Ethics Advisory Opinion No. 99-01

(Approved January 29, 1999)
Question:
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.
In some instances it may be clear that the opposing party waived the privilege. An opposing party’s use of an attorney-client communication for which the privilege has been waived raises no ethical issues.
In other circumstances, however, it may be unclear whether the privilege was waived, and circumstances may even establish that the privilege was not waived. This raises the ethical question regarding what the receiving attorney may or may not do with the communication.
We find nothing in the Rules of Professional Conduct that directly addresses the attorney-client privilege as it applies to an opposing party, but we believe that Rule 8.4(d) places an obligation upon every lawyer to take steps to preserve the attorney-client privilege in order to effect the orderly administration of justice.2
The introductory “Scope” of the Rules of Professional Conduct notes that the rules are not intended to exhaust the moral and ethical considerations that should govern a lawyer, but are designed to provide a framework for the ethical practice of law. This section also notes that the rules are not intended to govern or affect the judicial application of the attorney-client privilege, but that the client is entitled to expect communications within the scope of the privilege will generally be protected.
While not addressing the broad question presented above, the American Bar Association Standing Committee on Ethics and Professional Responsibility has issued two opinions on narrower issues directed to disclosure of attorney-client communications. Although the Committee does not necessarily subscribe to all of the conclusions of those two opinions, they do provide useful discussions relevant to the ethical issues currently before us.
ABA Formal Opinion 92-368, entitled “Inadvertent Disclosure of Confidential Materials,” addressed the situation where counsel inadvertently faxed or mailed privileged documents to opposing counsel. The opinion determined that this circumstance should not result in waiver of privilege. It concluded that “A lawyer who receives materials that on their face appear to be subject to the attorney-client privilege or otherwise confidential, under circumstances where it is clear they were not intended for the receiving lawyer, should refrain from examining the materials, notify the sending lawyer and abide the instructions of the lawyer who sent them.” Under these narrow fact circumstances, the ABA concluded that a receiving attorney has an ethical duty to return the attorney-client communications to opposing counsel without making any use of them.
ABA Formal Opinion 94-382 addressed the somewhat different situation where a third party provided an attorney-client communication to a lawyer, without being solicited to do so. In other words, unlike opposing counsel in Opinion 92-368 who made an inadvertent disclosure, the third party intended to send the materials to the receiving attorney. The ABA opinion declined to state an absolute rule regarding use of the materials, as some circumstances might call for waiver and others might not. The opinion concluded that the best course of action was for the receiving attorney to advise opposing counsel of the disclosure, and then either return the documents or seek assistance from the court in determining the appropriate course of action under the particular facts at hand:
A lawyer who receives on an unauthorized basis materials of an adverse party that she knows to be privileged or confidential should, upon recognizing the privileged or confidential nature of the materials, either refrain from reviewing such materials or review them only to the extent required to determine how appropriately to proceed; she should notify her adversary’s lawyer that she has such materials and should either follow instructions of the adversary’s lawyer with respect to the disposition of the materials, or refrain from using the materials until a definitive resolution of the proper disposition of the materials is obtained from a court.
As noted above, matters relating to the attorney-client privilege have been left to the courts to decide. Yet, the discussion contained in each of the two ABA formal opinions discussed above illustrates a potential void regarding what constitutes ethical behavior under some circumstances. Further, we find little guidance in the judicial decisions in this area. There appears no clear rule of law in the cases, and the decisions have often turned upon the specific facts of a particular situation.3
After reviewing the ABA opinions and the case law, the Committee finds that there is a substantial tension between the competing policies surrounding the concepts of privilege and waiver that is magnified by the desire to establish high ethical standards. Although it is troubling to attempt to establish ethical guidelines that are subject to the degree of uncertainty inherent in this area of law, the Committee has a responsibility to provide guidance to lawyers as they attempt to satisfy their ethical obligations.
It is also difficult for the Committee to provide ethical guidelines that may turn on such particular facts as whether someone throws away a document after balling it up, or first tears it up into a few pieces before placing it into the trash. Yet, attorneys need guidance regarding their ethical obligations in these situations.
Having so considered this issue, the Committee’s view is that an attorney in possession of an opposing party’s attorney-client communications for which the attorney-client privilege has not been intentionally waived should advise opposing counsel of the fact of its disclosure, regardless of the specific facts surrounding disclosure. We draw this conclusion primarily because to do otherwise would be inconsistent with the standards of Rule 8.4(d)4This approach has the virtue of separating the factual determination regarding the legal merits regarding waiver from the ethical determination of what an attorney ought to do. It also recognizes that the receiving attorney may not have all of the facts relevant to a legal determination, and it guards against subconscious bias in the receiving attorney’s consideration of the facts. Finally, it avoids the appearance of impropriety inherent in allowing a receiving attorney to make the determination under what circumstances to advise opposing counsel.
Once the fact of disclosure is before both parties, they can then turn to the legal implications of the disclosure and a legal assessment of whether waiver has occurred. In some instances the parties may be able to agree regarding how to handle the disclosure. In other instances, it may be necessary to seek judicial resolution of the legal issues.
APPENDIX A
Courts have routinely held in criminal matters that there is not a reasonable expectation of privacy protected by the Fourth Amendment in garbage placed outside their homes for collection. California v. Greenwood;5 U.S. v. Scott.6 Hence, such evidence can be used to find a defendant guilty of a crime.
The issue seems less settled when applied to communications between an attorney and a client. For example, in Suburban Sew ’n Sweep, Inc. v. Swiss-Bernina, Inc.,7defendant’s president sent several confidential letters to counsel. The handwritten drafts were placed into a wastebasket and subsequently collected in a trash dumpster used only by defendant. The documents were collected from the trash dumpster by plaintiff. It was uncontroverted that defendant expected these communications to remain confidential. In an opinion containing a substantial discussion of the issues, including a discussion of the Fourth Amendment, the policies behind the attorney-client privilege and inadvertent-disclosure cases, the court stated that privilege is not automatically waived when confidentiality is breached. Rather, the relevant consideration was the intent of the defendant to maintain confidentiality as manifested in the precautions taken. The court identified two considerations: (1) the effect on uninhibited consultation between attorney and client of not allowing the privilege in these circumstances; and (2) the ability of the parties to the communication to protect against the disclosure. The court determined that the defendant could have shredded the documents in this case, and the privilege was waived.
A contrary result was obtained in Mendenhall v. Barber-Greene Co.8One basis of the decision in this case was the observation that proposed Rule 503(a)(4) of the Federal Rules of Evidence provided that a communication is “confidential” if not intended to be disclosed to third persons. Criticizing the Sew ’n Sweep case, the court further stated that inadvertent disclosure is the antithesis of an intentional waiver or abandonment of a right, such as the attorney-client privilege.
In Stewart v. General Motors Corp., the court stated that the traditional rule is that any disclosure waives the privilege. The court stated that the modern trend, purportedly now followed by a majority of courts, is that inadvertent disclosure may result in waiver, but the inadvertence of the disclosure is just one of a number of factors to consider in determining if waiver occurred. Factors to consider include: (1) the manner of the disclosure; (2) precautions taken to prevent disclosure; (3) the extent of the disclosure; (4) actions taken to rectify disclosures and any delay in taking such actions; (5) how the purposes of the privilege rule are best served; and (6) overriding issues of fairness and justice.
The case of Resolution Trust Corp. v. First of America Bank is also of interest. This was a case of inadvertent disclosure during discovery. The documents bore markings “privileged and confidential.” The court stated that common sense and a high sensitivity toward ethics taken together with the importance of preserving attorney-client confidentiality and privilege should have immediately caused plaintiff’s attorneys to advise defendant’s counsel of the production. The court ordered that all copies of the document in plaintiff’s possession and all notes relating to it be destroyed.
McCafferty’s, Inc. v. The Bank of Glen Burnie involved a communication from defendant to its counsel that had been torn into 16 pieces before being then placed into the trash. The trash was collected in a dumpster in an area marked “no trespassing.” The court held the attorney-client privilege was not waived, because the defendant had evidenced, by tearing up the document, an intent to preserve the confidentiality of the document, and there was a continued expectation of privacy based upon the posting of the dumpster against unauthorized entry.
In U.S. v. McMahon, the Fourth Circuit held that the attorney-client privilege was waived when the defendant discarded an intact letter into a dumpster located in the parking lot of his clinic both in respect to (1) the existence of the attorney-client relationship, and (2) the content of the document, to the extent the document contained what were intended to be confidential communications.
Footnotes
1.We assume lawful possession of the information in this Opinion. We do not pass judgment on this fact-driven legal determination in the specific case that brought the issue to our attention, nor do we address the situation where the attorney knows the client obtained the information illegally.
2.“It is professional misconduct for a lawyer to: . . . . [e]ngage in conduct that is prejudicial to the administration of justice.”
3.Appendix A contains a discussion of a sampling of such cases.
4.See note , supra.
5.486 U.S. 35 (1988).
6.975 F.2d 927 (1st Cir. 1992) (the warrantless seizure and reconstruction of shredded documents in a case involving charges of filing false income tax returns did not violate the Fourth Amendment).
7.91 F.R.D. 254 (N.D. Ill. 1981).
8.531 Supp. 951 (N.D. Ill. 1982).

Ethics Advisory Opinion No. 99-02

(Approved April 30, 1999)
Issue
: 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.
Analysis: Under Utah Rules of Professional Conduct 5.5(b), “A lawyer shall not . . . [a]ssist any person in the performance of activity that constitutes the unauthorized practice of law.” The Utah Supreme Court has stated that “the practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent.”1The Court continued, “What constitutes the practice of law in any given situation requires a case-by-case decision, and therefore, each case must be evaluated to determine whether the particular acts involved constitute the practice of law.”2
Lawyers often employ non-lawyer assistants, including secretaries, legal assistants, paralegals and student interns. Such assistants may perform a wide array of services, including interviewing clients, scheduling depositions, drafting documents or pleadings, and conducting legal research. Some of these activities might constitute the practice of law in a given situation if the persons performing them were to act independently of any supervision.3However, the Rules of Professional Conduct except such activities from the prohibitions relating to the unauthorized practice of law if the assistants are employed by a lawyer “so long as the lawyer supervises the delegated work and retains responsibility for their work.”4The fact that the practice of law is a licensed profession creates safeguards for the protection of the public. Those safeguards are in place where a paralegal or other non-lawyer acts under a lawyer’s supervision, and they are absent when such supervision is inadequate or non-existent.5
Exceptions to the general rule exist for certain non-lawyer professionals who are licensed and, by the nature of their profession, engage in actions representing clients and negotiating on their behalf. Examples of these are first-party insurance adjusters6and real estate agents.7A lawyer may negotiate or communicate with these representatives without fear of assisting in the unauthorized practice of law. If, however, the lawyer knows that the opposing party is also represented in the matter by a lawyer, communication with the non-lawyer representative is improper without the lawyer’s consent.8
Just as defining what constitutes the practice of law is fact-specific and requires a case-by-case analysis, so does defining what constitutes adequate supervision of a non-lawyer assistant. The issue before the Committee does not directly involve the conduct of a supervising lawyer, but rather an opposing party’s lawyer’s communication with a non-lawyer representative. Where a non-lawyer assistant is employed by a lawyer, an opposing lawyer communicating with that assistant may presume that the assistant is supervised within the requirements of Rule 5.3. The presumption may be overcome where the communicating lawyer is aware of facts and circumstances indicating that adequate supervision is lacking. In that case, counsel may indeed be assisting in the unauthorized practice of law in violation of Rule 5.5(b). The appropriate level of supervision necessary to insure that the representative is not engaging in the unauthorized practice of law is fact-specific and will vary from case to case.
Finally, lawyers employing a disbarred or suspended lawyer as a paralegal should take special care to ensure adequate supervision. Because such an individual has had significant legal training and experience, there may be a tendency for him to engage in conduct that is not properly supervised and, therefore, constitutes the unauthorized practice of law.
Footnotes
1.Utah State Bar v. Summerhayes & Hayden, Public Adjusters, 905 P.2d 867 (Utah 1995).
2.Id. at 870.
3.See Board of Commissioners v. Peterson, 937 P.2d 1263 (Utah 1997).
4.See Rule 5.5 cmt., and Rule 5.3 cmt.
5.Peterson, 937 P.2d at 1269.
6.Utah Code Ann. §§ 31A-26-101 to -311 (1999).
7.Utah Code Ann. §§ 61-2-1 to -24 (1997 & Supp. 1998).
8.See Utah Rules of Professional Conduct 4.2; Utah Ethics Advisory Op. No. 98-07, 1998 WL 493028 (Utah St. Bar).

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.
Issue No. 1: May a lawyer sponsor and advertise a free seminar on legal issues to be presented in a group setting to members of the public and (i) offer literature or videos discussing the legal topic, either with or without fee, to attendees of the seminar, (ii) give a business card to attendees who request one, and (iii) accept employment to provide legal services to an attendee who initiates a request for professional services?
Opinion: Yes. Provided that the invitations do not communicate the lawyer’s availability to accept professional employment, a lawyer may invite members of the public to a law-related seminar with invitations delivered by mail, by telephone or in person. If the invitations communicate the lawyer’s availability to accept professional employment, the invitation may not be in person or telephonic and must comply with Utah Rules of Professional Conduct 7.1, 7.2 and 7.3(b). So long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment from attendees of the seminar in person, the lawyer may provide a business card to an attendee of the seminar who requests it and may accept employment to provide legal services to attendees of the seminar who initiate the request for professional services. The lawyer may distribute or offer in person to each attendee literature or videos discussing the legal topic, with or without fee, provided the literature or videos do not communicate the lawyer’s availability to accept professional employment. The lawyer may distribute or offer in person to attendees literature or videos which communicate the lawyer’s availability to accept professional employment only if the request for such materials is initiated by the attendee. The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without inperson encouragement, choose to pick up the materials.
Issue No. 2: If a lawyer volunteers to appear before a group of residents of a retirement or senior center to answer in a group setting questions they may have concerning legal topics, may the lawyer ethically accept legal engagements offered by residents of the center who attend the group question and answer session?
Opinion: Yes, as long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment in person. The lawyer is subject to the same ethical restraints during a group question and answer session as are set forth in this Opinion with respect to law-related seminars.
Issue No. 3: If a lawyer purchases booth space at a trade show, may the lawyer (i) discuss legal topics one on one with persons who voluntarily visit the lawyer’s booth and (ii) accept legal engagements offered by attendees of the trade show who visit the lawyer’s booth and engage in one-on-one discussions with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment.1The lawyer may display print advertisements at or about the booth that comply with Rules 7.1 and 7.2.
Visits by the public to a lawyer trade-show booth are similar to visits by non-clients to a lawyer’s advertised open house. The lawyer may not communicate the lawyer’s availability to accept professional employment in person, but he may discuss legal topics with the prospective clients. When the request is initiated by the prospective client, the lawyer may privately provide individualized legal advice. The lawyer may not generally distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment in person, but may provide such materials to those prospective clients who initiate a request for such information. The lawyer may make available materials communicating the lawyer’s availability to accept professional employment at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials. The lawyer may accept professional employment from prospective clients who meet with the lawyer so long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a).

Issue No. 4:
May a lawyer volunteer to set up a table in a common area of a retirement or senior center in order to meet one on one to discuss legal topics with residents of the center who voluntarily visit the lawyer’s table, and may the lawyer accept legal engagements proposed by residents of the center who visit the lawyer’s table and voluntarily engage in one-on-one discussions of legal issues with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment from persons with whom the lawyers has no family or prior professional relationship for pecuniary gain. The lawyer is subject to the same ethical restraints during a discussion-table meeting with a prospective client as are set forth in this Opinion with respect to lawyer open houses and lawyer trade-show booths.

Issue No. 5:
May a lawyer volunteer to provide one-on-one consultations with residents of a retirement or senior center concerning legal topics, initiate one-on-one in-person communications with residents of the center in their rooms or common areas to discuss their legal questions or concerns, and accept legal engagements proposed by such residents who discuss legal topics one on one with the lawyer?
Opinion: No. The lawyer has engaged in direct in-person solicitation of professional employment when the lawyer initiates uninvited one-on-one contact to discuss legal topics with residents of the center.
Issue No. 6: If a lawyer volunteers to answer questions of members of the public participating in a Utah State Bar-sponsored one-on-one question-and-answer session, such as a Bar-sponsored telethon (in-person telephonic contact) or the Bar-sponsored Tuesday Night Bar (face-to-face contact), may the lawyer provide to a member of the public his name and telephone number during the Bar-sponsored communication and accept professional employment for a fee offered by a member of the public during or after the Bar-sponsored communication?
Opinion: No. The Bar’s current policies concerning such Bar-sponsored programs prohibit lawyer volunteers from accepting professional employment resulting from discussions with members of the public during the program, unless the professional employment is accepted on a pro bono basis. If the Bar’s policies concerning such Bar-sponsored programs did not prohibit a lawyer from accepting professional employment on a for-fee basis resulting from the programs, and the lawyer complied with the requirements of Rule 7.3(a) that prohibits in-person solicitation of professional employment of persons the lawyer could, upon a request initiated by the member of the public, provide his address and telephone number and accept professional employment on a for-fee basis during or after the Bar-sponsored communication.
Issue No. 7: If a relative or close friend of a prospective client requests that the lawyer telephone the prospective client to offer to provide legal representation, is it ethical for the lawyer to telephone the prospective client and to offer to provide legal representation?
Opinion: Generally no, unless the relative or friend of the prospective client requesting the lawyer to make the contact is the agent of the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client. Absent this determination, it is a prohibited in-person solicitation for the lawyer to telephone the prospective client to provide legal representation for pecuniary gain.
Background: The Committee has received several requests regarding the ethics of certain client-development activities generally described as law-related seminars, group question-and-answer sessions on law-related topics, trade-show booths, discussion tables, uninvited one-on-one question-and-answer sessions on law-related topics and participation in Utah State Bar-sponsored legal assistance programs. The Committee has also received a request for an opinion on the ethics of in-person contact of prospective clients referred to the lawyer by the family or close friends of the prospective client. Unless otherwise indicated, the Committee has assumed in the analysis of each of these requests that (i) the prospective client is a person with whom the lawyer has no family or prior professional relationship and (ii) a significant motive for the lawyer’s conduct is pecuniary gain and not to advance any constitutionally protected associational interests.
Issue No. 1 Analysis: Rule 7.3(a) prohibits in-person and telephonic communication directed to a specific recipient with whom the lawyer has no family or prior professional relationship soliciting professional employment when a significant motive for the lawyer’s doing so is pecuniary gain.2
Unlike the rules in some other states, the Utah Rules of Professional Conduct do not define the term “solicit” as this term is used in Rule 7.3(a). We believe that “solicit” in this context means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment.3The term “solicit” necessarily includes an offer initiated by the lawyer to provide or to accept professional employment and the unrequested advice or recommendation of the lawyer that the lawyer be engaged to provide professional services.4
Rule 7.3 prohibits only solicitations to provide legal services.5An invitation to attend a law-related seminar without any communication of the lawyer’s availability to accept professional employment is not a solicitation of professional employment. Therefore, a lawyer may invite attendance at a law-related seminar sponsored by the lawyer or by others by telephone or by direct in-person communication, so long as the lawyer does not communicate a message or offer concerning the availability of the lawyer to accept professional employment.6If the invitation contains such a message or offer, the invitation must be made by mail and must comply with Rules 7.1, 7.2 and 7.3(b).
A lawyer may appear and make presentations at a law-related seminar provided he does not engage in in-person solicitation prohibited by Rule 7.3(a). Therefore, a lawyer may not communicate the lawyer’s availability to provide professional employment, offer to provide or accept professional employment or recommend that the lawyer or the lawyer’s firm be employed to provide legal services.7 The lawyer may distribute or offer in person to each attendee of the seminar, with or without fee, literature or video tapes concerning the legal issues addressed at the seminar that may state the lawyer’s name, firm affiliation, address and telephone number.8Literature or video tapes offered in person to each attendee may not communicate the lawyer’s availability to provide or accept professional employment.9Therefore, the lawyer’s business card, brochures or other endorsements of the lawyer or the lawyer’s law firm should not be generally distributed in person to attendees of law-related seminars.10If an attendee of a law-related seminar initiates a request to the lawyer to receive literature or video tapes that communicate the lawyer’s availability to provide or to accept professional employment, the lawyer may ethically provide such materials to the attendee. Letters and brochures offering the lawyer’s legal services may be mailed by the lawyer after the seminar to the attendees of the seminar.11
A lawyer may not provide individualized legal advice during the course of a law-related seminar.12By doing so, the lawyer would be providing legal services. In response to questions by attendees, the lawyer must endeavor to respond generally so as to create no impression that the lawyer has accepted professional employment on behalf of an attendee. While the lawyer may not initiate a recommendation of the lawyer’s engagement by any attendee of the seminar, he may recommend, when appropriate, that an attendee of the seminar consult with a lawyer of the attendee’s own choosing.
A lawyer may meet one on one with an attendee of the seminar, when such a contact is initiated by an attendee. In private sessions with attendees, if a request for individualized legal advice is initiated by the attendee, the lawyer may provide individualized legal advice.13The lawyer may accept professional employment offered by an attendee of the seminar, either offered privately at the seminar or after the seminar, provided the lawyer has not initiated the offer by engaging in in-person solicitation in violation of Rule 7.3(a).14
Some state bar associations have placed additional restrictions on lawyer participants at law-related seminars. The Committee chooses not to adopt these additional restrictions.15
Issue No. 2 Analysis: The Committee does not see a meaningful distinction between a group question-and-answer session concerning legal topics and a law-related seminar. For this reason, the Committee believes the analysis of this issue is the same as the analysis of Issue 1, law-related seminars, and that the ethical restraints on the lawyer’s conduct are the same.16
Issue No. 3 Analysis: It is not unethical for a lawyer to purchase booth space at a trade show. So long as advertisements attached to or near the booth space comply with Rules 7.1 and 7.2, it is not unethical for the lawyer to display print advertisements of the lawyer’s availability to accept legal employment. This is equivalent to outdoor advertising authorized by Rule 7.2. What distinguishes booth space at a trade show from outdoor advertising is the presence of the lawyer at the booth to engage in one-on-one oral communications with attendees of the trade show.
Other state bar associations are divided on what activities a lawyer at a trade-show booth may ethically engage in. Some permit the lawyer to initiate in-person offers to provide legal services to anyone who visits the booth and voluntarily engages in communications with the lawyer.17These opinions appear to view the booth as an extension of the lawyer’s office. The presumption is that a lawyer is free to engage in in-person solicitation of those who walk into a lawyer’s office to discuss legal services.
Some bar associations prohibit the lawyer from solicitation of persons with no family or prior professional relationship with the lawyer who visit the booth. This, therefore, prohibits the general in-person distribution from the booth of brochures, business cards and other writings communicating the lawyer’s availability to accept professional employment.18These opinions reason that general in-person distribution of brochures and initiating offers to provide professional services from the trade show booth is not unlike a lawyer standing on a street corner and passing out brochures and offering to provide legal services to each passerby. These opinions are concerned with the potential for undue influence, harassment and fraud that may occasion one-on-one encounters between the lawyer and the public making their way past the lawyer’s booth.
The Committee believes that visits to a lawyer’s trade-show booth should be likened to visits to a lawyer’s office during an advertised open house. Non-clients who attend an advertised lawyer open house do not reasonably anticipate that they will be subjected to in- person solicitation of professional employment.19 For this reason, it is unethical for lawyers to engage in in-person solicitation of such persons.20These occasions afford the lawyer the opportunity to meet prospective clients and for prospective clients to meet the lawyer. The lawyer may discuss legal topics with the attendees and may, when the request is initiated by the prospective client, privately provide individualized legal advice.21
The lawyer may not initiate an offer to provide or to accept professional employment. He is free to distribute in-person business cards, brochures and other self-promoting literature to an attendee of an open house who requests the literature, but may not otherwise distribute literature in person that communicates the lawyer’s availability to accept professional employment to those in attendance.22The lawyer may later mail the brochures and other literature to those who attend the open house. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), the lawyer may accept professional employment from attendees of the open house.
The Committee believes that the same analysis applies to trade-show booths. The lawyer may get acquainted with those who visit the booth, may discuss legal topics generally and may, when the request is initiated by the prospective client, privately provide individualized legal advice. The lawyer may not initiate in-person communications about the lawyer’s availability to accept professional employment. The lawyer may not in person distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment unless the person visiting the booth initiates the request for this information. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), he is free to accept professional employment offered by those who visit the booth.
Issue No. 4 Analysis: The Committee believes that a table set up by a lawyer at a retirement or senior center for the purpose of meeting with residents of the center who voluntarily visit the lawyer’s table to discuss legal topics is indistinguishable from a lawyer’s open house or a booth set up by a lawyer at a trade show. The analysis of this issue is the same as the analysis of Issue No. 3, and the ethical restraints on the lawyer’s conduct are the same as the restraints on a lawyer’s holding an open house or setting up a trade-show booth.
Issue No. 5 Analysis: The lawyer’s conduct in initiating uninvited communications with residents of the senior center, whether in their rooms or in common areas of the center, is distinguishable from establishing a table in a common area of the senior center. When the lawyer initiates the contact, the resident is subjected to the uninvited presence of the lawyer in a one-on-one encounter. This situation is “fraught with the possibility of undue influence, intimidation and over-reaching.”23The residents of the senior center are subjected to “the private importuning of a trained advocate, in a direct interpersonal encounter” which was wholly uninvited by the resident.24 Because the communications are private and oral and not visible or otherwise open to public scrutiny, it is nearly impossible for the lawyer’s conduct to be regulated. The potential for abuse inherent in this situation justifies a prophylactic prohibition of the acceptance of legal representation offered by the residents of the senior center under these circumstances, unless the representation is pro bono.25
It may be argued that such uninvited one-on-one contact to discuss legal topics of interest to the residents of the senior center is not solicitation unless the lawyer communicates his availability to accept legal employment. It may also be argued that, if the resident initiates a request for individualized legal advice or to engage the lawyer to provide legal services, then the professional employment has not been obtained through solicitation in violation of Rule 7.3(a). The Committee is not persuaded by such arguments. These arguments are similar to the analysis set forth earlier in this Opinion for law-related seminars, group question-and-answer sessions, client open houses and trade-show booths and discussion tables. However, in each of these previously discussed modes of lawyer communication, the prospective clients have invited the communication. While the one-on-one communications at the lawyer open house, lawyer trade-show booth and discussion table are also fraught with the danger of undue influence, intimidation and over reaching, and are also private and not open to public scrutiny, they are at least invited communications. When weighing the rights and benefits of the public in receiving education and direction on legal topics with the potential for lawyer abuse, the Committee finds the balance in favor of permitting one-on-one communications at lawyer open houses, trade-show booths and discussion tables because the communications are invited by the prospective client.
In Shapero v. Kentucky Bar Association, the United States Supreme Court distinguished solicitation by targeted mail from in-person solicitation, stating: “In assessing the potential for over reaching and undue influence, the mode of communication makes all the difference.”26We agree, but further note that uninvited one-on-one communication is fraught with the most danger of abuse. It is this form of communication to attract professional employment that Rule 7.3(a) was intended to prevent. A lawyer may not accept professional employment resulting from such uninvited one-on-one contacts, unless the representation is solicited and provided on a pro bono basis.
Issue No. 6 Analysis: Bar-sponsored telethons and the “Tuesday Night Bar” result in in-person communications by members of the public with lawyers similar to the lawyer open house, trade-show booth and discussion table communications discussed earlier in this Opinion. There is, however, one important distinction. These events are sponsored and advertised to the public by the Bar. Lawyers volunteering to participate in these Bar-sponsored programs are, therefore, subject to the Bar’s rules, regulations and policies regarding the program, in addition to the Utah Rules of Professional Conduct.
Each participant in the Tuesday Night Bar Program receives a policy statement which describes the program as being designed to provide preliminary counseling and general legal information and, if appropriate, referral to a lawyer using the Bar’s Lawyer Referral Service. The policy statement further states: “[The program] is not intended to create an on-going attorney-client relationship between the participants . . . . Attorneys shall not take clients and/or cases from the Program unless the attorney does so on a pro bono basis.” The Bar has also informally indicated it intends to apply a similar policy statement regarding Bar-sponsored telethons.
Therefore, under the current Bar policies, a lawyer volunteer participating in the Bar-sponsored Tuesday Night Bar or a telethon program may not accept legal employment resulting from communications with members of the public during the program, unless the representation is on a pro bono basis. If there were no Bar policy preventing a lawyer participant from accepting professional employment on a for-fee basis from members of the public with whom the lawyer has made contact during a Bar-sponsored program, the lawyer would be governed by the same limitations as discussed previously in this Opinion with respect to communications at lawyer open houses, trade-show booths and discussion tables.
Issue No. 7 Analysis: Rule 7.3(a) states in part: “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 lawyers doing so is the lawyer’s pecuniary gain.” Thus, the lawyer may not generally communicate in person with the prospective client and offer to provide legal services, even if the lawyer has been requested by a friend or close relative of a prospective client to make the communication.27
However, if the person requesting the lawyer to contact the prospective client is the prospective client’s agent, then it would not be unethical for the lawyer to contact the prospective client in person to offer to provide professional services. In that case, the in-person contact has been invited by the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client.28
In these circumstances, it would be best for the lawyer to advise the person referring the prospective client that the prospective client should contact the lawyer and request the lawyer’s professional services. Otherwise, the lawyer runs the risk that the prospective client’s friend or family member is not authorized by the prospective client to request the lawyer’s direct in-person communication with the prospective client.
Footnotes
1.We assume in this Opinion that the various persons who may be in attendance are not persons “with whom the lawyer has [a] family or prior professional relationship” and that any solicitation would be significantly motivated by “the lawyer’s pecuniary gain.” Otherwise, the lawyer is not constrained by the provisions of Rule 7.3, which forms the foundation of our analysis.
2.In Opinion No. 127, the Committee discussed Rule 7.3(a) and the constitutional limitations on the rule. Utah Ethics Advisory Op. 127, 1994 WL 579847 (Utah St. Bar).
3.See California Rules of Professional Conduct, Rule 1400(B)(1) (“solicitation” is any communication “concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain”).
4.See ABA Model Code of Professional Responsibility, DR2-104(A).
5.Utah Ethics Advisory Op. 97-03, at 2, 1997 WL 223849 (Utah State Bar).
6.Los Angeles Co. Bar Assoc., Formal Op. 494, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:1702 (Oct. 19, 1998).
7.Some state bar associations have allowed lawyers to make generalized statements at law-related seminars regarding their availability to accept professional employment. See, e.g., Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ariz. State Bar Assoc., Op. 87-23, ABA/BNA Lawyer’s Manual on Professional Conduct 901:1408 (Oct. 26, 1987). Arizona allows lawyer presenters at law-related seminars to offer to provide legal services with or without fee, if no pressure or coercion is exercised upon attendees at the seminar. We do not agree with these opinions. We believe such conduct constitutes in-person solicitation prohibited by Rule 7.3(a).
8.Ill. State Bar Assoc., Op. 96-01, 1996 WL 466449.
9.Mass. State Bar Assoc., Op. 86-3, ABA/BNA Lawyer’s Manual on Professional Conduct 901:4601 (Nov. 25, 1996); Los Angeles Co. Bar Assoc., Formal Op. 494.
10.The Committee does not believe that Rule 7.3(a) precludes lawyer sponsors or presenters at law-related seminars from leaving business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment at tables where these materials may be picked up by any attendee choosing to do so. However, the lawyer may not in any way promote or encourage attendees in person to pick up such written materials.
11.S.C. State Bar Assoc., Op. 97-05, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:7904 (April 1997).
12.Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ala. State Bar Assoc., Op. 87-119, ABA/BNA Lawyer’s Manual on Professional Conduct 901-1032 (Sept. 29, 1987); Penn. State Bar Assoc., Op. 93-42A, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7326 (June 2, 1993).
13.R.I. State Bar Assoc., Op. 94-39, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7834 (June 22, 1994); Penn. State Bar Assoc., Op. 93-42A. By providing individualized legal advice, the lawyer has created an attorney-client relationship and must comply with the Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10, and Rule 1.6, regarding client confidences.
14.Wis. State Bar Assoc., Op. E-94-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:9104 (Nov. 18, 1994); Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Miss. State Bar Assoc., Op. 156, ABA/BNA Lawyer’s Manual on Professional Conduct 901:5108 (Dec. 2, 1988); Penn. State Bar Assoc., Op. 89-32, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7318 (undated).
15.Some state bar associations require that lawyer participants be competent in the area of law addressed at the seminar. Tex. State Bar Assoc., Op. 489, 57 Tex. B.J. 372 (1994). Although lawyers are encouraged not to make presentations in areas of the law in which they are not competent, a law-related seminar is not the provision of legal services and is therefore not subject to Rule 1.1. Some state bar associations require that the seminar be educational, not promotional. Ind. State Bar Assoc., Op. 10 of 1986, ABA/BNA Lawyer’s Manual on Professional Conduct 901:3303 (undated); Tex. State Bar Assoc., Op. 489. To the extent this limitation is intended to be more restrictive than a prohibition on in-person solicitation, it is not required by the Rules and is constitutionally suspect. See Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v. Fane, 507 U.S. 761 (1993). A requirement in some states is that the sponsorship of the seminar be disclosed. To the extent that a failure to disclose the sponsorship of the seminar may be misleading, a lawyer may be required to disclose this fact to comply with Rule 7.1. However, Rule 7.1 applies only to the advertisement or promotion of a law-related seminar which communicates the lawyer’s availability to accept professional employment.
16.See R.I. State Bar Assoc., Op. 96-21, ABA/BNA Manual of Professional Conduct 1101:7804 (Sept. 12, 1996) (lawyer may telephone administrators of senior centers to offer a lecture series targeted specifically for senior citizens).
17.See, e.g., Nassau Co. [N.Y.] Bar Assoc., Op. 90-7, ABA/BNA Lawyer’s Manual on Professional Conduct 901:6274 (Mar. 14, 1990) (authorizing lawyer to offer legal services from a booth at a shopping center so long as lawyer complies with advertising rules in advertising minimum fees for services and protects against disclosure of client confidences).
18.Penn. State Bar Assoc., Op. 88-214, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7316 (undated) (distribution of firm brochure and contract samples from trade show booth is in-person solicitation); Kan. State Bar Assoc., Op. 98-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:3804 (April 2, 1998) (passing out firm brochures at trade show to those who pass by the trade show booth is in-person solicitation).
19.This Opinion assumes that the invitation to a lawyer’s open house does not specifically invite the public to attend for the purpose of being solicited to provide professional employment to the lawyer. The Committee believes that non-clients who attend an open house in response to an invitation that states that the non-clients will be solicited have, in turn, invited the in-person solicitation. It would, therefore, not be unethical for a lawyer to make an in-person solicitation to such a person.
20.N.C. State Bar Assoc., Op. 146, 1992 WL 753128 (Jan. 15, 1993); Ore. State Bar Assoc., Op. 1991-35, 1991 WL 279176 (July, 1991); see also R.I. State Bar Assoc., Op. 89-14, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7805 (July 20, 1989) (lawyer may attend social gatherings to meet prospective clients, but may not engage in in-person solicitation).
21.When providing individualized legal advice, the lawyer must comply with all Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10 and Rule 1.6 concerning client confidences.
22.The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials.
23.Rule 7.3 cmt.
24.Id.
25.Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) (prophylactic rule against in-person solicitation does not violate the rights of free expression afforded by the First and Fourteenth Amendments of the United States Constitution even in the absence of a showing of any specific harm to the prospective clients). Accord, Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988). If the representations are accepted on a pro bono basis, then Rule 7.3(a) would not be applicable. The primary motive of the lawyer would not be pecuniary gain.
26.486 U.S. 466, 475 (1988)
27.Norris v. Alabama State Bar, 582 So. 2d 1034 (Ala. 1991) (lawyer suspended from practice for two years after delivering to a funeral home a funeral wreath and a letter addressed to the widow offering assistance after having received an anonymous telephone call from someone purporting to be a friend of the widow stating that she required legal services and did not have sufficient funds for a funeral wreath); Spence, Payne, Masington & Grossman, P.A. v. Gerson, 483 So. 2d 775 (Fla. App. 1986) (unethical in-person solicitation for a lawyer to send an investigator to obtain a retainer agreement from a widow after receiving a telephone call from a client of the lawyer and a close friend of the widow requesting that the lawyer offer to provide professional services to the widow).
28.A contrary opinion may be found in the Spence, Payne case.

Ethics Advisory Opinion No. 99-05

Approved July 30, 1999
Issue:
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.
ANALYSIS
Introduction. In early 1999, the Office of the Attorney General (the “Office”) announced its intent to undertake an investigation to determine whether Utah criminal laws were violated by the Salt Lake City Bid Committee, which is being led by the Chief Deputy Attorney General (the “Investigation”). In view of the Attorney General’s prior association with the Bid Committee, Utah’s Solicitor General has requested an “ethics opinion or other guidance concerning the [Investigation] in view of the Attorney General’s involvement with the Bid Committee.”
Background. The Bid Committee, a Utah nonprofit corporation, was formed in 1988 to seek the nomination of the United States Olympic Committee (“USOC”) to represent the United States in the international bidding process of the International Olympic Committee (“IOC”) to be selected as the host of the Olympic Winter Games. Following the USOC’s 1989 selection of Salt Lake City as the United States bid entry, the Bid Committee actively sought the 1998 Winter Games.
In August 1989, Utah’s Attorney General, who was then in private practice, was invited to join the Bid Committee’s newly expanded Board of Trustees (the “Board”). After attending the first two meetings of the Board, the Attorney General resigned from the Board because of her intervening appointment as Utah’s Solicitor General.1
In 1991, the IOC awarded the 1998 Winter Games to Nagano, Japan. The Bid Committee then sought and, in 1995, was awarded the 2002 Winter Games. In late 1998, news reports indicated that Bid Committee representatives may have engaged in activities intended to influence IOC representatives improperly to award the Games to Salt Lake City. Numerous investigations concerning the efforts of Salt Lake City and other Olympic host cities followed.2
Applicability of the Rules. The Attorney General and each lawyer in the Office are subject to the Utah Rules of Professional Conduct. The Rules apply on an individual lawyer basis, and “[a]ny lawyer or supervising lawyer in [the Office] who cannot individually satisfy the requirements of [the applicable Rules] should not engage in the representation in question.”3The Rules relevant to the issue before us are Rule 1.11(c), which governs successive private and government employment, and Rule 1.7(b) which governs conflicts of interest arising out of a lawyer’s responsibilities to others or the lawyer’s own interests.4
Application of Rule 1.11. Rule 1.11(c) provides in relevant part that, “a lawyer serving as a public officer or employee shall not . . . participate in a matter in which the lawyer participated personally and substantially while in private practice or non-governmental employment . . . .”5The fundamental purpose of Rule 1.11(c), protection of client confidences when an attorney moves from private practice to government service, assumes an attorney-client relationship and an exchange of confidential information that must be protected after the attorney moves to government service. Our review of the information submitted to us indicates that there was no attorney-client relationship between the Attorney General and the Bid Committee that would have given rise to an expectation of privileged communications between the Attorney General and the Bid Committee. The Solicitor General’s request for ethics guidance states that “[a]t no time did [the Attorney General] act as the Bid Committee’s lawyer.” We accept this statement at face value and see nothing in the materials submitted to us indicating otherwise. However, application of Rule 1.11(c) is not limited to the government attorney’s prior participation in a matter as an attorney. A “substantial participation” on a personal, non-attorney basis would involve a Rule 1.11(c) analysis. With the information supplied to us, we conclude that her personal involvement was not substantial.6
Because creation of an attorney-client relationship is fact-specific, it is incumbent on the Attorney General to evaluate independently her involvement with the Bid Committee and its individual members to determine whether an attorney-client relationship was created. We note, however, that even if (i) an attorney-client relationship existed, (ii) the Attorney General’s association with the Bid Committee constituted a “matter” within the ambit of Rule 1.11,7and (iii) the Attorney General “participated personally and substantially” in the matter while in private practice, any resulting conflict of the Attorney General would not be imputed to the entire Office. A conflict of interest involving a lawyer moving from private practice to government service is strictly personal to the lawyer, and does not disqualify the governmental office to which the lawyer moves, so long as appropriate means are employed to protect against disclosure of confidential communications or information.8
Application of Rule 1.7. Rule 1.7(b) provides in relevant part that: “A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless: (1) The lawyer reasonably believes the representation will not be adversely affected; and (2) Each client consents after consultation.”9
Rule 1.7(b) is intended to prohibit a lawyer from representing a client when the representation would be impaired by the lawyer’s responsibilities to others or by the lawyer’s own personal interests. The principal comment to Rule 1.7(b) explains that loyalty to and representation of a client are “impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests.”
Unlike Rule 1.7(a), which arises only in the face of an actual, direct conflict between two or more clients, Rule 1.7(b) “applies whenever representation of a client may be impaired or limited by the attorney’s responsibilities to others, and does not depend upon the existence of an actual adverse relationship, ‘direct’ or not.”10The focus of Rule 1.7(b) is not on an existing or potential adverse relationship, but on the nature of a lawyer’s responsibilities to others or the lawyer’s own personal interests, and the extent to which such interests may limit the quality of the lawyer’s representation of a client’s interests.11 “The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment.”12Rule 1.7(b) “protect[s] against the risk that the pull of other interests will impair the quality of the lawyer’s representation . . . . [and] seeks to insure that a lawyer’s range of options on behalf of A are not limited by responsibilities that the lawyer also owes to B, whether B is another client, a third party or the lawyer himself.”13
While the competing interests influencing a lawyer’s judgment may be apparent, the strength of the interests and the likelihood that they will eventuate into a conflict and impermissibly impact the lawyer’s judgment may vary. Thus, we have avoided construing Rule 1.7(b) as establishing any bright-line rules and have consistently interpreted the rule to require lawyers to undertake a case-by-case evaluation of the relevant facts and circumstances in determining whether the Rule requires refusal or termination of representation.14Rule 1.7(b)’s inquiry, like its counterpart under Rule 1.7(a), is objective rather than subjective. In the past, we have not attempted to establish an exhaustive list of facts that a lawyer should consider when confronted with a potential conflict under Rule 1.7(b). While we continue that practice here, we believe that a proper Rule 1.7(b) analysis should involve consideration of at least the following factors: (i) the identity of the client, the client’s interest and the existence, nature and strength of any potentially competing interests, (ii) whether representation of the client may be limited by such interests and, if so, the likelihood and materiality of the limitation,15and (iii) whether the lawyer undertaking the representation has reasonably concluded from an objective standpoint that the representation will not be adversely affected by any potential material limitation on the representation.
When evaluating whether a proposed representation is permissible under Rule 1.7(b), additional principles are relevant. First, the burden of balancing all relevant factors and determining the propriety of the representation is borne primarily by the lawyer undertaking the representation. When a lawyer has evaluated the competing interests and reasonably concluded that any limitations are surmountable, the lawyer’s judgment will be set aside only if it is determined that a disinterested lawyer acting in good faith would have reached a different conclusion.16Second, the analysis mandated by Rule 1.7(b) is dynamic. Rule 1.7(b)’s proscription may operate to bar proposed representation or may require the termination of an existing, ongoing representation.17
Here, the inquiry is whether the Investigation may be materially limited by the Attorney General’s prior connection to the Bid Committee. In light of the limited facts before us and the individual, fact-specific and ongoing analysis mandated by Rule 1.7(b), we are unable to opine as to whether the Office’s representation of the State, generally, or each lawyer’s participation in the Investigation, specifically, in fact satisfies or fails to satisfy the requirements of Rule 1.7(b). To provide the requested ethical guidance, however, we make the following observations and suggestions which, in light of Rule 1.7(b)’s contextual approach, illustrate the considerations that the Attorney General, the Chief Deputy and each lawyer involved with the Investigation must make on an individual basis.
Because the Office decided to undertake the Investigation, we assume that the Attorney General concluded that the Investigation (i) would not be materially limited by her prior connection with the Bid Committee, or (ii) would not be adversely affected by any such limitation. Further, because the Chief Deputy Attorney General accepted responsibility for the Investigation, we assume that he and each attorney participating in the Investigation independently concluded that their respective participation (i) would not be materially limited by their loyalty or responsibilities to the Attorney General, any third party or by their own personal interests, or (ii) at a minimum, would not be adversely affected by any such limitation.
In doing so, each lawyer should have carefully considered (i) the nature and extent of the Attorney General’s involvement with the Bid Committee (e.g., was she one of many who participated only at the general Board level with little or no day-to-day involvement in the Bid Committee’s activities as would first appear, or was she involved in managing or carrying out the organization’s day-to-day business), (ii) the duration of the Attorney General’s connection to the Bid Committee, both formal and informal (e.g., did she have any form of continuing connection to or knowledge of the Bid Committee’s activities even though her formal Board service was brief), and (iii) the likelihood that the Investigation could reach back to the period of time that the Attorney General was involved with the Bid Committee.
Moreover, the Chief Deputy and every other attorney participating in the Investigation should have considered, and must continue to consider throughout the Investigation, (i) the existence and strength of the pull of any competing professional, personal or other interests (reputational, employment-related, personal loyalty, friendship, etc.), and (ii) the likelihood that such interests could impair the attorney’s duty to consider, recommend and carry out on behalf of the State of Utah appropriate courses of action with respect to the Investigation.18 To the extent that such considerations indicate that a lawyer could not reasonably conclude that his or her participation in the Investigation will not be adversely affected, the lawyer’s participation must terminate.
CONCLUSION
Neither Rule 1.11(c) nor Rule 1.7(b) necessarily prohibits the Investigation by the Office of Attorney General. The Rules require, however, that a fact-intensive analysis be undertaken to assure that their requirements are satisfied. Accordingly, each lawyer has an affirmative obligation to undertake an independent evaluation as to whether the requirements of Rule 1.11(c), with respect to the Attorney General, and Rule 1.7(b), with respect to the Attorney General and each lawyer participating in the Investigation, have been and can continue to be satisfied throughout the course of the Investigation.
Footnotes
1.These facts are reflected in the official minutes of the relevant Board meetings, copies of which were attached to the ethics request forwarded to us. The Board minutes state that the Attorney General resigned “so as to avoid any conflict with her position with the State of Utah.”
2.In addition to the Investigation, the IOC, USOC and Bid Committee undertook internal investigations, and the federal governmental launched various congressional and administrative investigations.
3.Utah Ethics Advisory Op. 142, 1994 WL 579850 (Utah St. Bar). See also Utah Ethics Advisory Op. 95-07 at 2, 1995 WL 581870 (Utah St. Bar); Annotated Model Rules of Professional Conduct, Rule 1.11 cmt. 2 (A.B.A. 3d ed. 1996).
4.Of course, all lawyers in the Office having direct supervisory authority over other lawyers in the Office must make reasonable efforts to ensure that the lawyers conform to the Rules. Utah Rules of Professional Conduct 5.1(b) cmt. 1 (1998); Utah Ethics Advisory Op. 98-06 at 8, 1998 WL 779174 (Utah St. Bar).
5.See Rule 1.11(c).
6. The information before us, however, is limited, and our review does not necessarily end the fact-specific inquiry that must be undertaken by the lawyer in question.
7.For purposes of Rule 1.11, the term “matter” means a particular “judicial or other proceeding . . . involving a specific party or parties.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 342 (1975); see also Poly Software Int’l. v. Yu Su, 880 F. Supp. 1487, 1492 (D. Utah 1995).
8.Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 1.11:401 at 364 (2d ed. Supp. 1998). See Utah Ethics Advisory Op. 142, 1994 WL 579850 (Utah St. Bar); see also, Utah Ethics Advisory Op. 98-06, 1998 WL 779174 (Utah St. Bar).
9.”A client may consent to representation notwithstanding a conflict. However, with respect to . . . material limitations on representation of a client, when a disinterested lawyer would conclude that the client should not agree to representation under the circumstances, the lawyer involved cannot properly [seek consent or provide representation].” Utah Rules of Professional Conduct 1.7 cmt. 2 (1998). The question of what constitutes “client consent” under Rule 1.7(b)(2) with respect to entities represented by the Office of Attorney General is a matter of substantive law beyond our jurisdiction.
10.Hazard, supra note 8, §1.7:301 at 249 (2d ed. Supp. 1998).
11.”The rationale behind the general rule on adverse personal interests is simple: when the interests of a lawyer and a client cross, loyalties are confused, and the lawyer’s effectiveness is diminished.” ABA/BNA Lawyer’s Manual on Professional Conduct, available in Westlaw, at LMPC 51:401. See e.g., S.C. Ethics Advisory Op. 93-38, 1994 WL 928279 (S.C. Bar) (professor who also serves as legal counsel to the institution where the professor teaches must take care to avoid involvement in any policy-making or other situation in which the lawyer’s interest as a faculty member might interfere with his judgment as the institution’s lawyer).
12.Utah Rules of Professional Conduct 1.7 cmt. 1.
13.Hazard, supra note 8, §1.7:301 at 249.
14.Utah Ethics Advisory Op. 98-13 at 3, 1998 WL 863904 (Utah St. Bar); Utah Ethics Advisory Op. 98-11 at 507, 1998 WL 779176 (Utah St. Bar); Utah Ethics Advisory Op. 98-10 at 5, 1998 WL 716634 (Utah St. Bar).
15.In contrast to Rule 1.7(a), which suggests that, in the absence of client consent, a proposed representation is forbidden whenever representation of one client would be directly adverse to another client, Rule 1.7(b) establishes a more flexible approach to conflict analysis. “Rule 1.7(b) . . . speaks to material limitations on the representation, suggesting that merely marginal limitations on the representation do not bar a lawyer’s participation, if the other part of Rule 1.7(b) can be satisfied. Therefore, only “material” limitations trigger operation of the bar. . . .” Hazard, supra note 8, §1.7:301, at 251.
16.Utah Rules of Professional Conduct 1.7 cmt. 2 (1998).
17.Although an attorney may have initially concluded that an existing conflict would not adversely affect the representation, the attorney must continually evaluate the nature and extent of any limitations on the representation. If at any time during the representation an objective, reasonable attorney would conclude that the representation is adversely affected by competing interests, the representation must be terminated. Hazard, supra note 8, §1.7:301 at 250. See also Kan. Ethics Advisory Op. 95-11 (Kan. Bar Assoc. Oct. 17, 1995).
18.A material conflict of interest of the type prohibited by Rule 1.7(b) may arise when a lawyer’s professional interest governs the quality or results of the representation. For example, when a lawyer tailors the representation to protect the lawyer’s own professional interests, rather than a client’s legal interests, an impermissible conflict of interest arises. See, e.g., Walberg v. Israel, 766 F.2d 1071 (7th Cir.1985) (“[w]here a lawyer has a professional incentive to comply with a trial judge’s wishes, such as ensuring that he receives further court-appointed cases from the judge, divided loyalties are created, and these too can either mandate disqualification or lead to a post-conviction finding of ineffective assistance of counsel”).

Ethics Advisory Opinion No. 99-06

(Approved August 27, 1999)
Issue
: 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”).
In connection with the DLD hearing, the investigating police officer is served with a subpoena to appear at that hearing. Before the DLD hearing takes place, the defendant’s lawyer and the prosecuting attorney1agree to resolve the criminal DUI action. As a part of the plea-bargain discussion or after the agreement is reached, but before the DLD hearing, either the defendant’s lawyer or the prosecuting attorney contacts the investigating officer to indicate that (1) a compromise or a “deal” has been worked out concerning the charge against the defendant, and (2) a part of the deal is that the police officer will not appear at the DLD hearing. Notwithstanding the issued subpoena, non-appearance forecloses the presentation of any evidence against the defendant at the DLD hearing and is tantamount to “saving” the defendant’s license from being suspended or revoked. As a result of the investigating officer’s non-appearance at the DLD hearing, the administrative action is dismissed, and no action is taken relating the defendant’s driver’s license.
Analysis: Section 76-8-508 of the Utah Code provides:
A person is guilty of a third degree felony if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a person to . . . (b) withhold any testimony, information, document, item; (c) elude legal process summoning him to provide evidence; or (d) absent himself from any proceeding or investigation to which he has been summoned.2
On the facts related to the Committee in this request, a major element of the overall plea-bargain arrangement is the agreement that the subpoenaed police officer will not testify or, at least, will be asked to concur with the “deal” and not respond to the DLD subpoena. In the process of striking such a plea bargain on the DUI charge, if either the defense lawyer or the prosecuting attorney has induced (or attempted to induce) the police officer not to respond to a validly issued subpoena to appear at the DLD hearing, that lawyer appears to be in violation of Utah law.
Rule 8.4 of the Utah Rules of Professional Conduct specifies when a violation of the law constitutes an ethical transgression: “It is professional misconduct for a lawyer to . . . [c]ommit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects”3or to “engage in conduct that is prejudicial to the administration of justice.”4
Accordingly, we find that a lawyer who encourages or influences an investigating officer to ignore or fail to respond to a lawfully issued subpoena violates Rule 8.4 on two counts: (1) To encourage a witness who has been subpoenaed not to appear at a DLD hearing is to interfere with, and be prejudicial to, the administration of justice. (2) Further, to do so is a criminal act under Utah Code Ann. § 76-8-508 and one that may reflect directly on the lawyer’s regard and respect for the legal system that he serves. Engaging in an arrangement that has the ultimate effect of inducing a witness to ignore or fail to honor a subpoena would ordinarily reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer. However, it appears that this practice has occurred frequently over time, apparently in an attempt to expedite the judicial process. Because the ethical issues may not have been fully appreciated in the past, we do not recommend that any action be initiated by the Office of Professional Conduct in connection with past actions. However, any future action of this type would, in the Committee’s view, be a violation of Rule 8.4.
In addition, this arrangement violates Utah Rule of Professional Conduct 3.4(a): “A lawyer shall not . . . unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy a document or other material having potential evidentiary value.” An annotation to the ABA Model Rules of Professional Conduct concludes that “[p]rocuring the absence of a witness would . . . constitute the obstruction of evidence in violation of Rule 3.4(a).”5
The fact that this practice may have become commonplace, ostensibly in the pursuit of efficient processing of “routine” DUI cases, does not, of course, relieve the lawyers involved from compliance with the Rules of Professional Conduct. If compliance with the rules produces fewer plea bargains and more trials and administrative hearings, the state court system or the state legislature may wish to fashion a remedy. It is not for the lawyers to make such judgments.
Our Opinion will not, as some might claim, cause the wheels of practical justice to slow to a crawl. An ethically permissible way to proceed is to engage directly both arms of the State’s law-enforcement system-criminal and administrative-by involving the appropriate personnel of the DLD. If the State’s “deal” is that the defendant will plead guilty to a specified criminal charge in exchange for preservation of the defendant’s license and dismissal of the revocation proceeding, then let the State of Utah, through the coordination of its criminal and administrative arms, effect such a result. It should not be necessary to bend the ethical rules or to put law-enforcement officers in the position of purposefully failing to respond to a lawfully issued subpoena from an agency of the State of Utah.
Footnotes
1.As related to the Committee, this agreement may not even involve a prosecuting attorney, but constitutes an arrangement worked out between the defense lawyer and the police officer. As we have not been provided any facts about the nature of the communications that may have taken place before the plea-bargain arrangement has been worked out, we do not examine the ethical considerations of the bargaining process.
2.Utah Code Ann. § 76-8-508(1) (1998).
3.Utah Rules of Professional Conduct 8.4(b).
4.Id. 8.4(d).
5.Annotated Model Rules of Professional Conduct 328 (ABA 3d ed. 1996), citing Barnhill v. United States, No. 589-286, 1992 WL 453880 (N.D. Ill. April 8, 1992) (government lawyer counseled witness not to appear). See also Charles W. Wolfram, Modern Legal Ethics, 646 & n.80 (Hornbook Series 1986).

Ethics Advisory Opinion No. 99-07

(Approved December 3, 1999)
Issue:
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.
The lawyer will not charge the client any fee in connection with making the referral and will disclose to the client in writing that, if the client uses the services of the investment advisor, the investment advisor will pay a percentage of his regular commission to the lawyer.1The client would not pay the investment advisor any additional fee or commission as a result of the referral. The client will be asked to sign the disclosure statement acknowledging the referral-fee arrangement between the lawyer and the investment advisor.
Analysis: Rules 1.7(b) and 1.8(a) of the Utah Rules of Professional Conduct are directly applicable to this situation.2
Considerations Under Rule 1.7
Rule 1.7 provides that a lawyer may not represent a client under circumstances in which that representation may be materially limited by the lawyer’s own interest unless the lawyer reasonably believes the representation will not be adversely affected and the client consents. This rule is directly applicable to the present situation.
The Committee observes that this rule does not establish a per se prohibition against representation of a client in a situation in which a lawyer has a separate interest, but leaves the situation open for careful analysis. In connection with such an analysis, the comments to Rule 1.7 emphasize the importance of a lawyer’s accepting and maintaining loyalty to her clients and preserving independence in order to properly represent the client’s interests rather than the lawyer’s personal interests:
Loyalty to a client is also impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other responsibilities or interests. . . . A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.3
The Rule 1.7 comment goes on:
The lawyer’s own interests should not be permitted to have adverse effect on representation of a client. For example, a lawyer’s need for income should not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee. See Rules 1.1 and 1.5. If the probity of a lawyer’s own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest.4
Applying Rule 1.7(b) and the related comments to specific situations can be difficult. Indeed, similar questions have been considered in a number of other states and have resulted in a split of authority, some state bars finding this type of conduct to be per se unethical and the remainder finding that the conduct may be ethical under some circumstances.
States finding the practice per se unethical under Rule 1.7 include Arizona,5 Kentucky,6Nevada7and New York.8In essence, these states conclude that no amount of disclosure can overcome the conflict in interest between the lawyer and client in this type of situation.
For example, New York determined that no meaningful consent could be given by a client because of the direct and substantial conflict between the client’s and lawyer’s interests inherent in accepting a referral fee from an investment advisor. The New York opinion concluded that there is a possibility that the lawyer might give the client different or inferior legal advice due to her financial interest.
Kentucky concluded that the prospect of a lawyer’s compensation, supplementary to the legal fee already being paid by a client is likely to interfere materially, on a continual basis, with the lawyer’s independent professional judgment in objectively considering the client’s best interests. Moreover, the Kentucky opinion concluded that in many instances the situation could involve the lawyer in matters beyond her professional competence. This would make it difficult or impossible for the lawyer to disclose fully and fairly to the client the consequences of pursuing the recommended course instead of other alternatives that the lawyer is unlikely to have evaluated or considered. The Kentucky opinion noted that, if the client suffered a loss of assets under management by the investment advisor, the lawyer could be challenged to explain satisfactorily that her advice was based upon independent professional judgment and was not clouded by the pecuniary interest in the fees generated by the investment advisor.
The Arizona opinion focused on the duty of loyalty, concluding that loyalty is impaired when a lawyer has other interests. First, the client may feel that the lawyer is not providing unbiased advice or counsel based on the monetary interest the referral represents. Second, the lawyer’s professional judgment may be affected, perhaps unconsciously, by the knowledge that each referral will result in a payment from the investment advisor. With this monetary incentive, it is possible that the lawyer may refer a client to the investment advisor despite the fact that the client’s financial interests would be better served through other means. Moreover, if the client received deficient or inappropriate advice from the investment advisor, the lawyer might be placed in an ethically impermissible position of attempting to mediate, litigate or remedy the situation for the client. Third, the client might be reticent to be candid with the lawyer because of the fear that the client’s information would be imparted, perhaps inadvertently, to the investment advisor.
Other states, including Connecticut9and Missouri,10 have found that Rule 1.7 does not establish a per se prohibition against this type of conduct, although they observe that the potential for conflict is quite high. These jurisdictions reason that, although the payment of a referral fee by an investment advisor causes the lawyer to have an interest that raises issues under Rule 1.7, it may be possible for her to determine that there is no conflict of interest and that her interest will not adversely affect the client or the lawyer’s duty of loyalty to the client.
Considerations Under Rule 1.8
The Committee finds that Rule 1.8 is also applicable to the question presented. Rule 1.8 provides that a lawyer may not enter into a business transaction with a client or acquire a pecuniary interest adverse to a client unless the transaction is fair and reasonable to the client; the terms are fully disclosed in writing in a manner the client can reasonably understand; the client is given a reasonable opportunity to seek the advice of independent counsel; and the client consents in writing to the business transaction.11
Connecticut12and Illinois13have also relied on Rule 1.8 in their related consideration of the question presented. Illinois determined that referring a client to an investment advisor in return for a percentage of the advisor’s fee is a business transaction with the client. The lawyer may nevertheless charge a fee for providing business services to the client, provided the lawyer complies with Rule 1.8 and applicable case law. The Illinois opinion asserted that case law provides that there is a rebuttable presumption of undue influence over a client when a lawyer enters into a business transaction with the client. Under these circumstances, it was concluded that the lawyer must introduce clear and convincing evidence to rebut the presumption of undue influence. This would need to include a showing that the client consented to the arrangement after full disclosure. Full disclosure would include informing the client about the risks of the transaction and the fact that the lawyer would not be involved in any way to protect the client’s interest but would continue to receive a portion of the advisor’s fee.
Connecticut determined that the referring lawyer could meet the obligations of Rule 1.8 by: (a) determining that the obligations to the client would not be compromised in any way; (b) assuring that the terms of the transaction under which the lawyer acquires the interest are fair and reasonable to the client; (c) making full disclosure to the client in writing in a way which the client can reasonably understand; (d) advising the client in writing to consider seeking the advice of an independent counsel; and (e) giving the client a reasonable opportunity to do so. The lawyer must also clarify in writing whether she is performing legal services in making the referral. Finally, the client must consent to the arrangement in writing.
The Committee’s Conclusion
The Committee finds Rules 1.7 and 1.8 both to be applicable, and both must be satisfied. We share the worries expressed by the states that have declared per se prohibitions against a lawyer’s receiving compensation for making a client referral to an investment advisor. Nevertheless, we find more persuasive the rationale set forth in the opinions permitting a reasoned analysis of all of the facts of the particular situation.
Many issues need to be considered in reaching an objective conclusion that there is no conflict of interest that is adverse to the client’s best interests. The Committee’s view is that the affected lawyer should commence the analysis of these issues with a strong concern that the lawyer may exert undue influence over the client or that the duty of loyalty could be impeded. In addition, the lawyer must consider other relevant factors before determining that it is appropriate to receive a commission from an investment advisor to whom a referral is made.
For example, notwithstanding having given written approval for the transaction, the client may later have concerns that the lawyer is not providing unbiased advice or that loyalty to the client is compromised by the financial arrangement with the investment advisor. It is possible that the lawyer’s professional judgment might be compromised by a motivation, overt or subconscious, to preserve the advisor’s fee-sharing arrangement, even though a change in the client’s financial interests might suggest some other arrangement. It is possible a lawyer might be motivated to give the client different or inferior legal advice due to the pecuniary interest involved with the financial advisor. There is a potential conflict if the lawyer were asked to mediate, litigate, or otherwise remedy a problem due to deficiencies on the part of the financial advisor. There is a possibility that the client might have been able to negotiate a lower commission had the lawyer not been receiving a commission from the investment advisor, and hence the arrangement might not be fair to the client. For example, a lawyer performing estate-planning services for the client might be in a position that is more likely to exert undue influence than a lawyer providing entirely unrelated legal services. Additional issues arise if the investment advisor is also a client of the lawyer.
In view of these concerns, the Committee believes it will be very difficult for a lawyer to maintain independence while taking a percentage of an investment broker’s services due to a client referral. Nevertheless, the Committee concludes the spirit and specific language of Rules 1.7 and 1.8 require that individual lawyers involved in this type of situation be permitted to consider all of the facts and reach a determination whether a conflict of interest exists. As long as such a determination meets the specific requirements of Rules 1.7 and 1.8 and is objectively reasonable in view of concerns expressed in this Opinion, there will be no ethical violation.
APPENDIX I
Rule 1.7. Conflict of Interest: General Rule. . . .
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
Rule 1.8. Conflict of Interest: Prohibited Transactions.
(a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1) The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which can be reasonably understood by the client; and
(2) The client is given a reasonable opportunity to seek the advice of independent counsel in the transaction; and
(3) The client consents in writing thereto.
Footnotes
1.As originally posed to the Committee, the inquiry characterized the lawyer’s commission as a share of the commission charged to the client by the investment advisor. This Opinion applies as well to any form of commission or payment that the lawyer receives.
2.Rules 1.7(b) and 1.8(a) are attached as Appendix I.
3.Utah Rules of Professional Conduct 1.7, cmt. (“Loyalty to a Client”).
4.Id . (“Lawyer’s Interests”).
5.Ariz. Jud. Advisory Op. 98-09, 1999 WL 667267 (Ariz. Sup Ct. Jud. Ethics Advisory Comm.)
6.Ky. Bar Ass’n Ethics Comm. Formal Op. E-390 (July 1996).
7.State Bar of Nev. Comm. on Ethics and Prof. Responsibility Formal Op. 24 (June 18, 1997).
8.N.Y. Comm. on Prof. Ethics Op. 682, 1996 WL742860 (N.Y. State Bar Ass’n).
9.Conn. Ethics Op. 94-25, 1994 WL 780842 (Conn. Bar Ass’n).
10.Mo. Bar Office of Chief Disciplinary Counsel, Informal Adv. Op. 960124 (1996).
11.See App. I.
12.Conn. Ethics Op. 97-16, 1997 WL 700650 (Conn. Bar Ass’n).
13.Ill. State Bar Ass’n Op. on Prof. Conduct 97-04 (1997).