The More Things Change, the More They Stay the Same: Investigating and Prosecuting Allegations of Attorney Misconduct
| Jurisdiction | Utah,United States |
| Citation | Vol. 20 No. 1 Pg. 9 |
| Pages | 9 |
| Publication year | 2007 |
Vol. 20, No. 1, 9. The More Things Change, the More They Stay the Same: Investigating and Prosecuting Allegations of Attorney Misconduct
Utah Bar Journal
Vol. 20, No. 1
January/February 2007
Vol. 20, No. 1
January/February 2007
The More Things Change, the More They Stay the Same
Investigating and Prosecuting Allegations of Attorney
Misconduct
by Kate A. Toomey
Does this sound familiar
During the year, as usual, disciplinary matters have been
referred to the Commission. Most of them have been the result
of the client's being disappointed with the result of the
litigation, or the amount of fees charged by the attorney
It's an excerpt from an address given in 1945 by the
president of the Utah State Bar.1 A perusal of the Bar's
early publications is a lesson not only on the enduring
nature of the challenges of policing our own, but also the
commitment of the Bar itself, through its leadership and its
members, to serving the public and the system of justice with
the highest degree of ethics and professionalism. The
procedural mechanisms for meeting that commitment have
evolved, but the themes endure.
A Short History of Professional Discipline for Attorneys In
Utah
Professional Discipline Before the Bar's Integration
Published reports of attorney discipline appear in early
volumes of the Utah Reports2 and the Pacific Reporter long
before the Utah State Bar was integrated in 1931.3 In the
pre-1931 era, accusations and information from various
sources4 were filed directly with the Utah Supreme Court,
which referred the matter to a prosecutor,5 and appointed a
referee to take evidence, report findings and conclusions,
and make recommendations to the Court. The Court sometimes
made additional findings, and in any event, made conclusions
and imposed discipline pursuant to its summary jurisdiction.6
It's hard to know for certain, but public discipline
doesn't appear to have been imposed often. According to
one early Bar publication, "For nearly fifty years and
until after Statehood, the Utah Reports reveal no
disciplinary action against a member of the Bar. In the
subsequent thirty-one years until the organization of the
State Bar, fifteen lawyers appeared before the Supreme Court
in connection with charges of unethical conduct, . . ."7
The Integrated Bar's Efforts to Establish Procedural
Rules for Investigating and Prosecuting Complaints
After the Utah State Bar's integration in 1931, the very
first Utah Bar Bulletin, subtitled "Official Organ, The
Utah State Bar," published a president's message
identifying the means by which the organized Bar would work
to eliminate public criticism of the profession, among other
things "by enforcing strictly disciplinary rules of
conduct among its members."8 One of the Commissioners
was appointed to prepare and submit rules of conduct and
discipline to the Board, and these were adopted by that body
and submitted for approval to the Supreme Court.9
The Court approved the Rules of Conduct and Discipline of the
Utah State Bar in October 1931, and they were published in
the Utah Bar Bulletin that November.10 Pursuant to these
rules, complaints were filed with the secretary of the Board
of Bar Commissioners, who forwarded them to the Commissioner
in whose division the respondent attorney last resided.11 The
Commissioner had discretion to determine whether the charges
justified an inquiry, and if so, to conduct a preliminary
investigation and make a recommendation to the Board.12 If
the Board determined that formal action was warranted, it
appointed a Committee on Discipline to conduct the hearing.13
The Board could also appoint a Prosecuting Committee to
present the case to the Committee on Discipline.14 Volunteer
committees were appointed in each district, and their
findings and recommendations were made to the Board of
Commissioners, which reviewed the cases and in turn made
recommendations to the Supreme Court.15
In January 1932, the Utah State Bar held its first annual
meeting, which included reports and addresses similar to
those published today in the Utah Bar Journal.16 Among these
was the Secretary of the Board's report concerning
disciplinary matters. By the next annual meeting, the
Secretary's report observed, "Apparently as soon as
the laity discovered that there was an organized bar with
power and authority to proceed against attorneys for
unethical actions, many persons who were unsuccessful in law
suits, or who had quarreled with their attorneys[,] filed
complaints against them."17 He noted that only one in
ten complaints had merit, and many were "adjusted by
calling the matter to the attorney's attention and
requesting that he adjust the matter with his former
client."18
The Transition From an All-Volunteer Disciplinary System
The Board and its committees quickly concluded that the work
of investigating disciplinary matters might exceed what
volunteer committees could accomplish. By the third annual
meeting in 1934, one of the committees recommended using
investigators to obtain evidence,19 and in May of that year
the Board approved the first such paid investigator to assist
in a single case.20 Of course, the number...
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