Utah Supreme Court

Can attorneys cross-examine complainants in disciplinary exception hearings? Nemelka v. Ethics and Discipline Committee Explained

2009 UT 33
No. 20080527
June 12, 2009
Vacated and Remanded

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.

Original Opinion

Link to Original Case

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.

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