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Rule 14-510. Prosecution and appeals.

(a) Informal complaint ofunprofessional conduct.

(a)(1) Filing. Adisciplinary proceeding may be initiated against any member of the Bar by any person,OPC counsel or the Committee, by filing with the Bar, in writing, an informalcomplaint in ordinary, plain and concise language setting forth the acts oromissions claimed to constitute unprofessional conduct. Upon filing, aninformal complaint shall be processed in accordance with this article.

(a)(2) Form of informalcomplaint. The informal complaint need not be in any particular form orstyle and may be by letter or other informal writing, although a form may beprovided by the OPC to standardize the informal complaint format. It isunnecessary that the informal complaint recite disciplinary rules, ethicalcanons or a prayer requesting specific disciplinary action. The informalcomplaint shall be signed by the complainant and shall set forth the complainant'saddress, and may list the names and addresses of other witnesses. The informalcomplaint shall be notarized and contain a verification attesting to theaccuracy of the information contained in the complaint. In accordance with Rule14-504(b), complaints filed by OPC are not required to contain a verification.The substance of the informal complaint shall prevail over the form.

(a)(3) Initialinvestigation. Upon the filing of an informal complaint, OPC counsel shallconduct a preliminary investigation to ascertain whether the informal complaintis sufficiently clear as to its allegations. If it is not, OPC counsel shallseek additional facts from the complainant; additional facts shall also besubmitted in writing and signed by the complainant.

(a)(4) Potential Referralto Professionalism and Civility Counseling Board. In connection with anyconduct that comes to their attention, whether by means of an informalcomplaint, a preliminary investigation, or any other means, OPC counsel may, atits discretion, refer any matter to the Professionalism and Civility CounselingBoard established pursuant to Rule14-303. Such referral may be in addition to or inlieu of any further proceedings related to the subject matter of the referral.Such referral should be in writing and, at the discretion of OPC counsel, mayinclude any or all information included in an informal complaint or additionalfacts submitted by a complainant.

(a)(5) Notice of informalcomplaint. Upon completion of the preliminary investigation, OPC counselshall determine whether the informal complaint can be resolved in the publicinterest, the respondent's interest and the complainant's interest. OPC counseland/or the screening panel may use their efforts to resolve the informalcomplaint. If the informal complaint cannot be so resolved or if it sets forthfacts which, by their very nature, should be brought before the screeningpanel, or if good cause otherwise exists to bring the matter before thescreening panel, OPC counsel shall cause to be served a NOIC by regular mailupon the respondent at the address reflected in the records of the Bar. TheNOIC shall have attached a true copy of the signed informal complaint againstthe respondent and shall identify with particularity the possible violation(s)of the Rules of Professional Conduct raised by the informal complaint aspreliminarily determined by OPC counsel.

(a)(6) Answer to informalcomplaint. Within 20 days after service of the NOIC on the respondent, therespondent shall file with OPC counsel a written and signed answer settingforth in full an explanation of the facts surrounding the informal complaint,together with all defenses and responses to the claims of possible misconduct.For good cause shown, OPC counsel may extend the time for the filing of ananswer by the respondent not to exceed an additional 30 days. Upon the answerhaving been filed or if the respondent fails to respond, OPC counsel shallrefer the case to a screening panel for investigation, consideration and determinationor recommendation. OPC counsel shall forward a copy of the answer to thecomplainant.

(a)(7) Dismissal ofinformal complaint. An informal complaint which, upon consideration of allfactors, is determined by OPC counsel to be frivolous, unintelligible, barredby the statute of limitations, more adequately addressed in another forum,unsupported by fact or which does not raise probable cause of anyunprofessional conduct, or which OPC declines to prosecute may be dismissed byOPC counsel without hearing by a screening panel. OPC counsel shall notify thecomplainant of such dismissal stating the reasons therefor. The complainant mayappeal a dismissal by OPC counsel by filing written notice with the Clerk ofthe Committee within 15 days after notification of the dismissal is mailed.Upon appeal, the Committee chair shall conduct a de novo review of the file,either affirm the dismissal or require OPC counsel to prepare a NOIC, and setthe matter for hearing by a screening panel. In the event of the chair'srecusal, the chair shall appoint the vice chair or one of the screening panelchairs to review and determine the appeal.

(b) Proceedings beforeCommittee and screening panels.

(b)(1) Review andinvestigation. In their role as fact finders and investigators, screeningpanels shall review all informal complaints referred to them by OPC counsel,including all the facts developed by the informal complaint, answer,investigation and hearing, and the recommendations of OPC counsel. Prior to anyhearing OPC may file with the clerk and serve on the respondent a summary ofits investigation. If filed, the summary shall identify with particularity anyadditional violations of the Rules of Professional Conduct as subsequentlydetermined by OPC after service of the NOIC. If provided to the screeningpanel, the summary shall also be provided to the respondent and shall serve asnotice of any additional violations not previously charged by OPC in the NOIC.If additional rule violations are alleged in the summary, the summary shall beserved on the respondent no less than seven days prior to the hearing. In caseswhere a judicial officer has not addressed or reported a respondent?s allegedmisconduct, the screening panel should not consider this inaction to beevidence either that misconduct has occurred or has not occurred.

(b)(2) Respondent'sappearance. Before any action is taken that may result in therecommendation of an admonition or public reprimand or the filing of a formalcomplaint, the screening panel shall, upon at least 30 days? notice, afford therespondent an opportunity to appear before the screening panel. Respondent andany witnesses called by the respondent may testify, and respondent may presentoral argument with respect to the informal complaint. Respondent may alsosubmit a written brief to the screening panel at least 10 days prior to thehearing, which shall not exceed 10 pages in length unless permission forenlargement is extended by the panel chair or vice-chair for good cause shown.A copy of the brief shall be forwarded by OPC counsel to the complainant. IfOPC identifies additional rule violations in the summary referenced in (b)(1),the respondent may file an additional written response addressing those allegedviolations prior to the hearing.

(b)(3) Complainant'sappearance. A complainant shall have the right to appear before thescreening panel personally and, together with any witnesses called by thecomplainant, may testify.

(b)(4) Right to hearevidence; cross-examination. The complainant and the respondent shall havethe right to be present during the presentation of the evidence unless excludedby the screening panel chair for good cause shown. Respondent may berepresented by counsel, and complainant may be represented by counsel or some otherrepresentative. Either complainant or respondent may seek responses from theother party at the hearing by posing questions or areas of inquiry to be askedby the panel chair. Direct cross-examination will ordinarily not be permittedexcept, upon request, when the panel chair deems that it would materiallyassist the panel in its deliberations.

(b)(5) Rule Violations NotCharged by OPC. During the screening panel hearing, but not after, thepanel may find that rule violations not previously charged by OPC in the NOICor summary memorandum have occurred. If so, the screening panel shall give therespondent a reasonable opportunity to respond during the hearing. Therespondent may address the additional charges at the hearing and also file withthe Clerk and serve on OPC within two business days of the hearing a writtenresponse to the new charges along with supplemental materials related to thenew charges. Prior to making a determination or recommendation, the responseand any supplemental materials shall be reviewed and considered by at least aquorum of the panel members present at the original hearing.

(b)(6) Hearing Record.The proceedings of any hearing before a screening panel under this subsection(b) shall be recorded at a level of audio quality that permits an accuratetranscription of the proceedings. The Clerk shall assemble a complete record ofthe proceedings and deliver it to the chair of the Committee upon the renderingof the panel?s determination or recommendation to the Committee chair. Therecord of the proceedings before the panel shall be preserved for not less thanone year following delivery of the panel?s determination or recommendation tothe chair of the Committee and for such additional period as any furtherproceedings on the matter are pending or might be instituted under thissection.

(b)(7) Screening paneldetermination or recommendation. Upon review of all the facts developed bythe informal complaint, answer, investigation and hearing, the screening panelshall make one of the following determinations or recommendations:

(b)(7)(A) Thepreponderance of evidence presented does not establish that the respondent wasengaged in misconduct, in which case the informal complaint shall be dismissed.A letter of caution may also be issued with the dismissal. The letter shall besigned by OPC counsel or the screening panel chair and shall serve as a guidefor the future conduct of the respondent. The complainant shall also beconfidentially notified of the caution;

(b)(7)(B) The informalcomplaint shall be referred to the Diversion Committee for diversion. In thiscase, the specific material terms of the Diversion Contract agreed to by therespondent are to be recorded as a part of the screening panel record, alongwith any comments by the complainant. The screening panel shall have no furtherinvolvement in processing the diversion. The Diversion Committee shall processthe diversion in accordance with Rule 14-533.

(b)(7)(C) The informalcomplaint shall be referred to the Professionalism and Civility CounselingBoard established pursuant to the Rule 14-303;

(b)(7)(D) The informalcomplaint shall be referred to the Committee chair with an accompanyingscreening panel recommendation that the respondent be admonished;

(b)(7)(E) The informalcomplaint shall be referred to the Committee chair with an accompanyingscreening panel recommendation that the respondent receive a public reprimand;or

(b)(7)(F) A formalcomplaint shall be filed against the respondent if the panel finds there isprobable cause to believe there are grounds for public discipline and that aformal complaint is merited. A formal complaint shall also be filed if thepanel finds there was misconduct and the misconduct is similar to themisconduct alleged in a formal complaint against the respondent that has beenrecommended by a screening panel or is pending in district court at the time ofthe hearing.

(b)(8) Aggravation andMitigation. The respondent and OPC may present evidence and argument as tomitigating and aggravating circumstances during the screening panel hearing,but this evidence shall not be considered until after the panel has determinedthe respondent engaged in misconduct.

(b)(9) Multiple casesinvolving the same respondent. More than one case involving the samerespondent may be scheduled before the same panel. In determining whether arule has been violated in one case, a screening panel shall not consider thefact it may be hearing multiple cases against the same respondent.

(b)(10) Recommendation ofadmonition or public reprimand. A screening panel recommendation that therespondent should be disciplined under subsection (b)(7)(D) or (b)(7)(E) shallbe in writing and shall state the substance and nature of the informalcomplaint and defenses and the basis upon which the screening panel hasconcluded, by a preponderance of the evidence, that the respondent should beadmonished or publicly reprimanded. A copy of the recommendation shall bedelivered to the Committee chair and a copy served upon the respondent and OPC.

(c) Exceptions to screeningpanel determinations and recommendations. Within 30 days after the date ofservice of the determination of the screening panel of a dismissal, dismissalwith letter of caution, a referral to the Diversion Committee, a referral tothe Professionalism and Civility Counseling Board, or the recommendation of anadmonition, or the recommendation of a public reprimand, OPC may file with theClerk of the Committee exceptions to the determination or recommendation andmay request a hearing. The respondent shall then have 30 days within which tomake a response, and the response shall include respondent's exceptions, ifany, to a recommendation of an admonition or reprimand. Within 30 days afterservice of the recommendation of an admonition or public reprimand onrespondent, the respondent may file with the Clerk of the Committee exceptionsto the recommendation and may request a hearing, and OPC shall have 30 dayswithin which to file a response. The Committee chair may allow a reply to anyresponse. No exception may be filed to a screening panel determination that aformal complaint shall be filed against a respondent pursuant to Rule 14-511.All exceptions shall include a memorandum, not to exceed 20 pages, stating thegrounds for review, the relief requested and the bases in law or in fact forthe exceptions.

(d) Procedure on exceptions.

(d)(1) Hearing notrequested. If no hearing is requested, the Committee chair will review therecord compiled before the screening panel.

(d)(2) Hearing requested.If a request for a hearing is made, the Committee chair or a screening panelchair designated by the Committee chair shall serve as the Exceptions Officerand hear the matter in an expeditious manner, with OPC counsel and therespondent having the opportunity to be present and give an oral presentation.The complainant need not appear personally.

(d)(3) Transcript Request.Upon request the Committee chair shall extend the deadlines for filingexceptions or responses in order to allow a party time to obtain a transcriptof the screening panel proceedings. The cost of such transcript shall be borneby the requesting party. The party obtaining the transcript shall file it withthe Clerk, together with an affidavit establishing the chain of custody of the record.

(d)(4) Burden of proof.The party who files exceptions under subsection (c) shall have the burden ofshowing that the determination or recommendation of the screening panel isunsupported by substantial evidence or is arbitrary, capricious, legallyinsufficient or otherwise clearly erroneous.

(d)(5) Record on exceptions.The proceedings of any hearing on exceptions under this subsection (d) shall berecorded at a level of audio quality that permits an accurate transcription ofthe proceedings.

(e) Final Committeedisposition. Either upon the completion of the exceptions procedure undersubsection (d) or if no exceptions have been filed under subsection (c), theCommittee chair shall issue a final, written determination that eithersustains, dismisses, or modifies the determination or recommendation of thescreening panel. No final written determination is needed by the Committeechair to a screening panel determination to a dismissal, a dismissal with aletter of caution, or a referral to the Diversion Committee if no exception isfiled.

(f) Appeal of a finalCommittee determination.

(f)(1) Within 30 days after service of a final, writtendetermination of the Committee chair under subsection (e), the respondent orOPC may file a request for review by the Supreme Court seeking reversal ormodification of the final determination of the Committee. A request for reviewunder this subsection shall only be available in cases where exceptions havebeen filed under subsection (c). Dissemination of disciplinary informationpursuant to Rules 14-504(b)(13) or 14-516 shall beautomatically stayed during the period within which a request for review may befiled under this subsection. If a timely request for review is filed, the stayshall remain in place pending resolution by the Supreme Court unless the Courtotherwise orders.

(f)(2) A request for review under this subsection (f) will besubject to the procedures set forth in Title III of the Utah Rules of AppellateProcedure. Documents submitted under this Rule shall conform to therequirements of Rules 27(a) and 27(b) of the Utah Rules of Appellate Procedure.

(f)(3) A party requesting a transcription of the record belowshall bear the costs. The party obtaining the transcript shall file it with theClerk of the Court, together with an affidavit establishing the chain ofcustody of the record.

(f)(4) The Supreme Court shall conduct a review of the matter onthe record.

(f)(5) The party requesting review shall have the burden ofdemonstrating that the Committee action was:

(f)(5)(A) Based on adetermination of fact that is not supported by substantial evidence when viewedin light of the whole record before the Court;

(f)(5)(B) An abuse ofdiscretion;

(f)(5)(C) Arbitrary orcapricious; or

(f)(5)(D) Contrary toArticles 5 and 6 of Chapter 14 of the Rules of Professional Practice of theSupreme Court.

(g) General procedures.

(g)(1) Testimony. Alltestimony given before a screening panel or the Exceptions Officer shall beunder oath.

(g)(2) Service. To theextent applicable, service or filing of documents under this Rule is to be madein accordance with Utah Rules of Civil Procedure 5(b)(1),5(d), and 6(a).

(g)(3) Continuance ofdisciplinary proceedings. A disciplinary proceeding may be held in abeyanceby the Committee chair prior to the filing of a formal complaint when theallegations or the informal complaint contain matters of substantial similarityto the material allegations of pending criminal or civil litigation in whichthe respondent is involved.

 

 

Effective May 15, 2019