In re Discipline of Sonnenreich

• Decision Date: 16 January 2004
• Docket Number: No. 20020187.,20020187.
• Citation: 86 P.3d 712,2004 UT 3
• Parties: In the Matter of the DISCIPLINE OF Sharon SONNENREICH, # 4918.
• Court: Utah Supreme Court

86 P.3d 712

2004 UT 3

In the Matter of the DISCIPLINE OF Sharon SONNENREICH, # 4918.

No. 20020187.

Supreme Court of Utah.

January 16, 2004.

Rehearing Denied March 4, 2004.

Kate A. Toomey, Billy L. Walker, Salt Lake City, for plaintiff.

James S. Lowrie, Salt Lake City, for defendant.

DURRANT, Associate Chief Justice:

¶ 1 This appeal concerns the authority of the Utah State Bar ("the Bar") to administratively suspend attorneys who fail to pay the Bar's annual licensing fee. It also concerns the authority of the Bar's Office of Professional Conduct ("the OPC") to bring an unauthorized practice of law complaint against an attorney who continues to practice law while administratively suspended.

¶ 2 In 1999, the Bar suspended Sharon Sonnenreich for failing to pay her annual licensing fee. Although she subsequently paid the fee, the OPC filed a complaint in district court alleging that she had practiced law without authorization while she was administratively suspended and requested appropriate discipline. Following oral arguments, the district court granted summary judgment in Sonnenreich's favor, holding that the Bar and the OPC had no authority to act as they did. On motion, the district court also awarded Sonnenreich attorney fees pursuant to section 78-27-56 of the Utah Code after finding that the OPC action was without merit and brought in bad faith. The OPC appeals both rulings. We affirm the summary judgment decision by the district court and remand for a finding on the issue of bad faith.

BACKGROUND

¶ 3 "In reviewing a grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. We state the facts of this case accordingly." Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 2, 70 P.3d 904 (citations and quotations omitted).

¶ 4 All attorneys who practice in the state of Utah are required to pay a licensing fee to the Bar by July 1 of each year as a condition of continued membership in the Bar. It is undisputed that in 1999 Sonnenreich failed to pay her annual licensing fee by July 1. Sonnenreich claims that on or about July 30, 1999, she paid her fee by faxing her credit card number on a bar dues form to the Bar. Sonnenreich also claims she included a change of address on this form. She admits, however, that she has been unable to locate a copy of the fax. The Bar maintains that it never received the fax, as evidenced, it argues, by the fact that it did not make any charge to Sonnenreich's credit card, did not send a receipt to Sonnenreich evidencing payment of the fee, and did not mail Sonnenreich an annual license sticker.

¶ 5 Sonnenreich was administratively suspended on September 7, 1999, for failing to pay the annual fee. According to the OPC, the Bar's executive director notified Sonnenreich of her administrative suspension by sending notice, via certified mail, to her address on record with the Bar. This information is supported by a copy of the certified letter receipt addressed to Sonnenreich at her last known place of employment. Sonnenreich claims that she never received this certified letter. On September 8, 1999, Sonnenreich's name was included on a list of all the attorneys suspended for failure to pay their bar dues, which was circulated to all appellate judges, clerks of court, district judges, and juvenile judges.

¶ 6 Sonnenreich claims she had no notice that she had been placed on administrative suspension until January 4, 2000. On that date, Sonnenreich's husband, while examining the Bar's website, discovered Sonnenreich had been listed as suspended. After learning of her suspension, Sonnenreich contacted the Bar and spoke with Arnold Birrell, the Bar's licensing administrator, about her status. During that conversation, Sonnenreich stated to Birrell that she was "a practicing attorney in Utah."

¶ 7 Following her conversation with Birrell, Sonnenreich paid her 1999 licensing fee plus the $100 late fee on January 7, 2000. The Bar immediately reinstated Sonnenreich from her administrative suspension. That same day, the OPC began investigating Sonnenreich for the unauthorized practice of law, apparently based solely on Sonnenreich's comment to Birrell that she was a "practicing attorney." On January 19, 2000, the OPC sent Sonnenreich a notice of informal complaint. This informal complaint came before the screening panel on March 30, 2000. The screening panel found that Sonnenreich had violated rules 5.5 and 8.4(a) of the Utah Rules of Professional Conduct for "practic[ing] law while ... suspended for nonpayment of her annual Bar licensing dues." On a screening panel information decision sheet prepared by the OPC, the screening panel indicated that it had found "by a preponderance of the evidence" that "[t]here [was] probable cause to believe that [Sonnenreich] was engaged in professional misconduct with regard to [r]ule 5.5" and recommended "that a formal complaint be filed against [Sonnenreich]."

¶ 8 Based upon the screening panel's recommendation, the OPC filed a complaint against Sonnenreich on April 24, 2000. In the complaint, the OPC alleged that Sonnenreich had "engaged in the unauthorized practice of law when she practiced law and held herself out as an attorney during the period of her suspension prior to her reinstatement." The complaint requested that Sonnenreich "be appropriately sanctioned for" violating rules 5.5 and 8.4(a) of the Utah Rules of Professional Conduct. Sonnenreich filed her answer on May 24, 2000, and filed a motion for judgment on the pleadings on June 9, 2000.¹

¶ 9 In her motion, Sonnenreich made four arguments: (1) that the "Bar has no power to suspend attorneys or judges," (2) that the complaint filed by the OPC could "only be instituted by the Utah Board of Bar Commissioners," (3) that the complaint filed by the OPC failed to "state `in plain and concise language the facts upon which the charge of unprofessional conduct is based,' [Utah Rules of Discipline and Disability 11(a) ]," and (4) that the complaint, on its face, was not grounded "upon a finding in the screening panel of `probable cause to believe that there are grounds for public discipline and that a formal complaint is merited.' [RLDD 11(a) ]." The district court concurred with Sonnenreich's arguments supporting these assertions and granted judgment on the pleadings on January 9, 2001.² In so doing, the district court found that our decision in In re Crandall, 784 P.2d 1193 (Utah 1989), "made clear the necessity for actual notice [prior to suspensions]," and that "it [was] undisputed no actual notice of the alleged suspension was received by Sonnenreich." The district court later recognized that Sonnenreich's motion for judgment on the pleadings and the OPC's response were both accompanied by affidavits, and converted the motion for judgment on the pleadings into a motion for summary judgment. See Utah R. Civ. P. 12(c). Accordingly, the signed judgment dismissed the complaint with prejudice "[p]ursuant to Rule 56(c) of the Utah Rules of Civil Procedure."

¶ 10 Following this dismissal, Sonnenreich filed a motion for attorney fees pursuant to section 78-27-56 of the Utah Code. Based on Judge Stirba's prior ruling, and specifically on her reliance on In re Crandall and In re Discipline of Schwenke, 849 P.2d 573 (Utah 1993), the district court³ found the OPC's complaint to be meritless. The district court also determined that the action was brought in bad faith, "given the lack of a foundation for the action, combined with the total lack of factual basis on the issue of notice." The court indicated in a footnote that the lack of foundation was "[p]articularly true in light of the existing case law." Based on these findings, the district court ordered the Bar to pay Sonnenreich $30,886.25 in attorney fees at 4.28% interest per annum.

¶ 11 The OPC appeals, challenging both the district court's dismissal of the complaint and the award of attorney fees. We have jurisdiction to hear this appeal pursuant to article VIII, section 4 of the Utah Constitution and section 78-2-2(3) of the Utah Code.

ANALYSIS

I. STANDARD OF REVIEW

¶ 12 "[S]ummary judgment is only appropriate where `there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.' Utah R. Civ. P. 56(c). When reviewing a court's decision to grant summary judgment, we examine the court's legal conclusions for correctness." Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 13, 70 P.3d 904 (citations and internal quotation omitted). In addition, article VIII, section 4 of the Utah Constitution provides that "[t]he Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law." Accordingly, we review the district court's interpretation of our rules for correctness. See Barnard v. Sutliff, 846 P.2d 1229, 1237 (Utah 1992) ("[O]nly this court has the rulemaking power over the practice of law and the procedures of the Bar.").

II. ADMINISTRATIVE SUSPENSIONS

¶ 13 Sonnenreich argued before the district court that only the Utah Supreme Court, not the Bar, has the authority to suspend attorneys or judges. Sonnenreich also objected to the Bar's issuance of a suspension without prior notice. The district court agreed with Sonnenreich that the Bar has no authority to suspend attorneys and held that actual notice is required in suspension proceedings. The district court based this holding on our decision in In re Crandall, 784 P.2d 1193 (Utah 1989). On appeal, the OPC argues that Utah's Rules of Lawyer Discipline and Disability ("RLDD") authorize the Bar to administratively suspend attorneys for failure to pay bar dues. Moreover, the OPC contends that only compliance with the notice requirements contained in the RLDD, rather than actual notice, is required in the context of an...