Matter of Discipline of Steffensen
Matter of Discipline of Steffensen, 2021 UT 01 (Himonas, J.)
An Attorney faced criminal charges for failing to properly file withholding tax returns, remit withholding taxes, and submit monies collected from his employees in payment of their income tax obligations. In response to these charges, the OPC filed a complaint against him under Rule 8.4(c) of the Utah Rules of Professional Conduct for “engaging in dishonesty, fraud, deceit or misrepresentation.” Attorney’s charges were ultimately reduced to an attempt, and he paid all taxes and penalties owed. But the district court still disbarred him, citing Supreme Court Rule of Professional Practice 14-605(a)(3). Attorney appealed the district court’s order. The Utah Supreme Court affirmed the disbarment, holding:
- Although disbarment is a severe sanction, it is appropriate for a violation under rule 8.4(c). Rule 14-605(a)(3) providing that disbarment is generally appropriate when a lawyer engages in “intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice law,” nearly identically tracking rule 8.4(c).
- Takeaway: pay your employee’s withheld taxes before you are criminally charged, not after.
- The district court did not abuse its discretion in denying Attorney’s motions regarding disqualification, prosecutorial misconduct, and request for a continuance. OPC failed to defend the district court’s decision to deny Attorney’s request for continuance apart from a too-broad brushstroke arguing that the mandate rule applied to all of Attorney’s motions. But the district court’s finding regarding the request for a continuance was ultimately supported by the evidence and the Court affirmed guided by its deference to the district court.
- Takeaway: failing to appropriately brief an issue places the reviewing court in a “difficult position.” But you might still win if you have deference on your side.
- Flagged: The interplay between rule 8.3(c) and rule 14-605(a)(3) are flagged for review by the Supreme Court’s Advisory Committee on the Rules of Professional Conduct, as they appear to treat more harshly non-criminal than criminal conduct.