(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. (more…)
(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. (more…)
This opinion was vacated by the Utah Supreme Court in Sorensen v Barbuto, 177 P.3d 614 (UT 2008). See also Wilson v. IHC Hospitals, Inc., 289 P.3d 369 (UT 2012).
This opinion was vacated by the Utah Supreme Court in Sorensen v Barbuto, 177 P.3d 614 (UT 2008). See also Wilson v. IHC Hospitals, Inc., 289 P.3d 369 (UT 2012).
(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? (more…)
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.
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 (more…)
(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 (more…)
(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