(a) Informal complaint of unprofessional conduct.
(a)(1) Filing. A disciplinary proceeding may be initiated againstany licensed paralegal practitioner by any person, OPC counsel or theCommittee, by filing with the Bar, in writing, an informal complaint inordinary, plain and concise language setting forth the acts or omissionsclaimed to constitute unprofessional conduct. Upon filing, an informalcomplaint shall be processed in accordance with this article.
(a)(2) Form of informal complaint. The informal complaint need notbe in any particular form or style and may be by letter or other informalwriting, 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 15-504(b), complaints filed by OPC are not required tocontain a verification. The substance of the informal complaint shallprevail over the form.
(a)(3) Initial investigation. Upon the filing of an informalcomplaint, OPC counsel shall conduct a preliminary investigation to ascertainwhether the informal complaint is sufficiently clear as to its allegations. Ifit is not, OPC counsel shall seek additional facts from the complainant;additional facts shall also be submitted in writing and signed by thecomplainant.
(a)(4) Potential Referral to Professionalism Counseling Board. Inconnection with any conduct that comes to their attention, whether by means ofan informal complaint, a preliminary investigation, or any other means, OPCcounsel may, at its discretion, refer any matter to the ProfessionalismCounseling Board established pursuant to the Supreme Court?s Standing Order No.7. Such referral may be in addition to or in lieu of any further proceedingsrelated to the subject matter of the referral. Such referral should be inwriting and, at the discretion of OPC counsel, may include any or allinformation included in an informal complaint or additional facts submitted bya complainant.
(a)(5) Notice of informal complaint. Upon completion of thepreliminary investigation, OPC counsel shall determine whether the informal complaintcan be resolved in the public interest, the respondent's interest and thecomplainant's interest. OPC counsel and/or the screening panel may use theirefforts to resolve the informal complaint. If the informal complaint cannot beso resolved or if it sets forth facts which, by their very nature, should bebrought before the screening panel, or if good cause otherwise exists to bringthe matter before the screening panel, OPC counsel shall cause to be served aNOIC by regular mail upon the respondent at the address reflected in therecords of the Bar. The NOIC shall have attached a true copy of the signedinformal complaint against the respondent and shall identify with particularitythe possible violation(s) of the Licensed Paralegal Practitioner Rules ofProfessional Conduct raised by the informal complaint as preliminarilydetermined by OPC counsel.
(a)(6) Answer to informal complaint. Within 20 days after serviceof the NOIC on the respondent, the respondent shall file with OPC counsel awritten and signed answer setting forth in full an explanation of the factssurrounding the informal complaint, together with all defenses and responses tothe claims of possible misconduct. For good cause shown, OPC counsel may extendthe time for the filing of an answer by the respondent not to exceed anadditional 30 days. Upon the answer having been filed or if the respondentfails to respond, OPC counsel shall refer the case to a screening panel forinvestigation, consideration and determination or recommendation. OPC counselshall forward a copy of the answer to the complainant.
(a)(7) Dismissal of informal complaint. An informal complaintwhich, upon consideration of all factors, is determined by OPC counsel to befrivolous, unintelligible, barred by the statute of limitations, moreadequately addressed in another forum, unsupported by fact or which does notraise probable cause of any unprofessional conduct, or which OPC declines toprosecute may be dismissed by OPC counsel without hearing by a screening panel.OPC counsel shall notify the complainant of such dismissal stating the reasonstherefor. The complainant may appeal a dismissal by OPC counsel by filingwritten notice with the Clerk of the Committee within 15 days afternotification of the dismissal is mailed. Upon appeal, the Committee chair shallconduct a de novo review of the file, either affirm the dismissal or requireOPC counsel to prepare a NOIC, and set the matter for hearing by a screeningpanel. In the event of the chair's recusal, the chair shall appoint the vicechair or one of the screening panel chairs to review and determine the appeal.
(b) Proceedings before Committee and screening panels.
(b)(1) Review and investigation. In their role as fact finders andinvestigators, screening panels shall review all informal complaints referredto them by OPC counsel, including all the facts developed by the informalcomplaint, answer, investigation and hearing, and the recommendations of OPCcounsel. Prior to any hearing OPC may file with the clerk and serve on therespondent a summary of its investigation. If filed, the summary shall identifywith particularity any additional violations of the Licensed ParalegalPractitioner Rules of Professional Conduct as subsequently determined by OPCafter service of the NOIC. If provided to the screening panel, the summaryshall also be provided to the respondent and shall serve as notice of anyadditional violations not previously charged by OPC in the NOIC. If additionalrule violations are alleged in the summary, the summary shall be served on therespondent no less than seven days prior to the hearing. In cases where ajudicial officer has not addressed or reported a respondent?s allegedmisconduct, the screening panel should not consider this inaction to be evidenceeither that misconduct has occurred or has not occurred.
(b)(2) Respondent's appearance. Before any action is taken thatmay result in the recommendation of an admonition or public reprimand or thefiling of a formal complaint, the screening panel shall, upon at least 30 days?notice, afford the respondent an opportunity to appear before the screeningpanel. Respondent and any witnesses called by the respondent may testify, andrespondent may present oral argument with respect to the informalcomplaint. Respondent may also submit a written brief to the screening panel atleast 10 days prior to the hearing, which shall not exceed 10 pages in lengthunless permission for enlargement is extended by the panel chair or vice-chairfor good cause shown. A copy of the brief shall be forwarded by OPCcounsel to the complainant. If OPC identifies additional rule violationsin the summary referenced in (b)(1), the respondentmay file an additional written response addressing those alleged violationsprior to the hearing.
(b)(3) Complainant's appearance. A complainant shall have theright to appear before the screening panel personally and, together with anywitnesses called by the complainant, may testify.
(b)(4) Right to hear evidence; cross-examination. The complainantand the respondent shall have the right to be present during the presentationof the evidence unless excluded by the screening panel chair for good causeshown. Respondent may be represented by counsel, and complainant may berepresented by counsel or some other representative. Either complainant orrespondent may seek responses from the other party at the hearing by posingquestions or areas of inquiry to be asked by the panel chair. Directcross-examination will ordinarily not be permitted except, upon request, whenthe panel chair deems that it would materially assist the panel in itsdeliberations.
(b)(5) Rule Violations Not Charged by OPC. During the screeningpanel hearing, but not after, the panel may find that rule violations notpreviously charged by OPC in the NOIC or summary memorandum have occurred. Ifso, the screening panel shall give the respondent a reasonable opportunity torespond during the hearing. The respondent may address the additional chargesat the hearing and also file with the Clerk and serve on OPC within twobusiness days of the hearing a written response to the new charges along withsupplemental materials related to the new charges. Prior to making adetermination or recommendation, the response and any supplemental materialsshall be reviewed and considered by at least a quorum of the panel memberspresent at the original hearing.
(b)(6) Hearing Record. The proceedings of any hearing before ascreening panel under this subsection (b) shall be recorded at a level of audioquality that permits an accurate transcription of the proceedings. The Clerkshall assemble a complete record of the proceedings and deliver it to the chairof the Committee upon the rendering of the panel?s determination orrecommendation to the Committee chair. The record of the proceedings before thepanel shall be preserved for not less than one year following delivery of thepanel?s determination or recommendation to the chair of the Committee and forsuch additional period as any further proceedings on the matter are pending ormight be instituted under this section.
(b)(7) Screening panel determination or recommendation. Uponreview of all the facts developed by the informal complaint, answer,investigation and hearing, the screening panel shall make one of the followingdeterminations or recommendations:
(b)(7)(A) The preponderance of evidence presented does notestablish that the respondent was engaged in misconduct, in which case theinformal complaint shall be dismissed. A letter of caution may also be issuedwith the dismissal. The letter shall be signed by OPC counsel or the screeningpanel chair and shall serve as a guide for the future conduct of therespondent. The complainant shall also be confidentially notified of thecaution;
(b)(7)(B) The informal complaint shall be referred to theDiversion Committee for diversion. In this case, the specific material terms ofthe Diversion Contract agreed to by the respondent are to be recorded as a partof the screening panel record, along with any comments by the complainant. Thescreening panel shall have no further involvement in processing the diversion.The Diversion Committee shall process the diversion in accordance with Rule15-533.
(b)(7)(C) The informal complaint shall be referred to the ProfessionalismCounseling Board established pursuant to the Supreme Court?s Standing Order No.7;
(b)(7)(D) The informal complaint shall be referred to theCommittee chair with an accompanying screening panel recommendation that therespondent be admonished;
(b)(7)(E) The informal complaint shall be referred to theCommittee chair with an accompanying screening panel recommendation that therespondent receive a public reprimand; or
(b)(7)(F) A formal complaint shall be filed against the respondentif the panel finds there is probable cause to believe there are grounds forpublic discipline and that a formal complaint is merited. A formal complaintshall also be filed if the panel finds there was misconduct and the misconductis similar to the misconduct alleged in a formal complaint against therespondent that has been recommended by a screening panel or is pending indistrict court at the time of the hearing.
(b)(8) Aggravation and Mitigation. The respondent and OPC maypresent evidence and argument as to mitigating and aggravating circumstancesduring the screening panel hearing, but this evidence shall not be considereduntil after the panel has determined the respondent engaged in misconduct.
(b)(9) Multiple cases involving the same respondent. More than onecase involving the same respondent may be scheduled before the same panel. Indetermining whether a rule has been violated in one case, a screening panelshall not consider the fact it may be hearing multiple cases against the samerespondent.
(b)(10) Recommendation of admonition or public reprimand. Ascreening panel recommendation that the respondent should be disciplined undersubsection (b)(7)(D) or (b)(7)(E) shall be in writingand shall state the substance and nature of the informal complaint and defensesand the basis upon which the screening panel has concluded, by a preponderanceof the evidence, that the respondent should be admonished or publiclyreprimanded. A copy of the recommendation shall be delivered to the Committeechair and a copy served upon the respondent and OPC.
(c) Exceptions to screening panel determinations andrecommendations. Within 30 days after the date of service of the determinationof the screening panel of a dismissal, dismissal with letter of caution, areferral to the Diversion Committee, a referral to the ProfessionalismCounseling Board, or the recommendation of an admonition, or the recommendationof a public reprimand, OPC may file with the Clerk of the Committee exceptionsto the determination or recommendation and may request a hearing. Therespondent shall then have 30 days within which to make a response, and theresponse shall include respondent's exceptions, if any, to a recommendation ofan admonition or reprimand. Within 30 days after service of the recommendationof an admonition or public reprimand on respondent, the respondent may filewith the Clerk of the Committee exceptions to the recommendation and mayrequest a hearing, and OPC shall have 30 days within which to file a response.The Committee chair may allow a reply to any response. No exception may befiled to a screening panel determination that a formal complaint shall be filedagainst a respondent pursuant to Rule 15-511. All exceptions shall include amemorandum, not to exceed 20 pages, stating the grounds for review, the reliefrequested and the bases in law or in fact for the exceptions.
(d) Procedure on exceptions.
(d)(1) Hearing not requested. If no hearing is requested, theCommittee chair will review the record compiled before the screening panel.
(d)(2) Hearing requested. If a request for a hearing is made, theCommittee chair or a screening panel chair designated by the Committee chairshall serve as the Exceptions Officer and hear the matter in an expeditiousmanner, with OPC counsel and the respondent having the opportunity to bepresent and give an oral presentation. The complainant need not appearpersonally.
(d)(3) Transcript Request. Upon request the Committee chair shallextend the deadlines for filing exceptions or responses in order to allow aparty time to obtain a transcript of the screening panel proceedings. The costof such transcript shall be borne by the requesting party. The party obtainingthe transcript shall file it with the Clerk, together with an affidavitestablishing the chain of custody of the record.
(d)(4) Burden of proof. The party who files exceptions undersubsection (c) shall have the burden of showing that the determination orrecommendation of the screening panel is unsupported by substantial evidence oris arbitrary, capricious, legally insufficient or otherwise clearly erroneous.
(d)(5) Record on exceptions. The proceedings of any hearing onexceptions under this subsection (d) shall be recorded at a level of audioquality that permits an accurate transcription of the proceedings.
(e) Final Committee disposition. Either upon the completion of theexceptions procedure under subsection (d) or if no exceptions have been filedunder subsection (c), the Committee chair shall issue a final, writtendetermination that 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, 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 15-504(b)(12) or 15-516 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 a determination of fact that is not supportedby substantial evidence when viewed in light of the whole record before theCourt;
(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 15, RulesGoverning Licensed Paralegal Practitioners.
(g) General procedures.
(g)(1) Testimony. All testimony given before a screening panel orthe Exceptions Officer shall be under oath.
(g)(2) Service. To the extent applicable, service or filing ofdocuments under this Rule is to be made in accordance with Utah Rules of CivilProcedure 5(b)(1), 5(d) and 6(a).
(g)(3) Continuance of disciplinary proceedings. A disciplinaryproceeding may be held in abeyance by the Committee chair prior to the filingof a formal complaint when the allegations or the informal complaint containmatters of substantial similarity to the material allegations of pendingcriminal or civil litigation in which the respondent is involved.
Effective November 1, 2018