Utah Bar Journal

A Short History of Professional Discipline for Attorneys In Utah

Professional Discipline Before the Bar's Integration
Published reports of attorney discipline appear in early volumes of the Utah Reports2 and the Pacific Reporter long before the Utah State Bar was integrated in 1931.3 In the pre-1931 era, accusations and information from various sources4 were filed directly with the Utah Supreme Court, which referred the matter to a prosecutor,5 and appointed a referee to take evidence, report findings and conclusions, and make recommendations to the Court. The Court sometimes made additional findings, and in any event, made conclusions and imposed discipline pursuant to its summary jurisdiction.6

It's hard to know for certain, but public discipline doesn't appear to have been imposed often. According to one early Bar publication, "For nearly fifty years and until after Statehood, the Utah Reports reveal no disciplinary action against a member of the Bar. In the subsequent thirty-one years until the organization of the State Bar, fifteen lawyers appeared before the Supreme Court in connection with charges of unethical conduct, . . ."7

The Integrated Bar's Efforts to Establish Procedural Rules for Investigating and Prosecuting Complaints

After the Utah State Bar's integration in 1931, the very first Utah Bar Bulletin, subtitled "Official Organ, The Utah State Bar," published a president's message identifying the means by which the organized Bar would work to eliminate public criticism of the profession, among other things "by enforcing strictly disciplinary rules of conduct among its members."8 One of the Commissioners was appointed to prepare and submit rules of conduct and discipline to the Board, and these were adopted by that body and submitted for approval to the Supreme Court.9

The Court approved the Rules of Conduct and Discipline of the Utah State Bar in October 1931, and they were published in the Utah Bar Bulletin that November.10 Pursuant to these rules, complaints were filed with the secretary of the Board of Bar Commissioners, who forwarded them to the Commissioner in whose division the respondent attorney last resided.11 The Commissioner had discretion to determine whether the charges justified an inquiry, and if so, to conduct a preliminary investigation and make a recommendation to the Board.12 If the Board determined that formal action was warranted, it appointed a Committee on Discipline to conduct the hearing.13 The Board could also appoint a Prosecuting Committee to present the case to the Committee on Discipline.14 Volunteer committees were appointed in each district, and their findings and recommendations were made to the Board of Commissioners, which reviewed the cases and in turn made recommendations to the Supreme Court.15

In January 1932, the Utah State Bar held its first annual meeting, which included reports and addresses similar to those published today in the Utah Bar Journal.16 Among these was the Secretary of the Board's report concerning disciplinary matters. By the next annual meeting, the Secretary's report observed, "Apparently as soon as the laity discovered that there was an organized bar with power and authority to proceed against attorneys for unethical actions, many persons who were unsuccessful in law suits, or who had quarreled with their attorneys[,] filed complaints against them."17 He noted that only one in ten complaints had merit, and many were "adjusted by calling the matter to the attorney's attention and requesting that he adjust the matter with his former client."18

The Transition From an All-Volunteer Disciplinary System

The Board and its committees quickly concluded that the work of investigating disciplinary matters might exceed what volunteer committees could accomplish. By the third annual meeting in 1934, one of the committees recommended using investigators to obtain evidence,19 and in May of that year, the Board approved the first such paid investigator to assist in a single case.20 Of course, the number of cases for which paid investigators were used increased over time, but they were used on an ad hoc basis.21

The Board took another big step in 1936, when it began discussing "securing the services of an attorney to conduct the prosecution of all disciplinary matters and matters pertaining to the unlawful practice of law" because it would permit handling disciplinary matters "with more promptness and dispatch."22 It appointed a committee to study the question and to propose a resolution for increasing the annual licensing fee to cover the cost.23 During that year's annual meeting, the president noted that attorneys sometimes are disinclined to prosecute their colleagues, that the Board occasionally had difficulty finding someone to do it, and endorsed the Board's plan to hire someone to undertake the prosecutions "whose work will be more efficient and vigorous."24

The Board had hired a prosecutor by early 1937, one Llewellyn O. Thomas, whose name thereafter appears among the Utah Bar Bulletin's list of officers and Board of Commissioners.25 Neither the State Bar Act nor the Revised Rules of Discipline of the Utah State Bar formally established this position, however.26 Thomas reported at the next annual meeting on a few disciplinary matters, but most of his report was devoted to unauthorized practice of law issues.27 Thomas's tenure lasted until his resignation in January 1954, at which point the Board "deferred to a future meeting" the appointment of a successor.28

The Board never hired anyone to replace Thomas; instead, disciplinary investigations and proceedings appear to have been conducted solely by volunteers, with some administrative oversight from the Utah State Bar's Executive Director, until the late 1970s.29

The Shift to Full-Time Salaried Disciplinary Staff

In 1977, the Utah State Bar hired a full time attorney to serve as Bar Counsel, with duties primarily focused on disciplinary matters, but also including general counsel responsibilities.30 Although there was some support staff for this position, there were no attorneys other than Bar Counsel investigating and prosecuting cases for another decade; by 1987, there were two attorneys, a paralegal, and two half-time secretaries.31

Complaints were investigated by Bar Counsel, or that position's successor, Chief Disciplinary Counsel for the Office of Attorney Discipline. Complaints could be sent to a Screening Panel for hearing, and the panels could impose private discipline, or issue a formal complaint. If a formal complaint was issued, the disciplinary office prosecuted the case before a Hearing Panel in a trial-like setting. The Hearing Panel's power was restricted to recommending discipline, in which case the matter proceeded to a hearing before the Board of Bar Commissioners where the disciplinary office also functioned as a prosecutor. The case could be appealed to the Utah Supreme Court.

Another significant development during this period was the move to new offices from the Bar's old offices at 425 East 100 South in Salt Lake City.32 In October 1987, ground was broken for the Law & Justice Center, and the Bar, including Bar Counsel, moved to this address in August 1988. One of the building's purposes was to provide offices for the staff, but also to provide space for disciplinary hearings.33

The responsibilities of the Chief Disciplinary Counsel were narrowed after a committee charged with reviewing the OAD submitted a written report that among other things recommended separating general counsel duties from those performed by the OAD.34 This included rules drafting, providing legal advice to the Board and its committees, and coordinating defense of litigation against the Bar. The Bar's full-time General Counsel has performed these functions since 1996.

Today's Procedural Structure and the Office of Professional Conduct

The Procedures of Discipline were repealed and replaced with the Rules of Lawyer Discipline and Disability, effective July 1, 1993.35 Thereafter, the Ethics and Discipline Committee could impose private discipline,36 and continued to act as a probable cause determiner, but formal proceedings were brought in district court, with appeals going directly to the Supreme Court. The Board is no longer part of the disciplinary process.

The Office of Attorney Discipline's name was changed to the Office of Professional Conduct in 1997. The Board believed this "more accurately reflect[s] the attempt to balance the practice obligation of helping lawyers understand their ethical obligations and provid[e] them with guidance on how to avoid problems with the need to protect the public and impose attorney discipline where appropriate."37 The Board set new priorities for the office, as well:

The Office of Professional Conduct represents the Utah State Bar in promoting and enforcing the ethical standards of the legal profession by:

Providing general education on ethical responsibilities;

Providing guidance in response to specific requests from Bar members and;

Investigating and resolving or prosecuting complaints equitably and efficiently.38

The OPC now employs six full-time attorneys, three of whom perform the intake functions of screening and investigations; the other three prosecute cases before the Screening Panels and the district court, and, when necessary, represent the OPC in cases appealed to the Supreme Court. Decisions concerning milestone events in a case, such as continued investigation, dismissals, referrals to a panel for hearing, and settlement decisions are made by group consensus at weekly meetings conducted under the supervision of the OPC's Senior Counsel.

An Ounce of Prevention Is Worth a Pound of Cure

The OPC and its predecessors assume that most attorneys will discharge their professional responsibilities in the manner required by the Rules of Professional Conduct. Consistent with this, the OPC offers a bi-annual day-long ethics school, provides informal guidance to attorneys seeking advice concerning their own contemplated conduct, and provides hours of continuing legal education presentations through the Bar's sections, county bar organizations, and other associations. The OPC's attorneys also regularly contribute articles to the Utah Bar Journal that attempt to offer practical information on subjects of what we hope are general interest; many of them are posted on the Bar's website for future reference. All of these activities further the OPC's duty, prescribed in the Rules of Lawyer Discipline and Disability, to "provide informal guidance on issues related to professional conduct to members of the Bar requesting guidance, [and] promote ethical conduct by the Bar."39

Perhaps the most influential, if not the most notorious, educational tool is the Discipline Corner of the Utah Bar Journal, which, I am told, is the section readers first turn to when the Journal arrives. Publishing disciplinary results is among the OPC's duties,40 and its purpose "is not only to alert the bench and bar that a particular lawyer's status has been changed or reaffirmed, but also to help educate others as to potentially problematic conduct."41

The Board of Bar Commissioners first noted the disposition of a disciplinary matter in November 1931 42 when it resolved to reprimand an attorney, who was not identified, for retaining a filing fee paid him by the client, and instead filing an affidavit of impecuniousity. The Utah State Bar's first publication of something resembling today's "Discipline Corner" appeared July 1932 under the caption "Disciplinary Matters."43 This merely reflected the Board's resolution, however, not the Supreme Court's decision.44 At any rate, by December 1932, the Board had "decided upon surveying the number of groundless complaints filed, to refrain from publishing names or detailed information unless a formal complaint is filed. . . . [T]he only purpose of the 'Bulletin' in reporting these matters at all is to give some idea of the number and general nature of the complaints."45

The Discipline Corner, captioned as such, was first published during the mid-1980s in the Utah Bar Letter, a monthly newsletter for Bar members.46 Although the Utah Bar Journal was published during those years, it did not include the Discipline Corner until 1988 when it adopted the format employed today. It continues as a regular feature of the Journal.

Recurring Themes
Several disciplinary themes have endured and seem likely to continue:

Public Confidence Can Only Be Maintained By Purging Our Ranks of Bad Apples
Lawyers have been the subject of criticism over a period of years. The cause and justification of this criticism can be removed only by the bar purging its own ranks. All members of the bar should lend themselves to this end, whether members of the Commission, Grievance Committee, or otherwise.47

Similar views were regularly repeated in the Bar publications reviewed for this article.

Is Professional Discipline Persecution, or Prosecution?
The debate about whether the attorney regulatory system goes too far is as old as the Bar as an institution. Here's an early example, along with the editor's response:

Occasionally the Bulletin hears uncomplimentary remarks by certain members of the Bar hinting at "persecutions" of lawyers by the Utah State Bar. The weight to be attached to such remarks can be tested by the fact that before a member of the Utah State Bar may be subjected to a disciplinary order, that order must meet various tests . . . .

In other words, the lawyer accused of professional misconduct has a jury of approximately twenty-three of his peers to whom the vindication of the professional integrity of the lawyer charged is highly preferable to the unpleasant and often tragic task of determining that our Bar is subject to human frailties.48

Of course, disciplinary complaints today run a different procedural gauntlet, but the cases still receive numerous tests before an attorney can be disciplined: the OPC's initial screening and investigation; a three- or four-member Screening Panel determination and recommendation with review by the Chair of the Ethics and Discipline Committee; or in cases referred to district court by a Screening Panel, a Complaint reviewed and signed by the Chair, a civil trial on the merits under the Rules of Civil Procedure and subject to the Rules of Evidence, with the possibility of appellate review by the Supreme Court. Statistically speaking, only a small proportion of informal complaints and other pieces of information received by the OPC result in discipline.49

The Discipline System Can't and Shouldn't Address Some Aspects of Lawyer Conduct
Under the old system, the Board was reluctant to get in the middle of fee disputes or matters not involving unethical conduct that could best be resolved through a civil action.50 Today, the OPC declines to prosecute matters solely involving fee disputes, and also cases involving allegations of malpractice that do not arise to the level of a violation of the Rules of Professional Conduct.

It's a Dirty Job . . . But Someone's Got to Do It

At the Bar's first annual meeting in 1931, the president51 observed that membership in the profession gave rise to a duty to participate in Bar committees, "however distasteful from personal motives that call may be."52 Characterizing the business of discipline as "distasteful" persists today, one member of the Ethics and Discipline Committee even expressing it to me in just that language as I was working on this article. We've also known district court judges who expressed sentiments along the lines that they would prefer presiding over a homicide case than another disciplinary case. I don't know anyone who relishes passing judgment on the conduct of other attorneys. And yet, the work must continue, and it can only continue if everyone is willing to do their part. This is the way it has always been, and in my opinion, this is the way it will continue.

Conclusion

Dramatic changes in the manner in which complaints against attorneys are investigated and prosecuted characterize the Utah State Bar's seventy-five years of institutional life. Things initially done by volunteers are now done by a team of full-time employees. Today, cases requiring adjudication are reviewed by a panel derived from a Supreme Court-appointed committee of volunteers with authority to recommend private admonitions and public reprimands, and the Ethics and Discipline Committee Chair can issue those sanctions. The panels refer more serious cases to the district court for adjudication. The system doesn't always work perfectly, but it works well, thanks to the collective efforts of the many individuals involved.

But much remains the same. No doubt it's difficult being a respondent, and it's certainly a challenge being the adjudicator, whether one is a volunteer member of a panel or a district court judge. The people who have served as prosecutors through the years have been hard working professionals dedicated to furthering the aims of the discipline system. The nature of the allegations hasn't changed, nor has what's at stake for the individual attorneys, the public, and the profession. The OPC will continue its efforts to further the purpose of disciplinary proceedings: ensuring and maintaining the high standard of professional conduct required of lawyers, and protecting the public and the administration of justice.53

1. Melvin C. Harris, Report of President, 14 Utah Bar Bull. 161 (1945).

2. The oldest I've come across was decided in 1886, but refers to an earlier opinion of which nothing remains on file. See In re McKnight, 4 Utah 237; 9 P. 299 (1886).

3. See e.g. In re Disbarment of Evans & Rogers, 22 Utah 366; 62 P. 913 (1900).

4. Then, as now, complaints came from a variety of sources, including attorneys and non-attorneys, clerks of court, and the grievance committee of the State Bar Association - a predecessor of today's integrated Utah State Bar.

5. In addition to appointing attorneys in private practice to prosecute charges, the Court sometimes appointed the Attorney General as prosecuting attorney. See e.g. In re Hanson, 48 Utah 163, 164; 158 P.778 (1916).

6. The Court's jurisdiction is "inherent, continuing, and plenary, and exists independently of statute or rules of equity, and ought to be assumed and exercised as the exigencies and necessity of the case require, not only to maintain and protect the integrity and dignity of the court, to secure obedience to its rules and process, and to rebuke interference with the conduct of its business, but also to control and protect its officers, including attorneys." In re Evans, 42 Utah 282, 300; 130 P. 217 (1913).

7. Six Years of the Utah State Bar, 7 Utah Bar Bull. 61 (1937).

8. Dean F. Brayton, Message from the President, 1 Utah Bar Bull. 4 (1931).

9. 1 Utah Bar Bull. 2, 14 (1931).

10. See 1 UTAH BAR. BULL. 20 (1931).

11. See Rule 3, subsections 5 & 6, R. Disc. Pro., R. Con. and Disc. of the Utah State Bar (1931).

12. See id. at subsection 7.

13. See id.

14. See id.

15. See e.g. In re McCullough, 97 Utah 533, 535; 95 P.2d 13 (1939); see also 1 Utah Bar Bull. 15 (1931); Rule 3, subsection 19, R. Disc. Pro., R. Con. and Disc. of the Utah State Bar (1931).

16. See 1 Proceedings of the First Annual Meeting of the Utah State Bar, 3 (1932).

17. 2 Proceedings of the Annual Meeting of the Utah State Bar, 5 (1933).

18. Id.

19. 4 Utah Bar Bull. 22 (1934).

20. 4 Utah Bar Bull. 86 (1934).

21. See e.g. 5 Utah Bar Bull. 2 (1935); id. at 83 (authorizing committee to spend as much as $30 to pursue investigation).

22. 6 Utah Bar Bull. 156 (1936).

23. Id.

24. 6 Annual Meeting, Utah Bar Bull. 42 (1936).

25. Compare 7 Utah Bar Bull. 20 (1937) with 7 Utah Bar Bull. 44 (1937).

26. See Rev. R. of Disc. of the Utah State Bar (1937).

27. Llewellyn O. Thomas, Report of the Special Prosecutor, 8 Utah Bar Bull. (1938).

28. 24 Utah Bar Bull. 22 (1954). Thomas continued his Bar service as a member of the Committee on Unauthorized Practice of Law. See id.

29. Telephone Interview with Judge Pamela Greenwood, Utah Court of Appeals (May 12, 2006). Judge Greenwood served as the first Bar Counsel from 1977 to 1980. With apologies to anyone I may have overlooked, the other people successively in charge of the office were: Steve Hutchinson, Jeffry Paoletti, Nicholas Angelides, Jo Carol Nesset-Sale, Christine Burdick, Stephen Trost, and Stephen Cochell. Billy Walker has been Senior Counsel since 1997, a record-setting nine years.

30. See id.

31. Reed L. Martineau, President's Message, Utah Bar Letter at 1 (November 1987).

32. Bar Counsel's office has been described to me as a "shack" or "garage" behind the Bar's building on 100 South.

33. See The Utah State Bar Law and Justice Center, Utah Bar Letter at 2 (July 1984).

34. Report of the Committee to Review the Office of Attorney Discipline Presented to the Utah State Bar Board of Bar Commissioners, July 27, 1998, at 11-12.

35. See Minute Entry, In re Rules of Lawyer Discipline and Disability, Standards for Imposing Lawyer Sanctions, and Rules of Professional Conduct, Utah Supreme Court No. 920334.

36. In 2003, the Rules of Lawyer Discipline and Disability were amended to permit the Ethics and Discipline Committee to issue public reprimands. See Amendment Notes, Rule 10, RLDD.

37. Petition to Change Titles of Office of Attorney Discipline and Chief Disciplinary Counsel, In re Utah State Bar, Dec. 2, 1997.

38. Id.

39. Rule 4(b)(13), RLDD.

40. See id.

41. Pendleton v. Utah State Bar, 2000 UT 96, 16 P.3d 1230, 1232.

42. 1 Utah Bar Bull. 34 (1931).

43. See 2 Utah Bar Bull. 104 (1932).

44. The Bulletin mentioned this detail the month after it published the first notice of discipline. See 2 Utah Bar Bull. 123 (1932).

45. 2 Utah Bar Bull. 186 (1932).

46. Telephone interview with Jeffry Paoletti (May 2006).

47. W.Q. Van Cott, Annual Address of the President, 8 Utah Bar Bull. 14, 15 (1938).

48. 8 Utah Bar Bull. 64 (1938).

49. See OPC's Annual Report to the Utah Supreme Court, posted on the Bar's website, for the most recent statistics.

50. See 6 Utah Bar Bull. 78 (1936).

51. Id. at 11.

52. Id.

53. See Rule 1(a), RLDD.