Discipline of Brian Steffensen

This opinion is subject to revision before final
publication in the Pacific Reporter.
2016 UT 18
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of BRIAN W. STEFFENSEN,
UTAH STATE BAR,
Appellee,
v.
BRIAN W. STEFFENSEN,
Appellant.
No. 20140890
Filed April 19, 2016
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable Todd M. Shaughnessy
No. 110917794
Attorneys:
Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellee
Larry G. Reed, Salt Lake City, for appellant
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court,
in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an interlocutory appeal in an attorney discipline
case. Attorney Brian Steffensen stands charged with committing
“criminal act[s]” reflecting adversely on his honesty, truthfulness,
In the Matter of the Discipline of BRIAN W. STEFFENSEN
Opinion of the Court
and fitness to be a lawyer, in violation of rule 8.4(b) of the Utah
Rules of Professional Conduct. The alleged “criminal act[s]” arise
out of an investigation of the Utah State Tax Commission, which
resulted in felony charges for failure to file a proper tax return,
intent to evade, and unlawful dealing with property by a
fiduciary. 1 Steffensen entered into a diversion agreement on these
charges on March 1, 2010.
¶2 The Office of Professional Conduct (OPC) of the State Bar
thereafter charged Steffensen with violating rule 8.4(b) by
committing these tax-related offenses. In the district court
proceedings on these charges, the court found that OPC had
established a violation of rule 8.4(b) by a preponderance of the
evidence. It also acknowledged, in response to Steffensen’s
argument that a violation of rule 8.4(b) could be established only
upon proof beyond a reasonable doubt, that OPC had not proven
Steffensen’s criminal acts by that criminal standard of proof.
Because the court concluded that the preponderance of the
evidence standard applied, however, it held that OPC had carried
its burden of establishing a violation of rule 8.4(b).
¶3 Steffensen challenges the propriety of the preponderance
standard on this appeal. His argument is rooted in the Due
Process Clause. Citing our past attorney discipline cases,
Steffensen asserts that “an attorney is entitled to due process in
disciplinary actions.” Long v. Ethics & Discipline Comm., 2011 UT
32, ¶ 29, 256 P.3d 206. He notes that “[t]he right to due process
requires that an individual receive adequate notice of the charges”
against him and “an opportunity to be heard in a meaningful
way.” Id. (citation omitted). And because we have said that “the
level of due process required depends on the context of the
proceeding,” id., Steffensen asks us to hold OPC to a higher
1 Steffensen is also charged with “conduct involving dishonesty,
fraud, deceit or misrepresentation” in violation of rule 8.4(c).
UTAH R. PROF. CONDUCT 8.4(c). The rule 8.4(c) charge, however,
arises out of acts distinct from the charge that Steffensen
committed “criminal act[s]” in violation of rule 8.4(b). So that
charge is not before us on this interlocutory appeal.
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Opinion of the Court
standard of proof—proof beyond a reasonable doubt—in a case
involving a charge that an attorney committed a “criminal act.”
¶4 In support of that view, Steffensen cites cases and other
authorities suggesting generally that attorney discipline
proceedings are quasi-criminal in nature. See In re Ruffalo, 390 U.S.
544, 550 (1968) (stating that “[d]isbarment, designed to protect the
public, is a punishment or penalty imposed on the lawyer”);
Geoffrey C. Hazard, Jr. & Cameron Beard, A Lawyer’s Privilege
Against Self-Incrimination in Professional Disciplinary Proceedings, 96
YALE L.J. 1060, 1060 (1987) (suggesting that “[i]n substance,
contested disciplinary proceedings are quasi-criminal”). He also
cites a handful of decisions in other jurisdictions adopting a
higher standard of proof for establishing that an attorney
committed a “criminal act” in violation of provisions like our rule
8.4(b). See In re Egbune, 971 P.2d 1065, 1072 (Colo. 1999) (applying
a clear and convincing evidence standard); In re Summer, 105 P.3d
848, 852 (Or. 2005) (same). And he invites us to adopt a “beyond a
reasonable doubt” standard for proof that he committed the
criminal tax violations that were the subject of his earlier
diversion agreement.
¶5 We affirm. The question presented finds a clear and explicit
answer in our rules. The Utah Rules of Lawyer Discipline and
Disability expressly prescribe the applicable standard of proof.
Under rule 14-517, “[f]ormal complaints of misconduct, petitions
for reinstatement and readmission, and petitions for transfer to
and from disability status shall be established by a preponderance
of the evidence.” UTAH R. JUD. ADMIN. 14-517(b). That same rule
also provides a higher standard of proof—a “clear and
convincing” standard; but the higher standard applies only to
“[m]otions for interim suspension pursuant to Rule 14-518.” Id.
¶6 This is not a case that involves a motion for interim
suspension under rule 14-518. So the applicable standard of proof
under our rules is preponderance of the evidence.
¶7 That leaves the due process question. The constitutional
promise of a meaningful opportunity to be heard is
unquestionably available in attorney discipline proceedings. And
the contours of due process are admittedly more flexible than
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In the Matter of the Discipline of BRIAN W. STEFFENSEN
Opinion of the Court
formulaic. See In re Discipline of Sonnenreich, 2004 UT 3, ¶ 37, 86
P.3d 712. But the Due Process Clause is not a free-wheeling
constitutional license for courts to assure fairness on a case-by-
case basis. 2 It is a constitutional standard—one measured by
reference to “traditional notions of fair play and substantial
justice.” See Clearone v. Revolabs, 2016 UT 16, ¶ 8, __ P.3d ___
(citing Int’l Shoe Co. v. Wash., Office of Unemployment Comp., 326
U.S. 310, 316 (1945)). 3 We retain discretionary license to assure fair
procedure in the cases that proceed through our justice system.
But our usual course for so doing is by promulgating rules of
procedure. 4
¶8 Our rules set the principal guideposts for the fair
opportunity to be heard that is afforded to litigants in our judicial
system. We may adjust those standards as we see the need to do
so over time. But our principal means of doing so is by our
established process for amendment.
¶9 Lawyers and litigants are free to seek an audience with one
of our advisory committees if they wish to advocate for an
amendment to our rules. Those committees consider such
requests on a regular basis. And our process for striking the best
procedural balance—for affording a fair opportunity to be heard
2 See Ownbey v. Morgan, 256 U.S. 94, 110–11 (1921) (“The due
process clause does not impose upon the states a duty to establish
ideal systems for the administration of justice, with every modern
improvement and with provision against every possible hardship
that may befall.”).
3 See also Hurtado v. California, 110 U.S. 516, 528 (1884)
(explaining that in order to determine whether due process is
satisfied we “examine the constitution itself” and “look to those
settled usages and modes of proceeding existing in the common
and statute law”).
4 But see Mathews v. Eldridge, 424 U.S. 319, 347 (1976)
(employing a balancing test to determine whether, in certain
circumstances, procedural protections are required as a matter of
due process).
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Opinion of the Court
without bogging down the system with too much procedure—is
ongoing. We do not foreclose the possibility of adopting a higher
standard of proof on a charge of a “criminal act” in a proposed
amendment to our rules in the future.
¶10 But we see no basis for effectively amending our rules in
the course of this adjudicative proceeding. Rule 14-517 speaks
with straightforward clarity. It prescribes a preponderance
standard for all “[f]ormal complaints of misconduct.” And we see
no room in the straightforward terms of the rule for the adoption
of a higher standard of proof on a charge of “criminal act” under
rule 8.4(b) of the Utah Rules of Professional Conduct.
¶11 Nor do we see a basis for overriding those clear terms on
due process grounds. Steffensen makes no effort to tie his
challenge to the preponderance standard to any traditional,
established tenets of due process. He asserts only that the upsides
of a higher standard of proof outweigh the downsides. Such a
policy argument is a perfectly respectable basis for a request for a
forward-looking amendment to our rules; but it falls far short as a
ground for overriding the clear terms of an existing rule. Our
rules set forth existing procedural standards. They are entitled to
respect unless and until we amend them.
¶12 Steffensen may have a point that attorney discipline
proceedings are different from standard civil proceedings. An
attorney may have more at stake—the loss of a professional
license, with an established career hanging in the balance—than a
typical defendant in a regular civil proceeding. And for that
reason we can see an arguable policy basis for adopting a higher
standard of proof in attorney discipline cases. See Egbune, 971 P.2d
at 1072; Summer, 105 P.3d at 852. But such cases are not criminal.
See In re Discipline of Babilis, 951 P.2d 207, 214 (Utah 1997). They
are civil. And the policy argument raised by Steffensen is an
insufficient basis for overriding the preponderance standard set
forth clearly on the face of our rules.
¶13 The cases cited by Steffensen are not to the contrary. A
number of other jurisdictions have embraced a standard of proof
higher than mere preponderance in attorney discipline
proceedings. But they have generally done so by rule—by
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In the Matter of the Discipline of BRIAN W. STEFFENSEN
Opinion of the Court
adopting a rule that expressly requires proof by clear and
convincing evidence. 5 We do not rule out that possibility in Utah.
But we see no basis for overriding the preponderance standard set
forth in our rule as it stands today.
¶14 At oral argument we explored an alternative basis for
Steffensen’s position in the current text of our Rules of
Professional Conduct. We noted the possibility that rule 8.4(b)’s
reference to proof that a lawyer “commit[ted] a criminal act”
might implicitly incorporate the traditional standard of proof in a
criminal proceeding. That would seem to be a stronger basis for
Steffensen’s position than the vague due process challenge he has
raised. An attorney discipline proceeding, as noted, is not
criminal. But if the basis for charging an attorney with an ethics
violation is a claim that he “commit[ted] a criminal act,” it could
at least arguably be said that a court could not uphold such a
claim without proof beyond a reasonable doubt.
¶15 Yet we nonetheless reject this reading of our rules. The
tension between rule 14-517 and rule 8.4(b) is a contest between
the explicit and the implicit. Rule 14-517 states a standard of proof
explicitly. Rule 8.4(b) is at most implicit; at best, the reference to
the commission of a criminal act can be seen as implicitly
incorporating the standard of proof beyond a reasonable doubt.
But the implicit cannot properly control the explicit.
¶16 Courts have long embraced the canon that the more
specific of two competing statutory provisions controls a more
general one. Traynor v. Turnage, 485 U.S. 535, 547–48 (1988) (“It is a
basic principle of statutory construction that a statute dealing with
a narrow, precise, and specific subject is not submerged by a later
enacted statute covering a more generalized spectrum.”) (citation
5 See ABA, MODEL RULES FOR LAWYER DISCIPLINARY
ENFORCEMENT 18(3) (2002) (“Formal charges of misconduct, lesser
misconduct, petitions for reinstatement and readmission, and
petitions for transfer to and from disability inactive status shall be
established by clear and convincing evidence.”); GEORGIA R.
PROF’L CONDUCT 4-221(e)(2) (“[T]he quantum of proof required of
the State Bar of Georgia shall be clear and convincing evidence.”).
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Opinion of the Court
omitted). That canon is not always easy to apply. Sometimes it
seems question-begging—as in a case where one provision is
more specific in one sense while the other is more specific in
another. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 159
(1976) (Stevens, J., dissenting) (rejecting the majority’s use of this
canon and asserting that “with equal logic we might describe
either statute as creating an exception from the somewhat more
general provisions of the other”). But no such problem is
presented here. There is no question that rule 14-517 is more
specific than rule 8.4(b) on the question of the applicable standard
of proof. To the extent there is a conflict between an explicit
statement in one provision and a mere implication from another,
the explicit must control.
¶17 We accordingly reject Steffensen’s challenge to the
preponderance standard in rule 14-517. And we affirm the district
court’s determination that OPC carried its burden of proving that
Steffensen violated rule 8.4(b) by establishing that he committed
criminal acts by a preponderance of the evidence.
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