Issued January 26, 2001
¶ 1 Issue: Under the Utah Rules of Professional Conduct, may an attorney representing a client in a divorce case assert a statutory attorney’s lien under Utah Code Ann. § 78-54-41 against property awarded to the client in the divorce settlement?
¶ 2 Discussion: Rule 1.8(a). We first address a threshold question: Does the invocation of a statutory attorney’s lien require the attorney to meet the requirements of Rule 1.8(a) of the Utah Rules of Professional Conduct, which generally governs business transactions between lawyers and their clients?
¶ 3 Pursuant to Rule 1.8(a), a lawyer may 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 of the transaction are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client, (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 to the transaction. (more…)
(Issued February 21, 2001)
¶ 1 Issue: Does a lawyer violate the Utah Rules of Professional Conduct if he agrees to discount his fees to a client until a referral fee initially charged to the client by a lawyer-referral service is reimbursed to the client?
¶ 2 Opinion: A lawyer who agrees to discount his fees to a referred client in order to permit the client to be reimbursed for the referral fee that the client originally paid to the referral service makes an indirect payment to the referral service and, therefore, violates the prohibition against payment of referral fees on a fee-per-case basis under Utah Rules of Professional Conduct 7.2(c). (more…)
Issued March 21, 2001
¶ 1 Issue: What are the ethical considerations where a lawyer seeks to disqualify a judge from a case by associating a lawyer from the judge’s prior private law firm and intentionally creating a circumstance in which the judge may conclude that he must recuse himself from the case?
¶ 2 Conclusion: Depending on the facts and circumstances, it may be unethical conduct for either lawyer to manipulate the judicial system by agreeing to associate new counsel for the primary purpose of provoking a judge’s recusal.
¶ 3 Background: The following practice has been brought to the Committee’s attention: A lawyer (the “initial counsel”) is dissatisfied with the particular judge assigned to his client’s case or is disappointed with one of the judge’s preliminary rulings. The lawyer then associates a new lawyer (the “new colleague”) on the case-a lawyer purposefully chosen from the judge’s prior private law firm. Concerned that his impartiality in the case might be questioned because of the relationship with his prior law firm, the judge then recuses himself from the pending matter under Canon 3E of the Utah Code of Judicial Conduct1and the lawyer’s client is assigned a new judge. (more…)
Issued May 10, 2001
¶ 1 Issue: Is it ethical for lawyers to charge clients an annual fee for estate planning and asset-protection legal services based on a percentage of the value of the assets involved?
¶ 2 Opinion: Charging clients an annual fee for estate planning and asset protection legal services based on a percentage of the value of the assets involved is likely to be ethical only in extraordinary circumstances.
¶ 3 Facts: A law firm desires to bill clients for legal services1for estate planning and asset protection on an annual basis using a percentage, not to exceed 1%, of “assets owned” by clients or client entities. The percentage fee would cover “initial design and implementation of client’s estate and asset protection plan and firm’s commitment to ongoing annual services including several hours of annual office and telephonic conferences, annual gifting programs, additional document preparation, and review of documents related to the purchase or sale of the client’s principal residence.” (more…)
Issued July 13, 2001
¶1. Issue: What are the ethical implications for a real estate broker who includes in his promotional material that he is also a lawyer?
¶2. Opinion: A lawyer functioning in a law-related profession, such as real estate brokerage, who holds out as either an active or inactive lawyer will be subject to the Utah Rules of Professional Conduct while engaged in that law-related profession.
¶3. Background: An individual who is currently licensed to practice law in State A and is an inactive member of the Utah State Bar intends to engage in providing real estate agent or real estate brokerage services in Utah. He has asked the Committee about the ethical consequences of stating in advertising for his Utah real estate services that he is a licensed and active lawyer in State A and an inactive Utah lawyer. (more…)
Issued August 29, 2001
¶ 1. Issue: Is it a violation of the ethical rules for an attorney or law firm to use trade names such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” in selected court pleadings?
¶ 2. Opinion: It is not a violation of the ethical rules for an attorney or law firm to use trade names such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” so long as the organization represents clients who claim to be in the indicated categories and provided the name is uniformly used for all such representation. Selective use of such trade names for some clients in the indicated categories but not others would violate Utah Rule of Professional Conduct 7.1(a). (more…)
Issued June 12, 2002
¶1. Issue: May a private practitioner who serves as a part-time county attorney represent private clients in connection with protective-order hearings?
¶2. Opinion: The private representation of an individual by a part-time county attorney at a protective-order hearing is not a per se violation of the Utah Rules of Professional Conduct. However, the county attorney must fully inform the client that, if the client later becomes a criminal defendant in that county, the county attorney will not be able to continue the representation; he will not be able to defend the client in any criminal proceedings; and he will have to withdraw as counsel in the civil case. The county attorney must also determine, on a case-by-case basis, the likelihood that this potential conflict of interest between his prosecutorial duties and the interest of his private client will actually arise. If the likelihood that this will occur is relatively high, the attorney must obtain both the county’s and the private client’s informed consent to the representation. (more…)