Rule 14-510. Prosecutionand appeals.
(a)Informal complaint of unprofessional conduct.
(a)(1)Filing. A disciplinary proceeding may be initiated against any member of theBar by any person, OPC counsel or the Committee, by filing with the Bar, in writing,an informal complaint in ordinary, plain and concise language setting forth theacts or omissions claimed to constitute unprofessional conduct. Upon filing, aninformal complaint shall be processed in accordance with this article.
(a)(2)Form of informal complaint. The informal complaint need not be in anyparticular form or style and may be by letter or other informal writing,although a form may be provided by the OPC to standardize the informalcomplaint format. It is unnecessary that the informal complaint recitedisciplinary rules, ethical canons or a prayer requesting specific disciplinaryaction. The informal complaint shall be signed by the complainant and shall setforth the complainant's address, and may list the names and addresses of otherwitnesses. The informal complaint shall be notarized and contain a verificationattesting to the accuracy of the information contained in the complaint. Inaccordance with Rule 14-504(b), complaints filed by OPC are not required tocontain a verification. The substance of the informalcomplaint shall prevail over the form.
(a)(3)Initial investigation. Upon the filing of an informal complaint, OPC counselshall conduct a preliminary investigation to ascertain whether the informalcomplaint is sufficiently clear as to its allegations. If it is not, OPCcounsel shall seek additional facts from the complainant; additional factsshall also be submitted in writing and signed by the complainant.
(a)(4)Potential Referral to Professionalism 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 Counseling Boardestablished pursuant to the Supreme Court?s Standing Order No. 7. Such referralmay be in addition to or in lieu of any further proceedings related to thesubject matter of the referral. Such referral should be in writing and, at thediscretion of OPC counsel, may include any or all information included in aninformal complaint or additional facts submitted by a complainant.
(a)(5)Notice of informal complaint. Upon completion of the preliminary investigation,OPC counsel shall determine whether the informal complaint can be resolved inthe public interest, the respondent's interest and the complainant's interest.OPC counsel and/or the screening panel may use their efforts to resolve theinformal complaint. If the informal complaint cannot be so resolved or if itsets forth facts which, by their very nature, should be brought before thescreening panel, or if good cause otherwise exists to bring the matter beforethe screening panel, OPC counsel shall cause to be served a NOIC by regularmail upon the respondent at the address reflected in the records of the Bar.The NOIC shall have attached a true copy of the signed informal complaintagainst the respondent and shall identify with particularity the possibleviolation(s) of the Rules of Professional Conduct raised by the informalcomplaint as preliminarily determined by OPC counsel.
(a)(6)Answer to informal complaint. Within 20 days after service of the NOIC on therespondent, the respondent shall file with OPC counsel a written and signedanswer setting forth in full an explanation of the facts surrounding theinformal complaint, together with all defenses and responses to the claims ofpossible misconduct. For good cause shown, OPC counsel may extend the time forthe filing of an answer by the respondent not to exceed an additional 30 days.Upon the answer having been filed or if the respondent fails to respond, OPCcounsel shall refer the case to a screening panel for investigation,consideration and determination or recommendation. OPC counsel shall forward acopy of the answer to the complainant.
(a)(7)Dismissal of informal complaint. An informal complaint which, uponconsideration of all factors, is determined by OPC counsel to be frivolous,unintelligible, barred by the statute of limitations, more adequately addressedin another forum, unsupported by fact or which does not raise probable cause ofany unprofessional conduct, or which OPC declines to prosecute may be dismissedby OPC counsel without hearing by a screening panel. OPC counsel shall notifythe complainant of such dismissal stating the reasons therefor. The complainantmay appeal a dismissal by OPC counsel by filing written notice with the Clerkof the 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 before Committee and screening panels.
(b)(1)Review and investigation. In their role as fact finders and investigators,screening panels shall review all informal complaints referred to them by OPCcounsel, 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 be servedon the respondent no less than seven days prior to the hearing. In cases wherea 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's appearance. 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 also submit a written brief to the screening panel at least 10days prior to the hearing, which shall not exceed 10 pages in length unlesspermission for enlargement is extended by the panel chair or vice-chair forgood cause shown. A copy of the brief shall be forwarded byOPC counsel to the complainant. If OPC identifies additionalrule 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's appearance. A complainant shall have the right to appear beforethe screening panel personally and, together with any witnesses called by thecomplainant, may testify.
(b)(4)Right to hear evidence; cross-examination. The complainant and the respondentshall have the right to be present during the presentation of the evidenceunless excluded by the screening panel chair for good cause shown. Respondentmay be represented by counsel, and complainant may be represented by counsel orsome other representative. Either complainant or respondent may seek responses fromthe other party at the hearing by posing questions or areas of inquiry to beasked by the panel chair. Direct cross-examination will ordinarily not bepermitted except, upon request, when the panel chair deems that it wouldmaterially assist the panel in its deliberations.
(b)(5)Rule Violations Not Charged by OPC. During the screening panel hearing, but notafter, the panel may find that rule violations not previously charged by OPC inthe NOIC or summary memorandum have occurred. If so, the screening panel shallgive the respondent 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 underthis subsection (b) shall be recorded at a level of audio quality that permitsan accurate transcription of the proceedings. The Clerk shall assemble a completerecord of the proceedings and deliver it to the chair of the Committee upon therendering of the panel?s determination or recommendation to the Committeechair. The record of the proceedings before the panel shall be preserved fornot less than one year following delivery of the panel?s determination orrecommendation to the chair of the Committee and for such additional period as anyfurther proceedings on the matter are pending or might be instituted under thissection.
(b)(7)Screening panel determination or recommendation. Upon review of all the factsdeveloped by the informal complaint, answer, investigation and hearing, the screeningpanel shall make one of the following determinations or recommendations:
(b)(7)(A)The preponderance of evidence presented does not establish that the respondentwas engaged in misconduct, in which case the informal complaint shall bedismissed. A letter of caution may also be issued with the dismissal. Theletter shall be signed by OPC counsel or the screening panel chair and shallserve as a guide for the future conduct of the respondent. The complainantshall also be confidentially notified of the caution;
(b)(7)(B)The informal complaint shall be referred to the Diversion Committee fordiversion. In this case, the specific material terms of the Diversion Contractagreed to by the respondent are to be recorded as a part of the screening panelrecord, along with any comments by the complainant. The screening panel shallhave no further involvement in processing the diversion. The DiversionCommittee shall process the diversion in accordance with Rule 14-533.
(b)(7)(C)The informal complaint shall be referred to the Professionalism CounselingBoard established pursuant to the Supreme Court?s Standing Order No. 7;
(b)(7)(D)The informal complaint shall be referred to the Committee chair with anaccompanying screening panel recommendation that the respondent be admonished;
(b)(7)(E)The informal complaint shall be referred to the Committee chair with anaccompanying screening panel recommendation that the respondent receive apublic reprimand; or
(b)(7)(F)A formal complaint shall be filed against the respondent if the panel findsthere is probable cause to believe there are grounds for public discipline andthat a formal complaint is merited. A formal complaint shall also be filed ifthe panel 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 and Mitigation. The respondent and OPC may present evidence andargument as to mitigating and aggravating circumstances during the screeningpanel hearing, but this evidence shall not be considered until after the panelhas determined the respondent engaged in misconduct.
(b)(9)Multiple cases involving the same respondent. More than one case involving thesame respondent may be scheduled before the same panel. In determining whethera rule 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 of admonition or public reprimand. A screening panelrecommendation that the respondent should be disciplined under subsection (b)(7)(D) or (b)(7)(E) shall be in writing and shall state thesubstance and nature of the informal complaint and defenses and the basis uponwhich the screening panel has concluded, by a preponderance of the evidence,that the respondent should be admonished or publicly reprimanded. A copy of therecommendation shall be delivered to the Committee chair and a copy served uponthe respondent and OPC.
(c)Exceptions to screening panel determinations and recommendations. Within 30days after the date of service of the determination of the screening panel of adismissal, dismissal with letter of caution, a referral to the DiversionCommittee, a referral to the Professionalism Counseling Board, or therecommendation of an admonition, or the recommendation of a public reprimand,OPC may file with the Clerk of the Committee exceptions to the determination orrecommendation and may request a hearing. The respondent shall then have 30days within which to make a response, and the response shall includerespondent's exceptions, if any, to a recommendation of an admonition orreprimand. Within 30 days after service of the recommendation of an admonitionor public reprimand on respondent, the respondent may file with the Clerk ofthe Committee exceptions to the recommendation and may request a hearing, andOPC shall have 30 days within which to file a response. The Committee chair mayallow a reply to any response. No exception may be filed to a screening paneldetermination that a formal complaint shall be filed against a respondentpursuant to Rule 14-511. All exceptions shall include a memorandum, not toexceed 20 pages, stating the grounds for review, the relief requested and thebases in law or in fact for the exceptions.
(d)Procedure on exceptions.
(d)(1)Hearing not requested. If no hearing is requested, the Committee chair willreview the record compiled before the screening panel.
(d)(2)Hearing requested. If a request for a hearing is made, the Committee chair or ascreening panel chair designated by the Committee chair shall serve as theExceptions Officer and hear the matter in an expeditious manner, with OPCcounsel and the respondent having the opportunity to be present and give anoral presentation. The complainant need not appear personally.
(d)(3)Transcript Request. Upon request the Committee chair shall extend the deadlinesfor filing exceptions or responses in order to allow a party time to obtain atranscript of the screening panel proceedings. The cost of such transcript shallbe borne by the requesting party. The party obtaining the transcript shall fileit with the Clerk, together with an affidavit establishing the chain of custodyof the record.
(d)(4)Burden of proof. The party who files exceptions under subsection (c) shall havethe burden of showing that the determination or recommendation of the screeningpanel is unsupported by substantial evidence or is arbitrary, capricious,legally insufficient or otherwise clearly erroneous.
(d)(5)Record on exceptions. The proceedings of any hearing on exceptions under thissubsection (d) shall be recorded at a level of audio quality that permits anaccurate transcription of the proceedings.
(e)Final Committee disposition. Either upon the completion of the exceptionsprocedure under subsection (d) or if no exceptions have been filed undersubsection (c), the Committee chair shall issue a final, written determinationthat either sustains, dismisses, or modifies the determination orrecommendation of the screening panel. No final written determination is neededby the Committee chair to a screening panel determination to a dismissal, adismissal with a letter of caution, or a referral to the Diversion Committee ifno exception is filed.
(f)Appeal of a final Committee determination.
(f)(1)Within 30 days after service of a final, written determination of the Committeechair under subsection (e), the respondent or OPC may file a request for reviewby the Supreme Court seeking reversal or modification of the finaldetermination of the Committee. A request for review under this subsectionshall only be available in cases where exceptions have been filed undersubsection (c). Dissemination of disciplinary information pursuant to Rules14-504(b)(13) or 14-516 shall be automatically stayedduring the period within which a request for review may be filed under thissubsection. If a timely request for review is filed, the stay shall remain inplace pending resolution by the Supreme Court unless the Court otherwise orders.
(f)(2)A request for review under this subsection (f) will be subject to theprocedures set forth in Title III of the Utah Rules of Appellate Procedure.Documents submitted under this Rule shall conform to the requirements of Rules27(a) and 27(b) of the Utah Rules of Appellate Procedure.
(f)(3)A party requesting a transcription of the record below shall bear the costs. Theparty obtaining the transcript shall file it with the Clerk of the Court,together with an affidavit establishing the chain of custody of the record.
(f)(4)The Supreme Court shall conduct a review of the matter on the record.
(f)(5)The party requesting review shall have the burden of demonstrating that theCommittee action was:
(f)(5)(A)Based on a determination of fact that is not supported by substantial evidencewhen viewed in light of the whole record before the Court;
(f)(5)(B)An abuse of discretion;
(f)(5)(C)Arbitrary or capricious; or
(f)(5)(D)Contrary to Articles 5 and 6 of Chapter 14 of the Rules of ProfessionalPractice of the Supreme Court.
(g)(1)Testimony. All testimony given before a screening panel or the ExceptionsOfficer shall be under oath.
(g)(2)Service. To the extent applicable, service or filing of documents under thisRule is to be made in accordance with Utah Rules of Civil Procedure 5(b)(1), 5(d) and 6(a).
(g)(3)Continuance of disciplinary proceedings. A disciplinary proceeding may be heldin abeyance by the Committee chair prior to the filing of a formal complaintwhen the allegations or the informal complaint contain matters of substantialsimilarity to the material allegations of pending criminal or civil litigationin which the respondent is involved.