any sanction following a determination that an attorney has violated the ethics rules.
In the attorney discipline system, the OPC acts as prosecutor. The adjudicator is, initially, the Utah Supreme Court’s Ethics and Discipline Committee, which includes lawyer and non-lawyer volunteers. The committee holds screening panel hearings (somewhat similar to probable cause hearings), and if it determines that the ethics rules have been violated, it has the authority to issue private admonitions or public reprimands. If more serious discipline appears to be warranted, the committee can direct the OPC to initiate a civil suit in district court.
Potential ethics rules violations are most often brought to the OPC’s attention by a complainant, but the OPC can also initiate complaints from knowledge it obtains through media stories, court findings and other sources.
The Utah Supreme Court rules direct the OPC and the complainant to maintain confidentiality. This protects accused attorneys from frivolous complaints. Following this rule, the public will not hear about the OPC initiating a complaint, investigating an issue, or preparing for a screening panel hearing. There should be no public announcement until the committee orders a public reprimand to be issued or a civil suit is filed.
When an attorney is the subject of an investigation by another entity, or is being criminally prosecuted, the OPC may choose to wait until those proceedings are concluded before holding a screening panel hearing. Such an approach may save resources, avoids duplicating efforts and enhances respondent participation (people may be reluctant to risk incriminating themselves while criminal charges are pending). The rules also allow a lawyer to request that a complaint be put on hold while other proceedings based on the same alleged conduct unfold.
The rule of law and respect for that rule is necessary for order to be maintained in our society. The legal profession recognizes the importance of ethics rules, and is committed to prosecuting ethical breaches by attorneys.
Curtis M. Jensen is the president of the Utah State Bar and a founding partner of Snow Jensen & Reece in St. George. Terrie McIntosh is chair of the Utah Supreme Court’s Ethics & Discipline Committee and a retired Salt Lake City attorney.
Copyright 2014 The Salt Lake Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.