Ethics Advisory Opinion 15-02

Utah State Bar

Ethics Advisory Opinion Committee

Opinion Number 15-02

Issued February 10, 2015

 

PROPRIETY OF EX PARTE CONTACT WITH INDIVIDUALS WITHIN AN ORGANIZATION

ISSUE

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

 FACTS

2.  The query before the Committee relates to the issue of the propriety of an attorney making contact with a servant, agent, or employee of an organization which is potentially or is in fact involved in litigation, where the contacting attorney knows or has reason to know that the organization is represented by counsel.  The related question pertains to the same issue, except that the contact in question is with the organization’s in-house or corporate counsel.  Lastly, is it ethical for an attorney to send a copy of correspondence to an employee, the original of which is directed to opposing counsel for an organization?

 OPINION

3.  Communications, concerning the subject matter of anticipated, proposed or current litigation, are improper, if the individual being contacted is either (1) an employee of the target organization within the current “control group,” or (2) the individual’s acts, omissions or statements in the matter might be imputed to the opposing organization.  Contact with in-house counsel may be permissible, depending on the circumstances, as discussed below.

ANALYSIS

 4.  This opinion involves what has sometimes been referred to as the “no contact without consent” rule.  Utah Rules of Professional Conduct (URPC), Rule 4.2, Communication with Persons Represented by Counsel, states the general rule as follows:

(a) General Rule. In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.  Notwithstanding the foregoing, an attorney may, without such prior consent, communicate with another’s client if authorized to do so by any law, rule, or court order,[1] in which event the communication shall be strictly restricted to that allowed by the law, rule or court order, or as authorized by paragraphs (b), (c), (d) or (e) of this Rule.[2]

5.  As a general matter, subject to the exception that a lawyer may “communicate with another’s client if authorized to do so by any law, rule, or court order,” Rule 4.2 requires that a lawyer not communicate “about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.”  Rule 4.2(a) (emphasis added).  The Rule “applies to communications with any person who is represented by counsel concerning the matter to which the communication relates,” and “applies even though the represented person initiates or consents to the communication. A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule.”  Comment (3) and (4) to Rule 4.2.  Rule 4.2 is broadly consistent with the general rules set forth in § 99, A Represented Nonclient – The General Anti-Contact Rule, The Restatement (Third) of the Law Governing Lawyers; See also The Law of Lawyering, Hazard, Hodes & Jarvis, §§ 4.01 and 41.02.
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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.
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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.

For example, Westlaw limits the student’s use to “Educational Purposes.” That term means:
“If User is a career services personnel, Educational Purposes include Westlaw access and use solely for placement purposes. Any other use, including any use in connection with User’s employment outside of the Law School and any Student internship or externship, is prohibited. Notwithstanding the foregoing, User may, however, access Westlaw by means of User’s Law Student Password for purposes of unpaid public internships or externships (excluding those sponsored by a state or local government or a court. Any other use, including any use in connection with the employment or externship of User, if User is a student, is prohibited. . . )”
Lexis defines appropriate use as:
“Students may request access to LexisNexis using their Law School Education ID . . . for academic purposes. Academic purposes include, but are not limited to:
Research skill improvement, such as improving research efficiency and sharpening your area of law research skills as you prepare for practice
Summer School or course work
Work as a professor’s research assistant
Internship or externship for school credit
Study for the Bar Exam
“Academic purposes” do not include research conducted for a law firm, corporation, or other entity (other than a professor or law school) that is paying the student to conduct research, or that is passing along the cost of research to a third party. These are deemed “commercial purposes.” 1
Numerous students have reported that practicing attorneys have conditioned initial or continuing employment as a law clerk upon the student’s violation of the agreement with the research services. In other instances, lawyers have knowingly used information retrieved from the electronic services in violation of the student’s contractual agreement.

4. ANALYSIS: When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.
5. Rules of Professional Conduct, Rule 5.3 place obligations on a lawyer supervising non-lawyer assistants. A lawyer with supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Further, the lawyer violates ethical obligations if the lawyer orders or with knowledge of the specific conduct (misuse of the electronic services) ratifies conduct of the non-lawyer which would be a violation of the lawyer’s own ethical duties. Finally, it is a violation of Rule 5.3 if the lawyer knows of unethical conduct by the non-lawyer and does not take steps to avoid the misconduct or take reasonable remedial actions.
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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 (more…)

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. (more…)

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).
4 Analysis: In 1991, the ABA’s Committee on Ethics and Professional Responsibility addressed whether Model Rule 4.2 limits contacts with former employees. In ABA Formal Opinion 91-359 (1991), the ABA Committee concluded it does not. In pertinent part, the opinion provides:
While the Committee recognizes that persuasive policy arguments can be and have been made for extending the ambit of Model Rule 4.2 to cover some former corporate employers [sic], the fact remains that the text of the Rule does not do so and the comment gives no basis for concluding that such coverage was intended. Especially where, as here, the effect of the Rule is to inhibit the acquisition of information about one’s case, the Committee is loath, given the text of Model Rule 4.2 and its Comment, to expand its coverage to former employees by means of liberal interpretation.
Accordingly, it is the opinion of the Committee that a lawyer representing a client in a matter adverse to a corporate party that is represented by another lawyer may, without violating Model Rule 4.2, communicate about the subject of the representation with an unrepresented former employee of the corporate party without the consent of the corporation’s lawyer.
5 The only Utah court to have carefully considered this issue followed the ABA’s interpretation of Model Rule 4.2 at a time when Utah Rules of Professional Conduct 4.2 mirrored the Model Rule. In Shearson Lehman Bros., Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991), plaintiff’s counsel sought to interview 24 former bank tellers regarding bank practices during the time an employee allegedly fraudulently endorsed checks. The court held:
Today this court joins the ranks of those which have construed Rule 4.2 consistently with the position taken by the ABA Committee on Ethics and Professional Responsibility. Under this court’s rules of practice, Utah Rule of Professional Conduct 4.2 as well as ABA Model Rule 4.2 do not prohibit ex parte contact with the former employees of an organizational party that is represented by counsel.
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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. (more…)

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 (more…)

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 (more…)

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 (more…)

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. (more…)

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). (more…)