Ethics Advisory Opinion No. 98-04

(Approved April 17, 1998)
Issue:
May a private practitioner who has been appointed as special deputy county attorney to investigate and prosecute a single matter continue to represent criminal defendants in any jurisdiction in Utah?

Opinion: No. Even assuming such conduct is permitted by Utah statute, Rule 1.7(a) of the Utah Rules of Professional Conduct and the reasoning of Utah Ethics Opinion No. 126 prevent a special deputy county attorney from representing criminal defense clients in any jurisdiction in the State. In addition, Rule 1.10 prohibits any member of the special deputy’s law firm from representing criminal defendants in any jurisdiction in the State during the period of the appointment.
Analysis: A county attorney proposes to appoint a special deputy county attorney. The appointment would authorize the special deputy “to investigate and take whatever action, if any, you deem appropriate” regarding alleged misconduct by certain public officials. We have been asked whether the attorney appointed as special deputy or his law firm may continue to represent criminal defendants during the tenure of the special deputy’s appointment.
Before we turn to the Utah Rules of Professional Conduct, we note that Utah statutes directly prohibit a county attorney from representing criminal defendants in any jurisdiction within the state.1Although the elected county attorney is authorized by statute to appoint deputies as necessary to fulfill the requirements of the position,2these statutes do not provide that deputies or special deputies are exempt from the prohibition against representing criminal defendants under §§ 17-18-1(9) and 17-18-1.5(7)(a). Indeed, we think it unlikely that this prohibition could be circumvented merely by the appointment of deputies or special deputies. Therefore, we believe that §§ 17-18-1(9) and 17-18-1.5(7)(a) directly control and prohibit the specially appointed deputy from representing criminal defendants any place in Utah.3Utah Rule of Professional Conduct 1.10 then imposes the same restriction on other members of his firm.
However, even if the Utah statutes could be construed or were changed to allow a special deputy appointed to prosecute a particular matter to continue to represent criminal defendants, such conduct would violate the Utah Rules of Professional Conduct.
In Opinion No. 126,4we concluded that:
* A city prosecutor may not represent a criminal defense client in any jurisdiction.
* A city attorney with no prosecutorial functions who has been appointed pursuant to statute may represent criminal defendants in any jurisdiction but that city.
* A city attorney with no prosecutorial functions who is retained on a contract basis may represent criminal clients in any jurisdiction, provided Rule 1.7(a) is satisfied.
* An attorney who is a partner or associate of a city attorney is bound by the same proscriptions as the city attorney.
We based this opinion on Rule 1.7(a), which generally prohibits an attorney from representing directly adverse clients, and found that “a criminal defendant’s interests are, almost by definition, adverse to the interests of the sovereign and the political subdivisions to which the sovereign has delegated law-enforcement authority.”
Rule 1.7(a) provides an opportunity for a client to consent to an otherwise conflicted representation, but only if the attorney could “reasonably believe” that the dual representation would not be “adversely affected.” As we noted in Opinion No. 126, no attorney could reasonably believe she could represent a defendant charged with violation of the city’s ordinances, when the attorney is also that city’s prosecutor.
Opinion No. 126 goes even further, however, and finds that the city attorney cannot reasonably believe she could represent criminal defendants in any jurisdiction in Utah. Adopting the reasoning of the Utah Supreme Court in State v. Brown5and the U.S. Court of Appeals for the Fourth Circuit in Goodson v. Peyton,6we found that a city prosecutor’s representation of a criminal defendant may be obstructed by unconscious influences, and that those who undertake to represent the sovereign in criminal matters should not represent criminal defendants in any jurisdiction within the state.
Although the special deputy would be acting as a county prosecutor and not as city prosecutor, the reasoning of Opinion No. 126 applies. The special deputy may not represent any criminal defendants in any jurisdiction in Utah while he is also acting as a special prosecutor for a county.
Opinion No. 126 does offer an exception for some city attorneys who are appointed and not elected pursuant to statute, reasoning that appointed or contracted attorneys are less likely than the elected city attorney to be associated with the interests of the city. The exception in Opinion No. 126 for appointed city attorneys is, however, limited to those who have no prosecutorial duties. In the case before us, the special attorney’s appointment contemplates that he will file criminal charges if warranted by the investigation. Thus, he has been appointed as a special prosecutor, albeit focused on certain individuals and certain conduct, and cannot make use of this exception.
Finally, Rule 1.10(a) prevents any member of the special deputy’s firm from representing criminal defendants in any jurisdiction within the State, since the special deputy himself is so prohibited.
Footnotes
1.Utah Code Ann. §§ 17-18-1(9)(a), 17-18-1.5(7)(a); see also § 17-18-1.7(6)(c) (1995).
2.Utah Code Ann. § 17-16-7 (1995).
3.The Committee does not render legal opinions, but it has the authority to cite applicable case law and statutes “as necessary to the opinion.” Utah Ethics Adv. Op. Comm. Rules of Proc. § IV(a); see also id. § III(c)(2).
4.Utah Ethics Advisory Op. No. 126, 1994 WL 579846.
5.853 P.2d 851 (Utah 1992).
6.351 F.2d 905 (4th Cir. 1965).

Ethics Advisory Opinion No. 98-06

(Approved October 30, 1998)
Issue:
Members of a county attorney’s office have requested an advisory opinion concerning conflicts between (1) attorney-client relationships between a county attorney and county officers and (2) statutory duties of a county attorney under Utah Code Ann. § 17-5-206 to institute suits to recover or restrain unlawful payments of county funds.

Opinion: If a current attorney-client relationship exists between a county attorney or a deputy county attorney and a person who may be a defendant in an action under Utah Code Ann. § 17-5-206 to recover or restrain unlawful payments of county funds, the attorney with such an attorney-client relationship may not ethically participate in such an action, whether by way of investigation, evaluation, filing, prosecution, direction, supervision, or otherwise.1The rules of imputed disqualification of Utah Rules of Professional Conduct 1.10 do not apply to the office of a full-time county attorney, so that individual county attorneys or deputy county attorneys who are free from conflicts in the matter may participate in actions under § 17-5-206, provided that appropriate screening procedures are established and maintained. Past representations by individual members of a county attorney’s office must be evaluated for conflicts under the provisions of Rule 1.9.
Analysis: A. Introduction. In Utah, a county attorney is an officer of the county elected to a four-year term of office.2The county attorney must be an attorney duly licensed to practice law in Utah who is an active member in good standing of the Utah State Bar.3By statute, “[t]he county attorney is the legal adviser of the county.”4Among other duties, the county attorney must defend all actions brought against the county and must give, when required and without fee, an opinion in writing to the county, district, precinct, and prosecution district officers on matters relating to the duties of their respective offices.5
Lawyers in a Utah county attorney’s office may include both the elected county attorney and unelected deputy county attorneys.6By Utah statute, whenever the official name of any principal officer of a county is used in law conferring powers or imposing duties or liabilities, it includes deputies.7
County attorneys in Utah have a statutory duty to institute suits in the name of the county to recover or restrain unlawful payments of county funds. Utah Code Ann. § 17-5-206 provides:
Whenever any county legislative body shall without authorization of law order any money paid for any purpose and such money shall have been actually paid, or whenever any other county officer has drawn any warrant in his own favor or in favor of any other person without being authorized thereto by the county legislative body or by law and the same shall have been paid, the county attorney of such county shall institute suit in the name of the county against such person or such officer and his official bondsman to recover the money so paid, and when the money has not been paid on such order or warrants, the county attorney of such county upon receiving notice shall commence suit in the name of the county to restrain the payment of the same; no order of the county legislative body shall be necessary in order to maintain either of such actions.
When this statute applies, the county attorney or deputy county attorney involved may face a conflict if there is a current or past attorney-client relationship with the defendant.8
B. Application of Rule 1.10. Like other government attorneys, individual county attorneys and deputy county attorneys are subject to the Utah Rules of Professional Conduct. There are some situations where certain government lawyers are accorded somewhat different treatment in light of the constitutional or statutory context in which they operate. For example, this Committee has previously determined that the imputed conflict rules of Rule 1.10 of the Rules of Professional Conduct do not apply to the office of the Utah Attorney General in the same way they apply to attorneys in private firms.9Opinion No. 142 determined, as to the office of the Utah Attorney General, that the conflict-of-interest rules of Rule 1.10 apply only on an attorney-specific basis and that conflicts of one attorney in the Attorney General’s office should not be imputed to all attorneys in that office. Opinion No. 142 also determined that conflicts rules must be fully satisfied on an individual basis and that the Utah Attorney General must ensure that attorneys with conflict problems are removed and screened from the particular representation at issue.
Although the role, powers, and duties of county attorneys in Utah are significantly different from those of the Utah Attorney General, we believe that, for purposes of imputed disqualification under Rule 1.10, the office of a full-time county attorney should be analyzed in the same way as the office of the Utah Attorney General.10Across-the-board application of imputed disqualification rules to a full-time county attorney’s office would frustrate the fulfillment of the county attorney’s statutory duties and could require, at significant cost, excessive requirements for employment of private counsel. Accordingly, we conclude that, notwithstanding the usual imputation of conflicts of interest to all attorneys in a private firm under Rule 1.10, this strict imputation does not apply to the office of a full-time county attorney.
We also conclude, however, that the generally applicable conflicts rules of the Rules of Professional Conduct apply to each county attorney and deputy county attorney on an attorney-by-attorney basis. These rules include Rule 1.7 (Conflict of Interest: General Rule), Rule 1.8 (Conflict of Interest: Prohibited Transactions), Rule 1.9 (Conflict of Interest: Former Client); Rule 1.11 (Successive Government and Private Employment), Rule 1.12 (Former Judge or Arbitrator), and Rule 1.13 (Organization as a Client). A county attorney or deputy county attorney who cannot individually satisfy the requirements of these rules should not engage in, supervise, direct, or have access to confidential information pertaining to the representation in question. Moreover, county attorneys must adopt procedures to ensure that individual lawyers with conflict problems are sufficiently removed and screened from those matters so as not to compromise client confidences or any other purposes related to the representation as promoted by the Utah Rules of Professional Conduct.
C. Application of Rule 1.13. Consideration of Rule 1.13 (Organization as a Client) does not change this analysis. The duties defined by Rule 1.13 apply to government lawyers, except to the extent the responsibilities of government lawyers are otherwise controlled by the duties imposed upon them by law.11 Rule 1.13(b) provides an ethically sound method for a county attorney to deal with actions of county officers, county employees, or other persons associated with the county in violation of a legal obligation to the county:
If, in a matter related to the representation of an organization, a lawyer knows that an officer, employee or other person associated with the organization is engaged in, intends to engage in, or refuses to take action in violation of a legal obligation to the organization or that may reasonably be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization, except as required by law or other rules of professional conduct. Such measures may include among others: (1) asking reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act in behalf of the organization as determined by applicable law.
For example, in county matters governed by Utah Code Ann. § 17-5-206, Rule 1.13(b) imposes an ethical duty on county attorneys and deputy county attorneys not only to proceed in the best interests of the county but also to proceed only after giving due consideration to the seriousness of the violation and its consequences, the scope and nature of the attorney’s representation of the county, the responsibility of the county, the apparent motivation of the person involved, the policies of the county concerning such matters, and any other relevant consideration. We emphasize that Rule 1.13(b) also imposes an ethical duty on county attorneys and deputy county attorneys to assure that measures taken are designed to minimize disruption of the county organization and the risk of revealing information relating to the representation of the county to persons outside the county organization, except as required by law or other Rules of Professional Conduct.
Rule 1.13(c) provides for withdrawal in certain cases: “If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer has ‘good cause’ to resign or withdraw, as appropriate, under Rule 1.16(b)(6).” For example, if despite a county attorney’s best efforts in accordance with Rule 1.13(b), the board of county commissioners insists upon action that is clearly a violation of law and is likely to result in substantial injury to the county, and if the county attorney has a present attorney-client relationship with the board of county commissioners, the county attorney has good cause to resign or withdraw, as appropriate, from the attorney-client relationship with the board of county commissioners, if permitted by law.12
The question of whether Utah law imposes an attorney-client relationship between a county attorney and a board of county commissioners or individual county officers, such that withdrawal is not possible, is a matter of substantive law external to the Rules of Professional Conduct.13Nevertheless, it is clear to this Committee that county attorneys and deputy county attorneys are ethically bound by the provisions of Rule 1.7, even if this means that in some cases a county attorney or deputy county attorney, on an individual basis, cannot ethically perform certain statutory duties.
Rule 1.13(f) provides:
A lawyer elected, appointed, retained, or employed to represent a governmental entity shall be considered for the purpose of this rule as representing an organization. The government lawyer’s client is the governmental entity except as the representation or duties are otherwise required by law. The responsibilities of the lawyer in paragraphs (b) and (c) may be modified by the duties required by law for the government lawyer.
Although these and other provisions of Rule 1.13 may apply directly in matters involving § 17-5-206 pertaining to payments of county money, nothing in Rule 1.13 relieves a county attorney or deputy county attorney from complying with the confidentiality and conflicts rules of the Rules of Professional Conduct.14
If an action under § 17-5-206 to recover or restrain payment of county funds must be investigated, evaluated, filed or prosecuted, an individual evaluation and application of conflicts rules must be made as to each county attorney or deputy county attorney involved in the § 17-5-206 matter. If an individual county attorney or deputy county attorney is free from conflicts and therefore properly may undertake the § 17-5-206 matter, the fact that another attorney in the office could not do so, because of a current or former attorney-client relationship, does not bar the first attorney from participating in the matter, so long as adequate screening measures are established and enforced.
If an individual county attorney or deputy county attorney currently has an attorney-client relationship in any matter with a defendant in a contemplated action under § 17-5-206, that attorney may not participate in the § 17-5-206 matter directly or indirectly, whether in a supervisory role or otherwise, and may not have access to confidential information pertaining to the matter. The Committee believes that there are no circumstances where an attorney could reasonably believe that investigating, evaluating, filing or prosecuting a § 17-5-206 matter against a particular defendant would not adversely affect the attorney’s current attorney-client relationship with that defendant.
D. Application of Rule 1.7. An official comment to Rule 1.7 states, in pertinent part:
Ordinarily, a lawyer may not act as advocate against a client the lawyer represents in some other matter, even if the other matter is wholly unrelated. However, there are circumstances in which a lawyer may act as an advocate against a client. . . . [G]overnment lawyers in some circumstances may represent government employees in proceedings in which a government agency is the opposing party. The propriety of concurrent representation can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a degree not involved in a suit for a declaratory judgment concerning statutory interpretation.
We believe that a § 17-5-206 action against a current client of a county attorney or deputy county attorney to recover money paid or restrain the payment of money entails conflict to the degree prohibited by Rule 1.7.
Accordingly, we conclude that Rule 1.7 prohibits an attorney from participating in the § 17-5-206 matter against a current client, whether or not that attorney is the elected county attorney having express statutory duties pertaining to actions under § 17-5-206. A county attorney’s statutory duties to bring actions under § 17-5-206 do not justify or excuse violations of applicable conflicts rules of the Utah Rules of Professional Conduct.
If an individual county attorney or deputy county attorney formerly had an attorney-client relationship in any matter with the defendant in a contemplated action under § 17-5-206, under Rule 1.9 that attorney may not participate in the § 17-5-206 matter if the former representation pertained to the payment in question or was substantially factually related to the payment in question, unless the former client consents after consultation. Furthermore, under Rule 1.9, the attorney could not use confidential information or information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client15or when the information has become generally known.
In all cases, appropriate screening procedures should be used to protect confidential client information. Appropriate screening procedures should also be used to prevent participation, supervision or control, whether direct or indirect, by a lawyer with a conflict in the § 17-5-206 matter, including a county attorney having statutory duties with respect to § 17-5-206 matters.
E. Organization of County Attorney’s Office. The request submitted to the Committee inquired about a specific form of organization in a county attorney’s office under which specific attorneys would be assigned, among other responsibilities, ongoing responsibility for matters under § 17-5-206. Whether specific attorneys may undertake § 17-5-206 matters, however, pertains to their individual freedom from conflicts, which must be evaluated on a case-by-case basis, attorney by attorney. The specific form of organization in question, as described, does not address this required individual evaluation. Provided that each lawyer designated for § 17-5-206 matters is and remains free from conflicts individually, and provided that adequate screening measures are in place to protect confidential information and to prevent supervisory influence or control of the matter by a lawyer with a conflict, that form of organization does not create an ethical problem.16
Under Rule 5.1(b), each lawyer having direct supervisory authority over another lawyer in a county attorney’s office has an independent obligation to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. Under Rule 5.2(a), a lawyer is bound by the Rules of Professional Conduct, notwithstanding that the lawyer acted at the direction of another person. Under Rule 5.2(b), a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of a question of professional duty.
F. Obligation of Subordinates. The request submitted to the Committee asked whether a deputy county attorney could ethically obey the direction of a county attorney to undertake an action under § 17-5-206 if the county attorney determined that a conflict did not exist. The limited shield provided to subordinate lawyers under Rule 5.2(b) applies only if the supervisory lawyer’s resolution of a question of professional duty is reasonable. This opinion determines that, as to current clients of a particular lawyer, there are no circumstances where a lawyer could reasonably believe that investigating, evaluating, filing or prosecuting a § 17-5-206 matter against a particular defendant would not adversely affect the attorney’s current attorney-client relationship with that defendant. Thus, a county attorney’s contrary direction to a deputy would not be reasonable.17As to past representations, a county attorney could make reasonable resolutions of questions arising under Rule 1.9 and, if the deputy obeyed, the shield provided by Rule 5.2(b) would apply. For example, a county attorney could make reasonable determinations of matters under Rule 1.9 such as whether the matters are the same or are substantially factually related and whether the interests in question are materially adverse.18
The request submitted to the Committee further inquired whether a deputy county attorney could direct a nonlawyer subordinate to investigate a potential defendant in an action under § 17-5-206 without violating Rule 5.3. Rule 5.3(c)(1) answers this question directly: “A lawyer shall be responsible for conduct of such a person [a nonlawyer employed or retained by or associated with a lawyer] 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.” A deputy county attorney who, because of an individual conflict, could not investigate a potential defendant, could not ethically direct a nonlawyer assistant to do so.
G. Issues Not Addressed. As indicated in note 1, supra, several issues raised in the context of the ethical issues that we have addressed are beyond the scope of this Committee, and we decline to address them.
(a) We express no opinion on the legal questions of whether a county attorney’s performing statutory duties to defend actions against the county or to give written opinions to county officers relating to the duties of their offices establishes, without more, an attorney-client relationship with the officer. Furthermore, we have not assumed that the performance of such statutory duties, without more, establishes an attorney-client relationship with individual county officers. We note in this context, however, the requirement of Rule 1.13(d) that, in dealing with a county’s officers, employees, and constituents, a county attorney or deputy county attorney must explain the identity of the client when it is apparent that the county’s interests are adverse to those of the constituents with whom the attorney is dealing.19
(b) We also express no opinion on the legal questions of whether and how a county attorney or deputy county attorney may form (or have by operation of law) an attorney-client relationship with individual officers of a county.20Because the request submitted to the Committee and the materials submitted in response both assumed that an attorney-client relationship between a county attorney or deputy county attorney and a county officer or county officers may be established under given circumstances, this opinion makes the same assumption.21
(c) This Committee is not empowered to resolve conflicts, if any, between statutory duties and requirements of the Rules of Professional Responsibility. We can only opine on the ethical propriety of anticipated conduct of members of the Utah State Bar.22
(d) Finally, we express no opinion on legal questions concerning the authority of a county attorney to refer matters outside the county attorney’s office.
Conclusion: In spite of their having statutory duties, county attorneys and their deputies are ethically bound, on an attorney-by-attorney basis, by the conflicts provisions of the Rules of Professional Conduct.
Footnotes
1.Several relevant issues cannot be decided in this opinion because they are substantive issues of law whose determination is outside the scope of this Committee’s duties. See Rules of Procedure for the Ethics Advisory Op. Com. of the Utah State Bar §§ I, III(b)(3) and IV(a). These issues are outlined in § G of this Opinion.
2.Utah Code Ann. § 17-18-1.6.
3.Utah Code Ann. §§ 17-18-4, 17-18-5(2)(b).
4.Utah Code Ann. § 17-18-2.
5.Utah Code Ann. §§ 17-18-1(8)(a), (c) (counties not within a prosecution district); 17-18-1.5(6)(a), (c) (counties within a prosecution district). In Utah, the officers of a county are: three county commissioners, a county treasurer, a sheriff, a county clerk, a county auditor, a county recorder, a county attorney, a district attorney in a county which is part of a prosecution district, a county surveyor, a county assessor, and any others provided by law. Utah Code Ann. § 17-16-2. In counties having a taxable value of less than $100,000,000, the county clerk is an ex officio auditor of the county and performs the duties of the office without extra compensation. Id.
6.See Utah Code Ann. § 17-16-7 (every county officer may with the consent of the county legislative body appoint deputies and assistants as necessary for the discharge of official duties).
7.Utah Code Ann. § 17-16-8.
8.Under the Utah Rules of Professional Conduct, the client of a full-time county attorney or deputy county attorney is generally the county. See Rule 1.13(f) (“A lawyer elected, appointed, retained, or employed to represent a governmental entity shall be considered for the purpose of this rule as representing an organization. The governmental lawyer’s client is the governmental entity except as the representation or duties are otherwise required by law.”); see also Rule 1.13, cmt. (“The government lawyer’s client is generally the governmental entity itself, but the client relationship may be further defined by statute, ordinance or other law.”).
9.Utah Ethics Advisory Op. No. 142, 1994 WL 579860 (Utah State Bar).
10.The request before the Committee addresses the office of a full-time county attorney where all deputy county attorneys are full-time employees, and the analysis set forth in this opinion is made in that context. In the case of a part-time county attorney who is associated in a firm with an attorney who is not a full-time deputy, the imputation of conflicts as provided in Rule 1.10 is appropriate.
11.See Rules of Professional Conduct 1.13, cmt.
12.See also id.:
A lawyer for the government may have a legal duty to question the conduct of government officials and perform additional remedial or corrective actions including investigation and prosecution. The lawyer may also have an obligation to divulge information to persons outside the government to respond to illegal or improper conduct of the organizational client or its constituents. The remedial option under paragraph (c) concerning resignation under Rule 1.16 may be inconsistent with the government lawyer’s duties under the law. The obligation of the government lawyer may require representation of the public interest as that duty is specified by law.
13.See discussion in § G, infra.
14.See, e.g., Rule 1.13(e) (“A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7.”); Rule 1.13(b), cmt. (“The authority and responsibility provided in paragraph (b) are concurrent with the authority and responsibility provided in other rules. In particular, this Rule does not limit or expand the lawyer’s responsibility under Rule 1.6. . .”).
15.Rule 1.6(b)(4), for example, provides that “[a] lawyer may reveal such information [relating to representation of a client] to the extent the lawyer believes necessary: . . . (4) To comply with the Rules of Professional Conduct or other law.”
16.The request submitted to the Committee suggested that, in lieu of this form of organization, a county attorney’s office might ask that the Utah Attorney General, a lawyer from another county attorney’s office, or outside private counsel undertake an action under Utah Code Ann. § 17-5-206. If available, conflict referrals to attorneys outside the county attorney’s office would be an appropriate means of addressing conflict issues, just as they are in cases involving private law firms.
17.See Rule 5.2, cmt.: “If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it.”
18.See Rule 5.2(b), cmt.: “If the question is reasonably arguable, someone has to decide upon the course of action. That authority ordinarily reposes in the supervisor, and a subordinate may be guided accordingly. For example, if a question arises whether the interests of two clients conflict under Rule 1.7, the supervisor’s reasonable resolution of the question should protect the subordinate professionally if the resolution is subsequently challenged.”
19.See Official Comment to Rule 1.13(d):
There are times when the organization’s interest may be or become adverse to those of one or more of its constituents. In such circumstances the lawyer should advise any constituent whose interest the lawyer finds adverse to that of the organization of the conflict or potential conflict of interest, that the lawyer cannot represent such constituent, and that such person may wish to obtain independent representation. Care must be taken to assure that the individual understands that, when there is such adversity of interest, the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between the lawyer for the organization and the individual may not be privileged.
20.See Utah Rules of Professional Conduct, Scope (“The Rules simply provide a framework for the ethical practice of law. Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. . . . Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.”).
21.Cf. Rule 1.13(e) (“A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by a person or entity, other than the individual who is to be represented, properly authorized by the organization.”).
22.See Rules of Procedure for the Ethics Advisory Opinion Com. of the Utah State Bar § I; Cf. Utah Ethics Advisory Op. No. 97-12, 1998 WL 32435 (Utah State Bar). Although Utah Code Ann. § 62A-4a-403 obligates any person who suspects a child has been subjected to abuse to report such conduct to the nearest law enforcement officer, it is not a violation of the Rules of Professional Conduct if the attorney does not disclose such information, but the attorney may, to the extent the attorney believes necessary, disclose attorney-client information as provided in Rule 1.6(b).

Ethics Advisory Opinion No. 98-09

(Approved October 30, 1998)
Issues:
Is the Office of the Guardian ad Litem sufficiently similar to the Attorney General’s Office to render it a “government agency” within the meaning of the Utah Rules of Professional Conduct, and if so, does Rule 1.10 concerning imputed disqualifications, apply to the Office of the Guardian ad Litem? Does Rule 1.11, “Successive Government and Private Employment,” apply to the Office of the Guardian ad Litem?

Opinion: Both rules apply to the Office of the Guardian ad Litem. For purposes of Rule 1.10 the Office of the Guardian ad Litem is a “firm,” but the Office of the Guardian ad Litem’s government sponsorship and statutory duties also make that office a “government agency” for Rule 1.11 application. Under the Rules, the terms “firm” and “government agency” are not mutually exclusive and, in certain cases as with the Office of Guardian ad Litem both terms apply. Application of Rule 1.10 and Rule 1.11 serves to maintain confidentiality without unduly hampering the Office of the Guardian ad Litem from performing its duty to protect the best interests of children through hiring qualified attorneys.
Analysis: In response to an inquiry from the Office of the Guardian ad Litem, the Ethics Advisory Opinion Committee previously decided that that office is a “firm” for purposes of imputed disqualifications under Rule 1.10.1The Office of the Guardian ad Litem has submitted another request asking the Committee to reconsider the conclusion of Opinion 95-08 and to find that Rule 1.11 is the appropriate rule to apply to that office instead of Rule 1.10. As a request for reconsideration of a prior opinion, this request was not timely filed under our rules.2Nevertheless, because the request also raises a somewhat new issue involving Rule 1.11, we will grant a waiver of the 30-day requirement of Rule V(e)(1) and treat this as a late-filed request for reconsideration under our Rules of Procedure.
In Opinion 95-08, we found that the opportunity to discuss cases with other Guardian ad Litem attorneys, access to common files and common supervision required the Office of the Guardian ad Litem to be considered as a firm for Rule 1.10 purposes. It is, accordingly, subject to the application of rules dealing with conflicts, including Rule 1.7 and its companion rule, Rule 1.10.
For these purposes, the Office of the Guardian ad Litem is not a government agency similar to the Attorney General’s Office. First, the Utah Constitution broadly mandates that the Attorney General shall represent all the State officers, whose departments sometimes have conflicting interests, as well as undertake any other duties provided by law.3The Office of the Guardian ad Litem’s statutory mandate is narrowly defined and limited to representing minors before the court.4
Second, the Attorney General does not always represent specific clients, while the Office of the Guardian ad Litem’s statutory purpose is to represent the best interests of specific individual clients. For the purposes of determining whether an organization is a “firm” within the meaning of Rule 1.10, the identification of the structure and client is far more important than is the source of funding. Despite the fact that the government pays for the Office of the Guardian ad Litem, the office can still be a “firm” for conflicts purpose. For example, the government may hire a law firm to represent poor people in their personal law suits. This may be the only thing that the law firm does, and the government’s funding may be the only source of income. Nevertheless, the law firm would still be a “firm” within the meaning of Rule 1.10.
For these reasons, the Office of the Guardian ad Litem is different from the Attorney General’s Office, and we reaffirm our decision in Opinion 95-08 that the Guardian ad Litem is subject to full application of Rule 1.10.
We next turn to Rule 1.11, which deals with the ethical obligations of lawyers who move between government positions and private practice. In considering the applicability of Rule 1.11 to the Office of Guardian ad Litem, we note that Rule 1.10 and 1.11 are not mutually exclusive. The Guardian ad Litem’s request makes the foundational assumption that only one of these rules should apply to it. We do not reach this conclusion. For the reasons detailed in Opinion 95-08 and outlined above, the Office has firm-like characteristics for purposes of Rule 1.10. Yet, there are similarities between the Office of the Guardian ad Litem and the Attorney General’s Office. Both offices’ attorneys operate without some of the personal economic motivations of private-firm attorneys, as the attorneys receive a salary and not an hourly rate or a contingency fee.5The attorneys also serve the public interest, find the best solutions possible rather than serve only a client’s desires, and are employees of the State for the purposes of indemnification.6Thus, the Office of the Guardian ad Litem does share qualities with the Attorney General’s Office that allow for Rule 1.11 application.
As a government agency for Rule 1.11 application, the Guardian ad Litem can perform its statutory duties by hiring qualified attorneys while maintaining high ethical standards. Removing Rule 1.11 as a barrier for the Office of the Guardian ad Litem to hire qualified attorneys does not relax the individual lawyer’s responsibilities under Rules 1.7, 1.8, 1.9, and 1.10. The Office of the Guardian ad Litem can employ procedures to screen conflicting lawyers from compromising client confidences.
An effective screen needs to be in place before the potential for improper disclosure exists7and will contain the following types of elements: (1) a prohibition against the disqualified attorney from any participation, discussion, or information regarding the conflicting matter, (2) a restriction on access to files concerning the matter as well as on access to the disqualified attorney’s files and, (3) a memorandum circulated throughout the firm concerning the conflict of interest.8
Conclusion: Utah Rules of Professional Conduct 1.10 and 1.11 both apply to the Office of Guardian ad Litem: The office is a “firm” for purposes of Rule 1.10; and it is a “government agency” for purposes of Rule 1.11.
Footnotes
1.Utah Ethics Advisory Op. No. 95-08, at 10, 1996 WL 227375 (Utah State Bar).
2.Within 30 days of receipt of a response from the Committee under §§ V(b)(2) or V(b)(3), the recipient may seek reconsideration of Committee action by submitting a written request, outlining the factual, legal or policy considerations on which the request for relief is based.
Utah Ethics Advisory Op. Com. R. Proc. § V(e)(1
3.Utah Const., art. VII, § 16. See also Utah Ethics Advisory Op. No. 142, at 2, 1994 WL 579850 (Utah State Bar).
4.(1) The court may appoint an attorney guardian ad litem to represent the best interests of a minor involved in any case before the court . . . ; (2) An attorney guardian ad litem shall represent the best interest of each minor who may become subject of a petition alleging abuse, neglect, or dependency, from the date the minor is removed from his home by the Division of Child and Family Services . . . .
Utah Code Ann. § 78-3a-912 (Supp. 1997).
5.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342, at 119-20 (the channeling of advocacy toward a just result as opposed to vindication of a particular claim lessens the temptation to circumvent disciplinary rules). See also State v. Fitzpatrick, 464 So. 2d 1185 (Fl. Sup. Ct. 1985) (the lack of economic motivations for the attorneys lessens the temptation to share confidences).
6.Utah Code Ann. § 78-3a-912 (7) (Supp. 1997) (“An attorney guardian ad litem appointed under this section, when serving in the scope of his duties as guardian ad litem is considered an employee of the state for purposes of indemnification under Title 63, Chapter 30, Governmental Immunity Act.”); Utah Code Ann. § 63-30-10 (Supp. 1997) (“[i]mmunity from suit for all government entities is waived”). In Utah Code Ann. § 63-30-2 (Supp. 1997), a government entity is defined as a political subdivision. The Attorney General’s Office is a political subdivision.
7.Hunter Douglas, Inc. v. Home Fashions, Inc., 811 F. Supp. 566 (D. Colo. 1992) (screen in place before the disqualified attorney joined the firm).
8.See id.; Scheissle v. Stephens, 717 F.2d 417 (7th)

95-02A – May a law partner of a part-time justice court judge represent criminal defendants in the judicial district in which the justice of the peace sits?

(Approved January 26,1996)
Issue:
May a law partner of a part-time justice court judge represent criminal defendants in the judicial district in which the justice of the peace sits?

Facts: A and B are partners or associates of law firm X. A sits as a justice court judge on a part-time basis in the town of T. B’s practice involves representation of criminal defendants in the town of W (and perhaps several others) but not in the town of T. T and W are in the same Utah judicial district.
Analysis: First, it should be clear that B cannot appear before A. This would constitute “conduct that is prejudicial to the administration of justice”3and would surely result in A’s violation of the Code of Judicial Conduct.4
Second, an analysis of whether B can represent criminal defendants elsewhere requires an analysis of both ethical and statutory proscriptions.
The justice court is a creation of the Utah Constitution5with statutory limitations as to territorial and subject matter jurisdiction.6a By statute, it is not a court of record7and appeals are taken de novo to the circuit court of the county in which the justice court exists.8Thus the impact of a decision by a justice court judge is limited exclusively to the parties appearing before the court and is subject to independent review by a full-time judge on appeal.
In implementing this system of justice courts, the Legislature imposed certain limitations on the secondary legal employment of part-time justice court judges. These limitations are an exception to the general rule that full-time judges may not practice law.9The relevant statutory provision reads as follows:
A justice court judge may not appear as an attorney in any criminal matter in a federal, state, or justice court or appear as an attorney in any justice court or in any juvenile court case involving conduct which would be criminal if committed by an adult.10
A justice court judge who violates this restriction is subject to removal for willful misconduct in office.11
This statutory limit applies to the justice court judge, not to partners or associates. It is designed to protect the integrity of the justice court system, by avoiding any appearance of conflict of interest, and thus impropriety, on the part of the judge.
In contrast, the analysis of whether a partner or associate of a justice court judge may represent criminal defendants in the same jurisdiction must begin with the Utah Rules of Professional Conduct. The basic rule governing imputed disqualification is Rule 1.10, which provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2. The relevant question here is whether the justice court judge is prohibited by Rule 1.7 from representing criminal defendants; if so, partner or associate would be vicariously disqualified under Rule 1.10.
Rule 1.7(b) prohibits a lawyer from representation that might be materially limited by responsibilities to another client or by the lawyer’s own responsibilities, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The rule is designed to insure undivided loyalty on the part of the lawyer to his or her clients. The statutory prohibition of criminal defense work by justice court judges, however, is of a different order; it is designed to protect the justice court system from concerns about partisanship of judges. The barrier to criminal representation by justice court judges, therefore, is a matter of statutory design rather than legal ethics.
Because of the basis for disqualification of the justice court judge is the statute, rather than Rule 1.7, the disqualification is not imputed to the partner or associated by means of Rule 1.10.
This analysis does not, however, preclude the possibility that the partner or associate might be independently disqualified under Rule 1.7. If in the facts of a given case, the association with the justice court judge posed the possibility that the lawyer’s representation of the client might be materially limited, then the representation would be improper.
Finally, the analysis is not inconsistent with our conclusions in Opinion No. 126, which involved a conflicts analysis of a part-time city attorney’s representation of criminal defendants under Rule 1.7. That analysis concerned whether the attorney’s responsibilities to the city as client precluded the attorney’s representation of criminal defendants because of divided loyalties. In the case before us, it is not Rule 1.7, but the statutory scheme, which precludes the justice court judge from the representation.
Footnotes
1.This opinion amends and supersedes Opinion No. 95-02, previously approved on April 28, 1995.
2.The analysis and conclusion in this opinion apply equally to any lawyer practicing in the firm of the part-time justice court judge.
3.Utah rules of Professional Conduct Rule 8.4(d) (1990).
4.E.g., Utah Code of Judicial Conduct Canon 3.E(1)(b) (1994).
5.Utah Const. art. VIII § 1.
6.Utah Code Ann. §§ 78-5-103, -104 (1993).
7.Utah Const. art. VIII § 1; Utah Code Ann. § 78-5-101 (1989).
8.Utah Code Ann. § 78-5-120 (1989).
9.Utah Const. art. VII § 10
10.Utah Code Ann. § 78-5-128(3) (1995).
11.Utah Code Ann § 78-5-128(7) (1995).