Preponderance Standard Applies In Utah Bar Discipline

The Utah Supreme Court has held that the Bar must establish misconduct by a preponderance of evidence.

The attorney was found in violation of Rule 8.4(b) for tax offenses.

 The Office of Professional Conduct (OPC) of the State Bar thereafter charged Steffensen with violating rule 8.4(b) by committing these tax-related offenses. In the district court proceedings on these charges, the court found that OPC had established a violation of rule 8.4(b) by a preponderance of the evidence. It also acknowledged, in response to Steffensen’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 Steffensen’s criminal acts by that criminal standard of proof. Because 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).

The court

 We affirm. The question presented finds a clear and explicit answer in our rules. The Utah Rules of Lawyer Discipline and Disability expressly prescribe the applicable standard of proof…

 Lawyers and litigants are free to seek an audience with one of our advisory committees if they wish to advocate for an amendment to our rules. Those committees consider such requests on a regular basis. And our process for striking the best procedural balance—for affording a fair opportunity to be heard without bogging down the system with too much procedure—is ongoing. We do not foreclose the possibility of adopting a higher standard of proof on a charge of a ―criminal act‖ in a proposed amendment to our rules in the future.

But we 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. Steffensen makes no effort to tie his challenge to the preponderance standard to any traditional, established tenets of due process.

(Mike Frisch)