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Rule 15-510. Prosecutionand appeals.

(a) Informal complaint of unprofessional conduct.

(a)(1) Filing. A disciplinary proceedingmay be initiated against any licensed paralegalpractitioner by any person, OPC counsel or the Committee, by filing with theBar, in writing, an informalcomplaint in ordinary, plain and concise language setting forth the acts or omissions claimed to constituteunprofessional conduct. Upon filing, an informal complaint shall be processed in accordance with this article.

(a)(2) Form of informal complaint. Theinformal complaint need not be in any

particularform or style and may be by letter or other informal writing, although a form

may beprovided by the OPC to standardize the informal complaint format. It is

unnecessarythat the informal complaint recite disciplinary rules, ethical canons or a

prayerrequesting specific disciplinary action. The informal complaint shall be signed by

thecomplainant and shall set forth the complainant's address, and may list thenames and addresses of otherwitnesses. The informal complaint shall be notarized and contain a verification attesting to the accuracyof the information contained in the complaint.In accordance with Rule 15-504(b), complaints filed by OPC are notrequired to contain a verification. The substance of the informal complaintshall prevail over the form.

(a)(3)Initial investigation. Upon the filing of an informal complaint, OPC counsel shall conduct a preliminary investigationto ascertain whether the informal complaint issufficiently clear as to its allegations. If it is not, OPC counsel shall seekadditional facts from thecomplainant; additional facts shall also be submitted in writing and signed by the complainant.

(a)(4)Potential Referral to Professionalism Counseling Board. In connection with any

conductthat comes to their attention, whether by means of an informal complaint, a

preliminaryinvestigation, or any other means, OPC counsel may, at its discretion, refer any matter to the ProfessionalismCounseling Board established pursuant to Rule 14-303. Such referral may be inaddition to or in lieu of anyfurther proceedings related to the subject matter of the referral. Suchreferral should be in writing and,at the discretion of OPC counsel, may include any or all information included in an informal complaint or additionalfacts submitted by a complainant.

(a)(5)Notice of informal complaint. Upon completion of the preliminary investigation,

OPCcounsel shall determine whether the informal complaint can be resolved in the public interest, the respondent'sinterest and the complainant's interest. OPC counsel and/or the screening panel may use theirefforts to resolve the informal complaint. If the informal complaint cannot be so resolved or if it sets forthfacts which, by their very nature, shouldbe brought before the screening panel, or if good cause otherwise exists tobring 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 Licensed Paralegal Practitioner Rules of Professional Conduct raised bythe informal complaint as preliminarily determined by OPC counsel.

(a)(6) Answer to informal complaint.Within 20 days after service of the NOIC on the respondent, the respondentshall file with OPC counsel a written and signed answer setting forth in fullan explanation of the facts surrounding the informal complaint, together withall defenses and responses to the claims of possible misconduct. For good causeshown, OPC counsel may extend the time for the filing of an answer by therespondent not to exceed an additional 30 days. Upon the answer having beenfiled or if the respondent fails to respond, OPC counsel shall refer the case toa screening panel for investigation, consideration and determination orrecommendation. OPC counsel shall forward a copy of the answer to thecomplainant.

(a)(7) Dismissal of informalcomplaint. An informal complaint which, upon consideration of all factors, isdetermined by OPC counsel to be frivolous, unintelligible, barred by thestatute of limitations, more adequately addressed in another forum, unsupportedby fact or which does not raise probable cause of any unprofessional conduct,or which OPC declines to prosecute may be dismissed by OPC counsel withouthearing by a screening panel. OPC counsel shall notify the complainant of suchdismissal stating the reasons therefor. The complainant may appeal a dismissalby OPC counsel by filing written notice with the Clerk of the Committee within15 days after notification of the dismissal is mailed. Upon appeal, theCommittee chair shall conduct a de novo review of the file, either affirm thedismissal or require OPC counsel to prepare a NOIC, and set the matter forhearing by a screening panel. In the event of the chair's recusal, the chairshall appoint the vice chair or one of the screening panel chairs to review anddetermine the appeal.

(b) Proceedings before Committee andscreening panels.

(b)(1) Review and investigation. Intheir role as fact finders and investigators, screening panels shall review allinformal complaints referred to them by OPC counsel, including all the factsdeveloped by the informal complaint, answer, investigation and hearing, and therecommendations of OPC counsel. Prior to any hearing OPC may file with theclerk and serve on the respondent a summary of its investigation. If filed, thesummary shall identify with particularity any additional violations of theLicensed Paralegal Practitioner 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's appearance. Beforeany action is taken that may result in the recommendation of an admonition orpublic reprimand or the filing of a formal complaint, the screening panelshall, upon at least 30 days? notice, afford the respondent an opportunity toappear before the screening panel. Respondent and any witnesses called by therespondent may testify, and respondent may present oral argument with respectto the informal complaint. Respondent may also submit a written brief to thescreening panel at least 10 days prior to the hearing, which shall not exceed10 pages in length unless permission for enlargement is extended by the panelchair or vice-chair for good cause shown. A copy of the brief shall beforwarded by OPC counsel to the complainant. If OPC identifies additional ruleviolations in the summary referenced in (b)(1), therespondent may file an additional written response addressing those allegedviolations prior to the hearing.

(b)(3) Complainant's appearance. Acomplainant shall have the right to appear before the screening panelpersonally and, together with any witnesses called by the complainant, maytestify.

(b)(4) Right to hear evidence;cross-examination. The complainant and the respondent shall have the right tobe present during the presentation of the evidence unless excluded by thescreening panel chair for good cause shown. Respondent may be represented bycounsel, 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 Not Charged byOPC. During the screening panel hearing, but not after, the panel may find thatrule violations not previously charged by OPC in the NOIC or summary memorandumhave occurred. If so, the screening panel shall give the respondent areasonable opportunity to respond during the hearing. The respondent mayaddress the additional charges at the hearing and also file with the Clerk andserve on OPC within two business days of the hearing a written response to thenew charges along with supplemental materials related to the new charges. Priorto making a determination or recommendation, the response and any supplementalmaterials shall be reviewed and considered by at least a quorum of the panelmembers present at the original hearing.

(b)(6) Hearing Record. The proceedingsof any hearing before a screening panel under this subsection (b) shall berecorded at a level of audio quality that permits an accurate transcription ofthe proceedings. The Clerk shall assemble a complete record of the proceedingsand deliver it to the chair of the Committee upon the rendering of the panel?sdetermination or recommendation to the Committee chair. The record of theproceedings before the panel shall be preserved for not less than one yearfollowing delivery of the panel?s determination or recommendation to the chairof the Committee and for such additional period as any further proceedings onthe matter are pending or might be instituted under this section.

(b)(7) Screening panel determinationor recommendation. Upon review of all the facts developed by the informalcomplaint, answer, investigation and hearing, the screening panel shall makeone of the following determinations or recommendations:

(b)(7)(A) The preponderance ofevidence presented does not establish that the respondent was engaged in misconduct,in which case the informal complaint shall be dismissed. A letter of cautionmay also be issued with the dismissal. The letter shall be signed by OPCcounsel or the screening panel chair and shall serve as a guide for the futureconduct of the respondent. The complainant shall also be confidentiallynotified of the caution;

(b)(7)(B) The informal complaint shallbe referred to the Diversion Committee for diversion. In this case, thespecific material terms of the Diversion Contract agreed to by the respondentare to be recorded as a part of the screening panel record, along with anycomments by the complainant. The screening panel shall have no furtherinvolvement in processing the diversion. The Diversion Committee shall processthe diversion in accordance with Rule 15-533.

(b)(7)(C) The informal complaint shallbe referred to the Professionalism Counseling Board established pursuant to theSupreme Court?s Standing Order No. 7;

(b)(7)(D) The informal complaint shallbe referred to the Committee chair with an accompanying screening panelrecommendation that the respondent be admonished;

(b)(7)(E) The informal complaint shallbe referred to the Committee chair with an accompanying screening panel recommendationthat the respondent receive a public reprimand; or

(b)(7)(F) A formal complaint shall befiled against the respondent if the panel finds there is probable cause tobelieve there are grounds for public discipline and that a formal complaint ismerited. A formal complaint shall also be filed if the panel finds there wasmisconduct and the misconduct is similar to the misconduct alleged in a formalcomplaint against the respondent that has been recommended by a screening panelor is pending in district court at the time of the hearing.

(b)(8) Aggravation and Mitigation. Therespondent and OPC may present evidence and argument as to mitigating andaggravating circumstances during the screening panel hearing, but this evidenceshall not be considered until after the panel has determined the respondentengaged in misconduct.

(b)(9) Multiple cases involving thesame respondent. More than one case involving the same respondent may bescheduled before the same panel. In determining whether a rule has beenviolated in one case, a screening panel shall not consider the fact it may behearing multiple cases against the same respondent.

(b)(10) Recommendation of admonitionor public reprimand. A screening panel recommendation that the respondentshould be disciplined under subsection (b)(7)(D) or(b)(7)(E) shall be in writing and shall state the substance and nature of theinformal complaint and defenses and the basis upon which the screening panelhas concluded, by a preponderance of the evidence, that the respondent shouldbe admonished 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 screening paneldeterminations and recommendations. Within 30 days after the date of service ofthe determination of the screening panel of a dismissal, dismissal with letterof caution, a referral to the Diversion Committee, a referral to theProfessionalism Counseling Board, or the recommendation of an admonition, orthe recommendation of a public reprimand, OPC may file with the Clerk of theCommittee exceptions to the determination or recommendation and may request ahearing. The respondent shall then have 30 days within which to make aresponse, and the response shall include respondent's exceptions, if any, to arecommendation of an admonition or reprimand. Within 30 days after service ofthe recommendation of an admonition or public reprimand on respondent, therespondent may file with the Clerk of the Committee exceptions to therecommendation and may request a hearing, and OPC shall have 30 days withinwhich 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 15-511.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)  Procedureon exceptions.

(d)(1) Hearing not requested. If nohearing is requested, the Committee chair will review the record compiledbefore the screening panel.

(d)(2) Hearing requested. If a requestfor a hearing is made, the Committee chair or a screening panel chairdesignated by the Committee chair shall serve as the Exceptions Officer andhear the matter in an expeditious manner, with OPC counsel and the respondenthaving the opportunity to be present and give an oral presentation. Thecomplainant need not appear personally.

(d)(3) Transcript Request. Uponrequest the Committee chair shall extend the deadlines for filing exceptions orresponses in order to allow a party time to obtain a transcript of thescreening panel proceedings. The cost of such transcript shall be borne by therequesting party. The party obtaining the transcript shall file it with theClerk, together with an affidavit establishing the chain of custody of therecord.

(d)(4) Burden of proof. The party whofiles exceptions under subsection (c) shall have the burden of showing that thedetermination or recommendation of the screening panel is unsupported bysubstantial evidence or is arbitrary, capricious, legally insufficient orotherwise clearly erroneous.

(d)(5) Record on exceptions. Theproceedings 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 Committee disposition.Either upon the completion of the exceptions procedure under subsection (d) orif no exceptions have been filed under subsection(c), the Committee chair shallissue a final, written determination that either sustains, dismisses, ormodifies the determination or recommendation of the screening panel. No finalwritten determination is needed by the Committee chair to a screening paneldetermination to a dismissal, a dismissal with a letter of caution, or areferral to the Diversion Committee if no exception is filed.

(f) Appealof a final Committee determination.

(f)(1) Within 30 days after service ofa final, written determination of the Committee chair under subsection (e), therespondent or OPC may file a request for review by the Supreme Court seekingreversal or modification of the final determination of the Committee. A requestfor review under this subsection shall only be available in cases whereexceptions have been filed under subsection (c). Dissemination of disciplinaryinformation pursuant to Rules 15-504(b)(12) or 15-516shall be automatically stayed during the period within which a request forreview may be filed under this subsection. If a timely request for review isfiled, the stay shall remain in place pending resolution by the Supreme Courtunless the Court otherwise orders.

(f)(2) A request for review under thissubsection (f) will be subject to the procedures set forth in Title III of theUtah Rules of Appellate Procedure. Documents submitted under this Rule shallconform to the requirements of Rules 27(a) and 27(b) of the Utah Rules ofAppellate Procedure.

(f)(3) A party requesting atranscription of the record below shall bear the costs. The party obtaining thetranscript shall file it with the Clerk of the Court, together with anaffidavit establishing the chain of custody of the record.

(f)(4) The Supreme Court shall conducta review of the matter on the record.

(f)(5) The party requesting reviewshall have the burden of demonstrating that the Committee action was:

(f)(5)(A) Based on a determination offact that is not supported by substantial evidence when viewed in light of thewhole record before the Court;

(f)(5)(B) Anabuse of discretion;

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

(f)(5)(D) Contrary to Articles 5 and 6of Chapter 15, Rules Governing Licensed Paralegal Practitioners.

(g)  General procedures.

(g)(1) Testimony. All testimony givenbefore a screening panel or the Exceptions Officer shall be under oath.

(g)(2) Service. To the extentapplicable, service or filing of documents under this Rule is to be made inaccordance with Utah Rules of Civil Procedure 5(b)(1),5(d) and 6(a).

(g)(3) Continuance of disciplinaryproceedings. A disciplinary proceeding may be held in abeyance by the Committeechair prior to the filing of a formal complaint when the allegations or theinformal complaint contain matters of substantial similarity to the materialallegations of pending criminal or civil litigation in which the respondent isinvolved.

 

EffectiveMay 1, 2019