Ethics Advisory Opinion 16-01

Utah State Bar

Ethics Advisory Opinion Committee
Opinion Number 16-01
Issued February 8, 2016

                                                         BACKGROUND

  1. Lawyer A, a sole practitioner, was retained to represent Wife in divorce matter. Husband retained Lawyer B at Law Firm B to represent him in the divorce.  Husband later discharged Lawyer B and Law Firm B, and Lawyer A continued to represent Wife.  Lawyer A later joined Law Firm B, and Husband executed a waiver consenting to Lawyer A’s continued representation of Wife, but only for the express purpose of mediation and settlement negotiation.  While employed at Law Firm B, Lawyer A obtained no information regarding Husband from Law Firm B. Lawyer A did not access Husband’s electronic or hard file maintained by Law Firm B and did not discuss the case with Lawyer B. Instead, all information obtained about the case came from Wife and/or third parties.  The case settled and Lawyer A withdrew.   Lawyer A later left Law Firm B and joined Law Firm C. Lawyer B remains employed at Law Firm B.

ISSUE

  1. May Wife re-hire Lawyer A at Law Firm C to represent Wife against Husband on various post-decree enforcement issues?

OPINION

  1. Yes. When Lawyer A left Firm B and joined Firm C, under Rule 1.9(b) of the Utah Rules of Professional Conduct (the “URPC”), Lawyer A could continue to represent Wife without Husband’s consent because Lawyer A did not obtain any information protected by Rules 1.6 and 1.9(c) about Husband.                                   

ANALYSIS

  1. When Lawyer A joined Law Firm B, Husband was a former client of Law Firm B. Rule 1.10(a) provides that [w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 and 1.9….”  URPC 1.10(a).  This means that if Lawyer B and Firm B have a conflict that would prohibit them from representing Wife against Husband, who is Lawyer B’s and Firm B’s former client, then that conflict would be imputed to Lawyer A now that Lawyer A has joined Firm B, and Lawyer A would not be able to represent Wife, unless an exception applies.
  2. Because Husband is a former client of Lawyer B and Law Firm B, the first issue is whether pursuant to Rule 1.9, Duties to Former Clients, a conflict exists. Rule 1.9(a) provides that 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, confirmed in writing.” URPC 1.9(a) (emphasis added).  Here, Husband’s and Wife’s interests are directly adverse in the same matter, the divorce proceedings.  However, Lawyer A obtained Husband’s consent in writing to Lawyer A’s continued representation of Wife in the divorce proceedings for the express purpose of mediation and settlement negotiation.
  3. Rule 1.9(c)(1) further provides that a lawyer or firm may not use information relating to the representation of a former client to the disadvantage of the former client. URPC 1.9(c)(1). In addition to obtaining Husband’s written consent, Lawyer A did not access Husband’s file while at Firm B or speak to Lawyer B about the case involving Husband and Wife. Lawyer A did not obtain any information from Lawyer B or Law Firm B related to their representation of Husband.  Because it appears that Lawyer A’s representation of Wife while at Law Firm B complied with Rule 1.9, it was proper for Lawyer A to represent Wife while Lawyer A was at Firm B.
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Ethics Advisory Opinion 15-05

Utah State Bar

Ethics Advisory Opinion Committee
Opinion Number 15-05
Issued September 30, 2015

ISSUE

  1. May an attorney pay an internet service company a nominal fee to bid on potential legal work? May an attorney seek clients through an internet business that provides the attorney with limited client information in order to permit the attorney to bid to provide the needed legal services?

OPINION

  1. Payment of a nominal fee to the internet forum service provider described herein, thereby enabling the attorney to offer a bid  for legal services to a potential client, does not violate: (a) Rule 7.1, Communications concerning a Lawyer’s Services; (b) Rule 7.2, Advertising, or (c) Rule 7.3, Direct Contact with Prospective Clients.  Using such an internet business to seek new clients does not violate Rule 1.18 or other rules of professional conduct provided the attorney does not undertake representation for which he has a conflict of interest and the attorney protects the confidentiality of the information received from the prospective client.

BACKGROUND

  1. A new internet service provider website has emerged for Utah business market consumers, including potential clients who need and/or seek legal services.  The website is an internet forum designed to help all consumers, obtain bids or quotes on various professional services, including legal services, in the geographic area where the potential consumer or client lives or where the potential services are needed.  Professionals, including attorneys, may create a profile on the service website (free of charge both to the consumer and to the professional). These professionals may respond in writing to consumer requests for bids or quotes on proposed services.  Consumers, including potential legal clients, are allowed to review the professionals/potential attorneys’ submissions, such as attorney biographies, other client analysis of such attorney services, and attorney case summaries.  The consumer/potential client may then leave comments or recommendations on the website for separate consumer access.
  2. This internet forum service is akin to the popular Angie’s List website, www.angieslist.com, which also allows consumers to find professional services the consumer either wants or requires in an identified geographic area.  Yet a critical difference between Angie’s List and the internet forum service provider described in this Opinion is that the Angie’s List service charges consumers to become Angie’s List “members” in order to take advantage of Angie’s List services.   In contrast, the internet service described in this Opinion is available cost-free to consumers.  Instead, the internet service charges the professionals, including attorneys, for this internet service when the professionals submit bids to the consumer with respect to the consumer’s requested service.  In order for an attorney to submit a bid to the potential client for requested legal services, the attorney must pay a nominal fee of approximately $3.00 – $5.00 per bid to the internet service provider.  The attorney must pay this fee for each bid, regardless of whether the bid actually results in any work for the consumer/client.
  3. Any Utah lawyer can register on the internet forum service provider described herein and submit a resume and/or listing of attorney qualifications for designated legal services. The internet service confirms that the Utah State Bar has in fact licensed the bidding attorney.  The attorney, who has registered with the internet service, selects a category of requests he/she would like to receive, such as tax litigation, contract law, criminal law, etc.  The attorney also sets a travel geographic area to specify the maximum distance the professional would limit his/her services.
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Ethics Advisory Opinion No. 12-01

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 12-01
Issued January 10, 2012

ISSUE

1. Three related questions are before the Committee. The attorney states that she separately represented a woman and a man (the “wife” and “husband,” respectively), both prior to their marriage. She subsequently represented both parties after they were married. The parties subsequently went to trial seeking a divorce (the “divorce”). The first question is whether representation of the wife, prior to the marriage of the parties, in litigation (the “separate action”) constitutes a conflict which would preclude the attorney from representing the husband on appeal in the divorce? Second, does the fact that the attorney testified at the divorce trial as a percipient witness, preclude her from representing the husband on appeal. Third, does representation of the wife in litigation involving both husband and wife against a third party during the course of their marriage (the “joint litigation”), wherein, notwithstanding the attorney’s vigorous but unsuccessful advocacy of the wife’s position, the wife was dismissed from the case, preclude the attorney from representing the husband on appeal in the divorce, particularly where the attorney now believes the trial court was correct in dismissing the wife from the joint litigation?
OPINION
2. Because it does not appear to “involve” a “substantially related matter,” representation of the wife in the separate action prior to the marriage would not necessarily preclude the lawyer from representing the husband on appeal in the divorce. The mere fact of the wife’s dismissal or that the lawyer agreed or disagreed with the court’s decision dismissing her from the joint litigation involving both parties is not a determinative factor to this opinion. The fact that the lawyer testified during the divorce proceedings as a percipient witness, is likewise most likely not a relevant factor, subject to the caveats set forth in the Analysis

below. Where, however, the lawyer represented both the husband and wife against a third party in the joint litigation during the course of the marriage, the joint litigation and the divorce appear to be “substantially related” because they “involve the same transaction or legal dispute.” It would therefore be a violation of the duty of loyalty and independence under the Utah Rules of Professional Conduct for the lawyer to undertake representation of the husband on appeal in the divorce without the informed written consent of the wife.

BACKGROUND

3. Prior to the marriage of the parties involved, the attorney represented the wife in the joint litigation. The issues before court in no way involved the future husband. Subsequently the parties married. During the course of their marriage, the attorney represented both husband and wife against a third party in the joint litigation. The wife’s standing to sue was at issue in the joint litigation and in spite of the lawyer’s vigorous advocacy of her position, the court dismissed her from the litigation. The lawyer disagreed with this ruling at the time, but later came to accept the court’s decision as a correct one.
4. The couple then initiated divorce proceedings. The attorney recognized that there would be an obvious conflict and thus declined to represent either party at trial. As a result of the long standing attorney-client relationship with the husband, the attorney was called and did testify as a percipient witness regarding the husband’s procurement of certain property rights and other matters which were apparently not a violation of confidentiality or otherwise privileged under the Utah Rules of Professional Conduct. According to the attorney, she did not assume a position advocating on behalf of either party in the trial court and testified only as to non-contested issues. She represents that on appeal she would not be placed in a position of advocating her own credibility as a witness at the trial. However, representation of the husband on appeal of the divorce would perhaps, although not necessarily, require the attorney to argue that at least one of the positions, specifically in the joint litigation matter, previously advocated by the lawyer on behalf of the wife in that litigation, was incorrect.
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ETHICS ADVISORY OPINION No. 08-01

OPINION NO. 08-01
MAIN OPINION:
For Dissent Opinion 
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.
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Ethics Advisory Opinion No. 08-02

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

¶ 2. Conclusion: The representation of a court-appointed guardian by an attorney who has also represented one of the parties to the proceeding for the appointment of the guardian must be analyzed under Rules of Professional Conduct, Rules 1.7 and 1.9, the same way an attorney would analyze any conflict of interest between two current clients or between a current and former client. If the facts and circumstances of the case raise the specter of a direct or material adversity, or if the representation of another client creates a material limitation on the lawyer’s ability to represent the guardian effectively in light of the fiduciary, statutory and court imposed obligations on the guardian, the attorney should either avoid the joint representation or exercise great care in obtaining the informed written consent of both affected clients. If there is an on-going proceeding involving both the former client and the prospective new client (the guardian), the conflict may not be waived and the representation of the guardian must be avoided.
¶ 3. Background: The issue addressed by this opinion arises in the context of a request under Utah Code Ann. § 75-5-303 (1988) for the appointment of a guardian of an incapacitated person. Under that section, the incapacitated person herself or “. . . any person interested in the incapacitated person’s welfare may petition for a finding of incapacity and appointment of a guardian.1 Once the guardian is appointed, he or she may retain counsel to advise with respect to the conduct of the guardian’s duties.
¶ 4. The nature of the proceedings leading to the appointment of a guardian involve several parties, including the person (usually a relative) requesting the appointment. This person is frequently represented by counsel. The person for whom guardianship is required to be represented by counsel. The proceedings seeking the appointment may be largely consensual or they may be contested. Conflicts in the proceedings will primarily arise in two different contexts:
a) the party to the guardianship wishes to be appointed guardian, and other parties in interest object in favor of an unrelated third party guardianship or
b) the person for whom the guardianship is sought objects to the appointment.
Additional conflicts other may arise, depending on the nature of the guardianship proceeding and the identity of the parties to it, but should nonetheless be resolved as set forth below.
¶ 5. Analysis: If an attorney who has represented one of the parties in a contentious guardianship proceeding wishes to subsequently represent the person appointed as guardian, he or she must determine whether there is an impermissible conflict of interest in the subsequent representation. Resolution of the question is dependent on the facts of each given situation.
¶ 6. The conflict scenarios set forth above raise an issue under Utah Rule of Professional Conduct Rule 1.7 (Conflict of Interest: Current Clients) and Utah Rule of Professional Conduct Rule 1.9 (Duties to Former Clients), depending on whether the attorney continues to represent the party his or her previous client or whether the attorney withdraws from the prior representation. (more…)

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. (more…)

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. (more…)

Ethics Advisory Opinion No. 05-01

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

2 Opinion: Absent a court order requiring the attorney’s testimony, and notwithstanding a subpoena served on the attorney by the prosecution, the attorney may not divulge any attorney-client information, either to the prosecution or in open court.
3 Facts: The client hired the attorney (the “reviewing attorney”) for the limited purpose of reviewing and advising about a plea offer made by the prosecution to the client in a matter where the client had been charged with a first-degree felony. The client had retained another attorney to represent him at trial (“trial attorney”) for the purpose of entering a guilty plea. The client subsequently moved to set aside the plea of guilty, asserting that he had become “confused” in his discussions with the reviewing attorney, and that the confusion resulted in an improvident entry of a plea of guilty.
4 The prosecution subpoenaed the reviewing attorney to testify regarding the issue of the scope and substance of the attorney’s representation. The reviewing attorney desires to testify, believing that the client may commit a fraud upon the court by misrepresenting their relationship and the advice given. The attorney also wishes to defend and maintain her good name and reputation if the matter is to be heard in open court. The former client has refused to waive his attorney-client privilege, indicating he intends to assert the privilege fully to bar the attorney’s testimony.
5 May the attorney testify regarding matters within the scope or substance of the attorney’s representation? May the attorney discuss the nature of anticipated testimony out of court with the prosecutor?
6 Analysis: The reviewing attorney’s inquiry presents two issues. The first relates to the subject of testimony in a judicial setting and involves the attorney-client privilege under Rule 504(b) of the Utah Rules of Evidence. 1 The question of what an attorney may testify to, or be compelled to testify to, in obedience to a court order is established by an exception to the privilege, either as stated in the evidentiary rules or by judicial precedent. When a former client objects in a judicial proceeding to disclosure of privileged material or information, the decision regarding what the attorney may reveal is one for the court.
7 The second issue relates to the attorney’s ethical requirement of client confidentiality pursuant to the Utah Rules of Professional Conduct, which is a separate and independent obligation. The attorney’s obligation of client confidentiality pursuant to Utah Rule of Professional Conduct 1.6 and loyalty to a former client pursuant to Rule 1.9 must be considered by the attorney in the determination of whether any disclosures may be made to the prosecution during trial preparation. Although there are some similarities between the two principles, they are not the same and should not be confused. 2
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Ethics Advisory Opinion No. 05-04

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

2 Opinion: In most circumstances, the obligation of confidentiality attaches when a prospective client consults with the attorney in contemplation of retaining the attorney, even if that attorney is not ultimately retained and never advises the client. The provisions of Rules 1.6 and 1.9 regarding former clients outline the attorney’s responsibilities and the circumstances when such an attorney may breach confidentiality.1 Absent consent, the attorney may not undertake representation of another party in the same or substantially factually related matter if the attorney acquired relevant confidential information from the prospective client. An attorney may avoid disqualification by strictly limiting the information acquired during the initial consultation or by explicit agreement and waiver prior to the initial consultation. Under the Utah Rules of Professional Conduct in effect on the date of issuance of this Opinion, if the attorney is disqualified, the entire firm of that attorney is also disqualified.
3 Facts: We consider three sequential questions:
(a) A prospective client meets with an attorney in anticipation of retaining counsel and discusses certain facts with that attorney. The client does not retain the attorney. What, if anything, may the attorney say about the consultation?
(b) Thereafter, the prospective client retains other counsel who files court papers in the matter. The original attorney notices that certain facts pled in the court papers are inconsistent with the facts the prospective client originally reported to that attorney. May the initial attorney reveal this discrepancy?
(c) After the prospective client retains other counsel, an opposing party seeks to retain the attorney who did the initial interview with the prospective client. May the attorney or others in the attorney’s firm represent an opposing party in the matter?
4 Analysis: These questions require a multi-step analysis. First, we must determine if, due to the initial interview, an attorney-client relationship existed such that the obligation of confidentiality attached. Second, if such an attorney-client relationship with obligations of confidentiality did develop, we must consider whether there are exceptions to confidentiality that would permit counsel to breach confidentiality or reveal information about such a former prospective client. Third we discuss whether an attorney-client relationship may attach for some purposes (e.g., obligation of confidentiality) and not for others (e.g., conflicts of interest). We outline when the interview of a prospective client will prevent the attorney (and the attorney’s firm) from representing another party in the same or a substantially related matter.
Formation of Attorney-Client Relationship for Obligation of Confidentiality
5 Previously, we considered a case regarding an attorney holding a telephone conference with a potential client who was a fugitive from justice. The police asked the attorney to disclose the whereabouts of the client. The attorney refused. The Committee concluded:
[An] attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. 2 (more…)

Ethics Advisory Opinion No. 02-06

Issued June 12, 2002
1 Issue:
May an attorney represent a client in a criminal matter where the attorney will have to cross-examine as an adverse witness a former client whom the attorney previously represented in an unrelated matter?

2 Opinion: In general, an attorney may represent a client in a criminal case where the attorney will have to cross-examine a former client whose interests are adverse to the defendant as long as the representations of the present and former clients are not substantially factually related and the attorney does not disclose or use any confidential information gained in the course of the former client’s representation to his disadvantage, as provided by Rule 1.9.
3 Analysis: The examination of a former client as an adverse witness on behalf of another client presents a potential conflict of interest for the attorney that must be examined under the provisions of Utah Rules of Professional Conduct: Rule 1.9, which governs successive conflicts of interest; Rule 1.7(b), which deals with concurrent conflicts of interest; Rule 1.6(a), which governs the duty of confidentiality; and Rules 1.1 and 1.3, which set forth the duties of competency and diligence, respectively. The Committee concludes that the cross-examination of the former client by the attorney does not per se create a disqualifying conflict of interest. However, the specific facts and circumstances of the case may involve a violation of the foregoing rules, and it is the lawyer’s responsibility to analyze the situation to determine whether there will be compliance with the applicable rules.1
4 Under Rules of Professional Conduct 1.9(a), an attorney may not represent a person “in the same or a substantially factually related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents after consultation.” Unlike the ABA Model Code of Professional Responsibility, which requires that the matters be simply “substantially related,” Rule 1.9 requires that the matters be “substantially factually related,” thus focusing on the factual nexus between the prior and current representations, rather than a similarity of legal issues.2If the attorney determines that the facts underlying the representation of the former client-witness are substantially related to the indictment of the defendant, then the attorney needs to assess whether the interests of the former client and the defendant are materially adverse.3Should the attorney conclude that the two representations are substantially factually related and that the interest of the former and present clients are materially adverse, the attorney would be faced with an impermissible conflict of interest that could be cured only by obtaining the former client-witness’s consent to the representation of the defendant.
5 In cross-examining the former client, the attorney must also comply with the ethical obligation not to disclose any confidential information related to the representation of the former client. The cross-examination may create a tension between (a) the attorney’s duty of loyalty to the client, which encompasses the duty to represent the client diligently and therefore to cross-examine the adverse witness vigorously, and (b) the attorney’s duties to the former client-witness. The attorney will need to resolve any such tension within the boundaries of Rule 1.9(b).
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Ethics Advisory Opinion No. 02-06

Issued June 12, 2002
1 Issue:
May an attorney represent a client in a criminal matter where the attorney will have to cross-examine as an adverse witness a former client whom the attorney previously represented in an unrelated matter?

2 Opinion: In general, an attorney may represent a client in a criminal case where the attorney will have to cross-examine a former client whose interests are adverse to the defendant as long as the representations of the present and former clients are not substantially factually related and the attorney does not disclose or use any confidential information gained in the course of the former client’s representation to his disadvantage, as provided by Rule 1.9.
3 Analysis: The examination of a former client as an adverse witness on behalf of another client presents a potential conflict of interest for the attorney that must be examined under the provisions of Utah Rules of Professional Conduct: Rule 1.9, which governs successive conflicts of interest; Rule 1.7(b), which deals with concurrent conflicts of interest; Rule 1.6(a), which governs the duty of confidentiality; and Rules 1.1 and 1.3, which set forth the duties of competency and diligence, respectively. The Committee concludes that the cross-examination of the former client by the attorney does not per se create a disqualifying conflict of interest. However, the specific facts and circumstances of the case may involve a violation of the foregoing rules, and it is the lawyer’s responsibility to analyze the situation to determine whether there will be compliance with the applicable rules.1
4 Under Rules of Professional Conduct 1.9(a), an attorney may not represent a person “in the same or a substantially factually related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents after consultation.” Unlike the ABA Model Code of Professional Responsibility, which requires that the matters be simply “substantially related,” Rule 1.9 requires that the matters be “substantially factually related,” thus focusing on the factual nexus between the prior and current representations, rather than a similarity of legal issues.2If the attorney determines that the facts underlying the representation of the former client-witness are substantially related to the indictment of the defendant, then the attorney needs to assess whether the interests of the former client and the defendant are materially adverse.3Should the attorney conclude that the two representations are substantially factually related and that the interest of the former and present clients are materially adverse, the attorney would be faced with an impermissible conflict of interest that could be cured only by obtaining the former client-witness’s consent to the representation of the defendant.
5 In cross-examining the former client, the attorney must also comply with the ethical obligation not to disclose any confidential information related to the representation of the former client. The cross-examination may create a tension between (a) the attorney’s duty of loyalty to the client, which encompasses the duty to represent the client diligently and therefore to cross-examine the adverse witness vigorously, and (b) the attorney’s duties to the former client-witness. The attorney will need to resolve any such tension within the boundaries of Rule 1.9(b).
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Ethics Advisory Opinion No. 97-05

(Approved April 25, 1997)
Issue No. 1: Is it ethical for an attorney to receive payment for legal services other than in money?
Opinion: The Utah Rules of Professional Conduct permit an attorney to accept payment for legal services in a form other than money. All arrangements for payment of an attorney’s fees, however, must comply with the applicable provisions of the Utah Rules of Professional Conduct concerning fees and the attorney-client relationship.
Issue No. 2: Is it ethical for an attorney to barter legal services through a barter exchange?

Opinion: Although an attorney’s bartering of legal services through a barter exchange is not prohibited per se by the Utah Rules of Professional Conduct, such bartering is unethical if the attorney’s conduct or the structure, terms, or conditions of the attorney’s arrangements with the barter exchange violate any of the Utah Rules of Professional Conduct.
Analysis: The request for this opinion asks generally, without presenting specific facts and circumstances, whether attorneys ethically may receive payment for legal services other than in money, such as through barter exchanges. The request also asks whether Utah Ethics Advisory Opinion No. 50, issued August 25, 1978, is still valid, noting that questions concerning an attorney’s participation in barter exchanges are of continuing interest in Utah.
Payment of Attorneys’ Fees Other Than in Money. Nothing in the Utah Rules of Professional Conduct requires that an attorney’s fees be paid in money. The fundamental requirement of the Utah Rules of Professional Conduct is that an attorney’s fees must be reasonable.1
Rule 1.5(b) requires a written communication concerning the basis or rate of an attorney’s fee when the lawyer has not regularly represented the client and it is reasonably foreseeable that total attorneys’ fees to the client will exceed $750.00. A determination of whether the $750.00 threshold will be met in a particular case requires that attorneys’ fees be evaluated in terms of their dollar amount.
However, Rule 1.5 does not require that payment for legal services be made in money. The following official comment to Rule 1.5 states that an attorney may accept property in payment for fees:
A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer’s special knowledge of the value of the property.
As this comment illustrates, no arrangement for payment of an attorney’s fees, whether in money, property or services, should violate any of the prohibited transaction rules of Rule 1.8. For example, an arrangement for payment of attorneys’ fees that involves the acquisition of a pecuniary interest adverse to a client in violation of Rule 1.8(a) is prohibited. Any arrangement for payment of attorneys’ fees that involves giving the lawyer literary or media rights in violation of Rule 1.8(d) is prohibited. Accepting reimbursement of costs other than in money in a way that provides for an improper advance of costs or expenses could also violate the financial assistance restrictions of Rule 1.8(e).
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Ethics Advisory Opinion No. 97-08

(Approved July 2, 1997)
Issue:
May an attorney, formerly employed by a government agency, represent a private client in challenging: (i) the validity or enforceability of statutes, rules, ordinances or procedures that the attorney participated in drafting; or (ii) specific contracts or easements that the attorney negotiated, drafted or reviewed for approval on behalf of the government agency?

Opinion: (i) As a general rule, a former government agency is not prohibited from representing a private client in matters that involve the interpretation or application of laws, rules or ordinances directly pertaining to the attorney’s employment with a government agency. (ii) The attorney may not, however, represent such a client where the representation involves the same lawsuit, the same issue of fact involving the same parties and the same situation, or conduct on which the attorney participated personally and substantially on behalf of the government agency. In any event, an attorney may not undertake representation adverse to any former client where the matter is substantially factually related to the matter for which the former client retained the attorney’s services.
Analysis: During his tenure as an Assistant City Attorney, a lawyer was involved in drafting a number of ordinances and in approving “as to form” a number of contracts and other documents. Among other tasks, the attorney undertook to draft an interim zoning ordinance and a final zoning ordinance adopted by the City. The attorney’s duties also included negotiating and recommending approval of a particular easement to place a public hiking trail at a specific location.
Some time after leaving government employment, the attorney was approached by one or more prospective clients seeking to challenge the zoning ordinance and challenging the location of the trail. The City contacted the attorney and objected to his involvement on behalf of the private clients in these matters. The attorney has asked for our opinion, voicing concerns that much of his prospective client base depends on his ability to challenge ordinances and similar rules established by the City during his employment there.
ANALYSIS
Utah Rules of Professional Conduct 1.11(a) prohibits a former government attorney, unless otherwise authorized by law, from representing a private client “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.” As the facts have been presented here, there appears to be no argument that the attorney was personally and substantially involves as a government attorney in the negotiation, drafting and approval process with respect to the zoning ordinances and the easement. The analysis therefore turns on whether the proposed representation would constitute the same “matter” as the attorney’s prior government experience for purposes of Rule 1.11(a).
Under Rule 11(d), the definition of “matter” expressly includes: “Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.”
A government attorney who has been employed to assist in the drafting of ordinances or rules is not prohibited from subsequently challenging the validity or enforceability of such rules on behalf of a private client where the subsequent representation does not involve the same proceeding, parties or facts. There is no suggestion, either in the express definition or under any relevant interpretation of Rule 11 that a prohibited “matter” would extend so far as to encompass instances involving the mere interpretation of rules, ordinances, laws or procedures, the drafting or enactment of which the former government attorney might have assisted with. (more…)

Ethics Advisory Opinion No. 96-12

(Approved January 24, 1997)
Issue:
Is it ethical for an attorney to charge for legal advice given to callers using a “1-900 number” that would automatically bill the caller on a per-minute basis?

Opinion: It is not unethical for an attorney to give legal advice over the telephone and charge for such advice by the use of a 1-900 number.
Facts: An attorney proposes to obtain and advertise a telephone number that is accessed by first dialing 1-900 (a “1-900 number”) and to give general legal advice to callers. Advertisements promoting the 1-900 legal-advice line would state that use of the number is a toll call. Upon dialing the number, the caller would hear an introductory taped message describing the terms of the relationship to provide only general legal information, and indicating the cost of the call and legal advice. Callers would be able to terminate the call after the introductory message and not incur any charges. Legal advice would be given only by licensed members of the Utah State Bar. All callers would also be advised that no attorney/client relationship would be created, even upon receiving legal advice and incurring charges.
Analysis. Assuming that the requirements of Rules 7.1 and 7.3 are complied with,1the use of a 1-900 telephone service to provide “general” legal advice is not prohibited under the Utah Rules of Professional Conduct. The request does, however, pose a more difficult issue by indicating the intent to disclaim directly to a caller the creation of an attorney/client relationship. Such a disclaimer of an attorney/client relationship may be effective where the individual receiving the information has no expectation that an attorney/client relationship is created.2 However, if legal advice is sought from an attorney, if the advice sought is pertinent to the attorney’s profession, and if the attorney gives the advice for which fees will be charged, an attorney/client relationship is created that cannot be disclaimed by the attorney giving the advice.3The attorney/client relationship may be brief and may be subject to a number of agreed-upon limitations, but it is an attorney/client relationship, and it is one to which confidentiality, competence, conflicts, malpractice and other obligations would apply.4Further, Rule 1.8(h) may apply to prevent a lawyer from seeking “an agreement prospectively limiting the lawyer’s liability to a client for malpractice,” except in certain narrow circumstances.5
Conclusion. Establishing a 1-900 legal-advice line and charging clients for the time spent discussing the issue on the telephone with a licensed attorney is not per se unethical. However, the attorney should be aware that, because an attorney/client relationship is created when legal advice is sought and obtained, no matter how “general,” all the ethical rules apply to that relationship. Further, the attorney would be well-advised to keep adequate records of charges to clients as well as advice given.6
Footnotes
1.Rule 7.1 generally prohibits false or misleading solicitations and statements likely to “create unjustified expectation about results.” Rule 7.3 restricts certain in-person solicitations. Utah Rules of Professional Conduct 7.1, 7.3.
2.See, e.g., In re Petrie, 742 P.2d 796 (Ariz. 1987), for the proposition that the test of whether an attorney/client relationship exists, in part, is subjective with the reasonable belief of the client that such a relationship exists. (more…)

95-02A – May a law partner of a part-time justice court judge represent criminal defendants in the judicial district in which the justice of the peace sits?

 

 

(Approved January 26,1996)
Issue:
May a law partner of a part-time justice court judge represent criminal defendants in the judicial district in which the justice of the peace sits?

Facts: A and B are partners or associates of law firm X. A sits as a justice court judge on a part-time basis in the town of T. B’s practice involves representation of criminal defendants in the town of W (and perhaps several others) but not in the town of T. T and W are in the same Utah judicial district.
Analysis: First, it should be clear that B cannot appear before A. This would constitute “conduct that is prejudicial to the administration of justice”3 and would surely result in A’s violation of the Code of Judicial Conduct.4
Second, an analysis of whether B can represent criminal defendants elsewhere requires an analysis of both ethical and statutory proscriptions.
The justice court is a creation of the Utah Constitution 5 with statutory limitations as to territorial and subject matter jurisdiction. 6a By statute, it is not a court of record 7 and appeals are taken de novo to the circuit court of the county in which the justice court exists.8 Thus the impact of a decision by a justice court judge is limited exclusively to the parties appearing before the court and is subject to independent review by a full-time judge on appeal.
In implementing this system of justice courts, the Legislature imposed certain limitations on the secondary legal employment of part-time justice court judges. These limitations are an exception to the general rule that full-time judges may not practice law. 9 The relevant statutory provision reads as follows:
A justice court judge may not appear as an attorney in any criminal matter in a federal, state, or justice court or appear as an attorney in any justice court or in any juvenile court case involving conduct which would be criminal if committed by an adult.10
A justice court judge who violates this restriction is subject to removal for willful misconduct in office.11
This statutory limit applies to the justice court judge, not to partners or associates. It is designed to protect the integrity of the justice court system, by avoiding any appearance of conflict of interest, and thus impropriety, on the part of the judge.
In contrast, the analysis of whether a partner or associate of a justice court judge may represent criminal defendants in the same jurisdiction must begin with the Utah Rules of Professional Conduct. The basic rule governing imputed disqualification is Rule 1.10, which provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2. The relevant question here is whether the justice court judge is prohibited by Rule 1.7 from representing criminal defendants; if so, partner or associate would be vicariously disqualified under Rule 1.10.
Rule 1.7(b) prohibits a lawyer from representation that might be materially limited by responsibilities to another client or by the lawyer’s own responsibilities, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The rule is designed to insure undivided loyalty on the part of the lawyer to his or her clients. The statutory prohibition of criminal defense work by justice court judges, however, is of a different order; it is designed to protect the justice court system from concerns about partisanship of judges. The barrier to criminal representation by justice court judges, therefore, is a matter of statutory design rather than legal ethics.
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