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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95-02A – 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?

(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
Second, an analysis of whether B can represent criminal defendants elsewhere requires an analysis of both ethical and statutory proscriptions.
The justice court is a creation of the Utah Constitution5with statutory limitations as to territorial and subject matter jurisdiction.6a By statute, it is not a court of record7and appeals are taken de novo to the circuit court of the county in which the justice court exists.8Thus the impact of a decision by a justice court judge is limited exclusively to the parties appearing before the court and is subject to independent review by a full-time judge on appeal.
In implementing this system of justice courts, the Legislature imposed certain limitations on the secondary legal employment of part-time justice court judges. These limitations are an exception to the general rule that full-time judges may not practice law.9The relevant statutory provision reads as follows:
A justice court judge may not appear as an attorney in any criminal matter in a federal, state, or justice court or appear as an attorney in any justice court or in any juvenile court case involving conduct which would be criminal if committed by an adult.10
A justice court judge who violates this restriction is subject to removal for willful misconduct in office.11
This statutory limit applies to the justice court judge, not to partners or associates. It is designed to protect the integrity of the justice court system, by avoiding any appearance of conflict of interest, and thus impropriety, on the part of the judge.
In contrast, the analysis of whether a partner or associate of a justice court judge may represent criminal defendants in the same jurisdiction must begin with the Utah Rules of Professional Conduct. The basic rule governing imputed disqualification is Rule 1.10, which provides that while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8(c), 1.9 or 2.2. The relevant question here is whether the justice court judge is prohibited by Rule 1.7 from representing criminal defendants; if so, partner or associate would be vicariously disqualified under Rule 1.10.
Rule 1.7(b) prohibits a lawyer from representation that might be materially limited by responsibilities to another client or by the lawyer’s own responsibilities, unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. The rule is designed to insure undivided loyalty on the part of the lawyer to his or her clients. The statutory prohibition of criminal defense work by justice court judges, however, is of a different order; it is designed to protect the justice court system from concerns about partisanship of judges. The barrier to criminal representation by justice court judges, therefore, is a matter of statutory design rather than legal ethics.
Because of the basis for disqualification of the justice court judge is the statute, rather than Rule 1.7, the disqualification is not imputed to the partner or associated by means of Rule 1.10.
This analysis does not, however, preclude the possibility that the partner or associate might be independently disqualified under Rule 1.7. If in the facts of a given case, the association with the justice court judge posed the possibility that the lawyer’s representation of the client might be materially limited, then the representation would be improper.
Finally, the analysis is not inconsistent with our conclusions in Opinion No. 126, which involved a conflicts analysis of a part-time city attorney’s representation of criminal defendants under Rule 1.7. That analysis concerned whether the attorney’s responsibilities to the city as client precluded the attorney’s representation of criminal defendants because of divided loyalties. In the case before us, it is not Rule 1.7, but the statutory scheme, which precludes the justice court judge from the representation.
Footnotes
1.This opinion amends and supersedes Opinion No. 95-02, previously approved on April 28, 1995.
2.The analysis and conclusion in this opinion apply equally to any lawyer practicing in the firm of the part-time justice court judge.
3.Utah rules of Professional Conduct Rule 8.4(d) (1990).
4.E.g., Utah Code of Judicial Conduct Canon 3.E(1)(b) (1994).
5.Utah Const. art. VIII § 1.
6.Utah Code Ann. §§ 78-5-103, -104 (1993).
7.Utah Const. art. VIII § 1; Utah Code Ann. § 78-5-101 (1989).
8.Utah Code Ann. § 78-5-120 (1989).
9.Utah Const. art. VII § 10
10.Utah Code Ann. § 78-5-128(3) (1995).
11.Utah Code Ann § 78-5-128(7) (1995).

Ethics Advisory Opinion No. 95-03

(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:
(1) A city attorney with prosecutorial functions may not represent a criminal defendant in any jurisdiction;
(2) A city attorney with no prosecutorial functions, who has been appointed as city attorney by 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;
(3) A city 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; and
(4) 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.
Although jail sentences are ordinarily associated with criminal proceedings, contempt sentences handed down by judges in civil cases do not carry the characteristics of a criminal prosecution in which lawyers representing a state or local government are involved. The Committee believes that the restrictions imposed by Opinion No. 126 do not apply in the civil context. The reasoning set out in Opinion No. 126 dealt with conflicts of interest in the nature of the attorney’s representation of persons whom he is by law obligated to prosecute. In addition, Opinion No. 126 reiterated the concerns of the Utah Supreme Court in State v. Brown2to the effect that the attorney’s client in such situations may be reluctant to confide fully in counsel known to be a prosecutor and that such representation would undermine the public’s confidence in the integrity of the criminal justice system.
None of those concerns exist in the situation of a civil matter, even if the attorney’s client stands the chance of being held in civil contempt and serving some jail time as a result. In general, civil contempt involves the disobedience to a court’s order in the course of a civil proceeding. There would, for example, be no chance that the attorney would be placed in the position of having to argue the unconstitutionality of a law he is, as the city’s attorney, obligated to enforce, nor would there be the concern that he would not be motivated to cross-examine police witnesses vigorously since police officers would likely not be involved as witnesses in civil contempt proceedings. In short, the public policy concerns expressed by the Utah Supreme Court in State v. Brown and by this Committee in Opinion No. 126 are not involved in civil proceedings. Furthermore, there is no evident conflict under Rule 1.73arising from a city attorney’s representation of a private client in a civil contempt proceeding-provided neither the city nor any other client of the attorney is a party to the civil proceeding.
Conclusion: A part-time or contract city attorney with prosecutorial functions is not disqualified under Rule 1.7 or Opinion No. 126 from representing a private client who is a defendant in a civil contempt proceeding, provided the city is not a party to the proceeding.
Footnotes
1.1994 WL 579846 (Jan. 27, 1994).
2.853 P.2d 851 (Utah 1992).
3.Utah Rules of Profession Conduct 1.7.

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

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

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

Ethics Advisory Opinion No. 95-05

(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.
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?

(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?
Introduction. On August 4, 1994, the United States Department of Justice (the “Department”) promulgated a regulation titled “Communications With Represented Persons” (the “Regulation”).1The Regulation authorizes Department attorneys during criminal and certain civil investigations to communicate with persons the attorney knows is represented in the matter by legal counsel without the prior authorization of the person’s counsel. Rule 4.2 of the Model Rules of Professional Conduct2does not generally permit ex parte contacts of this type. However, the Department contends that the Regulation constitutes “law” that permits these ex parte contacts under the “authorized by law” exception to the general rule. Even if the regulation is not a “law” under Rule 4.2, the Department intends that the Regulation preempt and supersede Rule 4.2.
The Committee has been asked (1) to analyze the scope of the term “party” in Rule 4.2 in connection with the Regulation and (2) to consider prosecutors’ ex parte communications under Rule 4.2 assuming that the Regulation is not “law” for purposes of the Rule. It is, therefore, beyond the scope of this opinion to address (a) whether the Regulation is, as a matter of law, a valid, authorized and duly promulgated substantive regulation or (b) whether the Regulation, if valid, authorized and duly promulgated, preempts and supersedes the Utah Rules of Professional Conduct under the Supremacy Clause of the U.S. Constitution.
Issue No. 1: The Regulation precludes ex parte contacts by Department of Justice lawyers with individuals who are targets of federal investigations only when the person is a “represented party,” i.e., a person who has been arrested or charged or is a defendant in a civil enforcement proceeding and is represented by counsel for the matter. Does the class of such “represented parties” coincide with the definition of “party” in Rule 4.2 of the Utah Rules of Professional Conduct?
Opinion: No. The word “party” in Rule 4.2 of the Utah Rules of Professional Conduct means a “party to a matter” for which legal representation has been obtained, not the more limited “party to a legal proceeding.” Subject to the exceptions stated in the rule, Rule 4.2 intends to restrict unauthorized ex parte contracts with any person who is represented by counsel concerning the matter in question, whether or not the person is a party to a formal legal proceeding. Therefore, Rule 4.2 restrictions are intended to apply to “represented persons,” with whom the Regulation would permit certain ex parte contacts.
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?
Opinion: Under certain specific factual circumstances, a government lawyer may make ex parte contacts with persons represented by counsel.
ANALYSIS
Background: Rule 4.2 of the Utah Rules of Professional Conduct provides as follows:
Communications with Person Represented by Counsel.
In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be 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.
In 1988, Rule 4.2 replaced DR 7-104(A)(1) of the Utah Code of Professional Responsibility,3which similarly had provided as follows:
Communications with One of Adverse Interest.
(A) 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 party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The corresponding Ethical Consideration EB 7-18 provided in part as follows:
The legal system in its broadest sense functions best when persons in need of legal advice or assistance are represented by their own counsel. For this reason a lawyer should not communicate on the subject matter of the representation of his client with a person he knows to be represented in the matter by a lawyer, unless pursuant to law or rule of court or unless he has the consent of the lawyer for that person.
The language in DR 7-104(A)(1) did not clearly reveal whether it applied only to adversarial relationships between litigants.4The heading of DR 7-104(A)(1) uses the phrase “Adverse Interest,” and the rule itself uses the word “party” along with the phrases “subject of the representation” and “in that matter.” The word “party” often refers to a participant in a legal proceeding.5Thus, because DR 7-104(A)(1) uses the word “party,” it arguably applies only to adverse litigants in a legal proceeding. In contrast, DR 7-104(A)(2), concerning communications with “a person who is not represented by a lawyer,” uses the word “person.”6
Several courts have interpreted DR 7-104(A)(1) to apply only after the formal initiation of adversarial proceedings. For example, these courts have held that, in criminal proceedings, prosecutors are not restricted by DR 7-104(A)(1) during investigations prior to any charge, arrest or indictment, even if the person contacted is a target of the criminal investigation.7
Other courts, however, have held that, although DR 7-104(A)(1) requires adversity between parties, it does not require participation in a formal legal proceeding. These courts have thus applied DR 7-104(A)(1) to prosecutor contacts with represented persons prior to charge, arrest or indictment. In United States v. Hammad,8 for example, the Second Circuit Court of Appeals held that pre-indictment contacts with represented persons that are the target of an investigation were within the ambit of DR 7-104(A)(1). Ultimately, however, the court found that certain investigative contacts were “authorized by law” and permitted by DR 7-104(A)(1).
The Department, concerned with the Hammad decision, feared that inconsistent interpretations of the ex parte contact rules promulgated by state bar associations would impair prosecutorial participation in pre-indictment investigations. Thus, on June 8, 1989, U.S. Attorney General Richard Thornburgh issued a memorandum to all Department litigators dealing with the subject of “Communications with Persons Represented by Counsel.” Referred to as the “Thornburgh Memorandum,” it authorized federal prosecutors, “in the course of authorized law enforcement activity,” to make certain unconsented ex parte contacts with persons who were the targets of federal investigations and who were known by the federal prosecutors to be represented by counsel in the matters being investigated.
The Thornburgh Memorandum stated that this activity (1) would be legal authorization under the “authorized by law” exception in Rule 4.2 and (2) would, in any event, control over state and local ethical rules under the Supremacy Clause of the United States Constitution.9The Thornburgh Memorandum generated considerable controversy,10 and in 1994 the Department officially promulgated the Regulation codified at 28 C.F.R. Pt. 77, purporting to accomplish the same result as the Thornburgh Memorandum.
Similar to the Thornburgh Memorandum, the Regulation authorizes certain lawyers employed by the Department, prior to charge, arrest or indictment, to make unconsented ex parte contacts with persons the attorney knows to be represented by counsel in the matter being investigated. Significantly, the Regulation distinguishes between a “represented party” and a “represented person.” A person is a “represented party” only if all three of the following circumstances exist: “(1) the person has retained counsel or accepted counsel by appointment or otherwise; (2) the representation is ongoing and concerns the subject matter in question; (3) the person has been arrested or charged in a federal criminal case or is a defendant in a civil law enforcement proceeding concerning the subject matter of the representation.”11
However, if the person has not yet been arrested or been charged in a federal criminal case or is not yet a defendant in a civil law enforcement proceeding,12then the person is considered a “represented person” if the first two conditions of a “represented party” are met (the person is represented by counsel concerning the subject matter in question.) The Regulation permits only limited ex parte contract with a “represented party” without the consent of that party’s counsel. However, the Regulation permits much greater ex parte contact with a “represented person.”13The Department intends the Regulation to identify communications that are “authorized by law” within the meaning of Rule 4.2 of the ABA Model Rules of Professional Conduct and DR 7-104(A)(1) of the ABA Model Code of Professional Responsibility.14Additionally, the Regulation purports to preempt a state’s local rules that relate to ex parte contacts by federal government with “represented parties” or “represented persons” in criminal and civil law enforcement investigations or proceedings.15
The Utah State Bar, concerned about potential conflicts between Utah Rule of Professional Conduct 4.2 and the Regulation, appointed an ad hoc committee consisting of government and private attorneys to study the Regulation. The committee has requested the Ethics Advisory Opinion Committee to render an opinion on two issues.
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.
Unlike DR 7-104(A)(1), Rule 4.2 and its comment clearly apply to contacts with any person who is represented in the matter in question. The word “party” in Rule 4.2 cannot be interpreted to mean “party to a legal proceeding.” Rule 4.2 is titled “Communication with Person Represented by Counsel.” Neither the title nor the rule itself refers to adversity or adverse interests. Additionally, the comment clarifies that “This Rule also covers any person, whether or not a party to a formal proceeding, who is represented by counsel concerning the matter in question.”16Thus, the word “party” in Rule 4.2 means a “party to the matter” that is the subject of the representation.17The “matter” need not be a formal proceeding, but may be any matter for which a person has sought legal representation.
This interpretation is consistent with the purposes behind Rule 4.2.18Rule 4.2 was enacted to “prevent lawyers from taking advantage of uncounseled lay persons and to preserve the integrity of the lawyer-client relationship.”19 Additionally, Rule 4.2 intended to protect the lawyer-client relationship against breach by a lawyer representing another.20Thus, any protection under Rule 4.2 should be applied to a person as soon as an attorney-client relationship is formed and not upon the filing of a complaint, charge or indictment or other commencement of a legal proceeding.21If Rule 4.2 applied only to litigants to a formal legal proceeding, transactional lawyers would, for example, be free to undermine the attorney-client relationship and use ex parte contact to form and document legal agreements.22
This interpretation of Rule 4.2 is supported by the leading commentators on the subject. Professor Wolfram has stated:
Although the matter is not entirely clear under the Code, probably DR 7-104(A)(1) and, clearly, MR 4.2 prohibit contact with any represented person, including those whose interests are apparently not adverse to the interests of an existing client of the lawyer. Any attempt to distinguish between adverse and nonadverse parties might invite attempts to obtain uncounseled concessions from a represented but uncounseled party at a time before the differing interests of the party become fully apparent.23
Finally, in partial response to this confusion over “party” v. “person,” the American Bar Association has recently amended Model Rule 4.2 to change the term “party” to “person.”24
Summary. Because Rule 4.2 addresses ex parte contacts with any represented person in the matter in question, the Regulation is not consistent with Rule 4.2. Thus, setting aside the issue of the authorized-by-law exception, a prosecutor would violate the Utah Rules of Professional Conduct if he made an ex parte contact, or caused another to make an ex parte contact,25with a person the prosecutor knew was represented by counsel in the matter being investigated unless the prosecutor obtained the consent of that person’s lawyer.
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?
The Regulation purports to authorize contacts that Utah’s Rule 4.2 would limit or forbid. Regulation Section 77.7, Represented Persons: Investigations, provides:
Except as otherwise provided in this part, an attorney for the government may communicate, or cause another to communicate with the represented person while in the process of conducting an investigation, including, but not limited to, an undercover investigation.26
The clear language of Rule 4.2 forbids a lawyer to communicate with a represented person on the subject matter of that representation. The Regulation’s purpose-to exempt Department of Justice lawyers from the ethical constraints of Rule 4.2 that all other attorneys remain bound to follow, including state and local prosecutors-has caused its share of controversy. The American Bar Association, in part prompted by the issuance of the Regulation by the Department of Justice, recently issued Formal Opinion 95-396,27 which addresses 10 separate issues on this subject, many of which detail the extent to which ex parte contacts can be made by a Department of Justice lawyer under Rule 4.2.28
In a criminal law setting, the stakes may be higher but the rules are the same.29 Because these rules affect law enforcement techniques, it has been suggested, with occasional success, that different answers are appropriate in the criminal law setting-particularly in the investigatory stages of a matter.30
Not all ex parte contacts by government lawyers of represented persons are forbidden under Rule 4.2.:
a. Ex Parte Contacts on a Different Subject Matter. A lawyer is not barred from communicating with a represented person on topics that are not the subject of the representation.31
b. Ex Parte Contacts Absent Knowledge. Absent knowledge of representation or the reasonable inference of knowledge of representation, the lawyer is not barred from communicating with a represented person.32
c. Ex Parte Contacts After Representation is Terminated. If the represented person declares that a representation is terminated or that he intends to terminate the representation, substantive discussion of the subject of the representation may occur after the lawyer obtains reasonable assurance that the representation has been in fact terminated.33
d. Ex Parte Contacts of Corporate Employees. In a corporate setting, the lawyer is limited in communicating with employees who have managerial responsibility in a corporation or other organization that is represented with respect to a particular matter, but this bar does not apply to other employees in the organization that have no authority to bind the organization.34
It is worth noting two areas where ex parte contact is generally not permitted:
a. Ex Parte Contacts Initiated by the Represented Person. If a person known to have been represented initiates the contact with the lawyer, the bar of Rule 4.2 is nonetheless present and it has been held that the client cannot waive it.35
b. Ex Parte Contacts in the Investigatory Stage of a Proceeding. Ex parte contact with a represented person in the investigatory stage of a case is generally forbidden even though exigent circumstances can be argued.36Rule 4.2 imposes the burden on the opposing counsel to use investigatory means other than direct contact with a represented person. However, there are a number of decisions that limit the applicability of Rule 4.2 in the preindictment, non-custodial setting.37Indeed, American Bar Association Formal Opinion 95-396 holds that, to the extent this precedent is good law, such decisional authority is “law” within the “authorized by law” exception of Rule 4.2. Nonetheless, other than decisions from the Utah judiciary on the subject, the Utah rules do not regard such rulings as “law” within the “authorized by law” exception of Rule 4.2.38
The Comment to Rule 4.2 of the Rules of Professional Conduct contains no evidence that Utah intended decisional law of the federal courts concerning DR 7-104(A)(1) or Rule 4.2 to constitute “law” within the meaning of the “authorized law” exception to Rule 4.2.39Contrast the decision in United States v. Lopez,40which was dictated by the comment to California Rule 2-100 that “applicable law also includes the authority of government prosecutors and investigators to conduct criminal investigations, as limited by the relevant decisional law.”41
Further, a lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer would be prohibited from doing so.42However, where the government lawyer is not directing the undercover operation that involves contacts with represented individuals with respect to the matter under investigation, it has been held that the predecessor to Rule 4.2 was not violated.43
Summary. If the Regulation does not constitute “law” under the “authorized by law” exception of Rule 4.2, government lawyers may, under certain specific circumstances detailed in this Opinion, make ex parte contacts with represented persons without violating Rule 4.2 of the Utah Rules of Professional Conduct.
Footnotes
1.28 C.F.R. Pt. 77 (1994).
2.Utah’s Rule 4.2 is identical to Rule 4.2 of the American Bar Association’s Model Rules of Professional Conduct (1983) prior to its recent amendment. See note Error! Bookmark not defined. and accompanying text.
3.DR 7-104(A)(1) of the Utah Code of Professional Responsibility and the American Bar Association Model Code of Professional Responsibility (1969) were identical.
4.While DR 7-104(A)(1) no longer governs lawyer conduct in Utah, it is still used in jurisdictions that have not adopted the Model Rules of Professional Conduct.
5.The Utah Rules of Civil Procedure and the Utah Rules of Evidence use the word “parties” to refer to litigants in a legal proceeding. However, Black’s Law Dictionary (rev. 4th ed.) defines “party” as follows: “A person concerned or having and taking part in any affair, matter, transaction, or proceedings, considered individually.”
6.”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 party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.” Model Code of Professional Responsibility, DR 7-104(A)(1). See, e.g., United States v. Ryan, 903 F.2d 731, 739 (10th Cir. 1990). Rule 4.2 of the Utah Rules of Professional Conduct also uses the word “party” in the text of the rule, while Rule 4.3 uses the word “person.”
7.These cases have taken the view the DR 7-104(A)(1) is coextensive with the accused’s Sixth Amendment right to counsel. They have reasoned that, prior to arrest or indictment, the contours of the “subject matter of the representation” are too uncertain for protection and are less susceptible to damage. See, e.g., Ryan, 903 F.2d at 739; United States v. Sutton, 801 F.2d 1346 (D.C. Cir. 1986); United States v. Dodds, 711 F.2d 84 (8th Cir. 1983); United States v. Fitterer, 710 F.2d 1328 (8th Cir. 1983); United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981); United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1974).
8.858 F.2d 834, 839 (2d Cir. 1988). See also United States v. Jamil, 546 F. Supp. 646, 653-54 (E.D.N.Y. 1982), rev’d on other grounds, 707 F.2d 638 (2d Cir. 1983).
9.U.S. Const. art VI, cl. 2.
10.In response to the Thornburgh Memorandum, the American Bar Association passed a resolution rejecting the Department of Justice’s attempt “unilaterally to exempt its lawyers from the professional conduct rules that apply to all lawyers under applicable rules of the jurisdictions in which they practice.” ABA House of Delegates Report No. 301 (approved Feb. 12-13, 1990).
11.28 C.F.R. § 77.3(a).
12.28 C.F.R. § 77.3(b).
13.Cf. 28 C.F.R. § 77.5 and 28 C.F.R. § 77.7. Attorney General Janet Reno added other restrictions in contacts by Justice Department attorneys with “represented persons” in the United States Attorneys’ Manual §§ 9-13.200 et seq. (Aug. 25, 1994). Even with these additional restrictions, Justice Department attorneys are permitted broader unconsented ex parte contact with a “represented person” than with a “represented party.”
14.28 C.F.R. § 77.12.
15.Id.
16.Utah Rules of Professional Conduct, Rule 4.2 cmt. The Comments to the Rules “are intended as guides to interpretation.” Id., “Scope.”
17.C.W. Wolfram, Modern Legal Ethics § 11.6.2, at 611 n.33 (1986). “The lawyerism party sometimes refers only to parties in litigation but evidently is here (in Rule 4.2 and DR 7-104(1)(A)) intended to refer broadly to any ‘person’ represented by a lawyer in the matter. Vide ‘party of the first part’ in ancient contracts.”
18.The Rules of Professional Conduct should be interpreted with reference “to the purposes of legal representation and of the law itself.”
19.Annotated Model Rules of Professional Conduct, Rule 4.2, at 424 (2d ed.). See United States v. Lopez, 4 F.3d 1455, 1459 (9th Cir. 1993) (“uncurbed communications with represented parties could have deleterious effects well beyond the context of the individual case, for our adversary system is premised upon functional lawyer-client relationships”).
20.Legislative History of the Model Rules, Rule 4.2, at 148.
21.Jamil, 54 F. Supp. at 653 (application of DR 7-104(A)(1) “depends upon the existence of the attorney-client relationship, not upon the existence of a pending lawsuit”).
22.Rule 4.2 applies to transactional lawyers as well as to litigators. It is noteworthy that the Regulation recognizes that, during the negotiation and documentation of agreements, unconsented ex parte contacts should not occur. See 28 C.F.R. § 77.8.
23.C.W. Wolfram, supra note 17, § 11.6.2, at 611 (emphasis in original). See also G.C. Hazzard Jr. and W.W. Hodes, The Law of Lawyering, § 4.2:105 at 733-34 (1993) (“[a] more realistic reading, and one more in keeping with the purpose of [Rule 4.2], would be to count as off limits any represented ‘party’ with whom a lawyer already has an adverse relationship of any kind”). While adversity may have been a requirement of DR 7-104(A)(1), it is not a requirement of Rule 4.2.
24.[21:1] ABA Litigation News 5 (Oct./Nov. 1995). The changes to Model Rule 4.2 also include an amendment to the comment that indicates the rule was intended to apply to government attorneys conducting investigations prior to the initiation of criminal or civil proceedings.
25.See Utah Rules of Professional Conduct 8.4(a).
26.28 C.F.R. Pt. 77.7.
27.American Bar Association, Committee on Ethics and Professional Responsibility, Formal Op. 95-396 (July 24, 1995) [hereinafter "ABA Op. 95-396"].
28.The questions framing this examination of the Rule are these: (1) Does Rule 4.2 apply to the conduct of lawyers in criminal as well as civil matters? (2) Does a represented “party,” under the Rule, mean only a person who is a formally designated party to an adjudicative proceeding, contract or negotiation, or does it apply more broadly to any person who is represented by counsel with respect to the matter that is the subject of the communication? (3) In the context of criminal investigations, does the prohibition apply differently before arrest or the filing of formal charges than it does after those event? (4) Does the prohibition apply if the communicating lawyer does not have definite knowledge that the person with whom she wishes to communicate is represented in the matter to be discussed? (5) What is the scope of the subject matter about which communication is prohibited? (6) May a lawyer representing a corporation or other organization bar communication with all employees of the organization by declaring a blanket representation of the organization and its employees? (7) May a lawyer communicate with a represented person absent consent of that person’s lawyer if that person initiates the contact? (8) May a lawyer communicate with a person known to have been represented in the matter to be discussed who states that she has terminated or intends to terminate the representation? (9) To what extent does the prohibition on a lawyer’s communicating with a represented person apply also to investigative agents acting under the direction of a lawyer? (10) What communications with represented person fall within the “authorized by law” exception of Rule 4.2?
29.State v. Morgan, 646 P.2d 1064 (Kan. 1982); ABA Op. 95-396 and citations at n.10.
30.United States v. Ryans, 903 F.2d 731 (10th Cir. 1990), cert. denied, 498 U.S. 855 (1990); United States v. Heinz, 983 F.2d 609 (5th Cir. 1993).
31.People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986); ABA Op. 95-396.
32.ABA Op. 95-396.
33.ABA Op. 95-396.
34.ABA Formal Opinion 95-396 reaffirms the corporate employees that may not be contacted are “[p]ersons having managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” See also Wright v. Group Health Hosp., 691 P.2d 564 (Wash. 1984).
35.United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993); ABA Op. 95-396; ABA Formal Opinion 108 (1934); but see People v. Rubanowitz, 688 P.2d 231 (Colo. 1984), where such contact was held not to violate the anti-contact rule.
36.United States v. Hammad, 858 F.2d 834 (2d Cir. 1988), cert. denied, 498 U.S. 871 (1990); United States v. Lopez, 765 F. Supp 1433 (N.D. Cal. 1991), rev’d on other grounds, 4 F.3d 1455 (9th Cir. 1993); Cronin v. Eighth Judicial Dist. Court, 781 P.2d 1150 (Nov. 1989); Utah Ethics Advisory Opinion No. 18 (February 23, 1974). An attorney may not send a copy of a letter that was sent to opposing counsel to the client on the need to answer interrogatories, even where the client may be uncooperative and the lawyer unable to control the client and the purpose of the letter was solely to get facts in a case.
37.United States v. Ryans, 903 F.2d 731 (10th Cir. 1990); United States v. Jamil, 707 F.2d 638 (2d Cir. 1983).
38.Rule 103-1(h) of the Local Rules of Practice of the United States District Court for the District of Utah requires attorneys appearing before the District Court to “comply with the Rules of Practice adopted by this court, and unless otherwise provided by these rules, with the Utah Rules of Professional Conduct, as revised and amended and as interpreted by this court.” Thus, for conduct within the purview of the United States District Court, it retains authority to interpret its rules and the Utah Supreme Court rules and any effect of the Regulation. This, of course, does not affect the authority of the Utah State Bar to make its own determination on the same conduct, if requested.
39.See In re Doe, 801 F. Supp. 478, 486 (D.N.M. 1992): “As an exception to the general rule, however, _authorized by law_ must be narrowly construed.”
40.4 F.3d 1455, 1461 (9th Cir. 1993)
41.But see United States v. Hammad, 858 F.2d 834, 840 (2d Cir. 1988): “[T]he use of informants by government prosecutors in a preindictment, non-custodial situation, absent the type of misconduct that occurred in this case, will generally fall within the ‘authorized by law’ exception to DR 7-104(A)(1) and therefore will not be subject to sanctions.”
42.Utah Rules of Professional Conduct 5.3 and 8.4. The lawyer supervising the investigator is responsible for the ex parte contacts of represented persons. An investigator cannot ethically make contacts the lawyer is barred from making. See also ABA Op. 95-396; ABA Op. 95 (1933).
43.Utah Rules of Professional Conduct 5.3 and 8.4; United States v. Jamil, 707 F.2d 638, 645-46 (2d Cir. 1983) (informant held not acting as alter ego of prosection); United States v. Lemonakis, 485 F.2d 941, 954-56 (D.C. Cir. 1973), cert. denied, 415 U.S. 989 (1974).

95-06 – 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

(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?

Conclusion: Yes.
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.
(b) A lawyer may reveal such information to the extent the lawyer believes necessary . . . . (4) [t]o comply with the Rules of Professional Conduct or other law.
Rule 1.6(a) embodies a tenet central to the practice of law: Information gathered in the course of representing a client shall be kept confidential unless and until the client waives the confidence. The requirement of confidentiality imposed by Rule 1.6(a), however, is subject to the exceptions set forth in Rule 1.6(b).
Rule 1.6(b)(4) provides that an attorney “may” reveal otherwise confidential information if the attorney “believes” such disclosure is required by law. “May” is permissive language, not mandatory, and defines areas in which the lawyer may exercise discretion.1 “Believes” refers to what the attorney actually supposes to be true, and such a belief may be based upon circumstantial evidence.2
Utah law provides that any person having reason to believe that a child has been abused or neglected “shall immediately notify” certain officials.3Thus, if an attorney believes a child has been abused or neglected, the attorney may notify certain officials of the attorney’s belief without violating the Utah Rules of Professional Conduct.
This opinion does not address whether the child abuse-reporting law or other statutes mandating disclosure of certain information,4may compel an attorney to reveal a client confidence in violation of the Utah Rules of Professional Conduct and the professional discretion recognized by those Rules. That issue requires determination of a legal duty, as opposed to an ethical duty. Its answer, therefore, lies beyond the purview of this Committee.5
Footnotes
1.Utah Rules of Professional Conduct, “Scope.”
2. Id., “Terminology.”
3.Utah Code Ann. § 62A-4a-403(1) (Supp. 1994).
4.See, e.g., Utah Code Ann. § 26-6-6 (1995) (duty to report persons suspected of having communicable disease to authorities).
5.The Comment to Rule 1.6 declares that a “presumption should exist” that other laws do not supersede the requirements of Rule 1.6. The prefatory section of the Rules entitled “Scope” further advises:
The fact that in exceptional situations the lawyer under the Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with the recognized exceptions to the client-lawyer and work product privileges.
The Scope, however, also warns that “nothing in the Rule[s] should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

95-07 – Whether or not the Attorney General, after representing a division of a state agency in an administrative action, may file and pursue and appeal in her own name or on behalf of the public at large to the head of the agency of which the divisio

(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.
Facts: Within a state administrative agency created by Utah statute (the Agency), there is a division that is responsible for the regulation of certain licensed professionals (the Division). Also as a part of the administrative agency, there is a state board (the Board) that conducts evidentiary hearings and renders recommendations to the Division affecting the rights of individuals whose professions are regulated by the Division. The Board’s recommendations may be affirmed, modified or rejected by the director of the Division within the Agency. The director’s decision constitutes the Division’s final order. The Division’s final order, in turn, may be appealed by the affected individual or other interested parties to the Agency’s executive director.
In this case, the Utah Attorney General represents and provides legal counsel to the Division. Her representation includes instituting proceedings before the Board on behalf of the Division.
In response to complaints filed with it, the Division instituted proceedings before the Board, seeking severe sanctions against an individual. The Division was represented at all times before the Board by an Assistant Attorney General. The Board ultimately recommended sanctions much less harsh than those sought by the Division. The Division director, however, adopted the Board’s recommendation as the Division’s final order. The Attorney General, in her own name and purportedly “on behalf of the public,” subsequently appealed the Division’s final order to the Agency’s executive director.
On appeal, an attorney employed by the Agency represented the Division. The Division’s attorney on appeal was not an employee of the Office of the Utah Attorney General.
Analysis: The Attorney General’s authority to act derives from three sources. The Utah Constitution declares that “The Attorney General shall be the legal advisor of State officers . . . .”1The Attorney General, therefore, enjoys constitutional authority to represent executive officers identified by Art. VII.2
Section 16 of Article VII also declares that the Attorney General “shall perform such other duties as provided by the law.” Accordingly, the Legislature has conferred broad authority upon the Attorney General to act as the State’s chief legal officer:
The Attorney General shall: (1) . . . prosecute or defend all causes to which the state, or any officer, board, or commission of the state in an official capacity is a party; and take charge, as attorney, of all civil legal matters in which the state is interested.3
Finally, to the extent that it does not conflict with her constitutional and statutory rights and obligations, the Utah Attorney General retains powers recognized in the common law.4The Attorney General’s common law authority includes filing actions she perceives as advancing the public interest.5
In private practice, the client typically defines the objectives of representation.6 The Utah Rules of Professional Conduct prohibit a private attorney from representing a client whose interests or objectives conflict with those of either the attorney’s current or former clients, unless the attorney strictly adheres to certain additional requirements.7These conflict-of-interest provisions certainly may also control the Attorney General’s conduct.8
A government attorney compelled by law to service different masters with varied interests, however, is likely to encounter conflicts of interest regularly.9The Utah Rules of Professional Conduct, in the prefatory section titled Scope, acknowledge these phenomena:
Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. . . . [Government lawyers] also may have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate any such authority.10
Which master should the Attorney General obey when the division renders a decision the Attorney General believes contravenes the public interest? The decision rests largely within the Attorney General’s discretion where, as here, she is vested with common-law authority. In Feeney v. Commonwealth,11the question posed above was certified to the Massachusetts high court by the United States Supreme Court. Initially, a state administrator and agency were named defendants in a suit challenging a statute’s constitutionality. The attorney general represented the defendants. The lower court ruled against the defendants. The defendants directed the attorney general to forego an appeal. The attorney general, against his client’s direction, appealed to the United States Supreme Court.12
Massachusetts, like Utah, grants its attorney general the authority to supervise all legal proceedings in which the state is interested. Similarly, the Massachusetts attorney general retains common law authority to represent the public interest.13The court in Feeney found that the attorney general is not merely an advocate for state agencies and officers. Rather, he is responsible for formulating the Commonwealth’s legal policy. The court also found that the attorney general “is not constrained by the parameters of the traditional attorney-client relationship.”14The court held:
Where, in his judgment, an appeal would further the interests of the Commonwealth and the public he represents, the Attorney General may prosecute an appeal to the Supreme Court of the United States from a judgment of the District Court over the expressed objections of the State officers he represents.15
While they involve issues not specifically raised or addressed by this opinion, numerous courts from other states have reached similar conclusions regarding the government attorney’s role. For example, the Alabama Supreme Court expressly addressed a claim that a government attorney had engaged in an unethical conflict of interest.16There, the court ultimately concluded that the attorney general was authorized by state and common law to seek dismissal of a state agency’s appeal of an unfavorable lower court ruling. The court reviewed numerous cases from other states addressing similar or analogous issues and concluded that the majority rule holds that an attorney general may intervene on behalf of the public interest in matters where he has no personal interest, even where such intervention runs counter to the direction of the client agencies.17
Factors may exist that would affect the Utah Attorney General’s ability to challenge the final order of her client, the Division, without violating the Utah Rules of Professional Conduct. For example, the Attorney General may have gained confidential information in the course of her representation of or association with the Division that she is now in a position to reveal through her appeal of the Division’s order. Likewise, her challenge to the Division’s final order might irreparably harm the attorney-client relationship existing pursuant to law between the Division and the Attorney General.18Because the request giving rise to this opinion omits mention of any such factors, they will not be addressed further.
Summary: Given the facts set forth above, the Utah Attorney General may appeal the final decision of the Division to the parent agency’s executive director without violating the Utah Rules of Professional Conduct.
Footnotes
1.UTAH CONST. art. VII, § 16.
2.Hansen v. Utah State Retirement Board, 652 P.2d 1332, 1336-37 (Utah 1982).
3.Utah Code Ann. § 67-5-1 (Supp. 1995). See also Utah Code Ann. § 67-5-3 (1993) (the Attorney General may render legal assistance to any state agency, division, board, etc.); Utah Code Ann. § 67-5-5 (1993) (absent constitutional or statutory authority, no agency shall hire outside counsel).
4.Utah Code Ann. § 68-3-1 (1993). E.g., State v. Robertson, 886 P.2d 85, 89-90 (Utah App. 1994); Hansen, 652 P.2d at 1337-38.
5.E.g., Robertson, 886 P.2d at 90, citing and quoting State v. Finch, 280 P. 910 (Kan. 1929); Hanson v. Barlow, 456 P.2d 177, 178-80 (Utah 1969).
6.Utah Rules of Professional Conduct 1.2(a).
7.Id. Rules 1.7, 1.9.
8.E.g., Manchin v. Browning, 296 S.E.2d 909 (W. Va. 1982); People v. Brown, 624 P.2d 1206 (Cal. 1981); see Charles W. Wolfram, Modern Legal Ethics § 8.9.1, at 448-49 (1986).
9.See Wolfram § 8.9.2, at 449-51 (government attorney roles may include advisor, advocate and policy maker; her clients may include entities, officers and the general public).
10.See also A.B.A. Model Rules of Professional Conduct, Scope (1991).
11.366 N.E.2d 1262 (Mass. 1977).
12.Id. at 1263-64.
13.Id. at 1265-66.
14.Id. at 1266.
15.Id. at 1267.
16.Ex parte Weaver, 570 So. 2d 675 (Ala. 1990).
17.Id. at 680-84, generally citing and discussing: Feeney v. Commonwealth, 366 N.E.2d 1262 (Mass. 1977); Connecticut Comm’n on Special Revenue v. Connecticut Freedom of Information Comm’n, 387 A.2d 533 (Conn. 1978); Allain v. Mississippi P.S.C., 418 So. 2d 779 (Miss. 1982); Martin v. Thornburg, 359 S.E.2d 472 (N.C. 1987); P.U.C. of Texas v. Cofer, 754 S.W.2d 121 (Tex. 1988).
18.See, e.g., Utah Rules of Professional Conduct 1.7, 1.9(b), 1.11; State v. Klattenhoff, 801 P.2d 548, 552 (Haw. 1990); People v. Brown, 624 P.2d 1206 (Cal. 1981).

Ethics Advisory Opinion No. 95-08

(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?
Issue No. 3. May attorney guardians in other offices represent siblings of a represented child?

(Approved April 26, 1996)
Issue No. 1. May the same Utah guardian ad litem represent the interests of siblings?
Opinion. There is no per se prohibition, and such representation is permissible where: (1) the interests of the siblings are not directly adverse, (2) the representation of one sibling will not materially limit the lawyer’s responsibilities to another sibling or adversely affect the lawyer’s representation of another sibling, and (3) it is not reasonably foreseeable that the lawyer will obtain confidential information relating to the representation of one sibling that might be used to the disadvantage of another sibling represented by the lawyer.
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?
Opinion. No.
Issue No. 3. May attorney guardians in other offices represent siblings of a represented child?
Opinion. No, except where (1) they have no opportunity to discuss the cases with each other, to access each other’s files, or to share confidential information in other respects, and (2) they are not subject to common direction, planning, or supervision with respect to the conduct of the case.
Introduction. The Ethics Advisory Opinion Committee has been asked to address certain legal ethics issues concerning representation by lawyers working for the Utah Office of the Guardian ad Litem. These questions must be answered in light of the statutory organization of the office and the special functions assigned to guardian ad litem attorneys by the Utah Legislature.1
In 1994, the Utah Legislature created the Office of Guardian ad Litem to oversee and manage guardian ad litem attorneys and volunteers in Utah’s eight judicial districts.2The office operates under the direct supervision of the Judicial Council3and is currently housed in the Administrative Office of the Courts.
The Director of the Office of the Guardian ad Litem is charged with (a) establishing policies and procedures for the management of the statewide guardian ad litem program; (b) ensuring that guardian ad litem legal services are provided in accordance with state and federal law and policy; (c) contracting with licensed attorneys to represent children in their respective judicial districts; (d) evaluating guardian ad litem attorneys; (e) developing, maintaining and monitoring training programs for guardian ad litem attorneys and volunteers in accordance with national standards;4and (f) submitting an annual report to the Judicial Council and the Legislative Interim Human Services Committee regarding the progress and effectiveness of the Guardian Ad Litem program.5
Since the creation of the Guardian ad Litem Office, the Director has been appointed and separate guardian ad litem offices have been established in each judicial district. Attorneys in the First, Fifth, Sixth, Seventh and Eighth Districts work under the direct supervision of the Director. Attorneys in the Second, Third and Fourth Districts report to the respective office’s lead attorney, who is designated by the Director. The district offices maintain separate filing and computer systems and do not share case information. However, the Director may access all files and computer systems and regularly checks on attorneys’ work to assure that they are meeting the established standards and requirements. Attorneys in the separate offices meet together for quarterly training programs. Interaction among attorneys in the different offices occurs on this limited basis. In addition, the Director has full discretion in hiring and dismissing guardian attorneys in all offices throughout the state.
Pursuant to statute, guardian ad litem attorneys in the Second, Third and Fourth Districts devote their entire practices to providing guardianship services. Guardian ad litem attorneys in the other districts may contract to provide their services on a part-time basis.6All guardian ad litem offices and staff are funded and maintained by the State under the budget for the juvenile court.7 Guardian ad litem attorneys are considered to be at-will employees of the Utah State Courts and receive state employee benefits.8
Under the statutory scheme, guardian ad litem attorneys are appointed to represent “the best interest of each child” named in juvenile court petitions alleging abuse, neglect or dependency filed in the juvenile court.9In fulfilling this representation, attorney guardians must conduct independent investigations of the child’s situation; meet with the child to determine the child’s goals and concerns regarding the proceedings; and formulate a plan regarding assessment, placement, and provision of services for the child. The guardian must represent the child at every stage of the proceeding, at all times promoting the best interests of the child. In addition to presenting the court with a determination of the child’s best interest, the guardian must also communicate the child’s wishes to the court. Thus, the guardian plays a special role for an attorney. Under normal circumstances, an attorney would be prohibited from asserting a position different from the wishes of the client.10However, the guardianship statute specifically provides that “A difference between the child’s wishes and the attorney’s determination of best interest shall not be considered a conflict of interest for the attorney.”11
Several additional ethical aspects of the guardian’s role are also addressed explicitly by the statute. The guardian is charged to keep the child informed of the status of the case, to the extent it would not be detrimental to the child for the guardian to do so.12Communications from the child to the guardian, as well as records of the guardian, are confidential but are subject to legislative subpoena, and such subpoenas are exceptions to the attorney’s duty of confidentiality.13
Issue No. 1. May the same attorney guardian ad litem represent the interests of siblings-for example, in neglect or abuse proceedings?14
Opinion. Under a conflicts analysis of Rule 1.7 of the Utah Rules of Professional Conduct, there is no per se prohibition, and such a representation is permissible where: (1) the interests of the siblings are not directly adverse, (2) the representation of one sibling will not materially limit the lawyer’s responsibilities to another sibling or adversely affect the lawyer’s representation of another sibling, and (3) it is not reasonably foreseeable that the lawyer will obtain confidential information relating to the representation of one sibling that might be used to the disadvantage of another sibling represented by the lawyer.15
Analysis. Utah Rule of Professional Conduct 1.7(a) states that a lawyer shall not represent multiple clients when their interests are directly adverse unless the lawyer reasonably believes the representation of one client will not adversely affect the lawyer’s relationship with another client and each client consents after consultation. There are circumstances in neglect or abuse proceedings in which representation of one sibling would be directly adverse to representation of another. An example would be a situation in which one sibling is being investigated for abuse of another sibling. Another example would be a situation in which it is in the best interest of one sibling to be placed alone, but it is in the best interest of another sibling that siblings be placed together. In such clear instances of directly adverse interests among siblings, a lawyer could not reasonably believe that joint representation would be proper, and the lawyer would be directly prohibited from the joint representation by Rule 1.7(a).
In some circumstances involving adverse interests among siblings, a lawyer might conclude that the representation of one sibling would not adversely affect the lawyer’s relationship with a sibling. However reasonable such a conclusion might be in certain cases, Rule 1.7(a) would still forbid simultaneous and directly adverse representation involving a minor sibling, because minors are incapable of giving effective consent.16
Utah Rule of Professional Conduct 1.7(b) also forbids representation when the representation of one client might be materially limited by the representation of another client, even though the two clients’ interests are not directly adverse, unless the client consents after consultation and the attorney reasonably believes that the representation will not be adversely affected. In cases where the representation of the best interests of one minor sibling might be materially limited by the best interests of another minor sibling, Rule 1.7(b) would forbid simultaneous representation. As with the analysis of Rule 1.7(a), regardless of the lawyer’s assessment of the circumstances, a minor sibling is incapable of giving effective consent to the simultaneous representation.
If the circumstances of a particular case are such that (a) representation of one sibling will not materially limit the lawyer’s representation of another sibling, (b) the lawyer reasonably believes the representation of one sibling will not adversely affect the other, and (c) the interests of the siblings are not directly adverse, the lawyer might conclude that Rule 1.7(b) permits simultaneous representation of the siblings.
However, representation of minor siblings by attorney guardians ad litem presents special problems where the lawyer obtains confidential information that cannot be used or revealed. The attorney guardian ad litem is required by statute to interview the child personally, if the child is old enough to communicate, and determine the child’s goals and concerns regarding placement.17In such an interview, the attorney guardian ad litem will obtain confidential information that is subject to the attorney-client privilege. Even if the child is not old enough to communicate, the attorney guardian ad litem has access to confidential client information.18
Utah Rule of Professional Conduct 1.8(b) prohibits an attorney from using information relating to the representation of a client to the disadvantage of the client unless the client consents after consultation. Rule 1.6(a) prohibits an attorney from revealing information relating to the representation of a client (except in narrowly defined circumstances, including where the lawyer must reveal information to comply with “other law”19), unless the client consents after disclosure. Once again, a minor cannot give effective consent.
In many situations an attorney guardian ad litem could not obtain the information necessary to make the appropriate determinations under Rule 1.7(a) and 1.7(b) without thereby being disqualified in the event that the interests of one sibling required use of confidential information obtained from the other. For example, one sibling might reveal details about abuse or neglect that could be used against the interests of another sibling. An attorney guardian ad litem who interviewed each of the siblings would then have confidences obtained from one sibling that might need to be revealed in the interests of representing another sibling, thus disqualifying the attorney guardian ad litem from representing either sibling. Because the siblings are minors incapable of giving effective consent, the attorney’s disqualification could not be cured by consent.
Confidential information will be obtained in nearly every, if not every, case of neglect or abuse. Furthermore, the interests of siblings in matters such as custody and care are not always identical and by statute must be evaluated and represented individually.20 Accordingly, the potential for disqualification of an attorney who is investigating the potential representation of more than one sibling is high.
There may be cases where, without obtaining confidential information, (1) the lawyer can reasonably determine that it is not foreseeable that representation of one sibling could materially limit the lawyer’s representation of another sibling, (2) the lawyer can reasonably believe that the representation of one sibling will not adversely affect the other, and (3) the lawyer can determine that the interests of the siblings are not directly adverse. In such a case, Rule 1.7(b) would permit simultaneous representation of the siblings, and rules barring use of confidential information would not apply. One can imagine a case, for example, involving siblings too young to share confidences, where the lawyer guardian ad litem could represent both. However, even in such a case, the lawyer would have to determine that the representation could not later become inappropriate, such as where the representation may continue (or resume) after an age when the siblings could share confidences with the lawyer.
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?
Opinion. No.
Analysis. Under Utah Rule of Professional Conduct 1.10, if one attorney is disqualified by Rule 1.7, attorneys in the same firm are also disqualified. The Comment to rule 1.10 indicates that lawyers employed in the same office of a legal service organization are to be regarded as a firm for the purposes of Rule 1.10. Because such lawyers have access to common files and have the opportunity to discuss cases with each other within the office, protection of confidential information cannot be assured. Attorney guardians within the same office, like legal service attorneys, have the opportunity to discuss cases with each other and to access common files. They are also subject to the common supervision of the lead attorney if the office. Thus, if an attorney guardian may not represent siblings, attorney guardians within the same office also are disqualified from the representation.
Issue No. 3. May attorney guardians in other offices represent siblings of a represented child?
Opinion. No, except where (1) they have no opportunity to discuss the cases with each other, to access each other’s files, or to share confidential information in other respects, and (2) they are not subject to common direction, planning, or supervision with respect to the conduct of the case.
Analysis. The Comment to rule 1.10 indicates that whether lawyers in separate offices of legal services organizations are to be regarded as a firm should be determined on a case-by-case basis. Crucial to the inquiry are the specific facts of the situation and the purpose of the rule involved. In requiring vicarious disqualification, Rule 1.10 seeks to assure loyalty and the protection of confidential information.
Loyalty requires that the lawyer act as a fiduciary for the client. If the lawyers in different guardian offices are subject to common direction, planning, or supervision in their representation of siblings, there is the potential for dilution of loyalty. Common management risks compromise of the interests of one sibling in the interests of other siblings or of overall office policies. As it is presently structured, the Office of the Guardian ad Litem does pose risks to loyalty from common management. All district offices report to the Director, who has full discretion in hiring and firing guardian attorneys. Although the Director does not manage specific cases, the Director has access to the files of all the offices, and could give common direction in any given case.
Protection of confidentiality requires that lawyers not have access to confidential information about each others’ clients. If attorney guardians in different offices do have such common access, they would be regarded as a “firm” for the purposes of Rule 1.10. As it is presently structured, the Office of the Guardian ad Litem does not guarantee protection against the transfer of confidential information. The Director has access to the files, including confidential information about all cases. Information about individual cases might also be shared by attorneys at their quarterly training sessions.
Thus, if the separate locations of the Office of the Guardian ad Litem are subject to common case management, or have access to confidential information, they are to be regarded as a single firm for purposes of Rule 1.10. If attorney guardians in the separate offices manage their cases independently so that loyalty is not put at risk, if the hiring and termination decisions in the individual offices are not made at the sole discretion of the state Director, and if there is no opportunity to share confidential information, it would be proper for them to represent siblings when simultaneous representation would be improper for one guardian attorney.
Footnotes
1.This opinion is founded on the Utah Rules of Professional Conduct in effect on the date of issuance. It does not address the potentially conflicting results that a pending proposal to amend Rule 4-906 of the Code of Judicial Administration would create. See note 14, infra.
2.Utah Code Ann. § 78-3a-44.6 (Supp. 1995).
3.Id. § 78-3a-44.6(1).
4.National standards are developed by the National Court Appointed Special Advocate Association, 272 Eastlake Ave.., E. Suite 220, Seattle, Washington 98102.
5.Utah Code Ann. § 78-3a-44.6(3) (Supp. 1995).
6.Utah Code Ann. § 78-3a-44.6(2)(c) (Supp. 1995).
7.Id. § 78-3a-44.5(2).
8.Form contract for guardian ad litem services provided by the Office of Guardian ad Litem Director.
9.Utah Code Ann. § 78-3a-44.5(2) (Supp. 1995).
10.Utah Rule of Professional Conduct 1.2(a) provides as follows: “A lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.”
11.Utah Code Ann. § 78-3a-44.5(8)(a) (Supp. 1995).
12.Id. § 78-3a-44.5(3)(u).
13.Id. §§ 78-31-44.5(b), (d).
14.Although the original request asked specifically about joint representation of siblings, the analysis in this opinion applies equally well to other children that might be involved, such as cousins and grandchildren living in the same household.
15.This conclusion, based on the Utah Rules of Professional Conduct, is in conflict with a pending proposal to amend Rule 4-906(5)(A) of the Utah Code of Judicial Administration: “Upon a finding that a conflict of interest exists, the court shall relieve the guardian ad litem from further duties in that case and appoint an alternate guardian, which may be a guardian ad litem employed by the Administrative Office of the Courts in that or another judicial district.” (Proposed new language italicized.) The Committee takes no position on the resolution of the conflict, should it materialize.
16.In the Utah Judicial Code, which includes the statutes that create the Office of Guardian ad Litem Director and provides for the appointment of an attorney guardian ad litem in cases of abuse, neglect or dependency, a “child” means “a person less than 18 years of age.” Utah Code Ann. § 78-3a-2(5) (Supp. 1995). Utah’s statute on the legal capacity of children provides: “The period of minority extends in males and females to the age of eighteen years; but all minors obtain their majority by marriage.” Utah Code Ann. § 15-2-1 (1992). It has been directly held in New York, for example, that minors cannot legally consent to an attorney’s simultaneous representation of conflicting interests. In re Estate of Merrick, 107 Misc. 2d 988, 436 N.Y.S.2d 125 (1980).
17.Utah Code Ann. § 78-3a-44.5(3)(h) (Supp. 1995).
18.Id. § 78-3a-44.5(3)(g) (medical and psychological records of the child), § 78-3a-44.5(9) (all Division of Family Services records regarding the child).
19.Utah Code § 78-3a-44.5(11)(d) (Supp. 1995) states an express exception to Rule 1.6 and the attorney-client privilege when the records of an attorney guardian ad litem are subject to legislative subpoena. This provision may be viewed as highlighting the obligation of the attorney guardian ad litem not to reveal confidential client information under other circumstances.
However, the attorney guardian ad litem is required by § 78-3a-44.5(8)(a) to communicate the child’s wishes to the court in addition to presenting the attorney’s own determination of the child’s best interest, even when the child’s wishes differ from the attorney’s own determination. Section 78-3a-44.5(8)(a) states that a difference between the child’s wishes and the attorney’s determination of best interests shall not be considered a conflict of interest for the attorney, but, unlike the exception made by § 78-3a-44.5(11), there is no express exception to Rules of Professional Conduct 1.6 or 1.8 or the attorney-client privilege if the attorney guardian ad litem complies with § 78-3a-44.5(8)(b) by disclosing the child’s wishes revealed to the attorney in confidence. Rule 1.6(b)(4) permits a lawyer to reveal confidential client information to the extent the lawyer believes necessary to comply with “other law.” Compliance with the requirements of the attorney guardian ad litem statute should fall within this exception. Furthermore, Utah law requires that “any person” (excepting only a clergyman or priest in specified circumstances) report defined circumstances involving past, present, or potential abuse. See Utah Code Ann. § 62A-4a-403 (Supp. 1995). Compliance with this law should also fall within the exception provided in Rule 1.6(b)(4).
20.See, e.g., Utah Code Ann. § 78-3a-44.5(1) (attorney guardian ad litem is to represent the best interest of “a child”); § 78-3a-44.5(2) (attorney guardian ad litem shall represent the best interest of “each child”); §§ 78-3a-44.5(3)(a), -44.5(5) (attorney guardian ad litem shall represent the best interest of “the child”).