Preponderance of Evidence Standard Remains as Standard in Disciplinary Proceedings

The standard of proof in an ethics violation proceeding remains the preponderance of evidence, even when the a criminal act is the basis of the ethics violation 

In re Discipline of Steffensen, 2016 UT 18, 2016 WL 1584452.

   The Utah Supreme Court reaffirmed the standard of review used in ethics violation proceedings to be by the preponderance of evidence and not by proof beyond an unreasonable doubt. In the recent disciplinary proceeding, the attorney argued that a heightened standard of proof should be used because of the basis for his ethics violation was a criminal action. The Supreme Court, however, refused to elevate the standard because the rules “prescribe a preponderance standard for all ‘formal complaints of misconduct.’ And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of ‘criminal act’ under [the] rule.”

   In arguing for the change, the attorney claimed that there would be a due process violation without the heightened standard. The court rejected this argument because of their desire to “retain discretionary license to assure fair procedure in the cases that proceed through our justice system. But our usual course for so doing is by promulgating rules of procedure.”

   The attorney also argued that a heightened standard has more positive aspects that outweigh the negative ones. The court recognized the possible benefits as respectable, but concluding that policy reasons do not override the clear terms of an existing rule.

https://www.utcourts.gov/opinions/supopin/State%20v.%20Jones20160111.pdf