Ciceronian Review

Not An Administrative Subpoena

If the subpoenas under the disciplinary rules are not grounded in the state constitution, might they be grounded in a statute?  There are no statutes directly addressing lawyer disciplinary processes, as far as I know.  But there is an indication in the minutes of the Advisory Committee that suggest that they, at least, think that there is support for such subpoenas in the Administrative Procedures Act. 

Subpoenas are mentioned in two places in the Act: 63G-4-203(1)(e) and 63G-4-205.

203(1)(e) says agencies may issue subpoenas to compel production of evidence for informal proceedings (but discovery is otherwise prohibited).

205 provides that agencies may set out rules for discovery in formal adjudicative proceedings, including subpoenas.

Yet this is no help because neither the OPC nor, more importantly, the Ethics Committee is an agency for purposes of the statute.  63G-4-103(b) defines agency and states that the term "does not mean ... the courts."  The Ethics Committee is not covered then because it is entirely a creature of the courts, created and supervised by the Supreme Court.  And, as the Constitution says that the Supreme Court governs lawyer discipline, there is no obvious route around this obstacle.

Perhaps the case law concerning the OPC or Article VIII?

 

Not In The Text

A natural starting point for grounding the subpoena power of the Ethics Committee and its chair is the Utah Constitution.  The rulemaking power of the Supreme is set out in Article VIII, Section 4:

The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature. Except as otherwise provided by this constitution, the Supreme Court by rule may authorize retired justices and judges and judges pro tempore to perform any judicial duties. Judges pro tempore shall be citizens of the United States, Utah residents, and admitted to practice law in Utah. The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.

The last sentence is the one that might give a hook. It gives the Supreme Court the power to make rules concerning "the conduct and discipline of persons admitted to practice of law."  The Supreme Court then has the power, which it has exercised, to set up a rule-governed process for disciplinary actions and investigations.  That power would encompass the ability to make rules requiring those in practice to cooperate with investigations, to provide documents and information in an investigation, and so on.  But my question is not whether the Supreme Court can do those sorts things but where the power to force third party non-lawyers to provide documents and information, sit for depositions, etc., lies.  Subpoenas of this sort are not within the scope of "conduct and discipline of persons admitted to practice law" because the subjects do not even purport to practice law.  Innocenza and her company are lawyers or providers of legal services. On its face, Section 4 gives no basis for issuing subpoenas.  And, in general, the Supreme Court has told Utahns that plain language is one of the keystones for understanding the Utah Constitution.  So we look elsewhere.

Pointless Appeal

Under the new Rules of lawyer discipline in Utah, either or both OPC and Respondent may serve subpoenas after obtaining approval of the chair of Ethics Committee.  (11-512 and 11-523.). As noted last time, the standards for OPC and Respondent are not quite the same; at least they are described differently.  The information flow is tilted in favor of OPC, which can issue subpoenas to Respondent and to third parties while Respondent may issue subpoenas only to third parties.  I do not know the basis for the Oversight Committee's decision to structure these things in this manner -- there are no notes with the new Rules and the Oversight Committee minutes are a model of corporate minute taking.  There is no indication at all of why anything is being decided one way rather than another; one must be satisfied with a list of topics which were, however briefly, mentioned. 

An aspect of the new Rules that I mentioned but did not previously discuss is that the process for opposing or challenging or attacking a subpoena.  A third party may challenge a subpoena by Respondent by complaining to the chair of the Ethics Committee or by an "proper application" to a District Court judge.  11-512(d).  (11-512(c) says the subpoena may be enforced by a district court ("upon proper application") and 11-512d) says the district court of the Committee chair "will hear and determine any attack on an issued subpoena".  How does the chair hear and determine when the application has to go to the district court?  Is that on referral by the court, as a kind of special master?  Only the district court issues a "resulting order."   So the chair issues a recommendation to the court?   

A challenge to an OPC subpoena goes only to a District Court judge.  11-523(e).  No appeals from the decision of the chair or the District Court until after the "entry of a final order in the disciplinary proceeding."

One oddity and one injustice: Why the difference in treatment of challenges to a subpoenas?  Why confine challenges to OPC subpoenas to a filing in a District Court?  Is the chair too biased to consider the challenge?  But that is who approves the subpoena in either case, so it is not bias on that basis.  Is it that the chair is too close to OPC?  But then the chair should not be deciding challenges in either case.  Is it a concern that Respondents will routinely challenge OPC subpoenas to Respondent and forcing it into court increases the costs to Respondent and so is slightly discouraging?  That seems a poor line of reasoning, and an improper use of procedure.  

The injustice is that there is no appeal of a decision on a challenge to a subpoena.  Technically, one could appeal after the close of the proceeding, but that is an empty purse.

It is not clear when that occurs.  Are the disciplinary proceedings everything before filing a case in the District Court, or is the lawsuit also part of the disciplinary proceedings?  The definitions do not help s they define Action (the civil lawsuit filed by OPC) but do not define "proceeding". 

Consider third party Innocenza who receives a subpoena from OPC for personal and business records to which she objects.  First, Innocenza must file her objection with a District Court.  She must hire a lawyer to address the business records.  She has to pay the Court in order to file whatever it is that is appropriate.  So she incurs expenses. What does Innocenza file?  The Rule says "on proper application".  What does that mean?  A motion?  But if a motion is called for why does the Rule not say that?  As it does not say a motion is needed, then one must assume that other sorts of things, i.e., documents other than motions, will satisfy the Rule.  One would like to know what -- a letter?  An email?  Does it even have to be a document?  I suppose if a lawyer in involved it would be a motion as that seems the safest course.  Still, why such unhelpful drafting?  Why create traps for the self-represented?  If it is a motion under URCP 45 (or 45 and 37), why not say that?

Or maybe Innocenza provides her objections and waits for OPC to seek an enforcement order.  At least then OPC pays the filing fees.  Maybe that is the plan.  There is a possible hitch in that the Rules say that an attack on a subpoena is decided under URCP 45, but nowhere says that objections are to stated as provided for under URCP 45 -- I would guess that URCP 45 grounds for objection apply to these subpoenas as well, and no others, but there is nothing that says that.  And how are objections made exactly?  Does the recipient send a letter objecting?  Do they have to serve OPC and Respondent?  What is the time frame for objections?  The safe guess is URCP 45 controls everything not specified as different, but that is not what these Rules say. 

Rule 11-542 says that URCP, URE, etc. apply in Actions, which are proceedings in court.  11-533 says that URCP governs "filing and service of documents" "to the extent applicable."   So it is likely, but not certain, that URCP 45 governs.  The URCP filing and service Rules are built on how things get to the court clerk and to parties to the case -- there is no court case if there is no Action, so does one just lop off the mentions of filing with the court and assume everything else remains the same? 

Maybe it is that these issues are solved by notice on the face of the subpoena.  There is no approved form referenced in the Rules.  Ah, says the Helpful One, just use the URCP 45 form approved by the court.  Good idea, except it cannot be done.  The URCP form requires information that is not available.  Recall that the subpoena is issued before there is a case in District Court, so there is no court case, no case number or case name, and no court with jurisdiction.  How is Innocenza supposed to sort all this out?  She hires a lawyer.

Suppose now that Inncenza has made her objections and the District Court has overruled the objections.  She can do nothing more, according to Rule 11-523 until the proceeding is concluded.  Innocenza has been forced to produce documents and sit for an intrusive and, in her view, improper deposition.  Her recourse is wait until all the damage is done and is effectively irreparable and then file an appeal.  To what end?  What could she obtain from the Court of Appeals or the Supreme Court as remedy?  A note thanking her for complying with the District Court order and apologizing for that Court's error?  The documents are out, the time lost, the answers are out.  While there may be policy reasons to limit appeals by OPC and Respondent, what are the arguments for denying third parties due process and the ability to challenge decisions about subpoenas? 

When may Innocenza file this appeal?  At the end of the proceeding, but proceeding is not a defined term.  Maybe it means just the proceedings before the Ethics Committee, but it could equally encompass any subsequent Action (defined as a lawsuit). 

That leaves the question of the source of the subpoena.  Which promises some trouble of its own. 

Utah's New Disciplinary Rules

The Utah Supreme Court has recently made changes in the processes of attorney discipline.  The entire set of procedural rules have been revised and replaced.  It is essentially a three-step process: complaint and investigation, presentation to an ethics panel, litigation before the District Court.  That is the same.  There have been changes in the investigation process.  Under the new set of rules, both the lawyer (Respondent) and OPC have subpoena powers.  Rule 11-512(a) gives subpoena power to the  Respondent:  "the Respondent may, for good cause, request the Committee chair authorize service of a subpoena".  The process under 11-523 is a little different for OPC:  the OPC files a written request for a subpoena which "must describe the purpose for seeking the subpoena."  The Respondent can object, but Committee chair "will grant or deny the subpoena request, without a hearing, based on weighing: (1) the materiality and necessity of the requested documents ...and (2) the burden to the custodian".

These provisions raise some questions in my mind.  Start with a drafting decision.  In considering whether to approve an OPC request for permission to serve a subpoena, the Committee chair does not consider objections by the Respondent.  The chair weighs "the materiality and necessity" of the request and the burden on the custodian.  Presumably the subpoena is under URCP 45 (as later provisions about quashing or enforcing reference application of Rule 45).  Rule 45 allows for objections beyond materiality, necessity, and burden.  There are objections to the wording of a subpoena, to privileged and confidential material, for example.  Are they now ruled out of consideration?  Well, this is only the issuance stage so perhaps these and other objections can b e raised by the recipient.  The standard for allowing a Respondent to serve a subpoena is different.  It is not about materiality and necessity, but "good cause".  Presumably 'good cause' is a different standard, or the same language would appear in both provisions.  But how are the standards different?  Is it just that OPC has to explain why it wants to serve a subpoena and Respondent does not?  That cannot be right as the Committee chair permits a subpoena by the Respondent only for good cause, which I think entails that the Respondent has to give some explanation for seeking leave to serve.  But the Rule does not really say that. 

Here is another curiosity of the subpoena provisions -- OPC may subpoena the Respondent, but the Respondent may not subpoena OPC.  11-512(a) says that the Respondent may apply for leave to serve a subpoena "before the screening panel authorizes the OPC to commence an Action against the Respondent ... on a third party."  I have not found a duty for OPC to disclose its documents, etc., to the Respondent.  It can make a voluntary disclosure of a summary of charges, but that is not the same thing at all. 

A final point about textual oddities:  a subpoena served by a Respondent, but not one served by the OPC, can be challenged before the Committee chair or a District Court.  "The Committee chair or the district court in wherein the subpoena enforcement is being sought will hear and determine any attack on an issued subpoena as provided for in Rule 45."  So the chair reviews the subpoena and authorizes service because the subpoena meets the good cause standard, and then the chair reviews "attacks" on the very subpoena.  Well, that is surely not a good way to get an impartial review of the subpoena.  An OPC subpoena can only be challenged by going to court.

A provision I will return to later:  "Any resulting order by the district court is not appealable before entry of a final order in the proceeding." 

There is an interesting underlying question: what is the source of the subpoenas power here?  Next time.

Humbled By Honor

As part of re-entry, I have been assiduously reading LinkedIn posts.  (I learned "assiduously" from the late Mayor Harold Washington, who seemed to me a great man and one who died too young.  He liked the word I think; he used it frequently.)  People naturely announce awards they or colleagues received.  The formula response is "I am honored and humbled."   I still stumble of the "humbled" part.  Why does some group announcing one is great at something or other make one humble?  Is the message that one is humbled by being in such august company?  That is stock line too, but it equally mysterious.  If one thought one did not deserve the award, turn it down so someone who does deserve it receives it.  If one is not up to the standards of the other recipients, decline the award.  It seems to me a fraud. 
It is like the now standard "if anyone was offended by [], I apologize."  Which is not an apology.  It is placating to avoid making an apology. 

But, speaking of humbled, failing to do an obviously right thing can humble.  The Utah Bar, to continue a prior complaint, should be humbled by its failure to say anything in response to the attack on the Capitol.  The South Carolina Bar made a statement condemning the attack.  Why is the Utah Bar silent?  So much for the bar oath. 

Zion Is Silent

The January 6 attack on the Capitol has elicited lots of responses.  There is a statement signed by 157 Law School Deans.  They denounce the attack.  157 is a large portion of accredited law schools -- about 3/4 of the 204 accredited law schools.  The deans of both of the Utah law schools signed.  But the Utah Bar has said nothing.  No statement about the events.  In fact, the Bar leadership has been silent individually.  Neither members of the Bar Commission nor the Bar President (with one exception) will even respond to emails about the subject.  I suppose they will wait until the regularly scheduled meeting in February.  Justice can wait after all, the issues only concern the Constitution and rule of law and such stuff, which is of no special concern to a Bar Association.  Sarcasm is not helpful.. It is a genuine issue of concern, and quite troubling that the Bar is silent now, and that its leadership refuses even to explain its silence.  The Bar has issued plenty of other statements over the last years which really were political -- its promotion of Utah Institute for Legal Inclusion, for example.  I admit that I find impossible, not merely difficult, so understand how the latter activity is proper for the Bar but it should say nothing about January 6.  If the Bar was voluntary, I would leave. I

Trump's Lawyers Demonstrate The Vacuity Of Rules Of Professional Conduct

Trump's lawyers filed just over 60 lawsuits aimed at overturning the election results.  None have succeeded, all have been dismissed at the initial pleading stage.  In just one of those cases has a judge gone so far as to consider sanctions under Rule 11.Despite repeating the same factual and legal claims, failure in one forum seems to have had no effect on filings in another forum so that, with one exception, judges are treating these suits as run of the mill litigation failures.  That should be troubling.  After all, the same set of disproven or entirely unsupported factual claims appear over and over.  How could it be that repeating rejected factual claims is not a violation of Rule 11?  The Rule requires reasonable investigation before filing and reasonable belief in the factual and legal allegations.  Yet lawyer after lawyer signed off on claims of vote fraud that have no basis in reality.  Is there some special provision known only to judges that says that right-wing political fantasy is a proper basis for filing suit?  Or is it some notion that the dismissal is all that really matters, doing anything other than dismiss will make martyrs of the lawyers?  They need no help on that score - they insult the court on dismissal claiming incompetence and political influence tainted the judges.  If 60 defeats is not discouraging, why overlook the waste of resources and the violation of duties? 

It is one thing for state court judges to be leery of imposing sanctions.  As they stand for election or confirmation, they might have to face some consequence for acting on the Rules.  But federal judges face no consequences, real or imagined.  There is no risk for them if they maintain standards and enforce rules, including Rule 11. 

The Rules of Professional Conduct make clear that 'because the client wants to' is not a basis for a lawsuit, and does not justify filing. Commercial litigation with such a record would, I think, result in sanctions against the lawyers.  All that talk about civility and standards, of a noble profession, look ridiculous today.  Why bother with the oath when it, at least in this context, is a sham?   

"Sorry" Is Not Enough

Had the rally and invasion of the Capital been by a predominantly African-American crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent response from the police.  Had the rally and invasion of the Capital been by a predominantly liberal or left-wing crowd, there would have been, I believe, much greater and more effective police protection of the building and those within.  And a more violent police response.  Race is not the only line to draw here, and seeing additional factors does not lessen the import of the fact that this crowd was overwhelmingly white; that it was overwhelmingly right-wing is also a part of the story, and should not be forgotten.  The reliance on language encouraging violence and extra-legal conduct is a greater part of the Republican party than elsewhere.  The verbal violence of Gringich is one starting point in that story, and his success within the party leads to this week's failed insurrection.  The thousands were and are part of the local party apparatuses of the Republican party.  It is up to that party to remove them from influence.  The talk of unity and so on is to the good, but remains advertising chatter until the Republican party turns against the violence and illegality demonstrated this week.  A single vote will not do.  That Romney was virtually alone for months against Trump means that too much of the party is intertwined with Trump's cult of illegality and violence and unifocal drive for power.

Part of what needs to be done is to reject local leadership like that of the head of the Chicago Police Union.  An apology for minimizing and excusing the events at the Capital seems to me inadequate.  Catanzara should not be head of the union.  Defending violent felonies, which is what he did, can't be reconciled with his position as the leader of a police union.  The Senators and Representatives who condoned the attack -- which is just what the votes objecting to the Electors fo Arizona and Pennsylvania, etc. -- should have no place in a national party.   

The pathetic performance of all of the security agencies and leaders shows that there is a need to reorganize and reassign, and fire, a good number of agencies and persons.  It was plain from the news reports in advance of the rally that violence should be expected, that there was an intent to attack the Capital.  Yet too few officers, no presence outside the building, no National Guard, and so on.  The Capital deserves at least the defense of a courthouse in Portland.  But it got very little. 

Over and over violence by Trump's supporters was excused and explained away.  Certainly by Republicans and conservatives.  Also by police and prosecutors, and by judges.  Courts too excused violence by right-wingers.  From little things, like the Trump bodyguard who assaulted a protester without suffering any punishment, to crowds encouraged to rough of and attack protestors, to that disgrace to the Army, Flynn. 

Change the politics, change the race, there would not have been an invasion of the Capital.  But then, there have not been calls and planning by BLM or left and liberal groups to attack the Capital. 

Not Just Trump, But Gringich and Cruz and the 108 House Members

There are few occasions on which I find that I am in agreement with an editorial of the Wall Street Journal' Editorial Board.  This morning's editorial is, however, one of those occasions.  The Republican House Members and Senators persisting in challenges to the votes of some states is worse than political theater or pandering to base.  It affirms and condones conduct which attacks the integrity of the national process, dismisses the Constitution.  The rioters and their abettors in Congress should be condemned, and the rioters prosecuted.  That members of Congress continued with the challenges is evidence that Trump's hold over the Republican Party remains strong, and that it will continue after he leaves office.  The tests will come when these folks stand for election next.  I think these people, like the Tea Party wing as a whole, will continue to control the Republican Party.