ETHICS ADVISORY OPINION No. 08-01

OPINION NO. 08-01
MAIN OPINION:
For Dissent Opinion click here>>>
Issued April 8, 2008
1. Issue:
May an attorney provide legal assistance to litigants appearing before a tribunal pro se and prepare written submissions for them without disclosing the nature or extent of such assistance? If so, what are the attorney’s obligations when full representation is not undertaken?

2. Opinion: Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance. Although providing limited legal help does not alter the attorney’s professional responsibilities, some aspects of the representation require special attention.
3. Background: Our Committee has previously issued three opinions regarding limited-scope legal representation under certain circumstances regarding various aspects of limited-scope legal representation.1 These opinions were issued under the Utah Code of Professional Responsibility that was superseded by the Utah Rules of Professional Conduct, adopted by the Utah Supreme Court in 1988 and modified in certain respects by amendments that were adopted by the Court in November 2005. A synopsis of those opinions is found in Appendix A to this Opinion. In this opinion, we undertake a more comprehensive analysis of the “behind the scenes” limited representation under the current Utah rules.
4. Recently, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 07-446 (May 5, 2007), comprehensively discussing assistance to pro se parties and expressly superseding ABA Informal Opinion 1414, which disapproved certain undisclosed assistance of pro se litigants under the prior Code of Professional Conduct. ABA Opinion 07-446 concluded that under the Model Rules of Professional Conduct, “a lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”
5. Analysis: In addressing the issue posed, we begin by recognizing that a new regulatory framework is in place nationally and in Utah that provides directly for limited-scope legal representation of clients who, for various reasons, engage lawyers for narrowly circumscribed participation in their legal affairs.
6. Rules of Professional Conduct: Rule 8.4(c) of the Rules of Professional Conduct prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” However, none of the comments to that rule suggest that failure to notify opposing parties and the court of limited assistance to a pro se party involves such dishonest conduct.2 Recently issued ABA Formal Opinion 07-446 expressly concludes that it does not: “[W]e do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited by Rule 8.4(c).” Because the Rules of Professional Conduct include comments that explain and illustrate “the meaning and purpose of the rule” and “are intended as guides to interpretation,”3 and because the ABA drafters certainly knew of Informal Opinion 1414, it would have been obvious to include this example to illustrate dishonest conduct if that had been intended.
7. More significantly, however, is that the Utah and ABA Rules of Professional Conduct include a rule that explicitly addresses the possibility of a lawyer’s limiting the scope of representation of a client. Rule 1.2(c) provides: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comments [6], [7] and [8] address such limited-scope representation. None of these comments suggest that “extensive undisclosed assistance” to a pro se party is an inappropriate limited-scope representation.
8. Similarly, Rule 1.2(d) also addresses the issue of a lawyer’s assisting a client in “criminal or fraudulent” behavior and provides in relevant part: “A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent . . . .” Comments [9] through [14] provide illustrations of Rule 1.2(d) and again fail to identify that providing undisclosed assistance to a pro se party is assisting a client’s fraud. If the drafters of the Rules of Professional Conduct had intended to impose a prohibition against undisclosed assistance to pro se litigants, Rule 1.2 regarding both limited-scope representation and assisting in a client’s fraud would have been one place to make this clear.
9. The Rules of Professional Conduct further signal the appropriateness of limited-scope representation through Rule 6.5, Nonprofit and Court-Annexed Limited Legal Service Programs. This rule addresses conflicts of interest when “a lawyer . . . under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter.” The comments to Rule 6.5 recount the fact that such limited-scope programs exist and what they do:
Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services such as advice or the completion of legal forms that will assist persons to address their legal problems without further representation by a lawyer . . . [through] programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs . . . . 4
Here again, if the drafters of the Rules had wanted to prohibit “substantial professional assistance” that was not disclosed, Rule 6.5 would have been a likely place to include such a provision.
10. Accordingly, given the decision to expressly include and permit limited-scope representation in the Rules of Professional Conduct and the failure of the Rules and comments to state or even suggest that nondisclosure of substantial assistance to pro se parties is dishonest conduct, we conclude that the drafters of the current Rules did not intend to prohibit undisclosed, substantial professional assistance to pro se parties.
11. Rules of Civil Procedure: We also believe that the ethical requirements for limited-scope representation must be put in the wider context of other law and court rules. Some states have adopted rules of procedure that address how a lawyer who is providing limited legal help must act and what must be disclosed to the court. For example, Colorado Rules of Civil Procedure 11(b) provides that pleadings filed by a pro se party that were prepared with the drafting assistance of a lawyer must include the lawyer’s name and contact information, and the assisting attorney must so advise the pro se party. Rule 12.040 of the Florida Family Law Rules of Procedure requires a pro se party who has received a lawyer’s help to certify that fact in the pleadings. Rule 102(a)(1) of the Wyoming Rules for District Court provides that the appearance of an attorney’s name on the pleadings indicates that the attorney assisted in their preparation does not constitute an appearance by the attorney. Utah has no comparable court rules for attorneys who engage in ghost writing for a pro se client to notify the court of this assistance.
12. Utah Rules on Disclosure: Utah has addressed two circumstances in which an attorney must disclose to the tribunal the limited services provided to a client. Rule 2.4(c) of the Utah Rules of Professional Conduct uniquely permits a lawyer mediator to “prepare formal documents that memorialize and implement the agreement reached in mediation” and “with the informed consent of all parties confirmed in writing, may record or may file the documents in court, informing the court of the mediator’s limited representation of the parties for the sole purpose of obtaining such legal approval as may be necessary.” 5
13. Rule 75 of Utah’s Rules of Civil Procedure, “Limited Appearance,” provides in relevant part:
(a) An attorney acting pursuant to an agreement with a party for limited representation . . . may enter an appearance limited to one or more of the following purposes:
(1) filing a pleading or other paper;
(2) acting as counsel for a specific motion;
(3) acting as counsel for a specific discovery procedure;
(4) acting as counsel for a specific hearing, including a trial, pretrial conference, or an alternative dispute resolution proceeding; or
(5) any other purpose with leave of the court.
(b) Before commencement of the limited appearance the attorney shall file a Notice of Limited Appearance signed by the attorney and the party. The Notice shall specifically describe the purpose and scope of the appearance and state that the party remains responsible for all matters not specifically describe in the Notice . . . . The Notice of Limited Appearance and all actions taken pursuant to it are subject to Rule 11.
Utah Rules of Civil Procedure 74, Withdrawal of Counsel, and 5, Service, both reference and provide further guidance regarding how the “limited appearance” will affect service and withdrawal.
14. The Utah Supreme Court recently approved both of these rules permitting certain limited -scope services by a lawyer and requiring notice to the court in these circumstances. The fact that the Court did not require any disclosure except in these circumstances suggests that assistance short of an actual appearance without disclosure is permitted and is not considered “dishonest conduct.”
15. It is also important to consider the requirements imposed by Rule 11 of the Utah Rules of Civil Procedure to understand the context of this issue. Rule 11(a) requires that every paper filed with the court be signed by “one attorney of record” or “if the party is not represented by an attorney, . . . by the party.” Under Rule 11(b), that signature “is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose . . . . . (2) the claims . . . are warranted by . . . law, (3) the allegations . . . have evidentiary support . . . .”6
16. If an attorney drafts and appears to argue one motion only, the attorney will appear under Rule 74 and comply with Rule 11 for that portion of the case. The attorney must have performed “reasonable inquiry” to insure that the facts presented (e.g., in supporting affidavits) have “evidentiary support.” However, where an attorney provides limited -scope representation to assist a party to draft a complaint or answer after the attorney has simply interviewed the party, but is not engaged to appear in court, it is doubtful that the attorney could sign the complaint or answer as part of a limited appearance under Rule 75 and in compliance with Rule 11, since that attorney would have made no “inquiry” beyond talking with the client. In that case, it must be the client who certifies that he has “evidentiary support” as required by Rule 11, since only the client will have investigated the facts. Where the client will alone sign the papers, there is no court rule or procedure that requires the attorney who assists with drafting to notify the court of this assistance, no rule that tells the lawyer how to inform the court of the limited legal help provided, and no rule that tells the client how to inform the court of the limited legal help received. Accordingly, the “nondisclosure” of the assistance could not reasonably be considered “dishonest conduct” prohibited by the Rules of Professional Conduct since there is no procedure provided to disclose.
17. Other States’ Rules: Both Washington and Colorado have amended their Rule 11 provisions to provide that “in helping to draft” a pleading “the attorney certifies” that it is well-grounded in fact and law and not interposed for any improper purpose. These rules further provide that when an attorney provides drafting assistance the attorney “may rely on the otherwise self-represented persons’ representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.”7 Colorado further provides that when an attorney assists a pro se party “in filling out pre-printed and electronically published forms that are issued through the judicial branch” the attorney is not subject to the certification or name disclosure requirements. Should the Utah Supreme Court wish to impose some requirement for lawyers who provide drafting assistance to notify the court, we would expect that it would do so by explicitly setting forth the requirement, as has been in certain other states. (We note, as a practical matter, that when attorneys at court-annexed legal clinics provide advice and drafting assistance under Rule 6.5, it may be impossible for the attorney to insure that the client ultimately provides notice of that assistance to the court on the final draft papers the client eventually files.8)
18. Moreover, even Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper by Utah Opinion 74 and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, the party then may obtain brief advice as to service of process. Thereafter the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to this Committee at what point such a typical pro se party needing limited scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.9
19. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.10 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
20. In any event, Utah law provides that “as a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar.”11 While a judge may give an unrepresented party leniency, this is not required under Utah law. Therefore, the “unfair advantage” that pro se parties ostensibly gain through the court’s liberal construction of their pleading—one of the bases for prohibiting “ghost-writing”—does not appear to apply under Utah law.
21. Finally, we note that the Utah State Courts website explicitly describes “limited legal help” on its Self-Help Resources page, indicating that an attorney might “only advise” or “help draft” or “review a draft” or “any combination of these kinds of services.”12
22. Judicial Precedent: The Committee is not aware of any Utah Supreme Court opinion that addresses the questions presented here.
23. It is important, however, to take account of Duran v. Carris,13 a Tenth Circuit opinion. In this case, a New Mexico lawyer who had represented the plaintiff/appellant in the trial court, was criticized for ghost-writing the brief appealing the dismissal of the case for failure to state a claim. This per curiam opinion relied on Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings be signed, Rule 3.3 of the Rules of Professional Conduct, which requires candor to the tribunal, Rule 8.4 of the Rules of Professional Conduct, which prohibits conduct involving misrepresentation, and case law that accords pro se parties leniency. The Tenth Circuit opinion states:
[The attorney’s] actions in providing substantial legal assistance to [the client] . . . without entering an appearance in this case not only affords [the client] . . . the benefit of this court’s liberal construction of pro se pleadings . . . but also inappropriately shields [the attorney] . . . from responsibility and accountability for his actions and counsel.14
The opinion holds as follows:
We recognize that, as of yet, we have not defined what kinds of legal advice given by an attorney amounts to “substantial” assistance that must be disclosed to the court. Today, we provide some guidance on the matter. We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledge by signature. In fact, we agree with the New York City Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting assistance unless the client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.” . . . We hold today, however, than any ghostwriting of an otherwise pro se brief must be acknowledged by the signature of the attorney involved. 15
24. Certainly, Utah lawyers who appear before Tenth Circuit must be aware of this opinion and comply with it. A Utah lawyer who writes a brief for a pro se party must acknowledge this participation by signing the brief filed with the Tenth Circuit.
25. However, it is not clear how far the Duran v. Carris opinion extends beyond its own rather unusual facts. First, the Tenth Circuit opinion regarding a New Mexico lawyer’s failure to comply with ethical rules that apply to him does not bind the Utah Supreme Court in its interpretation of the Utah Rules of Professional Conduct. Second, the lawyer’s conduct in failing to sign a brief suggests malfeasance that providing limited legal help in the trial court typically does not. Here, the lawyer wrote a brief for an appeal from a dismissal for failure to state a claim, yet declined to sign the brief. This suggests that the lawyer was intentionally assisting a client to pursue a cause of action knowing it was frivolous, but declining to appear to avoid sanction. In Utah, Rule of Professional Conduct 3.3 requires candor and prohibits a lawyer from failing to disclose to a tribunal legal authority the lawyer knows is directly adverse to his position. And Rule 3.1 prohibits a lawyer from bringing any proceeding “unless there is a basis in law and fact for doing so that is not frivolous.” The facts of Duran v. Carris suggest that the attorney was avoiding being charged with violating those provisions by declining to sign the brief.
26. There are many reasons other than dishonesty and malfeasance that an attorney might provide extensive assistance with a trial-court matter, yet would not sign a pleading and enter appearance as counsel. Initially, the attorney may interview the client, advise about the claims that are well founded, and draft a complaint. Yet, unless the attorney further investigates the facts and accepts the case for full representation, the attorney would not enter an appearance. The attorney may provide further assistance with service, with discovery, and with trial preparation either on a pro bono or reduced-fee basis to permit the client to prosecute his claim without paying for full-service representation. The Duran v. Carris case should not be extended to prohibit such assistance in the absence of the attorney’s intentionally aiding a client to bring a case the lawyer believes is frivolous or without legal foundation.
27. We agree that attorneys who intentionally assist pro se parties to file frivolous cases can be sanctioned for this behavior under Rule 8.4. Similarly, an attorney cannot act as a mere scrivener and draft a complaint (or a brief) at the client’s behest without forming a professional opinion that a cause of action has a basis in law and fact based on the client’s description of the facts. Such negligent conduct could be sanctioned as incompetence in interviewing, analyzing and advising the client. Indeed, both the Duran v. Carris case and early New York cases16 that condemned ghost-writing for a frequent litigant suggest that the misconduct is in helping a litigant bring a frivolous matter, not providing extensive help to a pro se litigant who has a meritorious claim. This Committee believes that sanctioning such intentional wrong-doing or negligence is preferable to a sweeping prohibition of extensive assistance to pro se parties.
28. For all of the reasons set forth above, in the absence of any court rule addressing the issue, we conclude that it is not dishonest behavior of an attorney to provided limited legal help to a pro se litigant, including assistance with drafting of pleadings, without disclosing the fact of that assistance to the court.
29. Disclosures Required for Limited Legal Help: As set forth above, we conclude that the only disclosures that an attorney must make to the court (or to other parties) are disclosures expressly required either by court rule or the Rules of Professional Conduct. Disclosure to the court is required where a lawyer-mediator prepares documents to file in court after a successful mediation.17 Similarly, Rule 75 of the Utah Rules of Civil Procedure sets forth requirements, including that the lawyer enter an appearance in accordance with Rules 11, when the attorney makes a limited appearance.
30. Rule 1.2(c) of the Utah Rules of Professional Conduct does require that the attorney obtain “informed consent” from the client prior to providing a limited scope of representation, and this requires appropriate disclosures to the client. The Rules define “informed consent” as agreement “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”18 Exactly what must be explained to a client prior to providing limited-scope assistance—the information that will permit the client to make an informed decision whether to proceed in this way, including alternative courses the client could consider—is, of necessity, highly fact-intensive and case-specific. Increasingly, books and articles and web-posted reports provide advice and suggested forms for undertaking limited representation.
31. We note one important limit on securing client agreement to limited representation. It is only permitted “if the limitation is reasonable under the circumstances.” A comment illustrates this limitation:
If . . . a client’s objective is limited to securing general information the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.19
Obviously there are other circumstances in which a proposed limitation would not be “reasonable” given the nature of the case.
32. Providing unbundled legal services does require particular attention and care to various other ethical rules. Comment [8] to Rule 1.2 instructs that “all agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law.
33. First, Rule 1.1 expressly insists that the legal services be “competent.” As Opinion 330 of the District of Columbia Bar states: “In other words, the scope of the services may be limited but their quality may not. When hired to diagnose legal problems, an attorney providing services under an unbundling arrangement must be as thorough in identifying legal issues as an attorney who intends to continue with a case through its conclusion.” In providing limited legal help, an attorney must nevertheless alert the client to any legal problem the attorney discovers, even if outside the scope of the representation, according.20 We have previously opined that an attorney does not perform competently if the lawyer is merely a scrivener.
Various state bars have addressed the limitation on legal services where the lawyer provides only legal analysis and drafting services. We can find no judicial or ethics opinion that approves drafting services alone; the drafting services are always an adjunct to analysis and advice provided by the lawyer. Finally, best practices in “unbundled” legal services are addressed in various books and articles, and we can find none that suggest drafting services alone are adequate or appropriate . . . . It is difficult to understand how a lawyer could appropriately assist an individual to file pro se divorce pleadings without advising the party when his claims appear to lack any legal support and without advising the party regarding the evidentiary support the party will need to support certain contentions. In the absence of any court rules that address the propriety of ghostwritten pleadings, this Committee concludes that, at a minimum, a lawyer may not limit her services to conforming a party’s pleadings to proper form without providing analysis and advice to the party seeking such advice.21
Accordingly, prior to drafting a paper for a client, the lawyer must interview the client sufficiently and know the law adequately to conclude that the paper is warranted based on the facts as reported by the client.
34. Other duties that are not diminished by the limited legal service agreement are the duties of diligence, Rule 1.3, the duty to communicate, Rule 1.4, and the duty of confidentiality, Rules 1.6 and 1.8.
35. Rule 6.5 alters slightly the lawyer’s duty of loyalty. It applies when limited legal services are rendered as part of a court-annexed or nonprofit program. In this situation, the lawyer is prohibited from providing the limited legal services only if the lawyer “knows” that there is a personal “conflict of interest” under Rule 1.7 or Rule 1.9(a) or “knows” that another lawyer in the lawyer’s firm has a conflict of interest that would disqualify the firm under Rule 1.10.
36. Another aspect of limited representation that warrants comment is Rule 4.2, which prohibits communicating with persons a lawyer “knows” to be represented “in the matter” without that lawyer’s permission. When the lawyer has entered a limited appearance in court, Utah Rule of Civil Procedure Rule 75 governs and explicitly provides that “the party remains responsible for all matters not specifically described in the Notice” of limited appearance. When there is no appearance in the court, the matter is less clear. District of Columbia Bar Opinion 330 concludes that:
Even if the lawyer has reason to know that the pro se litigant is receiving some behind-the-scenes legal help, it would be unduly onerous to place the burden on that lawyer to ascertain the scope and nature of that involvement. In such a situation, opposing counsel acts reasonably in proceeding as if the opposing party is not represented, at least until informed otherwise.
This seems a sensible approach.
37. Conclusion: It is not dishonest conduct to provide extensive undisclosed legal help to a pro se party, including the preparation of various pleadings for the client, unless a court rule or ethical rule explicitly requires disclosure. Undertaking to provide limited legal help does not generally alter any other aspect of the attorney’s professional responsibilities to the client.
38. To the extent that our previous Opinions 47, 53 and 74 are inconsistent with this opinion, they are superseded.
APPENDIX A
1. In 1978, Utah Ethics Opinion 47 dealt with a lawyer’s providing “legal advice, consultation, and assistance to inmates regarding the preparation of initial pleadings in civil matters,” including preparing “complaints, summons, affidavits of impecuniosity, and motions for leave to proceed in forma pauperis,” after which the inmates would proceed pro se. The opinion concluded there was “nothing inherent in the proposal that is unethical” and discussed the need fully to inform the inmate of the limited nature of the representation and the need to warn the State of Utah (which would pay for the lawyer’s services) that the State could have no influence over the services.
2. A year later, Opinion No. 53 similarly approved of a lawyer’s providing “limited legal services to persons wishing to handle their own divorces,” where the attorney interviewed the client and provided the client with a manual of instructions and forms to use. The opinion referenced and distinguished this “more limited” involvement of the lawyer from the situation presented and disapproved of in the then recently issued ABA Ethics Committee Informal Opinion 1414 (1978). ABA Opinion 1414 involved a lawyer’s assisting in the preparation of jury instructions and memoranda for the client and attending the trial to advise the litigant on procedural matters. The ABA opinion concluded that the litigant was not in fact proceeding pro se and, therefore, the lawyer’s conduct constituted a misrepresentation as to his undisclosed involvement and ran afoul of the rule prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit of misrepresentation.22
3. In 1981, Utah Opinion No. 74 addressed “the propriety of an attorney preparing a responsive pleading showing the party to be appearing pro se,” where the client was financially unable to pay the lawyer’s retainer but wanted to have an answer filed to protect his rights. That opinion again relied on DR 1-102(A)(4) of the old Code, which prohibited “conduct involving dishonesty, fraud, deceit or misrepresentation” and adopted the reasoning and standard set forth in (but did not cite) ABA Informal Opinion No. 1414. Opinion No. 74 holds:
There is nothing improper in an attorney giving initial advice to a litigant who is proceeding pro se nor is it improper for an attorney to prepare or assist in the preparation of pleadings.
However, when the attorney gives any additional assistance and the litigant continues to inform the court that he is proceeding pro se, he has engaged in misrepresentation by professing to be without representation. The attorney who engages in this conduct is involved in the litigant’s misrepresentation contrary to DR 1-102(A)(4) . . . .23
The opinion goes on to advise that determining whether the attorney’s conduct is proper or improper “will depend upon the particular facts” and:
The extent of the attorney’s participation . . . is the determining factor. Minimal participation by the attorney is not improper. However, extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.24
4. Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper this opinion and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, for example, the party then may obtain brief advice as to service of process. Thereafter, the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to us at what point such a typical pro se party’s needing limited-scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.25
5. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.26 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
In 1983 the ABA replaced its Model Code of Professional Responsibility with the entirely re-conceptualized Model Rules of Professional Conduct. In 1988, Utah likewise replaced the Utah Code of Professional Responsibility with the Utah Rules of Professional Conduct based on the 1983 ABA Model Rules. The ABA Model Rules received a comprehensive retooling in the ABA’s “Ethics 2000” project, and the Utah Rules were modified in 2005 to adopt many of the changes made to the ABA Model Rules.
Footnotes
1. Utah Eth. Adv. Op 47 (Utah St. Bar 1978); Utah Eth. Adv. Op. 53 (Utah St. Bar 1979); Utah Eth. Adv. Op. 74 (Utah St. Bar 1981).
2. Utah Rules of Professional Conduct, Rule 3.3, Candor Toward the Tribunal, addresses related issues and prohibits the lawyer from knowingly (1) making a false statement of fact or law to a tribunal, (2) failing to disclose legal authority directly adverse, and (3) offering evidence the lawyer knows to be false.
3. Id., Preamble ¶ [21].
4. Id., Rule 6.5, cmt. [1].
5. Id., Rule 2.4(c) (emphasis added).
6. Utah R. Civ. P. 11(b) (emphasis added).
7. Colo. R. Civ. P. 11(b) and Wash R. Civ. P. 11(b).
8. The Utah State Courts website lists many free legal clinics that provide brief advice and help with forms. http://www.utcourts.gov/howto/legalclinics/
9. Committee on Resources for Self-Represented Parties Strategic Planning Initiative Report to the Judicial Council, p. 5 (July 25, 2006) reporting statistics from 2005.At: http://www.utcourts.gov/resources/reports: 2006 Survey of Self-Represented Parties in the Utah State Courts.pdf
10. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).
11. Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983).
12.http://www.utcourts.gov/howto/legalassist/
13. 238 F.3d 1268 (10th Cir. 2001).
14. Id. at 1271-72.
15. Id. at 1273 (emphasis added). The Tenth Circuit court did not, however, sanction the lawyer but resolved that issue as follows: “Therefore, we admonish [the lawyer] . . . that this behavior will not be tolerated by this court, and future violations of this admonition will result in the possible imposition of sanctions.”
16. See ¶ 41, App. A.
17. Utah R. Prof. Conduct 2.4(c).
18. Id., Rule 1.0(f).
19. Id., Rule 1.2(c), cmt. [7].
20. See also Los Angeles Co. Bar Assoc. Eth. Op. 502.
21. Utah Eth. Adv. Op. 02-10, 2002 WL 31922503 (Utah St. Bar) (references omitted).
22. DR 1-102(A)(4) of the ABA Code of Professional Responsibility.
23. Utah Ethics Op. 74, at 1-2 (emphasis added).
24. Id. at 2 (emphasis added). The standards set forth: “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.” This is an exact, though unattributed quote of ABA Informal Opinion No. 1414.
25. Committee on Resources for Self-Represented Parties Strategic Planning initiative Report to the Judicial Council, at 5 (July 25, 2006) (reporting statistics from 2004). http://www.utcourts.gov/resources/reports/Self%20Represented%20Litigants%20
Strategic%20Plan%202006.pdf
26. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).

Ethics Advisory Opinion No. 05-03

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

2. Opinion: When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation. A lawyer may not represent both parties following a mediation to obtain a divorce for the parties.
3. Analysis: The issue considered here was the subject of a prior opinion issued by the Ethics Advisory Opinion Committee in 1992. We have been asked to revisit this issue again because of the expansion and apparent success of divorce mediators in resolving domestic relations matters for pro se litigants for whom the cost of retaining legal counsel may be a serious financial burden. 1
4. Utah Ethics Advisory Opinion 116 considered the following issue: “Under what circumstances may an attorney represent both parties in a divorce?”2 The answer given in Opinion 116 was “never,” based on the clear ethical mandates of Rules 1.7(a) and 1.7(b) of the Utah Rules of Professional Conduct.3 These rules establish a duty of undivided loyalty of counsel to a client.4 Opinion 116 concluded that our rules preclude concurrent representation of clients with directly adverse interests in the matter. Opinion 116 included a lengthy discussion of policy arguments favoring dual representation and policy arguments opposing dual representation in divorce proceedings and concluded that: “The concurrent representation of both parties in a divorce is an ethically unacceptable practice.”5
5. In the 12 years since Opinion 116 was issued, the applicable rules and the arguments bearing upon dual representation in divorce proceedings have not materially changed. The arguably successful and beneficial development of alternative dispute resolution and mediation in the interim does not change our conclusion here. Since the Ethics Advisory Opinion Committee has no policy-making authority, the fact that parties to all lawsuits, including divorces, are increasingly turning to alternative dispute resolution with reportedly positive results to the public and Bar alike cannot alter the clear mandate of our Rules. Whatever the social, financial or other impacts of the alternative dispute resolution trend, and even assuming its worth and inevitability, the ethical rules we are charged to uphold have no “public policy” exceptions that would permit the Ethics Advisory Opinion Committee to rewrite the rules to achieve a result some may believe is beneficial, even if that revision is a carefully reasoned, narrowly crafted exception.6
6. Several states have considered this issue and arrived at a similar conclusion to this opinion and Opinion 116.7 Other states have concluded otherwise. 8 However, the opinions of other bars, while instructive, are not controlling.
7. We reaffirm the conclusion in Opinion 116 because we believe that Rule 1.7(a) creates a per se bar to dual representation of a plaintiff and a defendant in litigation, even in the settlement phase of that litigation. The official comment to our Rule 1.7(a) makes this conclusion clear: “Paragraph (a) prohibits representation of opposing parties in litigation.”
8. Rule 1.7(a) recognizes that under certain limited circumstances a lawyer may represent a client adverse to another client. A lawyer may do so only when (1) the lawyer “reasonably believes the representation will not adversely affect the relationship with the other client,” and (2) each client consents after consultation. The comment to Rule 1.7(a) provides that the “reasonable belief” that the representation will not adversely affect the relationship with the other client is tested by the objective standard of a disinterested lawyer. The comment provides: “When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” The direction in the comment that Rule 1.7(a) prohibits representation of opposing parties in litigation is simply the recognition that a disinterested lawyer would not recommend that a single lawyer represent adverse parties in litigation.
9. We recognize the Utah Legislature and the American Bar Association Section on Dispute Resolution have concluded that “mediation is not the practice of law.” However, when the mediator performs tasks that are the practice of law or are even law-related, such as the preparation of pleadings for use in litigation, the mediator is subject to the Utah Rules of Professional Conduct.9
10. One court in Utah has specifically addressed the issue of a mediator-turned-lawyer. In Poly Software International v. Su,10 litigants moved the trial court to disqualify plaintiff’s counsel where plaintiff’s lawyer had previously acted as mediator for the parties. The Poly Software court held that the lawyer who had previously been a mediator had received confidential information from both parties and was therefore unable to represent anyone in connection with the same or a substantially factually related matter unless all parties consented after disclosure. Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter.
11. We are unpersuaded that, once a mediation results in a settlement of existing property, custody and other disputes, the parties are not “adverse.” We believe it unlikely that two lay, adverse litigating parties can both be aware of their legal rights and all the other practical problems inherent in divorce proceedings, without an experienced lawyer advising them. Consequently, it is possible, and perhaps even likely, that the settlement reached in mediation, where parties do not have counsel, may be based upon the ignorance of unrepresented parties or upon ill-advised concessions. If the mediator-turned-lawyer for both parties does not then advise both clients of all considerations and possible alternatives previously overlooked in the hopes of securing a deal, the lawyer would not be acting ethically.
12. In Opinion 116, the Ethics Advisory Opinion Committee noted the substantial danger of improper influence exercised by a dominant spouse to prevent adequate disclosure of conflicts. 11 That observation remains just as true today. Divorced couples often make recurrent visits to the courts despite what once appeared as a mutually agreed-on decree. In fact, the recurrent disputes over property, custody, visitation, child support amounts and alimony termination is at least as significant as the number of so-called successful mediations.
13. Under Rule 1.7(a), this conflict cannot be waived by the opposing parties, even with the fullest kind of disclosure and consent. Rule 1.7 (a) permits the lawyer to request consent only if the lawyer reasonably believes that the proposed simultaneous representation of both parties will not adversely affect the lawyer’s relationship with either client. This test of Rule 1.7(a) is judged by the objective standard of a disinterested lawyer. As in Opinion 116 and here, we conclude that this standard cannot be met. Informed consent would require explaining to each of the clients that the lawyer would be obligated to explain to each their respective rights, what they may have given up to arrive at a deal, previously unresolved disputes may result during the drafting of a final agreement, the risk that the settlement could be undone, and the requirement that the mediator-lawyer have no further involvement for either party if that were to occur. A disinterested lawyer could not possibly conclude that a lawyer could fairly and zealously represent both clients and not impair the lawyer’s relationship with either client under these circumstances.12
14. Strong policy arguments favor the position of the Ethics Advisory Opinion Committee in Opinion 116 and here. Opinion 116 explained these policy considerations:
Allowing dual representation tends to erode confidence in the courts as a tool for equitable resolution of disputes. The risk of the appearance of impropriety is great in divorce cases where the inherent adversity of the parties is so obvious. Furthermore, the court is presented with only one view of the facts in the divorce, substantially reducing the court’s ability to protect both parties.
Besides an appearance of impropriety, dual representation can foster impropriety by facilitating a fraud on the court, either with or without the attorney’s collusion. The potential for fraud enlarges when one spouse dominates the marriage.
Additionally, the attorney representing both parties has a financial disincentive to inquire too closely into the details of the property settlement he is arranging, because he must withdraw from the case entirely if he discovers a conflict.13
15. Rule 1.7(a) does not allow these potential conflicts to be remedied simply by disclosure and consent. As was said in Opinion 116, “The danger to the parties and the courts outweighs the advantages of cost and convenience advanced as the reasons for adoption of a rule allowing dual representation.”14
Footnotes
1. The actual question put to the Committee was whether it was permissible for an attorney who serves as a domestic relations mediator to draft the parties’ settlement agreement and pleadings (complaint, findings of fact, conclusions of law, and divorce decree) so that the settlement reached in mediation could be entered as a judgment of the court. When the mediator drafts a settlement agreement and pleadings, the mediator is acting as an attorney and, if purporting to act for both parties, the mediator is attempting to represent the petitioner and respondent simultaneously—opposing parties in litigation.
2. Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah St. Bar) (hereinafter Opinion 116).
3. (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
Utah Rules of Professional Conduct 1.7 (2004).
4. The Utah Supreme Court has observed that “[T]he [R]ules [of Professional Conduct] establish the general impropriety of an attorney representing separate clients with adverse interests.” State v. Brown, 853 P.2d 851, 858 (Utah 1992).
5. Opinion 116, at *5.
6. Tanasse v. Snow, 929 P.2d 351, 355 (Ut. Ct. App. 1996).
7. N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
8. New York, for example, concluded that dual representation may be possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents,” New York State Bar Assn. Op. 763 (Jan. 3, 2001); Mass. Bar Assn. Ethics Op. 85-3 (Dec. 31, 1985).
9. It is beyond the purview of the Committee to define the practice of law. Historically, the preparation of pleadings in litigation by a representative of a party has been considered the practice of law. Utah State Bar v. Peterson, 937 P. 2d 1263, 1268 (Utah 1997). Even if the preparation of such pleadings by a non-lawyer mediator would not constitute the unauthorized practice of law, their preparation by a lawyer-mediator would constitute a law-related activity. Unless the lawyer discontinued the practice of law, the lawyer would be required to comply with the Utah Rules of Professional Conduct. Utah Ethics Advisory Op. 02-04, 2002 WL 459018 (Utah State Bar).
10. 880 F. Supp. 1487 (D. Utah 1995).
11. Opinion 116 at *2.
12. It has been brought to the Committee’s attention that Rule 101(e) of the Utah Rules of Court Annexed Alternative Dispute Resolution currently authorizes the mediator to prepare a settlement agreement and “any documents appropriate for resolution of the action.” A proposed amendment to this rule would not permit the mediator to prepare legal documents for the parties. It is common for mediators to assist the parties in preparing a term sheet or a memorandum of understanding to set forth the essential terms of the mediated resolution of the dispute. This activity is undertaken as a mediator, not as the lawyer for either party. We see no problem with a lawyer-mediator engaging in this task. We conclude that under the Utah Rules of Professional Conduct a mediator may not ethically create pleadings to implement the mediated settlement.
13. Opinion 116, at *2.
14. Id. at *5.
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 05-03
May 6, 2005
1 Issue: May a lawyer who serves as a domestic relations mediator, following a successful mediation, draft the settlement agreement and necessary court pleadings to obtain a divorce for the parties?
2 Opinion: When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation. A lawyer may not represent both parties following a mediation to obtain a divorce for the parties. It may be posible after the mediation has terminated, in limited circumstances, for the lawyer mediator to act as the lawyer for one party in drafting a settlement agreement and in obtaining a divorce decree after disclosure and consent of both parties consistent with Rule 1.7.
3 Analysis: The issue considered here was the subject of a prior opinion issued by this Committee in 1992. We have been asked to revisit this issue again because of the expansion and apparent success of divorce mediators in resolving domestic relations matters for pro se litigants for whom the cost of retaining legal counsel may be a serious financial burden.1
4 Utah Ethics Advisory Opinion 116 considered the following issue: “Under what circumstances may an attorney represent both parties in a divorce?”2 The answer given in Opinion 116 was “never,” based on the clear ethical mandates of Rules 1.7(a) and 1.7(b) of the Utah Rules of Professional Conduct.3 These rules establish a duty of undivided loyalty of counsel to a client.4 Opinion 116 concluded that our rules preclude concurrent representation of clients with directly adverse interests in the matter. Opinion 116 included a lengthy discussion of policy arguments favoring dual representation and policy arguments opposing dual representation in divorce proceedings and concluded that: “The concurrent representation of both parties in a divorce is an ethically unacceptable practice.”5
5 In the 12 years since Opinion 116 was issued, the applicable rules and the arguments bearing upon dual representation in divorce proceedings have not materially changed. The arguably successful and beneficial development of alternative dispute resolution and mediation in the interim does not change our conclusion here. Since our Committee has no policy-making authority, the fact that parties to all lawsuits, including divorces, are increasingly turning to alternative dispute resolution with reportedly positive results to the public and Bar alike cannot alter the clear mandate of our Rules. Whatever the social, financial or other impacts of the alternative dispute resolution trend, and even assuming its worth and inevitability, the ethical rules we are charged to uphold have no “public policy” exceptions that would permit this Committee to rewrite the rules to achieve a result some may believe is beneficial, even if that revision is a carefully reasoned, narrowly crafted exception.6
6 Several states have considered this issue and arrived at a similar conclusion to this opinion and Opinion 116.7 Other states have concluded otherwise.8 However, the opinions of other bar associations, while instructive, are not controlling.
7 We reaffirm our conclusion in Opinion 116 because we believe that Rule 1.7(a) creates a per se bar to dual representation of a plaintiff and a defendant in litigation, even in the settlement phase of that litigation. The official comment to our Rule 1.7(a) makes this conclusion clear: “Paragraph (a) prohibits representation of opposing parties in litigation.”
8 Rule 1.7(a) recognizes that under certain limited circumstances a lawyer may represent a client adverse to another client. A lawyer may do so only when (1) the lawyer “reasonably believes the representation will not adversely affect the relationship with the other client,” and (2) each client consents after consultation. The comment to Rule 1.7(a) provides that the “reasonable belief” that the representation will not adversely affect the relationship with the other client is tested by the objective standard of a disinterested lawyer. The comment provides: “When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” The direction in the comment that Rule 1.7(a) prohibits representation of opposing parties in litigation is simply the recognition that a disinterested lawyer would not recommend that a single lawyer represent adverse parties in litigation.
9 We recognize the Utah Legislature and the American Bar Association Section on Dispute Resolution have concluded that “mediation is not the practice of law.” However, when the mediator performs tasks that are the practice of law or are even law-related, such as the preparation of pleadings for use in litigation, the mediator is subject to the Utah Rules of Professional Conduct. 9
10 One court in Utah has specifically addressed the issue of a mediator-turned-lawyer. In Poly Software International v. Su,10 litigants moved the trial court to disqualify plaintiff’s counsel where plaintiff’s lawyer had previously acted as mediator for the parties. The Poly Software court held that the lawyer who had previously been a mediator had received confidential information from both parties and was therefore unable to represent anyone in connection with the same or a substantially factually related matter unless all parties consented after disclosure. Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter.
11 We are unpersuaded that, once a mediation results in a settlement of existing property, custody and other disputes, the parties are not “adverse.” We believe it unlikely that two lay, adverse litigating parties can both be aware of their legal rights and all the other practical problems inherent in divorce proceedings, without an experienced lawyer advising them. Consequently, it is possible, and perhaps even likely, that the settlement reached in mediation, where parties do not have counsel, may be based upon the ignorance of unrepresented parties or upon ill-advised concessions. If the mediator-turned-lawyer for both parties does not then advise both clients of all considerations and possible alternatives previously overlooked in the hopes of securing a deal, the lawyer would not be acting ethically.
12 In Opinion 116, we noted the substantial danger of improper influence exercised by a dominant spouse to prevent adequate disclosure of conflicts.11 That observation remains just as true today. Divorced couples often make recurrent visits to the courts despite what once appeared as a mutually agreed-on decree. In fact, the recurrent disputes over property, custody, visitation, child support amounts and alimony termination is at least as significant as the number of so-called successful mediations.
13 Under Rule 1.7(a), this conflict cannot be waived by the opposing parties, even with the fullest kind of disclosure and consent. Rule 1.7 (a) permits the lawyer to request consent only if the lawyer reasonably believes that the proposed simultaneous representation of both parties will not adversely affect the lawyer’s relationship with either client. This test of Rule 1.7(a) is judged by the objective standard of a disinterested lawyer. In Opinion 116 and here, we conclude that this standard cannot be met. Informed consent would require explaining to each of the clients that the lawyer would be obligated to explain to each their respective rights, what they may have given up to arrive at a deal, previously unresolved disputes may result during the drafting of a final agreement, the risk that the settlement could be undone, and the requirement that the mediator-lawyer have no further involvement for either party if that were to occur. A disinterested lawyer could not possibly conclude that a lawyer could fairly and zealously represent both clients and not impair the lawyer’s relationship with either client under these circumstances. 12
14 Strong policy arguments favor the position of the Committee in Opinion 116 and here. Opinion 116 explained these policy considerations:
Allowing dual representation tends to erode confidence in the courts as a tool for equitable resolution of disputes. The risk of the appearance of impropriety is great in divorce cases where the inherent adversity of the parties is so obvious. Furthermore, the court is presented with only one view of the facts in the divorce, substantially reducing the court’s ability to protect both parties.
Besides an appearance of impropriety, dual representation can foster impropriety by facilitating a fraud on the court, either with or without the attorney’s collusion. The potential for fraud enlarges when one spouse dominates the marriage.
Additionally, the attorney representing both parties has a financial disincentive to inquire too closely into the details of the property settlement he is arranging, because he must withdraw from the case entirely if he discovers a conflict.13
15 Rule 1.7(a) does not allow these potential conflicts to be remedied simply by disclosure and consent. As we said in Opinion 116, “The danger to the parties and the courts outweighs the advantages of cost and convenience advanced as the reasons for adoption of a rule allowing dual representation.”14
16 Representing One Party Following Mediation. It may be possible, under limited circumstances, for a lawyer-mediator, after a mediation has terminated, to represent one party to divorce litigation, in order to draft final court documents to effectuate the mediated settlement. This representation may only be undertaken if the mediator-turned-lawyer complies with Rule 1.7(b) and the lawyer’s duties as a mediator to the non-represented party.15 This could occur in the event of the following:
17 a. Full disclosure by the lawyer of the lawyer’s ethical responsibilities as a former mediator not to disclose confidential information revealed to the mediator by the non-represented party, and that such non-disclosure may limit the lawyer’s ability to represent the client fully;
18 b. Full disclosure of the potential conflict of interest by the lawyer to both parties, and an informed consent by both parties to the conflict after independent consultation, which shall include an explanation to each client of the implications of the representation and the advantages and risks involved;16 and
19 c. An independent good-faith assessment by the lawyer that the representation of the one client whom the lawyer undertakes to represent will not be materially limited by the lawyer’s responsibilities to the other party or to a third person or by the lawyer’s own self interest.
20 It may seem incongruous, and even ironic, that the mediator-turned-lawyer might undertake to represent the interests of only one party to a mediated divorce, but may not represent both parties. Rule 1.7(a) simply does not allow representation by one lawyer of both parties in the same lawsuit. On the other hand, the rules allow for the possibility of representation of one party to a lawsuit, even if the lawyer’s representation may be limited by the lawyer’s responsibility to a third person. The teaching of Poly Software is that confidential information may be obtained when acting as a mediator in the course of mediation, and the subsequent representation of one party in the same or a substantially factually related matter is possible with consent and full disclosure.17 It is expected that the lawyer-mediator would sufficiently alert the parties to the mediation of all of the potential pitfalls in this situation to permit the parties to make a truly informed decision whether to allow the mediator to act as a lawyer representing only one of the opposing parties in divorce litigation.
We respectfully dissent:
21 The majority has reached two results that we believe are wrong—one that imposes an unnecessarily narrow constraint on parties to resolve disputes that is not required under the Utah Rules of Professional Conduct; and one that produces an illogical result inconsistent with the overall goals and aspiration of the Rules of Professional Conduct.
22 Contrary to the claim of the majority, their results are not mandated by the Rules of Professional Conduct. Indeed, we believe the majority has lost sight of at least one fundamental principle: The Rules are “rules of reason, . . . [to be] interpreted with reference to the purposes of legal representation and of the law itself”18 Because of an unnecessarily rigid interpretation of Rule 1.7, the opinion produces an inequitable result, one that is logically and internally inconsistent, and one that does not serve the best interests of a segment of the public that is looking to the legal profession for effective, low-cost legal services.19
23 Under a careful and reasonable interpretation of the Rules, we conclude that they permit an attorney-mediator, in limited circumstances, to undertake the subsequent joint representation of the mediating parties in obtaining final judicial approval of a fully successful settlement.
BACKGROUND
24 Increasing Role of Alternate Dispute Resolution. Parties with domestic disputes are increasingly turning to alternative dispute resolution approaches to resolving their disputes. Indeed, court rules may require certain domestic litigants to attempt mediation before arguing contested issues to the court.20 Some believe that the use of mediation is a superior way to resolve disputes when there are strong personal feelings or a need for an on-going relationship. Many believe that mediation may be a more affordable process than adversary litigation.
25 But, even mediating parties often need legal advice or information about their options under the law in order to make informed decisions. And, parties often need legal assistance in preparing the final agreement so that it will be enforceable. Similarly, when parties have a domestic dispute that must ultimately be presented to a court for a final judgment, they may need legal services in preparing required court pleadings. The desire for a consensual process, an informed process and an affordable process presents challenges regarding how mediators and lawyers might work together for the best interests of their clients.
26 Turning to the specific situation of a divorcing couple, Ethics Advisory Opinion 116 concluded that it is impermissible for one lawyer to “concurrently represent both parties in a divorce in any circumstances.”21 The current question concerning post-mediation representation requires a closer analysis of a situation that may not have been fully contemplated by Opinion 116.22
27 We also note that the new ABA Model Rules of Professional Conduct (the “Model Rules”), adopted from the ABA’s Ethics 2000 project, address various issues that are implicated in the issues before us.23 In particular, Model Rule 1.12 includes, for the first time, the lawyer-mediator regarding subsequent representation and related conflicts of interest, and new Model Rule 2.4 addresses a lawyer serving as a third-party neutral, including as a mediator.
28 Mediation Is Not the Practice of Law. There is wide agreement that mediation, per se, is not the practice of law. The Utah Alternative Dispute Resolution Act defines “mediation” as a “private forum in which one or more impartial persons facilitate communication between parties to a civil action to promote a mutually acceptable resolution or settlement.”24 Similarly, Utah’s “Alternative Dispute Resolution Provider Act” identifies mediation as a form of “alternative dispute resolution”25 and defines a “dispute resolution provider” as “a person, other than a judge acting in his official capacity, who holds himself out to the public as a qualified neutral person trained to function in the conflict-solving process using the techniques and procedures of negotiation, conciliation, mediation.”26
29 It is generally agreed that a mediator—whether a lawyer or a lay person—may draft a “memorandum of understanding” that precisely reflects the parties’ agreement and does not go beyond it, without engaging in the practice of law. However, once a mediator adds to the parties’ agreement or selects language with its legal import in mind, the mediator may be engaged in the practice of law.27
30 A Mediator’s Preparation of the Parties’ Settlement Agreement and Court Pleadings Is the Practice of Law. The question presented suggested that any mediator might prepare the settlement agreement and court pleadings as a mediator. However, once the attorney-mediator begins drafting final settlement agreements or court documents, he is engaging in the practice of law as defined by the Utah Supreme Court. In the Utah State Bar v. Petersen case, the Court stated:
[W]ith the aid of forms he selected, he drafted such things as complaints, summonses, motions, orders, and findings of fact and conclusions of law for pro se clients; . . . Thus Petersen held himself out to the public as a person qualified to provide, for a fee, services constituting the practice of law.28
Clearly, the mediator-lawyer would not be engaged in the unauthorized practice if he were to prepare and file such documents. The only remaining question is whether the Utah Rules of Professional Conduct would prohibit him from doing so.
31 Parties in Mediation Should Have Access to Independent Legal Advice. Where parties have independent counsel, there is much less concern about the mediator drafting agreements for the parties. Mediation standards and guidelines unanimously and unequivocally recommend that parties consult with independent counsel—before, during or at the conclusion of the mediation. The lawyer can advise a party about legal standards and a range of options. During the mediation a lawyer can advise a party about the legal import of any proposed agreement. At the conclusion of the mediation, the lawyer can advise the party not only about his rights, but about the best ways to carry out the proposed agreement. A lawyer can prepare—or review—documents that will be filed in court to insure that they are complete and will accomplish what the parties have agreed. This benefit of having access to legal counsel exists even if counsel has limited the objectives of the representation (after consultation and with client consent) as provided for by Rule 1.2(b).
DISCUSSION
32 The General Approach and Rationale of Opinion 116 Is Still Valid. In Opinion 116 the Committee considered whether an attorney could concurrently represent both parties in a divorce and decided that no such representation was possible.
33 The Opinion considered such representation to be governed by Rule 1.7(a) regarding concurrent representation of clients with “directly adverse interests.” That rule permits dual representation only when the representation of one client will not adversely affect “the relationship” with the other client. Moreover, the rule imposes a requirement on the lawyer that the lawyer “reasonably believe” that such dual representation will not adversely affect the relationship with either client. Thus, even if both clients consented to such representation, a lawyer would not be permitted to undertake it unless the lawyer “reasonably believed” there would be no adverse affect on the relationship with either client.
34 The Committee concluded that an attorney representing both parties in a divorce would have a disincentive to inquire closely into the parties’ financial circumstances and thus discover a conflict between them. It noted that the attorney might be disinclined to point out any inequities to a disadvantaged party and thus upset the dual representation.
35 We agree with these concerns and the conclusion that a lawyer, serving solely as counsel, may not undertake to represent both parties to a divorce. At the outset of such a representation, the lawyer would have too little information to reasonably conclude such a representation could be undertaken without harming the relationship with one or the other client.
36 However, we note that “mediation” is not “representation,” and the mediation process provides for sharing of information and development of proposed solutions, separate and apart from legal representation in a divorce. Therefore, it is possible that an attorney-mediator could reasonably conclude, after an entirely successful mediation, that he could then serve as lawyer and fairly represent the interests of both clients without adversely affecting the relationship with either client. However, the circumstances in which an attorney-mediator would fairly so conclude are limited and would need to be thoroughly understood.
37 The Role of Rule 1.2. The Committee has considered at various times the possibility of a lawyer’s providing limited legal services.29 Under Rule 1.2, parties engaged in divorce mediation have the option of retaining counsel for narrowly limited representation as appropriate in the individual case. Limiting the representation to the drafting of the settlement agreement and related court documents is a sensible approach:
Even drafting the stipulated judgment is a task often ceded to the mediator. By the end of the process, both parties usually have a high level of confidence in the mediator’s impartiality and may be more comfortable in the settlement agreement is prepared by the neutral mediator instead of either party’s consulting attorney.30
38 In this context, Rule 1.2 provides a major tool by which parties may limit the scope of the engagement of a lawyer. No one would argue that a lawyer who is a “stranger” to the transaction could not so limit her involvement to come in at the conclusion of the mediation. This, of course, makes perfect sense from a public-policy perspective, as long as the limitation is not so narrow as to render the lawyer’s role a nullity.31 But, it may be far more economical for this to be done by the lawyer who has absorbed all of the facts and circumstances leading to a successful mediation to do so. And that, in turn, furthers the general goals of providing mechanisms that allow parties to resolve their disputes in an effective and economical way.
39 Thus, pursuant to that rule, it is perfectly reasonable for the two now-resolved parties to say to their mediator-lawyer, “Will you now represent us in or common goal to have this matter made final by the legal system?” To the extent that this request is memorialized with the consent of the two parties that satisfies the requirements of Rule 1.7(a) (“each client consults after consultation”) and Rule 1.12 (“all parties to the proceeding consent after consultation”),32 we believe it would be well within the prerogative of the parties and their selected mediator-turned-lawyer to continue to assist the parties to negotiate the final legal formalities of filing papers and obtaining the appropriate court disposition.
40 Other Jurisdictions’ View of the Issue. Other states have considered the same issue posed here.33 Some states prohibit a mediator from doing anything that could constitute the “practice of law.”34 These states permit drafting a memorandum of understanding, but prohibit giving a legal opinion as to its effect. This broad approach of requiring mediators never to opine on the law is widely criticized by the national organizations for mediation. Given the Utah Supreme Court’s loose definition of the practice of law in Petersen, it is not necessary to prohibit a mediator from providing an opinion that could be construed as the practice of law or to prohibit a lawyer-mediator from providing such legal advice.
41 Early ethics opinions from Florida 35 and Massachusetts 36 permit the lawyer-mediator to draft the separation agreement following a fully successful divorce mediation under certain circumstances and with certain guidelines.37 A recent opinion by the New York State Bar specifies limited circumstances when such a practice is permitted and prohibits lawyer-mediators from advertising this possible service, given the limited circumstances in which it will be appropriate. 38
42 The 2001 New York State Bar opinion partially modified its prior opinion that a lawyer cannot represent both spouses in a divorce, concluding that, in some cases, at the conclusion of the mediation, a “disinterested lawyer” could conclude that he could competently represent both parties consistent with DR5-105(C).39 The New York committee stated:
[T]he lawyer may not represent both spouses unless the lawyer objectively concludes that, in the particular case, the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents. In those circumstances, the per se ban of NY State 258 should be relaxed to permit spouses to avoid the expense incident to separate representation and permit them to consummate a truly consensual parting, provided both spouses consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.
43 The New York opinion notes that full disclosure must include informing the parties that the absence of separate representation creates a risk that the agreement might be successfully challenged. The opinion goes on to say that “because the disinterested lawyer test cannot easily be met” the lawyer may not do this as a regular practice. The lawyer may not indicate that the lawyer will routinely do this in advertising or in retainer agreements. The opinion also notes that where the lawyer-mediator does draft and file divorce papers, “If the lawyer does not make a formal appearance in the divorce proceeding, the lawyer must ensure that his or her role is disclosed to the court.”
44 The only Utah case of which we are aware that touches on a related subject is Poly Software International, Inc. v. Su.40 This case involved a mediator’s attempt to represent one of the mediating parties in a subsequent related matter that was opposed by the other party to the mediation.. The mediator-turned-lawyer was disqualified by U.S. District Judge David Winder under Rule 1.12 because there was no consent. Poly Software has no application to the post-mediation representation of one or both parties by the mediator-lawyer where there is full consent.41
45 The main opinion’s claim that, “Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter” is, quite simply, incorrect. On this issue, Judge Winder’s decision addressed only the conditions under which the former mediator can represent a mediating party when the other party will not consent. One can draw no inference from Poly Software concerning the breadth or narrowness of post-mediation representation if the parties consent.42
ANALYSIS
46 Our analysis is founded primarily on a reading and interpretation of Rule 1.7, in connection with Rules 1.2 and 1.12.43 Rule 1.7(a) addresses “direct adversity” where the lawyer can represent both parties only if “each client consents after consultation” and “the lawyer reasonably believes the representation will not adversely affect the relationship with the other client.” Because the parties to a divorce will, at least initially, oppose one another in a litigated matter, and because their interests are then “directly adverse,” Rule 1.7(a) applies.44 The question under Rule 1.7(a), like the question before the Massachusetts and New York bars, is whether a mediator-lawyer could, at the conclusion of a totally successful mediation, “reasonably believe” he could undertake to represent both parties.
47 We start with Rule 1.7(a), first assuming that, even after a completely successful mediation, husband and wife are deemed to be technically “adverse.” Here, it must be assumed that their agreement at the end of the mediation has resolved all the issues before the parties. Further, we are specifically dealing with a situation in which the mediator is a lawyer. Notwithstanding that during the mediation he has not represented a party, he is, nonetheless, engaged in a law-related activity. By our prior ethics opinions, he carries the “baggage” of adherence to the Rules of Professional Conduct with him as he carries out those activities.45 In particular, under Rule 1.1, he is required to be competent in such endeavors. Thus, we must assume that a mediated result that is acceptable to the parties has been supplied with competent mediation guidance. Accordingly, it would be inconsistent with the conditions put before us to assume that there are still unresolved issues and that the parties are still at odds on one or more issues.
48 The Rule 1.7 Comment. In analyzing whether Rule 1.7(a) precludes the kind of post-mediation assistance under consideration here, some have seized on an isolated sentence in the comment to Rule 1.7 as categorically prohibiting it: “Paragraph [1.7](a) prohibits the representation of opposing parties in litigation.”46 There are two independent arguments that show this does not dispose of the issue.
49 First, this statement must be read in the context of the rule it refers to. It can not trump the plain reading of 1.7(a), which quite clearly admits of situations where directly adverse parties can be concurrently represented under the “unless” clauses. If the rule were meant to exclude absolutely all representation of adverse parties in the same matter, it would not have been hard for the drafters to have explicitly said so. They did not. In this case, the apparent absoluteness of the comment must be read with and understood to be conditioned by the “unless” clauses of the black-letter rule. That is, it must be read: “Unless clauses (1) and (2) can be satisfied, p]aragraph (a) prohibits the representation of opposing parties in litigation.” It is not possible to take the “unless” clauses out of the black-letter rule by an out-of-context reading of an isolated sentence in the comment. If the parties consent and the lawyer-mediator concludes that his representations will not be adversely affected, then Rule 1.7(a) is satisfied.
50 Second, we consider the role of the term “adverse” in Rule 1.7(a). We believe that, after the parties have come to an agreement under the guidance of a competent lawyer-mediator, they may be considered no longer “adverse” under Rule 1.7(a). The two parties are, by definition, adverse going into a mediation. But, if the mediation has been completely successful, having had the assistance of a skilled mediator trained in the law, the parties will shake hands, agree that their differences are resolved, that all that is left to do is memorialize their agreement. And, because society has declared that divorcing parties must complete the procedure before a magistrate of some kind, they must submit appropriate paperwork to satisfy the legal requirements.
51 At this point, the parties have a single, common goal in the matter: They wish only to get the legal system to put its stamp of approval on what they’ve agreed to. Are they “adverse?” Not under a common interpretation of the word. An authoritative dictionary tells us that things (such as parties) are adverse if they are “[a]cting or serving to oppose; antagonistic” or that they are “[m]oving in an opposite or opposing direction.”47 Does this describe parties who have settled their differences? Not at all. Indeed, to continue to refer to them as “adverse” is rather an artificial and non-standard use of the term.48
52 ABA Model Rule 1.12. In its Ethics 2000 modifications to the Rules of Professional Conduct dealing with the restriction on the representation of clients by former adjudicators, the ABA expressly included mediators. That rule reads:
Former Judge, Arbitrator, Mediator Or Other Third-party Neutral
(a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.49
This makes it crystal clear that the former mediator may subsequently represent a party to the mediation if all parties to the proceeding give informed consent, confirmed in writing;50 there is nothing inherent in this rule that would limit the representation to one party.
53 For those who would find that the mediator-turned-lawyer could represent one of the settling parties (with appropriate consent) in the post-mediation proceedings, but not both, we find such a result perplexing, at best. The legal profession would be telling the outside world that it is perfectly all right for the parties to agree that their former mediator can now line up with one of the parties, while the other party must either go without representation or must obtain (and presumably pay for) a lawyer to come to the process for the first time. But, should we tell the same two parties that they are incapable of agreeing that they are comfortable to have the mediator who led them through the thicket of issues to hand-hold them through the rest of the process? We think this result is indefensible—from both logical and public-policy perspectives. It’s no wonder that the public sometimes looks at lawyers and wonders where their common sense is.51
54 In addition, denying the settling parties in a divorce the opportunity to consent to post-mediation representation by their lawyer-mediator is inconsistent with the latitude granted under Rule 1.12. How could one logically deny these parties the flexibility afforded under Rule 1.12 and not other types of once-adverse-but-now-settled parties to avail themselves of the continuing services of their lawyer-mediator?
55 The Lawyer-Mediator May Undertake Limited Representation of Both Parties. We have reviewed the ethics opinions from other states as well as the ABA’s proposed Model Rules from Ethics 2000. We believe that the best reading of the applicable rules is that, in limited circumstances, the mediator may undertake to represent both parties in a divorce, following an entirely successful mediation.
56 We, like the New York committee, are persuaded that a lawyer could “reasonably believe” dual representation is possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents.”52
57 We note that not every case settled through mediation will qualify under this standard and agree with the Massachusetts bar opinions that drafting the separation agreement involves “dual representation” that is fraught with challenges. While it may be the case that the mediation process was so thorough and the agreement reached so uncomplicated that the drafter’s efforts are truly those of a mere ‘scrivener or secretary,’ [citation omitted] this will not usually be the case.”53 We find this analysis persuasive, particularly insofar as it notes that there will usually be choices to make in the drafting of such an agreement, so that the lawyer-mediator must reasonably believe that he can discuss the choices with both parties as his clients in order to proceed.
58 We also believe that, at the point the mediator is asked to begin dual representation, “Rule 1.7(b) must also be considered, for there is an unavoidable risk . . . that [the lawyer’s] best efforts on behalf of one of the parties will ‘materially limit’ what can be done for the other.”54 Rule 1.7(b) regarding potential conflicts of interests requires that each client consent “after consultation” and that the lawyer fully explain “the implications of the common representation and the advantages and risks involved.” Here that would require explaining to the clients the challenges in drafting a final agreement, the risk that the settlement could come undone, and the requirement that the lawyer-mediator have no further involvement for either party if that were to occur.
59 Moreover, we observe that the lawyer-mediator who declines during mediation to indicate what typical outcomes are ordered by the court may not continue to avoid providing the parties with such information once he undertakes to provide them with dual legal representation. At that point, the lawyer must inform both parties of their legal rights and respond to their questions in order to comply with applicable ethical rules.55 For these reasons, there will be some settled cases in which the lawyer-mediator will not be able reasonably to conclude he can serve both parties as their lawyer at that point.
60 However, in some cases the parties’ agreement will so closely follow typical court orders that this will not be a problem. Similarly, parties may be so committed to their particular agreement that learning what a court would order in the absence of an agreement will not influence them at all.
61 We agree with the analysis of the New York committee that the attorney-mediator should not advertise that he will regularly serve the dual roles of mediator and lawyer for both parties, since this will not be typical. Such a statement could constitute a violation of Rule 7.1 as prohibited “false or misleading communication about the lawyer or the lawyer’s services.” Also, the lawyer-mediator who undertakes to prepare court pleadings on behalf of the divorcing parties should indicate his representation of both parties and his prior role as the mediator in these pleadings in order to comply with the obligation of candor toward the tribunal required by Rule 3.3. This will provide the court with the proper and accurate information with which to review the parties’ agreement and proposed judgment.
62 Opinion 116—Reprise. We believe that permitting the two spouses to give informed consent to the joint representation is not inconsistent with the basic analysis of Opinion 116. Opinion 116 was founded on the premise that the two divorcing parties had, at least potentially, unresolved issues between them and that it was not possible to postulate that the parties could reasonably consent to joint representation under those circumstances. Here, however, we have a situation where the issues have, by definition, been resolved by a lawyer-mediator and the remaining task is to deal with the legal formalities of making the result final. This, in our, judgment, is a situation that can be the subject of consent by the two settling parties.
63 Thus, we have two parties who, through mediation conducted by a lawyer, have reached a full concurrence on how to resolve the issues of their divorce and the only remaining hurdle is to memorialize the agreement in a fashion that will (a) capture the agreement of the parties, and (b) satisfy such legal requirements as will allow the agreement to be effected through appropriate legal proceedings. This was not the context in which the analysis of Opinion 116 was conducted. We, accordingly, would not overrule Opinion 116 except to the extent that parties who have reached a comprehensive settlement of the relevant divorce issues through the assistance of a competent lawyer serving as a mediator under Utah law may seek and consent to limited joint representation by the mediator-lawyer to obtain final disposition of the divorce proceedings.
CONCLUSION
64 We conclude that a lawyer-mediator could undertake to represent both parties and to prepare the ultimate Settlement Agreement and to prepare the necessary court pleadings for the parties’ divorce at the conclusion of a fully successful mediation only when:
* The lawyer could “reasonably believe that the representation” of both parties “will not adversely affect the relationship with” either in this directly adverse representation. Rule 1.7(a).
* The parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents.
* Both parties give fully informed consent.
* The lawyer-mediator makes known to the court the nature of his dual role.
Accordingly, five members of the Committee dissent, including:
Robert A. Burton
Keith A. Call
Gary G. Sackett
Linda F. Smith
Footnotes
1 The actual question put to the Committee was whether it was permissible for an attorney who serves as a domestic relations mediator to draft the parties’ settlement agreement and pleadings (complaint, findings of fact, conclusions of law, and divorce decree) so that the settlement reached in mediation could be entered as a judgment of the court. When the mediator drafts a settlement agreement and pleadings, the mediator is acting as an attorney and, if purporting to act for both parties, the mediator is attempting to represent the petitioner and respondent simultaneously—opposing parties in litigation.
2 Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah St. Bar) (hereinafter Opinion 116).
3 (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
Utah Rules of Professional Conduct 1.7 (2004).
4 The Utah Supreme Court has observed that “[T]he [R]ules [of Professional Conduct] establish the general impropriety of an attorney representing separate clients with adverse interests.” State v. Brown, 853 P.2d 851, 858 (Utah 1992).
5 Opinion 116, at *5.
6 Tanasse v. Snow, 929 P.2d 351, 355 (Ut. Ct. App. 1996).
7 N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
8 New York, for example, concluded that dual representation may be possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents,” New York State Bar Assn. Op. 763 (Jan. 3, 2001); Mass. Bar Assn. Ethics Op. 85-3 (Dec. 31, 1985).
9 It is beyond the purview of the Committee to define the practice of law. Historically, the preparation of pleadings in litigation by a representative of a party has been considered the practice of law. Utah State Bar v. Peterson, 937 P. 2d 1263, 1268 (Utah 1997). Even if the preparation of such pleadings by a non-lawyer mediator would not constitute the unauthorized practice of law, their preparation by a lawyer-mediator would constitute a law-related activity. Unless the lawyer discontinued the practice of law, the lawyer would be required to comply with the Utah Rules of Professional Conduct. Utah Ethics Advisory Op. 02-04, 2002 WL 459018 (Utah State Bar).
10 880 F. Supp. 1487 (D. Utah 1995).
11 Opinion 116 at *2.
12 It has been brought to the Committee’s attention that Rule 101(e) of the Utah Rules of Court Annexed Alternative Dispute Resolution currently authorizes the mediator to prepare a settlement agreement and “any documents appropriate for resolution of the action.” A proposed amendment to this rule would not permit the mediator to prepare legal documents for the parties. It is common for mediators to assist the parties in preparing a term sheet or a memorandum of understanding to set forth the essential terms of the mediated resolution of the dispute. This activity is undertaken as a mediator, not as the lawyer for either party. We see no problem with a lawyer-mediator engaging in this task. We conclude that under the Utah Rules of Professional Conduct a mediator may not ethically create pleadings to implement the mediated settlement.
13 Opinion 116, at *2.
14 Id. at *5.
15 Mediations are often administered by alternative dispute resolution (“ADR”) providers. Many such providers have codes or rules of ethical conduct for mediators. A mediator must abide by all such applicable codes or rules of ethical conduct. For example, the Center for Public Resources (“CPR”) has drafted a model rule for lawyers serving as third-party neutrals which it has proposed for adoption by the American Bar Association. CPR-GEORGETOWN COMMISSION ON ETHICS AND STANDARDS IN ALTERNATIVE DISPUTE RESOLUTION MODEL RULE FOR THE LAWYER AS THIRD-PARTY NEUTRAL (2002). CPR Model Rule 4.5.4(a)(2) prohibits a lawyer serving as a third-party neutral from subsequently representing any party to an ADR proceeding (in which the lawyer served as a neutral) “in the same or a substantially related matter, unless all parties consent after disclosure.” CPR Model Rule 4.5.2 prohibits the lawyer serving as neutral from using (after an ADR proceeding) to the disadvantage of any party to the ADR proceeding any information acquired in the ADR proceeding, except in limited circumstances. Similarly, the American Arbitration Association restricts the lawyer-arbitrator from accepting representation of a party to the arbitration or using information acquired in any arbitration proceeding to the disadvantage of a party to the arbitration. AAA Code of Ethics for Arbitrators in Commercial Disputes, Canons I.C and VI.A (2004). These rules and codes place similar restrictions on lawyers serving as neutrals, as does Rule 1.9 of the Utah Rules of Professional Conduct with regard to legal representation of a client.
16 The Committee recommends that the disclosures include a recommendation to the party that will not be represented by the mediator-turned-lawyer to seek the advice of independent counsel before giving the consent. If disputes do arise between the parties in the course of the former mediator’s preparation of settlement documentation, the lawyer needs to assess whether the disclosures made were adequate and the consent of the unrepresented party is valid and enforceable. If they were not, the lawyer may be ethically required to withdraw from the representation in the preparation of the settlement documentation.
17 The Poly Software court found that the lawyer-mediator (Broadbent) was constrained by our ethical rules:
Poly Software argues that, because Wang was present whenever Su revealed anything to Broadbent, Poly Software does not gain access, by employing Broadbent in the present litigation, to any confidential information that it does not already possess. However, this argument ignores the fact that Broadbent’s professional expertise afforded him a perspective on the legal significance of the confidences that Wang himself could not possibly obtain or communicate to new counsel. In short his role as a mediator with experience in intellectual property litigation gives him an unfair advantage as an attorney in the present case.
Poly Software, 880 F. Supp at 1495.
18 Utah Rules of Professional Conduct, Scope 1.
19 The main opinion implies (at 5) that our conclusion is an attempt to “rewrite the rules” and make public-policy judgments that are not consistent with the Rules. To the contrary, our view is wholly compatible with the Rules. We fully understand the limited role of the Committee in interpreting the Rules. But, we also recognize that the Rules aren’t always crystal clear and do not directly address every possible ethical situation. It is the charge of the Committee to fill the interstices of the Rules’ framework when called upon to do so—admittedly driven in part by public policy where those considerations are not inconsistent with the Rules.
20 Utah Code Ann. § 30-3-38 (West 2004), regarding visitation enforcement; Utah Code Ann. § 78-3a-109 (West 2004), regarding mediation in abuse/neglect petitions.
21 Utah Ethics Op. 116, 1992 WL 685249 (Utah St. Bar).
22 There is no discussion in Opinion 116 of a situation in which the parties have come to complete agreement with the mediation services of a lawyer.
23 It is important to take the ABA Model Rules into account here, because the Utah Supreme Court’s Advisory Committee on the Rules of Professional Conduct is currently evaluating the adoption of those rules—either as written or in modified form—in Utah. Although we do not know the outcome of the process, we anticipate that many of the provisions in the new Model Rules will ultimately be adopted by the Court.
24 Utah Code Ann. § 78-31b-2 (West 2004).
25 Utah Code Ann. § 58-39a-2 (West 2004).
26 Id. § 58-39a-2(4).
27 See Utah State Bar v. Peterson, 937 P.2d 1263, 1268 (Utah 1997), regarding the definition of the practice of law; see also Utah Ethics Advisory Op. 02-10, 2002 WL 31922503 (Utah State Bar), concerning advice to a non-attorney mediator.
28 937 P.2d 1263, 1268 (Utah 1997).
29 See, e.g., Utah Ethics Op. 47 (1978) (attorney may provide legal advice, consultation and assistance to inmates regarding initial pleadings in civil matters, after which the inmate will proceed pro se); Utah Ethics Op. 74 (1981) (attorney may give advice to a party who is proceeding pro se); Utah Ethics Op. 98-14 (attorney representing a client in a divorce case may advise the client of the right to obtain a protective order pro se): Utah Ethics Op. 02-10 (lawyer may provide limited representation to a party engaged in divorce mediation).
30 Franklin Garfield, Unbundling Legal Services in Mediation, 40 Fam. Ct. Rev. 76, 82 (2002).
31 See, e.g., Utah Ethics Advisory Opinion 02-01, 2002 WL 231939 (Utah St. Bar).
32 Existing Utah Rule of Professional Conduct 1.12(a) encompasses judges and arbitrators, but not mediators. The new ABA Model Rule 1.12(a) expressly includes mediators, and this technical modification is currently proposed to be adopted in the near future in Utah. Nothing in the current Utah rule or corresponding comment is inconsistent with the inferential extension of the operation of Rule 1.12 to mediators, and that is corroborated by the change to Model Rule 1.12.
33 Fla. Ethics Op. 86-8 (Oct. 15, 1986), Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985), N.Y. State Bar Assoc. Ethics Op. 736 (Jan. 1, 2001), Ariz. Ethics Op. 96-01, Va. Ethics Op. 511 (Sept 8, 1983), N.C. Ethics Op. 286 (Jan. 14, 1981).
34 N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law, N.C. Bar Assoc. Dispute Resolution Section (April 14, 1999).
35 Fla. Ethics Op. 86-8 (Oct. 15, 1986), www.flabar.org/, states that lawyers can engage in mediation, and sets forth various standards and precautions. The lawyer-mediator “may prepare a settlement agreement. . . that reflects the decisions made by [the parties] during the mediation. The lawyer should advise the parties to consult independent legal counsel before signing any such agreement.”
36 Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985), massbar.org/publications/ethics_opinions, concludes: “An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation.”
37 Arizona considered this question and was unable to decide what guidance to offer the members of its bar who are mediators in Arizona Ethics Op. 96-01.
38 N.Y. State Bar Assoc. Op. 736 (Jan. 3, 2001), www.nysba.org/Content/NavigationMenu/-Attorney_Resources/Ethics_Opinions.
39 Both the New York and Massachusetts opinions interpret Disciplinary Rule 5-105(C) of the Code of Professional Responsibility which “permitted a lawyer to undertake concurrent representation only where it was ‘obvious’ that he could ‘adequately’ represent each client’s interests. . . . Today Model Rule 1.7(a) has replaced DR 5-105.” HAZARD & HODES, THE LAW OF LAWYERING, § 11.6, at 11-16 (2003).
40 880 F. Supp. 1487 (D. Utah 1995).
41 Poly Software would be relevant if, after consent is given, a conflict between the parties were to develop and consent withdrawn. The mediator-turned-lawyer could not continue to represent any party, given Poly Software’s citation to Rule 1.9 and the mediator’s acquisition of confidential information.
42 The main opinion makes the Logic 101 error of arguing that p implies q leads to the conclusion that not-p implies not-q.
43 For clarification, Rule 1.7 of the new ABA Model Rules is constructed somewhat differently from the current Utah Rule 1.7, but there appear to be no material differences in application.
44 See HAZARD & HODES § 11.4 , at 11-9, and § 11.7, at 11-31.
45 See, e.g., Utah Ethics Op. 04-05, 2004 WL 2803336; Utah Ethics Op. 01-05, 2001 WL 829237 (Utah St. Bar); see also ABA Model Rules of Professional Conduct 5.7, Responsibilities Regarding Law-related Services (2002), a version of which seems likely to be adopted by the Utah Supreme Court.
46 Rule 1.7, cmt., “Conflicts in Litigation.” There is no further explanation or expansion of this isolated remark.
47 American Heritage Dictionary 25 (4th ed. 2000).
48 We also note that the new ABA Model Rule 1.7 and the associated comment are slightly different from the current Utah Rule 1.7:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a 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 other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
ABA Model Rules of Professional Conduct 1.7 (2004). ABA Rule 1.7 comment [23] states: “Paragraph(b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.” Again, if this taken out of context, it seems to address the situation we have in front of us. But, as before, it must be read in the context of the now-changed ABA Model Rule. Paragraph (b)(3), to which comment [23] refers, deals with the “the assertion of a claim by one client against another client represented by the lawyer in the same litigation.” The foundational premise of the matter before us is that there is no longer any “assertion of a claim by one client against another client.” To the contrary, the two putative clients are, by definition, no longer asserting claims against one another, and subparagraph (b)(3) does not apply, nor does the part of comment [23] that refers to (b)(3). Hence, even under the re-engineered version of the Model Rules, the mediator may, with the parties’ informed consent, provide the limited representation described.
49 ABA Model Rules of Professional Conduct 1.12(a) (2004) (emphasis added). The written confirmation is an addition to the Model Rule that is not included in the current Utah Rule 1.12. The reference to paragraph (d) is “An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.”
50 The requirement for a written confirmation is not presently in Utah Rule 1.12, but this is likely to be adopted in Utah. Even if not required, it is a recommended practice—particularly in a case of this type.
51 Indeed, the policy that underlay Opinion 116 is hindered by prohibiting a neutral mediator who obtained confidential information from both parties from providing candid legal counsel to both parties while permitting such candid lawyering for only one party. The main opinion here could encourage the precise imbalance of power that Opinion 116 sought to avoid. The mediator lawyer might be motivated to take up the case of whichever party got “the better deal” and now, being answerable as attorney only to that party, would deny candid legal counsel to the other. Far better, if the mediator is to assume the lawyering role, for the mediator to be candid with both parties. Then, if the deal falls apart, the lawyer-mediator has not manipulated the case in an inequitable way.
52 N.Y. State Bar Assoc. Op. 736 (Jan. 3, 2001).
53 Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985).
54 HAZARD & HODES, § 11-7, at 11-31.
55 Utah Rules of Professional Conduct 1.2,

Ethics Advisory Opinion No. 04-01a

December 2, 2004
Amendment of Opinion No. 04-01: On March 29, 2004, the Utah Ethics Advisory Opinion Committee issued Utah Ethics Advisory Op. No. 04-01, 2004 WL 870583 (Utah St. Bar).1 The Office of Professional Conduct of the Utah State Bar filed a petition for review with the Board of Bar Commissioners pursuant to § III(e)(1) of the Ethics Advisory Opinion Committee Rules of Procedure and § VI(a)(1) of the Utah State Bar Rules Governing the Ethics Advisory Opinion Committee. The Commission asked the Committee to reconsider Opinion No. 04-01. Having reviewed the issues raised by the Office of Professional Conduct, we issue this amended opinion, which revises the conclusion and analysis of Opinion No. 04-01. Accordingly, this amended opinion replaces and supersedes Opinion No. 04-01.
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?


Opinion
: The lawyer may not act on behalf of or purport to represent the vanished former employee unless the lawyer has an existing attorney-client relationship with the former employee or the former employee agreed to the representation prior to vanishing and, in either case, the lawyer complies with Rules 1.7 and 1.8(f) of the Utah Rules of Professional Conduct. The lawyer who represents the employer may engage in acts that may benefit the vanished former employee provided the lawyer makes it clear that he is acting on behalf of the employer as the employer’s lawyer and not on behalf of the vanished former employee as the former employee’s lawyer.
Facts: Plaintiff filed suit naming a company and its former employee as defendants. The company 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 former employee. The company is concerned that absence of a formal answer to the complaint by the former employee 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 employee are not directly adverse with respect to the matter.2 The lawyer requesting this opinion also indicated that the employer has liability insurance that covers the incident giving rise to the lawsuit.3 The company has requested that the lawyer represent the vanished former employee.
Analysis: This case presents two competing concerns: 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 the client may make informed decisions; and, under Rule 1.2, the lawyer must abide by the client’s decisions regarding the goals of the representation. On the other hand, the interests of a party missing from a proceeding will go unprotected with an application of the Rules. The Rules of Professional Conduct are rules of reason,4 to be interpreted to further the administration of justice when the Rules are unclear. However, in this instance, we conclude the Rules are clear and must be applied despite arguments of countervailing public policy.5
The employer’s lawyer may not purport to represent the vanished former employee or take action (including the filing of an answer or other papers with the court) as the vanished employee’s lawyer, unless the lawyer already has an existing attorney-client relationship or the former employee has agreed to the representation prior to vanishing, and the lawyer complies with the conflict-of-interest requirements of Rules 1.7 and 1.8(f). To do so would be a violation of Rules 1.2, 1.4 and 1.8 and, in some situations, Rules 1.7, 3.1 and 3.2.
The attorney-client relationship is grounded in principles of agency, which require that the agent (attorney) must be authorized to act for the principal (client) and that the principal must have control over the agent.6 The Rules of Professional Conduct reflect this principle. Rule 1.2 states that “[a] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.” Under the facts here, the Committee assumes that the lawyer and client have not communicated at all. Thus, the lawyer cannot consult with the client regarding the objectives of the representation or the means by which to achieve those objectives.7
Rule 1.4 requires the attorney to maintain reasonable communication with the client. In situations in which the attorney has had no contact with the client, we believe the “reasonable” communication requirement cannot be satisfied.
Rule 1.7 governs conflicts of interest. The employer may be liable to the plaintiff if the employee was acting within the scope of his employment. However, the employer may have a cause of action against the employee for indemnity if the employee’s actions were in dereliction of duty (e.g., drunk on the job). Under the facts in this case, the potential for a conflict of interest does exist. Although we assume that the employer and employee are not likely to assert claims against one another initially (see note 2, supra), due to the potential conflict of interest, Rule 1.7(b)(2) requires the client’s consent to the representation “after consultation.” Rule 1.7(b)(2) further requires for representations of multiple clients in a single matter that “the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.” If the attorney cannot communicate with the client, the attorney cannot make the explanation required by the rule, cannot obtain the client’s consent to representation and would therefore violate Rule 1.7. Moreover, if it is later discovered that the employer’s and the employee’s interests conflict, the attorney may be prohibited from representing either of them.
In addition, Rule 1.8(f)(1) prohibits an attorney from accepting compensation for representing a client from one other than the client unless the client consents after consultation. Under the facts before us, the attorney cannot obtain this consent and would therefore violate Rule 1.8.
Rule 3.1 requires the attorney to make only meritorious claims and contentions. The attorney may be able to perform an adequate investigation to comply with this rule. If, however, the employer did not take a sufficiently detailed statement from the employee regarding the facts of the incident and other employees do not have sufficient knowledge of the facts, the attorney may not have sufficient information to determine whether the defenses raised are meritorious.
This opinion does not prohibit a lawyer from taking some action on behalf of an existing client when the lawyer and client lose contact. 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.8 There are numerous opinions that find it ethical to file pleadings on behalf of a missing existing client to toll a statute of limitations.9 This obligation is stated in Rule 1.16(d), which requires an attorney to take steps to the extent reasonably practicable to protect a client’s interest prior to terminating representation. Similarly, if the former employee had consented to the representation at the employer’s expense prior to vanishing, the lawyer would be permitted to undertake the representation, provided the lawyer complied with Rule 1.7.
The employer-client may have a contractual obligation to (and contractual authorization of) its employees and former employees to provide representation where the employees were acting within the course and scope of their employment.10 Even absent a contractual obligation and authorization to represent the vanished employee, the company’s lawyer has the general obligation to protect the company’s interests and to advance the administration of justice. When Rule 1.7 is complied with, a single lawyer may ethically represent both the employee or former employee and the employer.
The Committee concludes that the company’s lawyer may take limited action that may have the effect of benefitting the vanished former employee, so long as the lawyer does so on behalf of the company and as the company’s lawyer, not purporting to act on behalf of or as the former employee’s lawyer.
For example, in connection with seeking an extension of time to file an answer or motion in response to a complaint on behalf of the company, the lawyer may also seek an extension of time to permit the former employee to file an answer or motion, provided the lawyer makes clear the lawyer is acting on behalf of the company and as the company’s lawyer. The lawyer may also file with the court, as the company’s lawyer, a motion to intervene, a motion for appointment of a guardian ad litem for the vanished employee or other similar pleading. Such actions may be taken as appropriate to protect the company’s legitimate interests, and the Rules of Professional Conduct are not violated even though the result of such acts may benefit the vanished former employee.
Some may argue that the Rules of Professional Conduct may lead to harsh, and even unfair, results for both the employee and the employer. The first concern is that a default judgment would be entered against the former employee if the attorney does not file the answer. As discussed, above, unless the former employee is eventually located, the lawyer will likely not be able to change the ultimate outcome, but may delay the result. Further, the Utah Rules of Civil Procedure and existing case law allow the former employee to seek to set the judgment aside in some situations.
The second concern is that the employer may be harmed because a default against the former employee may bind the employer and the employer has no other procedural means to protect itself. The Committee could not find any Utah case law directly addressing this issue. There are two Utah cases that suggest (without directly deciding) that the employer has means in the law to protect itself against a default judgment against the former employee.11 Cases from other jurisdictions also show that in at least some states courts refuse to bind the employer based upon a default judgment entered against a former employee.12 If Utah were to adopt this rule of law, there would be no valid concern about prejudice to the employer based on a default judgment against the employee. At this point, this Committee cannot conclude that potential harm to the employer raises a significant concern.
Finally, the representation may have a detrimental impact on the former employee. Because the lawyer cannot receive any direction regarding the objectives of the representation, the lawyer runs the risk of acting in contravention to the desires of the former employee. If the former employee had decided not to make an appearance in the litigation because the former employee had consciously decided not to subject himself to the jurisdiction of the court, and if the lawyer took action that subjected the former employee to the jurisdiction of the court, then the former employee could be substantively prejudiced by the lawyer’s actions.
In our opinion, the Rules of Professional Conduct are clear in prohibiting the unauthorized and unassisted representation of the former employee, and the potential concerns that support allowing representation of the former employee are not grounds for ignoring the Rules.
Summary: The lawyer may not ethically represent a vanished former employee unless the lawyer has an existing attorney-client relationship or the former employee agreed to the representation at the company’s expense prior to vanishing and the lawyer complies with Rule 1.7. A lawyer who represents an employer may engage in limited acts that may serve to benefit the vanished former employee provided the lawyer acts on behalf of the employer as the employer’s lawyer and does not purport to act on behalf of the vanished former employee or as the vanished former employer’s lawyer.
Footnotes
1. The Committee’s opinions can be found at http://www.utahbar.org/rules_ops_pols/Welcome.html.
2. For example, we assume that neither the employer nor employee are likely to have and pursue a claim against the other with respect to the matter. See Utah Rules of Professional Conduct 1.13(e) (2004).
3. 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.
4. Utah Rules of Professional Conduct, Scope, 1 (2004).
5. As evidenced by the Committee’s change of ultimate position with respect to the original opinion on this matter, the matter has raised difficult issues that have rendered it a close call for some members of the Committee.
6. Dunkley v. Shoemate, 515 S.E.2d 442, 444 (N.C. 1999), quoting Johnson v. Amethyst Corp., 463 S.E.2d 397, 400 (N.C. App. 1995) (“no person has the right to appear as another’s attorney without the authority to do so, granted by the party for which he is appearing”).
7. Although it might be presumed that the former employee does not want a default judgment entered, this may not always be 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 other cases where an employee would want a judgment taken to protest or highlight an employer’s alleged misconduct.
8. See, e.g., Utah Ethics Advisory Op. 97-01, 1997 WL 45140 (Utah St. Bar); Fla. Comm. on Professional Ethics Op. 77-2, 1977 WL 23165 (Fla. St. Bar Ass’n).
9. See, e.g., Philadelphia Bar Op. 98-8; So. Car. Bar Op. 98-07; So. Dak. Bar Op. 92-6.
10. This authorization for representation may be withdrawn by the employee or former employee. Utah Rules of Professional Conduct 1.16(a)(3) (2004).
11. See Lima v. Chambers, 657 P.2d 279 (Utah 1982); Chatterton v. Walker, 938 P.2d 255 (Utah 1997). In both of these cases, the Utah Supreme Court allowed insurers to invoke Rule 24 of the Utah Rules of Civil Procedure to intervene in negligence lawsuits in which their insureds sued uninsured defendants with the hope of proving negligence of the uninsured driver and collecting uninsured driver benefits from the plaintiffs’ insurer. The Chatterton court suggested that the insurer’s ability to intervene for the purpose of contesting liability has constitutional foundations. 938 P.2d at 260.
12. “Courts hold that in actions against several defendants jointly, where the defense interposed by the answering defendant is not personal, but common to all, as where it goes to the whole right of the plaintiff to recover at all, as distinguished from his or her right to recover as against any particular defendant, or where it questions the merits or validity of the plaintiff’s entire cause of action or his or her right to sue, such defense, if successful, inures to the benefit of the defaulting defendants, with the result that final judgment must be entered not merely in favor of the answering defendant, but also in favor of the defaulting defendants.” 46 Am. Jur. 2d Judgments § 282. See also Brazos Valley Community Action Agency v. Robinson, 900 S.W.2d 843 (Tex. App. 1995) (employees default could not be binding on the 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 surety; default judgment against the principal was not binding on the surety).