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Aggravating lawyer gets suspension, not disbarment

A recent case before the Utah Supreme Court shows what can happen when a lawyer argues with a judge, even after the judge asked the lawyer not to interrupt him and sit down.  In Ciardi v. OPC, the lawyer in question was disbarred following his conduct at the courthouse during a roll call, as well as his conduct during a screening panel hearing before the Ethics and Discipline Committee of the Utah Supreme Court.  On appeal, while the Utah Supreme Court rejected the lawyer’s renewed challenges to venue and jurisdiction, the court overturned the lawyer’s disbarment in favor of a two-year suspension, finding that the proper aggravating factors did not warrant disbarment.

Lawyer Argues With Judge, Causes Disturbance After Being Escorted From Courtroom

The lawyer’s path to a suspension began during an incident in Fifth District Court in 2011.  At that time, the lawyer was scheduled to appear before the court on behalf of a client.  However, the lawyer was not present when the judge called his case.  As a result, the judge dismissed the lawyer’s case.  During the next roll call, the lawyer interrupted the judge’s calendar call and asked the court to recall his case.  The judge told the attorney not to interrupt his calendar call and to sit down.  The attorney refused to heed the judge’s request, continuing to argue with the judge.

Seeing that the lawyer was refusing to calm down, the judge ordered the lawyer to leave the courtroom.  As the lawyer was escorted from the courtroom by a bailiff, the lawyer caused a disturbance.  Once outside the courtroom, the lawyer continued to yell and make disparaging remarks about the judge.

Lawyer Becomes Belligerent With Court Clerk, Takes Two Bailiffs to Remove him From Courthouse

The lawyer then went to the court clerk’s office where he became belligerent with the clerk.  In light of the lawyer’s belligerence, the clerk called a bailiff to deal with the disgruntled lawyer.  The bailiff reportedly asked the lawyer to leave the courthouse several times, but the lawyer refused, opting instead to continue yelling at the bailiff and making additional disparaging remarks about the judge.  Eventually, a second, and third, bailiff were called to assist with the belligerent lawyer.  The incident in the clerk’s office lasted for more than an hour the Utah Supreme Court set forth in its opinion.  Finally, the lawyer was escorted from the courthouse by two of the bailiffs.  While he was being escorted the lawyer yelled obscenities at the bailiffs in front of members of the public present at the courthouse.

Lawyers takes Alford Plea on Charges of Disorderly Conduct and Refusing a Lawful Order

In the wake of the incident at the courthouse, the lawyer was charged with disorderly conduct and refusing a lawful order.  The lawyer entered into an Alford plea (whereby a defendant in a criminal case does not admit to the criminal act and asserts innocence) to the disorderly conduct charge after the prosecutor reduced the charge to an infraction.

Complaint Filed With OPC, Screening Panel Hearing Held

At some point, the Office of Professional Conduct (“OPC”) was supplied with a complaint over the lawyer’s conduct before the Fifth District Court.  The complaint led the Ethics and Discipline Committee of the Utah Supreme Court to hold a screening panel hearing, during which the panel interviewed several witnesses and took other evidence regarding the lawyer’s actions before the Fifth District.  The lawyer, as well as the witnesses, who resided in Southern Utah, appeared by telephone for the screening panel.  During the screening panel hearing, the lawyer continued to employ same tactics that led to his removal from the Fifth District Court previously.  The Utah Supreme Court’s opinion sets forth:

At the hearing, [the lawyer] continued to behave badly, making disparaging remarks about the fifth district judge and the court, calling the latter’s proceedings “slipshod, amateurish” and, in the case of appeals from justice courts, “sham appeals.”  [The lawyer] also expressed his disdain toward the screening panel members and the proceedings before the panel, referring to the hearing as a “complete sham” and a “joke proceeding.” He also repeatedly interrupted witnesses and referred to them as liars and idiots.

Screening Panel Directs OPC to File Complaint Against Lawyer in District Court

The screening panel subsequently directed the OPC to file a formal complaint against the lawyer in district court, which the OPC did.  The OPC complaint asserted that the lawyer’s conduct before the Fifth District Court and the screening panel violated Rule 3.5 of the Utah Rules of Professional Conduct, which prohibits “conduct intended to disrupt a tribunal.”  The complaint further alleged that the lawyer’s conduct violated Rule 8.4(d), which rule prohibits attorneys from engaging “in conduct that is prejudicial to the administration of justice.”

Lawyer Moves to Dismiss Complaint for Lack of Jurisdiction

The lawyer responded to the OPC complaint by filing a motion to dismiss for lack of jurisdiction.  The lawyer argued in his motion to dismiss that venue for the screening panel hearing held in Salt Lake City was improper.  Additionally, the lawyer asserted that the district court where the OPC complaint was filed lacked jurisdiction over the formal complaint, “advancing various theories of conspiracy and wrongdoing by the screening panel, witnesses before the panel, and OPC staff.”

District Court Denies Motion to Dismiss, Lawyer “Threaten[s] All Involved”

The district court held a telephonic hearing on the lawyer’s motion to dismiss.  Neither the lawyer nor the OPC presented any oral argument during the telephonic hearing.  The district court denied the lawyer’s motion to dismiss during the telephonic hearing.  As an immediate response to the court’s ruling, the Utah Supreme Court’s opinion states that “[the lawyer] threatened all involved, stated that he was not going to participate any further with this case, made other inappropriate comments, and upon [the] court asking when counsel could be ready for trial, [the lawyer] hung up his phone.”

Sticking to his guns, the lawyer failed to participate in an evidentiary hearing before the district court.  After the hearing, the district court ruled that the attorney had violated Rules 3.5(d) and 8.4(d) of the Utah Rules of Professional Conduct based upon the lawyer’s actions before the Fifth District Court, as well as during the screening panel hearing.

Lawyer Disbarred by District Court as Sanction for Misconduct

The district court then held a separate sanction hearing, during which the court noted that the presumptive sanction for violation of Rules 3.5 and 8.4 was suspension.  However, after analyzing the potential aggravating circumstances presented by the lawyer’s case, “including a pattern of misconduct both in prior proceedings and in the disciplinary proceedings before the district court, refusal to acknowledge the wrongful nature of his conduct, and substantial experience in the practice of law,” the court “determined that a sanction greater than a suspension was warranted and disbarred [the lawyer].”  The district court noted that it could not consider any mitigating factors because the lawyer did not participate in the sanctions hearing where the lawyer could have presented a defense for his actions.

Utah Supreme Court Rejects Lawyer’s Venue and Jurisdiction Arguments, But Entertains Appropriateness of Sanction

On appeal, the lawyer renewed his challenges to venue and jurisdiction, arguing that “the misconduct and unethical conduct of the OPC attorneys in this case is egregious and warrants not only dismissal of the Bar complaint, but disqualification and sanctions against the prosecutor and his supervisor.”  The Utah Supreme Court rejected the lawyer’s contentions, but exercised its obligation of plenary review to reach the appropriate sanction for the lawyer’s conduct.

Suspension, Not Disbarment, Appropriate Sanction

In addressing the appropriate sanction, whether disbarment of suspension, the Utah Supreme Court began by noting that “the ultimate responsibility for proportionality in discipline cases rests with this court.”  As a result, the court said that it need not defer to the district court’s decision “in deciding what may constitute appropriate discipline.

In its opinion, the Utah Supreme Court acknowledged that “district courts, which must consider sanctions in the first instance, still have limited caselaw on which to rely.”  In the instant case, the Utah Supreme Court explained that the district court had relied on the supreme court’s holding in In re Discipline of Babilis and the explicit language of the “relevant rules of professional conduct.  The supreme court said that based on that review, the district court properly determined that the appropriate sanction based on the violations of Rule 3.5 and 8.4 was a suspension.

District Court’s Analysis of Aggravating Factors “Goes Awry”

However, the supreme court said the district court’s analysis of the aggravating and mitigating factors “went awry.” The supreme court set forth that the district court became set on disbarment rather than suspension based upon what it described as “multiple and significant aggravating factors,” including that “[i]n addition to his actions at the courthouse in June of 2011, and his statements at the Screening Panel hearing in 2012, [the lawyer] has filed numerous pleadings that are replete with derogatory comments about judges and the court system in Utah.”  The court went on to note that “[t]he other aggravating factors listed [by the district court] include[d] not only [the lawyer’s] lengthy experience in the practice of law and his refusal to acknowledge the wrongful nature of his misconduct, but also his ‘obstructionist’ behavior at the screening panel hearing.”

Certain Aggravating Factors Considered by District Court Never Charged as Misconduct

The court said that, the problem with the district court’s discussion of the lawyer’s statements in other pleadings before the district court, was that those statements have never been charged as misconduct previously, and the lawyer’s “behavior and statements at the hearing are already part of the course of conduct being sanctioned, and therefore not properly treated as aggravating factors.”  As a result, the supreme court said that the only aggravating factors were the lawyer’s “lack of remorse and his experience.”  To that end, the supreme court stated:

While we sympathize with and share the district court’s level of concern over [the lawyer’s] behavior, we are not persuaded that the aggravating circumstances in this case “overwhelmingly demonstrate the propriety of imposing a greater sanction than the presumptive sanction” as the district court concluded.  Moreover, to the best of our knowledge, attorneys in Utah and other jurisdictions have received suspensions rather than disbarment for similar violations of rules 3.5(d) and 8.4(d).  We believe that a lengthy suspension, certainly one as long as the two years that have passed since the district court disbarred [the lawyer], is an adequate response to the specific behavior charged and found by the district court.

We note that in so holding, we do not take the view that there should be no consequences for [the lawyer’s] reckless and offensive allegations of bias, discrimination, and incompetence of Utah judges and Utah courts contained in his pleadings before the district court and this court.  Should the OPC deem it advisable, these actions would certainly warrant an investigation.

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Copyright 2016

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