OPC v. Ciardi , 2016 UT 25 ( 2016 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 25IN THE
SUPREME COURT OF THE STATE OF UTAH
JOHN L. CIARDI,
Appellant,
v.
OFFICE OF PROFESSIONAL CONDUCT,
Appellee.
No. 20140370
Filed June 9, 2016
On Direct Appeal
Fifth District, St. George
The Honorable Gary D. Stott
No. 120500431
Attorneys:
John L. Ciardi, Pro Se
Todd Wahlquist, Salt Lake City, for appellee
JUSTICE DURHAM authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, and
Court of Appeals JUDGE PEARCE joined.
Having been recused, JUSTICE HIMONAS does not participate herein;
former Court of Appeals JUDGE JOHN A. PEARCE sat.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 John L. Ciardi appeals from a judgment of the district court
disbarring him from the practice of law for violations of the Utah
Rules of Professional Conduct. We affirm the district court’s decision
with respect to the violations of the rules but reverse and revise with
respect to the sanction.
JOHN L. CIARDI v. OPC
Opinion of the Court
BACKGROUND
¶2 Mr. Ciardi’s saga began with an incident in the Fifth District
Court in 2011, where he was scheduled to appear to represent a
client. Mr. Ciardi was not present when the judge called his case, so
the judge dismissed it. During the next roll call, Mr. Ciardi
interrupted the judge’s calendar and asked the court to recall his
case. The judge told Mr. Ciardi not to interrupt his calendar and to
sit down. Mr. Ciardi ignored these instructions and continued to
argue with the judge. The judge then ordered Mr. Ciardi to leave the
courtroom. As a bailiff escorted Mr. Ciardi from the courtroom, he
caused a disturbance. Mr. Ciardi continued to yell and make
disparaging remarks about the judge in the hallway outside the
courtroom.
¶3 Mr. Ciardi then went to the clerk’s office and became
belligerent with the clerk. The clerk found it necessary to request the
assistance of a bailiff to deal with him. The bailiff asked Mr. Ciardi to
leave the courthouse numerous times, but he refused and continued
to yell at the bailiff and make disparaging remarks about the judge.
A second, and then a third, bailiff was called to the clerk’s office,
where the incident lasted approximately one hour. Eventually, two
bailiffs escorted Mr. Ciardi out of the courthouse while he yelled
obscenities at the bailiffs in front of members of the public.
¶4 Mr. Ciardi was cited for disorderly conduct and refusing a
lawful order. He entered an Alford plea to the disorderly conduct
charge after the prosecutor reduced it to an infraction.
¶5 The Office of Professional Conduct (OPC) received a
complaint based upon Mr. Ciardi’s conduct in the courthouse. A
screening panel of the Ethics and Discipline Committee of the Utah
Supreme Court held a hearing in Salt Lake City, during which panel
members interviewed witnesses and took evidence regarding
Mr. Ciardi’s actions in the fifth district courthouse. Mr. Ciardi and
the witnesses, who were located in Southern Utah, participated
telephonically. At the hearing, Mr. Ciardi continued to behave badly,
making disparaging remarks about the fifth district judge and the
court, calling the latter’s proceedings “slipshod, amateurish” and, in
the case of appeals from justice courts, “sham appeals.” Mr. Ciardi
also expressed his disdain toward the screening panel members and
the proceedings before the panel, referring to the hearing as a
“complete sham” and a “joke proceeding.” He also repeatedly
interrupted witnesses and referred to them as liars and idiots.
¶6 The screening panel directed the OPC to file a formal
complaint against Mr. Ciardi in the district court, and the OPC did
so. The complaint alleged that Mr. Ciardi violated rule 3.5(d) of the
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Utah Rules of Professional Conduct, which prohibits “conduct
intended to disrupt a tribunal,” by his behavior both in the district
court and the screening panel hearing. The complaint also alleged
that his conduct in the district court and in the screening panel
hearing violated rule 8.4(d), which prohibits attorneys from
engaging “in conduct that is prejudicial to the administration of
justice.”
¶7 Mr. Ciardi filed a motion to dismiss the complaint against
him for lack of jurisdiction. He argued that venue for the screening
panel hearing held in Salt Lake City was improper. He also asserted
that the district court lacked jurisdiction over the formal complaint,
advancing various theories of conspiracy and wrongdoing by the
screening panel, witnesses before the panel, and OPC staff.
¶8 The district court held a telephonic hearing on the motion to
dismiss, and both Mr. Ciardi and counsel for the OPC declined to
present oral argument. The district court judge denied the motion at
the hearing. Immediately after announcing this ruling, “Mr. Ciardi
threatened all involved, stated that he was not going to participate
any further with this case, made other inappropriate comments, and
upon [the] court asking when counsel could be ready for trial,
Mr. Ciardi hung up his phone.”
¶9 True to his word, Mr. Ciardi did not participate in an
evidentiary hearing before the district court. After the hearing, the
district court found that he had violated rules 3.5(d) and 8.4(d) of the
Utah Rules of Professional Conduct. The court then held a sanction
hearing. The district court noted that the presumptive sanction for a
violation of rules 3.5(d) and 8.4(d) was suspension. The court then
evaluated the aggravating circumstances, including a pattern of
misconduct both in prior proceedings and in the disciplinary
proceedings before the district court, refusal to acknowledge the
wrongful nature of his conduct, and substantial experience in the
practice of law. The court did not find any mitigating circumstances
because Mr. Ciardi did not participate in the sanction hearing to
offer any. After weighing the aggravating circumstances, the district
court determined that a sanction greater than suspension was
warranted and disbarred Mr. Ciardi. He appeals from this sanction.
ANALYSIS
¶10 On appeal, Mr. Ciardi renews his challenges to venue and
jurisdiction and argues that “the misconduct and unethical conduct
of the OPC attorneys in this case is egregious and warrants not only
dismissal of the Bar complaint, but disqualification and sanctions
against the prosecutor and his supervisor.” We reject all of those
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JOHN L. CIARDI v. OPC
Opinion of the Court
arguments, but exercise our obligation of plenary review in the
matter of the sanction.
I. MR. CIARDI’S JURISDICTIONAL ARGUMENTS
A. Mr. Ciardi Waived His Challenge to Venue
¶11 In this appeal, Mr. Ciardi challenges the venue of his
screening panel hearing held in Salt Lake City. But he failed to raise
the question of venue at either his first screening panel hearing or
the second, continued, hearing. “[O]ur case law establishes that the
doctrine of waiver has application if defendants fail to raise claims at
the appropriate time at the trial level, so the judge has an
opportunity to rule on the issue.” State v. Cram, 2002 UT 37, ¶ 9, 46
P.3d 230 (citation omitted). Specifically, a challenge to the venue of a
civil proceeding is waived if not asserted when a court or tribunal
has a reasonable ability to address the challenge. See Johnson v. Gold’s
Gym, 2009 UT App 76, ¶ 11, 206 P.3d 302 (challenge to venue waived
when raised only after the district court granted a motion for
summary judgment). We conclude that the failure to timely raise a
venue objection to the screening panel, rather than waiting until it
was too late to address the venue issue, as Mr. Ciardi did here,
constitutes a waiver of this issue. See Bowen v. Utah State Bar, 2008 UT
5, ¶¶ 11–14, 177 P.3d 611 (attorney waived a conflict of interest
challenge to a screening panel member where he raised the challenge
eight months after the screening panel proceedings concluded and
four months after he received a public reprimand from the ethics
committee chair). Having rejected his venue challenge, we hold that
jurisdiction in the district court was proper.
B. We Decline to Treat the Question of Dismissal Based on Allegations of
Improper Conduct by Parties to the Screening Panel Hearing
Because It Is Inadequately Briefed
¶12 Mr. Ciardi also packages together several objections
regarding the screening panel hearing and argues that these alleged
defects stripped the district court of jurisdiction to adjudicate the
professional conduct complaint against him. In addressing
Mr. Ciardi’s arguments on this point, we note that his brief is
inadequate and fails to comply with our rules. First, he has failed to
demonstrate preservation in the district court of the questions he
raises, in violation of rule 24(a)(5)(A) of the Utah Rules of Appellate
Procedure. Second, he has not complied with rule 24(a)(7) requiring
that briefs contain a statement of facts with citations to the record
below. Mr. Ciardi instead has merely incorporated by reference
numerous facts set forth in his motions before the district court, with
no record citations. Finally, Mr. Ciardi’s brief in general contains no
citations to the record, leaving us with the burden of finding record
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support for his arguments (or the lack of it) ourselves. We decline to
shoulder that burden.
II. THE PRESUMPTIVE SANCTION OF SUSPENSION, NOT
DISBARMENT, IS WARRANTED IN THIS CASE
¶13 As we have previously noted, the ultimate responsibility for
proportionality in discipline cases rests with this court. Utah State Bar
v. Jardine (In re Discipline of Jardine), 2012 UT 67, ¶ 26, 289 P.3d 516(“Although we recognize as a general proposition the district court’s
advantaged position in overall familiarity with the evidence and the
context of the case, on appeal we must treat the ultimate
determination of discipline as our responsibility.” (citation omitted));
see also Johnson v. Office of Prof’l Conduct, 2014 UT 57, ¶ 14, 342 P.3d
280 (“[O]ur ‘review of attorney discipline proceedings is
fundamentally different from judicial review of administrative
proceedings or of other district court cases.’ ‘We need not, therefore,
defer to the [district court] in deciding what may constitute
appropriate discipline.’” (citations omitted)).
¶14 We acknowledge that district courts, which must consider
sanctions in the first instance, still have limited caselaw on which to
rely. In this case, the district court carefully reviewed our holding in
In re Discipline of Babilis, 951 P.2d 207 (Utah 1997) and the language
of the relevant rules of professional conduct. Based on that review,
the court properly determined that the presumptive sanction for
Mr. Ciardi’s conduct was suspension from the practice of law. Our
review of cases from other states also confirms that violations of
rules 3.5(d) and 8.4(d) typically result in suspension rather than
disbarment. People v. Brennan, 240 P.3d 887, 888, 898 (Colo. O.P.D.J.
2009) (suspension of one year and one day for repeatedly disrupting
a tribunal and engaging in conduct prejudicial to the administration
of justice); In re Greenburg, 9 So. 3d 802, 809 (La. 2009) (six-month
suspension for verbal and physical altercation with opposing
attorney in open court); Hancock v. Bd. of Prof’l Responsibility, 447
S.W.3d 844, 848, 857–58 (Tenn. 2014) (thirty-day suspension for
sending an ex parte email to a judge that called him “a bully and
clown” and demanded a written apology for denying his fee
application).
¶15 The court then examined aggravating and mitigating
circumstances, and here is where we think the analysis went awry.
The court found that “there are multiple and significant aggravating
factors that warrant [an] increase in the level of discipline to be
imposed.” The court then went on to describe those factors: “In
addition to his actions at the courthouse in June of 2011, and his
statements at the Screening Panel hearing in 2012, Mr. Ciardi has filed
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JOHN L. CIARDI v. OPC
Opinion of the Court
numerous pleadings that are replete with derogatory comments about
judges and the court system in Utah.” (Emphasis added). The
discussion of those pleadings before the district court is fairly
extensive (and, by the way, not inaccurate). The other aggravating
factors listed include not only Mr. Ciardi’s lengthy experience in the
practice of law and his refusal to acknowledge the wrongful nature
of his misconduct, but also his “obstructionist” behavior at the
screening panel hearing.
¶16 The problem lies with the fact that statements made in
Mr. Ciardi’s pleadings in the litigation before the district court (and
they are extensive and often very offensive) have never been charged
as misconduct, and his behavior and statements at the hearing are
already part of the course of conduct being sanctioned, and therefore
not properly treated as aggravating factors. See In re Ruffalo, 390 U.S.
544, 549–52 (1968) (reversing an attorney’s disbarment on due
process grounds where the penalty was based on a charge of
misconduct that was added after the attorney had presented his
testimony, depriving him of “fair notice of the charge”); Johnson,
2014 UT 57, ¶ 26 (“Attorneys are entitled to due process in
disciplinary proceedings, including ‘adequate notice of the charges
and an opportunity to be heard in a meaningful way.’” (citation
omitted)). This leaves only his lack of remorse and his experience as
aggravators. While we sympathize with and share the district court’s
level of concern over Mr. Ciardi’s behavior, we are not persuaded
that the aggravating circumstances in this case “overwhelmingly
demonstrate the propriety of imposing a greater sanction than the
presumptive sanction” as the district court concluded. Moreover, to
the best of our knowledge, attorneys in Utah and other jurisdictions
have received suspensions rather than disbarment for similar
violations of rules 3.5(d) and 8.4(d). See supra ¶ 14. We believe that a
lengthy suspension, certainly one as long as the two years that have
passed since the district court disbarred Mr. Ciardi, is an adequate
response to the specific behavior charged and found by the district
court. We therefore reinstate Mr. Ciardi’s right to practice law in the
State of Utah as of the date of this opinion.
¶17 We note that in so holding, we do not take the view that
there should be no consequences for Mr. Ciardi’s reckless and
offensive allegations of bias, discrimination, and incompetence of
Utah judges and Utah courts contained in his pleadings before the
district court and this court. Should the OPC deem it advisable, these
actions would certainly warrant investigation.
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CONCLUSION
¶18 We affirm the district court’s holdings with respect to
Mr. Ciardi’s motion to dismiss and his violations of the Utah Rules
of Professional Conduct. We vacate the order of disbarment and
determine that Mr. Ciardi’s suspension from the practice of law
should be terminated.
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