Ethics Advisory Opinion 15-05

Utah State Bar

Ethics Advisory Opinion Committee
Opinion Number 15-05
Issued September 30, 2015

ISSUE

  1. May an attorney pay an internet service company a nominal fee to bid on potential legal work? May an attorney seek clients through an internet business that provides the attorney with limited client information in order to permit the attorney to bid to provide the needed legal services?

OPINION

  1. Payment of a nominal fee to the internet forum service provider described herein, thereby enabling the attorney to offer a bid  for legal services to a potential client, does not violate: (a) Rule 7.1, Communications concerning a Lawyer’s Services; (b) Rule 7.2, Advertising, or (c) Rule 7.3, Direct Contact with Prospective Clients.  Using such an internet business to seek new clients does not violate Rule 1.18 or other rules of professional conduct provided the attorney does not undertake representation for which he has a conflict of interest and the attorney protects the confidentiality of the information received from the prospective client.

BACKGROUND

  1. A new internet service provider website has emerged for Utah business market consumers, including potential clients who need and/or seek legal services.  The website is an internet forum designed to help all consumers, obtain bids or quotes on various professional services, including legal services, in the geographic area where the potential consumer or client lives or where the potential services are needed.  Professionals, including attorneys, may create a profile on the service website (free of charge both to the consumer and to the professional). These professionals may respond in writing to consumer requests for bids or quotes on proposed services.  Consumers, including potential legal clients, are allowed to review the professionals/potential attorneys’ submissions, such as attorney biographies, other client analysis of such attorney services, and attorney case summaries.  The consumer/potential client may then leave comments or recommendations on the website for separate consumer access.
  2. This internet forum service is akin to the popular Angie’s List website, www.angieslist.com, which also allows consumers to find professional services the consumer either wants or requires in an identified geographic area.  Yet a critical difference between Angie’s List and the internet forum service provider described in this Opinion is that the Angie’s List service charges consumers to become Angie’s List “members” in order to take advantage of Angie’s List services.   In contrast, the internet service described in this Opinion is available cost-free to consumers.  Instead, the internet service charges the professionals, including attorneys, for this internet service when the professionals submit bids to the consumer with respect to the consumer’s requested service.  In order for an attorney to submit a bid to the potential client for requested legal services, the attorney must pay a nominal fee of approximately $3.00 – $5.00 per bid to the internet service provider.  The attorney must pay this fee for each bid, regardless of whether the bid actually results in any work for the consumer/client.
  3. Any Utah lawyer can register on the internet forum service provider described herein and submit a resume and/or listing of attorney qualifications for designated legal services. The internet service confirms that the Utah State Bar has in fact licensed the bidding attorney.  The attorney, who has registered with the internet service, selects a category of requests he/she would like to receive, such as tax litigation, contract law, criminal law, etc.  The attorney also sets a travel geographic area to specify the maximum distance the professional would limit his/her services.
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Ethics Advisory Opinion 14-05

Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 14-05
Issued December 22, 2014

ISSUE

  1. When an Attorney (A) is representing another Lawyer (L) in a legal malpractice or disciplinary action, and Lawyer L undertakes to represent a client in a matter adverse to a client of Attorney A, what are the ethical considerations?

OPINION

2.         Attorney A representing a Lawyer L in a disciplinary or legal malpractice matter may face a concurrent conflict of interest if the Lawyer L (client) represents an individual who is an opposing party to a client represented by Attorney A.  A concurrent conflict of interest would arise if there is a significant risk that Attorney A’s representation of Lawyer L be will materially limited by her responsibilities to the client being sued by Lawyer L’s client; or if there is a significant risk that Attorney A’s representation of a client against Lawyer L’s client will be materially limited by her representation of Lawyer L.  Whether this situation poses a serious risk of materially limiting Attorney A’s representation requires analyzing the factual situations presented.

3.        Lawyer L may also face a concurrent conflict of interest if this dual relationship creates a significant risk that Lawyer L’s representation of his client against Attorney A will be materially limited.  Here, too, the factual context will be determinative.

4.         Even if such a concurrent conflict of interest is created, it may be possible for all affected clients to give informed consent, confirmed in writing, to the conflict.

5.         Because the risk that representation may be materially limited due to this situation will often be due to a personal conflict of interest, in many cases other lawyers in the firms of Attorney A and Lawyer L will be able to be involved in the representation without creating a conflict of interest.

BACKGROUND

6.         Some Attorneys (A) undertake to represent other lawyers in legal malpractice or disciplinary actions.   In most such cases, the Lawyer (L) facing discipline or a malpractice action continues to practice law.   As a result Lawyer L may undertake to represent a client in a matter in which the opposing party is represented by Attorney A and/or Attorney A’s firm.

7.         The scenario presents questions both for Attorney A who is representing the Lawyer L in a disciplinary or malpractice action, and for Lawyer L who is representing a client in a case where his personal Attorney A is representing the opposing party.

ANALYSIS

8.         Ethical rules prohibit conflicts of interest in order to protect client confidentiality and promote loyalty. Rule 1.7 of the Utah Rules of Professional Conduct governs concurrent conflicts of interests and provides:

“(a) . . . A concurrent conflict of interest exists if:  (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

The scenario described above is not one of direct adversity – neither Attorney A nor Lawyer L is representing a client who is “directly adverse to another client.”
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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. (more…)

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. (more…)

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. (more…)

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. (more…)