ETHICS ADVISORY OPINION No. 08-01

OPINION NO. 08-01
MAIN OPINION:
For Dissent Opinion click here>>>
Issued April 8, 2008
1. Issue:
May an attorney provide legal assistance to litigants appearing before a tribunal pro se and prepare written submissions for them without disclosing the nature or extent of such assistance? If so, what are the attorney’s obligations when full representation is not undertaken?

2. Opinion: Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance. Although providing limited legal help does not alter the attorney’s professional responsibilities, some aspects of the representation require special attention.
3. Background: Our Committee has previously issued three opinions regarding limited-scope legal representation under certain circumstances regarding various aspects of limited-scope legal representation.1 These opinions were issued under the Utah Code of Professional Responsibility that was superseded by the Utah Rules of Professional Conduct, adopted by the Utah Supreme Court in 1988 and modified in certain respects by amendments that were adopted by the Court in November 2005. A synopsis of those opinions is found in Appendix A to this Opinion. In this opinion, we undertake a more comprehensive analysis of the “behind the scenes” limited representation under the current Utah rules.
4. Recently, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 07-446 (May 5, 2007), comprehensively discussing assistance to pro se parties and expressly superseding ABA Informal Opinion 1414, which disapproved certain undisclosed assistance of pro se litigants under the prior Code of Professional Conduct. ABA Opinion 07-446 concluded that under the Model Rules of Professional Conduct, “a lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”
5. Analysis: In addressing the issue posed, we begin by recognizing that a new regulatory framework is in place nationally and in Utah that provides directly for limited-scope legal representation of clients who, for various reasons, engage lawyers for narrowly circumscribed participation in their legal affairs.
6. Rules of Professional Conduct: Rule 8.4(c) of the Rules of Professional Conduct prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” However, none of the comments to that rule suggest that failure to notify opposing parties and the court of limited assistance to a pro se party involves such dishonest conduct.2 Recently issued ABA Formal Opinion 07-446 expressly concludes that it does not: “[W]e do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited by Rule 8.4(c).” Because the Rules of Professional Conduct include comments that explain and illustrate “the meaning and purpose of the rule” and “are intended as guides to interpretation,”3 and because the ABA drafters certainly knew of Informal Opinion 1414, it would have been obvious to include this example to illustrate dishonest conduct if that had been intended.
7. More significantly, however, is that the Utah and ABA Rules of Professional Conduct include a rule that explicitly addresses the possibility of a lawyer’s limiting the scope of representation of a client. Rule 1.2(c) provides: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comments [6], [7] and [8] address such limited-scope representation. None of these comments suggest that “extensive undisclosed assistance” to a pro se party is an inappropriate limited-scope representation.
8. Similarly, Rule 1.2(d) also addresses the issue of a lawyer’s assisting a client in “criminal or fraudulent” behavior and provides in relevant part: “A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent . . . .” Comments [9] through [14] provide illustrations of Rule 1.2(d) and again fail to identify that providing undisclosed assistance to a pro se party is assisting a client’s fraud. If the drafters of the Rules of Professional Conduct had intended to impose a prohibition against undisclosed assistance to pro se litigants, Rule 1.2 regarding both limited-scope representation and assisting in a client’s fraud would have been one place to make this clear.
9. The Rules of Professional Conduct further signal the appropriateness of limited-scope representation through Rule 6.5, Nonprofit and Court-Annexed Limited Legal Service Programs. This rule addresses conflicts of interest when “a lawyer . . . under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter.” The comments to Rule 6.5 recount the fact that such limited-scope programs exist and what they do:
Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services such as advice or the completion of legal forms that will assist persons to address their legal problems without further representation by a lawyer . . . [through] programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs . . . . 4
Here again, if the drafters of the Rules had wanted to prohibit “substantial professional assistance” that was not disclosed, Rule 6.5 would have been a likely place to include such a provision.
10. Accordingly, given the decision to expressly include and permit limited-scope representation in the Rules of Professional Conduct and the failure of the Rules and comments to state or even suggest that nondisclosure of substantial assistance to pro se parties is dishonest conduct, we conclude that the drafters of the current Rules did not intend to prohibit undisclosed, substantial professional assistance to pro se parties.
11. Rules of Civil Procedure: We also believe that the ethical requirements for limited-scope representation must be put in the wider context of other law and court rules. Some states have adopted rules of procedure that address how a lawyer who is providing limited legal help must act and what must be disclosed to the court. For example, Colorado Rules of Civil Procedure 11(b) provides that pleadings filed by a pro se party that were prepared with the drafting assistance of a lawyer must include the lawyer’s name and contact information, and the assisting attorney must so advise the pro se party. Rule 12.040 of the Florida Family Law Rules of Procedure requires a pro se party who has received a lawyer’s help to certify that fact in the pleadings. Rule 102(a)(1) of the Wyoming Rules for District Court provides that the appearance of an attorney’s name on the pleadings indicates that the attorney assisted in their preparation does not constitute an appearance by the attorney. Utah has no comparable court rules for attorneys who engage in ghost writing for a pro se client to notify the court of this assistance.
12. Utah Rules on Disclosure: Utah has addressed two circumstances in which an attorney must disclose to the tribunal the limited services provided to a client. Rule 2.4(c) of the Utah Rules of Professional Conduct uniquely permits a lawyer mediator to “prepare formal documents that memorialize and implement the agreement reached in mediation” and “with the informed consent of all parties confirmed in writing, may record or may file the documents in court, informing the court of the mediator’s limited representation of the parties for the sole purpose of obtaining such legal approval as may be necessary.” 5
13. Rule 75 of Utah’s Rules of Civil Procedure, “Limited Appearance,” provides in relevant part:
(a) An attorney acting pursuant to an agreement with a party for limited representation . . . may enter an appearance limited to one or more of the following purposes:
(1) filing a pleading or other paper;
(2) acting as counsel for a specific motion;
(3) acting as counsel for a specific discovery procedure;
(4) acting as counsel for a specific hearing, including a trial, pretrial conference, or an alternative dispute resolution proceeding; or
(5) any other purpose with leave of the court.
(b) Before commencement of the limited appearance the attorney shall file a Notice of Limited Appearance signed by the attorney and the party. The Notice shall specifically describe the purpose and scope of the appearance and state that the party remains responsible for all matters not specifically describe in the Notice . . . . The Notice of Limited Appearance and all actions taken pursuant to it are subject to Rule 11.
Utah Rules of Civil Procedure 74, Withdrawal of Counsel, and 5, Service, both reference and provide further guidance regarding how the “limited appearance” will affect service and withdrawal.
14. The Utah Supreme Court recently approved both of these rules permitting certain limited -scope services by a lawyer and requiring notice to the court in these circumstances. The fact that the Court did not require any disclosure except in these circumstances suggests that assistance short of an actual appearance without disclosure is permitted and is not considered “dishonest conduct.”
15. It is also important to consider the requirements imposed by Rule 11 of the Utah Rules of Civil Procedure to understand the context of this issue. Rule 11(a) requires that every paper filed with the court be signed by “one attorney of record” or “if the party is not represented by an attorney, . . . by the party.” Under Rule 11(b), that signature “is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose . . . . . (2) the claims . . . are warranted by . . . law, (3) the allegations . . . have evidentiary support . . . .”6
16. If an attorney drafts and appears to argue one motion only, the attorney will appear under Rule 74 and comply with Rule 11 for that portion of the case. The attorney must have performed “reasonable inquiry” to insure that the facts presented (e.g., in supporting affidavits) have “evidentiary support.” However, where an attorney provides limited -scope representation to assist a party to draft a complaint or answer after the attorney has simply interviewed the party, but is not engaged to appear in court, it is doubtful that the attorney could sign the complaint or answer as part of a limited appearance under Rule 75 and in compliance with Rule 11, since that attorney would have made no “inquiry” beyond talking with the client. In that case, it must be the client who certifies that he has “evidentiary support” as required by Rule 11, since only the client will have investigated the facts. Where the client will alone sign the papers, there is no court rule or procedure that requires the attorney who assists with drafting to notify the court of this assistance, no rule that tells the lawyer how to inform the court of the limited legal help provided, and no rule that tells the client how to inform the court of the limited legal help received. Accordingly, the “nondisclosure” of the assistance could not reasonably be considered “dishonest conduct” prohibited by the Rules of Professional Conduct since there is no procedure provided to disclose.
17. Other States’ Rules: Both Washington and Colorado have amended their Rule 11 provisions to provide that “in helping to draft” a pleading “the attorney certifies” that it is well-grounded in fact and law and not interposed for any improper purpose. These rules further provide that when an attorney provides drafting assistance the attorney “may rely on the otherwise self-represented persons’ representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.”7 Colorado further provides that when an attorney assists a pro se party “in filling out pre-printed and electronically published forms that are issued through the judicial branch” the attorney is not subject to the certification or name disclosure requirements. Should the Utah Supreme Court wish to impose some requirement for lawyers who provide drafting assistance to notify the court, we would expect that it would do so by explicitly setting forth the requirement, as has been in certain other states. (We note, as a practical matter, that when attorneys at court-annexed legal clinics provide advice and drafting assistance under Rule 6.5, it may be impossible for the attorney to insure that the client ultimately provides notice of that assistance to the court on the final draft papers the client eventually files.8)
18. Moreover, even Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper by Utah Opinion 74 and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, the party then may obtain brief advice as to service of process. Thereafter the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to this Committee at what point such a typical pro se party needing limited scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.9
19. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.10 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
20. In any event, Utah law provides that “as a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar.”11 While a judge may give an unrepresented party leniency, this is not required under Utah law. Therefore, the “unfair advantage” that pro se parties ostensibly gain through the court’s liberal construction of their pleading—one of the bases for prohibiting “ghost-writing”—does not appear to apply under Utah law.
21. Finally, we note that the Utah State Courts website explicitly describes “limited legal help” on its Self-Help Resources page, indicating that an attorney might “only advise” or “help draft” or “review a draft” or “any combination of these kinds of services.”12
22. Judicial Precedent: The Committee is not aware of any Utah Supreme Court opinion that addresses the questions presented here.
23. It is important, however, to take account of Duran v. Carris,13 a Tenth Circuit opinion. In this case, a New Mexico lawyer who had represented the plaintiff/appellant in the trial court, was criticized for ghost-writing the brief appealing the dismissal of the case for failure to state a claim. This per curiam opinion relied on Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings be signed, Rule 3.3 of the Rules of Professional Conduct, which requires candor to the tribunal, Rule 8.4 of the Rules of Professional Conduct, which prohibits conduct involving misrepresentation, and case law that accords pro se parties leniency. The Tenth Circuit opinion states:
[The attorney’s] actions in providing substantial legal assistance to [the client] . . . without entering an appearance in this case not only affords [the client] . . . the benefit of this court’s liberal construction of pro se pleadings . . . but also inappropriately shields [the attorney] . . . from responsibility and accountability for his actions and counsel.14
The opinion holds as follows:
We recognize that, as of yet, we have not defined what kinds of legal advice given by an attorney amounts to “substantial” assistance that must be disclosed to the court. Today, we provide some guidance on the matter. We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledge by signature. In fact, we agree with the New York City Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting assistance unless the client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.” . . . We hold today, however, than any ghostwriting of an otherwise pro se brief must be acknowledged by the signature of the attorney involved. 15
24. Certainly, Utah lawyers who appear before Tenth Circuit must be aware of this opinion and comply with it. A Utah lawyer who writes a brief for a pro se party must acknowledge this participation by signing the brief filed with the Tenth Circuit.
25. However, it is not clear how far the Duran v. Carris opinion extends beyond its own rather unusual facts. First, the Tenth Circuit opinion regarding a New Mexico lawyer’s failure to comply with ethical rules that apply to him does not bind the Utah Supreme Court in its interpretation of the Utah Rules of Professional Conduct. Second, the lawyer’s conduct in failing to sign a brief suggests malfeasance that providing limited legal help in the trial court typically does not. Here, the lawyer wrote a brief for an appeal from a dismissal for failure to state a claim, yet declined to sign the brief. This suggests that the lawyer was intentionally assisting a client to pursue a cause of action knowing it was frivolous, but declining to appear to avoid sanction. In Utah, Rule of Professional Conduct 3.3 requires candor and prohibits a lawyer from failing to disclose to a tribunal legal authority the lawyer knows is directly adverse to his position. And Rule 3.1 prohibits a lawyer from bringing any proceeding “unless there is a basis in law and fact for doing so that is not frivolous.” The facts of Duran v. Carris suggest that the attorney was avoiding being charged with violating those provisions by declining to sign the brief.
26. There are many reasons other than dishonesty and malfeasance that an attorney might provide extensive assistance with a trial-court matter, yet would not sign a pleading and enter appearance as counsel. Initially, the attorney may interview the client, advise about the claims that are well founded, and draft a complaint. Yet, unless the attorney further investigates the facts and accepts the case for full representation, the attorney would not enter an appearance. The attorney may provide further assistance with service, with discovery, and with trial preparation either on a pro bono or reduced-fee basis to permit the client to prosecute his claim without paying for full-service representation. The Duran v. Carris case should not be extended to prohibit such assistance in the absence of the attorney’s intentionally aiding a client to bring a case the lawyer believes is frivolous or without legal foundation.
27. We agree that attorneys who intentionally assist pro se parties to file frivolous cases can be sanctioned for this behavior under Rule 8.4. Similarly, an attorney cannot act as a mere scrivener and draft a complaint (or a brief) at the client’s behest without forming a professional opinion that a cause of action has a basis in law and fact based on the client’s description of the facts. Such negligent conduct could be sanctioned as incompetence in interviewing, analyzing and advising the client. Indeed, both the Duran v. Carris case and early New York cases16 that condemned ghost-writing for a frequent litigant suggest that the misconduct is in helping a litigant bring a frivolous matter, not providing extensive help to a pro se litigant who has a meritorious claim. This Committee believes that sanctioning such intentional wrong-doing or negligence is preferable to a sweeping prohibition of extensive assistance to pro se parties.
28. For all of the reasons set forth above, in the absence of any court rule addressing the issue, we conclude that it is not dishonest behavior of an attorney to provided limited legal help to a pro se litigant, including assistance with drafting of pleadings, without disclosing the fact of that assistance to the court.
29. Disclosures Required for Limited Legal Help: As set forth above, we conclude that the only disclosures that an attorney must make to the court (or to other parties) are disclosures expressly required either by court rule or the Rules of Professional Conduct. Disclosure to the court is required where a lawyer-mediator prepares documents to file in court after a successful mediation.17 Similarly, Rule 75 of the Utah Rules of Civil Procedure sets forth requirements, including that the lawyer enter an appearance in accordance with Rules 11, when the attorney makes a limited appearance.
30. Rule 1.2(c) of the Utah Rules of Professional Conduct does require that the attorney obtain “informed consent” from the client prior to providing a limited scope of representation, and this requires appropriate disclosures to the client. The Rules define “informed consent” as agreement “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”18 Exactly what must be explained to a client prior to providing limited-scope assistance—the information that will permit the client to make an informed decision whether to proceed in this way, including alternative courses the client could consider—is, of necessity, highly fact-intensive and case-specific. Increasingly, books and articles and web-posted reports provide advice and suggested forms for undertaking limited representation.
31. We note one important limit on securing client agreement to limited representation. It is only permitted “if the limitation is reasonable under the circumstances.” A comment illustrates this limitation:
If . . . a client’s objective is limited to securing general information the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.19
Obviously there are other circumstances in which a proposed limitation would not be “reasonable” given the nature of the case.
32. Providing unbundled legal services does require particular attention and care to various other ethical rules. Comment [8] to Rule 1.2 instructs that “all agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law.
33. First, Rule 1.1 expressly insists that the legal services be “competent.” As Opinion 330 of the District of Columbia Bar states: “In other words, the scope of the services may be limited but their quality may not. When hired to diagnose legal problems, an attorney providing services under an unbundling arrangement must be as thorough in identifying legal issues as an attorney who intends to continue with a case through its conclusion.” In providing limited legal help, an attorney must nevertheless alert the client to any legal problem the attorney discovers, even if outside the scope of the representation, according.20 We have previously opined that an attorney does not perform competently if the lawyer is merely a scrivener.
Various state bars have addressed the limitation on legal services where the lawyer provides only legal analysis and drafting services. We can find no judicial or ethics opinion that approves drafting services alone; the drafting services are always an adjunct to analysis and advice provided by the lawyer. Finally, best practices in “unbundled” legal services are addressed in various books and articles, and we can find none that suggest drafting services alone are adequate or appropriate . . . . It is difficult to understand how a lawyer could appropriately assist an individual to file pro se divorce pleadings without advising the party when his claims appear to lack any legal support and without advising the party regarding the evidentiary support the party will need to support certain contentions. In the absence of any court rules that address the propriety of ghostwritten pleadings, this Committee concludes that, at a minimum, a lawyer may not limit her services to conforming a party’s pleadings to proper form without providing analysis and advice to the party seeking such advice.21
Accordingly, prior to drafting a paper for a client, the lawyer must interview the client sufficiently and know the law adequately to conclude that the paper is warranted based on the facts as reported by the client.
34. Other duties that are not diminished by the limited legal service agreement are the duties of diligence, Rule 1.3, the duty to communicate, Rule 1.4, and the duty of confidentiality, Rules 1.6 and 1.8.
35. Rule 6.5 alters slightly the lawyer’s duty of loyalty. It applies when limited legal services are rendered as part of a court-annexed or nonprofit program. In this situation, the lawyer is prohibited from providing the limited legal services only if the lawyer “knows” that there is a personal “conflict of interest” under Rule 1.7 or Rule 1.9(a) or “knows” that another lawyer in the lawyer’s firm has a conflict of interest that would disqualify the firm under Rule 1.10.
36. Another aspect of limited representation that warrants comment is Rule 4.2, which prohibits communicating with persons a lawyer “knows” to be represented “in the matter” without that lawyer’s permission. When the lawyer has entered a limited appearance in court, Utah Rule of Civil Procedure Rule 75 governs and explicitly provides that “the party remains responsible for all matters not specifically described in the Notice” of limited appearance. When there is no appearance in the court, the matter is less clear. District of Columbia Bar Opinion 330 concludes that:
Even if the lawyer has reason to know that the pro se litigant is receiving some behind-the-scenes legal help, it would be unduly onerous to place the burden on that lawyer to ascertain the scope and nature of that involvement. In such a situation, opposing counsel acts reasonably in proceeding as if the opposing party is not represented, at least until informed otherwise.
This seems a sensible approach.
37. Conclusion: It is not dishonest conduct to provide extensive undisclosed legal help to a pro se party, including the preparation of various pleadings for the client, unless a court rule or ethical rule explicitly requires disclosure. Undertaking to provide limited legal help does not generally alter any other aspect of the attorney’s professional responsibilities to the client.
38. To the extent that our previous Opinions 47, 53 and 74 are inconsistent with this opinion, they are superseded.
APPENDIX A
1. In 1978, Utah Ethics Opinion 47 dealt with a lawyer’s providing “legal advice, consultation, and assistance to inmates regarding the preparation of initial pleadings in civil matters,” including preparing “complaints, summons, affidavits of impecuniosity, and motions for leave to proceed in forma pauperis,” after which the inmates would proceed pro se. The opinion concluded there was “nothing inherent in the proposal that is unethical” and discussed the need fully to inform the inmate of the limited nature of the representation and the need to warn the State of Utah (which would pay for the lawyer’s services) that the State could have no influence over the services.
2. A year later, Opinion No. 53 similarly approved of a lawyer’s providing “limited legal services to persons wishing to handle their own divorces,” where the attorney interviewed the client and provided the client with a manual of instructions and forms to use. The opinion referenced and distinguished this “more limited” involvement of the lawyer from the situation presented and disapproved of in the then recently issued ABA Ethics Committee Informal Opinion 1414 (1978). ABA Opinion 1414 involved a lawyer’s assisting in the preparation of jury instructions and memoranda for the client and attending the trial to advise the litigant on procedural matters. The ABA opinion concluded that the litigant was not in fact proceeding pro se and, therefore, the lawyer’s conduct constituted a misrepresentation as to his undisclosed involvement and ran afoul of the rule prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit of misrepresentation.22
3. In 1981, Utah Opinion No. 74 addressed “the propriety of an attorney preparing a responsive pleading showing the party to be appearing pro se,” where the client was financially unable to pay the lawyer’s retainer but wanted to have an answer filed to protect his rights. That opinion again relied on DR 1-102(A)(4) of the old Code, which prohibited “conduct involving dishonesty, fraud, deceit or misrepresentation” and adopted the reasoning and standard set forth in (but did not cite) ABA Informal Opinion No. 1414. Opinion No. 74 holds:
There is nothing improper in an attorney giving initial advice to a litigant who is proceeding pro se nor is it improper for an attorney to prepare or assist in the preparation of pleadings.
However, when the attorney gives any additional assistance and the litigant continues to inform the court that he is proceeding pro se, he has engaged in misrepresentation by professing to be without representation. The attorney who engages in this conduct is involved in the litigant’s misrepresentation contrary to DR 1-102(A)(4) . . . .23
The opinion goes on to advise that determining whether the attorney’s conduct is proper or improper “will depend upon the particular facts” and:
The extent of the attorney’s participation . . . is the determining factor. Minimal participation by the attorney is not improper. However, extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.24
4. Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper this opinion and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, for example, the party then may obtain brief advice as to service of process. Thereafter, the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to us at what point such a typical pro se party’s needing limited-scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.25
5. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.26 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
In 1983 the ABA replaced its Model Code of Professional Responsibility with the entirely re-conceptualized Model Rules of Professional Conduct. In 1988, Utah likewise replaced the Utah Code of Professional Responsibility with the Utah Rules of Professional Conduct based on the 1983 ABA Model Rules. The ABA Model Rules received a comprehensive retooling in the ABA’s “Ethics 2000” project, and the Utah Rules were modified in 2005 to adopt many of the changes made to the ABA Model Rules.
Footnotes
1. Utah Eth. Adv. Op 47 (Utah St. Bar 1978); Utah Eth. Adv. Op. 53 (Utah St. Bar 1979); Utah Eth. Adv. Op. 74 (Utah St. Bar 1981).
2. Utah Rules of Professional Conduct, Rule 3.3, Candor Toward the Tribunal, addresses related issues and prohibits the lawyer from knowingly (1) making a false statement of fact or law to a tribunal, (2) failing to disclose legal authority directly adverse, and (3) offering evidence the lawyer knows to be false.
3. Id., Preamble ¶ [21].
4. Id., Rule 6.5, cmt. [1].
5. Id., Rule 2.4(c) (emphasis added).
6. Utah R. Civ. P. 11(b) (emphasis added).
7. Colo. R. Civ. P. 11(b) and Wash R. Civ. P. 11(b).
8. The Utah State Courts website lists many free legal clinics that provide brief advice and help with forms. http://www.utcourts.gov/howto/legalclinics/
9. Committee on Resources for Self-Represented Parties Strategic Planning Initiative Report to the Judicial Council, p. 5 (July 25, 2006) reporting statistics from 2005.At: http://www.utcourts.gov/resources/reports: 2006 Survey of Self-Represented Parties in the Utah State Courts.pdf
10. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).
11. Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983).
12.http://www.utcourts.gov/howto/legalassist/
13. 238 F.3d 1268 (10th Cir. 2001).
14. Id. at 1271-72.
15. Id. at 1273 (emphasis added). The Tenth Circuit court did not, however, sanction the lawyer but resolved that issue as follows: “Therefore, we admonish [the lawyer] . . . that this behavior will not be tolerated by this court, and future violations of this admonition will result in the possible imposition of sanctions.”
16. See ¶ 41, App. A.
17. Utah R. Prof. Conduct 2.4(c).
18. Id., Rule 1.0(f).
19. Id., Rule 1.2(c), cmt. [7].
20. See also Los Angeles Co. Bar Assoc. Eth. Op. 502.
21. Utah Eth. Adv. Op. 02-10, 2002 WL 31922503 (Utah St. Bar) (references omitted).
22. DR 1-102(A)(4) of the ABA Code of Professional Responsibility.
23. Utah Ethics Op. 74, at 1-2 (emphasis added).
24. Id. at 2 (emphasis added). The standards set forth: “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.” This is an exact, though unattributed quote of ABA Informal Opinion No. 1414.
25. Committee on Resources for Self-Represented Parties Strategic Planning initiative Report to the Judicial Council, at 5 (July 25, 2006) (reporting statistics from 2004). http://www.utcourts.gov/resources/reports/Self%20Represented%20Litigants%20
Strategic%20Plan%202006.pdf
26. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).

Ethics Advisory Opinion No. 02-10

Issued December 18, 2002
¶ 1 Issue:
May a lawyer review pleadings prepared by a non-lawyer mediator for simple, uncontested divorces and advise the mediator on how to modify the pleadings for filing in court?

¶ 2 Conclusion: (1) As lawyer for the mediator, a lawyer may advise the mediator on the issues likely to arise in the course of the mediation, but may not advise the mediator how to prepare the divorce agreement and court pleadings for particular parties who are clients of the mediator. This would constitute assisting in the unauthorized practice of law and would violate Utah Rules of Professional Conduct 5.5. (2) An attorney may provide representation to a party engaged in a divorce mediation that is limited to advising the party and assisting with pleadings, but may not so limit the representation without first fully informing the party of the proposed limitation and obtaining the party’s informed consent.
¶ 3 Background: A divorce mediator has requested that a lawyer perform a limited service: review pleadings prepared by the mediator and amend them as needed. Prior to the attorney’s involvement, the mediator would meet with the divorcing parties and assist them in reaching a settlement of all issues in their divorce. Then, the mediator would draft the parties’ agreement, which would be filed with the court or incorporated into the judgment of the court. Finally, the mediator would draft the various additional court documents (e.g., complaint, findings of fact and conclusions of law, judgment) needed for the parties’ divorce. The mediator would inform the divorcing parties that the pleadings were not prepared by an attorney, but had been reviewed by an attorney for “sufficiency.” The divorcing parties would pay the attorney a small fee for this service.
¶ 4 Analysis: The request raises the following issues:
* Whether the lawyer is representing the mediator or the divorcing parties.
* Whether this plan involves the lawyer’s assisting in the unauthorized practice of law in violation of Utah Rules of Professional Conduct 5.5.
* Whether this plan constitutes an appropriate limitation on the lawyer’s representation for the client under Utah Rules of Professional Conduct 1.2 and 1.1.
A. Whether the lawyer is representing the mediator or the divorcing parties.
¶ 5 The original request appears to presume that the lawyer is advising the mediator. However, the advice sought from the Committee focuses on the agreement and pleadings for a divorce between two particular parties. Here, we consider the ethical constraints on both possible relationships.
B. Whether the lawyer, in advising the mediator, is assisting in the authorized practice of law.
¶ 6 Rule 5.5 provides that a lawyer shall not “assist any person in . . . the unauthorized practice of law.” However, the Comments to Rule 5.5 state that the rule “does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law.” Accordingly, it should be permissible for a lawyer to form an attorney-client relationship and provide a mediator with professional advice that the mediator needs for this occupation. In order to understand the limits of what is appropriate legal advice to give a mediator, we first examine what constitutes the practice of mediation under Utah law and current codes of conduct for mediators.
¶ 7 Utah statute provides for the certification of “alternative dispute resolution providers,”1including persons providing services as mediators.2 “Alternative dispute resolution” is defined as “the provision of an alternative system for settling conflicts between two or more parties, which operates both independent of or as an adjunct to the judicial-litigation system, through the intervention of a qualified neutral person or persons who are trained to intercede in and coordinate the interaction of the disputants in a settlement process.”3 A “dispute resolution provider” is “a person, other than a judge acting in his official capacity, who holds himself out to the public as a qualified neutral person trained to function in the conflict-solving process using the techniques and procedures of negotiation, conciliation, mediation.”4
¶ 8 Utah statute also provides for the Judicial Council to establish alternative dispute resolution programs to be administered by the Administrative Office of the Courts.5The Judicial Council is authorized to establish rules concerning ADR procedures, including establishing the qualifications of ADR providers for each form of ADR.6This statute further provides that an ADR provider “conducting procedures under the rules of the Judicial Council and the provisions of this act” shall be immune from all liability except for wrongful disclosure of confidential information.7These court-annexed ADR programs may also include mediation, defined as “a private forum in which one or more impartial persons facilitate communication between parties to a civil action to promote a mutually acceptable resolution or settlement.”8
¶ 9 These laws establishing and defining mediation focus on the mediator’s possessing and utilizing certain communication skills in order to help parties resolve a dispute, rather than having legal knowledge or the ability to prepare court pleadings.
¶ 10 This focus is consistent with the model Standards of Conduct for Mediators adopted in 1994 by the American Bar Association Section on Dispute Resolution, the Society of Professionals in Dispute Resolution (SPIDR), and the American Arbitration Association. These standards provide that “[m]ediation is based on the principle of self-determination by the parties” and includes the comment: “A mediator cannot personally ensure that each party has made a fully informed choice to reach a particular agreement, but it is a good practice for the mediator to make the parties aware of the importance of consulting other professionals, where appropriate, to help them make informed decisions.”9Thus, standards for mediators recognize that legal advice may be necessary for some parties to make informed decisions. The standards further recognize that it is not the mediator’s role to provide that legal advice:
The primary purpose of a mediator is to facilitate the parties’ voluntary agreement. This role differs substantially from other professional-client relationships. Mixing the role of a mediator and the role of a professional advising a client is problematic, and mediators must strive to distinguish between the roles. A mediator should, therefore, refrain from providing professional advice. Where appropriate, a mediator should recommend that parties seek outside professional advice.10
¶ 11 Accordingly, in “providing professional advice and instruction to nonlawyers whose employment requires knowledge of law,”11it would be appropriate for a lawyer to advise a mediator about the issues that typically arise in a divorce—custody, visitation, child support, alimony, and property division. In this way, the mediator can assist the parties to discuss all of the relevant issues. Similarly, the lawyer might properly explain various options for parties to consider in resolving their dispute and might suggest which options are likely to be adopted by a court of law. In this way the mediator can assist the parties to consider relevant and feasible options.
¶ 12 Moreover, a lawyer may publish a “How to” manual regarding divorce, including draft forms to use.12Thus, the attorney could give such a manual and draft forms to the mediator for distribution to clients who could complete and file these forms pro se. Similarly, the lawyer could approve the draft forms the mediator has prepared for distribution to divorcing parties to use pro se. Finally, a lawyer could advise the mediator as a consultant about the mediator’s legal obligations in difficult cases. For example, if a party told the mediator of suspected child abuse by the other parent, the mediator could seek and obtain advice from an attorney about the mediator’s obligation to report suspected child abuse.
¶ 13 However, in a mediated divorce setting, a lawyer’s more typical role would be to provide legal advice to one of the parties in order to insure that the party is making informed decisions. Typically, this advice is provided in the context of full representation of the client who is participating in the mediation. However, the lawyer’s services to that client can be more limited. (See part C below, regarding “unbundled services.”) Note that a lawyer is permitted to represent only one of the parties to the divorce in order to avoid impermissible, and non-consentable conflict, as we explained in Opinion 116.13
¶ 14 The Comment to Rule 5.5 states: “[A] lawyer may counsel nonlawyers who wish to proceed pro se.” Accordingly, the lawyer might properly advise a divorcing party about her rights in a divorce case and about the pleadings she will need to file and the procedures she will need to pursue.
¶ 15 However, complications arise when the lawyer is providing that advice to the mediator (rather than directly to a party) and the mediator is assisting that party to complete the necessary pleadings.
¶ 16 The Utah Supreme Court considered the propriety of non-lawyers assisting parties to prepare court pleadings most recently in the case of Utah State Bar v. Petersen,14where a paralegal “prepared wills, divorce papers, and pleadings . . . on behalf of clients for a fee” without this work being supervised by an attorney.15The Supreme Court affirmed the judgment that Petersen had engaged in the unauthorized practice of law,16defining the “practice of law” as “the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent . . . performing services in the courts of justices . . . counseling, advising, and assisting others in connection with their legal rights, duties, and liabilities.”17
¶ 17 In a similar case, the Florida Supreme Court held that a paralegal would run afoul of the unauthorized practice of law by assisting divorcing parties to draft their pleadings in a divorce case; but the paralegal would be permitted to sell printed divorce forms to the parties.18
¶ 18 In a recent bankruptcy case a nonlawyer “bankruptcy petition preparer” (BPP) went beyond “the typing services a BPP may legitimately perform” by having pleadings she prepared reviewed by a lawyer and by having the lawyer available to “chat” with petitioners regarding their “general” questions.19The Idaho Bankruptcy Court found that this arrangement constituted a deceptive and unfair practice where the reviewing lawyer did not actually represent the bankruptcy petitioners and this BPP advertised the availability of a lawyer for review and general information as a benefit to her clients.20The Bankruptcy Court further found that this BPP engaged in the unauthorized practice of law by providing “legal advice to prospective debtors by giving them a pamphlet or other publication.” since “the very act of directing a prospective debtor to review a particular section or a legal book in and of itself constitutes legal advice.”21
¶ 19 In light of Utah case law and persuasive authority from other jurisdictions, we conclude that an attorney may not advise a nonlawyer mediator about the preparation of pleadings or agreements in particular cases without violating the rule that prohibits the lawyer from assisting the unauthorized practice of law, Rule 5.5.
¶ 20 While we have no authority to define “unauthorized practice of law” under state statute, we are able to state that an attorney would assist the unauthorized practice of law and thus violate Rule 5.5 by advising a non-lawyer how to conform legal pleadings to proper form without having an attorney-client, advice-giving relationship with the party in interest. Accordingly, the proposed plan of having the mediator draft the court pleadings and the agreement and having the attorney review these documents “for sufficiency” would be a violation of the Utah Rules of Professional Conduct.
C. What are the limitations on the lawyer’s representation of a party engaged in a divorce mediation?
¶ 21 If the lawyer has been retained by the mediator to provide advice as discussed in Part B, then she may not, in most cases, concurrently represent either of the divorcing parties.22If, on the other hand, the lawyer has not been retained by the mediator, she may represent one or the other of the parties (but, under Opinion 116, not both), and mediators often do recommend that divorcing parties obtain legal advice from lawyers. However, the parties may seek to limit their expenses by engaging a lawyer for only limited representation. We now take up the issue of how an attorney may properly limit the scope of her representation in this situation.
¶ 22 Rule 1.2(b) provides that “a lawyer may limit the objectives of the representation if the client consents after consultation.” However, the Comments to Rule 1.2 indicate that “the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 [competence].”
¶ 23 This Committee has had occasion to address the propriety of limiting the scope of legal representation under the prior Code of Professional Responsibility as well as under the current Rules of Professional Conduct, and we take this opportunity to review those determinations:
* Opinion 47: An attorney may “provide limited legal advice, consultation, and assistance to inmates regarding the preparation of the initial pleadings in civil matters” provided the inmates are fully informed of the limited services.23
* Opinion 53: An attorney may interview, advise, and provide a manual and forms for clients seeking to file pro se divorces.24
* Opinion 74: An attorney may advise a party proceeding pro se and assist him to prepare pleadings. (“However, extensive undisclosed participation . . . that permits the litigant falsely to appear as being without substantial professional assistance is improper” as conduct involving misrepresentation.)25
* Opinion 95-01: Publishing a “How to” manual does not constitute the practice of law where there is no “personal advice given on a specific problem.”26
* Opinion 96-12: An attorney may charge for legal advice given to callers using a “1-900” number, but cannot disclaim the creation of an attorney-client relationship.27
* Opinion 97-09: A lawyer providing certain estate-planning legal services in conjunction with a non-lawyer estate-planner “must perform an independent role as legal advisor to the client, assuring that the estate plan and associated documents are legally appropriate to accomplishing the client’s objectives.”28
* Opinion 98-14: A lawyer representing a client in a divorce is not automatically counsel for that client in a protective-order proceeding because the client may elect to proceed pro se in this separate action.29
* Opinion 01-03: An insurance defense lawyer with a flat-fee arrangement may not improperly curtail services to the client, which include “competent representation . . . to exercise independent professional judgment and render candid advice.”30
Certain principles from these precedents emerge as fundamental when a lawyer attempts to limit the scope of representation.
¶ 24 First, the lawyer may “limit the objectives of the representation [only] if the client consents after consultation.”31Such consultation should comport with Rule 2.1, which requires an exercise of “independent professional judgment” and “candid advice,” as well as with Rule 1.4 which requires the lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”
¶ 25 Accordingly, an attorney may limit the legal services provided to a divorcing client only after fully advising the client as the to range of services possible (e.g., from full representation to advice followed by the client proceeding pro se)32 and after advising the client as to the pros and cons of proceeding in any particular manner.33
¶ 26 There are nevertheless certain limitations that cannot be imposed. The lawyer cannot disclaim the attorney-client relationship,34nor limit the obligation to be “competent,” which includes “thoroughness” and “preparation reasonably necessary” for the representation.35
¶ 27 In a similar case, we analyzed the proposal of a professional estate planner who sought to involve a lawyer on a limited basis to assist in drafting estate plans for his clients.36The issue we addressed in that opinion was whether the lawyer could thus “provide competent representation under Rules 1.1 and 1.2(b).” We concluded that too circumscribed a role is not permissible. We opined that the estate planning lawyer cannot “provide competent representation . . . if he declines to counsel the client as to the appropriate means of executing the estate-planning documents or as to the appropriate means of transferring assets into the estate-planning vehicles to accomplish the client’s objectives.” In the estate planning situation, we determined that “a lawyer has an obligation not only to advise a client of legal rights and responsibilities, but also to advise the client regarding the advisability of the action contemplated.” We stated: “A lawyer is under a duty to inform clients of the relevant facts, law and issues necessary for the client to make intelligent decisions regarding the objectives of the representation.”37
¶ 28 We are unable to find a principle that justifies a different decision here. An estate- planning lawyer cannot be a mere scrivener, but “must perform an independent role as legal advisor to the client.”38Likewise, a divorce attorney cannot be a mere drafter, preparing court pleadings, proposed orders and judgments and avoiding the exercise of any “independent professional judgment” and communication of any “candid advice”39to the client.
¶ 29 Indeed, the Rules of Professional Conduct identify various functions the lawyer assumes as “representative of clients,” including advisor, advocate, intermediary, and evaluator,40but the Rules do not identify the role of “drafter” or “scrivener.” As an advisor, “a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implication.”41While an attorney may limit the scope of representation to advising the client or to advising and assisting in drafting pleadings, there is no authority for eliminating the advice-giving role in an attorney-client relationship.
¶ 30 Commentators have addressed the challenges faced in such “unbundled” legal services.42Various courts have addressed the propriety of attorneys assisting only with “ghostwritten” pleadings, as is proposed here. In some cases, courts have considered ghostwritten pleadings to be a fraud on the court.43Some courts have explicitly required a pro se litigant to indicate whether she had legal assistance in preparing her pleadings;44other courts have required an attorney to appear in person and represent clients in future hearings if they attempt to appear only through ghostwritten pleadings.45A few states have addressed the limited service of ghostwritten pleadings through court rule. Colorado provides that an attorney may “undertake to provide limited representation . . . to a pro se party” by including his name on the party’s pleadings and warranting that the attorney’s assistance relies upon the pro se party’s representation of the facts.46
¶ 31 Various state bars have addressed the limitation on legal services where the lawyer provides only legal analysis and drafting services.47We can find no judicial or ethics opinion that approves drafting services alone; the drafting services are always an adjunct to analysis and advice provided by the lawyer. Finally, best practices in “unbundled” legal services are addressed in various books and articles,48and we can find none that suggest drafting services alone are adequate or appropriate.
¶ 32 Indeed, all pleadings in Utah divorce cases must be signed by the attorney or the pro se party, “certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . the claims, defenses and other legal contentions therein are warranted by existing law [and] . . . the allegations and other factual contentions have evidentiary support.”49It is difficult to understand how a lawyer could appropriately assist an individual to file pro se divorce pleadings without advising the party when his claims appear to lack any legal support and without advising the party regarding the evidentiary support the party will need to support certain contentions.
¶ 33 In the absence of any court rules that address the propriety of ghostwritten pleadings, this Committee concludes that, at a minimum, a lawyer may not limit her services to conforming a party’s pleadings to proper form without providing analysis and advice to the party seeking such advice.
D. Conclusion
¶ 34 It is permissible for a lawyer to advise a divorce mediator on the issues likely to arise in the course of a mediation, but the lawyer may not advise the mediator how to prepare divorce agreements and court pleadings for particular parties who are clients of the mediator. It is also permissible for a lawyer to review the contents of the divorce agreement for one of the parties and advise that party about the options and the advisability of the draft agreement. A lawyer might appropriately limit her services to such a review. A second attorney might advise the other party in this same way. Thereafter, either of these two attorneys might review the pleadings prepared by these parties as to sufficiency. And these parties might then proceed to file pro se.
¶ 35 However, the most crucial element of legal services here is informing a party about the relevant legal standards so that the party’s decisions are informed. Accordingly, it is inappropriate for an attorney to limit her services to assisting a divorcing party to prepare divorce pleadings while failing or refusing to advise the divorcing party about the relevant law.
Footnotes
1.Utah Code Ann. §§ 58-39a-1 et seq. (2002), “Alternative Dispute Resolution Provider Act.” An ADR Providers Certification Board, comprising two judges, one lawyer and four members of the general public with a demonstrated interest in ADR, is to grant certification to persons who “complete a program of education or training, or both, in ADR or have demonstrated sufficient experience in ADR.” Id. §§ 58-39a-3 and -5
2.Id. § 58-39a-2.
3.Id. § 58-39a-2(1)(a).
4.Id. § 58-39a-2(4).
5.Utah Code Ann. §§ 78-31b-1 et seq. (2002), “The Alternative Dispute Resolution Act.”
6.Id. § 78-31b-5(3)(h). This statute explicitly provides that ADR providers may, but need not, be certified under the ADR Provider Certification Act.
7.Id. § 78-31b-4(4).
8.Id. § 78-31b-2(8).
9.Standards of Conduct for Mediators, Standard I and cmt.
10.Id., Standard V cmt.
11.Utah Rules of Professional Conduct 5.5, cmt.
12.Utah Ethics Advisory Op. 95-01, 1995 WL 49472 (Utah St. Bar). Publication of such forms is not the practice of law where no personal advice is given. (The Committee’s opinions are also available at www.utahbar.org/options/index.html).
13.Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah St. Bar).
14.Utah State Bar v. Petersen, 937 P.2d 1263 (Utah 1997)
15.Id. at 1263.
16.Petersen was found to have violated Utah Code Ann. § 78-51-25.
17.Petersen, 937 P.2d at 1268.
18.Florida Bar v. Brumbaugh, 335 So. 2d 1186 (Fla. 1978).
19. In re: Doser, 281 B.R. 292, 294 (Bkrtcy. D. Idaho 2002).
20.Id. at 304-06.
21.Id. at 306-09.
22.Such a concurrent representation would likely create a conflict of interest under Rules of Professional Conduct 1.7. Whether this conflict could be waived by the consent of the mediator and the divorcing party would depend on the facts and circumstances.
23.Utah Ethics Advisory Op. 47 (Utah St. Bar, July 1978).
24.Utah Ethics Advisory Op. 53 (Utah St. Bar, April 1979).
25.Utah Ethics Advisory Op. 74 (Utah St. Bar, Feb. 1981).
26.Utah Ethics Advisory Op. 95-01, 1995 WL 49472 (Utah St. Bar).
27.Utah Ethics Advisory Op. 96-12, 1997 WL 45137 (Utah St. Bar).
28.Utah Ethics Advisory Op. 97-09, 1997 WL 433814 (Utah St. Bar).
29.Utah Ethics Advisory Op. 98-14, 1998 WL 863905 (Utah St. Bar).
30.Utah Ethics Advisory Op. 01-03, 2001 WL 314288 (Utah St. Bar).
31.Utah Rules of Professional Conduct 1.2 (c) (emphasis added). See also Utah Ethics Advisory Op. 47.
32.See Utah Ethics Advisory Op. 98-14.
33.See Utah Ethics Advisory Op. 47.
34.Utah Ethics Advisory Op. 96-12.
35.Utah Ethics Advisory Op. 02-03.
36.Utah Ethics Advisory Op. 97-09.
37.Id.
38.Id.
39.Utah Rules of Professional Conduct 2.1.
40.Preamble, Utah Rules of Professional Conduct.
41.Id.
42.See Forrest S. Mosten, Unbundling Legal Services: A Guide to Delivering Legal Services a la Carte, (ABA Law Practice Management Section, 2000) (hereinafter, “Mosten”).
43.Johnson v. Freemont 868 F. Supp. 1226 (D. Colo. 1984). Our Opinion 74 considers an attorney providing “extensive undisclosed” assistance to be unethical as assisting in a misrepresentation.
44.Wesley v. Dan Stein Buick, 987 F. Supp. 884 (D. Kans. 1997).
45.See Kimberly Pochnau, Unbundling Civil Legal Services, A Critical Reader (ABA 1998).
46.Colo. R. Civ. P 11(b).
47.Alaska Bar Association Ethics Opinion No. 93-1 (permissible to interview client and draft pleadings without appearing in court); ABA Informal Ethics Opinion 1414 (1978) (permissible to advise and prepare pleadings; but extensive undisclosed participation would constitute misrepresentation); Arizona Opinion 91-03 (attorney may advise on domestic relations matters and prepare pleadings); Colorado Bar Association Ethics Committee Formal Opinion No. 101 (1998) (attorney may limit representation provided she makes sufficient inquiry into and analysis of factual and legal elements to provide competent representation); New York Opinion 613 (1990) (attorney may advise and prepare pleadings for a pro se litigant without entering an appearance).
48.See, e.g., Mosten, supra note 42; Mary Helen McNeal, Redefining Attorney-Client Roles: Unbundling and Moderate-Income Elderly Clients, 32 Wake Forest L. Rev. 295 (1997)
49.Utah R. Civ. P. 11.

Ethics Advisory Opinion No. 98-14

(Approved December 4, 1998)
Issue:
Is it unethical for a lawyer in a divorce case to advise a client that she may obtain a protective order pro se or to allow the client to appear pro se in the protective-order case, while the lawyer continues to represent the client in the divorce proceeding?

Opinion: Because a protective-order proceeding is a separate legal action from a divorce proceeding and is clearly delineated as such by state statute, an attorney who represents a client in a divorce proceeding is not automatically counsel for that client within the protective-order proceeding. Further, an attorney representing a client in a divorce proceeding is not ethically bound to represent the same client in a protective-order proceeding filed between the same parties. The lawyer may advise the client of her right to obtain a protective order and to do so pro se.
Analysis: Chapter 3 of Title 30 of the Utah Code governs divorce proceedings,1and Chapter 6 of Title 30 establishes a procedure for obtaining a “protective order” in a protective order or “cohabitant abuse” proceeding.2Sometimes, the relief sought in a protective-order action will overlap with or will be identical to relief sought in a divorce proceeding. The Ethics Advisory Opinion Committee has been asked whether an attorney who is representing a client in a divorce proceeding is required to represent the same client in a protective-order proceeding involving the same opposing party as the divorce proceeding. The request notes that, because the relief sought in the protective-order action may duplicate the relief sought in the divorce action, it may cause difficulty for one or both litigants to the actions, or to the court, if a party appears pro se seeking the issuance of relief pursuant to a protective order.
A lawyer has an obligation to advise a client of all lawful options to resolve a legal problem.3If an attorney believes that a protective order is appropriate in a case, the Rules of Professional Conduct may, therefore, require the attorney to advise the client of the option of obtaining a protective order. Because the protective-order system in Utah allows pro se litigants to obtain protective orders at no cost through the assistance of the court and without incurring attorney’s fees, an attorney may properly advise a client that she has the option not only of obtaining a protective order, but of obtaining one either through counsel or pro se. If an attorney advises a client of the availability of the protective-order system and of the possibility of obtaining a protective order without counsel, the attorney is not breaching any of the Rules of Professional Conduct.
It goes without saying that a lawyer cannot accept representation in a case, promise to represent a client in a protective-order proceeding, and then fail to do so. This would clearly be a violation of Rules 1.1, 1.2 and 1.4. Conversely, however, if the lawyer advises the client of the option of obtaining a protective order, and the client specifically elects to do so pro se, the attorney is ethically prohibited from interfering in the client’s decision, since this would violate the specific instructions from the client as to the scope and direction of the representation.4Once an attorney has advised a client of all her options in any case, it is exclusively the client’s right to determine whether to pursue one course of action or another, and whether to pursue relief pro se or with counsel. Under Rule 1.2(a), the lawyer is bound by the client’s determinations in this regard and may not act adversely to the client’s specific instructions. Indeed, it might violate a lawyer’s ethical obligations to insist upon appearing for a client in a protective-order case, if the client specifically instructed the attorney not to do so.
Practitioners should continue to bear in mind that it is a violation of the Rules of Professional Conduct for an attorney to approach a court to seek relief on behalf of a client when the relief is not sought in good faith.5It is likewise a breach of an attorney’s ethical obligations to suggest to a client that she advance a claim for relief in court pro se, when such an action is not brought in good faith. Obviously, it is a breach of an attorney’s ethical obligations to suborn perjury in seeking any relief from any court, and it is a breach of an attorney’s ethical obligations to suggest to a client that she make false statements to a court in seeking any relief, including pro se actions.
Footnotes
1.Utah Code Ann. §§ 30-3-1 to -38 (1998).
2.Id. §§ 30-6-1 to -14.
3.Utah Rules of Professional Conduct 1.1, 1.2(c), 1.4(a), 1.4(b) and 2.1.
4.Id. 1.2(a).
5.Id. 1.2(c), 1.16(b)(1), 1.16(b)(2), 3.1, 3.2 and 3.3.

Ethics Advisory Opinion No. 97-09

(Approved July 28, 1997)
The Opinion is the result of a specific inquiry from a Utah attorney who has proposed to provide legal services as outlined in the Facts section in the body of the Opinion. The Opinion addresses the ethical considerations of a lawyer who plans to perform certain estate-planning legal services in conjunction with a non-lawyer estate-planning professional who is not employed or retained by the lawyer. In general, we find that the lawyer must perform an independent role as legal advisor to the client, assuring that the estate plan and associated documents are legally appropriate to accomplishing the client’s objectives.

FACTS
An estate-planning lawyer (“Lawyer”) has been approached by non-lawyer estate-planning professionals (“Estate Planner”) to provide legal services to clients referred by Estate Planner, using the following procedures:
* Estate Planner will identify clients who require estate-planning services using advertisements, cold calls and other solicitation procedures. Estate Planner will meet with the client, complete with her a personal questionnaire form approved by Lawyer, and come to agreement with her about appropriate estate-planning vehicles to accomplish the client’s estate-planning goals.
* Estate Planner will discuss with the client whether the client has an attorney she would like to use to complete the estate-planning documents. In the event the client does not desire to use another attorney, Estate Planner will recommend that she retain Lawyer to perform the necessary legal services.
* If the client has indicated a desire to retain Lawyer to prepare the estateplanning documents, Estate Planner will telephone Lawyer and describe the client’s estate-planning objectives and the estate-planning vehicle being recommended by Estate Planner and will obtain a quotation from Lawyer as to the legal fees he will charge to perform the legal services of preparing final estate-planning documents. Lawyer anticipates that most fee quotations will be a fixed fee of less than $750. With respect to more complicated estates, Lawyer may quote an hourly fee or a fixed fee in excess of $750. In such cases, Lawyer will send a letter to the client confirming the amount or basis for the fee. Lawyer will obtain the name of the prospective client from Estate Planner and will perform a conflicts check.
* After conflicts have been cleared and Estate Planner’s client has agreed to be represented by Lawyer, Estate Planner will use a form prepared by Lawyer to create a “first draft” of the estate-planning documents. Estate Planner will not use Lawyer’s forms unless the client has agreed to retain Lawyer to perform the legal services.
* Estate Planner will deliver the “first draft” of the appropriate documents, together with the personal questionnaire to Lawyer. Lawyer will then telephone the client and verify that the client intends to retain Lawyer to perform the legal services of completing the estate-planning documents. If Estate Planner’s client agrees to be represented by Lawyer, Lawyer will (a) review the personal questionnaire, (b) review the first-draft of the estate-planning documents prepared by Estate Planner, (c) verify with the client the information set forth in the personal questionnaire, (d) inquire into the client’s estate-planning goals and objectives, and (e) if appropriate, discuss alternative estate-planning vehicles to the first-draft documents prepared by Estate Planner. In most cases, these communications will be by telephone, not in person.
* Lawyer will then finalize the estate-planning documents and prepare (but not send) a “firm letter” addressed to the client, transmitting the final estate-planning documents and indicating that, in the opinion of Lawyer, the final estate-planning documents are in accordance with applicable law and accomplish the goals and objectives set forth in the personal questionnaire.
* The “firm letter” will not be delivered to the client, but will be delivered to Estate Planner. Estate Planner will then deliver the firm letter and estate-planning documents to the client for execution.
* Lawyer does not intend to advise the client with regard to the execution of the estate-planning documents or with respect to the conveyance or transference of assets into trusts or other vehicles created by the estate-planning documents. Any advice required in these areas would be provided by Estate Planner.
* Lawyer will not advise the client as to the financial appropriateness of any investments recommended by Estate Planner as part of the client’s estate plan.
* Estate Planner will bill the client a fixed fee for Estate Planner’s services plus commissions with regard to any investment products sold to the client, such as life insurance. Estate Planner will bill separately from the Lawyer for Estate Planner’s services.
* Lawyer will bill separately for his services and will not share any portion of his fees with Estate Planner. Lawyer will not give anything of value to Estate Planner for recommending Lawyer’s services.
ISSUES AND DISCUSSION
Issue No. 1: Does a lawyer performing estate-planning legal services for a client in conjunction with a non-lawyer Estate Planner provide competent representation under Rules 1.1 and 1.2(b) under the foregoing statement of facts?
Analysis: The proposed procedures underlying the relationship between Lawyer and Estate Planner include limitations on the scope of the representation to be provided by Lawyer. Estate Planner, not Lawyer, will initially meet with the client and will counsel the client with respect to completion of the personal questionnaire form. The personal questionnaire form has been drafted to elicit the client’s estate-planning objectives, assets and intended beneficiaries. On the basis of the information provided by the client in the personal questionnaire, Estate Planner-not Lawyer-will initially identify the appropriate estate-planning vehicles to accomplish the client’s estate-planning objectives. It is Estate Planner-not Lawyer-who prepares the first draft of the estate-planning documents.
The legal services provided by Lawyer are: (1) a review of the personal questionnaire completed by the client and the draft estate-planning documents prepared by Estate Planner; (2) a consultation, normally by telephone only, with the client to verify the information contained in the personal questionnaire, the client’s estate-planning objectives, and the appropriate estate-planning vehicle to accomplish these objectives; and (3) preparation of final estate-planning documents and a “firm letter” advising the client that the final estate-planning documents accomplish the goals and objectives of the client. The legal services provided by Lawyer will not include advice to the client with respect to the financial appropriateness of investments described in the estate-planning documents or advice to the client about the appropriate means of executing the estate-planning documents or placing assets into the estate-planning vehicles created by the estate-planning documents.
The foregoing limitations on Lawyer’s services are intended to reduce the overall costs to the client of preparation of final estate-planning documents. The issue here is whether Lawyer has limited his services to the client to such an extent that he is no longer able to provide competent representation to the client.
Rule 1.1 of the Rules of Professional Conduct provides as follows: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” The Comment to Rule 1.1 states, in part: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.”
Rule 1.2(b) of the Rules of Professional Conduct provides: “A lawyer may limit the objectives of the representation if the client consents after consultation.” Finally, the Comment to Rule 1.2(b) provides, in part: “An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1.” (Emphasis added.)
Rules 1.1 and 1.2(b) are intended to provide a lawyer and a client some latitude to agree, after consultation, to limitations on the scope of services provided by the lawyer. A lawyer may not, however, agree to a scope of services that excludes the methods or procedures necessary for competent representation. A lawyer is under a duty to inform clients of the relevant facts, law and issues necessary for the client to make intelligent decisions regarding the objectives of the representation.1Lawyer does not, therefore, provide competent representation to estate-planning clients in this case if he declines to counsel the client as to the appropriate means of executing the estate-planning documents or as to the appropriate means of transferring assets into the estate-planning vehicles to accomplish the client’s objectives.
To provide competent representation, Lawyer need not personally present the estate-planning documents to the client or otherwise be present during the execution of the estate-planning documents by the client or during the transference of assets into the estate-planning vehicles. It would be generally sufficient for Lawyer to provide to the client a written protocol sufficient to permit the client and Estate Planner to execute the estate-planning documents properly and to transfer assets into the estate-planning vehicles so as to achieve the client’s estate-planning goals.
A lawyer has an obligation not only to advise a client of legal rights and responsibilities, but also to advise the client regarding the advisability of the action contemplated.2Lawyer does not, therefore, provide competent representation to the client if he declines to counsel the client as to the appropriateness or advisability of estate-planning vehicles recommended by Estate Planner.3If, for example, Estate Planner recommended a living trust as the appropriate estate-planning device, Lawyer may not merely advise the client as to the client’s rights and benefits under a living trust, but he must also counsel the client about other estate-planning options available to the client and about the advisability of the living trust for accomplishing the client’s estate-planning objectives.4
Competent representation does not, however, require that Lawyer counsel the client on the advisability of specific investment products recommended by Estate Planner (such as the relative merits of life insurance companies or life insurance products), if such services are outside the agreed scope of Lawyer’s services. A lawyer need not provide services ordinarily performed by investment or financial advisers. Competent representation does require that Lawyer counsel the client as to the appropriateness of life insurance or a life insurance trust in accomplishing the client’s estate-planning objective, if these products or vehicles were recommended by Estate Planner to accomplish the client’s estate-planning objectives.
Lawyer is under a duty to provide independent legal advice to a client and may not permit one who has recommended Lawyer’s services to the client to direct or regulate Lawyer’s professional judgment in rendering legal services.5It is therefore necessary to competent representation that Lawyer provide an independent, genuine and meaningful review of Estate Planner’s recommendations in conjunction with a consultation with the client. This issue of competent representation is tied to Issue No. 3 discussed below. A genuine and meaningful independent review cannot be afforded by Lawyer whose representation of the client is adversely affected by Lawyer’s referral relationship with Estate Planner.6
A lawyer is under a duty to communicate with a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.7Furthermore, where circumstances require, a lawyer is under a duty to verify information furnished by a client.8Competent representation, therefore, requires that:
(a) Lawyer will independently review the non-lawyer Estate Planner’s choice of the appropriate estate-planning vehicles in a genuine and meaningful way in conjunction with a consultation with the client.
(b) Lawyer’s communication with the client must be sufficient to reasonably satisfy Lawyer that:
(i)the client is competent to formulate and execute the estate plan,
(ii)the client filled out the personal questionnaire upon which Lawyer is relying,
(iii)the answers provided in the personal questionnaire correctly reflect the client’s estate-planning goals and intended beneficiaries, and
(iv)the estate-planning vehicles contained in the estate-planning documents prepared by Lawyer are appropriate to accomplishing the client’s estate-planning objectives.
(c) Lawyer will advise and counsel the client as to the advisability of the estate-planning vehicle recommended by Estate Planner. Lawyer should include in the scope of the client’s representation advice as to the appropriateness of the estate-planning vehicles recommended by Estate Planner (such as a life insurance trust) and advice or counsel as to the appropriateness for the client’s objectives of investments or other products sold to the client by Estate Planner.
(d) Lawyer will counsel the client how to execute the estate-planning documents and how to transfer assets to achieve the client’s estate-planning goals.
The quantum and form of communication necessary for a particular representation will depend upon many factors and must be assessed by Lawyer on a case-by-case basis. This communication with the client may, under some circumstances, require face-to-face communications. Telephonic communications will be sufficient under other circumstances. It is unlikely that non-interactive written communications alone will be sufficient under normal circumstances.
Issue No. 2: Does Lawyer violate Rule 1.6(a) if he delivers the final estate-planning documents he has prepared to the non-lawyer estate planner for delivery to and execution by the client?
Analysis: The proposed procedures underlying the relationship between Lawyer and Estate Planner contemplate that Lawyer will deliver the final estate-planning documents and the firm letter directly to Estate Planner for presentation to the client. The information contained within the final estate-planning documents is information relating to the representation of the client by Lawyer and is, therefore, confidential under Rule 1.6(a)9 of the Rules of Professional Conduct. Such information may not be disclosed by Lawyer without the client’s consent after consultation, unless one of the exceptions to Rule 1.6(a) stated in Rule 1.6(b) is applicable.
The exceptions of Rule 1.6(b) are not applicable under the facts of this Opinion. The comment to Rule 1.6(a) provides, in part: “The confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.” It therefore does not matter whether Estate Planner is already privy to the information contained in the final estate-planning documents. Unless the client has consented to the disclosure by Lawyer of the final estate-planning documents to Estate Planner, Lawyer violates Rule 1.6(a) in delivering the final estate-planning documents to Estate Planner for presentation to the client.
Issue No. 3: Does Lawyer have a potential conflict of interest under Rule 1.7(b) when advising the client concerning the appropriateness of estate-planning vehicles recommended to the client by Estate Planner?
Analysis: As was discussed in connection with Issue No. 1 of this Opinion, competent representation of the client requires that Lawyer counsel the client with respect to the appropriateness of the estate-planning vehicle recommended by Estate Planner to achieve the client’s estate-planning objectives. Providing such consultation to the client may place Lawyer in a conflict of interest under Rules of Professional Practice Rule 1.7(b):
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third party or by the lawyer’s own interests, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
If Lawyer is receiving or expects to receive a significant number of referrals from Estate Planner, Lawyer’s ability to advise the client as to the appropriateness of the estate-planning vehicles recommended by Estate Planner may be materially limited by Lawyer’s relationship with Estate Planner or by his interest in receiving future referrals from Estate Planner.10When Lawyer is receiving or expects to receive a significant number of referrals from Estate Planner, he may not accept the representation unless he reasonably believes that the representation will not be adversely affected and the client consents after consultation, including a disclosure of the potential limitations upon Lawyer’s representation.11 Lawyer’s reasonable belief that the representation will not be adversely affected will be tested by the standard of a disinterested lawyer.12
The Comment to Rule 1.7(b) provides: “[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such an agreement or provide representation on the basis of the client’s consent.”
Thus, Lawyer must carefully examine the nature and circumstances of the relationship with Estate Planner to verify compliance with Rule 1.7(b).
Issue No. 4: Is Lawyer responsible for conduct of Estate Planner that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer?
Analysis: Estate Planner will be soliciting clients for estate-planning services using cold calls and other procedures that would not be permitted under Rules of Professional Conduct 7.3(a) if engaged in by a lawyer. The procedures postulated in the Fact section of this Opinion make clear that Estate Planner is not an employee of Lawyer.13The issue, therefore, arises whether Lawyer is responsible for the conduct of the non-lawyer Estate Planner in soliciting clients who are later referred by Estate Planner to Lawyer.
Rule 5.3, Rules of Professional Conduct, provides as follows:
With respect to a non-lawyer employed or retained by or associated with a lawyer:
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
If Lawyer is “associated” with Estate Planner within in the meaning of Rule 5.3, then Lawyer (assuming Lawyer is a partner in his law firm) is required to take measures to assure the compliance of Estate Planner with the professional obligations of Lawyer, and Lawyer (whether or not a partner in his law firm) is responsible for any conduct of Estate Planner in violation of the Rules of Professional Conduct if Lawyer ordered, or with knowledge of the specific conduct, ratified the conduct involved.
Whether an “association” has been formed between Lawyer and the non-lawyer Estate Planner within the meaning of Rule 5.3 will depend upon (1) whether Estate Planner refers legal work only to Lawyer or to a limited group of lawyers of which Lawyer is one; (2) the frequency of referrals by Estate Planner to Lawyer and Lawyer’s expectation of future referrals; and (3) Lawyer’s assistance, if any, to Estate Planner in the conduct of Estate Planner’s services.
If Estate Planner has agreed to make referrals only to Lawyer, or to a small group of lawyers, the closer is the association between Lawyer and Estate Planner. Courts and ethics committees have recognized that the exclusivity of the referral relationship is material to assessing a lawyer’s responsibility for the conduct of an Estate Planner with whom Lawyer is working.14Similarly, the frequency of referrals from Estate Planner to Lawyer and Lawyer’s expectation of future referrals is relevant to the closeness of the association between Lawyer and Estate Planner. Finally, the greater the assistance afforded by Lawyer to Estate Planner in the soliciting or management of Estate Planner’s business, the closer the association between Lawyer and Estate Planner.15
The greater the association between Lawyer and Estate Planner, the greater is the justification for imposing upon Lawyer duties and responsibilities with regard to the conduct of Estate Planner under Rule 5.3. This analysis has the effect of discouraging de facto solicitation agreements designed to evade Rule 7.3.16
As the relationship between Lawyer and Estate Planner is described in the Request, it is sufficiently close to constitute an association for purposes of Rule 5.3. Estate Planner will refer all business of clients requesting a referral to Lawyer, Lawyer anticipates systematic and frequent future referrals, and Lawyer assists Estate Planner in soliciting clients and performing its services by providing Estate Planner the form estate-planning documents. Given Lawyer’s knowledge of the cold calls and other solicitation methods of Estate Planner that could not be engaged in by Lawyer under the Rules of Professional Conduct, Lawyer’s acceptance of referrals from Estate Planner will constitute a ratification of Estate Planner’s conduct and will make Lawyer responsible for the unethical solicitation by Estate Planner under Rule 7.3(a), Rules of Professional Conduct.17
In summary, Lawyer is responsible for conduct of Estate Planner if (a) the relationship between Lawyer and Estate Planner constitutes an association within the meaning of Rule 5.3, and (b) Lawyer orders or, with knowledge of specific conduct, ratifies the conduct involved. Whether the relationship between Lawyer and the non-lawyer Estate Planner constitutes an “association” for purposes of Rule 5.3 will depend on factors such as (i) whether Estate Planner refers legal work only to Lawyer or to a limited group of lawyers of which Lawyer is one; (ii) the frequency of referrals by Estate Planner to Lawyer and Lawyer’s expectations of future referrals; and (iii) Lawyer’s assistance, if any, to Estate Planner in the conduct of Estate Planner’s services.
Issue No. 5: If Lawyer provides forms of legal documents to the non-lawyer Estate Planner to use with its clients in preparing a first draft of estate-planning documents for later review by Lawyer, does Lawyer violate Rule 5.5(b) by assisting the non-lawyer Estate Planner in an activity that constitutes the unauthorized practice of law?
Analysis: Most of the courts and ethics committees that have considered ethical issues arising out of relationships between lawyers and non-lawyer estate planners have found the relationships unethical because lawyer is assisting the unauthorized practice of law by Estate Planner.18
Rules of Professional Conduct 5.5(b) provides in part: “A lawyer shall not: (b) Assist any person in the performance of activity that constitutes the unauthorized practice of law.” The courts and ethics opinions that have reviewed relationships between lawyers and estate planners have considered whether the activities of an estate planner constitute the practice of law. When an estate planner’s activities have constituted the practice of law, the lawyer’s acceptance of referrals has been found to violate Rule 5.5(b). These opinions have consistently found that the independent drafting of legal documents by estate planners constitutes the practice of law.19Similarly, it is the unauthorized practice of law for an estate planner to usurp a lawyer’s independent judgment as to the appropriate estate-planning vehicle and to relegate the lawyer to a mere scrivener.20
It is also the unauthorized practice for an estate planner to complete, or to assist clients in the completion of, form legal documents provided to an estate planner by a lawyer.21Some courts and ethics committees have found that it is the unauthorized practice of law for non-lawyer estate planners to counsel clients as to appropriate estate-planning vehicles to accomplish a client’s estate-planning objectives.22Others have not found it to be the unauthorized practice of law for estate planners to recommend estate-planning vehicles, so long as they refer to a lawyer the drafting of estate-planning documents.23
This Committee does not ordinarily decide issues regarding the unauthorized practice of law. However, it is unarguably the practice of law for Estate Planner independently to prepare the first draft of the estate-planning documents.24 Therefore, unless Estate Planner was acting as a non-lawyer assistant to Lawyer in the preparation of the first drafts and under adequate supervision of Lawyer, then Lawyer’s actions in providing forms to Estate Planner for the purpose of allowing Estate Planner to prepare the first draft of the estate-planning documents violate Rule 5.5(b). Lawyer is assisting a non-lawyer in an activity that constitutes the unauthorized practice of law.25
Some authorities have suggested that lawyers may avoid the risk of assisting in the unauthorized practice of law by Estate Planners through referral relationships with Estate Planners, if Lawyers engage Estate Planners as employees or independent contractors. These authorities have noted that Rule 5.3 authorizes lawyers to engage such non-lawyer assistants.26However, if Lawyer engages Estate Planner as a non-lawyer assistant, Lawyer becomes responsible for compliance with Rule 5.3, as was discussed in greater detail with respect to Issue No. 4 of this Opinion.
If Lawyer does engage Estate Planner as a non-lawyer assistant, he is required adequately to supervise the activities of Estate Planner in the preparation of first-draft estate-planning documents or in other activities constituting the practice of law. Absent adequate supervision of the non-lawyer assistant in such activities, Lawyer violates Rule 5.5(b) by assisting in the unauthorized practice of law.27 Furthermore, under the procedures described for the relationship between Lawyer and Estate Planner in the Fact section, numerous other ethical violations arise if Estate Planner is functioning as Lawyer’s non-lawyer legal assistant. Lawyer may not delegate to the non-lawyer assistant responsibility for establishing the attorney-client relationship.28The creation of an attorney-client relationship before Lawyer has ascertained the existence of an impermissible conflict of interest violates Rule 1.7,29and the cold calls performed by Estate Planner violate Rule 7.3 (prohibiting in-person solicitation).
Thus, unless the relationship between Lawyer and Estate Planner constitutes an “association” within the meaning of Rule 5.3 and Lawyer adequately supervises the non-lawyer Estate Planner in the preparation of the first-draft documents, Lawyer violates Rule 5.5(b) by providing forms of legal documents to the non-lawyer Estate Planner to use with its clients in preparing a first draft of estate-planning documents for later review by Lawyer.
Footnotes
1.Joos v. Auto-Owners Ins. Co., 288 N.W.2d 443 (Mich. App., 1979); In re Ratzel, 321 N.W.2d 543 (Wis., 1982).
2.See ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1523 (1987).
3.See Ore. State Bar, Formal Op. No. 1991-115 (replacing Op. No. 523).
4.See The Committee on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa, 1992); Ind. State Bar Assoc., Op. No. 4 (1992).
5.Utah Rules of Professional Conduct 5.4(c).
6.In The Committee on Professional Ethics and Conduct of the Iowa State Bar v. Baker, 492 N.W.2d 695 (Iowa 1992), the Iowa Supreme Court held that a lawyer did not provide a genuine and meaningful review of the estate planner’s recommendations of a living trust when, out of 50 to 60 total referrals, the lawyer did not once suggest to the client that the living trust (for which the estate planner earned fees administering) was not appropriate for the client’s situation.
7.Utah Rules of Professional Conduct 1.4(b).
8.See, e.g., Dixon v. Perlman, 528 So. 2d 637 (La. Ct. App. 1988).
9. “A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure.” Utah Rules of Professional Conduct 1.6(a).
10.Ind. State Bar Assoc., Op. No. 4 (1992).
11.See Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992).
12.Dallas Bar Assoc., Op. No. 1991-03, concerning a similar association between an estate planner selling living trusts and a lawyer, states that it would be highly unlikely that the relationship would allow the independent exercise of professional judgment required by a rule comparable to Utah Rules of Professional Conduct 5.4(c).
13.If Estate Planner is an employee of Lawyer, then Rule 5.3 would unquestionably apply. Lawyer would therefore be responsible for solicitation of clients by Estate Planner using methods and procedures violative of Rule 7.3(a), if Lawyer accepted the clients solicited with knowledge of the unethical solicitation. Rules of Professional Conduct 5.3(c)(1) and 8.4(a).
14.Ind. State Bar Assoc., Op. No. 4 (1992), addressed a relationship between a lawyer and an estate planner remarkably similar to the relationship analyzed in this Opinion. The Indiana Bar’s Legal Ethics Committee found that the proposed procedures complied with the Rules of Professional Practice. The Committee cautioned, however, that “if this agreement was an exclusive agreement between the Financial Organization and the Attorney, it may well be considered a referral service in violation of Rule 7.3.” See Dallas Bar Assoc., Op. No. 1991-03; Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992). In Mich. Bar Assoc., Op. No. RI-191 (Feb. 14, 1993), the Committee stated: “[R]eferrals given over only to one lawyer cannot help but generate ‘the definite appearance of a quid pro quo . . . . [which] constitutes giving value for a recommendation within the meaning of the rule.’”
15.Most of the authorities addressing this issue have done so in the context of Rule 5.5(b) (assisting in the unauthorized practice of law). See, e.g., Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695, 702-03 (Iowa 1992).
16.This analysis under Rule 5.3 is supported by Rules of Professional Conduct 8.4(a), which provides: “It is professional misconduct for a lawyer to: (a) Violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”
17.Utah Rules of Professional Conduct 5.3(c)(1) and 8.4(a).
18.The Committee on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992); People v. Macy, 789 P.2d 188 (Colo. 1990); Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); W. Va. State Bar, Op. 92-03; Ohio Supreme Court, Op. 92-15 (Aug. 14, 1992); Ore. State Bar, Op. No. 1991-115.
19.Bd. of Comm’rs of Utah State Bar v. Petersen, ___ P.2d ___, 315 Utah Adv. Rep. 38, 1997 WL 200040 (Utah 1997); see also W. Va. Bar Assoc., Op. No. L.E.I. 92-03; Ore. State Bar Assoc., Op. No. 1991-115; People v. Macy, 789 P.2d 188 (Colo. 1990).
20.Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992).
21.Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); Ind. State Bar, Op. No. 4 (1992).
22. Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); Ore. State Bar, Op. No. 1991-115; Supreme Court of Ohio, Op. 92-15 (Aug. 14, 1992). See Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992); Ind. State Bar, Op. No. 4 (1992).
23.W. Va. State Bar, Op. No. L.E.I. 92-03 n.2.
24.See notes 19 and 21, supra.
25.It is not for this Committee to decide whether the initial recommendation by Estate Planner to the client of the appropriate estate-planning vehicle or the later counseling by Estate Planner of the client respecting the execution of the estate-planning documents and the transference of assets into the estate-planning vehicles is the practice of law. If such activities do constitute the unauthorized practice of law, Lawyer also violates Rule 5.5(b) by accepting referrals and thereby assisting Estate Planner in the unauthorized practice of law. See note 18, supra.
26.Ind. State Bar, Op. No. 4 (1992); Penn. Bar Assoc., Inquiry No. 90-65.
27.Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993).
28.Id.
29.Id.

Ethics Advisory Opinion No. 96-07

(Approved August 30, 1996)
Issue:
What are the ethical implications of federal funding reductions and practice restrictions to Utah Legal Services lawyers?

Opinion: A Utah Legal Services lawyer must give all clients adequate notice of legislative changes and the effect they will have on a client’s representation. Funding reductions and practice restrictions may necessitate withdrawal from pending matters and intake restrictions on new matters. The attorney must make reasonable efforts to arrange for substitution of lawyers to handle pending matters, such as referring them to the Utah State Bar’s statewide pro bono coordinator.
Analysis: Congress has imposed dramatic funding cutbacks and imposed certain practice restrictions as part of the fiscal-year 1996 appropriations bill signed into law on April 25, 1996. Some of the practice restrictions are: a ban on advocacy before legislative or administrative rule-making bodies; a ban on initiating, participating or engaging in new class actions; a ban on collecting attorney fees; a ban on welfare reform litigation; a ban on abortion representation; a ban on prisoner representation; a ban on representation of certain aliens; and a requirement to make pre-litigation disclosures.
Two formal opinions of the ABA address the subject of funding reductions and practice restrictions and give reasonable guidance in this area.1
A. Giving Notice of Practice and Budgetary Limitations. Rule 1.4, Communication, Utah Rules of Professional Conduct, provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
A legal services attorney has an obligation to make an assessment with respect to ongoing provision of legal services to existing clients in light of funding reductions and new practice restrictions. Under Rule 1.4(a), the attorney is required to provide to existing clients and new clients as they are accepted notice of the risk or the likelihood that representation may be limited or terminated. When the risk is known and cutbacks must be made, clients must be promptly advised of terminating representation.
Rule 1.16, Declining or Terminating Representation, provides:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law; . . .
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: . . .
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Legal Services lawyers must determine if existing clients fall within representation practice restrictions or will be affected by present and future funding cuts. ABA Formal Opinion 96-399 does not permit lawyers to decide which clients to keep and which clients to let go solely on the basis of whether abandoning certain cases will facilitate future funding. With respect to the indigent client, the lawyer must do more than give reasonable notice to the client allowing time for employment of other counsel. An effort to arrange for substitution of pro bono lawyers to handle pending matters needs to be made.
The Bar’s statewide pro bono program is one possible source of alternative counsel. The responsibility for coping with funding reductions and practice restrictions does not fall solely on the shoulders of modestly paid legal services attorneys. The Comment to Rule 6.1 of the Utah Rules of Professional Conduct, Pro Bono Publico Service, makes clear that members of the Bar have an ethical duty to assist in the provision of legal services for those unable to pay:
The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal service to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the professional and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.
If more than lip service is to be paid to this ethical duty, the Bar, individually and collectively, must respond to the coming crisis in indigent representation imposed by the recent funding reductions and practice restrictions.
ABA Formal Opinion 96-399 also holds that “A representation cannot be terminated solely because it would violate the funding restrictions.” The opinion permits a legal services organization to make its own determination as to whether forgoing legal services funding and maintaining prohibited representations is more desirable than keeping the legal services funding and terminating prohibited representations. Where a legal services organization’s funding from the Legal Services Corporation is a small percentage of its overall funding, the organization may have two viable choices. However, where, as here, the Utah Legal Services’ budget is 84% funded by the Legal Services Corporation,2the option of forgoing Legal Service Corporation funding is not a real choice.
A lawyer has a continuing duty to communicate restrictions to existing and new clients and to advise them, for example, that representation in an eviction case may be limited in important respects (such as not pursuing unlawful denial of welfare benefits because of welfare reform litigation restrictions). Additionally, the legal services lawyer must communicate that he may not be able to continue to represent a client in certain new matters where a change in circumstances such as incarceration or change in immigrant status may involve practice restrictions. It may be difficult for the legal services lawyer to anticipate the restrictions that may arise with each client, and clients should be advised of practice restrictions so they understand that the lawyer’s services are or may be limited.
B. Client Consent to Restrictions and Withdrawal. Rule 1.7(b)(2), Utah Rules of Professional Conduct, provides that “A lawyer may not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to another client or to a third person or by the lawyer’s own interests, unless: . . . the client consents after consultation.” Some restrictions on providing a client full-service representation will require the legal services attorney to advise the client of those restrictions and, if the representation is to continue, to obtain a consent of the client to continue the representation after consultation with the client.
ABA Formal Opinion 96-399 in this regard provides, “A lawyer must abide by the client’s refusal to consent to limitation on representation and cannot withdraw solely because the client refuses his consent.” This is not to say that the lawyer will be unable to withdraw, but that the refusal of an existing client to consent to limitations on the representation cannot be the sole reason the lawyer is withdrawing. The lawyer may be facing malpractice issues if he is unable to resolve a client’s legal needs because of practice restrictions. If those practice restrictions will jeopardize funding that constitutes 84% of the budget of the legal services organization, the lawyer’s responsibility to other clients would also weigh in the decision to terminate representation for a client that did not consent to the restrictions. The legal services attorney would also be exploring the obtaining of alternative counsel outside the legal services organization.
Caseload restrictions are not new to legal services organizations, but the recent funding and practice restrictions create a new dimension for existing procedures already in place at legal services organizations. If practice restrictions or funding restrictions would create a caseload that adversely affects the representation of existing clients by defunding the organization or stretching resources too thinly the legal services lawyer may not be able to accept new cases. New clients, prior to engagement of representation, may sign an agreement that explains the limited scope of representation in light of practice restrictions. Even with client consent, if the representation of the client is so limited that its practical effectiveness is severely compromised, then the attorney should decline representation.3
The scope of representation can be limited by either the client or by the lawyer. Rule 1.2(b), Scope of Representation, provides: “A lawyer may limit the objectives of the representation if the client consents after consultation.” The official comment to Rule 1.2 states in part that, “Representation provided through a legal aid agency may be subject to limitations on the type of cases the agency handles.” In addition, the comment also states: “An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer’s services or the right to settle the litigation the lawyer might wish to continue.
In some cases, a lawyer may need to advise a client that he may be better off with another lawyer rather than consent to continue with the legal services lawyer where those activities would be restricted either through funding or practice restrictions under Rule 1.2, 1.7(b), and 2.1.4
C. Caseload Maintenance and Lawyer Competence. Rule 1.1 requires a lawyer to provide competent representation. The official comment to Rule 1.1 requires adequate preparation and attention to the case being represented for the client. Rule 1.3, Diligence, requires a lawyer to act with reasonable diligence and promptness in representing a client. A lawyer must manage his caseload so as to provide competent representation, acting with reasonable diligence and promptness. This would require a legal services attorney to decline new cases if budget cutbacks and staff reductions prevent prompt and diligent work for a client.
D. Pre-Litigation Disclosures. A troublesome practice restriction in the legal services appropriation bill covers mandated pre-litigation disclosures. The legislation requires legal services lawyers, when filing a complaint, to identify each plaintiff by name and to prepare a statement of facts written in English or in a language the plaintiffs understand that enumerate particular facts known to plaintiffs on which the complaint is based, signed by the plaintiffs. The statement would be kept on file by the legal services organization and made available to any federal department or agency who is auditing or monitoring the activities of the legal services organization. There is an escape clause on the disclosure of the identity of the client in the complaint that permits the party to move the court to avoid disclosure of the identity of any potential plaintiff pending outcome of litigation or negotiations until after notice and an opportunity for a hearing is provided. ABA Formal Opinion 96-399 observed that these disclosures could conflict with the lawyer’s obligations under Rule 1.6, Confidentiality of Information. A lawyer is required to consult with such clients about these requirements and include the client’s right to refuse to reveal his identity. The lawyer cannot ask for a consent to limitation on representation if the representation from the client’s point of view would be compromised.
The lawyer must advise future clients that they may proceed anonymously if they are represented by a non-legal services funded lawyer. If court permission to proceed anonymously is denied under the escape provision, the lawyer cannot obtain a consent to proceed if the disclosure would adversely impact the client. Otherwise, the client can give his informed consent and continue litigation with disclosure of his name.5
Rule 1.6 does not permit a lawyer to make the statement of facts required by this legislation available to federal auditors without the client’s consent. Legal Services Corporation-funded lawyers must use the same kind of caution in obtaining these consents as they do with regard to revealing a client’s identity.6
Footnotes
1.ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 96-399 (1996); see also ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 347 (1981).
2.According to Toby Brown, Utah State Bar Statewide Pro Bono Coordinator.
3.Rule 1.16(a)(1); ABA Formal Opinion 96-399.
4. ABA Formal Opinion 96-399.
5.Id.
6.Id.