Utah Court Rules – Published for Comment
The Supreme Court and Judicial Council invite comments about amending these rules. To view the proposed amendment, click on the rule number.
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Posted: April 18, 2019
CJA14-0515. Access to disciplinary information. Amend. Currently, Rule 14-515 requires all parties to a discipline action to maintain confidentiality prior to the filing of a formal complaint or the issuance of a public reprimand. The amendments to Rule 14-515 clarify that the confidentiality requirements do not apply to the complainant.
In this rule, balance must be found between the harm of ill-founded complaints made public, and the need for sunshine upon a healthy government. That balance lies in the time for Complainant to cool and the Respondent to offer a reply, so both sides might be made public simultaneously. It would work like this: Once a compliant is filed with the OPC, all parties are gagged to say anything until either Respondent has replied, or the time for such response has passed – whichever is sooner. That would aid in avoiding harmful bias in the press and community, while still allowing individuals to speak out regarding the matter in a timely manner.
Respectfully, I disagree with releasing the complainant from the obligation of confidentiality. Just last night I read an article in the Tribune ( https://www.sltrib.com/news/politics/2019/04/17/utah-bar-will-investigate/) where an individual filed bar complaints against 7 attorneys and as soon as the individual received a confirmation of the complaint from the bar, she went to the Tribune reporter. The news article did not indicate whether the complainant had been represented by any of the 7 attorneys. However, it appeared that the basis for the complaint was not related to the representation of the claimant by any of the attorneys. This seemed odd to me and immediately caused me to question the motivation of the complainant.
Allowing a complainant to go public with the complaint would open the process up to significant abuses. For example, filing and publicizing bar complaints during a legal malpractice case to leverage a settlement; filing and publicizing a bar complaint against opposing counsel to leverage settlement or leverage counsel to withdraw from a case; filing bar complaints against lawyers who have no attorney client relationship simply to make life miserable or to leverage the lawyer to do, or not to do, something that is unrelated to the lawyer’s profession. Obviously this is not exhaustive..
If we compare the proposed process to that of medical malpractice claims, the pre-litigation process is confidential and cannot be disclosed. Even actual DOPL complaints are supposed to be confidential. These are good policies. The rules governing bar complaints should not be different.
Finally, the Amendment does not identify any policy reason for the change. I can’t really think of any good reason for it and am confident that the change will cause abusive bar complaints to increase.
Thank you. Please feel free to contact me if you have any questions.
This amendment does not benefit anyone. The problem with the current rule is that it is unenforceable against a complainant. If they disclose confidential information during the pendency of an OPC investigation or during the Screening Panel process, there are no consequences. No one has jurisdiction over the complainant, therefore, nothing can be done about it. That being said, violations of the rule by complainants are rare. Society functions on people following the rules, even if no one is watching. The mere existence of the rule discourages complainants from disclosing confidential information. That will be gone with this amendment.
However, it removes the restriction without providing any benefit to the complainant. How does the complainant benefit by being able to disclose confidential information about the attorney discipline process?
It does not benefit the OPC or the Bar. If a complainant pursues a bar complaint, and it goes well in their mind, the attorney likely ends up with public discipline. The complainant gets some satisfaction from that. They got to tell their story, and some adjudicative body determined they were right. That’s what they wanted. Those aren’t the complainants that then get on social media. They might tell their family and friends about it, but they aren’t going to write an op-ed piece in the paper or post an online comment. They already got their pound of flesh.
It is the complainant who got their case dismissed by the OPC or the Screening Panel that is going to feel the need to find another avenue of redress. They are the ones that are going to post online reviews and tweet about how they were mistreated by the system. They are going to talk about how the Bar is just protecting its own and how the system failed them. How does that benefit the Bar? Without the threat of a confidentiality rule, even a toothless one, complainants will be free to disclose information that otherwise would be confidential. The problem is that the information they are disclosing to support their contention of attorney misconduct is information that was determined by the OPC or the Screening Panel to be insufficient to support such a claim. While an attorney has the ability to defend themselves against meritless complaints brought to the OPC, there is nothing they can do when those same complaints are posted on social media after the complainant feels the OPC did not do its job. While rule 1.6 allows an attorney to disclose confidential information in the OPC process, if the attorney attempts to respond to a disparaging online statement that misrepresents the facts, they do not have that same freedom.
Exempting complainants from the confidentiality rule will simply open the door to online character attacks as a last means of redress for unsatisfied bar complainants.
It would seem that a simple cost/benefit analysis of this rule would argue against approving it. It harms the respondents, it harms the profession, it harms the Bar. It benefits no one.
The problem with the current rule is enforceability. Even if the OPC or a Screening Panel member violates the rule, then what?
I agree with Todd Wahlquist and Scott Evan’s. I do not support this change.
Absolutely no reason for this provision. A FALSE claim was filed against someone I know, and the “confidentiality” provisions already in place meant that the complainants got to gossip all they wanted –within the Bar community–and NOBODY ever found out that the complaint was DISMISSED. It took so long that career damage appears irreparable. The procedure is already weighted in complainants’ favor (as perhaps it should be), but to modify the rule to emphasize that complainants are free to publish whatever they want is a huge disservice to Bar members–particularly those whose reputations should not be sullied.
Concur with other opinions and their reasoning; felt must add this sad story.
I support the change. The current rule is of dubious constitutionality in limiting the free speech rights of the general public. There is no reason to insulate lawyers from risks every other sort of business faces.