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.
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.
In our situation, the question is whether the relationship between certain plaintiffs and their lawyer has terminated. We assume that final judgment has been entered on the settlement offered by defendant and accepted by plaintiff. The corporation’s lawyer, who desires to question those plaintiffs, must determine whether the judgment has been satisfied and whether there are other special circumstances that might rebut the presumption that the attorney-client relationship has thus terminated.5
If the settling plaintiffs are still represented by counsel, or if the corporation’s lawyer cannot confirm that the relationship between the settling plaintiffs and their counsel has terminated, Rule 4.2 would prohibit the proposed communications.
Careful attention to the current relationship between the settling plaintiffs and their counsel may allow the corporation’s lawyer to contact the settling plaintiffs without violating Rule 4.2. The burden of showing compliance with Rule 4.2 is, however, on the corporation’s lawyer.
Rules 4.4 and 4.3
Compliance with Rule 4.2 does not end the inquiry. The corporation’s counsel must also follow the Utah Rules of Professional Conduct on contacting unrepresented parties and third persons.
Utah Rule of Professional Conduct 4.4 states:
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
The proposed communications with settling plaintiffs raise concerns under both parts of Rule 4.4.
First, the proposed communications would not be proper if they have no substantial purpose other than to embarrass, delay, or burden a third person. The client in this case is a defendant in ongoing litigation in which the lawyers it proposes to investigate represent plaintiffs. The question of whether the proposed communication “have no substantial purpose other than to embarrass, delay, or burden” plaintiffs or their lawyers in that litigation is a question of fact that should be considered and resolved.
Second, the proposed communications could constitute a “method of obtaining evidence that violates the legal rights” of the settling plaintiffs. In particular, any attorney-client privilege is a “legal right” of the settling plaintiffs within the meaning of Rule 4.4.6
Under Utah law the privilege would not attach to communications that the client knew or should have known were made for the purpose of facilitating a fraud.7If no privilege exists, the proposed communications would not violate any legal right of the settling plaintiffs. If the privilege exists, requesting this information without appropriate disclosure is a method of obtaining evidence that would violate Rule 4.4 by violating the settling plaintiffs’ legal rights to maintain the attorney-client privilege.8
The settling plaintiffs can waive the protection of the privilege and, in fact, may do so by answering questions from the corporation’s lawyer. These settling plaintiffs are likely to be lay persons who are generally uninformed about their rights with respect to the attorney-client privilege. Waiver of the privilege in this case may subject the settling plaintiffs to civil or criminal liability for their participation in presenting false or fraudulent claims to the court.
Therefore, in order for the corporation’s lawyers to comply with Rules 4.4 and 4.39in contacting the settling plaintiffs, they must make sufficient disclosures. Based upon the Rules, ethics opinions and case law, at least the following should be discussed:
* Identify the interviewer as a lawyer.10
* Disclose who the lawyer is representing.11
* Disclose the nature of the lawyer’s representation, including the fact that the person’s former lawyer may be an adverse party.12
* Ask if the person is currently represented by counsel.13
* Clarify that the lawyer is not representing the interviewee.14
* Clarify that the interviewee is not required to answer questions or supply information and that the interviewee may have counsel present.15
* Clarify that an attorney-client privilege may protect discussions between the interviewee and the interviewee’s counsel in the settled lawsuits, and that disclosing any of the contents of such discussions could waive that privilege as to all of the contents of such discussions so that anyone could find them out.16
It is the lawyer’s burden in this case to ensure that the lawyer’s actions will not violate the Rules of Professional Conduct. Assuming the settling plaintiffs are not represented by counsel and adequate disclosures are made, the corporation’s lawyer may contact the settling plaintiffs.
Footnotes
1.Although some of the lawsuits are class actions, all of the settling plaintiffs either opted out or never were members of a class. Accordingly, this opinion does not address issues relating to members of a class currently or formerly represented by class counsel.
2.The client is willing to authorize the lawyer to execute releases of any claims it might have against the former claimants (although not against the lawyers). Disclosure of facts showing that they participated in the filing of fraudulent claims could expose the individuals to criminal prosecutions or third-party claims. The proposed release could not insulate the individuals from such claims. Accordingly, this opinion does not consider the proposed release as a factor.
3.Rule 4.2 was amended effective April 1, 1996, by the addition of two sentences dealing with ex parte contacts of government officials. The change has no effect on the analysis in this opinion.
4.Sandall v. Sandall, 193 P. 1093 (Utah 1920) (the attorney-client relationship ended with respect to the divorce, even though a relationship with the same lawyer existed with respect to criminal matters); Atkinson v. Atkinson, 490 P.2d 729 (Utah 1971) (child custody modification considered a separate employment from the original divorce/custody proceeding); Shulder v. Dickson, 243 P. 377 (Utah 1928) (appeal considered a separate employment from the original lower court matter).
5.See also ABA Formal Op. 95-396, “Communications with Represented Persons” (1995). In the context of contact with a person who is known to have been represented by counsel, the communicating lawyer should not proceed without reasonable assurance that the representation has in fact been terminated. “As a practical matter, a sensible course for the communicating lawyer would generally be to confirm whether in fact the representing lawyer has been effectively discharged.”
6.ABA Formal Op. 91-359, “Contact with Former Employee of Adverse Corporate Party” (1991). In the context of ex parte communications with former employees of an adverse corporate party, “with respect to any unrepresented former employees, of course, the potentially communicating adversary attorney must be careful not to seek to induce the former employee to violate the privilege attaching to attorney-client communications to the extent his or her communications as a former employee with his or her former employer’s counsel are protected by the privilege. . . . Such an attempt could violate Rule 4.4.”
7.See State v. Carter, 578 P.2d 1275 (Utah 1978); In re September 1975 Grand Jury Term, 532 F.2d 734 (10th Cir. 1976); Utah R. Evid. 504(d)(1).
8.Cf. Shearson Lehman Brothers, Inc. v. Wasatch Bank, 139 F.R.D. 412 (D. Utah 1991) (noting ABA Formal Op. 91-359); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341, 347 (D. Conn. 1991) (efforts by counsel to induce or listen to privileged communications may violate Rule 4.4); Brown v. St. Joseph County, 148 F.R.D. 246, 255 (N.D. Ind. 1993) (counsel must refrain from seeking, inducing or listening to the disclosure of any matter protected by the attorney-client privilege). Shearson Lehman concerned an attempt to contact the former employees of an opposing corporate party under circumstances where the former employees might waive the corporate party’s attorney-client privilege. Here, the settling parties themselves are the holders of any applicable privilege.
9.Rule 4.3 states:
(a) During the course of a lawyer’s representation of a client, the lawyer shall not give advice to an unrepresented person other than the advice to obtain counsel.
(b) 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.
Because we assume for purposes of this Rule 4.4 discussion that the settling plaintiffs are no longer represented by counsel, Rule 4.3(a) would prohibit the corporation’s lawyer from providing any advice other than the advice to obtain counsel. The ABA notes that the offer of an opinion on legal issues in support of a position, where the opinion is not proffered as advice to the unrepresented person, does not violate Rule 4.3(a). ABA Informal Op. 1502 (1983).
10.Rules 4.3 and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to make clear the nature of his role).
11.Rule 4.3(b); Shearson Lehman, 139 F.R.D. at 418; University Patents v. Kligman, 737 F. Supp. 325 (E.D. Pa. 1990); Siguel v. Trustees of Tufts College, 1990 WL 29199 (D. Mass. 1990); Lizotte v. NYC Health & Hosp. Corp., 1990 WL 267421 (S.D.N.Y. 1990).
12.Rules 4.4, 4.3, and 4.1; Shearson Lehman, 139 F.R.D. at 418 (lawyer to identify client and fact that interviewee’s former employer is an adverse party); University Patents, 737 F. Supp. at 328; Tufts College, 1990 WL 29199, *7.
13.Rule 4.2; Upjohn v. Aetna Cas. and Sur., 768 F. Supp. 1186, 1215 (W.D. Mich. 1990). Of course, once a settling plaintiff seeks independent legal counsel for advice, the corporation’s lawyer is prevented by Rule 4.2 from contacting the settling plaintiff directly.
14.Rule 4.3(b).
15.In re Domestic Air Transport Antitrust Litigation, 141 F.R.D. 556, 562 (N.D. Ga. 1992); University Patents, 737 F.Supp. at 328; Tufts College, 1990 WL 29199, *7; Lizotte, 1990 WL 267421, *5.
16.Rules 4.4 and 4.3.
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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.
To the extent other laws or rules require an attorney to retain all or part of a client file, the attorney must comply with such requirements.11For example, Rule 1.15(a) requires the attorney to retain certain records related to the property of others for five years.
Conclusion: There is no specific time period governing retention of a client’s file. The guiding principles are the ultimate return of the portions of the file that are the client’s property under Rule 1.16 and the reasonable protection of the client’s foreseeable legal interests.
Footnotes
1.”File,” as used in this opinion, includes materials an attorney is likely to compile and produce within the course of representing a client, including correspondence, agreements, notes, legal research, evidentiary materials, and official documents.
2.Utah Rules of Professional Conduct 1.15(b) (renumbered from Rule 1.13(b) in 1995); see also Utah Code Ann. § 78-51-42 (1992).
3.See, e.g., Utah Rules of Professional Conduct 1.16 cmt.
4.E.g., ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 1376 (1977) (client in trademark dispute entitled to “end-product,” including certificates or other evidence of registration and related search results).
5.Utah Rules of Professional Conduct 1.16(d). “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests.” See also id. Rules 1.1-1.3; see, e.g., ABA Comm. on Ethics and Prof. Responsibility, Informal Op. 1384 (1977); N.Y. State Bar Op. 460; reported in 49 N.Y. St. B.J. 259 (1977).
6.ABA Informal Op. 1384.
7.E.g., ABA Informal Op. 1384; Fla. State Bar Assoc. Op. 63-3, 1963 WL 7601, reported in Am. Bar Found. Dig. of Bar Assoc. Ethics Op. at 91 (1970); N.Y. State Bar Op. 460; N.Y. County Bar Op. 624 (1974), reported in 1975 Supp., Dig. of Bar Assoc. Ethics Op. 368 (1977).
8.Maine Bar Assoc., Op. 74, ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 901:4203 (1986).
9.See, e.g., Utah Rules of Professional Conduct 1.16 cmt; ABA Informal Op. 1376; ABA Informal Op. 1384; Wis. Bar Assoc., Memo Op. 4-78 (1979), reported in 1980 Supp., Dig. of Bar Assoc. Op., at 620; Bar Assoc. of San Francisco Op. 1989-1, ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 901:1851 (1989); L.A. Bar Assoc. Op. 362 (1976), reported in 1980 Supp., Dig. of Bar Assoc. Op., at 73.
10.ABA Informal Op. 1384.
11.See Utah Rules of Professional Conduct 8.4(a)-(c).

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
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.
However, in the absence of these independent ethical considerations, an attorney’s obligations for client-related medical expenses are to be considered as contract, agency, bankruptcy or other substantive issues rather than ethical issues.
Footnotes
1.This Opinion does not deal with agreements that expressly impose an obligation on the attorney or create a lien on the funds that are handled by the attorney. In those cases, the specific language of the agreement would control and might impose obligations on the attorney directly or as a trustee of the funds.
2.Ethics Adv. Op. 98, 1989 WL 509364 (Utah St. Bar 1989).

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.
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
We believe there is no reason to make a distinction between prosecuting attorneys and attorneys in other areas of practice.
As the White court stated, “[i]t is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a ‘reasonable’ investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an ‘unreasonable’ and unconstitutional search and seizure.”10The act of taking notes during a conversation or dictating a memo to the file regarding a conversation should not be considered differently from actually recording it within the limitations discussed in this Opinion.
One basis for allowing attorneys to record conversations is founded in the same reasoning as stated in White. “An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.”11An attorney’s ability to recall information from conversations is important to his competence in undertaking an action.12
The Mississippi Supreme Court has also established a “context-of-the-circumstances” test.13As the Mississippi court stated in Attorney M:
The categorical pronouncement of Formal Op. 337 . . . goes too far. Situations will arise where (surreptitious recording) is both necessary and proper. Under certain circumstances, . . . an attorney may be justified in making a . . . recording in order to protect himself or his client from the effects of future perjured testimony. On the other hand, an attorney who uses a secret recording for blackmail or to otherwise gain unfair advantage has clearly committed an unethical-if not illegal-act. Ethical complications arise not so much from . . . recordings per se as from the manner in which attorneys use them. The context-of-the-circumstances test contemplates this distinction, Formal Op. 337 does not.14
Privacy expectations are different in 1996 from what they were in 1974. As Stanley S. Arkin and the New York County Lawyers’ Association have pointed out, it is reasonable in today’s world to expect a conversation to be recorded, given the relative ease of the process. Apart from the basic reasoning that a lawyer needs to have an accurate means of preserving what is being told during the course of an important conversation, tape recorded conversations are becoming common-place. Arkin goes on to explain:
Technology has put the power to secretly tape record within the easy reach of every lawyer and litigant. Overall, the tape recorder, and its cousins-the hidden camera and the computer-allow outsiders to peer into and preserve aspects of life that were typically thought to be private and ephemeral. Hidden cameras in offices monitor the comings and goings of workers as well as their displays of affection and other personal matters. And tape recorders-the hidden kind-can be anywhere, recording words the speaker thought, and expected, were uttered in private. We may feel anonymous or alienated or alone, but increasingly we are subject to monitoring by technology.15
In light of this currently changing environment and the Utah statute, we do not find ABA Opinion 337 to be persuasive. Other bar opinions and some courts from various jurisdictions have begun to reflect this changing environment also. For example, the Mississippi Supreme Court held that, under certain circumstances, an attorney may tape a conversation with a potential party opponent without his knowledge or consent.16Some bar associations have also issued formal opinions holding that, under some circumstances with various limitations, surreptitious sound recording by an attorney of a conversation is permissible.17As stated by the New York County Lawyers’ Association: “The secret recording of a telephone conversation, where one party has consented, cannot be deceitful per se. Recording of telephone conversations is authorized under law, and either party should reasonably expect the possibility that the conversation may be recorded.”18
Some have expressed an intuitive feeling that the use of tape recorders by attorneys in this type of circumstance is “bush league” or “unseemly.” Although we do not condone deceptive, deceitful or fraudulent actions, we see no principled reason to find it to be unethical for an attorney, within the limits discussed elsewhere in this opinion, to tape-record a conversation when it is expressly permitted by Utah law for all other persons.
Nevertheless, a number of issues that have arisen in other jurisdictions illustrate circumstances where the act of undisclosed recording of a conversation by an attorney would violate an ethical rule.
For example, it would be unethical for an attorney to fail to answer candidly if asked whether the conversation is being recorded. In Mississippi Bar v. Attorney ST,19the Mississippi Supreme Court held that an attorney who taped conversations with a judge and a police chief while representing a client whose civil rights he believed were being abused was acting to protect his client’s interests and did not act unethically. However, when asked by the police chief if he was recording their conversation, the attorney denied so doing, and the court held that the attorney violated the Mississippi Rule of Professional Conduct 4.1, which requires that a lawyer be truthful when dealing with others on a client’s behalf. This violation warranted a private reprimand.20
The lawyer’s failure to identify himself, the client, or the purpose of the conversation could also constitute unethical misrepresentation. In In re An Anonymous Member of the South Carolina Bar,21an attorney representing a family member for the purpose of investigating an auto accident, telephoned the driver of the other vehicle, who was not represented by counsel, telling him that he was the injured driver’s cousin. He did not indicate that he was an attorney, and he secretly recorded the conversation.22The South Carolina Supreme Court found the attorney to be guilty of misconduct.23
When interacting with non-clients, attorneys must also be mindful of Rules 4.1 through 4.4, governing transactions with persons who are not clients. Specifically, Rule 4.4 provides: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violates the legal rights of such a person.” Similarly, under Rule 4.1, an attorney must not make false statements of material fact to a third person.
Within the guidelines of this Opinion, a lawyer will not violate the Rules of Professional Conduct by making an undisclosed recording of a telephone conversation to which the lawyer is a party.
Footnotes
5. For a chronology of events leading to the final version of Opinion No. 90 in September 1988, see Nathan B. Wilcox, Surreptitiously Tape-Recording Your Conversations with Witnesses, Clients, and Other Attorneys: Is It Legal and Ethical?, [Utah State Bar] Voir Dire, Summer 1995, at 32.
6.In the February 1996 issue of the Utah Bar Journal, members of the Bar were invited to comment on Ethics Opinion No. 90.
7.Utah Code Ann. § 77-23a-4(7)(b) (1995).
8.401 U.S. 745, 751 (1971).
9.Attorney M v. Mississippi Bar, 621 So. 2d 220, 223-24 (Miss. 1992).
10.White, 401 U.S. at 753.
11.Id.
12.See 621 So. 2d at 228 (concurring opinion).
13.Netterville v. Mississippi State Bar , 397 So. 2d 878, 883 (Miss. 1981).
14.621 So. 2d at 224.
15.Stanley S. Arkin, Attorneys, Tape Recorders & Perfidy, 211 N.Y.L.J. 3; N.Y. Co. Lawyers’ Comm. on Prof. Ethics, Op. 696 (1994).
16.See, e.g., Netterville v. Mississippi State Bar, 397 So. 2d 878 (Miss. 1981); Attorney M v. Mississippi Bar, 621 So. 2d 220 (Miss. 1992); Mississippi Bar v. Attorney ST , 621 So. 2d 229 (Miss. 1993).
17.See 32 A.L.R.5th 715, 721 (1994), citing to Ariz. State Bar, Op. No. 90-2; Idaho State Bar, Op. No. 130 (1990); Ky. Bar Assoc., Op. No. E-279 (1984); N.Y.C. Bar Assoc., Op. No. 80-95; Tenn. Bd. of Prof. Responsibility, Op. No. 81-F-14 (1986), 1981 WL 165069.
18.N.Y. Co. Lawyers’ Comm. On Prof. Ethics, Op. 696 (1994).
19.621 So. 2d 229 (Miss. 1993).
20.Id. at 232-33.
21.283 S.E.2d 667 (S.C. 1984).
22.See 32 A.L.R.5th 715, 724-25 (1994).
23.The court relied on ABA Formal Opinion 337 in its decision. While we do not support the conclusion of the ABA opinion, the behavior in Anonymous Member would also be found unethical under our Opinion.

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
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).
On any matter that requires the use of an interpreter, the attorney must take all reasonable steps to insure that other ethical considerations such as client confidentiality and conflict of interest are addressed. For example, the interpreter should have a clear understanding of the obligation to keep the client’s communications confidential. An attorney should use care in selecting an interpreter to insure that the interpreter does not have a personal interest in the outcome of litigation. Attorneys are cautioned that use of the client’s close friends and family members may often give rise to such potential problems under Rules 1.6 and 1.7.
Attorneys should also be aware of the issue of whether there would be a waiver of the attorney-client privilege when a non-employee interpreter is used and should review the law governing this issue.5
Finally, attorneys should be sensitive to the possibility that non-English speaking clients may not readily understand legal principles described by the attorney, because the non-English speaking client may interpret communications based on a different social and cultural foundation than that assumed by the attorney. Attorneys should, therefore, take greater care in explaining complex legal communications to clients who are non-English speaking, because the client may have no social or cultural background or understanding of the United States, so as to put the attorney’s communications into proper context.
It should be noted that the attorney may generally bill the client for interpreter services, so long as the attorney acts consistently with Rule 1.5. There are some exceptions to this, such as representation as appointed counsel for an indigent criminal defendant, and the Americans with Disabilities Act may require that attorneys provide interpreter services for hearing-impaired clients free of charge.
Footnotes
1.Communication.
(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.
Utah Rules of Professional Conduct 1.4.
2.The analysis and general conclusion of this opinion apply as well to dealing with clients who are speech- or hearing-impaired.
3. Id. Rules 1.1, 1.3.
4.See Cal. St. Bar Comm. on Prof. Responsibility and Conduct, Formal Op. 1984-77, 1984 WL 5101; see also Assoc. of Bar of N.Y.C. Comm. on Prof. and Jud. Ethics, Formal Op. 1995-12, 1995 WL 607777.
5. Whether the privilege would be waived in any particular set of circumstances is a question of law and, therefore, beyond the scope of this opinion.

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.
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.
Legal Services lawyers must determine if existing clients fall within representation practice restrictions or will be affected by present and future funding cuts. ABA Formal Opinion 96-399 does not permit lawyers to decide which clients to keep and which clients to let go solely on the basis of whether abandoning certain cases will facilitate future funding. With respect to the indigent client, the lawyer must do more than give reasonable notice to the client allowing time for employment of other counsel. An effort to arrange for substitution of pro bono lawyers to handle pending matters needs to be made.
The Bar’s statewide pro bono program is one possible source of alternative counsel. The responsibility for coping with funding reductions and practice restrictions does not fall solely on the shoulders of modestly paid legal services attorneys. The Comment to Rule 6.1 of the Utah Rules of Professional Conduct, Pro Bono Publico Service, makes clear that members of the Bar have an ethical duty to assist in the provision of legal services for those unable to pay:
The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal service to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the professional and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.
If more than lip service is to be paid to this ethical duty, the Bar, individually and collectively, must respond to the coming crisis in indigent representation imposed by the recent funding reductions and practice restrictions.
ABA Formal Opinion 96-399 also holds that “A representation cannot be terminated solely because it would violate the funding restrictions.” The opinion permits a legal services organization to make its own determination as to whether forgoing legal services funding and maintaining prohibited representations is more desirable than keeping the legal services funding and terminating prohibited representations. Where a legal services organization’s funding from the Legal Services Corporation is a small percentage of its overall funding, the organization may have two viable choices. However, where, as here, the Utah Legal Services’ budget is 84% funded by the Legal Services Corporation,2the option of forgoing Legal Service Corporation funding is not a real choice.
A lawyer has a continuing duty to communicate restrictions to existing and new clients and to advise them, for example, that representation in an eviction case may be limited in important respects (such as not pursuing unlawful denial of welfare benefits because of welfare reform litigation restrictions). Additionally, the legal services lawyer must communicate that he may not be able to continue to represent a client in certain new matters where a change in circumstances such as incarceration or change in immigrant status may involve practice restrictions. It may be difficult for the legal services lawyer to anticipate the restrictions that may arise with each client, and clients should be advised of practice restrictions so they understand that the lawyer’s services are or may be limited.
B. Client Consent to Restrictions and Withdrawal. Rule 1.7(b)(2), Utah Rules of Professional Conduct, provides that “A lawyer may not represent a client if the representation of that client may be materially limited by the lawyer’s responsibility to another client or to a third person or by the lawyer’s own interests, unless: . . . the client consents after consultation.” Some restrictions on providing a client full-service representation will require the legal services attorney to advise the client of those restrictions and, if the representation is to continue, to obtain a consent of the client to continue the representation after consultation with the client.
ABA Formal Opinion 96-399 in this regard provides, “A lawyer must abide by the client’s refusal to consent to limitation on representation and cannot withdraw solely because the client refuses his consent.” This is not to say that the lawyer will be unable to withdraw, but that the refusal of an existing client to consent to limitations on the representation cannot be the sole reason the lawyer is withdrawing. The lawyer may be facing malpractice issues if he is unable to resolve a client’s legal needs because of practice restrictions. If those practice restrictions will jeopardize funding that constitutes 84% of the budget of the legal services organization, the lawyer’s responsibility to other clients would also weigh in the decision to terminate representation for a client that did not consent to the restrictions. The legal services attorney would also be exploring the obtaining of alternative counsel outside the legal services organization.
Caseload restrictions are not new to legal services organizations, but the recent funding and practice restrictions create a new dimension for existing procedures already in place at legal services organizations. If practice restrictions or funding restrictions would create a caseload that adversely affects the representation of existing clients by defunding the organization or stretching resources too thinly the legal services lawyer may not be able to accept new cases. New clients, prior to engagement of representation, may sign an agreement that explains the limited scope of representation in light of practice restrictions. Even with client consent, if the representation of the client is so limited that its practical effectiveness is severely compromised, then the attorney should decline representation.3
The scope of representation can be limited by either the client or by the lawyer. Rule 1.2(b), Scope of Representation, provides: “A lawyer may limit the objectives of the representation if the client consents after consultation.” The official comment to Rule 1.2 states in part that, “Representation provided through a legal aid agency may be subject to limitations on the type of cases the agency handles.” In addition, the comment also states: “An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and other law.” Thus, the client may not be asked to agree to representation so limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer’s services or the right to settle the litigation the lawyer might wish to continue.
In some cases, a lawyer may need to advise a client that he may be better off with another lawyer rather than consent to continue with the legal services lawyer where those activities would be restricted either through funding or practice restrictions under Rule 1.2, 1.7(b), and 2.1.4
C. Caseload Maintenance and Lawyer Competence. Rule 1.1 requires a lawyer to provide competent representation. The official comment to Rule 1.1 requires adequate preparation and attention to the case being represented for the client. Rule 1.3, Diligence, requires a lawyer to act with reasonable diligence and promptness in representing a client. A lawyer must manage his caseload so as to provide competent representation, acting with reasonable diligence and promptness. This would require a legal services attorney to decline new cases if budget cutbacks and staff reductions prevent prompt and diligent work for a client.
D. Pre-Litigation Disclosures. A troublesome practice restriction in the legal services appropriation bill covers mandated pre-litigation disclosures. The legislation requires legal services lawyers, when filing a complaint, to identify each plaintiff by name and to prepare a statement of facts written in English or in a language the plaintiffs understand that enumerate particular facts known to plaintiffs on which the complaint is based, signed by the plaintiffs. The statement would be kept on file by the legal services organization and made available to any federal department or agency who is auditing or monitoring the activities of the legal services organization. There is an escape clause on the disclosure of the identity of the client in the complaint that permits the party to move the court to avoid disclosure of the identity of any potential plaintiff pending outcome of litigation or negotiations until after notice and an opportunity for a hearing is provided. ABA Formal Opinion 96-399 observed that these disclosures could conflict with the lawyer’s obligations under Rule 1.6, Confidentiality of Information. A lawyer is required to consult with such clients about these requirements and include the client’s right to refuse to reveal his identity. The lawyer cannot ask for a consent to limitation on representation if the representation from the client’s point of view would be compromised.
The lawyer must advise future clients that they may proceed anonymously if they are represented by a non-legal services funded lawyer. If court permission to proceed anonymously is denied under the escape provision, the lawyer cannot obtain a consent to proceed if the disclosure would adversely impact the client. Otherwise, the client can give his informed consent and continue litigation with disclosure of his name.5
Rule 1.6 does not permit a lawyer to make the statement of facts required by this legislation available to federal auditors without the client’s consent. Legal Services Corporation-funded lawyers must use the same kind of caution in obtaining these consents as they do with regard to revealing a client’s identity.6
Footnotes
1.ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 96-399 (1996); see also ABA Comm. of Ethics and Prof. Responsibility, Formal Op. 347 (1981).
2.According to Toby Brown, Utah State Bar Statewide Pro Bono Coordinator.
3.Rule 1.16(a)(1); ABA Formal Opinion 96-399.
4. ABA Formal Opinion 96-399.
5.Id.
6.Id.

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.
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.
However, even if there were such a Legislative or judicial expression that voided the Solicitation Agreement, Attorney B would not be ethically foreclosed from pursuing other legal action and theories on behalf of Client.
Conclusion: If there is no violation of Rule 3.1, Attorney B may undertake to represent Client who seeks monetary recovery under a “finder’s fee” agreement with Attorney A.
Footnotes
1.Rule 8.4 provides as follows:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; . . . (d) Engage in conduct that is prejudicial to the administration of justice.
2.Rule 5.4(a) provides as follows:
(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) An agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons;
(2) A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and
(3) A lawyer or law firm may include nonlawyer employees in compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
3.We do not address the extent to which any solicitation was inconsistent with Rule 7.3 of the Utah Rules of Professional Conduct.
4.See, e.g., Peterson v. Anderson, 745 P.2d 166 (Ariz. App. 1987) (fee-splitting arrangement between attorney licensed to practice in the state and attorney not licensed to practice in state, nor admitted pro hac vice was contrary to public policy and unenforceable); but see Atkins v. Tinning, 865 S.W.2d 533 (Tex. App. 1993) (although fee-splitting agreement might subject attorney to professional discipline, agreement itself was not invalid solely because it violated his professional duties.)

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.
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.
Likewise, it is beyond our scope to render an opinion on whether collection of attorney’s fees for a partner’s personal, non-legal receivables would depend on the specific financial agreement of the partnership.3Yet another variation, for example, could involve a lawyer who hires another lawyer with whom he shares offices to collect legal fees owing to the first lawyer. Utah Ethics Advisory Opinion No. 34 imputes a partnership relationship for certain ethical considerations (such as conflicts) to some office-sharing arrangements, although the Rules and our ethics opinions do not dictate the financial arrangements under which partners must operate.
As we have indicated, the ultimate issue of whether recovery of attorney fees in fact situations that vary from those in Batchelor and Jones, Waldo is beyond the scope of the Committee’s jurisdiction. It is unethical, however, for an attorney or a law firm to engage in a sham transaction solely for the purpose of avoiding the rulings of the Utah Supreme Court or to mislead a court as to that transaction when seeking attorney’s fees. It would also be unethical to fail to disclose to the court when requesting attorney’s fees applicable legal decisions and the particular facts of the relationship between the attorneys.
Therefore, in pursuing recovery of such fees, an attorney should pay close attention to the following Rules of Professional Conduct:
* Rules 8.4(c) and (d)4prohibit an attorney from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, or which is prejudicial to the administration of justice. An arrangement between the two attorneys involved that is a sham, designed to allow one to recover attorney’s fees in a pro se situation by using the other’s name would violate these rules.
* Rule 3.3(a)(1)5prohibits an attorney from making a false statement of material fact or law to a tribunal. A relationship between attorneys created solely to avoid the impact of Utah law may violate this rule.
* Rule 3.3(a)(3) prohibits an attorney from failing to disclose to the tribunal legal authority contrary to the client’s position. Even assuming there is no sham transaction between the two attorneys, the attorney seeking fees would be well advised to disclose the pertinent case law and explain the particular relationship between the two attorneys, especially in an office-sharing or partnership arrangement. Armed with the pertinent facts, the judge would then be in a position to apply the applicable rulings of the Utah Supreme Court.
In sum, there is no prohibition against one attorney hiring another attorney to collect debts. Whether the litigating attorney can collect attorney’s fees is a question of law not to be decided here. Attorneys should, however, be aware of the provisions of the Rules of Professional Conduct that prohibit behavior that could mislead the court as to the attorney’s right to collect these fees.
Footnotes
1.832 P.2d 467 (Utah 1992).
2.923 P.2d 1366 (Utah 1996).
3.Would it, for example, make a difference if each partner collected and retained her own fees, paying into a common fund for office expenses?
4.”It is professional misconduct for a lawyer to: . . . (c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) Engage in conduct that is prejudicial to the administration of justice; . . .”
5.Rule 3.3(a): “A lawyer should not knowingly: (1) Make a false statement of material fact or law to a tribunal. . . . [or] (3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel . . . .”
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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.”
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.
Opinion No. 111 therefore concluded that, “Subject to any legal constraints imposed by Utah Code Ann. § 78-51-27(1), 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.”
On May 26, 1994, after an extensive study of various aspects of attorneys’ relationships with collection agencies, the Board of Bar Commissioners of the Utah State Bar approved eight recommendations of the Collection Task Force of the Utah State Bar.1
The Collection Task Force’s Recommendation No. 5 discussed the question of an attorney’s simultaneous ownership of an interest in a collection agency and representation of the collection agency as a client. The Task Force’s discussion of this question is set forth in full below:
Recommendation 5: Lawyers may own a proprietary interest in collection agencies but may not concurrently represent the agency in civil litigation of creditor assignments.
Question: Doesn’t Ethics Advisory Opinion No. 111, approved by the Bar Commission on July 29, 1992 [sic], reverse Ethics Advisory Opinion No. 45 and allow a lawyer to have a financial interest in a collection agency and represent the agency in assigned accounts?
Answer: It was the opinion of the Utah Ethics Advisory Committee that the U.S. Supreme Court’s opinions beginning with Bates v. Arizona and in particular Shapero v. Kentucky Bar Association made the reasoning of Opinion No. 45 (1978) inapplicable today. However, that Committee properly referred to U.C.A. § 78-51-27(1) (1953) which prohibits a lawyer from suing on an assigned debt but offered no legal opinion. However, the Bar Commission has considered § 78-51-27 and has modified Opinion 111 “to the extent that it is inconsistent with U.C.A. § 78-51-27(1)(1953).” Thus lawyers are prohibited from agency ownership and legal representation of the agency by statute. A lawyer engaging in such conduct violates Rule 21(a) of the Rules of Integration which states “It is a duty of an attorney and counselor: to support the Constitution and the laws of the United States and of this state.” It is therefore the opinion of the Office of Attorney Discipline that a violation of Rule 21(a) noted above would also be a violation of Rule 8.4(d) of the RPC which states “It is professional misconduct for a lawyer to (d) engage in conduct that is prejudicial to the administration of justice.”2
The Bar Commission’s 1994 determination was not based on a disagreement with Opinion No. 111′s analysis of applicable conflicts and solicitation provisions of the Utah Rules of Professional Conduct. Instead, the Bar Commission’s determination was based on its interpretation of Utah Code Ann. § 78-51-27(1), which the Bar Commission read as directly prohibiting an attorney from both owning an interest in a collection agency and representing the collection agency as a client. The Collection Task Force’s recommendations illustrate that the relationship between attorneys and collection agencies requires special vigilance by attorneys.
We first note that Utah Code Ann. §§ 78-51-27(1) and (2) provide legal constraints on the attorney’s actions and relationships. As we have already pointed out, § 78-51-27(1) has been found by the Utah State Bar to preclude an attorney’s direct ownership of a collection agency that he represents. This finding does not appear to be directly applicable to the case before us. Second, whether Utah Code Ann. § 78-51-27(2)3has any applicability to the current question is also a legal issue.
Rule III(a)(3) of the Rules of Procedure of the Ethics Advisory Committee of the Utah State Bar provides that the Committee “shall not respond to requests . . . [f]or a legal opinion, rather than an ethics opinion.” Rule IV(a) of the Committee’s Rules of Procedure provides that the Committee “shall not interpret state or federal law except as necessary to the opinion.” Whether an attorney may, under Utah Code Ann. § 78-51-27(1) or § 78-51-27(2), simultaneously represent a collection agency and employ as a paralegal an owner of the collection agency is a legal question that is beyond the authority of the Committee to determine. If the subject relationship violates § 78-51-27 or any other statute, it is, of course, unethical for an attorney to employ as a paralegal an owner of a collection agency the attorney represents as a client.
This opinion will address, however, the ethical considerations of the narrow facts before the Committee, which do not suggest a sham arrangement that would permit the attorney to do indirectly what would be directly proscribed under § 78-51-27. In the absence of a statutory prohibition, nothing in the Utah Rules of Professional Conduct prohibits per se an attorney from employing, as a paralegal or otherwise, an individual who holds an ownership interest in an organization the attorney represents as a client.
Conduct within the proposed relationship would be generally governed by Rule 5.3 of the Utah Rules of Professional Conduct, “Responsibilities Regarding Nonlawyer Assistants.”4
The Official Comment to Rule 5.3 states:
Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to the representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.
Under Rule 5.1, law firm partners and supervisory attorneys must make reasonable efforts to ensure that subordinate lawyers conform to the Rules of Professional Conduct. Because not every rule applies to non-lawyer assistants, Rule 5.3 requires that attorneys make reasonable efforts to ensure that the conduct of their non-attorney assistants is “compatible with” the professional obligations of the attorney. The attorney’s conduct within the proposed relationship should at all times comply with the requirements of Rule 5.3.
Rule 5.3(c) states: “A lawyer shall be responsible for conduct of such a person [a nonlawyer employee] that would be a violation of the rules of professional conduct if engaged in by a lawyer if: (1) the lawyer orders, or with knowledge of the specific conduct, ratifies the conduct involved.” Under the Bar Commission’s interpretation of Utah Code Ann. § 78-51-27(1), an attorney may own a proprietary interest in a collection agency but may not concurrently represent the agency in civil litigation of creditor assignments. As provided in Rule 5.3(c), an attorney could not ethically order a paralegal/employee to engage in a sham arrangement in which the paralegal would nominally own an interest in a collection agency that is in reality owned by the attorney. Likewise, an attorney could not ethically ratify the conduct of an employee/paralegal who engaged in such an arrangement.
However, in the absence of the violation of a statute or a sham arrangement, nothing in the Utah Rules of Professional Conduct prohibits an attorney from employing a paralegal who owns an interest in a collection agency. Utah Code Ann. § 78-51-27(1), and the Bar Commission’s interpretation of that statute, pertain to the conduct of attorneys. Although an attorney may not ethically use a paralegal to accomplish what the lawyer could not do directly, the specific facts presented do not suggest that such is the case here. Accordingly, on the specific facts presented, Rule 5.3(c) does not prohibit the proposed employment relationship. Conduct of the attorney within the relationship is governed by the requirements of the Rules of Professional Conduct, including Rule 5.3.
Footnotes
1.See “Bar Commission Accepts Recommendations of Collection Task Force,” 7 Utah B.J., No. 8, at 40 (Oct. 1994).
2.Id. at 41-42 (emphasis in original; footnotes omitted).
3.Utah Code Ann. § 78-51-27(2) provides:
An attorney or counselor shall not: . . . (2) by himself, or by or in the name of another person, either before or after action brought, promise or give, or procure to be promised or given, a valuable consideration to any person as an inducement to placing, or in consideration of having placed, in his hands or in the hands of another person a demand of any kind for the purpose of bringing an action thereon or of representing the claimant in the pursuit of any civil remedy for the recovery thereof; but this subdivision does not apply to any agreement between attorneys and counselors to divide between themselves the compensation to be received.
4.With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) A lawyer shall be responsible for the conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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.
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.
Footnotes
1.A similar result was reached in Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah State Bar, June 25, 1992), involving the representation of a divorcing couple.
2.It is common practice for counsel, prior to commencing representation of two or more parties in the same matter, to disclose the implications of common representation and obtain consent to continue representation in the event of a future conflict. Such consent does not relieve counsel of the obligation to form a reasonable belief as to the propriety of such dual representation under Rules 1.7(a)(1) or 1.7(b)(1) at the time the conflict arises.

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.
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
Footnotes
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.
3.An attorney/client relationship is proved by showing that a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. Breuer-Harrison, Inc. v. Combe, 799 P.2d 716, 727 (Utah App. 1990), citing with approval People v. Morely, 725 P.2d 510, 517 (Colo. 1986) (en banc), and Steinbach v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987).
4.An attorney/client relationship can arise from brief informal conversation in person or by telephone, even though no fee is charged and no contract of employment is signed. Michigan Ethics Opinion CI-1153, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 901:4756 (1986); Franko v. Mitchell, 762 P.2d 1345 (Ariz. Ct. App. 1988). Some states have declined to find that any attorney/client relationship is created on the basis of a single undocumented telephone call that is later used to attempt to disqualify an attorney, Vermont Ethics Opinion 84-5, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1981-85] 801:8608 (1985).
5.Utah Rules of Professional Conduct 1.8(h).
6.This fact situation is to be distinguished from pro bono lawyer referral programs where legal topics, legal access, and legal service providers are discussed, but where no legal advice is rendered, no fee is charged, and any attorney/client relationship is disclaimed. Arizona Ethics Opinion 91-05, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1986-90] 1001:1401. It should be noted, however, at least one state has found that an attorney/client relationship does exist in a lawyer referral program if only for purposes of the initial interview, so that the confidentiality of the conversation is protected even though no ongoing attorney/client relationship is formed. Iowa Ethics Opinion 94-33, reported in ABA/BNA Lawyers’ Manual on Prof. Conduct [1991-95] 1001:3620 (1995).

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.
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
Similarly, there is no direct prohibition under the Utah Rules of Professional Conduct against partnership or fee splitting with lawyers in the same law firm or others who are authorized to engage in the practice of law from another country. As the Professional Guidance Committee of the Philadelphia Bar Association has noted:
As a practical matter, more and more firms are opening branch offices not only in different states but also in different countries. Admission to the bar of these states or countries, [even where there is] fee splitting . . . among members of the same firm, is not necessary and such a practice does not pose any ethical problem in Pennsylvania.4
For purposes of the Utah Rules, a Utah lawyer may associate with any person who is authorized to engage in generalized and substantial conduct within another country that would otherwise be viewed as the practice of law if conducted within Utah or within the United States.5Thus, a Utah attorney would be free, for instance, to form a partnership with a British solicitor, barrister or attorney, or persons similarly trained and authorized under the applicable standards of a foreign country to engage in the practice of law within that country’s jurisdiction.
In addition to other applicable Rules of Professional Conduct, both the Utah lawyer and the firm with which he associates must comply with the requirements of Rule 7.5(b) governing firm names and letterheads. Identification of the lawyers in any office of the firm must include the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. In addition, the Utah lawyer must take care to comport with the provisions of Rule 5.5(a) concerning the practice of law in any jurisdiction where the attorney is not licensed, where doing so would violate the regulations of the legal professional in that jurisdiction. Likewise, others within the law firm who are not admitted to practice in Utah are subject to restrictions against unauthorized practice of law in Utah,6and the Utah lawyer must abide by Rule 5.5(b), which prohibits a lawyer from assisting the unauthorized practice of law by others within the firm. It is the Utah lawyer’s responsibility to see that all Utah legal matters undertaken by the firm are performed by or under the direct supervision of Utah attorneys.
Finally, our consideration of these issues and the guidance we provide is limited to considerations of issues arising under the Utah Rules of Professional Conduct and otherwise applicable to Utah attorneys practicing in Utah. We, of course, do not express any opinion as to the propriety of any association with non-Utah lawyers or law firms under the applicable standards of conduct in any other state or foreign jurisdiction.
Footnotes
1.A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations as those not licensed to practice in the jurisdiction where the office is located.
Utah Rules of Professional Conduct 7.5(b) (1996).
2.Black’s Law Dictionary 799 (6th ed. 1990).
3.ABA Comm. Prof. Ethics, Formal Op. 316 (1967). Several states have formally recognized this position. See, e.g., Amendments to Rules Regulation the Florida Bar, No. 87, 589, 1996 Fla. LEXIS 1063 (June 27, 1996); accord, Kennedy v. Bar Ass’n of Montgomery Co., 561 A.2d 200 (Md. Ct. App. 1989).
4.Pa. Ethics Op. No. 92-19, 1992 WL 405939 (Phila. Bar Ass’n Prof. Guid. Comm.).
5.The laws of some foreign countries may allow relatively untrained persons to perform some acts that might technically be considered to constitute the “practice of law” in those countries. For example, such a person might hold an office similar in scope and function to a notary public in the U.S. Those individuals are essentially laypersons for purposes of this opinion, irrespective of the title or office held. Our opinion is intended to refer only to those professionals who are qualified and authorized to engage in the functional equivalent of U.S. legal practice. It is, of course, beyond the scope of this opinion to analyze which countries’ “lawyers” would satisfy this guideline.
6.Utah Code Ann. § 78-51-25 (1996).