Ethics Advisory Opinion No. 06-04

Issued December 8, 2006
1. Issue
: May a current or former client’s access to information in his client file in a criminal matter be restricted by his attorney?

2. Opinion: Absent prosecutorial or court-ordered restrictions, a former client’s access to his client file may not be restricted. In limited circumstances, a lawyer may delay transmission of certain information in a current client’s file.
3. Facts: In the course of representation, a public defender may develop client files that contain crime-scene photos, autopsy photos, victim body photos (such as in criminal or physical-abuse cases), third-party medical reports, victim-identification information (social security numbers, addresses and telephone numbers), psychological and psychosexual evaluations and reports regarding the client and others. Some of these documents in the client file may have been obtained through discovery or be subject to court-ordered or other prosecutorial restrictions on dissemination to the client. Not infrequently, current and former clients in criminal matters request all or portions of their files that may contain restricted materials.
Analysis:
A. As to Current Clients.
4. Rule 1.4 sets out the general rule:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.1
5. The obligation of a lawyer to keep the client “reasonably informed” and “promptly comply with reasonable requests for information” contained in Rules 1.4(a)(3), and (a)(4), implies that the lawyer may, under some circumstances, withhold information from a client whose request may be viewed as “unreasonable.” This is supported in comment [7] to Rule 1.4:
Withholding Information
[7] In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.2
Comment [7] makes clear that rules and court orders restricting disclosure of information that may become part of the client file cannot be disclosed to the client.
6. There are several rules and statutes that permit or impose dissemination restrictions on sensitive materials. Rule 16(e) of the Utah Rules of Criminal Procedure allows limits to be imposed on the use of information provided through discovery. Rule 16(f) further provides for the entry of court orders limiting dissemination of sensitive discovery.3 Information obtained from a governmental entity may be subject to court orders restricting dissemination under the Governmental Records Access and Management Act.4
7. Discovery that has been provided with restrictions on dissemination to a client in a criminal law case under Rule 16(e) or is subject to a court order limiting its release to the client may not be released to the client by the client’s lawyer, notwithstanding a specific request by the client or former client. It should be noted, however, that material in the client file that may have been submitted by third parties to defense counsel under restrictions imposed by law on the third party, but not defense counsel, may be subject to release to the client on request.5
8. If the client file contains information that is not subject to restrictions, comment [7] to Rule 1.4 gives the lawyer limited ability to withhold information in the client file on her own determination.6 Comment [7] makes explicit what has been left implicit in Rule 1.4—that a lawyer under some circumstances may delay transmission of information to a current client to which he “would be likely to react imprudently.” This phrase is remarkably broad, particularly in this instance where the text of the rule contains no explicit exception in this regard. The term “imprudently” is not defined in the comment or the Rules. However, the example provided in the comment [7] gives context for interpreting the scope of this implicit duty to a client. The example approves a lawyer’s withholding a report of a client’s psychiatric diagnosis when the examining psychiatrist indicates that disclosure would harm the client. The example is representative of the level of certainty that the lawyer needs to reach before invoking this exception on behalf of a current client.
9. In cases where it is clear that the client may be harmed by an immediate disclosure or, in other cases where the client might take reasonably anticipated “imprudent” action that would harm his interest or freedom, delayed communication of information may be justified.
10. The phrase “react imprudently” is limited further by comment [7], which provides that a lawyer cannot withhold information to serve his or another person’s interest or convenience. Based on the example in comment [7], we believe the lawyer is not justified in withholding information to spare a client from unpleasantness or shock or to serve a third party’s interest where a client makes a request for such material.7
11. Hazard and Hodes argue for a narrow reading of the comment:
The final paragraph of the comment to Model Rule 1.4 contains a statement respecting communication that might be misunderstood and perhaps would have been better left unsaid. Comment [7] permits a delay in communicating information if the client might “react imprudently to an immediate communication.” The examples given (of disturbing psychiatric diagnosis or of information embargoed by court order) are unusual, and the Comment must be understood to be limited to similarly unusual situations. In particular, the Comment should not be interpreted to mean that a lawyer may withhold information simply because he fears the client will make an “imprudent” decision about the subject of the representation, such as accepting an inadequate settlement offer. See Illustration 7 3. Such conduct would be paternalistic, and would fly in the face of Rule 1.2(a) which requires the lawyer to abide by the client’s decision as to settlement.8
12. Given that there is no explicit exception in Rule 1.4 and understanding that the comment to Rule 1.4 is not “authoritative,” a lawyer needs to proceed cautiously in this area with the perceived harm to the client being clearly identified and reasonably certain.
13. If a lawyer determines to withhold information from a current client, it is incumbent on the lawyer to make a full disclosure to the client of the materials withheld, the basis for withholding the information and the harm avoided or client interest being protected or advanced. If a client disagrees with the lawyer’s judgment, the client can consult further with the lawyer or other professionals or terminate the representation and request the full client file in the possession of the lawyer.
14. Rule 1.14, Client with Diminished Capacity, also may apply to restrict dissemination of information in the client file. The lawyer under this rule is charged to take “reasonably necessary protective action.” Comment [6] to Rule 1.4 acknowledges this possibility:
Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impracticable, for example, where the client is a child or suffers from diminished capacity. See Rule 1.14. When the client is an organization or group, it is often impossible or inappropriate to inform every one of its members about its legal affairs; ordinarily, the lawyer should address communications to the appropriate officials of the organization. See Rule 1.13. Where many routine matters are involved, a system of limited or occasional reporting may be arranged with the client.
15. The presumption under Rule 1.4 is that all information in a client file is the client’s unless restricted by a statute, discovery rule or court order, and, however unpleasant the information, unless the anticipated harm to the client is reasonably certain, the client is entitled to receive the information in his client file. This is not to say that the lawyer is required to copy and forward to a client all reports and information in his file without request, if the information is not necessary to the representation. However, if the client requests a full copy of the file or certain reports or information, unless otherwise restricted, it must be provided to the client, unless exceptional circumstances apply.
16. The Restatement of the Law Governing Lawyers provides:
On request, a lawyer must allow a client or former client to inspect and copy any document possessed by the lawyer relating to their representation unless substantial grounds exist to refuse.
Unless a client or former client consents to non delivery or substantial grounds exist for refusing to make delivery, a lawyer must deliver to the client or former client, at an appropriate time and in any event promptly after the representation ends, such originals and copies of other documents possessed by the lawyer relating to the representation as the client or former reasonably needs.10
17. Comment c of § 46 of the Restatement provides, in part:
Under conditions of extreme necessity, a lawyer may properly refuse for a client’s own benefit to disclose documents to the client unless a tribunal has required disclosure. Thus, a lawyer who reasonably concludes that showing a psychiatric report to a mentally ill client is likely to cause serious harm, may deny the client access to the report (see § 20, Comments c and d; and § 24, Comment c). Ordinarily, however, what will be useful to the client is for the client to decide.11
We believe that this commentary is consistent with the Utah Rules of Professional Conduct and accordingly adopt its conclusion.
B. As to Former Clients.
18. Rule 1.16(d), Declining or Terminating Representation, provides, in part: “The lawyer must provide, upon request, the client’s file to the client.” Comment [9] to Rule 1.16 states:
Upon termination of representation, a lawyer shall provide, upon request, the client’s file to the client notwithstanding any other law, including attorney lien laws. It is impossible to set forth one all-encompassing definition of what constitutes the client file. However, the client file generally would include the following: all papers and property the client provides to the lawyer, litigation materials such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions, business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer’s work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings.
19. A former client’s right to material that constitutes the client file is almost always unrestricted, notwithstanding a concern over a client’s reaction to or subsequent use of expert’s evaluations or reports, discovery, correspondence, crime scene photos and other papers. However, information or material received by the client’s lawyer that is restricted by statute, court rule or court order is not a part of the “client file” that the client or former client has a right to receive.
C. An Exception.
20. An exception to unrestricted access that applies to both current and former clients making requests for information in their client file is found in Rule 1.2(d):
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any professional conduct with the client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
If the lawyer knows that material in a client file will be used in conduct that is criminal or fraudulent, she may decline to assist the client by withholding the material, but she must so inform the client of her belief and reasons for withholding information in the client file that the client would otherwise have unrestricted right to receive. The unrestricted right of a former client to his client file was confirmed in our recent Opinion No. 06 02. 12 Other jurisdictions have reached similar conclusions.13
Conclusion:
21. Other than material subject to restrictions imposed pursuant to Rule 16 of the Utah Rules of Criminal Procedure, court order or by a statute 14 (which do not become part of the “client file”), the client or former client, if competent and not engaging in fraudulent or criminal conduct, has a right to all material in the client file under Rule 1.16 and our Opinion No. 06 02. However, in the exceptional circumstance where harm to a current client is reasonably certain if the information is given to the client, delayed transmission of information under Rule 1.4 may be justified to protect the client. For either current or former clients, material that is part of the client file may be withheld to prevent fraudulent or criminal conduct.
Footnotes
1. Utah R. Prof. Conduct 1.4 (2006). Subsequent references to the Rules are to the Utah Rules of Professional Conduct, effective November 1, 2006.
2. Id., cmt. [7] (emphasis added). Rule 3.4(c) provides that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”
3. Rules 16(e), (f) and (g) of the Utah Rules of Criminal Procedure provide:
(e) When convenience reasonably requires, the prosecutor or defense may make disclosure by notifying the opposing party that material and information may be inspected, tested or copied at specified reasonable times and places. The prosecutor or defense may impose reasonable limitations on the further dissemination of sensitive information or to protect victims and witnesses from harassment, abuse or undue invasion of privacy, including limitations on the further dissemination of videotaped interviews, photographs, or psychological or medical reports.
(f) Upon a sufficient showing the court may at any time order that discovery or inspection be denied, restricted, or deferred, that limitations on the further dissemination of discovery be modified or make such other order as is appropriate. Upon motion by a party, the court may permit the party to make such showing in whole or in part, in the form of a written statement to be inspected by the judge alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the party’s statement shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
(g) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed or it may enter such other order as it deems just under the circumstances.
4. Utah Code Ann. §§ 63 2 202, -206 (2006).
5. See, e.g., S. Car. Ethics Op 98 10, http://www.scbar.org/member/opinion.asp?opinionID= 499 (client mental health records delivered by physician marked “not to be shown to the patient” and held by the lawyer to be turned over to client upon his request after representation ends, notwithstanding that, under an applicable state statute, a physician can withhold from a patient a patient’s medical information).
6. Although comments to the Rules of Professional Conduct are not authoritative, they provide guidance in applying our Rules: “The comment accompanying each rule explains and illustrates the meaning and purpose of the rule. The Preamble and this note on Scope provide general orientation. The comments are intended as guides to interpretation, but the text of each rule is authoritative.” Utah R. Prof. Conduct, Preamble [21].
7. At least one state has modified comment [7] to Rule 1.4 to foreclose the possibility of any broad reading that would erode the mandate of Rule 1.4. North Dakota has adopted the following comment to Rule 1.4 as it applies to withholding information:
When a lawyer reasonably believes the disclosure of certain information to a client would have a high probability of resulting in substantial harm to a client or others, the lawyer may withhold or delay the transmission of the information, but only to the extent reasonably necessary to avoid the harm. For example, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold or delay the transmission of information to serve the lawyer’s own interest or convenience. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.
N. Dak. R. Prof. Conduct 1.4, cmt. [4].
8. GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 7.4, at 7-8 to 7-9 (3d ed. 2001).
9. The “client file” does not necessarily refer to all information that is in the physical file the lawyer maintains and develops for the client. It does not include, for example, lawyer work product or unfiled pleadings. Rule 1.16, cmt. [9].
10. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §§ 46(2) & 46(3) (2000).
11. Id. cmt. c.
12. Utah Ethics Adv. Op. 06-02, 2006 WL 7134886 (Utah St. Bar).
13. See S.Car. Ethics Op. 98-10, n.3.
14. E.g., Utah Government Records Access and Management Act, Utah Code Ann. §§ 63-2-101 et seq. (2006).

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).