Without doubt the most unpleasant interaction any lawyer may have with the State Bar occurs upon the filing of a "bar complaint." Although most lawyers will never be faced with a complaint, many will, no matter how careful or ethical they may be. Some complaints are warranted; others are not. For lawyers who practice in certain areas (notably domestic law) bar complaints are as inevitable as death or taxes.
Because any lawyer may become the object of a bar complaint, I offer the following primer on the bar disciplinary procedure.
A common misconception is that the legal profession, unlike other professions, regulates itself. This is not true. What is true is that the legal profession is regulated by the judicial branch of government, unlike other professions which are regulated by the executive branch of government, through the Department of Occupational and Professional Licensing (DOPL). This distinction is mandated by the Utah Constitution as a separation of powers issue.
In order to discharge its responsibility to regulate the practice of law, the Utah Supreme Court has adopted a procedure set forth in the Rules of Lawyer Discipline and Disability. These Rules are available on the Bar web site: http://www.utahbar.org
The Rules provide for the appointment of an Ethics and Discipline Committee consisting of 26 lawyers and 8 public members. The current Chair of the Committee is James B. Lee. The current Vice-Chair is R. Clark Arnold. The Committee is divided into four screening panels. A quorum of a screening panel is three lawyers and one public member. The panel membership rotates. It is important to note that the Bar has nothing to do with the appointment of the Committee, its chair, or the screening panels. They are appointed by and are entirely answerable to the Supreme Court.
The Bar is responsible to appoint and fund disciplinary counsel, the Office of Professional Conduct (OPC). This is essentially the prosecutorial function, although that phrase may not be quite accurate because the proceeding is civil. Its senior counsel, Billy L. Walker, supervises this office. He is responsible to the Bar's Executive Director, John Baldwin.
There are two important points here: (1) neither the Bar nor OPC have any authority to discipline lawyers. Only the courts or the screening panels have that authority. (2) Although the Bar funds and oversees the activities of OPC, the Bar's Executive Director and the Bar Commissioners do not supervise or interfere with individual cases.
As a matter of policy, OPC is given its professional independence. If OPC were to consistently fail to perform, Senior Counsel would be replaced, but the Bar Commission would not intervene in an individual case.
A Bar inquiry is usually initiated by a complaint, but this is not always so. OPC may proceed on information received from other sources, such as media reports or request for assistance to the Consumer Assistance Advocate.
Intake attorneys screen complaints and information received from other sources at weekly case status meetings. OPC may choose to dismiss, decline to prosecute, or refer to the Committee for hearing. Many complaints are groundless on their face, and are dismissed summarily. If OPC determines that the complaint may have merit, it undertakes an investigation. The attorney is given notice and is required to respond to the complaint. The complainant is given a copy of the attorney's response, and can file a response. In appropriate cases, witnesses are contacted and interviewed. At any point during the process, OPC is willing to conduct settlement discussions with the attorney. Although the attorney and the complainant may come to a settlement of their differences, OPC will continue to pursue the complaint if OPC believes the facts warrant disciplinary action.
If OPC declines to prosecute, the complainant may appeal this decision to the chair of the Ethics and Discipline Committee. The chair may instruct OPC to proceed with prosecution. Although not a frequent occurrence, this happens occasionally. This differs from criminal procedures where the prosecutor has the absolute right to decline to prosecute, and provides the public an additional protection.
After the attorney has had an opportunity to respond, the case is heard by the screening panel. The panel may dismiss for lack of merit, dismiss with a letter of caution, dismiss upon conditions (CLE, restitution, etc.), recommend admonishment, or find probable cause that a formal complaint be filed with the district court. If the panel recommends admonishment, the attorney may file an exception to the recommendation.
Should the panel determine that a complaint should be filed in district court, OPC prepares the complaint for the signature of the Committee Chair. If no settlement is reached the case is set for bench trial. The trial is a bifurcated proceeding; the first portion adjudicates the charge of misconduct, the second portion relates to sanctions. The judge can order: admonition, CLE or ethics school, public reprimand, restitution, probation, suspension, disbarment, or some combination.
The disciplinary procedure consumes a large part of the Bar budget, and is by far the largest single item of expenditure of Bar license fees. Bar Commissioners receive more complaints about the disciplinary process than any other issue. The disciplinary process has been studied and restudied several times and significant changes have been made with every study.
I believe most lawyers and Bar leaders agree on several fundamental principles. First, the process should embody full due process to both the attorney and the complainant. The adjudication of a Bar complaint is full of due process. The regulation of every other profession by DOPL is shorter, cheaper and more arbitrary than the regulation of lawyers. The stakes are high here. To the lawyer, the right to practice the profession is immensely valuable. To the public, the right to be protected from unscrupulous lawyers is immensely valuable. To the profession, the ability to maintain the public's confidence is immensely valuable. This is not a place to short shrift process.
Second, most but not all lawyers agree that the process should bend over backward in favor of the complainant. This attitude is also evident in the opinions of the supreme court. If we are to maintain public confidence in the process, we cannot be perceived as a "good old boy" system that looks the other way in the face of attorney misconduct. The Bar Commission has been presented with several proposals to make the filing of a bar complaint more difficult to discourage frivolous complaints. These proposals include a filing fee, a bond or a shorter statute of limitations. The Commission has unanimously rejected these proposals. We just cannot be perceived as trying to shield lawyers from discipline.
It is very awkward to have OPC, ostensibly controlled by the Bar, as the prosecutor of Bar members. Many who are accused feel, perhaps rightly, that the Bar should be their defender, not their prosecutor. The alternative - turning lawyer discipline over to DOPL - is much worse, however. The stakes are just too high to revert to a lower level of due process than we now require.
The bottom line effect of this process is that it is a real pain for lawyers who are the object of a bar complaint. In practice, any complaint, that can be read to have some possible merit, is investigated. Even when OPC decides that it would be wise not to prosecute, the Committee Chair or Vice-Chair may order OPC to proceed. The lawyer is forced to spend huge amounts of time responding to the complaint, even if eventually shown to be groundless. Especially if you don't live on the Wasatch Front, you can spend a fortune in time defending one of these claims.
If you are the object of a Bar complaint, you are entitled to not only the due process embodied in the rules, but also you have a right to be treated with courtesy, respect, and professionalism. You have a right to have phone calls taken by OPC staff or returned in a timely manner. You have a right to have your disciplinary case processed in a timely manner. Both OPC and the Bar are very committed to these principles. Although the Bar will not intervene in the merits of a case, we are very concerned that OPC exhibits the highest standards of professionalism. Both Billy Walker and John Baldwin as well as all of the lawyers in the OPC are committed to these principles. If you feel you have not been accorded these rights, Billy Walker is very interested in hearing from you. Or you may contact John Baldwin. Or, if you feel more comfortable, you may contact me or any Bar Commissioner.
I'm convinced that although our current process could be improved, it is fundamentally sound. It is good for the public, in that while there are many dissatisfied complainants, the process bends over backward to address complaints. It is good for the taxpayers, in that it is completely financed by Bar license fees with no cost to the taxpayer, direct or indirect. It is good for the profession in that it enables us to take care of our own bad apples while assuring that accused lawyers have complete due process rights.
Its down side is: It's a real pain if you are the object of a bar complaint. That's the price we pay.