Office of Professional Conduct v. Dahlquist (In Re Discipline of Dahlquist)

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 15IN THE
SUPREME COURT OF THE STATE OF UTAH
IN THE MATTER OF THE DISCIPLINE OF CHARLES W. DAHLQUIST, II
OFFICE OF PROFESSIONAL CONDUCT,
Appellant,
v.
CHARLES W. DAHLQUIST, II,
Appellee.
No. 20170550
Filed April 30, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 160904532
Attorneys:
Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellant
Michael F. Skolnick, Salt Lake City, for appellee
JUSTICE PETERSEN authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 The Office of Professional Conduct (OPC) filed an
attorney discipline case against Charles W. Dahlquist, II for
repeatedly violating a judge’s order in limine during a 2008 jury
trial. No one present at the trial alerted the OPC to the conduct.
Rather, the OPC learned of it from our opinion reversing the
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jury’s verdict and granting a new trial based in part on
Dahlquist’s violations of the order. Wilson v. IHC Hosps., Inc., 2012
UT 43, ¶ 27, 289 P.3d 369 (stating that the “persistent and
deliberate references to collateral source evidence in violation of
the trial court’s in limine order substantially prejudiced the jury”).
¶2 The OPC immediately opened an investigation. But by
this time, over three-and-a-half years had passed since the original
trial. Nevertheless, the OPC proceeded with its investigation and
communicated with the plaintiffs in the underlying case. The
plaintiffs eventually filed an informal complaint with the Utah
State Bar in 2015. After a hearing on the informal complaint before
a screening panel of the Ethics and Discipline Committee, the
OPC filed this case in the district court in 2016.
¶3 Dahlquist moved for summary judgment based on the
statute of limitations, and the district court granted the motion.
The OPC appeals, arguing that the district court misinterpreted
what begins and ends the running of the limitations period.
¶4 Rule 14-529 of the Supreme Court Rules of Professional
Practice governs this issue. It establishes a four-year limitations
period for attorney discipline cases that begins to run upon the
“discovery” of the alleged attorney misconduct and stops when
“[p]roceedings under this article”1 commence. The issues before
us are: (1) whose “discovery” triggers the running of the
limitations period and (2) what constitutes “proceedings under
this article.”
¶5 We hold that discovery by a party with an interest in
filing an informal complaint under rule 14-510, as is the case here,
is sufficient to start the running of the statute of limitations. And
we interpret “proceedings” to mean the filing of an informal
complaint under that rule.
¶6 Accordingly, we conclude that the district court correctly
dismissed the complaint against Dahlquist as untimely, and we
affirm.
1 This refers to article 5 of chapter 14, Rules Governing the
Utah State Bar, of the Rules of Professional Practice. Article 5 is
titled “Lawyer Discipline and Disability.”
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BACKGROUND
¶7 Dahlquist represented IHC Hospitals, Inc. in a medical
malpractice lawsuit filed against it by Jerome and Leilani Wilson.
The jury trial took place from October 29 to November 21, 2008.
Before trial, the Wilsons prevailed on a motion in limine to exclude
evidence of collateral source benefits they had received. But
during the trial, Dahlquist made repeated references to those
benefits. Wilson v. IHC Hosps., Inc., 2012 UT 43, ¶ 12, 289 P.3d 369.
¶8 The Wilsons moved for a new trial based in part on
Dahlquist’s conduct, but the trial court denied their request. The
jury returned a verdict in favor of IHC, and the case was
dismissed on December 9, 2008.
¶9 The Wilsons appealed the dismissal, based in part on
Dahlquist’s violations of the in limine order. In an opinion
published on July 20, 2012, we agreed that IHC had “persistently
and deliberately violated the trial court’s order,” and we granted
the Wilsons a new trial. Id. at ¶ 2.
¶10 On the day the opinion was published, the OPC was
notified of this court’s decision and opened an investigation into
Dahlquist’s conduct. Over the course of its investigation, the OPC
corresponded with the Wilsons’ counsel.
¶11 On March 2, 2015, the Wilsons sent a letter to the OPC
seeking to file a bar complaint against Dahlquist. That same
month, they verified the letter in accordance with rule 14-510(a)(2)
of the Rules of Professional Practice. The OPC consolidated the
Wilsons’ informal complaint with its pending investigation.
¶12 A screening panel of the Ethics and Discipline
Committee of the Utah Supreme Court held a hearing on the
informal complaint. The panel recommended that the OPC file a
formal complaint against Dahlquist in district court. This case
followed.
¶13 In the district court, Dahlquist filed a motion for
summary judgment, arguing that the applicable four-year statute
of limitations barred the OPC’s complaint. The rule governing the
limitations period in attorney discipline cases states: “Proceedings
under this article shall be commenced within four years of the
discovery of the acts allegedly constituting a violation of the Rules
of Professional Conduct.” SUP. CT. R. PROF’L PRACTICE 14-529.
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¶14 The OPC argued that the statute of limitations should
run from the time that it discovered Dahlquist’s misconduct in
July 2012—when this court issued its decision in Wilson. And the
OPC argued that it commenced proceedings against Dahlquist
when it opened its investigation the same day, which was within
the four-year limitations period.
¶15 The district court disagreed. The district court reasoned
that discovery by any person permitted to file an informal
complaint for attorney discipline “will ordinarily be sufficient to
trigger the limitations clock.” Accordingly, the district court found
that discovery of the alleged misconduct took place at the trial in
2008 because the Wilsons, their counsel, and others—any of
whom could have filed an informal complaint—witnessed the
misconduct. The district court also ruled that “proceedings”
commenced when the Wilsons filed their informal complaint with
the Utah State Bar in March 2015, not in July 2012 when the OPC
opened its investigation.
¶16 The OPC appeals. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(c) and article VIII, section 4 of the Utah
Constitution, which grants this court governance of the
“discipline of persons admitted to practice law.”
STANDARD OF REVIEW
¶17 Generally, we review the district court’s interpretation of
our Rules of Professional Practice for correctness. In re Discipline of
Welker, 2004 UT 83, ¶ 11, 100 P.3d 1197. But because of our
constitutional authority in attorney discipline cases, “we employ a
unique standard of review.” In re Discipline of Barrett, 2017 UT 10,
¶ 11, 391 P.3d 1031 (citation omitted). “We presume the district
court’s findings of facts to be correct ‘unless they are arbitrary,
capricious, or plainly in error,’ but we . . . ‘reserve the right to
draw inferences from basic facts which may differ from the
inferences drawn’ by the district court.” Id. (citation omitted).
ANALYSIS
¶18 In this case, we must interpret one of our own rules
governing lawyer discipline. Rule 14-529 of the Rules of
Professional Practice contains a four-year limitations period and
reads, “Proceedings under this article shall be commenced
within four years of the discovery of the acts allegedly
constituting a violation of the Rules of Professional Conduct.”
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¶19 The parties disagree as to whose “discovery” starts the
running of the limitations period and what constitutes the
commencement of “[p]roceedings under this article.” We turn first
to the question of what begins the limitations period and then to
the question of what ends it.
I. “DISCOVERY”
¶20 The question of whose discovery starts the running of
the four-year limitations period in rule 14-529 is not easily
answered because the rule is entirely silent on the matter. It refers
to “the discovery of the acts allegedly constituting a violation” but
does not tell us whose discovery is contemplated. The relevant
portion of the rule contains no subject.
¶21 The usual methods of statutory interpretation guide our
analysis. “[W]e interpret a court rule in accordance with its plain
meaning” with our objective being “to give effect to the intent of
the body that promulgated it.” In re Discipline of Brussow, 2012 UT
53, ¶ 14, 286 P.3d 1246 (citation omitted) (internal quotation marks
omitted). Because this court is the body that promulgates these
rules, the constitutional considerations that require us to take a
purely textual approach to statutory enactments may not apply
with equal force here.
¶22 The OPC argues that only its discovery of the alleged
misconduct should trigger the running of the limitations period.
In support, the OPC points to prior iterations of this rule. The
predecessor to the Rules of Professional Practice was the Revised
Rules of the Utah State Bar Governing Professional Conduct and
Discipline, adopted in 1937. See Vol. XXII, Utah Bar Bulletin,
November 1952 (stating that the Supreme Court approved the
Revised Rules on March 1, 1937). Rule V(3) of the 1971 Revised
Rules barred disciplinary action after three years “from the
discovery by the aggrieved party of the facts upon which such
action is based.” Rules of Discipline of the Utah State Bar, Rule
V(3) (1971) (emphasis added). By 1981, the rules changed to read
that a complaint must be filed within four years from “the
discovery by the complainant of the fact upon which the claim of
unprofessional conduct is based.” Rules of Discipline of the Utah
State Bar, Rule XV (1981) (emphasis added).
¶23 The OPC claims that the removal of references to “the
aggrieved party” and “the complainant” was intended to broaden
the possible cases that could be brought to the OPC for
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investigation and prosecution. But adopting the OPC’s
interpretation would effectively eliminate the statute of
limitations for attorney discipline cases—a result inherently
inconsistent with the title of rule 14-529 (“Statute of limitations”)
and the inclusion of a discovery provision in the text itself.
¶24 Further, it is unclear to us how removal of the actor in the
rule serves to limit those whose discovery triggers the four-year
period to only the OPC. Rather, it seems to do the opposite. While
the rule once identified specific actors’ discovery of the alleged
misconduct as starting the limitations clock, it is now silent and
seemingly open-ended on this question. Accordingly, we reject
the OPC’s interpretation because it adds words to the rule and
would effectively eliminate the statute of limitations for attorney
discipline cases.
¶25 On the other hand, the interpretation put forward by
Dahlquist, and adopted by the district court, would allow
discovery by any party to trigger the statute of limitations. The
district court looked to rule 14-510, which outlines the procedures
for prosecuting attorney misconduct. That rule states in part that a
“disciplinary proceeding may be initiated against any member of
the Bar by any person, OPC counsel or the Committee.” SUP. CT.
R. PROF’L PRACTICE 14-510(a)(1). In light of this language, the
district court held:
Because multiple parties may bring a complaint,
discovery by any one of them will ordinarily be
sufficient to trigger the limitations clock. . . . [T]he
underlying actions were taken in open court, on the
record in front of a judge, parties, counsel, and
anyone else there to see.
Accordingly, the district court ruled that discovery under rule
14-529 occurred at the 2008 trial because the alleged misconduct
occurred in open court, where many parties—whether they had
an interest in filing a complaint or not—were present.
¶26 This interpretation is also problematic. Because the class
of entities able to file a complaint is so broad under rule 14-510,
almost anyone’s discovery of the misconduct will start the clock,
even if that person has little or no incentive to file a complaint.
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This reading effectively turns rule 14-529 into a statute of repose,2
leading to situations where attorney misconduct goes unreported
for years before the OPC is informed and allowing attorneys to
avoid disciplinary action.
¶27 We thus decline to adopt either interpretation in full.
The OPC’s interpretation is not supported by the language of the
rule, and it is so narrow that in practice it would eliminate the
statute of limitations. While more in line with the text of the rule,
Dahlquist’s interpretation is so broad that it transforms the statute
of limitations into a statute of repose. Anyone’s discovery of the
conduct, even a person with no interest in filing a complaint,
would trigger the running of the limitations period. Especially in
the context of attorney misconduct, it is problematic to broaden
the discovery rule to reach those who are not aggrieved and who
may even have an incentive to stay silent.
¶28 Given the ambiguity in the language of rule 14-529, there
are good policy reasons to modify it. But we think it best to do so
through a prospective re-examination of the rule rather than by
straining the bounds of its current language.
¶29 However, we are able to affirm the district court’s
decision on the facts of this case. Where misconduct is discovered
by a party with an interest in filing an informal complaint, that is
sufficient to start the running of the statute of limitations under
the current version of the rule. The facts of this case do not
implicate our concerns about over-expanding the discovery rule
to reach those who are unaffected by the misconduct. The Wilsons
had an interest in filing a bar complaint, as they were the party
most aggrieved by Dahlquist’s conduct. And they “discovered”
his conduct during the trial because they witnessed it firsthand.
But they did not file a bar complaint until after they were
contacted by the OPC—years after the incident when the claim
was already time-barred.
¶30 We therefore affirm the decision of the district court.
Under rule 14-529, discovery in this case was triggered when the
2 A statute of repose is “[a] statute barring any suit that is
brought after a specified time since the defendant acted . . . even if
this period ends before the plaintiff has suffered a resulting
injury.” Statute of Repose, BLACK’S LAW DICTIONARY (10th ed. 2014).
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Wilsons learned of the alleged misconduct. Here, that was in 2008
at the time of the jury trial.
II. “PROCEEDINGS UNDER THIS ARTICLE”
¶31 The OPC argues that the phrase “[p]roceedings under
this article” in rule 14-529 encompasses OPC investigations—
meaning that one manner in which proceedings can commence is
by the OPC opening an investigation into alleged attorney
misconduct. Under that reading, the OPC argues that proceedings
in this case began when it opened its investigation of Dahlquist on
July 20, 2012. The district court rejected this argument. And we
agree that the language of rule 14-529 does not support the OPC’s
reading.
¶32 The term “[p]roceedings” is not defined in the Rules of
Professional Practice. Accordingly, we look to the plain meaning
of the word by considering both its dictionary definition as well as
its appearance in legal corpora. See Nemelka v. Ethics & Discipline
Comm. of the Utah Supreme Court, 2009 UT 33, ¶ 14, 212 P.3d 525.
¶33 The first definition of “proceeding” in Black’s Law
Dictionary is “[t]he regular and orderly progression of a lawsuit,
including all acts and events between the time of commencement
and the entry of judgment.” Proceeding, BLACK’S LAW DICTIONARY
(10th ed. 2014). The Rules of Professional Practice also regularly
refer to a “disciplinary proceeding,” which is defined as “[a]n
action brought to reprimand, suspend, or expel a licensed
professional or other person from a profession or other group
because of unprofessional, unethical, improper, or illegal
conduct.” Disciplinary Proceeding, BLACK’S LAW DICTIONARY (10th
ed. 2014). The definitions of “proceeding” and “disciplinary
proceeding” both refer to an action or lawsuit. Neither an action
nor a lawsuit traditionally encompasses an investigation, which
happens before the commencement of both.
¶34 In addition to dictionary definitions, we can better
understand the ordinary meaning of “proceeding” within the
context of rule 14-529 by considering how it has actually been
used in a given body of language. See State v. Rasabout, 2015 UT
72, ¶ 58, 356 P.3d 1258 (Lee, A.C.J., concurring). A legal database,
such as Westlaw, is one such body of language that we find to be
particularly illuminating in this case. See id. ¶ 63.
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¶35 A survey of Utah disciplinary cases shows that
“proceeding” is used in a manner consistent with the above
definitions—referring to an action or lawsuit commenced by filing
a complaint in some form rather than one triggered by an
investigation.3 And a broader search of all United States Supreme
Court cases reveals that when the Court refers to “proceedings”
being “commenced,” the majority of the time the Court is
speaking in terms of a legal proceeding commenced by the filing
of a complaint or other legal document.4
¶36 “Proceeding” is also used in other parts of the Rules of
Professional Practice.5 Under the canon of consistent meaning,
“where a word has a clear and definite meaning when used in one
3 See, e.g., In re Discipline of Steffensen, 2018 UT 53, ¶ 20, 428 P.3d
1104 (discussing “proceedings” before a district court); Discipline
of Gilbert v. Utah Down Syndrome Found., Inc., 2012 UT 81, ¶ 9, 301
P.3d 979 (stating that a “disciplinary proceeding” followed an
“investigation and screening”); In re Discipline of Trujillo, 2001 UT
38, ¶ 19, 24 P.3d 972 (“[T]he OPC commenced a disciplinary
proceeding . . . by filing a petition for [] interim suspension . . . .”).
4 Of the cases that use the terms “proceeding” and
“commence” in the same sentence, roughly 90 percent refer to
legal proceedings—such as “foreclosure proceedings,”
“proceedings by mandamus,” or proceedings “commenced by
filing a document”—and not merely an investigation.
5 See, e.g., SUP. CT. R. PROF’L PRACTICE 14-501(c) (“All
disciplinary proceedings shall be conducted in accordance with
this article and Article 6 . . . .”); id. 14-504(b)(4) (providing that the
OPC has the power to “prosecute . . . all disciplinary cases and
proceedings.”); id. 14-506(d) (“Part-time judges, while in office,
are subject to lawyer disciplinary and disability proceedings
. . . .”); id. 14-511(c) (“All proceedings instituted by the OPC shall
be styled ‘In the Matter of the Discipline of (name of respondent
and respondent’s Bar number), Respondent.’”); id. 14-602(b)–(c)
(describing the “[p]urpose of lawyer discipline proceedings” and
the “[p]ublic nature of lawyer discipline proceedings”). Notably,
the use of “proceedings” or “disciplinary proceedings” in the
above rules suggest that a proceeding involves an attorney
discipline case rather than an OPC investigation.
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part of . . . a document, but not when used in another, the
presumption is that the word is intended to have the same
meaning in the latter as in the former.” Utley v. Mill Man Steel,
Inc., 2015 UT 75, ¶ 72, 357 P.3d 992 (Durrant, C.J., concurring in
part and dissenting in part) (alteration in original) (quoting
ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 170 (2012)).
¶37 Rule 14-510, a proximate rule in the procedures for
prosecuting attorney discipline matters, states:
A disciplinary proceeding may be initiated against
any member of the Bar by any person, OPC counsel
or the Committee, by filing with the Bar, in writing,
an informal complaint in ordinary, plain and concise
language setting forth the acts or omissions claimed
to constitute unprofessional conduct. Upon filing, an
informal complaint shall be processed in accordance
with this article.
SUP. CT. R. PROF’L PRACTICE 14-510(a)(1).
¶38 Accordingly, a “proceeding,” as used in rule 14-510, is
commenced by the filing of an informal complaint. There is no
indication that the term was intended to be used differently in
rule 14-529, and thus we presume that “proceeding” has the same
meaning in both rules.
¶39 The OPC argues that the use of the word “may” in
rule 14-510 means that a proceeding can be commenced by means
other than the filing of an informal complaint. To support its
proposition, the OPC points to rule 14-504(b), which outlines the
powers and duties of OPC counsel. That rule authorizes the OPC
to screen information; conduct investigations; and dismiss,
decline, or refer to our Ethics and Discipline Committee matters
not covered by rule 14-510. Under this language, the OPC reasons
that by opening an investigation of Dahlquist in July 2012, it was
also commencing a proceeding under article 5—specifically,
under rule 14-504(b).
¶40 But the language and structure of rules 14-504 and
14-510 give no indication that an OPC investigation initiates a
“proceeding.” And although the prosecutorial duties of the OPC,
as contained in article 5, encompass more than filing an informal
or formal complaint, that does not mean its other duties equate to
beginning a proceeding. As the prosecutorial arm of the attorney
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discipline system in Utah, this would be akin to state or federal
prosecutors protecting potential charges from applicable statutes
of limitation by simply questioning a suspect or investigating an
accusation, without filing charges. As the district court aptly
observed, “If merely subjectively opening an investigation were
enough to satisfy that rule, there would be no real deadline for
action at all . . . .”
¶41 Our case law supports the district court’s reading. While
we have acknowledged that an OPC investigation can occur
before or after the start of a disciplinary proceeding, the event that
“commences” or initiates the proceeding is the filing of a
complaint, not the opening of an investigation. See, e.g., In re
Discipline of Sonnenreich, 2004 UT 3, ¶ 28, 86 P.3d 712 (providing
that “disciplinary proceedings . . . ‘may be initiated . . .’ by filing
an informal complaint . . . . Once an informal complaint is filed,
OPC counsel is required to ‘conduct a preliminary
investigation . . . .’” (citations omitted)); In re Discipline of
Pendleton, 2000 UT 77, ¶ 22, 11 P.3d 284 (“In the typical case, a
disciplinary proceeding is initiated by the filing of an informal
complaint with the OPC. After the informal complaint is filed, the
OPC has the opportunity to conduct a preliminary investigation
into the allegations of misconduct . . . .” (citation omitted)).
¶42 Reading rules 14-529 and 14-510 together, we hold that
“[p]roceedings under this article . . . commence[]” when an
informal complaint is filed with the Bar in accordance with
rule 14-510(a)(1) and (a)(2). The dictionary definition and use of
“proceeding” in the broader legal corpora support the district
court’s analysis that “the ordinary means of stopping the running
of a statute of limitations is the filing of a complaint. That
common understanding is perhaps the most sensible means of
construing [rule] 14-529.” Accordingly, we affirm the district
court’s ruling that proceedings against Dahlquist began in March
2015 when the Wilsons verified their informal complaint. This was
over six years after the discovery of Dahlquist’s misconduct and
was barred by rule 14-529.
CONCLUSION
¶43 We hold that, under rule 14-529, the limitations period
was triggered when the Wilsons learned of the alleged
misconduct. The limitations period stops running when any
party, including the OPC, files an informal complaint with the Bar
in accordance with rule 14-510. Here, this took place when the
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Wilsons verified their informal complaint with the Bar. Because
Dahlquist’s misconduct was discovered in October and November
2008, and proceedings against him did not begin until March
2015, this case is barred by the statute of limitations. We affirm.
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