Ethics Advisory Opinion 15-02

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 15-02

Issued February 10, 2015




1.  May an attorney representing a party in pending or existing litigation contact servants, agents, and employees of an organization, which is the opposing party, to discuss issues directly related to the litigation, if the attorney is aware the organization is represented by counsel in the matter?  Is it ethical for an attorney to make contact directly with in-house or corporate counsel, even if the attorney is aware that the organization is represented by outside counsel in the matter?  Is it ethical for an attorney to send a copy of correspondence or email to an organization’s employee where the original is directed to opposing counsel?
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Ethics Advisory Opinion 14-01

Utah State Bar
Ethics Advisory Opinion Committee 

Opinion Number 14-01

 Issued January 15, 2014


1.         Under what conditions is it appropriate for a personal injury lawyer to “outsource the calculation, verification and resolution of alleged health insurance liens and subrogation/reimbursement claims” and pass the outsourced resolution fee to the client as a “cost.”  There are two questions posed to the committee.  First, can the lawyer appropriately outsource the lien resolution?  Second, is the treatment of the lien resolution fee appropriately treated a “cost” to the client?


2.         It is ethical for a personal injury lawyer to engage the services of a lien resolution company that can provide expert advice or to associate with a law firm providing this service.
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04-04 – In litigation to enforce an oral contract allegedly made by a corporate defendant’s former employee

August 25, 2004

1 Issue: In litigation to enforce an oral contract allegedly made by a corporate defendant’s former employee on behalf of the corporation, where the former employee was not a member of the control group, may the plaintiff’s attorney contact the ex-employee without the consent of the corporate defendant’s attorney?

2 Answer: The contact with the former employee is not unethical. Utah Rules of Professional Conduct 4.2 (2004) does not bar a lawyer’s unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances not applicable to this opinion.
3 Facts: A corporate defendant is represented by a lawyer in the defense of a claim based on an oral agreement allegedly made by a former employee of the corporate defendant while employed by the corporate defendant. The former employee was not a member of the “control group” as this term is defined in Utah Rules of Professional Conduct 4.2(c) (2) (2004), but the former employee did have authority to enter into contracts. The former employee is not separately represented by legal counsel with respect to the matter. We are asked whether the lawyer representing the corporate defendant represents the former employee with respect to the matter under Rule 4.2(c)(1)(B)(iii), thereby precluding plaintiff’s counsel from communicating with the former employee with respect to the matter without complying with Rule 4.2(a).
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Ethics Advisory Opinion No. 04-06

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

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

Ethics Advisory Opinion No. 99-06

(Approved August 27, 1999)
: As a part of a criminal plea bargain agreement in a DUI case, may either the prosecuting attorney or the defense lawyer seek the concurrence of the investigating police officer not to respond to a subpoena lawfully issued by the Utah Driver License Division in connection with the related driver-license revocation hearing, a state administrative proceeding?

Opinion: No. Such conduct violates Rule 3.4(a) and 8.4 of the Utah Rules of Professional Conduct.
Facts: In cases involving operation of a motor vehicle while under the influence of alcohol (“DUI”), two actions are initiated. The first is the criminal DUI action. The second is an administrative hearing before the Driver License Division of the Utah Department of Public Safety (“DLD”) to consider whether to revoke or suspend the defendant’s driver license (the “DLD hearing”).
In connection with the DLD hearing, the investigating police officer is served with a subpoena to appear at that hearing. Before the DLD hearing takes place, the defendant’s lawyer and the prosecuting attorney1agree to resolve the criminal DUI action. As a part of the plea-bargain discussion or after the agreement is reached, but before the DLD hearing, either the defendant’s lawyer or the prosecuting attorney contacts the investigating officer to indicate that (1) a compromise or a “deal” has been worked out concerning the charge against the defendant, and (2) a part of the deal is that the police officer will not appear at the DLD hearing. Notwithstanding the issued subpoena, non-appearance forecloses the presentation of any evidence against the defendant at the DLD hearing and is tantamount to “saving” the defendant’s license from being suspended or revoked. As a result of the investigating officer’s non-appearance at the DLD hearing, the administrative action is dismissed, and no action is taken relating the defendant’s driver’s license.
Analysis: Section 76-8-508 of the Utah Code provides:
A person is guilty of a third degree felony if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to . . . (b) withhold any testimony, information, document, item; (c) elude legal process summoning him to provide evidence; or (d) absent himself from any proceeding or investigation to which he has been summoned.2
On the facts related to the Committee in this request, a major element of the overall plea-bargain arrangement is the agreement that the subpoenaed police officer will not testify or, at least, will be asked to concur with the “deal” and not respond to the DLD subpoena. In the process of striking such a plea bargain on the DUI charge, if either the defense lawyer or the prosecuting attorney has induced (or attempted to induce) the police officer not to respond to a validly issued subpoena to appear at the DLD hearing, that lawyer appears to be in violation of Utah law.
Rule 8.4 of the Utah Rules of Professional Conduct specifies when a violation of the law constitutes an ethical transgression: “It is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects”3or to “engage in conduct that is prejudicial to the administration of justice.”4
Accordingly, we find that a lawyer who encourages or influences an investigating officer to ignore or fail to respond to a lawfully issued subpoena violates Rule 8.4 on two counts: (1) To encourage a witness who has been subpoenaed not to appear at a DLD hearing is to interfere with, and be prejudicial to, the administration of justice. (2) Further, to do so is a criminal act under Utah Code Ann. § 76-8-508 and one that may reflect directly on the lawyer’s regard and respect for the legal system that he serves. Engaging in an arrangement that has the ultimate effect of inducing a witness to ignore or fail to honor a subpoena would ordinarily reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer. However, it appears that this practice has occurred frequently over time, apparently in an attempt to expedite the judicial process. Because the ethical issues may not have been fully appreciated in the past, we do not recommend that any action be initiated by the Office of Professional Conduct in connection with past actions. However, any future action of this type would, in the Committee’s view, be a violation of Rule 8.4.
In addition, this arrangement violates Utah Rule of Professional Conduct 3.4(a): “A lawyer shall not . . . unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy a document or other material having potential evidentiary value.” An annotation to the ABA Model Rules of Professional Conduct concludes that “[p]rocuring the absence of a witness would . . . constitute the obstruction of evidence in violation of Rule 3.4(a).”5
The fact that this practice may have become commonplace, ostensibly in the pursuit of efficient processing of “routine” DUI cases, does not, of course, relieve the lawyers involved from compliance with the Rules of Professional Conduct. If compliance with the rules produces fewer plea bargains and more trials and administrative hearings, the state court system or the state legislature may wish to fashion a remedy. It is not for the lawyers to make such judgments.
Our Opinion will not, as some might claim, cause the wheels of practical justice to slow to a crawl. An ethically permissible way to proceed is to engage directly both arms of the State’s law-enforcement system-criminal and administrative-by involving the appropriate personnel of the DLD. If the State’s “deal” is that the defendant will plead guilty to a specified criminal charge in exchange for preservation of the defendant’s license and dismissal of the revocation proceeding, then let the State of Utah, through the coordination of its criminal and administrative arms, effect such a result. It should not be necessary to bend the ethical rules or to put law-enforcement officers in the position of purposefully failing to respond to a lawfully issued subpoena from an agency of the State of Utah.
1.As related to the Committee, this agreement may not even involve a prosecuting attorney, but constitutes an arrangement worked out between the defense lawyer and the police officer. As we have not been provided any facts about the nature of the communications that may have taken place before the plea-bargain arrangement has been worked out, we do not examine the ethical considerations of the bargaining process.
2.Utah Code Ann. § 76-8-508(1) (1998).
3.Utah Rules of Professional Conduct 8.4(b).
4.Id. 8.4(d).
5.Annotated Model Rules of Professional Conduct 328 (ABA 3d ed. 1996), citing Barnhill v. United States, No. 589-286, 1992 WL 453880 (N.D. Ill. April 8, 1992) (government lawyer counseled witness not to appear). See also Charles W. Wolfram, Modern Legal Ethics, 646 & n.80 (Hornbook Series 1986).