Barnard v. Utah State Bar, s. 910390
| Decision Date | 15 July 1993 |
| Docket Number | Nos. 910390,910483,s. 910390 |
| Citation | 857 P.2d 917 |
| Parties | Brian M. BARNARD, Plaintiff and Appellant, v. UTAH STATE BAR, Stephen Trost, Toni Marie Sutliff, and Ralph Adams, Defendants and Appellees. |
| Court | Utah Supreme Court |
Brian M. Barnard, John Pace, Salt Lake City, for plaintiff and appellant.
Richard D. Burbidge, Stephen B. Mitchell, Gary R. Johnson, Salt Lake City, for defendants and appellees.
Brian M. Barnard appeals from a district court order dismissing his complaint against the Utah State Bar and imposing sanctions against him under rule 11 of the Utah Rules of Civil Procedure. 1 We affirm the dismissal of his complaint but reverse the imposition of sanctions.
Brian M. Barnard is an attorney licensed to practice in Utah. As part of his practice, he assists clients in preparing and filing pro se divorce actions. Barnard relies on the work of paralegals (nonlawyers trained to perform legal work) in handling his case load of pro se divorce clients.
On December 26, 1990, the Utah State Bar sent Barnard a letter asking him to Barnard responded by letter dated January 2, 1991. He requested a copy of the complaint lodged against him, described his procedures for assisting pro se clients, and enclosed the forms he distributes to those clients. He also assured the Bar that he supervises all delegated tasks and retains full responsibility for all work, as the rules require.
respond to the allegation that his use of paralegals constitutes assisting in the unauthorized practice of law in violation of rule 5.5(b) of the Rules of Professional Conduct. 2 The Bar made the allegation after receiving transcripts of divorce hearings from Judge Timothy Hanson. Comments by clients appearing at those hearings raised concerns in Judge Hanson's mind about Barnard's performance
The Bar sent a second letter on January 8, 1991, describing in more detail the nature of Judge Hanson's concerns and requesting from Barnard more information on his practices with respect to the divorce hearings for which Judge Hanson had provided transcripts. The Bar did not receive a response to the second letter.
On February 22, 1991, Barnard filed a complaint in the Third Judicial District Court, seeking declaratory and injunctive relief. The Bar filed a motion to dismiss under rule 12(b)(1) and (b)(6) of the Utah Rules of Civil Procedure and a motion for sanctions under rule 11, both of which the district court granted. The court dismissed Barnard's complaint on the grounds that the court "has no subject matter jurisdiction of this action and there is no case or controversy presented which is ripe for adjudication." Furthermore, the court imposed $5816.25 in sanctions based on its finding that Barnard failed to make a reasonable inquiry that the suit was warranted by existing law or a good faith argument for extending, modifying, or reversing the law. The order also mentioned a pleading Barnard filed in another case concerning the Bar in which he stated that the Utah Supreme Court has "exclusive jurisdiction over and the exclusive power to regulate the practice of law in the state of Utah, including discipline." 3 Finally, the court noted that the Bar had barely begun its investigation; consequently, the court concluded that there was "no accrued set of facts" supporting a claim for declaratory relief.
Barnard appeals both the dismissal and the imposition of sanctions. He asserts that the district court erred in dismissing the action and abused its discretion in imposing sanctions. The Bar maintains that the district court did indeed lack subject matter jurisdiction, that the court acted within its discretion in imposing rule 11 sanctions, that Barnard sought an advisory opinion rather than a declaratory judgment, and that the individual defendants (Bar counsel) were immune from suit under rule XVI(a) of the Procedures of Discipline of the Utah State Bar. 4 Following briefing of the issues on appeal but prior to oral argument, Barnard filed a motion asking this court to reverse and remand to the trial court for further proceedings in light of our decision in Barnard v. Sutliff, 846 P.2d 1229 (Utah 1992).
We agree that the dismissal was proper on jurisdictional grounds and that the claim for declaratory relief was improper. Because
we hold that the rule 11 sanctions were not warranted on the facts of this case, we reverse that portion of the order imposing sanctions. We do not remand the remainder of the case because we hold that the trial court is without subject matter jurisdiction over the other issues.
The trial court granted the Bar's motion to dismiss in part because it concluded that it lacked subject matter jurisdiction over the action. Specifically, the court noted that "there is no subject matter jurisdiction in this court to enjoin or otherwise regulate matters pertaining to the discipline of attorneys inasmuch as original and exclusive jurisdiction of such matters lies with the Utah Supreme Court."
We review this conclusion of law under a correction of error standard. Scharf v. BMG Corp., 700 P.2d 1068, 1070 (Utah 1985). Our decision in Sutliff disposes of the issue and makes clear that at the time Barnard commenced his action, only this court had jurisdiction to consider the procedures and rules of the Bar. 5 We thus affirm the dismissal of Barnard's complaint as properly predicated on lack of subject matter jurisdiction.
In granting the Bar's motion to dismiss, the trial court also concluded that there was "no case or controversy presented which is ripe for adjudication." Again, in reviewing this legal conclusion, we apply the correction of error standard. Scharf, 700 P.2d at 1070.
Our cases construing the Utah Declaratory Judgment Act, Utah Code Ann. §§ 78-33-1 to -13 (1992), set forth the following requirements to sustain an action: a justiciable controversy based upon an accrued set of facts, an actual conflict, adverse parties, a legally protectible interest on the plaintiff's part, and an issue ripe for judicial resolution. Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah 1983) (citing Baird v. State, 574 P.2d 713 (Utah 1978)). We agree with the trial court that this case failed to meet those requirements.
The trial court ruled correctly that the Bar had barely begun a preliminary investigation into the matter and that, as a result, no accrued set of facts existed to support Barnard's claim. The record reveals that at the time Barnard filed his suit, he had merely received two letters of inquiry from the Bar. While it is entirely possible that the matter might have matured into a full-blown controversy at a later time, no actual conflict existed when Barnard commenced his lawsuit.
We sympathize with Barnard's desire to determine whether his conduct violated the Rules of Professional Conduct. However, his attempt at a preemptive strike was inappropriate in light of the other remedies at his disposal. He could have answered the Bar's questions and asked for an advisory opinion from the Bar concerning the definition of the unauthorized practice of law. Despite the history of strained relations between the parties, we fully expect that the Bar would have rendered such an opinion had one been requested. Similarly, Barnard could have petitioned this court in its rule-making capacity for clarification of the rule. Sutliff, 846 P.2d at 1237. Either of these remedies would have given guidance to Barnard and other attorneys similarly situated. Finally, he could have waited until a full-blown disciplinary proceeding was underway and challenged the rule in this court if and when the Bar recommended that action be taken against him. But declaratory relief in district court was not among the options available to him, given the inchoate nature of the investigation into his conduct.
Although we have concluded that Barnard erred in seeking a declaratory judgment and in filing his suit in district court, it does not necessarily follow that the trial court was correct in imposing rule 11 sanctions. In Sutliff, we adopted a three-tiered standard of review in considering a trial court's rule 11 determination. Sutliff directs us to apply the correction of error standard to the ultimate conclusion that rule 11 was violated. 846 P.2d at 1234-35.
In this case, the trial court found that Barnard did not make a reasonable inquiry that the suit was warranted under existing law or a good faith argument for extending, modifying, or reversing the law. In support of that finding, the court cited two actions Barnard commenced in district court raising similar legal issues. Both were dismissed, and in one sanctions were imposed. An appeal was pending in one of those actions at the time Barnard filed this action. Furthermore, the court cited a statement by Barnard in a verified pleading recognizing that the Utah Supreme Court has exclusive jurisdiction over and exclusive power to regulate the practice of law, including discipline.
As we noted in Sutliff, rule 11 does not require perfect research but rather research that is "objectively reasonable under all the circumstances." Id. at 1236 (citation omitted). In other words, Barnard need not have reached the correct conclusion; he need only have made a reasonable inquiry. The trial court's order fails to acknowledge that Barnard submitted affidavits from eight attorneys indicating that they could find no law precluding a suit of this kind from being filed in district court. In addition, the order ignores Barnard's own affidavit, prepared in Sutliff and submitted as an exhibit in this case, describing his own research and his reliance on the fact that several district court judges had exercised jurisdiction over actions he had previously filed against the Bar.
In light of this evidence and in light of the fact that Sutliff had not yet been decided, we cannot say that Barnard failed...
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