Ethics Advisory Opinion No. 99-01

(Approved January 29, 1999)
What are an attorney’s ethical obligations when the attorney or his client has lawfully obtained an attorney-client communication between an opposing party and opposing counsel under conditions where the opposing party may not have intended to waive the attorney-client privilege?

Opinion: A lawyer is required to bring to the attention of opposing counsel the receipt of any such communication unless it is clear from the circumstances that the attorney-client privilege has been intentionally waived.
Analysis: This general issue came to the Committee in connection with a specific set of facts that involved an attorney’s client who—independent of the attorney—had obtained a potentially material attorney-client document that was not the subject of a conscious waiver of the attorney-client privilege by the other party. Because a variety of fact patterns of this type may arise, we will consider the general question of an attorney’s ethical obligations when he lawfully1 obtains an attorney-client communication between opposing counsel and her client. (more…)

Ethics Advisory Opinion No. 99-02

(Approved April 30, 1999)
: Does a lawyer who negotiates or communicates with an opposing party’s legal assistant, secretary or other non-lawyer representative about substantive matters assist in the unauthorized practice of law under Utah Rule of Professional Conduct 5.5(b)?

Opinion: In general, a lawyer who negotiates or otherwise communicates with a non-lawyer representative on substantive matters affecting the rights of parties to a particular matter is not assisting in the unauthorized practice of law if that representative is supervised by a lawyer as required under Rule 5.3. When the non-lawyer representative is employed in a lawyer’s office, the lawyer communicating with such a representative may presume that the representative is supervised within the requirements of Rule 5.3, unless the lawyer is aware of facts and circumstances that impart knowledge that adequate supervision is lacking. (more…)

Ethics Advisory Opinion No. 99-04

(Approved June 30, 1999)
General Issue:
What are the ethical considerations that govern a lawyer who wishes to conduct legal seminars; provide legal information to groups of retirement-home residents; host open houses; set up information booths at trade shows; participate in Bar-sponsored question-and-answer programs; or make in-person contacts with prospective clients at the request of their friends or relatives?

Summary: This Opinion analyzes and decides a range of related questions that have arisen in connection with lawyers’ marketing and solicitation activities. In general, we find that lawyers may make their services known through a variety of methods that do not involve uninvited, one-on-one approaches, discussions or solicitations. On the other hand, where monetary gain is a significant motivation, lawyers may not generally engage in uninvited, direct in-person communications with prospective clients in order to indicate the lawyer’s availability to accept professional employment. (more…)

Ethics Advisory Opinion No. 99-05

Approved July 30, 1999
What are the ethical implications of the Office of the Attorney General’s proposed investigation to determine whether any Utah criminal laws were violated by the Salt Lake City Bid Committee for the Olympic Winter Games in view of the Attorney General’s prior association with the Bid Committee?

Opinion: The Utah Rules of Professional Conduct apply to the Attorney General and to each lawyer in the Office of the Attorney General on an individual basis. An evaluation of the ethical issues raised by the investigation invites inquiry under Rule 1.11(c) and Rule 1.7(b). Based on our review of the limited facts before us, we believe that neither the Utah Rules of Professional Conduct, generally, nor Rules 1.11(c) and 1.7(b), specifically, prohibit the Investigation per se. Because the analysis mandated by Rule 1.7(b) is fact- and context- specific, however, each lawyer responsible for or participating in the Investigation has an affirmative obligation to undertake an independent evaluation as to whether the requirements of Rule 1.7(b) are satisfied at each stage of the Investigation. At a minimum, such analysis requires that the Attorney General and each investigating lawyer reasonably conclude at each stage of the Investigation that their respective duties to consider, recommend and carry out appropriate courses of action with respect to the Investigation are not impaired by reason of any competing professional, personal or other interests. (more…)

Ethics Advisory Opinion No. 99-06

(Approved August 27, 1999)
: As a part of a criminal plea bargain agreement in a DUI case, may either the prosecuting attorney or the defense lawyer seek the concurrence of the investigating police officer not to respond to a subpoena lawfully issued by the Utah Driver License Division in connection with the related driver-license revocation hearing, a state administrative proceeding?

Opinion: No. Such conduct violates Rule 3.4(a) and 8.4 of the Utah Rules of Professional Conduct.
Facts: In cases involving operation of a motor vehicle while under the influence of alcohol (“DUI”), two actions are initiated. The first is the criminal DUI action. The second is an administrative hearing before the Driver License Division of the Utah Department of Public Safety (“DLD”) to consider whether to revoke or suspend the defendant’s driver license (the “DLD hearing”). (more…)

Ethics Advisory Opinion No. 99-07

(Approved December 3, 1999)
May a lawyer refer a client to an investment advisor for investment and financial planning and take a referral fee from the commission paid by the client to the investment advisor?

Opinion: It is not per se unethical for a lawyer to refer a client to an investment advisor and take a referral fee from the commission paid to that advisor, although the lawyer has a heavy burden to insure compliance with applicable ethical rules.
Facts: A lawyer and an investment advisor enter into an agreement under which the investment advisor agrees to pay a commission to the lawyer for the lawyer’s referral of the lawyer’s client to the investment advisor. (more…)