In re: Tyler James Larsen

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 26
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of TYLER JAMES LARSEN
_______________
TYLER JAMES LARSEN,
Appellant and Cross-Appellee,
v.
UTAH STATE BAR,
Appellee and Cross-Appellant.
No. 20140535
Filed June 16, 2016
On Direct Appeal
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 130901067
Attorneys:
Tyler James Larsen, pro se, Coalville, appellant and
cross-appellee
Todd Wahlquist, Salt Lake City, for appellee and cross-appellant
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and
JUSTICE HIMONAS joined.
JUSTICE JOHN A. PEARCE became a member of the Court on
December 17, 2015, after oral argument in this matter, and
accordingly did not participate.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 Tyler James Larsen was suspended from the practice of law
for seven months for violating two rules of professional conduct. We
reverse in part and affirm in part.
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Opinion of the Court
I
¶2 Tyler James Larsen was a prosecutor with the Davis County
Attorney’s Office from 2007 to 2010. He was charged with two sets of
violations of the Utah Rules of Professional Conduct in 2012. One
charge alleged a misstatement of fact in violation of rule 3.3. The
other alleged a failure of a prosecutor to make a timely disclosure of
exculpatory evidence to the defense under rule 3.8. In the
proceedings reviewed on this appeal, the district court found that
Larsen had violated both rules. And it imposed a sanction of
suspension for seven months—thirty days for the rule 3.3 violation
and six months for the rule 3.8 violation.
¶3 The rule 3.3 charge arose out of a 2009 proceeding involving a
woman on probation for a DUI conviction. At a hearing on that case
defense counsel asserted that his client had been charged probation
fines that were excessive. The trial judge then set a hearing for the
next month to look into the matter further.
¶4 Craig Webb, an investigator with the Davis County
Attorney’s Office, investigated the matter. Webb collected receipts
from the probation agent and recorded data in a spreadsheet.
Webb’s spreadsheet showed that the probationer had paid $3,797. At
the hearing Larsen requested a sidebar with Judge Allphin, where he
indicated that he had a spreadsheet showing that the probationer
had paid $6,000. When questioned further, Larsen also stated that his
boss, the Davis County Attorney, did not want that information to be
disclosed.
¶5 Larsen was subsequently charged with misstating the facts to
the court in connection with the above proceedings. In the
disciplinary proceedings below, the district court found that Larsen
had misstated the facts in claiming he had a spreadsheet showing
that the probationer had paid $6,000 to the probation agent and in
stating that the Davis County Attorney preferred not to have that
information disclosed. Specifically, the court concluded that there
was no spreadsheet reflecting a payment of $6,000 at the time of the
underlying hearing. In so doing, however, the court found that the
OPC had not established “intentional misrepresentation.” Instead it
concluded that “Larsen’s statement was a misstatement that a
reasonably diligent inquiry would have avoided.” Findings of Fact
and Conclusions of Law at 4.
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Opinion of the Court
¶6 This point was clarified in an exchange between Larsen and
the court toward the end of the hearing. That exchange was as
follows:
Mr. Larsen: Can I just ask one clarification? So, on the
first [count], you did not find intent?
The Court: I did not find intentional misrepresentation;
I found reckless misrepresentation.
Original Transcript (Partial) of Trial, May 21, 2014 at 9.
¶7 The district court made further findings in an Order of
Sanction it entered against Larsen. In the Order the district court
found that Larsen had made a separate untrue statement to the trial
judge in the underlying hearing in 2009. And although the court
acknowledged that OPC had not asserted a separate charge on the
basis of that statement, the district court found that “it [was]
probative” of Larsen’s state of mind—that his “actions were
knowing or reckless at the time” of the underlying hearing. Findings of
Fact and Conclusions of Law at 4.
¶8 On these grounds the district court found that Larsen had
violated rule 3.3. It also imposed a thirty-day suspension based on
that violation.
¶9 The rule 3.8 charge arose out of a 2010 felony robbery case.
The defendant in that case was accused of robbing two stores, Kim’s
Fashions and Baskin-Robbins, in 2006. A key issue at trial concerned
identification of the perpetrator. No physical evidence connected the
defendant to the robberies, but two eyewitnesses from each robbery
were called to identify the defendant as the robber.
¶10 The rule 3.8 charge centered around Larsen’s interactions
with the eyewitnesses. About ten days before trial Larsen and a
police officer met with the Kim’s Fashions witnesses and then the
Baskin-Robbins witnesses to discuss the upcoming trial. At the end
of both meetings Larsen showed the witnesses a single photograph
of the defendant and asked the witnesses if they would be able to
identify him as the robber at trial. No other photographs were
shown. All of the witnesses indicated that they would be able to
make the identification.
¶11 About a week before the trial, Larsen met with Mark
Arrington, the defendant’s attorney. Larsen told Arrington that the
prosecution’s “witnesses had ID’d [the defendant].” Original
Transcript (Partial) of Trial, May 20, 2014 at 39. Arrington did not ask
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Opinion of the Court
Larsen any more questions about the identification. And Larsen did
not disclose that he had shown a photograph of the defendant to the
witnesses.
¶12 At trial the husband and wife owners of Kim’s Fashions
were the first witnesses. The husband testified on cross-examination
that he had not seen a photograph of the defendant. Larsen did not
correct this false testimony on redirect.
¶13 The wife was then called to the witness stand. On cross-
examination, she admitted that Larsen had shown her and her
husband a single photograph of the defendant about ten days before
trial. Arrington then moved for a mistrial.
¶14 The record is a bit unclear as to the precise sequence of
events following the motion for mistrial. At oral argument before
this court, Larsen said that after Arrington moved for a mistrial, the
judge and attorneys had a sidebar conversation in which the judge
inquired into the possibility of salvaging the Baskin-Robbins robbery
charges if those witnesses had not been shown the photograph.
Larsen said he did not fully understand what the judge was talking
about; so he said that at that time he did not disclose that he had also
shown the Baskin-Robbins witnesses the photo.
¶15 During the recess that followed the sidebar, however,
Larsen claims that he told Arrington that he had shown the photo to
the Baskin-Robbins witnesses. At that point, Arrington notified the
judge, who then declared a mistrial. 1
¶16 OPC advanced a somewhat different sequence at oral
argument. It said that Larsen allowed the Baskin-Robbins trial to go
forward even though he knew the witnesses were tainted. That is a
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1 The precise chronology is a bit unclear on the record, however.
At his disciplinary trial Larsen stated that the first Baskin-Robbins
witness had begun to testify about what was occurring in a
surveillance video, but the video machine wouldn’t function
properly. The court then took a recess. It is unclear whether this is
the break in which Larsen claimed he told defense counsel about the
problem with the two Baskin-Robbins witnesses. It is also unclear
whether the witness went back on the stand. After the recess the
second Baskin-Robbins witness took the stand and Larsen asked her
questions that elicited a statement that Larsen had shown her a
photo of the defendant before trial. See also infra ¶ 33 n.3.
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Opinion of the Court
plausible inference to be drawn from the record. But there is nothing
in the record that clearly indicates the Baskin-Robbins part of the
trial went forward in any meaningful sense before Larsen’s
admission. At oral argument we asked OPC whether Larsen told
Arrington that he had shown the picture to the Baskin-Robbins
witnesses before or after the sidebar meeting with the judge. And
OPC acknowledged that the trial record is not clear on the precise
sequence of the relevant events.
¶17 In the disciplinary proceedings below, the district court
found that “[w]hen Judge Allphin indicated a willingness to proceed
on the second charge if the victims had not seen the photographs,
Mr. Larsen did not volunteer at the time that he had shown the
photos to the other victims.” Findings of Fact and Conclusions of Law at
6. And on that basis the court concluded that “Mr. Larsen
intentionally concealed the fact of the photo show from the defense.”
That finding led to the imposition of a six-month suspension against
Larsen.
II
¶18 Larsen challenges the suspensions imposed against him
under both rules 3.3 and 3.8. He alleges error in the legal conclusions
and findings supporting both of the rules violations and asks us to
reverse. OPC defends the district court’s legal and factual analysis. It
also cross-appeals, claiming error in the length of the sanction and
the imposition of separate sanctions for each rule violation, and
asking us to require a single, overarching sanction instead of
separate ones.
¶19 We review the district court’s decision under standards of
review that account for our constitutional responsibility to “govern
the practice of law, including admission to practice law and the
conduct and discipline of persons admitted to practice law.” UTAH
CONST. art. VIII, § 4. Thus, we will “not overturn a district court’s
findings of fact unless they are ‘arbitrary, capricious, or plainly in
error.’” Utah State Bar v. Lundgren (In re Discipline of Lundgren), 2015
UT 58, ¶ 9, 355 P.3d 984 (citation omitted). Yet “‘in light of our
constitutional mandate and the unique nature of disciplinary
actions,’ we review district court findings in attorney discipline
matters with less deference” than we would afford in other cases. Id.
(citation omitted). We “retain ‘the right to draw different inferences
from the facts’ in order to ‘make an independent determination’ of
the correctness of the discipline the district court imposed.” Id.
(citation omitted).
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¶20 Applying these standards, we reverse in part (as to the rule
3.3 charge) and affirm in part (as to the rule 3.8 charge) on Larsen’s
appeal. As to OPC’s cross-appeal, we affirm the district court; we
reject the notion that district courts are required to impose a single,
overarching sanction on multiple ethics charges.
A
¶21 Rule 3.3 of the Utah Rules of Professional Conduct governs
candor to our tribunals. It provides that “[a] lawyer shall not
knowingly: (a)(1) make a false statement of fact or law to a tribunal
or fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer.” UTAH R. PROF’L CONDUCT
3.3(a)(1).
¶22 Larsen challenges the district court’s determination that he
violated this rule. His principal argument concerns the relevant state
of mind. Larsen views rule 3.3(a)(1) as requiring a finding of a
knowing false statement and contends that the district court did not
find that his misstatement was a knowing one.
¶23 OPC asks us to interpret the rule to encompass reckless
misstatements made without any plausible basis in fact. Citing cases
in other jurisdictions, OPC insists that “under certain circumstances,
an attorney’s conduct can be so careless or reckless that it must be
deemed to be knowing.” People v. Rader, 822 P.2d 950, 953 (Colo.
1992).
¶24 We reverse. Rule 3.3(a)(1) plainly requires that any
misstatement be made “knowingly.” UTAH R. PROF’L CONDUCT
3.3(a)(1). And the district court never found actual knowledge. In the
findings of fact in the sanction order, the district court found that
OPC had not established “intentional misrepresentation.” Findings of
Fact and Conclusions of Law at 4. Instead it concluded that “Larsen’s
statement was a misstatement that a reasonably diligent inquiry
would have avoided.” Id. The court’s conclusions of law, moreover,
state that Larsen’s misstatement was “knowing or reckless.” Id.
(emphasis added). And when pressed by Larsen in open court, the
district court indicated that he had found only “reckless
misrepresentation.” Original Transcript (Partial) of Trial, May 21, 2014
at 9.
¶25 The district court accordingly did not find that Larsen’s
misstatement was knowing. And rule 3.3(a)(1) requires proof that a
misstatement was made knowingly. So it was error for the district
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court to conclude that there was a violation of rule 3.3 in the absence
of a finding of a knowing misstatement.
¶26 Alternatively, the district court erred in implicitly treating a
reckless misstatement as the legal equivalent of a knowing one. It
did so in concluding that Larsen’s misstatement was “knowing or
reckless,” and in basing its determination of a violation of rule 3.3 on
the finding that Larsen could have avoided making a misstatement if
he had undertaken a “reasonably diligent inquiry.” This too was
error. Our rules do not treat knowledge and recklessness as equivalents.
They state that “‘[k]nowingly,’ ‘known’ or ‘knows’ denotes actual
knowledge of the fact in question.” UTAH R. PROF’L CONDUCT 1.0(g)
(emphasis added).
¶27 We reverse on the basis of this definition. Actual knowledge is
distinct from recklessness. And our rules require actual knowledge to
sustain a charge under rule 3.3. So we reverse on the ground that the
district court conflated knowledge and recklessness and did not find
that Larsen made a knowing misstatement. 2
¶28 In so holding, we acknowledge a plausible basis for the
district court’s analysis in Comment 3 in the Advisory Committee
Notes to rule 3.3. That comment states that “an assertion purporting
to be on the lawyer’s own knowledge . . . in a statement in open
court, may properly be made only when the lawyer knows the
assertion is true or believes it to be true on the basis of a reasonably
diligent inquiry.” (Emphasis added). The comment is correct as a
statement of best practices. A lawyer who makes a statement in court
can be confident that the statement is “proper[]” “only when the
lawyer knows the assertion is true or believes it to be true on the
basis of a reasonably diligent inquiry.” But the comment is not just a
statement of best practices; it is an elaboration of the requirements of
rule 3.3. And that rule, as written, does not lend itself to the
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2 To be clear, we do not foreclose the possibility of a
determination of a knowing misstatement on the basis of
circumstantial evidence. See UTAH R. PROF’L CONDUCT 1.0(g) (“A
person's knowledge may be inferred from circumstances.”). OPC
need not present direct evidence of knowledge—e.g., an admission—
to sustain a charge of a violation of rule 3.3(a)(1). But the rule
requires a finding that the false statement was a knowing one.
Constructive knowledge is insufficient.
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interpretation that a false statement made without a “reasonably
diligent inquiry” is a knowing misstatement in violation of the rule.
¶29 In other areas, the law sometimes “charges [a] person with
notice of facts which a reasonably diligent inquiry would have
disclosed.” Hottinger v. Jensen, 684 P.2d 1271, 1274 (Utah 1984)
(emphasis added). And that principle at least sometimes treats a
false statement made in the absence of a reasonably diligent inquiry
as one made with constructive knowledge.3 But that is not the concept
of knowledge incorporated in the Utah Rules of Professional
Conduct. As noted above, our rules require proof of actual knowledge.
That concept is distinct from constructive knowledge or recklessness.
¶30 We accordingly repudiate Comment 3 in the Advisory
Committee Notes to rule 3.3. We do so to avoid confusion going
forward in cases like this one, in which the district court
understandably appears to have relied on this comment.
¶31 The Advisory Committee Notes are not law. They are not
governing rules voted on and promulgated by this court. They set
forth only the advisory committee’s views of our rules. And
although they may provide helpful guidance, they cannot override
the terms of the rules themselves. Because the note in question here
does that, we rescind it and direct that it be stricken. We accordingly
reverse the conclusion that Larsen violated rule 3.3, while
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3 See, e.g., Musk v. Burk, 58 F.2d 77, 79 (7th Cir. 1932) (holding that
a person involved in a transaction is “charged with notice of all the
facts which a reasonably diligent inquiry would develop”); Rader v.
Star Mill & Elevator Co., 258 F. 599, 604 (8th Cir. 1919) (determining
that “all [of] the facts which a reasonably diligent inquiry would
disclose” is “in the eyes of the law equivalent to a knowledge of [those
facts]” (emphasis added)); Idaho State Bar v. Dodge (In re Dodge), 108
P.3d 362, 367 (Idaho 2005) (concluding that “a person’s knowledge
may be inferred from circumstances,” and thus if an attorney
“cannot point to a reasonably diligent inquiry to ascertain the truth
of the statement,” the attorney violates the rules of professional
conduct if he “remain[s] silent, profess[es] no knowledge, or
couch[es] the assertion in equivocal terms so the court can assess the
assertion’s probative value”); Casa del Rey v. Hart, 750 P.2d 261, 264
(Wash. 1988) (“It is a well-settled rule that . . . [a person] will be held
chargeable with knowledge” if that person could have made an
inquiry “with reasonable diligence.” (citation omitted)).
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acknowledging an apparent basis for that conclusion in our advisory
committee’s commentary.
B
¶32 Rule 3.8 of the Utah Rules of Professional Conduct
prescribes duties specific to the unique role of a prosecutor. It
requires a prosecutor in a criminal case to “[m]ake timely disclosure
to the defense of all evidence or information known to the
prosecutor that tends to negate the guilt of the accused or mitigates
the offense.” UTAH R. PROF’L CONDUCT 3.8(d).
¶33 Larsen first challenges the district court’s determination that
he violated this rule by not disclosing to defense counsel that he had
shown a photograph of the defendant to eyewitnesses in the
underlying robbery cases (without showing any other photographs).
He claims that the evidence showed that he made a timely disclosure
by acknowledging that he had shown a photograph to the witnesses
during trial. Second, Larsen challenges the district court’s
determination that his violation of rule 3.8 was made knowingly.
Finally, Larsen also contests the imposition of the sanction of a six-
month suspension for this alleged violation, claiming that it was
disproportionate. We affirm.
1
¶34 The threshold question presented is whether Larsen fulfilled
his duty under rule 3.8(d). Larsen says he complied with the rule by
admitting at trial that he had shown a photograph of the defendant
to the eyewitnesses. OPC says Larsen made no disclosure, or at least
that it came too late to be timely.
¶35 The precise timing of Larsen’s admission is not clear from
the record. See supra ¶¶ 14–16 & n.1. But we see no way to
characterize the admission he made at trial as a “timely disclosure”
under rule 3.8(d).
¶36 The timeliness of a prosecutor’s disclosure of exculpatory
evidence is a matter governed in Utah by our rules of criminal
procedure. By rule, a prosecutor must “make all disclosures as soon
as practicable following the filing of charges and before the
defendant is required to plead.” UTAH R. CRIM. P. 16(a)(5)(b). Our
rule also implicitly recognizes that some exculpatory material may
not be known before the time for a plea; for such material, the
prosecutor “has a continuing duty to make disclosure,” and an
obligation to do so “as soon as practicable.” Id.
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¶37 The requirement of timely disclosure is important. It is
aimed at allowing the “defendant to adequately prepare his
defense.” Id. 16(a)(5). And our ethics rule has the same evident focus.
Rule 3.8(d) of the Utah Rules of Professional Conduct requires more
than just disclosure; it requires “timely disclosure.”
¶38 Larsen’s admission at trial cannot be viewed as a “timely
disclosure.” He knew before trial that he had shown the defendant’s
photograph (and no other photographs) to the eyewitnesses of the
two robberies. And he failed to disclose that fact “as soon as
practicable” thereafter—in advance of trial, at a time necessary to
allow “the defendant to adequately prepare his defense.” UTAH R.
CRIM. P. 16(a)(5) & (b).
¶39 If the prosecutor’s possession of exculpatory evidence is
uncovered at trial, a subsequent admission of that fact may be
somewhat mitigating at the sanction phase. But the admission is not
itself a fulfillment of the rule 3.8(d) duty of disclosure. If that were
enough, the rule would be rendered practically toothless, as any
savvy prosecutor could avoid an ethics violation by the simple
expedient of an after-the-fact admission of a prior failure of
disclosure once it is exposed by someone else.
¶40 Larsen cites State v. Bisner, 2001 UT 99, 37 P.3d 1073, and
United States v. Bagley, 473 U.S. 667 (1985), for the proposition that
there is no violation of the duty to disclose exculpatory material
under Brady v. Maryland, 373 U.S. 83 (1963) unless the prosecution
“suppresses information that (1) remains unknown to the defense
both before and throughout trial and (2) is material and exculpatory,
meaning its disclosure would have created a ‘reasonable probability’
that ‘the result of the proceeding would have been different.’” Bisner,
2001 UT 99, ¶ 33 (citation omitted). And because Larsen’s act of
showing photographs to the eyewitnesses became known during
trial, Larsen insists that he also fulfilled his duties under rule 3.8(d).
¶41 We see the matter differently. Larsen’s argument conflates
the Brady standard with the prosecutor’s ethical duty under rule
3.8(d). But the two standards are distinct. The question under Brady
is a matter of due process—of whether the prosecution’s failure to
disclose exculpatory material so undermines our confidence in the
verdict that we should order a new trial. If the exculpatory evidence
in question is disclosed during trial, there may be no prejudice and
thus no need for a new trial. See Bagley, 473 U.S. at 682 (indicating
that the prejudice analysis requires an assessment of whether there is
a “reasonable probability” of a different outcome if disclosure had
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been made). But rule 3.8(d)’s focus is different. It is aimed not only at
assuring a fair trial—by articulating a standard for a motion for a
new one—but also at establishing an ethical duty that will avoid the
problem in the first place. In stating that duty, our rule requires
“timely disclosure” by the prosecution. That duty cannot be fulfilled
by a prosecutor’s mere admission of the existence of exculpatory
evidence made after a witness first uncovers it.
¶42 We affirm on that basis. The district court found that Larsen
failed to make a timely disclosure as to all four witnesses—the two
witnesses on the Kim’s Fashions count and the two witnesses on the
Baskin-Robbins count. We affirm because we conclude that Larsen’s
admission at trial cannot count as a “timely disclosure” under the
rules.
2
¶43 The next question concerns Larsen’s state of mind in
violating rule 3.8(d). In the district court’s view Larsen’s failure to
make a timely disclosure was knowing—even intentional. It found
that Larsen had an “intent to conceal the fact of showing the photos
to the victims,” Findings of Fact and Conclusions of Law at 6, or in other
words that he “intentionally concealed the fact of the photo show
from the defense.” Id. The district court thought that the evidence
“showed a deceptive intent on the part of Mr. Larsen.” Id.
¶44 Larsen challenges this finding on appeal. He argues that the
second count in the formal complaint “omits any factual allegation
that [he] acted intentionally.” Appellant’s Brief 31. He further states
that “no one testified that [he] acted intentionally,” id., and posits
that “[e]ven the defense attorney said that he did not think that
[Larsen] acted ‘maliciously.’” 4 Id.
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4 At oral argument on this appeal, Larsen sought to defend his
failure to disclose—and to rebut the finding of a knowing and
intentional violation of the rule—by asserting that he was supposed
to be second chair at the trial on these two robbery counts, and that
his conduct is explained by the fact that he was flustered when the
first chair failed to show for trial. But we can find nothing in the
record to support that assertion. So we do not consider it on this
appeal.
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¶45 We affirm. There is ample evidence in the record to support
the district court’s findings as to Larsen’s state of mind in failing to
make timely disclosures under rule 3.8(d). State of mind, moreover,
is the kind of factual question that the district court is in the best
position to assess. We will not reverse a decision on state of mind
absent clear error, and we see none here.
3
¶46 That leaves the question of the propriety of the sanction—a
six-month suspension—imposed by the district court. By rule, a
finding of a knowing violation of rule 3.8(d) would “generally”
sustain a sanction of suspension if it “causes injury or potential
injury to a party, the public, or the legal system, or causes
interference or potential interference with a legal proceeding.” UTAH
CODE OF JUD. ADMIN. art. 14-605(b)(1). And a suspension is
“[g]enerally . . . imposed for a specific period of time equal to or
greater than six months,” but no “more than three years.” Id. 14-
603(c). In “deciding what sanction to impose,” our rules also identify
“aggravating and mitigating circumstances” that “may be
considered.” Id. 14-607.
¶47 The district court determined that a six-month suspension
was appropriate for this count. In so deciding, it first concluded that
Larsen’s violation of rule 3.8(d) was “knowing” and that “the
potential harm to the defendant was significant.” Order of Sanction at
8-9. We see no basis for quarreling with these determinations. They
are amply supported by the record.
¶48 With these premises established, our rules call “generally”
for the imposition of the sanction of suspension. But that leaves the
question whether this is a “general” case or an unusual one. And it
still requires a decision as to the appropriate length of any
suspension.
¶49 In evaluating the question whether the “generally”
appropriate sanction is proper here, our rules call for an evaluation
of aggravating and mitigating circumstances. UTAH CODE OF JUD.
ADMIN. art. 14-607. On this point, the district court found both
aggravating and mitigating circumstances. It noted, on one hand,
that Larsen had no prior record of discipline, lacked a dishonest or
selfish motive, and was inexperienced in the practice of law. On the
other hand, the court also noted that Larsen faced multiple charges,
showed an unwillingness to acknowledge the wrongfulness of his
misconduct, and harmed a particularly vulnerable victim.
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¶50 Again we see no reason to disagree with this analysis.
Ultimately, we think it fair to say that the mitigating and
aggravating factors largely cancel each other out in this case. And we
accordingly agree with the district court’s determination that a
six-month suspension is appropriate.
¶51 In so doing we reject Larsen’s plea for a reduced sanction.
The prosecution’s duty of disclosure under rule 3.8(d) is an
important one. And the district court found that Larsen’s violation of
this rule was not only knowing but intentional. That strikes us as a
sufficient reason to sustain a suspension and to reject Larsen’s
request for a lesser sanction such as a public reprimand.
¶52 Yet we also reject OPC’s—and amicus Utah Association of
Criminal Defense Lawyers’—request for more serious sanctions.
OPC has asked for the imposition of a three-year suspension in this
case. And amicus seeks an outright disbarment. Both requests are
based on the same essential point—that the prosecutor plays an
important role in our system of justice, and that a failure to disclose
exculpatory evidence can do substantial harm to the administration
of justice. We do not disagree with these premises. But we
nonetheless affirm the six-month suspension imposed in this case.
We do so on three grounds: (1) a suspension from the practice of
law, even for six months, is a serious penalty for a practicing lawyer;
(2) there are at least some mitigating circumstances in this case; and
(3) the precedents involving sanctions against prosecutors under rule
3.8(d) include a few suspensions for six months but none for any
greater period, and no disbarments. 5
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5 We are aware of no Utah cases under rule 3.8(d). But cases in
other jurisdictions seem to generally sustain the proportionality of
the sanction imposed in this case. See, e.g., Comm. on Prof’l Ethics and
Conduct of the Iowa State Bar Ass’n v. Ramey, 512 N.W.2d 569, 572
(Iowa 1994) (indefinite suspension, but with possibility of
reinstatement after three months); Disciplinary Counsel v. Wrenn, 790
N.E.2d 1195, 1198 (Ohio 2003) (six-month suspension); Disciplinary
Counsel v. Jones, 613 N.E.2d 178, 180 (Ohio 1993) (six-month
suspension) State ex rel. Okla. Bar Ass’n v. Miller, 309 P.3d 108 (Okla.
2013) (six-month suspension, but for numerous other counts as well).
But see In re Jordan, 913 So. 2d 775, 784 (La. 2005) (three-month
suspension, but deferred due to mitigating factors). We have found
cases in which prosecutors have been given a lighter sanction. See In
(continued …)
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¶53 The cited precedents are by no means binding. But they are
helpful in assessing the appropriate sanction under a scheme that
yields substantial discretion for the court. And in light of these
precedents and the other circumstances identified above, we
conclude that a six-month sanction is appropriate for Mr. Larsen’s
violation of rule 3.8(d).
C
¶54 The American Bar Association’s “Standards for Imposing
Lawyer Sanctions” expressly “do not account for multiple charges of
misconduct.” AMERICAN BAR ASSOCIATION, STANDARDS FOR IMPOSING
LAWYER SANCTIONS 8 (1992). Instead they provide that “[t]he
ultimate sanction imposed should at least be consistent with the
sanction for the most serious instances of misconduct among a
number of violations,” and note that “it might well be and generally
should be greater than the sanction for the most serious
misconduct.” Id. at 78.
¶55 OPC urges us to adopt these standards. And it interprets
them as mandating a single, overarching sanction for a range of
violations of the rules of professional conduct, or in other words as
prohibiting separate sanctions for each of a list of separate charges.
Because the district court imposed two separate sanctions in this case
(a 30-day sanction for the rule 3.3 violation and a six-month sanction
for the rule 3.8(d) violation), moreover, OPC claims error in the
sanctions imposed here.
¶56 We see no error. We see little upside and plenty of
downside in the proposed requirement of a single, overarching
sanction proposed by OPC. The downsides are apparent in our
review of the decision below. If the district court had imposed a
single, overarching sanction, our review on appeal would have been
hampered in a couple of respects: We could not have identified the
(continued …)
re Kline, 113 A.3d 202 (D.C. 2015) (no sanction due to confusion over
the meaning of the rule); In re Jordan, 91 P.3d 1168, 1175 (Kan. 2004)
(public censure for two counts of not making timely disclosure and
for another professional conduct violation); Cuyahoga Cty. Bar Ass’n
v. Gerstenslager, 543 N.E.2d 491, 491 (Ohio 1989) (public censure); In
re Grant, 541 S.E.2d 540, 540 (S.C. 2001) (public reprimand). But to
our knowledge none of these cases involved a prosecutor deemed to
have intentionally failed to make a timely disclosure.
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Opinion of the Court
separate sanction imposed for the count on which we reverse and
remand, and we could not have evaluated the propriety of the
sanction imposed on the count on which we affirm. The latter point
seems especially significant. Our review as to the propriety of a
sanction imposed for a violation of one of our rules of professional
conduct would be substantially impaired if we had before us only a
single, overarching sanction in a case involving multiple ethics
charges.
¶57 For these reasons we reject the OPC’s cross-appeal. We
affirm the district court’s decision to impose separate sanctions for
the separate charges at issue in this case—and, indeed, urge future
courts to follow the pattern that was followed here, as it will aid our
review of attorney discipline cases on appeal.
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