Nemelka v. Ethics and Discipline Committee

1 Both parties mischaracterize this proceeding as an
“appeal.” 	The Supreme Court Rules of Professional Practice do
not currently provide for an appeal from informal final orders
issued by the Committee. 	See Bowen v. Utah State Bar, 2008 UT 5,
¶ 10, 177 P.3d 611 (“According to rule 14-511(g), disciplinary
orders of district courts entered pursuant to the formal
complaint process are appealable to this court. 	There is no
procedural provision, however, for obtaining judicial review of
disciplinary orders finally resolved by the Ethics and Discipline
Committee such as the order in this case.”) 	With that said, the
court has pending before it a petition to amend rule 14-510 of
the Rules of Professional Practice. 	The proposed rule provides
for a procedure by which a respondent may request judicial review
(continued...)
2009 UT 33
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Richard S. Nemelka, 	No. 20080527
Petitioner,
v.
The Ethics and Discipline 	F I L E D
Committee of the Utah Supreme
Court and the Utah State Bar, 	June 12, 2009
Respondents.
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Original proceeding in this court.
Attorneys: 	Stephen R. Nemelka, Salt Lake City, for petitioner
Richard S. Nemelka, Salt Lake City, pro se petitioner
Billy L. Walker, Barbara Townsend, Salt Lake City,
for respondents
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DURHAM, Chief Justice:
INTRODUCTION
¶1 	In this petition for extraordinary relief, attorney
Richard Nemelka challenges a disciplinary order issued by the
Ethics and Discipline Committee of the Utah Supreme Court
(Committee). 1 	A Committee screening panel determined that

1 (...continued)
of a final Ethics and Discipline Committee determination.
No. 20080527 	2
Nemelka violated five of the Rules of Professional Conduct in
connection with his representation of Tina Simmons and
recommended that he receive a public reprimand. 	Nemelka filed an
exception to the panel’s recommendation and requested a hearing.
At the exception hearing, Nemelka was not able to cross-examine
Ms. Simmons. 	Because rule 14-510(c) of this court’s Rules of
Professional Practice provides that a respondent has a right to
cross-examine the complainant at an exception hearing, we vacate
the panel chair’s ruling and remand for a new exception hearing.
BACKGROUND
¶2 	Ms. Simmons retained Nemelka to represent her in a
divorce action. 	Prior to resolution of the divorce, Nemelka
unilaterally terminated the attorney-client relationship. 	Soon
after, Ms. Simmons filed an initial complaint with the Utah State
Bar’s Office of Professional Conduct (OPC). 	Ms. Simmons alleged
that Nemelka acted unethically and otherwise committed misconduct
during the course of his representation of her. 	After conducting
an investigation into Ms. Simmons’s complaint, the OPC held a
screening panel hearing to determine whether Nemelka violated any
of the Rules of Professional Conduct.
¶3 	At the screening panel hearing, the OPC presented the
results of its investigation. 	Nemelka testified at the hearing,
but called no witnesses. 	Ms. Simmons also testified at the
hearing. 	After considering the evidence, the screening panel
concluded that Nemelka had violated five Rules of Professional
Conduct. 	The panel therefore recommended to the Committee Chair
that Nemelka receive a public reprimand.
¶4 	Pursuant to rule 14-510(c) of the Supreme Court Rules
of Professional Practice, Nemelka filed an exception to the
hearing panel’s recommendation and requested that a hearing be
held. 	At the exception hearing, Nemelka, invoking rule 14-
510(c), requested that he be allowed to cross-examine Ms. Simmons
so that he might expose inconsistencies in her testimony. 	Rule
14-510(c) provides that a complainant need not be present at an
exception hearing “unless called by the respondent as an adverse
witness for the purpose of cross-examination.” 	Nemelka
attempted to subpoena Ms. Simmons pursuant to rule 45 of the Utah
Rules of Civil Procedure but had been unsuccessful in procuring
her attendance. Nonetheless, the panel chair who presided over
the exception hearing denied Nemelka’s request. 	According to the
panel chair, “If Respondent had wished to cross-examine

2 On May 23, 2008, Nemelka also filed with this court a
Motion for Review of an Administrative Order pursuant to rule 14
of the Utah Rules of Appellate Procedure and a Motion to Stay.
The Motion for Review was denied on July 18, 2008. 	The Motion to
Stay was denied on July 21, 2008.
3 	No. 20080527
Complainant at this hearing, he should have made note of that
fact when he filed his Exception.”
¶5 	Nemelka also brought a witness, Clark Ward, to testify
at the exception hearing. 	Mr. Ward had not testified at the
screening panel hearing. 	According to the panel chair of the
exception hearing, Nemelka had the opportunity to have Mr. Ward
testify at the screening panel hearing, but chose not to.
Consequently, the panel chair denied Nemelka’s request to allow
the witness to testify.
¶6 	The panel chair determined that Nemelka failed to carry
his burden under rule 14-510(c) to show that the panel’s findings
were “unreasonable, unsupported by substantial evidence,
arbitrary, capricious and otherwise clearly erroneous.” 	The
panel chair therefore upheld the screening panel’s recommendation
of a public reprimand.
¶7 	Nemelka filed a Petition for Extraordinary Relief with
this court. 2 	We have original jurisdiction pursuant to article
VIII, section 4 of the Utah Constitution. 	See Utah Const. art.
VIII, § 4 (“The Supreme Court by rule shall govern the practice
of law, including . . . the conduct and discipline of persons
admitted to practice law.”).
STANDARD OF REVIEW
¶8 	Under rule 65B of the Utah Rules of Civil Procedure,
extraordinary relief may be available “[w]here no other plain,
speedy, and adequate remedy is available.” 	Utah R. Civ. P.
65B(a). 	“The decision to grant or deny a petition lies within
our discretion.” 	Bowen v. Utah State Bar, 2008 UT 5, ¶ 7, 177
P.3d 611.
¶9 	We review interpretations of our Rules of Professional
Practice for correctness. 	In re Welker, 2004 UT 83, ¶ 11, 100
P.3d 1197. 	We therefore afford no deference to a panel chair’s
interpretation of our rules. 	See State v. Gallegos, 2007 UT 81,
¶ 8, 171 P.3d 426.

3 As previously mentioned, the court has under advisement a
petition to amend rule 14-510. 	The analysis in this opinion is
predicated on the language of the current rule.
No. 20080527 	4
ANALYSIS
¶10 	Nemelka argues that the panel chair committed legal
error by refusing to allow him to cross-examine Ms. Simmons at
the exception hearing and by refusing to accept testimony from a
witness who had not testified at the screening panel hearing.
Nemelka also argues, in essence, that the Committee erred in
ordering a public reprimand. 	As discussed below, while we find
no error in the panel chair’s refusal to let Mr. Ward testify, we
hold that Nemelka was deprived of his right to cross-examine Ms.
Simmons at the exception hearing. 	Accordingly, we vacate and
remand for a new exception hearing.
I. 	THE PANEL CHAIR DID NOT ERR WHEN HE EXCLUDED MR. WARD’S
TESTIMONY FROM THE EXCEPTION HEARING
¶11 	Nemelka argues that the panel chair erred by
prohibiting Mr. Ward from testifying at the exception hearing.
We disagree.
¶12 	Resolving the issue of whether a witness who did not
testify at a screening panel hearing may be called at an
exception hearing requires us to construe the current versions of
rules 14-510(b)(2) and 14-510(c) of the Supreme Court Rules of
Professional Practice. 3 	We interpret these rules according to
their plain language. 	See Burns v. Boyden, 2006 UT 14, ¶ 19, 133
P.3d 370.
¶13 	Rule 14-510(b)(2) provides, “[T]he screening panel
shall . . . afford the respondent an opportunity to appear before
the screening panel and testify under oath, together with any
witnesses called by the respondent, and to present an oral
argument with respect to the informal complaint . . . .” 	Sup.
Ct. R. Prof’l Practice 14-510(b)(2). 	Rule 14-510(c) states,
If a request for a[n] [exception] hearing is
made, the Committee chair, or a screening
panel chair designated by the Committee
chair, shall . . . hear the matter . . . with
OPC counsel and the respondent having the
opportunity to be present. . . . 	The
complainant need not appear personally unless
called by the respondent as an adverse
witness for purposes of cross-examination.

4 That rule states: 	“An attorney admitted to practice in
Utah may issue and sign a subpoena as an officer of the court.”
Utah R. Civ. P. 45(a)(2).
5 	No. 20080527
Id. 14-510(c). 	Thus, rule 14-510(b)(2) affords a respondent the
opportunity to present witnesses at a screening panel hearing,
and rule 14-510(c) limits participation at an exception hearing
to the respondent, OPC counsel, and the complainant. 	The panel
chair correctly interpreted rule 14-510(c). 	Nemelka had the
opportunity to introduce the testimony of Mr. Ward at the
screening panel hearing but did not. 	He was not entitled to the
testimony at the exception hearing.
II. 	THE PANEL CHAIR ERRED IN DENYING NEMELKA THE OPPORTUNITY
TO CROSS-EXAMINE MS. SIMMONS AT THE EXCEPTION HEARING
¶14 	Nemelka also argues that the panel chair erroneously
interpreted rule 14-510(c) of our Rules of Professional Practice
to deprive him of the opportunity to cross-examine Ms. Simmons at
the exception hearing. 	In determining the procedural
requirements set forth in rule 14-510(c), we begin with the plain
language of the rule. 	See Miller v. Weaver, 2003 UT 12, ¶ 17, 66
P.3d 592. 	We interpret a rule’s provisions in harmony with other
rules in the same and related chapters. 	See id.
¶15 	Rule 14-510(c) of the Rules of Professional Practice
states: 	“The complainant need not appear personally [at an
exception hearing] unless called by the respondent as an adverse
witness for purposes of cross-examination.” 	Sup. Ct. R. Prof’l
Practice 14-510(c). 	Thus, the plain language of the rule allows
for cross-examination at an exception hearing. 	The rule is
ambiguous, however, as to what a respondent must do in order to
“call” the complainant as a witness.
¶16 	Indicative of the rule’s ambiguity, Nemelka, the panel
chair, and the OPC each interpreted the rule differently.
Nemelka interpreted the “calling” requirement as allowing him to
subpoena Ms. Simmons pursuant to rule 45 of the Utah Rules of
Civil Procedure. 4 	In fact, consistent with this interpretation,
Nemelka attempted to subpoena Ms. Simmons under this rule, but
was unsuccessful in procuring her attendance at the exception
hearing. 	The panel chair, for his part, interpreted rule 14-
510(c) to require that the respondent merely provide advance
notice of an intention to cross-examine the complainant at the
exception hearing. 	Under this interpretation, the panel chair
denied Nemelka the opportunity to cross-examine Ms. Simmons,
reasoning that “[i]f Respondent had wished to cross-examine
Complainant at this hearing, he should have made note of that

No. 20080527 	6
fact when he filed his Exception.” 	This reading finds little
support in the rules. 	As further evidence of the rule’s
ambiguity, OPC argues that Nemelka, upon making his request for
an exception hearing, had the option of informing either the OPC
or the Committee Chair that he wished to cross-examine Ms.
Simmons at the hearing. 	Although the OPC and the panel chair
both offer plausible readings of the rule, so did Nemelka. 	We
conclude, therefore, that rule 14-510(c) is ambiguous as to what
a respondent must do in order to properly “call” a complainant
for purposes of cross-examination at an exception hearing.
¶17 	To resolve the ambiguity, we interpret rule 14-510(c)
in harmony with other rules in chapter 14 of the Rules of
Professional Practice. 	After close review, we conclude that rule
14-510(c) should be read together with rule 14-503(g). 	Rule 14-
503(g) states,
Any party or a screening panel, for good
cause shown, may petition under seal the
district court for issuance of a subpoena,
subpoena duces tecum or any order allowing
discovery prior to the filing of a formal
complaint. 	Except for good cause shown, all
petitions under this rule shall require a
five-day written notice to the opposing party
prior to the issuance of an appropriate order
of subpoena.
Sup. Ct. R. Prof’l Practice 14-503(g). 	The subpoena requirement
of rule 14-503(g) is appropriate for the “calling” of a
complainant for purposes of cross-examination at a rule 14-510(c)
exception hearing. 	Hence, we hold that to satisfy the “calling”
requirement of rule 14-510(c), a respondent in an attorney
discipline proceeding wishing to cross-examine the complainant at
an exception hearing must follow the subpoena procedure of rule
14-503(g).
¶18 	Having clarified the procedure for calling a
complainant at an exception hearing, we must determine whether
Nemelka should be afforded an opportunity to follow it. 	Rule 14-
501(c) states that the applicable Rules of Professional Practice
“shall be construed so as to achieve substantial justice and
fairness in disciplinary matters.” 	Id. 14-501(c). 	In ensuring
substantial justice and fairness, balance must be maintained; the
seriousness of alleged violations of a lawyer’s professional
responsibility requires that a lawyer be afforded an opportunity
to defend his or her good professional standing. 	Rule 14-501(c)
thus tips the scales in Nemelka’s favor and requires that he be

7 	No. 20080527
given an opportunity to seek a subpoena requiring Ms. Simmons’s
attendance for purposes of cross-examination.
CONCLUSION
¶19 	We vacate the Committee’s Ruling on Exception to
Screening Panel Recommendation of Discipline and remand for a new
exception hearing. 	Consistent with this opinion, Nemelka will
have the opportunity to compel Ms. Simmons’s appearance at the
exception hearing by way of subpoena issued pursuant to rule 14-
503(g) and may therefore proceed under rule 14-510(c) to cross-
examine her.
¶20 	We do not address whether the Committee erred in
finding that Nemelka violated rules 1.6, 1.16(d), and 8.4(a) of
the Rules of Professional Conduct. 	Nor do we reach the propriety
of the Committee’s recommendation that Nemelka receive a public
reprimand. 	It would be premature to reach these issues prior to
the results of the new exception hearing.
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¶21 	Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.