When A Utah Attorney Is Convicted
The Utah Supreme Court reversed and remanded a district court decision not to suspend a convicted attorney on an interbim basis
This case involves a lawyer, Aaron Kinikini, who pled guilty to felony discharge of a firearm. Upon learning of the conviction, the Office of Professional Conduct (OPC) moved in the district court for Kinikini‘s immediate interim suspension. The OPC did not deem the offense to implicate his honesty or trustworthiness. Rather, it argued that interim suspension was required because the conviction of felony discharge of a firearm reflected adversely on Kinikini‘s fitness to practice law, since it is a crime of violence. The OPC‘s argument was premised on the elements of the offense.
Kinikini opposed the motion, arguing that it was insufficient for the district court to look only at the elements of the crime as a legal matter. He asserted that the district court must look at the specific factual circumstances of his criminal conduct and determine whether his actual conduct reflected adversely on his fitness to practice law.
The district court had denied the motion for interim suspension
We hold that the determination of whether a lawyer‘s crime of conviction falls within one of the categories requiring interim suspension—in that it reflects adversely on the lawyer‘s honesty, trustworthiness, or fitness to practice law—is a legal question about the nature of the crime. A district court should make this determination based on the elements of the offense, not the particular factual circumstances of the respondent‘s criminal conduct. This is so because in a proceeding for interim suspension under rule 11-564 of the Supreme Court Rules of Professional Practice, it has necessarily already been determined in a separate criminal proceeding that the respondent committed the crime—in
other words, that the lawyer‘s conduct satisfied the elements of the criminal offense. And where the elements of the crime of conviction implicate the lawyer‘s honesty, trustworthiness, or fitness to practice law, it damages the legal profession for the lawyer to continue practicing law, even as the ultimate professional sanction against the lawyer is being determined.
The offense
Aaron Kinikini, a lawyer, pled guilty to discharge of a firearm, which is a third-degree felony. As explained in his plea statement, ―On December 18, 2020, in Salt Lake County, Mr. Kinikini discharged a firearm, striking the driver‘s side tires of a vehicle that his ex-wife was operating. He had reason to believe that this could have endangered her or the other occupants of the car.
When a Utah attorney is convicted
rule 11-564 requires district courts to determine, as a matter of law, whether the crime of conviction reflects adversely on the lawyer‘s honesty, trustworthiness, or fitness to practice law based on the elements of the offense. This is a categorical finding that does not take into account the factual circumstances surrounding the particular criminal conduct at issue. Where a lawyer has been convicted of a crime, it necessarily has been determined that the lawyer‘s conduct fell within the elements of the offense of conviction. Accordingly, the district court should determine whether the elements of the crime of conviction implicate rule 11-564.
The court thus reversed the district court and remanded for application of its ruling to the issue of interim suspension.
Deseret News reported
Just one day after the American Civil Liberties Union of Utah announced it had hired Aaron Kinikini as its new staff attorney, Salt Lake police arrested him after they say he fired a gun at a car in which his children were riding.
The mother of at least three of Kinikini’s children arrived to pick them up at his residence Friday evening. The woman and three children were inside the vehicle when Kinikini “stood behind the vehicle, preventing the victim from leaving,” according to a police booking affidavit.
Kinikini told police that the woman “drove at him at a high rate of speed,” the affidavit states. Police say he then produced a handgun and fired at the vehicle, hitting the “driver side front and rear tires.”
The report does not indicate whether anyone in the vehicle was injured by the gunfire.
Kinikini was booked into the Salt Lake County Jail for investigation of aggravated assault, three counts of domestic violence in the presence of a child, unlawful detention, criminal mischief and illegal discharge of a firearm.
Kinikini’s Twitter account says he is a father of five. Court records indicate divorce proceedings occurred in 2014.
Police requested that he be held without bail, saying his release “would constitute a substantial danger to another individual or to the community, or is likely to flee the jurisdiction of the court if released on bail,” according to the affidavit.
A spokesman for the ACLU of Utah declined to comment Saturday about Kinikini’s arrest.
According to a press release distributed Thursday by the ACLU, Kinikini is a graduate of the University of Utah S.J. Quinney College of Law, served most recently as the legal director at the Utah Disability Law Center and is an active member of the Utah State Bar.
The news release touts Kinikini’s legal career, noting he had “a proven track record of active and innovative civil rights litigation on behalf of clients of all ages.” The ACLU of Utah wrote that in 2018, the organization worked with the Disability Law Center, then under Kinikini’s legal direction, to reach a positive settlement with the state of Utah to “expand and strengthen legal protections for adults with disabilities involved in guardianship proceedings with their parents.”
The release also includes a quote attributed to Kinikini in which he shared his excitement for joining the organization and working on behalf of the disadvantaged.
“I am honored and excited to be joining this organization as it continues to expand its advocacy work beyond the courthouse and into grassroots organizing and efforts to engage with, support and empower communities of color, the unsheltered, the incarcerated, and all Utahns whose legal and human rights are at risk,” Kinikini said.
(Mike Frisch)