Discipline of Brian Steffensen , 2021 UT 1 ( 2021 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2021 UT 01IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE DISCIPLINE OF BRIAN W. STEFFENSEN
BRIAN W. STEFFENSEN,
Appellant,
v.
OFFICE OF PROFESSIONAL CONDUCT,
Appellee.
No. 20190146-SC
Heard October 13, 2020
Filed January 07, 2021
On Direct Appeal
Third District, Salt Lake
The Honorable Todd M. Shaughnessy
No. 110917794
Attorneys:
Brian W. Steffensen, Salt Lake City, for appellant (pro se)
Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellee
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 The saga of the discipline of Brian W. Steffensen has
continued for nearly a decade, now coming before this court for
the third time. Though the matter has revealed numerous legal
complexities over the years, it returns to us today primarily on the
straightforward issue of the appropriateness of the district court’s
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
order disbarring Steffensen. We agree with the district court’s
analysis and affirm the disbarment order.
¶2 We also affirm the district court’s denial of Steffensen’s
motions regarding disqualification, prosecutorial misconduct, and
for a continuance, finding no abuse of discretion.
BACKGROUND
¶3 Brian Steffensen has been a licensed attorney in Utah
since 1980. During his legal career, Steffensen incorporated a
number of law firms and “repeatedly failed to maintain
accounting practices that would keep his law firms viable.” In re
Discipline of Steffensen, 2018 UT 53, ¶ 3, 428 P.3d 1104. An
investigation by the Utah State Tax Commission established that
Steffensen had failed to properly file withholding tax returns,
remit withholding taxes, and submit monies collected from his
employees in payment of their income tax obligations. In 2009,
Steffensen was criminally charged with Failing to Render a Proper
Tax Return, Intent to Evade, and Unlawful Dealing of Property by
a Fiduciary.1
¶4 In response to these charges, the Office of Professional
Conduct (“OPC”) filed a complaint against Steffensen for
professional misconduct under rule 8.4 of the Utah Rules of
Professional Conduct.
¶5 The OPC, of course, may, in an appropriate case, “bring
a formal complaint charging an attorney with professional
misconduct before the district court.” In re Discipline of Steffensen,
2018 UT 53, ¶ 19 (citing SUP. CT. R. PROF’L PRAC. 14-511(a)). Rule
8.4 outlines professional misconduct, which includes “(b)
commit[ting] a criminal act that reflects adversely on the lawyer’s
__________________________________________________________
1 The Utah State Tax Commission’s investigation established
that Steffensen, in collecting his employees’ income taxes, owed
those employees a fiduciary duty and breached that duty by
retaining the monies. In 2010, Steffensen entered into a diversion
agreement with the State. The charges were reduced to an
attempted crime pursuant to § 76-4-101 (the crime attempted
being a violation of Utah Code § 76-801-1101(1)(c)(i), declaring
guilty of a third degree felony any person who “knowingly and
intentionally, and without a reasonable good faith basis, fails to
make, render, sign or verify any [tax] return within the time
required by law”). See In re Discipline of Steffensen, 2018 UT 53, ¶ 9.
Steffensen then paid all taxes and penalties owed. Id.2
Cite as: 2021 UT 01Opinion for Voting
honesty, trustworthiness or fitness as a lawyer” and “(c)
engag[ing] in conduct involving dishonesty, fraud, deceit or
misrepresentation.” UTAH R. PROF’L CONDUCT 8.4(b), (c). Once
misconduct under rule 8.4 is established, the case proceeds to a
determination of the appropriate sanction. See SUP. CT. R. PROF’L
PRAC. 14-511(f). Rule 14-605 provides the standards by which a
court shall impose sanctions; subsection (a) provides the
circumstances under which disbarment is “generally
appropriate.” Applicable to this case, rule 14-605(a)(3) allows
disbarment when a lawyer “engages in . . . intentional misconduct
involving dishonesty, fraud, deceit, or misrepresentation that
seriously adversely reflects on the lawyer’s fitness to practice
law.” Notably, the language of subsection (a)(3) is nearly identical
to that of rule 8.4(c).
¶6 In its complaint, the OPC charged that Steffensen’s
“fail[ure] to make, render, sign, or verify any withholding tax
return” in his fiduciary role was both a “criminal act that reflected
adversely on his honesty, trustworthiness or fitness as a lawyer”
under rule 8.4(b) and constituted “conduct involving dishonesty,
fraud, deceit or misrepresentation” under rule 8.4(c).
¶7 In 2016, Steffensen filed before this court an
interlocutory appeal in which we affirmed the district court’s
determination of the proper burden of proof. See In re Discipline of
Steffensen, 2016 UT 18, ¶¶ 1, 17, 373 P.3d 186. The Third District
Court then found the evidence provided by the OPC of
Steffensen’s misconduct sufficient to establish violations of rule
8.4(b) and (c) and thus entered an order to disbar Steffensen under
rule 14-605(a)(1) and (a)(2) of the Supreme Court Rules of
Professional Practice.
¶8 Steffensen appealed the decision to this court. On
September 24, 2018, we affirmed the district court’s findings of
misconduct under rule 8.4(b) and (c) but remanded the case for a
new determination of the appropriate sanctions, finding reliance
on rule 14-605(a)(1) and (a)(2) inappropriate.2 See In re Discipline of
__________________________________________________________
2 Rule 14-605(a)(1) specifically enumerates the 8.4 violations to
which it applies; subsections (b) and (c) are absent from this list.
See In re Discipline of Steffensen, 2018 UT 53, ¶ 47. Rule 14-605(a)(2)
requires that “a necessary element of [the crime] includes
intentional interference with the administration of justice, false
swearing, misrepresentation, fraud, extortion, misappropriation,
(continued . . .)
3
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
Steffensen, 2018 UT 53, ¶¶ 61–63. Having affirmed Steffensen’s
rule 8.4 violations, our mandate on remand expressly precluded
the district court from reopening the proceedings to new
evidence. Id. at ¶ 60.3
¶9 On December 20, 2018, the district court held a
scheduling conference during which the remanded sanctions
hearing was scheduled for February 7, 2019. Steffensen
participated actively in this conference as an attorney of record
along with his attorney, Larry Reed. During this meeting,
Steffensen noted that, for financial reasons, he expected to “take
the laboring oar on this [matter] and not rely so much on Mr.
Reed.” Despite this expectation, Steffensen agreed to the
scheduling of the sanctions hearing on February 7. At no point in
the conversation did Steffensen raise concerns about emotional
difficulties regarding the case. Though under no obligation to do
so, the district court then requested that each party submit
proposed findings and “a short brief on the legal issues” by
February 1, 2019. A week later, on December 27, Reed filed a
motion for leave to withdraw as counsel. The district court
granted the unopposed motion to withdraw on January 11, 2019.
But the district court also ordered the February 7 date for the
sanctions hearing remain in place.
¶10 On January 18, 2019, Steffensen sent a letter by email to
the district court judge, stating that he had not yet received a
notice to appear or appoint. Additionally, Steffensen expressed
that he was struggling to find replacement counsel but did not
feel he could represent himself pro se because of emotional
complications he experienced in dealing with the case. On January
22, 2019, the judge’s clerk responded to Steffensen’s email and
confirmed that the previously scheduled sanctions hearing date
had not changed. Thereafter, Steffensen entered a limited
appearance pro se on January 31, 2019, to file a motion under rule
63 of the Utah Rules of Civil Procedure to disqualify the district
court judge. The motion to disqualify the district court judge was
referred to the Associate Presiding Judge, who denied the motion
or theft,” none of which were a necessary element of Steffensen’s
criminal acts. See id. at ¶ 54.
3 The mandate rule limits the district court on remand to act
only within the scope of the appellate court’s order and enjoins
deviation except in the most extreme circumstances. See infra ¶ 29.
4
Cite as: 2021 UT 01Opinion for Voting
for failure to demonstrate extrajudicial bias on February 6, 2019,
the day before the scheduled sanctions hearing.
¶11 On February 1, before his motion to disqualify was
denied, Steffensen filed a motion to vacate the deadline for filing
post-remand memoranda (which were due that day) and the
February 7 sanctions hearing. Though the district court did not
directly respond to this motion, it entered a minute entry on
February 6, following the Associate Presiding Judge’s denial of
the motion to disqualify, allowing Steffensen an extension.
¶12 Steffensen failed to respond to the February 6 minute
entry, so the parties appeared for the originally-scheduled
sanctions hearing on February 7, 2019. At the hearing, Steffensen
stated that he had not seen the minute entry, which would have
provided him with the additional time he had repeatedly
requested. The hearing was then rescheduled for February 14,
2019, with Steffensen’s approval.
¶13 On February 7, Steffensen filed a post-remand
memorandum stating that the OPC’s proposed findings and
conclusions were inaccurate and unsupported. Specifically, the
OPC’s proposed findings and conclusions stated that Steffensen
had “prepared and signed W2s for his employees” when, in fact,
completed W2s do not include signatures. Deeming this
inaccuracy to reflect unethical conduct by the OPC, Steffensen
morphed the February 7 memorandum into a motion for relief for
prosecutorial misconduct. This motion was filed on February 13,
one day before the rescheduled sanctions hearing.
¶14 The sanctions hearing finally took place on February 14,
2019. Steffensen took the opportunity to address the arguments
made in his recent motions, but he did not request more time to
submit his own findings and conclusions, nor did he make any
new objections during the hearing.
¶15 Ultimately, the district court declined to consider the
OPC’s proposed findings and conclusions and issued an
independently-prepared ruling and order on February 19, 2019.
The district court concluded that presumptive disbarment under
rule 14-605(a)(3) was inappropriate for Steffensen’s rule 8.4(b)
violation but was appropriate for his rule 8.4(c) violation.
According to the district court, Steffensen’s breach of his fiduciary
duties, failure to remit tax monies, and misrepresentation of his
mishandling of those monies “seriously adversely reflect[ed] on
[his] fitness to practice law.” (Second alteration in original).
Steffensen now appeals this decision. We have jurisdiction
5
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
pursuant to article VIII, section 4 of the Utah Constitution and
Utah Code section 78A-3-102(3)(c).
STANDARD OF REVIEW
¶16 The Utah Constitution squarely places the authority to
“govern the practice of law, including . . . the conduct and
discipline of persons admitted to practice law,” within our sphere.
UTAH CONST. art. VIII, § 4. As a result, professional discipline
cases have taken on “a unique standard of review.” In re Discipline
of Steffensen, 2018 UT 53, ¶ 14, 428 P.3d 1104. This unique standard
allows us to pay deference to the determinations made by the
district court but requires that we “make an independent
determination of the correctness of the discipline the district court
imposed.” In re Discipline of Lundgren, 2015 UT 58, ¶ 9, 355 P.3d
984 (citation omitted) (internal quotation marks omitted).
ANALYSIS
¶17 The focal issue in this appeal is whether the district court
imposed an appropriate sanction of disbarment upon Steffensen.
The district court was required, on remand, to elaborate on and
clarify “its findings of fact and conclusions of law in its order
regarding Mr. Steffensen’s sanctions for professional misconduct
under rule 8.4(b) and (c)” of the Utah Rules of Professional
Conduct. In re Discipline of Steffensen, 2018 UT 53, ¶ 60, 428 P.3d
1104. Importantly, we asked the district court to make this limited
determination “[w]ithout reopening the proceedings.” Id. In
response, the district court determined that presumptive
disbarment under rule 14-605(a)(3) of the Supreme Court Rules of
Professional Practice was appropriate for Steffensen’s rule 8.4(c)
violation. We concur with the district court’s determination and
affirm.
¶18 Related to the sanctions question are Steffensen’s
appeals of the denial of his motions regarding disqualification,
prosecutorial misconduct, and continuance. These motions do not
violate the narrow mandate as they were filed in response to the
district court’s invitation for proposed findings and conclusions, a
process that did not “reopen[] the proceedings.” Accordingly, we
address each of those issues too and affirm the district court’s
denial, finding no abuse of discretion.
¶19 Finally, Steffensen appeals the district court’s denial of
his “oral and written motions to stay these proceedings, reopen
the evidence, and vacate prior orders.” The district court denied
these motions because they improperly sought to “reopen the
6
Cite as: 2021 UT 01Opinion for Voting
proceedings” and thus fell outside the scope of the narrow
mandate. Again, we affirm, finding no abuse of discretion.
¶20 We begin with an analysis of the motions that do not go
directly to the order of disbarment. Finding no abuse of
discretion, we affirm the district court’s disposition of these
motions and then proceed to an analysis of the district court’s
substantive order of disbarment, which we also affirm.
I. STEFFENSEN’S TECHNICAL ARGUMENTS
¶21 Following our order of remand, the district court
solicited proposed findings of fact and conclusions of law from
each party to aid in the court’s determination of the appropriate
sanction. This is when the maxim that no good deed goes
unpunished kicked in. The district court’s apparent effort to “be
fair [and] give all [parties] an opportunity to respond” with their
own proposed findings and conclusions quickly “mushroomed,”
as the district court aptly noted, “into something that seems to be
far beyond what the Supreme Court ever intended.” Transcript of
Sanctions Hearing, Off. of Prof’l Conduct v. Steffensen, No.
110917794 at 9:3-6 (Feb. 14, 2019). While the OPC timely submitted
its proposed findings and conclusions, Steffensen took this as an
opportunity to submit all manner of requests and motions but not
his own findings and conclusions. Three of his motions are
reviewable for abuse of discretion, given that they arose in
response to the district court’s invitation for each party’s findings
and conclusions and did not seek to reopen the proceedings; as
such, they are not governed by our narrow mandate. The rest of
Steffensen’s motions, however, are beyond the scope of our
mandate and are inappropriate for review on appeal.
A. The District Court Did Not Abuse Its Discretion in Denying
Steffensen’s Motions regarding Disqualification, Prosecutorial
Misconduct, and for a Continuance
¶22 In response to the district court’s December 20, 2018
invitation for proposed findings and conclusions, Steffensen
raised three issues: (1) the motion to disqualify; (2) prosecutorial
misconduct; and (3) request for a continuance. None of these
issues are governed by the narrow mandate on remand; they are
independent of the already-determined and binding issues on
remand as they have arisen in response to the district court’s
request for findings and conclusions and do not seek to reopen
the proceedings. Nevertheless, this court affirms the district
court’s treatment of these issues as they are inadequately briefed,
constitute (at best) harmless error, or are otherwise properly
decided.
7
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
¶23 In response to Steffensen’s motion to disqualify, the
district court judge referred the motion to the associate presiding
judge for resolution. See UTAH R. CIV. P. 63(c). The associate
presiding judge then denied Steffensen’s motion to disqualify,
finding that Steffensen failed to “demonstrate that the alleged bias
stems from an extrajudicial source.” Steffensen’s appeal before
this court does not seek to address whether the associate
presiding judge abused his discretion in denying the motion to
disqualify; rather, Steffensen seeks to rewrite rule 63 of our rules
of civil procedure with a more favorable standard for
disqualification. His argument exceeds the scope of rule 63 and is
inadequately briefed to challenge the articulated standard of a
rule of civil procedure.4 We therefore affirm the denial of
Steffensen’s motion to disqualify, seeing no abuse of discretion.
¶24 The district court also properly denied Steffensen’s
motions alleging prosecutorial misconduct by the OPC. Steffensen
developed his theory of prosecutorial misconduct based on the
OPC’s incorrect statement in its proposed findings and
conclusions that Steffensen had signed the W2s at issue. These
motions attempted to raise a matter that is not at issue in this
disciplinary proceeding. Further, even if the matter were at issue,
the denial of the motions was harmless error. In defining
“harmless error,” rule 61 of the Utah Rules of Civil Procedure
provides that “[t]he court . . . must disregard any error or defect in
the proceeding which does not affect the substantial rights of the
parties.” See also State v. Hamilton, 827 P.2d 232, 240 (Utah 1992)
(defining a harmless error as an error that is “sufficiently
inconsequential that we conclude there is no reasonable likelihood
that the error affected the outcome of the proceedings” (citation
__________________________________________________________
4 Steffensen provides no legal support for his argument that
this court must amend the standard of disqualification in this
setting from “actual bias” to “appearance of bias.” His argument
rests on policy concerns that the “actual bias” standard is
“impossible to ever be met.” But stronger policy considerations
cut against Steffensen’s argument: for example, lowering the
standard for disqualification would create an incentive for
litigants to misbehave in litigation and then seek to remove the
judge based on her adverse rulings. Indeed, while we often flag
interesting rule-based issues for review by our relevant
committees, there is nothing in Steffensen’s argument on this
point that causes us to think this is a real issue. Accordingly, we
decline to flag this issue for committee review.
8
Cite as: 2021 UT 01Opinion for Voting
omitted) (internal quotation marks omitted). Here, Steffensen’s
substantial rights have not been violated: the district court
acknowledged the OPC’s error, noted that it had been corrected in
an amended proposed findings and conclusions, and stated that
“neither [the district court]’s original findings nor the Supreme
Court’s opinion” say Steffensen had signed the W2s. The error
amounted, essentially, to an “inconsequential” typo (later
corrected) upon which no court had relied. As such, we find the
district court did not abuse its discretion here.
¶25 Finally, we find that the district court did not abuse its
discretion in denying Steffensen’s request for more time to obtain
counsel. Steffensen’s request was neither adequately briefed nor
properly submitted as a motion for continuance. Instead,
Steffensen made his pitch by letter sent by email to the district
court judge.5 Because the request was not properly briefed and
submitted, the OPC had no opportunity to respond. This alone is
a sufficient basis to deny the request.
¶26 Even if we were to consider the merits, we would find
that the district court did not abuse its discretion in denying his
request. The district court has “substantial discretion in deciding
whether to grant continuances . . . and [its] decision will not be
overturned unless that discretion has been clearly abused.” Brown
v. Glover, 2000 UT 89, ¶ 43, 16 P.3d 540 (quoting Christenson v.
Jewkes, 761 P.2d 1375, 1377 (Utah 1988)) (internal quotation marks
omitted). Given this broad discretion in the district court, “we
adhere to our standard level of deference and ‘[s]o long as there is
some evidence, including reasonable inferences, from which
findings . . . can reasonably be made, our inquiry stops.’” In re
Discipline of Steffensen, 2018 UT 53, ¶ 29, 428 P.3d 1104 (alterations
in original) (quoting State v. Booker, 709 P.2d 342, 345 (Utah 1985)).
__________________________________________________________
5 Rule 7(b) of the Utah Rules of Civil Procedure requires that
“[a] request for an order must be made by motion.” Rule 7(c) lays
out the required elements of a motion, including that the motion
be titled “substantially as: ‘Motion [short phrase describing the
relief requested].’” UTAH R. CIV. P. 7(c). Per rule 7(g), the moving
party must file a request to submit the motion for decision
(otherwise, it will not be considered by the court). Id. 7(g).
Steffensen’s letter, emailed directly to the district court’s clerk
rather than submitted by eFiling, did not adhere to any of these
procedural rules.
9
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
¶27 Despite the district court’s broad discretion and this
court’s deference to the findings of the court below, abuse of
discretion is found “if [the district court’s] decision is ‘clearly
unreasonable and arbitrary.’” Clarke v. Clarke, 2012 UT App 328,
¶ 19, 292 P.3d 76 (citation omitted). For example, courts have
found abuse of discretion in the denial of a motion for
continuance when a party “has made timely objections, given
necessary notice, and has made a reasonable effort to have the . . .
date changed for good cause.” Griffiths v. Hammon, 560 P.2d 1375,
1376 (Utah 1977). Steffensen, however, has provided this court no
reason to depart from our standard deference to the district
court’s discretion. He delayed objecting to the scheduling of the
sanctions hearing and providing notice of his need for more time
to obtain counsel, despite knowing for several weeks that Reed
had filed a motion for leave to withdraw as counsel. Further,
nothing in the record suggests that Steffensen had begun a search
for new counsel upon the filing of Reed’s motion to withdraw on
December 27, 2018, which indicates that Steffensen’s January 18,
2019 request for more time to obtain counsel was not made for
good cause.6 We also note that Steffensen was an attorney of
record on this case prior to Reed’s withdrawal.7 See, e.g., In re
__________________________________________________________
6 The timeline of events following the withdrawal of
Steffensen’s attorney is important in understanding why the
district court did not abuse its discretion in denying his request
for continuance. First, Steffensen knew at least as early as
December 27, 2018, of his attorney’s intent to withdraw as counsel
when Reed filed his Motion for Leave to Withdraw as Counsel.
Though it was not until January 11, 2019, when the court granted
Reed’s motion, Steffensen had at least two weeks-notice prior to
that date, time in which he could have begun seeking counsel. As
mentioned above, Steffensen provides no proof that he had begun
such a search in good faith. Instead, he waited until January 18 to
informally request more time, a request the district court had no
obligation to grant. See, e.g., Layton City v. Longcrier, 943 P.2d 655,
659 (Utah Ct. App. 1997).
7 Steffensen engaged actively in his role as counsel of record as
late as the December 20, 2018 scheduling conference. Notably,
Steffensen admitted during that conference that he was
anticipating “tak[ing] the laboring oar . . . and not rely[ing] so
much on Reed for financial issues” even before Reed’s
withdrawal, which suggests to this court that Steffensen was
prepared to continue representing himself as early as December 20,
(continued . . .)
10
Cite as: 2021 UT 01Opinion for Voting
Discipline of Steffensen, 2018 UT 53 (listing Steffensen as the
attorney for himself); Transcript of Scheduling Conference, Off. of
Prof’l Conduct v. Steffensen, No. 110917794 at 2 (Dec. 20, 2018). This
fact further abets our conclusion that his efforts to delay the
proceedings were not for good cause because he was already
actively representing himself before Reed’s withdrawal and thus
cannot argue in good faith that he was ever without counsel.8
2018, fifty-four days prior to the ultimate sanctions hearing.
Indeed, Steffensen was proceeding “for oneself, on one’s own
behalf” as the Latin translation of pro se suggests, Pro se, Cornell L.
Sch. Legal Info. Inst., https://www.law.cornell.edu/wex/pro_se
(last visited Dec. 4, 2020), but he cannot be said to have been
“proceed[ing] without legal counsel,” id., when he actively
represented his own interests and listed himself as counsel of
record.
8 Steffensen attempts to buttress his argument for additional
time to obtain counsel by noting his emotional incapacity on this
disciplinary matter. On numerous occasions, Steffensen has cited
extreme emotional difficulty in dealing with this case, suggesting
he was unable to effectively represent himself pro se. This court
does not doubt such an experience can take an emotional toll.
However, Steffensen did not raise this concern with the district
court in a timely or effective manner. First, Steffensen made no
mention of emotional difficulties in representing himself during
the December 20, 2018 scheduling conference. To the contrary, he
participated in his own defense as counsel of record. And he said
that he would be handling more of his defense for financial
reasons. He first raised the issue with the district court in his
January 18, 2019 letter, in which he likened his experience to
“having a form of PTSD.” Yet at this point, as the hearing date
neared, he did not file a motion to continue. Instead, he turned his
attention to disqualify the judge, which was unavailing. Six days
before the hearing, when the parties’ post-remand memoranda
were due, Steffensen finally filed a motion to continue (and to
vacate the memoranda due date). The court continued the hearing
for a week. This may not have been everything Steffensen wanted,
but it was far from an abuse of discretion, especially in light of the
delayed manner in which Steffensen raised the issue. We also note
that attorneys have the opportunity to claim inability to defend
themselves in disciplinary proceedings, wherein the proceedings
are deferred and the attorneys are retained on disability status. See
SUP. CT. R. PROF’L PRAC. 14-523(b). We note that Steffensen has not
(continued . . .)
11
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
Thus, because Steffensen did not timely object, give necessary
notice, or make reasonable efforts to postpone the sanctions
hearing for good cause, we cannot find that the district court
abused its discretion in denying his request for continuance.9
¶28 For these reasons, we hold the district court did not
abuse its discretion in denying Steffensen’s motions regarding
disqualification, prosecutorial misconduct, and continuance.
B. The Mandate Rule Precludes Adjudication of Steffensen’s “Oral and
Written Motions to Stay These Proceedings, Reopen the Evidence, and
Vacate Prior Orders”
¶29 In remanding cases to lower courts, appellate courts
utilize a law-of-the-case doctrine known as the mandate rule,
which “dictates that a prior decision of a district court becomes
mandatory after an appeal and remand.” IHC Health Servs., Inc. v.
D & K Mgmt., Inc., 2008 UT 73, ¶ 28, 196 P.3d 588. In other words,
“a decision made on an issue during one stage of a case is binding
in successive stages of the same litigation.” Id. ¶ 26 (citation
omitted) (internal quotation marks omitted). Notably for this case,
sought this opportunity, as he continues to represent clients in
other matters.
9 It is important to note that the OPC failed to defend the
district court’s decision to deny Steffensen’s request for
continuance in its briefing. The OPC painted with too broad a
brush in arguing that all of Steffensen’s motions and requests
were “correctly denied . . . because of the mandate rule.” As
discussed above, supra ¶¶ 22-28, Steffensen’s motion for
continuance arose from the district court’s request for findings
and conclusions and did not seek to “reopen the proceedings,”
Steffensen, 2018 UT 53, ¶ 60, in violation of the mandate rule. The
OPC does not advance an argument, independent of the mandate
rule, supporting the denial of this motion, which places this court
in a difficult position. However, the district court’s findings are
supported by the evidence, see supra ¶ 27, ¶ 27 n. 6-8, and our
decision is ultimately guided by our deference to the district
court. See, e.g., In re Discipline of Reneer, 2014 UT 18, ¶ 11, 325 P.3d
104 (explaining that in disciplinary proceedings this court must
“presume that the [lower tribunal’s] findings of fact are correct,
although we may set those findings aside if they are not
supported by the evidence” (alteration in original) (citation
omitted) (internal quotation marks omitted)).
12
Cite as: 2021 UT 01Opinion for Voting
“[w]hen an appeals court vacates a judgment with narrowing
instructions which direct the district court to consider certain
issues, the district court does not have a mandate to reconsider
other issues.” Wasatch Cnty. v. Okelberry, 2015 UT App 192, ¶ 32,
357 P.3d 586 (alteration in original) (citation omitted) (internal
quotation marks omitted). Further, issues decided by an appellate
court “generally bind [the appellate] court should the case return
on appeal after remand.” Id. ¶ 30 (quoting Gildea v. Guardian Title
Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543) (internal quotation marks
omitted).
¶30 The remand ordered by this court in 2018 is no exception
to the mandate rule. We ordered the district court solely to make a
“new determination of the appropriate sanctions,” In re Discipline
of Steffensen, 2018 UT 53, ¶ 63, instructing the district court to “be
detailed in [its] findings and to be clear in tying the sanction
imposed to the professional misconduct found.” Id. ¶ 60. We were
specific in directing the court to reconsider its order “[w]ithout
reopening the proceedings.” Id.
¶31 Despite this narrow mandate, Steffensen made
numerous “oral and written motions to stay these proceedings,
reopen the evidence, and vacate prior orders.” These motions
were, at best, thinly-veiled efforts to reopen the case to new
evidence despite this court’s binding determinations of
Steffensen’s violations of rule 8.4(b) and (c). The district court
found it had “no jurisdiction to entertain these requests” under its
mandate on remand, an entirely correct conclusion.
II. DISBARMENT IS APPROPRIATE UNDER RULE
14-605(A)(3)
¶32 This court recognizes the severity of disbarment,
understanding it to be “the harshest sanction available in the
realm of attorney misconduct.” In re Discipline of Lundgren, 2015
UT 58, ¶ 11, 335 P.3d 984. We do not impose—or, in this case,
affirm—a sanction of disbarment without serious and thoughtful
consideration. Our commitment to this approach is reflected in
our 2018 order: after scrutinizing the case, we found that
presumptive “disbarment [was] unwarranted under” rule
14-605(a)(1) and (a)(2) of the Supreme Court Rules of Professional
Practice, see supra ¶ 8 n.2, and “implore[d] [the district court and]
all state district courts to be detailed in their findings and to be
clear in tying the sanction imposed to the professional misconduct
found.” In re Discipline of Steffensen, 2018 UT 53, ¶¶ 61, 60, 428
P.3d 1104.
13
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
¶33 We also recognize that we are tasked with
“maintain[ing] the high standard of professional conduct required
of those who undertake the discharge of professional
responsibilities as lawyers.” SUP. CT. R. PROF’L PRAC. 14-602(b).
This duty allows us to impose disbarment in order to protect
those seeking legal services from “the most egregious types of
misconduct.” In re Discipline of Lundgren, 2015 UT 58, ¶ 11. Such
misconduct includes intentional misappropriation of client funds,
see id.; see also In re Discipline of Babilis, 951 P.2d 207, 217 (Utah
1997), false swearing, see In re Discipline of Tanner, 960 P.2d 399,
401 (Utah 1998), and, as we find here, intentional failure to remit
tax withholdings when acting as fiduciary for those funds.
¶34 In 2018, this court remanded this matter with a narrow
mandate to provide “clarification of its findings of fact and
conclusions of law in its order regarding Mr. Steffensen’s
sanctions for professional misconduct.” In re Discipline of
Steffensen, 2018 UT 53, ¶ 60. Specifically, we asked the district
court to identify the correct standard under rule 14-605. Id. ¶ 62.
This mandate was accompanied by our determination that “there
was no clear error in concluding that Mr. Steffensen had violated
rule 8.4(b) and (c) of the Utah Rules of Professional Conduct.” Id.
¶ 61. Rule 8.4 provides that “[i]t is professional misconduct for a
lawyer to: . . . (b) commit a criminal act that reflects adversely on
the lawyer’s honesty, trustworthiness or fitness as a lawyer . . .
[or] (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.” UTAH R. PROF. CONDUCT 8.4. In response, the
district court explained that rule 14-605(a)(3) was the appropriate
standard under which to impose presumptive disbarment for a
violation of rule 8.4(c). Rule 14-605(a)(3) provides that disbarment
is appropriate where a lawyer “engages in any . . . intentional
misconduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s
fitness to practice law.” SUP. CT. R. PROF’L PRAC. 14-605(a)(3).
¶35 The district court rejected the OPC’s proposed
conclusion that Steffensen’s violation of rule 8.4(b) was criminal
conduct warranting presumptive disbarment under rule 14-
605(a)(1) or (a)(2), a decision bound by this court’s determination
in 2018. See In re Discipline of Steffensen, 2018 UT 53, ¶ 56. At most,
the district court concluded, Steffensen’s 8.4(b) violation “c[ould]
be the basis for . . . suspension.”
¶36 The district court’s analysis of Steffensen’s violation of
rule 8.4(c) under the rule 14-605(a)(3) standard, however, is
precisely what this court requested in 2018. The district court first
14
Cite as: 2021 UT 01Opinion for Voting
identified Steffensen’s misconduct as his “represent[ation] to his
employees that funds had been withheld from their paychecks
and paid to the State of Utah to satisfy the employee’s state tax
obligations when no such payments were made.” It was
misconduct that “involved multiple instances over a period of
many years.” Further, Steffensen had remitted all of his
employees’ federal taxes, indicating to the district court that
Steffensen was “fully aware of what was required.” What appears
to be the most determinative factor in the district court’s analysis
was Steffensen’s fiduciary role in regards to his employees’ tax
withholdings:
Importantly, the money at issue—funds owed to the
State on behalf of his employees—was not the
property of Mr. Steffensen or the firms he was
operating. The money was owed to the State of Utah
for an [sic] on behalf of his employees. Because Mr.
Steffensen and his firms did not own these funds, and
were required to pay them to the State, Mr. Steffensen
was holding this money (or should have been holding
it) in trust. He was acting as a fiduciary, or in a
fiduciary-like capacity, with respect to those funds.
The district court recognized that the conduct amounting to
Steffensen’s 8.4(c) violation was not simply that Steffensen failed
to remit tax monies but rather that, in doing so, he breached his
fiduciary duty to his employees. It was this breach in particular
that called for presumptive disbarment under rule 14-605(a)(3),
which applies when a lawyer “engages in . . . intentional
misconduct involving dishonesty, fraud, deceit, or
misrepresentation that seriously adversely reflects on the lawyer’s
fitness to practice law.” According to the district court:
An attorney who holds funds as a fiduciary, or in a
fiduciary-like capacity, and then intentionally and
knowingly fails to pay those funds to the party to
whom they are owed engages in conduct that . . .
seriously adversely reflects on the attorney’s fitness to
practice law . . . . Such conduct seriously and
fundamentally undermines the legal profession and
its perception in the community. It causes the public
to believe that lawyers hold themselves above the law
and not subject to it. A failure to impose serious
sanctions in response to this misconduct also erodes
the public’s trust and confidence in the Bar’s self-
regulation and its confidence in the courts.
15
IN RE DISCIPLINE OF STEFFENSEN
Opinion of the Court
(Emphasis added). As such, the district court determined that
Steffensen’s misconduct falls squarely under rule 14-605(a)(3). We
find that the district court provided sufficient detail and was clear
in tying Steffensen’s misconduct to an appropriate sanction.
¶37 Though we do not take this matter lightly, we are
completely satisfied with the clarification provided by the district
court in response to our narrow mandate on remand. Although
the district court previously erred in imposing presumptive
disbarment under rule 14-605(a)(1) and (a)(2), it has convincingly
demonstrated that disbarment is the appropriate sanction and
may be properly imposed under subsection (a)(3) for Steffensen’s
violation of rule 8.4(c).10 As such, we affirm.
CONCLUSION
¶38 The Utah Rules of Professional Conduct exist to uphold
the legitimacy of the legal profession in the public eye, and
attorneys must abide by them. Violations of the rules suggest to
the public “that lawyers hold themselves above the law and not
subject to it.” In re Discipline of Steffensen, No. 110917794 at 8 (Feb.
19, 2019). While attorneys are responsible for their own behavior,
it is this court’s obligation to enforce the rules, knowing that “[a]
__________________________________________________________
10 Steffensen, the OPC, and the district court have all noted
tension in the interplay between rule 8.3(c) and rule 14-605(a)(3),
which we now flag for review by our appellate rules advisory
committee. Disbarment is the presumptive sanction under rule 14-
605(a)(2) for crimes that have as a necessary element the
“intentional interference with the administration of justice, false
swearing, misrepresentation, fraud,” etc., and under (a)(3) for
“other intentional misconduct involving dishonesty, fraud, deceit,
or misrepresentation that seriously adversely reflects on the
lawyer’s fitness to practice law.” Yet suspension is the
presumptive sanction under rule 14-605(b)(2) for “criminal
conduct that does not contain the elements listed in Rule 14-
605(a)(2) but nevertheless seriously adversely reflects on the
lawyer’s fitness to practice law.” This seems odd, in that non-
criminal conduct is seemingly treated more harshly than criminal
conduct under rule 14-605: For non-criminal conduct, a finding
that the conduct “seriously adversely reflects on the lawyer’s
fitness to practice law” triggers presumptive disbarment under
(a)(3). Yet the same finding (absent a “necessary element”)
triggers only a presumptive sanction of suspension for criminal
conduct under (b)(2).
16
Cite as: 2021 UT 01Opinion for Voting
failure to impose serious sanctions in response to . . . misconduct
. . . erodes the public’s trust and confidence” in the legal
profession. Id. It is a duty that requires a careful balancing of
interests of all affected parties. With this opinion, we bring to a
close this decade-long adjudication of Steffensen’s conduct,
comfortable in having left no legal or factual stones unturned in
reaching this ultimate resolution. We affirm the district court’s
order of disbarment.
17