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?
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ETHICS ADVISORY OPINION No. 08-01

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

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legal representation.1 These opinions were issued under the Utah Code of Professional Responsibility that was superseded by the Utah Rules of Professional Conduct, adopted by the Utah Supreme Court in 1988 and modified in certain respects by amendments that were adopted by the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

Ethics Advisory Opinion No. 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. 06-05

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

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

Ethics Advisory Opinion No. 05-01

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

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

Ethics Advisory Opinion No. 05-04

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

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

Ethics Advisory Opinion No. 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).
¶ 6 Rule 1.9(b) prevents an attorney from using any information relating to the representation to the disadvantage of the attorney’s former client, except as otherwise permitted by Rule1.6, which governs confidentiality. Thus, the attorney must refrain from the use or disclosure of any information that is not expressly permitted by Rule 1.6 or generally known to the public. If the attorney has not learned any information during the representation of the former client-witness that could be used in the criminal proceeding to discredit the witness’s credibility or otherwise pursue the defendant’s interests, no actual conflict exists, and no conflict is likely to arise.4However, if the attorney has gained information that could be used to the disadvantage of the former client-witness, then the attorney should try to obtain the former client’s consent prior to the disclosure. In the absence of such consent, the attorney must seek to withdraw from representing the defendant.
¶ 7 Even if the attorney concludes that an actual or potential conflict of interest that would be prohibited by Rule 1.9 does not exist under the particular circumstances, the attorney must comply with the provisions of Rules 1.7(b) and 1.4(b). Under Rule 1.7(b), an attorney is prohibited from representing a client if the representation may be materially limited by the attorney’s responsibilities to a third person (here, the former client), unless the lawyer reasonably believes that the representation will not be adversely affected and the current client consents to the representation.5
¶ 8 Also, pursuant to Rule 1.4(b), the attorney should explain the matter to the client to the extent reasonably necessary to enable the client to make an informed decision regarding the representation. The attorney, therefore, must evaluate whether the obligations to the former client-witness pose a material limitation to the representation of the defendant. If a material limitation exists or is likely to arise, the attorney should disclose the limitation to the client and, if the attorney reasonably believes that she can proceed because the representation will not be adversely affected, she should obtain her client’s consent to the representation.6
¶ 9 An attorney, therefore, is not automatically precluded by the Utah Rules of Professional Conduct from cross-examining a former client in the course of representing another client, provided that (a) there is not a substantial factual nexus between the present and former representations and (b) the attorney is able to provide the client a competent and diligent representation and to cross-examine the former client-witness vigorously. If the attorney believes that the representation of the client may be limited by the attorney’s obligations to the former client-witness, then the attorney must disclose the potential limitations and obtain the client’s consent to the potential conflict. In the absence of consent in this situation, the attorney must seek to withdraw from the case. Also, if it is reasonably foreseeable that a conflict of interest may arise due to the possible use of confidential information related to his representation of the former client-witness, then the attorney must obtain the former client’s consent to such disclosure or seek to withdraw. Finally, in a criminal case, it is good practice for the attorney to inform the court of any such conflict or potential conflict in order to facilitate a timely resolution of the issue.7
Footnotes
1.This opinion does not address the situation in which the adverse witness is a current client, rather than a former client, of the attorney.
2. Houghton v. Dept. of Health, 962 P.2d 58 (Utah 1998) (denying motion to disqualify attorney where there was no common factual nexus between prior representation of State and current representation of Medicaid recipients against State); see also SLC Ltd. v. Bradford Group West, Inc., 999 F.2d 464 (10th Cir. 1993) (disqualification of attorney upheld because of close factual nexus between prior representation of debtor’s general partner in loan workouts and subsequent representation of secured creditor in debtor’s bankruptcy proceeding); State v. Larsen, 828 P.2d 487 (Utah Ct. App. 1992) (a substantial factual relation is required to create a conflict of interest under Utah Rule 1.9(a)).
3.See Wheat v. United States, 486 U.S. 153 (1988) (attorney disqualified when he represented co-conspirators in criminal case and government intended to call one of co-conspirators as a witness); United States v. Amini, 149 F.R.D. 647 (D. Utah 1993) (government’s motion to disqualify rejected when attorney had previously represented defendant’s wife-codefendant in related proceedings but when interests of former client and defendant were not directly adverse and both client and former client waived any potential conflicts); United States v. Valdez, 149 F.R.D. 223 (D. Utah 1993) (defense attorney was not disqualified from representing criminal defendant when attorney had previously represented a government witness in an unrelated case and was not privy to any confidential information of former client-witness that could be used in criminal case); Ill. Adv. Op. 86-12, 1987 WL 383870 (Ill. State Bar Ass’n) (attorney may represent clients in criminal cases investigated by police officer when attorney had previously represented police officer in disciplinary proceeding but where there is no factual relationship between the two matters).
4.United States v. Valdez, 149 F.R.D. 223 (D. Utah 1993); Houghton v. Dept. of Health, 962 P.2d 58 (Utah 1998); United States v. TA, 938 F. Supp. 762 (D. Utah 1996) (no actual conflict of interest exists under Rule 1.9(a) when attorney does not have relevant confidential information); Pa. Ethics Op. 92-96, 1992 WL 810292 (Pa. Bar Ass’n) (defense lawyer may cross-examine former client who is adverse witness if past and present cases are entirely separate and lawyer does not use confidential information acquired during representation of former client); Conn. Ethics Op. 00-2, 2000 WL 1364223 (Conn. Bar Ass’n) (attorney may represent plaintiff in personal injury action when attorney had previously represented defendant in unrelated criminal matter provided that attorney did not gain information from previous representation that could be used to former client’s disadvantage or that he obtained former client’s consent).
5.To satisfy the consent condition of Utah Rule 1.7(b), each client must consent after consultation. In the case before us there is only one affected client—the criminal defendant. The attorney’s former client is not a “client” from whom consent is required to comply with Rule 1.7(b). However, the former client’s consent may be necessary if the attorney intends to use any information to the disadvantage of the former client. Utah Rules of Professional Conduct 1.9(b), 1.6(a).
6.In Utah Ethics Op. 145, 1994 WL 579851 (Utah St. Bar), we concluded that a law firm could not represent a defendant in the retrial of a criminal case in which the investigator who had been involved in the State’s investigation against the defendant is now a full-time employee of the firm. In that case, the lawyer’s representation of the client would create an impermissible conflict of interest under Rule 1.7 because the representation would be materially limited by the risk of harm to the law firm or the investigator that would result from the impeachment of the law firm’s own employee.
7.See generally United States v. Valdez, 149 F.R.D. 223, 228 (D. Utah 1993), where Magistrate Judge Ronald Boyce urged prosecutors to bring such issues before the court at an early stage of the proceedings.

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).
¶ 6 Rule 1.9(b) prevents an attorney from using any information relating to the representation to the disadvantage of the attorney’s former client, except as otherwise permitted by Rule1.6, which governs confidentiality. Thus, the attorney must refrain from the use or disclosure of any information that is not expressly permitted by Rule 1.6 or generally known to the public. If the attorney has not learned any information during the representation of the former client-witness that could be used in the criminal proceeding to discredit the witness’s credibility or otherwise pursue the defendant’s interests, no actual conflict exists, and no conflict is likely to arise.4However, if the attorney has gained information that could be used to the disadvantage of the former client-witness, then the attorney should try to obtain the former client’s consent prior to the disclosure. In the absence of such consent, the attorney must seek to withdraw from representing the defendant.
¶ 7 Even if the attorney concludes that an actual or potential conflict of interest that would be prohibited by Rule 1.9 does not exist under the particular circumstances, the attorney must comply with the provisions of Rules 1.7(b) and 1.4(b). Under Rule 1.7(b), an attorney is prohibited from representing a client if the representation may be materially limited by the attorney’s responsibilities to a third person (here, the former client), unless the lawyer reasonably believes that the representation will not be adversely affected and the current client consents to the representation.5
¶ 8 Also, pursuant to Rule 1.4(b), the attorney should explain the matter to the client to the extent reasonably necessary to enable the client to make an informed decision regarding the representation. The attorney, therefore, must evaluate whether the obligations to the former client-witness pose a material limitation to the representation of the defendant. If a material limitation exists or is likely to arise, the attorney should disclose the limitation to the client and, if the attorney reasonably believes that she can proceed because the representation will not be adversely affected, she should obtain her client’s consent to the representation.6
¶ 9 An attorney, therefore, is not automatically precluded by the Utah Rules of Professional Conduct from cross-examining a former client in the course of representing another client, provided that (a) there is not a substantial factual nexus between the present and former representations and (b) the attorney is able to provide the client a competent and diligent representation and to cross-examine the former client-witness vigorously. If the attorney believes that the representation of the client may be limited by the attorney’s obligations to the former client-witness, then the attorney must disclose the potential limitations and obtain the client’s consent to the potential conflict. In the absence of consent in this situation, the attorney must seek to withdraw from the case. Also, if it is reasonably foreseeable that a conflict of interest may arise due to the possible use of confidential information related to his representation of the former client-witness, then the attorney must obtain the former client’s consent to such disclosure or seek to withdraw. Finally, in a criminal case, it is good practice for the attorney to inform the court of any such conflict or potential conflict in order to facilitate a timely resolution of the issue.7
Footnotes
1.This opinion does not address the situation in which the adverse witness is a current client, rather than a former client, of the attorney.
2. Houghton v. Dept. of Health, 962 P.2d 58 (Utah 1998) (denying motion to disqualify attorney where there was no common factual nexus between prior representation of State and current representation of Medicaid recipients against State); see also SLC Ltd. v. Bradford Group West, Inc., 999 F.2d 464 (10th Cir. 1993) (disqualification of attorney upheld because of close factual nexus between prior representation of debtor’s general partner in loan workouts and subsequent representation of secured creditor in debtor’s bankruptcy proceeding); State v. Larsen, 828 P.2d 487 (Utah Ct. App. 1992) (a substantial factual relation is required to create a conflict of interest under Utah Rule 1.9(a)).
3.See Wheat v. United States, 486 U.S. 153 (1988) (attorney disqualified when he represented co-conspirators in criminal case and government intended to call one of co-conspirators as a witness); United States v. Amini, 149 F.R.D. 647 (D. Utah 1993) (government’s motion to disqualify rejected when attorney had previously represented defendant’s wife-codefendant in related proceedings but when interests of former client and defendant were not directly adverse and both client and former client waived any potential conflicts); United States v. Valdez, 149 F.R.D. 223 (D. Utah 1993) (defense attorney was not disqualified from representing criminal defendant when attorney had previously represented a government witness in an unrelated case and was not privy to any confidential information of former client-witness that could be used in criminal case); Ill. Adv. Op. 86-12, 1987 WL 383870 (Ill. State Bar Ass’n) (attorney may represent clients in criminal cases investigated by police officer when attorney had previously represented police officer in disciplinary proceeding but where there is no factual relationship between the two matters).
4.United States v. Valdez, 149 F.R.D. 223 (D. Utah 1993); Houghton v. Dept. of Health, 962 P.2d 58 (Utah 1998); United States v. TA, 938 F. Supp. 762 (D. Utah 1996) (no actual conflict of interest exists under Rule 1.9(a) when attorney does not have relevant confidential information); Pa. Ethics Op. 92-96, 1992 WL 810292 (Pa. Bar Ass’n) (defense lawyer may cross-examine former client who is adverse witness if past and present cases are entirely separate and lawyer does not use confidential information acquired during representation of former client); Conn. Ethics Op. 00-2, 2000 WL 1364223 (Conn. Bar Ass’n) (attorney may represent plaintiff in personal injury action when attorney had previously represented defendant in unrelated criminal matter provided that attorney did not gain information from previous representation that could be used to former client’s disadvantage or that he obtained former client’s consent).
5.To satisfy the consent condition of Utah Rule 1.7(b), each client must consent after consultation. In the case before us there is only one affected client—the criminal defendant. The attorney’s former client is not a “client” from whom consent is required to comply with Rule 1.7(b). However, the former client’s consent may be necessary if the attorney intends to use any information to the disadvantage of the former client. Utah Rules of Professional Conduct 1.9(b), 1.6(a).
6.In Utah Ethics Op. 145, 1994 WL 579851 (Utah St. Bar), we concluded that a law firm could not represent a defendant in the retrial of a criminal case in which the investigator who had been involved in the State’s investigation against the defendant is now a full-time employee of the firm. In that case, the lawyer’s representation of the client would create an impermissible conflict of interest under Rule 1.7 because the representation would be materially limited by the risk of harm to the law firm or the investigator that would result from the impeachment of the law firm’s own employee.
7.See generally United States v. Valdez, 149 F.R.D. 223, 228 (D. Utah 1993), where Magistrate Judge Ronald Boyce urged prosecutors to bring such issues before the court at an early stage of the proceedings.

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.
The validity or enforcement of generally applicable rules and ordinances does not, in and of itself, constitute a prohibited “matter” under Rule 1.11(a) unless the attorney were also involved in some specific proceeding or controversy involving the same parties or specific facts pertaining to the proposed private representation.
At least one other opinion of this Committee supports this interpretation of the Rules—Opinion No. 77 (Jan. 20, 1986). Interpreting DR 9-101(B) of the Code of Professional Responsibility, the predecessor to Rule 1.11(a), this Committee analyzed the prohibition against successive government and private employment in that disciplinary rule. That opinion established that “the same lawsuit or litigation is the same matter” for purposes of the prohibition, but that “drafting government or agency procedures is not.”
In interpreting the predecessor to Rule 1.11(a), the Committee generally recognized that important policy considerations support a rule that does not “broadly limit the lawyer’s employment after the leaves government service.” A proscription against subsequent representation on legal issues pertaining solely to the validity and interpretation of city rules and ordinances would severely hamper the post-government employment options of former city attorneys. Such a prohibition could also limit the prospective client’s selection of counsel, particularly in cities that are more remote or where legal services are less readily available.
Rule 1.11 is intended to prevent a lawyer from exploiting public office for the advantage of a private client, presumably some prospective client or group of clients. 1 The Rule protects against an attorney “switching sides,” as well as the possible disclosure of confidential government information. 2 However, the Rule’s purpose is not ordinarily implicated where the private representation involves only a challenge to ordinances or rules of general application; such challenges are not so much the domain of any particular attorney, but are commonly pursued by lawyers of varied backgrounds and experience. On the other hand, where the subsequent representation involves something more than a facial challenge to an ordinance, but will implicate the former government attorney in a specific matter between the same parties or in the same proceeding as the prior government representation, the purpose of the rule is squarely addressed.
The prohibition of Rule 1.11(a) arises in the context of proceedings or requests for rulings that involve the specific facts, conduct or parties at issue in the attorney’s former government representation. In Opinion No. 77, for example, we expressed our view that a former city attorney was prohibited from representing a private client in arguing the specific intent and interpretation of a city contract that the attorney had himself negotiated and drafted on behalf of the city. As we explained:
In this case, [the attorney] in effect switched sides by representing [the client] against the city in a matter he was heavily involved in as city attorney. [He] used his knowledge from his previous government job to benefit a new and adverse client. . . . By drafting the contract for the city and later using the contract for a private client, [the attorney] used his substantial responsibility as a government employee to the benefit of that private client. 3
We view the potential representation with respect to the specific easement and its location very much in the same light as the contract negotiation/interpretation at issue in Opinion No. 77. Under the facts before us, the former Assistant City Attorney would be precluded under Rule 1.11(a) from representing a private client in attacking the placement of the public-trail easement that he himself had reviewed, negotiated and approved on behalf of the City. The issues involved in locating the public-trail easement constitute the same specific facts as the attorney’s previous engagement on behalf of the City. In effect, having advocated for the city in placing the trail, the attorney now would be “switching sides” in challenging the location on public policy or other grounds.
The standard in determining what constitutes the same “matter” for purposes of Rule 1.11(a) was enunciated by the Utah federal district court in Poly Software Int’l, Inc. v Su: “The same ‘matter’ is not involved [when] . . . there is lacking the discrete, identifiable transaction of conduct involving a particular situation and specific parties.” 4 In evaluating the issue of the public-trail easement, we are inclined to believe that the factual nexus between the prior engagement and the proposed private representation falls adequately within the confines of the “identifiable transaction” standard announced by the district court, and it is quite similar to the prohibited representation addressed in Opinion No. 77.
The negotiation of the specific easement in question is essentially the equivalent of the contract negotiation and drafting that the former city attorney had undertaken on behalf of the city in Opinion No. 77. By virtue of the attorney’s individual insight into the City’s thought process, strategies and the possible alternatives considered by the City in locating the easement, the attorney is likely to have gained some information or otherwise participated in a very individual respect to such a degree that his prospective private representation against the City with respect to the easement would be improper under Rule 1.11(a). By undertaking the proposed representation, the attorney would have essentially “switched sides” on the specific factual issues pertaining to the policy considerations for locating the easement where the city had successfully sited it. It is precisely this type of successive government and private involvement that Rule 1.11(a) is intended to prohibit.
Having decided that the proposed representation in challenging the specific easement would violate Rule 1.11(a), we need not discuss in detail the application of other rules. We do, nevertheless, note that Rule 1.9 prohibits any attorney, including former government lawyers, from representing “another person in the same or substantially factually related matter” adverse to the interests of a former client. As the Poly Software court explained, the factual “nexus” required to invoke the prohibition of Rule 1.9 may exist even where the matters are not so closely related as to give rise to a Rule 1.11 prohibition:
A “substantially factually related matter,” on the other hand, is not defined by an particular, discrete legal proceeding. By its terms, it includes aspects of past controversies which are similar, but not necessarily identical, to those encompassed within a present dispute. So long as there are substantial factual threads connecting the two matters, the criteria of Rule 1.9 are met. 5
Given our discussion of the easement question above and under the more inclusive standard of Rule 1.9, the former Assistant City Attorney would be prohibited, in any event, from undertaking representation of the prospective client with respect to the specific easement in question.
Footnotes
1 Poly Software Int’l, Inc. v. Su, 880 F. Supp. 1487 , 1493 (D. Utah 1995).
2 See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975); Utah Ethics Advisory Op. No. 77 (1986).
3 Utah Op. No. 77.
4 880 F. Supp. At 1493.
5 Id. at 1492.

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.
3.An attorney/client relationship is proved by showing that a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727 (Utah App. 1990), citing with approval People v. Morely, 725 P.2d 510, 517 (Colo. 1986) (en banc), and Steinbach v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987).
4.An attorney/client relationship can arise from brief informal conversation in person or by telephone, even though no fee is charged and no contract of employment is signed. Michigan Ethics Opinion CI-1153, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 901:4756 (1986); Franko v. Mitchell, 762 P.2d 1345 (Ariz. Ct. App. 1988). Some states have declined to find that any attorney/client relationship is created on the basis of a single undocumented telephone call that is later used to attempt to disqualify an attorney, Vermont Ethics Opinion 84-5, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1981-85] 801:8608 (1985).
5.Utah Rules of Professional Conduct 1.8(h).
6.This fact situation is to be distinguished from pro bono lawyer referral programs where legal topics, legal access, and legal service providers are discussed, but where no legal advice is rendered, no fee is charged, and any attorney/client relationship is disclaimed. Arizona Ethics Opinion 91-05, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 1001:1401. It should be noted, however, at least one state has found that an attorney/client relationship does exist in a lawyer referral program if only for purposes of the initial interview, so that the confidentiality of the conversation is protected even though no ongoing attorney/client relationship is formed. Iowa Ethics Opinion 94-33, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1991-95] 1001:3620 (1995).

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”3and 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 Constitution5with statutory limitations as to territorial and subject matter jurisdiction.6a By statute, it is not a court of record7and appeals are taken de novo to the circuit court of the county in which the justice court exists.8Thus 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.9The 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.
Because of the basis for disqualification of the justice court judge is the statute, rather than Rule 1.7, the disqualification is not imputed to the partner or associated by means of Rule 1.10.
This analysis does not, however, preclude the possibility that the partner or associate might be independently disqualified under Rule 1.7. If in the facts of a given case, the association with the justice court judge posed the possibility that the lawyer’s representation of the client might be materially limited, then the representation would be improper.
Finally, the analysis is not inconsistent with our conclusions in Opinion No. 126, which involved a conflicts analysis of a part-time city attorney’s representation of criminal defendants under Rule 1.7. That analysis concerned whether the attorney’s responsibilities to the city as client precluded the attorney’s representation of criminal defendants because of divided loyalties. In the case before us, it is not Rule 1.7, but the statutory scheme, which precludes the justice court judge from the representation.
Footnotes
1.This opinion amends and supersedes Opinion No. 95-02, previously approved on April 28, 1995.
2.The analysis and conclusion in this opinion apply equally to any lawyer practicing in the firm of the part-time justice court judge.
3.Utah rules of Professional Conduct Rule 8.4(d) (1990).
4.E.g., Utah Code of Judicial Conduct Canon 3.E(1)(b) (1994).
5.Utah Const. art. VIII § 1.
6.Utah Code Ann. §§ 78-5-103, -104 (1993).
7.Utah Const. art. VIII § 1; Utah Code Ann. § 78-5-101 (1989).
8.Utah Code Ann. § 78-5-120 (1989).
9.Utah Const. art. VII § 10
10.Utah Code Ann. § 78-5-128(3) (1995).
11.Utah Code Ann § 78-5-128(7) (1995).