Steffensen v. Office of Prof'l Conduct (In re Steffensen)

• Decision Date: 07 January 2021
• Docket Number: No. 20190146-SC,20190146-SC
• Citation: 481 P.3d 468
• Parties: In the MATTER OF the DISCIPLINE OF Brian W. STEFFENSEN Brian W. Steffensen, Appellant, v. Office of Professional Conduct, Appellee.
• Court: Utah Supreme Court

481 P.3d 468

In the MATTER OF the DISCIPLINE OF Brian W. STEFFENSEN

Brian W. Steffensen, Appellant,

v.Office of Professional Conduct, Appellee.

No. 20190146-SC

Supreme Court of Utah.

Heard October 13, 2020

Filed January 7, 2021

Brian W. Steffensen, Salt Lake City, for appellant (pro se)

Billy L. Walker, Adam C. Bevis, Salt Lake City, for appellee

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

Justice Himonas, opinion of the Court:

INTRODUCTION

¶1 The saga of the discipline of Brian W. Steffensen has continued for nearly a decade, now coming before this court for the third time. Though the matter has revealed numerous legal complexities over the years, it returns to us today primarily on the straightforward issue of the appropriateness of the district court's order disbarring Steffensen. We agree with the district court's analysis and affirm the disbarment order.

¶2 We also affirm the district court's denial of Steffensen's motions regarding disqualification, prosecutorial misconduct, and for a continuance, finding no abuse of discretion.

BACKGROUND

¶3 Brian Steffensen has been a licensed attorney in Utah since 1980. During his legal career, Steffensen incorporated a number of law firms and "repeatedly failed to maintain accounting practices that would keep his law firms viable." In re Discipline of Steffensen , 2018 UT 53, ¶ 3, 428 P.3d 1104. An investigation by the Utah State Tax Commission established that Steffensen had failed to properly file withholding tax returns, remit withholding taxes, and submit monies collected from his employees in payment of their income tax obligations. In 2009, Steffensen was criminally charged with Failing to Render a Proper Tax Return, Intent to Evade, and Unlawful Dealing of Property by a Fiduciary.¹

¶4 In response to these charges, the Office of Professional Conduct ("OPC") filed a complaint against Steffensen for professional misconduct under rule 8.4 of the Utah Rules of Professional Conduct.

¶5 The OPC, of course, may, in an appropriate case, "bring a formal complaint charging an attorney with professional misconduct before the district court." In re Discipline of Steffensen , 2018 UT 53, ¶ 19, 428 P.3d 1104 (citing SUP. CT. R. PROF'L PRAC. 14-511(a)). Rule 8.4 outlines professional misconduct, which includes "(b) commit[ting] a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer" and "(c) engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation." UTAH R. PROF'L CONDUCT 8.4(b), (c). Once misconduct under rule 8.4 is established, the case proceeds to a determination of the appropriate sanction. See SUP. CT. R. PROF'L PRAC. 14-511(f). Rule 14-605 provides the standards by which a court shall impose sanctions; subsection (a) provides the circumstances under which disbarment is "generally appropriate." Applicable to this case, rule 14-605(a)(3) allows disbarment when a lawyer "engages in ... intentional misconduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer's fitness to practice law." Notably, the language of subsection (a)(3) is nearly identical to that of rule 8.4(c).

¶6 In its complaint, the OPC charged that Steffensen's "fail[ure] to make, render, sign, or verify any withholding tax return" in his fiduciary role was both a "criminal act that reflected adversely on his honesty, trustworthiness or fitness as a lawyer" under rule 8.4(b) and constituted "conduct involving dishonesty, fraud, deceit or misrepresentation" under rule 8.4(c).

¶7 In 2016, Steffensen filed before this court an interlocutory appeal in which we affirmed the district court's determination of the proper burden of proof. See In re Discipline of Steffensen , 2016 UT 18, ¶¶ 1, 17, 373 P.3d 186. The Third District Court then found the evidence provided by the OPC of Steffensen's misconduct sufficient to establish violations of rule 8.4(b) and (c) and thus entered an order to disbar Steffensen under rule 14-605(a)(1) and (a)(2) of the Supreme Court Rules of Professional Practice.

¶8 Steffensen appealed the decision to this court. On September 24, 2018, we affirmed the district court's findings of misconduct under rule 8.4(b) and (c) but remanded the case for a new determination of the appropriate sanctions, finding reliance on rule 14-605(a)(1) and (a)(2) inappropriate.² See In re Discipline of Steffensen , 2018 UT 53, ¶¶ 61–63, 428 P.3d 1104. Having affirmed Steffensen's rule 8.4 violations, our mandate on remand expressly precluded the district court from reopening the proceedings to new evidence. Id . at ¶ 60.³

¶9 On December 20, 2018, the district court held a scheduling conference during which the remanded sanctions hearing was scheduled for February 7, 2019. Steffensen participated actively in this conference as an attorney of record along with his attorney, Larry Reed. During this meeting, Steffensen noted that, for financial reasons, he expected to "take the laboring oar on this [matter] and not rely so much on Mr. Reed." Despite this expectation, Steffensen agreed to the scheduling of the sanctions hearing on February 7. At no point in the conversation did Steffensen raise concerns about emotional difficulties regarding the case. Though under no obligation to do so, the district court then requested that each party submit proposed findings and "a short brief on the legal issues" by February 1, 2019. A week later, on December 27, Reed filed a motion for leave to withdraw as counsel. The district court granted the unopposed motion to withdraw on January 11, 2019. But the district court also ordered the February 7 date for the sanctions hearing remain in place.

¶10 On January 18, 2019, Steffensen sent a letter by email to the district court judge, stating that he had not yet received a notice to appear or appoint. Additionally, Steffensen expressed that he was struggling to find replacement counsel but did not feel he could represent himself pro se because of emotional complications he experienced in dealing with the case. On January 22, 2019, the judge's clerk responded to Steffensen's email and confirmed that the previously scheduled sanctions hearing date had not changed. Thereafter, Steffensen entered a limited appearance pro se on January 31, 2019, to file a motion under rule 63 of the Utah Rules of Civil Procedure to disqualify the district court judge. The motion to disqualify the district court judge was referred to the Associate Presiding Judge, who denied the motion for failure to demonstrate extrajudicial bias on February 6, 2019, the day before the scheduled sanctions hearing.

¶11 On February 1, before his motion to disqualify was denied, Steffensen filed a motion to vacate the deadline for filing post-remand memoranda (which were due that day) and the February 7 sanctions hearing. Though the district court did not directly respond to this motion, it entered a minute entry on February 6, following the Associate Presiding Judge's denial of the motion to disqualify, allowing Steffensen an extension.

¶12 Steffensen failed to respond to the February 6 minute entry, so the parties appeared for the originally-scheduled sanctions hearing on February 7, 2019. At the hearing, Steffensen stated that he had not seen the minute entry, which would have provided him with the additional time he had repeatedly requested. The hearing was then rescheduled for February 14, 2019, with Steffensen's approval.

¶13 On February 7, Steffensen filed a post-remand memorandum stating that the OPC's proposed findings and conclusions were inaccurate and unsupported. Specifically, the OPC's proposed findings and conclusions stated that Steffensen had "prepared and signed W2s for his employees" when, in fact, completed W2s do not include signatures. Deeming this inaccuracy to reflect unethical conduct by the OPC, Steffensen morphed the February 7 memorandum into a motion for relief for prosecutorial misconduct. This motion was filed on February 13, one day before the rescheduled sanctions hearing.

¶14 The sanctions hearing finally took place on February 14, 2019. Steffensen took the opportunity to address the arguments made in his recent motions, but he did not request more time to submit his own findings and conclusions, nor did he make any new objections during the hearing.

¶15 Ultimately, the district court declined to consider the OPC's proposed findings and conclusions and issued an independently-prepared ruling and order on February 19, 2019. The district court concluded that presumptive disbarment under rule 14-605(a)(3) was inappropriate for Steffensen's rule 8.4(b) violation but was appropriate for his rule 8.4(c) violation. According to the district court, Steffensen's breach of his fiduciary duties, failure to remit tax monies, and misrepresentation of his mishandling of those monies "seriously adversely reflect[ed] on [his] fitness to practice law." (Second alteration in original). Steffensen now appeals this decision. We have jurisdiction pursuant to article VIII, section 4 of the Utah Constitution and Utah Code section 78A-3-102(3)(c).

STANDARD OF REVIEW

¶16 The Utah Constitution squarely places the authority to "govern the practice of law, including ... the conduct and discipline of persons admitted to practice law," within our sphere. UTAH CONST. art. VIII, § 4. As a result, professional discipline cases have taken on "a unique standard of review." In re Discipline of Steffensen , 2018 UT 53, ¶ 14, 428 P.3d 1104. This unique standard allows us to pay deference to the determinations made by the district court but requires that we "make an independent determination of the correctness of the discipline the district court imposed." In re Discipline of Lundgren , 2015 UT 58, ¶ 9, 355 P.3d 984 (citation omitted) (internal quotation marks omitted).

ANALYSIS

¶17 The focal issue in this appeal...