(Approved July 3, 1996)
Issue: May a lawyer choose a law-related charitable institution other than the Utah Bar Foundation to be the recipient of trust-account interest that is generated in such nominal amounts that it is impractical to pay them to individual clients?
Opinion: Because the Utah Supreme Court’s approval of the Utah State Bar’s “interest on lawyers’ trust accounts” (IOLTA) program is specifically limited to the Bar’s original proposal to dedicate small-interest amounts to the Utah State Bar Foundation, a lawyer who remits interest to a different charitable institution would violate Rule 1.15 of the Utah Rules of Professional Conduct unless the Court specifically authorizes another recipient. (more…)
(Approved October 28, 1994)
Issue: Do the Rules of Professional Conduct apply to the conduct of a lawyer who has been appointed by an insurance company as an “independent” appraiser of the property of an insured of the company, where the lawyer also provides legal services for the insurance company on unrelated matters?1
Opinion: The Rules of Professional Conduct apply to the provision of legal services and do not apply to the provision of non-legal services. If the lawyer makes a written disclosure to the insurance company and to the insured (1) that the lawyer represents the insurance company on unrelated matters; (2) that the lawyer’s retention by the insurance company as an “independent” appraiser is not a retention to perform legal services; and (3) that the retention does not create a client-lawyer relationship governed by the Rules of Professional Conduct and is not protected by the attorney-client privilege, the Rules of Professional Conduct do not apply to the engagement as an appraiser unless the lawyer also performs legal services. If the lawyer fails to make this disclosure, the Rules of Professional Conduct will apply to the extent the insurance company client or the insured are reasonably misled into believing that a lawyer-client relationship had been established between the insurance company and the lawyer for the provision of the appraisal services. (more…)
(Approved April 28, 1995)
This opinion addresses three related issues arising from a lawyer’s employment as a life insurance agent and by a financial planning company.
Issue No. 1: May a lawyer who is also a life insurance agent, in the course of selling life insurance products, suggest the need for estate planning and then perform legal services for the customer, if requested, where the customer initially did not contact the insurance agent for legal advice?
Opinion: (a) A lawyer who is employed for an insurance firm or who works as an insurance agent is restricted from soliciting legal services from insurance customers under Rule 7.3. (more…)
(Approved April 28, 1994)
Issues: May a law firm accept a court appointment to represent an indigent defendant in a re-trial of a criminal case in which an investigator who had been involved in the State’s investigation of the defendant and testified against the defendant at the first trial is now a full-time employee of the law firm?1
May a law firm represent other defendants in matters in which the investigator personally and substantially participated while employed with the State but in which the investigator will not be called as a State witness?
Opinion: A law firm must avoid representing a defendant in a case in which its investigator may be called as a State witness. In addition, in matters in which the investigator will not be a State witness, the law firm must screen the investigator from participation in any matter in which the investigator had substantial, personal involvement for the State. (more…)
(Approved March 10, 1994)
Issue: The Office of the Utah Attorney General has requested an advisory opinion concerning whether the rules of imputed disqualification apply to that office when it is fulfilling its duty of representing all state agencies, some of which may be adverse to each other on certain issues.
Opinion: In these circumstances, the conflict of interest rules apply only on an attorney-specific basis, and conflicts in the Office of the Utah Attorney General should not be imputed to all attorneys in that office. Nevertheless, the conflicts rules must be fully satisfied on an individual lawyer basis, and the Attorney General must ensure that attorneys with conflict problems are removed and screened from the particular representation at issue. (more…)
(Approved January 27, 1994)
Issue: May a law firm’s nonlawyer office administrator be compensated solely on the basis of a percentage of the gross income of the firm?
Opinion: Under Rule of Professional Conduct 5.4(a)(3), a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, which may be based upon a percentage of the net or gross income of the firm, so long as compensation is not tied to receipt of particular fees. The nonlawyer’s employment, however, must still comport with Rule 5.4(d), which prevents the nonlawyer from owning an interest in or controlling the activities of a law practice. (more…)
(Approved January 27, 1994)
Issue: May a currently practicing sole practitioner who formerly had associates or junior partners continue to use the firm name that includes the sole practitioner’s name followed by “& Associates”?
Opinion: A lawyer may not use “& Associates” as part of a firm name where no attorney associates are currently employed by that firm.
Analysis: Rule 7.5(a) of the Utah Rules of Professional Conduct provides, “A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.” Rule 7.1 provides:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: (more…)
(Approved July 29, 1993)
Issue:Can an advance payment made by a client ever be characterized as a “fixed fee” or “nonrefundable retainer”, which would be earned by the attorney when received and therefore not deposited into a trust account?
Opinion: Fixed-fee contracts (nonrefundable retainers) are not prohibited by Rule 1.5 of the Rules of Professional Conduct. Under appropriate conditions, a nonrefundable retainer may be considered earned when paid and, therefore, may be deposited into the attorney’s operating account rather than his trust account. However, a nonrefundable retainer is, like any other type of fee, subject to the standard of Rule 1.5 that an attorney “shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee.” As a result, although considered earned on payment, a nonrefundable retainer may be subject to disgorgement if it is clearly excessive under Rule 1.5. Furthermore, a fixed fee should be clearly set out in a written fee agreement that clearly informs the client of what circumstances would entitle him to a disgorgement of all or part of the “nonrefundable” retainer. (more…)
(Approved September 23, 1993)
Issue: In a contingent-fee case, what are the ethical considerations for a judgment-creditor’s attorney where the judgment-debtor agrees to name the judgment-creditor as the beneficiary of an insurance policy on the life of the judgment-debtor in order to satisfy the judgment?
Opinion: With proper written disclosure by the attorney of the terms, conditions and obligations of the participants, there is no ethical proscription of this type of arrangement.
Factual Background. The plaintiff retained the attorney on a contingent-fee basis. The plaintiff’s attorney obtained a judgment which, with interest, is worth approximately $40,000. The defendant, who is also represented by counsel, cannot pay the amount of the judgment. (more…)
(Approved August 26, 1993)
Issues: May an attorney who is leaving a law firm take, either to another law firm or to solo practice, the files and clients generated while the attorney was an employee or member of the law firm?
What duties does the departing attorney owe the law firm with respect to fees paid to the attorney by these clients for services performed subsequent to the attorney’s departure from the firm?
Opinion: When an attorney who is an employee or member of a law firm leaves the firm, he may take with him a client and the relevant legal files generated while at the firm, but only with the prior authorization of the client. (more…)
(Approved May 20, 1993)
Issue: May a Utah lawyer include on his letterhead the name of a non-lawyer employee with an indication that he is a certified public accountant (CPA)?
Opinion: An employee non-lawyer, such as a CPA, may be listed on the letterhead of a solo practitioner, partnership or firm so long as the designation is not false or misleading and contains a clear indication of the non-lawyer’s status.1
Discussion: The Rules of Professional Conduct do not specifically address this issue. Rule 7.5 regarding firm names and letterheads states in pertinent part: “A lawyer shall not use the firm name, letterhead or other professional designation that violates Rule 7.1.” (more…)
(Approved March 11, 1993)
Issues: The U.S. Supreme Court found that, in Nevada, a portion of Rule 3.6 of the Rules of Professional Conduct concerning trial publicity is void for vagueness. Does this result have any effect on the viability of Utah’s Rule of Professional Conduct 4.4, which proscribes certain lawyer communications and actions with respect to third persons?
Conclusion: No judicial decision applicable to Utah has addressed Rule 4.4 under a U. S. Constitutional analysis analogous to the U. S. Supreme Court’s decision in Gentile v. State Bar of Nevada.1 Accordingly, Utah attorneys remain bound by the ethical requirements of Rule 4.4. This Committee takes no position on the merits of a future challenge to Rule 4.4 that might be mounted on constitutional grounds or any other legal theory. (more…)
(Approved April 28, 1994)
Issues: May a lawyer make in-person solicitations of persons to join the lawyer in forming a citizens’ group that will be the nominal plaintiff in litigation, if the members of the citizens’ group will be requested to contribute funds for the payment of legal fees and the lawyer intends to serve as legal counsel for the citizens’ group in the litigation?
Does the lawyer, who has a personal interest in the outcome of the litigation, have an actual or potential conflict of interest in representing the citizens’ group.
Opinion: If a significant motive for the lawyer’s solicitation of members to the citizens’ group is the lawyer’s own pecuniary gain, the lawyer’s conduct would violate Rule 7.3(a) of the Utah Rules of Professional Conduct. However, if the citizens’ group is a bona fide association of persons commonly interested in the assertion of legal rights and is not a sham association formed by the lawyer to avoid the solicitation rules or an association so controlled or dominated by the lawyer that it was the alter ego of the lawyer, the lawyer’s solicitation of members to the group would be an associational activity protected by the First and Fourteenth Amendments of the United States Constitution and could not be proscribed by Rule 7.3(a). (more…)
(Approved January 27, 1994)
Issue: Under what circumstances may a city attorney represent criminal defendants?
Opinion: A city attorney with prosecutorial functions may not represent a criminal defense client in any jurisdiction. A city attorney with no prosecutorial functions, who has been appointed as city attorney pursuant to statute, may not represent a criminal defense client in that city, but may represent a criminal defense client in other jurisdictions, provided that Rule 1.7(a) of the Utah Rules of Professional Conduct is satisfied. An attorney with no prosecutorial functions, who is retained by a city on a contract or retainer basis, may represent a criminal defense client in any jurisdiction, provided that Rule 1.7(a) is satisfied. An attorney who is a partner or associate of a city attorney may not represent a criminal defense client in any situation where the city attorney is so prohibited. (more…)
(Approved October 28, 1994)
Issue: May an elected county attorney share and rent office space to another attorney who may represent interests adverse to the county?
Opinion: The Utah Rules of Professional Conduct do not prohibit one attorney from renting office space to another, provided that the arrangement does not create a conflict of interest prohibited by the Rules, does not jeopardize confidential client information, does not mislead clients about the relationship between the attorneys, and is otherwise consistent with the Rules.
Analysis: A county attorney maintains a private office in a different city from the main county offices. The office is used for county business and for a small private law practice of the county attorney. The attorney shares the office with another attorney, in exchange for rent and building maintenance. The two attorneys have separate signs and letterhead, separate client files (not accessible to the other attorney), and separate billing practices. The two attorneys do, however, share a secretary, common space, and telephone services. The renting attorney does not perform criminal defense work, but does represent a city within the county and other clients who may have interests in conflict with the interests of the county. (more…)