Ethics Advisory Opinion No. 97-01

(Approved January 24, 1997)
Issue:
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.
This opinion overrules Utah Ethics Advisory Opinion No. 43, issued on March 3, 1978.
Footnotes
1.References to “client” include a person who might be considered a former client.
2.See Utah Rules of Professional Conduct 1.15 cmt., which discusses the analogous situation where an attorney “is not required to remit [to the client] the portion [of funds from a third party] from which the lawyer’s fee will be paid.”
3.Utah Code Ann. §§ 67-4a-201 to -214 (1996).
4.Ethics Advisory Op. Comm. R. Proc. § III(b)(3).
5.Utah Code Ann. §§ 67-4a-301 to -303 (1996).

Ethics Advisory Opinion No. 97-02

(Approved January 24, 1997)
Issue:
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.
Rule 1.6(b)(4) does permit a lawyer to reveal such confidential information to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law. The comment to this subsection, however, indicates there is a presumption against concluding that any other provision of law supersedes Rule 1.6.4There is nothing in the factual situation before us that would supersede Rule 1.6 and permit disclosure of confidential information.
Footnotes
1.E.g., 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 Steinback v. Meyer, 412 N.W.2d 917, 918 (Iowa Ct. App. 1987).
2.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.
Utah Rules of Professional Conduct 1.6(b). It is noted that none of these exceptions mandate disclosure by the lawyer.
3.Utah Rules of Professional Conduct 1.2.
4.”Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against a supersession.” Id. Rule 1.7 cmt.

Ethics Advisory Opinion No. 97-03

(Approved April 25, 1997)
Issue:
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:
If the lawyer does not make it clear to all parties who may be otherwise misled that the appraisal services are not legal services and that a client-lawyer relationship is not being established, the lawyer will be governed by the Rules of Professional Conduct in the provision of appraisal services to the extent the insurance company client of the insured might reasonably believe that a client-lawyer relationship exists between the lawyer and the insurance company for the performance of the appraisal services.
Here, the direct solicitation letter is being sent to parties involved in litigation. Many of these parties may be particularly vulnerable to the implication that, because an attorney is offering alternative dispute resolution services, they are being asked to employ an attorney for legal services under which an attorney-client relationship would be established. Unless such an implication is clearly dispelled, the attorney’s services in the alternative dispute resolution context would be subject to the Rules of Professional Conduct.
Second, to the extent that the mailing at issue would be sent to persons involved in an ADR program under the auspices of a Utah court, it would be subject to the Utah Rules of Court-annexed Alternative Dispute Resolution (the “ADR Rules”). The ADR Rules provide a Code of Ethics for ADR Providers, under which “[a] provider should not directly contact a party to solicit the selection of that provider in a particular case if the party is represented by counsel.”4
The ADR Rules have been established by the Judicial Council and are administered by the Administrative Office of the Courts under the supervision of the Director of Dispute Resolution Programs.5While a violation of the ADR Rules may not, of itself, constitute a violation of the Rules of Professional Conduct, we must caution persons issuing solicitations in the ADR context to be mindful of the rules governing ADR providers-particularly in connection with Utah’s Court-annexed ADR program.6
Conclusion: Provided that the proposed mailing is modified to make it clear to all parties that legal services are not being offered and that no attorney-client relationship will be established, the mailing would not violate the Utah Rules of Professional Conduct’s limitations on direct solicitation of prospective clients for legal services. The person initiating the mailing should also decide whether the Utah Rules of Court-annexed Alternative Dispute Resolution apply to the proposed mailing.
Footnotes
1.A lawyer may not solicit, in-person, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “in-person” includes in-person and telephonic communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
Utah Rules of Professional Conduct 7.3(a).
2.Applicants for certification as an alternative dispute resolution provider shall:
(1) submit an application in a form as prescribed by the division;
(2) pay a fee as determined by the department under Section 63-38-3.2;
(3) be of good moral character; and
(4) complete a program of education or training, or both, in ADR or have demonstrated sufficient experience in ADR, as determined by the division in a collaboration with the board.
Utah Code Ann § 58-39a-5 (1996). In addition, Utah Code Ann § 78-31b-5(3) provides:
The rules of the Judicial Council shall include provisions: . . . .
(h) to establish the qualifications of ADR providers for each form of ADR procedure including that:
(i) an ADR provider may, but need not be, a certified ADR provider pursuant to Title 58, Chapter 39a, Alternative Dispute Resolution Providers Certification Act; and
(ii) formal education in any particular field may not, by itself, be either a prerequisite or sufficient qualification to serve as an ADR provider under the program authorized by this act; . . . .
3.1994 WL 631268 (Utah St. Bar).
4.Utah R. Court-annexed ADR, Canon I, ¶(h)(1995).
5.Utah Code Ann. § 78-31b-5(1)(1996).
6.See also Utah Rules of Professional Conduct 8.4(d), under which it is professional misconduct to “[e]ngage in conduct that is prejudicial to the administration of justice.”

Ethics Advisory Opinion No. 97-04

(Approved April 25, 1997)
Issue:
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.
Footnotes
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;
(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.
“Confidentiality of Information,” Utah Rules of Professional Conduct 1.6(a), (b).
3.Utah Rule 1.6(a) uses the phrase “consents after disclosure”; its predecessor, DR 4- 101(C)(1), uses the phrase “consents after full disclosure”; ABA Model Rule 1.6(a) uses the phrase “consents after consultation.” We perceive no significant distinction among these variations. The client’s consent must be subsequent to a meaningful communication with the attorney.

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).
If an arrangement for payment of an attorney’s fees in property or services is otherwise appropriate under the Utah Rules of Professional Conduct, the attorney should be fully aware of the tax implications of such an arrangement and should comply with applicable tax laws. The application of tax laws to barter arrangements is a matter of substantive law and therefore is not addressed in this opinion. However, it would be professional misconduct for an attorney to engage in a criminal act involving a barter for fees; this would violate Rule 8.4(b) by reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. Further, under Rule 8.4(c), it would be professional misconduct for an attorney to engage in any conduct involving participation in a barter exchange that constitutes dishonesty, fraud, deceit, or misrepresentation.
Bartering Legal Services Through a Barter Exchange. The Utah Ethics Advisory Opinion Committee has addressed the ethical propriety of an attorney’s participation in a barter exchange on two prior occasions.2
Opinion No. 12 determined that attorneys may not be members of barter exchanges in which they barter their services for other professional services. The barter exchange addressed in Opinion No. 12 did not list names of attorney members as such, but a list of attorney members would have been made available to exchange members upon request. Opinion No. 12 determined that such a listing would violate Canon 27 of the then-applicable Canons of Professional Ethics, which provided: “It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations.” The opinion further determined that such a listing would violate several provisions of the Code of Professional Responsibility: (a) the provisions of Disciplinary Rule (“DR”) 2-101(B) prohibiting advertising by attorneys, (b) the provisions of DR 2-103(B) prohibiting attorneys from giving anything of value to an organization to recommend or secure employment by a client; and (c) the provisions of DR 2-103(C) prohibiting attorneys from requesting an organization (other than an approved referral service) to recommend the attorney’s employment.
Opinion No. 50 again determined that attorneys may not join barter exchanges. The barter exchange addressed in Opinion No. 50 consisted of businesses paying a membership fee to the exchange operators and receiving in return a credit in the same amount in an “exchange account.” Thereafter, payment for any services or goods which one member provided to another member of the exchange was reflected as a credit to its exchange account rather than being paid for by the recipient. The exchange charged a percentage fee for each transaction. The exchange issued a monthly newsletter including a general description of the types of businesses associated with the exchange and would have noted that attorneys at law were members of the exchange. Had the arrangement been approved, an exchange member needing legal services would have called the exchange, which would then have given the member a list of the attorney members of the exchange.
Opinion No. 50 reasoned that, in spite of changes in DR 2-101(B) permitting advertisement of legal services under certain restrictions, the restrictions on solicitation contained in DR 2-103 had been virtually unchanged. Opinion No. 50 noted that solicitation of services by an attorney through a barter exchange was still prohibited by the Code of Professional Responsibility and had not been authorized by the then-recent opinion of the United States Supreme Court in In re Primus.3Accordingly, Opinion No. 50 concluded that participation of an attorney in a barter exchange would be improper, expressly basing its conclusion on the solicitation rules of DR 2-103.
Within the past 20 years, other jurisdictions have addressed whether it is ethical for an attorney to barter legal services through a barter exchange, generally concluding that attorneys may not barter legal services through barter exchanges.4Recently, however, the New York State Bar Association Committee on Professional Ethics issued its Opinion No. 665 (71-93) (June 3, 1994), permitting New York lawyers to participate in barter exchanges that meet certain requirements. The New York ethics committee concluded that, for a lawyer ethically to participate in a barter exchange, the following requirements must be met: (1) the exchange may not interfere with the lawyer’s professional judgment, (2) the advertising materials for the exchange must comply with New York DR 2-101(A),5(3) the exchange may not refer clients to participating lawyers other than through the use of advertising that complies with the Code of Professional Responsibility,6(4) the exchange and its agents do not engage in in-person solicitation of clients for barter-exchange lawyers, and (5) the lawyer’s fee to the client is reasonable. These conditions are reasonable, and we adopt them in principle.
Rule 7.3 of the Utah Rules of Professional Conduct (Direct Contact with Prospective Clients) provides solicitation rules that are different from the solicitation rules in effect when Opinion Nos. 12 and 50 were issued. Due to these changes, the categorical statements in Opinion Nos. 12 and 50 such as “[s]olicitation of services by an attorney is still prohibited” are no longer accurate, and Opinion Nos. 12 and 50 are overruled. However, Rule 7.3 does prohibit certain forms of solicitation, and the fundamental premise of Opinion Nos. 12 and 50 that an attorney may not participate in a barter exchange in violation of current solicitation rules remains valid.
Under current ethical rules governing solicitation of legal services, and given the variety in possible structures, terms, and conditions of barter exchanges, the Committee cannot make a categorical determination that an attorney’s participation in a barter exchange is a violation of the Utah Rules of Professional Conduct. A determination of the ethical propriety of an attorney’s participation in a particular barter exchange could only be made following a review of the attorney’s proposed conduct and the structure, terms, conditions of the particular barter exchange under current ethics rules, including: Rule 1.1 (Competence), Rule 1.2 (Scope of Representation), Rule 1.5 (Fees), Rule 1.6 (Confidentiality of Information), Rule 1.7 (Conflict of Interest: General Rule), Rule 1.8 (Conflict of Interest: Prohibited Transactions), Rule 1.9 (Conflict of Interest: Former Client), Rule 1.16 (Declining or Terminating Representation), Rule 3.1 (Meritorious Claims and Contentions), Rule 4.1 (Truthfulness in Statements to Others), Rule 5.5 (Unauthorized Practice of Law), Rule 7.1 (Communications Concerning a Lawyer’s Services), Rule 7.2 (Advertising), Rule 7.3 (Direct Contact with Prospective Clients), Rule 7.4 (Communication of Fields of Practice). Finally, an attorney bartering services through an exchange should be fully informed of the tax implications of such an arrangement and should comply with applicable tax laws.
Footnotes
1.Utah Rules of Professional Conduct 1.5(a).
2.Utah Ethics Advisory Opinion No. 50 (Aug. 25, 1978); Utah Ethics Advisory Opinion No. 12 (Aug. 15, 1973).
3.436 U.S. 412 (1978).
4.See, e.g., Ill. State Bar Op. 583, 1980 WL 130458 (“a lawyer may not join a trade association where he barters legal services for ‘exchange checks’ redeemable only in goods and services from other members of the association”); Cal. State Bar Op. 1977-44, reported in 54 Cal. St. B.J. 182 (1979) (improper for lawyers to participate in a barter exchange because it involves an improper solicitation of business and division of fees); ABA Informal Op. 1430 (Jan. 8, 1979) (improper for lawyers to become members of trade exchanges because such exchanges constitute an improper division of fees); Mass. State Bar Op. 78-6, cited in 63 Mass. L. Rev. 137 (1978) (improper for an attorney to become a member of a service which creates a 10% service charge on all transactions between members and exists to promote the members’ products and services).
5.The corresponding rules in Utah are Rules 7.1 (Communications Concerning a Lawyer’s Services) and 7.2 (Advertising).
6.This corresponds to the Utah Rules of Professional Conduct.

Ethics Advisory Opinion No. 97-06

(Approved May 30, 1997)
Issue:
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.
3. No promotional materials of any kind will be supplied by the credit card company to a participating attorney except possibly a small insignia to be tactfully displayed in the attorney’s office indicating his participation in the use of the credit card.
4. An attorney shall not encourage participation in the plan, but his position must be that he accepts the plan for the convenience for clients who desire it; and the attorney may not because of his participation increase his fee for legal services rendered the client.
5. Charges made by attorneys to clients pursuant to a credit card plan shall be only for services actually rendered or cash actually paid on behalf of a client.
6. In participating in a credit card program the attorney shall scrupulously observe his obligation to preserve the confidences and secrets of his client.
ABA Opinion 338 does not cite any provision of the ABA Model Code of Professional Responsibility as support for the “considerations,” nor does the opinion cite any provision of the Code as support for any conclusion in the opinion.
The year after Opinion 338 was issued, the Utah State Bar approved Opinion No. 21, which adopted the conclusion of ABA Formal Opinion 338: “We concur with Formal Opinion 338, and accordingly hold that if those requirements [the "six considerations"] are met fully, the use of credit cards for the payment of attorney’s services and charges is proper for members of the Utah State Bar.” Also appended to Opinion No. 21 was a suggested form of “Bank Charge Card-Attorney Agreement.” As with ABA Opinion 338, Utah Ethics Opinion 21 does not cite any provision of the Utah Code of Professional Responsibility (the predecessor to today’s Utah Rules of Professional Conduct) to support the requirements.
Rule 1.5 of the Utah Rules of Professional Conduct deals with fees. The rule does not prohibit credit cards. Just as Opinion No. 21 concluded that “the use of credit cards for payment of legal expenses and services is permitted,” Rule 1.5 of the Rules of Professional Conduct currently permits the use of credit cards for payment of legal expenses and services.
The previous opinions of the ABA and the Utah State Bar were written under the prior Canons of Ethics or the Code of Professional Responsibility. Attorney advertising was much more limited in those days under the Code of Professional Responsibility than it is today under the Rules of Professional Conduct. Since then, court decisions,1combined with the adoption of the Rules of Professional Responsibility, have granted attorneys greater freedom in the area of advertising. In light of these changes, the following discusses, in turn, each of the six “considerations” listed in Opinion 21.
1. Current Rule 7.2 deals with advertising by attorneys. It does not require “prior approval in writing of the state or local bar committee having jurisdiction of the professional ethics of the attorneys involved.”
2. Rule 7.2 does not prohibit attorneys from being included in a directory of firms and businesses that accept credit cards. This would not be substantially different from an attorney’s being included in (or actually advertising in) a directory of firms and businesses that have a telephone and accept telephone calls.
3. Rule 7.2 does not limit an attorney to a “small insignia to be tactfully displayed in the attorney’s office indicating his participation in the use of the credit card.”
4. Nothing in the Rules of Professional Conduct explicitly requires an attorney to discourage the use of credit card in payment of fees or services. However, Rule 2.1, Advisor, provides:
In representing a client, an attorney shall exercise independent professional judgment and render candid advice. In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Therefore, economic factors of a client’s situation could require an attorney to advise that a client not use a credit card to pay the attorney’s fees and services.
In addition, there is no ethical principle that would prohibit the attorney from passing along any additional costs incurred in accepting credit-card payment. As with most retail merchants, the attorney or law firm might typically forego this charge. But, if a credit-card company charges the attorney, for example, 3% of the gross billings to provide its services, these are legitimate costs that the attorney may pass on to clients. (This could be a direct charge or could, for example, take the form of a discount to cash-paying clients of an equivalent percentage.
5. The Rules of Professional Conduct do not require that the attorney restrict credit card acceptance to those instances in which the attorney is billing only for services actually rendered or cash actually paid on behalf of a client. However, if an attorney accepts credit-card payment as an advance of fees or reimbursements, then the attorney must comply with Rule 1.15, Safekeeping of Property, and with Rule 1.16(d), which deals with refunding any advance payment of fee which has not been earned, upon termination of representation.
6. An attorney does have a duty to preserve confidences in accordance with Rule 1.6, which forbids disclosure of “information relating to representation of a client . . . , unless the client consents after disclosure.” The rule has been read as being broad enough to protect the client’s identity.2It is possible that the acceptance of a credit card will reveal to the credit card company that the client has paid an attorney. Therefore, in an instance where the attorney is aware that the client wishes the fact of his being represented by an attorney to remain confidential, the attorney should alert the client who offers to pay by credit card of the disclosure of his name to the credit-card company to insure that the client consents.
With this discussion as a foundation, we now address directly the questions raised in this request:
1. An attorney may 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. An attorney may 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. An attorney may suggest that a client use a credit card to pay attorneys’ fees or costs.
4. An attorney may place a notice on bills sent to clients stating that the attorney accepts credit card payments.
5. In accepting credit-card payments, an attorney has no obligation to enter into a bank charge card-attorney agreement similar to the agreement attached to Ethics Advisory Opinion No. 21. Indeed, we see no reason that the relationship between the attorney and the bank or credit-card company would be significantly different from that between a card company or bank and other providers of professional services.
For the reasons discussed above, this opinion overrules Utah Ethics Advisory Opinion No. 21.
Footnotes
1.See, e.g., Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
2.Utah Ethics Advisory Committee Op. No. 97-02, 1997 WL 45141 (Utah St. Bar); see Przypyszny, Public Assault on the Attorney-Client Privilege: Ramifications of Baltes v. Doe, 3 Geo. J. Legal Ethics 351 (1989) (discussing a Florida case where lawyers refused to disclose the identity of a client that had allegedly consulted them concerning a hit-and-run.) But cf. In re Subpoena to Testify Before the Grand Jury (Alexiou v. U.S.), 39 F.3d 973 (9th Cir. 1994) (holding that a lawyer had to reveal the identity of the client in a counterfeiting case).
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Ethics Advisory Opinion No. 97-07

(Approved May 30, 1997)
Issue
: 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.
Footnotes
1.Although this opinion involves a Chapter 13 trustee, the analysis and result would be the same for other bankruptcy trustees.
2.A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person. The account may only be maintained in a financial institution which agrees to report to the Office of Disciplinary Counsel in the event any instrument in properly payable form is presented against an attorney trust account containing insufficient funds, irrespective of whether or not the instrument is honored. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.
Utah Rules of Professional Conduct 1.15(a) (as amended, effective Nov. 1, 1996).
3.Utah Ethics Adv. Op. 97-03, 1997 WL 223849 (Utah St. Bar).
4.The obligations of a lawyer under this Rule are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transactions.
Utah Rules of Professional Conduct 1.15, cmt. ¶ 4.
5.11 U.S.C. § 321 (1994); In re Construction Supply Corp., 221 F. Supp. 124 (E.D. Va. 1963).
6.11 U.S.C. § 322 (1994).
7.A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trustee, executor, administrator, guardian, agent and officer, director or manager of a corporation or other organization.
Utah Rules of Professional Conduct 8.4, cmt. ¶ 3.
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Ethics Advisory Opinion No. 97-08

(Approved July 2, 1997)
Issue:
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.
ANALYSIS
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.
The validity or enforcement of generally applicable rules and ordinances does not, in and of itself, constitute a prohibited “matter” under Rule 1.11(a) unless the attorney were also involved in some specific proceeding or controversy involving the same parties or specific facts pertaining to the proposed private representation.
At least one other opinion of this Committee supports this interpretation of the Rules—Opinion No. 77 (Jan. 20, 1986). Interpreting DR 9-101(B) of the Code of Professional Responsibility, the predecessor to Rule 1.11(a), this Committee analyzed the prohibition against successive government and private employment in that disciplinary rule. That opinion established that “the same lawsuit or litigation is the same matter” for purposes of the prohibition, but that “drafting government or agency procedures is not.”
In interpreting the predecessor to Rule 1.11(a), the Committee generally recognized that important policy considerations support a rule that does not “broadly limit the lawyer’s employment after the leaves government service.” A proscription against subsequent representation on legal issues pertaining solely to the validity and interpretation of city rules and ordinances would severely hamper the post-government employment options of former city attorneys. Such a prohibition could also limit the prospective client’s selection of counsel, particularly in cities that are more remote or where legal services are less readily available.
Rule 1.11 is intended to prevent a lawyer from exploiting public office for the advantage of a private client, presumably some prospective client or group of clients. 1 The Rule protects against an attorney “switching sides,” as well as the possible disclosure of confidential government information. 2 However, the Rule’s purpose is not ordinarily implicated where the private representation involves only a challenge to ordinances or rules of general application; such challenges are not so much the domain of any particular attorney, but are commonly pursued by lawyers of varied backgrounds and experience. On the other hand, where the subsequent representation involves something more than a facial challenge to an ordinance, but will implicate the former government attorney in a specific matter between the same parties or in the same proceeding as the prior government representation, the purpose of the rule is squarely addressed.
The prohibition of Rule 1.11(a) arises in the context of proceedings or requests for rulings that involve the specific facts, conduct or parties at issue in the attorney’s former government representation. In Opinion No. 77, for example, we expressed our view that a former city attorney was prohibited from representing a private client in arguing the specific intent and interpretation of a city contract that the attorney had himself negotiated and drafted on behalf of the city. As we explained:
In this case, [the attorney] in effect switched sides by representing [the client] against the city in a matter he was heavily involved in as city attorney. [He] used his knowledge from his previous government job to benefit a new and adverse client. . . . By drafting the contract for the city and later using the contract for a private client, [the attorney] used his substantial responsibility as a government employee to the benefit of that private client. 3
We view the potential representation with respect to the specific easement and its location very much in the same light as the contract negotiation/interpretation at issue in Opinion No. 77. Under the facts before us, the former Assistant City Attorney would be precluded under Rule 1.11(a) from representing a private client in attacking the placement of the public-trail easement that he himself had reviewed, negotiated and approved on behalf of the City. The issues involved in locating the public-trail easement constitute the same specific facts as the attorney’s previous engagement on behalf of the City. In effect, having advocated for the city in placing the trail, the attorney now would be “switching sides” in challenging the location on public policy or other grounds.
The standard in determining what constitutes the same “matter” for purposes of Rule 1.11(a) was enunciated by the Utah federal district court in Poly Software Int’l, Inc. v Su: “The same ‘matter’ is not involved [when] . . . there is lacking the discrete, identifiable transaction of conduct involving a particular situation and specific parties.” 4 In evaluating the issue of the public-trail easement, we are inclined to believe that the factual nexus between the prior engagement and the proposed private representation falls adequately within the confines of the “identifiable transaction” standard announced by the district court, and it is quite similar to the prohibited representation addressed in Opinion No. 77.
The negotiation of the specific easement in question is essentially the equivalent of the contract negotiation and drafting that the former city attorney had undertaken on behalf of the city in Opinion No. 77. By virtue of the attorney’s individual insight into the City’s thought process, strategies and the possible alternatives considered by the City in locating the easement, the attorney is likely to have gained some information or otherwise participated in a very individual respect to such a degree that his prospective private representation against the City with respect to the easement would be improper under Rule 1.11(a). By undertaking the proposed representation, the attorney would have essentially “switched sides” on the specific factual issues pertaining to the policy considerations for locating the easement where the city had successfully sited it. It is precisely this type of successive government and private involvement that Rule 1.11(a) is intended to prohibit.
Having decided that the proposed representation in challenging the specific easement would violate Rule 1.11(a), we need not discuss in detail the application of other rules. We do, nevertheless, note that Rule 1.9 prohibits any attorney, including former government lawyers, from representing “another person in the same or substantially factually related matter” adverse to the interests of a former client. As the Poly Software court explained, the factual “nexus” required to invoke the prohibition of Rule 1.9 may exist even where the matters are not so closely related as to give rise to a Rule 1.11 prohibition:
A “substantially factually related matter,” on the other hand, is not defined by an particular, discrete legal proceeding. By its terms, it includes aspects of past controversies which are similar, but not necessarily identical, to those encompassed within a present dispute. So long as there are substantial factual threads connecting the two matters, the criteria of Rule 1.9 are met. 5
Given our discussion of the easement question above and under the more inclusive standard of Rule 1.9, the former Assistant City Attorney would be prohibited, in any event, from undertaking representation of the prospective client with respect to the specific easement in question.
Footnotes
1 Poly Software Int’l, Inc. v. Su, 880 F. Supp. 1487 , 1493 (D. Utah 1995).
2 See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975); Utah Ethics Advisory Op. No. 77 (1986).
3 Utah Op. No. 77.
4 880 F. Supp. At 1493.
5 Id. at 1492.

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.

FACTS
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.
* Lawyer will then finalize the estate-planning documents and prepare (but not send) a “firm letter” addressed to the client, transmitting the final estate-planning documents and indicating that, in the opinion of Lawyer, the final estate-planning documents are in accordance with applicable law and accomplish the goals and objectives set forth in the personal questionnaire.
* The “firm letter” will not be delivered to the client, but will be delivered to Estate Planner. Estate Planner will then deliver the firm letter and estate-planning documents to the client for execution.
* Lawyer does not intend to advise the client with regard to the execution of the estate-planning documents or with respect to the conveyance or transference of assets into trusts or other vehicles created by the estate-planning documents. Any advice required in these areas would be provided by Estate Planner.
* Lawyer will not advise the client as to the financial appropriateness of any investments recommended by Estate Planner as part of the client’s estate plan.
* Estate Planner will bill the client a fixed fee for Estate Planner’s services plus commissions with regard to any investment products sold to the client, such as life insurance. Estate Planner will bill separately from the Lawyer for Estate Planner’s services.
* Lawyer will bill separately for his services and will not share any portion of his fees with Estate Planner. Lawyer will not give anything of value to Estate Planner for recommending Lawyer’s services.
ISSUES AND DISCUSSION
Issue No. 1: Does a lawyer performing estate-planning legal services for a client in conjunction with a non-lawyer Estate Planner provide competent representation under Rules 1.1 and 1.2(b) under the foregoing statement of facts?
Analysis: The proposed procedures underlying the relationship between Lawyer and Estate Planner include limitations on the scope of the representation to be provided by Lawyer. Estate Planner, not Lawyer, will initially meet with the client and will counsel the client with respect to completion of the personal questionnaire form. The personal questionnaire form has been drafted to elicit the client’s estate-planning objectives, assets and intended beneficiaries. On the basis of the information provided by the client in the personal questionnaire, Estate Planner-not Lawyer-will initially identify the appropriate estate-planning vehicles to accomplish the client’s estate-planning objectives. It is Estate Planner-not Lawyer-who prepares the first draft of the estate-planning documents.
The legal services provided by Lawyer are: (1) a review of the personal questionnaire completed by the client and the draft estate-planning documents prepared by Estate Planner; (2) a consultation, normally by telephone only, with the client to verify the information contained in the personal questionnaire, the client’s estate-planning objectives, and the appropriate estate-planning vehicle to accomplish these objectives; and (3) preparation of final estate-planning documents and a “firm letter” advising the client that the final estate-planning documents accomplish the goals and objectives of the client. The legal services provided by Lawyer will not include advice to the client with respect to the financial appropriateness of investments described in the estate-planning documents or advice to the client about the appropriate means of executing the estate-planning documents or placing assets into the estate-planning vehicles created by the estate-planning documents.
The foregoing limitations on Lawyer’s services are intended to reduce the overall costs to the client of preparation of final estate-planning documents. The issue here is whether Lawyer has limited his services to the client to such an extent that he is no longer able to provide competent representation to the client.
Rule 1.1 of the Rules of Professional Conduct provides as follows: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” The Comment to Rule 1.1 states, in part: “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners.”
Rule 1.2(b) of the Rules of Professional Conduct provides: “A lawyer may limit the objectives of the representation if the client consents after consultation.” Finally, the Comment to Rule 1.2(b) provides, in part: “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.” (Emphasis added.)
Rules 1.1 and 1.2(b) are intended to provide a lawyer and a client some latitude to agree, after consultation, to limitations on the scope of services provided by the lawyer. A lawyer may not, however, agree to a scope of services that excludes the methods or procedures necessary for competent representation. A lawyer is under a duty to inform clients of the relevant facts, law and issues necessary for the client to make intelligent decisions regarding the objectives of the representation.1Lawyer does not, therefore, provide competent representation to estate-planning clients in this case if he declines to counsel the client as to the appropriate means of executing the estate-planning documents or as to the appropriate means of transferring assets into the estate-planning vehicles to accomplish the client’s objectives.
To provide competent representation, Lawyer need not personally present the estate-planning documents to the client or otherwise be present during the execution of the estate-planning documents by the client or during the transference of assets into the estate-planning vehicles. It would be generally sufficient for Lawyer to provide to the client a written protocol sufficient to permit the client and Estate Planner to execute the estate-planning documents properly and to transfer assets into the estate-planning vehicles so as to achieve the client’s estate-planning goals.
A lawyer has an obligation not only to advise a client of legal rights and responsibilities, but also to advise the client regarding the advisability of the action contemplated.2Lawyer does not, therefore, provide competent representation to the client if he declines to counsel the client as to the appropriateness or advisability of estate-planning vehicles recommended by Estate Planner.3If, for example, Estate Planner recommended a living trust as the appropriate estate-planning device, Lawyer may not merely advise the client as to the client’s rights and benefits under a living trust, but he must also counsel the client about other estate-planning options available to the client and about the advisability of the living trust for accomplishing the client’s estate-planning objectives.4
Competent representation does not, however, require that Lawyer counsel the client on the advisability of specific investment products recommended by Estate Planner (such as the relative merits of life insurance companies or life insurance products), if such services are outside the agreed scope of Lawyer’s services. A lawyer need not provide services ordinarily performed by investment or financial advisers. Competent representation does require that Lawyer counsel the client as to the appropriateness of life insurance or a life insurance trust in accomplishing the client’s estate-planning objective, if these products or vehicles were recommended by Estate Planner to accomplish the client’s estate-planning objectives.
Lawyer is under a duty to provide independent legal advice to a client and may not permit one who has recommended Lawyer’s services to the client to direct or regulate Lawyer’s professional judgment in rendering legal services.5It is therefore necessary to competent representation that Lawyer provide an independent, genuine and meaningful review of Estate Planner’s recommendations in conjunction with a consultation with the client. This issue of competent representation is tied to Issue No. 3 discussed below. A genuine and meaningful independent review cannot be afforded by Lawyer whose representation of the client is adversely affected by Lawyer’s referral relationship with Estate Planner.6
A lawyer is under a duty to communicate with a client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.7Furthermore, where circumstances require, a lawyer is under a duty to verify information furnished by a client.8Competent representation, therefore, requires that:
(a) Lawyer will independently review the non-lawyer Estate Planner’s choice of the appropriate estate-planning vehicles in a genuine and meaningful way in conjunction with a consultation with the client.
(b) Lawyer’s communication with the client must be sufficient to reasonably satisfy Lawyer that:
(i)the client is competent to formulate and execute the estate plan,
(ii)the client filled out the personal questionnaire upon which Lawyer is relying,
(iii)the answers provided in the personal questionnaire correctly reflect the client’s estate-planning goals and intended beneficiaries, and
(iv)the estate-planning vehicles contained in the estate-planning documents prepared by Lawyer are appropriate to accomplishing the client’s estate-planning objectives.
(c) Lawyer will advise and counsel the client as to the advisability of the estate-planning vehicle recommended by Estate Planner. Lawyer should include in the scope of the client’s representation advice as to the appropriateness of the estate-planning vehicles recommended by Estate Planner (such as a life insurance trust) and advice or counsel as to the appropriateness for the client’s objectives of investments or other products sold to the client by Estate Planner.
(d) Lawyer will counsel the client how to execute the estate-planning documents and how to transfer assets to achieve the client’s estate-planning goals.
The quantum and form of communication necessary for a particular representation will depend upon many factors and must be assessed by Lawyer on a case-by-case basis. This communication with the client may, under some circumstances, require face-to-face communications. Telephonic communications will be sufficient under other circumstances. It is unlikely that non-interactive written communications alone will be sufficient under normal circumstances.
Issue No. 2: Does Lawyer violate Rule 1.6(a) if he delivers the final estate-planning documents he has prepared to the non-lawyer estate planner for delivery to and execution by the client?
Analysis: The proposed procedures underlying the relationship between Lawyer and Estate Planner contemplate that Lawyer will deliver the final estate-planning documents and the firm letter directly to Estate Planner for presentation to the client. The information contained within the final estate-planning documents is information relating to the representation of the client by Lawyer and is, therefore, confidential under Rule 1.6(a)9 of the Rules of Professional Conduct. Such information may not be disclosed by Lawyer without the client’s consent after consultation, unless one of the exceptions to Rule 1.6(a) stated in Rule 1.6(b) is applicable.
The exceptions of Rule 1.6(b) are not applicable under the facts of this Opinion. The comment to Rule 1.6(a) provides, in part: “The confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source.” It therefore does not matter whether Estate Planner is already privy to the information contained in the final estate-planning documents. Unless the client has consented to the disclosure by Lawyer of the final estate-planning documents to Estate Planner, Lawyer violates Rule 1.6(a) in delivering the final estate-planning documents to Estate Planner for presentation to the client.
Issue No. 3: Does Lawyer have a potential conflict of interest under Rule 1.7(b) when advising the client concerning the appropriateness of estate-planning vehicles recommended to the client by Estate Planner?
Analysis: As was discussed in connection with Issue No. 1 of this Opinion, competent representation of the client requires that Lawyer counsel the client with respect to the appropriateness of the estate-planning vehicle recommended by Estate Planner to achieve the client’s estate-planning objectives. Providing such consultation to the client may place Lawyer in a conflict of interest under Rules of Professional Practice Rule 1.7(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 party or by the lawyer’s own interests, 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.
If Lawyer is receiving or expects to receive a significant number of referrals from Estate Planner, Lawyer’s ability to advise the client as to the appropriateness of the estate-planning vehicles recommended by Estate Planner may be materially limited by Lawyer’s relationship with Estate Planner or by his interest in receiving future referrals from Estate Planner.10When Lawyer is receiving or expects to receive a significant number of referrals from Estate Planner, he may not accept the representation unless he reasonably believes that the representation will not be adversely affected and the client consents after consultation, including a disclosure of the potential limitations upon Lawyer’s representation.11 Lawyer’s reasonable belief that the representation will not be adversely affected will be tested by the standard of a disinterested lawyer.12
The Comment to Rule 1.7(b) provides: “[W]hen a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such an agreement or provide representation on the basis of the client’s consent.”
Thus, Lawyer must carefully examine the nature and circumstances of the relationship with Estate Planner to verify compliance with Rule 1.7(b).
Issue No. 4: Is Lawyer responsible for conduct of Estate Planner that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer?
Analysis: Estate Planner will be soliciting clients for estate-planning services using cold calls and other procedures that would not be permitted under Rules of Professional Conduct 7.3(a) if engaged in by a lawyer. The procedures postulated in the Fact section of this Opinion make clear that Estate Planner is not an employee of Lawyer.13The issue, therefore, arises whether Lawyer is responsible for the conduct of the non-lawyer Estate Planner in soliciting clients who are later referred by Estate Planner to Lawyer.
Rule 5.3, Rules of Professional Conduct, provides as follows:
With respect to a non-lawyer 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 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.
If Lawyer is “associated” with Estate Planner within in the meaning of Rule 5.3, then Lawyer (assuming Lawyer is a partner in his law firm) is required to take measures to assure the compliance of Estate Planner with the professional obligations of Lawyer, and Lawyer (whether or not a partner in his law firm) is responsible for any conduct of Estate Planner in violation of the Rules of Professional Conduct if Lawyer ordered, or with knowledge of the specific conduct, ratified the conduct involved.
Whether an “association” has been formed between Lawyer and the non-lawyer Estate Planner within the meaning of Rule 5.3 will depend upon (1) whether Estate Planner refers legal work only to Lawyer or to a limited group of lawyers of which Lawyer is one; (2) the frequency of referrals by Estate Planner to Lawyer and Lawyer’s expectation of future referrals; and (3) Lawyer’s assistance, if any, to Estate Planner in the conduct of Estate Planner’s services.
If Estate Planner has agreed to make referrals only to Lawyer, or to a small group of lawyers, the closer is the association between Lawyer and Estate Planner. Courts and ethics committees have recognized that the exclusivity of the referral relationship is material to assessing a lawyer’s responsibility for the conduct of an Estate Planner with whom Lawyer is working.14Similarly, the frequency of referrals from Estate Planner to Lawyer and Lawyer’s expectation of future referrals is relevant to the closeness of the association between Lawyer and Estate Planner. Finally, the greater the assistance afforded by Lawyer to Estate Planner in the soliciting or management of Estate Planner’s business, the closer the association between Lawyer and Estate Planner.15
The greater the association between Lawyer and Estate Planner, the greater is the justification for imposing upon Lawyer duties and responsibilities with regard to the conduct of Estate Planner under Rule 5.3. This analysis has the effect of discouraging de facto solicitation agreements designed to evade Rule 7.3.16
As the relationship between Lawyer and Estate Planner is described in the Request, it is sufficiently close to constitute an association for purposes of Rule 5.3. Estate Planner will refer all business of clients requesting a referral to Lawyer, Lawyer anticipates systematic and frequent future referrals, and Lawyer assists Estate Planner in soliciting clients and performing its services by providing Estate Planner the form estate-planning documents. Given Lawyer’s knowledge of the cold calls and other solicitation methods of Estate Planner that could not be engaged in by Lawyer under the Rules of Professional Conduct, Lawyer’s acceptance of referrals from Estate Planner will constitute a ratification of Estate Planner’s conduct and will make Lawyer responsible for the unethical solicitation by Estate Planner under Rule 7.3(a), Rules of Professional Conduct.17
In summary, Lawyer is responsible for conduct of Estate Planner if (a) the relationship between Lawyer and Estate Planner constitutes an association within the meaning of Rule 5.3, and (b) Lawyer orders or, with knowledge of specific conduct, ratifies the conduct involved. Whether the relationship between Lawyer and the non-lawyer Estate Planner constitutes an “association” for purposes of Rule 5.3 will depend on factors such as (i) whether Estate Planner refers legal work only to Lawyer or to a limited group of lawyers of which Lawyer is one; (ii) the frequency of referrals by Estate Planner to Lawyer and Lawyer’s expectations of future referrals; and (iii) Lawyer’s assistance, if any, to Estate Planner in the conduct of Estate Planner’s services.
Issue No. 5: If Lawyer provides forms of legal documents to the non-lawyer Estate Planner to use with its clients in preparing a first draft of estate-planning documents for later review by Lawyer, does Lawyer violate Rule 5.5(b) by assisting the non-lawyer Estate Planner in an activity that constitutes the unauthorized practice of law?
Analysis: Most of the courts and ethics committees that have considered ethical issues arising out of relationships between lawyers and non-lawyer estate planners have found the relationships unethical because lawyer is assisting the unauthorized practice of law by Estate Planner.18
Rules of Professional Conduct 5.5(b) provides in part: “A lawyer shall not: (b) Assist any person in the performance of activity that constitutes the unauthorized practice of law.” The courts and ethics opinions that have reviewed relationships between lawyers and estate planners have considered whether the activities of an estate planner constitute the practice of law. When an estate planner’s activities have constituted the practice of law, the lawyer’s acceptance of referrals has been found to violate Rule 5.5(b). These opinions have consistently found that the independent drafting of legal documents by estate planners constitutes the practice of law.19Similarly, it is the unauthorized practice of law for an estate planner to usurp a lawyer’s independent judgment as to the appropriate estate-planning vehicle and to relegate the lawyer to a mere scrivener.20
It is also the unauthorized practice for an estate planner to complete, or to assist clients in the completion of, form legal documents provided to an estate planner by a lawyer.21Some courts and ethics committees have found that it is the unauthorized practice of law for non-lawyer estate planners to counsel clients as to appropriate estate-planning vehicles to accomplish a client’s estate-planning objectives.22Others have not found it to be the unauthorized practice of law for estate planners to recommend estate-planning vehicles, so long as they refer to a lawyer the drafting of estate-planning documents.23
This Committee does not ordinarily decide issues regarding the unauthorized practice of law. However, it is unarguably the practice of law for Estate Planner independently to prepare the first draft of the estate-planning documents.24 Therefore, unless Estate Planner was acting as a non-lawyer assistant to Lawyer in the preparation of the first drafts and under adequate supervision of Lawyer, then Lawyer’s actions in providing forms to Estate Planner for the purpose of allowing Estate Planner to prepare the first draft of the estate-planning documents violate Rule 5.5(b). Lawyer is assisting a non-lawyer in an activity that constitutes the unauthorized practice of law.25
Some authorities have suggested that lawyers may avoid the risk of assisting in the unauthorized practice of law by Estate Planners through referral relationships with Estate Planners, if Lawyers engage Estate Planners as employees or independent contractors. These authorities have noted that Rule 5.3 authorizes lawyers to engage such non-lawyer assistants.26However, if Lawyer engages Estate Planner as a non-lawyer assistant, Lawyer becomes responsible for compliance with Rule 5.3, as was discussed in greater detail with respect to Issue No. 4 of this Opinion.
If Lawyer does engage Estate Planner as a non-lawyer assistant, he is required adequately to supervise the activities of Estate Planner in the preparation of first-draft estate-planning documents or in other activities constituting the practice of law. Absent adequate supervision of the non-lawyer assistant in such activities, Lawyer violates Rule 5.5(b) by assisting in the unauthorized practice of law.27 Furthermore, under the procedures described for the relationship between Lawyer and Estate Planner in the Fact section, numerous other ethical violations arise if Estate Planner is functioning as Lawyer’s non-lawyer legal assistant. Lawyer may not delegate to the non-lawyer assistant responsibility for establishing the attorney-client relationship.28The creation of an attorney-client relationship before Lawyer has ascertained the existence of an impermissible conflict of interest violates Rule 1.7,29and the cold calls performed by Estate Planner violate Rule 7.3 (prohibiting in-person solicitation).
Thus, unless the relationship between Lawyer and Estate Planner constitutes an “association” within the meaning of Rule 5.3 and Lawyer adequately supervises the non-lawyer Estate Planner in the preparation of the first-draft documents, Lawyer violates Rule 5.5(b) by providing forms of legal documents to the non-lawyer Estate Planner to use with its clients in preparing a first draft of estate-planning documents for later review by Lawyer.
Footnotes
1.Joos v. Auto-Owners Ins. Co., 288 N.W.2d 443 (Mich. App., 1979); In re Ratzel, 321 N.W.2d 543 (Wis., 1982).
2.See ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1523 (1987).
3.See Ore. State Bar, Formal Op. No. 1991-115 (replacing Op. No. 523).
4.See The Committee on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa, 1992); Ind. State Bar Assoc., Op. No. 4 (1992).
5.Utah Rules of Professional Conduct 5.4(c).
6.In The Committee on Professional Ethics and Conduct of the Iowa State Bar v. Baker, 492 N.W.2d 695 (Iowa 1992), the Iowa Supreme Court held that a lawyer did not provide a genuine and meaningful review of the estate planner’s recommendations of a living trust when, out of 50 to 60 total referrals, the lawyer did not once suggest to the client that the living trust (for which the estate planner earned fees administering) was not appropriate for the client’s situation.
7.Utah Rules of Professional Conduct 1.4(b).
8.See, e.g., Dixon v. Perlman, 528 So. 2d 637 (La. Ct. App. 1988).
9. “A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after disclosure.” Utah Rules of Professional Conduct 1.6(a).
10.Ind. State Bar Assoc., Op. No. 4 (1992).
11.See Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992).
12.Dallas Bar Assoc., Op. No. 1991-03, concerning a similar association between an estate planner selling living trusts and a lawyer, states that it would be highly unlikely that the relationship would allow the independent exercise of professional judgment required by a rule comparable to Utah Rules of Professional Conduct 5.4(c).
13.If Estate Planner is an employee of Lawyer, then Rule 5.3 would unquestionably apply. Lawyer would therefore be responsible for solicitation of clients by Estate Planner using methods and procedures violative of Rule 7.3(a), if Lawyer accepted the clients solicited with knowledge of the unethical solicitation. Rules of Professional Conduct 5.3(c)(1) and 8.4(a).
14.Ind. State Bar Assoc., Op. No. 4 (1992), addressed a relationship between a lawyer and an estate planner remarkably similar to the relationship analyzed in this Opinion. The Indiana Bar’s Legal Ethics Committee found that the proposed procedures complied with the Rules of Professional Practice. The Committee cautioned, however, that “if this agreement was an exclusive agreement between the Financial Organization and the Attorney, it may well be considered a referral service in violation of Rule 7.3.” See Dallas Bar Assoc., Op. No. 1991-03; Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992). In Mich. Bar Assoc., Op. No. RI-191 (Feb. 14, 1993), the Committee stated: “[R]eferrals given over only to one lawyer cannot help but generate ‘the definite appearance of a quid pro quo . . . . [which] constitutes giving value for a recommendation within the meaning of the rule.’”
15.Most of the authorities addressing this issue have done so in the context of Rule 5.5(b) (assisting in the unauthorized practice of law). See, e.g., Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695, 702-03 (Iowa 1992).
16.This analysis under Rule 5.3 is supported by Rules of Professional Conduct 8.4(a), which provides: “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.”
17.Utah Rules of Professional Conduct 5.3(c)(1) and 8.4(a).
18.The Committee on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992); People v. Macy, 789 P.2d 188 (Colo. 1990); Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); W. Va. State Bar, Op. 92-03; Ohio Supreme Court, Op. 92-15 (Aug. 14, 1992); Ore. State Bar, Op. No. 1991-115.
19.Bd. of Comm’rs of Utah State Bar v. Petersen, ___ P.2d ___, 315 Utah Adv. Rep. 38, 1997 WL 200040 (Utah 1997); see also W. Va. Bar Assoc., Op. No. L.E.I. 92-03; Ore. State Bar Assoc., Op. No. 1991-115; People v. Macy, 789 P.2d 188 (Colo. 1990).
20.Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992).
21.Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); Ind. State Bar, Op. No. 4 (1992).
22. Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993); Ore. State Bar, Op. No. 1991-115; Supreme Court of Ohio, Op. 92-15 (Aug. 14, 1992). See Comm. on Professional Ethics and Conduct of the Iowa State Bar Assoc. v. Baker, 492 N.W.2d 695 (Iowa 1992); Ind. State Bar, Op. No. 4 (1992).
23.W. Va. State Bar, Op. No. L.E.I. 92-03 n.2.
24.See notes 19 and 21, supra.
25.It is not for this Committee to decide whether the initial recommendation by Estate Planner to the client of the appropriate estate-planning vehicle or the later counseling by Estate Planner of the client respecting the execution of the estate-planning documents and the transference of assets into the estate-planning vehicles is the practice of law. If such activities do constitute the unauthorized practice of law, Lawyer also violates Rule 5.5(b) by accepting referrals and thereby assisting Estate Planner in the unauthorized practice of law. See note 18, supra.
26.Ind. State Bar, Op. No. 4 (1992); Penn. Bar Assoc., Inquiry No. 90-65.
27.Mich. State Bar, Op. No. RI-191 (Feb. 14, 1993).
28.Id.
29.Id.

Ethics Advisory Opinion No. 97-10

(Approved October 24, 1997)
Issue:
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.
Chat Rooms
“Chat rooms” have become a popular medium of communication on Internet sites. The typical format involves simultaneous participation of several users in a real-time exchange of written messages at a common site that are displayed at each participant’s computer terminal. Although these communications can often be reduced to written form, a chat-group communication is more analogous to an in-person conversation due to its direct, confrontational nature and the difficulty of monitoring and regulating it. We, therefore, find that an attorney’s advertising and solicitation through a chat group are “in person” communications under Rule 7.3(a) and are accordingly restricted by the provisions of that rule.7
Direct Electronic Mail Solicitation
The applicability of the Rules of Professional Conduct to e-mail is more difficult to analyze. Because (a) e-mail is in writing (similar to a facsimile transmission), (b) it does not represent a “live” communication (unlike the chat-room discussions), and (c) the recipient can ignore the message or respond at leisure and after due reflection, we find that e-mail is not an “in person” communication under Rule 7.3(a).
However, because e-mail is different from a written advertisement that is delivered through the U.S. Postal Service or other similar services, it may have a different impact due to the speed and mode of transmission and the difficulty of regulation. In addition to the rules discussed above, the lawyer should be aware that the instantaneous nature of e-mail could raise issues regarding Rules 7.3(b)(1) and (b)(3),8which prohibit direct solicitation to those who are in such a state that they cannot exercise reasonable judgment in employing a lawyer and solicitations which involve coercion, duress, or harassment.
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Advertising and communication over the Internet may raise other issues under the Rules. For example, the lawyer may be unable to screen for potential conflicts as required by Rules 1.7, 1.8, 1.9, and 1.10. In addition, it may be difficult to protect confidential communications under Rules 1.6 and 1.9. Lawyers should take precautions to avoid violating these rules, just as they do with facsimile communications and conversations by cellular telephone.
The issue of advertising legal services over the Internet also raises a question regarding the unauthorized practice of law in another state. Internet advertisements are not limited by geographic jurisdiction; they can be accessed from anywhere. Should a lawyer who advertises over the Internet be concerned with the unauthorized practice of law?
This question is not limited to Internet and web-site communications; it is raised by all forms of advertising through public media that may reach those in jurisdictions other than that in which the lawyer is authorized to practice. For example, telephone book advertising in Utah will likely be read in neighboring states. Similarly, advertisements placed in Utah newspapers will be read in neighboring states, and broadcasts on local radio and television stations will be heard in other states. Internet advertising should not be treated differently.
In these examples, it is incumbent upon the lawyer responding to a request for advice from someone outside of the lawyer’s geographic practice jurisdiction to be aware of the prohibition against the unauthorized practice of law. Particular factual circumstances require an analysis of the legal work performed, the jurisdiction of the parties, and the subject matter of the representation, which are beyond the scope of this Opinion.
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APPENDIX A
Rule 7.1. Communications Concerning a Lawyer’s Services.
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
Rule 7.2 Advertising.
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.
(b) A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this Rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
(d) Any communication made pursuant to this Rule shall include the name of at least one lawyer responsible for its content.
Rule 7.3 Direct Contact with Prospective Clients.
(a) A lawyer may not solicit, in-person, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “in-person” includes in-person and telephonic communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
(b) A lawyer may not solicit, by mail or other written communication directed to a specific recipient concerning a specific cause of action, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship under the following circumstances:
(1) The lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
(2) The person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) The communication involves coercion, duress, or harassment.
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Footnotes
1.Reference to “web sites” in this opinion is meant to include all forms of computer-based information systems that can be directly accessed by individuals through computer modems and similar communication devices.
2.See Appendix A for the text of portions of Rule 7 of the Utah Rules of Professional Conduct.
3.For discussion and references, see Brian G. Gilpin, Attorney Advertising and Solicitation on the Internet: Complying with Ethics Regulations and Netiquette, 13 J. Marshall J. Computer & Info. L. ___ (Summer 1995); Mark Hankins, Ambulance Chasers on the Internet: Regulation of Attorney Web Pages, 1 J. Tech. L. & Policy 3 (1996) journal.law.ufl.edu/ntechlaw/1/hankins.html.
4.A web site typically comprises a home page (analogous to the front page of an advertising brochure), which gives limited basic information about the firm or lawyer and “links” to other “pages” of the site that contain additional, more detailed information about the firm, its areas of practice and its lawyers.
5.Information on external sites to which links are provided from the lawyer’s web site are not considered part of the lawyer’s web site unless the external site is also controlled by the lawyer.
6.As well as similar information-only signs placed on, in or near the firm’s place of business.
7.See Ariz. State Bar Op. 97-04 (April 7, 1997); see also Ill. State Bar Adv. Op. 96-10 (May 16, 1997).
8.See Appendix A.

Ethics Advisory Opinion No. 97-11

(Approved December 5, 1997)
Issue:
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.
Lender also contends that, because Attorney has merely agreed to repay the loan with interest, as opposed to granting a percentage in legal fees received, the proposed loan is merely like any other non-recourse loan. Again, we disagree.2We are not troubled by the fact that Attorney needs to borrow funds to run his practice. Many attorneys and firms borrow money and grant security interests in their accounts receivable generally as collateral for the loan. Likewise, it is axiomatic that most attorneys’ primary, if not sole, source of revenue is from fees generated from matters undertaken on behalf of clients. Taken to its logical extreme, a Rule 5.4 prohibition on lawyers’ meeting their loan repayment obligations from fees received would mean not only the lawyers could not borrow money to run their practices, but that they could not pay for any goods or services on credit.3
However, once a security interest in the recovery of contingent fees from a particular case is granted, Rule 5.4 is implicated.4Upon that grant, Lender has an interest in the attorney’s contingent-fee award, which Lender has the right to attach upon a default in payment on the loan. That particularized interest in the contingent fees of a case could compromise the lawyer’s judgment in a number of ways. For example, the lawyer’s judgment may be impaired in drawing up the proposed budget for expenses. He may be influenced in recommending that a client accept a settlement offer because of the impact it may have on the repayment of the debt with Lender. The fact that Lender may agree not to be involved in decisions involving the case or that Client may agree in writing and in advance does not save the proposed arrangement, as Rule 5.4(a) makes no exception for such cases.5
Accordingly, we find that an attorney may not finance the costs of a contingent-fee case in which a non-recourse promissory note is secured by the attorney’s interest in the contingent fee.
Footnotes
1.(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 a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement.
Utah Rules of Professional Conduct 5.4(a).
2.See In re Van Cura, 504 N.W.2d 610 (Wis. 1993) (unethical fee splitting found when law firm agreed to finance its product-liability litigation with nonlawyer consulting firm in return for which consulting firm would receive half the fees received from such cases).
3.See ABA Formal Op. 320 (1968), which held a financing plan did not constitute a per se violation of Rule 5.4 where a lawyer charged a client a fixed fee, took a promissory note for the fee, and then sold the note to a bank at a discounted price. The note was endorsed to the bank “without recourse,” and the attorney had the right to repurchase the note prior to the bank’s instituting any legal action on it. The plan, however, specifically excluded contingent fees.
4.See Utah State Bar Ethics Advisory Op. No. 139, 1994 WL 579849 (“[P]rovided no other rule of professional conduct is violated, compensation of non-lawyer employees may be based upon a percentage of gross or net income so long as it is not tied to the fees from a particular case.”)
5. If neither Lender nor Client is an attorney, the Rules of Professional Conduct would not apply to them, and a loan transaction between Lender and Client, where Client signs the promissory note and secures the note by granting a security interest in his share of the recovery, would not violate the Rules. We caution, however, that attorneys should be aware of Rule 8.4(a), which provides that a lawyer may not “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.”
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Ethics Advisory Opinion No. 97-12

(Approved January 23, 1998)
Issue:
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.
Certainly, to prevent that client from committing a criminal act the attorney believes is likely to result in death or substantial bodily harm to the child, an attorney who is informed by a client that he intends to commit child abuse could reveal this intent to the appropriate authorities if the attorney reasonably believes disclosure is necessary under Rule 1.6(b)(1). However, Utah Code Ann. § 62A-4a-403 is not aimed at future conduct. It purports to require an attorney to disclose past conduct of a client that would otherwise be privileged. Consequently, the issue before this Committee is whether an attorney violates the Rules of Professional Conduct by failing to disclose the client’s past conduct under § 62A-4a-403.4
The requirements of Utah Code Ann. § 62A-4a-403, as applied to attorneys, appear to be in conflict with the Utah Constitution and the Utah Rules of Evidence. However, it is not within the jurisdiction of this Committee to determine which of these authorities governs the situation. Deciding which of these provisions controls an attorney’s behavior is a legal question, not an ethical one. We are constrained, if for no other reason, by our rules, as approved by the Board of Bar Commissions of the Utah State Bar: “The Committee shall not respond to requests . . . [f]or a legal opinion, rather than an ethics opinion.”5Hence, we are limited to addressing the question of whether an attorney who does not report behavior covered by § 62A-4a-403 has committed an ethical violation.
There also appears to be a conflict between § 62A-4a-403 and Rules of Professional Conduct 1.6 to the extent the statute requires the attorney to disclose information that Rule 1.6 requires the attorney to preserve as confidential. The commentary to Rule 1.6 acknowledges that the Rules in various circumstances authorize a lawyer to disclose information relating to the representation, specifically noting disclosures under Rules 1.13 (Organization as Client), 2.2 (Lawyer as Intermediary), 2.3 (Lawyer’s Evaluation for Use by Third Parties), 3.3 (Candor Toward Tribunal) and 4.1 (Truthfulness in Statements to Others). The Rule 1.6 comment goes on to state:
In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client. Whether another provision of law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules, but a presumption should exist against such supersession.
The Committee believes the presumption against supersession is a proper one, particularly in light of what appears to be a conflict between § 62A-4a-403, on the one hand, and, on the other, the attorney-client privilege in Rules of Evidence 504 and the privilege against self-incrimination in the Utah Constitution. However, as stated in our Advisory Opinion No. 95-06,6whether an attorney can be compelled to disclose such information in the face of these privileges is a legal question beyond the jurisdiction of the Committee to answer.
In light of the Committee’s limitation to decide only ethical issues, we can conclude only that an attorney who fails to report information obtained from the client that falls under Utah Code Ann. § 62A-4a-403 does not violate the Rules of Professional Conduct. Nevertheless, the attorney does have the discretion to disclose such information with client consent under Rule 1.6(a) or to the extent the attorney believes it is necessary under Rule 1.6(b).
Footnotes
1.Utah Rules of Professional Conduct 1.6(a) permits the attorney to report the incident if the client consents.
2.Utah Rules of Professional Conduct 1.6(b).
3.A related protection is found in Utah Const., art. I, § 12, which provides that a person accused of a criminal offense shall not be compelled to give evidence against himself. Arguably, this extends through the attorney-client relationship to mean the client’s attorney cannot be compelled to give such evidence.
4.Note that Rule 1.6(b)(4), which states that “A lawyer may reveal such [attorney-client] information to the extent the lawyer believes necessary . . . [t]o comply with . . . other law” (emphasis added), does not itself require the lawyer to reveal the information.
5.Ethics Adv. Op. Comm. Rules of Proc. § III(b)(3).
6.Utah Ethics Advisory Op. No. 95-06, 1995 WL 464483 (July 28, 1995), states an attorney may , under Rule 1.6(b), disclose information leading the attorney to believe a person who is not his client has subjected a child to abuse, even if such information is obtained during the course of representing the attorney’s client and even if the client objects to the disclosure. Opinion No. 95-06 did not address whether the attorney was compelled to disclose such information, stating only that this issue required determination of a legal, as opposed to an ethical, duty that is beyond the purview of the Committee.