Bowen v. Utah State Bar

2008 UT 5
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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Travis L. Bowen, 	No. 20060950
Petitioner,
v.
F I L E D
Utah State Bar,
Respondent. 	February 1, 2008
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Original Proceeding in this Court.
Attorneys: 	Gregory G. Skordas, Rebecca C. Hyde, Salt Lake City,
for petitioner
Billy L. Walker, Salt Lake City, for respondent
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DURHAM, Chief Justice:
INTRODUCTION
¶1 	Travis Bowen filed this petition for extraordinary
relief requesting a declaratory judgment to void an Order of
Public Reprimand issued by the Office of Professional Conduct,
order a retraction of the public report of the reprimand printed
in the Utah Bar Journal, and remand this matter to the Utah Bar
with instructions to proceed by way of formal complaint in the
district court. 	Mr. Bowen contends that a member of the
screening panel of the Utah Supreme Court’s Ethics and Discipline
Committee had a conflict of interest in the proceedings against
him and that the findings and actions of the committee should
therefore be vacated. 	We decline to grant relief.
BACKGROUND
¶2 	In January 2006, Travis Bowen appeared for hearings
regarding informal complaints before a screening panel of the
Utah Supreme Court’s Ethics and Discipline Committee. 	The
screening panel consisted of four members, including Christine
Greenwood, a named partner of the law firm Magleby & Greenwood.
At the commencement of the hearings, Ms. Greenwood identified
herself and the name of the firm to which she belonged. 	During
that same period, James Magleby, the other named partner of
Magleby & Greenwood, was involved in a civil lawsuit against

1 The record does not reflect whether Ms. Greenwood herself
was actually aware of the conflict; counsel for the Office of
Professional Conduct asserted both in briefing and at oral
argument that she was not.
No. 20060950 	2
Mr. Bowen in the district court. 	Neither Mr. Bowen nor his
counsel objected to Ms. Greenwood sitting as a member of the
screening panel. 1
¶3 	On March 1, 2006, the screening panel made findings of
facts and conclusions of law determining that Mr. Bowen had
violated the Rules of Professional Conduct and recommended that
he receive a public reprimand. 	In response, Mr. Bowen filed an
exception to the screening panel’s recommendation of discipline,
and, on June 16, 2006, the chair of the Ethics and Discipline
Committee heard Mr. Bowen’s exceptions. 	Mr. Bowen still did not
object to Ms. Greenwood’s participation on the screening panel.
On June 30, 2006, the chair denied Mr. Bowen’s exceptions and
issued an Order of Public Reprimand. 	Subsequently, the Office of
Professional Conduct (the OPC) prepared and submitted for
publication Mr. Bowen’s public reprimand to the Utah Bar Journal.
¶4 	Prior to publication, Mr. Bowen sought judicial
intervention from the district court on July 20, 2006, requesting
an order vacating the issuance of the public reprimand and an
injunction with respect to the publication of the reprimand. 	On
August 4, 2006, he filed a Motion for Preliminary Injunction to
halt the publication of the public reprimand. 	The OPC responded
with a Motion to Dismiss for lack of subject matter jurisdiction
and a Memorandum in Opposition to the Motion for Preliminary
Injunction. 	In none of Mr. Bowen’s submissions did he object to
Ms. Greenwood’s participation on the screening panel.
¶5 	Prior to a ruling by the court on Mr. Bowen’s requests
for relief, notice of the reprimand previously submitted by the
OPC appeared in the September-October edition of the Utah Bar
Journal. 	A few days after the publication, James Magleby
attempted to use it as evidence against Mr. Bowen in the ongoing
civil lawsuit. 	On October 13, 2006, four days before the court
issued its Memorandum Decision and Order, Mr. Bowen submitted a
Notice of Withdrawal. 	In this notice, Mr. Bowen noted that the
OPC had published the reprimand before the district court decided
the jurisdictional issues and that he sought the withdrawal of
his action so he could seek review by this court of the OPC’s
action. 	In his Notice of Withdrawal, Mr. Bowen raised, for the
first time, questions concerning Ms. Greenwood’s participation on
the screening panel.

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¶6 	Mr. Bowen now seeks review of the findings of the
screening panel and the chair’s order of discipline on the basis
that his due process rights were violated by Ms. Greenwood’s
participation on the screening panel, which he claims constituted
a conflict of interest creating bias.
STANDARD OF REVIEW
¶7 	Petitions for extraordinary relief are governed by rule
65B of the Utah Rules of Civil Procedure, which provides that
extraordinary relief may be available “where 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. 	State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682.
Lawyer discipline cases, such as this, come before us as a matter
of original jurisdiction. 	In re Discipline of Harding, 2004 UT
100, ¶ 11, 104 P.3d 1220.
ANALYSIS
I. 	THE WRIT FOR EXTRAORDINARY RELIEF IS PROPER
¶8 	The disciplinary action against Mr. Bowen arose from an
informal complaint governed by rule 14-510 of the Supreme Court
Rules of Professional Practice. 	The Rules Governing the Utah
State Bar are found in chapter 14 of the Supreme Court Rules of
Professional Practice. 	Article 5 of chapter 14, titled “Lawyer
Discipline and Disability,” contains the rules governing
disciplinary actions against lawyers.
¶9 	According to article 5, a disciplinary proceeding may
be initiated against any member of the Bar by filing an informal
complaint with the Bar. 	Sup. Ct. R. of Prof’l Practice, 14-
510(a)(1). 	Following a preliminary investigation by OPC’s
counsel to ascertain whether the informal complaint warrants
further action, the OPC may, among other things, refer the
complaint to a screening panel for additional review. 	Id. at 14-
510(a)(4)-(5). 	The screening panel conducts a hearing to
determine whether to recommend further informal action to the
Ethics and Discipline Committee Chair to resolve the matter or to
initiate a formal complaint against the respondent in district
court. 	Id. at 14-510(b)(5).
¶10 	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

No. 20060950 	4
the order in this case. 	See Utah Sup. Ct. R. of Prof’l Practice,
14-510, -511, -512. 	Therefore, because there is currently no
established means for judicial review available to Mr. Bowen,
this court finds that his petition for extraordinary relief was
proper. 	We are still free, however, to exercise discretion in
deciding whether the facts warrant granting the relief sought.
State v. Barrett, 2005 UT 88, ¶ 24. 	We turn now to a
consideration of Mr. Bowen’s claims.
II. 	MR. BOWEN WAIVED HIS CLAIM FOR RELIEF
¶11 	Mr. Bowen first challenged Ms. Greenwood’s
participation more than eight months after his January 2006
screening panel hearing and nearly four months after the Ethics
and Discipline Committee Chair’s June 2006 Order of Public
Reprimand. 	Mr. Bowen justifies his delay by explaining that he
did not become aware of the conflict until sometime in October
2006.
¶12 	While there is no formal mechanism for recusal of
screening panel members, participating members should be
conscientious in identifying and disclosing conflicts of
interest, and should recuse themselves when such conflicts exist.
A lawyer under investigation by the OPC must also exercise
diligence. 	In many cases such as this, the lawyer being
investigated is in a better position to know or to discover
whether a conflict exists. 	Lawyers are, of course, generally
aware of those who oppose them in litigation, particularly when
they are parties, not merely counsel, in that litigation. 	A
panel member, on the other hand, may not be aware of cases that
other attorneys in her firm are involved with that might involve
the lawyer under investigation. 	Thus, the lawyer subject to
discipline should make reasonable efforts to discover and raise
concerns over possible conflicts and to raise the issue promptly.
¶13 	In this case, Ms. Greenwood properly identified the
name of her firm and was apparently unaware of her partner’s
litigation involving Mr. Bowen. 	We are unable to understand why
Mr. Bowen, who was currently being sued by James Magleby, failed
to inquire whether the Magleby who was Ms. Greenwood’s partner
was the same individual, and indeed apparently failed to make any
such inquiry for more than eight months.
¶14 	In instances where disciplinary actions are made
through the formal complaint process, a dissatisfied lawyer has
thirty days to petition for review pursuant to rule 14-511 of the
Supreme Court Rules of Professional Practice and rule 4 of the
Rules of Appellate Procedure. 	Similarly, appeals from other

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disciplinary proceedings, such as a character and fitness
evaluation, a bar examination appeal, or a denial of a bar
application must also be made within thirty days. 	We are not
persuaded that a lawyer involved in an informal complaint
proceeding is entitled to greater latitude in seeking review than
are those involved in formal complaint or other disciplinary
proceedings. 	We conclude that Mr. Bowen’s delay in raising the
issue of Ms. Greenwood’s conflict was not reasonable and
constituted waiver of his claim for relief. 	Although Mr. Bowen
testified that he was not aware of the conflict at the time of
the hearing, we believe that he was, in fact, put on notice of a
potential conflict by Ms. Greenwood’s identification of her firm
and should have exercised the due diligence necessary to discover
the conflict. 	Therefore, we hold that Mr. Bowen is not entitled
to relief. 	The petition is denied.
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¶15 	Associate Chief Justice Wilkins, Justice Durrant,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.