Ethics Advisory Opinion No. 96-01

(Approved April 26, 1996)
May a lawyer representing a defendant in multiple lawsuits asserting similar claims initiate and conduct ex parte communications with former plaintiffs who have settled their claims?

Opinion: Yes, but only if the settling plaintiffs are not represented by counsel and only after appropriate disclosures have been made by the lawyer to the settling plaintiffs.
Facts: A lawyer’s corporate client has been and is a defendant in multiple civil lawsuits. Certain lawsuits have been settled and others are pending. Most of the current lawsuits were filed by the same plaintiffs’ lawyers who represented the individuals whose claims have been settled.1
The lawyer’s client believes that random audits of the records of current claimants reveal a lack of basis for many of the claims asserted. The client desires to bring an action against the claimant lawyers who, in the client’s view, have asserted meritless current claims.
The client has asked the lawyer to interview some of the individuals who brought settled claims that the client believes were supported by false or questionable evidence. The objective of this investigation is to acquire evidence, if any, that the claimant lawyers knowingly recruited clients and deliberately submitted on behalf of those clients claims that were supported by fabricated evidence.
The client wants the lawyer to ask the settling plaintiffs to disclose what their lawyers told them about bringing the settled claims. The proposed communications with the settling plaintiffs would be initiated by the lawyer for the corporate client. The lawyer would not inform counsel who represented settling plaintiffs of these communications.
The client has advised the lawyer that it has no intention to seek redress from any of the individuals who have settled their claims.2Times to appeal or reopen have generally expired.
Analysis: The Utah Rules of Professional Conduct contain two basic rules regarding contact with persons who are not the lawyer’s client. The first is found in Rule 4.2, which forbids contact with represented parties, and the second is found in Rules 4.3 and 4.4, which govern contact with unrepresented parties and third persons.
Rule 4.2
The relevant portion of Rule 4.2 of the Utah Rules of Professional Conduct states:
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.3
Discussion of the last phrase of this Rule is quickly concluded: The corporation’s lawyer does not have consent (and indeed wants to initiate the conversation without notifying plaintiffs’ counsel) and does not propose to obtain a court order authorizing the communication.
Analysis of the first phrase of the Rule is more difficult and involves a discussion of whether the settling plaintiffs are “represented by another lawyer in the matter.” The issue is fact-specific and the burden of determining the person’s represented status is on the contacting lawyer. Under Utah law, in the absence of “disturbing events or special arrangement,” a lawyer’s employment comes to an end and the attorney-client relationship is terminated with the completion of the specific task for which the lawyer was employed.4Utah courts generally follow the common law rule that the employment of the defendant’s lawyer terminates upon entry of judgment, while the employment of the plaintiff’s lawyer terminates upon satisfaction of judgment. (more…)

Ethics Advisory Opinion No. 96-02

(Approved April 26, 1996)
Issue: How long must an attorney retain a client’s file after the attorney’s representation of the client has been completed or terminated?

Opinion: The Utah Rules of Professional Conduct require that an attorney retain or otherwise dispose of a client’s file so that all property is returned to its owner, the client’s foreseeable interests are protected, and other legal and ethical requirements are met. The attorney’s precise ethical obligations will vary depending upon several factors discussed below.
Discussion: Two principles should guide an attorney’s disposition of a client’s file upon completion of representation or termination.1
Client Property. An attorney must return all property to its owner.2What constitutes “property” is a matter addressed by other laws and rules and constitutes an issue beyond the scope of this opinion.3Generally speaking, however, a client’s property is likely to include at least the material the client has given the attorney, the material the client has directed the attorney to obtain or procure and for which the client has paid, as well as that which constitutes the primary object of the representation.4
Client Interests. An attorney must dispose of a client’s file so that the client’s foreseeable interests are protected.5In addition to “property,” as discussed above, a client is especially likely to be interested in materials related to an ongoing matter or one that might foreseeably arise in which the applicable statute of limitations has not run, especially when the materials (1) have not previously been given to the client, (2) are not readily available from other sources, or (3) are those the client reasonably expects the attorney to retain.6
The obligation to protect client interests is intimately related to discussing disposition of the client’s file with the client (or with the client’s legal representative, if the client is deceased or incapacitated). Such discussions should better define the client’s interests as well as the client’s reasonable expectations regarding, and reliance upon, the attorney’s disposition of the file.7
One method by which an attorney might discharge the obligation of protecting all foreseeable client interests is to tender the entire file to the client (or to the client’s legal representative, if the client is deceased or incapacitated).8The propriety of such an offer depends upon whether the client is capable of appropriately securing or disposing of the file and whether the client reasonably expects that the attorney will continue retaining the tendered materials. Defining what must be returned to the client in such situations is the subject of other rules and opinions and lies beyond the scope of this opinion.9
Another method of protecting client interests vis-à -vis the client’s file is to retain the file for as long as necessary to protect those interests. Such considerations lie within the sound judgment and discretion of the attorney.10The period of retention might depend upon numerous factors, including applicable statutes of limitations for actions that might foreseeably affect the client (including statutes that might be tolled for interested minors), the uses for which the materials might be put, and client expectations. An attorney, for example, is likely to retain probate or adoption files longer than a file related to eviction of a month-to-month tenant. (more…)

Ethics Advisory Opinion No. 96-03

(Approved April 26, 1996)
What are the ethical obligations of an attorney who has negotiated an agreement with medical providers on behalf of a personal-injury client whose debts are subsequently discharged in bankruptcy?

Opinion: Absent dishonesty, fraud, deceit or misrepresentation, the attorney has no ethical obligation to honor personally the client’s agreements to pay medical providers out of a settlement or judgment. Disputes resulting from the failure of an attorney to make payment for services rendered by the medical providers should be treated as questions of substantive law, including state and bankruptcy law, and should be examined under traditional contract, agency, and bankruptcy doctrines rather than as questions of the ethical propriety of the attorney’s actions.1
Analysis: In a personal injury action, attorneys on behalf of their clients often negotiate agreements with medical providers for the care the client receives or has received in conjunction with the injury. Such agreements contractually obligate the client, but not the attorney, to pay medical providers for those services out of, or at the time of, any settlement or judgment. Prior to the settlement or judgment, the client may file a bankruptcy and may be discharged of certain of these medical-cost obligations.
The factual background of the present issue is not substantially different from that addressed by Utah Ethics Advisory Opinion No. 98.2In that opinion it was determined that imputation of an ethical obligation for an attorney’s failure to pay a third party for services could create the possibility that the Bar could initiate disciplinary actions against a lawyer for the mere failure to pay creditors. Such a possibility was determined to be beyond the scope of the Bar’s role in maintaining ethical standards among its members. This conclusion seems particularly valid when, as postulated in the present factual variation, the debts themselves may be legally discharged through a bankruptcy proceeding and when such a discharge may have been avoided through proper documentation by the medical provider.
Notwithstanding the foregoing, however, Rule of Professional Conduct 4.1 provides:
In the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
Rule 4.3(b) provides:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Based on the foregoing rules, an attorney’s dishonesty, fraud, deceit or misrepresentation in conjunction with obtaining the medical services could subject the attorney to disciplinary action. For example, an attorney who (1) knows that his client intends subsequently to discharge medical debts in a bankruptcy proceeding, or intends to have his client seek a discharge of such debts in bankruptcy, (2) uses a form of documentation that the attorney knows will not withstand a bankruptcy, and (3) affirmatively states that the medical provider will be paid at settlement or judgment, will have committed an ethical violation. (more…)

Ethics Advisory Opinion No. 96-04

(Approved July 3, 1996)
Is it unethical for an attorney, without prior disclosure to other parties to a telephone conversation, electronically or mechanically to record communications with clients, witnesses or other attorneys?

Opinion: Recording conversations to which an attorney is a party without prior disclosure to the other parties is not unethical when the act, considered within the context of the circumstances, does not involve dishonesty, fraud, deceit or misrepresentation.
Analysis: The full text of Utah State Bar Ethics Opinion No. 90, as approved on September 23, 1988, reads: “It is not unethical for an attorney to surreptitiously record by electronic or mechanical means communications with clients, witnesses or other attorneys.”5There is no discussion of the conclusion. The Utah State Bar Board of Bar Commissioners has requested that the Ethics Advisory Opinion Committee revisit this issue.
Having considered the issue in light of the Utah Rules of Professional Conduct, applicable Utah law and comments submitted by members of the Utah State Bar,6we have concluded that it is not per se unethical for an attorney to record such a conversation with a client, witness or other attorney without disclosure. This conclusion is consistent with Opinion No. 90. However, given the brevity and absence of explanation in Opinion No. 90, some may have been misled to the conclusion that recording conversations could never be unethical. Our Opinion should clarify the extent to which an attorney may tape-record conversations without exceeding ethical bounds.
Utah law makes clear that it is legal to record conversations to which a person is a party without prior disclosure to the other parties, unless it is done for a criminal or tortious purpose.7 The question of whether or not this action, when taken by a lawyer, is a violation of legal ethics has been the subject of opinions from ethics committees from many states, as well as the American Bar Association. Invariably these opinions have focused on provisions similar to Rule 8.4(c) of the Utah Rules of Professional conduct, which provides: “It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
A majority of states still follow ABA Formal Opinion 337, published in 1974, which found that it is generally unethical for lawyers to tape conversations secretly. That opinion may have been partially a reaction to then-current events-namely, the activities of various attorneys during the Watergate scandal. It leaves only a narrow exception for government prosecutors and gives no clearly reasoned basis for declaring that all other surreptitious tape recording of communications is unethical. The ABA based the prosecutor exception on the United States Supreme Court’s holding in United States v. White.8As the Mississippi Supreme Court has pointed out:
[T]he United States Supreme Court held [in White] that a government agent may constitutionally record any statement made by a criminal so long as the mere hearing of the statement by the agent would not violate the speaker’s justifiable expectations of privacy. Formal Op. 337 apparently sought to work around White by limiting its rationale to the context of criminal prosecutions. The distinction is ill founded, however, because even law-abiding citizens have limits on their justifiable expectations of privacy.9 (more…)

Ethics Advisory Opinion No. 96-06

(Approved July 3, 1996)
What are the ethical obligations if an attorney undertakes representation of a client when the attorney is not able to communicate directly with the client in a language clearly understood by that client?

Opinion: An attorney need not have any personal knowledge of language skills relating to the language ability of the client. It is necessary, however, for an attorney to be able to communicate adequately with the client.1Therefore, consideration should be given to language impediments that would materially affect the attorney’s ability to communicate adequately in the specific circumstances of the client’s case. The method by which this must be done will depend upon the circumstances of each situation.2
Discussion: A lawyer must be sensitive to the non-English or limited English-speaking client’s communication difficulties in explaining legal problems and in understanding the legal advice to be provided by the lawyer. A lawyer must also be sensitive to the lawyer’s limitations in understanding communications that come from a non-English or limited English-speaking client. Such sensitivity is an important aspect of attorney competence, as well as other duties and obligations of attorneys requiring communication with clients. In this context, a lawyer must also be sensitive to the limited communication abilities of hearing-impaired or speech-impaired clients.
An attorney must have or must acquire sufficient time, resources and ability to apply the sufficient learning, skill and diligence necessary to discharge the duties arising from the attorney-client relationship.3However, the inability to communicate directly with the client in a language clearly understood by the client does not always preclude an attorney from discharging such duties. Clearly, a client has the right to retain the services of an attorney, knowing that direct communication with that particular attorney may be limited or impossible. Also, clearly, difficulty in communication can occur even between those who speak the same language.4
It is the responsibility of any attorney to gather all of the relevant facts, undertake reasonable research in an effort to ascertain legal principles and make an informed decision as to a course of conduct based upon an intelligent assessment of the client’s problems. A language barrier does not reduce the attorney’s duty to communicate adequately with the client, as required by Rule 1.4. If direct communication in a language clearly understood by the client is not possible, the attorney must take into account the fact that means other than direct communication will be required to discuss the client’s case and to meet the attorney’s responsibilities. The means by which an attorney may do this are varied.
On any matter that requires client understanding, the attorney must take all reasonable steps to insure that the client comprehends the legal concepts involved and the advice given by the attorney. The attorney must take all reasonable steps to insure that the attorney understands what the client is saying, so that the attorney can make intelligent judgments about the case and so that the client can make informed decisions. If the attorney cannot communicate fluently in the client’s own language, the attorney should communicate through an interpreter skilled in the client’s particular language or dialect. The attorney may accomplish this by associating with a bilingual attorney who can assist with the language problem or by working with an employee or staff member who can assist the attorney with the language problem. However, an attorney must be cautious in insuring that the attorney and client are communicating with each other through the interpreter, rather than the interpreter giving legal advice independent of the attorney. To allow such a result would be to assist in the unauthorized practice of law in violation of Rule 5.5(b). (more…)

Ethics Advisory Opinion No. 96-07

(Approved August 30, 1996)
What are the ethical implications of federal funding reductions and practice restrictions to Utah Legal Services lawyers?

Opinion: A Utah Legal Services lawyer must give all clients adequate notice of legislative changes and the effect they will have on a client’s representation. Funding reductions and practice restrictions may necessitate withdrawal from pending matters and intake restrictions on new matters. The attorney must make reasonable efforts to arrange for substitution of lawyers to handle pending matters, such as referring them to the Utah State Bar’s statewide pro bono coordinator.
Analysis: Congress has imposed dramatic funding cutbacks and imposed certain practice restrictions as part of the fiscal-year 1996 appropriations bill signed into law on April 25, 1996. Some of the practice restrictions are: a ban on advocacy before legislative or administrative rule-making bodies; a ban on initiating, participating or engaging in new class actions; a ban on collecting attorney fees; a ban on welfare reform litigation; a ban on abortion representation; a ban on prisoner representation; a ban on representation of certain aliens; and a requirement to make pre-litigation disclosures.
Two formal opinions of the ABA address the subject of funding reductions and practice restrictions and give reasonable guidance in this area.1
A. Giving Notice of Practice and Budgetary Limitations. Rule 1.4, Communication, Utah Rules of Professional Conduct, provides:
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.
A legal services attorney has an obligation to make an assessment with respect to ongoing provision of legal services to existing clients in light of funding reductions and new practice restrictions. Under Rule 1.4(a), the attorney is required to provide to existing clients and new clients as they are accepted notice of the risk or the likelihood that representation may be limited or terminated. When the risk is known and cutbacks must be made, clients must be promptly advised of terminating representation.
Rule 1.16, Declining or Terminating Representation, provides:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law; . . .
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if: . . .
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. (more…)

Ethics Advisory Opinion No. 96-08

(Approved November 1, 1996)
May an attorney represent a person who seeks to obtain payment under the terms of a client-solicitation agreement entered into with another attorney, where the agreement involved the payment of a “finder’s fee” to the person?

Opinion: Although a “finder’s fee” agreement between an attorney and a client may be a violation of Rule 5.4(a) of the Utah Rules of Professional Conduct, the Rule governs the ethical conduct of attorneys . Thus, the solicitation agreement did not violate any duty of the non-lawyer parties under the Utah Rules of Professional Conduct. Therefore, absent a violation of Rule 3.1 concerning non-meritorious actions, the plaintiff’s new attorney may seek recovery under the solicitation agreement on behalf of his non-lawyer client.
Analysis: In this request for an ethics opinion, the following facts were alleged: A non-lawyer client (“Client”) engaged a Utah attorney (“Attorney A”) to consider a potential case against an employer. Attorney A felt the potential claim had merit, but, given the particular facts of the case, concluded it would be economical only if at least 100 plaintiffs with similar claims were involved. He offered the client a “finders fee of $500 per head” (the “Solicitation Agreement”) if the client could get a least 100 other people to sign up with the attorney as individual plaintiffs. Client agreed and found such other plaintiffs, who engaged Attorney A, and they successfully pursued their claims in court. Attorney A collected contingent fees from the plaintiffs.
Client then made demand on Attorney A to pay under the Solicitation Agreement. Attorney A refused, saying that such an agreement was never entered into, and, even if it was, such an agreement is not permitted under the Utah Rules of Professional Conduct. Attorney B, who has been engaged by Client to pursue a claim against Attorney A to recover under the Solicitation Agreement, seeks guidance as to whether instituting such a suit would itself violate Rules 8.4.1
First, for purposes of this opinion, we will assume, without deciding, that the Solicitation Agreement was entered into by Attorney A and that it violated Rule 5.4(a), which limits the ability of a lawyer to share legal fees with a non-lawyer.2However, the Rules of Professional Conduct only apply to lawyers. Therefore, while Attorney A may have acted unethically and violated the Rules by entering into the Solicitation Agreement, such unethical conduct does not impose any restrictions on Client nor does it automatically render the Solicitation Agreement void or a nullity as a matter of contract law.3
Second, even if the conduct of Attorney A in entering into the Solicitation Agreement was improper, the impropriety occurred at the time of the formation of the agreement. Nothing in the institution of an action later to enforce such an agreement on behalf of Client would amount to Attorney B’s “knowingly assisting or inducing” Attorney A to violate the Rules under Rule 8.4(a).
It is for the courts to decide whether the Solicitation Agreement was void ab initio as violative of public policy.4Attorney B should, however, be aware of Rule 3.1, which reads, in part: “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law.” If there were a clear expression by the Utah Legislature or courts that lawyers’ finders’-fee agreements were void as against public policy and unenforceable, Attorney B could be ethically restrained from pursuing a contract-based theory of recovery for Client under Rule 3.1. The Committee is not aware of any such expression, however. (more…)

Ethics Advisory Opinion No. 96-09

(Approved November 1, 1996)
May an attorney recover attorney’s fees for a collection action pursued on behalf of the attorney’s partner?

Opinion: There is no prohibition against an attorney’s hiring another attorney to collect the debts of the first attorney, even though the two attorneys are in the same law firm. Whether the second attorney may collect attorney’s fees from the debtor is a question of law that the Committee has no authority to decide. If the debt is incurred in connection with legal services provided by the firm of the two lawyers, Utah case law clearly prohibits the recovery. Under other factual circumstances, such as a debt arising out of a lawyer’s non-legal, personal business, the matter would be judicially resolved, but the lawyer attempting to collect such fees has an ethical obligation under the Rules of Professional Conduct-particularly under Rule 3.3(a)(3)-not to mislead the court as to the attorney’s right to collect such fees.
Facts: An attorney seeks to collect a debt that is owed to him personally or to a law firm in which he participates. Under either statute or contract, the attorney-creditor is entitled to collect attorney’s fees in addition to the principal amount of the debt. The original request for this opinion did not state whether the debt was incurred in connection with the lawyer’s (or his firm’s) legal services or for non-legal-service obligations. The attorney wants to have another member of his firm pursue collection, of the debt. He postulates that such an arrangement would be genuine-that is, that the second attorney would indeed do the legal work involved in the collection and the first attorney would not participate. The request did not detail the firm’s financial arrangements for the treatment of firm revenues, payment of firm expenses and the like.
Analysis: Under Utah case law, a lawyer may not collect attorney’s fees in a pro se collection action, and a law firm may not collect attorney’s fees in a collection action in which the firm uses its own lawyers to collect debts of the firm.
In Smith v. Batchelor ,1the Utah Supreme Court held that, for public policy reasons, a pro se litigant should not recover statutorily authorized attorney’s fees, regardless of the litigant’s status as an attorney. More recently, in Jones, Waldo, Holbrook & McDonough v. Dawson,2the court held that a law firm does not “incur” legal fees to be collected when the firm uses its own lawyers to collect the firm’s debts and, therefore, cannot extract them from a debtor even when it is contractually or statutorily provided for.
While the Court’s rulings on these specific fact situations are clear, there are facts that could lead to a different outcome. For example, a lawyer could hire another lawyer in the same firm to collect a personal debt related to the first lawyer’s rental properties. In this case, the firm would not be using its own lawyers to collect on firm debts, as in Jones, Waldo. Still, the Ethics Advisory Opinion Committee cannot opine as to how the Utah Supreme Court’s rulings would be applied in any given factual circumstance different from those on which the Court has ruled in these Batchelor and Jones, Waldo. (more…)

Ethics Advisory Opinion No. 96-10

(Approved December 6, 1996)
May an attorney employ a paralegal who owns a proprietary interest in a collection agency the attorney represents as a client?

Opinion: If there is no violation of a statute, including Utah Code Ann. § 78-51-27, and if there is no sham arrangement in which the paralegal would nominally own an interest in a collection agency that is in reality owned by the attorney, the Rules of Professional Conduct do not prohibit an attorney from employing a paralegal who owns an interest in a collection agency the attorney represents as a client. The attorney’s conduct within such an employment relationship would at all times be governed by the requirements of the Rules of Professional Conduct, including Rule 5.3, “Responsibilities Regarding Nonlawyer Assistants.”
Facts: An individual who is not an attorney holds an ownership interest in a collection agency that is duly registered and bonded with the State of Utah. This individual has experience in collection matters based in part on having formerly been employed by an attorney. The same attorney desires to re-employ the individual as a paralegal, represent the collection agency as its attorney, and assign the owner-paralegal to assist the attorney in providing legal services to the collection agency.
Analysis: The issue presented is related to an issue previously considered by the Utah State Bar: whether an attorney simultaneously may own an interest in a collection agency and represent the collection agency as a client. Utah Ethics Advisory Opinion No. 45, issued in 1978, held that an attorney could not represent a collection agency in lawsuits to collect on assigned accounts if the attorney owned stock in or had an interest in the collection agency.
On July 29, 1993, Utah Ethics Advisory Opinion No. 111 reconsidered Opinion No. 45 in light of cases and rule changes that loosened the restrictions on lawyer solicitation and advertising. Opinion No. 111 determined, in view of these changes, that “the ethical propriety of a collection agency owner-attorney cannot revolve around the issue of what kind of solicitation and advertising is allowed under the Rules of Professional Conduct. Rather, the issue must now be examined from the perspective of whether there is an improper conflict of interest.” After determining that the facts presented involved no inherent conflict interest, Opinion No. 111 reasoned that “Opinion No. 45’s interest-ownership restriction on an attorney who represents a collection agency was based on a legal premise that has been overruled since that opinion was issued. Because the Committee can identify no other ethical offense in the relationship, the Committee finds that it is not per se unethical for an attorney who has a financial interest in a collection agency to represent the agency in lawsuits to collect on assigned accounts.”
Opinion No. 111 noted, however, that there might be legal constraints on the owner-attorney imposed by statute, in particular Utah Code Ann. § 78-51-27(1):
An attorney or counsel shall not: (1) directly or indirectly buy, or be in any manner interested in buying or having assigned to him, for the purpose of collection, a bond, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing an action thereon. (more…)

Ethics Advisory Opinion No. 96-11

(Approved January 24, 1997)
May an attorney appointed to represent both the mother and father in an abuse/neglect proceeding continue to represent one of the parents after an actual or potential conflict between the two parents arises?

Opinion: No. Such representation of either parent is prohibited by Rule 1.7 and Rule 1.9.
Facts: Counsel is appointed by statute to represent both parents in abuse/neglect proceedings concerning their children. At the time of the appointment, the interests of the parents are identical. However, since counsel’s appointment, the parents have separated and the mother wants the father to have only supervised visitation. She now accuses the father of committing the alleged neglect without her knowledge or consent. No divorce proceeding has been filed by either spouse, and the State would pursue any necessary petitions against the father relating to abuse or neglect. The father has not consented to the continued participation by counsel.
Analysis: Rule 1.7 provides in pertinent part:
(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
In the present case, the mother is now accusing the father of committing the abuse or neglect complained of by the state. Such an accusation renders the interests of the mother and father directly adverse to each other. As a result, the dual representation is prohibited under Rule 1.7(a) unless counsel “reasonably believes” the interests of each party will not be adversely affected by representation of the other, and each client consents after consultation. Under these facts, counsel could not reasonably conclude that dual representation will not adversely affect counsel’s relationship with either client. Therefore, there is no reason to seek the consent of either of the parties. Dual representation in this case would directly violate Rule 1.7(a)(1).1
Similarly, even if one could argue that the parents’ interests are not directly adverse, the dual representation would be prohibited under Rule 1.7(b). Counsel’s obligation on behalf of the mother to pursue allegations of abuse/neglect by the father will be materially limited by counsel’s duty to the father to defend such accusations. Counsel could not reasonably believe that the attorney-client relationship with either party would not be adversely affected. Consent is irrelevant and dual representation under these facts would violate Rule 1.7(b)(1).2
Finally, counsel’s continued representation of the mother is also prohibited under Rule 1.9, which prohibits counsel from representing another person in the same or a related matter when such person’s interests are materially adverse to the interests of a former client, unless the former client consents after consultation. Under Rule 1.9, even if counsel withdraws from representation of the father, counsel will be precluded from a continuing representation of the mother because the proceeding is the same matter in which he represented the father, and the father has not consented to the continued representation of the mother. (more…)

Ethics Advisory Opinion No. 96-12

(Approved January 24, 1997)
Is it ethical for an attorney to charge for legal advice given to callers using a “1-900 number” that would automatically bill the caller on a per-minute basis?

Opinion: It is not unethical for an attorney to give legal advice over the telephone and charge for such advice by the use of a 1-900 number.
Facts: An attorney proposes to obtain and advertise a telephone number that is accessed by first dialing 1-900 (a “1-900 number”) and to give general legal advice to callers. Advertisements promoting the 1-900 legal-advice line would state that use of the number is a toll call. Upon dialing the number, the caller would hear an introductory taped message describing the terms of the relationship to provide only general legal information, and indicating the cost of the call and legal advice. Callers would be able to terminate the call after the introductory message and not incur any charges. Legal advice would be given only by licensed members of the Utah State Bar. All callers would also be advised that no attorney/client relationship would be created, even upon receiving legal advice and incurring charges.
Analysis. Assuming that the requirements of Rules 7.1 and 7.3 are complied with,1the use of a 1-900 telephone service to provide “general” legal advice is not prohibited under the Utah Rules of Professional Conduct. The request does, however, pose a more difficult issue by indicating the intent to disclaim directly to a caller the creation of an attorney/client relationship. Such a disclaimer of an attorney/client relationship may be effective where the individual receiving the information has no expectation that an attorney/client relationship is created.2 However, if legal advice is sought from an attorney, if the advice sought is pertinent to the attorney’s profession, and if the attorney gives the advice for which fees will be charged, an attorney/client relationship is created that cannot be disclaimed by the attorney giving the advice.3The attorney/client relationship may be brief and may be subject to a number of agreed-upon limitations, but it is an attorney/client relationship, and it is one to which confidentiality, competence, conflicts, malpractice and other obligations would apply.4Further, Rule 1.8(h) may apply to prevent a lawyer from seeking “an agreement prospectively limiting the lawyer’s liability to a client for malpractice,” except in certain narrow circumstances.5
Conclusion. Establishing a 1-900 legal-advice line and charging clients for the time spent discussing the issue on the telephone with a licensed attorney is not per se unethical. However, the attorney should be aware that, because an attorney/client relationship is created when legal advice is sought and obtained, no matter how “general,” all the ethical rules apply to that relationship. Further, the attorney would be well-advised to keep adequate records of charges to clients as well as advice given.6
1.Rule 7.1 generally prohibits false or misleading solicitations and statements likely to “create unjustified expectation about results.” Rule 7.3 restricts certain in-person solicitations. Utah Rules of Professional Conduct 7.1, 7.3.
2.See, e.g., In re Petrie, 742 P.2d 796 (Ariz. 1987), for the proposition that the test of whether an attorney/client relationship exists, in part, is subjective with the reasonable belief of the client that such a relationship exists. (more…)

Ethics Advisory Opinion No. 96-14

(Approved January 24, 1997)
Is it permissible under the Utah Rules of Professional Conduct for an attorney practicing law in Utah to form a partnership or otherwise associate with one or more non-Utah lawyers or with legal practitioners from other countries?

Opinion: A Utah attorney may form a partnership or otherwise associate with individuals who are licensed to practice law in any jurisdiction within the United States or with persons qualified and authorized to engage in the functional equivalent of U.S. legal practice under the laws of a foreign country.
Analysis: The Utah Rules of Professional Conduct do not prevent a Utah lawyer from entering into a partnership with lawyers admitted in other jurisdictions for the purpose of practicing law in Utah. Rule 7.5(b) of the Utah Rules of Professional Conduct plainly contemplates that attorneys licensed to practice in different jurisdictions may nevertheless associate within a single firm and that the firm may establish offices in more than one jurisdiction.1This, of course, has become common practice in the United States with many law firms maintaining offices in several states.
There is no ethical prohibition against forming a partnership or sharing revenue from legal practice with non-Utah lawyers. Although not necessarily licensed to practice law in this jurisdiction, a non-resident lawyer is not considered a “nonlawyer” for purposes of the Utah rules against fee splitting and formation of partnerships with lay persons. Black’s Law Dictionary defines a “lawyer” in part as “a person learned in the law’ as an attorney, counsel, or solicitor; a person licensed to practice law. . . .”2Read in conjunction with Rule 7.5(b), the prohibitions of Rule 5.4(a) against fee sharing with a “nonlawyer” and of Rule 5.4(b) against forming a partnership with a “nonlawyer” for the purpose of practicing law do not logically extend to persons who are not Utah lawyers but are authorized to practice law in other jurisdictions.
Subject to certain ethical constraints that must be followed, it has long been recognized as permissible to staff multi-state offices with attorneys admitted to practice in different states.
The Canons of Ethics do not prohibit a lawyer in State I from entering into an arrangement with a lawyer in State II for the practice of law by which they share in the responsibility and liability of each other, if they indicate the limitations on their practice in a manner consistent with the canons. Subject to the same limitations, offices of the firm could be opened in both states. Of course, only the individuals permitted by the laws of their respective states to practice law there would be permitted to do the acts defined by the state as the practice of law in that state, but there are no ethical barriers to carrying on the practice by such a firm in each state so long as the particular person admitted in that state is the person who, on behalf of the firm, vouched for the work of all of the others and, with the client and in the courts, did the legal acts defined by that state as the practice of law.3 (more…)