In the Matter of the Discipline of Nathan N. Jardine , 2015 Utah LEXIS 181 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 51
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of NATHAN N. JARDINE, #081215
_______________
UTAH STATE BAR,
Appellee
v.
NATHAN N. JARDINE
Appellant.
No. 20130289
Filed June 19, 2015
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 070913637
Attorneys:
Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellee
Nathan N. Jardine, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM, JUSTICE PARRISH, and
JUDGE CHRISTIANSEN joined.
JUSTICE NEHRING did not participate herein due to his retirement;
COURT OF APPEALS JUDGE MICHELE M. CHRISTIANSEN sat.
JUSTICE DENO G. HIMONAS became a member of the Court on
February 13, 2015, after oral argument in this matter, and
accordingly did not participate.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Nathan N. Jardine was suspended from the practice of law
for eighteen months for violating numerous rules of professional
conduct. Utah law allows for suspended attorneys to petition for
reinstatement, however, and several years after being suspended,
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Mr. Jardine availed himself of this opportunity by filing a petition for
reinstatement in district court. The district court denied his petition,
concluding that he failed to comply with six requirements imposed
by the rule governing reinstatement.
¶2 We affirm the district court‘s denial of reinstatement
because Mr. Jardine failed to comply with four of the rule‘s
requirements. First, he practiced law within the State of Utah while
he was suspended. Second, he failed to establish that he has the
requisite honesty and integrity to practice law. Third, he failed to
pass the Multistate Professional Responsibility Examination, and has
not presented a ―good and sufficient reason‖ for failing to do so.
And finally, he failed to keep informed about recent developments
in the law.
¶3 While ultimately affirming the district court‘s denial of
reinstatement, we reverse the court‘s ruling that Mr. Jardine must
reimburse the Utah State Bar $1,000 before he may be reinstated.
Because the payment made by the Bar‘s fund for client protection to
Mr. Jardine‘s former client cannot be traced to any violation of the
professional rules by Mr. Jardine, there is no basis for concluding
that he must reimburse the Bar.
¶4 Finally, we direct our rules committee to consider amending
rule 14-525(e)(4) of the Supreme Court Rules of Professional Practice,
which provides that a person seeking reinstatement must have the
requisite honesty and integrity to practice law, to clarify what steps a
person seeking reinstatement must take in order to establish honesty
and integrity.
Background
¶5 In August 2010, Mr. Jardine was suspended from the
practice of law for three years. He appealed his suspension to this
court. In an opinion issued on March 9, 2012, we held that Mr.
Jardine had violated numerous ethical rules, but reduced his
suspension period from three years to eighteen months.1 We issued a
separate order that same day explaining that Mr. Jardine‘s
suspension was complete and that he could begin the process of
reinstatement.
¶6 Mr. Jardine filed a petition for reinstatement. The district
court denied his petition because it concluded that he failed to
comply with rule 14-525 of the Supreme Court Rules of Professional
1 In re Discipline of Jardine, 2012 UT 67, ¶ 83, 289 P.3d 516.
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Practice, which governs attorney reinstatement following a
suspension of more than six months. Specifically, the court
concluded that Mr. Jardine failed to comply with six of the rule‘s
requirements.
¶7 The court concluded that Mr. Jardine violated rules 14-
525(e)(1) and 14-525(e)(2) by engaging in the unauthorized practice
of law while he was suspended. Before he was suspended, Mr.
Jardine agreed to represent Jonathan Glodo. Mr. Glodo was an
Alaskan resident who was involved in an automobile accident in
Idaho. Because Mr. Jardine was not licensed in Idaho, all court filings
were done through his brother, Joseph Jardine, who was licensed in
Idaho. But Mr. Jardine concedes that he, not Joseph, performed
almost all of the work on the case.
¶8 When Mr. Jardine was suspended in August 2010, the
disciplinary order provided that he was
enjoined and prohibited from practicing law in the
State of Utah, holding himself out as an attorney at
law, performing any legal services for others, giving
legal advice to others, accepting any fee directly or
indirectly for rendering legal services as an attorney,
appearing as counsel or in any representative capacity
in any proceeding in any Utah court or before any Utah
administrative body as an attorney . . . , or holding
himself out to others or using [his] name in any
manner in conjunction with the words ―Attorney at
Law,‖ ―Counselor at Law,‖ or ―Lawyer . . . .‖
The disciplinary order also noted that Mr. Jardine ―may, with the
consent of the client after full disclosure, wind up or complete any
matters pending on the date of entry of the order.‖
¶9 Mr. Jardine never informed Mr. Glodo that he was
suspended, nor did he wind up his participation in the matter.
Instead, he continued to work on the case after he was suspended.
For instance, he exchanged numerous text messages with Mr. Glodo
regarding the case. Among other things, Mr. Jardine advised Mr.
Glodo that the case was ―worth good money,‖ the ―liability is great,‖
and that he had ―a great case.‖ At one point, Mr. Glodo asked for an
update on his case. Mr. Jardine told him that a lawsuit had been filed
and that he was working on a demand letter that required his
―special attention.‖ On December 23, 2010, he sent that demand
letter to Hartford Insurance Company. The letter states that Mr.
Jardine represents Mr. Glodo, analyzes the company‘s liability and
Mr. Glodo‘s damages, and proposes a monetary settlement. The
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letter is printed on letterhead that lists Mr. Jardine‘s Utah address,
but indicates he is licensed in California. The letter made no
reference to Mr. Jardine‘s brother. Mr. Glodo ultimately terminated
his relationship with Mr. Jardine after he learned of Mr. Jardine‘s
disciplinary record. Mr. Glodo also filed an informal complaint
against Mr. Jardine with the Office of Professional Conduct (OPC).
¶10 The district court concluded that by representing Mr. Glodo,
Mr. Jardine violated two of rule 14-525‘s requirements. First, he
violated rule 14-525(e)(1), which requires compliance ―with the
terms and conditions of all prior disciplinary orders,‖ because his
prior disciplinary order specifically prohibited him from practicing
law in Utah. And second, he violated rule 14-525(e)(2), which
directly prohibits the unauthorized practice of law, by continuing to
practice law while suspended.
¶11 Third, the district court denied reinstatement because Mr.
Jardine had not demonstrated the requisite honesty and integrity
required by rule 14-525(e)(4). As a basis for this conclusion, the court
noted that ―[t]he Office of Professional Conduct demonstrated
substantial debts owed by Jardine, including taxes, child support
and a civil judgment for which a Bench Warrant was issued.‖
¶12 Fourth, the district court concluded that Mr. Jardine failed to
show that he complied with rule 14-525(e)(5) by keeping informed
about recent developments in the law. Mr. Jardine argued that he
complied with this rule by working as a paralegal, but the court
concluded that the rule ―at a minimum, . . . demands efforts
comparable to those required of practicing attorneys, which is
something more than merely being engaged in the practice of law.‖
¶13 Fifth, the court denied reinstatement because Mr. Jardine
failed to take and pass the Multistate Professional Responsibility
Examination (MPRE).
¶14 And finally, the district court denied reinstatement because
Mr. Jardine failed to reimburse the Lawyers‘ Fund for Client
Protection (Fund) for $1,000 that was paid to one of his former clients
to compensate the client for Mr. Jardine‘s allegedly unreasonable fee.
¶15 Mr. Jardine now appeals the district court‘s denial of
reinstatement. We have jurisdiction under Utah Code section 78A-3-
102(3)(c).
Standard of Review
¶16 In attorney discipline cases, ―we review the trial court‘s
findings of facts under the clearly erroneous standard, [but] we
reserve the right to draw different inferences from the facts than
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those drawn by the trial court.‖2 And ―[w]ith respect to the
discipline actually imposed, our constitutional responsibility
requires us to make an independent determination as to its
correctness.‖3
Analysis
¶17 We conclude that Mr. Jardine failed to comply with four
requirements imposed by rule 14-525 of the Supreme Court Rules of
Professional Practice. Specifically, he failed to comply with the
provisions requiring him to (1) comply with prior disciplinary
orders, (2) demonstrate the requisite integrity to practice law, (3)
pass the MPRE, and (4) keep informed about recent developments in
the law. Because he failed to comply with these requirements, we
affirm the district court‘s denial of reinstatement.
¶18 We also affirm the district court‘s denial of a continuance
because granting Mr. Jardine additional time to pass the MPRE and
complete continuing legal education classes (CLE) would have had
no effect on the outcome of his reinstatement petition. Other
deficiencies with his petition would have remained even if he had
passed the MPRE and taken CLE courses, including his prior
unauthorized practice of law and failure to establish the requisite
honesty or integrity to practice law.
¶19 While we affirm the district court‘s denial of reinstatement,
we reverse the portion of the court‘s ruling requiring Mr. Jardine to
reimburse the Bar for $1,000 that it paid to one of his former clients.
The fee Mr. Jardine charged that client was not in violation of any
rule of professional conduct, and so there is no basis for requiring
him to reimburse the Bar.
I. Mr. Jardine Failed to Comply with the Disciplinary Order
A. Mr. Jardine Engaged in the Unauthorized Practice of Law in Utah
and Therefore Violated the Disciplinary Order
¶20 The OPC contends that Mr. Jardine should not be reinstated
because he violated rule 14-525(e)(1) of the Supreme Court Rules of
Professional Practice by engaging in the unauthorized practice of
law while he was suspended. Subsection (e)(1) provides that a
person seeking reinstatement must ―fully compl[y] with the terms
2In re Discipline of Ince, 957 P.2d 1233, 1236 (Utah 1998) (citation
omitted).
3 Id.
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and conditions of all prior disciplinary orders except to the extent
they are abated by the district court.‖ The disciplinary order
imposing Mr. Jardine‘s suspension expressly prohibited him ―from
practicing law in the State of Utah‖ while suspended.
¶21 We have never precisely defined ―the practice of law,‖ and
have noted that ―[w]hat constitutes the practice of law in any given
situation requires a case-by-case decision.‖4 But we have observed
that the practice of law
is generally acknowledged to involve the rendering of
services that require the knowledge and application of
legal principles to serve the interests of another with
his consent. It not only consists of performing services
in the courts of justice throughout the various stages of
a matter, but in a larger sense involves counseling,
advising, and assisting others in connection with their
legal rights, duties, and liabilities. It also includes the
preparation of contracts and other legal instruments by
which legal rights and duties are fixed.5
Under this general definition, there is no doubt that Mr. Jardine
engaged in the practice of law during the time he was suspended.
Most notably, he utilized his ―knowledge . . . of legal principles‖ to
draft a demand letter on behalf of Mr. Glodo. Drafting a letter that
analyzes another‘s legal liability and proposes a monetary settlement
is at the core of legal representation, and, in any case, surely falls
within ―counseling, advising, and assisting others in connection with
their legal rights, duties, and liabilities.‖ Moreover, he exchanged
numerous text messages with Mr. Glodo advising him about the case
and the potential for recovery.
¶22 Mr. Jardine argues that even if his actions constituted the
practice of law, he nevertheless did not violate rule 14-525(e)(1)
because he was not practicing law in Utah. But as we have discussed,
the disciplinary order expressly prohibited Mr. Jardine from
4 Utah State Bar v. Summerhayes & Hayden, Pub. Adjusters, 905 P.2d
867, 870 (Utah 1995).
5 Id. at 869–70 (citations omitted); see also SUP. CT. R. PROF‘L
PRACTICE 14-802(b)(1) (defining ―[t]he ‗practice of law‘‖ as ―the
representation of the interests of another person by informing,
counseling, advising, assisting, advocating for or drafting documents
for that person through application of the law and associated legal
principles to that person‘s facts and circumstances‖).
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―performing any legal services for others‖ or ―giving legal advice to
others‖ within the State of Utah. And all of the work Mr. Jardine
performed on Mr. Glodo‘s case was performed in Mr. Jardine‘s Utah
office. His communications with Mr. Glodo, including the text
messages that he sent regarding the viability of Mr. Glodo‘s claim
and the prospect for recovery, were made from Utah. Moreover, the
demand letter he sent to Hartford Insurance Company listed his
Utah address. So the fact that Mr. Glodo‘s case originated, and was
later filed, in Idaho is really of no consequence because Mr. Jardine
engaged in the practice of law within Utah contrary to the
disciplinary order. Accordingly, we affirm the district court‘s
holding that Mr. Jardine failed to comply with his prior disciplinary
order.
B. The District Court’s Order Does Not Violate Rule 52 of the
Utah Rules of Civil Procedure
¶23 Mr. Jardine also challenges the district court‘s ruling on the
unauthorized-practice-of-law issue on procedural grounds. Rule 52
of the Utah Rules of Civil Procedure provides, ―In all actions tried
upon the facts without a jury or with an advisory jury, the court shall
find the facts specially and state separately its conclusions of law
thereon, and judgment shall be entered pursuant to Rule 58A . . . .‖
Mr. Jardine argues that the district court failed to comply with this
rule by not separately stating its findings of fact and conclusions of
law. But this is simply not the case. The court‘s order does separately
list the court‘s findings of fact and conclusions of law. The mere fact
that language in the court‘s ―findings‖ section also contains mixed
determinations, such as the court‘s rejection of ―Jardine‘s argument
that his conduct did not amount to the unauthorized practice of
law,‖ is of no consequence because, as we have previously noted,
―[t]he labels attached to findings of fact or conclusions of law are not
determinative.‖6
¶24 He also argues that the court‘s order is not supported by
enough subsidiary facts to show how the court reached its ultimate
conclusion. While ―the trial court‘s findings must be sufficiently
detailed and include enough subsidiary facts to clearly show the
evidence upon which they are grounded,‖ the court ―is not required
6 Zions First Nat’l Bank v. Nat’l Am. Title Ins. Co., 749 P.2d 651, 656
(Utah 1988); see also Jex v. Utah Labor Comm’n, 2013 UT 40, ¶ 42 n.8,
306 P.3d 799 (concluding that an ALJ‘s characterization of a finding
of fact as a conclusion of law was not determinative).
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to recite each‖ intermediate step in its ―reasoning that leads to its
conclusions.‖7 The court‘s order in this case suffices under this
standard. Finding number four recites the fact that Mr. Jardine
represented Mr. Glodo from his Utah office. It notes the court‘s
rejection of Mr. Jardine‘s argument that this representation did not
constitute the unauthorized practice of law. And it observes that by
practicing law Mr. Jardine violated a prior disciplinary order. On
this basis, among others, the court concluded (in a separate section of
its order) that Mr. Jardine failed to satisfy rule 14-525(e)‘s
requirements. So while the court‘s order could have been more
detailed, it certainly allows for ―meaningful appellate review.‖8
¶25 And in any event, Mr. Jardine‘s procedural argument
mirrors arguments that we have previously rejected. For instance,
we have rejected arguments that conclusory findings of fact issued
by a screening panel of the Utah Supreme Court‘s Ethics and
Discipline Committee violate due process, the Utah Rules of Lawyer
Discipline and Disability, and our caselaw.9 In so doing, we have
observed that ―[b]ecause we are charged with the power to
discipline attorneys, conclusory findings of fact do not present the
same difficulty in the attorney discipline context as they do in the
administrative context.‖10 That reasoning is equally applicable here.
Because we are charged with regulating the practice of law, 11 and
because we review attorney-discipline sanctions under a de novo
standard of review, the fact that an attorney-discipline order does
not perfectly comply with rule 52 of the Utah Rules of Civil
Procedure does not render a disciplinary action invalid.
¶26 In summary, we affirm the district court‘s decision that Mr.
Jardine violated rule 14-525(e)(1) because his representation of Mr.
Glodo while he was suspended constituted the unauthorized
7 State ex rel. S.T. v. State, 928 P.2d 393, 398 (Utah Ct. App. 1996)
(internal quotation marks omitted).
8 Id.
9Long v. Ethics & Discipline Comm. of the Utah Supreme Court, 2011
UT 32, ¶ 42, 256 P.3d 206.
10 Id. ¶ 41.
11 See UTAH CONST. art. VIII, § 4 (―The Supreme Court by rule
shall govern the practice of law, including admission to practice law
and the conduct and discipline of persons admitted to practice
law.‖).
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practice of law within Utah in direct violation of his prior
disciplinary order.12
II. Mr. Jardine Failed to Establish That He Has the
Requisite Integrity to Practice Law
¶27 In reinstatement proceedings, the person seeking
reinstatement bears the ―burden of demonstrating by a
preponderance of the evidence that [he or she] has met each of the
criteria in paragraph (e) or, if not, that there is good and sufficient
reason why [he or she] should nevertheless be reinstated.‖13 One of
subsection (e)‘s criteria is that the person seeking reinstatement show
that he or she ―has the requisite honesty and integrity to practice
law.‖14 The district court ruled that Mr. Jardine failed to meet his
burden in this regard.
¶28 The district court‘s analysis focused on three debts owed by
Mr. Jardine—a tax lien, outstanding child support, and a civil
judgment. The court observed that ―[w]hile debts alone do not
establish a lack of honesty or integrity, the debts in this case justify
requiring Jardine to show either that they are wholly in dispute, that
he is unable to make any payments on them, or that he has made
some reasonable effort to begin paying them. Jardine claims that he
is negotiating these bills, but has not shown any of the above.‖
¶29 We affirm the district court‘s conclusion that Mr. Jardine
failed to establish that he has the requisite honesty and integrity to
practice, although we do so on different grounds. The district court‘s
ruling focused on Mr. Jardine‘s failure to sufficiently address his
debts. The court‘s conclusion has some support. For instance, at the
hearing on his reinstatement petition, Mr. Jardine acknowledged that
he has an outstanding civil judgment, but failed to give a specific
explanation for why that judgment remains unpaid. He also
acknowledged at that hearing that he owes over $40,000 in child
support.
¶30 On the other hand, there is some evidence that cuts against
the court‘s conclusion that Mr. Jardine did not sufficiently address
12 We note that OPC conceded during oral argument that Mr.
Jardine‘s unauthorized practice of law during his previous period of
reinstatement cannot be used against him in a subsequent petition
for reinstatement.
13 SUP. CT. R. PROF‘L PRACTICE 14-525(g).
14 Id. 14-525(e)(4).
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his debts. For example, the only record evidence regarding the tax
lien indicates that the lien has been set aside. Also, Mr. Jardine
testified at the hearing that he pays approximately $1,000 per month
in child support and that he has filed a motion seeking a reduction in
the amount owed based on his lack of income. He also pointed out
that in 2010 he earned less than $16,000 and in 2011 he earned $8,603.
If accurate, these income amounts suggest that Mr. Jardine uses
nearly all of his income to pay his debts. Mr. Jardine neglected,
however, to provide a summary of any other assets he has that could
be used to pay his debts. Given the conflicting evidence, the question
of whether Mr. Jardine sufficiently addressed his debts is a close one.
¶31 But we need not decide whether Mr. Jardine‘s debts
demonstrate a lack of honesty or integrity, because, even ignoring
his debts, we conclude that he failed to show by a preponderance of
the evidence that he has the requisite honesty and integrity to
practice law.
¶32 During the reinstatement-petition hearing, Mr. Jardine
offered little evidence that he had the requisite honesty and integrity
to practice law. He offered only the testimony of a paralegal at his
office and the testimony of his sister. On direct examination, the
paralegal was asked whether he ever saw Mr. Jardine engage in ―any
dishonesty of any sort . . . in any of the business deals that [he] saw
[Mr. Jardine] involved in?‖ The paralegal responded ―I did not.‖ He
was then asked whether he had ―ever known [Mr. Jardine] to lie to
you or be dishonest with you in any way?‖ The paralegal responded
by saying ―[n]o.‖ Finally, the paralegal was asked whether Mr.
Jardine generally kept his word. He responded by saying ―[y]es.‖
Mr. Jardine next called his sister to testify. On direct examination by
Mr. Jardine, she testified that ―[i]t has been my experience in both
business and personal that you have always tried to be right with
everyone you know. Which would be honest and integritous [sic].
And if you feel like you have made an error that you would correct
that error.‖ These few quoted sentences constitute the entirety of Mr.
Jardine‘s affirmative showing of his honesty and integrity.
¶33 Regardless of the effect of Mr. Jardine‘s outstanding debts
on the question of honesty and integrity, conclusory testimony from
a coworker and family member is insufficient to demonstrate by a
preponderance of the evidence that he has the requisite honesty and
integrity to practice law. While rule 14-525(e)(4) could more precisely
spell out what a person seeking reinstatement must show to
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establish the requisite honesty and integrity to practice law,15 the
evidence offered by Mr. Jardine in this case falls well short of the
preponderance of the evidence standard. He offered no testimony
from former clients, other members of the bar, business associates,
community members, or any other similarly objective person. The
only testimony he offered came from a person to whom he was
arguably a direct superior and a family member. And while this
testimony is not necessarily irrelevant, it is hardly the type of
objective testimony one might get from a disinterested third party.16
On this basis, we affirm the district court‘s ruling that Mr. Jardine
15 Rule 14-525(e)(4) offers little guidance to reinstatement
candidates regarding how to sufficiently establish the requisite
honesty or integrity to practice law. The rule is more helpful to
readmission candidates because it directs them to ―appear before the
Bar‘s Character and Fitness Committee and cooperate in its
investigation of the respondent.‖ Id. The lack of guidance provided
by the rule is not concerning in this case, given the fact that Mr.
Jardine presented almost no objective evidence indicating he has the
requisite honesty or integrity to practice law. But because this issue
could raise concerns in future cases, we direct our rules committee to
consider amending the rule to provide more specific guidance to
reinstatement candidates regarding steps such candidates should
take to sufficiently establish that they have the requisite honesty and
integrity to practice law.
16 The rules governing first-time bar applicants recognize this
principle by requiring applicants to submit six character references,
none of which can come from ―persons related to [the applicant] by
blood or marriage, romantic partners, law school classmates from
the same graduating class, or current employees.‖ See Filing
Instructions and Information Utah State Bar Admission Application,
at 10, available at http://www.utahbar.org/wp-
content/uploads/2014/10/Filing_Instructions_and_Info_2015.doc
(last accessed May 26, 2015). We recognize that there are differences
in the rules governing first-time bar applicants and reinstatement
candidates. For instance, first-time bar applicants have the burden of
proving character and fitness by clear and convincing evidence, SUP.
CT. R. PROF‘L PRACTICE 14-708(a), while reinstatement candidates
required to prove honesty and integrity by only a preponderance of
the evidence. Id. 14-525(g). But these differences do not change the
common-sense notion that family members and employees may not
provide the most objective evaluation of a person‘s character.
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failed to meet his burden of establishing that he has the requisite
honesty and integrity to practice law.
III. Mr. Jardine Failed to Establish That He Kept Informed About
Recent Developments in the Law While He was Suspended
¶34 The district court also denied Mr. Jardine reinstatement
because it concluded that while suspended he had not kept informed
about recent developments in the law. Rule 14-525(e)(5) requires a
person seeking reinstatement to show that he or she ―has kept
informed about recent developments in the law and is competent to
practice.‖
¶35 Mr. Jardine argues that he kept informed about recent
developments in the law by working as a paralegal at his brother‘s
law office and that the applicable rule does not require suspended
attorneys to take CLE classes. He also argues that he satisfied the
requirement by ―help[ing] make new law in the State‖ through his
advocacy in his prior disciplinary case. We reject each of these
arguments.
¶36 First, working as a paralegal is not alone enough to satisfy
rule 14-525(e)(5). The district court correctly observed that the rule,
―at a minimum, . . . demands efforts comparable to those required of
practicing attorneys, which is something more than merely being
engaged in the practice of law.‖ Under the rules of professional
conduct, licensed attorneys cannot satisfy the requirement to take
legal-education courses by merely practicing law.17 Similarly,
reinstatement candidates cannot show they kept informed about
recent developments in the law merely by practicing as a paralegal.
So while Mr. Jardine is correct that rule 14-525(e)(5) does not require
that a reinstatement candidate take CLE classes, he must at least
show that he made some attempt at engaging in legal education.
Because he has failed to make any such showing, we conclude that
he has not complied with rule 14-525(e)(5).
¶37 Mr. Jardine‘s second argument is especially unpersuasive.
He argues that he kept informed about recent developments in the
law by representing himself in prior disciplinary proceedings. This
argument is plainly wrong. Representing oneself in a disciplinary
proceeding does not absolve a reinstatement candidate from the
obligation to keep informed about recent developments in the law.
17 See SUP. CT. R. PROF‘L PRACTICE 14-404(a) (requiring active
status lawyers to ―complete, during each two fiscal year period . . . ,
a minimum of 24 hours of accredited CLE‖).
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Instead, the fact that an attorney is subject to discipline suggests just
the opposite—that the attorney needs the benefit legal-education
programs.
¶38 Rule 14-525(e)(5) requires Mr. Jardine to show how he has
kept informed about recent developments in the law, and because he
did not do so we affirm the district court‘s ruling that he failed to
comply with the rule.
IV. Mr. Jardine Has Not Demonstrated a ―Good and Sufficient
Reason‖ for His Failure to Take the MPRE
¶39 Rule 14-525(e)(6) provides that attorneys who are
suspended for one year or more must pass the Multistate
Professional Responsibility Examination (MPRE) before they may be
reinstated to practice. This requirement, like all of the requirements
for reinstatement, is subject to an exception—where the person
seeking reinstatement can ―present[] good and sufficient reason‖ for
not meeting the requirement.18 The district court observed that Mr.
Jardine did not take the MPRE and concluded that he had not
established a ―good and sufficient reason‖ for failing to do so.
¶40 Mr. Jardine argues that he should not be required to pass the
MPRE because he was involved in a prior disciplinary matter that
ultimately resulted in an opinion from this court. He argues that he
submitted over 110 pages of briefing to the court, which analyzed
approximately fifteen ethical rules.
¶41 Mr. Jardine‘s argument on this point is similar to his
argument we reject above regarding his failure to keep informed
about recent developments in the law. We reject his argument here
for similar reasons. Being subject to discipline and defending one‘s
self does not constitute a ―good and sufficient reason‖ for failing to
comply with rule 14-525(e)(6)‘s requirement to pass the MPRE. In
fact, the better argument is that attorneys who are subject to
discipline have an even greater need to pass the MPRE. Moreover, as
Mr. Jardine points out, his briefing in his prior disciplinary case
analyzed approximately fifteen ethical rules. Currently, there are
over fifty rules governing lawyers in the Utah Rules of Professional
Conduct, and Mr. Jardine, if readmitted, would need to comply with
all of those rules, not just the fifteen he analyzed in his briefs. In
short, we should conclude that Mr. Jardine has not established a
―good and sufficient reason‖ for not passing the MPRE.
18 SUP. CT. R. PROF‘L PRACTICE 14-525(e).
13
DISCIPLINE OF NATHAN N. JARDINE
Opinion of the Court
V. Mr. Jardine Does Not Need to Reimburse the Client
Security Fund to be Reinstated
¶42 Mr. Jardine was initially suspended for, among other things,
violating rule 1.5 of the Utah Rules of Professional Conduct, which
governs fees, for charging a client $10,000 to represent her in
criminal and divorce proceedings.19 But on appeal, this court
concluded that this fee did not provide a basis for discipline because
it was not excessive.20 The Utah State Bar later paid Mr. Jardine‘s
client $1,000 out of the Lawyers‘ Fund for Client Protection (Fund) to
partially compensate her for Mr. Jardine‘s allegedly unreasonable
fee. Mr. Jardine never reimbursed the Fund for this payment. The
district court held that his failure to reimburse the Fund disqualified
him from reinstatement. We reverse and conclude that Mr. Jardine
does not need to reimburse the Fund to be reinstated because he did
not charge an unreasonable fee.
¶43 Mr. Jardine argues that he should not have to reimburse the
Fund because, as this court held, the fee he charged his client was
not excessive. The district court appears to have recognized our
holding on this point, but nonetheless concluded that Mr. Jardine
must repay the Client Security Fund to be reinstated:
The Bar‘s Fund For Client Protection paid $1,000 on
account of Jardine‘s conduct. Jardine has failed to show
that this was not the case, relying solely on the
Supreme Court‘s determination that the Office had
failed to prove the underlying fee for which the fund
partially reimbursed the client was excessive. At this
stage, it is Jardine‘s burden to show that the repayment
by the fund cannot properly be said to have been on
account of his conduct, and he has failed to make the
showing. It is undisputed that he has not reimbursed
the Fund as required by 14-525(e)(8).
¶44 Rule 14-525(e)(8) of the Supreme Court Rules of Practice
provides that a person seeking reinstatement must ―fully reimburse[]
the Bar‘s Laywers‘ Fund for Client Protection for any amounts paid
on account of the respondent‘s conduct.‖ The district court‘s ruling
misconstrues this rule by requiring a person to reimburse the Fund
in cases where that person committed no misconduct that caused a
client to incur a loss. But rule 14-902(a) explains that the purpose of
19 Utah State Bar v. Jardine, 2012 UT 67, ¶ 44, 289 P.3d 516.
20 Id. ¶ 46.
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Cite as: 2015 UT 51
Opinion of the Court
the Fund is to ―reimburse clients for losses caused by the dishonest
conduct committed by lawyers.‖ In this case, this court concluded in
our prior opinion that Mr. Jardine did not engage in any misconduct
in charging his client the $10,000 fee, so that fee could not have
provided a basis for the Bar to compensate Mr. Jardine‘s client.
¶45 Reading rule 14-525(e)(8) as the district court did effectively
grants the Bar unilateral authority to force an attorney to reimburse
the Fund regardless of whether the attorney engaged in misconduct
that caused a client to incur a loss. This is an incorrect interpretation
of the rule. Properly read, the rule requires reimbursement only in
cases where the person seeking reinstatement committed some
misconduct that resulted in a client incurring a loss. In this case, Mr.
Jardine did not charge his client an unreasonable fee, as this court
concluded in our earlier opinion, and so there is no basis for
concluding that he must reimburse the Fund. We accordingly
reverse the district court‘s ruling on this issue.21
VI. The District Court Did Not Abuse Its Discretion in
Denying Mr. Jardine a Continuance
¶46 The final issue on appeal is whether the district court
abused its discretion in denying Mr. Jardine‘s motion for a
continuance. After the district court held a hearing on Mr. Jardine‘s
motion for reinstatement, Mr. Jardine asked the court for a
continuance so he could take the MPRE and attend CLE classes. The
district court denied his request, reasoning that even if a continuance
would allow him to take the MPRE and attend CLE classes, it would
not cure his failure to comply with other reinstatement requirements.
¶47 We conclude that the court did not abuse its discretion in
denying Mr. Jardine a continuance. Mr. Jardine‘s continuance
motion was premised entirely on his need for additional time to take
the MPRE and attend CLE classes. But even assuming that he would
have done those things had the court granted him a continuance, he
would still have been denied readmission due to his unauthorized
practice of law and failure to demonstrate the requisite integrity to
practice law. Because of this, the district court did not abuse its
discretion in denying his motion for a continuance.
21 We note that the OPC conceded this issue in its opening brief
by stating ―at this point the OPC does not contest Jardine‘s argument
concerning repayment.‖
15
DISCIPLINE OF NATHAN N. JARDINE
Opinion of the Court
Conclusion
¶48 We affirm the district court‘s denial of Mr. Jardine‘s petition
for reinstatement because he failed to comply with four
requirements imposed by rule 14-525 of the Supreme Court Rules of
Professional Practice. Specifically, he failed to comply with the
provisions requiring him to (1) comply with prior disciplinary
orders, (2) demonstrate the requisite integrity to practice law, (3)
pass the MPRE, and (4) keep informed about recent developments in
the law. Although we affirm the district court‘s ultimate denial of
reinstatement, we conclude that the court erred in requiring Mr.
Jardine to reimburse the Utah State Bar for $1,000 that the Bar paid to
one of his former clients.
¶49 We also conclude that the district court did not abuse its
discretion when it denied Mr. Jardine a continuance so that he could
take the MPRE and attend CLE classes. We note, however, that
because it has been over one year since the district court issued its
ruling denying reinstatement, Mr. Jardine is now eligible to reapply
for reinstatement in accordance with rule 14-525(h) of the Supreme
Court Rules of Professional Practice.
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