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

513 P.3d 669

In the MATTER OF the DISCIPLINE OF Doug BERNACCHI, #10336

Office of Professional Conduct, Appellee,

v.Doug Bernacchi, Appellant.

No. 20210034

Supreme Court of Utah.

Heard: June 6, 2022

Filed June 23, 2022

Billy L. Walker, Emily A. Lee, and Barbara Townsend, Salt Lake City, for appellee

Doug Bernacchi, Charlottesville, Virginia, pro se appellant

Associate Chief Justice Lee authored the opinion of the Court, in which Justice Pearce, Justice Petersen, Judge Pohlman, and Judge Harris joined.

Having recused himself, Chief Justice Durrant does not participate herein; Court of Appeals Judge Ryan Harris sat.

Justice Diana Hagen became a member of the Court on May 18, 2022, after the oral argument panel was assigned, and accordingly did not participate; Court of Appeals Judge Jill Pohlman sat.

Associate Chief Justice Lee, opinion of the Court:

¶1 This is an appeal in an attorney discipline matter involving Doug Bernacchi. Bernacchi was suspended by the Indiana Supreme Court in October 2017. The Illinois Bar subsequently suspended him in a reciprocal disciplinary proceeding. It then notified the Utah Office of Professional Conduct (OPC) of the disciplinary actions against Bernacchi in Illinois and Indiana. And OPC initiated its own disciplinary action in response to the notice, asserting that Bernacchi was subject to reciprocal sanctions in Utah under rule 14-522 of the rules governing the State Bar. SUP. CT. R. PRO. PRAC. 14-522 (2019).¹

¶2 The district court entered a one-year reciprocal suspension against Bernacchi on two alternative grounds. It first concluded that Bernacchi had "defaulted" when he abruptly withdrew from a hearing on the parties’ cross-motions for summary judgment—striking Bernacchi's answer and pleadings and entering default judgment. In the alternative, it concluded that a reciprocal suspension was appropriate on the merits—upholding the basis of OPC's charges and rejecting a series of Bernacchi's grounds for opposing them.

¶3 On this appeal, Bernacchi challenges the district court's judgment in a rambling diatribe² that fails to engage with the district court's analysis on a number of points.³ The legal basis for Bernacchi's appeal is often lost in the mire of his caustic rhetoric, much of which is directed at relitigating the Indiana proceeding or at maligning various actors in the judicial system. These flourishes are hardly helpful to our task of rendering an evenhanded assessment of the legal issues presented for our decision. Yet that is still our job, and one we take seriously even when litigants sling mud at the court and call judges names⁴ instead of engaging in measured legal analysis.

¶4 As best we can tell, Bernacchi advances five grounds for challenging the imposition of a reciprocal sanction against him. He asserts: (1) that the district court lacked subject-matter jurisdiction; (2) that OPC lacked power to suspend him because he had already "resigned" his status as an attorney; (3) that reciprocal sanctions are improper due to an alleged failure of "due process" in the underlying Indiana proceedings; (4) that OPC's charges are time-barred; and (5) that the district court had no basis for entering default judgment, particularly in the absence of an opportunity for Bernacchi to brief that question.

¶5 OPC vaguely asserts that the district court "was correct in entering reciprocal discipline against Mr. Bernacchi." But it presents no legal analysis of a basis for default judgment under our rules of civil procedure, and offers no response to Bernacchi's assertion that the court erred in entering default without first giving Bernacchi an opportunity to be heard on the matter. Instead, OPC defends the district court's judgment on the merits—offering its position on each of the first four grounds listed above.

¶6 We affirm under the standard of review that governs our decisions in attorney discipline cases. See Utah State Bar v. Lundgren (In re Discipline of Lundgren) , 2015 UT 58, ¶ 9, 355 P.3d 984 (declaring that this court "review[s] district court findings in attorney discipline matters with less deference" than it affords in other cases, and "retain[s] the right to draw different inferences from the facts in order to make an independent determination of the correctness of the discipline the district court imposed" (citations and internal quotation marks omitted)). We uphold the jurisdiction of the district court and the OPC, conclude that Bernacchi has failed to show that there was a due process problem sufficient to defeat the imposition of a reciprocal sanction, and hold that his time-bar defense was forfeited because he did not preserve it in the district court. In so doing, we identify potential concerns with the imposition of a default judgment on this record, but conclude that any error was harmless in light of our agreement with the district court's analysis of the merits.

I

¶7 Bernacchi asserts that the district court lacked subject-matter jurisdiction over an attorney discipline matter that is committed to the jurisdiction of this court under the Utah Constitution. He then argues that OPC lacked the authority to prosecute him under rule 14-506 of our rules of professional practice. He also contends that the Indiana proceeding was an improper basis for a reciprocal sanction under rule 14-522(d) in light of certain "due process" defects in the Indiana action. And he claims that OPC's charges against him are time-barred under rule 14-529 (2019). We reject each of these challenges to the district court's order.

A

¶8 Bernacchi's challenge to the district court's jurisdiction is rambling and confusing. But it seems to start with the assertion that this court has constitutionally established jurisdiction to "govern the practice of law." UTAH CONST. art. VIII, § 4. And it appears to pivot to the proposition that neither the legislature nor this court is "permitted" to confer jurisdiction on the district court. Among other assertions, Bernacchi claims that the legislature ran afoul of article VIII, section 4 when it enacted Utah Code section 78A-5-102(3) —a provision that recognizes that "[t]he district court has jurisdiction over matters of lawyer discipline consistent with the rules of the Supreme Court."

¶9 Bernacchi cites Barnard v. Utah State Bar , 857 P.2d 917 (Utah 1993), for the proposition that this court's jurisdiction over attorney discipline matters is exclusive—and preclusive of the jurisdiction of the district court. And because he claims that he had resigned or was administratively suspended by the Utah Bar before OPC sought a reciprocal sanction against him, he also asserts that there is no jurisdiction in an attorney discipline matter over a non-attorney.

¶10 None of these arguments holds water. First, article VIII, section 4 admittedly confers on this court the duty to "govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law." UTAH CONST. art. VIII, § 4. But the legislature has not stripped this court of jurisdiction, or in any way run afoul of this provision. In enacting Utah Code section 78A-5-102(3), the legislature was not abrogating the supreme court's constitutional jurisdiction over attorney discipline cases. It was just acknowledging this court's rules designating the district court as an initial forum for fact-finding and imposition of discipline, if necessary. See UTAH CODE § 78A-5-102(3) (stating that "[t]he district court has jurisdiction over matters of lawyer discipline consistent with the rules of the Supreme Court " (emphasis added)); SUP. CT. R. PRO. PRAC. 14-511(a), (g) (2019), amended and renumbered as 11-536 (December 15, 2020) (providing for initial district court jurisdiction over attorney discipline matters, subject to our appellate review).

¶11 The Barnard case is not to the contrary. In Barnard , we were asked to decide whether the district courts had jurisdiction over a declaratory judgment action aimed at establishing that an attorney's use of paralegals did not constitute the unauthorized practice of law. Barnard , 857 P.2d at 918. The case arose prior to our adoption of a rule delegating authority to the district courts. Id. at 919 n.5. And the majority in Barnard held that the district courts lacked subject-matter jurisdiction to decide a matter that was committed to the exclusive jurisdiction of the supreme court at the time that case was filed. Id.

¶12 Our court adopted the new rule during the pendency of the Barnard case. Id. at 919 n.5. And that development defeats Bernacchi's reliance on this decision. The holding in Barnard is distinguishable on its face. It is based on a legal regime that prevailed prior to our adoption of a rule designating the district courts as an initial forum for attorney discipline matters. Bernacchi fails to address or even acknowledge that point. And his reliance on Barnard fails on this basis.

¶13 Bernacchi invokes the dissent in Barnard in support of an assertion that this court lacks the power to involve the district courts in attorney discipline. In dissent, Justice Stewart asserted that the "language" of article VIII did not "confer[ ]" on this court "the power either to control the jurisdiction of district courts or to confer jurisdiction on district courts." Barnard , 857 P.2d at 921 (Stewart, J., dissenting). "That power," in Stewart's view, "lies within the province of the Legislature," id. —a point the majority addressed only by noting that the rule delegating authority to the district courts was not in effect at the time the case was filed, and thus "ha[d] no bearing on the outcome." See id. at 919 n.5.

¶14 Bernacchi does not develop Justice Stewart's point in his briefing. And the point is difficult to reconcile with the text of the Utah Constitution. Article VIII, section 4 confers broad power on this court to "govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted...