Ethics Advisory Opinion No. 05-03

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 The initial Opinion No. 05-03 as originally issued by the Committee is appended in its entirety for historical reference only and should not be cited or used for purposes other than background.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

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

ETHICS ADVISORY OPINION No. 03-03

Issued June 23, 2003
¶ 1 Issue
: Is it ethical for a lawyer to advertise to provide legal services in Social Security Administration hearings to claimants who have been denied benefits, where nonlawyers are used by the lawyer in providing these services?

¶ 2 Opinion: With due consideration for the rules governing advertising and supervi­sion of nonlawyers assistants, it is not unethical for a lawyer to use nonlawyer para­professionals to provide representation of clients in hearings before a government agency that authorizes nonlawyer representation. In particular, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circum­stances.1
¶ 3 Background: The United States Social Security Administration permits nonlawyers to appear at hearings as representatives of claimants challenging the denial of Social Security benefits. The hearings are evidentiary and require representatives of claimants to offer direct testimony and to cross-examine adverse witnesses. Lawyers who represent claimants for Social Security Administration benefits often use nonlawyer parapro­fessionals to represent the clients in the agency hearings. These lawyers advertise their services in Social Security Administration matters, but commonly do not disclose in the advertisements that the client’s representative at the hearing is normally a nonlawyer paraprofessional.
¶ 4 Analysis: We have been asked whether an advertisement placed by a lawyer to provide legal services in Social Security Administration hearings to claimants who have been denied Social Security benefits must disclose that the lawyer normally uses nonlawyer para­professionals in making appearances for claimants in such hearings.
¶ 5 Advertising Rules. The first step in the analysis is to review the rules governing advertising. First, “[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.”2 But, any advertisement for the lawyer’s legal services must comport with Rule 7.1(a):
A lawyer shall not make a false or misleading communication about the law­yer or the lawyer’s services. A communication is false or misleading if it: (a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.3
As the comment to the Rule emphasizes, “This Rule applies to all communications concerning the lawyer’s services, including advertising materials.”4
¶ 6 Thus, a disclosure concerning the use of paraprofessionals would only be required if it were necessary to make the advertisement “considered as a whole, not materially misleading.” But, lawyers routinely provide legal services through the use of nonlawyer paraprofessionals and, indeed, are encouraged to do so to make legal services affordable to the broadest spectrum of the population. Thus, we conclude that the advertisement in question is not materially misleading if it does not disclose that the services are often provided through nonlawyer paraprofessionals.
¶ 7 Delegation to Nonlawyers. Social Security Administration rules and regulations permit the appearance of nonlawyer representatives for claimants in Social Security Administration hearings challenging the denial of benefits.5 Without such authority, paraprofessionals would ordinarily not be allowed to provide unassisted representation of a client in an evidentiary hearing. Given the Social Security Administration’s authoriza­tion of nonlawyer professionals to appear as representatives of claimants at its hearings, a lawyer does not act unethically in delegating to paralegals the representation of clients at these hearings. However, the lawyer must comply with his supervisory responsibilities under Rule 5.3,6 which permits nonlawyer paraprofessionals to “act for the lawyer in rendition of the lawyer’s professional services.”7 Rule 5.3 requires, however, that the lawyer provide nonlawyer paraprofessionals appropriate supervision and retain responsi­bility for their work.8
¶ 8 Because the definition of the practice of law in Utah is an issue of law, the Com­mittee is without authority to decide what is and what is not the unauthorized practice of law. However, for purposes of this opinion, we assume that it is not the unauthorized practice of law for a lawyer to use nonlawyer para­professionals in administrative hearings as permitted by the agency’s applicable rules and regulations. Therefore, so long as the lawyer adequately supervises the work delegated to the paraprofessional and retains responsibility for the paraprofessional’s work, the lawyer would not violate Utah Rule of Professional Conduct 5.5(b), which prohibits a lawyer from aiding another person in the unauthorized practice of law.9
¶ 9 Consent. A lawyer may not, however, delegate to a nonlawyer parapro­fessional the representation of the client before an agency proceeding such as a Social Security Administration hearing without consulting with the client as required by Rules 1.2 and 1.4 regarding the means of representation of the client.
¶ 10 Rule 1.2 requires that the lawyer discuss with the client the relative advantages and disadvantages of being represented at the hearing by a nonlawyer paraprofessional, as opposed to being represented by a licensed lawyer.10 Rule 1.4(b) requires that this matter be explained to the client to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.11 Therefore, the lawyer must discuss with the client the lawyer’s intention to delegate the representation of the client at the hearing to a paraprofessional. This discussion must be sufficiently in advance of the hearing that the client will not be prejudiced if he decides to change counsel. If the lawyer regularly delegates paraprofessionals to represent clients at Social Security Ad­ministration hearings, the lawyer should discuss with the client at the time of engagement the lawyer’s normal practice of using a nonlawyer paraprofessional as the client’s repre­sentative at the hearing.
¶ 11 It is good practice, although not required by the Utah Rules of Professional Con­duct, that the lawyer enter a written engagement agreement with the client disclosing that a nonlawyer paraprofessional may represent the client at the administrative hearing.12
¶ 12 Summary: It is not unethical for a lawyer to advertise to provide representation of claimants denied benefits in Social Security Administration hearings, so long as the advertisement is not false or misleading and otherwise complies with Rules 7.1 and 7.2 of the Utah Rules of Professional Conduct. If an administrative agency, such as the U.S. Social Security Administration, authorizes representation of parties in administrative hearings by nonlawyer representatives, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in such hearings, so long as the paraprofessional is adequately trained and supervised by the lawyer and the lawyer retains responsibility for the work.
¶ 13 If the lawyer ordinarily provides representation of clients in Social Security Ad­ministration hearings using nonlawyer paraprofessionals, the lawyer’s advertisement is not false or misleading solely because the lawyer’s use of nonlawyer paraprofessionals in providing these services is not disclosed in the advertisement. Rule 1.2 requires that the lawyer discuss with the client the objectives of the representation and the means by which the objectives will be pursued. The lawyer should discuss with the client at the initial stages the lawyer’s intention to use a nonlawyer parapro­fessional as the client’s represen­tative at the hearing. Rule 1.4(b) requires that the lawyer explain the advantages and disadvantages of the representation of the client in the hearing by a nonlawyer para­professional supervised by the lawyer to an extent reasonably necessary to enable the client to make an informed decision regarding who will appear at the hearing as the client’s representative. Under the assumptions set forth in this opinion, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances.
Footnotes
1.It is not the province of the Committee to decide what is the unauthorized practice of law. This is an issue of law for the courts. In rendering this opinion, we have assumed that it is not the unauthorized practice of law for a lawyer to use non-lawyer paraprofessionals in federal administra­tive hearings as permitted by the federal agency’s applicable rules. See, e.g., Sperry v. State ex rel. Florida Bar, 373 U.S. 379, 385-402 (1963); see also In re: Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990).
2.Utah Rules of Professional Conduct 7.2(a) (2003).
3.Id., Rule 7.1(a).
4.Id., Rule 7.1, cmt. Also, under the current rules, “A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.” Id. Rule 7.2(b). We note that this provision does not appear in the current ABA Model Rules of Professional Conduct that resulted from the ABA’s Ethics 2000 project. Although Utah may ultimately adopt this deletion as it considers the new ABA Model Rules, Rule 7.2(b) is still a requirement for attorney advertising in Utah. Also, under current Utah Rule 7.2(d): “Any communication made pursuant to this Rule shall include the name of at least one lawyer respon­sible for its content.” The new ABA Rule 7.2(d) broadens this to “at least one lawyer or law firm.”
5.A number of administrative agencies permit representation of parties in administrative hear­ings by nonlawyers. The analysis in this opinion is equally applicable to hearings before such agencies.
6.“A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to insure that the person’s conduct is compatible with the professional obligations of the lawyer.” Utah Rules of Professional Conduct 5.3(b) (2003).
7.Id., Rule 5.3, cmt.
8.See generally Utah Ethics Advisory Op. 99-02, at 1-2, 1999 WL 260749, http://www.­utahbar.org/opinions (Utah St. Bar). There, we stated that determination of “adequate supervision” of a nonlawyer assistant requires a case-by-case analysis. At a minimum, the nonlawyer assistants must be appropriately trained and their performance of professional services monitored and evaluated.
9.“Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.” Rule 5.5, cmt.
10.Under Rule 1.2 provides:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of the representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. . . .
(b) A lawyer may limit the objectives of the representation if the client con­sents after consultation.
Utah Rules of Professional Conduct 1.2 (2003).
11.“A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” Id. Rule 1.4(b).
12.We understand that engagements to represent claimants at Social Security Administration hearings are commonly performed under a contingency-fee agreement. If the lawyer’s services are to be provided for a contingent fee, the agreement must be in writing. Utah Rules of Professional Conduct 1.5(c) (2003). Also, pursuant to 42 U.S.C. § 406(a)(1), “[t]he Commissioner of Social Security may prescribe rules and regulations governing recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants . . . .” The written fee agreement provides an excellent opportunity for the lawyer to memorialize the discussion with the client of the use of a nonlawyer paraprofessional as the client’s representative at the administrative hearing.

Ethics Advisory Opinion No. 01-05

Issued July 13, 2001
¶1. Issue:
What are the ethical implications for a real estate broker who includes in his promotional material that he is also a lawyer?

¶2. Opinion: A lawyer functioning in a law-related profession, such as real estate brokerage, who holds out as either an active or inactive lawyer will be subject to the Utah Rules of Professional Conduct while engaged in that law-related profession.
¶3. Background: An individual who is currently licensed to practice law in State A and is an inactive member of the Utah State Bar intends to engage in providing real estate agent or real estate brokerage services in Utah. He has asked the Committee about the ethical consequences of stating in advertising for his Utah real estate services that he is a licensed and active lawyer in State A and an inactive Utah lawyer.
¶4. Analysis: The lawyer, acting in his role as a real estate broker,1is not marketing legal services that he will deliver as a lawyer, but is alerting prospective real estate clients that he is a lawyer-trained real estate broker and can deliver real estate professional services. The purpose of a factually correct claim in advertising his real estate services that he is a lawyer may be to gain the confidence of clients or gain an advantage over non-lawyer real estate agents or brokers on the indirectly promoted assumption that a lawyer-trained real estate broker would be able to exercise better professional judgment than a non-lawyer-trained broker with respect to issues that could come up in the marketing, sale or acquisition of real estate.
¶5. When a lawyer markets himself as able to perform non-legal professional services for a client and lists his qualifications or experience as a lawyer in a communication for “law-related professional services,” the use of such legal credentials is a “communication” within the meaning of the Rule 7.1, if a recipient of such materials could reasonably believe that the lawyer is offering legal services or professional advice that involves his legal experience, judgment or considerations.2An inactive member of the Bar may list a J.D. degree as a “credential,” but may not hold himself out as a lawyer.3The display of such credentials without more would not invoke the Rules of Professional Conduct even though the inactive member is engaged in a law-related profession.
¶6. The real estate broker profession is law-related,4and it may not be possible to know whether the lawyer’s work for the client is performed as part of a practice of law or part of the lawyer’s other occupation: “If the second occupation (such as a real estate brokerage business) is so law-related that the work of the lawyer in such an occupation will involve, inseparably, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation. Accordingly, he is held to the standards of the bar while conducting that second occupation from his law offices.”5
¶7. As to the actively practicing lawyer, we have previously concluded that a lawyer who engages in a real estate, life insurance or title business is held to the ethical standards of a lawyer in both profession.6We have also more recently determined that a lawyer who holds himself out as a lawyer in any context may not ethically form a partnership with a non-lawyer if any of the activities of the partnership constitute the practice of law.7Applying this standard to an inactive lawyer who holds himself out in advertising in a law-related profession as lawyer-trained, we affirm that he would be held to the ethical standards of the legal profession while acting in the law-related profession. Further, because the lawyer is not currently qualified to practice law in the State of Utah, he may be engaged in the unauthorized practice of law when engaged in the real estate profession if he advertises that he is a lawyer, albeit, inactive. However, it is not within the purview of this Committee to determine what constitutes the unauthorized practice of law.
¶8. Once the broker-lawyer advertises or communicates his legal training or expertise in advertising for real estate services, whether an active or inactive lawyer, the restrictions of the Rules of Professional Conduct apply, including: Rule 1.5(a) (reasonable fees); Rules 1.7 through 1.11 (conflicts of interest); Rule 1.6 (confidentiality of information); and Rules 7.1 through 7.3 (advertising and solicitation). This list is far from exhaustive, and the application of the Rules of Professional Conduct could be very problematic in the case of a real estate broker whose professional obligations and limitations are different from those governing lawyers.8
¶9. In the absence of any attorney-client relationship, and arguably without any mention of the fact that the broker is lawyer-trained, a member of the Bar (active or inactive) is required to conform to the Rules of Professional Conduct when rendering non-legal professional services that involve a fiduciary relationship. It is noted that some aspects of the brokerage business involve such fiduciary relationships such as handling funds, closing transactions or acting as an escrow agent.
¶10. It is unlikely that an express disclaimer in any advertising by the agent or broker that he is not and does not intend to provide legal services or legal advice would be sufficient. We have previously held that a lawyer may solicit insurance business from clients of his law practice if he complies with the disclaimer and consent required in Rule 1.8.9A real estate broker who subjects himself to the Rules of Professional Conduct by indicating his status as a lawyer in real estate advertising has the same right to use the disclaimer and consent provisions of the Rule 1.8 or other Rules where waiver and consent are possible. However, to avoid the application of the Rules of Professional Conduct, the lawyer must avoid advertising he is a lawyer in his law-related profession.10
Footnotes
1.We refer throughout this opinion to a lawyer who provides services as a real estate “broker” rather than real estate “agent.” Although there are functional and legal differences between the two, the ethical analysis is the same, and we do not mean to distinguish between them in the analysis and conclusion in this opinion.
2.Cal. State Bar Formal Op. 1999-154, at 2.
3.ABA/BNA Lawyers Manual on Professional Conduct § 81:3012.
4.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 328 (1972), cited in Cal. State Bar Formal Op. 1982-69, at 2 (“activities of a real estate broker are clearly ‘law related’ as contemplated by [ABA Op. 328] and an attorney who is acting as a real estate broker in the same transaction must conform to the standards of the bar and the Rules of Professional Conduct in all aspects of such activities”).
5.ABA Formal Op. 328; ABA Committee on Ethics and Professional Responsibility, Informal Op. 709; Neb. State Bar Assn. Op. 74-3; Mont. State Bar Assn. Op. 17; Colo. Bar Assn. Ethics Comm., Formal Op. 98 (Dec. 14, 1996).
6.Utah Ethics Advisory Op. 30 (Utah State Bar, Oct. 14, 1976) (title business); Utah Ethics Advisory Op. 17 (Utah State Bar, Nov. 28, 1973) (real estate business); Utah Ethics Advisory Op. 5 (Utah State Bar, Jan. 13, 1972) (insurance business); The American Bar Association’s Model Rule of Professional Conduct 5.7, “Responsibilities Regarding Law-Related Services” (not adopted in Utah), is consistent with these opinions.
7.Utah Ethics Advisory Op. 00-03, 2001 WL 314288 (Utah St. Bar).
8.For example, confidentially obligations in representing and being paid by more than one side of a transaction are different for real estate brokers and lawyers. “An attorney-broker thus can be caught between conflicting professional obligations, viz., disclosure versus revealing client confidences. Honoring the duty of confidentiality may jeopardize the broker’s license, harm the client and expose the lawyer to civil liability.” Cal. State Bar, Formal Op. No. 1982-69, at 3; Ore. State Bar, Op. 75-5.
9.Utah Ethics Advisory Op. 146A, 1995 WL 283828 (Utah State Bar).
10.We have previously held that the Rules of Professional Conduct will not apply if a lawyer withdraws from the practice of law and pursues another profession. Utah Ethics Advisory Op. 00-03, 2001 WL 314288 (Utah State Bar).

Ethics Advisory Opinion No. 01-07

Issued August 29, 2001
¶ 1. Issue:
Is it a violation of the ethical rules for an attorney or law firm to use trade names such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” in selected court pleadings?

¶ 2. Opinion: It is not a violation of the ethical rules for an attorney or law firm to use trade names such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” so long as the organization represents clients who claim to be in the indicated categories and provided the name is uniformly used for all such representation. Selective use of such trade names for some clients in the indicated categories but not others would violate Utah Rule of Professional Conduct 7.1(a).
¶ 3. Facts: A law firm desires to use the name “Legal Center for the Wrongfully Accused” in selected pleadings “in appropriate circumstances.” The law firm does not intend to use the trade name in advertising or in every pleading filed with a court. Use of the name will be limited to domestic violence cases, and will be used only in circumstances where the law firm deems it appropriate. The law firm proposes to use this trade name in response to the use by a public or charitable legal services organization designated “Legal Center for the Victims of Domestic Violence.”
¶ 4. Applicable Rules of Professional Conduct: Rule 7.5(a) of the Utah Rules of Professional Conduct states:
A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
¶ 5. Rule 7.1 states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
¶ 6. Analysis: Rule 7.5(a) expressly authorizes a lawyer’s use of trade names provided certain conditions are met. Use of trade names can assist the public in the selection of an attorney. The Committee is of the opinion that a law firm’s use of the trade name “Legal Center for the Wrongfully Accused” would satisfy the requirements of Rule 7.5(a) provided the law firm actually represents clients accused of unlawful conduct and provided the firm uses the name uniformly in all cases in which the firm’s client is accused of unlawful conduct. The law firm may not use the trade name in some “unlawful conduct” cases but not others. The same analysis applies to the trade name “Legal Center for Victims of Domestic Violence.”
¶ 7. The name “Legal Center for the Wrongfully Accused” does not imply any connection with any government agency or with a public or charitable legal services organization. The trade name therefore does not implicate this part of Rule 7.5. The name “Legal Center for Victims of Domestic Violence” is used by a public or charitable legal services organization, so its use of the name would not implicate this part of Rule 7.5
¶ 8. Use of a trade name is not permitted if it makes a false or misleading communication about the lawyer or the lawyer’s services.1Rule 7.1 provides three situations in which a trade name (or other communication about a lawyer’s services) may be misleading. Subdivisions (b) and (c) of that Rule are not implicated here.
¶ 9. Rule 7.1(a) provides that a communication about a lawyer’s services is false or misleading if it “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Consistent and uniform use of the trade name “Legal Center for the Wrongfully Accused” in all alleged “unlawful conduct” cases is not likely to mislead anyone regarding the nature of legal services provided by the law firm. Furthermore, members of the judiciary, juries and the community are not likely to be misled into believing that a person’s cause is or is not just simply because that person is represented by a law firm that calls itself the “Legal Center for the Wrongfully Accused.” By virtue of the simple fact of representation, the judiciary, juries and the community expect the lawyer to advocate that her client’s claim or defense is just and proper. Obviously, the same analysis applies to the name “Legal Center for Victims of Domestic Violence.” Judges, juries and the public are unlikely to be persuaded that a defendant is in fact guilty of perpetrating domestic violence on the claimant simply because the claimant’s lawyer is from the “Legal Center for Victims of Domestic Violence,” especially if the lawyer uses that name in all matters relating to domestic violence”2
¶ 10. Selective use of the trade names in question, however, opens the door to abuses that could intentionally or unintentionally mislead others. By using the name “Legal Center for the Wrongfully Accused” only in limited situations where the law firm deems it “appropriate,” the law firm affirmatively represents that some of its clients are “wrongfully accused,” while others are not. By drawing this distinction, the law firm signals to others the law firm’s judgment that certain clients are “guilty” and others are not.3This practice would easily open the door for the law firm to materially mislead others into believing that a client is “wrongfully accused,” because the law firm has made it known that it will not use the name unless it believes the client is in fact “wrongfully accused.”
¶ 11. The same danger does not exist if the law firm uses the trade name uniformly in all aspects of the firm’s “unlawful conduct” practice, including the firm name, letterhead, business cards, office sign, fee contracts, all pleadings, and so forth. If the law firm were to use the name uniformly in all cases in which it represents a client accused of wrongful conduct, there would be little or no danger that others would be misled or falsely persuaded of the client’s guilt or innocence simply because of the name. While a firm may use the name “Legal Centers for the Wrongfully Accused” uniformly in all matters pertaining to alleged wrongful conduct, the firm would not have to use that name while providing other unrelated types of legal services, such as drafting a will or contract. The same analysis applies to the name “Legal Center for Victims of Domestic Violence.”
¶ 12. The Committee notes that former Disciplinary Rule DR 2-102(A) provided that “[a] lawyer . . . shall not use . . . professional cards . . . letterheads, or similar notices or devices, [except] . . . if they are in dignified form.” 4 If this Committee were called upon to apply the former Disciplinary Rule, it might reach a different result. The comment to our current Rule 7.2, however, expressly provides, “Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment.” That statement certainly applies to the situation addressed in this opinion. While some people might find the trade name “Legal Center for the Wrongfully Accused” offensive, others are likely to believe that such a center serves a valuable and laudable purpose. It is also likely that there are differing opinions as to whether the name “Legal Center for Victims of Domestic Violence” is a dignified or tasteful trade name. Our Rules do not prohibit trade names that otherwise comply with Rules 7.1 and 7.5 simply because certain segments of the community might find the name to be in poor taste.5
¶ 13. Conclusion: A legal services organization may use a trade name such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” if it actually represents clients who claim to fit the indicated categories. The trade name must be used uniformly in all aspects of the organization’s practice relating to such representation. The organization may not use the trade name selectively for some clients in the indicated categories and not others.
Footnotes
1.Utah Rules of Professional Conduct 7.1 (2001).
2.This is not a case where a law firm is deliberately misrepresenting the nature of services it provides or the identity of the persons providing the services. See, e.g., Medina County Bar Ass’n v. Grieselhuber, 678 N.E.2d 535 (Ohio 1997) (sole practitioner’s holding himself out as “Body Injury Legal Centers” falsely suggested he had multiple legal centers).
3.Such selective use of a trade name may convey information about the client that might be a violation of Utah Rule of Professional Conduct 1.6, Confidentiality of Information.
4.See Utah Rules of Professional Conduct 7.5, cmt.
5.See also, e.g., Philadelphia Bar Ass’n Professional Guidance Comm., Op. 98-17 (1998) (permitting use of the trade name “Medical Malpractice Trial Attorneys, Inc.” if law firm actually handles medical malpractice cases through trial); In re Shannon, 638 P.2d 482 (Ore. 1982) (permitting use of the trade name “Shannon and Johnson’s Hollywood Law Center”).

Ethics Advisory Opinion No. 00-07

(Approved June 2, 2000)
Issue:
Do the Utah Rules of Professional Conduct prohibit a lawyer licensed to practice in Utah from participating in an association of lawyers that would use joint letterhead, with a disclaimer that the association “is an affiliation of independent attorneys-not a partnership?”

Opinion: A lawyer does not violate the Utah Rules of Professional Conduct if he participates in an association or affiliation of individual lawyers and law firms, provided that he adheres to the applicable rules regarding conflicts of interest and disclosure of confidential information. However, it would be misleading, and therefore a violation of the Rules, for the lawyer to participate in such an association or affiliation if its members were to practice under a common firm name and were to use joint letterhead. The inclusion of a partnership disclaimer would not cure the misleading nature of the letterhead concerning the relationship among the attorneys.
Facts: A Utah lawyer desires to associate himself with lawyers who are licensed to practice law in various foreign countries. Under the proposed arrangement, the members of the association would not be partners, but would be independent practitioners. It is not clear from the facts whether the lawyers participating in the association would merely refer clients to each other or whether they would also have some kind of a financial arrangement. The lawyers would use joint letterhead, which would identify the association as follows:
A, B, C & D
International Lawyers
[Address]
Offices: Representative
A, Admitted: State,Country United Kingdom
B, Admitted: Country European Union
C, Admitted: Country Russia
D, Admitted: State, Country Asia
A,B,C & D is an affiliation of independent attorneys—not a partnership.
Analysis: A lawyer’s communications regarding the lawyer’s services, including the designation of the lawyer’s firm and the lawyer’s letterhead, must comply with the requirements of Rules 7.1, 7.4 and 7.5 of the Rules.
Rule 7.1 states that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.”1Rule 7.5 governs firm names and letterheads, and subsection (d) is applicable to the analysis in this case: “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”2The obligation of the lawyer not to mislead third parties is further delineated by Rule 7.4, which outlines the limits of the lawyer’s communication of his fields of practice and states that, while allowed to indicate that his practice is limited to specific areas of practice, a lawyer cannot communicate that he is a specialist, unless otherwise permitted by the rule.3
The practice of law has evolved from the traditional model of a partnership with a single law office to various, more fluid forms of relationships among lawyers, which range from structures similar in nature to a partnership to arrangements that merely contemplate mutual referrals. It has now become common practice for lawyers to associate or become affiliated with other lawyers or law firms in different states or countries by way of some form of strategic alliance or participation in national or international networks. While these creative forms of association may provide a legitimate service to clients in a shrinking world, nonetheless they remain circumscribed by the Rules.
The Utah Rules allow an attorney to practice law in association with attorneys licensed in other states or in other countries. In Opinion No. 96-14, we concluded that a “Utah attorney may . . . associate with individuals who are also licensed to practice law in any jurisdiction within the United States or with persons qualified and authorized to engage in the functional equivalent of U.S. legal practice under the laws of a foreign country,” as long as the Utah attorney abides by the prohibitions of Rule 5.5(a) (the attorney cannot practice in a jurisdiction in which the attorney is not licensed in violation of the regulations of the legal profession of that jurisdiction), Rule 5.5(b) (the attorney cannot assist anyone who is not a Utah attorney in engaging in the unauthorized practice of law in Utah), and Rule 7.5(b) (the letterhead of a law firm with offices in more than jurisdiction must disclose the jurisdictional limitations of the attorneys in the firm).4The Committee concluded that under the Rules “there is no ethical prohibition against forming a partnership or sharing revenue from legal practice with non-Utah lawyers,” because “a non-resident lawyer is not considered a ‘nonlawyer’ for purposes of the Utah rules against fee splitting and formation of partnerships with lay persons.”5
However, Opinion 96-14 did not address the issue of whether it would be ethical for the lawyers participating in the association to practice law under a common name and to use joint letterhead in the event that the association did not take the form of a partnership or otherwise operate as a law firm, with sharing of revenues and liabilities and with pooling of resources. The discussion was limited to the propriety of the letterhead used by the lawyers under Rule 7.5(b), which expressly refers to the case of a law firm with offices in more than one jurisdiction. The opinion allows such a law firm to use the same name in each jurisdiction, provided that the letterhead clearly identifies any jurisdictional limitations on each attorney within the firm.
In the present case, on the other hand, the inquirer wishes to join in an affiliation of lawyers that is not in fact a law firm in the traditional sense and whose members are not partners, but independent practitioners. In Formal Opinion 94-388, the ABA Committee on Ethics and Professional Responsibility (the “ABA Committee”) acknowledged the difficulty of defining the exact nature of a relationship among different lawyers or law firms in an era that has witnessed the proliferation “of so many ways in which law firms relate to one another (and with which they describe them).”6The ABA Committee made it clear, however, that, whatever the form of their relationship is and however their relationship is denominated, attorneys who decide to associate with one another in the practice of law must comply with two fundamental ethical obligations: (i) the “obligation not to misstate what a law firm has to offer,” which derives from the provisions of Rule 7.1, 7.5(a) and 7.5(d), and (ii) “the obligation to assure that a client of one firm is aware of the relationship between that firm and any other firms with which it is involved insofar as the relationship may give rise to conflicts of interest, the sharing of fees, or certain other interactions that implicate the Model Rules of Professional Conduct.”7
Thus, a firm may affiliate with another firm if the relationship among the affiliated attorneys is “close and regular, continuing and semi-permanent, and not merely that of forwarder-receiver of legal business.”8However, it may do so only if its representations (such as those in letterhead) do not deceive, and this will be met only “if a full description of any relationship the firm may have used in marketing its services is provided to all prospective clients as to whom the lawyer reasonably believes the relationship may be relevant, and to all present clients to whom the lawyer reasonably believes the relationship may be relevant if at any time any of those relationships change.”9Moreover, in the event that the relationship goes beyond mutual referrals or joint advertising and becomes more substantial, the attorneys must address any conflicts of interest that might arise among the clients of the different attorneys, and they must be sensitive to issues related to disclosure of confidential information.
The arrangement under review presents an additional dimension: The members of the proposed affiliation would not retain their separate identities and simply communicate that they are affiliated with one another, but would instead hold themselves out to the public under a common name and under a joint letterhead.
On more than one occasion, we have concluded that, pursuant the provisions of Rules 7.1, 7.5(a) and 7.5(d), the use of firm names that imply either partnership when in fact there is no partnership or an otherwise misleading relationship among lawyers is not permitted.10The ABA Committee reached a similar conclusion when, in addressing the ethical implications of the use of a licensed name by a network of law firms, it determined that “in contrast to the situation in which several firms are associated but retain their own identities, the use of the same name by all the firms in a network will effectively represent that they are all offices of one and the same firm” and thus will violate both Rules 7.1and 7.5(a).11Furthermore, other states have consistently observed that the listing of the attorneys’ names in the “firm” name and letterhead conveys to the general public the appearance of a partnership and thus is misleading when, in fact, the attorneys are not organized as a partnership.12
In its letterhead, the proposed association attempts to remove the confusion that might be created by the use of a common name by inserting a disclaimer to the effect that “A, B, C, & D is an affiliation of independent attorneys—not a partnership.” The issue is whether such a disclaimer would be sufficient to counter the appearance of a partnership relationship and to eliminate any expectations that (a) the attorneys participating in the association would share liabilities and responsibilities and (b) a client of one of the listed attorneys would also have available the resources and expertise of the other attorneys.
The majority of the states that have considered the use of partnership disclaimers in firms’ letterheads has come to the conclusion that such disclaimers do not cure the impropriety in the use of a common name by attorneys who are not in fact partners.13
Moreover, this Committee has previously determined that, in the context of a franchise arrangement by which law firms would market their services under a common trade name, a disclaimer on the letterhead would not be sufficient to prevent the arrangement from being misleading to the public.14
There are several concerns surrounding the use of a disclaimer as a possible remedy to the misunderstanding created by a misleading letterhead. First, the contrast between, on the one hand, the use of a firm name that comprises the individual names of the attorneys (which has traditionally been associated with the existence of a partnership) and, on the other hand, the disclaimer of partnership may generate more confusion than bring clarity. What has been referred to as the “yes” and “no” quality of the disclaimer15undermines the ability of the disclaimer language to remove the implications of a firm name that is misleading. The Committee declines to assume that everyone would carefully read the disclaimer. Equally as important, not everyone would clearly understand the combined meaning of the firm name and the disclaimer, given the technical aspects of the concept of partnership that are implied by the firm name and the vagueness of the concept of “affiliation of independent attorneys” that is offered to the reader as an interpretation of the relationship among the attorneys.
Furthermore, it has been correctly observed that it would be impossible for the partnership disclaimer to accompany the firm name constantly and everywhere. The firm name would sooner or later appear without disclaimer (for instance, in a telephone book, on a building directory, or in answering the phone), and the misleading effects of the firm name would be left without remedy.16Finally, the Committee notes that a literal interpretation of the Rules does not support the use of a disclaimer as a cure for a communication that is otherwise misleading. Rule 7.5(d) simply provides that “lawyers may state or imply they practice in a partnership or other organization only when that is the fact.”17
Thus, we conclude that the use of a common name and joint letterhead by the proposed association, notwithstanding the presence of the disclaimer, could be interpreted by clients, potential clients and the public in general as representing that the attorneys are all members of the same law firm and that they are prepared to share liability and responsibility. Consequentially, it is misleading and its use would be unethical.18
Another aspect of the letterhead submitted by the inquirer contributes to its misleading nature. The name of the association is accompanied by the words “international lawyers.” Although the expression is unclear, its insertion in the letterhead right below the association’s name seems to refer to an alleged international dimension of the practice of the lawyers belonging to the association, rather than to the mere fact that those lawyers are based and licensed in different countries.
Under Rule 7.4, a lawyer may communicate to the public that his practice is limited to specific areas of the law, if that is in fact the case, but may not “hold himself out publicly as a specialist and shall not indicate any certification or designation as a specialist,” unless he is admitted to practice as a patent attorney or unless indication of a certification or designation as a specialist is “[i]n accordance with any plan regulating lawyer specialization approved and promulgated by the Utah Supreme Court.”19In addition, a lawyer’s communications regarding his fields of practice, on a letterhead or elsewhere, are subject to the “false and misleading” standard of Rule 7.1. Such restrictions are justified by the fact that, as observed by the United States Supreme Court, communications of area of practice are potentially misleading and that “[f]alse claims of expertise are a real danger to those who need and are searching for legal services.”20
The Utah Supreme Court does not recognize attorneys as specialists (with the exception of patent and trademark attorneys) and, more specifically, does not recognize a specialization in international law. Even though the proposed letterhead does not expressly state that the members of the association are “specialists” or “certified” in international law,21which would constitute a direct violation of Rule 7.4, the Committee feels that the designation “international lawyers” implies expertise in the area of international law and could be interpreted as an indication of special competence and experience with respect to transactions involving the relations among different countries and issues governed by different laws. Moreover, such designation would be accurate only if all lawyers in fact practiced in the area of international law and if each lawyer were to be individually responsible for such practice.22Thus, we conclude that the designation appears to be misleading and may violate Rules 7.4 and 7.5(a) by improperly suggesting that all lawyers participating in the proposed association are experts in international law.23
Conclusion: Even though the proposed letterhead attempts to clarify the nature of the relationship among the members of the association by disclaiming partnership, it falls short of meeting the mandate of Rule 7.1 not to deceive the lawyers’ clients and the public in general. The letterhead seems to comply with the provisions of Rule 7.5(b) by identifying the jurisdictional limitations on the individual lawyers participating in the association. However, the Committee concludes that the lawyers’ use of joint letterhead, designating the association by a common name, is misleading and therefore is in violation of Rules 7.1, 7.5(a) and 7.5(d). Furthermore, the designation “international lawyers” suggests that the lawyers participating in the association have a special competence in the area of international law, which appears to violate Rules 7.4 and 7.5.
Appendix
Rule 7.1. Communications concerning a lawyer’s services.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or state or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
Rule 7.4. Communications of fields of practice.
A lawyer may communicate the fact that the lawyer will accept employment in specified areas of practice. A lawyer whose practice is limited to specified areas of practice may communicate that fact. A lawyer shall not hold himself out publicly as a specialist and shall not indicate any certification or designation as a specialist, except as follows:
(a) A lawyer admitted to practice before the United States Patent and Trademark office may use the designation “patent attorney” or a substantially similar designation; and
(b) In accordance with any plan regulating lawyer specialization approved and promulgated by the Utah Supreme Court.
Rule 7.5. Firm names and letterheads.
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
Footnotes
1.Utah Rules of Professional Conduct 7.1. See the Appendix for the full text of the rule.
2.Id. Rule 7.5. The Appendix contains the full text of Rules 7.5(a), (b) and (d).
3.Id. Rule 7.4, which is also given in the Appendix.
4.Utah Ethics Advisory Op. 96-14, 1997 WL 45139 (Utah St. Bar).
5.Id. Rule 5.4(a) prohibits a Utah lawyer from sharing fees with a nonlawyer, and Rule 5.4(b) prohibits the lawyer from forming a partnership with a nonlawyer for the purpose of practicing law.
6.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 388 (1994).
7.Id.
8.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 351 (1984).
9.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 388 (1994).
10.Utah Ethics Advisory Op. No. 95-04, 1995 WL 283027(Utah St. Bar) (use of a trade name by law firms pursuant to a franchise agreement is inherently misleading because it implies partnership); Utah Ethics Advisory Op. No. 139, 1994 WL 579849 (Utah St. Bar) (attorney cannot use firm name that includes the words “& Associates” if his firm does not currently employ any lawyer associates); Utah Ethics Advisory Op. No. 86 (Utah St. Bar 1989) (solo practitioners cannot use common letterhead implying in any way that they are partners); Utah Ethics Advisory Op. No. 34 (Utah St. Bar 1976) (lawyers who are not partners and only share office space cannot use common firm name and telephone number on letterhead).
11.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 388 (1994). See also ABA Comm. on Ethics and Professional Responsibility, Informal Op. 966 (1966) (letterhead referring to “Smith and Smith” implies partnership).
12.E.g., In re Weiss, Healey & Rea, 109 N.J. 246, 268, 536 A.2d 266 (1988) (message conveyed by the firm name “A, B & C” is the practice of law as partners); Mich. Standing Comm. on Professional and Judicial Ethics, Op. No. RI-200, 1994 WL 154942 (Mich. St. Bar 1994) (joint letterhead implies lawyers belong to same law firm); Pa. Ethics Op. 93-124, 1993 WL 851228 (Pa. Bar Ass’n 1993); Ohio Advisory Op. 89-36, 1989 WL 535040 (Ohio St. Bar 1989); New Jersey Ethics Op. 593, 1986 WL 175259 (N.J. St. Bar 1986); Ky. Advisory Op. E-299 (Ky. St. Bar 1985); Ore. Advisory Op. 1991-12 (Or. St. Bar 1991) (“A, B & C, Attorneys at Law” misleading if no partnership among attorneys exists); Neb. Advisory Op. 80-10 (Neb. State Bar Ass’n, undated).
13.See, e.g., Mich. Ethics Op. No. RI-200; Neb. Ethics Op. 80-10; Pa. Ethics Op. 93-124; N.J. Ethics Op. 593, all supra, note 12. See also Pa. Ethics Op. 85-100, 1985 WL 291423 (Pa. Bar Ass’n); Ohio Advisory. Op. 89-36, supra footnote 12 (disclaimers such as “An Association of Independent Attorneys,” “Not a Partnership,” or “A Non-Partnership Association” are confusing and do not clarify misleading nature of common letterhead used by attorneys sharing office space); Or. Ethics Op. 486 (Or. St. Bar 1983). But see Tenn. Ethics Op. 84-F-82, 1984 WL 262049 (Tenn. Bd. Prof. Resp.) (“An Association of Attorneys” following names of members of association properly identifies members of association and additional disclaimer “Not a Partnership” is not necessary); cf. Tex. Ethics Op. 478, 1993 WL 840537 (St. Bar of Tex.1993).
14.Utah Ethics Advisory Op. No. 95-04, 95 WL 283827(Utah St. Bar).
15.See Pa. Ethics Op. 85-100, supra, note 13.
16.See, e.g., Neb. Ethics Op. No. 80-10; Pa. Ethics Op. 85-100; Pa. Ethics Op. 93-124; and N.J. Ethics Op. 593; all supra note 13.
17.A similar observation has been made by the Nebraska Advisory Committee in Op. No. 80-10, supra, note 13, with respect to DR2-102(C), the substantially similar predecessor of Rule 7.5(d).
18.The Committee believes that, in order to comply with the applicable Rules of Professional Conduct, the lawyers participating in the association would have to maintain their independent identities in their communications to the public regarding their services and use separate letterheads. As set forth in ABA Formal Op. 351, the lawyers could indicate in their respective letterheads that they are associated or affiliated with one another, provided that their relationship is “close and regular, continuing and semi-permanent, and not merely that of forwarder-receiver of legal business” and provided further that the lawyers make full disclosure to their clients and prospective clients of the implications of the relationship and that they are sensitive to issues related to confidentiality and conflicts of interest,. Moreover, the lawyers would need to comply with ABA Formal Op. 388, which requires that lawyers who are associated with one another fully and accurately describe in their communications to the public the exact nature of their relationship, since “the use of one or two word shorthand expressions,” such as “affiliation” or “association,” would not prevent the communication from being misleading. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 388 (1994).
19.Utah Rules of Professional Conduct 7.4.
20.See In re R.M.J., 455 U.S. 191 (1982).
21.A specific certification for attorneys that practice in the field of international law has been established by the Florida Bar in 1997. Rule 6-21.2 of the amended Rules Regulating the Florida Bar defines international law as “the practice of law dealing with issues, problems, or disputes arising from any and all aspects of the relations between or among states and international organizations as well as the relations between or among nationals of different countries, or between a state and a national of another state, including transactional business transactions, multinational taxation, customs, and trade. The term ‘international law’ includes foreign and comparative law.”
22.See Tex. Ethics Op. 440, 1987 WL 109870 (St. Bar of Tex.) (designation “personal injury lawyers” in firm letterhead and business cards permissible only if all attorneys practice in that area). Cf. Pa. Ethics Op. 95-04, WL 935621 (Pa. Bar Ass’n 1995) (joint ad of law firm and solo practitioner stating areas of practice implied solo practitioner’s expertise in those areas and was misleading).
23.See S.C. Advisory Op. 96-03, 1996 WL 914246 (S.C. Bar Ass’n) (placement of terms “Master Mariner,” “First Class Pilot,” “Marine Consultant” in letterhead implied attorney’s specialty in admiralty law and was misleading).

Ethics Advisory Opinion No. 99-04

(Approved June 30, 1999)
General Issue:
What are the ethical considerations that govern a lawyer who wishes to conduct legal seminars; provide legal information to groups of retirement-home residents; host open houses; set up information booths at trade shows; participate in Bar-sponsored question-and-answer programs; or make in-person contacts with prospective clients at the request of their friends or relatives?

Summary: This Opinion analyzes and decides a range of related questions that have arisen in connection with lawyers’ marketing and solicitation activities. In general, we find that lawyers may make their services known through a variety of methods that do not involve uninvited, one-on-one approaches, discussions or solicitations. On the other hand, where monetary gain is a significant motivation, lawyers may not generally engage in uninvited, direct in-person communications with prospective clients in order to indicate the lawyer’s availability to accept professional employment.
Issue No. 1: May a lawyer sponsor and advertise a free seminar on legal issues to be presented in a group setting to members of the public and (i) offer literature or videos discussing the legal topic, either with or without fee, to attendees of the seminar, (ii) give a business card to attendees who request one, and (iii) accept employment to provide legal services to an attendee who initiates a request for professional services?
Opinion: Yes. Provided that the invitations do not communicate the lawyer’s availability to accept professional employment, a lawyer may invite members of the public to a law-related seminar with invitations delivered by mail, by telephone or in person. If the invitations communicate the lawyer’s availability to accept professional employment, the invitation may not be in person or telephonic and must comply with Utah Rules of Professional Conduct 7.1, 7.2 and 7.3(b). So long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment from attendees of the seminar in person, the lawyer may provide a business card to an attendee of the seminar who requests it and may accept employment to provide legal services to attendees of the seminar who initiate the request for professional services. The lawyer may distribute or offer in person to each attendee literature or videos discussing the legal topic, with or without fee, provided the literature or videos do not communicate the lawyer’s availability to accept professional employment. The lawyer may distribute or offer in person to attendees literature or videos which communicate the lawyer’s availability to accept professional employment only if the request for such materials is initiated by the attendee. The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without inperson encouragement, choose to pick up the materials.
Issue No. 2: If a lawyer volunteers to appear before a group of residents of a retirement or senior center to answer in a group setting questions they may have concerning legal topics, may the lawyer ethically accept legal engagements offered by residents of the center who attend the group question and answer session?
Opinion: Yes, as long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment in person. The lawyer is subject to the same ethical restraints during a group question and answer session as are set forth in this Opinion with respect to law-related seminars.
Issue No. 3: If a lawyer purchases booth space at a trade show, may the lawyer (i) discuss legal topics one on one with persons who voluntarily visit the lawyer’s booth and (ii) accept legal engagements offered by attendees of the trade show who visit the lawyer’s booth and engage in one-on-one discussions with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment.1The lawyer may display print advertisements at or about the booth that comply with Rules 7.1 and 7.2.
Visits by the public to a lawyer trade-show booth are similar to visits by non-clients to a lawyer’s advertised open house. The lawyer may not communicate the lawyer’s availability to accept professional employment in person, but he may discuss legal topics with the prospective clients. When the request is initiated by the prospective client, the lawyer may privately provide individualized legal advice. The lawyer may not generally distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment in person, but may provide such materials to those prospective clients who initiate a request for such information. The lawyer may make available materials communicating the lawyer’s availability to accept professional employment at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials. The lawyer may accept professional employment from prospective clients who meet with the lawyer so long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a).

Issue No. 4:
May a lawyer volunteer to set up a table in a common area of a retirement or senior center in order to meet one on one to discuss legal topics with residents of the center who voluntarily visit the lawyer’s table, and may the lawyer accept legal engagements proposed by residents of the center who visit the lawyer’s table and voluntarily engage in one-on-one discussions of legal issues with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment from persons with whom the lawyers has no family or prior professional relationship for pecuniary gain. The lawyer is subject to the same ethical restraints during a discussion-table meeting with a prospective client as are set forth in this Opinion with respect to lawyer open houses and lawyer trade-show booths.

Issue No. 5:
May a lawyer volunteer to provide one-on-one consultations with residents of a retirement or senior center concerning legal topics, initiate one-on-one in-person communications with residents of the center in their rooms or common areas to discuss their legal questions or concerns, and accept legal engagements proposed by such residents who discuss legal topics one on one with the lawyer?
Opinion: No. The lawyer has engaged in direct in-person solicitation of professional employment when the lawyer initiates uninvited one-on-one contact to discuss legal topics with residents of the center.
Issue No. 6: If a lawyer volunteers to answer questions of members of the public participating in a Utah State Bar-sponsored one-on-one question-and-answer session, such as a Bar-sponsored telethon (in-person telephonic contact) or the Bar-sponsored Tuesday Night Bar (face-to-face contact), may the lawyer provide to a member of the public his name and telephone number during the Bar-sponsored communication and accept professional employment for a fee offered by a member of the public during or after the Bar-sponsored communication?
Opinion: No. The Bar’s current policies concerning such Bar-sponsored programs prohibit lawyer volunteers from accepting professional employment resulting from discussions with members of the public during the program, unless the professional employment is accepted on a pro bono basis. If the Bar’s policies concerning such Bar-sponsored programs did not prohibit a lawyer from accepting professional employment on a for-fee basis resulting from the programs, and the lawyer complied with the requirements of Rule 7.3(a) that prohibits in-person solicitation of professional employment of persons the lawyer could, upon a request initiated by the member of the public, provide his address and telephone number and accept professional employment on a for-fee basis during or after the Bar-sponsored communication.
Issue No. 7: If a relative or close friend of a prospective client requests that the lawyer telephone the prospective client to offer to provide legal representation, is it ethical for the lawyer to telephone the prospective client and to offer to provide legal representation?
Opinion: Generally no, unless the relative or friend of the prospective client requesting the lawyer to make the contact is the agent of the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client. Absent this determination, it is a prohibited in-person solicitation for the lawyer to telephone the prospective client to provide legal representation for pecuniary gain.
Background: The Committee has received several requests regarding the ethics of certain client-development activities generally described as law-related seminars, group question-and-answer sessions on law-related topics, trade-show booths, discussion tables, uninvited one-on-one question-and-answer sessions on law-related topics and participation in Utah State Bar-sponsored legal assistance programs. The Committee has also received a request for an opinion on the ethics of in-person contact of prospective clients referred to the lawyer by the family or close friends of the prospective client. Unless otherwise indicated, the Committee has assumed in the analysis of each of these requests that (i) the prospective client is a person with whom the lawyer has no family or prior professional relationship and (ii) a significant motive for the lawyer’s conduct is pecuniary gain and not to advance any constitutionally protected associational interests.
Issue No. 1 Analysis: Rule 7.3(a) prohibits in-person and telephonic communication directed to a specific recipient with whom the lawyer has no family or prior professional relationship soliciting professional employment when a significant motive for the lawyer’s doing so is pecuniary gain.2
Unlike the rules in some other states, the Utah Rules of Professional Conduct do not define the term “solicit” as this term is used in Rule 7.3(a). We believe that “solicit” in this context means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment.3The term “solicit” necessarily includes an offer initiated by the lawyer to provide or to accept professional employment and the unrequested advice or recommendation of the lawyer that the lawyer be engaged to provide professional services.4
Rule 7.3 prohibits only solicitations to provide legal services.5An invitation to attend a law-related seminar without any communication of the lawyer’s availability to accept professional employment is not a solicitation of professional employment. Therefore, a lawyer may invite attendance at a law-related seminar sponsored by the lawyer or by others by telephone or by direct in-person communication, so long as the lawyer does not communicate a message or offer concerning the availability of the lawyer to accept professional employment.6If the invitation contains such a message or offer, the invitation must be made by mail and must comply with Rules 7.1, 7.2 and 7.3(b).
A lawyer may appear and make presentations at a law-related seminar provided he does not engage in in-person solicitation prohibited by Rule 7.3(a). Therefore, a lawyer may not communicate the lawyer’s availability to provide professional employment, offer to provide or accept professional employment or recommend that the lawyer or the lawyer’s firm be employed to provide legal services.7 The lawyer may distribute or offer in person to each attendee of the seminar, with or without fee, literature or video tapes concerning the legal issues addressed at the seminar that may state the lawyer’s name, firm affiliation, address and telephone number.8Literature or video tapes offered in person to each attendee may not communicate the lawyer’s availability to provide or accept professional employment.9Therefore, the lawyer’s business card, brochures or other endorsements of the lawyer or the lawyer’s law firm should not be generally distributed in person to attendees of law-related seminars.10If an attendee of a law-related seminar initiates a request to the lawyer to receive literature or video tapes that communicate the lawyer’s availability to provide or to accept professional employment, the lawyer may ethically provide such materials to the attendee. Letters and brochures offering the lawyer’s legal services may be mailed by the lawyer after the seminar to the attendees of the seminar.11
A lawyer may not provide individualized legal advice during the course of a law-related seminar.12By doing so, the lawyer would be providing legal services. In response to questions by attendees, the lawyer must endeavor to respond generally so as to create no impression that the lawyer has accepted professional employment on behalf of an attendee. While the lawyer may not initiate a recommendation of the lawyer’s engagement by any attendee of the seminar, he may recommend, when appropriate, that an attendee of the seminar consult with a lawyer of the attendee’s own choosing.
A lawyer may meet one on one with an attendee of the seminar, when such a contact is initiated by an attendee. In private sessions with attendees, if a request for individualized legal advice is initiated by the attendee, the lawyer may provide individualized legal advice.13The lawyer may accept professional employment offered by an attendee of the seminar, either offered privately at the seminar or after the seminar, provided the lawyer has not initiated the offer by engaging in in-person solicitation in violation of Rule 7.3(a).14
Some state bar associations have placed additional restrictions on lawyer participants at law-related seminars. The Committee chooses not to adopt these additional restrictions.15
Issue No. 2 Analysis: The Committee does not see a meaningful distinction between a group question-and-answer session concerning legal topics and a law-related seminar. For this reason, the Committee believes the analysis of this issue is the same as the analysis of Issue 1, law-related seminars, and that the ethical restraints on the lawyer’s conduct are the same.16
Issue No. 3 Analysis: It is not unethical for a lawyer to purchase booth space at a trade show. So long as advertisements attached to or near the booth space comply with Rules 7.1 and 7.2, it is not unethical for the lawyer to display print advertisements of the lawyer’s availability to accept legal employment. This is equivalent to outdoor advertising authorized by Rule 7.2. What distinguishes booth space at a trade show from outdoor advertising is the presence of the lawyer at the booth to engage in one-on-one oral communications with attendees of the trade show.
Other state bar associations are divided on what activities a lawyer at a trade-show booth may ethically engage in. Some permit the lawyer to initiate in-person offers to provide legal services to anyone who visits the booth and voluntarily engages in communications with the lawyer.17These opinions appear to view the booth as an extension of the lawyer’s office. The presumption is that a lawyer is free to engage in in-person solicitation of those who walk into a lawyer’s office to discuss legal services.
Some bar associations prohibit the lawyer from solicitation of persons with no family or prior professional relationship with the lawyer who visit the booth. This, therefore, prohibits the general in-person distribution from the booth of brochures, business cards and other writings communicating the lawyer’s availability to accept professional employment.18These opinions reason that general in-person distribution of brochures and initiating offers to provide professional services from the trade show booth is not unlike a lawyer standing on a street corner and passing out brochures and offering to provide legal services to each passerby. These opinions are concerned with the potential for undue influence, harassment and fraud that may occasion one-on-one encounters between the lawyer and the public making their way past the lawyer’s booth.
The Committee believes that visits to a lawyer’s trade-show booth should be likened to visits to a lawyer’s office during an advertised open house. Non-clients who attend an advertised lawyer open house do not reasonably anticipate that they will be subjected to in- person solicitation of professional employment.19 For this reason, it is unethical for lawyers to engage in in-person solicitation of such persons.20These occasions afford the lawyer the opportunity to meet prospective clients and for prospective clients to meet the lawyer. The lawyer may discuss legal topics with the attendees and may, when the request is initiated by the prospective client, privately provide individualized legal advice.21
The lawyer may not initiate an offer to provide or to accept professional employment. He is free to distribute in-person business cards, brochures and other self-promoting literature to an attendee of an open house who requests the literature, but may not otherwise distribute literature in person that communicates the lawyer’s availability to accept professional employment to those in attendance.22The lawyer may later mail the brochures and other literature to those who attend the open house. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), the lawyer may accept professional employment from attendees of the open house.
The Committee believes that the same analysis applies to trade-show booths. The lawyer may get acquainted with those who visit the booth, may discuss legal topics generally and may, when the request is initiated by the prospective client, privately provide individualized legal advice. The lawyer may not initiate in-person communications about the lawyer’s availability to accept professional employment. The lawyer may not in person distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment unless the person visiting the booth initiates the request for this information. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), he is free to accept professional employment offered by those who visit the booth.
Issue No. 4 Analysis: The Committee believes that a table set up by a lawyer at a retirement or senior center for the purpose of meeting with residents of the center who voluntarily visit the lawyer’s table to discuss legal topics is indistinguishable from a lawyer’s open house or a booth set up by a lawyer at a trade show. The analysis of this issue is the same as the analysis of Issue No. 3, and the ethical restraints on the lawyer’s conduct are the same as the restraints on a lawyer’s holding an open house or setting up a trade-show booth.
Issue No. 5 Analysis: The lawyer’s conduct in initiating uninvited communications with residents of the senior center, whether in their rooms or in common areas of the center, is distinguishable from establishing a table in a common area of the senior center. When the lawyer initiates the contact, the resident is subjected to the uninvited presence of the lawyer in a one-on-one encounter. This situation is “fraught with the possibility of undue influence, intimidation and over-reaching.”23The residents of the senior center are subjected to “the private importuning of a trained advocate, in a direct interpersonal encounter” which was wholly uninvited by the resident.24 Because the communications are private and oral and not visible or otherwise open to public scrutiny, it is nearly impossible for the lawyer’s conduct to be regulated. The potential for abuse inherent in this situation justifies a prophylactic prohibition of the acceptance of legal representation offered by the residents of the senior center under these circumstances, unless the representation is pro bono.25
It may be argued that such uninvited one-on-one contact to discuss legal topics of interest to the residents of the senior center is not solicitation unless the lawyer communicates his availability to accept legal employment. It may also be argued that, if the resident initiates a request for individualized legal advice or to engage the lawyer to provide legal services, then the professional employment has not been obtained through solicitation in violation of Rule 7.3(a). The Committee is not persuaded by such arguments. These arguments are similar to the analysis set forth earlier in this Opinion for law-related seminars, group question-and-answer sessions, client open houses and trade-show booths and discussion tables. However, in each of these previously discussed modes of lawyer communication, the prospective clients have invited the communication. While the one-on-one communications at the lawyer open house, lawyer trade-show booth and discussion table are also fraught with the danger of undue influence, intimidation and over reaching, and are also private and not open to public scrutiny, they are at least invited communications. When weighing the rights and benefits of the public in receiving education and direction on legal topics with the potential for lawyer abuse, the Committee finds the balance in favor of permitting one-on-one communications at lawyer open houses, trade-show booths and discussion tables because the communications are invited by the prospective client.
In Shapero v. Kentucky Bar Association, the United States Supreme Court distinguished solicitation by targeted mail from in-person solicitation, stating: “In assessing the potential for over reaching and undue influence, the mode of communication makes all the difference.”26We agree, but further note that uninvited one-on-one communication is fraught with the most danger of abuse. It is this form of communication to attract professional employment that Rule 7.3(a) was intended to prevent. A lawyer may not accept professional employment resulting from such uninvited one-on-one contacts, unless the representation is solicited and provided on a pro bono basis.
Issue No. 6 Analysis: Bar-sponsored telethons and the “Tuesday Night Bar” result in in-person communications by members of the public with lawyers similar to the lawyer open house, trade-show booth and discussion table communications discussed earlier in this Opinion. There is, however, one important distinction. These events are sponsored and advertised to the public by the Bar. Lawyers volunteering to participate in these Bar-sponsored programs are, therefore, subject to the Bar’s rules, regulations and policies regarding the program, in addition to the Utah Rules of Professional Conduct.
Each participant in the Tuesday Night Bar Program receives a policy statement which describes the program as being designed to provide preliminary counseling and general legal information and, if appropriate, referral to a lawyer using the Bar’s Lawyer Referral Service. The policy statement further states: “[The program] is not intended to create an on-going attorney-client relationship between the participants . . . . Attorneys shall not take clients and/or cases from the Program unless the attorney does so on a pro bono basis.” The Bar has also informally indicated it intends to apply a similar policy statement regarding Bar-sponsored telethons.
Therefore, under the current Bar policies, a lawyer volunteer participating in the Bar-sponsored Tuesday Night Bar or a telethon program may not accept legal employment resulting from communications with members of the public during the program, unless the representation is on a pro bono basis. If there were no Bar policy preventing a lawyer participant from accepting professional employment on a for-fee basis from members of the public with whom the lawyer has made contact during a Bar-sponsored program, the lawyer would be governed by the same limitations as discussed previously in this Opinion with respect to communications at lawyer open houses, trade-show booths and discussion tables.
Issue No. 7 Analysis: Rule 7.3(a) states in part: “A lawyer may not solicit in person, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyers doing so is the lawyer’s pecuniary gain.” Thus, the lawyer may not generally communicate in person with the prospective client and offer to provide legal services, even if the lawyer has been requested by a friend or close relative of a prospective client to make the communication.27
However, if the person requesting the lawyer to contact the prospective client is the prospective client’s agent, then it would not be unethical for the lawyer to contact the prospective client in person to offer to provide professional services. In that case, the in-person contact has been invited by the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client.28
In these circumstances, it would be best for the lawyer to advise the person referring the prospective client that the prospective client should contact the lawyer and request the lawyer’s professional services. Otherwise, the lawyer runs the risk that the prospective client’s friend or family member is not authorized by the prospective client to request the lawyer’s direct in-person communication with the prospective client.
Footnotes
1.We assume in this Opinion that the various persons who may be in attendance are not persons “with whom the lawyer has [a] family or prior professional relationship” and that any solicitation would be significantly motivated by “the lawyer’s pecuniary gain.” Otherwise, the lawyer is not constrained by the provisions of Rule 7.3, which forms the foundation of our analysis.
2.In Opinion No. 127, the Committee discussed Rule 7.3(a) and the constitutional limitations on the rule. Utah Ethics Advisory Op. 127, 1994 WL 579847 (Utah St. Bar).
3.See California Rules of Professional Conduct, Rule 1400(B)(1) (“solicitation” is any communication “concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain”).
4.See ABA Model Code of Professional Responsibility, DR2-104(A).
5.Utah Ethics Advisory Op. 97-03, at 2, 1997 WL 223849 (Utah State Bar).
6.Los Angeles Co. Bar Assoc., Formal Op. 494, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:1702 (Oct. 19, 1998).
7.Some state bar associations have allowed lawyers to make generalized statements at law-related seminars regarding their availability to accept professional employment. See, e.g., Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ariz. State Bar Assoc., Op. 87-23, ABA/BNA Lawyer’s Manual on Professional Conduct 901:1408 (Oct. 26, 1987). Arizona allows lawyer presenters at law-related seminars to offer to provide legal services with or without fee, if no pressure or coercion is exercised upon attendees at the seminar. We do not agree with these opinions. We believe such conduct constitutes in-person solicitation prohibited by Rule 7.3(a).
8.Ill. State Bar Assoc., Op. 96-01, 1996 WL 466449.
9.Mass. State Bar Assoc., Op. 86-3, ABA/BNA Lawyer’s Manual on Professional Conduct 901:4601 (Nov. 25, 1996); Los Angeles Co. Bar Assoc., Formal Op. 494.
10.The Committee does not believe that Rule 7.3(a) precludes lawyer sponsors or presenters at law-related seminars from leaving business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment at tables where these materials may be picked up by any attendee choosing to do so. However, the lawyer may not in any way promote or encourage attendees in person to pick up such written materials.
11.S.C. State Bar Assoc., Op. 97-05, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:7904 (April 1997).
12.Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ala. State Bar Assoc., Op. 87-119, ABA/BNA Lawyer’s Manual on Professional Conduct 901-1032 (Sept. 29, 1987); Penn. State Bar Assoc., Op. 93-42A, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7326 (June 2, 1993).
13.R.I. State Bar Assoc., Op. 94-39, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7834 (June 22, 1994); Penn. State Bar Assoc., Op. 93-42A. By providing individualized legal advice, the lawyer has created an attorney-client relationship and must comply with the Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10, and Rule 1.6, regarding client confidences.
14.Wis. State Bar Assoc., Op. E-94-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:9104 (Nov. 18, 1994); Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Miss. State Bar Assoc., Op. 156, ABA/BNA Lawyer’s Manual on Professional Conduct 901:5108 (Dec. 2, 1988); Penn. State Bar Assoc., Op. 89-32, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7318 (undated).
15.Some state bar associations require that lawyer participants be competent in the area of law addressed at the seminar. Tex. State Bar Assoc., Op. 489, 57 Tex. B.J. 372 (1994). Although lawyers are encouraged not to make presentations in areas of the law in which they are not competent, a law-related seminar is not the provision of legal services and is therefore not subject to Rule 1.1. Some state bar associations require that the seminar be educational, not promotional. Ind. State Bar Assoc., Op. 10 of 1986, ABA/BNA Lawyer’s Manual on Professional Conduct 901:3303 (undated); Tex. State Bar Assoc., Op. 489. To the extent this limitation is intended to be more restrictive than a prohibition on in-person solicitation, it is not required by the Rules and is constitutionally suspect. See Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v. Fane, 507 U.S. 761 (1993). A requirement in some states is that the sponsorship of the seminar be disclosed. To the extent that a failure to disclose the sponsorship of the seminar may be misleading, a lawyer may be required to disclose this fact to comply with Rule 7.1. However, Rule 7.1 applies only to the advertisement or promotion of a law-related seminar which communicates the lawyer’s availability to accept professional employment.
16.See R.I. State Bar Assoc., Op. 96-21, ABA/BNA Manual of Professional Conduct 1101:7804 (Sept. 12, 1996) (lawyer may telephone administrators of senior centers to offer a lecture series targeted specifically for senior citizens).
17.See, e.g., Nassau Co. [N.Y.] Bar Assoc., Op. 90-7, ABA/BNA Lawyer’s Manual on Professional Conduct 901:6274 (Mar. 14, 1990) (authorizing lawyer to offer legal services from a booth at a shopping center so long as lawyer complies with advertising rules in advertising minimum fees for services and protects against disclosure of client confidences).
18.Penn. State Bar Assoc., Op. 88-214, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7316 (undated) (distribution of firm brochure and contract samples from trade show booth is in-person solicitation); Kan. State Bar Assoc., Op. 98-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:3804 (April 2, 1998) (passing out firm brochures at trade show to those who pass by the trade show booth is in-person solicitation).
19.This Opinion assumes that the invitation to a lawyer’s open house does not specifically invite the public to attend for the purpose of being solicited to provide professional employment to the lawyer. The Committee believes that non-clients who attend an open house in response to an invitation that states that the non-clients will be solicited have, in turn, invited the in-person solicitation. It would, therefore, not be unethical for a lawyer to make an in-person solicitation to such a person.
20.N.C. State Bar Assoc., Op. 146, 1992 WL 753128 (Jan. 15, 1993); Ore. State Bar Assoc., Op. 1991-35, 1991 WL 279176 (July, 1991); see also R.I. State Bar Assoc., Op. 89-14, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7805 (July 20, 1989) (lawyer may attend social gatherings to meet prospective clients, but may not engage in in-person solicitation).
21.When providing individualized legal advice, the lawyer must comply with all Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10 and Rule 1.6 concerning client confidences.
22.The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials.
23.Rule 7.3 cmt.
24.Id.
25.Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) (prophylactic rule against in-person solicitation does not violate the rights of free expression afforded by the First and Fourteenth Amendments of the United States Constitution even in the absence of a showing of any specific harm to the prospective clients). Accord, Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988). If the representations are accepted on a pro bono basis, then Rule 7.3(a) would not be applicable. The primary motive of the lawyer would not be pecuniary gain.
26.486 U.S. 466, 475 (1988)
27.Norris v. Alabama State Bar, 582 So. 2d 1034 (Ala. 1991) (lawyer suspended from practice for two years after delivering to a funeral home a funeral wreath and a letter addressed to the widow offering assistance after having received an anonymous telephone call from someone purporting to be a friend of the widow stating that she required legal services and did not have sufficient funds for a funeral wreath); Spence, Payne, Masington & Grossman, P.A. v. Gerson, 483 So. 2d 775 (Fla. App. 1986) (unethical in-person solicitation for a lawyer to send an investigator to obtain a retainer agreement from a widow after receiving a telephone call from a client of the lawyer and a close friend of the widow requesting that the lawyer offer to provide professional services to the widow).
28.A contrary opinion may be found in the Spence, Payne case.

95-04 – May a lawyer or a law firm enter a franchise agreement with a firm that provides marketing and other service arrangements?

(Approved April 28, 1995)
Issue:
May a lawyer or a law firm enter a franchise agreement with a firm that provides marketing and other service arrangements?

Opinion: It is unethical for a lawyer or a law firm to enter into a franchise agreement when the franchisee is not in a partnership or professional corporation relationship with the franchisor.1
Analysis: This request was submitted by a solo practitioner who desires to enter a franchise arrangement with an out-of-state firm that provides a trade name, marketing and other service arrangements for franchisees. Because of the multiplicity of potential relationships or affiliations among law firms, this Opinion is limited to consideration of a “franchise” arrangement having as its essential element the marketing of legal services under a common trade name. We do not address the many issues that could arise if the franchisor had the ability through the agreement to prescribe methods and processes for the franchisee or otherwise affect the independent professional judgment of the lawyer.2We assume the franchise arrangement provides for lower operating costs without an impact on individual firm autonomy and that the relationship does not provide for a partnership or professional corporation arrangement between the franchisee and the franchisor. The franchisee firm and the franchisor firm will be marketed on letterhead, in law directories, etc., using a common trade name.
Although the subject of a law firm’s entering into a franchise agreement is a matter of first impression for this Committee, the general theme of using a firm name that implies a misleading relationship is not new.3As a survey of other jurisdictions that have considered the question of franchising indicates, the application of Rules 7.5(a) and 7.1 of the Utah Rules of Professional Conduct is most appropriate. Rule 7.5(a) provides: “A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.” Rule 7.1 sets out that:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) Compares the lawyer’s services with other lawyer’s services, unless the comparison can be factually substantiated.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when it is the fact.
This Committee’s Opinion No. 139 applied the rules above to a particular misleading firm name, but other jurisdictions have specifically applied analogues of Utah Rules 7.1 and 7.5(a) in determining that a franchise system as described above would be unethical.
The State Bar of Michigan Standing Committee on Professional and Judicial Ethics issued an opinion that “it is unethical for lawyers to offer or make an agreement to franchise a law firm name when the franchisees in fact are not in a partnership or professional corporation relationship with the franchisors.”4 The Michigan Bar determined that a franchise arrangement which facilitated the use of a trade name, common marketing plans and other services to the franchisee implied a partnership or professional corporation when none existed, and that the franchise arrangement, therefore, violated Michigan’s Rule 7.5(d).5
Employing the same reasoning, the Michigan Bar subsequently found it unethical for specialty law firms with an “affiliation” to use a common letterhead trade name to “undertake matters in various specialties as needed without the high overhead costs incurred by large law firms.”6For much the same reason the requesting attorney in this case seeks a franchise arrangement that can create an unjustified expectation regarding the lawyer’s services in relation to what appears to be one firm. The 1994 Michigan opinion warned that even a disclaimer by separate firms on common letterhead regarding the actual nature of the relationship is inadequate to prevent the misleading inference that the lawyers are in one firm.
In a recent opinion addressing relationships between law firms, the American Bar Association outlined concerns with such trends as networking, affiliating, and franchising. Concerning franchising, the ABA emphasized that:
Lawyers have an obligation not to mislead prospective clients as to what the lawyer is able to bring to bear on the client’s matter in terms of the size of the firm, the resources available to the firm or the relationship between the firm and other law firms with which it is associated. . . . [i]f a law firm licenses its name to other firms, all firms so licensed must, in fact, operate as a single firm and be treated as part of a single firm for all purposes under the Model Rules.7
In such a network of franchisees, in contrast to associated or networked firms that retain their own identities, the ABA observed that “the use of the same name by all the firms in a network will effectively represent that they are all offices of one and the same firm.”8As indicated in the 1994 Michigan opinion, even a disclaimer accompanying the letterhead is insufficient to prevent the franchise relationship from being misleading.9
In addition to the issues outlined above, other jurisdictions have expressed concerns about franchise-type arrangements. The bars of New York and New Jersey have expressed concerns that such a franchise arrangement may imply that a firm is in partnership with the franchisor and other franchisees when there is no lawyer licensed in the state with responsibility for the group.10 The New York opinion cited a previous ABA opinion, reading:
In any interstate partnership, association or employment relation, the most important requirement is that the local man must be admitted to the state and must have the ability to make and be responsible for making decision for the lawyer group. . . . Lawyers in different states associating themselves for the practice of law must not mislead the public. A partnership must not be implied where none exists, and it must always be clearly indicated after the name of each the limitations of their authority in the states where they have offices.11
Finally, the New Jersey Supreme Court considered constitutional questions in upholding a state rule prohibiting an out-of-state firm from opening a New Jersey office under its name. Although the circumstances are somewhat different from the franchising arrangement contemplated by the requesting attorney in the case before us, the New Jersey court determined that the state rule prohibiting an out-of-state law firm from opening a New Jersey office under its own name did not invoke constitutional protection under the First Amendment (not protected commercial speech), the Commerce Clause, the Privileges and Immunities Clause, nor the Equal Protection Clause.12
In summary, a franchise arrangement in which a lawyer or firm is provided with a trade name, marketing and related services, as described by the requesting attorney and addressed in the opinions above, is inherently misleading because it implies to potential clients a partnership or professional corporation. Even a disclaimer strategically located on a letterhead is not enough to overcome this implication.
Footnotes
1.This Opinion concerns the franchising of a trade name for the practice of law. It does not address multiple law firms that retain their separate identities in marketing to the public, but also associate as a network for the referral of clients and indicate their association on letterhead, in law directories, etc.
2.See, e.g., Utah Rules of Professional Conduct 2.1. Nor do we address the conflicts issue that could arise in such a relationship under Utah Rules of Professional Conduct 1.7, 1.8, 1.9 and 1.10.
3.Most recently, the Committee rendered the opinion that “[a] lawyer may not use ‘& Associates’ as part of a firm name where no attorney associates are currently employed by that firm.” Utah State Bar Ethics Op. No. 139, 1994 WL 579849 (Jan. 27, 1994). See also Utah State Bar Ethics Op. No. 34 (Dec. 30, 1976) (non-partner office-sharing, using a common “firm” name and common telephone number on letterhead, is not permitted); Utah State Bar Ethics Op. No. 86 (Jan. 27, 1989) (improper for solo practitioners to use common letterhead that “in any way implies that they are partners.”).
4.State Bar of Mich. Standing Comm. on Professional and Judicial Ethics, Op. No. RI-130, at 2 (April 27, 1992).
5.The Michigan Bar found such a franchise arrangement with the implication of a partnership or professional corporation to be misleading, and that “[c]onsumers of legal services have a right to understand what individual or entity they can look to for the provision of legal services and who they can hold responsible for the manner in which services are provided.” Id. at 1 (citation omitted).
6.State Bar of Michigan Standing Committee on Professional and Judicial Ethics, Op. No. RI-200, at 1 (Mar. 29, 1994).
7.ABA Formal Op. No. 94-388, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:241.
8.ABA Formal Op. No. 94-388 provides that if firms retain their own separate identities, but represent that they are an “associated” or “affiliated” firm of another firm, this form of networking is permissible under Rules 7.1 and 7.5(a) provided the clients receive “information that will tell them the exact nature of the relationship and extent to which resources of another firm will be available in connection with the client’s retention of the firm that is claiming the relationship.” Id.
9.State Bar of Michigan Standing Committee on Professional and Judicial Ethics, Op. No. RI-200, at 1 (Mar. 29, 1994).
10.Rosenberg v. Johns-Manville Sales Corp., 416 N.Y.S.2d 708 (N.Y. Sup. Ct., Special Ct. 1979); In re Professional Ethics , 444 A.2d 1092 (N.J. 1982).
11.416 N.Y.S.2d at 710 (citations omitted).
12.444 A.2d at 1092.