concurring and dissenting:
121 I concur in Part I of the majority opinion, but cannot join Part II. This court is charged by the Utah Constitution with the obligation to regulate the practice of law. We have delegated the screening, fact-finding, and initial judgment regarding discipline to the Utah State Bar and to the district courts, but we retain the final authority to oversee the system. When the prosecuting entity and the disciplined attorney accede to the appropriateness of the disciplinary sancetion imposed by the trial courts, or at least fail to challenge it, we lend our constitutional authority to the finality of the determination. Such trial court decisions, of course, create no precedent for the disposition of other cases. Where a sanction is challenged, however, this court undertakes a function that goes beyond the review of an individual case. We arbitrate questions of proportionality, rules of law, and guidelines for the imposition of sanctions that have general application for the practice of law in Utah. Our decisions interpret the Rules of Professional Conduct and develop the principles of application that will guide lawyers, the Bar, and the trial courts. |
122 Given the significance of our institutional role in the process of imposing sance-tions, I am troubled by the procedural analysis of my colleagues. Disbarment is the "ultimate" sanction in the context of disciplinary proceedings. Once it is effected, there is, in a professional sense, no turning back.. A disbarred lawyer must instantly close his practice, dismiss his clients, and remove himself from all Hitigation and transactions in which he has been engaged as a lawyer. There is little likelihood that a practice could be restored or regenerated if this court were to reverse the sanction after appeal, particularly given the many months required to resolve such appeals.
1 23 Trial courts have a more limited perspective on the disciplinary system than does this court. A trial judge is often called on to "predict" the answer to a question of first impression involving the rules and the scope of appropriate sanctions. It is not at all unexpected that a trial judge's best assessment of the trend of developing law turns out to be "wrong" in the sense that this court will reject it and opt for a different interpretation or policy. 'Where the judgment is equivalent to a professional death penalty, I believe that this court's review should precede execution.
124 This case presents a useful example. The facts ultimately support the sanction of disbarment, but it is in my view a very close question. An otherwise upright and commendable lawyer has committed one enormous error of judgment and behavior, for which he is to experience the complete loss of his career and reputation. It has been a very difficult decision for at least this member of the court to disbar. Simultaneously, this lawyer's misconduct, although meriting disbarment, constituted no interim danger to the public whatsoever during the pendency of the appeal. Had this court disagreed with the trial judge on the sanction, and had there been no stay of execution, a career might have been dismantled unnecessarily. I therefore take a view different from any of those supported by my colleagues. I believe that where disbarment is ordered by the trial judge and an appeal is taken, there should be an qutomatic stay unless there has been a showing sufficient to support an interim suspension under rule 18(a), either in the trial court proceedings themselves or on motion by the Bar. I don't want to overdo the analo-
*888888 Utah 48 PACIFIC REPORTER, 3d SERIES
gy to the death penalty in criminal cases, but I believe that the constitutional underpinnings and institutional structure of our disciplinary system require this court's review and approval before a career is terminated.
WILKINS, Justice, concurring and dissenting: T25 I concur in part I of Chief Justice Howe's opinion. I respectfully dissent to part II. The trial court should not have stayed the judgment.
26 I agree that once a judgment of disbarment is entered by the trial court, the burden should be on the lawyer to seek, and establish adequate grounds for, a stay of the disbarment pending review by this court. The obligation is on the lawyer to prove the entitlement to a stay by demonstrating to the trial court that the lawyer does not pose a substantial threat of irreparable harm to the public during the course of the review. Moreover, even making such a motion and showing should not entitle the disbarred lawyer to a stay of the disbarment pending review. Quite the contrary, the trial judge, acting as our agent in this type of proceeding, has broad discretion in deciding whether or not a stay is appropriate. In my opinion, we are unwise to create a presumption in favor of granting a stay. It would be better to require the disbarred lawyer to convince the trial court, or us, that he or she has a substantial likelihood of success on review by this court before granting a stay.
T27 At risk here is not only the livelihood of the lawyer, but the confidence of the public in the court's ability to police the ranks of those admitted to practice law. An interim suspension should be imposed when needed to protect the public. A disbarment should be effective when entered by the trial court, under all but the most unusual cireum-stances. Only when the lawyer can demonstrate that the disbarment is likely to be reversed on review by this court should the public be required to suffer continued exposure to the disbarred lawyer. Our duty to protect the public is higher than any duty to the disbarred lawyer, once the lawyer has been accorded a full measure of due process and evenhanded justice by the trial court.
Only when the quality of that justice is in real doubt should a stay be granted.