(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: (more…)
(Approved January 26,1996)
Issue: May a law partner of a part-time justice court judge represent criminal defendants in the judicial district in which the justice of the peace sits?
Facts: A and B are partners or associates of law firm X. A sits as a justice court judge on a part-time basis in the town of T. B’s practice involves representation of criminal defendants in the town of W (and perhaps several others) but not in the town of T. T and W are in the same Utah judicial district.
Analysis: First, it should be clear that B cannot appear before A. This would constitute “conduct that is prejudicial to the administration of justice”3and would surely result in A’s violation of the Code of Judicial Conduct.4 (more…)
(Approved April 28, 1995)
Issue: Is a private attorney who is a part-time city prosecutor for a city on a contract basis precluded from representing a defendant in a civil contempt proceeding?
Opinion: No. A city attorney with prosecutorial functions may represent a defendant in a civil contempt proceeding, provided the city is not a party to the proceeding.
Analysis: The Committee has previously addressed the issue of potential conflicts when a part-time or contract city attorney wishes to represent defendants in criminal cases in Ethics Advisory Opinion No. 126.1The analysis of that opinion provides a foundation for the civil-contempt question.
In Opinion No. 126, the Committee determined that: (more…)
(Approved April 28, 1995)
Issue: May a lawyer or a law firm enter a franchise agreement with a firm that provides marketing and other service arrangements?
Opinion: It is unethical for a lawyer or a law firm to enter into a franchise agreement when the franchisee is not in a partnership or professional corporation relationship with the franchisor.1
Analysis: This request was submitted by a solo practitioner who desires to enter a franchise arrangement with an out-of-state firm that provides a trade name, marketing and other service arrangements for franchisees. Because of the multiplicity of potential relationships or affiliations among law firms, this Opinion is limited to consideration of a “franchise” arrangement having as its essential element the marketing of legal services under a common trade name. We do not address the many issues that could arise if the franchisor had the ability through the agreement to prescribe methods and processes for the franchisee or otherwise affect the independent professional judgment of the lawyer.2We assume the franchise arrangement provides for lower operating costs without an impact on individual firm autonomy and that the relationship does not provide for a partnership or professional corporation arrangement between the franchisee and the franchisor. The franchisee firm and the franchisor firm will be marketed on letterhead, in law directories, etc., using a common trade name. (more…)
(Approved January 26, 1996)
Issue. What is the relationship between Rule of Professional Conduct 4.2 and a 1994 U.S. Department of Justice regulation purporting to authorize certain ex parte contacts with persons known to be represented by counsel?
Issue No. 2: Assuming that the Regulation does not constitute a “law” for purposes of Rule 4.2, under what conditions may a government lawyer make ex parte contact with persons known to be represented by counsel?
Issue No. 1: Is the definition of “represented party” in § 77.3(a) of the Regulation consistent with the definition of “party” in Rule 4.2 of the Utah Rules of Professional Conduct? In other words, does Rule 4.2 apply only to ex parte contacts with a party in an adversary proceeding. (more…)
(Approved July 28, 1995)
Issue: When an attorney has reason to believe a person who is not a client has abused a child and the information upon which the belief is based derives from the attorney’s representation of a client, may the attorney report the suspected abuse over the client’s objection if the attorney believes that making such a report is required by law?
Discussion: Rule 1.6 of the Utah Rules of Professional Conduct states in pertinent part:
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure. (more…)
(Approved September 22, 1995)
Issue: After the Utah Attorney General has represented a division of a state agency in an action the division has brought before a state disciplinary board and the division has adopted the recommendation of that board, may the Attorney General file and pursue an appeal in her own name or on behalf of the public at large to the head of the agency of which the division is a part?
Conclusion: Where no conflict with other constitutional or statutory provisions exists, the Attorney General retains common-law authority to protect what she perceives to be the public interest. Under the facts outlined below, the Attorney General may appeal the decision of a division of a state agency to the executive director of that agency, without violating the Utah Rules of Professional Conduct. (more…)
(Approved April 26, 1996)
Issue No. 1. May the same Utah guardian ad litem represent the interests of siblings?
Issue No. 2. If the same attorney guardian may not represent siblings of a represented child, may other attorney guardians within the same office represent the siblings?
Issue No. 3. May attorney guardians in other offices represent siblings of a represented child?
Issue No. 1. May the same attorney guardian ad litem represent the interests of siblings-for example, in neglect or abuse proceedings?
Issue No. 2. If the same attorney guardian may not represent siblings of a represented child, may other attorney guardians within the same office represent the siblings? (more…)