This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 32

IN THE

SUPREME COURT OF THE STATE OF UTAH

In the matter of the Discipline of

DONALD D. GILBERT, JR.

DONALD D. GILBERT, JR.,

Appellant,

v.

UTAH STATE BAR,

Appellee.

No. 20150628

Filed July 20, 2016

On Direct Appeal

Fourth District, Provo

The Honorable Fred D. Howard

No. 100401646

Attorneys:

Lynn O. Poulson, Lehi, for appellant

Adam C. Bevis, Salt Lake City, for appellee

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:

¶1 Donald D. Gilbert, Jr. appeals the district court’s order 

concluding that he violated the Utah Rules of Professional Conduct 

and disbarring him from the practice of law. We affirm the district 

court’s order and conclude that disbarment is an appropriate 

sanction.
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

2

BACKGROUND

¶2 Donald D. Gilbert, Jr. represented the Utah Down Syndrome 

Association (the Association) and a number of its founders in a 

dispute with the Utah Down Syndrome Foundation (the 

Foundation). The Foundation is a Utah nonprofit corporation that 

operates, in part, through fourteen county chapters. The chapters are 

run mainly by volunteers who help the Foundation achieve its goals 

of advocating for and providing support to members of the 

community with Down syndrome.

¶3 In 2006, a number of the board members of the Salt Lake and 

Utah County chapters (the Chapters) became concerned with the 

Foundation’s operations. These board members questioned whether 

the Foundation was complying with its governing documents and 

Utah law. They hired Gilbert to consult with them on their corporate 

governance questions. Eventually, a number of the Chapters’ 

officers, while still serving in their representative capacities for the 

Chapters, formed the Association as a purportedly separate entity 

with charitable purposes similar to the Foundation’s.

¶4 The Foundation responded by sending letters to six of the

Chapters’ officers, removing them from their positions within the 

Chapters. The dispute between the Foundation and the officers

eventually boiled over into litigation. Gilbert represented the 

Association, the Chapters, and certain members of the Chapters’ 

boards of directors in two lawsuits.

¶5 In the first suit, two of the Chapters’ board members, Eric 

Holman and Melanie Taylor, retained Gilbert to file derivative 

claims against the Foundation’s board of directors and officers on 

behalf of the Foundation and the Chapters. Gilbert’s clients sought a 

declaratory judgment that the president of the Foundation and other 

officers lacked the legal authority to act on behalf of the Foundation. 

The district court granted summary judgment to the Foundation’s 

officers, determining that Holman and Taylor did not have standing

to file suit on the Foundation’s behalf.

¶6 In the second action, the Foundation sought an accounting 

and the return of funds that the Foundation claimed the 

Association’s founders had taken. The Foundation named Holman, 

Taylor, and five additional board members of the Chapters (the 

Individual Defendants) in the suit. The Foundation also named the 

Association as a defendant. The Foundation alleged that the 

Individual Defendants had acted unlawfully by continuing to access 
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Opinion of the Court

3

the Chapters’ bank accounts, which the Foundation claimed were in 

actuality the Foundation’s bank accounts, after the Individual 

Defendants had been removed from their Chapter positions.

¶7 The Foundation moved for partial summary judgment, which 

the Individual Defendants did not oppose. The district court granted 

the Foundation’s motion and issued an order requiring the 

Individual Defendants to return all funds taken from the bank 

accounts and enjoined the Individual Defendants from further 

accessing funds in those accounts (the Injunction). Although Gilbert 

did not represent the Individual Defendants in the second action at 

the time the court entered the Injunction, Gilbert received a copy of 

that order approximately five days after it issued.

¶8 After receiving the Injunction, Gilbert accepted four checks 

for payment of $30,000 in attorney fees that were drawn on the bank 

accounts the Injunction identified as belonging to the Foundation.

Holman, who was expressly enjoined from accessing those bank 

accounts and who had been ordered to return the Chapter funds to 

the Foundation by the Injunction, signed the first check for $6,000.1

All four checks were signed, delivered, and negotiated after entry of 

the Injunction.

¶9 At the time he accepted the checks, Gilbert knew, or should 

have known, that the funds he received were the subject of litigation 

and that the bank accounts from which the funds were taken were 

subject to the Injunction. Nevertheless, Gilbert did not deposit the 

monies into a trust account or otherwise hold the funds pending the 

resolution of the dispute between his clients and the Foundation. 

Nor, as the district court found, did Gilbert “notify the court . . . of 

his intention to accept the . . . checks based on his position that [the 

Injunction] was invalid, void, had expired, [and] did not apply to the 

[funds] he received.” Rather, Gilbert simply cashed the checks and 

kept the funds.

¶10 The Foundation eventually learned that Gilbert had received 

payments from the bank accounts subject to the Injunction. The 

Foundation filed a motion to disgorge and requested an order 

requiring Gilbert to return the funds he had received from the 

Chapters’ bank accounts. After a hearing on the Foundation’s 

_____________________________________________________________

1 The other three checks were signed by Chapter board members 

who had not been expressly named in the Injunction.
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

4

motion, the district court ordered Gilbert to return the attorney fees

to the Foundation.

¶11 Despite the district court’s order, Gilbert did not return the 

legal fees he had received. The Foundation eventually filed a second

motion for disgorgement of funds. The court granted the 

Foundation’s second motion and entered judgment against Gilbert 

for $30,000, interest, and associated attorney fees. To date, Gilbert 

has not returned the funds to the Foundation.

¶12 Two years after the district court issued the second 

disgorgement order, a Foundation officer filed an informal 

complaint against Gilbert with the Utah State Bar’s Office of 

Professional Conduct (the OPC). After a screening panel 

recommended formal action, the OPC initiated disciplinary 

proceedings against Gilbert. The OPC’s complaint alleged that 

Gilbert had violated five of the Utah Rules of Professional Conduct. 

Gilbert’s defense centered on the validity of the Injunction and the 

disgorgement order. He argued that the Injunction was void for a 

variety of reasons, that he had no obligation to comply with a void 

order, and that he was excused from complying with the 

disgorgement order because the court lacked jurisdiction over him as 

a nonparty to the actions.

¶13 Gilbert filed a third-party complaint pursuant to rule 14 of 

the Utah Rules of Civil Procedure, impleading the Foundation into 

his disciplinary proceeding. The district court granted Gilbert’s 

motion, but this court reversed that decision. We held that thirdparty complaints are inappropriate in attorney discipline 

proceedings. In re Discipline of Gilbert v. Utah Down Syndrome Found., 

Inc., 2012 UT 81, ¶ 28, 301 P.3d 979. We concluded that “[n]either the 

historical nor current framework for adjudicating attorney discipline 

cases allows litigation of collateral matters in an attorney 

disciplinary action.” Id. ¶ 29. We then remanded the case and 

directed that “by denying impleader in this case, we do not dismiss 

[Gilbert’s] third-party complaint on its merits.” Id. ¶ 28. We also

suggested that Gilbert “may pursue his third-party complaint in an 

independent action.” Id.

¶14 On remand, the district court dismissed Gilbert’s third-party 

complaint against the Foundation without prejudice. Gilbert objected 

and moved for a new trial or new judgment. Gilbert contended, inter 

alia, that Utah Rule of Civil Procedure 21 required the district court 

to sever, and not dismiss, his third-party complaint. The district 

court denied that motion.
Cite as: 2016 UT 32

Opinion of the Court

5

¶15 Gilbert also moved to stay or continue the disciplinary 

proceedings until his third-party complaint against the Foundation 

could be resolved. The district court determined that Gilbert had not 

shown good cause to stay the disciplinary action. The court 

concluded that the facts underlying the disciplinary proceeding have 

“little to do with [Gilbert’s] appeal against [the Foundation],” and 

that even if Gilbert were to succeed against the Foundation, the 

resolution of that dispute “would not affect the issues in the 

disciplinary case.”

¶16 The district court held a five-day bench trial. At the end of 

the trial, the district court concluded that Gilbert had violated four of 

the Utah Rules of Professional Conduct: rule 1.7(a) (Conflict of 

Interest: Current Clients), rule 1.15(e) (Safekeeping Property), rule 

3.4(c) (Fairness to Opposing Party and Counsel), and rule 8.4(d) 

(Misconduct).

¶17 The district court then determined that disbarment was the 

presumptive discipline under rule 14-605 of the Supreme Court 

Rules of Professional Practice and reviewed aggravating and 

mitigating circumstances. It found the following aggravating 

circumstances: that Gilbert’s conduct evidenced a selfish motive; that 

Gilbert had committed multiple violations of the Utah Rules of 

Professional Conduct; that Gilbert continually refused to 

acknowledge the wrongful nature of his actions and had 

demonstrated a lack of remorse; that Gilbert had substantial 

experience in the practice of law; and that Gilbert had “made no 

effort to rectify the consequences of the misconduct,” including his 

failure to repay any of the $30,000 owed to the Foundation. The court 

determined that the absence of a prior disciplinary record and the 

testimony of family and friends relating to his good character were 

mitigating circumstances. Based on the many aggravating 

circumstances and the relative lack of mitigating circumstances, the 

court determined that the presumptive sanction of disbarment was 

appropriate and entered an order disbarring Gilbert from the 

practice of law. Gilbert appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Gilbert first argues the district court erred in concluding that 

he violated the Utah Rules of Professional Conduct. “This court is 

charged with governing the conduct and discipline of those 

admitted to practice law in this state.” In re Discipline of Johnson, 2001 

UT 110, ¶ 3, 48 P.3d 881. Accordingly, “[i]n matters of attorney 

discipline, we review ‘findings of facts under the clearly erroneous 
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

6

standard’ while ‘reserv[ing] the right to draw different inferences.’”

In re Discipline of Brussow, 2012 UT 53, ¶ 13, 286 P.3d 1246 (second 

alteration in original) (citation omitted).

¶19 Gilbert next contends that disbarment is an improper and 

excessive sanction. We review the district court’s decision for 

correctness because “our constitutional responsibility requires us to 

make an independent [sanction] determination.” In re Discipline of 

Jardine, 2015 UT 51, ¶ 16, 353 P.3d 154 (citation omitted). 

¶20 Gilbert also contends that the district court erred by 

improperly dismissing his third-party complaint against the 

Foundation. Specifically, Gilbert argues that rule 21 of the Utah 

Rules of Civil Procedure required the district court to sever, rather 

than dismiss, his complaint. “A district court’s interpretation of a 

rule of civil procedure presents a question of law that is reviewed for 

correctness.” Aequitas Enters., LLC v. Interstate Inv. Grp., LLC, 2011 UT 

82, ¶ 7, 267 P.3d 923. The district court’s dismissal of a third-party 

complaint, however, is reviewed for abuse of discretion. See 

Strandlund v. Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (“We review 

the district court’s order dismissing appellants for misjoinder under 

an abuse of discretion standard.”); cf. In re Discipline of Gilbert v. Utah 

Down Syndrome Found., Inc., 2012 UT 81, ¶ 14, 301 P.3d 979.

¶21 Gilbert’s final argument posits that the district court abused 

its discretion in declining to stay the disciplinary proceedings to 

permit him to resolve his complaint against the Foundation. We 

review a district court’s refusal to grant a stay of proceedings for an 

abuse of discretion. Lewis v. Moultree, 627 P.2d 94, 96 (Utah 1981) (“It 

lies within the inherent powers of the courts to grant a stay of 

proceedings. It is a discretionary power, and the grounds therefor 

necessarily vary according to the requirements of each individual 

case.”); see also Macris v. Sevea Int’l, Inc., 2013 UT App 176, ¶ 25, 307 

P.3d 625.

ANALYSIS

I. GILBERT VIOLATED THE UTAH RULES OF

PROFESSIONAL CONDUCT

A. Rule 1.7 (Conflict of Interest: Current Clients)

¶22 Gilbert first challenges the district court’s conclusion that he 

violated rule 1.7 of the Utah Rules of Professional Conduct. Rule 1.7 

requires that a lawyer “not represent a client if the representation 

involves a concurrent conflict of interest.” UTAH R. PROF’L CONDUCT

1.7(a). A concurrent conflict of interest exists if “[t]he representation 
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Opinion of the Court

7

of one client will be directly adverse to another client” or “[t]here is a 

significant risk that the representation of one or more clients will be 

materially limited by the lawyer’s responsibilities to another client, a 

former client or a third person or by a personal interest of the 

lawyer.” Id. R. 1.7(a)(1)–(2). Notwithstanding the existence of a 

concurrent conflict of interest, a lawyer may in some instances 

represent a client if, among other things, “each affected client gives 

informed consent, confirmed in writing.” Id. R. 1.7(b)(4). 

¶23 The district court found at least two rule 1.7 violations.2

First, the court found, “Once [Gilbert] accepted and cashed checks 

_____________________________________________________________

2 In addition to the two violations discussed in the text, the 

district court appears to have found an additional violation based 

upon Gilbert’s concurrent representation of both the Foundation and 

the Individual Defendants. Gilbert steadfastly maintains that the 

district court erred because he never represented the Foundation. 

The district court found, “Where [the Chapters] were not separate 

entities from [the Foundation], their interests were adverse to the 

interest of the [Individual Defendants].” On this point, the district 

court’s order has a distinct “hoisted by his own petard” flavor, as it 

appears that Gilbert did at times assert that the Chapters “are not 

any sort of legal entity in any way, shape, or form,” but were part of 

the Foundation as a means to argue that his clients could not comply 

with, or were already in compliance with, certain court orders. 

The record does not reflect the relationship between the 

Foundation and the Chapters with enough precision to allow us to 

opine on the ultimate correctness of the district court’s finding and 

conclusion. Gilbert’s briefing similarly does not provide any 

assistance in sorting out the relationship between the Chapters and 

the Foundation. We therefore reject Gilbert’s challenges to this 

portion of the court’s order as inadequately briefed. See Sanpete Am., 

LLC, v. Willardsen, 2011 UT 48, ¶ 64 n.14, 269 P.3d 118 (“We will not 

address inadequately briefed issues.”); Johnson v. Johnson, 2014 UT 

21, ¶ 20, 330 P.3d 704 (holding that to adequately brief an issue, the 

party must include “the contentions and reasons of the appellant 

with respect to the issues presented, including the grounds for 

reviewing any issue not preserved in the trial court, with citations to 

the authorities, statutes, and parts of the record relied on” and that 

“[m]ere bald citation to authority, devoid of any analysis, is not 

adequate” (citations omitted)). However, given the murkiness 

cloaking the district court’s conclusion and the abundance of other 

(continued . . .)
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

8

written against funds in [the Chapters’] accounts, [his] interests in 

getting paid and avoiding disgorgement of the legal fees he received 

created a concurrent conflict with the interest of his clients and their 

need to comply with the [Injunction].” The court determined that 

“even if the concurrent conflict[] w[as] waivable, . . . Gilbert failed to 

consult with each of his clients about the conflicts of interest and 

obtain written waivers giving their informed consent.” Gilbert does 

not challenge this conclusion.

¶24 Gilbert’s failure to contest this conclusion permits us to 

uphold the district court’s rule 1.7 finding because we will not 

reverse a ruling of the district court that rests on independent 

alternative grounds where the appellant challenges only one of those 

grounds. See State v. Roberts, 2015 UT 24, ¶ 38, 345 P.3d 1226. 

Nevertheless, the district court correctly concluded that Gilbert’s 

interests diverged from his clients’ once the court ordered him to 

return the attorney fees. Although this alone would sustain the 

court’s determination that Gilbert violated rule 1.7, we review 

Gilbert’s challenge to the district court’s other rule 1.7 determination 

because we examine the entirety of the record to determine the 

appropriate sanction.

¶25 The district court next concluded that Gilbert 

simultaneously represented the Individual Defendants, the 

Chapters, and the Association “when a concurrent conflict of interest 

existed between some of the parties’ interests.” Among other things, 

the district court found that Gilbert, due to his representation of the 

Individual Defendants, was unable to consult with or advise the 

other board members of the Chapters to take actions that could be 

contrary to the Individual Defendants’ interests.

¶26 Gilbert does not argue that the rules of professional conduct 

permit his concurrent representation of the Individual Defendants 

and the other Chapter board members. Instead, he contends that 

“[n]ot a single one of [his clients] has come forward with any 

complaint” about his concurrent representation, so there can be no 

conflict. Although Gilbert does not express his argument in these 

terms, his argument could be construed as one rooted in waiver. In 

other words, since none of his clients complained about the 

_____________________________________________________________

evidence demonstrating Gilbert’s violations, we will not factor this 

particular rule 1.7 violation finding into our analysis of the 

appropriate sanction for Gilbert’s actions.
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Opinion of the Court

9

concurrent representation, they should be deemed to have waived 

the conflict. Although a party can waive a rule 1.7 conflict in some 

circumstances, each affected client must give informed consent, 

confirmed in writing. See UTAH R. PROF’L CONDUCT 1.7(b). There is 

no question that Gilbert never sought or received his clients’ 

informed and written consent to waive the conflict of interest. Thus, 

the lack of complaint by Gilbert’s clients did not bar the district court

from finding a conflict of interest.

¶27 Gilbert has not established that the district court erred in 

concluding that Gilbert’s representation of the Individual

Defendants, the Chapters, and the Association created a concurrent

conflict of interest. Nor has he established that the district court 

erred in concluding that once the district court ordered him to 

disgorge the attorney fees he had received, his interest in keeping 

those fees created a concurrent conflict of interest that prevented him 

from zealously representing his clients’ interests.3

B. Rule 3.4 (Fairness to Opposing Party and Counsel)

¶28 Gilbert next challenges the district court’s determination 

that he violated rule 3.4 of the Utah Rules of Professional Conduct. 

Rule 3.4(c) instructs, “A lawyer shall not: . . . knowingly disobey an 

obligation under the rules of a tribunal, except for an open refusal 

based on an assertion that no valid obligation exists.” Id. R. 3.4(c). 

¶29 While rule 3.4(c) does not define the term “open refusal” nor 

describe how an attorney should openly refuse, other courts and 

commentators have determined that at a minimum, this rule requires 

an attorney to put a court on notice that the attorney will not comply

with the court-imposed obligation. See 1 GEOFFREY C. HAZARD, JR.,

WILLIAM W. HODES, & PETER R. JARVIS, LAW OF LAWYERING § 33.11

_____________________________________________________________

3 Gilbert also summarily contends that the district court’s rule 1.7 

conflict-of-interest determinations should be reversed because the

OPC “presented no complaining witness and had no standing itself 

to assert a conflict of interest.” We reject this argument as 

inadequately briefed. See State v. Timmerman, 2009 UT 58, ¶ 25 n.5, 

218 P.3d 590 (“An issue is inadequately briefed if the argument 

merely contains bald citations to authority [without] development of 

that authority and reasoned analysis based on that authority.” 

(alteration in original) (citation omitted) (internal quotation marks

omitted)).
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

10

(4th ed. 2015) (noting that Model Rule 3.4(c) “permits good faith and 

open noncompliance in order to test an order’s validity”); In re 

Disciplinary Proceeding Against Jones, 338 P.3d 842, 853 (Wash. 2014) 

(concluding that rule 3.4(c) of the Washington Rules of Professional 

Conduct is violated when an attorney takes action contrary to a 

court’s order unless the attorney openly and unequivocally refuses 

to comply before the court); In re Disciplinary Matter Involving Ford, 

128 P.3d 178, 181–82 (Alaska 2006) (concluding that an attorney 

could have avoided a violation of rule 3.4(c) of the Alaska Rules of 

Professional Conduct by “openly . . . informing the superior court 

that he could not comply with the order” and stating that “[a]n 

attorney may challenge a court order by motion, appeal, or other 

legal means, but may not simply disregard it”).

¶30 In other words, rule 3.4(c) stands, at a minimum, for the 

proposition that an attorney must either obey a court order or alert 

the court that he or she intends to not comply with the order. An 

attorney may not, as Gilbert did here, ignore a court order while 

secretly hoping to have a trump card to play if non-compliance later 

becomes an issue. See Chapman v. Pac. Tel. & Tel. Co., 613 F.2d 193, 

197 (9th Cir. 1979) (“An attorney who believes a court order is 

erroneous is not relieved of the duty to obey it. The proper course of 

action, unless and until the order is invalidated by an appellate 

court, is to comply and cite the order as reversible error should an 

adverse judgment result.”); In re Disciplinary Action Against Igbanugo, 

863 N.W.2d 751, 763 (Minn. 2015) (determining that an attorney 

violated rule 3.4(c) of the Minnesota Rules of Professional Conduct 

because the attorney’s failure to abide by a court order did not 

include an open refusal before the court and declining to give weight 

to the attorney’s belief that the obligation imposed by the court was 

beyond the court’s authority); In re Disciplinary Matter Involving Ford, 

128 P.3d at 181 (determining that an attorney violated Alaska Rule of 

Professional Conduct 3.4(c) by unilaterally returning a check to an 

out-of-state payor in contravention of a court’s order, despite the 

court’s recognition that “difficulties may arise if an attorney honestly 

believes he or she is caught between obligations to the client and 

obligations to the court,” because “[i]f [the attorney] felt he was 

obliged to disobey the superior court’s order, he should have done 

so openly by informing the superior court that he could not comply 

with the order”).

¶31 The district court determined that Gilbert violated rule 3.4(c) 

“by failing to notify the court of his intention to accept the [attorney 

fees] checks and disobey the [Injunction] prior to or concurrent with 
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Opinion of the Court

11

his acceptance of the checks.” The record indicates that Gilbert was 

aware of, and had actually been served a copy of, the Injunction

before he accepted the checks from his clients. Gilbert contends, 

without reference to rule or case law, that he was not required to put 

the court on notice of his acceptance of the attorney fees in this 

instance and that even if he did, his belief that the Injunction was 

void relieved him of any obligation to comply with the court’s order.

¶32 Although Gilbert may have harbored reservations about the 

order’s validity, he, in the district court’s words, “had a duty to 

openly contest the order by filing a request to stay the order in court, 

notify the court of his receipt of the . . . checks and at least hold the 

monies in trust until the court ruled on the issue.” The district court 

interpreted and applied rule 3.4(c) correctly.4

C. Rule 1.15 (Safekeeping Property)

¶33 Gilbert also contends that the district court erred in 

determining that he violated rule 1.15 of the Utah Rules of 

Professional Conduct. Rule 1.15(e) requires, 

When in the course of representation a lawyer is in 

possession of property in which two or more persons 

(one of whom may be the lawyer) claim interests, the 

property shall be kept separate by the lawyer until the 

dispute is resolved. The lawyer shall promptly 

distribute all portions of the property as to which the 

interests are not in dispute.

UTAH R. PROF’L CONDUCT 1.15(e).

_____________________________________________________________

4 Gilbert relies on this court’s 1913 decision in In re Evans as 

authority for the proposition that an attorney can ignore a void court 

order. See 130 P. 217 (Utah 1913). In Evans, two attorneys were 

disbarred for champerty, an illegal agreement to share lawsuit 

proceeds with a person with no prior interest in the suit. The 

attorneys were prohibited from practicing law until they returned 

certain funds to the court. Id. at 220. On review, this court found the 

disbarment order void and vacated it. Id. at 231. Nothing in Evans

suggests that an attorney can, consistent with Utah Rules of 

Professional Conduct, ignore a court order. To the contrary, the 

attorneys in Evans returned the funds as the district court ordered

prior to petitioning this court to vacate the court order. Id. at 220.
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

12

¶34 The district court concluded that Gilbert violated rule 1.15(e) 

in two ways. First, Gilbert failed to place any of the $30,000 in 

attorney fees in a trust account despite knowing that both the 

Foundation and his clients claimed ownership of the funds. And 

second, Gilbert violated rule 1.15(e) by failing to return the $30,000 to 

the Foundation when ordered to do so by the court. See id. R. 1.15 

cmt. 3 (“The undisputed portion of the funds shall be promptly 

distributed.”); 1 GEOFFREY C. HAZARD, JR., WILLIAM W. HODES,

& PETER R. JARVIS, LAW OF LAWYERING § 20.03 (4th ed. 2015)

(concluding that rule 1.15(e) requires an attorney to “promptly make 

proper disposition as to any undisputed portion, and expeditiously 

seek to settle the dispute as to the remainder”); id. § 20.08 

(concluding that rule 1.15(e) requires that “the lawyer . . . not take 

advantage of physical control of the funds, but must scrupulously 

abide” by the requirement that an attorney return funds no longer in 

dispute); id. (“Rule 1.15(e) requires that any amounts that are not in 

dispute be disbursed promptly according to paragraph (d), but that 

the lawyer continue to segregate and keep safe the remaining funds 

until the dispute can be resolved.” (emphasis added)). Gilbert does not 

challenge any of the factual findings underlying the district court’s 

conclusions. Nor does Gilbert contend that the district court’s order

misconstrued rule 1.15(e). 

¶35 Instead, Gilbert contends that he did not violate rule 1.15(e) 

because the Injunction was void. As explained above, an attorney 

has a professional obligation to comply with a court order and 

cannot unilaterally ignore a court order based on her belief that the 

court’s order was wrongly determined. It logically follows that an 

attorney cannot ignore rule 1.15(e)’s obligation to safekeep disputed 

funds and disburse undisputed funds based upon a claim that the 

district court’s order is void. Gilbert’s attack on the court’s rule 

1.15(e) determination fails. 

D. Rule 8.4 (Misconduct)

¶36 Gilbert also disputes the district court’s determination that 

he violated rule 8.4 of the Utah Rules of Professional Conduct. Rule 

8.4 defines professional misconduct and prohibits attorneys from 

engaging “in conduct that is prejudicial to the administration of 

justice.” UTAH R. PROF’L CONDUCT 8.4(d). The district court 

concluded that Gilbert violated rule 8.4(d) by failing to comply with 

the Injunction, by failing to comply with the district court’s 

disgorgement order, and by assisting his clients’ violation of the 

Injunction. 
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Opinion of the Court

13

¶37 Gilbert does not challenge the facts underlying the court’s 

determination. Rather, Gilbert again contends that his actions did 

not violate rule 8.4 because he had a good faith belief that the district 

court’s orders were invalid. He points to comment 4 to rule 8.4, 

which states, “A lawyer may refuse to comply with an obligation 

imposed by law upon a good faith belief that no valid obligation 

exists.” Id. R. 8.4 cmt. 4. 

¶38 That comment does not, however, provide an attorney carte 

blanche to ignore court orders. As explained above, the Utah Rules 

of Professional Conduct contemplate the situation in which Gilbert 

found himself: subject to an order he believed to be flawed. The rules

instruct an attorney in that situation to either comply or openly refuse 

to comply. An open refusal permits the district court to assess the 

attorney’s argument and allows opposing counsel to take action to 

protect her client from the opposing attorney’s noncompliance. An 

attorney cannot, consistent with the rules of professional conduct,

unilaterally and surreptitiously flout a court order. To the contrary, 

willful disregard of a district court’s order without an open objection

constitutes conduct prejudicial to the administration of justice.

¶39 Despite the directive of the rules of professional conduct, 

Gilbert declined to formally or openly object to the court’s order. 

Instead, Gilbert disregarded the disgorgement order without taking 

any action to appeal, stay, or otherwise object to the order. The 

district court correctly noted, “Regardless of whether an attorney 

believes that the attorney is entitled to fees from a client, if court 

orders award the funds to others, the attorney violates rule 8.4(d) by 

disregarding the orders.” See In re Disciplinary Action Against 

Igbanugo, 863 N.W.2d at 763–64 (concluding that an attorney’s 

“failure to comply with a court order is conduct prejudicial to the 

administration of justice” despite the attorney’s contention that the 

judge lacked authority to enter the order).

¶40 The district court did not err in determining that Gilbert’s 

conduct was prejudicial to the administration of justice. We affirm 

the district court’s conclusion that Gilbert violated rules 1.7, 1.15(e), 

3.4(c), and 8.4(d) of the Utah Rules of Professional Conduct. 

II. DISBARMENT IS AN APPROPRIATE SANCTION

¶41 Gilbert also contends that disbarment constitutes an

inappropriate sanction for his conduct. In matters of attorney 

discipline, we have a responsibility to ensure that the correct 

discipline is imposed. We owe no deference to the district court’s
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Opinion of the Court

14

determination. See In re Discipline of Jardine, 2015 UT 51, ¶ 16, 353 

P.3d 154. 

¶42 Gilbert attacks the district court’s order on two fronts. First, 

Gilbert argues that his conduct does not give rise to the presumption 

of disbarment found in rule 14-605 of the Supreme Court Rules of 

Professional Practice. 

¶43 Rule 14-605 provides that disbarment is presumptively 

appropriate when a lawyer 

knowingly engages in professional misconduct as 

defined in Rule 8.4(a), (d), (e), or (f) of the Rules of 

Professional Conduct with the intent to benefit the 

lawyer or another or to deceive the court, and causes 

serious or potentially serious injury to a party, the 

public, or the legal system, or causes serious or 

potentially serious interference with a legal proceeding.

SUP. CT. R. PROF’L PRACTICE 14-605(a).

¶44 Gilbert argues that the district court erred in finding that he 

committed knowing violations of rule 8.4(d) and that the OPC failed 

to present first-hand evidence of his intent to benefit himself. 

Gilbert’s argument fails because a court is entitled to make findings 

based on circumstantial evidence. Cf. Salt Lake City v. Carrera, 2015 

UT 73, ¶ 11, 358 P.3d 1067 (“‘[I]t is a well-settled rule that

circumstantial evidence alone may be sufficient to establish the guilt 

of the accused.’ Circumstantial evidence is particularly useful in

establishing intent because direct evidence of intent is rarely 

available. . . . [C]ircumstantial evidence [may be used] to find intent

on the basis of reasonable inferences drawn from the evidence.” (first 

alteration in original) (citation omitted)). Here sufficient 

circumstantial evidence exists to support the district court’s findings.

¶45 The undisputed evidence demonstrates that Gilbert 

knowingly violated rule 8.4(d) of the Utah Rules of Professional 

Conduct, as required by rule 14-605(a). Gilbert knowingly ignored, 

and continues to knowingly ignore, the court’s disgorgement order. 

Gilbert was present and argued before the district court when the 

court first ordered him to return the attorney fees. Gilbert does not 

dispute that he was sent a copy of the court’s second order requiring 

him to disgorge the $30,000 in attorney fees. The district court did 

not need Gilbert’s testimony on the question of intent to properly 
Cite as: 2016 UT 32

Opinion of the Court

15

conclude that Gilbert made a conscious choice to disobey these court

directives.5

¶46 Gilbert also contends that insufficient evidence was 

adduced at trial to support the district court’s findings that his 

conduct caused serious or potentially serious injury. The district 

court correctly noted that Gilbert’s actions caused injury to his 

clients, the public, the legal profession, and the legal system. It found 

that Gilbert’s conduct caused direct pecuniary harm to the 

Foundation. To this day, the Foundation has not been able to collect 

and use the $30,000 taken from its bank accounts to pay Gilbert. 

Further, the court found that Gilbert’s disregard of multiple court 

orders caused serious injury to the legal profession, legal system, 

and the public by creating a general mistrust of attorneys and the 

operation of the legal system. Last, the district court concluded that 

Gilbert’s representation in spite of multiple conflicts of interest 

“causes at least potential injury to the clients, and actual injury to the 

legal system and the profession, by creating distrust of the system 

and lawyers.”

¶47 We concur with the district court. The attorney, as 

an officer of the court, “has the right to set the judicial machinery in 

motion in behalf of another.” In re Integration & Governance of Utah 

State Bar, 632 P.2d 845, 847 (Utah 1981). “To function properly in the 

administration of justice the courts must retain control of 

their officers,” including those attorneys appearing before the court. 

Id. When attorneys knowingly ignore a court order, it promotes 

distrust of the legal system and attorneys. Simply stated, Gilbert has 

not demonstrated that his conduct should not trigger the

presumption of disbarment under rule 14-605(a) of the Supreme 

Court Rules of Professional Practice. 

¶48 Gilbert next argues that, even if the disbarment presumption 

were to attach, his conduct does not merit disbarment. He argues 

that we have generally ordered disbarment where attorneys have 

misappropriated client funds or acted in an otherwise fraudulent or 

dishonest manner. See, e.g., In re Discipline of Babilis, 951 P.2d 207, 217

(Utah 1997) (imposing the sanction of disbarment against an attorney 

for his intentional misappropriation of client funds). Gilbert 

_____________________________________________________________

5 Sufficient evidence also supports the district court’s conclusion 

that Gilbert acted with the intent to benefit himself. Indeed, Gilbert 

has offered no other justification for retaining the $30,000.
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

16

distinguishes his conduct from situations where attorneys have been 

disbarred for pilfering monies out of client trust accounts. Gilbert’s 

argument is, in essence, that because his conduct did not amount to 

outright theft, he cannot be disbarred. This is simply incorrect. 

Gilbert finds himself in the position he is in not because $30,000 

found its way into his personal bank account. Gilbert faces discipline 

because he knew that the $30,000 his clients used to pay him came 

from bank accounts that the district court had ordered the Individual 

Defendants to refrain from accessing. He also faces discipline 

because he ignored the district court’s orders requiring him to return 

the wrongfully taken funds.

¶49 Although we are unaware of any case in which we have 

considered the sanction for an attorney who accepts and retains 

funds in violation of a court order, we have ordered disbarment 

when an attorney has willfully refused to comply with a court order. 

See In re Johnson, 830 P.2d 262, 263–64 (Utah 1992). In Johnson, a 

district court suspended an attorney from the practice of law. Id. at 

263. We determined that the attorney’s “continued . . . practice [of] 

law in flagrant disregard” of the court’s suspension order violated 

the Utah Rules of Professional Conduct, and we concluded that “[i]n 

the interest of protection of the public and the legal profession, this 

court must therefore order [the attorney’s] disbarment.” Id. at 263–

64. We came to this conclusion despite the attorney’s argument that 

disbarment was inappropriate because he possessed a good faith 

belief that he could show good cause for disregarding the 

suspension order. See id. at 263. 

¶50 Other courts have ordered disbarment for conduct similar to 

Gilbert’s. In Cuyahoga County Bar Ass’n v. Wagner, 884 N.E.2d 1053 

(Ohio 2008), the Ohio Supreme Court permanently disbarred an 

attorney for his failure to comply with a district court’s order 

requiring him to return a client fee. See id. at 1055–56. The attorney 

represented a client before a United States Bankruptcy Court. After 

the attorney failed to respond to the bankruptcy court’s requests and 

failed to appear before the court, the court found the attorney in 

contempt “and ordered him to return the client’s fee.” Id. at 1054. 

The attorney did not. Id. The Ohio Supreme Court concluded, “[The 

attorney’s] conduct in this matter . . . reflects a lack of regard for the 

ethical and professional standards required of members of the bar.” 

Id. at 1055. The court therefore ordered that the attorney be 

permanently disbarred from the practice of law. See id. at 1055–56.
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Opinion of the Court

17

¶51 Similarly, in Florida Bar v. Bailey, 803 So. 2d 683 (Fla. 2001), 

F. Lee Bailey was disbarred for, among other things, his failure to 

obey two federal court orders, see id. at 695. Bailey was ordered by 

the district court to hold and not disburse assets related to an

ongoing court case. Id. at 693. Another court order required Bailey to 

bring all designated assets to a court hearing. Id. Bailey subsequently

“took no action to segregate or safeguard” the funds. Id. The 

Supreme Court of Florida concluded that “[e]ven if Bailey felt that he 

was entitled to the [funds] in his personal account, this does not 

permit him to act in contravention of two federal court orders.” Id.

The court reasoned, “[A]n attorney is not permitted to ignore and 

refuse to follow a court order based upon his personal belief in the 

invalidity of that order. To countenance that course is to court 

pandemonium and a breakdown of the judicial system.” Id. (citation 

omitted). In imposing disbarment, the court concluded that Bailey’s 

“disregard of [the judge’s] orders demonstrate[d] a disturbing lack 

of respect for the justice system and how it operates.” Id. at 694; see 

also In re Nalls, 145 So. 3d 1011 (La. 2014) (disbarring an attorney for 

his “knowing[] and willful[] attempt[] to practice law in disregard of 

this court’s order of suspension” due to it manifesting a “conscious 

intent to flout the authority of” the court); In re Disciplinary Action 

Against Lundeen, 811 N.W.2d 602, 608 (Minn. 2012) (concluding that a 

“failure to comply with court orders is a ‘serious violation’ and that 

‘repeated failure to comply with court orders’ is itself a ground 

for disbarment”); In re Klagsbrun, 717 N.Y.S.2d 297, 299 (App. Div. 

2000) (“The respondent’s repeated disregard of court orders and 

rules constitutes misconduct that goes to the heart of the judicial 

system and warrants his disbarment.”); In re Rich, 559 A.2d 1251, 

1257 (Del. 1989) (ordering the disbarment of an attorney for, among 

other things, his disregard of multiple orders of the Delaware 

Supreme Court, because the attorney’s actions “indicate[d] a lack of 

regard for the profession which he has damaged”).

¶52 Even though we agree with Gilbert that his conduct presents 

a different factual scenario from many cases in which we have 

ordered disbarment, we do not agree with his contention that a 

lesser sanction is therefore appropriate. We also agree with the 

district court that the aggravating and mitigating circumstances 

support the conclusion that disbarment is the appropriate sanction
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

18

for Gilbert’s conduct.6 “[T]he distinction between disbarment . . . and 

suspension . . . lies, in part, in ‘the attorney’s motive and in the 

relative severity of the conduct.’” In re Discipline of Doncouse, 2004 UT 

77, ¶ 16, 99 P.3d 837 (citation omitted). We have held that “[t]o 

justify a departure from the presumptive level of discipline set forth 

in the Standards, the aggravating and mitigating factors must be 

significant.” In re Discipline of Ince, 957 P.2d 1233, 1237–38 (Utah 

1998). 

¶53 The district court found as aggravators: (1) Gilbert’s selfish 

motive in disregarding the Injunction, (2) Gilbert’s violations of 

multiple rules of professional conduct, (3) Gilbert’s refusal to 

acknowledge any wrongdoing or demonstrate remorse for his 

conduct, (4) Gilbert’s substantial experience in the practice of law, 

and (5) Gilbert’s failure to comply with the district court’s order of 

disgorgement or otherwise “rectify the consequences of his 

misconduct.” The only mitigating circumstances the district court 

found were Gilbert’s absence of a prior disciplinary record and the 

testimony of family and friends relating to his good character.

¶54 Like the district court, we conclude that the aggravating and 

mitigating circumstances confirm disbarment as the appropriate 

sanction. Here, Gilbert concluded that his desire to keep the fees 

outweighed the court’s interest in resolving and bringing finality to 

the dispute. Indeed, Gilbert’s willingness to continually disregard 

the district court’s orders is extremely troubling conduct for an 

_____________________________________________________________

6 Gilbert’s disbarment is also consistent with the underlying goals 

of our rules of professional conduct. 

The purpose of imposing lawyer sanctions is to ensure 

and maintain the high standard of professional conduct 

required of those who undertake the discharge of 

professional responsibilities as lawyers, and to protect 

the public and the administration of justice from 

lawyers who have demonstrated by their conduct that 

they are unable or likely to be unable to discharge 

properly their professional responsibilities.

SUP. CT. R. PROF’L PRACTICE 14-602(b).
Cite as: 2016 UT 32

Opinion of the Court

19

officer of the court. Gilbert’s actions demonstrated a lack of respect 

for the district court and the legal system as a whole.7

¶55 But Gilbert’s lack of remorse and his unwillingness to 

recognize his actions’ consequences constitute the most powerful 

aggravating circumstances. At no point in the proceedings below, or 

in those before this court, has Gilbert acknowledged an attorney’s 

obligation to comply with court orders. At no time has he 

acknowledged that our system suffers when attorneys refuse to 

comply with court orders. Ultimately, it is this lack of respect for the 

rule of law and the legal process that warrants Gilbert’s disbarment.

Otherwise, to paraphrase the Florida Supreme Court, “to 

countenance [this blatant disregard of the court’s authority] is to 

court pandemonium and a breakdown of the judicial system.” Bailey, 

803 So. 2d at 693 (citation omitted). 

III. THE DISTRICT COURT DID NOT ERR IN DISMISSING

GILBERT’S THIRD-PARTY COMPLAINT

AGAINST THE FOUNDATION

¶56 Gilbert argues that the district court erred by dismissing his 

third-party complaint.8 Gilbert contends rule 21 of the Utah Rules of 

_____________________________________________________________

7 In fact, in 2008, the district court emphasized that Gilbert needed 

to comply with the court’s orders or face the consequences. The court 

stated, “I don’t mean to be offensive but you can’t just make up your 

own sets of rules and do what you want to do. If you didn’t get it 

solved and worked out, that’s why you’re here. All right?” Gilbert 

responded, “Judge, please understand, I would never intentionally 

ignore a court order. I’m an officer of the court.” The district court 

sagely predicted, “You could possibly get disbarred for it.”

8 This is not the first time this Court has had the opportunity to 

examine Gilbert’s third-party complaint. See In re Discipline of Gilbert 

v. Utah Down Syndrome Found., Inc., 2012 UT 81, 301 P.3d 979. In that 

case, we reversed the district court’s decision to grant Gilbert’s thirdparty impleader of the Foundation in this disciplinary action. Id.

¶ 28. We concluded that a third-party complaint is not appropriate 

in a disciplinary proceeding and directed the district court to dismiss 

Gilbert’s third-party complaint. Id. ¶¶ 25, 28–29. On remand the 

district court dismissed Gilbert’s third-party complaint without 

prejudice by granting the Foundation’s previously denied Motion to 

(continued . . .)
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

20

Civil Procedure required the district court to sever, rather than 

dismiss, his third-party complaint. We disagree.9

¶57 Rule 21 states,

Misjoinder of parties is not ground for dismissal of an 

action. Parties may be dropped or added by order of 

the court on motion of any party or of its own initiative 

at any stage of the action and on such terms as are just. 

Any claim against a party may be severed and 

proceeded with separately.

UTAH R. CIV. P. 21. 

¶58 Gilbert argues that rule 21’s language, “Misjoinder of parties 

is not ground for dismissal of an action,” mandates severance and 

prohibits dismissal of a third-party complaint. Gilbert ignores, 

however, that the dismissal referenced in that sentence is the original 

action, not a third-party claim attempted to be joined to the 

underlying action. In other words, rule 21 provides that misjoinder 

of a party is not a basis to dismiss an entire action. See Acevedo v. 

Allsup’s Convenience Stores, Inc., 600 F.3d 516, 522–23 (5th Cir. 2010) 

(holding that a district court erred by dismissing an “entire action, 

rather than simply dismissing the claims of any misjoined 

plaintiffs”); Clay v. Martin, 509 F.2d 109, 113 (2d Cir. 1975) 

(concluding that a complaint could not be dismissed based only on 

the presence of “improper parties”); Sabolsky v. Budzanoski, 457 F.2d 

1245, 1249 (3d Cir. 1972) (“Misjoinder or non-joinder of parties is not 

ground for dismissal. The proper remedy in case of misjoinder is to 

grant severance or dismissal to the improper party . . . .” (citation 

omitted)); 7 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY 

KANE, FEDERAL PRACTICE AND PROCEDURE §§ 1683–84 (3d ed. 2001). 

Rule 21 derives from the federal equity rules and the English rules of 

_____________________________________________________________

Dismiss Pursuant to Rule 12(b)(6) or, in the Alternative, Motion for 

Summary Judgment.

9 Gilbert also complains that the district court prematurely 

granted summary judgment to the Foundation. This argument 

misapprehends the record. Although the Foundation styled its 

pleading as both a motion to dismiss and a motion for summary 

judgment, the court’s order indicates that it granted only the motion 

to dismiss.
Cite as: 2016 UT 32

Opinion of the Court

21

practice existing at the adoption of the Federal Rules of Civil 

Procedure. See id. § 1681. In contrast to those at common law, these 

rules “generally allowed [a] plaintiff to amend the complaint to 

correct a defect in parties. As a result, an action could proceed on its 

merits despite an initial misjoinder or nonjoinder whenever the error 

could be corrected without adversely affecting the parties to the 

action.” Id. The district court correctly applied rule 21 and did not err 

by dismissing Gilbert’s third-party complaint.

¶59 Gilbert also appears to argue that even if rule 21 does not 

mandate severance, the district court abused its discretion in 

dismissing, rather than severing, his third-party complaint. Rule 21 

provides, “Any claim against a party may be severed and proceeded 

with separately.” UTAH R. CIV. P. 21.10 A party challenging the 

district court’s decision to dismiss, rather than sever, must show that 

the court abused its discretion. See 7 CHARLES ALAN WRIGHT, ARTHUR 

R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE

§ 1688 (3d ed. 2001) (concluding that “[t]he grant or denial of a 

motion to bring in or to drop a party lies in the discretion of the 

judge” and that “[t]he trial court’s exercise of discretion will not be

disturbed on appeal unless an abuse is shown”); Strandlund v. 

Hawley, 532 F.3d 741, 745 (8th Cir. 2008) (“We review the district 

court’s order dismissing appellants for misjoinder under an abuse of 

discretion standard.”).

¶60 Other courts to have considered this question have 

concluded that a trial court abuses its discretion only where the 

district court’s dismissal of a third-party complaint prejudices a 

party, such as by preventing the refiling of the dismissed party’s

claim. See Strandlund, 532 F.3d at 745; see also DirecTV, Inc. v. Leto, 467 

F.3d 842, 845–46 (3d. Cir. 2006); Elmore v. Henderson, 227 F.3d 1009, 

1012 (7th Cir. 2000). 

¶61 In Strandlund, the court was required to determine whether 

the district court “was permitted to drop appellants from the case or 

whether it should merely have severed their claims.” 532 F.3d at 745. 

The court concluded that rule 21 permits the dismissal of a party or 

_____________________________________________________________

10 Rule 21 also provides, “Parties may be dropped or added by 

order of the court on motion of any party or of its own initiative at 

any stage of the action and on such terms as are just.” UTAH R. CIV. P.

21.
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

22

claim rather than a severance of a claim if the dismissal “will not 

prejudice any substantial right.” Id. (citation omitted). A substantial 

right is prejudiced, the court determined, “if dismissal of misjoined 

parties were to result in the loss of otherwise timely claims.” Id. The 

court concluded that the district court had deprived the dismissed 

parties of a substantial right because the statute of limitations had

run on their claims and the dismissal would prevent them from 

proceeding with claims that were originally filed within the statute 

of limitations. Id. at 746.

¶62 Gilbert does not claim that the district court’s dismissal of 

his third-party complaint without prejudice in any way prevented 

him from filing his claim against the Foundation as an independent 

action. Indeed, Gilbert does not claim any prejudice flowing from the 

district court’s dismissal. Because Gilbert does not argue that he was 

prevented from refiling his claim against the Foundation after the 

court’s dismissal of his third-party complaint without prejudice, the 

OPC is correct to note that “the correct way . . . to pursue those 

claims” was to “refile the matter.” 

¶63 The district court did not contravene rule 21 of the Utah 

Rules of Civil Procedure or otherwise abuse its discretion by 

dismissing, without prejudice, Gilbert’s third-party complaint 

against the Foundation. Because Gilbert has not claimed that any 

prejudice flows from the district court’s dismissal of his third-party 

claim, he has failed to demonstrate that the court abused its 

discretion.11

IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN 

DECLINING TO STAY THE DISCIPLINARY ACTION

¶64 Gilbert also contends that the district court erred by

declining to stay the disciplinary proceedings until he could bring 

and resolve his complaint against the Foundation. In attorney 

discipline proceedings, “[u]pon a showing of good cause, a formal 

action or a disability proceeding may be stayed because of 

substantial similarity to the material allegations of a pending 

_____________________________________________________________

11 Gilbert also claims he was denied due process in the dismissal 

of his third-party complaint because he was not provided a notice or 

hearing prior to the district court’s grant of the Foundation’s motion 

to dismiss. This contention is inadequately briefed. See State v. 

Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590.
Cite as: 2016 UT 32

Opinion of the Court

23

criminal, civil, or disciplinary action.” SUP. CT. R. PROF’L 

PRACTICE 14–517(d). The district court’s decision to grant or deny a 

stay is discretionary, and we will not disturb it unless we determine 

the district court abused its discretion. See Lewis v. Moultree, 627 P.2d 

94, 96–97 (Utah 1981). 

¶65 The district court declined to grant Gilbert’s motion to stay 

the disciplinary proceedings because it concluded,

[E]ven if everything is as [Gilbert] alleges, this Court is 

not required to issue a stay on the disciplinary matters.

. . . Whether [Gilbert] violated a court order when it 

was in effect is a matter for the disciplinary proceeding 

and has little to do with [his] appeal against [the 

Foundation]. Should [Gilbert] succeed on appeal 

against [the Foundation], his appeal would not affect 

the issues in the disciplinary case against [him].

¶66 The district court did not abuse its discretion in declining to 

stay the disciplinary proceeding. In essence, Gilbert contends that if 

he could have proceeded against the Foundation, he would have 

established facts that would have undermined the district court’s 

conclusions that he violated the Utah Rules of Professional Conduct. 

Gilbert contends that he would have established that the Chapters 

were independent entities and that the Chapters, not the Foundation, 

were the owners of the funds.

¶67 Gilbert is wrong to suggest that either of these findings, if 

established, would have undermined the district court’s conclusions 

or dictated a different outcome. Even if we were to assume that 

Gilbert’s contentions are correct, they would not have changed the 

district court’s ultimate conclusions. Gilbert’s violations of the Utah

Rules of Professional Conduct do not turn on whether the Injunction 

and the disgorgement order were correctly entered. Rather, the 

violations stem from the manner in which Gilbert represented his 

clients, from his failure to safeguard disputed funds, and from his 

choice to disregard multiple court orders without putting the court 

or his opposing counsel on notice. Because the issues Gilbert wanted 

to litigate against the Foundation would not have impacted the 

district court’s analysis, the district court did not abuse its discretion

in refusing to stay the disciplinary proceedings.

CONCLUSION

¶68 Gilbert represented clients when he had a direct personal 

interest that conflicted with his representation of those clients, he 
Discipline of DONALD D. GILBERT, JR.

Opinion of the Court

24

disregarded the Injunction, and he facilitated his client’s violation of 

the Injunction by accepting funds subject to that order. And Gilbert, 

to this day, has disregarded the district court’s order requiring that 

he disgorge the attorney fees he received from his clients. Regardless 

of the validity of the Injunction and disgorgement order, the Utah 

Rules of Professional Conduct require that Gilbert not knowingly

disregard those orders without making his intentions known to the 

district court and opposing counsel. While we recognize that 

disbarment is a severe punishment, it is appropriate here. We affirm 

the district court’s order and conclude that disbarment is the proper 

sanction for Gilbert’s misconduct.