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 13-05

Utah State Bar

 Ethics Advisory Opinion Committee

Opinion Number 13-05

 Issued September 10, 2013

 ISSUE

 

1.         To what extent may an attorney participate in an “on-site” fee/retainer funding program to obtain and finance attorney retainer or litigation funds?

 OPINION

 

2.         A lawyer may not participate in an “on-site” fee/retainer funding program, under the circumstances set forth herein, as such would violate the provisions of Rules of Professional Conduct 1.7(a) (Conflict of Interest: Current Clients), Rule 1.8(a) (Acquire a pecuniary interest adverse to the client).  The lawyer may, however, obtain a waiver of the conflict by complying with the terms of Rules 1.7(b) and 1.8(a), including making full disclosure and obtaining “informed consent” confirmed in writing.  Adequate measures must also be taken to safeguard the lawyer’s independent judgment under Rule 5.4(c) (A third party may not direct or regulate the lawyer’s professional judgment.)
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Ethics Advisory Opinion 13-04

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 13-04

Issued September 30, 2013

ISSUE

 1.        The question before the Committee concerns federal criminal law practice in the District of Utah.  Although it may have general application, this Opinion is confined to that arena.   The question is whether it is ethical under the Utah Rules of Professional Conduct for a criminal defense attorney (hereafter “the attorney”) to advise a client/defendant (hereafter “the client”) to negotiate and enter into a plea agreement whereby the client, as an integral part of his plea of guilty, waives all post-conviction claims the client may have, including claims of ineffective assistance of the attorney, except for claims of ineffective assistance of counsel based upon negotiating or entering in to the plea or waiver.

OPINION

 

2.         The Committee concludes that it is a violation of Rule of Professional Conduct 1.7 for an attorney to counsel his client to enter into a plea agreement which requires the client to waive the attorney’s prospective possible ineffective assistance at sentencing or other postconviction proceedings.[1]

BACKGROUND AND ANALYSIS

3.         Numerous federal courts, including the Tenth Circuit Court of Appeals, have concluded that waivers of post-conviction rights by criminal defendants are valid and enforceable so long as there is an adequate plea colloquy and such pleas are entered knowingly and voluntarily.[2] The Committee’s opinion is confined to the limited question of whether the attorney can negotiate and advise a client to enter into a guilty plea agreement which waives all postconviction claims, including those based upon ineffective assistance of counsel, consistent with the Utah Rules of Professional Conduct.  The Committee concludes that doing so would be a violation of Rule 1.7.  Under Rule 1.7(a), “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.”  In relevant part, the Rule defines a “concurrent conflict of interest” as the existence of “a significant risk” that the lawyer’s representation of “one or more clients” “will be materially limited” “by a personal interest of the lawyer.”  Utah R. Prof. C. 1.7(a)(2).[3]

4.         A defendant’s waiver of the statutory right to direct appeal contained in a plea agreement is enforceable if the defendant has agreed to its terms knowingly and voluntarily.  United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998).  The issue of waiving the right to appeal is analyzed in the Tenth Circuit using the following factors:

(1) whether the disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver would result in a miscarriage of justice . . . (Citation omitted).

United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004).  Thus, given the third prong of the analysis, even in the presence of a waiver of appeal, a criminal defendant does not subject himself to being sentenced entirely at the whim of the district court.  Id.  Nevertheless the Committee’s Opinion is launched from the premise that the law is settled, certainly in the Tenth Circuit where this question arises, that a valid plea agreement waiver of either the right to appeal or  other collateral attack is entitled to be enforced according to its terms either on appeal or by way of collateral attack.  Such a waiver is subject to certain exceptions, e.g., where the agreement was involuntary or unknowing, where the court relied on an impermissible factor such as race, or where the agreement is otherwise unlawful, et cetera.  Numerous authorities exemplifying such exceptional circumstances are identified in the Tenth Circuit’s pivotal decision, United States v. Cockerham, supra n. 2, 237 F.3d at 1182.

5.         The Tenth Circuit in Cockerham identifies two critical components to determining whether the right to collateral relief survives a waiver.  First, whether there is a basis for a claim of ineffective assistance of counsel.  Second, whether that ineffectiveness claim pertains to the validity of the plea.  Id. 1187.

(W)e hold that a plea agreement waiver of postconviction rights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver.  Collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable.  (Citation omitted).

Id.  This rubric applies equally to the waiver of the right to appeal as to waiver of other postconviction relief, such as a § 2255 petition.  Id. 1183.  Stated differently, a defendant cannot be held to a waiver of his right to the effective assistance of counsel if that waiver goes to the negotiation of the plea agreement itself.  If however, it goes to a matter “falling outside” the negotiation of the plea agreement including any other waiver contained within the ambit of the plea agreement, the waiver will be upheld.[4]  The most frequent and obvious matter “falling outside” the negotiation of the plea agreement itself, is the sentencing.  It may also include a motion to set aside the plea agreement or to extend the time in which to appeal or other such matters.  Primarily however the waiver goes to the attorney’s performance at sentencing.

6.         The Committee need not determine whether it would be unethical for an attorney to counsel a client to waive a claim of ineffective assistance of counsel in the actual negotiation and entry into a plea agreement.  Cockerham holds that, “(A) claim of ineffective assistance of counsel in connection with the negotiation of a plea agreement cannot be barred by the agreement itself.”  Id, 1184 (cases cited at n. 2).  The government and defense counsel seem to have come to an uneasy truce with regard to this fact by the wording of the waiver which is now included within the plea agreement at issue in this Opinion.  ¶ 7, infra.  As to postconviction matters, however, the question remains:  can the attorney ethically counsel the client to waive her ineffective assistance in futuro?[5]

7.         The specific waiver provision of the plea agreement in this instance states, in relevant part, as follows:

I also knowingly, voluntarily, and expressly waive my right to challenge my sentence, and the manner in which the sentence is determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C § 2255, except on the issue of counsel’s ineffective assistance in negotiation or entering this plea or this waiver as set forth in United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001).

The plea agreement further states,

I further understand and agree that the word “sentence” appearing throughout this waiver provision is being used broadly and applies to all aspects of the Court’s sentencing authority, including, but not limited to: (1) sentencing determinations; (2) the imposition of imprisonment, fine supervised release, probation, and any specific terms and conditions thereof; and (3) any orders of restitution[.]

It also contains the standard language incorporated in such statements in support of a guilty plea:

I have no mental reservations concerning the plea.

I understand and agree to all of the above.  I know that I am free to change or delete anything contained in this statement.  I do not wish to make changes to this agreement because I agree with the terms and all of the statements are correct.

The attorney, in addition to the client, is required to execute the agreement.  The attorney certifies that,

I have discussed this statement with the defendant,  that I have fully explained his rights to him, and I have assisted him in completing this form.  I believe that he is knowingly and voluntarily entering the plea with full knowledge of his legal rights and that there is a factual basis for the plea.

Nowhere within this plea agreement is there an express waiver of the right to effective assistance of counsel subsequent to the entry of a plea of guilty at the trial court level.  Nor does it affirmatively suggest that the client is waiving his right to attack his sentence or other subsequent trial court proceedings on the basis of ineffective assistance of counsel in a 28 U.S.C § 2255 or similar such procedure (e.g., coram nobis, all of which are hereafter referred to generically by reference to “2255”).

8.         The question was also raised whether it is ethical for the attorney to counsel and negotiate the waiver of the right to appeal as part of the plea agreement.  However, no waiver of the right to appeal is included within the waiver language set forth in ¶ 7.  This has no practical impact on the reasoning underlying this opinion.  Whether at the appellate level or in a subsequent 2255 proceeding, the ethical question remains the same.  The question is whether the attorney can counsel the client to waive the attorney’s own prospective ineffective assistance, specifically, but not necessarily limited strictly, to sentencing.  In any case, the issue has little practical importance at the appellate level because under prevailing law of the Tenth Circuit, the ability to challenge the effectiveness of counsel on appeal is extremely limited.[6]  Nevertheless, the conclusions set forth herein regarding collateral proceedings apply with equal logic and force to such matters raised on appeal.

9.         Many circuits, the Tenth Circuit Court of Appeals included, hold that the waiver of appellate and postconviction rights in a plea agreement will be enforceable as against the claim of ineffective assistance of counsel only if the challenge is to the negotiation of the plea agreement rendering the plea unknowing, unintelligent and involuntary.[7]  The client who has waived a 2255 hearing, may challenge the basis of the plea agreement.  If the attorney wrongly determined that there was a genuine factual basis for the entry of a plea of guilty to the charges, that is an issue going to the negotiation, counseling, and entry of the plea of guilty itself.  That may be challenged.  But as to issues of sentencing, e.g., that the lawyer failed to object to the quantity of drugs, the calculation of which determines the length of the sentence[8], that issue would be barred from future litigation because the right to a 2255 hearing was waived and the issue does not go to the negotiation or entry of the plea.

10.       From the government’s perspective, without the waiver, substantial valuable legal and judicial resources must be spent litigating 2255 actions alleging ineffective assistance of counsel, the majority of which are likely to be frivolous.  This substantially degrades the government’s, the court’s, and the public’s interest in finality of criminal judgments.  On the other hand, defense counsel believe they cannot ethically counsel clients to waive actions such as those under 2255 because it implicitly requires attorneys to counsel their clients to waive not only the right to bring such claims generally, but to waive their own prospective ineffective assistance of counsel, during the sentencing or other post-plea procedure.  But the query put to the Committee cannot be effectively answered in a vacuum; it is necessary to be advised of the legal background in order to understand the competing considerations.  There appears to be no judicial opinion to date which addresses the issues presented within the context of the arguable denial of the right to counsel under the Sixth Amendment.

11.       Numerous State Bar ethics opinions have found such a waiver to be unethical on various grounds, usually including, but not always, on the basis of a “personal interest” conflict.[9]  The relatively recent opinion, Alabama State Bar Ethics Op. RO 2011-02, states with little fanfare:

The Disciplinary Commission finds it hard to conceive of a situation where it would be in the interests of a lawyer for his client to file an ineffective assistance of counsel claim.  Such claims against a lawyer can harm that lawyer’s reputation and subject that lawyer to discipline by the Bar or the courts.  However, there are times when it may be in the client’s best interest to file an ineffective assistance of counsel claim against his lawyer. It would be inappropriate under any scenario for the lawyer against whom the claim may be brought to counsel the client as to whether to bring that claim or to waive the right to bring such a claim. This is especially so in the context of a criminal case where the client’s freedom and liberty may be at stake.  As such, the lawyer may not counsel the client as to whether to waive his right to bring an ineffective assistance of counsel claim.

Unfortunately, this opinion limits itself to the bald question of “the ethical propriety of a criminal defense lawyer advising a client on whether to enter into a plea agreement that contains a provision requiring the client to waive the right to later bring an ineffective assistance of counsel claim against that attorney.”  It does not raise the question in the context of the instant query and, even then, contains little or no analysis.  Nevertheless, its conclusion is valuable because it deals squarely with Alabama’s Rule of Professional Conduct dealing with conflicts analogous to Utah’s RPC 1.7(a)(2) and finds that the attorney has a personal interest conflict.  We turn then to the issue of what kind of “personal interest” may be involved.

12.                An attorney’s “personal interest” may take several forms.  A personal interest conflict may result from entirely “altruistic” interests or “from a lawyer’s deeply held religious, political, or public policy beliefs.”  Restatement 3rd of the Law Governing Lawyers, § 125, A Lawyer’s Personal Interest Affecting Representation of a Client, Comment c.  Although it is increasingly a part of the everyday life of the criminal defense lawyer, no attorney wishes to have an action brought alleging ineffective assistance; it goes against the grain and is uncomfortable in varying degrees of intensity, based on the circumstances.  An attorney’s reputation is a highly valuable commodity, which a 2255 alleging ineffective assistance puts at risk.  Having to respond in some fashion, or having to prepare, appear and testify at a 2255 could involve very substantial time on the part of the attorney, at considerable loss of billable hours.  In some cases, the attorney, or errors and omissions insurer, may feel the need to put money out of pocket to hire counsel to represent her in such a proceeding.  And although such instances are rare, for serious enough conduct, an adverse finding against the attorney in a 2255 action could trigger disciplinary action by the Bar Association and/or affect the attorney’s malpractice coverage/premiums.  For counsel appointed in federal court under the Criminal Justice Act of 1964 (CJA), 18 USCA § 3006A, et seq., reliant upon payment by the government for their services, an adverse finding in a 2255 action could mean expulsion from the CJA panel and the consequent significant loss of income.  Another common situation is that many if not most criminal defense lawyers charge a flat fee in advance of entering an appearance on behalf of the client.  For those who have received a flat fee, whether or not the post-conviction portion is deemed earned at the time of the plea or only after sentencing, there exists a disincentive for the attorney to go the extra mile and may well have the psychological effect of diminishing devotion to the client’s cause knowing that the proceeding is already paid for and that any measure of ineffective assistance at sentencing would be a claim barred by the plea agreement anyway.[10]  There may be other personal interest conflicts not mentioned as well.  “Furthermore, unlike under Rule 1.7(a)(1), under Rule 1.7 (a)(2), there is no threshold requirement that the competing interest be ‘directly adverse’ to the client’s interest.  Any significant competing interest that threatens to ‘materially limit’ the representation is sufficient.”  (Emphasis in original)  The Law of Lawyering, 3rd, Hazard and Hodes, § 11.8 Model Rule and the Risk That Representation Will Be Materially Limited, Overview of Conflicts of Interest in the Law of Lawyering.[11]  Taking these various factors into consideration, it is evident that an attorney has a substantial personal interest in counseling a client to waive the 2255, thereby waiving any claim of ineffective assistance in postconviction matters.  Such a personal interest conflicts with the right of the client’s to unalloyed loyalty from the attorney.

13.                A more current decision, Florida Bar Professional Ethics of the Florida Bar, Op. 12-1, finds that, “(A) criminal defense lawyer has an unwaivable conflict of interest when advising a client about accepting a plea offer in which the client is required to expressly waive ineffective assistance of counsel. . . .”  While the question is posed in terms of an express or explicit waiver, the opinion itself does not seem so limited as the aforementioned Alabama opinion.  It quotes approvingly language from the Virginia State Bar issued Legal Ethics Opinion 1857 (2011):  “Defense counsel undoubtedly has a personal interest in the issue of whether he has been constitutionally ineffective, and cannot reasonably be expected to provide his client with an objective evaluation of his representation in an ongoing case.”  This of course raises the important point that, unlike their civil counterparts, criminal lawyers have a “duty of loyalty” imposed by the Sixth Amendment to the U.S. Constitution,[12] in addition to the duty of loyalty which runs as a theme throughout the Rules of Professional Conduct.[13]

14.                It is this duty of loyalty, heightened for the criminal lawyer by the duty of loyalty under the Sixth Amendment to the United States Constitution, which raises the objectivity factor to a level which, in part, constrains this Committee to opine that an unwaivable conflict arises under RPC 1.7(a)(2).  Waiver of ineffective assistance in futuro interferes with the relationship between the attorney and the client.  It shifts the focus from advice about the case and the plea agreement to the attorney-client relationship itself.  It demands that the attorney counsel the client that, even though she intends to do a good job in future matters, if she doesn’t, the client can do nothing about it.  It sets up an untenable “personal interest” conflict in the form of a professional, if not psychological, dilemma.  This is because the decision to advise the client to waive appeal and collateral attack in a plea agreement is inextricably intertwined with a waiver of the attorney’s prospective ineffective assistance of counsel.  Given the various types of personal interests involved, this will almost inevitably cloud the lawyer’s ability to give wholly un-conflicted advice.  This, the Committee believes, is a “material limitation” on the attorney’s ability to effectively represent the client.  Obviously, if an attorney were prescient enough to know whether she were going to be ineffective in the future, she would change her course of action.  Therein lies the problem.  Theoretically, although some cases are obviously much easier to predict than others, the attorney can never know for a certainty that her performance will not fall below the stringent standard required for there to be “effective assistance” under the Sixth Amendment as well as other professional requirements.[14]  In Rumsfeldian terms, the attorney simply does not know what the attorney does not know.  This professional dilemma, cognitive dissonance as it were, in separating the duty of loyalty to the client from the attorney’s personal interest in remaining free from future claims of ineffective assistance, portends that the attorney’s reasonable objectivity in counseling the client and negotiating the plea is at great risk of being lost.  This, the Committee believes gives rise to the sort of “material limitation” in representing a client which is proscribed by RPC 1.7(a)(2).

15.  Rule 1.7 provides for client waiver with informed consent.  See 1.7(b)(4).  Obtaining an informed consent from the client to such a conflict presents further problems.[15]   It is untenable for an attorney to have to be in the position of having to advise a client that it is wise to waive her own future possible ineffective assistance of counsel.  The official comments to the Rules of Professional Conduct indicate that any attorney who fails to “personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid.”[16]  The only practicable remedy for such an oppositional conflict would be to bring in “conflict counsel,” who would be required, depending upon the complexity and circumstances presented, to review the documentation existing in the case, make a determination as to the possible future pitfalls which might arise, and attempt to render impartial neutral advice to the client regarding whether such waiver were advisable.[17]  This then spawns the further question as to the duty of loyalty of the lawyer charged with resolving the conflict question and whether that lawyer’s crystal ball advice could later be questioned on the basis of ineffective assistance.  No doubt that also could be waived.  Nevertheless, one can fantasize a daisy chain of conflict lawyers, each passing upon the soundness of the judgment of the next preceding one.  But the more realistic issue is the practicality of having to bring in separate counsel on each such plea agreement.  Such a requirement is simply too cumbersome and expensive to be practical.

16.  The Florida Bar Opinion, supra, cites several other state bar opinions which find a waiver of ineffective assistance to be unethical, for a variety of reasons.  Those grounded in a personal conflict of interest are worthy of mention.  The Missouri Formal Ethics Formal Opinion 126 (2009) arose in the context of a waiver of postconviction relief, much as the instant Opinion.  It opined, inter alia, in a brief opinion that it is impermissible for a lawyer to advise a criminal defendant to relinquish claims of ineffective assistance of counsel by that lawyer, because the lawyer cannot properly ask the client to waive this type of personal conflict.   State Bar of Nevada Standing Committee on Ethics and Professional Responsibility, Op. 48 (Citing The Nevada Rule of Professional Conduct (NRPC) 1.7(a)(2), which prohibits “representation in which a significant risk exists that representation of a client will be materially limited by a personal interest of the lawyer,” concluded that a waiver must exclude all potential claims of ineffective assistance of counsel, not only those claims limited to the plea agreement itself.).  Supreme Court of Ohio Board Of Commissioners On Grievances And Discipline OH Advisory OPINION 2001-6 determined it to be unethical under the Ohio Code of Professional Responsibility for a prosecutor to negotiate and a criminal defense attorney to advise a defendant to enter a plea agreement that waives the defendant’s appellate or post-conviction claims of ineffective assistance of trial counsel or prosecutorial misconduct.

17.     Texas Ethics Opinion 571 (2006) is perhaps the only opinion to set no hard and fast rule, leaving it to the attorney’s discretion in evaluating the circumstances on a case by case basis:

In summary, a criminal defense lawyer must consider the application of Rule 1.06 [analogous to Utah’s RPC 1.7(b)] in each case involving a plea agreement waiver of post-conviction appeals based on ineffective assistance of counsel.  In some cases, the criminal defense lawyer will be able to determine that there is no concern on the part of the lawyer as to the effectiveness of the lawyer’s assistance to the defendant that would create a conflict of interest for the lawyer under Rule 1.06(b)(2).  In that event, the lawyer may represent the defendant with respect to the plea agreement waiver.  In other cases, the representation will be permitted after the lawyer’s evaluation under Rule 1.06(c)(1) and disclosure and consent under Rule 1.06(c)(2).  In other cases, a conflict of interest will exist within the scope of Rule 1.06(b)(2) and it will not be possible for the lawyer to meet the requirements of Rule 1.06(c).  In that event, the defendant must be advised by separate counsel concerning the proposed waiver of post-conviction appeals based on claims of ineffective assistance of counsel.

This opinion does no more than place the attorney at square one, in exactly the position she would have been had the question not been asked and there were no opinion.  It provides no guidance except to leave it to the attorney’s discretion to determine whether the prosecution’s offer of a deal coupled with a 2255 waiver is just too sweet to pass up even if the attorney cannot objectively assess whether there is a possibility, remote though it may be, that she would be ineffective in postconviction proceedings in the trial court.  The Committee finds this opinion to be unpersuasive.

18.  The National Association of Criminal Defense Counsel Opinion 12-02, indicates that a criminal defense lawyer may not participate in a plea agreement that waives the client’s right to collaterally attack the plea with a claim of ineffective assistance of counsel, inter alia, because of the personal conflict of interest it presents for criminal defense counsel.  “(I)n such plea agreements, the lawyer is advising the client to waive his or her rights to challenge the constitutional effectiveness of the lawyer.  This is an obvious conflict of loyalty to the client.”  The opinion cites Model Rule of Professional Conduct 1.7(a), analogous to Utah Rule 1.7(b).  It further cites Comment ¶ 10 [analogous to Comment 10 of Utah’s Rule 1.7(b)][18]

19.         With regard to the further question put to the Committee, whether it would be unethical for a prosecutor to require the defense attorney to counsel his client to enter into a waiver with regard to her own ineffectiveness, if the latter activity is a violation of the Rules Of Professional Conduct, the Rules are clear and this Committee has previously ruled in an analogous context, such conduct would be an ethical violation.   RPC 8.4 states that it is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.

 

Consequently, “ . . . the conclusion cannot be avoided that a lawyer cannot require or ask opposing counsel to agree to (violate a Rule of Professional Conduct) as a condition of settlement since that would constitute inducing and assisting another to violate the Rules of Professional Conduct.”[19]

CONCLUSION

 

20.  It is a violation of Rule of Professional Conduct 1.7 for an attorney to counsel his client to enter into a plea agreement which requires the client to waive the attorney’s prospective possible ineffective assistance at sentencing or other postconviction proceedings.

_________________________________________________________________________

Dissenting Opinion

by

Ryan D. Tenney

Suppose that a defendant is charged in federal court with distributing child pornography.  This crime ordinarily carries a mandatory minimum sentence of 5 years in federal prison, with an upward possibility of up to 20 years in prison.  See 18 U.S.C. § 2252A(a)(2), (b)(1).  But because the defendant also has a prior sex offense conviction involving a minor, the potential sentence is actually much worse. Under § 2252A(b)(1), the defendant is now subject to a mandatory minimum of 15 years in prison, with an upward possibility of 40 years in prison.

After the defendant’s attorney meets and negotiates with federal prosecutors, however, the U.S. Attorney’s office agrees to offer a deal in which the defendant would plead guilty to one count of possessing child pornography. The sentencing range for this crime is 0 to 10 years.  See 18 U.S.C. § 2252A(a)(5), (b)(2).

In exchange for these substantial concessions, the U.S. Attorney’s office insists that the defendant agree to the following as part of the plea bargain: “I also knowingly, voluntarily, and expressly waive my right to challenge my sentence, and the manner in which the sentence is determined, in any collateral review motion, writ, or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255.”

Even with this waiver, the defendant would still have very good reason to accept the deal. As a starting point, the deal would remove the mandatory minimum—a pronounced benefit in its own right.  But perhaps more importantly, even if everything that could possibly go wrong at the upcoming sentencing hearing does go wrong, the defendant would still likely serve several fewer decades in prison than he would have without the deal.

Despite this, the Committee concludes today that it would be unethical for the defense attorney to advise the defendant to take this deal.  I disagree. 1

* * * * *

As indicated in the Committee’s opinion, the waiver provision at issue would bar the defendant from later claiming that his counsel was ineffective at the sentencing hearing. The Committee concludes that the defense attorney’s perceived personal interest in avoiding an ineffective assistance claim based on his own performance creates a conflict of interest under rule 1.7(a)(2) of the Utah Rules of Professional Conduct.  Under this rule, a “conflict of interest exists” when there is a “significant risk” that the lawyer’s representation will be “materially limited” by his own “personal interest.”

The underlying premise of the Committee’s opinion is that when a defendant raises an ineffective assistance claim, that claim is “against” the defense lawyer.  For example, the Committee relies on an ethics opinion from Alabama stating that it would be inappropriate “for the lawyer against whom the claim may be brought” to advise the client whether to agree to such a waiver.  See Cmte. Op. at ¶11 (emphasis added, quotations and citation omitted).

But this premise is simply wrong.  The ineffective assistance of counsel doctrine stems from the Sixth Amendment to the United States Constitution, which states that “[i]n all criminal prosecutions,” “the accused” shall have the assistance of counsel “for his defense.”  In Strickland v. Washington, 466 U.S. 668, 686 (1984), the Supreme Court clarified that the right to counsel also includes the right to the “effective assistance of counsel.”

Because an ineffective assistance claim is based on the Sixth Amendment, it ordinarily arises in the direct appeal from the “criminal prosecution[ ].”  Cf. Turner v. Rogers, 131 S.Ct. 2507, 2516 (2011) (“the Sixth Amendment does not govern civil cases”).  Or, pursuant to state or federal statute, it may also arise in a collateral attack on the criminal conviction that is filed in a post-conviction proceeding.  But in both scenarios, the parties to the case are the government and the defendant, not the defendant and his prior lawyer. Cf. Hinton v. Rudasill, 624 F.Supp.2d 48, 50 (D.D.C. 2009) (recognizing that “the Sixth Amendment restrains only governments, not private individuals”).  Thus, when a defendant raises an ineffective assistance claim under the Sixth Amendment, he does not raise it “against his lawyer”—rather, he raises it against the government which he claims has unconstitutionally convicted him even though he did not receive the effective assistance of counsel.

This is further demonstrated by the nature of the requested relief. If a defendant demonstrates that his trial counsel was ineffective, the defendant does not receive anything from the lawyer as a remedy.  Rather, what the defendant receives is a reversal of his criminal conviction or sentence.  Because of this, “the ineffective assistance doctrine does not deter misfeasance or malfeasance by counsel.  It is the government, not the defense attorney, who suffers adverse consequences when a defendant’s conviction is vacated due to ‘ineffective assistance.’”  Ramirez v. United States, 17 F.Supp.2d 63, 66 (D.R.I. 1998).

The Committee’s opinion assumes otherwise—i.e., it assumes that the waiver provision at issue in this opinion request is a broad one that would somehow protect the defense lawyer’s personal interests. But by its own terms, the effect of this waiver provision is actually very limited.  Again, when the defendant agrees to this provision, the only thing he agrees to waive is “my right to challenge my sentence, and the manner in which the sentence is determined, in any collateral review motion, writ, or other procedure, . . . .”  (Emphasis added).  This provision does not purport to waive anything else.  Thus, even if the defendant agrees to such a waiver, and even if his counsel subsequently underperforms at sentencing, the defendant could still hold the lawyer personally responsible using any and all means that would have been available to him if he did not agree to the waiver.

For example, nothing in this waiver would prevent the defendant from suing his lawyer for malpractice or breach of contract. Nothing in this waiver would prevent the defendant from filing a bar complaint alleging that his lawyer violated his professional obligations. Nothing would prevent him from contacting the Utah Bar’s Office of Professional Conduct and asking them to investigate the lawyer.  Nothing would prevent the defendant from telling all of his friends and neighbors and colleagues about what a terrible job his lawyer did representing him.  Instead, the only thing that the defendant would no longer be able to do is use his lawyer’s performance as a means for challenging his own sentence in his own case.

Despite this, the Committee maintains that there are still several ways in which an ineffective assistance claim might personally impact the defense lawyer to such a degree that a conflict of interest would exist under rule 1.7(a)(2).

First, the Committee suggests that an ineffective assistance claim might adversely impact the lawyer’s personal reputation.  Cmte. Op. at ¶12.  But I don’t believe this is a realistic problem, let alone one that is significant enough to create a conflict of interest under rule 1.7, because it is not the ordinary practice of either the 10th Circuit or Utah’s state appellate courts to publicly identify defense lawyers who are accused of having been ineffective.  In reviewing this ethics opinion request, I surveyed 10th Circuit opinions from the last 5 years.  The Tenth Circuit issued hundreds of opinions in criminal cases during that span.  So far as I can tell, though, only about 3 to 5 of them a year identified the trial lawyer by name as part of an ineffective assistance analysis. The rest either did not involve an ineffective assistance claim, or, more commonly, analyzed an ineffective assistance claim but did not identify the lawyer whose conduct was at issue.  Moreover, even of those that did analyze an ineffective assistance claim and did identify the lawyer, the majority of cases rejected the ineffective assistance claim, thereby negating any adverse reputational impact on the lawyer. When I reviewed decisions from Utah’s state appellate courts over the same time span, I found similarly sparse results.

Thus, even if a criminal defendant is dissatisfied with his attorney’s performance, the likelihood that the defense lawyer will ever be publicly identified as having been ineffective under the Sixth Amendment seems exceedingly remote.  As noted above, however, a conflict of interest exists under rule 1.7 only when there is a “significant risk” that the attorney’s performance will be “materially limited” by the personal interest at stake.  Here, where the possibility of being publicly identified in an ineffective assistance ruling is so small, I do not believe that the attorney’s perceived interest in avoiding this would materially limit the lawyer’s ability to advise the client about the pros and cons of a plea deal.

Second, the Committee suggests that an attorney might be motivated to advise his client to accept such a waiver in order to avoid the possibility of professional discipline.  Cmte. Op. at ¶12.  The Utah Bar Journal publishes a monthly summary of all attorneys who have been professionally disciplined.  I have reviewed those summaries for the past five years and cannot find a single instance in which a criminal defense lawyer was sanctioned because a court had concluded that he was ineffective under the Sixth Amendment.

To be clear, there were a number of reported instances in which criminal defense lawyers were sanctioned for their professional misconduct.  But in each of those instances, the professional discipline was based on the attorney’s violation of his professional obligations under Utah’s Rules of Professional Conduct.  In no instance that I could find was the discipline based on a court’s conclusion that the attorney was ineffective under the Sixth Amendment.

This distinction is critical.  The Utah Rules of Professional Conduct do not contain a predicate requirement under which a criminal defense lawyer can only be professionally disciplined if there was an ineffective assistance ruling in the criminal case.  Thus, if a criminal defense lawyer performs incompetently, he could always be professionally sanctioned for violating his obligations of competence and diligence under rules 1.1 and 1.3.  The existence or non-existence of an ineffective assistance claim in the criminal case would not foreclose this.  Nor, for that matter, would this waiver provision—which, again, only prevents the defendant from challenging his own sentence in his own case.  Thus, this waiver provision would not insulate the defense lawyer from professional discipline at all.

Third, the Committee is troubled by the idea that this waiver encompasses future events. Cmte. Op. at ¶14.  The principal concern here seems to be about the provision’s enforceability. See id.  As a volunteer ad hoc ethics advisory committee, however, such concerns would seem to be beyond our institutional competence. In any event, parties can choose to accept (or not accept) agreements that will impact future events.  In Penunuri v. Sundance Partners, 2013 UT 22, ¶¶23-33, 301 P.3d 984, for example, the Utah Supreme Court recently affirmed the validity of contractual waivers for future negligence.

In a given case, of course, accepting such a waiver may or may not be a good idea.  But whether it is a good idea seems to be an entirely separate question from whether an attorney would have a conflict of interest under rule 1.7 in advising the client to take it.  I don’t believe that the future component to the plea bargain creates such a conflict.

Finally, the Committee raises the possibility that this waiver would create an incentive for sloppy performance. Cmte. Op. at ¶12. The Committee is concerned that if the defense lawyer knows that the defendant will not be able to raise an ineffective assistance claim in the criminal case, the lawyer will no longer have an “incentive” to “go the extra mile” when preparing for sentencing.  Id.

I don’t agree that this impacts the lawyer’s personal incentives at all.  Even with such a waiver, the lawyer would still have the same principled incentives for competent performance that he would have had if the defendant never agreed to the waiver: the lawyer’s own professional obligations under the Rules of Professional Conduct, as well as his contract with the defendant. Neither of these are removed by this waiver.   Instead, the only thing that is now off the table is the defendant’s ability to challenge his own sentence in his own case based on the lawyer’s conduct.

Moreover, if it is true that a lawyer has a conflict of interest under rule 1.7 if he has conceivable reason to not work as hard, then flat fees in general would suffer from the same ethical defect.  After all, if a defendant agrees to pay a lawyer a flat fee for representing him up to a certain point in a case, then the lawyer now has a personal incentive to minimize his time expenditure on the case (and thus maximize his hourly return).

But despite this possible concern, flat fees are accepted in Utah.  Indeed, this Committee recently approved their use in criminal cases—with the caveat being that the defendant must have the ability to seek a refund of any unearned fees.  See generally Utah Ethics Advisory Committee Opinion 12-02.  In the scenario at issue here, the defendant would have that same ability to seek that same contractual recourse.  Given this, I do not see why the attorney’s ethical obligations suddenly change if the defendant no longer has the ability to challenge his own sentence in his own case.

Finally, this opinion may well end up harming the very people that the Committee ostensibly seeks to protect: criminal defendants.  Approximately “ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas.”  Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012). It is recognized that this process is ultimately a contract negotiation between two sides who are both seeking to maximize their own value.  See State v. Patience, 944 P.2d 381, 386 (Utah App. 1997).  It is, in essence, “horse trading” between prosecutor and defense counsel—“that is what plea bargaining is.”  Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012) (quotations and citation omitted).

When the Eleventh Circuit looked at the validity of this kind of provision, it recognized that “plea agreements containing such waivers” are not only valuable to the government, but “also of value to a defendant, because it is another chip the defendant can bring to the bargaining table and trade for additional concessions from the government.” United States v. Bascomb, 451 F.3d 1292, 1294 (11th Cir. 2006).  Consistent with this, representatives from the U.S. Attorney’s Office have assured this Committee—both in writing and in person—that federal prosecutors only request this kind of waiver in cases where they are making “substantial concessions” to the defendant as a result. Representatives from the Federal Public Defender’s Office did not dispute this when directly asked about it at a meeting of this Committee.

Despite this, this Committee’s opinion will now likely remove this as a permissible bargaining chip in the plea negotiation process—at least in any case negotiated by attorneys who are subject to Utah’s Rules of Professional Conduct. But if the federal government can no longer ask for such waivers in such cases—thereby preventing the government from receiving this particular benefit—, then it stands to reason that the federal government will also be less inclined to make the same kinds of “substantial concessions” in its offers.  Thus, in many cases, the end result will be defendants who receive worse sentences than they would have if this provision were still an available negotiation item.

In my view, rule 1.7(a)(2) does not require this.  Instead, I believe that, even with this waiver, a defense lawyer who still remains bound by his professional obligations of competence, diligence, and loyalty, not to mention his contractual obligations, would be able to competently advise his client about the plea bargain—particularly where the waiver’s only direct effect would be to foreclose the defendant’s ability to challenge his own sentence in his own case.

For these reasons, I respectfully decline to join the Committee’s opinion.

Christopher H. Glauser (concurring)

4812-6507-8806, v.  1


[1].  The term “postconviction proceedings” is used in this Opinion to mean those matters, specifically but not necessarily limited to sentencing, which may occur subsequent to the client’s plea of guilty pursuant to the negotiated plea agreement.  “Conviction” as used here does not mean the “judgment of conviction” as defined in Fed. R. Crim. P. 32(k).

[2]United States v. Cockerham, 237 F.3d 1179, 1183-1188 (10th Cir. 2001) citing, inter alia, Jones v. United States, 167 F.3d 1142, 1144-1145 (7th Cir.1999). ; U.S. v. Broughton-Jones, 71 F.3d 1143, 1147 (4th Cir. 1995) (A defendant may waive her right to appeal, if that waiver is the result of a knowing and intelligent decision to forgo the right to appeal); U.S. v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995)(Waiver is valid, however, dismissal of an appeal based on a waiver in the plea agreement is inappropriate where the defendant’s motion to withdraw the plea incorporates a claim that the plea agreement generally, and the defendant’s waiver of appeal specifically, were tainted by ineffective assistance of counsel); DeRoo v. U.S., 223 F.3d 919, 923 (8th Cir. 2000)(Waiver of appeal, or challenge via post-conviction writs of habeas corpus or coram nobis, or the district court’s entry of judgment and imposition of sentence, is enforceable); Frederick v. Warden, Lewisburg Correctional Facility, 308 F.3d 192, 195-196 (2nd Cir. 2002) cert. denied, 537 U.S. 1146, 123 S. Ct. 946, 154 L. Ed. 847 (2003)(There is no general bar to a waiver of collateral attack rights in a plea agreement.  However, a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, e.g., the plea agreement); U. S. v. Pruitt, 32 F.3d 431 (9th Cir. 1994)(Waivers must be express and clear.  A plea agreement does not waive the right to bring a § 2255 motion unless it does so expressly. The government gets nothing more than what it bargains for); Davila v. U.S., 258 F.3d 448, 450-451 (6th Cir. 2001) (surveying cases and expressly adopting waiver)(A defendant may waive any right, even a constitutional right by means of a plea agreement so long at it is done knowingly, intelligently and voluntarily); Mason v. U.S. 211 F.3d 1065, 1069 (7th Cir. 2000)(Because defendant’s challenge has nothing to do with the issue of a deficient negotiation of the plea agreement, the waiver of right to seek post-conviction relief contained therein is enforceable).

[3]. Utah’s version of Rule 1.7 states as follows:

Rule 1.7. Conflict of Interest: Current Clients.

(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:

(a)(1) The representation of one client will be directly adverse to another client; or

(a)(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:

(b)(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(b)(2) the representation is not prohibited by law;

(b)(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(b)(4) each affected client gives informed consent, confirmed in writing.

[4]Cockerham offers no reasoning for distinguishing between negotiation of the plea agreement and postconviction matters.  “The courts that have differentiated between ineffectiveness claims attacking the validity of the plea or waiver and claims challenging counsel’s performance with respect to sentencing have not adequately explained why they make this distinction.”  Id.1186.  And although Cockerham has seemingly withstood the test of time, it is a split decision, with the dissent observing, “My disagreement stems from the majority’s conclusion that a general waiver-of-appeal-rights provision, such as the one at issue here, is sufficient to preclude a defendant from asserting on direct appeal or in a § 2255 motion Sixth Amendment violations that occur after entering into the plea agreement.”  Id. 1191.

[5].  It does not appear than any federal court has taken on the ethical ramifications of waivers of ineffective assistance of counsel in a negotiated guilty plea agreement either with respect to counseling the client and negotiation of the agreement itself or the waiver of ineffective assistance in matters yet to come to pass.

[6].  “Ineffective assistance of counsel claims should be brought in collateral proceedings, not on direct appeal. Such claims brought on direct appeal are presumptively dismissible, and virtually all will be dismissed.” United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc).

[7]. See note 2, supra.

[8].  See U.S.S.G. § 2D1.1.

[9]. Other opinions have found there to be potential for violation of provisions analogous to RPC 1.8(h)(1), prospectively limiting the lawyer’s liability for malpractice;  RPC 8.4(a) misconduct for a lawyer, i.e., a prosecutor to knowingly assist or induce another lawyer to violate the Rules of Professional conduct.  Because this Opinion is believed to be well grounded in the conflict of interest set forth in RPC 1.7, it is confined to that basis.

[10].  Several of these financially related conflicts could conceivably also implicate RPC 1.8(a), stating that,

(a) 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:

(a)(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;

(a)(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

(a)(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.

As with Rule 1.7(a)(2), the requirements of this Rule would be difficult for the attorney to circumnavigate under the circumstances presented.  As pointed out by Hazard and Hodes, “there is often significant overlap between the two [1.7(a)(2) and 1.8(a)].  The Law of Lawyering, supra, § 11.17, Material Limitation on the Representation Arising from a Lawyer’s Financial or Other Professional Interests.

[11].  Rule 1.7(a)(2) further differs from Rule 1.7(a)(a) in terms of the assumed severity of the conflicts of interest addressed.  The latter paragraph applies where directly adverse representation will take place, as when one current client is about to file suit against another current client. . . .  Rule 1.7(a)(2) on the other hand, applies only when representation of a current client is at substantial risk of being material impaired by the lawyer’s responsibilities to others.  (Emphasis in original)

The Law of Lawyering, id.

[12].  “Representation of a criminal defendant entails certain basic duties (under the Sixth Amendment). Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. See Cuyler v. Sullivan, supra, 446 U.S., at 346, 90 S.Ct., at 1717. From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. See Powell v. Alabama, 287 U.S., at 68–69, 53 S.Ct., at 63–64.”

 

Strickland v. Washington, 466 U.S. 668, 667-688, 104 S. Ct. 2052, 2064-2065, 80 L. Ed. 2d 674 (1984); Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 1103, 67 L. Ed. 2d 220 (1981) (“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.); Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 465, 86 L. Ed. 680 (1942) (“’Assistance of Counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.”)

[13].  “Loyalty to clients is one of the core values of the legal profession, perhaps equal in importance with maintaining confidentiality and diligently or zealously working to advance a client’s interest.”

The Law of Lawyering, 3rd, Hazard and Hodes, § 10.1 Overview of Conflicts of Interest in the Law of Lawyering.

[14].   “Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.”  Strickland, supra, 466 U.S. at 688, 104 S. Ct. at, 2065 citing Powell v. Alabama, 287 U.S., at 68–69, 53 S.Ct., at 63–64.

[15]. “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”

Rules of Professional Conduct, 1.0(f).

[16].  [6] Many of the Rules of Professional Conduct require the lawyer to obtain the informed consent of a client or other person (e.g., a former client or, under certain circumstances, a prospective client) before accepting or continuing representation or pursuing a course of conduct. See, e.g, Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain such consent will vary according to the rule involved and the circumstances giving rise to the need to obtain informed consent. The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct and a discussion of the client’s or other person’s options and alternatives. In some circumstances it may be appropriate for a lawyer to advise a client or other person to seek the advice of other counsel. A lawyer need not inform a client or other person of facts or implications already known to the client or other person; nevertheless, a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid. In determining whether the information and explanation provided are reasonably adequate, relevant factors include whether the client or other person is experienced in legal matters generally and in making decisions of the type involved, and whether the client or other person is independently represented by other counsel in giving the consent. Normally, such persons need less information and explanation than others, and generally a client or other person who is independently represented by other counsel in giving the consent should be assumed to have given informed consent.

 

[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a lawyer may not assume consent from a client’s or other person’s silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of rules require that a person’s consent be confirmed in writing. See Rules 1.7(b) and 1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (o) and (b). Other rules require that a client’s consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (o).

Official Comments to RPC 1(f) Informed Consent.

 

[17].   . . . (W)hen the risk to a client is particularly high, the lawyer will sometimes make an initial determination that it is not reasonable to ask for consent.  In such situations, the client may have to hire other counsel and to expend time and money educating the new lawyer about the matter involved.  Theses consequences merely accentuate the fact that the long-term public interest in protecting cleints against foolish waivers must occasionally outweigh the short-term interest of individual lawyers and clients.

(Emphasis added)

 

The Law of Lawyering, 3rd, Hazard and Hodes, § 11.8, supra.

[18].  The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. For example, if the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. Similarly, when a lawyer has discussions concerning possible employment with an opponent of the lawyer’s client, or with a law firm representing the opponent, such discussions could materially limit the lawyer’s representation of the client. In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific rules pertaining to a number of personal interest conflicts, including business transactions with clients. See also Rule 1.10 (personal interest conflicts under Rule 1.7 ordinarily are not imputed to other lawyers in a law firm).

 

Official Comment 10 to RPC 1.7(b).

 

[19]Utah State Bar Ethics Advisory Opinion Number 11-01, August 24, 2011; accord Alabama State Bar Ethics Op. 2011-02, supra; Florida Bar Professional Ethics of the Florida Bar, Op. 12-1, supra.

 

1 The waiver provision cited above makes no direct reference to the defendant waiving the right to challenge the attorney’s effectiveness on direct appeal.  The apparent reason for this is that this opinion request is based off a waiver provision currently being used in federal criminal litigation, and the Tenth Circuit has held that ineffective assistance claims must be brought in a collateral challenge, not on direct appeal.  See, e.g., United States v. Dyke, 718 F.3d 1282, 1294 n.3 (10th Cir. 2013).  In any event, the provision does include a general waiver of the right to raise an ineffective assistance claim in any “other procedure.” The opinion request contemplates that this would include a direct appeal, as does the Committee’s opinion.  This distinction does not change the result of the ethics question at issue, so, for consistency, I follow suit.

 

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. 08-02

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

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

Ethics Advisory Opinion No. 06-01

June 2, 2006
Issue:
May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders?
If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent violation of the protective order?

Would it be permissible for the County Attorney’s Office to provide such legal assistance to victims of domestic violence as a governmental service and thereafter prosecute subsequent violations of the protective order if the civil division of the office assisted in the civil protective order and the criminal division in any subsequent prosecution?
Opinion: While statute, ordinance or employment contract may prohibit a government lawyer from representing individuals on a pro bono basis, the only ethical prohibition would arise from conflicts of interest provisions. Conflicts of interest rules would not prohibit the initial private representation but would prohibit the individual government lawyer from thereafter having any involvement in the prosecution of the abuser. It is conceivable that the pro bono work of one government lawyer in a large office with different divisions would have no impact upon another government lawyer in a different division handling a related matter for the government. However, it would be improper for the second lawyer to undertake to represent the governmental entity if the pro bono work undertaken by the first lawyer could create a material limitation for that second lawyer. Finally, two separate divisions of a governmental office can be established to undertake potentially conflicting work, provided that attorneys in one unit do not in any way “participate” in the work of the other unit (best achieved through “screening”) and provided that any representation of an individual or non-governmental entity fully complies with Rule 1.8(f).
Facts: The County Attorney’s Office seeks to help victims of domestic violence obtain protective orders in civil cohabitant abuse actions, since such individuals may be deterred from obtaining this protection without legal representation. The County Attorney seeks to provide full representation, including appearing in court on behalf of the victim, not merely to provide information sufficient to permit the victim to proceed pro se. 1 The County Attorney’s Office, however, does not wish to provide this assistance at the expense of being able to prosecute the abuser, either for the initial incident or for future incidents, including incidents that are violations of the order. The County Attorney’s Office asks about the possibility of one attorney providing this representation “pro bono” and about the possibility of a division of the Office providing this representation as part of its regular public service. Both scenarios are addressed here.
Authority: The questions must be answered in light of the Utah Rules of Professional Conduct (2005) and EAOC Opinions:
Rule 1.7 regarding concurrent conflicts of interest (actual and potential) of the attorney
Rule 1.9 regarding successive conflicts of interest of the individual attorney
Rule 1.11 regarding conflicts of interest for government lawyers
Opinion No. 98-01
Opinion No. 01-06A
Analysis:
Applicable Rules
Rule 1.7 provides in relevant part:
. . . A lawyer shall not represent a client if . . . 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 . . . by a personal interest of the lawyer.
Rule 1.9 provides in relevant part:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. . . .
Rule 1.11 provides in relevant part:
(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee:
(d)(1) is subject to Rules 1.7 and 1.9 and
(d)(2) shall not
(d)(2)(I) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing .
County Attorney Undertaking Private Pro Bono Representation
This Committee has previously addressed similar questions of conflicts of interest as they apply to an individual part-time county attorney who also maintains a part-time private practice. 2 To the extent that the County Attorney’s office contemplates permitting one of its attorney employees to occasionally engage in pro bono work for private clients, we rely upon these prior opinions. 3
Our prior Opinions largely answer the first two questions. Opinion No. 01-06A (issued June 12, 2002) and Opinion No. 98-01 both address the conflicts involved when a part-time county attorney undertakes private representation in a civil cohabitant abuse action. Opinion No. 01-06A concluded that a part-time county attorney is not prohibited from representing a defendant in a civil protective order case, but if a criminal case arises out of the initial incident or is brought for violation of the protective order, that individual county attorney may not represent the defendant client or the county in such a case. 4 Opinion No. 98-01 considered the situation in which the part-time county attorney represents the victim/plaintiff in a cohabitant abuse action. There, if a subsequent criminal case is filed against the opponent/respondent, that individual part-time county attorney need not withdraw from representing the victim/plaintiff in the civil action but cannot be involved in the prosecution and must refer it to an appropriate conflict attorney. The Committee reasoned that because the interests of the victim-client and the county might diverge, the attorney may have confidential information from the private client, and the prosecutor’s neutrality might be compromised by his private representation; it would be unethical for the part-time county attorney to be involved in the prosecution of this matter. 5
Thus, an individual county attorney may, under the rules of professional conduct, provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders. However after the county attorney has done so he may not be involved in the prosecution of the perpetrator for the initial act or for a subsequent violation of the protective order. And he may only continue the pro bono representation if he is fully able to comply with Rule 1.7(a) where his personal interest in his paid work for the County does not create a material limitation.
Our prior Opinions have further established that the part-time county attorney must, at the outset, fully inform the client of potential conflicts and the need to withdraw if actual conflicts arise. Moreover if the possibility of a conflict arising is likely and if that possibility will materially interfere with the lawyer’s representation, the lawyer should not undertake the case initially.
Imputation of Conflicts of Interest to Other Attorneys in County Attorney Office
The second issue is whether the conflict of one county attorney undertaking individual pro bono representation is attributed to others in the office.
In the past some have looked to Rule 1.10 to indicate when conflicts of interest are imputed to others within a governmental law office. However, in November, 2005 the Utah Supreme Court adopted revised versions of Rules 1.10 and 1.11 which now make clear that Rule 1.10 is not intended to and does not apply to impute conflicts of interest within a government law office. 6 Instead, solely Rule 1.11 governs any imputation of conflicts of interest for government lawyers 7 unless the Rules expressly provide otherwise. 8
Rule 1.11(d) expressly deals with conflicts of interest for the current government lawyer and provides that the government lawyer “shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment. . . .” As comment [2] to Rule 1.11 states, “paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” Hazard and Hodes likewise note:
Because governmental lawyers in the same government agency are not subject to the imputation rule, the legal work of the government may go forward whether or not other affected parties consent, and whether or not the personally disqualified lawyer is screened in the normal sense. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
* * * * * * *
Rule 1.11(d) does not require disqualification of anyone except the affected government lawyer individual. Accordingly, there is no reason for this paragraph to advert to screening and it does not. However . . . the lawyer is required to avoid ‘participating’ in the matters in question. This could imply that isolating the lawyer from the office’s work in the matter – a form of screening – is required after all . . . . One important reason to screen government lawyers . . . is to avoid a motion to disqualify the entire government office or “firm.” HAZARD AND HODES, THE LAW OF LAWYERING § 15.9
Similarly, the amendments make clear that Rule 1.11 applies to concurrent representation by government lawyers as well as successive representation. The name of the rule was changed from “Successive Government and Private Employment” to “Special Conflicts of Interest for Former and Current Government Officers and Employees.” Likewise, comment [9] and expert commentary clarify that it should apply to concurrent representation as well. Hazard and Hodes explain that Rule 1.11(d) applies when a government lawyer has a concurrent conflict:
Paragraph (d) controls situations in which a lawyer is currently serving the government. . . A government lawyer might have competing responsibilities to others that could materially limit representation of the government. For example, it is not unheard of for lawyers representing state and local government units to be representing other clients with conflicting interests while also representing the government. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
Rule 1.11 has been looked to when considering concurrent conflicts of interest of government lawyers given “the policy and practical reasoning behind the rule.” See Vermont Ethics Opinion No. 2003-04 at www.vtbar.org (addressing part-time assistant attorney general who also serves “of counsel” at a law firm).
For these reasons we conclude that the pro bono work of one government lawyer will not create a conflict of interest that will be imputed to others in the government office providing that the pro bono lawyer does not “participate” in the conflicting work that the government office undertakes. We further note, however, that Rule 1.7 regarding concurrent personal conflicts of interest must be fully complied with by both the pro bono lawyer and the government lawyer. Thus, if there is a “significant risk that the representation of” either the pro bono or the government client “will be materially limited” by the attorneys’ relationships with one another or by either attorney’s personal interests, the conflicting representation cannot go forward.
Finally, we note that this interpretation of the Rules of Professional Conduct does not control whether a court will find grounds to disqualify an attorney or an office, particularly where there are constitutional rights involved. While “screening” is not required of government lawyers under these rules, undertaking a screening mechanism (see below) may be wise to minimize the possibility of disqualification.
Establishing Separate Divisions to Handle Possible Conflicts
The County Attorney asks about the viability of assigning civil work for domestic violence victims to an individual or division within the County Attorney’s Office separate from the individual or division that prosecutes criminal cases.
This scenario adds one further complication to the analysis above in that it proposes doing work for a client (the victim) while being paid by another entity (the county) as addressed in Rule 1.8(f) Utah Rules of Professional Conduct. Such an arrangement is permissible only if the attorney maintains a confidential relationship solely with the victim-client (not the county-employer), permits only the victim client to direct the attorney’s work, and obtains informed consent to this arrangement from the victim client. “Informed consent” is now defined in the Utah Rules of Professional Conduct as denoting “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Here, again, Rule 1.11 would not impute the disqualification of one government attorney to other governmental attorneys if each of the two attorneys did not “participate” in the conflicting work of the other. The underlying concern is that for each client confidentiality and independent legal judgment must be fully protected.
This Committee considered the issue of conflicts of interest within a governmental law office in Opinion No. 142 (1994) dealing with the office of the Attorney General. Opinion No. 142 established that Rule 1.10 (defining a “firm” and imputing disqualification to all within the “firm”) does not apply to the office of the Attorney General and the conflicts of one Assistant Attorney General are not necessarily imputed to all other attorneys in that office. Opinion No. 142 (1994). That Opinion concludes that the Office may represent different agencies with adverse interests or positions so long as “the attorneys with conflict problems are removed and screened from the particular representation at issue.” Accordingly, the Attorney General’s office has been organized to operate through different “divisions.”
While there were constitutional reasons for that analysis with regard to the Attorney General, we now make clear that other governmental law offices are also permitted to organize themselves in such a way as to constitute two separate “firms” 9 and undertake conflicting representation. In order to guard most effectively against disqualification motions, it would be “prudent” for the attorneys with potentially conflicting responsibilities to be entirely screened from one another, not sharing access to the same confidential files (see Rule 1.6) or operating so that one attorney has “managerial authority” or “supervisory authority” over the other (see Rule 5.1). However, even if no formal screening system is put in place, government attorneys comply with the ethical rules if they ensure they do not “participate” in any matter for which they have a personal conflict of interest.
We further note that undertaking such an endeavor in which one section of a government office represents victim-clients would result in the governmental entity owing all the duties of a lawyer to the victim-clients and those victim-clients having possible claims against the governmental entity.
Conclusion:
The conclusion is that it could be possible for a County Attorney’s Office to organize itself in such a way as to ethically provide representation for individual client victims in civil cohabitant abuse actions and then later permit a separate division or attorney in the Office to represent the state in any related criminal prosecution. However, any such organization would have to prohibit any confidential information from flowing from one sector to the other. Similarly, it is possible for a government lawyer to undertake pro bono representation without having a conflict imputed to other government lawyers provided the pro bono lawyer is kept entirely apart from any conflicting representation (and the other government lawyers have no access to the pro bono lawyer’s confidential files and no ability to influence the pro bono lawyer in his work.) Whether those services are provided by separate divisions or by pro bono representation, the County Attorney’s Office would have to assure that there was no “significant risk” that the county attorney’s representation of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. Rule 1.7(a).
Footnotes
1 We note that providing “general legal information” or “clerical assistance” to a victim seeking a protective order is not the “practice of law” and hence can be undertaken by the staff of the court or the county attorney’s office. See Supreme Court R. Prof. Prac., ch. 13A, Rule 1.0 (c) (2005).
2 This Committee has also addressed conflicts of interest as they apply to the Office of the Attorney General Opinion in No. 142, to an Assistant Attorney General serving as a hearing officer in Opinion No. 03-01, and to a private attorney with a partner who serves as a part-time judge in Opinion No. 95-02A which are related and relied upon to some extent here.
3 We note that such pro bono work would not be part of the attorney’s duties for the county and thus the county could incur no liability for it and the client would need to be fully and clearly advised that the attorney is not acting in the capacity as a government lawyer but as a private volunteer.
4 State v. Brown 853 P.2d 851 (Utah 1992) prohibits a prosecutor from appearing as defense counsel in a criminal case. The Committee concluded that the on-going civil representation of a person also charged with a crime would be prohibited under Rule 1.7 because the lawyer’s responsibilities to another client (the county) would materially limit his representation of the client.
5 Inconsistent with Opinion No. 98-01, we concluded in Opinion 01-06A that a part-time county attorney would have to withdraw from representing the victim in a civil cohabitation abuse action as well. To the extent that conclusion is over broad, our opinion here is to be considered as modifying Opinion 01-06A. Rather, Rule 1.7(a) would find a conflict where “there is significant risk that the representation” of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. This is a fact-specific and case-specific inquiry. We note that the “personal interest” of a part-time county attorney who also maintains a part-time private practice may be factually different from the interest of a full-time county attorney undertaking occasional pro bono representation.
6 Paragraph (e) and Comment [7] were added to Rule 1.10 and Comments [2], [3] and [9] were added to Rule 1.11 together with a redrafted paragraph (d) of Rule 1.11 seeking to clarify that Rule 1.11 is the exclusive rule governing imputation of conflicts of interest applicable to current or former government lawyers. See ABA Model Rules 2000 with Redlining and the Reporters Explanation Memos available on the ABA website at: http://www.abanet.org/cpr/e2k-report_home.html
7 This Committee’s Opinion 98-01 states: “In withdrawing from the criminal matter, the limitations and requirements of Rule 1.10 . . . describing imputed disqualification among attorneys associated in a firm, must also be strictly followed.” While this interpretation applies to the part-time attorney withdrawing from his private practice representation; it does not apply to a part-time county attorney withdrawing from any governmental representation.
8 Rule 1.12 governs imputed disqualification of an attorney (including a government attorney) who had previously served as a judge, other adjudicative officer or law clerk.
9 Utah Rules of Professional Conduct (2005) now define “firm” to include “other association authorized to practice law . . . or lawyers employed in . . . the legal department of a corporation or other organization.” Rule 1.0

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. 05-03

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

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

04-02 – May a plaintiff’s lawyer continue to represent the plaintiff in a legal malpractice action when opposing counsel has announced an intention to call plaintiff’s lawyer as a witness?

April 19, 2004
¶1 ISSUE:
May a plaintiff’s lawyer continue to represent the plaintiff in a legal malpractice action when opposing counsel has announced an intention to call plaintiff’s lawyer as a witness?

¶2 OPINION: There is no per se disqualification of a lawyer in a case where she may be called as a witness. The lawyer must determine whether, under the facts of the case, she is a “necessary witness” in the litigation under Rule 3.7. If she is, and if disqualification of the lawyer would not work a substantial hardship on the client, she must withdraw prior to trial. If the lawyer does not withdraw, the lawyer must insure that the client’s interests are and can be protected in a timely manner. This could include the filing of a motion in limine or other pleading to resolve the issue prior to trial. Concurrently, the lawyer must determine if there is a conflict of interest under Rule 1.7.
¶3 FACTS: C, a former client of lawyer L, has sued L for legal malpractice for failure to protect client assets from waste by a former spouse in a divorce case. L’s lawyer has advised C’s current lawyer F that F will be called as a witness on the issues of apportionment and contribution for her alleged failure to protect the assets of the client she now represents.
¶4 ANALYSIS: L’s decision to call C’s current lawyer F as a witness as to the issue of responsibility of F for damages to her own client for malpractice engages Utah Rules of Professional Conduct 3.7, “Lawyer as Witness,” and 1.7, “Conflict of Interest.”
Rule 3.7, Lawyer as Witness. Rule 3.7 addresses the lawyer-witness issue and provides:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be necessary as a witness unless:
(1) The testimony relates to an uncontested issue;
(2) The testimony relates to the nature and value of legal services rendered in the case; or
(3) Disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9.
¶5 Rule 3.7 does not automatically require withdrawal.1Rather, Rule 3.7(a) provides that a lawyer may not act as an advocate at trial if she is likely to be a “necessary” witness. Whether or not this lawyer’s testimony is necessary is a fact-specific question the lawyer being summoned must resolve. If the testimony is duplicative and obtainable from other sources, her testimony may not be necessary, and the lawyer should not withdraw or should not be subject to disqualification.2 “The naming of a party’s attorney does not ipso facto render the named attorney a ‘necessary witness’ . . . nor does the availability of other competent witnesses for the same testimony automatically render the named attorney ‘unnecessary’.”3
¶6 The attorney should not continue the representation when she is or ought to be a witness with respect to issues that are not incidental or insignificant. “[A]pplication of this rule does not depend on whether an attorney will be called but rather, as the Code provides, on whether he ‘ought to be called as a witness’ in the underlying action.”4
¶7 Calling opposing counsel as a witness has been used as a bad-faith trial tactic to create a disqualification of the client’s lawyer to the disadvantage of one of the parties in the proceeding. Some courts have described situations in which a lawyer ought to testify and be required to withdraw, and those in which the lawyer may continue representation.
In In re Bahn,5the Texas Court of Appeals interpreted Texas Rule 3.08, which is similar to Utah’s rule for withdrawal when the lawyer may be called as a witness, to mean that the moving party had to establish that the testimony was essential to the case and that it was not enough for the moving party merely to announce its intention to call the attorney as a witness.
¶8 Similarly, a Georgia federal district court noted: “If by merely announcing his intention to call opposing counsel as a witness an adversary could thereby orchestrate that counsel’s disqualification under the disciplinary Rule, such ‘a device’ might often be employed as a purely tactical maneuver.”6In that case, the court also found that, when an adversary declares an intention to call opposing counsel as a witness, the court should determine whether counsel’s testimony is in fact genuinely needed before ordering disqualification of counsel. As a result, disqualification has been deemed to be an extreme measure to be imposed only when absolutely necessary.7
¶9 If calling the lawyer as a witness is merely a bad-faith trial tactic, the analysis by the lawyer under Rule 3.7 may be short. However, the lawyer should proceed cautiously and objectively where protecting the client’s interests is the primary concern. The current lawyer should obtain an early resolution of this issue by withdrawing, if necessary, or by a motion in limine or other pleading to resolve this issue well prior to trial.8
¶10 Also, if disqualification of the current lawyer would work a substantial hardship on the client, she should not withdraw nor be disqualified.9 Disqualification is generally limited to the lawyer acting as trial counsel. Assuming no other rule disqualifies the lawyer, the lawyer may represent the client in the pretrial stage of the case in which the lawyer might be called as a necessary trial witness and retain another firm to act as trial counsel.10The current lawyer must evaluate the facts to determine whether she is a necessary witness under Rule 3.7 and, to protect her client’s interests, prepare for the possibility she may need to withdraw or that she might be disqualified and new trial counsel be brought in.
¶11 Rule 1.7, Conflict of Interest: Current Clients. Under Rule 1.7, the current lawyer may be precluded from continued representation in the pretrial or trial stage. It provides as follows:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a conflict of interest. The conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third party by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), the lawyer may represent if:
(1) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) 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.
¶12 Testimony from the current lawyer F regarding her possible liability to her client involves a conflict of interest—namely, F’s personal interest in avoiding a finding that she caused part of her client’s damages. F must determine whether the client C, under these circumstances, is likely to be able to obtain objective advice from her as to whether or not that lawyer is liable to C for any part of the losses he suffered, and whether C can or should consent to the conflict or waive any potential claim against F.
¶13 The comment to Rule 1.7 requires the current lawyer in the first instance to make the determination of whether there is a conflict of interest, but the Rule also recognizes that, in some cases, the current lawyer may need to advise the client to seek independent advice:
Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests. . . . The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or forecloses courses of action that reasonably should be pursued on behalf of the client. . . .
If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice.11
¶14 Rule 1.7 permits the client to consent to the conflict and, in effect, waive any claim he may have against F, his current lawyer. The ABA annotation to the Model Rules notes that informed consent requires “full disclosure of the nature and implication of the lawyer’s conflict. Informed consent denotes the client’s agreement to the lawyer’s proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of—and reasonably available alternatives to—the proposed course of conduct.”12
¶15 The Rules recognize that there are circumstances under which the client cannot be requested to give consent: “[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client’s consent.”13
¶16 The comment to Rule 1.7 of the ABA Model Rules of Professional Conduct also provides:
Consentability is typically determined by considering whether the interests of the clients will be adequately protected if the clients are permitted to give their informed consent burdened by a conflict of interest . . . representation is prohibited if in the circumstances the lawyer cannot reasonably conclude that the lawyer will be able to provide competent and diligent representation.14
¶17 Since F may be subject to a claim that her actions damaged her client, her ability to give independent advice in the prosecution of the claim for damages against L is open to question. If F believes that she is subject to a bona fide malpractice claim, it is difficult to imagine circumstances under which she could give independent advice.15
¶18 CONCLUSION: Under Rule 3.7, it is the lawyer’s responsibility to determine whether she is a “necessary” witness, whether her testimony, if she is called, relates to a contested issue and whether it may be in conflict with her client’s position. The lawyer must also determine if her withdrawal would create a substantial hardship for her client. As these questions are fact-specific, the Committee cannot express a bright-line rule. It is the lawyer’s responsibility to analyze the facts under the application of Rules 1.7 and 3.7 and the guidelines set forth above to determine if she must withdraw under the circumstances.
¶19 Under Rule 1.7, it is the responsibility of the lawyer to determine whether she is precluded from continuing representation because of a conflict of interest. If the claim prompting the notice that the lawyer will be called as a witness is not made in bad faith and the lawyer intends to seek the client’s consent, it would be prudent for the lawyer to advise her client to seek independent advice as to whether, given the relevant facts, it is reasonable to consent to the conflict. However, not every conflict of interest under Rule.17 may be consented to by a client. We recommend that, prior to requesting any consent, the lawyer in this circumstance advise the client to seek independent advice from an attorney on the requested consent.
Footnotes
1.We note the difference between an ethical obligation to withdraw as counsel under certain circumstances and the legal issue of whether a presiding tribunal would order a disqualification of the lawyer. They are closely connected, but not congruent. As a matter of law, disqualification of a lawyer in an ongoing litigation is not within the purview of the Committee.
2.Mazurkiewicz v. New York Transit Auth., 806 F. Supp. 1093 (S.D.N.Y. 1992); Chappell v. Cosgrove, 916 P.2d 836 (N.M. 1996).
3.Colo. Bar Assoc. Formal Op. 78, www.cobar.org/static/comms/ethics/fo/fo_78.htm (Rev. May 10, 1997). In a similar case, the Delaware State Bar Association Committee on Professional Ethics advised the lawyer not to undertake representation. Del. St. Bar Assoc. Comm. Op. 1991-4, www.dsba.org/ethics91-4.pdf. We believe that the analysis of the opinion is sound. However, in cases where, as here, representation has already been undertaken, disqualification or withdrawal is not automatic.
4.State v. Leonard, 707 P.2d 650, 653 (Utah 1985) (quoting Groper v. Taff, 717 F.2d 1415, 1418 (D.C. Cir. 1983)). This case was decided under the previous Code of Professional Responsibility, which contained a provision similar to the current Rule 3.7.
5.13 S.W.3d 865 (Tex. App. 2000).
6.Connell v. Clairol, Inc., 440 F. Supp. 17, 18 n.1 (N.D. Ga. 1977).
7.Weeks v. Samsung Heavy Industry Co., Ltd., 909 F. Supp. 582 (N.W. Ill. 1996); Zurich Ins. Co. v. Knotts, 52 S.W. 3d 555 (Ky. 2001).
8.If a motion to disqualify is filed by the opposing lawyer, the burden to establish that counsel’s continuing in the case would violate the disciplinary rules falls on the party seeking to have the opposing counsel disqualified. Zions First Nat. Bank, N.A. v. United Health Clubs, 505 F. Supp. 138, 140 (D. Pa. 1981). In Zions, the court explained that the moving party has the burden because the rule was not created as a way for a lawyer to get opposing counsel disqualified, and that granting such a motion without a clear showing that the continued representation is impermissible would undermine the integrity of the rule.
9.Utah Rules of Professional Conduct 3.7(a)(3).
10.It is also possible to have another lawyer in the withdrawing lawyer’s firm to represent the client at trial, so long as there is no Rule 1.7 (conflict) or Rule 1.9 (former client) problem. Utah Rules of Professional Conduct 3.7(b) & cmt. 5.
11.Utah Rules of Professional Conduct 1.7, cmt.
12.ABA Ann. Model Rules of Professional Conduct 135 (5th ed. 2002).
13.Utah Rules of Professional Conduct 1.7, cmt. 4.
14.ABA Model rules of Professional Conduct 1.7, cmt. [15] (2002). This is not part of the current Utah Rules, but is consistent with Utah Rule 1.7.
15.See, e.g., The ABA/BWA Lawyers Manual on Professional Conduct 51:407 (suggesting that a lawyer faced with threatened malpractice action in the course of representing a client should disqualify herself).

Ethics Advisory Opinion No. 04-01a

December 2, 2004
Amendment of Opinion No. 04-01: On March 29, 2004, the Utah Ethics Advisory Opinion Committee issued Utah Ethics Advisory Op. No. 04-01, 2004 WL 870583 (Utah St. Bar).1 The Office of Professional Conduct of the Utah State Bar filed a petition for review with the Board of Bar Commissioners pursuant to § III(e)(1) of the Ethics Advisory Opinion Committee Rules of Procedure and § VI(a)(1) of the Utah State Bar Rules Governing the Ethics Advisory Opinion Committee. The Commission asked the Committee to reconsider Opinion No. 04-01. Having reviewed the issues raised by the Office of Professional Conduct, we issue this amended opinion, which revises the conclusion and analysis of Opinion No. 04-01. Accordingly, this amended opinion replaces and supersedes Opinion No. 04-01.
Issue: What action, if any, may a lawyer for an employer ethically undertake on behalf of a vanished former employee who, along with the employer, has been named as a defendant in an action arising when the person was an employee?


Opinion
: The lawyer may not act on behalf of or purport to represent the vanished former employee unless the lawyer has an existing attorney-client relationship with the former employee or the former employee agreed to the representation prior to vanishing and, in either case, the lawyer complies with Rules 1.7 and 1.8(f) of the Utah Rules of Professional Conduct. The lawyer who represents the employer may engage in acts that may benefit the vanished former employee provided the lawyer makes it clear that he is acting on behalf of the employer as the employer’s lawyer and not on behalf of the vanished former employee as the former employee’s lawyer.
Facts: Plaintiff filed suit naming a company and its former employee as defendants. The company concedes that the former employee was acting in the course and scope of his employment and has asked the company’s lawyers to represent the missing former employee. The company is concerned that absence of a formal answer to the complaint by the former employee may result in a default judgment being entered against the absent former employee. We have no information about the reasons for the employee’s absence, but we assume that a reasonable effort has been made to locate the person and determine the reason for the absence. We also assume that, at this early stage of the proceeding, the interests of the employer and employee are not directly adverse with respect to the matter.2 The lawyer requesting this opinion also indicated that the employer has liability insurance that covers the incident giving rise to the lawsuit.3 The company has requested that the lawyer represent the vanished former employee.
Analysis: This case presents two competing concerns: On the one hand, a basic ingredient of the representation of a client is that, under Rule 1.4, the lawyer communicate with the client, keep the client informed about the status of the case, and provide sufficient information to the client that the client may make informed decisions; and, under Rule 1.2, the lawyer must abide by the client’s decisions regarding the goals of the representation. On the other hand, the interests of a party missing from a proceeding will go unprotected with an application of the Rules. The Rules of Professional Conduct are rules of reason,4 to be interpreted to further the administration of justice when the Rules are unclear. However, in this instance, we conclude the Rules are clear and must be applied despite arguments of countervailing public policy.5
The employer’s lawyer may not purport to represent the vanished former employee or take action (including the filing of an answer or other papers with the court) as the vanished employee’s lawyer, unless the lawyer already has an existing attorney-client relationship or the former employee has agreed to the representation prior to vanishing, and the lawyer complies with the conflict-of-interest requirements of Rules 1.7 and 1.8(f). To do so would be a violation of Rules 1.2, 1.4 and 1.8 and, in some situations, Rules 1.7, 3.1 and 3.2.
The attorney-client relationship is grounded in principles of agency, which require that the agent (attorney) must be authorized to act for the principal (client) and that the principal must have control over the agent.6 The Rules of Professional Conduct reflect this principle. Rule 1.2 states that “[a] lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.” Under the facts here, the Committee assumes that the lawyer and client have not communicated at all. Thus, the lawyer cannot consult with the client regarding the objectives of the representation or the means by which to achieve those objectives.7
Rule 1.4 requires the attorney to maintain reasonable communication with the client. In situations in which the attorney has had no contact with the client, we believe the “reasonable” communication requirement cannot be satisfied.
Rule 1.7 governs conflicts of interest. The employer may be liable to the plaintiff if the employee was acting within the scope of his employment. However, the employer may have a cause of action against the employee for indemnity if the employee’s actions were in dereliction of duty (e.g., drunk on the job). Under the facts in this case, the potential for a conflict of interest does exist. Although we assume that the employer and employee are not likely to assert claims against one another initially (see note 2, supra), due to the potential conflict of interest, Rule 1.7(b)(2) requires the client’s consent to the representation “after consultation.” Rule 1.7(b)(2) further requires for representations of multiple clients in a single matter that “the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.” If the attorney cannot communicate with the client, the attorney cannot make the explanation required by the rule, cannot obtain the client’s consent to representation and would therefore violate Rule 1.7. Moreover, if it is later discovered that the employer’s and the employee’s interests conflict, the attorney may be prohibited from representing either of them.
In addition, Rule 1.8(f)(1) prohibits an attorney from accepting compensation for representing a client from one other than the client unless the client consents after consultation. Under the facts before us, the attorney cannot obtain this consent and would therefore violate Rule 1.8.
Rule 3.1 requires the attorney to make only meritorious claims and contentions. The attorney may be able to perform an adequate investigation to comply with this rule. If, however, the employer did not take a sufficiently detailed statement from the employee regarding the facts of the incident and other employees do not have sufficient knowledge of the facts, the attorney may not have sufficient information to determine whether the defenses raised are meritorious.
This opinion does not prohibit a lawyer from taking some action on behalf of an existing client when the lawyer and client lose contact. For example, a lawyer has a general obligation to preserve a client’s assets that may be in the lawyer’s possession when the client disappears and to make reasonable attempts to locate the client.8 There are numerous opinions that find it ethical to file pleadings on behalf of a missing existing client to toll a statute of limitations.9 This obligation is stated in Rule 1.16(d), which requires an attorney to take steps to the extent reasonably practicable to protect a client’s interest prior to terminating representation. Similarly, if the former employee had consented to the representation at the employer’s expense prior to vanishing, the lawyer would be permitted to undertake the representation, provided the lawyer complied with Rule 1.7.
The employer-client may have a contractual obligation to (and contractual authorization of) its employees and former employees to provide representation where the employees were acting within the course and scope of their employment.10 Even absent a contractual obligation and authorization to represent the vanished employee, the company’s lawyer has the general obligation to protect the company’s interests and to advance the administration of justice. When Rule 1.7 is complied with, a single lawyer may ethically represent both the employee or former employee and the employer.
The Committee concludes that the company’s lawyer may take limited action that may have the effect of benefitting the vanished former employee, so long as the lawyer does so on behalf of the company and as the company’s lawyer, not purporting to act on behalf of or as the former employee’s lawyer.
For example, in connection with seeking an extension of time to file an answer or motion in response to a complaint on behalf of the company, the lawyer may also seek an extension of time to permit the former employee to file an answer or motion, provided the lawyer makes clear the lawyer is acting on behalf of the company and as the company’s lawyer. The lawyer may also file with the court, as the company’s lawyer, a motion to intervene, a motion for appointment of a guardian ad litem for the vanished employee or other similar pleading. Such actions may be taken as appropriate to protect the company’s legitimate interests, and the Rules of Professional Conduct are not violated even though the result of such acts may benefit the vanished former employee.
Some may argue that the Rules of Professional Conduct may lead to harsh, and even unfair, results for both the employee and the employer. The first concern is that a default judgment would be entered against the former employee if the attorney does not file the answer. As discussed, above, unless the former employee is eventually located, the lawyer will likely not be able to change the ultimate outcome, but may delay the result. Further, the Utah Rules of Civil Procedure and existing case law allow the former employee to seek to set the judgment aside in some situations.
The second concern is that the employer may be harmed because a default against the former employee may bind the employer and the employer has no other procedural means to protect itself. The Committee could not find any Utah case law directly addressing this issue. There are two Utah cases that suggest (without directly deciding) that the employer has means in the law to protect itself against a default judgment against the former employee.11 Cases from other jurisdictions also show that in at least some states courts refuse to bind the employer based upon a default judgment entered against a former employee.12 If Utah were to adopt this rule of law, there would be no valid concern about prejudice to the employer based on a default judgment against the employee. At this point, this Committee cannot conclude that potential harm to the employer raises a significant concern.
Finally, the representation may have a detrimental impact on the former employee. Because the lawyer cannot receive any direction regarding the objectives of the representation, the lawyer runs the risk of acting in contravention to the desires of the former employee. If the former employee had decided not to make an appearance in the litigation because the former employee had consciously decided not to subject himself to the jurisdiction of the court, and if the lawyer took action that subjected the former employee to the jurisdiction of the court, then the former employee could be substantively prejudiced by the lawyer’s actions.
In our opinion, the Rules of Professional Conduct are clear in prohibiting the unauthorized and unassisted representation of the former employee, and the potential concerns that support allowing representation of the former employee are not grounds for ignoring the Rules.
Summary: The lawyer may not ethically represent a vanished former employee unless the lawyer has an existing attorney-client relationship or the former employee agreed to the representation at the company’s expense prior to vanishing and the lawyer complies with Rule 1.7. A lawyer who represents an employer may engage in limited acts that may serve to benefit the vanished former employee provided the lawyer acts on behalf of the employer as the employer’s lawyer and does not purport to act on behalf of the vanished former employee or as the vanished former employer’s lawyer.
Footnotes
1. The Committee’s opinions can be found at http://www.utahbar.org/rules_ops_pols/Welcome.html.
2. For example, we assume that neither the employer nor employee are likely to have and pursue a claim against the other with respect to the matter. See Utah Rules of Professional Conduct 1.13(e) (2004).
3. It may also be that the employer’s defense lawyer has been retained by the insurance carrier. However, this factor does not play a role in our analysis.
4. Utah Rules of Professional Conduct, Scope, 1 (2004).
5. As evidenced by the Committee’s change of ultimate position with respect to the original opinion on this matter, the matter has raised difficult issues that have rendered it a close call for some members of the Committee.
6. Dunkley v. Shoemate, 515 S.E.2d 442, 444 (N.C. 1999), quoting Johnson v. Amethyst Corp., 463 S.E.2d 397, 400 (N.C. App. 1995) (“no person has the right to appear as another’s attorney without the authority to do so, granted by the party for which he is appearing”).
7. Although it might be presumed that the former employee does not want a default judgment entered, this may not always be the case. Occasionally, people decide not to defend lawsuits. If the former employee had decided not to defend the lawsuit, the attorney would not be abiding by those wishes. It is even possible to imagine other cases where an employee would want a judgment taken to protest or highlight an employer’s alleged misconduct.
8. See, e.g., Utah Ethics Advisory Op. 97-01, 1997 WL 45140 (Utah St. Bar); Fla. Comm. on Professional Ethics Op. 77-2, 1977 WL 23165 (Fla. St. Bar Ass’n).
9. See, e.g., Philadelphia Bar Op. 98-8; So. Car. Bar Op. 98-07; So. Dak. Bar Op. 92-6.
10. This authorization for representation may be withdrawn by the employee or former employee. Utah Rules of Professional Conduct 1.16(a)(3) (2004).
11. See Lima v. Chambers, 657 P.2d 279 (Utah 1982); Chatterton v. Walker, 938 P.2d 255 (Utah 1997). In both of these cases, the Utah Supreme Court allowed insurers to invoke Rule 24 of the Utah Rules of Civil Procedure to intervene in negligence lawsuits in which their insureds sued uninsured defendants with the hope of proving negligence of the uninsured driver and collecting uninsured driver benefits from the plaintiffs’ insurer. The Chatterton court suggested that the insurer’s ability to intervene for the purpose of contesting liability has constitutional foundations. 938 P.2d at 260.
12. “Courts hold that in actions against several defendants jointly, where the defense interposed by the answering defendant is not personal, but common to all, as where it goes to the whole right of the plaintiff to recover at all, as distinguished from his or her right to recover as against any particular defendant, or where it questions the merits or validity of the plaintiff’s entire cause of action or his or her right to sue, such defense, if successful, inures to the benefit of the defaulting defendants, with the result that final judgment must be entered not merely in favor of the answering defendant, but also in favor of the defaulting defendants.” 46 Am. Jur. 2d Judgments § 282. See also Brazos Valley Community Action Agency v. Robinson, 900 S.W.2d 843 (Tex. App. 1995) (employees default could not be binding on the employer; the appellate court also noting that the employer did not have authority to answer on behalf of the employee.); Gearhart v. Pierce Enterprises, Inc., 779 P.2d 93 (Nev. 1999) (suit against a principal and surety; default judgment against the principal was not binding on the surety).

Ethics Advisory Opinion No. 04-05

December 2, 2004
Issue:
Do the Utah Rules of Professional Conduct preclude a lawyer from forming a cooperative organization that offers certain non-legal, but law-related, services such as trust administration and investment management; referring clients to that organization; and participating in the organization’s profit sharing?

Opinion: It is not per se unethical for a lawyer to refer a client to a cooperative organization created by the lawyer to provide non-legal services and for the lawyer to participate in the organization’s profit sharing. If the lawyer complies with the following, then the arrangement is permissible: (1) objectively concludes that any identifiable conflicts between the lawyer and the cooperative organization would not materially affect the representation of that client; (2) affirms in writing to the client that the referral will not compromise the client’s interests in any way; (3) fairly concludes that the services provided by the cooperative organization are being provided at fair and reasonable fees; (4) discloses that the lawyer will receive a share of profits from the cooperative organization; (5) advises the client to seek independent counsel as to the referral; and (6) secures the client’s consent.
Facts: A group of Utah lawyers proposes the formation of a cooperative organization (the “Co-op”) to offer certain non-legal, but law-related, foundation and charitable trust services and products, such as plan designs, administration, wealth enhancement, insurance and investment management (the “services” and “products”) for a fee or for customary compensation where products are involved. The Co-op would serve as the provider. A lawyer-member of the Co-op would refer a client to the Co-op’s staff, who would, in turn, arrange to provide the desired services and/or products.
Although the lawyers would be members of the Co-op, the legal services they would provide to the clients would be independent from the Co-op. The lawyers would provide and bill for their legal services through their respective law firms. The billed legal services would not involve the Co-op in any way. The lawyer-members would receive a proportionate share of the Co-op’s profits.
Analysis: The most relevant rules to the issue at hand are Rules 1.7 and 1.8 of the Utah Rules of Professional Conduct and ABA Model Rule of Professional Conduct 5.7,1 which provide in pertinent part:
[Utah] Rule 1.7. Conflict of Interest: General Rule
(b) A lawyer shall not represent a client if the representation of the client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affect; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.2
[Utah] Rule 1.8. Conflict of Interest: Prohibited Transactions
(a) 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 to the client in a manner which can be reasonably understood by the client; and
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.3
[ABA Model] Rule 5.7. Responsibilities regarding Law-Related Services
(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assume that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
(b) The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.4
Here, quite clearly, representation “may be materially limited,” within the meaning of Rule 1.7(b), because of at least two potential conflicts. First, there is a potential conflict between the lawyer’s representation of the client and the lawyer’s interest in receiving compensation for referrals to the Co-op. Second, there is a potential conflict between the client’s interest and a “third person”—namely, the Co op. The threshold question, then, is under what circumstances, if any, could a lawyer reasonably seek consent under Rule 1.7(b)(2). The follow-up question is what disclosures or representations should the lawyer make to the client, assuming the lawyer can reasonably seek the client’s consent for the referral to the Co-op.
This Committee has addressed and decided this issue as applied to lawyer referrals to investment advisors in Opinion 99-07.5 The issue in Opinion 99-07 was, “May a lawyer refer a client to an investment advisor for investment and financial planning and take a referral fee from the commission paid by the client to the investment advisor?” The Committee concluded, “It is not per se unethical for a lawyer to refer a client to an investment advisor and take a referral fee from the commission paid to that advisor, although the lawyer has a heavy burden to insure compliance with applicable ethical rules.”
In our analysis in Opinion 99-07, we identified multiple potential conflicts that may arise under such circumstances, and the analysis, disclosures and consent the lawyer must undertake and secure to comply with Rule 1.7.
For example, notwithstanding having given written approval for the transaction, the client may later have concerns that the lawyer is not providing unbiased advice or that loyalty to the client is compromised by the financial arrangement with the investment advisor. It is possible that the lawyer’s professional judgment might be compromised by a motivation, overt or subconscious, to preserve the advisor’s fee-sharing arrangement, even though a change in the client’s financial interests might suggest some other arrangement. It is possible a lawyer might be motivated to give the client different or inferior legal advice due to the pecuniary interest involved with the financial advisor. There is a potential conflict if the lawyer were asked to mediate, litigate, or otherwise remedy a problem due to deficiencies on the part of the financial advisor. There is the possibility that the client might have been able to negotiate a lower commission had the lawyer not been receiving a commission from the investment advisor, and hence the arrangement might not be fair to the client. For example, a lawyer performing estate-planning services for the client might be in a position that is more likely to exert undue influence than a lawyer providing entirely unrelated legal services. Additional issues arise if the investment advisor is also a client of the lawyer.6
Opinion 99-07 notes that some jurisdictions have concluded such referral arrangements are strictly prohibited, while others have found them acceptable under carefully circumscribed conditions. States prohibiting such referrals include New York, Kentucky, and Arizona,7 which conclude that the lawyer’s fee arrangement is likely to interfere materially with the lawyer’s independent judgment. Other states, including Connecticut and Missouri, conclude that the potential for conflict, although high, does not establish a per se prohibition against such referral arrangements.8 Our Committee agreed that application of Rule 1.7(b) did not result in a per se proscription and outlined the conditions under which lawyers—after careful consideration—might enter into such arrangements.
Opinion 99-07 also found that the referral transaction described there was a “business transaction with a client” subject to Rule 1.8(a). Neither the rule nor Opinion 99-07 expressly defines what constitutes a “business transaction with a client,” but we assume, for purposes of this opinion, that the lawyer referral to a Co-op as described above is a business transaction and thus falls within the scope of Rule 1.8 (a).
Our analysis of Rule 1.8 (a) in Opinion 99-07 cited favorably to the lawyer’s “to do list” set forth in a Connecticut Bar Association opinion that conditionally approved such relationships. The Connecticut Bar’s requirements were that the lawyer should:
(a) determin[e] that the obligations to the client would not be compromised in any way; (b) assur[e] that the terms of the transaction under which the lawyer acquires the interest are fair and reasonable to the client; (c) mak[e] full disclosure to the client in writing to consider seeking the advice of an independent counsel; and (e) giv[e] the client a reasonable opportunity to do so. The lawyer must also clarify in writing whether she is performing legal services in making the referral.9
Our analysis of Opinion 99-07 is important here because the Co-op arrangement described above is less likely to produce a non consentable conflict of interest under Rule 1.7(b) or 1.8(a) than direct compensation to a lawyer for referrals to investment advisors. This is because the lawyer’s compensation from the Co-op is indirect and generated from the Co-op’s general profits—not from an identifiable and direct single referral. For example, the referring lawyer’s compensation will not have a direct connection with the particular non legal professional who provides the Co-op services and products when (a) the referral to the Co-op does not involve a particular named professional10 or (b) the net profit payouts to the Co-op11 member are not directly associated with the particular clients that the lawyer had referred to the Co-op. Hence, compliance with our admonitions in Opinion 99-07 would necessarily satisfy ethical concerns in the Co-op arrangement.
A final ethical consideration relates to the direct services that may be provided to clients by Co-op personnel. To the extent that such services would be “law-related,” as that term is defined in ABA Model Rule of Professional Conduct 5.7, Utah Ethics Advisory Opinion 98-08 concluded that “a law firm [may] wholly own an accounting practice subsidiary for the lawyer’s clients and others,” with the caveat that “the law firm will be subject to the Utah Rules of Professional Conduct with respect to the provision of these law-related services in certain circumstances.”12
The requesting party here assumed that Co-op services would not be law-related within the meaning of Opinion 98-08. However, we assume that they are law-related, because the Co-op services, such as trust administration, “might reasonably be performed in conjunction with and in substance are related to the provision of legal services.”13 Our conclusion, however, does not turn on this assumption.
Summary: It is not per se unethical for a lawyer to refer a client to a cooperative organization formed by the lawyer and other lawyers to provide non-legal services and for the lawyer to participate in the organization’s profit sharing. However, compliance with Rule 1.7 and Rule 1.8 will be ensured if the Co-op lawyer making the referral is certain that the following itemized check-list is satisfied:
(1) Objectively conclude that any identifiable conflicts between the lawyer and the cooperative organization would not materially affect the representation of that client;
(2) Affirm in writing to the client that the referral will not compromise the client’s interests in any way;
(3) Conclude that the services provided by the cooperative organization are being provided at fair and reasonable fees;
(4) Disclose that the lawyer will receive remuneration based on the profitability of the cooperative organization;
(5) Advise the client to seek independent counsel as to the referral;14 and
(6) Secure the client’s consent.15
Footnotes
1. Utah has not yet adopted ABA Model Rule 5.7, although two Utah ethics opinions have favorably cited that rule. Utah Ethics Advisory Op. 98-08, 1998 WL 716635 (Utah St. Bar); Utah Ethics Advisory Op. 02-04, nn. 6-7, 2004 WL 448569 (Utah St. Bar).
2. Utah Rules of Professional Conduct 1.7 (b) (2004).
3. Utah Rules of Professional Conduct 1.8 (a) (2004). We note that the current ABA Model Rule of Professional Conduct 1.8(a) requires that notice to the client to seek advice of independent counsel must be in writing and that the client must sign any informed consent. Utah has not yet adopted the new Model Rules, but the process of considering their adoption, including ABA Model Rule 1.8, is currently under way. Lawyers are advised to check the current version of the rule.
4. Annotated Model Rules of Professional Conduct 5.7 (ABA 5th ed. 2003).
5. Utah Ethics Advisory Op. 99-07, 1999 WL 1167097 (Utah St. Bar).
6. Id.
7. N.Y. Comm. on Prof. Ethics Op. 682, 1996 WL 74860 (N.Y. State Bar Ass’n); Ky. Bar Ass’n Ethics Comm. Formal Op. E-390 (July 1996); Ariz. Jud. Advisory Op. 98-02, 1999, WL 667267 (Ariz. Sup. Ct. Jud. Ethics Advisory Comm.).
8. Conn. Ethics Op. 94-25, 1994 WL 780842 (Conn. Bar Ass’n); Mo. Bar Office of Chief Disciplinary Counsel, Informal Adv. Op. 960124 (1996).
9. Conn. Ethics Op. 97-16, 1997 WL 700650 (Conn. Bar Ass’n).
10. Where the referring lawyer would not specify a particular investment advisor, for example, but the Co-op would provide a list of investment advisors from which the client chooses.
11. That is, once the lawyer sends the client to the Co-op, the amount of revenue to the Co-op from the client would not generally be known to the individual referring lawyer.
12. Utah Ethics Advisory Op. 98-08, 1998 WL 716635 (Utah St. Bar).
13. Annotated Model Rules of Professional Conduct 5.7 (ABA 5th ed. 2003). We note here, as we did in Opinion 98-08, that certain aspects of this opinion are consonant with the provisions of Model Rule 5.7. However, the conclusions of this opinion are drawn from our analysis of the existing Utah Rules of Professional Conduct. We do not necessarily endorse Model Rule 5.7; adoption of any such rule is within the purview of the Utah Supreme Court.
14. See note 3, supra.
15. See note 3, supra.

Ethics Advisory Opinion No. 04-06

December 2, 2004
Issue:
Under what circumstances is it permissible for corporate counsel to assert that counsel concurrently represents present and former corporate employees whose testimony is relevant to a claim and ethically preclude opposing counsel’s access to those corporate employee witnesses?

Opinion: If corporate counsel has actually formed an attorney-client relationship with these employee-witnesses, and has fully complied with Utah Rules of Professional Conduct 1.7 (including obtaining informed consent from all multiple clients to joint representation and informing them of the possible need for withdrawal from representing any of them should an actual conflict arise), this is permissible and opposing counsel may not interview them. However, in the absence of such a fully formed and proper attorney-client relationship, it is improper for corporate counsel to block opposing counsel’s access to other current corporate constituents, by asserting an attorney-client relationship unless these individuals were control group members, their acts could be imputed to the organization or their statement would bind the corporation with respect to the matter under Utah Rules of Professional Conduct 4.2. Similarly, it is improper to block opposing counsel’s access to any former employee in the absence of a current fully formed and proper attorney-client relationship.
Facts: The tort action asserts one corporate employee and an outside individual were negligent, but names only the corporate entity (and the outside individual) as defendants. Counsel for plaintiff seeks to interview other employees who are fact witnesses and who are not alleged to be negligent. Corporate counsel informs plaintiff’s counsel that s/he is representing all corporate employees (current as well as former employees) and thus plaintiff’s counsel may not informally interview any of these individuals without violating Rule 4.2.
Analysis: Whether corporate counsel’s actions are proper must be determined by reference
to Rule 1.7 regarding conflicts of interest, Rule 4.2 as it governs counsel’s ability to interview “represented persons” in the corporate context, and Rule 3.4 as it permits corporate counsel to request that corporate employees not talk with opposing counsel.
Rule 4.2 1 provides in relevant part:
(a) General Rule. A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by [other law or judicial order].
Utah’s Rule 4.2 2 expressly addresses “Organizations as Represented Persons” and defines when an individual constituent of that organization, not separately represented, should be considered to be “represented” by corporate counsel. With respect to non-governmental organizations, Rule 4.2 states:
(c)(1)(B) When the represented “person” is an organization, an individual is “represented” by counsel for the organization if the individual is not separately represented . . . and . . . is known by the lawyer to be
(c)(1)(B)(i) a current member of the control group of the represented organization; or
(c)(1)(B)(ii) a representative of the organization whose acts or omissions in the matter may be imputed to the organization under applicable law; or
(c)(1)(B)(iii) a representative of the organization whose statements under applicable rules of evidence would have the effect of binding the organization with respect to proof of the matter.
Accordingly, whether or not the corporate attorney had formed an individualized attorney-client relationship with a particular corporate employee, this rule would prohibit the opposing counsel from interviewing any current member of the “control group” or any current employee whose acts or omissions would be imputed to the corporation or whose statements would be imputed to the corporation. Under these circumstances the employee would be acting and speaking for the corporation.3
Here, however, the opposing attorney posits that the employee is NOT a “person” “represented” by corporate counsel due to any of these factors, but a mere fact witness whom corporate counsel has (inexplicably in opposing counsel’s view) undertaken to represent as well.
Utah Rules of Professional Conduct 3.4, “Fairness to opposing party and counsel” must also be consulted. This rule is designed to permit both counsel to have access to relevant evidence in order that the adversary system function appropriately. Under Rule 3.4(f), a lawyer ordinarily may not ask a person who is not the lawyer’s client “to refrain from voluntarily giving relevant information to another party” with one exception relevant here. There is an exception to this prohibition if “[t]he person is . . . an employee or other agent of a client; and (2) [t]he lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.”4 Thus, in accordance with this rule, corporate counsel may request any current employee (including fact witnesses) whose interests will not be adversely affected to refrain from informally speaking with opposing counsel. However, corporate counsel may not direct opposing counsel not to contact corporate employees who have the right to talk or to decline to talk to opposing counsel, unless, of course, these corporate employees are actually individually represented by corporate counsel.
The situation posits corporate counsel taking one further step, making all employees who have any information about the issue individual clients, and thus conclusively preventing opposing counsel from informally contacting any of them. The first question in analyzing whether this strategy is ethical is whether these employee-fact-witnesses have actually formed an individual attorney-client relationship with corporate counsel. If they have not, corporate counsel would be guilty of violating Rule 3.4 in unlawfully obstructing access to these witnesses and Rule 4.1 in making a false statement of material fact.5
It is permissible for corporate counsel to undertake to represent an employee opposing counsel believes is a mere fact witness provided there is no actual conflict of interest (Rule 1.7(a)) between the corporation and the employee-witness with respect to the matter and provided corporate counsel fully complies with Rule 1.7(b) regarding potential conflicts of interest. Such compliance would require that all clients (the corporation and each employee-witness) be fully informed as to the implications of common representation, and give consent to common representation after such advice. The advice should include the possibility that if a conflict of interest arises between the corporation and the witness, counsel may be required to withdraw from the representation entirely.6
It may be helpful to illustrate a possible scenario where common representation might be undertaken and a scenario where it should not be. Imagine allegations that the corporation has been negligent due to the acts of one employee, and the named employee, the corporation and all other employee witnesses tell counsel that the alleged negligent act never occurred. Under these circumstances, counsel should be able to obtain informed consent to represent the corporation, the alleged negligent employee and other employee witnesses, should they all desire representation. However, if one employee witness will testify that the negligent act occurred and the employee alleged to be negligent denies the act; then clearly corporate counsel cannot represent both (and might be required to withdraw from the representation entirely if this came to light after common representation had been undertaken).
We also interpret Rule 1.7 to be consistent with Rule 3.4. If an employee’s interest might be adversely affected by refraining from giving information to opposing counsel under Rule 3.4, then a conflict of interest exists such that common representation should not be permitted under Rule 1.7. For example, if the corporate employee had suffered the same discrimination as that complained of in the claim against the corporation, it would be impermissible for corporate counsel to undertake to represent this employee fact witness in the case.
While corporate counsel may certainly consult with the corporate constituent called as a witness in a deposition, this consultation is part of counsel’s representation of the corporation and does not render the attorney counsel to the witness as an individual. Nor does such corporate representation block opposing counsel’s ability to attempt to interview such a fact witness separate and apart from formal discovery.
Finally, we note that, in prohibiting communications with persons represented by counsel, Utah’s Rule 4.2(a) provides explicit exceptions: “the lawyer . . . is authorized to do so by: . . . (2) decision . . . of a court of competent jurisdiction; (3) a prior written authorization by a court of competent jurisdiction obtained by the lawyer in good faith. . . .” Accordingly, an attorney who seeks to informally interview employees who are mere fact witnesses has the possibility of having this issue resolved by the court.7
Footnote
1. This portion of Utah Rules of Professional Conduct 4.2 (2004) is identical to ABA Model Rule 4.2 (1993). This Committee has previously opined regarding when Rule 4.2 prohibits or permits contact with various persons in Utah Ethics Advisory Op. No. 04-04, 2004 WL 1921150 (Utah St. Bar) (contact with former employees of opposing party permitted), Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar) (contact with insurance adjuster), Utah Ethics Advisory Op. No. 96-01, 1996 WL 227376 (Utah St. Bar) (contact with former plaintiffs whose claims have been settled), Utah Ethics Advisory Op. No. 95-05, 1996 WL 73351 (Utah St. Bar) (relationship to U.S. Department of Justice regulation purporting to authorize certain ex parte contacts), and Utah Ethics Advisory Op. No. 113 (1991), 1991 WL 634794 (Utah St. Bar) (counsel for individual members of tribe communicating with Tribal Counsel). None of these opinions is determinative in this case.
2. The ABA Model Rules include these concepts in the Comment to Rule 4.2, as did Utah before the current version was adopted in 1999. See Featherstone v. Schaerrer, 34 P.3d 194 (Utah 2001) interpreting Utah’s prior Rule 4.2 to prohibit contacts with the corporation’s secretary given this language in the Comment to the rule.
3. This interpretation of prior Utah Rule 4.2, which included these provisions in the Comment rather than in the text of the rule itself, was adopted by the Utah Supreme Court in Featherstone v. Schearrer, 34 P.3d 194, 201 (Utah 2001).
4. Utah Rules of Professional Conduct 3.4(f)(1),(2)(2004).
5. Utah Rules of Professional Conduct 4.1(a)(2004) provides: “In the course of representing a client a lawyer shall not knowingly: (a) [m]ake a false statement of material fact or law to a third person.”
6. See Utah Rules of Professional Conduct 1.9 and Utah Ethics Advisory Op. No. 96-11, 1996 WL 45138 (Utah St. Bar) (attorney appointed to represent both mother and father in an abuse/neglect proceeding must withdraw from representing either of them after a conflict of interest arises).
7. See e.g., Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (brokerage firm sought and obtained court’s permission to conduct ex parte interviews with former bank employees where bank was represented by counsel).

Ethics Advisory Opinion No. 02-08

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

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

Ethics Advisory Opinion No. 02-09

Issued September 24, 2002
¶ 1 Issue:
Is it ethical for an attorney to enter into a contingency-fee agreement, under which all fees, expenses and costs of litigation are unconditionally assumed by the attorney?

¶ 2 Opinion: Within broad limitations, the Utah Rules of Professional Conduct permit an attorney and a client to determine the terms of the lawyer’s compensation, and there is no per se restriction prohibiting the attorney from assuming all litigation costs and expenses under a contingency-fee agreement. Such fee agreements, however, must comply with all other applicable provisions of the Utah Rules of Professional Conduct concerning fees.
¶ 3 Analysis: We have received a request for an opinion as to the propriety of a lawyer’s entering into a contingent-fee agreement with a commercial client on collection matters that contains the following paragraph:
All fees, expenses and costs, such as filing fees, court disbursements, photocopy costs, telephone expenses, travel, postage, storage, office supplies, and miscellaneous expenses associated with the collection shall be the sole responsibility of the attorney and will not be billed or reimbursed by client.
The issue requires a determination of whether a fee arrangement of this kind is consistent with Rules1.5, 1.7, and 1.8(e) of the Utah Rules of Professional Conduct (“The Rules”).1
¶ 4 Lawyers are generally free to determine the terms of their representation with their clients, consistent with the Rules. The Ethics Advisory Opinion Committee has recently addressed this issue in Opinion No.02-03, reaching a conclusion that a flat-fee agreement between a defense lawyer and an insurance company is not per se unethical and cautioning:
A lawyer who enters into any type of flat-fee arrangement with an insurer must use caution to assure that she exercises independent professional judgment on behalf of the insured. This is particularly important in situations where the scope of the case has unexpectedly increased beyond the attorney’s original expectations in agreeing to a fixed fee.2
¶ 6 Our Opinion No.136 also addressed the issue of whether a client’s advance payment, made as a fixed fee or non-refundable retainer, was unethical. The opinion concluded that fixed-fee contracts or non-refundable retainers are not expressly prohibited by Rule1.5. 3
¶ 7 Rule1.5(c) addresses certain requirements related to contingent-fee arrangements, including the requirement that the fee agreement must be in writing, and it must state the method by which the fee is to be determined and how expenses are to be handled.4While Rule1.5(c) anticipates that expenses will be deducted either before or after the contingent fee is calculated, nothing in the rule prohibits the attorney from agreeing to assume those costs and expenses within her contingent fee, or, if no judgment or settlement is obtained, to assume responsibility for those costs and expenses.
¶ 8 As was extensively addressed in Opinion 02-03, a lawyer must ensure that her agreement relating to fees will not require her improperly to curtail services provided to the client that would normally be within the scope of the representation.
¶ 9 Rule 1.7(b) requires a lawyer to decline representation if the representation of the client may be limited, among other things, by the lawyer’s own interest. As we pointed out in Opinion No. 02-03, the economics of any agreement between the lawyer and her client is not the Committee’s business. In the context of our discussion of fee arrangements between lawyers and insurers, we noted:
Lawyers and insurance companies are free to negotiate fee arrangements that suit their respective economic interests so long as no lawyer on either side violates the Utah Rules of Professional Conduct. . . . We emphasize, however, that lawyers entering into such arrangements must use care to assure that their representation complies with all applicable ethical standards, even if the fee arrangement requires the lawyer to perform services for reduced rate or even without compensation.5
¶ 10 We conclude that there is no material difference between the proposed arrangement and a “standard” contingency fee-arrangement under which the attorney essentially “advances” her own services with the potential that she will not be “reimbursed” for her costs of operation (office, overhead, staff, library, etc.). We can see no distinction between a lawyer’s providing all the ancillary services that make up her normal operations in connection with a contingent-fee agreement and the lawyer’s undertaking to pay the costs and expenses directly connected to the representation as part of the bargained-for quid pro quo of the contingent-fee agreement.
¶ 11 An argument has been advanced that the lawyer who undertakes to pay all costs associated with the pursuit of the case is providing financial assistance to the client in connection with pending or contemplated litigation, which is prohibited under Rule1.8(e). This argument fails because it is subject to the exception under Rule1.8(e)(1). The exception states: “[E]xcept [a] lawyer may advance court casts and expenses of litigation the repayment of which may be contingent on the outcome of the matter.” In the proposed arrangement the lawyer is simply advancing court costs and expenses of litigation. If the lawyer is unsuccessful with a case, she is not compensated for costs and expenses; if successful, she is compensated for the costs and expenses as an implicit part of the percentage-fee retained from the recovery. That is, the lawyer’s right to recover costs can be made as contingent as her right to a fee.”6
¶ 12 Additionally, some have argued that the proposed arrangement may create a prohibited “proprietary interest” under Rule1.8(j). Even if it does, we conclude that it falls under the contingent-fee exclusion of Rule1.8(j)(2).7
¶ 13 Finally, we observe that there have been decisions in other jurisdictions that find the arrangement we address here to be an ethical violation.8Those decisions can generally be distinguished as having been decided under more stringent versions of a rule similar to Utah’s Rule1.8(e). In any event, we decline to adopt such a result, as we can identify no substantial public policy that is served by prohibiting this kind of arm’s-length agreement between attorney and client,9so long as it otherwise complies with the our Rules of Professional Conduct concerning fees.10
Footnotes
1.Our opinion here is not limited to contingent fees in commercial collection situations, but has general applicability to contingent-fee arrangements.
2.Utah Ethics Advisory Op. 02-03, at ¶ 30, 2002 WL 340262 (Utah St. Bar).
3.Utah Ethics Advisory Op. 136, 1993 WL 755253 (Utah St. Bar).
4. “A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.” Rule1.5(c).
5.Opinion No.02-03, at ¶ 32 (emphasis added).
6.We also note that we obtain no guidance from the official comment to Rule1.8, as it does not address Rule1.8(e). However, the ABA’s Annotated Model Rules of Professional Conduct (4th ed. 1999), citing Charles W. Wolfram, Model Legal Ethics § 9.2.3 (1986), states: “Rule 1.8 does not require that the client guarantee repayment of the advances; repayment may be made contingent on the outcome of the matter.”
7.“[T]he lawyer may [c]ontract with a client for a reasonable contingent fee in a civil case.”
8.See, e.g., Arizona Comm. on the Rules of Professional Conduct, Op. 95-01, decided under a version of1.8(e) that reads: “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, provided the client remains ultimately liable for such costs and expenses . . . .”
9.Indeed, there are the same beneficial public-policy attributes of the proposed arrangement as are often articulated for “standard” contingent-fee arrangements—namely, that it provides access to the judicial system for aggrieved persons for whom access would otherwise not be economic or practicable.
10.For example: “A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee,” Rule1.5(a).