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.
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