Article, 0222 UTBJ, Vol. 35, No. 1. 35

AuthorJohn Bogart, J.
PositionVol. 35 1 Pg. 35


No. Vol. 35 No. 1 Pg. 35

Utah Bar Journal

February, 2022

January, 2021

John Bogart, J.

Third Party Subpoenas in the Context of Attorney Disciplinary Investigations

In 2020, Utah Supreme Court overhauled attorney disciplinary proceedings. Although a number of the procedures and burdens remain substantively unchanged, there are some changes that deserve notice, in particular subpoenas to third parties.

Attorney discipline is, essentially, a three-step process: (1) complaint and investigation, (2) presentation to a panel of the Supreme Court Ethics and Discipline Committee (ethics panel) by the Office of Professional Conduct (OPC), and (3) litigation before the district court. Complaints may be dismissed by OPC on investigation, or held to be unfounded by the ethics panel, or a settlement may be reached, ending the process before it reaches the district court. That general outline of process is unchanged.

Under the new rules, however, both the accused lawyer (Respondent) and OPC have subpoena powers during the investigation phase (the phase prior to presentation to an ethics panel) without need of court involvement. Rule 11-512(a) of the Utah Supreme Court Rules of Professional Practice provides that “the Respondent may, for good cause, request the Committee chair authorize service of a subpoena.” The chair is the chair of the Ethics and Discipline Committee of the Supreme Court, out of which the various ethics panels are constituted. Utah Sup. Ct. R. Pro. Practice 11-502(e). Under Rule 11-523, OPC files a written request with the Committee chair for a subpoena, which “must describe the purpose for seeking the subpoena.” The Respondent can object to OPC’s request, but the 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.” Id. R. 14-523(b). These two provisions raise some questions.

Start with a curiosity in the text of Rule 11-523 governing an OPC subpoena. In considering whether to approve an OPC request to serve a subpoena, the Committee chair weighs two factors: (a) “the materiality and necessity” of the request and (b) the burden on the custodian. Turning to subpoenas by a Respondent, a different standard governs whether the subpoena request should be approved by the Committee chair. The “materiality and necessity” of the request and the burden on the custodian are no longer the factors to be weighed. Instead, issuance of a subpoena is based on “good cause.” Utah Sup. Ct. R. Pro. Practice 11-512. As there was a deliberate choice of different language, “good cause” must mean something different from, i.e., require consideration of factors other than or in addition to, “the materiality and necessity” of the request and the burden on the custodian. But what are they? What is “good cause” for a subpoena? Is this a lower standard, i.e., may a Respondent serve a subpoena even if the information sought is neither material nor necessary? Does the Respondent need to show more than necessity and materiality? Does the burden on the recipient not matter when a Respondent seeks a subpoena? Why are there different standards, or are there?

Here is another curiosity in the subpoena provisions: OPC may have a subpoena served on Respondent, but Respondent may not serve a subpoena on the OPC. The subpoena provision applicable to Respondent provides for service only on third parties. Utah Sup. Ct. R. Pro. Practice 11-512(a) (the Respondent may apply for leave to serve a subpoena “before the screening panel authorizes the OPC to commence an Action against the...

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