Note: Please refer to the Docket, Second Amended Complaint, and Order of Discipline that were sent to the class members via email. Certain documents referenced in this blog post are not readily available on the Internet.
As a profession, lawyers are bound by ethical rules of practice in order to maintain their license. The Utah Supreme Court has vested the authority of the regulation of the practice of law to the Utah State Bar. See Judicial Council Code of Judicial Administration § 14-102(s)(1). The Utah State Bar’s Office of Professional Conduct (“OPC”) is responsible for ensuring that lawyers are following the Rules of Professional Conduct and are authorized to investigate allegations of violations of the Rules of Professional Conduct, prosecute allegations in District Court, and provide informal guidance to Bar members regarding professional conduct. See Office of Professional Conduct, Utah State Bar, http://www.utahbar.org/opc/ (last visited Nov 1, 2018); The Discipline Process, Utah State Bar, http://www.utahbar.org/opc/the-discipline-process/ (last visited Nov 1, 2018); see also Judicial Code of Judicial Administration § 13. Failure to follow the rules can lead to punishments varying from no action taken on the part of the OPC if the claim is not meritorious, a slap on the wrist for a violation of the rules in which the harm was minimal, to more serious punishments such as suspension or disbarment.
Within the last week, news of the suspension of Sean Young’s license for three years was heavily reported on. See Jessica Miller, Ineffective trial attorney? Appeal for Utah death row inmate sent back to trial court for an evidentiary hearing, The Salt Lake Tribune, http://archive.sltrib.com/article.php?id=5040340&itype=CMSID (last visited Nov 1, 2018); Jessica Miller, This Utah attorney faced complaints from 20 clients — including a man sent to death row. Now, he’s banned from practicing law for three years., The Salt Lake Tribune, https://www.sltrib.com/news/2018/10/30/this-utah-attorney-faced/ (last visited Nov 1, 2018); Annie Knox, Utah attorney barred from practice for 3 years; He says he’s done with law anyway DeseretNews.com (2018), https://www.deseretnews.com/article/900039636/utah-attorney-barred-from-practice-for-3-years-he-says-hes-done-with-law-anyway.html (last visited Nov 1, 2018). The articles all refer to four cases that were mishandled by Mr. Young, specifically calling out the Douglas Lovell murder trial. During the handling of the Lovell case, Mr. Young lied to his co-counsel and stated that he had contacted the eighteen witnesses assigned to him when in fact he only contacted two of the witnesses, and Mr. Young only had cursory conversations with those two witnesses. See Second Amend. Compl. ¶¶ 53-55 from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3rd Dist. Court, Salt Lake City, filed May 14, 2018. In addition to this allegation, Mr. Young is alleged to have violated Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4(a) (Communication), Rule 1.15(d) (Safekeeping Property), Rule 1.16(d) Declining or Terminating Representation, and Rule 8.1(b) (Bar Admission and Disciplinary Matters) across the four cases, totaling seventeen counts. See Second Amend. Compl. In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3rd Dist. Court, Salt Lake City, filed May 14, 2018.
What was not mentioned in the news is that Mr. Young had sixteen other OPC cases opened against him that were dismissed as part of the settlement agreement between counsel for the OPC and Mr. Young. See Order of Discipline from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3rd Dist. Court, Salt Lake City, filed August 6, 2018. Additionally, scrutiny of the docket indicates that Mr. Young failed to timely Answer an Amended Complaint and the OPC sought a default judgment against Mr. Young. See Docket from In the Matter and Discipline of: Sean P. Young #10999, 160907629, 3rd Dist. Court, Salt Lake City. Since his disbarment, Mr. Young has indicated that he has been interested in pursuing a new line of work and leaving the practice of law anyways. See Annie Knox, Utah attorney barred from practice for 3 years; He says he’s done with law anyway DeseretNews.com (2018), https://www.deseretnews.com/article/900039636/utah-attorney-barred-from-practice-for-3-years-he-says-hes-done-with-law-anyway.html (last visited Nov 1, 2018).
Bar Associations typically place a high premium on ethical behavior of their members. Lawyers must complete Continuing Legal Education (“CLEs”) as part of maintaining their licenses and ethics and professional conduct is usually a standard requirement as part of the CLE submissions. For the Utah State Bar, a total of 24 CLE credits must be submitted by lawyers every two years. Of those 24 credits, 3 of those credits must be on ethics and one of those ethics credits being focused on professional conduct.
Questions for consideration:
1. Do you think that the Utah State Bar should require more CLEs to focus on ethics?
2. I have heard in passing that the Bar will not move to suspend or disbar attorneys even if they egregiously violate the Rules of Professional Conduct (including comingling fees). Should the Bar be more aggressive in pursuing action against attorneys that violate the rules or perform extensive auditing on attorneys?
Yes, and I would argue particularly for newly-licensed attorneys. In most states, those who want to sit for the bar exam are required to take the Multistate Professional Responsibility Examination (MPRE), as a requirement prior to bar admission. The MPRE, which essentially measures student understanding of matters related to professional conduct and character and fitness, is sometimes the only exposure bar-eligible candidates receive to ethics related to the legal profession outside of an school mandated ethics class. Therefore, CLEs on Ethics should be regularly offered by the Utah State Bar. Not all ethical failures are made simply because individuals are inherently unethical. Attorneys must understand the codes of professional responsibility and the rules of practice and the disciplinary actions that can be taken when professionals don’t know or understand those rules.
ReplyDeleteI think you are right, Jaclyn. More training for younger lawyers would be a good idea. I also like the idea of passing a professional responsibility test too!
DeleteI think new lawyers are required to go though the New Lawyer Ethics Program for their first CLE cycle, bumping their total CLE requirement to 27.
DeleteI couldn’t find this information for Utah, but one state had surveyed the legal community and respondents complained that the ethics classes provided the same content year after year, and as such, attorneys felt the classes were redundant and unnecessary. I think that improving the courses might be as important as increasing the number of hours. Perhaps the answer is adding classes that go beyond the basic requirements for meeting the ethical standards and address legal responsibilities in other ways. I also wonder if the panel screening the complaints should include more than just attorneys. What about adding judge? What about and a citizen representative—after all, it’s the public who is being protected, right?
ReplyDeleteI definitely agree about the quality and content. I've watched a number of CLE webinars from the Utah Bar Association and the Utah Paralegal Association and the audio is often not very good and the video quality and editing is non-existant. NBI and the Federal Bar CLEs tend to be better but still, it is exhausting watching these videos as they tend to last a long time and at a certain point, the information isn't anything new.
DeleteEthics in particular is a challenge because the principles of ethical behavior do not tend to change but the technology and circumstances do, but the CLEs do not reflect that. There is definitely a need for more innovation when it comes to ethic CLE courses.
All too often regulatory bodies are lax on following through with holding members to a defined standard. There are tangible, cascading effects of any professionals not being held to the minimum standards prescribed by their respective licensing authority. Oftentimes considerable care is taken to create the framework under which to monitor and assert accountability and compliance. The problem seems to come in executing what’s in writing. I get that this source is a petition collection page, but clearly this is an issue that needs a great deal of attention, if not legislative actions. How do you hold those accountable for holding those accountable? https://www.change.org/p/justice-not-politics-hold-prosecutors-accountable-for-misconduct-in-wrongful-convictions The role of politics cannot be overstated, especially in this day and age. It feels like our legal system is being held hostage to political will and influence. It is impacting our judiciary at every tier, as well. http://www.abajournal.com/magazine/article/harmless_error_new_study_claims_prosecutorial_misconduct_rampant/
ReplyDeleteI completely agree that the standards should be high, and training rigorous and ongoing, however, all steps must be taken to provide the oversight to the oversight. It’s a shame we have to deal with this, but for every remarkable, well-designed system, there are the inherent adverse influences of humans misbehaving.
I didn't put this in my post, but one issue I've heard regarding the lax regulation of attorneys is that the panel of attorneys who screen the complaints before a disciplinary action in filed in court have a self interest in protecting themselves and others in the profession. Is there another system or structure of individuals who may be better suited to review the complaints and not feel that pressure?
DeleteWell the fox watching the hen house is never a good idea. Unfortunately that model is ever present in a multitude of arenas. People have to want the oversight and build the impartial bodies into the framework to make it work. If everyone is satisfied with the statice quo, it will never happen. An example from my world would be the Civil Service Commission. It is a statutory body that has oversight on many of the processes within public safety. There are also thresholds in discipline that afford the complainant a hearing before the Commission. They have strict rules and regs, many of the same legally binding components of the courts and, by most measures, they do a fantastic job.
DeleteAs a legal outsider, it's easy for me to conclude that attorneys should hold each other more accountable. After all, a bad attorney's reputation reinforces negative stereotypes about lawyers. I found an older article from 1997 (https://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=2774&context=lawreview) which stated that despite the ABA's Rules for Professional Conduct, attorneys have "historically been loath to report each other to disciplinary tribunals... (and) that every disciplinary agency in the United States has complained that relatively few attorneys have reported the misconduct, despite knowledge of such misconduct."
ReplyDeleteTo add some real world experience, the use of reporting is often used as a weapon. In Park City, some attorneys use bar complaints as a method of tattling on other attorneys and some even solicit former clients of other attorneys to draft bar complaints. It is despicable behavior.
DeleteI agree with Leila. As someone who sits through many webinars and conferences that also count as CLE credits for my lawyer friends, I find many of them to be quite superficial. Just like in any business, continuing education may be required but the level of engagement of the participants may be quite low. Even if it was more engaging or participatory, the fact is an education session is not going to promote good behavior. Lawyers holding each other accountable and harsher sanctions will be what best prevents unethical behavior. If part of the problem with reviewing allegations of misconduct is the system of peer review, perhaps there could be an established neutral body to review these matters or it could be left to judges to decide (of course I do not know if that is a better system).
DeleteOften if coaches engage in egregious behavior that results in unethical conduct violations, they are prescribed a penalty to attend an NCAA regional rules seminar that is held for compliance professionals. After speaking with my colleagues who are required to shuttle their coaches from education session to education session, they say the coaches do not learn much. It is more of an embarrassment or a waste of their time and budget to attend. If this punitive measure prevents unethical conduct in the future, it is not because they learned something about ethical conduct in the session. It is only reinforcing what they already knew from the proactive education they have been provided throughout their careers, which clearly did not prevent the issue. Peer reporting and accountability are the key pieces to improving the ethics of any industry.
There are some interesting points being made. I would dare say that CLE credits are not really going to do much to resolve ethical issues. Many career areas have continuing education credits, I've been to them. What do I see? I see professionals who are there and they may be engaged, but generally they aren't there to change. They are simply checking a box on a list to maintain and license of some sort.
ReplyDeleteI would argue the ultimate responsibility of ethical attorneys lies in the Utah State Bar Association. However like mentioned by Martha, this regulating bodies are often too lax. I like Leila's idea of attorneys holding each other accountable, couple that with a stricter set of guidelines by the governing body, hopefully there would be some sort of improvement.
I've definitely seen this at events that offered similar professional education (CLE, CME, CPE, and so on). It's decidedly a "get out of it what you put into it" kind of thing.
DeleteThat said, we wouldn't propose doing away with these requirements to maintain licensure or certification.
The conference I attended offered CPE credits for a session on cost-cutting. Among the helpful advice doled out by the panel: "have a budget for your clinic" and "don't just let the unpaid part-time intern go shopping with the company card." Having worked at the U, I had a tough time keeping a straight face, but the private-practice administrators in the room were nodding, wide-eyed.
No credible professional would have found this "education" valuable, or so I thought. If CLE credits come with the same kind of ease, then it should be incumbent on the organizations offering them to tighten up what they're selling -- and, you're right, for governing bodies to demand more in exchange for their rubber-stamps.
Erin, I've had the same experience with my CRA requirements. The credits are really audited so I often watch Youtube videos on records management for them. Most of the information from one video to the next is the same and I don't think I've learned anything new from those videos.
DeleteAs a side note, I think that is why having face-to-face interaction is important and having only online classes for a degree is problematic. Certainly it is easier to complete the coursework in that manner, but having active and engaged interactions with others, especially when there is a personal stake in the work, is very valuable in the learning process.
Peter, that is a great question and also it is a good case to observe and discuss about.
ReplyDeleteBefore getting into the legal requirements of professional development to further discuss Mr. Young’s situation. I personally feel that ethics come from basic sources, one of them is “your home” and the other “your education”. Most lawyers just want to be educated in the technical side when gaining knowledge. In our case, as current students, we also have a class that is helping us how to build an ethical culture as part of our careers. It might not be seen as important, but that is what it makes a difference in our careers in the real world, working with real people. Unless lawyers and experts want to end up like Mr. Young.
Answering your question: Do you think that the Utah State Bar should require more CLEs to focus on ethics?
My answer is, NO! I have read the MCLE rules of the Utah State board, the purpose, definition, credit hours, certification and others. And I have not seen anywhere in these rules where it says that the accredited institution or organization that submits the certification of completion of the MCLE must send a profile report, of practice, exercises and a meticulous analysis of the behavior of such lawyers. They (organizations and institutions who offer MCLE) are failing to report accurately outcomes from lawyers to the Utah State Bar. And the USB should add these policies to their rules (Rule 14-401 to Rule 14-417). Accurate reports, not only the completion of credit hours, but also behavioral report during lawyers’ professional development courses.
The Bar should be more aggressive on the accountability from these organizations or institutions “accredited”. I am very surprise that the scrutiny of lawyers on CLE is very vague and deficient.
I am a PDSO (President Designated School Official), I have two pass a test every 2 years to keep my license, I also have to complete professional development courses, and we have a territorial supervisor from ICE that visit us and interviews us every four months. They report to USCIS and SEVIS to report accurately that we comply with the rules, law and high standards of ethics.
And to your point about the reporting, it is typically just a certificate of completion that is submitted. Occasionally asynchronous videos will have letters or codes embedded that must be recorded and entered at the end of the video in order to receive the credit but I have yet to view a CLE where I have needed this code. Additionally, all it takes is for viewers to skip around and hunt for the code.
DeleteIf there are a vast number of unethical lawyers currently practicing law, then yes, the CLE credits focusing on ethics and professional conduct needs to be updated. I know physicians have the same problem. However, nurses are not shy about writing up a complaint about the physician in question. Perhaps those that work closest with the attorney should be the one putting him in check. Is there a way a legal assistance or paralegal could anonymously submit a complaint to the OPC?
ReplyDeleteRaelene, I believe the answer to your question is yes, but I'm not sure that a legal assistant or paralegal would file the complaint. The OPC functions as an administrative agency and does afford due process to attorneys to confront any complaints against them. This typically involves an initial response and filing of supporting documents before escalating to a panel hearing, followed by a lawsuit if the allegations are credible.
DeleteDue to the power imbalance between a lawyer and a paralegal and the potential to be fired, it is more likely that the paralegal would quit and find other work than report bad behavior on behalf of one of their attorneys. The issue may be raised with upper management in a firm, but depending on the status of the lawyer, it seems like this would be an instance where it may be easier to get rid of an ethical whistleblower than the unethical attorney.
There are people who are bad at every profession--bad doctors, bad contractors, bad police. And people who work with each other are often reluctant to point a finger at their colleagues. Strict definitions of what constitutes as "bad" or unethical certainly helps. In Mr. Young's case as well as others who perform poorly in their chosen professions, it may also be helpful for them to understand what being a lawyer actually constitutes and means. This is a way the Bar could help out up and coming lawyers to understand what they're getting into. Of course I also agree that CE should be encouraged and refined to include the ethics of a being a lawyer, but I also understand that often, especially as people get more senior in their positions, CE is optional.
ReplyDeleteLawyers are given an extreme amount of trust, and have an exceptionally important role in the lives of the people that depend on them. If a practicing lawyer is found to have violated the rules of professional conduct at all, I think the bar should be more aggressive in pursuing action against the violating individual. If it was known that the rules were fiercely enforced, I believe those subject to them would ensure they were informed of what was required so they don’t find themselves in trouble. Maybe that means a less experienced attorney is supported by a mentor with greater experience until they can demonstrate their own understanding of professional conduct. Performing audits is also a great idea! I am not sure how often this is happening, but I do believe this is a better tool than increasing CLE that focuses on ethics.
ReplyDelete