Utah Sanctions Prosecutor
A seven-month suspension of a prosecutor was affirmed and reversed in part by the Utah Supreme Court.
Tyler James Larsen was a prosecutor with the Davis County Attorney’s Office from 2007 to 2010. He was charged with two sets of violations of the Utah Rules of Professional Conduct in 2012. One charge alleged a misstatement of fact in violation of rule 3.3. The other alleged a failure of a prosecutor to make a timely disclosure of exculpatory evidence to the defense under rule 3.8. In the proceedings reviewed on this appeal, the district court found that Larsen had violated both rules. And it imposed a sanction of suspension for seven months—thirty days for the rule 3.3 violation and six months for the rule 3.8 violation.
The court overruled the false statement finding
…the district court erred in implicitly treating a reckless misstatement as the legal equivalent of a knowing one. It did so in concluding that Larsen’s misstatement was “knowing or reckless,” and in basing its determination of a violation of rule 3.3 on the finding that Larsen could have avoided making a misstatement if he had undertaken a “reasonably diligent inquiry.” This too was error. Our rules do not treat knowledge and recklessness as equivalents. They state that “‘[k]nowingly,’ ‘known’ or ‘knows’ denotes actual knowledge of the fact in question.” UTAH R. PROF’L CONDUCT 1.0(g) (emphasis added).
We reverse on the basis of this definition. Actual knowledge is distinct from recklessness. And our rules require actual knowledge to sustain a charge under rule 3.3. So we reverse on the ground that the district court conflated knowledge and recklessness and did not find that Larsen made a knowing misstatement.
But affirmed the failure to timely disclose
In so doing we reject Larsen’s plea for a reduced sanction. The prosecution’s duty of disclosure under rule 3.8(d) is an important one. And the district court found that Larsen’s violation of this rule was not only knowing but intentional. That strikes us as a sufficient reason to sustain a suspension and to reject Larsen’s request for a lesser sanction such as a public reprimand.
Yet we also reject OPC’s—and amicus Utah Association of Criminal Defense Lawyers’—request for more serious sanctions. OPC has asked for the imposition of a three-year suspension in this case. And amicus seeks an outright disbarment. Both requests are based on the same essential point—that the prosecutor plays an important role in our system of justice, and that a failure to disclose exculpatory evidence can do substantial harm to the administration of justice. We do not disagree with these premises. But we nonetheless affirm the six-month suspension imposed in this case. We do so on three grounds: (1) a suspension from the practice of law, even for six months, is a serious penalty for a practicing lawyer; (2) there are at least some mitigating circumstances in this case; and (3) the precedents involving sanctions against prosecutors under rule 3.8(d) include a few suspensions for six months but none for any greater period, and no disbarments
The court noted that there are no precedential Utah cases but rejected the proposed approach of the Office of Professional Conduct
We see little upside and plenty of downside in the proposed requirement of a single, overarching sanction proposed by OPC. The downsides are apparent in our review of the decision below. If the district court had imposed a single, overarching sanction, our review on appeal would have been hampered in a couple of respects: We could not have identified the separate sanction imposed for the count on which we reverse and remand, and we could not have evaluated the propriety of the sanction imposed on the count on which we affirm. The latter point seems especially significant. Our review as to the propriety of a sanction imposed for a violation of one of our rules of professional conduct would be substantially impaired if we had before us only a single, overarching sanction in a case involving multiple ethics charges.
For these reasons we reject the OPC’s cross-appeal. We affirm the district court’s decision to impose separate sanctions for the separate charges at issue in this case—and, indeed, urge future courts to follow the pattern that was followed here, as it will aid our review of attorney discipline cases on appeal.
(Mike Frisch)