In re Disp.of R. LaJeunesse

This opinion is subject to revision before final
publication in the Pacific Reporter
2018 UT 6
IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE DISCIPLINE OF RICHARD LAJEUNESSE, #7408
OFFICE OF PROFESSIONAL CONDUCT,
Appellant,
v.
RICHARD LAJEUNESSE,
Appellee.
No. 20160264
Filed February 16, 2018
On Direct Appeal
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 130905706
Attorneys:
Barbara L. Townsend, Salt Lake City, for appellant
Elizabeth A. Bowman, Salt Lake City, for appellee
Heidi E. C. Leithead, Salt Lake City, for amicus curiae, Workers
Compensation Fund
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUDGE MORTENSEN,
and JUDGE HAGEN joined.
Having recused himself, JUSTICE PEARCE does not participate herein;
COURT OF APPEALS JUDGE DAVID N. MORTENSEN sat.
Due to her retirement, JUSTICE DURHAM did not participate herein;
COURT OF APPEALS JUDGE DIANA HAGEN sat.
JUSTICE PETERSEN became a member of the Court on November 17,
2017, after oral argument in this matter, and accordingly did not
participate.
IN RE DISCIPLINE OF LAJEUNESSE
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 This is an appeal in an attorney discipline proceeding
involving Richard LaJeunesse. LaJeunesse has been licensed to
practice law in Utah since 1996. From 2001 through 2012, he was the
Presiding Administrative Law Judge (ALJ) and Director of the
Adjudication Division of the Utah Labor Commission. In that
capacity he adjudicated workers’ compensation disputes between
occupationally injured employees and their employers or insurance
carriers. He also oversaw the work of other ALJs.
¶2 This case arises out of a policy adopted by LaJeunesse in his
work as Presiding ALJ and Director of the Adjudication Division.
The policy concerned ALJs’ treatment of medical panel reports
submitted under Utah Code section 34A-2-601(2). That provision
requires an appointed medical panel to make “a report in writing to
the administrative law judge in a form prescribed by the Division of
Adjudication.” UTAH CODE § 34A-2-601(2)(b)(i). It also directs the
ALJ to “promptly distribute full copies” of that report to all parties
and their attorneys. Id. § 34A-2-601(2)(d)(i). LaJeunesse interpreted
this statute to leave room for an ALJ to reject reports submitted by
medical panels and to request changes to the form and verbiage in a
report—without submitting the rejected report to the parties or their
attorneys. Applying this policy, another ALJ working under
LaJeunesse’s supervision (Debbie Hann) rejected reports she deemed
noncompliant and requested medical panels to submit replacement
reports. In those instances she did not provide a copy of the rejected
report to the parties or to their counsel. LaJeunesse knew of three of
these instances. And he personally participated in rejecting a medical
panel report and requesting a new report in one instance.
¶3 A party in one of these cases discovered that a medical
panel report had been rejected without being distributed to the
parties. An audit and investigation ensued. The Utah Labor
Commission ultimately concluded that the policy adopted by
LaJeunesse ran afoul of explicit and implicit mandates of the
Workers’ Compensation Act, including the requirement that ALJs
“promptly distribute full copies” of medical panel reports to parties
and their attorneys. Id. It also faulted LaJeunesse for embracing a
policy that allowed ALJs to destroy medical panel reports without
informing the parties of the existence of such reports or of the nature
and extent of proposed changes to them. Thus, the Commission
repudiated the policy adopted by LaJeunesse, instructing ALJs that
they could no longer withhold medical panel reports. And the
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Commission ultimately terminated LaJeunesse for his role in
adopting and implementing a contrary policy.
¶4 LaJeunesse was then subjected to a bar complaint. After an
initial investigation by the Office of Professional Conduct (OPC) a
Notice of Informal Complaint was issued against LaJeunesse. The
complaint charged LaJeunesse with violating rule 8.4(d) of the Utah
Rules of Professional Conduct by engaging in “conduct that is
prejudicial to the administration of justice.”
¶5 That charge was heard by a screening panel of the Ethics
and Discipline Committee, which found probable cause to conclude
that LaJeunesse had violated rule 8.4(d). A petition was
subsequently filed by the OPC in the Third District Court. The case
was heard by Judge Andrew Stone. Judge Stone concluded that
LaJeunesse had not engaged in conduct prejudicial to the
administration of justice. He held that LaJeunesse had a sound legal
basis for the policy he had adopted or, alternatively, that a lawyer
exercising quasi-judicial power (as an ALJ) cannot be found in
violation of rule 8.4(d) merely for adopting a reasonable
interpretation of a statutory scheme that is ultimately shown to be
incorrect.
¶6 We affirm on this latter ground. We conclude that a lawyer
cannot be charged with conduct prejudicial to the administration of
justice for adopting a good faith but mistaken interpretation of a law
that governs the lawyer’s performance of quasi-judicial authority. Cf.
In re Worthen, 926 P.2d 853, 870 (Utah 1996) (adopting a similar
standard for assessing judicial misconduct).
I
¶7 LaJeunesse’s case was adjudicated in a five-day bench trial
in February 2016. At the close of the trial Judge Stone entered
extensive factual findings. We summarize the background and
findings in detail below with quotations from the district court
record.
A
¶8 ALJs hear contested claims for workers’ compensation and
may appoint a medical panel to advise them regarding the contested
medical issues in the case. The medical panels are considered
“adjuncts” to the ALJ at the commission level. But “[t]he final
responsibility of making the decision as to the issues in such a
proceeding is given to the Commission,” and the medical panel may
not take over this responsibility of the Commission. IGA Food Fair v.
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Martin, 584 P.2d 828, 830 (Utah 1978) (citation omitted), abandoned on
other grounds by Allen v. Indus. Comm’n, 729 P.2d 15 (Utah 1986).
¶9 Before referring a case to a medical panel, the ALJ makes
interim findings resolving any factual disputes. The medical panel is
bound by those findings; it is left only to resolve any outstanding
medical issues. The ALJ, on the other hand, is not required to accept
the medical panel’s conclusions if “substantial conflicting evidence
in the case supports a contrary finding.” UTAH CODE
§ 34A-2-601(2)(e)(ii).
¶10 By statute, the medical panel is to make “a report in writing
to the administrative law judge in a form prescribed by the Division
of Adjudication” and “additional findings as the administrative law
judge may require.” Id. § 34A-2-601(2)(b). The “administrative law
judge shall promptly distribute full copies of a report submitted to
the administrative law judge” to all relevant parties and their
attorneys. Id. § 34A-2-601(2)(d)(i). The parties then have 20 days to
file “a written objection to the report.” Id. § 34A-2-601(2)(d)(ii). If no
written objection is made within the prescribed period, then “the
report is considered admitted in evidence.” Id. § 34A-2-601(2)(d)(iii).
¶11 In 2011 and 2012, there were numerous complaints about
the quality of medical reports provided by medical panels to ALJs.
Common complaints went to concerns that medical panels assumed
facts beyond or contrary to the ALJ’s interim findings, or that
opinions were “phrased in terms of percentages instead of legally
required conclusions.”
¶12 In January 2012, LaJeunesse and another ALJ, Hann,
discussed whether the statute permitted an ALJ to reject a report and
request changes to its form in order to comply with the legal
requirements applicable to medical reports. LaJeunesse reached the
conclusion that such a determination lay within the ALJ’s discretion
and agreed with ALJ Hann that she could do so. After permitting
ALJ Hann to reject medical reports without notifying the parties,
LaJeunesse also personally rejected and requested new medical
reports in one instance. These actions gave rise to the case before us.
B
¶13 The Commission and the district court both determined
that LaJeunesse “had a good faith belief that his statutory
interpretation permitting the return of a signed report to a medical
panel for technical revision was correct.” No written policy of the
Commission expressly forbade returning the medical report to the
medical panel. And, given the role of the medical panel as an ALJ’s
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adjunct, the district court found that the statute implicitly permits
the ALJ to seek further assistance prior to deeming the report final.
The district court also concluded that LaJeunesse’s only purpose in
permitting the return of the medical reports was to correct errors of
law or phrasing contained in the reports and to train the physicians
who had prepared them.
¶14 The district court went on to assess the question whether ex
parte contacts between the ALJ and the medical panel required notice
to the parties. It found the Utah Code of Judicial Conduct to be
instructive. Rule 2.9 of that code prohibits most ex parte
communications. One exception to the rule allows:
[a] judge [to] consult with court staff and court officials
whose functions are to aid the judge in carrying out the
judge’s adjudicative responsibilities, or with other
judges, provided the judge makes reasonable efforts to
avoid receiving factual information that is not part of
the record and does not abrogate the responsibility to
personally decide the matter.
UTAH CODE OF JUD. CONDUCT r. 2.9(A)(3). Because the medical panel
is recruited, appointed, and paid by the labor commission to advise
the ALJ, the district court found medical panels to be akin to a “court
official[] whose functions are to aid the judge in carrying out the
judge’s adjudicative responsibilities” under rule 2.9 of the Utah Code
of Judicial Conduct. The district court also cited the less formal
nature of the administrative process in determining that ALJs can
have ex parte contact with persons specifically employed to provide
them expertise. For these reasons the district court concluded that
there was no existing statute or policy requiring parties to be
informed of contacts between the ALJ and the medical panel.
¶15 The district court also concluded that LaJeunesse’s “failure
to disclose [the communications between him and the medical
panels] in . . . specific cases does not rise to the level of conduct
prejudicial to the administration of justice.” In the district court’s
view, “the specific changes in the cases known of by [LaJeunesse]
were not substantive and the parties were not deprived of a
meaningful opportunity to contest them—indeed, there was no
evidence that any of the requested changes to the panel reports were
inappropriate or altered the panel’s medical conclusions.” In any
event, the district court held that “reasonable minds can differ as to
whether such communications involving technical corrections to the
medical report are necessarily improper, or must be disclosed to the
parties.”
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Opinion of the Court
¶16 The “OPC argue[d] that [LaJeunesse’s] authorization and
participation in the return of medical reports to medical panels
without notice to the parties constituted conduct, and that it resulted
in delay and increased costs.” In the OPC’s view, this was sufficient
for an ethical violation under rule 8.4 of the Utah Rules of
Professional Conduct.
¶17 The district court rejected this interpretation of rule 8.4. It
noted that “[a]ttorneys and judges interpret laws all the time.” “On
any given day,” the district court noted, “the Court is confronted by
multiple cases involving competing interpretations of law”—and “at
least one side is generally wrong.” “Attorneys and judges take
actions or advise others to take actions based on those
interpretations.” And “often, such an interpretation (it matters not
whether it is right or wrong, under the OPC’s argument here
requiring only conduct) causes delay or increased expense.”
¶18 The district court relied on In re Worthen, 926 P.2d 853
(Utah 1996)—an opinion of this court interpreting similar language
in the Utah Constitution concerning judicial discipline. In re Worthen
rejects the proposition that judges may be subject to the disciplinary
process for committing a legal error. Id. at 869. It states the following:
The offenses that subject a judge to discipline should be
defined in such a way as to minimize the potential for
overlap between the judicial conduct machinery and
the appeal process. For it is worth emphasis that a
judge has not behaved improperly simply because he
has committed an error. As we noted earlier, the entire
appellate process is in place because it is expected that
judges will err occasionally, at least in the eyes of the
appellate courts. This does not mean that they are not
functioning properly as judges, only that they are
human beings functioning within a human institution
where different people can see things differently. The
[disciplinary] process cannot legitimately have as a
purpose the punishment of those who commit legal
error; rather, it must concern itself only with those who
behave outside the ethical norms set for judges, and the
constitution and implementing statutes and rules must
be so construed.
Id. at 868–69. The district court determined that the “OPC’s proposed
reading of 8.4 goes too far.” In focusing only on an attorney’s
“‘conduct’ and its asserted effect on the administration of justice,”
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the court noted that the “OPC fails to account for legal error, which
itself is part of the administration of justice.” “Ordinary error or
differences of opinion,” in the court’s view, “are not prejudicial to
the administration of justice.” “[T]hey are something we expect on
the way to truth.”
¶19 The district court went on to find that the phrase “conduct
prejudicial to the administration of justice” implies some breach of
ethical canons. In support of that conclusion, the district court cited
the comments to rule 8.4. It noted that comment 2 limits those
offenses that “a lawyer should be professionally answerable for,”
including “violence, dishonesty, breach of trust or serious
interference with the administration of justice.” UTAH RULES OF
PROF’L CONDUCT r. 8.4 cmt. 2. The district court also again relied on
this court’s analysis in In re Worthen, in which we explained the
following:
[T]he first clause employs the term “conduct” rather
than the term “misconduct” as used in the first ground
for judicial discipline, which could, on its face, suggest
that the act or acts covered by this ground could be
other than a breach of the ethical norms governing
judges. However, concerns about limiting the
Commission’s jurisdiction to matters of misconduct, not
legal error, as well as concerns about vagueness and
adequate notice, lead us to conclude that the term should
carry the same definition we gave to “misconduct,” i.e.,
both grounds require “unjudicial conduct,” which we
have defined as a breach of the ethical canons
contained in the Code of Judicial Conduct.
926 P.2d at 870 (emphasis added).
¶20 The district court also continued the analogy to the Utah
Code of Judicial Conduct:
[Al]though Rule 8.4 is entitled “Misconduct” and uses
that term in other parts of the Rule, Section 8.4(d) refers
to just “conduct.” As in Worthen, this on its face
supports [the] OPC’s argument here. But for the same
reasons articulated in Worthen, the Court concludes
that Rule 8.4(d) cannot be read to put stricter limits on
advocacy than those imposed by existing norms.
Certainly, an objectively reasonable position taken in
good faith by an ALJ in fulfillment of his or her duties
cannot support a claim that the conduct taken as a
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Opinion of the Court
result in a violation of Rule 8.4(d). The line to be drawn
here needs to permit and even encourage acceptable
legal advocacy including, in this case, administration of
an agency’s quasi-judicial process. For that reason, the
line to be drawn defining where a Rule 8.4(d)
[violation] begins should provide some daylight
between reasonable interpretations of law on the one
hand and ethical violations on the other.
¶21 Finally, the district court found that LaJeunesse had not
violated rule 8.4(d):
As found above, none of [LaJeunesse’s] actions
involved any morally questionable motive. This is not a
repeated pattern of independent violations but a single
change in interpretation affecting five cases. The Court
has concluded that the actions were either legally
permitted or at least did not violate express statute or
policy. More importantly, whether or not the actions
were legally correct or even advisable, they were taken
pursuant to objectively reasonable legal interpretations.
No violation of Rule 8.4(d) has been shown.
¶22 The district court dismissed the petition against LaJeunesse
on the above grounds. The OPC then filed this appeal.
¶23 Our review in attorney discipline matters is sui generis. We
afford some deference to the district court’s findings. See In re
Discipline of Barrett, 2017 UT 10, ¶ 11, 391 P.3d 1031. But we reserve a
degree of discretion to override the district court’s findings where
we find them unsupported in the record and also to draw our own
inferences from those facts that may differ from the inferences drawn
by the district court. Id. We have rooted this standard in the fact that
this court bears the responsibility for attorney discipline under the
Utah Constitution. In re Discipline of Ince, 957 P.2d 1233, 1236 (Utah
1998) (citing UTAH CONST. art. VIII, § 4).
II
¶24 The OPC’s opening brief on appeal begins with a detailed
statement of facts. And it proceeds to an argument that LaJeunesse’s
conduct was prejudicial to the administration of justice. The OPC’s
argument proceeds essentially in four steps: (1) the policy adopted
by LaJeunesse runs counter to the language and structure of the
Workers’ Compensation Act, Utah Code section 34A-2-601(2); (2)
application of that policy interfered with the administration of justice
by depriving parties and their counsel of the opportunity to review
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and respond to proposed changes to a medical panel’s report; (3)
attorneys in other jurisdictions have been found to have engaged in
conduct prejudicial to the administration of justice when they gave
false or misleading testimony or destroyed documents with
evidentiary value1; and (4) the district court’s dismissal of the charge
against LaJeunesse was based only on LaJeunesse’s self-serving
testimony that the policy in question was based on a good faith
interpretation of the statute, and LaJeunesse’s state of mind should
only have been a factor in deciding on an appropriate sanction—not
in deciding whether he violated the Utah Rules of Professional
Conduct in the first place.
¶25 LaJeunesse challenges the OPC’s brief as insufficient. He
asks us to strike the brief for its failure to follow several of the
dictates of rule 24 of the Utah Rules of Appellate Procedure. He
notes, specifically, that the brief fails to append the district court’s
decision to its brief, see UTAH R. APP. P. 24(a)(12)(B) (mandating that
the addendum include the “order, judgment, opinion, or decision
under review”); fails to cite the record to show where its arguments
were preserved below, see id. 24(a)(5)(B) (requiring “citation to the
record showing that [an] issue was preserved for review”); and fails
to identify specific findings or conclusions of the district court that
the OPC is challenging on appeal or to marshal evidence or legal
authority in support of arguments for reversal of such findings or
conclusions, see id. 24(a)(8) (requiring appellant to “explain, with
reasoned analysis supported by citations to legal authority and the
record, why the party should prevail on appeal”). In sum, in
LaJeunesse’s view, the “OPC barely acknowledges the [district]
court’s ruling in its brief, arguing as if this Court were in de novo
proceedings.” And for that reason LaJeunesse says that we “need not
reach the merits of [the] OPC’s argument,” but may simply affirm
after striking or disregarding the OPC’s brief.
¶26 These points are well taken. The OPC has failed to carry its
burden as the appellant in a number of respects, and we may affirm
on that basis. That said, we feel compelled to offer some points of
our own analysis of the questions presented. We do so because the
OPC has not utterly failed to address the district court’s decision—it
_____________________________________________________________
1 See Attorney Grievance Comm’n v. White, 731 A.2d 447, 457 (Md.
1999); Disciplinary Counsel v. Robinson, 933 N.E.2d 1095, 1097 (Ohio
2010).
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identifies some elements of the decision it is challenging on appeal—
and because the responsibility to oversee the attorney discipline
process is ours under the Utah Constitution. See UTAH CONST. art.
VIII, § 4. With this in mind, we offer our own endorsement of the
central basis for Judge Stone’s careful decision while noting a minor
caveat.
A
¶27 As the appellant it is the OPC’s burden to identify the
grounds for the district court’s decision that it is challenging on
appeal. The OPC must also persuade us, “with reasoned analysis
supported by citations to legal authority and the record, why” it
“should prevail on appeal.” UTAH R. APP. P. 24(a)(8). That burden
stands despite our recent decisions limiting or at least clarifying the
extent of the “marshaling” duty set forth in our case law. See, e.g.,
State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645.
¶28 Nielsen repudiates the “procedural default” notion of a
requirement of marshaling. Id. ¶¶ 37, 41. But it also reinforces the
longstanding notion that a party challenging a lower court decision
“will almost certainly fail to carry its burden of persuasion on appeal
if it fails to marshal” and respond to evidence or authority that could
sustain the decision under review. Id. ¶ 42. And the OPC has failed
to do just that.
¶29 The problem with the OPC’s brief begins with its failure to
append or recite the findings and conclusions entered by the district
court. This case was decided on an extensive record after a five-day
bench trial. Yet the OPC’s statement of the factual and procedural
background of the case makes only the barest mention of the district
court’s analysis. The OPC notes that the court entered findings and
conclusions on March 16, 2016. But the bare mention of that fact is all
that is provided. The OPC brief nowhere recites any of the extensive
findings or conclusions that we set forth above. See supra ¶¶ 8–22.
¶30 This problem is also reflected in the argument section of the
OPC’s brief. There the OPC makes no mention of most of the crucial
elements of Judge Stone’s ruling. As noted above, the OPC’s
argument is mostly about the legal propriety and practical effect of
LaJeunesse’s policy for ALJs’ treatment of medical panel reports—
the assertion that this policy does not conform to the requirements of
the Workers’ Compensation Act and the argument that it prejudices
the administration of justice by depriving parties and their counsel
with the opportunity to respond to proposed changes to a medical
panel report.
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¶31 These tenets of the OPC’s position ignore crucial elements
of Judge Stone’s analysis. Nowhere does the OPC address Judge
Stone’s assertion that a determination of an ALJ’s “conduct
prejudicial to the administration of justice” must leave room for a
judge to make a good faith mistake that might be reversed on
appeal, or his conclusion that LaJeunesse did not violate rule 8.4(d)
because his policy for treating medical panel reports was “an
objectively reasonable position taken in good faith by an ALJ in
fulfillment of his . . . duties.” Tellingly, the OPC fails even to cite our
opinion in In re Worthen, 926 P.2d 853 (Utah 1996)—a decision that is
a central basis for Judge Stone’s decision. Thus, the OPC offers no
basis for reversal of the district court’s decision.
¶32 This alone is a basis for affirmance. The appellant bears the
burden of identifying grounds for reversal of the decision of the
court (or administrative agency) being reviewed on appeal. See Utah
Physicians for a Healthy Env’t v. Exec. Dir. of the Utah Dep’t of Envtl.
Quality, 2016 UT 49, ¶ 20, 391 P.3d 148 (affirming on the basis of
appellant’s failure to identify and challenge portions of the decision
being reviewed on appeal). If the appellant fails to acknowledge the
lower court’s decision—or to identify specific grounds for
challenging it—we may affirm without reaching the merits of the
question presented. See id.
¶33 We could affirm Judge Stone’s decision on this basis.
Several of the central tenets of Judge Stone’s findings and
conclusions, as noted, are nowhere addressed in the OPC’s brief.
And we could therefore allow the district court’s decision to stand
without reaching the merits.
B
¶34 We also agree with the bulk of Judge Stone’s analysis—
with one caveat. We begin with the caveat and then outline our
extensive points of agreement.
¶35 Judge Stone appears to endorse (at least in part) the
statutory basis advanced by LaJeunesse in support of the medical
panel policy that he adopted. The apparent endorsement is reflected
in related aspects of Judge Stone’s findings: (1) his rejection of the
OPC’s view that “clarification requests” by an ALJ to a medical
panel report are permitted under the Workers’ Compensation Act
“only after an original report is mailed to the parties”—a view that
in Judge Stone’s opinion “has no more support in the statutory
language than the reading advanced by LaJeunesse allowing a report
to be returned to the medical panel before distribution to the
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parties”; (2) his conclusion that the Workers’ Compensation Act
“implicitly permits the ALJ to seek further assistance” before treating
a report received from a medical panel as final and “mailing it to the
interested parties”; and (3) his conclusion that “no existing statute or
policy . . . prohibited communications between a medical panel and
ALJs concerning a case under review” or “required the parties to be
informed of such contacts.”
¶36 The OPC devotes substantial attention to these conclusions
in its brief. In arguments echoed by an amicus, Workers
Compensation Fund, the OPC seeks to establish that the district
court’s view of an ALJ’s discretion in the treatment of a medical
panel report is undermined by the terms of the Workers’
Compensation Act.
¶37 We take no position on this question. Thus, the caveat in
our decision affirming Judge Stone’s careful findings and
conclusions is simply to note that we need not and thus do not offer
our own independent analysis of the question whether the policy
adopted by LaJeunesse is consistent with the terms and conditions of
the Workers’ Compensation Act.
¶38 We leave that question unanswered because we find it
unnecessary to the disposition of this attorney discipline case. And
we find it unnecessary because we agree with the central tenets of
Judge Stone’s analysis of the operative standard under rule 8.4(d) of
the Utah Rules of Professional Conduct.
¶39 The threshold question is the standard of “conduct
prejudicial to the administration of justice” as applied to the lawyer’s
role of advising or opining on unresolved questions of law. Lawyers
are often called upon to chime in on such questions. As Judge Stone
noted, “[a]ttorneys and judges [often] take actions or advise others to
take actions based on” the view they take on disputed questions of
law. A trial judge, for example, may face “multiple cases” each day
“involving competing interpretations of law.” “[A]t least one side is
generally wrong.” And our legal system could not function if the
side whose view is rejected is in jeopardy of a professional
misconduct charge on that basis alone.
¶40 As Judge Stone noted, our decision in In re Worthen is
instructive. There we considered the question whether a trial judge is
susceptible to discipline for “conduct prejudicial to the
administration of justice” where he makes a legal error subject to
reversal on appeal. In re Worthen, 926 P.2d at 874. We answered that
question in the negative. See id. (concluding that “mere errors of
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law . . . should ordinarily be dealt with through the appeals
process”). We noted that the operative disciplinary standard speaks
in terms of “‘conduct’ rather than . . . ‘misconduct’”—a term that
appears elsewhere in the code (as with regard to criminal acts). Id. at
870. And we acknowledged that the bare reference to conduct “could,
on its face, suggest that the act or acts covered by this ground could
be other than a breach of the ethical norms governing judges.” Id. Yet
we rejected that interpretation. We held instead that “conduct
prejudicial to the administration of justice” as applied to a judge
requires proof of “‘unjudicial conduct,’ which we defined as a breach
of the ethical canons contained in the Code of Judicial Conduct.” Id.
And we therefore concluded that a judge cannot be charged with
conduct prejudicial to the administration of justice merely for
committing “legal error.” Id. Instead, we held that this standard as
applied to judges “must concern itself only with those who behave
outside the ethical norms set for judges.” Id. at 869.
¶41 Judge Stone also turned to the comments to rule 8.4. Those
comments, as he indicated, explain that not even all forms of criminal
misconduct reflect adversely on the fitness to practice law.
“Although a lawyer is personally answerable to the entire criminal
law, a lawyer should be professionally answerable only for offenses
that that indicate lack of those characteristics relevant to law
practice.” UTAH RULES OF PROF’L CONDUCT r. 8.4 cmt. 2. The dividing
line, traditionally, has been “drawn in terms of offenses involving
‘moral turpitude.’” Id. Thus, “[o]ffenses involving violence,
dishonesty, breach of trust or serious interference with the
administration of justice” are chargeable under rule 8.4. Id. But other
offenses may subject a lawyer only to personal (as opposed to
professional) accountability.
¶42 Judge Stone took the above into account in establishing the
standard of “conduct prejudicial to the administration of justice” that
applies in this case. “[F]or the same reasons articulated in Worthen,”
Judge Stone “conclude[d] that Rule 8.4(d) cannot be read to put
stricter limits on advocacy than those imposed by existing norms.”
Thus, he held that “an objectively reasonable position taken in good
faith by an ALJ in fulfillment of his or her duties cannot support a
claim that the conduct taken as a result is in violation of Rule 8.4(d).”
“The line to be drawn . . . needs to permit and even encourage
acceptable legal advocacy including, in this case, administration of
an agency’s quasi-judicial process.”
¶43 We agree with these premises of Judge Stone’s decision and
affirm on this basis. Lawyers and judges are often called upon to
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IN RE DISCIPLINE OF LAJEUNESSE
Opinion of the Court
opine on open questions of law. When they do so in good faith they
cannot be charged with a violation of rule 8.4(d) just because their
interpretation is ultimately rejected as a matter of law. And we agree
with Judge Stone that the policy adopted by LaJeunesse was adopted
in good faith.
¶44 We may ultimately agree with the OPC that the better view
of the Workers’ Compensation Act is one that would call for an open
and transparent use of medical panel reports by ALJs. But the
Workers’ Compensation Act nowhere expressly forecloses the
approach endorsed by LaJeunesse. And we see no reason to
conclude that LaJeunesse made anything other than a good faith
mistake in interpreting the law. That conclusion is sufficient to
sustain the dismissal of the charge against him.
¶45 The OPC has not meaningfully refuted these premises.
Much of its briefing is aimed at challenging the statutory basis for
LaJeunesse’s policy—at establishing that the better view of the
Workers’ Compensation Act is one that would require a transparent,
open use of medical panel reports and foreclose the review process
endorsed by LaJeunesse. This argument is insufficient for reasons set
forth above.
¶46 The cases cited by the OPC— Attorney Grievance Commission
v. White, 731 A.2d 447, 457 (Md. 1999) and Disciplinary Counsel v.
Robinson, 933 N.E.2d 1095, 1097 (Ohio 2010)—are distinguishable.
We endorse the view set forth in these cases. We agree that an
attorney who tampers with evidence or gives false or misleading
testimony has engaged in conduct prejudicial to the administration
of justice. But these cases do not undermine the standard we
establish here. They simply hold that rule 8.4(d) is violated by an
attorney’s acts in contravention of established rules and norms
governing the judicial process. See White, 731 A.2d at 457 (holding
that presenting perjured testimony is a violation of rule 8.4 and
noting that perjury is a crime); Robinson, 933 N.E.2d at 1097 (holding
that tampering with evidence is a violation of rule 8.4 and noting
that evidence tampering is a crime and violates other established
rules).
¶47 An attorney who tampers with evidence or presents false
testimony is not exercising good faith legal judgment. He is engaged
in misconduct. That cannot be said of LaJeunesse. At most he made a
good faith misjudgment of the effect of the Workers’ Compensation
Act on the ALJ’s use of medical panel reports. And that is
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Opinion of the Court
insufficient to sustain a claim for conduct prejudicial to the
administration of justice under rule 8.4(d).
III
¶48 We can understand the OPC’s motivation in pursuing this
case. The policy adopted by LaJeunesse seems to have interfered
with the transparent operation of the system of adjudicating
workers’ compensation disputes. It may have deprived parties and
their counsel of the opportunity to object to proposed changes to
medical panel reports. And the policy in question may ultimately be
incompatible with the terms and conditions of the Workers’
Compensation Act—or at least with best practices thereunder. That
is not enough to sustain a charge of conduct prejudicial to the
administration of justice under our rules of professional conduct,
however. We affirm the dismissal of the charge against LaJeunesse
because we conclude that the policy in question was adopted in a
good faith attempt to interpret the law.
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