In the Matter of Discipline of Tyler James Larsen, 2016 UT 26, A.K.A., Death to Negligently and Recklessly

Sometimes, you wake up in the morning and read a case that makes you smile. That case, oddly enough, is the Utah Supreme Court’s latest attorney discipline case: In the Matter of Discipline of Tyler James Larsen.

Facts

Mr. Larsen, allegedly, did a couple naughty things:

  1. He misrepresented facts to the court during a hearing.
  2. He failed to disclose exculpatory evidence in a timely manner (i.e., he didn’t  disclose it until during trial).

I only care about the first naughty thing.

Essentially, during a hearing on a DUI, Mr. Larsen represented to the Court he had a spreadsheet showing a woman on probation had paid $6000 in restitution, and then said his boss (the Davis County Attorney) didn’t want that information disclosed. (The spreadsheet conversation happened during a sidebar with the Judge.)

Apparently, Mr. Larsen didn’t actually have the spreadsheet he claimed, and his boss hadn’t requested the information not be disclosed.

Analysis

In light of this, the Office of Professional Counsel filed disciplinary charges against Mr. Larsen for misstatements to the Court, a violation of Utah Rule of Professional Conduct 3.3 (candor toward the tribunal), which reads in relevant part:

(a) 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.

Knowingly v. Recklessly v. Negligently

The problem in this case is the word “knowingly.” See, OPC for quite a while now has pushed a theory that knowingly doesn’t mean knowingly. Instead, according to OPC, knowingly means “recklessly” or “negligently.”

Now, almost every attorney who remembers anything form their 1L tort class remembers that you can’t act negligently if you, in fact, act knowingly. It’s a logical impossibility. This memory appears to have escaped OPC, however, as they have been attempting to discipline lawyers under Rule 3.3 according to the negligent standard, despite the plan language of the Rule, which requires actual knowledge.

In Mr. Larsen’s case, OPC dressed “Negligently” in different clothes and named her “Recklessly.” Thankfully, the Supreme Court was not fooled.

The Supreme Court began its analysis by recognizing the District Court specifically did not find intentional misrepresentation: “I did not find intentional misrepresentation; I found reckless misrepresentation.”

In order to get around the District Court’s plain admission, as well as the plain language of Rule 3.3, OPC asked the Court to interpret the Rule to “encompass reckless misstatements made without any plausible basis in fact.”

The Supreme Court rejected OPC’s rewriting of Rule 3.3 in total. The Supreme Court noted Rule 3.3(a)(1) “requires proof that a misstatement was made knowingly. So, it was error for the district court to conclude that there was a violation of rule 3.3 in the absence of a finding of a knowing misstatement.” It then went on to say: “Our rules do not treat knowledge and recklessness as equivalents. They state that “[k]knowingly, ‘known’ or ‘knows’ denotes actual knowledge of the fact in question.”

So, that’s pretty clear and a pretty simple analysis. It’s nice when simple plain language rules the day.

Comment 3

Perhaps the best part of the Supreme Court’s decision is its treatment of Comment 3 to Rule 3.3.

Comment 3 reads:

An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or 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. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

The Supreme Court recognized the language dealing with “reasonably diligent inquiry” could create confusion when superimposed of the knowingly standard.

The Court dealt with this confusion by recognizing (correctly) that Comment 3 is, in fact, not a Rule of Professional Conduct. Instead, it is a comment. Comments can be aspirational in nature, or they can be explanatory in nature, but they are not actual Rules in nature. Think of them as if they were legislative history. Legislative history are merely comments about a statute. Comments are not law. Statutes are law.

Given the confusion Comment 3 creates, the Supreme Court rescinded Comment 3 and directed that it be stricken from the Rules altogether.

If you read between the lines here, the Supreme Court seems to have known about OPC’s push to change knowingly to negligently or recklessly. It took this opportunity to end that power play and kill both negligently and recklessly once and for all. Good for the Supreme Court.

Why This Matters

All of this matters because Utah attorneys have been living in fear of OPC’s reinterpretation of Rule 3.3 for quite some time.

Imagine the following situation. Client tells Attorney something that isn’t quite right. Attorney relies solely on Client’s account of events and represents that account to the Court. Turns out Client’s account was wrong, and patently wrong, and is proved so in court. Opposing counsel turns in Attorney to OPC because Attorney did not conduct a reasonably diligent inquiry before presenting evidence to the court.

Under this scenario, there is no reason why OPC could not file and successfully prosecute disciplinary proceedings against Attorney. I mean, Attorney didn’t do due diligence, right? He just relied on his client, who turned out to be full of crap. How is that a reasonably diligent inquiry?

If this were the actual Rule 3.3 standard, attorneys would live in fear every day that they could be disciplined for trusting their clients. That would paralyze the practice of law.

And this is exactly why Rule 3.3 requires actual knowledge. Thankfully, the Utah Supreme Court reasserted the Rule 3.3’s plain language and reigned in the not-so-subtle attempt to rewrite the Rule without its oversight or approval.

(Here is a link to the Opinion: In re Tyler Larsen.pdf)

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