Leavitt v. OPC: Utah Supreme Court Equates “Reasonably Should Know” with Negligence Under Rule 3.6 and Affirms Public Reprimand for Prejudicial Prosecutorial Press Conference

Introduction

This commentary analyzes the Utah Supreme Court’s decision in Leavitt v. Office of Professional Conduct, 2025 UT 46, a disciplinary proceeding arising from statements made by David O. Leavitt, then the elected Utah County Attorney, during a press conference announcing his office’s intent to seek the death penalty in a high-profile double homicide prosecution (State v. Jerrod William Baum). The case squarely addresses the boundary between legitimate prosecutorial transparency and improper trial publicity under Utah Rule of Professional Conduct 3.6.

At the press conference, Leavitt discussed the decision to pursue capital punishment but also commented on the defendant’s character, vouched for the credibility of the State’s witness, suggested belief in the defendant’s guilt, and referenced “a lot of evidence that the jury will never hear.” The District Court in the underlying criminal case took remedial steps (including expanding the jury venire) and disqualified Leavitt from further participation. The Office of Professional Conduct (OPC) subsequently pursued professional discipline. A Screening Panel of the Ethics and Discipline Committee recommended a public reprimand; a Vice Chair adopted that recommendation. Leavitt appealed to the Utah Supreme Court, arguing both the lack of substantial evidence for a Rule 3.6 violation and misapplication of sanction rules.

The Utah Supreme Court affirms: (1) there is substantial evidence that Leavitt violated Rule 3.6 by making statements he knew or reasonably should have known would have a substantial likelihood of materially prejudicing the adjudicative proceeding; and (2) a public reprimand is the appropriate sanction. The Court offers significant clarifications: it maps Rule 3.6’s “reasonably should know” mental state to “negligence” for sanction purposes; emphasizes that “injury to the legal system” and “interference with a legal proceeding” can support discipline without proof of actual juror prejudice; and underscores that prosecutors’ public statements carry enhanced risks of prejudice due to the authority of their office.

Summary of the Opinion

• Rule 3.6 violation: The Court holds that at least three of Leavitt’s statements—(i) calling the defendant “the sort of individual from whom society ought to be protected,” (ii) vouching that “this witness is credible,” and (iii) expressing belief in guilt based on evidence the jury would not hear—had a substantial likelihood of materially prejudicing the Baum proceeding and were made in circumstances where Leavitt reasonably should have known as much.
• Context matters: The comments were made at a live-streamed press conference, in a high-profile capital case, to a media audience, by the county’s chief prosecutor—factors that elevated the risk of prejudice.
• Mental state mapping: The Court clarifies that under Utah’s sanction framework, “reasonably should know” equates to a negligent mental state, while “knowing” requires actual knowledge.
• Injury and interference: The statements caused interference with the proceeding (additional motions, hearings, and remedial juror-selection measures) and injury to the legal system, even if the trial itself was not ultimately unfair.
• Sanction: With at least negligence and injury/interference, the presumptive sanction is a public reprimand. No aggravating or mitigating factors justified departure from that presumptive level.
• Procedural note: The Court flags, but does not decide, whether the sanction rules in effect at the time of the conduct or at the time of the disciplinary disposition govern in attorney discipline cases.

Analysis

Precedents Cited and Their Influence

• In re Discipline of Reneer, 2014 UT 18: Establishes Utah’s substantial evidence standard with the Court’s retained prerogative in discipline cases to draw its own inferences from basic facts given its constitutional oversight of attorney regulation. This standard frames the Court’s review of whether the Committee’s Rule 3.6 finding is supported by substantial evidence.
• In re Discipline of Kinikini, 2023 UT 17: Confirms the Utah Supreme Court’s constitutional authority to govern the practice of law and attorney discipline, reinforcing its supervisory role on both violation and sanction.
• Nemelka v. Ethics & Discipline Comm. of Utah Sup. Ct., 2009 UT 33, and Johnson v. Office of Professional Conduct, 2014 UT 57: The Court affords no deference to the Committee’s interpretation of the Rules of Professional Practice and independently determines appropriate discipline.
• In re Discipline of Brussow, 2012 UT 53: Reiterates the Court’s duty to independently assess the correctness of sanctions imposed for rule violations.
• In re Discipline of Bates, 2017 UT 11; In re Ince, 957 P.2d 1233 (Utah 1998): Articulate Utah’s two-step sanction methodology (presumptive sanction based on mental state and injury/interference; then consider aggravating/mitigating factors) and caution that departures require “unusual or substantial” factors.
• State v. Saunders, 1999 UT 59: Highlights prosecutors’ heightened duty to seek justice and protect constitutional rights, including the presumption of innocence—principles the Court invokes to evaluate Leavitt’s public comments.
• In re Santana, 2021 UT 39: Confirms that mental state can be established with circumstantial evidence—relevant to inferring Leavitt’s awareness or what he reasonably should have known.
• Att’y Grievance Comm’n of Md. v. Gansler, 835 A.2d 548 (Md. App. Ct. 2003) and In re Brizzi, 962 N.E.2d 1240 (Ind. 2012): Persuasive authorities underscoring that prosecutors’ statements carry governmental authority and are especially likely to prejudice proceedings; timing relative to trial is relevant, but not dispositive.
• State v. Clark, 2011 UT 23; Weaver v. Graham, 450 U.S. 24 (1981): Cited in a footnoted discussion suggesting a potential framework for determining whether to apply sanction rules in effect at the time of conduct or at the time of discipline. The Court flags but does not resolve the issue here.

Legal Reasoning

1) The Rule 3.6 Violation

Rule 3.6(a) prohibits a lawyer participating in an investigation or litigation from making an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and will have a substantial likelihood of materially prejudicing an adjudicative proceeding.

The Court focuses on three statements:

• Character remark: The defendant was “the sort of individual from whom society ought to be protected.” This is a prohibited comment on the defendant’s character, identified in comment 5(i) as “more likely than not to have a material prejudicial effect.”
• Witness vouching: “This witness is credible,” and “we believe this witness.” Comment 5(i) likewise flags credibility assessments as high-risk.
• Opinion on guilt based on undisclosed evidence: Leavitt asserted belief that “this man committed these murders” and said that belief was based “on a lot of evidence that the jury will never hear.” Comment 5(iv) warns against opinions on guilt; invoking evidence the jury will not hear heightens prejudice.

Context amplifies the risk: - The case was a widely publicized capital prosecution; comment 6 to Rule 3.6 recognizes criminal jury trials as most sensitive to extrajudicial speech. - The statements were made at a live-streamed press conference, with press present, and the video was posted to a public government Facebook page—ensuring broad dissemination within the jury pool. - The speaker was the County Attorney; as Gansler and Brizzi emphasize, a prosecutor’s words carry the authority of the state and are especially persuasive to the public.

Timing was not dispositive. Even though trial did not immediately follow, the Court emphasized that distance to trial does not neutralize the prejudicial likelihood—particularly where the trial court later needed to expand the venire and undertake careful voir dire, confirming interference with the proceeding.

2) Mental State: “Reasonably Should Know” and Negligence

The Court draws an important doctrinal line between the mental state needed to establish a Rule 3.6 violation and how mental state affects the sanction:

• Rule 3.6 violation: It suffices that the lawyer “knows or reasonably should know” of the substantial likelihood of material prejudice. “Knows” denotes actual knowledge; “reasonably should know” is judged against a reasonable, prudent, and competent lawyer.
• Sanction framework: The Rules of Professional Practice distinguish “knowing” misconduct (actual awareness) from “negligence” (a failure to heed a substantial risk, deviating from the reasonable-lawyer standard). The Court expressly equates “reasonably should have known” with negligence in the sanction analysis and reserves “knowing” for actual knowledge.

Applying these standards, the Court concludes Leavitt was at least negligent. He had been warned by his deputy about press-conference risks; Rule 3.6 comment 5 expressly flags the kinds of statements he made; and he made them in a high-risk context. Even crediting Leavitt’s intent to promote transparency, a reasonable prosecutor would not have vouched for a witness, opined on guilt, or invoked undisclosed evidence in this setting.

3) Injury to the Legal System and Interference with the Proceeding

The Court underscores that discipline does not require proof of actual juror prejudice or a tainted trial. Here, material interference included:

• A sua sponte court order to constrain extrajudicial statements under Rule 3.6;
• Additional litigation (briefing, evidentiary hearing, order to show cause), including testimony from Leavitt;
• Expanded jury venire and focused questionnaires to neutralize pretrial publicity; and
• Disqualification of Leavitt from further participation in the case.

Injury to the legal system arose because a chief prosecutor’s public vouching and opinion of guilt risks undermining the presumption of innocence and public confidence in the fairness of proceedings. The Court recognizes Leavitt’s good-faith aims but emphasizes prosecutors’ heightened duty to protect the integrity of the process.

4) Sanction Selection: Presumptive Level and (No) Departure

Under the 2019 sanction rules (applied by the Court because neither party contested their applicability), the process is two-step:

1. Determine the presumptive sanction based on mental state and injury/interference.
   • Negligence + injury/interference = public reprimand (Rule 14-605(c)(1) (2019)).
   • Negligence + little/no injury/interference = admonition (Rule 14-605(d)(1) (2019)).
   • Knowing + injury/interference or potential injury/interference = suspension (Rule 14-605(b)(1) (2019)).
2. Adjust for aggravating/mitigating factors only if unusual or substantial.
   • Mitigating: no prior discipline; no dishonest or selfish motive; prompt steps to mitigate (walled off, removed video, adjusted press practices); good standing in the bar.
   • Aggravating: substantial experience, including as a prosecutor; position of public trust.
   • Outcome: No factor (alone or in combination) was so unusual or substantial as to warrant departure. The proper final sanction remains a public reprimand.

The Court also corrects the Committee’s methodology in one respect: aggravating and mitigating factors should not be used to alter the mental state finding; they can only adjust the sanction up or down from the presumptive level.

5) A Note on Which Sanction Rules Apply

While the Committee and parties applied the 2019/2020 sanction rules (the time of the conduct), the Court flags but does not resolve whether sanction rules in effect at the time of the disciplinary disposition (2023) should apply absent an ex post facto-like increase in penalty. The issue remains open in Utah discipline jurisprudence.

Impact and Prospective Significance

• Clearer mental state mapping:
  • For violations requiring that an attorney “reasonably should know,” the sanction analysis will treat that as negligence, not knowledge.
  • OPC and respondents can calibrate arguments accordingly, and Committees should avoid conflating mental state with aggravating/mitigating factors.
• Prosecutorial communications:
  • Prosecutors’ public statements receive heightened scrutiny because they carry the government’s imprimatur.
  • Opinions on guilt; credibility vouching; comments about character, reputation, or prior bad acts; and references to evidence the jury will not hear are especially risky under Rule 3.6 comment 5—particularly in criminal jury trials (comment 6).
  • Transparency is not a defense to statements that risk tainting the jury pool; timing before trial helps but is not dispositive.
• Proof of harm:
  • Actual juror prejudice is not required to sustain discipline. Interference with proceedings (orders, motions, hearings, expanded venire) and systemic injury (undermining presumption of innocence) are sufficient.
• Sanction calibration:
  • Where negligence plus interference/systemic injury is shown, a public reprimand is the likely presumptive sanction; departures require unusual or substantial countervailing factors.
• Procedural choice-of-law for sanction rules:
  • The Court’s footnoted discussion signals that future cases may resolve whether sanction rules at the time of discipline apply, absent increased punishment concerns. Practitioners should brief this choice-of-law point when relevant.

Complex Concepts Simplified

• Rule 3.6 (Trial Publicity):
  • Prohibits lawyers involved in a case from making extrajudicial public statements that they know or should know will be widely disseminated and are substantially likely to materially prejudice the proceeding.
  • Comment 5 lists topics “more likely than not” to be prejudicial: character/reputation of a party or witness; credibility assessments; admissions/confessions; opinions on guilt/innocence; etc.
  • Comment 6 notes that criminal jury trials are “most sensitive” to such speech.
• “Substantial likelihood of materially prejudicing”:
  • Not a mere possibility; there must be a meaningful risk that the statement will affect the fairness or integrity of the proceeding (e.g., taint the jury pool or complicate trial management).
• “Knows” vs. “Reasonably should know”:
  • “Knows” = actual knowledge (can be inferred from circumstances).
  • “Reasonably should know” = a reasonable, prudent, and competent lawyer would recognize the risk; for sanction purposes, this equates to negligence.
• Sanction types (2019 framework):
  • Admonition: Appropriate for negligent misconduct with little/no injury or interference.
  • Public reprimand: Appropriate for negligent misconduct causing injury to a party, the public, the legal system, or interference with a proceeding.
  • Suspension: Appropriate for knowing misconduct with injury or potential injury, or with interference or potential interference.
• Aggravating vs. mitigating factors:
  • Considered only after the presumptive sanction is identified; they can move the sanction up or down but cannot change the mental state determination.
  • Examples: prior discipline (aggravating), experience/position of trust (aggravating), remedial steps, cooperation, lack of selfish motive (mitigating).
• “Injury to the legal system”:
  • Harms public confidence or the system’s integrity (e.g., undermining presumption of innocence), even without proof of an unfair trial.

Practical Guidance for Prosecutors and Public Agencies

• Before speaking:
  • Pre-clear remarks with legal leadership; prepare a written statement; avoid Q&A that invites risky topics.
  • Exclude commentary on character, credibility, and guilt; never reference evidence the jury will not hear.
  • Use neutral, procedural descriptions (e.g., charges filed, status of proceedings) and cautionary disclaimers, but remember disclaimers do not immunize Rule 3.6 violations.
• During a press event:
  • Redirect questions about evidence, credibility, or guilt to the courtroom process (“We will present admissible evidence at trial; we cannot comment on specifics”).
  • Avoid inflammatory language or analogies that could inflame public sentiment.
• After an error:
  • Act promptly: remove offending content, wall off conflicted personnel, and adopt remedial communication protocols.
  • Document steps taken to mitigate any prejudice and to prevent recurrence.

Conclusion

Leavitt v. OPC offers consequential guidance on trial publicity in Utah. The Supreme Court confirms that prosecutors’ extrajudicial statements—especially those opining on guilt, vouching for witness credibility, or commenting on a defendant’s character—pose a substantial risk of material prejudice in criminal jury trials and can warrant discipline even when trial is not imminent and even absent proof of actual juror prejudice. The decision provides a clean doctrinal bridge between the violation standard and the sanction framework: “reasonably should know” maps to negligence for sanction purposes, while “knowing” requires actual awareness.

By anchoring the sanction at a public reprimand for negligent misconduct that interfered with the proceeding and injured the legal system, the Court underscores the special role of prosecutors as guardians of due process and the presumption of innocence. At the same time, the Court recognizes prosecutors’ legitimate interest in transparency, instructing that it must be pursued within the guardrails of Rule 3.6. Finally, the opinion improves the clarity of Utah’s sanction methodology and flags an open, potentially recurring issue about which set of sanction rules applies in attorney discipline cases. Together, these rulings will shape the ethical contours of prosecutorial communications in Utah and reinforce public confidence in the administration of justice.