In a recent attorney discipline case before the Utah Supreme Court, the disciplined attorney argued that the proper burden of proof for attorney disciplinary proceedings involving “criminal acts” is proof beyond a reasonable doubt. However, the Supreme Courts rejected the attorney’s invitation, holding that the burden of proof applicable to attorney discipline proceedings, whether or not they involve claims of criminal acts, under the Utah Rules of Lawyer Discipline is proof “by a preponderance of the evidence.”
Disciplined Attorney Charged with Committing “Criminal Acts” in Violation of Rule 8.4
The disciplined attorney was “charged with committing criminal act[s] reflecting adversely on his honesty, truthfulness, and fitness to be a lawyer, in violation of rule 8.4(b) of the Utah Rules of Professional Conduct” by the Office of Professional Conduct (“OPC”). Those purported “criminal acts” stemmed from an investigation by the Utah State Tax Commission, “which resulted in felony charges for failure to file a proper tax return, intent to evade, and unlawful dealing with property by a fiduciary.” The disciplined attorney entered into a court diversion program as it related to the felony charges.
District Court Finds OPC Established Rule 8.4 Violation by a “Preponderance of the Evidence”
In the district court proceedings on the OPC charges, the district court found that the OPC had established its alleged Rule 8.4 violation by a preponderance of the evidence. As part of its finding, the district court “acknowledged, in response to [the disciplined attorney’s] argument that a violation of rule 8.4(b) could be established only upon proof beyond a reasonable doubt, that OPC had not proven [the disciplined attorney’s] criminal acts by that criminal standard of proof.” However, “[b]ecause the court concluded that the preponderance of the evidence standard applied, however, it held that OPC had carried its burden of establishing a violation of rule 8.4(b).”
Disciplined Attorney Argued Higher Burden of Proof Applies
On appeal, the disciplined attorney “challenge[d] the propriety of the preponderance standard on appeal.” There, the disciplined attorney “rooted [his argument against the preponderance burden of proof] in the Due Process Clause,” claiming that, in accordance with “past attorney discipline cases,” he was “entitled to due process in disciplinary actions.” The disciplined attorney claimed that under the Due Process he was entitled to “receive adequate notice of the charges against him and an opportunity to be heard in a meaningful way,” and “because [the Utah Supreme Court has] said that the level of due process required depends on the context of the proceeding, [the disciplined attorney] ask[ed] [the Supreme Court] to hold OPC to a higher standard of proof – proof beyond a reasonable doubt – in a case involving a charge that an attorney committed a criminal act.”
In support of his argument for a higher burden of proof, the disciplined attorney “cite[d] cases and other authorities suggesting generally that attorney discipline proceedings are quasi-criminal in nature.” The disciplined attorney also cited “a handful of decisions in other jurisdictions adopting a higher standard of proof for establishing that an attorney committed a criminal act in violation of provisions like our rule 8.4(b).” Finally, the disciplined lawyer “invite[d] [the Utah Supreme Court] to adopt a beyond a reasonable doubt standard for proof that he committed the criminal tax violations that were the subject of his earlier diversion agreement.”
Utah Supreme Court Holds Preponderance Standard Applies Even in Cases Where “Criminal Acts” are Alleged
The Utah Supreme Court disagreed with the disciplined attorney’s arguments over the burden of proof applicable to disciplinary proceedings, holding that “[t]he question presented finds a clear and explicit answer in [the Utah Rules of Lawyer Discipline]”. According to the court:
The Utah Rules of Lawyer Discipline and Disability expressly prescribe the applicable standard of proof. Under rule 14-517, “[f]ormal complaints of misconduct, petitions for reinstatement and readmission, and petitions for transfer to and from disability status shall be established by a preponderance of the evidence.” That same rule also provides a higher standard of proof—a “clear and convincing” standard; but the higher standard applies only to “[m]otions for interim suspension pursuant to Rule 14-518.
The court then set forth, “This is not a case that involves a motion for interim suspension under rule 14-518. So the applicable standard of proof under our rules is preponderance of the evidence.”
The Due Process Question
Having determined that the proper burden of proof under the Utah Rules of Lawyer Discipline is by a preponderance of the evidence, the court turned to the “due process question.” There, the court noted that “[t]he constitutional promise of a meaningful opportunity to be heard is unquestionably available in attorney discipline proceedings.” Even still, the court said “the Due Process Clause is not a free-wheeling constitutional license for courts to assure fairness on a case-by-case basis. It is a constitutional standard—one measured by reference to traditional notions of fair play and substantial justice.” As a result, the Utah Supreme Court “retain[ed] discretionary license to assure fair procedure in cases that proceed through our justice system. But our usual course for doing so is promulgating rules of procedure.”
Due Process Does Not Outweigh Rules for Attorney Discipline
With that framework in mind, the court stated:
Our rules set the principal guideposts for the fair opportunity to be heard that is afforded to litigants in our judicial system. We may adjust those standards as we see the need to do so over time. But our principal means of doing so is by our established process for amendment.
[W]e see no basis for effectively amending our rules in the course of this adjudicative proceeding. Rule 14-517 speaks with straightforward clarity. It prescribes a preponderance standard for all “[f]ormal complaints of misconduct.” And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of “criminal act” under rule 8.4(b) of the Utah Rules of Professional Conduct.
Nor do we see a basis for overriding those clear terms on due process grounds. [The disciplined attorney] makes no effort to tie his challenge to the preponderance standard to any traditional, established tenets of due process. He asserts only that the upsides of a higher standard of proof outweigh the downsides. Such a policy argument is a perfectly respectable basis for a request for a forward-looking amendment to our rules; but it falls far short as a ground for overriding the clear terms of an existing rule. Our rules set forth existing procedural standards. They are entitled to respect unless and until we amend them.
Ultimately, the court said, “We do not rule out that possibility in Utah. But we see no basis for overriding the preponderance standard set forth in our rule as it stands today.”
Explicit Overrides Implicit
The court noted that at oral argument it “explored an alternative basis for [the disciplined attorney’s] position in the current text of our Rules of Professional Conduct.” As part of that discussion, the court noted that Rule 8.4’s “reference to proof that a lawyer commit a criminal act might implicitly incorporate the traditional standard of proof in a criminal proceeding,” and “if the basis for charging an attorney with an ethics violation is a claim that he commit a criminal act, it could at least arguably be said that a court could not uphold such a claim without proof beyond a reasonable doubt.”
Notwithstanding the aforementioned discussion, the court “reject[ed] this reading of our rules.” The court concluded:
The tension between rule 14-517 and rule 8.4(b) is a contest between the explicit and the implicit. Rule 14-517 states a standard of proof explicitly. Rule 8.4(b) is at most implicit; at best, the reference to the commission of a criminal act can be seen as implicitly incorporating the standard of proof beyond a reasonable doubt. But the implicit cannot properly control the explicit … To the extent there is a conflict between an explicit statement in one provision and a mere implication from another, the explicit must control.
Any Change in the Burden of Proof Applicable to “Criminal Act” Disciplinary Proceedings Will Have to Come by Amendment
As a result of the Utah Supreme Court’s ruling, the burden of proof applicable to all attorney disciplinary proceedings is proof by a preponderance of the evidence. This is true even in cases where the attorney’s discipline is the result of alleged criminal acts. While the court’s ruling may foreclose future challenges to the burden of proof in court, there is still a chance that the rules applicable to attorney discipline may be amended to change the burden of proof applicable to attorney discipline cases involving “criminal acts.”