Utah Supreme Court
Can attorneys cross-examine complainants in disciplinary exception hearings? Nemelka v. Ethics and Discipline Committee Explained
Summary
Attorney Richard Nemelka challenged a disciplinary order after being denied the opportunity to cross-examine his former client at an exception hearing. The Ethics and Discipline Committee had found violations of professional conduct rules and recommended a public reprimand. The panel chair denied Nemelka’s request to cross-examine the complainant, ruling he should have provided advance notice when filing his exception.
Analysis
In attorney disciplinary proceedings, the right to cross-examination at exception hearings has been clarified by the Utah Supreme Court in a significant procedural ruling.
Background and Facts
Attorney Richard Nemelka faced disciplinary action after his former client, Tina Simmons, filed a complaint alleging professional misconduct during divorce representation. After a screening panel found violations of five Rules of Professional Conduct and recommended a public reprimand, Nemelka filed an exception and requested a hearing. At the exception hearing, Nemelka sought to cross-examine Simmons to expose inconsistencies in her testimony, but the panel chair denied this request, stating Nemelka should have provided advance notice when filing his exception.
Key Legal Issues
The central issue was interpreting rule 14-510(c) of the Rules of Professional Practice, which states that complainants need not appear at exception hearings “unless called by the respondent as an adverse witness for purposes of cross-examination.” The rule’s ambiguity created conflicting interpretations regarding what constitutes properly “calling” a complainant for cross-examination.
Court’s Analysis and Holding
The Utah Supreme Court found rule 14-510(c) ambiguous and resolved the uncertainty by reading it in harmony with rule 14-503(g), which governs subpoena procedures in disciplinary proceedings. The court held that respondents must follow rule 14-503(g)’s subpoena procedure to compel complainant attendance for cross-examination at exception hearings. Applying rule 14-501(c)’s mandate for “substantial justice and fairness,” the court vacated the disciplinary ruling and remanded for a new exception hearing.
Practice Implications
This decision establishes clear procedural requirements for cross-examination rights in attorney disciplinary proceedings. Practitioners facing disciplinary action must now follow specific subpoena procedures under rule 14-503(g) to secure complainant testimony at exception hearings. The ruling reinforces due process protections while providing certainty about procedural requirements in professional discipline matters.
Case Details
Case Name
Nemelka v. Ethics and Discipline Committee
Citation
2009 UT 33
Court
Utah Supreme Court
Case Number
No. 20080527
Date Decided
June 12, 2009
Outcome
Vacated and Remanded
Holding
A respondent attorney in a disciplinary proceeding has the right to cross-examine the complainant at an exception hearing by following the subpoena procedure under rule 14-503(g).
Standard of Review
Correctness for interpretations of Rules of Professional Practice; discretion for extraordinary relief petitions
Practice Tip
When requesting an exception hearing in attorney disciplinary proceedings, attorneys must follow rule 14-503(g) subpoena procedures to compel complainant attendance for cross-examination.
Need Appellate Counsel?
Lotus Appellate Law handles appeals before the Utah Court of Appeals, Utah Supreme Court, California Court of Appeal, and the United States Court of Appeals for the Tenth Circuit.
Related Court Opinions
About these Decision Summaries
Lotus Appellate Law publishes these summaries to keep practitioners informed — not as legal advice. Each case turns on its own facts. If a decision here is relevant to your matter, we’re happy to discuss it.