Larsen v. Utah State Bar (In re Larsen)

Decision Date16 June 2016
Docket NumberNo. 20140535,20140535
Citation2016 UT 26,379 P.3d 1209
Parties In the Matter of the Discipline of Tyler James Larsen Tyler James Larsen, Appellant and Cross–Appellee, v. Utah State Bar, Appellee and Cross–Appellant.
CourtUtah Supreme Court

Tyler James Larsen, pro se, Coalville, appellant and cross-appellee.

Todd Wahlquist, Salt Lake City, for appellee and cross-appellant.

Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Justice Himonas joined.

Justice John A. Pearce became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.

Associate Chief Justice Lee

, opinion of the Court:

¶1 Tyler James Larsen was suspended from the practice of law for seven months for violating two rules of professional conduct. We reverse in part and affirm in part.

I

¶2 Tyler James Larsen was a prosecutor with the Davis County Attorney's Office from 2007 to 2010. He was charged with two sets of violations of the Utah Rules of Professional Conduct in 2012. One charge alleged a misstatement of fact in violation of rule 3.3. The other alleged a failure of a prosecutor to make a timely disclosure of exculpatory evidence to the defense under rule 3.8. In the proceedings reviewed on this appeal, the district court found that Larsen had violated both rules. And it imposed a sanction of suspension for seven months—thirty days for the rule 3.3 violation and six months for the rule 3.8 violation.

¶3 The rule 3.3 charge arose out of a 2009 proceeding involving a woman on probation for a DUI conviction. At a hearing on that case defense counsel asserted that his client had been charged probation fines that were excessive. The trial judge then set a hearing for the next month to look into the matter further.

¶4 Craig Webb, an investigator with the Davis County Attorney's Office, investigated the matter. Webb collected receipts from the probation agent and recorded data in a spreadsheet. Webb's spreadsheet showed that the probationer had paid $3,797. At the hearing Larsen requested a sidebar with Judge Allphin, where he indicated that he had a spreadsheet showing that the probationer had paid $6,000. When questioned further, Larsen also stated that his boss, the Davis County Attorney, did not want that information to be disclosed.

¶5 Larsen was subsequently charged with misstating the facts to the court in connection with the above proceedings. In the disciplinary proceedings below, the district court found that Larsen had misstated the facts in claiming he had a spreadsheet showing that the probationer had paid $6,000 to the probation agent and in stating that the Davis County Attorney preferred not to have that information disclosed. Specifically, the court concluded that there was no spreadsheet reflecting a payment of $6,000 at the time of the underlying hearing. In so doing, however, the court found that the OPC had not established “intentional misrepresentation.” Instead it concluded that “Larsen's statement was a misstatement that a reasonably diligent inquiry would have avoided.” Findings of Fact and Conclusions of Law at 4.

¶6 This point was clarified in an exchange between Larsen and the court toward the end of the hearing. That exchange was as follows:

Mr. Larsen : Can I just ask one clarification? So, on the first [count], you did not find intent?
The Court : I did not find intentional misrepresentation; I found reckless misrepresentation.

Original Transcript (Partial) of Trial , May 21, 2014 at 9.

¶7 The district court made further findings in an Order of Sanction it entered against Larsen. In the Order the district court found that Larsen had made a separate untrue statement to the trial judge in the underlying hearing in 2009. And although the court acknowledged that OPC had not asserted a separate charge on the basis of that statement, the district court found that “it [was] probative” of Larsen's state of mind—that his “actions were knowing or reckless at the time” of the underlying hearing. Findings of Fact and Conclusions of Law at 4.

¶8 On these grounds the district court found that Larsen had violated rule 3.3. It also imposed a thirty-day suspension based on that violation.

¶9 The rule 3.8 charge arose out of a 2010 felony robbery case. The defendant in that case was accused of robbing two stores, Kim's Fashions and Baskin–Robbins, in 2006. A key issue at trial concerned identification of the perpetrator. No physical evidence connected the defendant to the robberies, but two eyewitnesses from each robbery were called to identify the defendant as the robber.

¶10 The rule 3.8 charge centered around Larsen's interactions with the eyewitnesses. About ten days before trial Larsen and a police officer met with the Kim's Fashions witnesses and then the Baskin–Robbins witnesses to discuss the upcoming trial. At the end of both meetings Larsen showed the witnesses a single photograph of the defendant and asked the witnesses if they would be able to identify him as the robber at trial. No other photographs were shown. All of the witnesses indicated that they would be able to make the identification.

¶11 About a week before the trial, Larsen met with Mark Arrington, the defendant's attorney. Larsen told Arrington that the prosecution's “witnesses had ID'd [the defendant].” Original Transcript (Partial) of Trial , May 20, 2014 at 39. Arrington did not ask Larsen any more questions about the identification. And Larsen did not disclose that he had shown a photograph of the defendant to the witnesses.

¶12 At trial the husband and wife owners of Kim's Fashions were the first witnesses. The husband testified on cross-examination that he had not seen a photograph of the defendant. Larsen did not correct this false testimony on redirect.

¶13 The wife was then called to the witness stand. On cross-examination, she admitted that Larsen had shown her and her husband a single photograph of the defendant about ten days before trial. Arrington then moved for a mistrial.

¶14 The record is a bit unclear as to the precise sequence of events following the motion for mistrial. At oral argument before this court, Larsen said that after Arrington moved for a mistrial, the judge and attorneys had a sidebar conversation in which the judge inquired into the possibility of salvaging the Baskin–Robbins robbery charges if those witnesses had not been shown the photograph. Larsen said he did not fully understand what the judge was talking about; so he said that at that time he did not disclose that he had also shown the Baskin–Robbins witnesses the photo.

¶15 During the recess that followed the sidebar, however, Larsen claims that he told Arrington that he had shown the photo to the Baskin–Robbins witnesses. At that point, Arrington notified the judge, who then declared a mistrial.1

¶16 OPC advanced a somewhat different sequence at oral argument. It said that Larsen allowed the Baskin–Robbins trial to go forward even though he knew the witnesses were tainted. That is a plausible inference to be drawn from the record. But there is nothing in the record that clearly indicates the Baskin–Robbins part of the trial went forward in any meaningful sense before Larsen's admission. At oral argument we asked OPC whether Larsen told Arrington that he had shown the picture to the Baskin–Robbins witnesses before or after the sidebar meeting with the judge. And OPC acknowledged that the trial record is not clear on the precise sequence of the relevant events.

¶17 In the disciplinary proceedings below, the district court found that [w]hen Judge Allphin indicated a willingness to proceed on the second charge if the victims had not seen the photographs, Mr. Larsen did not volunteer at the time that he had shown the photos to the other victims.” Findings of Fact and Conclusions of Law at 6. And on that basis the court concluded that “Mr. Larsen intentionally concealed the fact of the photo show from the defense.” That finding led to the imposition of a six-month suspension against Larsen.

II

¶18 Larsen challenges the suspensions imposed against him under both rules 3.3 and 3.8. He alleges error in the legal conclusions and findings supporting both of the rules violations and asks us to reverse. OPC defends the district court's legal and factual analysis. It also cross-appeals, claiming error in the length of the sanction and the imposition of separate sanctions for each rule violation, and asking us to require a single, overarching sanction instead of separate ones.

¶19 We review the district court's decision under standards of review that account for our constitutional responsibility to “govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law.” UTAH CONST. art. VIII, § 4

. Thus, we will “not overturn a district court's findings of fact unless they are ‘arbitrary, capricious, or plainly in error.’ Utah State Bar v. Lundgren (In re Discipline of Lundgren) , 2015 UT 58, ¶ 9, 355 P.3d 984 (citation omitted). Yet ‘in light of our constitutional mandate and the unique nature of disciplinary actions,’ we review district court findings in attorney discipline matters with less deference” than we would afford in other cases. Id. (citation omitted). We “retain ‘the right to draw different inferences from the facts' in order to ‘make an independent determination’ of the correctness of the discipline the district court imposed.” Id. (citation omitted).

¶20 Applying these standards, we reverse in part (as to the rule 3.3 charge) and affirm in part (as to the rule 3.8 charge) on Larsen's appeal. As to OPC's cross-appeal, we affirm the district court; we reject the notion that district courts are required to impose a single, overarching sanction on multiple ethics charges.

A ¶21 Rule 3.3 of the Utah Rules of Professional Conduct

governs candor to our tribunals. It provides that [a] lawyer shall not knowingly: (a)(1) make a...

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