Ethics Advisory Opinion No. 97-01

(Approved January 24, 1997)
What is the ethical obligation of an attorney to a client or former client, when the attorney is unable to locate the client, and the attorney is holding trust funds on behalf of that client?

Opinion: The first obligation of an attorney under these circumstances is to secure the funds on behalf of the client1as against all other possible claimants. In other words, if the funds are still held in the form of a check, the attorney should take care to endorse the check and deposit it into the attorney’s trust account to insure that the funds are not eventually lost to the client simply by the passage of time or the expiration of the client’s right to negotiate the instrument.
Thereafter, the attorney should keep the client’s property in safe keeping, in conformity with the requirements of Rule 1.15 of the Utah Rules of Professional Conduct. Specifically, the attorney should keep the funds in a trust account for the client. If the sum is substantial, or if the period of time during which the lawyer will be unable to locate the client is expected to be lengthy, the funds should be placed in an interest-bearing account. A separate trust account may be warranted when administering these monies.
After securing the funds for the client, the attorney should make all reasonable, diligent efforts to locate the client. This includes contacting all last known addresses and telephone numbers, asking for forwarding addresses, and contacting third parties who are relatives, employees or friends of the client to attempt to reach the client. Under certain circumstances, it may even be appropriate for the attorney to seek the professional help of an investigator to locate the missing person. A rule of reasonableness should apply. Clearly, expending all of the money held in trust to locate the client is not warranted and violates the rule of safely keeping a client’s property. However, for large sums, spending a substantial sum of money to locate the client in order to transfer the remaining balance may be appropriate. (Attorney’s and investigators’ fees associated with the search might appropriately be paid out of the trust fund.2)
If the attorney is still unable to locate the client, then the attorney should hold the funds for a substantial period of time to see if the client or former client voluntarily makes contact with the attorney. Specifically, under Utah law, property may become abandoned or unclaimed property.3After the attorney determines that the client cannot be located, an attorney should, therefore, hold trust accounts unclaimed by a client for the time period set forth in the statute. This Committee is not authorized to decide or interpret matters of law;4thus, a further interpretation of the abandoned property statutes is not proper here.
Once the property has become abandoned and is, therefore, unclaimed property within the meaning of the Utah Code, the attorney should follow the procedure for reporting and submitting abandoned or unclaimed property set forth.5Again, the exact procedure in following this statutory provision is a matter of interpretation of law, which cannot be undertaken in this opinion. (more…)

Ethics Advisory Opinion No. 97-02

(Approved January 24, 1997)
Is information provided by an accused to his attorney in an initial telephone conference confidential as against a request from law enforcement authorities for such information?

Opinion: Information given to an attorney in an initial telephone conference by an individual whom the attorney has agreed to represent is confidential, even against a request for such information by law enforcement authorities seeking to apprehend the accused client.
Facts: After he had learned there was a warrant for his arrest as a suspect for a felony charge, an individual contacted an attorney by telephone. The individual gave information to the attorney, including a telephone number through which he could be contacted. The attorney agreed to represent the client solely to assist the client in turning himself in to the authorities. After the initial telephone conference, the attorney made contact with law enforcement authorities and made arrangements for the client to turn himself in. The client was to contact the attorney again but did not do so. The attorney was unable to make contact with the client to advise him of the arrangements made with the authorities. A law enforcement officer subsequently contacted the attorney and proposed to have the attorney contact the client while the officer was on the telephone line; he also requested the client’s telephone number from the attorney. The attorney declined both of the requests, even after the law enforcement officer suggested the attorney could be prosecuted for harboring a fugitive from justice.
Analysis: An attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyers’ profession.1 An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. In this case, advice and assistance were sought, and the attorney agreed to represent the client. Therefore, an attorney/client relationship was created.
The information given to the lawyer and his firm in the course of the representation is confidential. Rule 1.6, Confidentiality of Information, prohibits a lawyer from revealing information relating to representation of a client unless the client consents after consultation. There are permissible exceptions spelled out in Rule 1.6, none of which apply here.2The fact that the client may be accused of committing a criminal act and the fact that the client may be a fugitive are not relevant to this issue, and the attorney is ethically barred from revealing information relating to the representation of the client, even if revealing the information would assist in apprehending a fugitive. The scope of confidentiality under Rule 1.6 is broad: All information relating to representation of a client is confidential, even if the information is available elsewhere, and it may not be disclosed by the attorney unless it is covered by a specific exception contained in the rule.
A lawyer may not assist a client in conduct that is criminal or fraudulent.3 However, not revealing a phone number given by a client to his attorney in the course of representation does not assist the client in any criminal or fraudulent conduct. (more…)

Ethics Advisory Opinion No. 97-03

(Approved April 25, 1997)
May an attorney engage in a direct solicitation, by mail and for pecuniary gain, that advertises mediation and arbitration services?
Opinion: A solicitation that is limited to alternative dispute resolution services is not prohibited, provided that the solicitation makes it clear to all parties that the alternative dispute resolution services are not legal services and that no attorney-client relationship will be established.

Analysis: An attorney proposes to engage in providing mediation and arbitration services and advertises those services by mail. The first sentence of the attorney’s letter to a prospective client would read: “Recently, you entered into legal proceedings with another party in connection with a dispute which you have.” The solicitation recites a number of disadvantages to litigation and compares them with the advantages of alternative dispute resolution (ADR). The solicitation also identifies the attorney as a “licensed Attorney with 14 years of experience in business, employment and contracting law as well as litigation experience,” and it explains the ADR services that are available through the attorney’s business.
Under some circumstances, the Utah Rules of Professional Conduct prohibit attorneys from making a direct, in-person solicitation of clients if done to “solicit professional employment.”1The mailing in question is a written communication by an attorney, directed to specific individuals who are parties in pending litigation. However, our inquiry into whether such a letter is governed by Rule 7.3 turns on whether the “professional employment” the attorney seeks includes the type of service this rule intended to regulate. Because we conclude it is not, we need not reach the question of whether the letter would otherwise violate Rule 7.3.
Under Utah statute, neither formal legal education nor membership in the Utah State Bar is required to provide mediation, arbitration or similar services.2It follows that ADR services are not considered by the Utah Legislature to be legal services or the practice of law.
The drafters of Rule 7.3 apparently intended that the direct solicitation described in the rule be prohibited only when legal services are solicited. In this regard, the language of Rule 7.3 might seem ambiguous, as it prohibits an attorney from soliciting “professional employment from a prospective client” without including such phrases as “practice of law” or “legal services.” However, the comments to Rule 7.3 and the context of the rule indicate an intent that the prohibition be limited to the solicitation of legal services in a direct relationship where the attorney, as advocate, represents the client, and that the rule’s reference to “professional employment” would not be construed to include non-legal services such as arbitration and mediation.
We must, however, make two cautionary comments. First, because the solicitation at issue here was conducted by an attorney, we call attention to Utah Ethics Advisory Opinion No. 151.3That opinion reviewed the conduct of a lawyer who had been appointed by an insurance company as an independent appraiser of the property of an insured of the company. The lawyer also provided legal services for the insurance company on unrelated matters. In holding that the lawyer’s conduct as an appraiser did not constitute legal services subject to the Rules of Professional Conduct, the opinion stated that: (more…)

Ethics Advisory Opinion No. 97-04

(Approved April 25, 1997)
May a law firm furnish lists of clients’ names, addresses and telephone numbers to securities brokers, financial planners, insurance salesmen and other professionals, without receiving prior permission from the clients?

Opinion: Information given to an attorney by his client, including the client’s name, address and telephone number, is confidential, and the attorney is prohibited from disclosing such information under Rule 1.6 unless the client consents after consultation.
Facts: As a result of providing legal services to its clients, a law firm has acquired a large number of names, addresses and telephone numbers of clients. The firm believes that various professionals, such as securities brokers, financial planners, insurance salesmen and others, would be interested in acquiring the firm’s client list. The firm also believes that its clients may benefit from receiving information from these other professionals. The firm has requested an opinion on whether it can ethically provide its client list to these other professionals for a fee without obtaining prior consent of its clients. Alternatively, the firm asks whether it can ethically furnish its client list to these professional if it does not charge a fee.
Analysis: The situation presented by this request is analytically similar to that presented in Utah Ethics Advisory Opinion No. 97-02,1where we determined that an accused’s telephone number, provided to his attorney in connection with a criminal investigation, was privileged information that could not be disclosed to law enforcement officials. The Committee believes the reasoning contained in Opinion No. 97-02 applies directly to the present situation.
Information provided to an attorney by a client during the course of representation is confidential under Rule 1.6,2and the rule prohibits the lawyer from revealing such information to a third party without the client’s prior consent after consulting with the client.3Here, the law firm proposes to provide information given to it by its clients during the course of the firm’s representation of those clients without first obtaining its clients’ consent. Rule 1.6 has a broad scope: All information relating to a client is confidential, even if the information is available elsewhere. The attorney may disclose the information without the client’s consent only if one of the exceptions specified in Rule 1.6(b) applies.
The application of Rule 1.6 also does not depend on whether the attorney receives or doesn’t receive compensation for providing the information. Consequently, the law firm is prohibited from providing a client list to third parties, with or without compensation, unless it first obtains the consent of those clients on the list.
1.1997 WL 45141 (Utah St. Bar).
2.(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure.
(b) A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) To rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used; (more…)

Ethics Advisory Opinion No. 97-05

(Approved April 25, 1997)
Issue No. 1: Is it ethical for an attorney to receive payment for legal services other than in money?
Opinion: The Utah Rules of Professional Conduct permit an attorney to accept payment for legal services in a form other than money. All arrangements for payment of an attorney’s fees, however, must comply with the applicable provisions of the Utah Rules of Professional Conduct concerning fees and the attorney-client relationship.
Issue No. 2: Is it ethical for an attorney to barter legal services through a barter exchange?

Opinion: Although an attorney’s bartering of legal services through a barter exchange is not prohibited per se by the Utah Rules of Professional Conduct, such bartering is unethical if the attorney’s conduct or the structure, terms, or conditions of the attorney’s arrangements with the barter exchange violate any of the Utah Rules of Professional Conduct.
Analysis: The request for this opinion asks generally, without presenting specific facts and circumstances, whether attorneys ethically may receive payment for legal services other than in money, such as through barter exchanges. The request also asks whether Utah Ethics Advisory Opinion No. 50, issued August 25, 1978, is still valid, noting that questions concerning an attorney’s participation in barter exchanges are of continuing interest in Utah.
Payment of Attorneys’ Fees Other Than in Money. Nothing in the Utah Rules of Professional Conduct requires that an attorney’s fees be paid in money. The fundamental requirement of the Utah Rules of Professional Conduct is that an attorney’s fees must be reasonable.1
Rule 1.5(b) requires a written communication concerning the basis or rate of an attorney’s fee when the lawyer has not regularly represented the client and it is reasonably foreseeable that total attorneys’ fees to the client will exceed $750.00. A determination of whether the $750.00 threshold will be met in a particular case requires that attorneys’ fees be evaluated in terms of their dollar amount.
However, Rule 1.5 does not require that payment for legal services be made in money. The following official comment to Rule 1.5 states that an attorney may accept property in payment for fees:
A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a fee paid in property instead of money may be subject to special scrutiny because it involves questions concerning both the value of the services and the lawyer’s special knowledge of the value of the property.
As this comment illustrates, no arrangement for payment of an attorney’s fees, whether in money, property or services, should violate any of the prohibited transaction rules of Rule 1.8. For example, an arrangement for payment of attorneys’ fees that involves the acquisition of a pecuniary interest adverse to a client in violation of Rule 1.8(a) is prohibited. Any arrangement for payment of attorneys’ fees that involves giving the lawyer literary or media rights in violation of Rule 1.8(d) is prohibited. Accepting reimbursement of costs other than in money in a way that provides for an improper advance of costs or expenses could also violate the financial assistance restrictions of Rule 1.8(e). (more…)

Ethics Advisory Opinion No. 97-06

(Approved May 30, 1997)
Under the Utah Rules of Professional Conduct, what are the ethical limitations that govern attorneys’ acceptance of clients’ credit cards to pay fees and costs?

Opinion: Generally, attorneys may accept payment for fees and costs by credit card in the same way that other merchants and service-providers do. This general conclusion is, in part, in conflict with Utah Ethics Advisory Opinion No. 21, which is accordingly overruled.
Background: In 1975, the Utah Ethics Advisory Opinion Committee issued Opinion No. 21, which placed significant restraints on the acceptance of credit cards by attorneys in payment of fees and cost. That opinion was issued under the then-effective Code of Professional Responsibility, which, among other differences, is at variance with the current Utah Rules of Professional Conduct in the area of attorney advertising. To the extent the world of communicating about attorneys’ services has changed, this Committee has been asked to revisit the issue of attorneys’ acceptance of credit cards under today’s Rules.
The following specific questions have been asked:
1. May an attorney accept cash or a check from a client to be held against unearned fees or costs when the attorney knows that the client obtained the funds through the use of a credit card?
2. May an attorney enter into a retainer agreement with a client under which the client gives the attorney a credit card number and authorizes the attorney to charge the client’s card when fees are earned or costs incurred?
3. May an attorney suggest to a client that the client use a credit card to pay attorneys’ fees or costs?
4. May an attorney place a notice on bills sent to clients stating that the attorney accepts credit card payments?
5. In accepting credit-card payments, must an attorney enter into a bank charge card-attorney agreement similar to the agreement attached to Ethics Advisory Opinion No. 21, issued February 19, 1975?
Analysis: In 1969 the American Bar Association issued Informal Opinion 1120 which stated that “it is unprofessional for an attorney to subscribe to credit card plans.” That view was reaffirmed in February 1971 by ABA Informal Opinion 1176. However, by 1974 in Formal Opinion 338, the ABA had revisited the issue of attorneys’ accepting credit cards for fee payments in light of the adoption of the ABA Model Code of Professional Responsibility, which had replaced the ABA Canons of Ethics. The ABA reversed course and concluded in Opinion No. 338 that “the Code has overruled Informal Opinion 1176 and that the use of credit cards for the payment of legal expenses and services is permitted under the Code.” However, the opinion went on to list six “considerations” to which a credit card plan was required to conform:
1. All publicity and advertising relating to a credit card plan shall be subject to the prior approval in writing of the state or local bar committee having jurisdiction of the professional ethics of the attorneys involved.
2. No directory of any kind shall be printed or published of the names of individual attorney members who subscribe to the credit card plan. (more…)

Ethics Advisory Opinion No. 97-07

(Approved May 30, 1997)
: Is a lawyer, acting as a trustee under the United States Bankruptcy Code, required to maintain bankruptcy estate trust funds in a financial institution that complies with check-overdraft reporting requirements described in Rule 1.15?

Opinion: No. A lawyer, acting as a trustee under the United States Bankruptcy Code, is not required to maintain funds in a financial institution that complies with the check-overdraft reporting requirements of Rule 1.15, because the administration of such bankruptcy funds is not the practice of law.
Facts: Pursuant to 11 U.S.C. § 1302, the United States Trustee appointed a lawyer as a Chapter 13 trustee for the District of Utah.1As a Chapter 13 trustee, the lawyer is a fiduciary for Chapter 13 estates created upon filing a petition for relief under Chapter 13 of the Bankruptcy Code. On behalf of the Chapter 13 estate, the trustee receives money from Chapter 13 debtors. The trustee is bonded, submits regular reports and is audited on a regular basis by the United States Trustee.
Analysis: Utah Rule of Professional Conduct 1.15 now requires a lawyer to enter an agreement with any financial institution where that lawyer has client or third-party trust funds. Under the agreement, the financial institution will report any non-sufficient checks or check overdrafts to the Office of Attorney Discipline.2
However, most of the Rules of Professional Conduct govern a lawyer’s actions only in the providing of legal services or in the practice of law. For example, an attorney’s direct-mail advertising of mediation and arbitration services is not prohibited under Rule 7.3 since mediation and arbitration services are not the practice of law.3This is true of Rule 1.15. Rule 1.15 states that the rule applies only to property “in connection with a representation.” The Comment to Rule 1.15 also suggests that Rule 1.15 only applies in the practice of law.4
The administration of a Chapter 13 trust is not the practice of law. The Bankruptcy Code does not require that a bankruptcy trustee be a lawyer.5The bankruptcy trustee has no attorney-client relationship with either the debtor or with any of the creditors. The bankruptcy trustee does not act as an advocate for or represent any of the parties. Therefore, a lawyer practicing as a Chapter 13 trustee is not required to conform with the requirements of Rule 1.15 in maintaining Chapter 13 funds.
Provisions other than Rule 1.15 exist to protect Chapter 13 funds. As a bankruptcy trustee, the lawyer must be bonded.6The United States Trustee regularly audits the lawyer, and the lawyer submits periodic reports to the United States Trustee. Finally, a lawyer acting as a trustee, even a Chapter 13 trustee, is still subject to Rule 8.4 for any misconduct in the handling of trust funds.7
This opinion that Rule 1.15 does not govern the Chapter 13 trustee’s actions applies only to the supervision of bankruptcy trust funds. If the lawyer, acting as a bankruptcy trustee, also maintains a non-bankruptcy estate trust fund for a client or a third party, that fund may be subject to Rule 1.15.
1.Although this opinion involves a Chapter 13 trustee, the analysis and result would be the same for other bankruptcy trustees. (more…)

Ethics Advisory Opinion No. 97-08

(Approved July 2, 1997)
May an attorney, formerly employed by a government agency, represent a private client in challenging: (i) the validity or enforceability of statutes, rules, ordinances or procedures that the attorney participated in drafting; or (ii) specific contracts or easements that the attorney negotiated, drafted or reviewed for approval on behalf of the government agency?

Opinion: (i) As a general rule, a former government agency is not prohibited from representing a private client in matters that involve the interpretation or application of laws, rules or ordinances directly pertaining to the attorney’s employment with a government agency. (ii) The attorney may not, however, represent such a client where the representation involves the same lawsuit, the same issue of fact involving the same parties and the same situation, or conduct on which the attorney participated personally and substantially on behalf of the government agency. In any event, an attorney may not undertake representation adverse to any former client where the matter is substantially factually related to the matter for which the former client retained the attorney’s services.
Analysis: During his tenure as an Assistant City Attorney, a lawyer was involved in drafting a number of ordinances and in approving “as to form” a number of contracts and other documents. Among other tasks, the attorney undertook to draft an interim zoning ordinance and a final zoning ordinance adopted by the City. The attorney’s duties also included negotiating and recommending approval of a particular easement to place a public hiking trail at a specific location.
Some time after leaving government employment, the attorney was approached by one or more prospective clients seeking to challenge the zoning ordinance and challenging the location of the trail. The City contacted the attorney and objected to his involvement on behalf of the private clients in these matters. The attorney has asked for our opinion, voicing concerns that much of his prospective client base depends on his ability to challenge ordinances and similar rules established by the City during his employment there.
Utah Rules of Professional Conduct 1.11(a) prohibits a former government attorney, unless otherwise authorized by law, from representing a private client “in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.” As the facts have been presented here, there appears to be no argument that the attorney was personally and substantially involves as a government attorney in the negotiation, drafting and approval process with respect to the zoning ordinances and the easement. The analysis therefore turns on whether the proposed representation would constitute the same “matter” as the attorney’s prior government experience for purposes of Rule 1.11(a).
Under Rule 11(d), the definition of “matter” expressly includes: “Any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties.”
A government attorney who has been employed to assist in the drafting of ordinances or rules is not prohibited from subsequently challenging the validity or enforceability of such rules on behalf of a private client where the subsequent representation does not involve the same proceeding, parties or facts. There is no suggestion, either in the express definition or under any relevant interpretation of Rule 11 that a prohibited “matter” would extend so far as to encompass instances involving the mere interpretation of rules, ordinances, laws or procedures, the drafting or enactment of which the former government attorney might have assisted with. (more…)

Ethics Advisory Opinion No. 97-09

(Approved July 28, 1997)
The Opinion is the result of a specific inquiry from a Utah attorney who has proposed to provide legal services as outlined in the Facts section in the body of the Opinion. The Opinion addresses the ethical considerations of a lawyer who plans to perform certain estate-planning legal services in conjunction with a non-lawyer estate-planning professional who is not employed or retained by the lawyer. In general, we find that the lawyer must perform an independent role as legal advisor to the client, assuring that the estate plan and associated documents are legally appropriate to accomplishing the client’s objectives.

An estate-planning lawyer (“Lawyer”) has been approached by non-lawyer estate-planning professionals (“Estate Planner”) to provide legal services to clients referred by Estate Planner, using the following procedures:
* Estate Planner will identify clients who require estate-planning services using advertisements, cold calls and other solicitation procedures. Estate Planner will meet with the client, complete with her a personal questionnaire form approved by Lawyer, and come to agreement with her about appropriate estate-planning vehicles to accomplish the client’s estate-planning goals.
* Estate Planner will discuss with the client whether the client has an attorney she would like to use to complete the estate-planning documents. In the event the client does not desire to use another attorney, Estate Planner will recommend that she retain Lawyer to perform the necessary legal services.
* If the client has indicated a desire to retain Lawyer to prepare the estateplanning documents, Estate Planner will telephone Lawyer and describe the client’s estate-planning objectives and the estate-planning vehicle being recommended by Estate Planner and will obtain a quotation from Lawyer as to the legal fees he will charge to perform the legal services of preparing final estate-planning documents. Lawyer anticipates that most fee quotations will be a fixed fee of less than $750. With respect to more complicated estates, Lawyer may quote an hourly fee or a fixed fee in excess of $750. In such cases, Lawyer will send a letter to the client confirming the amount or basis for the fee. Lawyer will obtain the name of the prospective client from Estate Planner and will perform a conflicts check.
* After conflicts have been cleared and Estate Planner’s client has agreed to be represented by Lawyer, Estate Planner will use a form prepared by Lawyer to create a “first draft” of the estate-planning documents. Estate Planner will not use Lawyer’s forms unless the client has agreed to retain Lawyer to perform the legal services.
* Estate Planner will deliver the “first draft” of the appropriate documents, together with the personal questionnaire to Lawyer. Lawyer will then telephone the client and verify that the client intends to retain Lawyer to perform the legal services of completing the estate-planning documents. If Estate Planner’s client agrees to be represented by Lawyer, Lawyer will (a) review the personal questionnaire, (b) review the first-draft of the estate-planning documents prepared by Estate Planner, (c) verify with the client the information set forth in the personal questionnaire, (d) inquire into the client’s estate-planning goals and objectives, and (e) if appropriate, discuss alternative estate-planning vehicles to the first-draft documents prepared by Estate Planner. In most cases, these communications will be by telephone, not in person. (more…)

Ethics Advisory Opinion No. 97-10

(Approved October 24, 1997)
May a Utah attorney advertise services on a web page or engage in other electronic advertising on the Internet?

Opinion: Attorneys may operate and maintain a web site and post advertisements to newsgroups, provided they comply with Rule 7. Advertising through e-mail messages, which are directed to specific recipients, is generally permissible unless it violates Rule 7.3(b). Attorneys’ participation in “chat groups” is considered to be an “in person” communication and subject to the restrictions of rule 7.3(a).
Analysis: Advertising legal services over the Internet is becoming common. The Ethics Advisory Opinion Committee has been asked to render an opinion about the ethical considerations of such practices under the Utah Rules of Professional Conduct. Web sites1and Internet communications are not specifically mentioned in Rule 7.22on advertising, although reference to advertisements through “public media” in that rule (telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication) makes the rule applicable to Web sites and other forms of Internet communication.
The several different forms of electronic communication over the Internet require separate scrutiny as to the applicability of the Rules of Professional Conduct.3
Attorneys’ Web Sites
An attorney may operate a web site accessible by the general public. We believe a potential client’s access to information through a web site is analogous to telephoning the firm or visiting the lawyer’s office to request information. This type of advertising must therefore comply with: Rule 7.1 regarding false or misleading communication, Rule 7.2(b) regarding retention of a copy of any advertisement for two years, Rule 7.2(d) regarding inclusion of the name of a responsible lawyer on any advertisement, and Rule 7.4 regarding fields of practice.
Attorneys should be particularly aware of Rule 7.2(b)’s requirement to keep a copy of any advertisement for two years. In the context of web-page advertising, an attorney must retain a copy of each page of a web site, not just the “home page.”4Effective web sites are updated and changed regularly, perhaps even daily, and retaining a hard copy of each update may not be efficient or practical. To satisfy Rule 7.2(b), attorneys may elect to keep an electronic copy of each page for the requisite two years; this would be deemed to be a “recording” under Rule 7.2(b).5
We note that the requirement of Rule 7.2(b) to keep a record of advertisements for two years allows the Bar to review advertisements for compliance with the Rules of Professional Conduct. However, we believe that simple line listings in the yellow pages of a telephone book, which list only the lawyer’s individual name, telephone and facsimile numbers, and street or electronic addresses, would not violate any of the advertising proscriptions or limitations in the Rules. Accordingly, we find that such postings6do not reach the level of “advertising” under Rule 7.2. Similarly, a severely limited Internet posting of information consisting of nothing more than name, addresses and phone numbers on electronic “yellow pages” is equally benign and would not invoke the requirement of Rule 7.2(b).
Newsgroup Postings
Attorneys can post messages to “newsgroups,” which are narrowly focused interest groups. These postings are analogous to placing an advertisement for legal services in a narrow-interest magazine or newspaper. The general guidelines noted above for web sites are, therefore, applicable to newsgroup postings. (more…)

Ethics Advisory Opinion No. 97-11

(Approved December 5, 1997)
May an attorney finance the expected costs of a case by borrowing money from a non-lawyer pursuant to a non-recourse promissory note, where the note is secured by the attorney’s interest in his contingent fee in the case?

Conclusion: An attorney’s grant of a security interest in a contingent fee from a particular case to secure a loan constitutes the sharing of fees with a non-lawyer in violation of Utah Rules of Professional Conduct 5.4(a).
Facts: “Attorney” has consulted with a private individual who is not an attorney (“Lender”). Lender proposes to loan to Attorney an agreed-on amount to be used for costs and expenses in pursuing a matter on behalf of Attorney’s client (“Client”). Attorney and Client have a contingent-fee agreement under which Attorney is responsible for costs, and under which Attorney is entitled to a percentage of the recovery. A promissory note would be executed under which an interest rate would be calculated on the basis of the risk of loss of the case and the fact that Attorney’s portion of the recovery would be the only source of repayment of the funds. Funds would be disbursed by Attorney in periodic draws as expenses were incurred.
The loan agreement would also state that Attorney would pay Lender the first proceeds of his share of any recovery until the amount of the note, plus interest, was paid. However, the loan would be “nonrecourse” to Attorney; that is, in the event the loan is not repaid, the Attorney could not be held personally liable by Lender for repayment. As security for the loan, Attorney would assign to Lender his interest in the contingent-fee agreement with Client. A security agreement and financing statement would be signed and proper filings with the appropriate authorities would be made to perfect Lender’s security interest. Client would specifically consent to the loan in writing. Lender would agree that he has no right to direct or influence the litigation, that his sole contact with Attorney would be for Attorney to report on the progress of the case, and that Lender could audit expenses paid from loan proceeds for genuineness.
Analysis: Except in certain circumstances, none of which apply to the matter before us, Rule 5.4(a) prohibits a lawyer or law firm from sharing legal fees with a nonlawyer.1The Comment to Rule 5.4 states that the rule “expresses traditional limitations on sharing fees,” and that “[t]hese limitations are to protect the lawyer’s professional independence of judgment.”
Lender contends that the proposed arrangement does not involve “fees,” because it is merely the repayment of “costs.” We disagree. First, the proposed source of repayment is from Attorney’s share of the award under the contingent-fee agreement with Client. Attorney agreed to accept responsibility to pay costs and took the risk that he would not recover them out of his share of the award. For our purposes, all of his receipts are “fees.” Even if we were to view the first funds coming to Attorney as reimbursement of costs, however, it is clear that, due to the interest factor on the loan, some amounts from the pure “fee” portion of the recovery could have to be paid to Lender to pay the note in full. (more…)

Ethics Advisory Opinion No. 97-12

(Approved January 23, 1998)
Utah Code Ann. § 62A-4a-403 obligates any person who suspects a child has been subjected to abuse to report such conduct to the nearest law enforcement officer. Is it a violation of the Rules of Professional Conduct if the attorney does not report a client’s conduct that falls under this provision when the attorney learns of such conduct from the client and the client refuses to consent to such disclosure?

Opinion: It is not a violation of the Rules of Professional Conduct if the attorney does not disclose such information, but the attorney may, to the extent the attorney believes necessary, disclose attorney-client information as provided in Rule 1.6(b).
Facts: The Committee has been asked to assume that an attorney, in the course of attorney-client consultations, learns from a client that the client has subjected a child to abuse. The client does not consent to disclosure by the attorney of the abuse to law enforcement authorities.1
Utah Code Ann. § 62A-4a-403(1) provides, in pertinent parts, as follows:
Except as provided in Subsection (2), when any person, including persons licensed under Title 58, Chapter 12, Part 5, Utah Medical Practice Act, or Title 58, Chapter 31, Nurse Practice Act, has reason to believe that a child has been subjected to incest, molestation, sexual exploitation, sexual abuse, physical abuse or neglect, or who observes a child being subjected to conditions or circumstances which would reasonably result in sexual abuse, physical abuse or neglect, he shall immediately notify the nearest peace officer, law enforcement agency or office of the division.
Section 62A-4a-403(2) provides an exception for clergy, who are not required to notify law enforcement authorities under certain circumstances. The statute does not address the duty of confidentiality regarding the attorney-client communications contained Utah Rules of Professional Conduct 1.6 and the attorney-client privilege in Utah Rules of Evidence 504, nor the privilege against self-incrimination contained in the Utah Constitution, Article I, § 12.
Analysis: Rule 1.6(a) of the Rules of Professional Conduct prohibits an attorney from revealing information relating to the representation of a client unless that client consents after disclosure. Rule 1.6(b) provides some exceptions to this prohibition:
A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
(4) to comply with the Rules of Professional Conduct or other law.2
The confidentiality of communications between attorney and client is further recognized in Utah Rules of Evidence 504(b),3which provides in pertinent part:
General Rule of Privilege. A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives and lawyers representing others in matters of common interest, in any combination. (more…)