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. 13-03

UTAH STATE BAR

ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 13-03

Issued September 11, 2013


ISSUE

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

OPINION

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

FACTS

      3.   Lawyer has defended Client’s parental rights in child welfare proceedings.  Client has been found permanently criminally incompetent and was receiving extensive services through Division of Services for People with Disabilities (DSPD).  DSPD determined that Client has diminished capacity.  Lawyer has always been able to effectively communicate with Client and has defended Client’s parental rights in accordance with her wishes.  The State filed a Verified Petition for Termination of Parental Rights, and Lawyer represented Client at trial.  On four occasions—at the beginning of trial, during trial, and after the Court ruled to terminate Client’s parental rights—Lawyer advised Client of her right to an appeal and advised Client that she would be required to sign a Notice of Appeal.  On all four occasions, Client indicated she would refuse to sign anything but wanted to appeal.  Utah Code Ann. § 78A-6-1109 requires an appellant’s signature on every Notice of Appeal from a juvenile court order.  If the Notice of Appeal is submitted without signature, the appeal is dismissed and the appellant loses his or her right to the appeal.  Lawyer filed a Motion for Extension of Time and an Affidavit of Diligence and awaits a response from the Court.
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ETHICS ADVISORY OPINION No. 08-01

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

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

Ethics Advisory Opinion No. 06-03

Issued December 8, 2006
1. Issue:
Under what circumstances may a Utah lawyer be personally involved in a lending transaction to finance a client’s cause of action or obtain funds for the payment of the lawyer’s legal fees and expenses?

2. Conclusion: (a) A lawyer may not directly or indirectly represent a lender to the lawyer’s client in connection with a loan that is made for the purpose of enabling the client to pay the lawyer’s fees or costs. (b) A lawyer may not participate in a contingent, non-recourse loan with a third-party lender to finance the costs and expenses of litigation where the terms of the lending arrangement create the potential that the financial risk to the lawyer of the lending arrangement are lessened if the lawyer obtains no recovery for the client.
3. The Committee has received two separate requests regarding the propriety of financial transactions between Utah lawyers and third-party lending sources. Although the factual backgrounds are substantially different, they both raise similar questions concerning lawsuit funding for clients who may not be in a position to pay a lawyer’s ongoing fees or costs up front.
4. Background for EAOC File No. R0206: In the first situation, a Utah lawyer (“Lawyer”) has clients who cannot pay Lawyer’s retainer or flat fee because they do not have sufficient available cash on hand, although they are employed and could repay a loan over time. Lawyer proposes to organize and manage a consumer money-lending company (“Affiliated Lending”) as a limited liability company that would be capitalized and owned by Lawyer’s relatives. Affiliated Lending would be a manager-managed limited liability company (“LLC”), and Lawyer would be the sole manager of the LLC. Lawyer would review loan applications, initiate and service loans for Affiliated Lending. Lawyer also would receive compensation from Affiliated Lending for these services. Affiliated Lending would consider and make loans to the public, as well as to Lawyer’s clients. If the client were subsequently to default on a loan, any judicial collection action would be referred by Affiliated Lending (presumably acting through its manager-lawyer) to a third-party collection agency. Lawyer would never represent Affiliated Lending in pursuing a collection action against one of Lawyer’s clients.1
5. In referring clients to Affiliated Lending, Lawyer would explain potential conflicts of interest to the client in a written disclosure. This disclosure would explain that Affiliated Lending is owned by Lawyer’s relatives, that Lawyer manages Affiliated Lending, that the client has the right to have the arrangement reviewed by independent counsel, that there would be severe repercussions to the client if there is a default on a loan, and that a potential conflict could arise between Lawyer and the client if the client did default. The client would be required to sign this written disclosure before applying for a loan from Affiliated Lending. The loans would be made at or below market rates for comparable high risk, short-term loans.2
6. Analysis: The proposed lending-fee arrangement here places Lawyer in a dual relationship with conflicting loyalties. On the one hand, Lawyer owes a duty of loyalty to the client, while, at the same time, Lawyer owes a duty of loyalty to Affiliated Lending as its sole, managing employee. The relationship between Affiliated Lending and the client is adverse: Affiliated Lending is a creditor of the client. As such, Lawyer’s duties to both the client and Affiliated Lending are in conflict. More importantly, Lawyer’s dual loyalties make it difficult, if not impossible, for Lawyer to provide objective, unbiased advice and representation to the client where, by doing so, the interests of Affiliated Lending might be impaired, or the personal interests of Lawyer in Affiliated Lending might be adversely affected.
7. For example, Lawyer has an interest in causing Affiliated Lending to make a loan to the client that is sufficient to pay Lawyer’s fees, whereas it may not be prudent for Affiliated Lending to make such a loan, or for the client to obtain such funds on the terms offered. Lawyer’s personal interest in the loan proceeds also may taint the lawyer’s judgment in negotiating and documenting the loan. Further, Lawyer’s loan documents and credit negotiations with the client might be called into question if the client subsequently were to default on the loan.
8. Rule 1.6(a) 3 provides:
A lawyer shall not reveal information relating to the representation of a client, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).4
9. Comment [2] of this rule describes client confidentiality as a “fundamental principle in the client-lawyer relationship” and notes that the principle “contributes to the trust that is the hallmark of the client-lawyer relationship.” Comment [4] of Rule 1.6 further notes that “[t]his prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”
10. Here, information that Lawyer learns about the client may prejudice the client in either the negotiations to obtain the loan or in the lender’s efforts to collect the loan. If Lawyer were to withhold this information from the lender, Lawyer’s duty of loyalty to the lender likewise would be compromised. On the other hand, if Lawyer were to reveal sensitive information to the lender, then Lawyer’s duty of confidentiality to the client is compromised.
11. Rule 1.7 provides, in part:
(a) Except as provided in paragraph (b) a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: . . . .
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or another proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
(Emphasis added.)
12. As is made clear by Comment [1] of Rule 1.7: “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.” (Emphasis added.)
13. Further, Comment [8] of Rule 1.7 provides:
Even where there is no direct adverseness, a conflict of interest exists if there is a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. . . . The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
(Emphasis added.) And, as stated in Comment [9] of Rule 1.7, “a lawyer’s duties of loyalty and independence may be materially limited . . . by the lawyer’s responsibilities to other persons, such as fiduciary duties arising from a lawyer’s service as a trustee, executor or corporate director.”
14. Comment [13] of Rule 1.7 addresses the subject of third persons who pay for a lawyer’s service:
A lawyer may be paid from a source other than the client, including a co-client, if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty or independent judgment to the client. See Rule 1.8(f). If acceptance of the payment from any other source presents a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s own interest in accommodating the person paying the lawyer’s fee or by the lawyer’s responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting the representation, including determining whether the conflict is consentable and, if so, that the client has adequate information about the material risks of the representation.
(Emphasis added.)
15. Here, if the client defaults on the loan, Lawyer will be required to take certain steps on behalf of Affiliated Lending to collect the obligation. Those efforts will place Lawyer in an adverse position to the client, even if Lawyer is not directly involved in any judicial collection proceedings. For instance, prior to initiating a collection action, Affiliated Lending must give the client notice of default, make a demand for payment and, where appropriate, negotiate modified repayment terms with the client. Presumably, all of these activities will be conducted by Lawyer as the manager of Affiliated Lending. During these negotiations, Lawyer might still be representing the client. In addition, as the principal spokesperson for Affiliated Lending, it will be difficult, if not impossible, for Lawyer to represent Affiliated Lending adequately in its collection activities if Lawyer is not involved in reviewing and approving recommendations made by the third-party collection agency. Finally, if Lawyer is representing the client in a bankruptcy, Affiliated Lending’s loan will be directly affected by Lawyer’s services for the client.
16. Other services provided by Lawyer for the client also could affect Affiliated Lending. For example, if Lawyer is retained by the client to defend a criminal proceeding, the outcome of the criminal proceeding could affect the client’s ability to repay the loan, particularly if the client is incarcerated, required to pay a fine, or required to pay restitution to a victim. All of these situations place Lawyer in the untenable position of having divided loyalties between Lawyer’s client and Lawyer’s employer.
17. In the case before us, Affiliated Lending is not a client of Lawyer, but, as Lawyer’s employer, it is a “third person” to which Lawyer has duties and responsibilities and in which Lawyer has a familial, personal and financial interest. With such duties and responsibilities, the proposed arrangement compromises the loyalty and independent judgment of Lawyer to the client.
18. The appropriate inquiry is whether the arrangement would materially interfere with Lawyer’s independent professional judgment in considering alternatives, or foreclose courses of action that reasonably should be pursued on the client’s behalf.5 Violations commonly occur when Lawyer has a financial or proprietary interest that may be affected by the advice given to the client.6 Here, Lawyer has a direct financial interest in the client’s loan from the Lending Company, a familial interest in the owners of the Lending Company, and a personal interest in the future success of the Lending Company.
19. In addition, the prohibitions in Rule 1.8(a) and (b) may be implicated by the proposed arrangement. Lawyer has a close familial relationship with the owners of Affiliated Lending and is a key employee of the company. Under certain circumstances, the relationship between Lawyer and the lender may be so close as to blur the distinctions between Lawyer and the entity, especially in the mind of the client. In such circumstances, a lending arrangement like the one proposed may run afoul of Rule 1.8(a).7 Comment [1] of Rule 1.8 is instructive:
A lawyer’s legal skill and training, together with the relationship of trust and confidence between lawyer and client, create the possibility of overreaching when the lawyer participates in a business, property or financial transaction with a client, for example, a loan or sales transaction or a lawyer investment on behalf of a client. The requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation, as when a lawyer drafting a Will for a client learns that the client needs money for unrelated expenses and offers to make a loan to the client.
20. Comment [3] of Rule 1.8 further provides:
The risk to a client is greatest when the client expects the lawyer to represent the client in the transaction itself or when the lawyer’s financial interest otherwise poses a significant risk that the lawyer’s representation of the client will be materially limited by the lawyer’s financial interest in the transaction.
21. Thus, there is a clear conflict of interest under both Rules 1.7(a)(2) and 1.8(a). We next examine whether the facts permit the lawyer to seek the client’s “informed consent” to such a lending arrangement. Lawyer proposes to require that the client sign a written disclosure. This disclosure would explain the relationship between the lender and Lawyer, would advise the client of the right to have the arrangement reviewed by independent counsel, would explain the consequences to the client if there is a default on the loan, and would further explain that a potential conflict could arise between Lawyer and the client if the client defaulted on the loan.
22. Some conflicts cannot be waived because Lawyer’s personal interest in obtaining the waiver casts doubt about the effectiveness of the client’s consent and about the adequacy of the information provided by Lawyer to the client in seeking the consent.8
23. “Informed consent” is defined in Rule 1.0(f) as denoting “the agreement of a person to a proposed course of conduct after Lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of action.” If the client is asked to consent to a possible future conflict, the effectiveness of a waiver is generally determined by the extent to which the client reasonably understands the material risks that the waiver entails.9
24. Here, Lawyer is employed by the debtor-client’s lender, earns a fee for services performed for the lender in making a loan to the client and also has a personal interest in both the lender and in the loan proceeds. We conclude that this combination of conflicts is so problematic that a lawyer could not “reasonably believe[ ] that the lawyer [would] be able to provide competent and diligent representation to [the] client.”10
25. For the reasons stated above, the proposed funding arrangement creates a nonconsentable conflict of interest under Rule 1.7.
26. Background for EAOC File No. R0506: In the second situation, a Utah lawyer proposes to borrow money in the form of a contingent, non-recourse loan from an independent third-party lending company (“Third-Party Lender”) for the purpose of financing the costs and expenses of litigation. The client is not a party to the agreement and the client gives written informed consent to the arrangement. Before the loan is approved, the lawyer is required to sign a litigation-funding agreement (“Agreement”) that contains carefully structured provisions to avoid conflict with Rule 1.6 (Confidentiality of Information) and Rule 1.8 (Conflict of Interest). The essential terms of the agreement are:
* Funding fee options. The lawyer can borrow up to 80% of the litigation costs from Third-Party Lender. If the lawyer is successful and receives a recovery for the client, the lawyer is obligated to repay to the Third-Party Lender the lesser of the funding or the recovery, plus an additional funding fee. The funding fee is calculated using one of three options available to the lawyer. Under Option 1, the funding fee is equal to the amount of the funding advanced (i.e., the equivalent of 100% return on the funding 11). Under Option 2, the funding fee is equal to a percentage of the funding that depends on when the recovery is obtained (85% of the funding if the recovery is obtained within 24 months, ranging to 125% of the funding if the recovery is obtained after 36 months). Under Option 3, the funding fee is a negotiated percentage (e.g., 5%) of the net recovery (gross recovery minus litigation expenses), subject to a negotiated cap on the funding fee expressed as a multiple of the funding advanced (e.g., 5 times the funding). 12
* The client is not a party to the Agreement. The only parties to the Agreement are Third-Party Lender and the lawyer. However, the lawyer must provide the client with reasonable and adequate information about the material risks and reasonable alternatives to entering into the Agreement.
* The client must sign a disclosure and consent form. Before the lawyer may enter into a contract with Third-Party Lender, the lawyer is required to disclose fully the lending arrangement to the client, and the client must give written consent to the Agreement.
* There is no expressed security interest in lawyer’s fees or client recovery. Third-Party Lender requires that lawyer establish a bank account at Third-Party Lender’s bank to be utilized by Third-Party Lender for funding advances for the borrowing lawyer and by lawyer for making payments to Third-Party Lender. Third-Party Lender is granted a security interest in this account. Third-Party Lender’s conditional right to payments under the Agreement is not secured by any lien, security interest or assigned interest upon or in any funds held by the borrowing lawyer in any other account, the lawyer’s interest in the contingent fee agreement with the client, or any funds held by the client. The lawyer, however, agrees upon a recovery to “subordinate” the lawyer’s right to repayment by the client of costs advanced directly by the lawyer for the client, to Third-Party Lender’s right to repayment of the funding and the funding fee.13
* Repayment is contingent only upon recovery. If the borrowing lawyer does not obtain any recovery for the client in the case, then the lawyer owes nothing and is not obligated to pay any amounts advanced by Third-Party Lender.
* Lawyer will not pass Third-Party Lender’s fees to client. The fee for the funding that is owed to Third-Party Lender by the lawyer may not be passed on to the client in any way, nor can the lawyer charge a different fee to the client based upon the fact that the client’s case is being funded. The client will also not be held responsible for paying any funding fees owed by the lawyer to Third-Party Lender.
* No solicitation of clients. Third-Party Lender will have no involvement in soliciting, obtaining or referring any client or in the lawyer’s decision to file suit on behalf of the client.
* Lawyer has involvement, interest, and control of litigation. Third-Party Lender will exercise no control or influence on the lawyer’s handling of the case or on any decision that requires the exercise of the professional judgment of the lawyer.
* Client confidentiality is addressed. Third-Party Lender will require the lawyer to provide to Third-Party Lender limited information about the client or case for the purpose of processing the funding requests, but only with the written consent of the client. This information would include monthly expense statements, copies of pleadings in the case, agreements between the lawyer and the client regarding payment of legal fees and expenses, and a signed statement by the client at the end of the case verifying the total expenses incurred. Although the Third-Party Lender retains the right to audit the litigation expenses of the lawyer, the Third-Party Lender may not obtain information relating to the representation beyond that authorized by the client.
27. Analysis: The Committee addressed third-party lending agreements in two previous opinions. In Opinion 97-11,14 we considered whether a lawyer could finance the expected costs of a case by borrowing money from a third-party lender pursuant to a non-recourse promissory note, where the note was secured by the lawyer’s interest in a contingent fee in the case. In that opinion, we did not approve of the non-recourse loan and concluded that because a security interest in the recovery of contingent fees from a particular case was to be granted, Rule 5.4 15 was implicated. We stated: “Upon that grant, Lender has an interest in the attorney’s contingent-fee award, which Lender has the right to attach upon a default in payment on the loan.”16 Accordingly, the lawyer’s grant of a security interest in a contingent fee to secure a loan constituted the sharing of fees with a non-lawyer in violation of Rule 5.4(a).
28. In contrast, the Committee has approved a third-party lending agreement involving a low-interest, recourse loan to the lawyer who used the potential fees from the case as collateral. In Opinion 02-01, we concluded that the proposed financial arrangement did not have the objectionable features found in Opinion 97-11:
Here, the lending institution has no interest in the lawyer’s contingent-fee award because, under the separate loan agreement between the lawyer and the lender, the lawyer is obligated to repay the loan whatever the outcome of the case. Because this obligation is not contingent, the lawyer is not compromised, as was the lawyer under the arrangement described in Opinion 97-11. Similarly, in this case, the client, by separate agreement, remains obligated to the lawyer for the payment of litigation costs. The lawyer is not compromised because the client’s obligation is not contingent upon the outcome of litigation. The arrangement described above simply makes it easier for clients and attorneys to finance litigation and is mutually beneficial to both.17
29. The requestor here contends that, because Third-Party Lender will not receive a security interest in the client’s recovery or in the lawyer’s contingent fee, Opinion 97-11 is not applicable. However, in light of Opinion 02-01, ethical issues regarding the lawyer’s professional independence of judgment are not so easily satisfied. The Agreement provides Third-Party Lender with a return of the amount funded, but not to exceed the recovery, plus a funding fee based on the amount funded 18 if the lawyer receives a recovery for the client. If the lawyer receives no recovery for the client, the non-recourse nature of the loan absolves the lawyer of any liability to repay the amount funded or to pay a funding fee. The economic aspects of the Agreement may impair the lawyer’s independence of judgment and may materially limit the lawyer’s representation of the client. Similar impairments and limitations were the thrust of the Committee’s conclusion in Opinion 02-01.
30. For example, assume the lawyer funds litigation costs of $100,000 under a net-recovery contingent fee of one-third, 19 borrowing $80,000 from Third-Party Lender under Option 1, and obtaining a recovery of $100,000 for the client. The lawyer would be obligated to pay Third-Party Lender the original $80,000, plus the funding fee of the same amount, for a total of $160,000. This would result in a net, out-of-pocket loss to the lawyer of $80,000, for which the client would have no liability. 20 More significantly for our analysis, $60,000 of the out-of-pocket loss to the lawyer is avoided under the Agreement if there is no recovery by the client. The outcome is similar under Option 2. 21
31. Rule 1.7 is implicated by such an arrangement, as is made clear by Comment [1] to the rule, “Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyer’s own interests.” (Emphasis added.) Comment [10] to Rule 1.7 further states, “The lawyer’s own interests should not be permitted to have an adverse effect on representation of the client.” We must examine whether the lawyer’s potentially large debt obligation in this arrangement would have an adverse effect on his representation of the client.
32. Rule 1.5 is also implicated by the proposed funding arrangement: “(a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee, or an unreasonable amount for expenses.” Comment [5] of Rule 1.5 further provides: “An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client’s interest.”
33. Because under Options 1 and 2 the payment of the funding fee is the personal obligation of the lawyer and is based on the amount funded and not on the amount of the recovery ultimately obtained, there is potential that the lawyer will have financial incentives that are, or may be, adverse to the client’s best interests. First, the lawyer has an incentive to set a very high percentage retention to the contingent-fee arrangement with the client, which, in turn, might be “unreasonable” under Rule 1.5.
34. Second, even if the contingent fee is reasonable, a lawyer who participates in a nonrecourse, contingent loan will be vulnerable to several potential ethical dilemmas. The lawyer’s personal financial obligations to Third-Party Lender potentially could place the lawyer’s financial interests in conflict with the client’s interests and affect the exercise of the lawyer’s independent judgment on behalf of the client, especially in situations where the lawyer learns during the course of the case that the amount of the potential recovery is likely to be small. 22 It is possible that the amount of the funding and funding fee owed to Third- Party Lender, which is a personal obligation of the lawyer, might exceed the lawyer’s contingent fee interest in the recovery. 23 The lawyer could be faced with the unusual predicament of being tempted to intentionally abandon the case or lose the case at trial to circumvent the personal financial consequences from receiving insufficient recovery.
35. Option 3 may not create the same potential that the lawyer is advantaged by obtaining no recovery for the client in a case where an insubstantial recovery is probable. Under Option 3, the funding fee that is the personal obligation of the lawyer is not based on the amount funded, but is based on the net recovery (gross recovery minus litigation expenses). Assuming that the funding recoverable by the Third-Party Lender under Option 3 is the lesser of the amount funded or the recovery (as it is under Options 1 and 2), it is mathematically impossible for the lawyer to be able to reduce the lawyer’s losses by obtaining no recovery for the client. This is because the funding fee, being a percentage of the net recovery, does not become a positive number until the gross recovery exceeds the funding plus the litigation expenses directly paid by the lawyer. 24
36. Rule 1.7(a)(2) states that a lawyer has a concurrent conflict of interest if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to a third party Lender or by the personal interest of the lawyer. We conclude that under Options 1 and 2, the lawyer’s personal interest involving the potentially large funding and funding fee payment obligations combined with the potential that the financial risk to the lawyer of the lending arrangement is lessened if the lawyer obtains no recovery for the client, present a significant risk of compromising the lawyer’s ability to provide independent counsel and of materially limiting the lawyer’s representation of the client. We conclude that when a lawyer may have a financial incentive under the terms of a lending arrangement to obtain no recovery for the client, that the conflict of interest is not consentable. 25 The lawyer’s original analysis of the case may be that such a risk is not “material” and that, should the analysis of the case change at a later time, the conflict analysis would be re-visited. But, we think that is an unrealistic view of the dynamic of such a contingent-fee case. As the probability of a large recovery might diminish over time to a point where the lawyer’s interests become significantly different from the client’s, there will be no light bulb that goes on in the attorney’s head to induce a reassessment of the conflict. 26 We conclude that the overall framework of Options 1 and 2 of the litigation-funding Agreement presents a conflict of interest to which the lawyer may not seek the client’s consent.
37. Option 3 of the litigation-funding Agreement does not present the potential that the lawyer will have a financial incentive not to obtain a recovery for the client. However, Option 3 of the litigation funding Agreement does involve a non-recourse loan and such arrangements do create a significant risk of compromising the lawyer’s duty of independent judgment and duty of client loyalty. 27 Therefore, Option 3 creates a conflict of interest under Rule 1.7 (a) (2), but this conflict of interest may be consented to by the client.
38. Accordingly, a lawyer may not participate in Options 1 or 2 of the contingent, non-recourse loan program described, because the representation will create a significant risk that the representation of the client will be materially limited by the personal interest of the lawyer, who has the potential to reduce the financial risk of the loan program to the lawyer by obtaining no recovery for the client. A lawyer may ethically participate in Option 3 of the contingent, non-recourse loan program described, if the lawyer complies with Rule 1.7 (b) and obtains the informed consent of the client, confirmed in writing.
Footnotes
1. We assume, however, that, as the manager of Affiliated Lending, Lawyer would be the principal contact person for the third-party collection agency and would be involved in, or would at least review and approve, decisions about how to prosecute and collect the defaulting client’s loans.
2. Typically, this type of arrangement would be used in representing clients where large up-front fees are required, such as bankruptcies, defense of criminal matters and the like.
3. All citations to the “Rules” in this opinion are to the Utah Rules of Professional Conduct, adopted November 1, 2005, by the Utah Supreme Court.
4. None of the exceptions stated in Rule 1.6(b) are applicable to these questions.
5. See also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 121 cmt. c(ii) (2000); see, generally, GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING § 11.8 et seq. (3d ed. 2001).
6. See In re Bond, 723 N.Y.S.2d 811 (App. Div. 2001) (conflict of interest when lawyer arranged loan from his wife and mother to clients to enable them to avoid foreclosure action).
7. Rule 1.8(a) provides:
A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
8. The recent case of In re McGregory, Docket No. 05-6054EM (Bankr. 8th Cir., March 24, 2006), is a good example of the application of this principle. In McGregory, a lawyer for a Chapter 13 debtor also was employed as a “home mortgage consultant” for a bank. In this capacity, the lawyer arranged home mortgages for Chapter 13 debtors to enable them to refinance their existing home loans, reduce the interest rates on their mortgages and obtain additional cash from the equity in their homes. While representing a Chapter 13 debtor, and with the written consent of the debtor, the lawyer arranged for such a loan from the bank. The loan benefitted the debtor by reducing the debtor’s mortgage interest rate, reduced the debtor’s monthly mortgage payments and generated sufficient cash to make a full payment to the debtor’s unsecured creditors. Nevertheless, the Bankruptcy Court found the lawyer had an impermissible conflict of interest in representing the debtor while being employed by the debtor’s lender, and the 8th Circuit affirmed: “[T]his type of dual representation, particularly in the bankruptcy context, presents such an inherent and impermissible conflict that it cannot be waived.” Id. at 8.
9. See Rule 1.7, cmt. [22].
10. Rule 1.7(b)(1) and cmt. [2], cl. 3).
11. In light of the risks to Third-Party Lender, a yield equal to 100% or more on the loan may not be unreasonable in the commercial marketplace. We make no comment on the commercial propriety of the funding fees charged by Third-Party Lender.
12. The third option was not included in the sample Agreement submitted by the requestor. Our understanding of Option 3 is based on the narratives provided by the requestor. We have assumed that under Option 3, as under Options 1 and 2, the amount of the funding recoverable by the Third-Party Lender from the lawyer cannot exceed the recovery.
13. If and to the extent that this arrangement gives Third-Party Lender a priority (vis-a-vis general creditors of the lawyer) in the lawyer’s rights to recovery from the client of the portion of the litigation expenses funded directly by the lawyer (i.e., the 20% or more of the litigation expenses the Third-Party Lender does not fund), then this arrangement may violate Rule 5.4(a), Utah Rules of Professional Conduct, as explained in Utah Eth. Adv. Op. 97-11, 1997 WL 770890 (Utah St. Bar). Given the Committee’s disposition of this request under Rule 1.7 of the Utah Rules of Professional Conduct and the lack of details regarding this “subordination” in the request, the Committee expresses no opinion on whether costs should be afforded different treatment than fees under Rule 5.4(a) and our Opinion 97-11, or on whether this arrangement violates Rule 5.4(a).
14. Utah Eth. Adv. Op. 97-11, 1997 WL 770890 (Utah St. Bar).
15. Rule 5.4(a) provides that a lawyer or a law firm “shall not share legal fees with a non-lawyer”, except under the limited circumstances authorized in the Rule.
16. Id. 14.
17. Utah Eth. Adv. Op. 02-01, at 6, 2002 WL 231939 (Utah St. Bar).
18. The amount of the yield to the lender is irrelevant to the ethical implications of this arrangement.
19. “Net recovery” here means that the client is obligated to repay the costs advanced by the lawyer dollar for dollar from any recovery (but no more than the recovery), with the remainder—the net— subject to the contingent-fee percentage.
20. The lawyer’s contingent fee in this example is $0: (100,000 recovery – 100,000 in costs) x 1/3 = $0. The lawyer’s out-of-pocket loss is ($20,000 of costs funded directly by Lawyer + $160,000 repayment obligation to Third-Party Lender) – 100,000 cost recovery = $80,000 loss. Of this $80,000 loss, $60,000 can be avoided by the lawyer under the Agreement if there is no recovery by the client.
21. Assume Option 2 is selected by the lawyer, and the recovery occurs in the 38th month. The lawyer’s out-of-pocket loss is $100,000. The lawyer is obligated to repay Third-Party Lender the funding of $80,000, plus a funding fee of $100,000 (1.25 x 80,000), for a total of $180,000. The lawyer has also directly funded $20,000 of costs. The total costs to the lawyer of $200,000 minus the $100,000 cost recovery results in a $100,000 net loss to the lawyer. Of this net loss, $80,000 can be avoided under the Agreement if there is no recovery by the client.
22. At inception of the lending arrangement, the lawyer presumably believes that the anticipated recovery would justify the associated loan costs. As the case progresses, however, the likelihood and amount of the recovery may diminish. Nevertheless, the lawyer’s obligation to the lender remains the same.
23. In the above example using Option 1 and $100,000 in litigation costs, assume the actual recovery to be $250,000 and that the lawyer took the case on a ? contingent-fee basis calculated on net recovery. The lawyer would still be out-of-pocket a net $30,000: ($250,000 recovery – $100,000 in costs) ? ? = $50,000 contingent fee to the lawyer, or $30,000 less than the lawyer’s net obligation to Third-Party Lender of $60,000 plus the lawyer’s direct payment of costs of $20,000. Of this $30,000 loss, the Lawyer avoids $10,000 of the loss if there is no recovery by the client.
24. Assume Option 3 is selected and the lawyer negotiates a funding fee of 5% of the net recovery (gross recovery minus litigation expenses), subject to a cap of 5 times the funding. Using the hypothetical of a $100,000 recovery with $100,000 of litigation expenses, the lawyer’s out-of-pocket loss is $0. The lawyer is obligated to pay Third-Party Lender the funding of $80,000, plus a funding fee of $0: ($100,000 gross recovery – 100,000 total costs) x .05 = $0. The lawyer has directly paid $20,000 of costs. The total costs to the lawyer is $100,000, equal to the $100,000 cost recovery, resulting in $0 loss to the lawyer. If the recovery is reduced to $50,000, the lawyer’s out-of-pocket loss is $20,000: (funding of $50,000 owed to the Third-Party Lender + funding fee of $0 + $20,000 of costs directly paid by lawyer) – $50,000 cost recovery = $20,000 net out-of-pocket loss. Lawyer cannot, however, avoid any portion of this net out-of-pocket loss by obtaining no recovery for client.
25. Under these circumstances, the lawyer can not reasonably believe that the lawyer will be able to provide competent and diligent representation to the affected client. See, Rule 1.7(b)(2).
26. Even if that did happen and the lawyer concluded that a nonconsentable conflict had arisen, the prejudice to the client of withdrawing at such a point would be unacceptable.
27. Utah Eth. Adv. Op. 97-11, 1997 WL 770890 (Utah St. Bar); Utah Eth. Adv. Op. 02-01, at 6, 2002 WL 231939 (Utah St. Bar).

Ethics Advisory Opinion No. 06-05

Issued December 30, 2006
1 Issue:
Do the Utah Rules of Professional Conduct1 preclude a lawyer from participating in an ad hoc legal advisory group to a private, nonprofit, public interest legal organization, if the persons served by the legal services organization have interests adverse to the interests of a client of the lawyer or the lawyer’s law firm?

2 Conclusion: Generally, no. Rule 6.3, with respect to legal services organizations, and Rule 6.4, with respect to organizations involved in the reform of law or its administration, provide that service as an officer or director of such organizations or membership in such organizations does not by itself create an attorney-client relationship with the organization or the organization’s clients. These rules do require that a lawyer be observant of the lawyer’s duties under Rule 1.7 to the lawyer’s clients and to the clients of the lawyer’s firm. Rule 6.3 requires that the lawyer not knowingly participate in a decision of the organization that are incompatible with the lawyer’s obligations under Rule 1.7 or that could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer or on the representation of a client of the lawyer or the lawyer’s firm. Rule 6.4 requires that when the lawyer knows a client of the lawyer may be materially benefited by a decision of the law reform organization, that the lawyer-member disclose this fact to the organization. Under some circumstances, a lawyer’s participation on an ad hoc litigation advisory group may create an attorney-client relationship with the organization or the organization’s clients requiring the lawyer to comply with Rules 1.6, 1.7 and 1.9 before representing or continuing to represent clients adverse to the interests of the organization or the organization’s clients in such matters.
3 Background: The legal services entity requesting this opinion defines itself as a private, nonprofit, public interest organization. The organization’s mission is to enforce and strengthen laws that protect the opportunities, choices and legal rights of certain disadvantaged people in Utah. The organization provides free legal services to such individuals.
4 In an effort to improve services and provide the best legal representation possible, the organization’s board of trustees proposes to establish an ad hoc litigation advisory group consisting of experienced and knowledgeable private attorneys. This advisory group of pro bono attorneys would be called upon from time to time to answer questions and provide advice on various issues that arise as the organization represents various clients. The organization anticipates most questions would be procedural in nature or would involve general litigation strategy issues.
5 In the process of establishing the litigation advisory group, questions have arisen about possible conflicts between the interests of clients of advisory group members or their law firms and the organization and/or the organization’s clients. Specifically, the organization has asked whether Rules 6.3 or 6.4 of the Utah Rules of Professional Conduct apply to members of a litigation advisory group, and if so, under what circumstances the lawyer-members who represent clients or whose law firms represent clients with interests adverse to the organization’s clients could nonetheless serve on the advisory group.
6 Analysis: The most relevant rules at issue are Rule 6.3 and Rule 6.4. Rule 6.3 provides:
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) If participation in the decision would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or
(b) Where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer or on the representation of a client of the lawyer or the lawyer’s firm.
Rule 6.4 provides:
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefited by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
7 The term “legal services organization” in Rule 6.3 is undefined. Rule 7.5(a) is the only other rule to use the phrase “legal services organization,” and the word “charitable” is added in that rule as a preceding adjective. From this choice of language, we conclude that a “legal services organization” may include entities other than pro bono organizations, but it certainly includes the organization requesting this opinion and similar organizations that provide legal services for indigents.2
8 The phrase “organization involved in reform of the law or its administration” in Rule 6.4, like the phrase “legal services organization” in Rule 6.3, is not defined. Yet, the ABA annotations to both rules make it clear that the entities the rules cover include those that participate in activities for improving the law, the legal system or the legal profession. “What Rule 6.3 does for lawyers serving on boards of legal services organizations, Rule 6.4 does for lawyers serving on the board of ‘law reform organizations’.”3
9 Both Rules 6.3 and 6.4 use the phrase “director, officer or member” to describe those participating lawyers expressly covered under the rule. The official comments to these rules are similarly focused on “lawyers serving on boards.” Because the terms “director, officer or member” and “board” are not defined, the question arises whether a member of a litigation advisory group, such as that described by the legal services organization requesting this opinion, falls within the ambit of the rules’ protection for directors, officers or members. From the ABA annotation and commentary on each rule, we conclude that, consistent with the intent of both rules, litigation advisory group members have the same status as a “director, officer or member.”
10 For example, comment [1] of Rule 6.3 states that, “Lawyers should be encouraged to support and participate in legal service organizations.”4 The ABA annotations to the Rules further stress that the Rules should be construed “to promote this kind of service.”5 Encouragement of lawyer participation would be undermined if the protections afforded lawyers serving on boards or afforded to officers and members were not likewise inclusive of members of advisory groups, including litigation advisory groups.
11 Rule 6.3 contemplates that the legal services organizations to which it pertains serve persons whose interests may be adverse to the interests of clients served by the lawyer-member or the lawyer-member’s law firm. The rule and its comments make clear that the lawyer’s membership in the organization or service as an officer or director of the organization does not itself create an attorney-client relationship between the lawyer and the organization or between the lawyer and those persons served by the organization. To encourage lawyer participation in legal services organizations, the rule limits the circumstances under which such participation will disqualify a lawyer or the lawyer’s firm from representation of clients with interests adverse to the interests of the organization or adverse to the interests of the persons served by the organization.6
12 Rule 6.3 provides, however, that a lawyer may not knowingly participate in a decision or action of the organization (a) if such participation “would be incompatible with the lawyer’s obligations to a client under Rule 1.7,” or (b) if the decision would have a material adverse affect (i) “on the representation of a client of the organization whose interests are adverse to a client of the lawyer” or (ii) the representation of a client of the lawyer.7 Rule 6.3 teaches that a lawyer-member of a legal services organization may avoid the potential conflicts of interest that may arise from these circumstances by not participating in such decisions or actions.
13 The words “participate in an action or decision” as used in Rule 6.3 are also undefined, but, in context, we conclude that they mean the lawyer cannot knowingly discuss, recommend, advocate or vote upon any matter that conflicts with the lawyer’s duty of loyalty under Rule 1.7 or duty of confidentiality under Rule 1.6 to the clients of the lawyer and the lawyer’s firm. Rule 6.3(a) uses the words “would be incompatible.” Rule 6.3(b) uses the words “could have a material adverse effect.” The rule thus applies to potential conflicts of interest as well as actual conflicts. Therefore, when the lawyer knows that an actual or potential conflict exists between the interests of the organization or the organization’s clients and the interests of the clients of the lawyer or the lawyer’s firm, the litigation advisory group member should recuse himself from any discussion of the matter.8
14 Legal services organizations and the person served by legal services organizations frequently engage legal counsel. Such legal counsel may also be members, officers or directors of the organization. Rule 6.3 does not preclude the formation of an attorney-client relationship between such a lawyer and the organization or between such a lawyer and the organization’s clients. In these circumstances, the lawyer may not represent the organization’s interests or the interests of the person served by the organization adverse to the interests of the clients of the lawyer or the lawyer’s firm without complying with Rules 1.6, 1.7 and 1.9.
15 A lawyer in the capacity of a member of a litigation advisory group to a legal services organization consulted by the organization regarding legal advice and strategy in specific legal matters may be reasonably perceived by the organization as being its lawyer with respect to the matter. Rule 6.3’s protections against disqualification of the lawyer and the lawyer’s firm from representing clients with interests adverse to the organization’s interests in such matters or adverse to the interests of the persons served by the organization in such matters would no longer be applicable. The lawyer will, in such circumstances, establish an attorney-client relationship with the organization or the organizations clients.9
16 Participation by the lawyer in the litigation advisory group that is in the nature of recommending general policies or procedures for the conduct or administration of litigation by the organization or recommending general strategy for the organization’s use of litigation to accomplish the goals of the organization or its clients would not reasonably appear to create an attorney-client relationship between the organization and the lawyer or between the organization’s clients and the lawyer. To the extent that the litigation advisory group is intended to (a) review the facts and pleadings in specific legal matters and to advise the organization or its clients regarding the legal rights of those clients in such specific matters, and (b) recommend legal strategy to advance those rights in such specific legal matters, the lawyer’s participation will likely exceed the participation of a director, officer or member intended for protection by Rule 6.3. Members of a litigation advisory group providing such services may create an attorney-client relationship with the organization or its clients that would require that the lawyer comply with Rules 1.6, 1.7 and 1.9 before the lawyer or the lawyer’s firm could represent clients with interests adverse to the interests of the organization or the interests of the organization’s clients in such matters.10
17 Comment [2] to Rule 6.3 cautions legal services organizations that in appropriate cases it may be necessary that the organization’s clients be assured that their representation will not be adversely affected by conflicting loyalties of a member, officer or director of the organization.11 The comment encourages legal services organizations to adopt written policies to enhance the credibility of such assurances.
18 The comments to Rule 6.3 do not suggest specific appropriate client assurances or policies the organization could implement. The ABA commentary on Rule 6.3 of the Model Rules of Professional Conduct provides:
When a lawyer who serves on an organization’s board is representing a client, and finds that a particular organizational action or decision would be incompatible with the lawyer’s obligations to the client under Rule 1.7 [Conflict of Interest: Current Clients] the lawyer simply is not allowed to participate in that action or decision.12
It would be appropriate for the legal services organization to adopt written policies requiring the organization’s advisory group members to identify those decisions or actions coming before the group that would or could conflict with the lawyer’s duties to an existing client. In such circumstances, it would be appropriate for the organization’s written policies to require that the lawyer disqualify himself from participation in the appropriate organization action or decision.
19 From the facts submitted to us, the legal services organization may also constitute “an organization involved in the reform of the law or its administration” under Rule 6.4. Unlike Rule 6.3, which contemplates the organization will have clients served by the organization, Rule 6.4 does not contemplate that the organization serves clients. Rule 6.4 does not address the concern that the interests of the persons served by the organization may conflict with the interests of a client of the lawyer. Rather, Rule 6.4 addresses the concern that the interests of the lawyer’s clients may be affected by the law reform activities of the organization.
20 As under Rule 6.3, Rule 6.4 and its comment make clear that the lawyer’s participation in the law reform organization as a director, officer or member does not by itself create an attorney-client relationship with the organization.13 Therefore, even though the law reform activities may adversely impact a client, the lawyer’s participation will not normally violate Rule 1.7. However, the Comment [1] to Rule 6.4 makes clear that under certain circumstances the lawyer’s participation in the law reform organization may violate Rule 1.7: “In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other rules, particularly Rule 1.7.”
21 Under Rule 1.7(a)(2), a lawyer may have a conflict of interest arising from participation in a law reform organization where the lawyer does not represent the organization, if the lawyer’s duties to the organization as a “third party” or the lawyer’s “personal interest” creates a significant risk that the lawyer’s representation of his or her clients may be materially limited. Rule 6.4 also requires a lawyer participating in a law reform organization to disclose to the organization if the lawyer knows that the interests of a client of the lawyer may be materially benefited by a decision of the organization in which the lawyer participates. Such disclosures are required to protect the integrity of the law reform program.14
22 Service on a litigation advisory group to a law reform organization may also involve specific legal advice to the organization about specific litigation, for example, legal advice in a lawsuit challenging the constitutionality of a statute. Such participation in a law reform organization may result in an attorney-client relationship between the lawyer and the organization. Under such circumstances, the lawyer could not represent clients with interests adverse to the organization’s interests in such matters without complying with Rules 1.6, 1.7 and 1.9.
Footnotes
1. Unless otherwise indicated, all references to the “Rules” in this opinion are to the Utah Rules of Professional Conduct, effective November 1, 2006.
2. See ABA, ANN. R. PROF. CONDUCT 520 (5th ed.) (2003).
3. Id. at 523.
4. Rule 6.3, cmt. [1].
5. ABA, ANN. R. PROF. CONDUCT 520.
6. Comment [1] to Rule 6.3 states: “A lawyer who is an officer or a member of such an organization does not thereby have a client-lawyer relationship with persons served by the organization. However, there is potential conflict between the interests of such persons and the interests of the lawyer’s clients. If the possibility of such conflict disqualified a lawyer from serving on the board of a legal services organization, the profession’s involvement in such organizations would be severely curtailed.”
7. Under Rule 1.10, a lawyer should not participate in a decision that could have a material adverse effect on the representation of a client by the lawyer’s firm.
8. In such instances the lawyer’s obligation to recuse himself is a personal conflict of interest.
9. The lawyer’s participation on the litigation advisory group may also under limited circumstances create an attorney-client relationship with the persons served by the organization. If a litigation advisory group member met with the organization’s clients and offered legal advice or recommended legal strategies with respect to a specific legal matter, the lawyer may reasonably be perceived by the organization’s clients as their lawyer with respect to the matter. Normally, however, direct contact between the litigation advisory group member and the organization’s client would be required to form an attorney-client relationship.
10. We assume for purposes of this Opinion that the members of the litigation advisory group are not subject to the protections of Rule 6.5 of the Utah Rules of Professional Conduct, which applies to short-term limited legal services provided under the auspices of programs sponsored by a nonprofit organization or a court.
11. “It may be necessary in appropriate cases to reassure a client of the organization that the representation will not be affected by conflicting loyalties of a member of the Board. Established, written policies in this respect can enhance the credibility of such assurances.” Rule 6.3, cmt. [2].
12. ABA, ANN. R. PROF. CONDUCT 520.
13. The comment to Rule 6.4 provides:
Lawyers involved in organizations seeking law reform generally do not have a client-lawyer relationship with the organization. Otherwise, it might follow that a lawyer could not be involved in a bar association law reform program that might indirectly affect a client. For example, a lawyer specializing in antitrust litigation might be regarded as disqualified from participating in drafting revisions of rules governing that subject. In determining the nature and scope of participation in such activities, a lawyer should be mindful of obligations to clients under other rules, particularly Rule 1.7. A lawyer is professionally obligated to protect the integrity of the program by making an appropriate disclosure within the organization when the lawyer knows a private client might be materially benefited.
14. It is noteworthy that Rule 6.3 requires the lawyer to be recused and not participate in certain decisions and actions of the legal services organization. Rule 6.4 permits a lawyer to participate in a decision of the law reform organization that benefits the lawyer’s client, if the lawyer discloses this fact.

Ethics Advisory Opinion No. 05-01

April 28, 2005
1 Issue:
A former client of an attorney moved the trial court to set aside the former client’s previous guilty plea on the basis that the attorney’s prior advice on accepting the prosecution’s plea offer had “confused” him. May the attorney testify concerning the previous discussions with the former client to prevent a possible fraud upon the court or to protect the attorney’s good name and reputation?

2 Opinion: Absent a court order requiring the attorney’s testimony, and notwithstanding a subpoena served on the attorney by the prosecution, the attorney may not divulge any attorney-client information, either to the prosecution or in open court.
3 Facts: The client hired the attorney (the “reviewing attorney”) for the limited purpose of reviewing and advising about a plea offer made by the prosecution to the client in a matter where the client had been charged with a first-degree felony. The client had retained another attorney to represent him at trial (“trial attorney”) for the purpose of entering a guilty plea. The client subsequently moved to set aside the plea of guilty, asserting that he had become “confused” in his discussions with the reviewing attorney, and that the confusion resulted in an improvident entry of a plea of guilty.
4 The prosecution subpoenaed the reviewing attorney to testify regarding the issue of the scope and substance of the attorney’s representation. The reviewing attorney desires to testify, believing that the client may commit a fraud upon the court by misrepresenting their relationship and the advice given. The attorney also wishes to defend and maintain her good name and reputation if the matter is to be heard in open court. The former client has refused to waive his attorney-client privilege, indicating he intends to assert the privilege fully to bar the attorney’s testimony.
5 May the attorney testify regarding matters within the scope or substance of the attorney’s representation? May the attorney discuss the nature of anticipated testimony out of court with the prosecutor?
6 Analysis: The reviewing attorney’s inquiry presents two issues. The first relates to the subject of testimony in a judicial setting and involves the attorney-client privilege under Rule 504(b) of the Utah Rules of Evidence. 1 The question of what an attorney may testify to, or be compelled to testify to, in obedience to a court order is established by an exception to the privilege, either as stated in the evidentiary rules or by judicial precedent. When a former client objects in a judicial proceeding to disclosure of privileged material or information, the decision regarding what the attorney may reveal is one for the court.
7 The second issue relates to the attorney’s ethical requirement of client confidentiality pursuant to the Utah Rules of Professional Conduct, which is a separate and independent obligation. The attorney’s obligation of client confidentiality pursuant to Utah Rule of Professional Conduct 1.6 and loyalty to a former client pursuant to Rule 1.9 must be considered by the attorney in the determination of whether any disclosures may be made to the prosecution during trial preparation. Although there are some similarities between the two principles, they are not the same and should not be confused. 2
8 We have previously made clear that the attorney-client relationship is established when a party seeks and receives the advice of an attorney, regardless of the brevity of the conversation, whether a fee was charged or a contract of employment executed between them, or whether the conversation was in person or by telephone. The fact that advice and assistance are sought and the attorney agrees to represent the client fully suffices to establish the relationship. 3
9 We have also previously dealt with the somewhat related question of the ethical obligations of an attorney who, without prior warning, hears his client commit perjury or otherwise materially mislead a tribunal. 4 However, we have not addressed the ongoing obligation of an attorney to maintain client confidences after the attorney-client relationship has come to an end in a situation like the one before us.
10 In this case, there is no question that there was an attorney-client relationship, albeit brief and limited in scope; that advice was sought with respect to the subject of entry of a plea of guilty to a serious felony charge; and that advice was given. However limited the representation, the prosecution has now subpoenaed the attorney, intending to elicit testimony with respect to the scope of the representation agreement and to probe the details of the discussions between attorney and client.
11 We examine the two interrelated, but separate and independent, principles relating to the protections of confidences, documents and other such things growing out of the attorney-client relationship: the privilege undergirded by evidentiary rules and substantive case law; and the principle of confidentiality, primarily as stated in Rule 1.6 of the Utah Rules of Professional Conduct.
12 The Evidentiary Rule of Privilege. It would be inappropriate for the Committee to opine about the issues to the extent the attorney’s request calls for a legal opinion and interpretation of law. 5 Because the evidentiary considerations are intertwined with the ethical rule, however, some recitation of established law as it relates to confidentiality is appropriate.
13 The evidentiary rule governing the lawyer-client privilege is Utah Rule of Evidence 504, subject to enumerated exceptions listed there and in Rule 507. Rule 504(b) states:
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, in any combination.
Rule 504(d) enunciates five general exceptions to the privilege:
(d) Exceptions. No privilege exists under this rule [504]:
1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue concerning a document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
The focus of the exceptions, as with the statement of the privilege in Rule 504(b) itself, is on the evidentiary aspects of litigation, rather than in providing ethical guidance to the attorney.
14 Rule 507(a) of the Utah Rules of Evidence contains a further exception:
A person upon whom these rules confer privilege against disclosure of the confidential matter or communication waives the privilege if a person or a predecessor while holding the privilege voluntarily discloses or consents to the disclosure of any significant part of the matter or communication or fails to take reasonable precautions against inadvertent disclosure. This Rule does not apply if the disclosure is itself a privileged communication.
15 There is a direct constraint upon the attorney within the formulation of the privilege embodied in Rule 504(b). The right belongs to the client, and it is the client’s alone to waive. No examination of the attorney regarding the relationship may take place without client consent or waiver or a court order overruling the client’s objection. 6
16 The Utah Supreme Court has discussed the nature and basis of the Rule 504 privilege and its exceptions, identifying an additional exception of judicial origin: A party may waive the privilege by placing the attorney-client communication at the heart of a case—e.g., by asserting good-faith reliance on the advice of counsel. 7 This speaks to at least one of the essential considerations of the question before us.
17 How courts might best deal with the privilege issue, once raised by the client or the attorney seeking protection of the privilege, has been addressed at length by the United States Supreme Court, 8 and the extent to which the issue is intertwined with the ethical considerations has also been noted by at least one court in Utah. 9
18 The Ethical Rule of Confidentiality. Utah Rule of Professional Conduct 1.6, Confidentiality of Information, governs a lawyer’s ethical obligation to maintain inviolate the information received and advice given during the course of the attorney-client relationship: 10
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.
(b) A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) To rectify the consequences of the client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
(4) To comply with the Rules of Professional Conduct or other law.
These exceptions are entirely permissive. None establish a duty requiring disclosure, although circumstances may well require in-court disclosure pursuant to the obligations of Utah Rule of Professional Conduct 3.3, Candor Toward the Tribunal. 11
19 In discerning the fundamental distinction to be drawn in Utah between the privilege established by law and the principle of confidentiality entrenched in the rules of ethics, we turn to the comment to Utah Rule of Professional Conduct 1.6, which states, in pertinent part:
The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
(Emphasis added.)
20 The Rule 1.6 comment draws the distinction between the attorney-client privilege afforded in judicial and other proceedings and the rule of confidentiality established by ethical rule, and this is of particular importance in resolving the issue before the Committee. Here, the reviewing attorney has been subpoenaed and presumably will be questioned and requested, or compelled, to testify. This takes the question out of those situations to which Rule 1.6 is addressed.
21 The Case Before Us. This distinction highlights the necessity of responding to the issue not explicitly addressed by the reviewing attorney, but which is inherent in the inquiry. The request covers a broader issue than seems to be answered by reported cases. In fact, the request mirrors what may, in practice, occur more frequently than the case law might suggest. The appellate decisions generally address circumstances where either client or the client’s present or former lawyer is attempting to enforce the privilege against the claim of exception by a third party. 12
22 The twist in this case is the affirmative desire of the reviewing attorney to be allowed to speak freely regarding otherwise confidential or privileged communications. The determination of whether an attorney will be compelled to testify over the client’s assertion of the privilege normally would be made by the trial judge, and if the court rules that the privilege is abrogated, the attorney must testify. Although undoubtedly quite rare, an attorney may occasionally have to make a decision whether to risk contempt pending appeal in order to protect the attorney-client relationship or comply with the court’s order. 13
23 In contrast, in this case the reviewing attorney wishes to cooperate with the prosecution. The threshold question therefore becomes: What may the reviewing attorney disclose to the prosecutor before the trial court rules on whether the attorney may be compelled to testify? There is no attorney-client privilege between counsel for the government and a potential witness that might protect such a discussion any more than exists between a third party’s lawyer and any witness who happens to be an attorney.
24 Indeed, the attorney should be cautious in her relationship with the prosecutor. Under the request before us, there is no reason to suspect abuse or that the prosecution might subpoena an attorney-witness for an improper purpose or to drive a wedge between the client and the attorney. Nonetheless, the attorney should not be too eager to find circumstances providing justification for disclosing confidential information. 14
25 Utah Rule of Professional Conduct 1.9 prohibits attorneys from using “information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client.” A desire to protect one’s good name is not among the authorized exceptions to the rule. The reported cases are replete with examples of circumstances that may tempt the reviewing attorney to testify in contravention of the privilege, particularly where the crime-fraud exception is invoked. 15 Whether rightly or wrongly, in some cases an attorney may feel that the only alternative to becoming a target of the investigation is to be cooperative with the prosecution. In such a case, the attorney may be tempted to reveal privileged communications in order to avoid that possibility. 16 As this request illustrates, there is also a very real possibility for conflict, where the attorney wishes to defend a good reputation with the prosecutor and the trial judge. Nevertheless, it is the attorney’s obligation to uphold the privilege and, if anything, to err on the side of refusing to disclose attorney-client communications in any but a clear and convincing case.
26 The facts presented by the requesting attorney do not fit within any of the exceptions provided by Rule 1.6(b), and reliance on any of the Rule 1.6(b) exceptions would, in our opinion, be misplaced.
27 Exception 1.6(b)(1) allows permissive disclosure “[t]o prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another.” This exception is inapplicable because the former client is not attempting to commit a criminal or fraudulent act the lawyer believes is likely to result in death or to inflict substantial bodily injury or substantial injury to the financial interest or property of another.
28 The attorney could take the position that substantial injury to the attorney’s own financial interests may occur if word of the client’s defamatory testimony reaches the street. However, such a prospect is far too speculative to invoke this provision. 17 In addition, court proceedings, pleadings and testimony are protected with absolute privilege. Nor would the State of Utah or the judiciary itself suffer any but the most attenuated injury. There are no other potential victims. Accordingly, Rule 1.6(b)(1) does not permit disclosure.
29 Rule 1.6(b)(2) sets forth the classic crime-fraud exception: “To rectify the consequences of the client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.” It does not apply to this case because the former client has not utilized services of the lawyer to complete a criminal or fraudulent act, nor is he now acting on advice the lawyer gave in aid of the commission of a fraudulent act, which would free the lawyer to “rectify the consequences.” The mere fact that the client maintains he was confused because of the existence of the former attorney-client relationship or merely being given advice falls far short of using a lawyer’s services or advice in the commission of a fraud or crime. 18 The lawyer is better advised to await or, if the situation warrants, affirmatively seek directly or on motion of the prosecution, a court order allowing extra-judicial disclosure.
30 Exception 1.6(b)(3) allows disclosure “[t]o establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.” While an arguable case might be made for disclosure under this exception, it too is fraught with problems. The primary problem is that the “controversy” is not between lawyer and client, except quite tangentially. While there may well be a dispute over the facts between lawyer and client, there is no “controversy” between them in the sense contemplated by the rule. Nor is there a criminal or civil action against the lawyer. 19
31 Finally, there does not appear to be any other Rule of Professional Conduct or case law that would allow disclosure under Rule 1.6(b)(4) “to comply with the Rules of Professional Conduct or other law.” However, should the court issue an order permitting any such disclosures, either sua sponte or in response to a motion from the reviewing attorney or the prosecutor, this would constitute “other law” under Rule 1.6(b)(4) and would permit the lawyer to disclose prior attorney-client communications in strict compliance with such an order.
32 Conclusion: As a matter of professional ethics under the Utah Rules of Professional Conduct, in the absence of a court order to the contrary, the reviewing lawyer may not divulge any aspect of the communications with the former client.
Footnotes
1. Utah Rule of Evidence 504 supersedes the statutory privilege set forth in Utah Code Ann. § 78-24-8. Spratley v. State Farm Mut. Automotive Ins. Co., 78 P.3d 603, 612 n.3 (Utah 2003).
2. “The ethical rule of confidentiality is distinct from the evidentiary rule of attorney-client privilege. The scope of the attorney-client privilege is much more limited than that of the confidentiality rule.” ABA/BNA Lawyers’ Manual on Professional Conduct 55:102 (1993).
3. Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar).
4. Utah Ethics Advisory Op. 00-06, 2000 WL 1523292 (Utah St. Bar).
5. “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.” Rules of Procedure, Ethics Advisory Opinion Comm. § 1(b). The following requests are outside the Committee’s authority: . . . [r]equests for legal, rather than ethics opinions.” Id. § I(b)(2)(iii).
6. Hunt v. Blackburn, 128 U.S. 464, 470 (1888).
7. Doe v. Maret, 984 P.2d 980 (Utah 1999).
8. United States v. Zolin, 491 U.S. 554 (1989).
9. Although the case centers more on issues of conflict than confidentiality, Bullock v. Carver, 910 F. Supp. 551, 557 (D. Utah 1995) (Boyce, Mag. J.), points with approval to a client’s former counsel’s action in responding to a subpoena in a habeas corpus petition:
The evidence presented shows that [counsel] has conducted herself in this matter with utmost sensitivity to her former role as co-counsel for petitioner. She has consulted with the Utah State Bar on several occasions in order to receive direction as to her ethical responsibilities. She has been particularly sensitive to her potential conflicts and sought to remove herself from these conflicts from the time of entering the Utah Attorney General’s office up to the present time. She has refused to discuss her representation of Bullock or any confidences and only spoke to Bullock’s counsel and respondent’s counsel about this case after this court entered its order authorizing her to discuss the case.
(Emphasis added.)
10. ABA Model Rule 1.6 differs somewhat from the current Utah Rule 1.6. However, the differences do not affect our analysis or conclusion in this case.
11. Utah Ethics Advisory Opinion 00-06, 2000 WL 1523292 (Utah St. Bar).
12. Hunt v. Blackburn, 128 U.S. 464, 470 (1888); Doe v. Maret, 984 P.2d 980 (Utah 1999); United States v. Zolin, 491 U.S. 554 (1989); In Re Grand Jury Subpoenas v. United States, 144 F. 3d 653 (10th Cir. 1998).
13. See, e.g., In Re Grand Jury Proceedings, 857 F.2d 710 (10th Cir. 1988); In re Vargas, 723 F.2d 1461 (10th Cir. 1983).
14. A statement of the rule and a prudent course of action, although grounded in a different set of requirements from those prevailing in Utah is set forth in United States v. Edgar, 82 F.3d 499, 508 (1st Cir. 1996):
The first line of defense to protect Edgar’s privilege lay in the hands of his lawyer. A lawyer has an obligation not to reveal client confidences. . . . A lawyer also has an obligation to assert privilege on behalf of a client. . . . Generally, an attorney has an obligation to assert the privilege on behalf of the client and not to disclose confidential information until there is a judicial determination that there is no privilege. . . . Even if there is an assertion that there is no privilege because the crime-fraud exception applies, the attorney is required to give notice to the client. . . . If the attorney violates these duties, he is at risk at least of a malpractice suit and of professional discipline.
(Citations omitted.)
15. In Clark v. United States, 289 U.S. 1 (1933), Justice Cardozo first recognized the crime-fraud exception to the rule of privilege.
16. See United States v. Edgar, at 507-08.
17. Absolute immunity is afforded to the testimony of witnesses, whether testifying voluntarily or under compulsion. “The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.” W. PAGE KEETON & WILLIAM L. PROSSER, PROSSER AND KEETON ON TORTS § 114 (5th ed. 1984); Krouse v. Bower, 2001 UT 28, 20 P.3d 895, 898.
18. The circumstances undoubtedly contemplated by this exception to the rule were dealt with in ABA Formal Op. 92-366, ABA/BNA Lawyers’ Manual on Professional Conduct 1001:134 (1992). where the lawyer acting for a client in negotiating a loan unknowingly used fraudulent audited financial statements and fraudulent auditor opinion letters supplied by the client to obtain a loan. The ABA opinion stated that under those circumstances, “A lawyer who knows or with reason believes her services or work product are being used or are intended to be used by a client to perpetrate a fraud must withdraw from further representation of the client, and may disaffirm documents prepared in the course of the preparation that are being, or will be, used in furtherance of the fraud, even though such a ‘noisy’ withdrawal may have the collateral effect of inferentially revealing client confidences.”
19. For a discussion of the role of Rule 1.6(b)(3) within the framework of an attorney’s response in a claim or controversy, see Spratley, 79 P.3d at 608-09.

Ethics Advisory Opinion No. 05-02

Issued April 28, 2005
1 Issue:
What is the ethical responsibility of an attorney serving as defense counsel in a criminal case, when expressly requested by the court at a sentencing hearing for information obtained from or about the defendant regarding the defendant’s prior convictions?

2 Opinion: An attorney may only answer such a query with the client’s informed consent. Otherwise, the attorney must respectfully decline to answer the court’s request in a manner that will not be misleading to the court. The attorney may respond by asserting the client’s right to remain silent, and the attorney’s ethical responsibilities or a by giving a similar explanation that does not disclose client confidences. 1
3 Facts: An attorney represents a defendant in a criminal case. At a sentencing hearing, the court requests information from the attorney regarding the defendant’s prior convictions. The attorney has obtained such information during the course of the representation from conducting an independent investigation or from a confidential communication with the client. After consultation, the client does not consent to the disclosure.
4 Applicable Rules:
Rule 1.6—Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.
(b) A lawyer may reveal such information to the extent that the lawyer believes necessary . . . . (4) To comply with the Rules of Professional Conduct or other law. 2
5 Rule 3.3—Candor Toward the Tribunal
(c) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. 3
6 Rule 8.4—Misconduct
It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration or justice . . . . 4
DISCUSSION
7 The issue touches on a fundamental aspect of the attorney-client relationship, namely, confidentiality. A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of all information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. 5 The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. 6
8 Information given to an attorney by a client, including the client’s name, address and telephone number, is confidential, and the attorney is prohibited from disclosing such information under Rule 1.6 unless the client consents after consultation. 7 Information provided by an accused to his attorney in an initial telephone conference is confidential, even as against a request for such information by law enforcement authorities seeking to apprehend the accused client. 8 A disclosure of information harmful to the client would be utterly inconsistent with the relationship of trust and confidence protected by Rule 1.6. Thus, Rule 1.6 9 precludes disclosure by the lawyer, whether voluntary or in response to an inquiry from the court, absent informed consent from the client.
9 Under Rule 1.6(a), a lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation. As indicated above, the client has not consented and, presumably, would not consent due to the potential adverse consequences from the disclosure. Here, the only possible exception to this rule is subpart (b)(4) which permits a lawyer to reveal information “to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law.”
10 Rule 3.3(a)(1) and (2) prohibit a lawyer from “knowingly making a false statement of material fact or law to a tribunal,” and from “failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” Rule 8.4 defines “professional misconduct” as a lawyer engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation” or to engaging in conduct that is “prejudicial to the administration of justice.” Arguably, in this situation, the attorney’s duty to the client under Rule 1.6 may conflict with the attorney’s duty to the court under Rule 3.3 and with the attorney’s duty to the administration of justice under Rule 8.4.
11 Attorneys also owe a duty of candor to the court, and they must maintain the respect due to courts of justice and to judicial officers. Thus, attorneys may not intentionally deceive a judge or intentionally provide misleading or deceiving information to a court. If a lawyer knows that his client has materially misled the court, the attorney may not remain silent and continue to represent the client, for doing so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court. 10
12 Rule 3.3 prohibits a lawyer from knowingly making a false statement of material fact or law to a tribunal, or from failing to disclose a material fact to a tribunal when disclosure is “necessary to avoid assisting a criminal or fraudulent act by the client.” Arguably, Rule 3.3 only applies to “false statements,” and to inactions which assist in the commission of a crime or fraudulent act by the client. Here, the attorney’s silence is not a “false statement,” except to the extent that the attorney knows that the silence is interpreted by the court as an affirmation that there is no prior criminal conviction, in which case the attorney is obligated to inform the court that silence is not intended as a statement of any kind and that it is not appropriate for the attorney to comment further.
13 In addition, silence by the advocate is not assisting the client to commit a criminal or fraudulent act, even though it may enable the client to avoid a more severe punishment for a criminal act. Thus, while Rule 3.3 creates an ethical obligation on the lawyer to not knowingly make a false statement to the tribunal about the defendant’s criminal record, it does not create an ethical obligation to affirmatively disclose confidential information that could harm the client. Rule 3.3, however, does prohibit a lawyer from making a statement that misleads the court or that is false, such as a statement here to the effect that the client has no prior convictions. Thus, the proper course of action for counsel is to decline to answer any such question that is posed by the court.
14 Finally, it is professional misconduct under Rule 8.4 for a lawyer to engage in conduct “involving dishonesty, fraud, deceit or misrepresentation” or to engage in conduct that is “prejudicial to the administration of justice.” Although the lawyer’s silence respecting the client’s prior criminal history could prevent the client from receiving a more appropriate sentence, the protection of confidential information by the lawyer is not dishonest, fraudulent, deceitful or a misrepresentation proscribed by Rule 8.4(c). The protection of the client’s confidential information does not prejudice the administration of justice. On the contrary, it advances the administration of justice.
15 For the foregoing reasons, in the absence of the client’s informed consent, the lawyer must not provide to the court information obtained from or about the defendant regarding prior convictions. Limited strictly to an approach that would be ethically satisfactory, we have concluded that the lawyer may properly (and tactfully) inform the judge that the lawyer’s ethical responsibilities under the Rules of Professional Conduct prevent him from providing such information, and that the failure to respond is not to be construed as indicating one way or another whether there are any convictions.
16 The lawyer’s approach, however, will necessarily depend on the specific circumstances. Inasmuch as the issue before us may well implicate the client’s substantive rights under the Fifth Amendment to the United States Constitution or Article 1, Section 12, of the Utah Constitution, the attorney is strongly advised to be fully aware of the current state of the law in this area and to proceed accordingly. 11 The client may have an absolute right to remain silent, with attendant benefits, in such situations. The lawyer may be required to exercise due care not to make any statement inconsistent with those rights, unless knowingly and intentionally waived by the client. As it is outside our purview, we have not analyzed this area of the law or opined as to what may be the most appropriate course of action with respect to constitutional principles.
Footnotes
1 The attorney’s approach may require being fully informed and conversant with respect to the client’s substantive rights under the Fifth Amendment to the United States Constitution and Article 1, Section 12, of the Utah Constitution. Mitchell v. United States, 526 U.S. 314 (1999). The Committee has made no attempt to analyze this substantive area of the law.
2 Utah Rules of Professional Conduct 1.6 (2004).
3 Id. Rule 3.3(a).
4 Id. Rule 8.4(c) & (d).
5 Id. Rule 1.6, cmt.
6 Id.
7 Utah Ethics Advisory Op. 97-04, 1997 WL 223850 (Utah St. Bar).
8 Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar).
9 See, e.g., Industrial Indemnity Co. v. Great American Ins. Co., 73 Cal. App. 3d, 529, 536 (1977).
10 Utah Ethics Advisory Op. 00-06, 2000 WL 1523292 (Utah St. Bar).
11 See note 1, supra.

Ethics Advisory Opinion No. 05-04

Issued September 8, 2005
1 Issue:
What are the responsibilities of an attorney to a person the attorney has interviewed as a prospective client after it has been determined that the attorney will not undertake the representation?

2 Opinion: In most circumstances, the obligation of confidentiality attaches when a prospective client consults with the attorney in contemplation of retaining the attorney, even if that attorney is not ultimately retained and never advises the client. The provisions of Rules 1.6 and 1.9 regarding former clients outline the attorney’s responsibilities and the circumstances when such an attorney may breach confidentiality.1 Absent consent, the attorney may not undertake representation of another party in the same or substantially factually related matter if the attorney acquired relevant confidential information from the prospective client. An attorney may avoid disqualification by strictly limiting the information acquired during the initial consultation or by explicit agreement and waiver prior to the initial consultation. Under the Utah Rules of Professional Conduct in effect on the date of issuance of this Opinion, if the attorney is disqualified, the entire firm of that attorney is also disqualified.
3 Facts: We consider three sequential questions:
(a) A prospective client meets with an attorney in anticipation of retaining counsel and discusses certain facts with that attorney. The client does not retain the attorney. What, if anything, may the attorney say about the consultation?
(b) Thereafter, the prospective client retains other counsel who files court papers in the matter. The original attorney notices that certain facts pled in the court papers are inconsistent with the facts the prospective client originally reported to that attorney. May the initial attorney reveal this discrepancy?
(c) After the prospective client retains other counsel, an opposing party seeks to retain the attorney who did the initial interview with the prospective client. May the attorney or others in the attorney’s firm represent an opposing party in the matter?
4 Analysis: These questions require a multi-step analysis. First, we must determine if, due to the initial interview, an attorney-client relationship existed such that the obligation of confidentiality attached. Second, if such an attorney-client relationship with obligations of confidentiality did develop, we must consider whether there are exceptions to confidentiality that would permit counsel to breach confidentiality or reveal information about such a former prospective client. Third we discuss whether an attorney-client relationship may attach for some purposes (e.g., obligation of confidentiality) and not for others (e.g., conflicts of interest). We outline when the interview of a prospective client will prevent the attorney (and the attorney’s firm) from representing another party in the same or a substantially related matter.
Formation of Attorney-Client Relationship for Obligation of Confidentiality
5 Previously, we considered a case regarding an attorney holding a telephone conference with a potential client who was a fugitive from justice. The police asked the attorney to disclose the whereabouts of the client. The attorney refused. The Committee concluded:
[An] attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. 2
However, Opinion 97-02 does not entirely answer the first question before us. Here, the attorney did not render any advice, but merely received information from the client in contemplation of being retained.
6 The Rules of Professional Conduct do not state when an attorney-client relationship is formed. Nor do the current Rules explicitly deal with the “prospective” client.3 Yet, in order to interpret the Rules—under either the current or proposed Rules—we must consider when the attorney’s obligations to a prospective client arise. We rely upon related law, ethics opinions and informed commentary about the Rules.
7 ABA Opinion 90-358 provides the following opinion and rationale:
Information imparted to a lawyer by a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform legal work for the would-be client. . . . The legal basis for a lawyer’s duty of confidentiality is derived from the law of agency and the law of evidence. See Rule 1.6 Comment.4
8 Similarly, the Restatement of the Law Governing Lawyers addresses a lawyer’s duties to prospective clients and concludes that the duty of confidentiality is owed to a prospective client interviewed by the attorney:
A Lawyer’s Duties to a Prospective Client
(1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship of a matter and no such relationship ensues, the lawyer must: (a) not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client as stated in §§ 61-67.5
9 Professor Geoffrey Hazard, Reporter for the committee that drafted the 1983 version of the ABA Model Rules of Professional Conduct, explained that the duty of confidentiality was always intended to attach at the point a potential client contacted the lawyer:
The Model Rules are limited to matters of discipline, while the Restatement must address a full range of common law doctrines, whether or not they are incorporated into a disciplinary code. . . Although the Model Rules as promulgated in 1983 did not deal explicitly with prospective clients, there was unanimous agreement that some of the basic duties owed to clients are also owed to prospective clients during the period of uncertainty. This result is easy to reconcile with the rationale and even the text of key rules regulating the client-lawyer relationship, and in 2002, a new Rule 1.18 was added to the Model Rule, making these understandings explicit.6
10 We find the standard and reasoning set forth in ABA Formal Op. 90-358, in Professor Hazard’s commentary on the current Model Rules of Professional Conduct, and in the Restatement persuasive on this issue and applicable here, even without the formal adoption of Rule 1.18.
11 We further note that whether a person is a prospective client is a fact-intensive question. A friend or acquaintance may engage an attorney in informal conversation about his problems with the aim of obtaining some free legal advice, while the attorney believes she is hearing a tale of woe from a friend rather than from a “prospective client.” The Restatement addresses this issue helpfully as well:
Formation of a Client-Lawyer Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services . . . .7
12 If there is some ambiguity in the nature of the client-attorney relationship, the law generally imposes the burden on the lawyer to “clearly and affirmatively negative the existence of the client-lawyer relationship.”8
Breadth of Obligation of Confidentiality
13 Rule 1.6 prohibits the lawyer from revealing “information relating to representation of a client.” As Professors Hazard and Hodes note, “This language is exceedingly broad. . . .”9 The lawyer may be required to keep even “client identity” confidential.10 This may be particularly salient regarding prospective clients who might be harmed by anyone knowing that he had consulted a particular lawyer—for example, a lawyer whose practice was limited to criminal law or to bankruptcy law.
14 Thus, “prospective clients are similar in many ways to ‘actual’ current clients during the period in which forming a relationship is under mutual consideration.”11 Accordingly, the attorney may not reveal any information gained from the prospective client in the consultation except as would be permitted under Rule 1.6.
15 However, prospective clients “are much like ‘former’ clients when that period ends with a parting of the ways. . . . If no client relationship is formed, the principle of Rule 1.9 . . . prohibits adverse use of information gained during the earlier consultations with the ‘almost former clients’.”12 Rule 1.9 would thereafter permit the lawyer to use or reveal such information “when the information has become generally known.”13
Grounds to Breach Confidentiality
16 Rule 1.6 provides that a lawyer may reveal confidential information even without the client’s consent in the following circumstances:
(b) A lawyer may reveal such information [relating to the representation of the client] to the extent the lawyer believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. . . ; or
(4) to comply with the Rules of Professional Conduct or other law.14
17 In general, the lawyer is restricted by the provisions of Rule 1.9 concerning former clients and, without the prospective client’s consent, can only disclose information about the matter that is generally known or otherwise permitted under Rule 1.6(b).
18 In the second question posed, the lawyer asserts that the client has filed court pleadings that contain misstatements of fact. However, under exception (1) of Rule 1.6(b), such misstatements must constitute a crime or fraud and be “likely to result in . . . substantial injury” to another’s financial interests before the attorney may breach confidentiality. If a false statement meets this standard, the lawyer may reveal confidential information to “prevent the [former] client from committing a fraudulent or criminal act.” If it does not, the lawyer may not disclose the information.
19 Often the prospective client will simply communicate the nature of his case and his goals and will obtain no advice from the attorney. On some occasions, however, the attorney may point out particular problems with a proposed course of action. If the attorney does provide some advice to the prospective client and this advice is used to carry out a criminal or fraudulent enterprise, then exception (2) to Rule 1.6 would apply, permitting the first lawyer to blow the whistle on the scheming client. If no advice was given, exception (2) does not provide license for the lawyer to disclose.
20 The crime-fraud exception to attorney-client privilege would also permit the first lawyer to testify against such a prospective client. As Justice Benjamin Cardozo wrote regarding the crime-fraud exception to privilege: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”15
Conflicts of Interest and Disqualification with Prospective Clients
21 The last issue is whether a conference with a prospective client would disqualify the lawyer (and the entire firm) from representing another party in the matter. This issue requires reference to Rule 1.7 for concurrent conflicts of interest, to Rule 1.9 for successive conflicts of interest, and to applicable case law.
22 A major rationale for conflict-of-interest rules is to protect confidential information and to advance loyalty to the client. However, the prospective attorney-client relationship clearly calls for less loyalty than that of actual attorney-client relationship and the necessity of disqualifying a lawyer to protect confidential information depends heavily upon the nature and amount of confidential information acquired.
23 Under applicable case law, a lawyer who interviews a prospective client will not be disqualified from representing an opposing party in the same matter if the lawyer does not learn sensitive confidential information in that first meeting. The Restatement cites the Utah federal district court case of Poly Sofltware Int’l., Inc. v. Su 16 for this proposition and cautions:
In order to avoid acquiring disqualifying information, a lawyer considering whether or not to undertake a new matter may limit the initial interview to such confidential information as reasonably appears necessary for that purpose. . . . The lawyer may also condition conversations with the prospective client on the person’s consent to the lawyer’s representation of other clients or on the prospective client’s agreement than any information disclosed during the consultation is not to be treated as confidential.17
24 ABA Model Rule 1.18 adopts the provisions of the Restatement relied upon here, but, according to Hazard & Hodes, these were already implicit in the existing Model (and Utah) Rules. However, we note that proposed Rule 1.18 (and the Restatement) go a good bit further in usefully defining requirements regarding prospective clients in the area of conflicts of interest.
25 Model Rule 1.18 takes two further clarifying steps. First, subsection 1.18(c) defines what sort of information will disqualify the lawyer who interviewed the prospective client as “information that would be significantly harmful” to that person in the matter.18
26 Second, proposed Rule 1.18(d) permits the firm of the lawyer who interviewed the prospective client and received “disqualifying information” to represent another party by screening that lawyer from the new representation, provided (1) the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and by providing notice to the prospective client” and (2) the former prospective client is notified. If the Utah Supreme Court adopts proposed Rule 1.18, this will permit adverse representation when the screening and notice provisions are complied with.
27 Conclusion. After an attorney has interviewed a prospective client, and even though the lawyer does not undertake the representation and has not given legal advice to the prospective client, the obligation of confidentiality usually attaches. The circumstances when the attorney may breach confidentiality are governed by Rules 1.6 and 1.9 applied to former clients.
28 Absent consent, the attorney may not undertake representation of another party in the same or substantially factually related matter if the attorney acquired relevant confidential information from the prospective client. However, the lawyer may represent an opposing party in the same matter if the lawyer has not learned sensitive, confidential information in that first meeting. Under the Utah Rules of Professional Conduct in effect at the time of the issuance of this Opinion, if the attorney may not undertake the representation, the entire firm of that attorney is also disqualified.
APPENDIX
[Proposed] Utah Rules of Professional Conduct 1.18: Duties to Prospective Client
(June 6, 2005)
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or;
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Footnotes
1. At the time this Opinion is being issued, the Utah Supreme Court has proposed to adopt Rule 1.18 of the ABA Model Rules of Professional Conduct, “Duties to Prospective Clients.” If finally adopted, Rule 1.18 will make explicit most of the conclusion we have reached here, but will liberalize the standards governing the disqualification of law firms in certain situations by permitting screening of an individually disqualified attorney. See the Appendix to this Opinion for the full test of proposed Rule 1.18.
2. Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar) (emphasis added). The opinions of the Ethics Advisory Opinion Committee can be found at http://www.utahbar.org/-rules_ops_pols/Welcome.html.
3. See note 1, supra.
4. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 90-358 (1990).
5. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15(1)(a) (2000) (hereinafter “RESTATEMENT”).
6. GEOFFREY C. HAZARD, JR. & W. WILLIAMS HODES, THE LAW OF LAWYERING § 2-5, at 2-7 (3d ed., 2003 Supp.)
7. RESTATEMENT § 14.
8. Hazard & Hodes § 2.5, at 2-8 (2004 Supp.).
9. Id. § 9.15, at 9-29 (2004-2 Supp.).
10. Id. § 9.11, at 9-45 (2004-2 Supp.).
11. Id. § 21A.5, at 21A-9 (2005-1 Supp.).
12. Id.
13. Utah Rules of Prof’l Conduct 1.9(b) (2004).
14. Utah Rules of Prof’l Conduct 1.6(b) (2004).
15. Clark v. United States, 289 U.S. 1, 14 (1933).
16. 880 F.Supp. 1487, 1491 (D. Utah, 1995).
17. RESTATEMENT § 15, cmt. (c).
18. [Proposed] Utah Rules of Prof’l Conduct Rule 1.18(c). See note 1, supra.

ETHICS ADVISORY OPINION No. 03-02

Issued April 23, 2003
¶1 Issue:
What are the ethical responsibilities of a plaintiff’s lawyer who reasonably believes a health-care provider that he deals with on a recurring basis may be charging his clients and prospective clients for services not actually rendered?

¶2 Facts: An attorney (“Attorney”) represents tort plaintiffs. A health-care provider (“Provider”) regularly treats patients with injuries arising from motor vehicle accidents, including some of Attorney’s clients. Attorney expects to encounter Provider repeatedly as she maintains her practice in this area.
¶3 A client (“Client”) engages Attorney to represent him in connection with injuries suffered in an auto accident. In the course of the representation, Client complains about Provider’s bills, adamant that they were for services never rendered. Attorney reasonably believes Client’s claims.
¶4 In reviewing Client’s case with Provider in preparation for trial or settlement discussions, Attorney questions the bills. Provider readily admits that the bills include amounts for work not actually performed. Attorney tells Provider that its illegal to submit such bills, that his records need to be legitimate, and that he should return the funds so obtained. A few days later, Provider calls Attorney, thanks her for the advice, and asks her advice about how to return the money.
¶5 Attorney tells Provider that she will act only in conformity with the law and will not participate in dealings involving false records. She also tells Provider that she cannot advise Provider how to fix his problems. Later, Attorney sends a letter to Provider confirming that she is not representing Provider. A few days later, Provider sends Attorney a letter outlining the return of money to the health insurance carrier on Client’s case.
¶6 Attorney is not sure if the overbillings admitted to by Provider were the result of billing patients for missed visits, of input errors in the billing or patient codes, or of some deliberately fraudulent scheme. The discussions with Provider could be interpreted in several different ways. Attorney does not want to ask more questions of Provider about this issue, but her level of suspicion about Provider’s ongoing conduct is very high.
¶7 Attorney has other clients who are the ongoing patients of Provider for injuries for which Attorney is pursuing legal compensation. Attorney has bought a medical code book to interpret all billing codes and uses a form letter to all her clients (not just Provider’s patients) advising them to review their medical bills carefully for errors before they are submitted to insurance carriers or in legal proceedings.
¶8 Inquiry:
a. Did Attorney form an attorney-client relationship with Provider by informing Provider that his conduct was illegal? Is Attorney obliged to keep Provider’s “confessions” confidential?
b. Can Attorney warn existing patients of Provider and Attorney’s future clients who are also Provider’s patients that they should review their bills carefully and tell them why? If so, would this violate Utah Rule of Professional Conduct1.6 concerning confidential client information?
c. In representing her clients, Attorney must submit settlement packages containing Provider’s billings to insurance carriers. Given what she has learned about Provider’s past actions, although she does not actually know that any future bills will be fraudulent, may she ethically submit such packages?
d. Must Attorney report this information to the insurance carriers or to law enforcement? May she do so?
SUMMARY
¶9 Because Attorney owes a duty of confidentiality to Client, she may not reveal information disclosed to her by Client in the course of the representation without Client’s consent.1On the other hand, Attorney may seek Client’s consent to give the information about Provider to others and may do so as broadly as Client’s consent permits.2Whether or not Client consents to revealing the information, Attorney is not prevented from working with the Provider in the future, so long as she takes reasonable and prudent steps to assess the accuracy of Provider’s billing statements. This experience neither prevents Attorney from representing other clients who are patients of Provider, nor from advising them generally to be cautious about all bills from their health-care providers. Further, Attorney has no ethical duty to report her concerns to law enforcement, and she may not do so under these circumstances without the Client’s consent.
ANALYSIS
¶10 We can best address Attorney’s inquiries by first reviewing the fundamental areas.
¶11 The Relationship Between Attorney and Provider. Whether an attorney-client relationship has been established between parties is a legal question driven by the facts and applicable case law,3and it is not within our authority to render legal opinions.4However, it appears on the facts given that no attorney-client relationship has been established between Attorney and Provider by Provider’s voluntary “confessions” to Attorney. For purposes of this opinion, we therefore assume that no attorney-client relationship was formed between Attorney and Provider.5
¶12 Keeping Client Confidences. Rule1.6 of the Utah Rules of Professional Conduct provides for the confidentiality of information an attorney receives in the course of representing a client. Specifically subparagraph (a) provides: “A lawyer shall not reveal information relating to representation of a client except as stated in subparagraph (b), unless the client consents after consultation.” Subparagraph (b) specifies the exceptions that permit an attorney to reveal confidential information relating to the representation of a client: (1) to prevent the client from committing a future crime; (2) to rectify the consequences of the client’s using the lawyer as an unwitting accomplice in a past crime or fraud; (3) to establish a claim or defense in a legal controversy between the lawyer and the client, or to establish a defense to a criminal charge against the lawyer based upon conduct in which the client was involved; or (4) to otherwise comply with the Rules of Professional Conduct.
¶13 As a separate matter, evidentiary rules and statutory law provide various individuals with protection from the disclosure of certain information. These protections are generally applicable to adjudicative proceedings and cover a much more restricted range of attorney-client communications than those subject to the protections of Rule1.6. Attorneys should not confuse the obligation of confidentiality owing to clients under Rule1.6 with the more limited legal privileges afforded to their clients in adjudicatory matters.
¶14 The obligation of confidentiality owing to a client under Rule1.6 is much broader than evidentiary privileges and doctrines, which are creations of the law and not within the Committee’s authority to interpret. On the other hand, the confidentiality requirement of Rule1.6 is an ethical constraint that applies to any information relating to any representation of a client (with the exceptions noted in Rule1.6(b)), not just adjudicative representations. Thus, Rule1.6 confidentiality includes not only statements and information obtained directly from a client, but also other information obtained by a lawyer in the course of investigating a client’s case.
¶15 In the case here, the statements made by Provider to Attorney are confidential information as to Client and are protected by Rule1.6. Absent Client’s consent, these communications may not be revealed. Because the information obtained does not pertain to Client’s future commission of a criminal or fraudulent act, to Client’s engaging in past criminal conduct in which Attorney was complicit, or to Attorney’s establishing a claim or defense in a controversy with Client, there is no basis under Rule1.6 for Attorney to breach the confidentiality of Client, absent Client’s informed consent.6
¶16 The fact that the information obtained by Attorney may reveal past criminal conduct by a third party, or even possibly of an ongoing criminal fraud scheme in which the client is not participating, is immaterial. The lawyer is bound to the obligation of confidentiality under Rule1.6 and may not reveal the information she has received in the course of representing Client to anyone, including insurance carriers or law enforcement authorities, without Client’s consent.7
¶17 Of course, Client may choose to authorize Attorney, after consultation, to reveal what she had learned in the course of the representation. In that case, Attorney could reveal the information to third parties to the extent Client’s waiver would allow. Client can control the breadth of the waiver, limiting it to time, persons or incident, for example. Further, nothing prohibits Attorney from asking Client for permission to disclose Provider’s conduct to authorities, so long as there is proper consultation about the ramifications of the disclosure.
¶18 The foregoing analysis does not prohibit an attorney who has gained experience about human behavior or human nature in the course of her practice from using the general knowledge and information for the benefit of other clients at a later time. Thus, although Attorney could not specifically advise future clients about the exact information she has learned about this particular Provider, the lawyer may warn all clients who are patients of health-care providers to review their bills carefully and to be vigilant in assuring that their health-care providers submit proper bills.
¶19 Duty of Candor and Duty of Fairness. All of these circumstances raise an additional question about future dealings with Provider. Under Rule 3.3 of the Utah Rules of Professional Conduct, a lawyer owes a duty of candor toward any tribunal in which she is practicing. This obligation includes the requirement that “[a] lawyer shall not knowingly. . . [m]ake a false statement of material fact or law to a tribunal or offer evidence that the lawyer knows to be false.” To be in compliance with Rule3.3, Attorney may need to exercise extra vigilance if she is to continue associating with Provider as an expert in her cases.
¶20 Further, under Rule3.4 of the Rules of Professional Conduct, the lawyer owes a duty of fairness to opposing parties and to opposing counsel. Rule3.4(b) prohibits a lawyer from falsifying evidence or assisting a witness to testify falsely. This would prohibit a lawyer from knowingly submitting false billing information to an opposing counsel or insurance adjustor in furtherance of a client’s claim for settlement or from knowingly submitting false medical bills as trial exhibits.
¶21 In this case, Attorney may be wise to review Provider’s bills with care before submitting them to insurance carriers, adjustors, opposing counsel or a court in furtherance of her clients’ claims. If, however, the lawyer has no actual knowledge the bills are inaccurate, then the lawyer will commit no ethical violation for submitting Provider’s billings to anyone in the future.8
CONCLUSION
¶22 We summarize the responses to Attorney’s specific questions:
a. Did Attorney form an attorney-client relationship with Provider by telling him that his conduct was illegal? We do not answer this legal question for reasons set forth above. For purposes of addressing the remaining questions, we assume on these facts—without deciding—that there is no attorney-client relationship with Provider.
b. Can Attorney warn future clients who are patients of Provider that they should review their bills carefully and tell them specifically why? Would this violate Rule1.6 regarding confidential information obtained from Client? Attorney can generally warn any of her clients that they should be careful in analyzing their health-care provider bills for accuracy. Absent consent from Client, Attorney may not advise existing clients or future clients that they should specifically be aware of this Provider or state the reasons they should be aware of this particular Provider, because such information has been obtained in Attorney’s representation of Client, to whom Attorney owes a duty of confidentiality.
c. Given what she knows, can Attorney ethically submit settlement packages to insurance carriers containing Provider’s billings? Yes, if she does not have actual knowledge that the billing statements are inaccurate.
d. Must or may she report anything to the insurance carriers or law enforcement? A lawyer is not required to report these crimes. Further, only with the informed consent of Client may Attorney report any information obtained without causing a breach of her obligations of confidentiality under Rule1.6.
Footnotes
1.Utah Rules of Professional Conduct1.6(a). We assume that none of the exceptions in Rule1.6(b) that allow discretionary disclosures are present here, such as rectifying the consequences of a client’s criminal act. We also note that the lawyer is, of course, authorized to make disclosures of confidential information as necessary to carry out the representation.
2.We also note that Rule1.6(a) does not require the consent to be in writing, although in some cases a lawyer would be well advised to obtain written consent.
3.See, e.g., Roderick v. Ricks, 2002 UT 84, 54 P.3d 1119.
4.See, e.g., R. Proc. Ethics Adv. Op. Comm. § I(b)(2)(iii).
5.If an attorney-client relationship were found to exist between Attorney and Provider, a different analysis would be necessary.
6.From another perspective, Attorney’s disclosure without the informed consent of Client could be to Client’s disadvantage. Utah Rules of Professional Conduct1.8(b). For example, if Client were to continue to need treatment by Provider, Provider might refuse to supply such treatment were he to know that disclosure of his indiscretions to Attorney could lead to civil, criminal or administrative discipline.
7. The obligation to treat information obtained in the representation of Client as confidential does not end with the termination of the representation. Utah Rules of Professional Conduct1.9(b).
8. Under the Utah Rules of Professional Conduct, Terminology, “knowingly” and related terms imply actual knowledge, although a person’s knowledge may be inferred from circumstances.

Ethics Advisory Opinion No. 00-01

(Approved March 9, 2000)
Issue:
What are the ethical obligations of a lawyer to protect client confidentiality in the use of Internet e-mail communications?

Opinion: A lawyer may, in ordinary circumstances, use unencrypted Internet e-mail to transmit client confidential information without violating the Utah Rules of Professional Conduct.
Analysis: Utah Rules of Professional Conduct 1.6 imposes a duty on the lawyer to protect confidential information against unauthorized use or disclosure.1 Opinions that have addressed this issue in the area of electronic communication have characterized the obligation of the lawyer to use a means of communication that has a “reasonable expectation” that the information will remain confidential.2
With respect to land-line telephone, fax machine and ordinary mail, a reasonable expectation of privacy has been deemed to exist, and a lawyer can use these means of communication to transmit confidential client information. It is recognized that a reasonable expectation of privacy does not mean certainty of privacy. Land-line telephone conversations can be intercepted, and the means to prevent interception are available through scrambling technology. Faxes can also be encrypted, and mail can be hand-delivered. This level of security, however, is not normally required, although circumstances can arise that require increased security in client communications by a lawyer.
State bar associations that have considered this issue have concluded, with few exceptions, that a reasonable expectation of privacy exists in the use of Internet e-mail and a lawyer may use this form of communication to transmit confidential client information.3
The American Bar Association has also concluded in a recent formal opinion that the use of Internet e-mail does not violate any Rule of Professional Conduct. In Formal Opinion No. 99-413, the ABA concluded that: “A lawyer sending confidential client information by unencrypted e-mail does not violate Model Rule 1.6(a) in choosing that mode to communicate. This is principally because there is a reasonable expectation of privacy in its use.”
Analyzing the characteristics of e-mail, ABA Opinion 99-413 concludes that e-mail is virtually indistinguishable from the process of sending a fax. The opinion states that there is a reasonable expectation of privacy, in part, because of the difficulty of intercepting direct e-mail, the current huge volume of e-mail traffic, and the fact that interception of e-mail is a criminal act.4
There is little evidence that unencrypted e-mails pose any greater risk of unauthorized disclosure than other forms of communication commonly used, such as telephone and facsimile.5The fact that Internet service provider (ISP) administrators or hackers are capable of intercepting e-mail (in violation of federal law) does not render the expectation of privacy unreasonable, any more than the risk of an illegal telephone tap removes the reasonable expectation of privacy in a land-line telephone call.6
Where the client information is particularly sensitive or the lawyer has reason to believe that the risk of interception of the communication is higher, he may want to use a means of communication with higher security. The lawyer should abide by any policy of the client regarding the use of e-mail (or any other means of communication) for its confidential information. A lawyer may wish to advise a client at the time he is retained that the lawyer intends to use unencrypted e-mail as one of the methods of communication with the client.
Footnotes
1.Rule 1.6(a) provides: “A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.”
2.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 99-413; S.C. Bar Ethics Advisory Comm. Op. 97-08, www.scbar.org; Ill. State Bar Ass’n Op. 96-10, www.illinoisbar.org; N.Y. State Bar Ass’n Comm. on Prof. Ethics Op. 709 (1998) www.nysba.org/opinions.
3.See cases at n.2, supra. Contra, Penn. Bar Ass’n Comm. on Legal Ethics Op. 97-130 (absent the client’s consent after consultation, lawyer should not use unencrypted e-mail to communicate information concerning the representation where interception would be damaging to the client); Iowa Bar Ass’n Op. 1997-1; State Bar of Ariz. Advisory Op. 97-04, www.azbar.org.
4.Electronics Communications Privacy Act, 18 U.S.C. §§ 2510 et seq. (1994).
5.N.Y. State Bar Ass’n Op. 709; Ill. State Bar Ass’n Op. 96-10.
6.ABA Op. 99-413; Alaska Bar Ass’n Op. 98-2; D.C. Bar Op. 281 (1998), www.dcbar.org; Ky. Bar Ass’n Ethics Comm. Advisory Op. E-403 (1998), www.uky.edu; N.Y. State Bar Ass’n Op. 709 (1998).

Ethics Advisory Opinion No. 00-06

Opinion No. 00-06
(Approved September 29, 2000)

1 Issue:

What are the ethical obligations of an attorney who, unaware his client will lie, hears the client commit perjury or otherwise materially mislead a tribunal?

2 Opinion: Counsel who knows that a client has materially misled the court may not remain silent and continue to represent the client; to do so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court.
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Ethics Advisory Opinion No. 98-03

(Approved April 17, 1998)
Issue:
May a lawyer hired by an insurance company to defend an insured in a lawsuit submit billing statements to an outside audit service?

Opinion: Before a lawyer may submit billing statements to an outside audit service, the lawyer must have the client’s consent. If the lawyer is relying on an insurance agreement for consent, the lawyer must review the agreement with the client to renew the client’s consent before sending any billing statements to the outside audit service.
Facts: An insurance company hires a lawyer to represent an insured client. The lawyer routinely bills the insurance company for the representation. The lawyer’s billing statements, as required by the insurance company, are detailed and specific as to the services done by the lawyer on behalf of the client. The insurance company requests that the lawyer submit the billing statements directly to an outside audit service.
Analysis: Rules 1.6, 1.7, and 1.8 of the Utah Rules of Professional Conduct govern the relationship among a lawyer, a client, and third party paying for the lawyer’s services on behalf of the client.1Rule 1.8(f) states:
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 judgement or with the client-lawyer relationship; and
(3) Information relating to representation is protected as required by Rule 1.6.
Rule 1.8(f) applies whenever an insurance company pays a lawyer to represent a client.2The client’s consent is usually included in the agreement between the client and the insurance company. However, because Rule 1.8(f) requires that the “client consents after consultation,” the lawyer must consult with the client to make sure that the client understands and renews the consent.
Rule 1.6(a) states: “A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure.”3A lawyer’s billing statement is “information relating to the representation of a client.” This is especially true where the billing statement is detailed and specific as to the services done by the lawyer on behalf of the client. Therefore, unless one of the exceptions under Rule 1.6(a) applies, the lawyer may not reveal a billing statement to anyone other than the client “unless the client consents after disclosure.”
The client’s consent to release the billing statement to the insurance company is usually included in the agreement between the client and the insurance company. However, because the client must consent “after disclosure,” the lawyer should review the insurance agreement with the client and renew the client’s consent before sending any billing statements to the insurance company.4Whether the lawyer has an attorney-client duty to the insurance company in addition to the insured client is immaterial. Except as Rule 1.6(b) provides, a lawyer may not release information relating to the representation of a client to anyone, even another client, unless the first client consents after disclosure.
Likewise, before a lawyer may release any billing information to an outside audit service, the lawyer must have the client’s consent.5However, if the lawyer relies upon an insurance agreement for consent, the lawyer must review the agreement with the client and renew the client’s consent before sending any billing statements to the audit service.
Even where the lawyer has a consent from the client to release billing statements to an audit service, the lawyer should be careful about what information is included. For example, the lawyer may not want to include information that the client took and failed a lie detector test. The lawyer should make sure that no confidential information revealed by the client is in the billing statement.
Rule 1.6(a) is broader than the attorney-client privilege described in Utah Code Ann. § 78-24-8 and Utah Rules of Evidence 504. The attorney-client privilege protects only information revealed by the client to the lawyer in confidence. The Utah Supreme Court, holding that the attorney-client privilege did not protect a retainer agreement from discovery, noted:
The United States Supreme Court has stated that the purpose of the privilege is to “encourage clients to make full disclosure to their attorneys.” Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1976). The Court cautioned, however, that “since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures—necessary to obtain informed legal advice—which might not have been made absent the privilege.” Id. This court has taken a similar view of the privilege, describing it as “necessary in the interest and administration of justice,” but noting that the privilege should be “strictly construed in accordance with its object.”6
However, Rule 1.6(a) protects all information relating to the representation of a client. The comment to Rule 1.6 notes:
The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from lawyer through the compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever the source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
Thus, a Utah case ordering the release of a retainer agreement in a discovery dispute does not allow a lawyer to send billing statements to an insurance company or an outside audit service without the client’s consent.
Conclusion: A lawyer may submit billing statements to an insurance carrier’s outside auditors only with the informed consent of the client.
Footnotes
1.Person Paying for Lawyer’s Services. Rule 1.8(f) requires disclosure of the fact that the lawyer’s services are being paid for by a third party. Such an arrangement must also conform to the requirements of Rule 1.6 concerning confidentiality and Rule 1.7 concerning conflict of interest.
Utah Rules of Professional Conduct 1.8, cmt.
2.Interest of Person Paying for Lawyer’s Service. A lawyer may be paid from a source other than the client if the client is informed of that fact and consents and the arrangement does not compromise the lawyer’s duty of loyalty to the client. See Rule 1.8(f). For example, when an insurer and its insured have conflicting interests in a matter arising from a liability insurance agreement and the insurer is required to provide separate counsel for the insured, the arrangement should assure the separate counsel’s professional independence.
Utah Rules of Professional Conduct 1.7, cmt.
3.None of the exceptions in paragraph (b) apply.
4.This does not require a separate, affirmative assent for each occasion—only that there be direct confirmation in connection with the particular case or incident.
5.See S. Car. Bar Assoc., Ethics Op. 97-22, “Upon receipt of informed consent from the insurer as well as the insured, a lawyer would not be ethically prohibited from submitting his bill directly to a third-party auditing firm, unless the lawyer believes that doing so would substantially affect the representation.”
6.Gold Standard, Inc. v. American Barrick Resources Corp., 801 P.2d 909.

Ethics Advisory Opinion No. 97-02

(Approved January 24, 1997)
Issue:
Is information provided by an accused to his attorney in an initial telephone conference confidential as against a request from law enforcement authorities for such information?

Opinion: Information given to an attorney in an initial telephone conference by an individual whom the attorney has agreed to represent is confidential, even against a request for such information by law enforcement authorities seeking to apprehend the accused client.
Facts: After he had learned there was a warrant for his arrest as a suspect for a felony charge, an individual contacted an attorney by telephone. The individual gave information to the attorney, including a telephone number through which he could be contacted. The attorney agreed to represent the client solely to assist the client in turning himself in to the authorities. After the initial telephone conference, the attorney made contact with law enforcement authorities and made arrangements for the client to turn himself in. The client was to contact the attorney again but did not do so. The attorney was unable to make contact with the client to advise him of the arrangements made with the authorities. A law enforcement officer subsequently contacted the attorney and proposed to have the attorney contact the client while the officer was on the telephone line; he also requested the client’s telephone number from the attorney. The attorney declined both of the requests, even after the law enforcement officer suggested the attorney could be prosecuted for harboring a fugitive from justice.
Analysis: An attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyers’ profession.1 An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. In this case, advice and assistance were sought, and the attorney agreed to represent the client. Therefore, an attorney/client relationship was created.
The information given to the lawyer and his firm in the course of the representation is confidential. Rule 1.6, Confidentiality of Information, prohibits a lawyer from revealing information relating to representation of a client unless the client consents after consultation. There are permissible exceptions spelled out in Rule 1.6, none of which apply here.2The fact that the client may be accused of committing a criminal act and the fact that the client may be a fugitive are not relevant to this issue, and the attorney is ethically barred from revealing information relating to the representation of the client, even if revealing the information would assist in apprehending a fugitive. The scope of confidentiality under Rule 1.6 is broad: All information relating to representation of a client is confidential, even if the information is available elsewhere, and it may not be disclosed by the attorney unless it is covered by a specific exception contained in the rule.
A lawyer may not assist a client in conduct that is criminal or fraudulent.3 However, not revealing a phone number given by a client to his attorney in the course of representation does not assist the client in any criminal or fraudulent conduct.
Rule 1.6(b)(4) does permit a lawyer to reveal such confidential information to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law. The comment to this subsection, however, indicates there is a presumption against concluding that any other provision of law supersedes Rule 1.6.4There is nothing in the factual situation before us that would supersede Rule 1.6 and permit disclosure of confidential information.
Footnotes
1.E.g., Breuer-Harrison, Inc. v. Combe , 799 P.2d 716, 727 (Utah App. 1990), citing with approval People v. Morely, 725 P.2d 510, 517 (Colo. 1986) (en banc) and Steinback v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987).
2.A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) To rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
(4) To comply with the Rules of Professional Conduct or other law.
Utah Rules of Professional Conduct 1.6(b). It is noted that none of these exceptions mandate disclosure by the lawyer.
3.Utah Rules of Professional Conduct 1.2.
4.”Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against a supersession.” Id. Rule 1.7 cmt.

Ethics Advisory Opinion No. 97-12

(Approved January 23, 1998)
Issue:
Utah Code Ann. § 62A-4a-403 obligates any person who suspects a child has been subjected to abuse to report such conduct to the nearest law enforcement officer. Is it a violation of the Rules of Professional Conduct if the attorney does not report a client’s conduct that falls under this provision when the attorney learns of such conduct from the client and the client refuses to consent to such disclosure?

Opinion: It is not a violation of the Rules of Professional Conduct if the attorney does not disclose such information, but the attorney may, to the extent the attorney believes necessary, disclose attorney-client information as provided in Rule 1.6(b).
Facts: The Committee has been asked to assume that an attorney, in the course of attorney-client consultations, learns from a client that the client has subjected a child to abuse. The client does not consent to disclosure by the attorney of the abuse to law enforcement authorities.1
Utah Code Ann. § 62A-4a-403(1) provides, in pertinent parts, as follows:
Except as provided in Subsection (2), when any person, including persons licensed under Title 58, Chapter 12, Part 5, Utah Medical Practice Act, or Title 58, Chapter 31, Nurse Practice Act, has reason to believe that a child has been subjected to incest, molestation, sexual exploitation, sexual abuse, physical abuse or neglect, or who observes a child being subjected to conditions or circumstances which would reasonably result in sexual abuse, physical abuse or neglect, he shall immediately notify the nearest peace officer, law enforcement agency or office of the division.
Section 62A-4a-403(2) provides an exception for clergy, who are not required to notify law enforcement authorities under certain circumstances. The statute does not address the duty of confidentiality regarding the attorney-client communications contained Utah Rules of Professional Conduct 1.6 and the attorney-client privilege in Utah Rules of Evidence 504, nor the privilege against self-incrimination contained in the Utah Constitution, Article I, § 12.
Analysis: Rule 1.6(a) of the Rules of Professional Conduct prohibits an attorney from revealing information relating to the representation of a client unless that client consents after disclosure. Rule 1.6(b) provides some exceptions to this prohibition:
A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
(4) to comply with the Rules of Professional Conduct or other law.2
The confidentiality of communications between attorney and client is further recognized in Utah Rules of Evidence 504(b),3which provides in pertinent part:
General Rule of Privilege. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives and lawyers representing others in matters of common interest, in any combination.
Certainly, to prevent that client from committing a criminal act the attorney believes is likely to result in death or substantial bodily harm to the child, an attorney who is informed by a client that he intends to commit child abuse could reveal this intent to the appropriate authorities if the attorney reasonably believes disclosure is necessary under Rule 1.6(b)(1). However, Utah Code Ann. § 62A-4a-403 is not aimed at future conduct. It purports to require an attorney to disclose past conduct of a client that would otherwise be privileged. Consequently, the issue before this Committee is whether an attorney violates the Rules of Professional Conduct by failing to disclose the client’s past conduct under § 62A-4a-403.4
The requirements of Utah Code Ann. § 62A-4a-403, as applied to attorneys, appear to be in conflict with the Utah Constitution and the Utah Rules of Evidence. However, it is not within the jurisdiction of this Committee to determine which of these authorities governs the situation. Deciding which of these provisions controls an attorney’s behavior is a legal question, not an ethical one. We are constrained, if for no other reason, by our rules, as approved by the Board of Bar Commissions of the Utah State Bar: “The Committee shall not respond to requests . . . [f]or a legal opinion, rather than an ethics opinion.”5Hence, we are limited to addressing the question of whether an attorney who does not report behavior covered by § 62A-4a-403 has committed an ethical violation.
There also appears to be a conflict between § 62A-4a-403 and Rules of Professional Conduct 1.6 to the extent the statute requires the attorney to disclose information that Rule 1.6 requires the attorney to preserve as confidential. The commentary to Rule 1.6 acknowledges that the Rules in various circumstances authorize a lawyer to disclose information relating to the representation, specifically noting disclosures under Rules 1.13 (Organization as Client), 2.2 (Lawyer as Intermediary), 2.3 (Lawyer’s Evaluation for Use by Third Parties), 3.3 (Candor Toward Tribunal) and 4.1 (Truthfulness in Statements to Others). The Rule 1.6 comment goes on to state:
In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such supersession.
The Committee believes the presumption against supersession is a proper one, particularly in light of what appears to be a conflict between § 62A-4a-403, on the one hand, and, on the other, the attorney-client privilege in Rules of Evidence 504 and the privilege against self-incrimination in the Utah Constitution. However, as stated in our Advisory Opinion No. 95-06,6whether an attorney can be compelled to disclose such information in the face of these privileges is a legal question beyond the jurisdiction of the Committee to answer.
In light of the Committee’s limitation to decide only ethical issues, we can conclude only that an attorney who fails to report information obtained from the client that falls under Utah Code Ann. § 62A-4a-403 does not violate the Rules of Professional Conduct. Nevertheless, the attorney does have the discretion to disclose such information with client consent under Rule 1.6(a) or to the extent the attorney believes it is necessary under Rule 1.6(b).
Footnotes
1.Utah Rules of Professional Conduct 1.6(a) permits the attorney to report the incident if the client consents.
2.Utah Rules of Professional Conduct 1.6(b).
3.A related protection is found in Utah Const., art. I, § 12, which provides that a person accused of a criminal offense shall not be compelled to give evidence against himself. Arguably, this extends through the attorney-client relationship to mean the client’s attorney cannot be compelled to give such evidence.
4.Note that Rule 1.6(b)(4), which states that “A lawyer may reveal such [attorney-client] information to the extent the lawyer believes necessary . . . [t]o comply with . . . other law” (emphasis added), does not itself require the lawyer to reveal the information.
5.Ethics Adv. Op. Comm. Rules of Proc. § III(b)(3).
6.Utah Ethics Advisory Op. No. 95-06, 1995 WL 464483 (July 28, 1995), states an attorney may , under Rule 1.6(b), disclose information leading the attorney to believe a person who is not his client has subjected a child to abuse, even if such information is obtained during the course of representing the attorney’s client and even if the client objects to the disclosure. Opinion No. 95-06 did not address whether the attorney was compelled to disclose such information, stating only that this issue required determination of a legal, as opposed to an ethical, duty that is beyond the purview of the Committee.

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.