Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 15-01
Issued January 13, 2015
- The Utah Board of Pardons and Parole (the “Board”) and a private attorney have jointly requested the Ethics Advisory Opinion Committee issue an opinion on what constitutes a “matter” as discussed in Utah Rules of Professional Conduct 1.11(a)(2) and 1.12(a). Specifically, in light of the nature of Board proceedings, do all decisions involving an individual offender constitute the same “matter” for purposes of Rule 1.11(a)(2) and 1.12(a)? What are the limitations on a former member of the Board or hearing officer in representing offenders before the Board?
- A former member of the Board (or hearing officer) may not represent an offender before the Board without the informed written consent of the Board where the former Board member (or hearing officer) personally and substantially participated in prior Board proceedings involving the same offender. However, the specific facts and circumstances of the subsequent representation, including, without limitation, the lapse of time between the two Board proceedings and nature of the offenses involved, may often provide a basis for the Board to waive any potential conflict in such a situation.
June 2, 2006
Issue: May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders?
If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent violation of the protective order?
Would it be permissible for the County Attorney’s Office to provide such legal assistance to victims of domestic violence as a governmental service and thereafter prosecute subsequent violations of the protective order if the civil division of the office assisted in the civil protective order and the criminal division in any subsequent prosecution?
Opinion: While statute, ordinance or employment contract may prohibit a government lawyer from representing individuals on a pro bono basis, the only ethical prohibition would arise from conflicts of interest provisions. Conflicts of interest rules would not prohibit the initial private representation but would prohibit the individual government lawyer from thereafter having any involvement in the prosecution of the abuser. It is conceivable that the pro bono work of one government lawyer in a large office with different divisions would have no impact upon another government lawyer in a different division handling a related matter for the government. However, it would be improper for the second lawyer to undertake to represent the governmental entity if the pro bono work undertaken by the first lawyer could create a material limitation for that second lawyer. Finally, two separate divisions of a governmental office can be established to undertake potentially conflicting work, provided that attorneys in one unit do not in any way “participate” in the work of the other unit (best achieved through “screening”) and provided that any representation of an individual or non-governmental entity fully complies with Rule 1.8(f). (more…)
Approved July 30, 1999
Issue: What are the ethical implications of the Office of the Attorney General’s proposed investigation to determine whether any Utah criminal laws were violated by the Salt Lake City Bid Committee for the Olympic Winter Games in view of the Attorney General’s prior association with the Bid Committee?
Opinion: The Utah Rules of Professional Conduct apply to the Attorney General and to each lawyer in the Office of the Attorney General on an individual basis. An evaluation of the ethical issues raised by the investigation invites inquiry under Rule 1.11(c) and Rule 1.7(b). Based on our review of the limited facts before us, we believe that neither the Utah Rules of Professional Conduct, generally, nor Rules 1.11(c) and 1.7(b), specifically, prohibit the Investigation per se. Because the analysis mandated by Rule 1.7(b) is fact- and context- specific, however, each lawyer responsible for or participating in the Investigation has an affirmative obligation to undertake an independent evaluation as to whether the requirements of Rule 1.7(b) are satisfied at each stage of the Investigation. At a minimum, such analysis requires that the Attorney General and each investigating lawyer reasonably conclude at each stage of the Investigation that their respective duties to consider, recommend and carry out appropriate courses of action with respect to the Investigation are not impaired by reason of any competing professional, personal or other interests. (more…)
(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. (more…)
(Approved July 2, 1997)
Issue: May an attorney, formerly employed by a government agency, represent a private client in challenging: (i) the validity or enforceability of statutes, rules, ordinances or procedures that the attorney participated in drafting; or (ii) specific contracts or easements that the attorney negotiated, drafted or reviewed for approval on behalf of the government agency?
Opinion: (i) As a general rule, a former government agency is not prohibited from representing a private client in matters that involve the interpretation or application of laws, rules or ordinances directly pertaining to the attorney’s employment with a government agency. (ii) The attorney may not, however, represent such a client where the representation involves the same lawsuit, the same issue of fact involving the same parties and the same situation, or conduct on which the attorney participated personally and substantially on behalf of the government agency. In any event, an attorney may not undertake representation adverse to any former client where the matter is substantially factually related to the matter for which the former client retained the attorney’s services. (more…)