Ethics Advisory Opinion 13-04

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 13-04

Issued September 30, 2013

ISSUE

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

OPINION

 

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

BACKGROUND AND ANALYSIS

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

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

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

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

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

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

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

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

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

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

The plea agreement further states,

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

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

I have no mental reservations concerning the plea.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

CONCLUSION

 

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

_________________________________________________________________________

Dissenting Opinion

by

Ryan D. Tenney

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

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

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

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

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

* * * * *

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Christopher H. Glauser (concurring)

4812-6507-8806, v.  1


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

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

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

Rule 1.7. Conflict of Interest: Current Clients.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

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

(a)(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

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

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

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

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

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

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

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

[7]. See note 2, supra.

[8].  See U.S.S.G. § 2D1.1.

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

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

(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(a)(1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(a)(2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(a)(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

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

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

The Law of Lawyering, id.

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

 

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

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

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

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

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

Rules of Professional Conduct, 1.0(f).

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

 

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

Official Comments to RPC 1(f) Informed Consent.

 

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

(Emphasis added)

 

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

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

 

Official Comment 10 to RPC 1.7(b).

 

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

 

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

 

Ethics Advisory Opinion No. 11-03

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 11-03
Issued November 15, 2011

1. ISSUE: Is it a violation of the Utah Rules of Professional Conduct for an attorney to ask a law student to undertake research using the law student’s free account and in breach of the student’s contract with Lexis and/or Westlaw?

2. OPINION: A lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct.

3. BACKGROUND: Certain electronic research services such as WESTLAW and LEXIS allow law students access to their services. That access is given to further the student’s education. The student is required to sign an agreement that the services will be used only for educational or non-profit use.
Continue reading

Ethics Advisory Opinion No. 07-02

(Approved February 25, 1993)
Issue:
May an attorney give a “second opinion” on a legal matter, when approached by a non-client who is represented by counsel?

Opinion: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, “[i]n representing a client,” from “communicat[ing] about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter.” A lawyer does not violate the letter or purposes of this rule by rendering a second opinion on a legal matter, when the lawyer is not “representing a client” on the same subject. However, the lawyer should make every effort neither to impair the first attorney-client relationship nor to use the consultation as a means of soliciting the represented party.
Rationale: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, in representing a client, from communicating with a party the lawyer knows is represented by another lawyer in the matter, “unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The main thrust of this rule is “to prevent situations in which a represented party may be taken advantage of by adverse counsel; . . .”1 Of course, an attorney cannot give advice to an unrepresented person with the exception of suggesting that he or she seek counsel.2
A lawyer does not violate the letter or purposes of Rule 4.2 by rendering a second opinion to a represented party, when the lawyer is not “representing a client” in the same matter. Under its express terms, Rule 4.2 applies only to situations in which the lawyer is “representing a client” in making the communications. Moreover, the situation is not one “in which [the] represented party may be taken advantage of by adverse counsel; . . .”3 The Ethics Advisory Opinion Committee is, therefore, of the view that an attorney does not violate the Rules of Professional Conduct by rendering a second opinion, when the lawyer is not representing a client in the same matter.
This conclusion is supported by In re Mettler,4 where the Supreme Court of Oregon addressed the scope of DR7-104(A)(1), the predecessor to Rule 4.2. DR7-104(A) provided:
During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation . . . with a person he knows to be represented by a lawyer on that subject . . . .
The court concluded that the phrase “during the course of his representation of a client” acts “as a threshold requirement for unethical conduct” and that a lawyer, therefore, cannot violate the rule unless he or she communicates with a represented person in the course of representing a client.5
This conclusion is also consistent with the ethics advisory opinions of other jurisdictions. In 1987, Kentucky considered the issue and concluded that a lawyer may provide legal advice to a person who is represented by counsel and is seeking a second opinion. The opinion cautioned, however, that the lawyer must make every effort neither to impair the first relationship nor to use the consultation as a means of soliciting the client. The opinion also suggested that the lawyer should obtain the party’s consent to consult the first lawyer so that all significant facts can be taken into account in rendering the second opinion.6 In Philadelphia, a lawyer who is approached by a represented party may ask the party to review how his or her present lawyer is handling the case. However, the opinion advises lawyers to be prudent in questioning the represented parties and to exercise discretion in evaluating the work of other lawyers.7
The prudential concerns noted in these opinions, while not expressly addressed in the Rules of Professional Conduct, are consistent with the spirit of the rules as well as the candor, discretion, and fair dealing that should characterize the legal profession. As second opinions become more acceptable, a policy of disclosure to the first attorney could prevent undue influence or overreaching by the attorney rendering the second opinion. Further, an attorney may be able to give a better evaluation if he or she communicates with the first attorney as well as with the client. The purposes of Rule 4.2, however, are not served by restricting an individual’s ability to discuss his or her case with an attorney who is not connected with the matter.
Footnotes
1. Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P.2d 564, 567 (1984) (en banc) (construing Code of Professional Responsibility DR7-104(A)(1)).
2. Rules of Professional Conduct 4.3(a).
3. 691 P.2d at 567.
4. 305 Or. 12, 748 P.2d 1010 (1988).
5. Id. at 1011-12.
6. Kentucky Ethics Opinion No. 325 (1987).
7. Philadelphia, Pa., Bar Ethics Opinion No. 86-137.

Ethics Advisory Opinion No. 05-02

Issued April 28, 2005
1 Issue:
What is the ethical responsibility of an attorney serving as defense counsel in a criminal case, when expressly requested by the court at a sentencing hearing for information obtained from or about the defendant regarding the defendant’s prior convictions?

2 Opinion: An attorney may only answer such a query with the client’s informed consent. Otherwise, the attorney must respectfully decline to answer the court’s request in a manner that will not be misleading to the court. The attorney may respond by asserting the client’s right to remain silent, and the attorney’s ethical responsibilities or a by giving a similar explanation that does not disclose client confidences. 1
3 Facts: An attorney represents a defendant in a criminal case. At a sentencing hearing, the court requests information from the attorney regarding the defendant’s prior convictions. The attorney has obtained such information during the course of the representation from conducting an independent investigation or from a confidential communication with the client. After consultation, the client does not consent to the disclosure.
4 Applicable Rules:
Rule 1.6—Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.
(b) A lawyer may reveal such information to the extent that the lawyer believes necessary . . . . (4) To comply with the Rules of Professional Conduct or other law. 2
5 Rule 3.3—Candor Toward the Tribunal
(c) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. 3
6 Rule 8.4—Misconduct
It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration or justice . . . . 4
DISCUSSION
7 The issue touches on a fundamental aspect of the attorney-client relationship, namely, confidentiality. A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of all information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. 5 The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. 6
8 Information given to an attorney by a client, including the client’s name, address and telephone number, is confidential, and the attorney is prohibited from disclosing such information under Rule 1.6 unless the client consents after consultation. 7 Information provided by an accused to his attorney in an initial telephone conference is confidential, even as against a request for such information by law enforcement authorities seeking to apprehend the accused client. 8 A disclosure of information harmful to the client would be utterly inconsistent with the relationship of trust and confidence protected by Rule 1.6. Thus, Rule 1.6 9 precludes disclosure by the lawyer, whether voluntary or in response to an inquiry from the court, absent informed consent from the client.
9 Under Rule 1.6(a), a lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation. As indicated above, the client has not consented and, presumably, would not consent due to the potential adverse consequences from the disclosure. Here, the only possible exception to this rule is subpart (b)(4) which permits a lawyer to reveal information “to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law.”
10 Rule 3.3(a)(1) and (2) prohibit a lawyer from “knowingly making a false statement of material fact or law to a tribunal,” and from “failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” Rule 8.4 defines “professional misconduct” as a lawyer engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation” or to engaging in conduct that is “prejudicial to the administration of justice.” Arguably, in this situation, the attorney’s duty to the client under Rule 1.6 may conflict with the attorney’s duty to the court under Rule 3.3 and with the attorney’s duty to the administration of justice under Rule 8.4.
11 Attorneys also owe a duty of candor to the court, and they must maintain the respect due to courts of justice and to judicial officers. Thus, attorneys may not intentionally deceive a judge or intentionally provide misleading or deceiving information to a court. If a lawyer knows that his client has materially misled the court, the attorney may not remain silent and continue to represent the client, for doing so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court. 10
12 Rule 3.3 prohibits a lawyer from knowingly making a false statement of material fact or law to a tribunal, or from failing to disclose a material fact to a tribunal when disclosure is “necessary to avoid assisting a criminal or fraudulent act by the client.” Arguably, Rule 3.3 only applies to “false statements,” and to inactions which assist in the commission of a crime or fraudulent act by the client. Here, the attorney’s silence is not a “false statement,” except to the extent that the attorney knows that the silence is interpreted by the court as an affirmation that there is no prior criminal conviction, in which case the attorney is obligated to inform the court that silence is not intended as a statement of any kind and that it is not appropriate for the attorney to comment further.
13 In addition, silence by the advocate is not assisting the client to commit a criminal or fraudulent act, even though it may enable the client to avoid a more severe punishment for a criminal act. Thus, while Rule 3.3 creates an ethical obligation on the lawyer to not knowingly make a false statement to the tribunal about the defendant’s criminal record, it does not create an ethical obligation to affirmatively disclose confidential information that could harm the client. Rule 3.3, however, does prohibit a lawyer from making a statement that misleads the court or that is false, such as a statement here to the effect that the client has no prior convictions. Thus, the proper course of action for counsel is to decline to answer any such question that is posed by the court.
14 Finally, it is professional misconduct under Rule 8.4 for a lawyer to engage in conduct “involving dishonesty, fraud, deceit or misrepresentation” or to engage in conduct that is “prejudicial to the administration of justice.” Although the lawyer’s silence respecting the client’s prior criminal history could prevent the client from receiving a more appropriate sentence, the protection of confidential information by the lawyer is not dishonest, fraudulent, deceitful or a misrepresentation proscribed by Rule 8.4(c). The protection of the client’s confidential information does not prejudice the administration of justice. On the contrary, it advances the administration of justice.
15 For the foregoing reasons, in the absence of the client’s informed consent, the lawyer must not provide to the court information obtained from or about the defendant regarding prior convictions. Limited strictly to an approach that would be ethically satisfactory, we have concluded that the lawyer may properly (and tactfully) inform the judge that the lawyer’s ethical responsibilities under the Rules of Professional Conduct prevent him from providing such information, and that the failure to respond is not to be construed as indicating one way or another whether there are any convictions.
16 The lawyer’s approach, however, will necessarily depend on the specific circumstances. Inasmuch as the issue before us may well implicate the client’s substantive rights under the Fifth Amendment to the United States Constitution or Article 1, Section 12, of the Utah Constitution, the attorney is strongly advised to be fully aware of the current state of the law in this area and to proceed accordingly. 11 The client may have an absolute right to remain silent, with attendant benefits, in such situations. The lawyer may be required to exercise due care not to make any statement inconsistent with those rights, unless knowingly and intentionally waived by the client. As it is outside our purview, we have not analyzed this area of the law or opined as to what may be the most appropriate course of action with respect to constitutional principles.
Footnotes
1 The attorney’s approach may require being fully informed and conversant with respect to the client’s substantive rights under the Fifth Amendment to the United States Constitution and Article 1, Section 12, of the Utah Constitution. Mitchell v. United States, 526 U.S. 314 (1999). The Committee has made no attempt to analyze this substantive area of the law.
2 Utah Rules of Professional Conduct 1.6 (2004).
3 Id. Rule 3.3(a).
4 Id. Rule 8.4(c) & (d).
5 Id. Rule 1.6, cmt.
6 Id.
7 Utah Ethics Advisory Op. 97-04, 1997 WL 223850 (Utah St. Bar).
8 Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar).
9 See, e.g., Industrial Indemnity Co. v. Great American Ins. Co., 73 Cal. App. 3d, 529, 536 (1977).
10 Utah Ethics Advisory Op. 00-06, 2000 WL 1523292 (Utah St. Bar).
11 See note 1, supra.

04-04 – In litigation to enforce an oral contract allegedly made by a corporate defendant’s former employee

August 25, 2004

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

2 Answer: The contact with the former employee is not unethical. Utah Rules of Professional Conduct 4.2 (2004) does not bar a lawyer’s unauthorized contact with former employees of a represented corporate defendant except in very limited circumstances not applicable to this opinion.
3 Facts: A corporate defendant is represented by a lawyer in the defense of a claim based on an oral agreement allegedly made by a former employee of the corporate defendant while employed by the corporate defendant. The former employee was not a member of the “control group” as this term is defined in Utah Rules of Professional Conduct 4.2(c) (2) (2004), but the former employee did have authority to enter into contracts. The former employee is not separately represented by legal counsel with respect to the matter. We are asked whether the lawyer representing the corporate defendant represents the former employee with respect to the matter under Rule 4.2(c)(1)(B)(iii), thereby precluding plaintiff’s counsel from communicating with the former employee with respect to the matter without complying with Rule 4.2(a).
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Ethics Advisory Opinion No. 03-04

Issued October 14, 2003
¶1 Issue
: May a lawyer threaten to present criminal charges against an opposing party or witness during negotiations in a private civil matter?

¶2 Opinion: In the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, such a threat will be a violation of the Utah Rules of Professional Conduct if it constitutes “extortion,” if the lawyer does not have a reasonable belief that such charges are warranted by the law and the facts, or if it involves “abusive treatment” of a witness.
¶3 Background: This query arose when counsel, during a mediation, stated that the opposing party’s witness was in violation of Utah law and that the County Attorney’s office “would be interested” to learn of the alleged violation.
¶4 The Former Rule. Prior Disciplinary Rule 7-105 of the Model Code of Professional Responsibility barred a lawyer from using criminal charges to gain leverage in a civil action: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”1 The stated intent of DR 7-105 was to prevent lawyers from using the criminal justice system for oppressive purposes, and the rule set the boundaries of acceptable lawyer conduct clearly.
¶5 The drafters of the American Bar Association Model Rules of Professional Conduct (“Model Rules”), however, deliberately left out the provisions of DR 7-105. The rationale behind this omission was the drafters’ belief that “extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in the Model Rules and thus that there was no need to outlaw such threats specifically.”2 The prior rule was thought to be overbroad because it prohibited legitimate pressure tactics and negotiation strategies.3 The current Utah Rules of Professional Conduct also include no analog to DR 7-105, but instead prohibit a lawyer from using “means that have no substantial purpose other than to embarrass, delay or burden a third person”4 and from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . in conduct that is prejudicial to the administration of justice.”5
¶6 ABA Opinion 92-363: The American Bar Association addressed the permissibility of threats in 1992 in Formal Opinion 92-363 (“Opinion 363”). Opinion 363 concluded that a lawyer may use the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for the client, as long as the criminal and civil matters are related, the lawyer has a reasonable belief that threat is warranted by the law and the facts, and the lawyer does not suggest she possesses improper influence over the criminal process or try to exert such influence.6 Correspondingly, a lawyer may agree to refrain from presenting criminal charges as part of a settlement so long as the agreement does not violate applicable law.7
¶7 The same factors apply to threats against an opposing party’s witness. Opinion 363 notes that “abusive treatment” of witnesses may implicate Model Rule 4.4. Abusive treatment exists if the lawyer’s purpose in suggesting charges may be brought is merely to embarrass, delay or burden a third person. If, however, the lawyer has a well-founded belief that criminal charges related to the civil action may be justified, and the lawyer does not suggest the presence of improper influence over the criminal process, the conduct is not abusive.
¶8 Analysis: Given the deliberate omission of DR 7-105 from the current Model Rules and the reasoning of Opinion 363, we conclude that threats of possible criminal charges are sometimes permissible under the Utah Rules of Professional Conduct. As Hazard & Hodes explain:
In reality, many situations arise in which a lawyer’s communications on behalf of a client cannot avoid addressing conduct by another party that is both criminal and tortious. . . . An example is where a lawyer for a financial corporation must deal with an employee who has been discovered in embezzlement. . . . In these circumstances it is counterproductive to prohibit the lawyer from discussing with the employee, or the employee’s counsel, the possibilities [of having the employee pay back the money without the adverse publicity that a criminal trial would bring].8
Such threats, however, are subject to limitations on the manner with which an advocate may proceed.
¶9 Under the current rules, as with the old, behavior that is “extortionate” is impermissible,9 because extortion is a “crime that reflects adversely on a lawyer’s honesty.”10 Whether lawyer conduct is extortionate and qualifies as an ethical violation is to be determined by the facts on a case-by-case basis.11
¶10 For example, a 1993 New Hampshire case involved a lawyer being disciplined for such improper behavior. In that case, when a plaintiff’s civil rights lawyer publicly maligned city officials and threatened them with serious criminal charges, his behavior was found to be “decidedly intimidating” and “beyond the parameters of zealous advocacy.”12 An ethical violation also occurred when a plaintiff’s lawyer, on the eve of trial, sent a letter to defendant’s lawyer threatening to send the prosecutor’s office certain documents that could incriminate the defendant, her sister and other members of her family, unless the plaintiff was immediately paid for rent due.13
¶11 The possible criminal action must, moreover, be related to the current civil matter.14 This helps insure that a lawyer’s conduct does not compound another crime. The relatedness requirement also ensures that permissible negotiation will be focused on the merits of the civil litigation and that parties will not become distracted by unconnected matters.
¶12 The use of threats also implicates Utah Rules of Professional Conduct 3.1, 4.1, 4.4 and 8.4. A lawyer must conform to these rules when using the possibility of criminal prosecution as leverage. Rule 3.1, for example, prohibits a lawyer from asserting claims in court that are not meritorious. Rule 4.1 requires lawyers to be truthful in dealing with others on a client’s behalf, forbidding a lawyer from “knowingly” making a “false statement of material fact or law to a third person.” Accordingly, a lawyer violates Rule 4.1 if he threatens criminal prosecution where he knows the facts do not support such charges. Further, Rule 4.4 says, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Thus, an off-hand threat without any informed opinion that criminal charges are well-founded may violate Rule 4.4.
¶13 A lawyer who threatens criminal proceedings must be sure that both the present civil suit and the threat of criminal action are well-founded. The lawyer, therefore, can only threaten criminal prosecution in the good-faith belief that such prosecution may be warranted by the law and facts. While a lawyer in a civil action may not use the criminal justice system to make frivolous, patently untruthful or otherwise unjustified threats against an opposing witness, the threat of criminal charges that are warranted would not violate these rules.
¶14 Various provisions of Rule 8.4 also affect the permissibility of threats of criminal prosecution. A lawyer’s failure to report criminal wrongdoing may be unethical under Rule 8.4(b) if it facilitates another crime. More generally, under section (c) of Rule 8.4, it is professional misconduct for a lawyer to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Additionally, section (d) of the rule prohibits a lawyer from behaving in a manner that is “prejudicial to the administration of justice,” and section (e) says that a lawyer may not “state or imply an ability to influence improperly a government . . . official.” These provisions, also, prohibit the lawyer from dishonestly stating that another has committed a crime. Similarly, a lawyer is prohibited from suggesting that he can ensure that the prosecution or the court will act in a particular way if criminal charges are in fact considered.
¶15 Finally, although in certain circumstances it is ethically permissible for a lawyer to discuss both the civil and criminal implications of certain matters (e.g., embezzlement), this does not give a lawyer unfettered license to threaten parties or witnesses with criminal prosecution. In suggesting the possibility of criminal prosecution, a lawyer needs to be very careful not to violate ethical standards set forth in Rules 3.1, 4.1, 4.4 and 8.4, that the comments are not subject to being misinterpreted as attempted extortion, and that whatever is said about the possibility of criminal prosecution is directly related to the pending civil matter.
¶16 Conclusion. We adopt the position of a number of other states’ ethics committees15 and conclude that, in the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, a lawyer should use these tactics with a watchful eye on whether their use constitutes “extortion” under Utah Law, whether the lawyer reasonably believes that such charges are warranted by the law and the facts, and whether they involve “abusive treatment” of a witness.
Footnotes
1. The Model Code of Professional Responsibility governed Utah attorneys’ professional behavior until January 1988, when the Utah Supreme Court adopted a version of the ABA’s Model Rules of Professional Conduct.
2. C.W. WOLFRAM, MODERN LEGAL ETHICS § 13.5.5, at 718, citing ABA Model Rule 8.4, legal background note (Proposed Final Draft, May 30, 1981) (1986) (hereinafter “Wolfram”).
3. G.C. HAZARD & W.W. HODES, THE LAW OF LAWYERING § 40.4, at 40-7 (2003) (hereinafter, “Hazard & Hodes”).
4. Utah Rules of Professional Conduct 4.4 (2003).
5. Id. Rules 8.4(c) and (d).
6. See also ABA/BNA, Lawyers’ Manual on Professional Conduct § 1001:117 (1984).
7. The situation is somewhat different, however, when it involves threats against a party’s lawyer. Rule 8.3 imposes an affirmative duty of reporting when a lawyer has knowledge of another lawyer’s violation of the Rules of Professional Conduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness.”
8. Hazard & Hodes § 40.4, at 40-7 to 40-8 (2003). See Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992), permitting negotiations regarding embezzlement as described above.
9. See id. and Wolfram, supra note 1.
10. Utah Rules of Professional Conduct 8.4(b).
11. Utah Code Ann. § 76-6-406(2) defines “theft by extortion.” Our opinion here is limited to the ethical implications of a lawyer’s conduct. It is not our purview to render legal opinions about whether specific conduct may or may not cause a prosecutor to conclude that the conduct constitutes the crime of extortion under Utah law.
12. In re Robertson’s Case, 626 A.2d 397, 400 (N.H. 1993).
13. In re Office of Disciplinary Counsel v. King, 617 N.E.2d 676 (Ohio 1993).
14. See Kate A. Toomey, Practice Pointer: The Rule Against Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter. UTAH BAR J., Dec. 2002, at 12.
15. For example, in Opinion No. 1995-2, www.dsba.org/ethics95-2.pdf, the Delaware State Bar Commission on Professional Ethics held that a lawyer may threaten criminal charges to gain relief for a client in the administration of an estate matter. The charges must be related and be warranted by law and facts. Opinion 97-2 (1997) of the Ethics Commission of Alaska Bar Association, www.alaskabar. org/index.cfm?ID=4870, holds similarly. The West Virginia Committee on Legal Ethics found that a lawyer’s threat to press criminal charges against his client’s former employee unless he made restitution of embezzled funds was a legitimate negotiating technique. Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992).

Ethics Advisory Opinion No. 02-05

Issued March 18, 2002
¶ 1 Issue:
What are the ethical considerations for a governmental lawyer who participates in a lawful covert governmental operation, such as a law enforcement investigation of suspected illegal activity or an intelligence gathering activity, when the covert operation entails conduct employing dishonesty, fraud, misrepresentation or deceit?

¶ 2 Conclusion: A governmental lawyer who participates in a lawful covert governmental operation that entails conduct employing dishonesty, fraud, misrepresentation or deceit for the purpose of gathering relevant information does not, without more, violate the Rules of Professional Conduct.1
¶ 3 Background: A bar member who works for a federal agency that routinely performs undercover investigative work and covert actions directed against criminal and terrorist groups asks whether supervision of or participation in those activities violates Utah Rules of Professional Conduct 8.4(c), which states that: “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Similar issues are raised by federal and state prosecutors’ supervision of undercover criminal investigations.
¶ 4 Analysis: On its face, Rule 8.4(c) would seem to make it professional misconduct for a lawyer to engage in any kind of misrepresentation. However, the Official Comment to Rule 8.4 is read by some to restrict its range to a more limited scope of illegal conduct:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.”. . . Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category.
Relying on the Comment, commentators David Isbell and Lucantonio Salvi have concluded that Rule 8.4(c) is intended to “apply only to conduct of so grave a character as to call into question the lawyer’s fitness to practice law” and does not apply to deception by undercover investigators.2Furthermore, Congress, in its report on Abscam, indicated that “[i]n this era of increasingly powerful and sophisticated criminals, some use of the undercover technique is indispensable to the achievement of effective law enforcement.”3
¶ 5 Surprisingly, there is little authority bearing directly on the issue of whether Rule 8.4(c) applies to lawyer participation in lawful government covert operations. We are aware of no bar ethics opinions that have faced this question squarely.4A recent ABA opinion does hold that a lawyer’s recording of a conversation without the knowledge or consent of the other party does not necessarily violate the Model Rules.5It specifically reserves, however, the question presented here:
The Committee does not address in this opinion the application of the Model Rules to deceitful, but lawful conduct by lawyers, either directly or through supervision of the activities of agents and investigators, that often accompanies nonconsensual recording of conversations in investigations of criminal activity, discriminatory practices, and trademark infringement. We conclude that the mere act of secretly but lawfully recording a conversation inherently is not deceitful, and leave for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical.6
¶ 6 The ABA opinion does cite the Isbell and Salvi article as “discuss[ing the issue] thoughtfully.”7It also cites the discussion in Apple Corps. Ltd. v. International Collectors Society.8In that case, the plaintiffs suspected that the defendants were violating a consent order limiting the marketing or distribution of stamps bearing the image of The Beatles. In order to investigate, the suspected violations, counsel for the plaintiffs and others under their direction made phone calls posing as consumers.9When plaintiffs moved for contempt based on alleged violation of the consent order, defendants asked for sanctions against plaintiffs’ counsel, claiming, inter alia, a violation of New Jersey’s Rule 8.4(c).10 Relying largely on the Isbell and Salvi article, the court held that Rule “8.4(c) does not apply to misrepresentations solely as to identity of purpose and solely for evidence gathering purposes.”11 It reasoned:
Undercover agents in criminal cases and discrimination testers in civil cases, acting under the direction of lawyers, customarily dissemble as to their identities or purposes to gather evidence of wrongdoing. This conduct has not been condemned on ethical grounds by courts, ethics committees or grievance committees. This limited use of deception, to learn about ongoing acts of wrongdoing, is also accepted outside the area of criminal or civil rights law enforcement. The prevailing understanding in the legal profession is that a public or private lawyer’s use of an undercover investigator to detect ongoing violations of the law is not ethically proscribed, especially where it would be difficult to discover the violations by other means.12
¶ 7 The Oregon Supreme Court reached a different conclusion, however, in a recent opinion reviewing a disciplinary decision by the Oregon State Bar.13 The defendant in that case was accused of violating Oregon’s prohibition against dishonesty, fraud, deceit and misrepresentation (set forth in DR 1-102(A)(3)) by pretending to be a chiropractor in phone conversations for the purpose of gathering information about suspected fraud by a medical services review company. The accused (supported by the United States attorney, the Oregon Attorney General and others as amici curiae) argued that there should be an investigatory exception to the disciplinary rules for “‘misrepresentations . . . limited only to identity or purpose . . . made solely for the purposes of discovering information.’”14 Citing Apple Corps Ltd. and the Isbell and Salvi article, the court explained the rationale for an exception:
Those authorities assert that public policy favors an exception that, at the least, allows investigators and discrimination testers to misrepresent their identity and purpose when they are investigating persons who are suspected of engaging in unlawful conduct. The rationale for such an exception is that there may be no other way for investigators or discrimination testers to determine if a person who is suspected of unlawful conduct actually is engaged in unlawful conduct. Therefore, the argument goes, the public benefits more from allowing lawyers to use deception than allowing unlawful conduct to go unchecked.15
¶ 8 Relying on the plain language of its disciplinary rules, however, the Oregon court declined to find an exception. It concluded that it “should not create an exception to the rules by judicial decree” and that “any exception must await full debate that is contemplated by the process of adopting and amending the Code of Professional Responsibility.”16
¶ 9 “The Rules of Professional Conduct are rules of reason,” however, and “should be interpreted with reference to the purposes of legal representation and of the law itself.”17In light of the Official Comment to Rule 8.4(c) and longestablished practice at the time of its adoption, we do not believe that rule was intended to prohibit prosecutors or other governmental lawyers from participating in lawful undercover investigations.18Nor do we think a distinction should be drawn between prosecutors or other governmental lawyers who supervise the investigative activities of others and those who take part directly in such activities.19We hold that as long as a prosecutor’s or other governmental lawyer’s conduct employing dishonesty, fraud, deceit or misrepresentation is part of an otherwise lawful government operation, the prosecutor or other governmental lawyer does not violate Rule 8.4(c).
¶ 10 In our view, Rule 8.4(c) was intended to make subject to professional discipline only illegal conduct by a lawyer that brings into question the lawyer’s fitness to practice law. It was not intended to prevent state or federal prosecutors or other government lawyers from taking part in lawful, undercover investigations. We cannot, however, throw a cloak of approval over all lawyer conduct associated with an undercover investigation or “covert” operation. Further, a lawyer’s illegal conduct or conduct that infringes the constitutional rights of suspects or targets of an investigation might also bring into question the lawyer’s fitness to practice law in violation of Rule 8.4(c). The circumstances of such conduct would have to be considered on a case-by-case basis. Nor do we provide a license to ignore the Rules’ other prohibitions on misleading conduct.20We do hold, however, that a state or federal prosecutor’s or other governmental lawyer’s otherwise lawful participation in a lawful government operation does not violate Rule 8.4(c) based upon any dishonesty, fraud, deceit or misrepresentation required in the successful furtherance of that government operation.
Footnotes
1.We do not address in this opinion and specifically reserve the issue of whether the analysis and result of this opinion apply to a private lawyer’s investigative conduct that involves dishonesty, fraud, misrepresentation or deceit.
2.David B. Isbell and Lucantonio N. Salvi, Ethical Responsibility of Lawyers for Deception by Undercover Investigators and Discrimination Testers: An Analysis of the Provisions Prohibiting Misrepresentations Under the Model Rules of Professional Conduct, 8 Geo. J. Legal Ethics 791, 816 (1995).
3.See Select Committee to Study Undercover Activities of Components of the Department of Justice, 97th Cong., 2d Sess. 11 (1982), quoted in Shine, Note, Deception and Lawyers: Away From a Dogmatic Principle and Toward a Moral Understanding of Deception, 64 Notre Dame L. Rev. 722, 728-29 n. 26 (1989).
4.But see Ala. Bar Ass’n, Op. RO-89-31 (interpreting Model Code of Professional Responsibility DR 7-104(A)(1) and holding that it is permissible for a lawyer to direct an investigator to pose as a customer in order to determine whether the plaintiff lied about his injuries).
5.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 01-422 (2001).
6.Id. See also Utah Ethics Advisory Op. 69-04, 1996 WL 391435 (Utah St. Bar) (similar result).
7.Id.
8.15 F. Supp. 2d 456, 475-76 (D.N.J. 1998)
9.Id. at 458-59, 461-62.
10.New Jersey’s Rule 8.4(c) is parallel to Utah’s Rule 8.4(c).
11.Id. at 475.
12.Id. (citations omitted); see also Richardson v. Howard, 712 F.2d 319, 321-22 (7th Cir. 1983) (authorizing use of “testers” in housing discrimination cases); Hamilton v. Miller, 477 F.2d 908, 909 n.1 (10th Cir. 1973) (same); Fred C. Zacharias and Bruce A. Green, The Uniqueness of Federal Prosecutors, 88 Geo. L.J. 107, 231-32 (2000) (“Except with respect to surreptitious tape recording of conversations with witnesses, the reported decisions have never questioned the use of deceit in criminal investigations.”).
13.In re Gatti, 8 P.3d 966 (Ore. 2000).
14. Id. at 974.
15.Id. at 975 (citations omitted).
16.Id. at 976. In response to the decision in In re Gatti, the Oregon legislature passed HB 3857, signed into law on June 28, 2001, which authorizes prosecutors and other government lawyers to “participate in covert activities that are conducted by public bodies . . . for the purpose of enforcing laws, or in covert activities that are conducted by the federal government for the purpose of enforcing laws, even though the participation may require the use of deceit or misrepresentation.”
17.Utah Rules of Professional Conduct, Scope.
18.See also Official Comment to Utah Rule 4.2 (making specific approving reference to government undercover investigations). “. . . Also permitted are undercover activities directed at ongoing criminal activity, even if it is related to past criminal activity for which the person is represented by counsel.”
19.Some investigators, including many FBI agents, may be active members of the Bar.
20.See, e.g., Utah Rules of Professional Conduct 4.1(b) (prohibiting knowing failure “to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client”); Rule 4.3(b) (“In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply.

Ethics Advisory Opinion No. 99-06

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

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

Ethics Advisory Opinion No. 96-04

(Approved July 3, 1996)
Issue:
Is it unethical for an attorney, without prior disclosure to other parties to a telephone conversation, electronically or mechanically to record communications with clients, witnesses or other attorneys?

Opinion: Recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation.
Analysis: The full text of Utah State Bar Ethics Opinion No. 90, as approved on September 23, 1988, reads: “It is not unethical for an attorney to surreptitiously record by electronic or mechanical means communications with clients, witnesses or other attorneys.”5There is no discussion of the conclusion. The Utah State Bar Board of Bar Commissioners has requested that the Ethics Advisory Opinion Committee revisit this issue.
Having considered the issue in light of the Utah Rules of Professional Conduct, applicable Utah law and comments submitted by members of the Utah State Bar,6we have concluded that it is not per se unethical for an attorney to record such a conversation with a client, witness or other attorney without disclosure. This conclusion is consistent with Opinion No. 90. However, given the brevity and absence of explanation in Opinion No. 90, some may have been misled to the conclusion that recording conversations could never be unethical. Our Opinion should clarify the extent to which an attorney may tape-record conversations without exceeding ethical bounds.
Utah law makes clear that it is legal to record conversations to which a person is a party without prior disclosure to the other parties, unless it is done for a criminal or tortious purpose.7 The question of whether or not this action, when taken by a lawyer, is a violation of legal ethics has been the subject of opinions from ethics committees from many states, as well as the American Bar Association. Invariably these opinions have focused on provisions similar to Rule 8.4(c) of the Utah Rules of Professional conduct, which provides: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
A majority of states still follow ABA Formal Opinion 337, published in 1974, which found that it is generally unethical for lawyers to tape conversations secretly. That opinion may have been partially a reaction to then-current events-namely, the activities of various attorneys during the Watergate scandal. It leaves only a narrow exception for government prosecutors and gives no clearly reasoned basis for declaring that all other surreptitious tape recording of communications is unethical. The ABA based the prosecutor exception on the United States Supreme Court’s holding in United States v. White.8As the Mississippi Supreme Court has pointed out:
[T]he United States Supreme Court held [in White] that a government agent may constitutionally record any statement made by a criminal so long as the mere hearing of the statement by the agent would not violate the speaker’s justifiable expectations of privacy. Formal Op. 337 apparently sought to work around White by limiting its rationale to the context of criminal prosecutions. The distinction is ill founded, however, because even law-abiding citizens have limits on their justifiable expectations of privacy.9
We believe there is no reason to make a distinction between prosecuting attorneys and attorneys in other areas of practice.
As the White court stated, “[i]t is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a ‘reasonable’ investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an ‘unreasonable’ and unconstitutional search and seizure.”10The act of taking notes during a conversation or dictating a memo to the file regarding a conversation should not be considered differently from actually recording it within the limitations discussed in this Opinion.
One basis for allowing attorneys to record conversations is founded in the same reasoning as stated in White. “An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.”11An attorney’s ability to recall information from conversations is important to his competence in undertaking an action.12
The Mississippi Supreme Court has also established a “context-of-the-circumstances” test.13As the Mississippi court stated in Attorney M:
The categorical pronouncement of Formal Op. 337 . . . goes too far. Situations will arise where (surreptitious recording) is both necessary and proper. Under certain circumstances, . . . an attorney may be justified in making a . . . recording in order to protect himself or his client from the effects of future perjured testimony. On the other hand, an attorney who uses a secret recording for blackmail or to otherwise gain unfair advantage has clearly committed an unethical-if not illegal-act. Ethical complications arise not so much from . . . recordings per se as from the manner in which attorneys use them. The context-of-the-circumstances test contemplates this distinction, Formal Op. 337 does not.14
Privacy expectations are different in 1996 from what they were in 1974. As Stanley S. Arkin and the New York County Lawyers’ Association have pointed out, it is reasonable in today’s world to expect a conversation to be recorded, given the relative ease of the process. Apart from the basic reasoning that a lawyer needs to have an accurate means of preserving what is being told during the course of an important conversation, tape recorded conversations are becoming common-place. Arkin goes on to explain:
Technology has put the power to secretly tape record within the easy reach of every lawyer and litigant. Overall, the tape recorder, and its cousins-the hidden camera and the computer-allow outsiders to peer into and preserve aspects of life that were typically thought to be private and ephemeral. Hidden cameras in offices monitor the comings and goings of workers as well as their displays of affection and other personal matters. And tape recorders-the hidden kind-can be anywhere, recording words the speaker thought, and expected, were uttered in private. We may feel anonymous or alienated or alone, but increasingly we are subject to monitoring by technology.15
In light of this currently changing environment and the Utah statute, we do not find ABA Opinion 337 to be persuasive. Other bar opinions and some courts from various jurisdictions have begun to reflect this changing environment also. For example, the Mississippi Supreme Court held that, under certain circumstances, an attorney may tape a conversation with a potential party opponent without his knowledge or consent.16Some bar associations have also issued formal opinions holding that, under some circumstances with various limitations, surreptitious sound recording by an attorney of a conversation is permissible.17As stated by the New York County Lawyers’ Association: “The secret recording of a telephone conversation, where one party has consented, cannot be deceitful per se. Recording of telephone conversations is authorized under law, and either party should reasonably expect the possibility that the conversation may be recorded.”18
Some have expressed an intuitive feeling that the use of tape recorders by attorneys in this type of circumstance is “bush league” or “unseemly.” Although we do not condone deceptive, deceitful or fraudulent actions, we see no principled reason to find it to be unethical for an attorney, within the limits discussed elsewhere in this opinion, to tape-record a conversation when it is expressly permitted by Utah law for all other persons.
Nevertheless, a number of issues that have arisen in other jurisdictions illustrate circumstances where the act of undisclosed recording of a conversation by an attorney would violate an ethical rule.
For example, it would be unethical for an attorney to fail to answer candidly if asked whether the conversation is being recorded. In Mississippi Bar v. Attorney ST,19the Mississippi Supreme Court held that an attorney who taped conversations with a judge and a police chief while representing a client whose civil rights he believed were being abused was acting to protect his client’s interests and did not act unethically. However, when asked by the police chief if he was recording their conversation, the attorney denied so doing, and the court held that the attorney violated the Mississippi Rule of Professional Conduct 4.1, which requires that a lawyer be truthful when dealing with others on a client’s behalf. This violation warranted a private reprimand.20
The lawyer’s failure to identify himself, the client, or the purpose of the conversation could also constitute unethical misrepresentation. In In re An Anonymous Member of the South Carolina Bar,21an attorney representing a family member for the purpose of investigating an auto accident, telephoned the driver of the other vehicle, who was not represented by counsel, telling him that he was the injured driver’s cousin. He did not indicate that he was an attorney, and he secretly recorded the conversation.22The South Carolina Supreme Court found the attorney to be guilty of misconduct.23
When interacting with non-clients, attorneys must also be mindful of Rules 4.1 through 4.4, governing transactions with persons who are not clients. Specifically, Rule 4.4 provides: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violates the legal rights of such a person.” Similarly, under Rule 4.1, an attorney must not make false statements of material fact to a third person.
Within the guidelines of this Opinion, a lawyer will not violate the Rules of Professional Conduct by making an undisclosed recording of a telephone conversation to which the lawyer is a party.
Footnotes
5. For a chronology of events leading to the final version of Opinion No. 90 in September 1988, see Nathan B. Wilcox, Surreptitiously Tape-Recording Your Conversations with Witnesses, Clients, and Other Attorneys: Is It Legal and Ethical?, [Utah State Bar] Voir Dire, Summer 1995, at 32.
6.In the February 1996 issue of the Utah Bar Journal, members of the Bar were invited to comment on Ethics Opinion No. 90.
7.Utah Code Ann. § 77-23a-4(7)(b) (1995).
8.401 U.S. 745, 751 (1971).
9.Attorney M v. Mississippi Bar, 621 So. 2d 220, 223-24 (Miss. 1992).
10.White, 401 U.S. at 753.
11.Id.
12.See 621 So. 2d at 228 (concurring opinion).
13.Netterville v. Mississippi State Bar , 397 So. 2d 878, 883 (Miss. 1981).
14.621 So. 2d at 224.
15.Stanley S. Arkin, Attorneys, Tape Recorders & Perfidy, 211 N.Y.L.J. 3; N.Y. Co. Lawyers’ Comm. on Prof. Ethics, Op. 696 (1994).
16.See, e.g., Netterville v. Mississippi State Bar, 397 So. 2d 878 (Miss. 1981); Attorney M v. Mississippi Bar, 621 So. 2d 220 (Miss. 1992); Mississippi Bar v. Attorney ST , 621 So. 2d 229 (Miss. 1993).
17.See 32 A.L.R.5th 715, 721 (1994), citing to Ariz. State Bar, Op. No. 90-2; Idaho State Bar, Op. No. 130 (1990); Ky. Bar Assoc., Op. No. E-279 (1984); N.Y.C. Bar Assoc., Op. No. 80-95; Tenn. Bd. of Prof. Responsibility, Op. No. 81-F-14 (1986), 1981 WL 165069.
18.N.Y. Co. Lawyers’ Comm. On Prof. Ethics, Op. 696 (1994).
19.621 So. 2d 229 (Miss. 1993).
20.Id. at 232-33.
21.283 S.E.2d 667 (S.C. 1984).
22.See 32 A.L.R.5th 715, 724-25 (1994).
23.The court relied on ABA Formal Opinion 337 in its decision. While we do not support the conclusion of the ABA opinion, the behavior in Anonymous Member would also be found unethical under our Opinion.

Ethics Advisory Opinion No. 96-09

(Approved November 1, 1996)
Issue:
May an attorney recover attorney’s fees for a collection action pursued on behalf of the attorney’s partner?

Opinion: There is no prohibition against an attorney’s hiring another attorney to collect the debts of the first attorney, even though the two attorneys are in the same law firm. Whether the second attorney may collect attorney’s fees from the debtor is a question of law that the Committee has no authority to decide. If the debt is incurred in connection with legal services provided by the firm of the two lawyers, Utah case law clearly prohibits the recovery. Under other factual circumstances, such as a debt arising out of a lawyer’s non-legal, personal business, the matter would be judicially resolved, but the lawyer attempting to collect such fees has an ethical obligation under the Rules of Professional Conduct-particularly under Rule 3.3(a)(3)-not to mislead the court as to the attorney’s right to collect such fees.
Facts: An attorney seeks to collect a debt that is owed to him personally or to a law firm in which he participates. Under either statute or contract, the attorney-creditor is entitled to collect attorney’s fees in addition to the principal amount of the debt. The original request for this opinion did not state whether the debt was incurred in connection with the lawyer’s (or his firm’s) legal services or for non-legal-service obligations. The attorney wants to have another member of his firm pursue collection, of the debt. He postulates that such an arrangement would be genuine-that is, that the second attorney would indeed do the legal work involved in the collection and the first attorney would not participate. The request did not detail the firm’s financial arrangements for the treatment of firm revenues, payment of firm expenses and the like.
Analysis: Under Utah case law, a lawyer may not collect attorney’s fees in a pro se collection action, and a law firm may not collect attorney’s fees in a collection action in which the firm uses its own lawyers to collect debts of the firm.
In Smith v. Batchelor ,1the Utah Supreme Court held that, for public policy reasons, a pro se litigant should not recover statutorily authorized attorney’s fees, regardless of the litigant’s status as an attorney. More recently, in Jones, Waldo, Holbrook & McDonough v. Dawson,2the court held that a law firm does not “incur” legal fees to be collected when the firm uses its own lawyers to collect the firm’s debts and, therefore, cannot extract them from a debtor even when it is contractually or statutorily provided for.
While the Court’s rulings on these specific fact situations are clear, there are facts that could lead to a different outcome. For example, a lawyer could hire another lawyer in the same firm to collect a personal debt related to the first lawyer’s rental properties. In this case, the firm would not be using its own lawyers to collect on firm debts, as in Jones, Waldo. Still, the Ethics Advisory Opinion Committee cannot opine as to how the Utah Supreme Court’s rulings would be applied in any given factual circumstance different from those on which the Court has ruled in these Batchelor and Jones, Waldo.
Likewise, it is beyond our scope to render an opinion on whether collection of attorney’s fees for a partner’s personal, non-legal receivables would depend on the specific financial agreement of the partnership.3Yet another variation, for example, could involve a lawyer who hires another lawyer with whom he shares offices to collect legal fees owing to the first lawyer. Utah Ethics Advisory Opinion No. 34 imputes a partnership relationship for certain ethical considerations (such as conflicts) to some office-sharing arrangements, although the Rules and our ethics opinions do not dictate the financial arrangements under which partners must operate.
As we have indicated, the ultimate issue of whether recovery of attorney fees in fact situations that vary from those in Batchelor and Jones, Waldo is beyond the scope of the Committee’s jurisdiction. It is unethical, however, for an attorney or a law firm to engage in a sham transaction solely for the purpose of avoiding the rulings of the Utah Supreme Court or to mislead a court as to that transaction when seeking attorney’s fees. It would also be unethical to fail to disclose to the court when requesting attorney’s fees applicable legal decisions and the particular facts of the relationship between the attorneys.
Therefore, in pursuing recovery of such fees, an attorney should pay close attention to the following Rules of Professional Conduct:
* Rules 8.4(c) and (d)4prohibit an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or which is prejudicial to the administration of justice. An arrangement between the two attorneys involved that is a sham, designed to allow one to recover attorney’s fees in a pro se situation by using the other’s name would violate these rules.
* Rule 3.3(a)(1)5prohibits an attorney from making a false statement of material fact or law to a tribunal. A relationship between attorneys created solely to avoid the impact of Utah law may violate this rule.
* Rule 3.3(a)(3) prohibits an attorney from failing to disclose to the tribunal legal authority contrary to the client’s position. Even assuming there is no sham transaction between the two attorneys, the attorney seeking fees would be well advised to disclose the pertinent case law and explain the particular relationship between the two attorneys, especially in an office-sharing or partnership arrangement. Armed with the pertinent facts, the judge would then be in a position to apply the applicable rulings of the Utah Supreme Court.
In sum, there is no prohibition against one attorney hiring another attorney to collect debts. Whether the litigating attorney can collect attorney’s fees is a question of law not to be decided here. Attorneys should, however, be aware of the provisions of the Rules of Professional Conduct that prohibit behavior that could mislead the court as to the attorney’s right to collect these fees.
Footnotes
1.832 P.2d 467 (Utah 1992).
2.923 P.2d 1366 (Utah 1996).
3.Would it, for example, make a difference if each partner collected and retained her own fees, paying into a common fund for office expenses?
4.”It is professional misconduct for a lawyer to: . . . (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) Engage in conduct that is prejudicial to the administration of justice; . . .”
5.Rule 3.3(a): “A lawyer should not knowingly: (1) Make a false statement of material fact or law to a tribunal. . . . [or] (3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel . . . .”
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Ethics Advisory Opinion No. 95-01

(Approved January 27, 1995)
Issue:
Does the publication by a licensed attorney of a “How To” booklet on a legal subject matter violate the Rules of Professional Conduct?
Can the publishing lawyer limit his malpractice exposure by disclaimers placed in the booklet?

Opinion: Mere publication of a “How To” booklet does not violate the Rules of Professional Conduct; however, if the material proposed for publication contained gross distortions of law or fact, Rule 8.4 might proscribe its publication.
While disclaimers may be set forth in the materials, whether liability for malpractice exists is a matter of substantive law, not professional ethics.
Analysis: Publication of “How To” books and booklets on legal subject matters has been considered by the courts for several decades. Perhaps the most notable of these cases is the seminal case of New York County Lawyers’ Assoc. v. Dacey.1A threshold issue in these cases has been whether the publication of such materials constituted the practice of law (and, therefore, the unauthorized practice of law if the author were a layman). Courts, as in Dacey, have held that publication of “How To” books2does not constitute the practice of law for several reasons:
(a) Publication of a legal text that purports to say what the law is does not constitute the practice of law;
(b) Similarly, publication of forms for all kinds of legal situations is a common activity and not the practice of law;
(c) In the mere publication of forms or text, there is no personal contact or relationship to any particular individual, nor is personal advice given on a specific problem peculiar to a designated or readily identified person.3
Beyond the issue of the practice of law, the First and Fourteenth Amendments to the Constitution of the United States (dealing with freedom of speech and of the press and equal protection)4allow the publication and dissemination of materials not in violation of reasonable standards erected for the protection of society.5
Because the publication of “How To” books on legal subject matters is not the practice of law, the Rules of Professional Conduct would not proscribe publication. However, a lawyer publishing such materials would be bound by Rule 8.4, “Misconduct.” Publishing grossly erroneous or misleading materials could be considered “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of Rule 8.4(c) or “conduct that is prejudicial to the administration of justice” and, therefore, in violation of Rule 8.4(d).6
On the separate issue of whether disclaimers can limit a publishing attorney’s malpractice exposure, it is beyond the charge of this Committee to opine on what would be a matter of substantive law to be determined under the facts and circumstances of each case. It can be said, however, that there is no prohibition under the Rules for the insertion of disclaimers, subject to the caveats under Rule 8.4 discussed above.
Footnotes
1.283 N.Y.S.2d 984 (App. Div.), rev’d, 287 N.Y.S.2d 422 (1967).
2.The materials in Dacey purported to advise readers how to avoid probate. Subsequently, other courts have held that advertisement and sale by non-lawyers of so-called “Divorce Kits,” which include forms and instructions, do not constitute the unauthorized practice of law so long as no personalized legal advice is provided. See, e.g., In re William R. Thompson, 574 S.W.2d 365 (Mo. 1978); State Bar v. Kramer, 249 N.W.2d 1, 8-9 (Mich. 1976); Oregon State Bar v. Gilchrist, 538 P.2d 913, 916-19 (Or. 1975). See also People v. Landlord Prof. Servs., 264 Cal. Rptr. 548, 553 (Ct. App. 1989) (same result with respect to eviction and unlawful detainer forms and instructions).
3.Dacey, 283 N.Y.S.2d at 997-98.
4.U.S. Const. amends. I & XIV, § 1.
5.283 N.Y.S.2d at 1000-01.
6.The lawyer requesting this opinion formerly served as a law clerk for a Utah district court judge. Current and former judicial law clerks should also be aware that their statements and proprietary ventures may be subject to additional restrictions imposed, for example, by Utah Code of Judicial Admin. §§ 4-201 through -207, 7-201 through -203 (currently being revised subject to the Utah Governmental Records Access and Management Act, Utah Code Ann. §§ 63-2-101 et seq. (1993 & Supp. 1994)), Utah Code of Judicial Admin., ch. 12 (Code of Judicial Conduct); and the terms of employment imposed upon judicial law clerks by some courts regarding confidentiality and proprietary ventures.
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Rules, Opinions, & Policies
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