1. Does an attorney breach a duty of confidentiality to a “client” by sending information about the client’s actions and their contact information to law enforcement if they appear to be using the attorney/client relationship to commit a money fraud upon the attorney which could cause substantial injury to the attorney’s financial interests?
2. The query before the Committee relates to the issue that individuals have sought to retain a law firm via the Internet allegedly to collect a large debt from a party in Utah. The alleged debtor sends the law firm payment which is supposed to be forwarded to the client. The scam is that the checks are counterfeit and the attorney is asked to wire the funds immediately before the checks have cleared. When the “client” is informed that the funds will not be wired until the check clears, the client disappears. The issue is whether the attorney can report this conduct to law enforcement. (more…)
PROPRIETY OF EX PARTE CONTACT WITH INDIVIDUALS WITHIN AN ORGANIZATION
1. May an attorney representing a party in pending or existing litigation contact servants, agents, and employees of an organization, which is the opposing party, to discuss issues directly related to the litigation, if the attorney is aware the organization is represented by counsel in the matter? Is it ethical for an attorney to make contact directly with in-house or corporate counsel, even if the attorney is aware that the organization is represented by outside counsel in the matter? Is it ethical for an attorney to send a copy of correspondence or email to an organization’s employee where the original is directed to opposing counsel? (more…)
Utah State Bar Ethics Advisory Opinion Committee Revised Opinion Number 14-04 (see Dissent) Issued November 12, 2014
1. What are the ethical limits to participating in attorney rating systems, especially those that identify “the Best Lawyer” or “Super Lawyer”?
2. Rule 7.1 of the Utah Rules of Professional Conduct (the “URPC”) prohibits false or misleading communications concerning a lawyer or a lawyer’s services. An unsubstantiated comparison of lawyers is false or misleading if it would lead a reasonable person to conclude that the comparison can be substantiated. Advertisement of a rating, or of inclusion in a ranking list as being “super” or “best” or the like, by a comparing organization is permissible where the comparing organization has made an appropriate inquiry into the lawyer’s fitness, the lawyer does not pay to receive the rating itself (although she may pay for an investigation in accordance with Rule 7.2), the comparing organization’s methodology or standard used to determine the rating or ranking is fully disclosed and explained and conveniently available to the public, and the communication disclaims the approval of the Utah Supreme Court and/or the Utah State Bar. The factual basis for the comparison of the rated or listed lawyer’s services to the services of other lawyers must be verifiable in order to pass muster under Rule 7.1. Any advertisement must state that the lawyer was included in a “super” or other such list or ranking rather than describe the lawyer as being a “super lawyer” or the “best lawyer.” The statements that a lawyer is “super” or the “best” cannot be factually substantiated and are inherently misleading. (more…)
Utah State Bar Ethics Advisory Opinion Committee Opinion Number 15-01 Issued January 13, 2015
The Utah Board of Pardons and Parole (the “Board”) and a private attorney have jointly requested the Ethics Advisory Opinion Committee issue an opinion on what constitutes a “matter” as discussed in Utah Rules of Professional Conduct 1.11(a)(2) and 1.12(a). Specifically, in light of the nature of Board proceedings, do all decisions involving an individual offender constitute the same “matter” for purposes of Rule 1.11(a)(2) and 1.12(a)? What are the limitations on a former member of the Board or hearing officer in representing offenders before the Board?
A former member of the Board (or hearing officer) may not represent an offender before the Board without the informed written consent of the Board where the former Board member (or hearing officer) personally and substantially participated in prior Board proceedings involving the same offender. However, the specific facts and circumstances of the subsequent representation, including, without limitation, the lapse of time between the two Board proceedings and nature of the offenses involved, may often provide a basis for the Board to waive any potential conflict in such a situation.
Utah State Bar Ethics Advisory Opinion Committee Opinion Number 14-05 Issued December 22, 2014
When an Attorney (A) is representing another Lawyer (L) in a legal malpractice or disciplinary action, and Lawyer L undertakes to represent a client in a matter adverse to a client of Attorney A, what are the ethical considerations?
2. Attorney A representing a Lawyer L in a disciplinary or legal malpractice matter may face a concurrent conflict of interest if the Lawyer L (client) represents an individual who is an opposing party to a client represented by Attorney A. A concurrent conflict of interest would arise if there is a significant risk that Attorney A’s representation of Lawyer L be will materially limited by her responsibilities to the client being sued by Lawyer L’s client; or if there is a significant risk that Attorney A’s representation of a client against Lawyer L’s client will be materially limited by her representation of Lawyer L. Whether this situation poses a serious risk of materially limiting Attorney A’s representation requires analyzing the factual situations presented. (more…)
1. Do the Utah Rules of Professional Conduct prohibit referral agreements between two attorneys that require one of the attorneys (the “Referring Attorney”) to refer to the other (the “Receiving Attorney”) all clients that have a certain specified type of products liability claim?
2. The Committee concludes that an agreement between two attorneys which requires the Referring Attorney to refer to the Receiving Attorney all clients that have a certain specified type of claim may likely violate various provisions of the Utah Rules of Professional Conduct (the “Rules”).
3. The Referring Attorney, licensed to practice in the State of Utah, and the Receiving Attorney, licensed to practice elsewhere, enter into an agreement governed by Utah law (the “Agreement”) to jointly pursue certain kinds of products liability claims (the “Claims”) of individuals located in the State of Utah. The Agreement provides in relevant part: (more…)
1. Is an Agreement between a non-lawyer Marketer and a Law Firm where the Marketer conducts telephone marketing to solicit and refer clients to Law Firm in violation of the Rules of Professional Conduct where the payment to the Marketer matches a percentage of the fees paid to the Law Firm by the clients referred to the Law Firm by the Marketer?
2. If the Agreement is in violation of the Rules of Professional Conduct must the Attorney retained by Marketer to enforce the Agreement inform the appropriate professional authority pursuant to Rule 8.3(a)? (more…)
1. Under what conditions is it appropriate for a personal injury lawyer to “outsource the calculation, verification and resolution of alleged health insurance liens and subrogation/reimbursement claims” and pass the outsourced resolution fee to the client as a “cost.” There are two questions posed to the committee. First, can the lawyer appropriately outsource the lien resolution? Second, is the treatment of the lien resolution fee appropriately treated a “cost” to the client?
2. It is ethical for a personal injury lawyer to engage the services of a lien resolution company that can provide expert advice or to associate with a law firm providing this service. (more…)
1. To what extent may an attorney participate in an “on-site” fee/retainer funding program to obtain and finance attorney retainer or litigation funds?
2. A lawyer may not participate in an “on-site” fee/retainer funding program, under the circumstances set forth herein, as such would violate the provisions of Rules of Professional Conduct 1.7(a) (Conflict of Interest: Current Clients), Rule 1.8(a) (Acquire a pecuniary interest adverse to the client). The lawyer may, however, obtain a waiver of the conflict by complying with the terms of Rules 1.7(b) and 1.8(a), including making full disclosure and obtaining “informed consent” confirmed in writing. Adequate measures must also be taken to safeguard the lawyer’s independent judgment under Rule 5.4(c) (A third party may not direct or regulate the lawyer’s professional judgment.) (more…)
1. The question before the Committee concerns federal criminal law practice in the District of Utah. Although it may have general application, this Opinion is confined to that arena. The question is whether it is ethical under the Utah Rules of Professional Conduct for a criminal defense attorney (hereafter “the attorney”) to advise a client/defendant (hereafter “the client”) to negotiate and enter into a plea agreement whereby the client, as an integral part of his plea of guilty, waives all post-conviction claims the client may have, including claims of ineffective assistance of the attorney, except for claims of ineffective assistance of counsel based upon negotiating or entering in to the plea or waiver. (more…)
1. Whether a lawyer violates her duty to diligently represent a client who wishes to appeal a juvenile court’s order, but refuses to sign the Notice of Appeal (which will be dismissed without appellant’s signature pursuant to statute) due to her diminished capacity.
2. Under Rule 1.14, if the lawyer believes the client is at risk of substantial harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer should take reasonable steps to protect the client’s interests.
3. Lawyer has defended Client’s parental rights in child welfare proceedings. Client has been found permanently criminally incompetent and was receiving extensive services through Division of Services for People with Disabilities (DSPD). DSPD determined that Client has diminished capacity. Lawyer has always been able to effectively communicate with Client and has defended Client’s parental rights in accordance with her wishes. The State filed a Verified Petition for Termination of Parental Rights, and Lawyer represented Client at trial. On four occasions—at the beginning of trial, during trial, and after the Court ruled to terminate Client’s parental rights—Lawyer advised Client of her right to an appeal and advised Client that she would be required to sign a Notice of Appeal. On all four occasions, Client indicated she would refuse to sign anything but wanted to appeal. Utah Code Ann. § 78A-6-1109 requires an appellant’s signature on every Notice of Appeal from a juvenile court order. If the Notice of Appeal is submitted without signature, the appeal is dismissed and the appellant loses his or her right to the appeal. Lawyer filed a Motion for Extension of Time and an Affidavit of Diligence and awaits a response from the Court. (more…)
When a lawsuit or claim is filed against a government entity, the attorney’s office of that entity sends all relevant employees an e-mail including a litigation hold notice and certain questions regarding the location of documents possibly relevant to the pending claim. If the claim has been brought by an employee, such as an employment discrimination claim, the complaining employee would also receive the e-mail. In this situation, does the attorney’s office sending this e-mail to all relevant employees, including a represented plaintiff or complaining employee, constitute a violation of Utah Rule of Professional Conduct 4.2? (more…)
1. The requesting attorney seeks an opinion on several related matters, which the Committee has combined into three general areas of inquiry: (i) may an attorney pay a non-lawyer, directly or indirectly, for a referral; (ii) may an attorney enter into a joint marketing and/or cross-referral arrangement with a non-attorney; and (iii) may an attorney acquire an ownership or equity interest in, or making a loan to, a business, with the expectation of receiving referrals from the business.
2. Subject to the exceptions outlined below, the opinions of the Committee regarding the stated issues are: (more…)
1. May a community association management company profit from legal work performed by the company’s in-house attorney?
2. A community association management company’s profiting from legal work performed by the company’s in-house attorney constitutes the improper sharing of fees with a non-lawyer in violation of Utah Rule of Professional Conduct 5.4(a).
3. An attorney is employed as in-house counsel for a community association management company. Although the company does not profit from the legal work the attorney performs, the company believes that other community association management companies routinely profit from the legal work performed by their respective in-house attorneys. Specifically, these companies collect a fee from their clients for legal services at a rate that is higher than the cost the companies incur in employing their corporate attorneys. The issue addressed in this Opinion stems from this practice.
What are the ethical and practical considerations applicable to attorneys representing clients in the state of Utah under flat fee or fixed fee agreements (hereinafter referred to as “flat fee agreements”)?
The permissibility of flat fee agreements in Utah is well established, subject always to the requirements of the Utah Rules of Professional Conduct. Utah lawyers may use such agreements under circumstances that ensure that clients will not be charged an unreasonable fee, as prohibited by Rule 1.5, and that client funds will not be comingled with the attorney’s funds as prohibited by Rule 1.15. Whether a flat fee arrangement complies with these rules depends heavily on an analysis of the applicable facts and circumstances. Except in rare circumstances where a fee may reasonably be earned upon receipt, as described in this opinion, fee agreements should not describe such fees as “non-refundable,” as such fees are always subject to refund in the event they are or become unreasonable under the particular facts of the case. Representation that a flat fee is nonrefundable is deceptive and violates Rule 8.4.