Ethics Advisory Opinion No. 13-03



Opinion No. 13-03

Issued September 11, 2013


      1.   Whether a lawyer violates her duty to diligently represent a client who wishes to appeal a juvenile court’s order, but refuses to sign the Notice of Appeal (which will be dismissed without appellant’s signature pursuant to statute) due to her diminished capacity.


      2.   Under Rule 1.14, if the lawyer believes the client is at risk of substantial harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer should take reasonable steps to protect the client’s interests.


      3.   Lawyer has defended Client’s parental rights in child welfare proceedings.  Client has been found permanently criminally incompetent and was receiving extensive services through Division of Services for People with Disabilities (DSPD).  DSPD determined that Client has diminished capacity.  Lawyer has always been able to effectively communicate with Client and has defended Client’s parental rights in accordance with her wishes.  The State filed a Verified Petition for Termination of Parental Rights, and Lawyer represented Client at trial.  On four occasions—at the beginning of trial, during trial, and after the Court ruled to terminate Client’s parental rights—Lawyer advised Client of her right to an appeal and advised Client that she would be required to sign a Notice of Appeal.  On all four occasions, Client indicated she would refuse to sign anything but wanted to appeal.  Utah Code Ann. § 78A-6-1109 requires an appellant’s signature on every Notice of Appeal from a juvenile court order.  If the Notice of Appeal is submitted without signature, the appeal is dismissed and the appellant loses his or her right to the appeal.  Lawyer filed a Motion for Extension of Time and an Affidavit of Diligence and awaits a response from the Court.


      4.   Rule 1.3 requires that lawyers “act with reasonable diligence and promptness in representing a client.”  Utah R. Prof. Conduct 1.3.  Moreover, the Rules specifically address representation of clients with diminished capacity in Rule 1.14.  The Rule states:

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Utah R. Prof. Conduct 1.14.  The Rules define the term “substantial” as “a material matter of clear and weighty importance.”  Utah R. Prof. Conduct 1.0(m).

Ethics Advisory Opinion No. 08-02

Opinion No. 08-02
Issued March 11, 2008
¶ 1. Issue:
Under what circumstances may an attorney who has represented a party in conjunction with a proceeding to appoint a guardian for an adult incapacitated person represent the guardian that is subsequently appointed as a result of that proceeding?

¶ 2. Conclusion: The representation of a court-appointed guardian by an attorney who has also represented one of the parties to the proceeding for the appointment of the guardian must be analyzed under Rules of Professional Conduct, Rules 1.7 and 1.9, the same way an attorney would analyze any conflict of interest between two current clients or between a current and former client. If the facts and circumstances of the case raise the specter of a direct or material adversity, or if the representation of another client creates a material limitation on the lawyer’s ability to represent the guardian effectively in light of the fiduciary, statutory and court imposed obligations on the guardian, the attorney should either avoid the joint representation or exercise great care in obtaining the informed written consent of both affected clients. If there is an on-going proceeding involving both the former client and the prospective new client (the guardian), the conflict may not be waived and the representation of the guardian must be avoided.
¶ 3. Background: The issue addressed by this opinion arises in the context of a request under Utah Code Ann. § 75-5-303 (1988) for the appointment of a guardian of an incapacitated person. Under that section, the incapacitated person herself or “. . . any person interested in the incapacitated person’s welfare may petition for a finding of incapacity and appointment of a guardian.1 Once the guardian is appointed, he or she may retain counsel to advise with respect to the conduct of the guardian’s duties.
¶ 4. The nature of the proceedings leading to the appointment of a guardian involve several parties, including the person (usually a relative) requesting the appointment. This person is frequently represented by counsel. The person for whom guardianship is required to be represented by counsel. The proceedings seeking the appointment may be largely consensual or they may be contested. Conflicts in the proceedings will primarily arise in two different contexts:
a) the party to the guardianship wishes to be appointed guardian, and other parties in interest object in favor of an unrelated third party guardianship or
b) the person for whom the guardianship is sought objects to the appointment.
Additional conflicts other may arise, depending on the nature of the guardianship proceeding and the identity of the parties to it, but should nonetheless be resolved as set forth below.
¶ 5. Analysis: If an attorney who has represented one of the parties in a contentious guardianship proceeding wishes to subsequently represent the person appointed as guardian, he or she must determine whether there is an impermissible conflict of interest in the subsequent representation. Resolution of the question is dependent on the facts of each given situation.
¶ 6. The conflict scenarios set forth above raise an issue under Utah Rule of Professional Conduct Rule 1.7 (Conflict of Interest: Current Clients) and Utah Rule of Professional Conduct Rule 1.9 (Duties to Former Clients), depending on whether the attorney continues to represent the party his or her previous client or whether the attorney withdraws from the prior representation. (more…)

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.
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 (more…)

Ethics Advisory Opinion No. 04-01

March 29, 2004
¶1 Issue:
What action, if any, may a lawyer for an employer ethically undertake on behalf of a vanished former employee who, along with the employer, has been named as a defendant in an action arising when the person was an employee?

¶2 Answer: Under certain narrowly prescribed conditions, an employer’s lawyer may ethically take limited action to protect the interests of the vanished former employee, provided the lack of direct contact with that defendant is brought to the attention of the relevant tribunal.
¶3 Facts: Plaintiff filed suit naming a company and its former employee as defendants. The employer concedes that the former employee was acting in the course and scope of his employment and has asked the company’s lawyers to represent the missing defendant. Absence of a formal answer to the complaint may result in a default judgment being entered against the absent former employee. We have no information about the reasons for the employee’s absence, but we assume that a reasonable effort has been made to locate the person and determine the reason for the absence. We also assume that, at this early stage of the proceeding, the interests of the employer and former employee are not in conflict.1The lawyer requesting this opinion also indicated that the employer has liability insurance that covers the incident giving rise to the lawsuit.2The company has requested that the lawyer represent the missing ex-employee.
¶4 Analysis: This case presents two fundamental, but competing ethical principles: On the one hand, a basic ingredient of the representation of a client is that, under Rule 1.4, the lawyer communicate with the client, keep the client informed about the status of the case, and provide sufficient information to the client that he may make informed decision.3On the other hand, lawyers have a general obligation to advance the administration of justice.4
¶5 A formal application of Rule 1.4, without reference to any other parts of the Rules of Professional Conduct, would produce the following syllogism: The lawyer hasn’t communicated with the absent ex-employee and cannot formally satisfy the requirements of Rule 1.4; a violation of Rule 1.4 constitutes an ethical transgression; ergo, the lawyer may not ethically represent the ex-employee. Yet, we find this result inconsistent with the greater public policy of providing safeguards for an individual’s rights to the extent practicable and when it can be done without infringing on the rights of others. After all, the Utah Rules of Professional Conduct are “rules of reason . . . [that] should be interpreted with reference to the purpose of legal representation.”5
¶6 Further, before a mechanical application of Rule 1.4 to the absent defendant leads us to conclude that lack of initial attorney-client communication mandates no representation, we consider the intent of Rule 1.4. It is constructed around the normal relationship of an attorney-client contact already having been established and provides the guidelines that require a lawyer to keep that client properly informed “to the extent the client is willing and able” to be so informed.6Here, for reasons that are not known—and perhaps not contemplated by the drafters and adopters of the Rules—the (prospective) client is not “willing and able.” Without further analysis, we, therefore, decline to conclude that Rule 1.4 prevents all forms of representation of the missing employee. (more…)