Ethics Advisory Opinion No. 13-03

UTAH STATE BAR

ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 13-03

Issued September 11, 2013


ISSUE

      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.

OPINION

      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.

FACTS

      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.
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Ethics Advisory Opinion No. 08-02

UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
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.
¶ 7. Rule 1.7(a) provides:
. . .that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by a lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
¶ 8. Notwithstanding the provisions of Rule 1.17(a), Rule 1.7(b) provides:
A lawyer may represent the second client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or in other proceedings before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
¶ 9. Rule 1.9(a) provides that an attorney may not represent “another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing.” Rule 1.9(b), the ongoing duty of confidentiality, prohibits the use of confidential information obtained during the representation of the former client, unless the former client gives informed consent, confirmed in writing; Rule 1.9(c), the ongoing duty of loyalty, prohibits the use of any information obtained during the former representation to the disadvantage of the former client.
¶ 10. In the case where there has been no dispute over the necessity for, or the identity of the appointed guardian, analysis of these rules will likely result in the conclusion that the subsequent representation of the guardian – whether concurrent with a continued representation of the former client or not – presents no conflict of interest that would preclude representation.
¶ 11. In a contested proceeding in which the attorney has represented the person for whom the guardian was appointed, the application of the conflict of interest rules may well lead to the conclusion that the attorney may not represent the guardian following his or her appointment. In fact, the attorney may actually be disqualified from such representation; see, e.g., In the Matter of the Guardianship of Tamara L.P.2, discussing the conflict of interest issue in the context of the appointment of a guardian ad litem for a minor child, which discussion is equally applicable to the representation of an adult of allegedly diminished capacity.
¶ 12. Application of these rules to representation of the appointed guardian following a contentious guardianship proceeding might also lead to the conclusion that representation of the appointed guardian must be declined, depending on the nature of the conflict and the interests of the party to the guardianship proceeding weighed against the responsibilities of the guardian and his legal representative.
¶ 13. The duties of the guardian are set forth in Utah Code Ann. § 75-5-312. These duties of the guardian are not necessarily adverse to the interests of any party to a contentious guardianship proceeding. If analysis of the facts and circumstances leads to the conclusion that, taking into account these duties, representation of the guardian will neither be “directly adverse” to, nor materially limited by, the lawyer’s obligations to his other client, then there would be no ethical impediment to representing the subsequently appointed guardian.
¶ 14. However, the guardian is a fiduciary for the incapacitated person, and is further constrained in the exercise of his duties by statutory and court imposed obligations, all of which must be carried out in the best interests of the incapacitated person. This being the case, it is not difficult to imagine a scenario in which there is substantial potential for conflict between the views of the client or former client and the statutory obligations of the guardian For example, there could be a difference of opinion regarding the best use of the ward’s money and property, or as to the appropriate medical care or living conditions of the ward.3
¶ 15 The Comments to the Utah Rules of Professional Conduct give guidance as to how to identify and address conflict of interests that arise in a non-litigation context and should be carefully reviewed by any attorney in determining whether there is a conflict of interest under Rule 1.7 or Rule 1.9, arising out of either direct adversity or material limitation on the attorney’s ability to represent the guardian. Comments [8]4, [26]5 and [32]6 to Rule 1.7 are particularly helpful in that regard.
¶ 16. If the attorney determines that there is either a direct adversity of interest or a significant risk that his representation of the guardian may be materially limited by his obligations to the protected person, Rule 1.7 requires that the attorney may only continue to represent both clients if he has determined that he will be able to provide competent and diligent representation notwithstanding the adversity or limitation, the representation is not prohibited by law7, and it does not involve the assertion of a claim by one client against the other client in litigation. In that event, Rule 1.7(b)(4) provides that the conflict may be waived by the informed consent, confirmed in writing, of both affected parties. Rule 1.9(a) requires the informed consent of the former client only, again confirmed in writing. Of course, if the representation of the guardian is “directly adverse” to the interests of a former client and there is an on-going proceeding in which both the old and new clients continue as parties, the conflict is non-consentable. Rule 1.9 (b).
¶ 17. There is no issue with respect to the informed consent of the existing client, who can freely give such consent if he so wishes. The guardian, however, has statutory and court-imposed obligations with respect to the ward and may be constrained thereby from waiving the conflict; whether this an issue in a given case would require analysis of the facts and circumstances of that particular situation. It may be desirable under this circumstance, if possible, to petition the court that appointed the guardian for additional guidance on this point.
¶ 18 Additional ethical issues are raised if the attorney who wishes to represent the guardian has previously represented the person for whom the guardianship was sought. These issues are governed by Utah Rule of Professional Conduct 1.14, which together with the comments to Rule 1.14, sets forth the considerations governing representation of parties with diminished capacity. As set forth in Comment [4] to Rule 1.14, if a guardian is appointed, the lawyer who formerly represented the client with diminished capacity should “ . . .ordinarily look to the representative for decisions on behalf of the client.” Although this Rule speaks to the issue of being appointed guardian and does not directly address the issue of being appointed counsel to the guardian, an attorney who has formerly represented the client with diminished capacity should carefully consider representation of the appointed guardian, as well.
¶ 19. The comments to the ABA Model Rules point out that the seeking of a guardian is a “serious deprivation of the client’s rights” and a lawyer representing the person of alleged diminished capacity should only initiate such a proceeding if there are no other, less drastic, solutions available. Moreover, if a third party initiates the guardianship proceeding, the attorney should not represent the third party, nor should the attorney seek to be appointed guardian of a client with diminished capacity. See ABA Formal Ethics Opinion 96-404 (1996) (lawyer who files guardianship proceeding under Rule 1.14(b) should not act or seek to be appointed as guardian, except in the most exigent of circumstances; that is, when immediate and irreparable harm will result from the slightest delay).
¶ 20. 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 Utah’s Rules of Professional Conduct, Rules 1.7 and 1.9 the same way the 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 responsibilities to the client impose a material limitation on the attorney’s ability to represent the guardian effectively in light of the fiduciary, statutory, and court imposed obligations on the guardianship, the attorney should either avoid the joint representation or exercise great care in obtaining the informed written consent of both affected clients.
FOOTNOTES
1. Utah Code Ann. § 75-5-303(1) (1988).
2. 503 N.W. 2d 333, 336, 177 Wis. 2d 770, 779 (Wis.Ct.App. 1993).
3. See, e.g., Guardianship of Nelson, 663 P.2d 316, 204 Mont. 90 (Mont. 1983).
4. Comment [8] to Rule 1.7 describes the danger of the “material limitation” type of conflict, observing that “The conflict in effect forecloses alternatives that would otherwise be available to the client . . . The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.”
5. Comment [26] to Rule 1.7 describes the relevant factors to be considered as: “ . . .the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree.”
6. Comment [29] to Rule 1.7 provides:
Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between parties has already assumed antagonism, the possibility that a client’s interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer will subsequently represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.
7. There does not appear to be any provision of Utah law that would prohibit the attorney for one of the parties to the guardianship proceeding from representing the subsequently appointed guardian.

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. 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.
¶7 Cases and opinions that address this exact issue are difficult to find. There are many that address circumstances where an attorney-client relationship had already been formed and the client subsequently disappears. Many of these conclude that the mere absence of an established client does not completely preclude the attorney from taking some action on behalf of the missing client. For example, a lawyer has a general obligation to preserve a client’s assets that may be in the lawyer’s possession when the client disappears and to make reasonable attempts to locate the client,7and there are numerous opinions that find it ethical to file pleadings on behalf of a missing existing client to toll a statute of limitations.8In general, an attorney may not simply walk away from a case if an existing client cannot be immediately located.
¶8 In a short memorandum decision in 1981 dealing with a related issue, the Appellate Division of the New York Superior Court concluded that it was premature for a trial court to strike an answer filed on behalf of a defendant who could not be located: “We do not think that the real party in interest (presumably the insurance company) should be precluded from defending the action if the client cannot be located.”9
Although the matter could not proceed too far without the appearance of the missing defendant, the Appellate Division required that the answer filed on behalf of the missing defendant be reinstated.
¶9 Although the absence of the person makes it impossible to form a classic attorney-client relationship, we believe invoking Rule 1.4 to prohibit all representation elevates form over substance. The better approach to this issue is to ask whether there is a domain of activity in which the lawyer may participate to provide some measure of protection to the absentee’s interests without running roughshod over rules such as Rules 1.4 and 2.1.10We conclude that there is such a domain, the breadth of which will be dictated by the particular facts of the situation.11
¶10 More fundamental than whether Rule 1.4 would be formally complied with is the question of whose interests would be harmed or compromised by a lawyer’s limited representation of an absentee’s interests. Under the facts presented to us, we do not see any material harm to any party or any reason that the employer’s lawyer should be prohibited from performing a minimal role in protecting the absentee from a possibly devastating default judgment. For example, it may be appropriate to file an answer to the complaint that is supported by the facts as best the lawyer can determine them from the employer and other reasonably available sources.12
¶11 Rule 1.14 also provides guidance in our analysis. Although Rule 1.14 does not apply directly to the absentee client, the situations addressed by that rule are quite analogous. “When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”13Admittedly, this contemplates the existence of an attorney-client relationship, and one of the primary arguments against permitting the lawyer to provide minimal initial representation is that there has been no communication between the lawyer and the absentee defendant. But, that is not significantly different from the “client under a disability” guidelines of Rule 1.14, where “the client’s ability to make adequately considered decisions in connection with the representation is impaired.” Here, it is “impaired” because the defendant cannot be found.
¶12 This is not to suggest that the representation of those interests is or should be open-ended. The lawyer must contemporaneously take steps necessary to bring the situation to the attention of the tribunal before which the action is pending. This could take the form of a motion to withdraw once an answer has been filed,14an immediate request for the appointment of a guardian ad litem,15or other explanatory filing.
¶13 Under these circumstances, we conclude that a lawyer may, consistent with the Utah Rules of Professional Conduct, undertake a brief transitional representation in order to put the matter before a judicial officer. This, it seems to us, provides a proper balance between a minimal safeguard for an absent defendant until a judicial officer can consider the situation and decide, as a matter of law, the appropriate disposition.
¶14 We also observe that the foregoing does not impose an obligation on the lawyer to represent the employer or employee. Nothing in our analysis requires the lawyer to undertake the representation. As the facts were put before us, the employer has asked a lawyer to represent the absent ex-employee—at least for limited purposes of preserving the defendant’s position until a judge can sort the matter out. The lawyer has no ethical duty to undertake the representation, however.16
¶15 Finally, although the factual situation that led to this request for an opinion arose in the context of an incident for which there is liability insurance, the presence or not of insurance coverage does not affect our analysis. We do note, to the extent that the insurer has provided or designated counsel for the employer and ex-employee, the lawyer must exercise his independent judgment with respect to any representation of the defendants. In particular, any contractual constraints between the insurer and the employer that might limit the attorney’s scope of representation may not apply to the representation the lawyer may undertake on behalf of the absent defendant.17
¶16 Conclusion: Under certain narrowly prescribed conditions, an employer’s lawyer may ethically take limited action on behalf of a vanished former employee who is a co-defendant with the employer, provided the lack of direct contact with that defendant is brought to the attention of the relevant tribunal.18
Ten of the Committee’s 13 voting Members concur with the foregoing Majority Opinion.
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Three Members of the Committee respectfully dissent:
¶17 We believe the representation described in the factual scenario in the majority opinion violates Rules 1.2, 1.4 and 3.2 of the Utah Rules of Professional Conduct and may also violate Rule 3.1 in some situations.
¶18 Rule 1.2 requires the attorney to abide by the client’s decisions regarding the litigation. Since the former employee and the attorney have not communicated, the attorney cannot determine what objectives the former employee may have in the litigation nor can the attorney form any opinion as to what decisions the former employee might make.19
¶19 Rule 1.4 requires the attorney to maintain reasonable communication with the client. In situations in which the attorney has had no contact whatsoever with the client, the “reasonable” communication element cannot be satisfied.
¶20 Rule 3.1 requires the attorney to make only meritorious claims and contentions. The majority suggests that the attorney can satisfy this rule when filing an answer by discussing this matter with the employer. While this may sometimes be true, it will not always be true. Often times, the employer may not have taken a detailed statement from the employee regarding the facts of the incident and other employees may not have sufficient knowledge of the facts to allow the attorney to determine whether the defenses asserted are meritorious. Further, the employer may often lack sufficient information to allow the attorney to adequately determine whether to plead affirmative defenses, and if so, which affirmative defenses to plead.
¶21 The majority suggests that a “formal” or “mechanical” reading of Rule 1.4 could lead to the conclusion that the attorney may not undertake a representation of the client. The majority then considers public policy and argues that “[m]ore fundamental than whether Rule 1.4 would be formally complied with is the question of whose interests would be harmed or compromised by a lawyer’s limited representation of an absentee’s interests.”
¶22 The facts of this case do not justify the decision of the majority. The majority articulates one public-policy concern in this matter as the potential for “a possibly devastating default judgment.” The Rules of Civil Procedure and existing case law contain adequate safeguards to protect the former employee from a wrongful default judgment. The majority is also presumably concerned that the employer may be bound by the default judgment. While that issue has not been decided by the Utah courts, the majority of states would not bind the employer to the admissions made by the employee in the default judgment.20Because the employer is not bound by the default judgment, no public policy concerns are implicated. Even if Utah does adopt the minority position and holds that the employer is bound by the default of the employee, that possibility is not a sufficient reason to read the Rules of Professional Conduct differently.
¶23 The majority also does not see that “material” harm will come to anyone if the lawyer undertakes the representation. While that may be true in some cases, some people will likely be harmed in other cases. In many cases, the resolution of the lawsuit may be delayed, thereby harming the plaintiff by delaying the collection of damages, during which time the assets may be squandered or lost. Other instances of harm to the plaintiff may occur as well.21
¶24 The majority properly states that when an attorney has previously undertaken a representation and the client disappears, the attorney must continue making reasonable efforts to protect the client’s interests, in accordance with the instructions given to the lawyer prior to the disappearance of the client. The majority also properly states that when a person obtains insurance coverage that requires the insurance company to defend the person, the attorney may undertake to defend the person without communicating with the person, in those rare cases where the attorney attempts to communicate with the person but is unable to do so. In that situation, the insured’s consent to the representation is presumed to have occurred when the insured obtained the insurance coverage.
¶25 Further, the insurance contract gives the attorney some indication of the direction the client would wish to proceed in the lawsuit. The insurance and former client situation are completely different from the factual scenario presented. Under the facts presented, the attorney has no basis to infer that the employee consented, or even would consent, to the representation. In addition, the attorney has little or no objective evidence as to the direction the former employee would like to pursue in the lawsuit. Finally, the attorney has had no communication with the former employee and will often times have no communication after the representation is undertaken.
¶26 If the employer, or another interested person, has reason to believe that the former employee would act but is unable to do so for some reason, Rule 1.14 allows the attorney to seek the appointment of a guardian ad litem. If a guardian ad litem is appointed, the attorney may act in accordance with the instructions received from the guardian ad litem.
¶27 Absent the former employee’s agreement to the representation—either express or implied through an insurance agreement or the appointment of a guardian ad litem, the lawyer is prohibited by the Rules of Professional Conduct from representing the former employee. Because the lawyer is prohibited from undertaking a representation, the lawyer may not take any action on behalf of the employee, including the filing of an answer or a motion for an extension of time.
Footnotes
1.For example, we assume that neither the employer nor employee are likely to have and pursue a claim against the other. See Utah Rules of Professional Conduct 1.13(e).
2.It may also be that the employer’s defense lawyer has been retained by the insurance carrier. However, this factor does not play a role in our analysis. See generally Utah Ethics Advisory Op. 02-03 (Utah St. Bar 2002). Utah Ethics Advisory Opinions are available at www.utahbar.org under “Rules, Policies and Opinions.”
3.Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
Utah Rules of Professional Conduct 1.4.
4.For example, “The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law.” Utah Rules of Professional Conduct, Scope 2. Similarly, Rule 8.4(d) implies a lawyer’s duty to act in a manner that will serve the administration of justice: “It is professional misconduct for a lawyer to . . . [e]ngage in conduct that is prejudicial to the administration of justice.”
5.Utah Rules of Professional Conduct, Scope 1.
6.“The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so.” Utah Rules of Professional Conduct 1.4, cmt. 1 (emphasis added).
7.See, e.g., Fla. Comm. on Professional Ethics Op. 77-2, 1977 WL 23165 (Fla. St. Bar Ass’n).
8.See, e.g., Philadelphia Bar Op. 98-8; So. Car. Bar Op. 98-07; So. Dak. Bar Op. 92-6.
9.Heyward v. Benyarko, 440 N.Y.S.2d 21 (N.Y. App. Div. 1981) (parenthetical in original).
10.“A lawyer shall abide by a client’s decisions . . . .” Utah Rules of Professional Conduct 2.1.
11.We also note that, under Rule 1.2(a), the company client will determine the scope and objectives of its representation, within appropriate boundaries. Thus, to the extent not otherwise ethically or legally barred, the lawyer’s pursuit of representing the missing individual in this fact pattern is consistent with the requirements of Rule 1.2.
12.We believe a lawyer can do this at an early stage of a proceeding and not run afoul of Rule 3.1, which prohibits frivolous claims and those not brought in good faith. Nevertheless, the lawyer must be vigilant not to be unduly influenced by his other client (or its insurer).
13.Utah Rules of Professional Conduct 1.14(a).
14.See id. Rule 1.16(b)(6).
15.Id. Rule 1.14(b): “A lawyer may seek the appointment of a guardian or take other protective action with respect to a client, only when the lawyer reasonably believes that the client cannot adequately act in the client’s own interest.”
16.To the extent provided by this Opinion, the employer’s lawyer may have a responsibility to undertake the limited representation of the former employee in order to protect the employer’s interests adequately. For example, a default judgment against the former employee might ultimately harm the employer. See Utah Rules of Professional Conduct 1.3, & cmt.
17.See id. Rule 5.4(c); see also Utah Ethics Advisory Op. 02-03 (Utah St. Bar).
18.Portions of the Dissent appear to assume that we have approved an extended period of representation. To the contrary, we only approve a brief “license” to provide representation sufficient to bring the matter before an appropriate judicial officer.
19.Although it might be presumed that the former employee does not want a default judgment entered, this is not always the case. Occasionally, people decide not to defend lawsuits. If the former employee had decided not to defend the lawsuit, the attorney would not be abiding by those wishes. It is even possible to imagine cases where an employee, if asked, would want a judgment taken to protest or highlight an employer’s alleged misconduct, just as civilly disobedient protesters might actually want to be arrested. Further, in cases in which the former employee has decided to take a course of action contrary to that of the employer, the attorney will be forced to evaluate the instructions he receives from the employer in light of that possibility. If this practice becomes widespread, instances will surely arise in which the employer leads the attorney to act in contravention to the employee’s wishes.
20.See 46 AM. JUR. 2d Judgments § 282 (19__). See also Brazos Valley Community Action Agency v. Robison, 900 S.W.2d 843 (Tex. App. 1995) (employee’s default could not be binding on employer; the appellate court also noting that the employer did not have authority to answer on behalf of the employee.); Gearhart v. Pierce Enterprises, Inc., 779 P.2d 93 (Nev. 1999) (suit against a principal and a surety; default judgment against the principal was not binding on the surety.)
21.If this practice becomes common on the part of employers and their counsel, numerous fact situations will arise in which persons will be harmed. For example, if the former employee hires her own attorney and files an answer simultaneously, the answers may be inconsistent. The attorney for the employer will be forced to move to withdraw the answer that was filed without the employee’s permission. In cases in which the lawyer for the employer discovers that the former employee and the employer are adverse or wish to pursue different courses during the litigation, the lawyer may be forced to withdraw as lawyer for both the former employee and the employer, thereby depriving the employer of its choice of counsel.