Ethics Advisory Opinion 14-03

Utah State Bar
Ethics Advisory Opinion Committee

Opinion Number 14-03

Issued April 22, 2014

ISSUE

1.         Do the Utah Rules of Professional Conduct prohibit referral agreements between two attorneys that require one of the attorneys (the “Referring Attorney”) to refer to the other (the “Receiving Attorney”) all clients that have a certain specified type of products liability claim?

 OPINION

2.         The Committee concludes that an agreement between two attorneys which requires the Referring Attorney to refer to the Receiving Attorney all clients that have a certain specified type of claim may likely violate various provisions of the Utah Rules of Professional Conduct (the “Rules”).

FACTS

3.         The Referring Attorney, licensed to practice in the State of Utah, and the Receiving Attorney, licensed to practice elsewhere, enter into an agreement governed by Utah law (the “Agreement”) to jointly pursue certain kinds of products liability claims (the “Claims”) of individuals located in the State of Utah.  The Agreement provides in relevant part:
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Ethics Advisory Opinion No. 06-02

June 2, 2006
Issue:
Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the “client’s file” within the meaning of Rule 1.16 which must be delivered to the client at the termination of the representation.

Opinion: An unexecuted legal instrument such as a trust or will, or an unfiled pleading, such as an extraordinary writ, is not part of the “client’s file” within the meaning of Rule 1.16(d). The lawyer is not required by Rule 1.16 to deliver these documents to the client at the termination of the representation.
Facts: An attorney accepted a fixed fee engagement to prepare for a client a trust, a will and a petition for extraordinary writ. The lawyer sent a retainer agreement to the client reflecting the fixed fee engagement, but the client did not sign the retainer agreement. The lawyer prepared the trust, will and petition for extraordinary writ, but the client refused to pay the lawyer for the services, and the client terminated the attorney-client relationship. The client is now demanding that the lawyer deliver to the client as part of the “client’s file” the unexecuted trust and will, and the unfiled extraordinary writ.
Analysis: Rule 1.16(d) of the Utah Rules of Professional Conduct differs from the ABA Model Rule 1.16(d) in that the Model Rule permits the lawyer to retain the “client’s file” following the termination of the attorney-client relationship if state law affords the lawyer a retaining lien against the client’s file for purposes of securing the lawyer’s fee. Model Rule 1.16(d) states: “The lawyer may retain papers relating to the client to the extent permitted by other laws.”
Utah Rule 1.16(d) was amended to delete from Rule 1.16(d) the right of the lawyer to assert a retaining lien against the “client’s file”. Utah Rule 1.16(d) states: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.”
Comment 9 to Rule 1.16(d) explains the amendment to Utah Rule 1.16(d) as follows: “The Utah Rule differs from the ABA Model Rule in requiring that papers and property considered to be part of the client’s file be returned to the client notwithstanding any other laws or fees or expenses owing to the lawyer.”
The amendment of Utah Rule 1.16(d) followed the Utah Supreme Court’s decision in Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996). In Dawson the plaintiff law firm sued its client for payment of its attorney’s fees. In a “postscript” to its decision, the Utah Supreme Court stated that it disapproved of the plaintiff law firm’s assertion of a retaining lien in the defendant’s file during on-going litigation following the termination of the attorney-client relationship. Although the Court affirmed in part a judgment in favor of the plaintiff law firm for unpaid fees and costs, the Court stated that the plaintiff law firm had failed to “take steps to the extent reasonably practicible to protect the client’s interest, such as surrendering papers and property to which the client is entitled (quoting from Rule 1.16(d))” when the law firm refused to surrender to defendant her file during the course of on-going litigation. 1
It is noteworthy that the plaintiff law firm’s conduct in Dawson was consistent with Ethics Advisory Opinion Committee Opinion No. 91 (May 17, 1989). This Opinion concluded that the use of the common law attorney’s retaining lien recognized by the Utah Supreme Court in several cases was not per se improper under Rule 1.14 (currently, Rule 1.16). Relying on decisions of the Utah Supreme Court, Opinion No. 91 permitted use of a retaining lien even in the course of on-going litigation if (i) the lawyer was wrongfully discharged or withdrew for good cause; and (ii) during the representation, the lawyer represented the client with reasonable diligence.
In adopting Opinion No. 91, the Board of Bar Commissioners recommended a Petition for Amendment of Rule 1.14 (currently Rule 1.16) be filed with the Utah Supreme Court “to clarify the attorney’s duty to the client in returned documents and papers upon termination of representation”.
With Utah’s amended Rule 1.16(d), it is clear that if the unexecuted trust and will or the unfiled petition for extraordinary writ are part of the “client’s file”, then the lawyer is required by Rule 1.16(d) to turn over to the client the trust, will and petition for extraordinary writ upon the termination of the representation, regardless of whether the lawyer has been wrongfully discharged and regardless of whether the lawyer has been paid for these services. It is therefore critical to determine what is the “client’s file” within the meaning of Rule 1.16(d).
Comment 9 of Rule 1.16 states: “It is impossible to set forth one all encompassing definition of what constitutes the client’s file. However, the client file generally would include the following: all papers and property the client provides to the lawyer; litigation material such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions; business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer’s work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings.”
Of significance to the issue before the Committee is the statement in Comment 9 to Rule 1.16 that the client file would not include the attorney’s work product and would not include unfiled pleadings. This would exclude the unfiled petition for extraordinary writ from the “client’s file” within the meaning of Rule 1.16(d). We interpret Comment 9 to also exclude from the “client’s file” unsigned legal instruments such as agreements, trusts and wills. Unsigned legal instruments such as agreements, trusts and wills are the transactional lawyer’s equivalent of the litigation lawyer’s unfiled pleadings. 2 This interpretation is not at odds with the Rule 1.16(d) requirement that upon the termination of representation the lawyer takes steps “to the extent reasonably practicible to protect the client’s interest”. Unlike the pleadings and correspondence files withheld from the client in Dawson during on-going litigation, depriving the client of unexecuted legal instruments (such as agreements, trusts and wills) will not normally prejudice the client’s interests. The same is true of withholding from the client unfiled legal pleadings. The client is entitled to the client’s own papers and property and the “client’s file”, and the client may deliver these to new counsel for the purpose of preparing the legal instruments and the legal pleadings in accordance with the instructions of the client.
Our interpretation of Comment 9 also is consistent with public policy on two fronts: (i) lawyers should not be exposed to liabilities arising from a requirement that the lawyer deliver to the client upon termination of the representation legal instruments that are neither executed nor filed as such instruments may be incomplete drafts or unchecked final documents not appropriate for execution or filing by the client or the client’s new counsel; and (ii) the Utah Rules of Professional Conduct should not be interpreted in a manner to encourage and facilitate unscrupulous clients in defrauding lawyers by requesting the preparation of legal instruments, then terminating the attorney-client relationship after the legal instruments are prepared, for the purpose of obtaining the lawyer’s services without payment.
Footnotes
1 Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1376 (Utah 1996).
2 The punctuation of Comment 9 quoted above is interpreted by the Committee to exclude from the client file unfiled pleadings, whether or not they constitute lawyer’s “work product”. The Committee interprets the Comment to include as lawyer’s “work product” documents containing the lawyer’s recorded mental impressions. Unexecuted legal instruments and unfiled legal pleadings are often incomplete or non-final drafts. As such, these documents contain the lawyer’s mental impressions (not the lawyer’s finalized legal services), and constitute the lawyer’s “work product”.

Ethics Advisory Opinion No. 06-04

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

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

Ethics Advisory Opinion No. 04-01

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

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

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).

Ethics Advisory Opinion No. 02-02

(Issued February 11, 2002)
¶1 Issue:
To what extent does the recent amendment to Utah Rules of Professional Conduct 7.3(c) affect a lawyer’s or law firm’s newsletters and “alerts” to clients and prospective clients, brochures provided at public seminars, promotional items provided at seminars and other events, and web-site information?

¶2 Facts: A law firm1prepares and mails, or e-mails, newsletters to clients and, in certain instances, to prospective clients with whom attorneys at the firm have no prior or current business, familial or close personal relationship. The newsletter and other firm information is also posted on the firm’s web-site. The law firm also sends notices or “alerts” on certain areas of the law to clients and prospective clients who may be interested in those areas. The law firm also on occasion, especially with sponsorship of activities such as seminars, sets up a booth or other location where various materials, such as general brochures about the law firms are made available to attendees of the function. Finally, the firm, either at seminars or other events, provides promotional items such as golf balls, flashlights, pens, and the like which have the firm’s logo on them.
¶3 Analysis: Rule 7.3(c) currently states:
Every written communication from a lawyer soliciting professional employment from a prospective client and with whom the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, shall prominently include the words “Advertising Material” on the outside envelope, if any, and at the beginning of the communication. For the purposes of this subsection, “written communication does not include advertisement through public media, including but not limited to a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television.2
¶4 In Opinion 99-043we determined that a “solicitation” in the context of Rule 7.3 means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment and necessarily includes an offer by the lawyer to provide or to accept professional employment.4
¶5 If the newsletter, alert or brochure encourages the recipient to engage the firm’s services or contact the firm for further information, extolls the firm’s expertise, or otherwise contains an offer to provide legal services, then the item constitutes a “solicitation” of professional employment. As such, unless it is sent to a current or prior client or to someone with whom a lawyer in the firm has a familial relationship or close personal friendship, Rule 7.3(a) requires that it contain the words “Advertising Material” prominently on the outside envelope, if any, and at the beginning of the communication.
¶6 The firm’s web-site, however, is not a written communication which is “sent” from the firm to anyone. A person’s visit to a web-site to obtain information can be viewed either as “advertisement through public media” or as analogous to telephoning the firm or visiting a lawyer’s office to request information; it does not require an “Advertising Material” legend.5An e-mail that is directed to a person’s individual e-mail address, on the other hand, falls in the same category as a regular mailing and must contain the appropriate “Advertising Material” legend at the beginning of the e-mail message.
¶7 Finally, items such as pens, flashlights, golf balls and the like displaying the firm’s logo do not constitute a written communication soliciting professional employment. The firm’s logo does not extoll the firm’s expertise, encourage the recipient to contact the firm, or otherwise request employment. As a result, such items do not need to contain the words “Advertising Material” on them.6
¶8 Conclusion: If the newsletters, alerts or brochures are designed by the firm in such a way that they constitute a solicitation of professional employment from a prospective client with whom no attorney at the firm has any family relationship, prior or current professional relationship, or close personal friendship, they must prominently include the words “Advertising Material” on the outside envelope, if any, and at the beginning of the communication. If the newsletters and alerts are not designed in such a way that they constitute a solicitation of professional employment, then they do not need to contain the words “Advertising Material” on them. Rule 7.3(c) does not require the firm’s web-site to have the words “Advertising Material” prominently displayed on it. The firm’s logo items also do not have to have the words “Advertising Material” displayed on them.
Footnotes
1.The request for an opinion was submitted by a law firm. Our analysis applies equally to individual lawyers.
2.Utah Rules of Professional Conduct 7.3(a) (2002). The current version of this rule was adopted by the Utah Supreme Court, effective April 1, 2001.
3.Utah Ethics Adv. Op. 99-04, 1999 WL 608212 (Utah St. Bar).
4.The 2001 amendments to Rule 7.3(a) do not affect our previous discussion of the definition of “solicit.” See also Calif. Rules of Professional Conduct, Rule 1400(B)(1) (“solicitation” is any communication “concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain”).
5.Utah Ethics Adv. Op. 97-10, 1997 WL 705482 (Utah St, Bar).
6.Although a case might be made that the “subject” or “re” line of an e-mail is similar to an envelope for a regular mailing, we do not decide here whether the words “Advertising Material” must be included in that line.

Ethics Advisory Opinion No. 02-03

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

¶ 2 Opinion: An insurance defense lawyer’s agreement to abide by insurance company guidelines or to perform insurance defense work for a flat fee is not per se unethical. The ethical implications of insurance company guidelines must be evaluated on a case by case basis. An insurance defense lawyer must not permit compliance with guidelines and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured. If compliance with the guidelines will be inconsistent with the lawyer’s professional obligations, and if the insurer is unwilling to modify the guidelines, the lawyer must not undertake the representation. Flat-fee arrangements for insurance defense cases are unethical if they would induce the lawyer improperly to curtail services for the client or perform them in any way contrary to the client’s interests. Obligations of lawyers under the Utah Rules of Professional Conduct, including the duty zealously to represent the insured, cannot be diminished or modified by agreement.
Insurance Company Guidelines
¶ 3 Opinion Request Concerning Insurers’ Guidelines. The Ethics Advisory Opinion Committee has received a request for an ethics advisory opinion concerning insurance company guidelines for counsel who are employed to defend litigation brought by a third party against an insured. The requestors state that insurance companies doing business in Utah have incorporated in their defense-counsel retainer agreements certain billing protocols or guidelines governing attorneys’ procedures and payments that raise ethical issues.
¶ 4 Prior Opinions. Although issues pertaining to insurance company guidelines have been the subject of considerable discussion elsewhere,1 they have not been addressed directly by this Committee.2 When ethical concerns about insurance company guidelines have been raised in ethics opinions from other jurisdictions, the opinions are generally consistent with the summary set forth in ABA Opinion No. 01-421:
A lawyer must not permit compliance with “guidelines” and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured.
Although most of the ethics opinions on insurance company guidelines take a general approach, a few—while acknowledging that certain guidelines may be appropriate—have taken issue with particular guidelines. For purposes of illustration, portions of selected ethics opinions from other jurisdictions are set forth in Appendix A. We do not intend to imply agreement with the conclusions of these opinions. Rather, we wish to describe more fully the kinds of concerns that have been raised elsewhere, many of which are raised directly in the request before us.
¶ 5 Montana Supreme Court Decision. The Montana Supreme Court has issued an opinion that addresses these topics, but only after having determined that the insured is the sole client of the defense lawyer. Under that structure, the court noted that defense counsel (a) does not have a “blank check” to escalate litigation costs, (b) should consult with the insurer, (c) must charge reasonable fees, and (c) can be held accountable for its work. The Montana court then held that “defense counsel in Montana who submit to the requirement of prior approval [obtaining consent of the insurer prior to taking certain actions] violate their duties under the Rules of Professional Conduct to exercise their independent judgment and to give their undivided loyalty to insureds.”3
¶ 6 The Insurer-Defense Attorney Relationship. We do not decide whether, under Utah law, the insurer may or may not be a co-client of defense counsel. This is a legal question about which the Committee is not authorized to issue an opinion.4Courts in other jurisdictions have addressed the issue,5but the Utah Supreme Court has not determined whether a lawyer employed to represent an insured party in the defense of litigation also represents the insurer. We recognize not only that the Utah Supreme Court has not addressed this matter but that, even if it is assumed that the insurer is not a client, there are significant legal issues pertaining to the relationship between defense counsel and insurer.6The formation of an attorney-client relationship is a matter of substantive law external to the Utah Rules of Professional Conduct and in Utah, as in other states, depends upon the facts of the particular case including the intent and conduct of the parties.7As noted in the Scope comment to the Utah Rules of Professional Conduct:
[F]or purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a clientlawyer relationship exists. Most of the duties flowing from the clientlawyer relationship attach only after the client has requested that the lawyer render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that may attach when the lawyer agrees to consider whether a clientlawyer relationship shall be established. Whether a clientlawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
¶ 7 Our authority does not extend to the determination of legal question.8 Issuance of an opinion on the matters before us does not require that there be a determination of the legal question of whether a lawyer employed as defense counsel represents both insured and insurer. Accordingly, in this opinion, we address the lawyer’s ethical obligations in the event both the insurer and the insured are clients. We also address the lawyer’s ethical obligations in the event only the insured is a client. In the absence of controlling law to the contrary, who the lawyer represents may be determined at the outset by agreement of the insured, the insurer and the lawyer.
¶ 8 Insurance Company Guidelines. The requestors did not provide the Committee with copies of particular guidelines. Instead, they inquired generally about the ethical implications of guidelines, stating that certain tasks will only be paid at specified rates (e.g., written discovery will only be paid at paralegal rates) and that unless preapproval from an adjuster is obtained for certain tasks, defense counsel will not be paid (e.g., pleadings and motions, written discovery, retention of experts, legal research, travel, trial preparation, jury instructions, posttrial motions, appeals).9
¶ 9 The extensive scholarly literature on insurance company guidelines reveals a number of points that are relevant background for our consideration of ethical issues with respect to insurance company guidelines:
* Insurance company guidelines are not identical.
* Insurance companies may not use the same guidelines for every type of insurance defense.
* Considerations of freedom of contract, cost control in the interest of policyholders (including avoidance of unreasonable defense costs), and improving coordination and communications with defense counsel are important motivating factors for insurance companies in promulgating guidelines.
* Insurance company guidelines are similar in some respects to litigation management guidelines established by numerous corporate or governmental entities seeking to control litigation costs.
* There may be a degree of unobvious flexibility in insurance company guidelines, in that insurance companies may permit variance from written guidelines or may reconsider and reverse an initial decision against a particular action upon receiving a satisfactory justification from the defense attorney.
* Insurance company guidelines may include provisions that are unobjectionable from virtually any standpoint, such as:
(a) defining the financial relationship between the insurer and defense counsel (including hourly rates or other fees and permitted charges for expenses);
(b) coordinating the roles of defense counsel and employees of the insurer;
(c) establishing communications procedures between defense counsel and the insurer;
(d) stating the insurer’s objectives, both strategic and financial, with respect to litigation defense;
(e) outlining standard procedures the insurer prefers to follow in handling lawsuits;
(f) identifying which lawyers and nonlawyers will be responsible for the matter;
(g) requiring analysis of the case as a whole and of the need for particular services; and
(h) billing procedures, including frequency of billing and billing format, such as requirements that billings include sufficient information to permit an evaluation of the reasonableness of fees and costs.
On the other hand, many believe that insurance company guidelines may in practice result in an inadequate defense of the insured by requiring or inducing defense lawyers to curtail services for the insured improperly.
¶ 10 The Insurer-Insured Relationship. The insurer and the insured have significant rights and obligations pertaining to the defense of litigation brought against the insured by a third party. For example, in Ellis v. Gilbert,10the Utah Supreme Court stated:
The bare facts of life may as well be faced and reckoned with. If we look behind the facade it is to be seen that where there is insurance, the company actually takes over, employs counsel, investigates the case, interviews the witnesses, controls offers of settlement, and in fact, handles the entire matter.
In Peterson v. Western Casualty and Surety Co.,11while addressing the standard for showing diligence by insurer relying on alleged breach of cooperation clause by the insured, the Utah court noted that an insurance policy providing for interest on judgment “seems to be a recognition of the fact that the delay in payment of the judgment is chargeable to the insurance company, since it controls in the litigation.” In Berlant v. McAllister,12the Court described the insurerinsured relationship as follows:
To begin with we must know that the insurance carrier is obligated by its contract to pay all sums (up to the limits of the policy) which [the insured] may be, or shall become, liable to pay. This means that the carrier cannot be made to pay money until a judgment has been rendered against the insured []. However, this does not prevent the carrier from making a settlement of all claims against its insured before a judgment is rendered. The likelihood of losing the suit, the cost of defending it, and the possibility of settling for a sum less than the foreseeable costs and expenses are all matters which a carrier will consider in determining whether to settle a case or to defend it. The insurance contract provides that the insurer will, at its own expense, investigate, defend or settle any claims against the insured. It does not provide for any representation of its insured in an action against another party. Separate counsel always represents an insured plaintiff when he sues or an insured defendant when he counterclaims. The insurance attorney only represents the insured insofar as any claim is made against him for which the insurance company might be liable.
In Beck v. Farmers Insurance Exchange,13 the Court addressed obligations of the insurer as follows:
In a third-party situation [where the insurer contracts to defend the insured], the insurer controls the disposition of claims against its insured, who relinquishes any right to negotiate on his own behalf. . . . An insurer’s failure to act in good faith exposes its insured to a judgment and personal liability in excess of the policy limits. . . . In essence, the contract itself creates a fiduciary relationship because of the trust and reliance placed in the insurer by its insured. . . . The insured is wholly dependent upon the insurer to see that, in dealing with claims by third parties, the insured’s best interests are protected. In addition, when dealing with third parties, the insurer acts as agent for the insured with respect to the disputed claim. Wholly apart from the contractual obligations undertaken by the parties, the law imposes upon all agents a fiduciary obligation to their principals with respect to matters falling within the scope of their agency.
The Utah Rules of Professional Conduct do not in any way diminish or modify the rights or obligations of the insured or the insurer.
¶ 11 Ethical Obligations Cannot Be Modified by Agreement. A lawyer’s ethical duties under the Utah Rules of Professional Conduct cannot be diminished or modified by an agreement between the attorney and the attorney’s client or between the attorney and a third party. This principle applies equally to agreements concerning insurance company guidelines and fee agreements with insurance companies. For example, an attorney’s obligations to provide competent representation to a client,14to act with reasonable diligence and promptness in representing a client,15to exercise independent professional judgment and render candid advice,16and to supervise properly subordinate lawyers and nonlawyer assistants17cannot be limited by agreement. With respect to attorneys’ fee agreements, the comment to Rule 1.5 states: “An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in any way contrary to the client’s interests.” Accordingly, notwithstanding any agreement pertaining to fees or pertaining to the manner in which litigation may be conducted, lawyers subject to the Utah Rules of Professional Conduct must at all times comply with them.
¶ 12 Consent For Third-Party Payment. Rule 1.8(f) provides:
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client consents after consultation;
(2) There is no interference with the lawyer’s independence of professional judgment or with the clientlawyer relationship; and
(3) Information relating to representation of a client is protected by Rule 1.6.
Rule 1.8(f) applies by its terms to a lawyer employed to defend litigation brought by a third party against an insured, whether or not the insurer is a client. Accordingly, an insured must consent to an insurer’s paying a lawyer employed to defend litigation brought by a third party against an insured. For purposes of Rule 1.8(f), the insured manifests this consent by entering into the insurance contract and accepting the representation offered. No new or separate consent is necessary.
¶ 13 Information Under Rule 1.4(b). Under Rule 1.4(b), the insurance defense lawyer must “explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” With respect to the insured as a client, the lawyer must inform the insured sufficiently to enable the insured to make informed decisions regarding the representation. The lawyer could accomplish this by sending the insured a letter at the outset of the representation informing the insured of relevant information. Although doing so would be a prudent practice, we do not hold that a lawyer must provide a written explanation. In ¶ 17 of this Opinion, we discuss the kinds of information that might be included in a letter to the insured at the outset of the representation.
¶ 14 Limitation of Scope Under Rule 1.2. Many perceived issues concerning insurance company guidelines can be resolved with proper attention to limitations on the scope of the representation under Rule 1.2. Under that rule, the scope of the attorney’s representation may be limited by agreement.18The comments to Rule 1.2 specifically refer to the retention of a lawyer by an insurance company to represent an insured:
The objectives or scope of services provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer’s services are made available to the client. For example, a retainer may be for a specifically defined purpose. Representation provided through a legal aid agency may be subject to limitations on the types of cases the agency handles. When a lawyer has been retained by an insurer to represent an insured, the representation may be limited to matters related to the insurance coverage. The terms upon which representation is undertaken may exclude specific objectives or means.19
Limitations on the objectives or scope of an attorney’s services should be determined jointly by the attorney and the client. The comment to Rule 1.2 states:
Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, the lawyer should assume responsibility for technical and legal tactical issues but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.20
¶ 15 If both insurer and insured are clients, both must agree to limitations on the objectives or scope of an attorney’s services. If only the insured is the client, the insured must agree. The lawyer could obtain the insured’s consent at the outset of the representation by sending the insured a letter informing the insured of the relevant limitations. For example, the claims asserted against the insured may include claims that exceed insurance policy limits, claims that are not covered by insurance, or interests of the insured (such as reputation) that the insurer has no obligation to protect. In these situations, special care should be taken to provide information necessary for the insured to understand and agree to any appropriate limitations and to implement means to provide additional representation the insured may desire.
¶ 16 Although doing so would be a prudent practice, we do not hold that a lawyer must provide a written explanation or obtain the client’s consent in writing. In the next paragraph, we discuss the kinds of information that might be included in a letter to the insured at the outset of the representation. The lawyer could inform the insured in the letter that the insured’s consent to the limitations on the objectives or scope of the lawyer’s services will be presumed unless the insured objects within a specified time period. The insured could manifest consent to the limitations by accepting the defense without objection.
¶ 17 Information That Could Be Provided at the Outset. Subject to any limitations on confidential information under Rule 1.6(a),21which may apply if the insurer is also a client, the insurance defense lawyer could provide the insured with information such as the following:
(1) the fact of the lawyer’s selection by the insurer to defend against the claim and appropriate information concerning the lawyer;
(2) the identity of the insurer;
(3) the identity of the lawyer’s client or clients (i.e., whether or not there are multiple insureds who will be clients and whether or not the insurance company will be the lawyer’s client);
(4) relevant policy information, including facts pertaining to the lawyer’s compensation by the insurer;
(5) to the extent they are not disputed by the parties, the insurer’s rights and obligations under the insurance policy with respect to defense and settlement of the litigation;
(6) to the extent they are not disputed by the parties, the insured’s rights and obligations under the insurance policy with respect to defense and settlement of the litigation;
(7) how the representation will be conducted, including any limitations on the objectives or scope of the representation22and the insurer’s normal practices in directing representations including by way of litigation or billing guidelines;
(8) how settlement proposals will be handled;
(9) that, unless the insured objects and subject to the requirements of the Utah Rules of Professional Conduct, the lawyer intends to proceed in accordance with the directions of the insurer;
(10) issues pertaining to confidential information and obtaining consents to convey confidential information between insured and insurer;23
(11) issues pertaining to avoidance and resolution of conflicts of interest;24
(12) risks to the insured, including the implications of the insurer’s rights, obligations, and procedures and any other relevant risks, such as an excess judgment or noncovered claims; and
(13) the insured’s right to hire a lawyer at the insured’s expense, including for purposes other than defense of the claim.25
While the foregoing items are provided as non-exhaustive illustrations, we do not hold that a defense lawyer must address every item in every case. Under Rule 1.4(b), the insurance defense lawyer must explain the matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
¶ 18 Professional Independence Under Rules 1.8(f) and 5.4(c). Rule 1.8(f)(2) requires that a lawyer accepting compensation for representing a client from one other than that client assure that “there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship.” This rule applies to a lawyer employed to defend litigation brought by a third party against an insured, whether or not the insurer is also a client.
¶ 19 Rule 5.4(c) provides: “A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” Rule 5.4(c) applies to a lawyer employed to defend litigation brought by a third party against an insured, whether or not the insurer is a client. Rule 5.4(c) expressly prohibits a lawyer from permitting a person who employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering the legal services. Rule 5.4(c) draws no distinction between advice and action and speaks directly to professional judgment in rendering legal services. This is not to say, however, that the scope of the lawyer’s representation may not properly be limited as provided in Rule 1.2. To the extent the scope of the lawyer’s representation properly is limited, the lawyer is not authorized to render services outside the scope of the representation. But agreements respecting insurance company guidelines or flat-fee arrangements with insurance companies cannot free the lawyer from the obligation to exercise independent professional judgment both in setting limits on the representation and in rendering services within the scope of the representation.
¶ 20 Summary of Analysis of Insurance Company Guidelines. With these principles in mind, we conclude that an insurance defense lawyer’s agreement to abide by insurance company guidelines is not per se unethical and that the ethical implications of insurance company guidelines must be evaluated on a case-by-case basis. An insurance defense lawyer must not permit compliance with guidelines and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured.26Obligations of attorneys under the Utah Rules of Professional Conduct cannot be diminished or modified by an agreement between the attorney and the attorney’s client or by an agreement between the attorney and an insurer. Before accepting a representation of an insured party that will be governed in part by insurance company guidelines, a defense lawyer must determine that compliance with the guidelines will not be inconsistent with the lawyer’s professional obligations. If compliance with the guidelines will be inconsistent with the lawyer’s professional obligations, and if the insurer is unwilling to modify the guidelines, the lawyer must not undertake the representation.
¶ 21 After accepting a representation of an insured party that is governed in part by insurance company guidelines, a defense lawyer must at all times comply with the Utah Rules of Professional Conduct, including Rules 1.1 (competent representation), 1.2 (limitation of scope of representation), 1.3 (diligence and promptness), 1.4 (communication requirements), 1.8(f) (consent), and 5.4(c) (no direction or regulation of the lawyer’s professional judgment). If the lawyer determines that the insurer’s interpretation or application of the guidelines in particular circumstances is in any way inconsistent with the lawyer’s professional obligations under the Utah Rules of Professional Conduct, and if the insurer will not withdraw its interpretation or application of the guidelines, the lawyer must still act in conformity with the Rules.27
¶ 22 In any case where an insurer’s refusal to authorize services that the lawyer, in her independent professional judgment, believes are necessary to comply with the Utah Rules of Professional Conduct, the lawyer should consider the following options:
(1) communicating with the insurer and the insured in an attempt to resolve the matter,28
(2) obtaining the agreement of the insured to pay for the services (perhaps with a reservation of rights to seek payment from the insurer at a later time);
(3) agreeing to provide the services without compensation (and perhaps reserving the right to seek compensation from the insurer at a later time); or
(4) withdrawing from the representation.
If withdrawal is necessary because of an irreconcilable conflict between the insured and the insurer, the lawyer should comply with all applicable provisions of Rules 1.7 and 1.16 and any applicable rules of court.
Flat-fee Arrangements
¶ 23 A Request on Flat-Fee Arrangements. The Committee has also received a separate request for an advisory opinion concerning ethical issues raised by flat-fee arrangements with insurance companies under which counsel is employed to defend a case or a group of cases for a flat fee. Because this request raises some of the same issues and analysis discussed in connection with insurance company guidelines for defense attorneys, we consolidate the two requests to issue a single opinion.
¶ 24 Applicable Rules and Prior Opinion 136. Rule 1.5 of the Utah Rules of Professional Conduct addresses ethical issues relating to attorneys’ fees. As we wrote in Opinion No. 136, “Fixedfee contracts . . . are not prohibited by Rule 1.5 of the Utah Rules of Professional Conduct” and, further, “The only specific types of fees expressly prohibited by Rule 1.5 are contingent fees in divorce and criminal defense cases.”29
¶ 25 In Opinion No. 136, we addressed the question of whether a client’s advance payment made as a “fixed fee” or “nonrefundable retainer” could be considered to be earned by the lawyer when received and, therefore, not required to be deposited in a trust account. We stated that fixedfee contracts or nonrefundable retainers are not expressly prohibited by Rule 1.5, and that the issue became whether such arrangements should be considered per se unreasonable under the Rule. We adopt a similar analysis here. Rule 1.5 does not expressly prohibit flat-fee arrangements. We conclude, therefore, that flat-fee arrangements, including flat-fee arrangements with liability insurance carriers, are not per se unethical. It does not follow, of course, that all flat-fee agreements are in compliance with the Utah Rules of Professional Conduct.
¶ 26 Improper Curtailment of Services. The comment to Rule 1.5 provides:
An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in any way contrary to the client’s interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client.
Thus, Rule 1.5 prohibits flat-fee arrangements with insurers if the proposed arrangement would improperly curtail services to be provided to the client that would normally be within the scope of the representation. For example, a flat-fee agreement that is so low as to induce the lawyer to shirk his duties to the insured would be unethical. A lawyer may, of course, provide the necessary services for little or no additional fee, but the lack of further funding (from the insurer, for example) will not justify cutting corners on the lawyer’s ethical obligation to the client. Such situations should be fully explained to the insured. On the other hand, a flat-fee arrangement that is so high as to result in a clearly excessive fee would also violate Rule 1.5(a).
¶ 27 Compliance with the Rules. Our conclusion that flat-fee arrangements with insurance carriers are not per se unethical does not free a lawyer from strict compliance with the applicable rules or standards of professional behavior. To provide some guidance to members of the Utah Bar, we will address some of the ethical considerations.
¶ 28 Rule 1.1 requires a lawyer to provide “competent representation to a client.” This includes the “thoroughness” and “preparation reasonably necessary for the representation.” A lawyer is also required to act with “reasonable diligence and promptness” under Rule 1.3. It is often stated that a lawyer is to represent her client “zealously.”30A lawyer should strictly adhere to these ethical standards, regardless of the nature of the fee arrangement or remuneration paid to the lawyer. Lawyers entering into flat-fee arrangements with insurance companies must use extra caution to assure that the representation they provide to the insured complies with these ethical obligations. Lawyers may not compromise these standards even if the financial arrangement to which they agreed with the insurance company results in a more-than-expected time commitment or worse-than-expected financial result for the lawyer. This also means, of course, that the lawyer should avoid entering into any flat-fee arrangement if there is reasonable cause to believe that future time and financial pressures may prevent the lawyer from providing competent, thorough, diligent and prompt representation to the insured.
¶ 29 Under Rule 1.2, the lawyer must abide by the client’s decisions concerning the objectives of the representation (subject to certain guidelines) and must consult with the client regarding the means by which the objectives of the litigation will be pursued. A lawyer should not enter into a flat-fee agreement with an insurer that would prevent meaningful participation by the insured in determining the objectives of the representation and the means of pursuing them. This may require, as a matter of prudence, consultation with the insured prior to entering into the flat-fee arrangement.
¶ 30 The comment to Rule 1.5 provides, “Where someone other than the client pays the lawyer’s fee or salary . . . , that arrangement does not modify the lawyer’s obligation to the client. . . . [S]uch arrangements should not interfere with the lawyer’s professional judgment.” Rule 1.8(f) expressly requires the lawyer to maintain her “independence of professional judgment” when someone other than the client pays the lawyer’s fee. These rules apply to a lawyer’s representation of an insured, just as they do in all other relevant cases. A lawyer who enters into any type of flat-fee arrangement with an insurer must use caution to assure that she exercises independent professional judgment on behalf of the insured. This is particularly important in situations where the scope of the case has unexpectedly increased beyond the attorney’s original expectations in agreeing to a fixed fee.
¶ 31 It has been suggested that flat-fee arrangements should be prohibited to protect the interests of lawyers in maintaining profitable fee arrangements with insurance companies. It is not this Committee’s role to regulate the competing economic interests of lawyers and insurance companies. Rather, it is our role to interpret the Utah Rules of Professional Conduct and to encourage ethical behavior for the protection of those who receive legal representation. Nothing in the Utah Rules of Professional Conduct prohibits flat-fee arrangements, and it would be improper for us to impose such a restriction where the Utah Supreme Court has chosen not to do so. Our discussion of some of the relevant concerns will provide guidance to lawyers and should promote competent representation for insureds who receive legal representation. As in any other case, the disciplinary procedures of the Utah State Bar and other legal proceedings are available to insureds who believe their lawyers have compromised their ethical duties because of a flat-fee arrangement with the insurer.31
¶ 32 In rendering this opinion, this Committee is aware of the arguments concerning economic and market factors vigorously promoted in the literature by both the insurance industry and the insurance defense bar. We are also mindful of our limited role, which is to interpret the Utah Rules of Professional Conduct and provide guidance to the members of Bar. Our role is not to regulate the market for legal services or to influence the economics of purchasing or providing legal services. Lawyers and insurance companies are free to negotiate fee arrangements that suit their respective economic interests so long as no lawyer on either side violates the Utah Rules of Professional Conduct. Insurance companies and lawyers may enter into fee arrangements that limit the amount of compensation the lawyer will be paid. We emphasize, however, that lawyers entering into such arrangements must use care to assure that their representation complies with all applicable ethical standards, even if the fee arrangement requires the lawyer to perform services for a reduced rate or even without compensation.
¶ 33 Conclusion: An insurance defense lawyer’s agreement to abide by insurance company guidelines or to perform insurance defense work for a flat fee is not per se unethical. The ethical implications of insurance company guidelines must be evaluated on a case by case basis. An insurance defense lawyer must not permit compliance with guidelines and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured. If compliance with the guidelines will be inconsistent with the lawyer’s professional obligations, and if the insurer is unwilling to modify the guidelines, the lawyer must not undertake the representation. Flat-fee arrangements for insurance defense cases are unethical if they would induce the lawyer to improperly curtail services for the client or perform them in any way contrary to the client’s interests. Obligations of lawyers under the Utah Rules of Professional Conduct, including the duty zealously to represent the insured, cannot be diminished or modified by agreement.
Footnotes
1.See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 99-413; Ala. Ethics Op. RO-98-02; Colo. Bar Assoc. Ethics Comm. Formal Op. 107 (Sept. 18, 1999); Disciplinary Bd., Haw. Sup. Ct., Formal Op. 37 (Mar. 27, 1999); Ind. State Bar Assoc. Legal Ethics Op. 3 of 1998; Iowa Sup. Ct. Bd. of Professional Ethics & Conduct, Op. 99-01 (Sept. 8, 1999); Mass. Bar Op. 00-4; Miss. Bar, Op. 246 (1999); Neb. Advisory Comm., Advisory Op. 00-1; Ohio Op. 2000-3 (June 1, 2000); Penn. Bar Assoc. Comm. on Legal Ethics and Professional Responsibility, Formal Op. 2001-200 (June 28, 2001); R.I. Sup. Ct. Ethics Advisory Panel Op. 99-18 (Oct. 27, 1999); Tenn. Bd. of Professional Responsibility, Sup. Ct. of Tenn., Formal Ethics Op. 2000-F-145; Tex. Ethics Op. 533 (Sept. 2000); Vt. Bar Op. 98-07; Va. Leo 1723 (Nov. 23, 1998); Wash. State Bar Assoc. Formal Op. 195 (1999); Wis. State Bar Comm. on Professional Ethics, Formal Op. E-99-1 (Sept. 10, 1999);In re Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, 2 P.3d 806 (Mont. 2000). We have been advised that proposed ethics opinions critical of insurance company billing guidelines were rejected by the Florida Bar Association’s Board of Governors at its December 2000 meeting (proposed opinions 99-2, 99-3 and 99-4) and the Supreme Court of Georgia (proposed opinion 99-R2) (unpublished order Sept. 17, 2001).
2.Utah Ethics Adv. Op. 98-11, 1998 WL 779176 (Utah St. Bar), addressed the ethics of a retainer agreement proposed by the Utah State Office of Recovery Services (ORS) for an attorney who would represent both ORS, as statutory lien claimant with prior rights on recoveries, and individual claimants in recovering medical claims. In that context, the Committee held that the State of Utah could propose a retainer agreement, but cautioned that it was not holding that attorneys representing the State may draft retainer agreements that violate the Utah Rules of Professional Conduct, noting that it would be unethical for the retainer agreement to (1) require the individual claimants to surrender the right to terminate the lawyer or (2) otherwise cause the attorney executing it to violate the Utah Rules of Professional Conduct. The Committee found that the attorney could not agree to conditions that would violate Rule 1.7(b).
3.In re Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, 2 P.3d 806, 817 (Mont. 2000).
4.Utah Ethics Advisory Op. Comm. R. Procedure § I(b)(1) (2001) (“Committee opinions shall interpret the Rules of Professional Conduct adopted by the Utah Supreme Court but, except as necessary to the opinion, shall not interpret other law.”) and id. § I(b)(2) (“The following requests are outside the Committee’s authority: . . . (iii) Requests for legal, rather than ethics opinions.”).
5.See, e.g., Cincinnati Insurance Co. v. Willis, 717 N.E.2d 151, 161 (Ind. 1999); In re Rules of Professional Conduct and Insurer Imposed Billing Rules and Procedures, 2 P.3d 806 (Mont. 2000).
6.See, e.g., Paradigm Insurance Co. v. The Langerman Law Offices, 24 P.3d 593 (Ariz. 2001) (express agreement was not a prerequisite to the formation of an attorney-client relationship; when insurer has assigned attorney to represent an insured, lawyer had a duty to the insurer to benefit both the insurer and the insured when their interests coincided; lawyer had duty to a non-client and could be liable for negligent breach).
7.See generally Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727 (Utah App. 1990) (a legal malpractice action):
In general, except where an attorney is appointed by a court, the attorney-client relationship is created by contract. . . . The contract may be express or implied from the conduct of the parties. . . . The relationship is proved by showing that a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. . . . Such a showing is subjective in that a factor in evaluating the relationship is whether the client thought an attorney-client relationship existed. . . . However, a party’s belief that an attorney-client relationship exists, unless reasonably induced by representations or conduct of the attorney, is not sufficient to create a confidential attorney-client relationship. . . . In sum, “[i]t is the intent and conduct of the parties which is critical to the formation of the attorney-client relationship.”
(Citations omitted.)
8.See note 4, supra.
9.We do not, however, assume that the foregoing summary is a complete statement of insurance company guidelines.
10.429 P.2d 39, 42 (Utah 1967).
11.425 P.2d 769, 77172 (Utah 1967).
12.480 P.2d 126, 127 (Utah 1971).
13.701 P.2d 795, 799-800 (Utah 1985) (citations omitted).
14.Utah Rules of Professional Conduct 1.1 & cmt; Rule 1.2 cmt. Refer to Appendix B.
15.Id. 1.3. Refer to Appendix B.
16.Id. 2.1 (“In representing a client, a lawyer shall exercise independent professional judgment and render candid advice”).
17.Id. 5.1; 5.3. Refer to Appendix B.
18.Rule 1.2 provides, in pertinent part: “(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. (b) A lawyer may limit the objectives of the representation if the client consents after consultation.”
19.Utah Rules of Professional Conduct 1.2 cmt. (2002).
20.The client has the ultimate authority to determine the expense to be incurred. In some situations, the client may determine that no expense will be incurred by designating certain actions that will not be taken.
21.Rule 1.6(a) provides: “A lawyer shall not reveal information relating to the representation of a client except as stated in paragraph (b), unless the client consents after consultation.”
22.For example, the defense lawyer could not represent both insured and insurer as to matters such as insurance coverage. In cases where the claim exceeds policy limits or includes non-covered claims, or where the insured desires services outside the scope of the representation to be paid for by the insurer, the defense lawyer should provide the insured with information concerning limits on the representation and available means of addressing such matters.
23.For example, the letter might include information necessary to inform the insured as to issues pertaining to submission of bills to the insurer or to outside auditing services. See Utah Ethics Advisory Op. 98-03, 1998 WL 199533 (Utah St. Bar).
24.For example, if both insured and insurer are clients, Rule 1.8(g) provides, in pertinent part: “A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients . . . unless each client consents after consultation, including disclosure of the existence and nature of all the claims . . . involved and of the participation of each person in the settlement.” If both insured and insurer are clients, or if representation of a sole client insured may be materially limited by the lawyer’s responsibilities to the insurer, conflicts must be addressed as provided in Rule 1.7.
25.For example, unless the policy provides otherwise, the insurer will likely have no obligation to pay the defense lawyer to assert counterclaims or claims insureds may have against third parties, to protect interests of the insured other than defending against the amount of the claim (such as reputation or other interests), or to defend the insured against criminal charges.
26.In addition, a lawyer governed by the Utah Rules of Professional Conduct (such as a lawyer employed by an insurer) must not propose that a defense lawyer enter into an agreement if compliance with the agreement, including guidelines and other directives of an insurer relating to the lawyer’s services, would impair materially the defense lawyer’s independent professional judgment in representing an insured.
27.We believe that, in many cases, perceived conflicts may be resolved by consultation.
28.Under Rule 1.4(a), the insurance defense lawyer must keep the client or clients “reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”
29. Utah Ethics Adv. Op. 136, 1993 WL 755253 (Utah St. Bar) (citing Rule 1.5(d)).
30.See, e.g., Utah Rules of Professional Conduct, Preamble.
31.See Fla. Bar Professional Ethics Comm., Op. 982 (1998) (a lawyer may accept a set fee per case from an insurance company to defend all of the insurer’s third party insurance defense work unless the lawyer concludes that her independent professional judgment will be affected by the arrangement); Conn. Bar, Professional Ethics Comm., Op. 9720 (1997) (flat-fee arrangement with insurer permissible; lawyer’s obligations to client remain); Ohio Ethics Op. 977 (1997) (flat-fee arrangement with insurer permissible if agreement is reasonable and adequate, not excessive or so inadequate that it compromises professional judgment; representation must be competent and zealous); Ore. Ethics Op. 199198 (1991) (flat-fee arrangement with insurer permissible provided lawyer fulfills ethical duties to insured); contra, American Insurance Assoc. v. Kentucky Bar Assoc., 917 S.W.2d 568 (Ky. 1996)
APPENDIX A & B
APPENDIX A
Hawaii:
[P]rovisions which prohibit activity which, in the lawyer’s professional judgment, are necessary in the representation of the client or provisions which provide a [disincentive] to perform those tasks are ethically unacceptable. As an example, unreasonable restrictions on preparation and discovery, and the limitation on compensable communication among attorneys in an office regarding a legal matter would, in all likelihood, affect an attorney’s independent judgment on behalf of the client.1
Indiana:
[I]f the negotiated financial terms result in a material disincentive to perform those tasks which, in the lawyer’s professional judgment, are reasonable and necessary to the defense of the insured, such provisions are ethically unacceptable. Especially troublesome are those provisions of the subject agreement which tend to curtail reasonable discussion between members of the defense team on a daytoday basis, and which seek to dictate the use of personnel within the lawyer’s office. Another example of a provision resulting in a material disincentive provides that if the senior litigator performs a particular service, e.g., argument of motions and other court appearances, conduct of depositions, or review of medical records or legal research, which could have been performed ‘suitably’ (in the carrier’s view) by an associate or paralegal, the service may be billed only at the hourly rate for the associate or paralegal. Similarly, the contract provides that once an associate attorney is assigned to a given matter, another associate may not be substituted without prior approval of the carrier. Such impairments of the responsible attorney’s exercise of professional judgment as to the assignment of the most effective member of the litigation team to a given task is ethically impermissible. Lastly, to require, or even permit, counsel to rely upon legal research by an unsupervised paralegal invites legal malpractice—a breach of counsel’s duty to the insured—and is intolerable. Such provisions, even though intended merely to achieve cost efficiency, infringe upon the independent judgment of counsel, and tend to induce violations of our ethical rules.2
Massachusetts:
For example, an insurer’s litigation guidelines may mandate that all deposition notices be drafted by paralegals, although the precise content of some deposition notices may require significant substantive and strategic legal input. If the lawyer has a reasonable basis to believe that the creation of a particular deposition notice presents too complicated a task for a paralegal to perform competently, then the lawyer’s ethical obligations, as described above, compel the lawyer not to delegate that task. In the event that the lawyer’s decision subsequently is challenged by the insurer who is paying his or her fees, then the Committee believes that the lawyer must consider whether the issue is significant enough to warrant withdrawing from the representation under Rule 1.16(a)(1).3
Ohio:
It is improper under DR 5107(B) [Avoiding Influence By Others Than The Client] for an insurance defense attorney to abide by an insurance company’s litigation management guidelines in the representation of an insured when the guidelines directly interfere with the professional judgment of the attorney. Attorneys must not yield professional control of their legal work to an insurer. Guidelines that restrict or require prior approval before performing computerized or other legal research are an interference with the professional judgment of an attorney. Legal research improves the competence of an attorney and increases the quality of legal services. Attorneys must be able to research legal issues when they deem necessary without interference by nonattorneys. Guidelines that dictate how work is to be allocated among defense team members by designating what tasks are to be performed by a paralegal, associate, or senior attorney are an interference with an attorney’s professional judgment. Under the facts and circumstances of a particular case, an attorney may deem it necessary or more expedient to perform a research task or other task, rather than designate the task to a paralegal. This is not a decision for others to make. The attorney is professionally responsible for the legal services. Attorneys must be able to exercise professional judgment and discretion. Guidelines that require approval before conducting discovery, taking a deposition, or consulting with an expert witness are an interference with an attorney’s professional judgment. These are professional decisions that competent attorneys make on a daily basis. Guidelines that require an insurer’s approval before filing a motion or other pleading are an interference with an attorney’s professional judgment. Motion by motion evaluation by an insurer of an attorney’s legal work is an inappropriate interference with professional judgment and is demeaning to the legal profession. If an insurer is unsatisfied with the overall legal services performed, the insurer has the opportunity in the future to retain different counsel.4
Rhode Island:
[Provisions] that require the insurer’s preapproval for specified legal services, extend beyond the financial and working relationship between the insurer and defense counsel, and infringe upon the attorneyclient relationship between the insured and the inquiring attorney. For example, the insurer’s prior approval is required before defense counsel engages in the following: conducting legal research in excess of three hours; filing counterclaims, crossclaims or thirdparty actions; visiting the accident scene; preparing substantive dispositive motions or briefs; customizing interrogatories or document requests; and scheduling depositions. The insurer’s prior approval is also required before defense counsel incurs expenses related to any of the following: retaining expert witnesses; scheduling independent medical examinations or peer reviews; instituting surveillance; and conducting additional investigations. To the extent that the insurer reserves unto itself the right to withhold approval for reasonable and necessary legal services to be provided to an insured, these provisions of the guidelines impermissibly interfere with the independent professional judgment of the inquiring attorney. By agreeing to abide by the preauthorization provisions, an attorney impermissibly abdicates the obligations imposed by Rule 2.1 and Rule 5.4(c). Therefore, the inquiring attorney may not agree to them. Furthermore, such provisions result in a material disincentive to provide legal services that are reasonable and necessary to the defense of the insured. See Indiana Bar Assoc. Op. 3 (1998). A material disincentive creates a conflict of interest pursuant to Rule 1.7.5
Washington:
A billing guideline that arbitrarily and unreasonably limits or restricts compensation for the time spent by counsel performing services which counsel considers necessary to adequate representation, such as periodic review of pleadings, conducting depositions, or in preparing or defending against a summary judgment motion, endeavors to direct or regulate the lawyer’s professional judgment in violation of RPC 5.4(c). A billing guideline that imposes ‘defacto’ or arbitrary rates for certain services performed by a lawyer, such as compensating a lawyer at prevailing paralegal rates when the firm does not employ paralegals, operates as a disincentive to performance of those services on violation of RPC 5.4(c).6
APPENDIX B
Relevant Portions of the Utah Rules of Professional Conduct
Rule 1.1—Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The comment to Rule 1.1 provides, with respect to thoroughness and preparation:
Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.
The comment to Rule 1.2—Scope of Representation provides, with respect to agreements limiting the scope of representation:
The client has ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer’s professional obligations. . . An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer’s services or the right to settle litigation that the lawyer might wish to continue.”
(Emphasis added.)
____________________________________________________________________________
Rule 1.3—Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
The comment to Rule 1.3 notes, however, that: “A lawyer has professional discretion in determining the means by which a matter should be pursued. See Rule 1.2.”
____________________________________________________________________________
Rule 1.4—Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
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Rule 1.8—Conflict of interest: prohibited transactions.
. . . .
(f) A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) The client consents after consultation;
(2) There is no interference with the lawyer’s independence of professional judgment or with the clientlawyer relationship; and
(3) Information relating to representation of a client is protected by Rule 1.6.
(g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
____________________________________________________________________________
Rule 5.1—Responsibilities of a partner or supervisory lawyer
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
____________________________________________________________________________
Rule 5.3—Responsibilities regarding nonlawyer assistants
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) The lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Appendix A Footnotes
1.Disciplinary Bd., Haw. Sup. Ct., Formal Op. 37 (Mar. 27, 1999).
2.Ind. State Bar Assoc. Legal Ethics Op. 3 of 1998.
3.Mass. Bar Op. 00-4.
4.Sup. Ct. of Ohio, Bd. of Commissioners on Grievances and Discipline, Op. 2000-3 (June 1, 2000).
5.R.I. Sup. Ct. Ethics Advisory Panel Op. 99-18 (Oct. 27, 1999).
6.Wash State Bar Assoc., Formal Op. 195 (1999).

Ethics Advisory Opinion No. 02-08

Issued September 18, 2002
¶ 1 Issue
: An attorney filed a complaint with the Judicial Conduct Commission against a judge. The complaint was eventually dismissed for insufficient evidence with no finding of misconduct. May the attorney accept new cases as counsel and appear before that judge without advising the clients of the complaint and without giving them the option of the attorney filing a motion for recusal?

¶ 2 Conclusion: The attorney must inform the client if the attorney thinks the judge may harbor some ill feelings toward the attorney. However, if the attorney has a reasonable good-faith belief that the judge does not harbor any ill feeling toward the lawyer, then the lawyer need not advise the client of the complaint the lawyer filed against the judge.
¶ 3 Background: An attorney was the victim of a criminal act. During the pretrial process, the attorney-victim thought that the judge did not afford him his constitutional and statutory rights. He subsequently filed a personal complaint with the Utah Judicial Conduct Commission. The attorneyvictim then advised new clients that were placed on this judge’s docket of the unresolved personal complaint against the judge and offered to file a Rule 29 motion to recuse. In the cases that were not placed on different dockets, the judge recused himself. After processing the complaint, the Judicial Conduct Commission informed the attorney that there was insufficient evidence to warrant further proceedings. The attorney now seeks guidance on whether he may accept new cases as counsel and appear before this particular judge without advising the clients of the prior dismissed complaint and without offering to file a motion to recuse.
¶ 4 Analysis: Rule 1.4(b) provides “A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” The commentary to Rule 1.4 further provides that “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information . . . consistent with the duty to act in the client’s best interest and the client’s overall requirements as to the character of representation.” No doubt a client would like to be informed about potential ill will or even hostility between a judge and counsel and its possible effects on the client’s representation. The commentary aptly provides “A lawyer may not withhold information to serve the lawyer’s own interest or convenience.”
¶ 5 If an actual conflict of interest exists, rather than just a potential for a conflict, Rule 1.7(b) applies: “A lawyer shall not represent a client if the representation of that client may be materially limited . . . 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.” A “lawyer’s own interest” could include the lawyer’s taking on new clients despite the potential ill feelings against him by a district court judge. The commentary to Rule 1.7 indicates a hypothetical or potential conflict does not itself preclude representation. Accordingly, if there is no actual conflict, client consent is not required.
¶ 6 The critical issues, then, are (1) the likelihood that a conflict will eventuate and, if it does, (2) whether it will materially interfere with the lawyer’s professional judgment in considering alternatives or foreclose courses of actions that reasonably should be pursued.
¶ 7 A judge is also required to avoid conflicts. Canon 1 of the Code of Judicial Conduct sets the general standard that “[a] judge should participate in establishing, maintaining, and enforcing, and shall personally observe, high standards of conduct so that the integrity and independence of the judiciary will be preserved.”1If a judge were to allow a dispute with an attorney on a personal level to interfere with his professional judgment, this would constitute unjudicial conduct that would prejudice public esteem of the office. Further, the judge could be subject to be “reprimanded, censured, suspended, removed from office, or involuntarily retired for . . . conduct prejudicial to the administration of justice which brings a judicial office into disrepute.”2
¶ 8 At the beginning of representation, the potential conflict, if any, may never develop into an actual conflict. For instance, if a particular case is not even assigned to this judge’s docket, any possible conflict will be avoided and the issue need not be addressed. Also, if the case is initially assigned to the judge, the judge might sua sponte recuse himself pursuant to Canon 3 of the Code of Judicial Conduct, which states, “A judge shall enter a disqualification in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where . . . the judge has a personal bias or prejudice concerning a party or a party’s lawyer.”3
¶ 9 If the lawyer takes a case that is assigned to the judge who does not recuse himself, the lawyer must then decide if there is a reasonable, good-faith basis to believe that the judge does not harbor ill feelings or resentment toward the lawyer. The lawyer may reasonably believe the judge harbors no ill will, for example, if sufficient time has elapsed to dissipate initial ill will; if the judge has affirmatively indicated that he bears no resentment; or if the attorney has represented a client before the judge with no sign of prejudicial effect. Under such circumstances, the attorney need not inform the client of the prior incident.
¶ 10 If the lawyer believes the judge might continue to resent the lawyer’s filing the complaint, the lawyer must reveal this potential conflict to the client. If the lawyer, in good faith, believes the judge does not have any ill feelings toward the lawyer, then he need not advise the client of the complaint that was filed against the judge. However, the prudent attorney will also consider that, if the client is not informed of the prior complaint, he may later find himself the subject of an ineffective-assistance-of-counsel appeal or a bar complaint, and the lawyer should be prepared to explain his reasonable good-faith conclusion that the judge did not harbor ill feelings towards him for his having filed the complaint against the judge.
Footnotes
1.Utah Code of Judicial Admin., ch. 12, Code of Judicial Conduct, Canon 1 (2002).
2.Utah Code Ann. § 78-8-103(1)(e) (1996).
3.Utah Code of Judicial Admin., ch. 12, Code of Judicial Conduct, Canon 3.E(1)(a) (2002).

Ethics Advisory Opinion No. 99-04

(Approved June 30, 1999)
General Issue:
What are the ethical considerations that govern a lawyer who wishes to conduct legal seminars; provide legal information to groups of retirement-home residents; host open houses; set up information booths at trade shows; participate in Bar-sponsored question-and-answer programs; or make in-person contacts with prospective clients at the request of their friends or relatives?

Summary: This Opinion analyzes and decides a range of related questions that have arisen in connection with lawyers’ marketing and solicitation activities. In general, we find that lawyers may make their services known through a variety of methods that do not involve uninvited, one-on-one approaches, discussions or solicitations. On the other hand, where monetary gain is a significant motivation, lawyers may not generally engage in uninvited, direct in-person communications with prospective clients in order to indicate the lawyer’s availability to accept professional employment.
Issue No. 1: May a lawyer sponsor and advertise a free seminar on legal issues to be presented in a group setting to members of the public and (i) offer literature or videos discussing the legal topic, either with or without fee, to attendees of the seminar, (ii) give a business card to attendees who request one, and (iii) accept employment to provide legal services to an attendee who initiates a request for professional services?
Opinion: Yes. Provided that the invitations do not communicate the lawyer’s availability to accept professional employment, a lawyer may invite members of the public to a law-related seminar with invitations delivered by mail, by telephone or in person. If the invitations communicate the lawyer’s availability to accept professional employment, the invitation may not be in person or telephonic and must comply with Utah Rules of Professional Conduct 7.1, 7.2 and 7.3(b). So long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment from attendees of the seminar in person, the lawyer may provide a business card to an attendee of the seminar who requests it and may accept employment to provide legal services to attendees of the seminar who initiate the request for professional services. The lawyer may distribute or offer in person to each attendee literature or videos discussing the legal topic, with or without fee, provided the literature or videos do not communicate the lawyer’s availability to accept professional employment. The lawyer may distribute or offer in person to attendees literature or videos which communicate the lawyer’s availability to accept professional employment only if the request for such materials is initiated by the attendee. The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without inperson encouragement, choose to pick up the materials.
Issue No. 2: If a lawyer volunteers to appear before a group of residents of a retirement or senior center to answer in a group setting questions they may have concerning legal topics, may the lawyer ethically accept legal engagements offered by residents of the center who attend the group question and answer session?
Opinion: Yes, as long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment in person. The lawyer is subject to the same ethical restraints during a group question and answer session as are set forth in this Opinion with respect to law-related seminars.
Issue No. 3: If a lawyer purchases booth space at a trade show, may the lawyer (i) discuss legal topics one on one with persons who voluntarily visit the lawyer’s booth and (ii) accept legal engagements offered by attendees of the trade show who visit the lawyer’s booth and engage in one-on-one discussions with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment.1The lawyer may display print advertisements at or about the booth that comply with Rules 7.1 and 7.2.
Visits by the public to a lawyer trade-show booth are similar to visits by non-clients to a lawyer’s advertised open house. The lawyer may not communicate the lawyer’s availability to accept professional employment in person, but he may discuss legal topics with the prospective clients. When the request is initiated by the prospective client, the lawyer may privately provide individualized legal advice. The lawyer may not generally distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment in person, but may provide such materials to those prospective clients who initiate a request for such information. The lawyer may make available materials communicating the lawyer’s availability to accept professional employment at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials. The lawyer may accept professional employment from prospective clients who meet with the lawyer so long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a).

Issue No. 4:
May a lawyer volunteer to set up a table in a common area of a retirement or senior center in order to meet one on one to discuss legal topics with residents of the center who voluntarily visit the lawyer’s table, and may the lawyer accept legal engagements proposed by residents of the center who visit the lawyer’s table and voluntarily engage in one-on-one discussions of legal issues with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment from persons with whom the lawyers has no family or prior professional relationship for pecuniary gain. The lawyer is subject to the same ethical restraints during a discussion-table meeting with a prospective client as are set forth in this Opinion with respect to lawyer open houses and lawyer trade-show booths.

Issue No. 5:
May a lawyer volunteer to provide one-on-one consultations with residents of a retirement or senior center concerning legal topics, initiate one-on-one in-person communications with residents of the center in their rooms or common areas to discuss their legal questions or concerns, and accept legal engagements proposed by such residents who discuss legal topics one on one with the lawyer?
Opinion: No. The lawyer has engaged in direct in-person solicitation of professional employment when the lawyer initiates uninvited one-on-one contact to discuss legal topics with residents of the center.
Issue No. 6: If a lawyer volunteers to answer questions of members of the public participating in a Utah State Bar-sponsored one-on-one question-and-answer session, such as a Bar-sponsored telethon (in-person telephonic contact) or the Bar-sponsored Tuesday Night Bar (face-to-face contact), may the lawyer provide to a member of the public his name and telephone number during the Bar-sponsored communication and accept professional employment for a fee offered by a member of the public during or after the Bar-sponsored communication?
Opinion: No. The Bar’s current policies concerning such Bar-sponsored programs prohibit lawyer volunteers from accepting professional employment resulting from discussions with members of the public during the program, unless the professional employment is accepted on a pro bono basis. If the Bar’s policies concerning such Bar-sponsored programs did not prohibit a lawyer from accepting professional employment on a for-fee basis resulting from the programs, and the lawyer complied with the requirements of Rule 7.3(a) that prohibits in-person solicitation of professional employment of persons the lawyer could, upon a request initiated by the member of the public, provide his address and telephone number and accept professional employment on a for-fee basis during or after the Bar-sponsored communication.
Issue No. 7: If a relative or close friend of a prospective client requests that the lawyer telephone the prospective client to offer to provide legal representation, is it ethical for the lawyer to telephone the prospective client and to offer to provide legal representation?
Opinion: Generally no, unless the relative or friend of the prospective client requesting the lawyer to make the contact is the agent of the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client. Absent this determination, it is a prohibited in-person solicitation for the lawyer to telephone the prospective client to provide legal representation for pecuniary gain.
Background: The Committee has received several requests regarding the ethics of certain client-development activities generally described as law-related seminars, group question-and-answer sessions on law-related topics, trade-show booths, discussion tables, uninvited one-on-one question-and-answer sessions on law-related topics and participation in Utah State Bar-sponsored legal assistance programs. The Committee has also received a request for an opinion on the ethics of in-person contact of prospective clients referred to the lawyer by the family or close friends of the prospective client. Unless otherwise indicated, the Committee has assumed in the analysis of each of these requests that (i) the prospective client is a person with whom the lawyer has no family or prior professional relationship and (ii) a significant motive for the lawyer’s conduct is pecuniary gain and not to advance any constitutionally protected associational interests.
Issue No. 1 Analysis: Rule 7.3(a) prohibits in-person and telephonic communication directed to a specific recipient with whom the lawyer has no family or prior professional relationship soliciting professional employment when a significant motive for the lawyer’s doing so is pecuniary gain.2
Unlike the rules in some other states, the Utah Rules of Professional Conduct do not define the term “solicit” as this term is used in Rule 7.3(a). We believe that “solicit” in this context means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment.3The term “solicit” necessarily includes an offer initiated by the lawyer to provide or to accept professional employment and the unrequested advice or recommendation of the lawyer that the lawyer be engaged to provide professional services.4
Rule 7.3 prohibits only solicitations to provide legal services.5An invitation to attend a law-related seminar without any communication of the lawyer’s availability to accept professional employment is not a solicitation of professional employment. Therefore, a lawyer may invite attendance at a law-related seminar sponsored by the lawyer or by others by telephone or by direct in-person communication, so long as the lawyer does not communicate a message or offer concerning the availability of the lawyer to accept professional employment.6If the invitation contains such a message or offer, the invitation must be made by mail and must comply with Rules 7.1, 7.2 and 7.3(b).
A lawyer may appear and make presentations at a law-related seminar provided he does not engage in in-person solicitation prohibited by Rule 7.3(a). Therefore, a lawyer may not communicate the lawyer’s availability to provide professional employment, offer to provide or accept professional employment or recommend that the lawyer or the lawyer’s firm be employed to provide legal services.7 The lawyer may distribute or offer in person to each attendee of the seminar, with or without fee, literature or video tapes concerning the legal issues addressed at the seminar that may state the lawyer’s name, firm affiliation, address and telephone number.8Literature or video tapes offered in person to each attendee may not communicate the lawyer’s availability to provide or accept professional employment.9Therefore, the lawyer’s business card, brochures or other endorsements of the lawyer or the lawyer’s law firm should not be generally distributed in person to attendees of law-related seminars.10If an attendee of a law-related seminar initiates a request to the lawyer to receive literature or video tapes that communicate the lawyer’s availability to provide or to accept professional employment, the lawyer may ethically provide such materials to the attendee. Letters and brochures offering the lawyer’s legal services may be mailed by the lawyer after the seminar to the attendees of the seminar.11
A lawyer may not provide individualized legal advice during the course of a law-related seminar.12By doing so, the lawyer would be providing legal services. In response to questions by attendees, the lawyer must endeavor to respond generally so as to create no impression that the lawyer has accepted professional employment on behalf of an attendee. While the lawyer may not initiate a recommendation of the lawyer’s engagement by any attendee of the seminar, he may recommend, when appropriate, that an attendee of the seminar consult with a lawyer of the attendee’s own choosing.
A lawyer may meet one on one with an attendee of the seminar, when such a contact is initiated by an attendee. In private sessions with attendees, if a request for individualized legal advice is initiated by the attendee, the lawyer may provide individualized legal advice.13The lawyer may accept professional employment offered by an attendee of the seminar, either offered privately at the seminar or after the seminar, provided the lawyer has not initiated the offer by engaging in in-person solicitation in violation of Rule 7.3(a).14
Some state bar associations have placed additional restrictions on lawyer participants at law-related seminars. The Committee chooses not to adopt these additional restrictions.15
Issue No. 2 Analysis: The Committee does not see a meaningful distinction between a group question-and-answer session concerning legal topics and a law-related seminar. For this reason, the Committee believes the analysis of this issue is the same as the analysis of Issue 1, law-related seminars, and that the ethical restraints on the lawyer’s conduct are the same.16
Issue No. 3 Analysis: It is not unethical for a lawyer to purchase booth space at a trade show. So long as advertisements attached to or near the booth space comply with Rules 7.1 and 7.2, it is not unethical for the lawyer to display print advertisements of the lawyer’s availability to accept legal employment. This is equivalent to outdoor advertising authorized by Rule 7.2. What distinguishes booth space at a trade show from outdoor advertising is the presence of the lawyer at the booth to engage in one-on-one oral communications with attendees of the trade show.
Other state bar associations are divided on what activities a lawyer at a trade-show booth may ethically engage in. Some permit the lawyer to initiate in-person offers to provide legal services to anyone who visits the booth and voluntarily engages in communications with the lawyer.17These opinions appear to view the booth as an extension of the lawyer’s office. The presumption is that a lawyer is free to engage in in-person solicitation of those who walk into a lawyer’s office to discuss legal services.
Some bar associations prohibit the lawyer from solicitation of persons with no family or prior professional relationship with the lawyer who visit the booth. This, therefore, prohibits the general in-person distribution from the booth of brochures, business cards and other writings communicating the lawyer’s availability to accept professional employment.18These opinions reason that general in-person distribution of brochures and initiating offers to provide professional services from the trade show booth is not unlike a lawyer standing on a street corner and passing out brochures and offering to provide legal services to each passerby. These opinions are concerned with the potential for undue influence, harassment and fraud that may occasion one-on-one encounters between the lawyer and the public making their way past the lawyer’s booth.
The Committee believes that visits to a lawyer’s trade-show booth should be likened to visits to a lawyer’s office during an advertised open house. Non-clients who attend an advertised lawyer open house do not reasonably anticipate that they will be subjected to in- person solicitation of professional employment.19 For this reason, it is unethical for lawyers to engage in in-person solicitation of such persons.20These occasions afford the lawyer the opportunity to meet prospective clients and for prospective clients to meet the lawyer. The lawyer may discuss legal topics with the attendees and may, when the request is initiated by the prospective client, privately provide individualized legal advice.21
The lawyer may not initiate an offer to provide or to accept professional employment. He is free to distribute in-person business cards, brochures and other self-promoting literature to an attendee of an open house who requests the literature, but may not otherwise distribute literature in person that communicates the lawyer’s availability to accept professional employment to those in attendance.22The lawyer may later mail the brochures and other literature to those who attend the open house. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), the lawyer may accept professional employment from attendees of the open house.
The Committee believes that the same analysis applies to trade-show booths. The lawyer may get acquainted with those who visit the booth, may discuss legal topics generally and may, when the request is initiated by the prospective client, privately provide individualized legal advice. The lawyer may not initiate in-person communications about the lawyer’s availability to accept professional employment. The lawyer may not in person distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment unless the person visiting the booth initiates the request for this information. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), he is free to accept professional employment offered by those who visit the booth.
Issue No. 4 Analysis: The Committee believes that a table set up by a lawyer at a retirement or senior center for the purpose of meeting with residents of the center who voluntarily visit the lawyer’s table to discuss legal topics is indistinguishable from a lawyer’s open house or a booth set up by a lawyer at a trade show. The analysis of this issue is the same as the analysis of Issue No. 3, and the ethical restraints on the lawyer’s conduct are the same as the restraints on a lawyer’s holding an open house or setting up a trade-show booth.
Issue No. 5 Analysis: The lawyer’s conduct in initiating uninvited communications with residents of the senior center, whether in their rooms or in common areas of the center, is distinguishable from establishing a table in a common area of the senior center. When the lawyer initiates the contact, the resident is subjected to the uninvited presence of the lawyer in a one-on-one encounter. This situation is “fraught with the possibility of undue influence, intimidation and over-reaching.”23The residents of the senior center are subjected to “the private importuning of a trained advocate, in a direct interpersonal encounter” which was wholly uninvited by the resident.24 Because the communications are private and oral and not visible or otherwise open to public scrutiny, it is nearly impossible for the lawyer’s conduct to be regulated. The potential for abuse inherent in this situation justifies a prophylactic prohibition of the acceptance of legal representation offered by the residents of the senior center under these circumstances, unless the representation is pro bono.25
It may be argued that such uninvited one-on-one contact to discuss legal topics of interest to the residents of the senior center is not solicitation unless the lawyer communicates his availability to accept legal employment. It may also be argued that, if the resident initiates a request for individualized legal advice or to engage the lawyer to provide legal services, then the professional employment has not been obtained through solicitation in violation of Rule 7.3(a). The Committee is not persuaded by such arguments. These arguments are similar to the analysis set forth earlier in this Opinion for law-related seminars, group question-and-answer sessions, client open houses and trade-show booths and discussion tables. However, in each of these previously discussed modes of lawyer communication, the prospective clients have invited the communication. While the one-on-one communications at the lawyer open house, lawyer trade-show booth and discussion table are also fraught with the danger of undue influence, intimidation and over reaching, and are also private and not open to public scrutiny, they are at least invited communications. When weighing the rights and benefits of the public in receiving education and direction on legal topics with the potential for lawyer abuse, the Committee finds the balance in favor of permitting one-on-one communications at lawyer open houses, trade-show booths and discussion tables because the communications are invited by the prospective client.
In Shapero v. Kentucky Bar Association, the United States Supreme Court distinguished solicitation by targeted mail from in-person solicitation, stating: “In assessing the potential for over reaching and undue influence, the mode of communication makes all the difference.”26We agree, but further note that uninvited one-on-one communication is fraught with the most danger of abuse. It is this form of communication to attract professional employment that Rule 7.3(a) was intended to prevent. A lawyer may not accept professional employment resulting from such uninvited one-on-one contacts, unless the representation is solicited and provided on a pro bono basis.
Issue No. 6 Analysis: Bar-sponsored telethons and the “Tuesday Night Bar” result in in-person communications by members of the public with lawyers similar to the lawyer open house, trade-show booth and discussion table communications discussed earlier in this Opinion. There is, however, one important distinction. These events are sponsored and advertised to the public by the Bar. Lawyers volunteering to participate in these Bar-sponsored programs are, therefore, subject to the Bar’s rules, regulations and policies regarding the program, in addition to the Utah Rules of Professional Conduct.
Each participant in the Tuesday Night Bar Program receives a policy statement which describes the program as being designed to provide preliminary counseling and general legal information and, if appropriate, referral to a lawyer using the Bar’s Lawyer Referral Service. The policy statement further states: “[The program] is not intended to create an on-going attorney-client relationship between the participants . . . . Attorneys shall not take clients and/or cases from the Program unless the attorney does so on a pro bono basis.” The Bar has also informally indicated it intends to apply a similar policy statement regarding Bar-sponsored telethons.
Therefore, under the current Bar policies, a lawyer volunteer participating in the Bar-sponsored Tuesday Night Bar or a telethon program may not accept legal employment resulting from communications with members of the public during the program, unless the representation is on a pro bono basis. If there were no Bar policy preventing a lawyer participant from accepting professional employment on a for-fee basis from members of the public with whom the lawyer has made contact during a Bar-sponsored program, the lawyer would be governed by the same limitations as discussed previously in this Opinion with respect to communications at lawyer open houses, trade-show booths and discussion tables.
Issue No. 7 Analysis: Rule 7.3(a) states in part: “A lawyer may not solicit in person, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyers doing so is the lawyer’s pecuniary gain.” Thus, the lawyer may not generally communicate in person with the prospective client and offer to provide legal services, even if the lawyer has been requested by a friend or close relative of a prospective client to make the communication.27
However, if the person requesting the lawyer to contact the prospective client is the prospective client’s agent, then it would not be unethical for the lawyer to contact the prospective client in person to offer to provide professional services. In that case, the in-person contact has been invited by the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client.28
In these circumstances, it would be best for the lawyer to advise the person referring the prospective client that the prospective client should contact the lawyer and request the lawyer’s professional services. Otherwise, the lawyer runs the risk that the prospective client’s friend or family member is not authorized by the prospective client to request the lawyer’s direct in-person communication with the prospective client.
Footnotes
1.We assume in this Opinion that the various persons who may be in attendance are not persons “with whom the lawyer has [a] family or prior professional relationship” and that any solicitation would be significantly motivated by “the lawyer’s pecuniary gain.” Otherwise, the lawyer is not constrained by the provisions of Rule 7.3, which forms the foundation of our analysis.
2.In Opinion No. 127, the Committee discussed Rule 7.3(a) and the constitutional limitations on the rule. Utah Ethics Advisory Op. 127, 1994 WL 579847 (Utah St. Bar).
3.See California Rules of Professional Conduct, Rule 1400(B)(1) (“solicitation” is any communication “concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain”).
4.See ABA Model Code of Professional Responsibility, DR2-104(A).
5.Utah Ethics Advisory Op. 97-03, at 2, 1997 WL 223849 (Utah State Bar).
6.Los Angeles Co. Bar Assoc., Formal Op. 494, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:1702 (Oct. 19, 1998).
7.Some state bar associations have allowed lawyers to make generalized statements at law-related seminars regarding their availability to accept professional employment. See, e.g., Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ariz. State Bar Assoc., Op. 87-23, ABA/BNA Lawyer’s Manual on Professional Conduct 901:1408 (Oct. 26, 1987). Arizona allows lawyer presenters at law-related seminars to offer to provide legal services with or without fee, if no pressure or coercion is exercised upon attendees at the seminar. We do not agree with these opinions. We believe such conduct constitutes in-person solicitation prohibited by Rule 7.3(a).
8.Ill. State Bar Assoc., Op. 96-01, 1996 WL 466449.
9.Mass. State Bar Assoc., Op. 86-3, ABA/BNA Lawyer’s Manual on Professional Conduct 901:4601 (Nov. 25, 1996); Los Angeles Co. Bar Assoc., Formal Op. 494.
10.The Committee does not believe that Rule 7.3(a) precludes lawyer sponsors or presenters at law-related seminars from leaving business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment at tables where these materials may be picked up by any attendee choosing to do so. However, the lawyer may not in any way promote or encourage attendees in person to pick up such written materials.
11.S.C. State Bar Assoc., Op. 97-05, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:7904 (April 1997).
12.Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ala. State Bar Assoc., Op. 87-119, ABA/BNA Lawyer’s Manual on Professional Conduct 901-1032 (Sept. 29, 1987); Penn. State Bar Assoc., Op. 93-42A, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7326 (June 2, 1993).
13.R.I. State Bar Assoc., Op. 94-39, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7834 (June 22, 1994); Penn. State Bar Assoc., Op. 93-42A. By providing individualized legal advice, the lawyer has created an attorney-client relationship and must comply with the Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10, and Rule 1.6, regarding client confidences.
14.Wis. State Bar Assoc., Op. E-94-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:9104 (Nov. 18, 1994); Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Miss. State Bar Assoc., Op. 156, ABA/BNA Lawyer’s Manual on Professional Conduct 901:5108 (Dec. 2, 1988); Penn. State Bar Assoc., Op. 89-32, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7318 (undated).
15.Some state bar associations require that lawyer participants be competent in the area of law addressed at the seminar. Tex. State Bar Assoc., Op. 489, 57 Tex. B.J. 372 (1994). Although lawyers are encouraged not to make presentations in areas of the law in which they are not competent, a law-related seminar is not the provision of legal services and is therefore not subject to Rule 1.1. Some state bar associations require that the seminar be educational, not promotional. Ind. State Bar Assoc., Op. 10 of 1986, ABA/BNA Lawyer’s Manual on Professional Conduct 901:3303 (undated); Tex. State Bar Assoc., Op. 489. To the extent this limitation is intended to be more restrictive than a prohibition on in-person solicitation, it is not required by the Rules and is constitutionally suspect. See Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v. Fane, 507 U.S. 761 (1993). A requirement in some states is that the sponsorship of the seminar be disclosed. To the extent that a failure to disclose the sponsorship of the seminar may be misleading, a lawyer may be required to disclose this fact to comply with Rule 7.1. However, Rule 7.1 applies only to the advertisement or promotion of a law-related seminar which communicates the lawyer’s availability to accept professional employment.
16.See R.I. State Bar Assoc., Op. 96-21, ABA/BNA Manual of Professional Conduct 1101:7804 (Sept. 12, 1996) (lawyer may telephone administrators of senior centers to offer a lecture series targeted specifically for senior citizens).
17.See, e.g., Nassau Co. [N.Y.] Bar Assoc., Op. 90-7, ABA/BNA Lawyer’s Manual on Professional Conduct 901:6274 (Mar. 14, 1990) (authorizing lawyer to offer legal services from a booth at a shopping center so long as lawyer complies with advertising rules in advertising minimum fees for services and protects against disclosure of client confidences).
18.Penn. State Bar Assoc., Op. 88-214, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7316 (undated) (distribution of firm brochure and contract samples from trade show booth is in-person solicitation); Kan. State Bar Assoc., Op. 98-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:3804 (April 2, 1998) (passing out firm brochures at trade show to those who pass by the trade show booth is in-person solicitation).
19.This Opinion assumes that the invitation to a lawyer’s open house does not specifically invite the public to attend for the purpose of being solicited to provide professional employment to the lawyer. The Committee believes that non-clients who attend an open house in response to an invitation that states that the non-clients will be solicited have, in turn, invited the in-person solicitation. It would, therefore, not be unethical for a lawyer to make an in-person solicitation to such a person.
20.N.C. State Bar Assoc., Op. 146, 1992 WL 753128 (Jan. 15, 1993); Ore. State Bar Assoc., Op. 1991-35, 1991 WL 279176 (July, 1991); see also R.I. State Bar Assoc., Op. 89-14, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7805 (July 20, 1989) (lawyer may attend social gatherings to meet prospective clients, but may not engage in in-person solicitation).
21.When providing individualized legal advice, the lawyer must comply with all Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10 and Rule 1.6 concerning client confidences.
22.The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials.
23.Rule 7.3 cmt.
24.Id.
25.Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) (prophylactic rule against in-person solicitation does not violate the rights of free expression afforded by the First and Fourteenth Amendments of the United States Constitution even in the absence of a showing of any specific harm to the prospective clients). Accord, Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988). If the representations are accepted on a pro bono basis, then Rule 7.3(a) would not be applicable. The primary motive of the lawyer would not be pecuniary gain.
26.486 U.S. 466, 475 (1988)
27.Norris v. Alabama State Bar, 582 So. 2d 1034 (Ala. 1991) (lawyer suspended from practice for two years after delivering to a funeral home a funeral wreath and a letter addressed to the widow offering assistance after having received an anonymous telephone call from someone purporting to be a friend of the widow stating that she required legal services and did not have sufficient funds for a funeral wreath); Spence, Payne, Masington & Grossman, P.A. v. Gerson, 483 So. 2d 775 (Fla. App. 1986) (unethical in-person solicitation for a lawyer to send an investigator to obtain a retainer agreement from a widow after receiving a telephone call from a client of the lawyer and a close friend of the widow requesting that the lawyer offer to provide professional services to the widow).
28.A contrary opinion may be found in the Spence, Payne case.

Ethics Advisory Opinion No. 98-14

(Approved December 4, 1998)
Issue:
Is it unethical for a lawyer in a divorce case to advise a client that she may obtain a protective order pro se or to allow the client to appear pro se in the protective-order case, while the lawyer continues to represent the client in the divorce proceeding?

Opinion: Because a protective-order proceeding is a separate legal action from a divorce proceeding and is clearly delineated as such by state statute, an attorney who represents a client in a divorce proceeding is not automatically counsel for that client within the protective-order proceeding. Further, an attorney representing a client in a divorce proceeding is not ethically bound to represent the same client in a protective-order proceeding filed between the same parties. The lawyer may advise the client of her right to obtain a protective order and to do so pro se.
Analysis: Chapter 3 of Title 30 of the Utah Code governs divorce proceedings,1and Chapter 6 of Title 30 establishes a procedure for obtaining a “protective order” in a protective order or “cohabitant abuse” proceeding.2Sometimes, the relief sought in a protective-order action will overlap with or will be identical to relief sought in a divorce proceeding. The Ethics Advisory Opinion Committee has been asked whether an attorney who is representing a client in a divorce proceeding is required to represent the same client in a protective-order proceeding involving the same opposing party as the divorce proceeding. The request notes that, because the relief sought in the protective-order action may duplicate the relief sought in the divorce action, it may cause difficulty for one or both litigants to the actions, or to the court, if a party appears pro se seeking the issuance of relief pursuant to a protective order.
A lawyer has an obligation to advise a client of all lawful options to resolve a legal problem.3If an attorney believes that a protective order is appropriate in a case, the Rules of Professional Conduct may, therefore, require the attorney to advise the client of the option of obtaining a protective order. Because the protective-order system in Utah allows pro se litigants to obtain protective orders at no cost through the assistance of the court and without incurring attorney’s fees, an attorney may properly advise a client that she has the option not only of obtaining a protective order, but of obtaining one either through counsel or pro se. If an attorney advises a client of the availability of the protective-order system and of the possibility of obtaining a protective order without counsel, the attorney is not breaching any of the Rules of Professional Conduct.
It goes without saying that a lawyer cannot accept representation in a case, promise to represent a client in a protective-order proceeding, and then fail to do so. This would clearly be a violation of Rules 1.1, 1.2 and 1.4. Conversely, however, if the lawyer advises the client of the option of obtaining a protective order, and the client specifically elects to do so pro se, the attorney is ethically prohibited from interfering in the client’s decision, since this would violate the specific instructions from the client as to the scope and direction of the representation.4Once an attorney has advised a client of all her options in any case, it is exclusively the client’s right to determine whether to pursue one course of action or another, and whether to pursue relief pro se or with counsel. Under Rule 1.2(a), the lawyer is bound by the client’s determinations in this regard and may not act adversely to the client’s specific instructions. Indeed, it might violate a lawyer’s ethical obligations to insist upon appearing for a client in a protective-order case, if the client specifically instructed the attorney not to do so.
Practitioners should continue to bear in mind that it is a violation of the Rules of Professional Conduct for an attorney to approach a court to seek relief on behalf of a client when the relief is not sought in good faith.5It is likewise a breach of an attorney’s ethical obligations to suggest to a client that she advance a claim for relief in court pro se, when such an action is not brought in good faith. Obviously, it is a breach of an attorney’s ethical obligations to suborn perjury in seeking any relief from any court, and it is a breach of an attorney’s ethical obligations to suggest to a client that she make false statements to a court in seeking any relief, including pro se actions.
Footnotes
1.Utah Code Ann. §§ 30-3-1 to -38 (1998).
2.Id. §§ 30-6-1 to -14.
3.Utah Rules of Professional Conduct 1.1, 1.2(c), 1.4(a), 1.4(b) and 2.1.
4.Id. 1.2(a).
5.Id. 1.2(c), 1.16(b)(1), 1.16(b)(2), 3.1, 3.2 and 3.3.

Ethics Advisory Opinion No. 96-06

(Approved July 3, 1996)
Issue:
What are the ethical obligations if an attorney undertakes representation of a client when the attorney is not able to communicate directly with the client in a language clearly understood by that client?

Opinion: An attorney need not have any personal knowledge of language skills relating to the language ability of the client. It is necessary, however, for an attorney to be able to communicate adequately with the client.1Therefore, consideration should be given to language impediments that would materially affect the attorney’s ability to communicate adequately in the specific circumstances of the client’s case. The method by which this must be done will depend upon the circumstances of each situation.2
Discussion: A lawyer must be sensitive to the non-English or limited English-speaking client’s communication difficulties in explaining legal problems and in understanding the legal advice to be provided by the lawyer. A lawyer must also be sensitive to the lawyer’s limitations in understanding communications that come from a non-English or limited English-speaking client. Such sensitivity is an important aspect of attorney competence, as well as other duties and obligations of attorneys requiring communication with clients. In this context, a lawyer must also be sensitive to the limited communication abilities of hearing-impaired or speech-impaired clients.
An attorney must have or must acquire sufficient time, resources and ability to apply the sufficient learning, skill and diligence necessary to discharge the duties arising from the attorney-client relationship.3However, the inability to communicate directly with the client in a language clearly understood by the client does not always preclude an attorney from discharging such duties. Clearly, a client has the right to retain the services of an attorney, knowing that direct communication with that particular attorney may be limited or impossible. Also, clearly, difficulty in communication can occur even between those who speak the same language.4
It is the responsibility of any attorney to gather all of the relevant facts, undertake reasonable research in an effort to ascertain legal principles and make an informed decision as to a course of conduct based upon an intelligent assessment of the client’s problems. A language barrier does not reduce the attorney’s duty to communicate adequately with the client, as required by Rule 1.4. If direct communication in a language clearly understood by the client is not possible, the attorney must take into account the fact that means other than direct communication will be required to discuss the client’s case and to meet the attorney’s responsibilities. The means by which an attorney may do this are varied.
On any matter that requires client understanding, the attorney must take all reasonable steps to insure that the client comprehends the legal concepts involved and the advice given by the attorney. The attorney must take all reasonable steps to insure that the attorney understands what the client is saying, so that the attorney can make intelligent judgments about the case and so that the client can make informed decisions. If the attorney cannot communicate fluently in the client’s own language, the attorney should communicate through an interpreter skilled in the client’s particular language or dialect. The attorney may accomplish this by associating with a bilingual attorney who can assist with the language problem or by working with an employee or staff member who can assist the attorney with the language problem. However, an attorney must be cautious in insuring that the attorney and client are communicating with each other through the interpreter, rather than the interpreter giving legal advice independent of the attorney. To allow such a result would be to assist in the unauthorized practice of law in violation of Rule 5.5(b).
On any matter that requires the use of an interpreter, the attorney must take all reasonable steps to insure that other ethical considerations such as client confidentiality and conflict of interest are addressed. For example, the interpreter should have a clear understanding of the obligation to keep the client’s communications confidential. An attorney should use care in selecting an interpreter to insure that the interpreter does not have a personal interest in the outcome of litigation. Attorneys are cautioned that use of the client’s close friends and family members may often give rise to such potential problems under Rules 1.6 and 1.7.
Attorneys should also be aware of the issue of whether there would be a waiver of the attorney-client privilege when a non-employee interpreter is used and should review the law governing this issue.5
Finally, attorneys should be sensitive to the possibility that non-English speaking clients may not readily understand legal principles described by the attorney, because the non-English speaking client may interpret communications based on a different social and cultural foundation than that assumed by the attorney. Attorneys should, therefore, take greater care in explaining complex legal communications to clients who are non-English speaking, because the client may have no social or cultural background or understanding of the United States, so as to put the attorney’s communications into proper context.
It should be noted that the attorney may generally bill the client for interpreter services, so long as the attorney acts consistently with Rule 1.5. There are some exceptions to this, such as representation as appointed counsel for an indigent criminal defendant, and the Americans with Disabilities Act may require that attorneys provide interpreter services for hearing-impaired clients free of charge.
Footnotes
1.Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
Utah Rules of Professional Conduct 1.4.
2.The analysis and general conclusion of this opinion apply as well to dealing with clients who are speech- or hearing-impaired.
3. Id. Rules 1.1, 1.3.
4.See Cal. St. Bar Comm. on Prof. Responsibility and Conduct, Formal Op. 1984-77, 1984 WL 5101; see also Assoc. of Bar of N.Y.C. Comm. on Prof. and Jud. Ethics, Formal Op. 1995-12, 1995 WL 607777.
5. Whether the privilege would be waived in any particular set of circumstances is a question of law and, therefore, beyond the scope of this opinion.

Ethics Advisory Opinion No. 96-07

(Approved August 30, 1996)
Issue:
What are the ethical implications of federal funding reductions and practice restrictions to Utah Legal Services lawyers?

Opinion: A Utah Legal Services lawyer must give all clients adequate notice of legislative changes and the effect they will have on a client’s representation. Funding reductions and practice restrictions may necessitate withdrawal from pending matters and intake restrictions on new matters. The attorney must make reasonable efforts to arrange for substitution of lawyers to handle pending matters, such as referring them to the Utah State Bar’s statewide pro bono coordinator.
Analysis: Congress has imposed dramatic funding cutbacks and imposed certain practice restrictions as part of the fiscal-year 1996 appropriations bill signed into law on April 25, 1996. Some of the practice restrictions are: a ban on advocacy before legislative or administrative rule-making bodies; a ban on initiating, participating or engaging in new class actions; a ban on collecting attorney fees; a ban on welfare reform litigation; a ban on abortion representation; a ban on prisoner representation; a ban on representation of certain aliens; and a requirement to make pre-litigation disclosures.
Two formal opinions of the ABA address the subject of funding reductions and practice restrictions and give reasonable guidance in this area.1
A. Giving Notice of Practice and Budgetary Limitations. Rule 1.4, Communication, Utah Rules of Professional Conduct, provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
A legal services attorney has an obligation to make an assessment with respect to ongoing provision of legal services to existing clients in light of funding reductions and new practice restrictions. Under Rule 1.4(a), the attorney is required to provide to existing clients and new clients as they are accepted notice of the risk or the likelihood that representation may be limited or terminated. When the risk is known and cutbacks must be made, clients must be promptly advised of terminating representation.
Rule 1.16, Declining or Terminating Representation, provides:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law; . . .
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: . . .
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.
Legal Services lawyers must determine if existing clients fall within representation practice restrictions or will be affected by present and future funding cuts. ABA Formal Opinion 96-399 does not permit lawyers to decide which clients to keep and which clients to let go solely on the basis of whether abandoning certain cases will facilitate future funding. With respect to the indigent client, the lawyer must do more than give reasonable notice to the client allowing time for employment of other counsel. An effort to arrange for substitution of pro bono lawyers to handle pending matters needs to be made.
The Bar’s statewide pro bono program is one possible source of alternative counsel. The responsibility for coping with funding reductions and practice restrictions does not fall solely on the shoulders of modestly paid legal services attorneys. The Comment to Rule 6.1 of the Utah Rules of Professional Conduct, Pro Bono Publico Service, makes clear that members of the Bar have an ethical duty to assist in the provision of legal services for those unable to pay:
The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal service to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the professional and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.
If more than lip service is to be paid to this ethical duty, the Bar, individually and collectively, must respond to the coming crisis in indigent representation imposed by the recent funding reductions and practice restrictions.
ABA Formal Opinion 96-399 also holds that “A representation cannot be terminated solely because it would violate the funding restrictions.” The opinion permits a legal services organization to make its own determination as to whether forgoing legal services funding and maintaining prohibited representations is more desirable than keeping the legal services funding and terminating prohibited representations. Where a legal services organization’s funding from the Legal Services Corporation is a small percentage of its overall funding, the organization may have two viable choices. However, where, as here, the Utah Legal Services’ budget is 84% funded by the Legal Services Corporation,2the option of forgoing Legal Service Corporation funding is not a real choice.
A lawyer has a continuing duty to communicate restrictions to existing and new clients and to advise them, for example, that representation in an eviction case may be limited in important respects (such as not pursuing unlawful denial of welfare benefits because of welfare reform litigation restrictions). Additionally, the legal services lawyer must communicate that he may not be able to continue to represent a client in certain new matters where a change in circumstances such as incarceration or change in immigrant status may involve practice restrictions. It may be difficult for the legal services lawyer to anticipate the restrictions that may arise with each client, and clients should be advised of practice restrictions so they understand that the lawyer’s services are or may be limited.
B. Client Consent to Restrictions and Withdrawal. Rule 1.7(b)(2), Utah Rules of Professional Conduct, provides that “A lawyer may not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to another client or to a third person or by the lawyer’s own interests, unless: . . . the client consents after consultation.” Some restrictions on providing a client full-service representation will require the legal services attorney to advise the client of those restrictions and, if the representation is to continue, to obtain a consent of the client to continue the representation after consultation with the client.
ABA Formal Opinion 96-399 in this regard provides, “A lawyer must abide by the client’s refusal to consent to limitation on representation and cannot withdraw solely because the client refuses his consent.” This is not to say that the lawyer will be unable to withdraw, but that the refusal of an existing client to consent to limitations on the representation cannot be the sole reason the lawyer is withdrawing. The lawyer may be facing malpractice issues if he is unable to resolve a client’s legal needs because of practice restrictions. If those practice restrictions will jeopardize funding that constitutes 84% of the budget of the legal services organization, the lawyer’s responsibility to other clients would also weigh in the decision to terminate representation for a client that did not consent to the restrictions. The legal services attorney would also be exploring the obtaining of alternative counsel outside the legal services organization.
Caseload restrictions are not new to legal services organizations, but the recent funding and practice restrictions create a new dimension for existing procedures already in place at legal services organizations. If practice restrictions or funding restrictions would create a caseload that adversely affects the representation of existing clients by defunding the organization or stretching resources too thinly the legal services lawyer may not be able to accept new cases. New clients, prior to engagement of representation, may sign an agreement that explains the limited scope of representation in light of practice restrictions. Even with client consent, if the representation of the client is so limited that its practical effectiveness is severely compromised, then the attorney should decline representation.3
The scope of representation can be limited by either the client or by the lawyer. Rule 1.2(b), Scope of Representation, provides: “A lawyer may limit the objectives of the representation if the client consents after consultation.” The official comment to Rule 1.2 states in part that, “Representation provided through a legal aid agency may be subject to limitations on the type of cases the agency handles.” In addition, the comment also states: “An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer’s services or the right to settle the litigation the lawyer might wish to continue.
In some cases, a lawyer may need to advise a client that he may be better off with another lawyer rather than consent to continue with the legal services lawyer where those activities would be restricted either through funding or practice restrictions under Rule 1.2, 1.7(b), and 2.1.4
C. Caseload Maintenance and Lawyer Competence. Rule 1.1 requires a lawyer to provide competent representation. The official comment to Rule 1.1 requires adequate preparation and attention to the case being represented for the client. Rule 1.3, Diligence, requires a lawyer to act with reasonable diligence and promptness in representing a client. A lawyer must manage his caseload so as to provide competent representation, acting with reasonable diligence and promptness. This would require a legal services attorney to decline new cases if budget cutbacks and staff reductions prevent prompt and diligent work for a client.
D. Pre-Litigation Disclosures. A troublesome practice restriction in the legal services appropriation bill covers mandated pre-litigation disclosures. The legislation requires legal services lawyers, when filing a complaint, to identify each plaintiff by name and to prepare a statement of facts written in English or in a language the plaintiffs understand that enumerate particular facts known to plaintiffs on which the complaint is based, signed by the plaintiffs. The statement would be kept on file by the legal services organization and made available to any federal department or agency who is auditing or monitoring the activities of the legal services organization. There is an escape clause on the disclosure of the identity of the client in the complaint that permits the party to move the court to avoid disclosure of the identity of any potential plaintiff pending outcome of litigation or negotiations until after notice and an opportunity for a hearing is provided. ABA Formal Opinion 96-399 observed that these disclosures could conflict with the lawyer’s obligations under Rule 1.6, Confidentiality of Information. A lawyer is required to consult with such clients about these requirements and include the client’s right to refuse to reveal his identity. The lawyer cannot ask for a consent to limitation on representation if the representation from the client’s point of view would be compromised.
The lawyer must advise future clients that they may proceed anonymously if they are represented by a non-legal services funded lawyer. If court permission to proceed anonymously is denied under the escape provision, the lawyer cannot obtain a consent to proceed if the disclosure would adversely impact the client. Otherwise, the client can give his informed consent and continue litigation with disclosure of his name.5
Rule 1.6 does not permit a lawyer to make the statement of facts required by this legislation available to federal auditors without the client’s consent. Legal Services Corporation-funded lawyers must use the same kind of caution in obtaining these consents as they do with regard to revealing a client’s identity.6
Footnotes
1.ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 96-399 (1996); see also ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 347 (1981).
2.According to Toby Brown, Utah State Bar Statewide Pro Bono Coordinator.
3.Rule 1.16(a)(1); ABA Formal Opinion 96-399.
4. ABA Formal Opinion 96-399.
5.Id.
6.Id.