Ethics Advisory Opinion 15-01

Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 15-01
Issued January 13, 2015


  1. 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?


    1. 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.


    3.         The Board is an administrative agency of the Executive Department created by the Utah Constitution.  Utah Const. Art 7, § 12.  The Board is charged with determining “when and under what conditions, subject to this chapter and other laws of the state, persons committed to serve sentences in Class A misdemeanor cases at penal or correctional facilities which are under the jurisdiction of the Department of Corrections, and all felony cases except treason or impeachment or as otherwise limited by law, may be released upon parole, pardoned, ordered to pay restitution, or have their fines, forfeitures, or restitution remitted, or their sentences commuted or terminated.”  Utah Code Ann. § 77-27-5(1)(a).  In addition to the constitutional and statutory bases for its authority, the Board is also governed by its own rules under the Utah Administrative Code, Section R671, et seq.  Currently, the Board is made up of a five-member panel who, by majority vote, make the aforementioned decisions.  Additionally, the Board employs a number of hearing officers who assist the Board by conducting hearings and writing recommendations utilized in the Board’s decision-making process.  When hearing officers or Board members write recommendations, those recommendations are not available to individuals outside of the Board and its employees, including the offender.[2]  The recommendations are classified as “protected” or as “non records,” pursuant to GRAMA.  Additionally, the votes of individual members attached to these recommendations are not released to the offender or others. Board members and employees may not remove material from the files or retain photocopies of the information.

    4.         When an offender is first convicted of a Class A misdemeanor or felony and committed to the custody of the Department of Corrections, the Board opens a file on that offender.  That file contains all of the records the Board possesses on the offender, including the offender’s criminal history, supervision history, and records pertaining to that offender provided by the Department of Corrections.  The Board opens only one file on each offender.  If an offender commits new offenses, is released on parole, etc., this additional information is added to the existing file.  When the Board makes a decision regarding an offender, it considers the entire file. For example, the Board will consider previous convictions, even those that have terminated, and previous paroles in making a current decision regarding an offender.  Of particular import, the Board member and/or hearing officer participating in a particular decision in an offender’s case has access to the confidential intra-Board memoranda containing recommendations and individual votes of each member regarding previous decisions.  Further, the Board and hearing officers are able to access any other confidential information contained in the file, including information from confidential informants, etc.  As necessary, Board members or hearing officers are occasionally recused from participating in any part of the decision-making process associated with a particular offender’s case.  Once recused, the Board member or hearing officer is prohibited from accessing the offender’s file and participating in any future decisions regarding the offender.

    Ethics Advisory Opinion No. 05-03

    September 30, 2005
    On May 6, 2005, the Utah Ethics Advisory Opinion Committee issued Utah Ethics Advisory Op. No. 05-03, 2005 WL 4748681 (Utah St. Bar). The Requestors of the Opinion filed a Petition for Review with the Board of Bar Commissioners pursuant § III(e)(1) of the Ethics Advisory Opinion Committee Rules of Procedure and § VI(a)(1) of the Utah State Bar Rules Governing the Ethics Advisory Opinion Committee. At a meeting of the Board of Bar Commissioners of the Utah State Bar on July 13, 2005, the Commission reviewed the conclusions and analysis of the majority view and the minority view of Opinion No. 05-03, and voted to issue a revised opinion, set forth below as Opinion No. 05-03. The initial Opinion No. 05-03 as originally issued by the Committee is appended in its entirety for historical reference only and should not be cited or used for purposes other than background.
    1. Issue: May a lawyer who serves as a domestic relations mediator, following a successful mediation, draft the settlement agreement and necessary court pleadings to obtain a divorce for the parties?

    2. Opinion: When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation. A lawyer may not represent both parties following a mediation to obtain a divorce for the parties.
    3. Analysis: The issue considered here was the subject of a prior opinion issued by the Ethics Advisory Opinion Committee in 1992. We have been asked to revisit this issue again because of the expansion and apparent success of divorce mediators in resolving domestic relations matters for pro se litigants for whom the cost of retaining legal counsel may be a serious financial burden. 1
    4. Utah Ethics Advisory Opinion 116 considered the following issue: “Under what circumstances may an attorney represent both parties in a divorce?”2 The answer given in Opinion 116 was “never,” based on the clear ethical mandates of Rules 1.7(a) and 1.7(b) of the Utah Rules of Professional Conduct.3 These rules establish a duty of undivided loyalty of counsel to a client.4 Opinion 116 concluded that our rules preclude concurrent representation of clients with directly adverse interests in the matter. Opinion 116 included a lengthy discussion of policy arguments favoring dual representation and policy arguments opposing dual representation in divorce proceedings and concluded that: “The concurrent representation of both parties in a divorce is an ethically unacceptable practice.”5
    5. In the 12 years since Opinion 116 was issued, the applicable rules and the arguments bearing upon dual representation in divorce proceedings have not materially changed. The arguably successful and beneficial development of alternative dispute resolution and mediation in the interim does not change our conclusion here. Since the Ethics Advisory Opinion Committee has no policy-making authority, the fact that parties to all lawsuits, including divorces, are increasingly turning to alternative dispute resolution with reportedly positive results to the public and Bar alike cannot alter the clear mandate of our Rules. Whatever the social, financial or other impacts of the alternative dispute resolution trend, and even assuming its worth and inevitability, the ethical rules we are charged to uphold have no “public policy” exceptions that would permit the Ethics Advisory Opinion Committee to rewrite the rules to achieve a result some may believe is beneficial, even if that revision is a carefully reasoned, narrowly crafted exception.6 (more…)

    Ethics Advisory Opinion No. 03-01

    Issued January 30, 2003
    1 Issue:
    May a Utah Assistant Attorney General serve as a hearing officer or other adjudicator for a Utah government agency on a matter for which the Office of Attorney General, which employs the attorney, may eventually undertake an advocacy role?

    2 Conclusion: Yes. Under the Utah Rules of Professional Conduct, a lawyer’s employment by the Office of Attorney General does not, by itself and without the lawyer’s personal involvement in the matter before him, preclude the lawyer from serving as a hearing officer for a governmental agency in a matter the Office of Attorney General may later undertake as an advocate for the agency.
    3 Background: From a roster the Utah State Office of Education maintain,1 an attorney in the Utah Attorney General’s office was randomly selected to serve as a hearing officer in a due-process hearing arising under the Individuals with Disabilities Education Act (“IDEA”).2 Petitioners were the parents of a disabled child. Respondent was the affected school district. The child’s parents were opposed to any Assistant Attorney General serving as a hearing officer because they claimed a potential conflict of interest between the Assistant Attorney General’s role as an impartial hearing officer and loyalty to his employer, which eventually might represent the school district in an advocacy role. Accordingly, Petitioners requested the Assistant Attorney General to recuse himself as a hearing officer.
    4 On October 10, 2002, the hearing officer issued a “Decision on Petitioners’ Motion to Recuse Hearing Officer,” granting the Petitioner’s Motion to Recuse, though he concluded “Respondents’ arguments [against recusal] are far more persuasive and logically correct” than Petitioner’s arguments. Notwithstanding what he viewed as Respondent’s superior arguments, the hearing officer recused himself because, among other reasons, he felt there is “a lack of clear guidance on the conflict of interest issue, and the current lack of any safe harbor from an ethics complaint.” The hearing officer subsequently requested an Ethics Advisory Opinion from the Committee on this issue.3
    5 Analysis: At the outset, we stress our opinion on the issue stated is necessarily limited to the scope of our jurisdiction—namely, whether an Assistant Attorney General who serves as a hearing officer under the facts summarized above will be in violation of the Utah Rules of Professional Conduct. We do not opine on how the IDEA, its supporting regulations and case law, the Utah Code of Judicial Conduct or public policy may bear on the issue. Our analysis and conclusion are, therefore, intentionally narrow and should not be construed otherwise.
    6 The primary rule applicable to this issue is Rule1.12 of the Utah Rules of Professional Conduct.4 By its terms, Rule1.12 prohibits an Assistant Attorney General from serving as a hearing officer and later representing either party in any subsequent dispute. The rule likewise prohibits any law firm an Assistant Attorney General may later join from representing either party in the same matter, unless he is screened and apportioned no fee, and the firm provides notice to the appropriate tribunal. Rule1.12 does not, however, preclude the Assistant Attorney General from serving as a hearing officer when no other lawyer in the Attorney General’s office will represent either party before that Assistant Attorney General when acting as a hearing officer. An Assistant Attorney General’s employment with the Attorney General’s office does not, by itself and without personal involvement in the matter as an Assistant Attorney General on behalf of the Attorney General’s Office, violate Rule1.12.

    Ethics Advisory Opinion No. 02-03

    (Issued February 27, 2002)
    1 Issue:
    What are the ethical obligations of an insurance defense lawyer with respect to insurance company guidelines and flat-fee arrangements?

    2 Opinion: An insurance defense lawyer’s agreement to abide by insurance company guidelines or to perform insurance defense work for a flat fee is not per se unethical. The ethical implications of insurance company guidelines must be evaluated on a case by case basis. An insurance defense lawyer must not permit compliance with guidelines and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured. If compliance with the guidelines will be inconsistent with the lawyer’s professional obligations, and if the insurer is unwilling to modify the guidelines, the lawyer must not undertake the representation. Flat-fee arrangements for insurance defense cases are unethical if they would induce the lawyer improperly to curtail services for the client or perform them in any way contrary to the client’s interests. Obligations of lawyers under the Utah Rules of Professional Conduct, including the duty zealously to represent the insured, cannot be diminished or modified by agreement.
    Insurance Company Guidelines
    3 Opinion Request Concerning Insurers’ Guidelines. The Ethics Advisory Opinion Committee has received a request for an ethics advisory opinion concerning insurance company guidelines for counsel who are employed to defend litigation brought by a third party against an insured. The requestors state that insurance companies doing business in Utah have incorporated in their defense-counsel retainer agreements certain billing protocols or guidelines governing attorneys’ procedures and payments that raise ethical issues.
    4 Prior Opinions. Although issues pertaining to insurance company guidelines have been the subject of considerable discussion elsewhere,1 they have not been addressed directly by this Committee.2 When ethical concerns about insurance company guidelines have been raised in ethics opinions from other jurisdictions, the opinions are generally consistent with the summary set forth in ABA Opinion No. 01-421:
    A lawyer must not permit compliance with “guidelines” and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured.
    Although most of the ethics opinions on insurance company guidelines take a general approach, a few—while acknowledging that certain guidelines may be appropriate—have taken issue with particular guidelines. For purposes of illustration, portions of selected ethics opinions from other jurisdictions are set forth in Appendix A. We do not intend to imply agreement with the conclusions of these opinions. Rather, we wish to describe more fully the kinds of concerns that have been raised elsewhere, many of which are raised directly in the request before us.
    5 Montana Supreme Court Decision. The Montana Supreme Court has issued an opinion that addresses these topics, but only after having determined that the insured is the sole client of the defense lawyer. Under that structure, the court noted that defense counsel (a) does not have a “blank check” to escalate litigation costs, (b) should consult with the insurer, (c) must charge reasonable fees, and (c) can be held accountable for its work. The Montana court then held that “defense counsel in Montana who submit to the requirement of prior approval [obtaining consent of the insurer prior to taking certain actions] violate their duties under the Rules of Professional Conduct to exercise their independent judgment and to give their undivided loyalty to insureds.”3

    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.

    Ethics Advisory Opinion No. 98-05

    (Approved April 17, 1998)
    Is it unethical for a defense attorney to offer a “full satisfaction” settlement, conditioned upon plaintiff’s waiving a claim for attorneys’ fees against a defendant?

    Opinion: It is not unethical for a defense attorney to present an offer of settlement conditioned on waiver of attorneys’ fees. The defense attorney in such a case has an obligation to represent the defendant zealously within the limits of the law.1Moreover, it is the defendant and not the defense attorney who controls settlement offers. The defense attorney in such a case is bound to convey settlement proposals, and to accept settlement offers, as dictated by the client.2
    This answer, however, does not fully address possible ethical issues raised in a situation in which a client is a plaintiff pursuing a claim under which the plaintiff may be able to recover attorneys’ fees for pursuing the cause of action. Such a circumstance could arise, for example, in many civil rights and employment discrimination actions.
    Practitioners representing plaintiffs in such circumstances should be aware of a potential conflict of interest between the plaintiff’s attorney and the client if the plaintiff receives a settlement offer that is conditioned on a waiver or dismissal of the claim for attorneys’ fees. This conflict of interest can arise where the plaintiff’s attorney has pursued the case in anticipation of recovering attorneys’ fees from the defendant at the conclusion of the proceedings.3
    Plaintiffs’ attorneys in such circumstances should be aware that this potential for a conflict of interest can be resolved by full disclosure in advance of this potential problem and the execution of an appropriate attorney-client fee agreement addressing this eventuality. So long as an attorney complies with the requirements of Rule 1.5 regarding fees,4the establishment of fees between lawyer and client and the method by which those fees are to be collected are matters of business and contract between the attorney and the client.
    Attorneys representing plaintiffs in such cases are advised, however, to review carefully the language of Rule 1.2 5regarding the scope of representation of clients-specifically the requirement that a lawyer must abide by a client’s decision to accept or reject an offer of settlement of a legal matter.
    It is not the purpose of this opinion to advise attorneys of all the possible ways to address the issue raised here; it is merely to alert practitioners to this issue. However, it is possible to address the problem by recognizing the issue early in the representation and agreeing with the client in advance concerning how the client will pay the attorney’s fee if attorneys’ fees are not recovered from the defendant. This might be accomplished by an agreement that the attorney would normally be paid on a contingent-fee basis, but alternately on an hourly fee basis if there is no recovery of attorneys’ fees from the defendant.
    It is important to note also what a practitioner cannot do to resolve this problem. It would be unethical for an attorney to contract in advance with a client that the client may not accept or that the attorney may veto a particular offer in settlement of a case. An attorney must convey all offers of settlement to a client, and the client must always have final say whether or not it will be accepted.6This ultimate client authority cannot be contracted away.

    Ethics Advisory Opinion No. 98-14

    (Approved December 4, 1998)
    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. (more…)