Ethics Advisory Opinion No. 96-01

(Approved April 26, 1996)
Issue:
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. (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 (more…)

Ethics Advisory Opinion No. 96-03

(Approved April 26, 1996)
Issue:
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 (more…)

Ethics Advisory Opinion No. 96-04

(Approved July 3, 1996)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-06

(Approved July 3, 1996)
Issue:
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 (more…)

Ethics Advisory Opinion No. 96-07

(Approved August 30, 1996)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-08

(Approved November 1, 1996)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-09

(Approved November 1, 1996)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-10

(Approved December 6, 1996)
Issue:
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.” (more…)

Ethics Advisory Opinion No. 96-11

(Approved January 24, 1997)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-12

(Approved January 24, 1997)
Issue:
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. (more…)

Ethics Advisory Opinion No. 96-14

(Approved January 24, 1997)
Issue:
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. (more…)