Ethics Advisory Opinion No. 95-01

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

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

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”3 and 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 Constitution 5 with statutory limitations as to territorial and subject matter jurisdiction. 6a By statute, it is not a court of record 7 and appeals are taken de novo to the circuit court of the county in which the justice court exists.8 Thus 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. 9 The 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.
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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. (more…)

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. 2 We 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
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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. (more…)

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
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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 (more…)