2023 UT 17
IN THE
SUPREME COURT OF THE STATE OF UTAH
In the Matter of the Discipline of:
AARON M. KINIKINI
OFFICE OF PROFESSIONAL CONDUCT,
Appellant,
v.
AARON M. KINIKINI,
Appellee.
No. 20220116
Heard October 3, 2022
Filed July 20, 2023
On Direct Appeal
Third District, Salt Lake County
The Honorable Laura Scott
No. 210904426
Attorneys:
Billy L. Walker, Emily A. Lee, Salt Lake City, for appellant
Todd Wahlquist, Salt Lake City, for appellee
JUSTICE PETERSEN authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE HAGEN, JUSTICE
POHLMAN, and JUDGE RENSTROM joined.
Having recused himself, CHIEF JUSTICE DURRANT does not
participate herein; DISTRICT COURT JUDGE REUBEN J. RENSTROM sat.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 When a lawyer commits a crime, the lawyer faces
criminal prosecution and punishment just as anyone else would in
the same circumstance. But in addition to that, a lawyer faces
professional discipline if the criminal act ―reflects adversely on
OPC v. KINIKINI
Opinion of the Court
the lawyer‘s honesty, trustworthiness[,] or fitness as a lawyer in
other respects.‖ UTAH R. PRO. CONDUCT 8.4(b). For example,
depending on the relevant factual circumstances, the ultimate
sanction in such a professional disciplinary proceeding could
include suspension of the lawyer‘s license for a period of time or
full delicensure. SUP. CT. R. PRO. PRAC. 11-584(a); id. R. 11-583
(2020).1
¶2 Where the lawyer‘s guilt has already been determined in
a criminal case—either through a guilty plea or jury verdict—this
court‘s Rules of Professional Practice direct that the lawyer is
subject to immediate interim suspension from the practice of law
if the crime of conviction is ―a felony or misdemeanor that reflects
adversely on the [lawyer‘s] honesty, trustworthiness, or fitness to
practice law.‖ Id. R. 11-564(c).
¶3 This appeal raises the question of how a district court
should determine whether a crime reflects adversely on a lawyer‘s
fitness to practice law when ruling upon a motion for interim
suspension. This case involves a lawyer, Aaron Kinikini, who pled
guilty to felony discharge of a firearm. Upon learning of the
conviction, the Office of Professional Conduct (OPC) moved in the
district court for Kinikini‘s immediate interim suspension. The
OPC did not deem the offense to implicate his honesty or
trustworthiness. Rather, it argued that interim suspension was
required because the conviction of felony discharge of a firearm
reflected adversely on Kinikini‘s fitness to practice law, since it is
a crime of violence. The OPC‘s argument was premised on the
elements of the offense.
¶4 Kinikini opposed the motion, arguing that it was
insufficient for the district court to look only at the elements of the
crime as a legal matter. He asserted that the district court must
look at the specific factual circumstances of his criminal conduct
and determine whether his actual conduct reflected adversely on
his fitness to practice law.
¶5 The district court denied the OPC‘s motion to place
Kinikini on interim suspension. It concluded that the OPC was
__________________________________________________________
1 Rule 11-584(a) went into effect on November 1, 2022, after
oral argument was held in this case. We cite the new rule only to
demonstrate generally the potential sanctions when a lawyer is
convicted of a crime that reflects adversely on the lawyer‘s
honesty, trustworthiness, or fitness to practice law.
2
Cite as: 2023 UT 17
Opinion of the Court
required to show that Kinikini‘s actual criminal conduct reflected
adversely on his fitness to practice law. And because the OPC had
not provided any such information, the court denied its motion.
The OPC appeals.
¶6 We hold that the determination of whether a lawyer‘s
crime of conviction falls within one of the categories requiring
interim suspension—in that it reflects adversely on the lawyer‘s
honesty, trustworthiness, or fitness to practice law—is a legal
question about the nature of the crime. A district court should
make this determination based on the elements of the offense, not
the particular factual circumstances of the respondent‘s criminal
conduct. This is so because in a proceeding for interim suspension
under rule 11-564 of the Supreme Court Rules of Professional
Practice, it has necessarily already been determined in a separate
criminal proceeding that the respondent committed the crime—in
other words, that the lawyer‘s conduct satisfied the elements of
the criminal offense. And where the elements of the crime of
conviction implicate the lawyer‘s honesty, trustworthiness, or
fitness to practice law, it damages the legal profession for the
lawyer to continue practicing law, even as the ultimate
professional sanction against the lawyer is being determined.
¶7 We reverse and remand for the district court to
reconsider the OPC‘s motion in accordance with this opinion.
BACKGROUND
¶8 Aaron Kinikini, a lawyer, pled guilty to discharge of a
firearm, which is a third-degree felony. As explained in his plea
statement, ―On December 18, 2020, in Salt Lake County, Mr.
Kinikini discharged a firearm, striking the driver‘s side tires of a
vehicle that his ex-wife was operating. He had reason to believe
that this could have endangered her or the other occupants of the
car.‖ The elements of the crime listed in Kinikini‘s plea statement
were: ―Defendant did[,] [while] knowing or having reason to
believe any person may be endangered by the discharge of a
firearm, discharge a firearm in the direction of another person (a
cohabitant).‖ See UTAH CODE § 76-10-508.1(1)(a) (2019) (―[A]n
individual who discharges a firearm is guilty of a third degree
felony . . . if: . . . the actor discharges a firearm in the direction of
one or more individuals, knowing or having reason to believe that
any individual may be endangered by the discharge of the firearm
. . . .‖).
¶9 After learning of Kinikini‘s plea, the OPC filed a
complaint against him in the district court. It alleged that Kinikini
3
OPC v. KINIKINI
Opinion of the Court
had violated rule 8.4(b) of the Utah Rules of Professional Conduct,
which provides that ―[i]t is professional misconduct for a lawyer
to . . . commit a criminal act that reflects adversely on the lawyer‘s
honesty, trustworthiness[,] or fitness as a lawyer in other
respects.‖ UTAH R. PRO. CONDUCT 8.4(b).
¶10 Simultaneously, the OPC moved under rule 11-564 of the
Supreme Court Rules of Professional Practice for Kinikini to be
immediately suspended from the practice of law during the
pendency of the action in the district court.2 Rule 11-564 requires a
district court to place an attorney on interim suspension ―upon
proof that the [attorney] has been found guilty of or has entered a
plea to a felony or misdemeanor that reflects adversely on the
[attorney‘s] honesty, trustworthiness, or fitness to practice law.‖
SUP. CT. R. PRO. PRAC. 11-564(c). The OPC did not assert that
Kinikini‘s criminal conduct reflected adversely on his honesty or
trustworthiness. So the only issue before the district court was
whether his conviction reflected adversely on his fitness to
practice law.
¶11 The OPC argued that to make this determination, the
court should look only at the elements of the crime and not the
factual circumstances surrounding Kinikini‘s criminal conduct. In
the OPC‘s view, ―evidence of aggravation and mitigation (such as
restitution) are factors to be considered when determining the
ultimate sanction and should not be considered when
determining whether an interim suspension should be imposed.‖
The OPC also argued that crimes of violence categorically reflect
adversely on an attorney‘s fitness to practice law. To support this
argument, the OPC cited comment 2 of rule 8.4 of the Utah Rules
of Professional Conduct, which states, ―Although a lawyer is
personally answerable to the entire criminal law, a lawyer should
be professionally answerable only for offenses that indicate lack of
those characteristics relevant to law practice. Offenses involving
violence, dishonesty, breach of trust or serious interference with
__________________________________________________________
2 The OPC‘s motion was also premised on a separate criminal
incident in 2008, in which Kinikini pled guilty to two
misdemeanors. However, the district court determined that the
2008 conduct occurred outside the statute of limitations and ―the
conduct that led to the 2008 conviction, standing alone, [did] not
warrant immediate suspension.‖ Neither party appealed that
portion of the district court‘s order, and we do not address it here.
4
Cite as: 2023 UT 17
Opinion of the Court
the administration of justice are in that category.‖ UTAH R. PRO.
CONDUCT 8.4 cmt. 2.
¶12 Kinikini opposed the motion and requested an informal
hearing, as permitted by rule 11-564(b). He asserted that for the
informal hearing to be meaningful, the district court must do
more than analyze the elements of the offense. He argued that the
court should consider his actual offense conduct. And he asserted
that, looking at his specific criminal conduct, the court should not
temporarily suspend him unless it determined that his continued
practice would pose a threat of harm to others or that the factors
that courts consider when determining the ultimate sanction in
disciplinary proceedings weighed in favor of a suspension. Those
factors are: ―(a) the duty violated; (b) the Lawyer‘s mental state;
(c) the potential or actual injury caused by the Lawyer‘s
misconduct; and (d) the existence of aggravating or mitigating
factors.‖ SUP. CT. R. PRO. PRAC. 11-582 (2020).3 Kinikini asserted
that failure to consider the factual circumstances of his offense
―would be a serious violation of [his] right to due process.‖
¶13 The district court shared Kinikini‘s concern that he would
be deprived of due process if the court suspended his license
without considering the circumstances of his conduct.
Accordingly, because the OPC had presented no evidence
regarding the factual circumstances of Kinikini‘s offense, the
district court declined to make a finding regarding whether
Kinikini‘s conviction implicated his fitness to practice law. And it
denied the OPC‘s motion for interim suspension.
¶14 The OPC appeals. We have jurisdiction under Utah Code
section 78A-3-102(3)(c).
STANDARD OF REVIEW
¶15 The Utah Constitution gives this court ―explicit and
exclusive‖ power to govern the practice of law. Injured Workers
Ass’n of Utah v. State, 2016 UT 21, ¶ 14,
374 P.3d 14; UTAH CONST.
art. VIII, § 4. This constitutional power includes the authority to
govern attorney disciplinary proceedings. UTAH CONST. art. VIII,
§ 4 (―The Supreme Court by rule shall govern the practice of law,
__________________________________________________________
3 Rule 11-582 was amended on November 1, 2022. However,
we refer to the 2020 version of this rule here, because it was that
version that Kinikini referenced in his argument to the district
court and in his briefing to us, as that was the version in effect at
the time.
5
OPC v. KINIKINI
Opinion of the Court
including . . . the conduct and discipline of persons admitted to
practice law.‖). To do this, we have promulgated the Supreme
Court Rules of Professional Practice. We review a district court‘s
interpretation of those rules for correctness. In re Discipline of
Sonnenreich, 2004 UT 3, ¶ 12,
86 P.3d 712.
ANALYSIS
¶16 The OPC argues that the district court incorrectly denied
its motion for interim suspension. It asserts that rule 11-564 of the
Supreme Court Rules of Professional Practice directs a court to
consider only the elements of the crime itself when determining
whether that crime reflects adversely on an attorney‘s honesty,
trustworthiness, or fitness to practice law. And the OPC reasons
that, in requiring it to provide additional evidence of Kinikini‘s
specific conduct, the court misapplied the rule.
¶17 Kinikini asserts that the OPC reads the rule incorrectly.
And he argues that the OPC‘s interpretation raises due process
concerns because it denies him a meaningful opportunity to be
heard.
¶18 We first explain why the OPC‘s reading of the rule is
correct. We then address the due process concerns that Kinikini
raises.
I. RULE 11-564 DIRECTS A DISTRICT COURT TO DETERMINE,
AS A MATTER OF LAW, WHETHER THE CRIME OF
CONVICTION WARRANTS INTERIM SUSPENSION
¶19 To determine the meaning of rule 11-564, we first look to
the text of the rule itself. Our analysis begins by ―interpret[ing]
[the] court rule in accordance with its plain meaning‖ and seeking
―to give effect to the intent of the body that promulgated it.‖ In re
Discipline of Brussow, 2012 UT 53, ¶ 14,
286 P.3d 1246 (cleaned up).
However, ―[b]ecause this court is the body that promulgate[d]
these rules, the constitutional considerations that require us to
take a purely textual approach to statutory enactments may not
apply with equal force here.‖ In re Discipline of Dahlquist,
2019 UT 15, ¶ 21,
443 P.3d 1205.
¶20 Broadly speaking, rule 11-564 lays out a process to
address the specific circumstance where an attorney has been
convicted of a crime. First, if a lawyer is convicted of any crime,
other than ―misdemeanor traffic offenses or traffic ordinance
violations not involving the use of alcohol or drugs,‖ both the
lawyer and the criminal court must notify the OPC. SUP. CT. R.
PRO. PRAC. 11-564(a).
6
Cite as: 2023 UT 17
Opinion of the Court
¶21 Upon learning that a lawyer has been convicted of ―a
felony or misdemeanor that reflects adversely on the [lawyer‘s]
honesty, trustworthiness, or fitness to practice law,‖ id. R. 11-
564(b), the ―OPC must determine whether the crime warrants
interim suspension.‖
Id. If it determines that it does, the OPC
―must file an Action‖ in the district court and ―concurrently file a
motion for immediate interim suspension.‖4
Id.
¶22 Notably, this is different from the process for most other
disciplinary proceedings against lawyers. Most often, a
disciplinary proceeding against a lawyer commences because a
complaint is filed with the OPC alleging that the lawyer has
engaged in unprofessional conduct. See id. R. 11-530. At that point,
the factual circumstances of the complaint have not been
determined, nor has it been determined whether those facts
provide grounds to discipline the lawyer under rule 11-560. See
id.
R. 11-560. To make such determinations, the Supreme Court Rules
of Professional Practice establish a process for screening panels to
investigate and review complaints.
Id. R. 11-531–534. The panels
then recommend how the complaint should be handled, including
appropriate sanctions.
Id. R. 11-534. If the screening panel ―finds
probable cause to believe there are grounds for public discipline
that merit filing an Action,‖ then ―the OPC will file an Action in
district court.‖
Id. R. 11-536(a).
¶23 But in a circumstance like the one here, the fact that the
lawyer has been convicted of a crime itself constitutes professional
misconduct warranting discipline, if the crime is of a certain type.
See UTAH R. PRO. CONDUCT 8.4(b); SUP. CT. R. PRO. PRAC. 11-564(a).
And the fact that the lawyer committed a crime has already been
established in a criminal proceeding. SUP. CT. R. PRO. PRAC. R. 11-
564(e) (―[D]ocumentation that the [lawyer] has been found guilty
of or has entered a plea to a crime constitutes conclusive evidence
that the [lawyer] committed the crime.‖). So, unlike in other
disciplinary proceedings, the facts relevant to whether discipline
is warranted have already been established—specifically, the
lawyer committed a crime. And all that remains is to determine
whether the conviction provides grounds to discipline the lawyer,
__________________________________________________________
4 As defined by rule 11-502, ―‗Action‘ means a lawsuit filed by
the OPC in district court alleging Lawyer misconduct or seeking
to transfer a Lawyer to disability status.‖ SUP. CT. R. PRO. PRAC.
11-502(a).
7
OPC v. KINIKINI
Opinion of the Court
which is the case if the crime of conviction ―reflects adversely on
the lawyer‘s honesty, trustworthiness[,] or fitness as a lawyer in
other respects.‖ UTAH R. PRO. CONDUCT 8.4(b). And that is a legal
question.5
¶24 Accordingly, when an attorney has been convicted of a
crime that the OPC concludes falls within the ambit of rule 11-564,
the case does not go through the screening panel process. Rather,
the OPC goes straight to the district court, where it commences an
action and simultaneously moves for interim suspension. SUP. CT.
R. PRO. PRAC. 11-564(b).
¶25 Although the fact of a criminal conviction has already
been established, there is still a necessary determination to be
made in the district court before interim suspension—or
discipline—can be imposed. That is the legal question of whether
the crime of conviction warrants interim suspension because it
falls within one of the categories identified in rule 11-564—and
subsequently, the related question of whether the crime
constitutes attorney misconduct warranting professional
discipline because it falls within the similar categories identified
in rule 8.4(b) of the Rules of Professional Conduct.
¶26 Because of the narrow issue remaining, rule 11-564 limits
the manner and substance of the challenges that a lawyer may
raise in opposing interim suspension. The attorney ―may assert
any jurisdictional deficiency establishing that the interim
suspension may not properly be ordered,‖ which the rule
identifies as defenses such as mistaken identity or that the crime
does not fall within one of the categories identified in the rule. Id.
R. 11-564(b). Importantly, this list does not encompass factual
challenges to the propriety of a suspension based upon the
specific circumstances of the criminal conduct.
¶27 Indeed, rule 11-564(b) explicitly provides that the
attorney is ―not entitled to an evidentiary hearing.‖ Id. The
respondent may request only an ―informal hearing.‖
Id. And the
rule limits the scope of that hearing, stating that it is ―solely to
determine whether the finding of guilt or plea was for a felony or
__________________________________________________________
5 Additional facts may be adduced and considered when it
comes time to determine an appropriate sanction. But here we are
discussing only the facts relevant to determining whether
discipline should be imposed in the first instance.
8
Cite as: 2023 UT 17
Opinion of the Court
misdemeanor that reflects adversely on the [lawyer‘s] honesty,
trustworthiness, or fitness to practice law.‖ Id.
¶28 We conclude that the plain language of the rule shows
that the question of whether the crime of conviction reflects
adversely on a lawyer‘s fitness to practice law (or honesty or
trustworthiness) is a legal question regarding the nature of the
crime itself. A district court should make this determination based
on the elements of the crime of conviction.
¶29 Once it has been shown that the lawyer has been
convicted of the crime, see id. R. 11-564(e), and the district court
has determined that the crime falls within one of the categories
identified in rule 11-564, the court must place the lawyer on
interim suspension.
Id. R. 11-564(c). Conversely, if the court denies
the motion, ―the OPC must dismiss the Action and will process
the matter as it does any other information coming to the OPC‘s
attention.‖
Id. R. 11-564(b).
¶30 We now address Kinikini‘s arguments that the rule
required the district court to analyze his specific offense conduct
to determine whether that conduct—and not the legal nature of
the crime of felony discharge of a firearm—reflected adversely on
his fitness to practice law.
¶31 We reject Kinikini‘s argument first because it conflicts
with the language of rule 11-564. His reading would require the
district court to receive evidence in order to develop the factual
circumstances of Kinikini‘s criminal conduct. But the rule
explicitly precludes an evidentiary hearing. Id.
¶32 Further, Kinikini‘s interpretation of the rule would
permit him to argue that his specific conduct does not reflect
adversely on his fitness to practice law. But such factual
argumentation far exceeds the defenses the rule allows him to
raise. Id.
¶33 In support of his argument that the district court should
conduct a factual analysis of the circumstances of the crime,
Kinikini looks outside of rule 11-564 and draws upon two other
rules that he contends must be harmonized with it. First, he notes
that ―interim suspension‖ is considered a ―sanction‖ because it is
included in rule 11-581, which identifies the available sanctions in
9
OPC v. KINIKINI
Opinion of the Court
disciplinary proceedings.6 Id. R. 11-581(d) (2020). Kinikini then
asserts that before imposing a ―sanction,‖ a court must consider
the factors listed in rule 11-582: ―(a) the duty violated; (b) the
Lawyer‘s mental state; (c) the potential or actual injury caused by
the Lawyer‘s misconduct; and (d) the existence of aggravating or
mitigating factors.‖
Id. R. 11-582 (2020). Thus, Kinikini reasons,
before imposing the ―sanction‖ of interim suspension, the court
must consider the rule 11-582 factors. And to do this, the court
must consider the factual circumstances of the offense.
¶34 We reject this argument, however, because rule 11-581
specifically directs that interim suspension ―may be imposed as
set forth in [rule] . . . 11-564.‖ Id. R. 11-581(d) (2020). This
statement renders the factors in rule 11-582 inapplicable at this
stage of the proceedings because rule 11-581 directs courts back to
rule 11-564 when considering whether to impose an interim
suspension. Importantly, a district court may consider any of the
relevant factors in rule 11-582 at the time it determines the
ultimate sanction in this type of case—but that comes later, not
while the court is addressing the propriety of an interim
suspension.
¶35 Further, if a district court were to consider the factors in
11-582, that would necessitate an evidentiary hearing during
which the facts of the criminal conduct were adduced. And since
the text of 11-564 expressly states that a lawyer is not entitled to
an evidentiary hearing,
id. R. 11-564(b), Kinikini‘s interpretation
creates a conflict between rules 11-564 and 11-582.
¶36 Kinikini next argues that a district court should not
impose an interim suspension without first considering whether
an attorney‘s continued practice would pose a threat of harm. As
there is no explicit mention of threat of harm in rule 11-564,
Kinikini argues that consideration of a threat of harm is implicit in
the rule and ―a finding that an attorney does not pose a threat is
essentially a finding the attorney is fit to practice.‖
¶37 But this conflates rule 11-564 with a separate rule, rule 11-
563, which explicitly addresses circumstances in which interim
suspension is necessary to protect the public from a threat of harm
posed by an attorney‘s continued practice of law.
Id. R. 11-563(a),
__________________________________________________________
6 Rule 11-581 was amended on November 1, 2022. We refer to
the 2020 version of the rule because that is the rule Kinikini relies
upon in his argument. See supra ¶ 12 n.3.
10
Cite as: 2023 UT 17
Opinion of the Court
(b) (requiring the OPC to file a petition for interim discipline
when an attorney ―poses a threat of serious harm to the public‖
and allowing the district court to ―enter an order immediately
suspending‖ the attorney).
¶38 We decline to read a threat-of-harm requirement into rule
11-564 when those words do not appear in the rule. Rule 11-564
provides its own basis for interim suspension, which is separate
and distinct from the rationale behind rule 11-563. Rule 11-564
reflects this court‘s judgment that when a lawyer has been
convicted of a crime that adversely reflects on their honesty,
trustworthiness, or fitness to practice law, it damages the
profession for that attorney to continue practicing as a lawyer
while a disciplinary proceeding is pending. And where a crime
involves violence, as the OPC argues is the case with felony
discharge of a firearm, it impugns the lawyer‘s fitness to practice
law because the lawyer has engaged in conduct that endangered
the physical safety of others.
¶39 In sum, rule 11-564 requires district courts to determine,
as a matter of law, whether the crime of conviction reflects
adversely on the lawyer‘s honesty, trustworthiness, or fitness to
practice law based on the elements of the offense. This is a
categorical finding that does not take into account the factual
circumstances surrounding the particular criminal conduct at
issue. Where a lawyer has been convicted of a crime, it necessarily
has been determined that the lawyer‘s conduct fell within the
elements of the offense of conviction. Accordingly, the district
court should determine whether the elements of the crime of
conviction implicate rule 11-564.
II. RULE 11-564 PROVIDES A RESPONDENT WITH A
MEANINGFUL OPPORTUNITY TO BE HEARD ON THE
MATTERS THAT ARE AT ISSUE
¶40 Kinikini next contends that the OPC‘s interpretation of
rule 11-564 raises due process concerns. To be clear, Kinikini does
not argue that the rule is unconstitutional because it violates his
right to due process. Instead, he argues that we should adopt his
interpretation of the rule over the OPC‘s because the OPC‘s
interpretation gives rise to due process concerns. Specifically, he
asserts that the OPC‘s reading of the rule ―remove[s] any
‗meaningfulness‘ from the [informal] hearing to which Mr.
Kinikini is entitled under the rule.‖
¶41 This argument is a form of statutory construction. When
faced with ―two plausible constructions of a statute,‖ the canon of
11
OPC v. KINIKINI
Opinion of the Court
constitutional avoidance allows courts to reject one construction
―on the ground that it would raise grave doubts as to the statute‘s
constitutionality.‖ Castro v. Lemus, 2019 UT 71, ¶ 54,
456 P.3d 750
(cleaned up). But in light of the rule‘s explicit prohibition on
evidentiary hearings, we cannot conclude that Kinikini has
offered an alternative, plausible interpretation of the rule. And as
Kinikini has not otherwise argued that the rule is
unconstitutional, his due process argument fails.
¶42 We appreciate the district court‘s attention to ensuring
that Kinikini had a sufficient opportunity to be heard in this
proceeding. And we reaffirm that, just like parties in other types
of cases, lawyers are entitled to a ―meaningful opportunity to be
heard‖ in attorney discipline cases. In re Discipline of Steffensen,
2016 UT 18, ¶ 7,
373 P.3d 186. This remains true in interim
suspension proceedings under rule 11-564. However, these cases
proceed differently than other disciplinary actions because much
of the process the lawyer is due has already taken place in a prior
criminal proceeding. See SUP. CT. R. PRO. PRAC. 11-564(b) (noting
that the rule applies where an attorney has already been ―found
guilty of or has entered a plea of guilty or no contest‖ to certain
crimes).
¶43 This circumstance is similar to others in which a criminal
conviction results in a collateral consequence outside of the
criminal proceeding. For example, the United States Code has an
analogous provision that requires any federal law enforcement
officer to be removed from employment if they are convicted of a
felony. 5 U.S.C. § 7371(b). Like rule 11-564, section 7371 limits the
manner and substance of how employees may challenge their
removal. Under section 7371, employees may contest their
removal only with respect to whether ―(A) the employee is a law
enforcement officer; (B) the employee was convicted of a felony;
or (C) the conviction was overturned on appeal.‖
Id. § 7371(e)(2).
¶44 In these circumstances, the policy behind the disciplinary
rule is that the fact of the criminal conviction itself warrants the
professional sanction. In the context of rule 11-564, once the fact of
conviction has been established, the only remaining question is a
legal one as to whether the crime of conviction falls within the
ambit of the rule. Because this is a legal question, the process
available to a respondent under 11-564 is generally limited to legal
rather than factual challenges. This provides a respondent with a
meaningful opportunity to be heard on those matters that are at
issue in the proceeding at hand.
12
Cite as: 2023 UT 17
Opinion of the Court
CONCLUSION
¶45 When the OPC brings a motion for interim suspension
under rule 11-564, it must establish the fact of conviction and that
the crime of conviction falls within the rule in that it reflects
adversely on the attorney‘s honesty, trustworthiness, or fitness to
practice law. This is a legal question that should be determined
based on the elements of the crime of conviction. Accordingly, we
reverse and remand to the district court to reconsider the OPC‘s
motion in accordance with this opinion.
13
