Barnard v. Sutliff

• Decision Date: 18 December 1992
• Docket Number: No. 900241,900241
• Citation: 846 P.2d 1229
• Parties: Brian M. BARNARD, Plaintiff and Appellant, v. Toni M. SUTLIFF and Utah State Bar, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1229

846 P.2d 1229

Brian M. BARNARD, Plaintiff and Appellant, v. Toni M. SUTLIFF and Utah State Bar, Defendants and Appellees.

No. 900241.

Supreme Court of Utah.

Dec. 18, 1992.

John Pace, Brian M. Barnard, Salt Lake City, for plaintiff and appellant.

Carman E. Kipp, Robert H. Rees, Salt Lake City, for defendants and appellees.

ZIMMERMAN, Justice:

Brian M. Barnard appeals from a district court order and judgment finding that he violated rule 11 of the Utah Rules of Civil Procedure and imposing a sanction of $4,381. The Third District Court found that Barnard had failed to research its jurisdiction properly before filing a suit seeking to enjoin a bar disciplinary proceeding against him. Barnard contends that he did not violate rule 11 because he made a reasonable inquiry into the status of the law and his research revealed that Utah law is unclear on the jurisdictional question. Because we find that the district court's legal bases for imposing the sanction are in error, we vacate its order and remand.

In April of 1989, the Utah State Bar received a complaint alleging that Barnard had committed ethical violations while representing a client. In handling the complaint, the Office of Bar Counsel followed the Procedures of Discipline of the Utah State Bar (codified in Utah Code Jud.Admin. ch. 14) [hereinafter Procedures of Discipline ] and forwarded a copy of the complaint to Barnard. After trying for four months to resolve the matter informally between the complainant and Barnard, the Office of Bar Counsel sent Barnard a complaint letter. The letter informed him that the allegations would be reviewed by a screening panel of the Ethics and Disciplinary Committee. ¹ The letter also stated that he would have the opportunity to appear before the screening panel if the panel determined that a private reprimand was warranted or before a hearing committee panel if the screening panel determined that a formal complaint was warranted. See Procedures of Discipline, rule IX(b).

On August 2nd, Barnard telephoned Toni Sutliff, Associate Bar Counsel, to learn the names of the screening panel members who would be assigned his case. Although the accounts of what happened during that telephone conversation differ, both parties agree that Sutliff informed Barnard that his case had not yet been assigned to a specific panel. According to Barnard, Sutliff further stated that she would not disclose the names of the panel members even after Barnard's case had been assigned to a specific panel, thus giving him no opportunity before the hearing to determine whether any panel member might be biased against him. Sutliff neither admits nor denies making this latter comment. In any event, within several hours after their conversation, Barnard filed suit in district court to enjoin the Bar from proceeding until it disclosed the names of the screening panel members assigned to his case, and a constable served Sutliff with Barnard's summons and complaint.

After receiving Barnard's complaint, the Bar filed a motion to dismiss, claiming that the district court lacked jurisdiction to hear the case and that only the supreme court could review bar disciplinary proceedings. Sometime after the action was filed, the Bar assigned the complaint against Barnard to a specific screening panel, and before the panel hearing was to be held, the Office of Bar Counsel provided Barnard with the names of the panel members. After Barnard received these names, he unilaterally dismissed his suit. See Utah R.Civ.P. 41(a)(1)(i). In his notice of dismissal, Barnard stated that the Bar had satisfied both of his grievances: It had informed him of the names of the screening panel members and of the procedures it uses in assigning a case to a screening panel.

In January of 1990, four months after Barnard withdrew his complaint, the Bar filed a motion seeking sanctions for violation of Utah Rule of Civil Procedure 11. The Bar alleged, inter alia, that Barnard had breached his rule 11 duty to make a reasonable prefiling inquiry into the law to determine whether the district court had jurisdiction to enjoin a bar disciplinary proceeding. The Bar asserted that this court has sole supervisory authority over bar disciplinary proceedings and the implementation of bar rules.

Barnard responded with an affidavit and a memorandum. He again asserted that Sutliff had told him she would not release the names of the panel members prior to the hearing. Barnard further asserted that he filed the suit in good faith, that he made a good faith inquiry into the law, and that he had personal knowledge of the facts before filing the complaint. Barnard conceded that he might have erred by filing the suit in district court, but he insisted that such an error would not merit sanctions. He explained that he had successfully filed two earlier suits in district court against the Bar pertaining to the practice of law. Barnard acknowledges that both of the earlier suits would, at first blush, appear to be within the exclusive jurisdiction of this court. See Utah Const. art. VIII, § 4. However, in both suits, the district court denied motions to dismiss for lack of jurisdiction and ruled on the merits. Thus, he was led to believe that the district court would be a proper forum for his present suit. Barnard did not describe any steps he undertook to research the law underlying the jurisdictional question.

The district court granted the rule 11 motion, reasoning that "it is no defense to suggest that the jurisdiction of the District Court has been improperly invoked on prior occasions as a justification for an improper filing a third time." The court also stated:

[H]ad Mr. Barnard made a reasonable inquiry into the status of the law pertaining to issues of jurisdiction regarding the nature of the controversy reflected in the present suit, ... it would have been clear that the District Court was not the appropriate forum within which to seek relief. On that basis, this Court determines that the plaintiff has failed to make a proper inquiry, and has therefore violated Rule 11....

The court then ordered the Bar to submit a statement of the attorney fees it incurred in defending against Barnard's suit and informed Barnard that he could object to the statement when it was received.

After the Bar submitted the statement, Barnard filed a document entitled "Objection," challenging not only the fees specified in the statement, but also the court's findings on the merits of the rule 11 motion. In support of his challenge to the merits, Barnard filed a second affidavit in which he outlined for the first time the steps he took in conducting his legal research. Barnard said that before filing suit, he reviewed the Rules for Integration and Management of the Utah State Bar and the Procedures of Discipline to determine if there was any rule that required actions challenging the conduct of the Bar to be brought only in the Utah Supreme Court. He also said that he researched the constitutional and code provisions governing jurisdiction and the Utah Supreme Court cases and Pacific Digest topics dealing with lawyer discipline. He said that he concluded from his research that no constitutional provision, statute, law, or rule clearly deprives the district court of jurisdiction to grant injunctive and declaratory relief against the Bar's conduct of a lawyer discipline matter. In addition to his affidavit, Barnard submitted eight affidavits from other practicing Utah attorneys who, at Barnard's request, also researched the issue of whether a district court has jurisdiction to grant an injunction against the Bar's procedures in a lawyer discipline matter. Each affiant stated that he could not find any law denying district court jurisdiction.

The Bar moved to strike Barnard's "Objection" and affidavits to the extent that they did not bear on the question of the reasonableness of the attorney fees sought by the Bar as sanctions. The Bar argued that this material was directed to an issue already decided--whether rule 11 had been violated--rather than to the issue before the court--the amount of the sanction. The district court agreed and struck the contested material because it was untimely and irrelevant to the issue at bar. Then, rejecting his objections to the amount of the Bar's attorney fees, the trial court awarded the Bar $4,321.

Barnard filed a motion for new trial pursuant to subparts (6) and (7) of Utah Rule of Civil Procedure 59(a). Utah R.Civ.P. 59(a)(6), (7). He asked the court to reconsider the question of whether he had violated rule 11 and resubmitted the stricken affidavits. The court denied his motion, stating that it was an improper attempt by Barnard to have the court reconsider its decision to impose sanctions. Barnard now appeals.

We first address the standard of review. This court has yet to address comprehensively the standard of review for trial court rulings under rule 11. However, the federal courts have taken three distinct approaches to this issue. See Christopher A. Considine, Note, Rule 11: Conflicting Appellate Standards of Review and a Proposed Uniform Approach, 75 Cornell L.Rev. 727, 734-37 (1990) [hereinafter Considine]; Louis Greco, Note, Standard of Appellate Review of Rule 11 Decisions, 58 Fordham L.Rev. 251, 255-60 (1989). The wording of Utah's rule 11 is identical in all material respects to the federal version; therefore, we survey the federal courts' approaches to determine their relative persuasiveness. Although we are not bound by these federal decisions, they may help us to develop our interpretation of the rule. See Pate v. Marathon Steel Co., 692 P.2d 765, 767 & n. 1 (Utah 1984).

One approach followed by federal appellate courts uses three standards of review in considering a trial court's rule 11 determinations. See, e.g., West Coast Theater Corp. v. City of Portland, 897 F.2d 1519 1526 (9th Cir.1990); Kurkowski v. Volcker, 819 F.2d 201, 203 n. 8 (8th...