Ethics Advisory Opinion No. 01-01

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.
¶ 4 Rule 1.8(j) provides that “[a] lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may . . . acquire a lien granted by law to secure the lawyer’s fee or expenses . . . .”1
¶ 5 Utah statute provides for an attorney to be granted an attorney’s lien on the proceeds of a cause of action in which a lawyer represents a client:
The compensation of an attorney and counselor for services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim or at the time that the attorney and client enter into a written or oral employment agreement, the attorney who is so employed has a lien upon the client’s cause of action or counterclaim, which attaches to any settlement, verdict, report, decision, or judgment in the client’s favor and to the proceeds thereof in whosoever2hands they may come, and cannot be affected by any settlement between the parties before or after judgment. Any written employment agreement shall contain a statement that the attorney has a lien upon the client’s cause of action or counterclaim.3
¶ 6 The threshold question is, therefore, whether a lawyer may assert a lien under § 78-51-41 only if she satisfies the conditions of Rule 1.8(a), which govern a “business transaction” with a client and the knowing acquisition of an interest adverse to a client.
¶ 7 We conclude that Rule 1.8(a) is not applicable to the statutory lien situation. It is not reasonable to read this rule so narrowly that a statutory lien becomes a “business transaction” subject to Rule 1.8(a)’s conditions.4The statutory lien in question is a right of public record granted by the Legislature and is not the kind of adverse interest contemplated by Rule 1.8(a). Additionally, statutory attorney liens are specifically authorized by Rule 1.8(j)(1). Therefore, a lawyer does not violate Rule 1.8(a) by entering into a fee agreement with a client and subsequently enforcing that agreement by asserting a claim under § 78-51-41.5
¶ 8 Proceeds in Divorce Cases. Attorneys are granted a lien by statute for their compensation on any settlement, verdict, report, decision or judgment in the client’s favor. Acquiring such a lien to secure the lawyer’s fee or expenses is expressly authorized by Rule 1.8(j)(1). It is, therefore, generally ethical to assert such lien rights under applicable law.
¶ 9 Does the analysis or conclusion change when the attorney’s services are rendered in the context of a family law cause of action? On the one hand, in the 1935 case of Hampton v. Hampton,6the Utah Supreme Court has specifically held that the lien under § 78-51-41 applies to all cases, including divorce actions. The Utah Court of Appeals has recently followed the Hampton result in upholding an attorney’s lien to collect his one-third contingency fee for representing a parent in recovering delinquent child support.7On the other hand, in a non-divorce case, Transamerica Cash Reserves, Inc. v. Dixie Power & Water Co.,8the Utah Supreme Court has held that property already belonging to a client in advance of the litigation may not be subject to an attorney’s lien, as it is not part of the “proceeds” of the litigation.
¶ 10 If Transamerica is applicable to divorce proceedings, it can be argued in good faith that persons who marry own each other’s property and that, therefore, an award of property pursuant to a divorce decree does not confer a new property interest to which a lien may attach. Conversely, it might also be argued in good faith that such an analysis ignores the very nature of divorce proceedings, where the divorce decree extinguishes pre-existing property interests and replaces them with new property interests to which an attorney’s lien may properly attach.
9
¶ 11 So far as we can tell, the Utah courts have not squarely addressed this question, and this Committee does not have the jurisdiction nor the authority to interpret the applicable statute or the various holdings of the Utah appellate courts on related issues.10
¶ 12 In cases where property is awarded to one or both parties in a family law proceeding, then it is unclear to us as a matter of law whether an attorney may assert a lien under § 78-51-41 against that portion of the property awarded to her own client in the legal proceeding. For example, if the parties to a divorce or common law marriage proceeding were each to be awarded a 50% interest in a parcel of real property, it appears unsettled whether Utah law allows the husband’s lawyer to assert a lien under § 78-51-41 against that 50% of the property awarded to the husband, under whatever terms or conditions and time limits or restrictions govern the husband’s interest in the property. To decide this issue, one must have a judicial interpretation of § 78-51-41. The Committee can locate no such interpretation, and we cannot provide it.
¶ 13 A lawyer does not violate the Utah Rules of Professional Conduct to assert a statutory lien under Utah Code Ann. § 78-51-41 so long as there continues to be a good-faith basis for the assertion under existing law. The Committee believes that, under these circumstances, it would not be proper for the Utah State Bar to bring an action against an attorney on the basis that the attorney was violating the law and, therefore, was in violation of Rule 8.4(b), (c) or (d). The lawyer’s discretion—and, often, her obligation—to advance vigorously on behalf of a client a legal argument that is within the boundary of Rule 3.111should apply as well to the lawyer when seeking to recover fees under Utah Code Ann. § 78-51-41. For the Bar to undertake disciplinary action against a lawyer for doing so in a circumstance where the underlying law is susceptible of a reasonable interpretation different form the Bar’s would deprive the lawyer of the right to represent herself effectively in the recovery of fees.
¶ 14 Other Considerations. Obviously, a lawyer in a family law matter is obligated to abide by other provisions of the Utah Rules of Professional Conduct in establishing and collecting attorneys’ fees pursuant to any lien provision. For example, her fees must be reasonable under Rule 1.5, and the attorney’s lien may be asserted only after a final judgment and decree or order is entered in a divorce case.12
¶ 15 Further, an attorney may not attempt to assert a lien under § 78-51-41 against any portion of property awarded to someone other than her own client in the family law proceeding, as this would violate the lawyer’s obligation to avoid engaging in conduct prejudicial to the administration of justice under Rule 8.4(d) of the Utah Rules of Professional Conduct. Nor may a lawyer assert a lien under § 78-51-41 in a divorce proceeding against any portion of property not awarded to the lawyer’s client, because a lawyer may not assert such a lien where the judgment is against the lawyer’s client.13
¶ 16 Finally, the lawyer should be aware of the written requirement of Rule 1.5(b) (for fees expected to exceed $750 (the basis or rate is to be communicated to the client in writing) and § 78-51-41 (“[a]ny written employment agreement shall contain a statement that the attorney has a lien upon the client’s cause of action or counterclaim”).
¶ 17 Conclusion: First, the invocation of an attorney’s lien under Utah Code Ann. § 78-51-41 does not 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. Second, where the Utah courts have not squarely addressed issues concerning the applicability of an attorney’s lien on particular types of property awards in domestic-law cases, this Committee does not have the jurisdiction nor the authority to interpret the applicable statute or the holdings of the Utah appellate courts on related issues. Nevertheless, a lawyer is not subject to discipline if she attempts to assert the statutory attorney’s lien in a domestic-law situation so long as there continues to be a supportable, good-faith legal basis to do so.
Footnotes
1.Utah Rules of Professional Conduct 1.8(j)(1) (2000) (emphasis added).
2.Use of “whosover” appears to be the Utah Code compiler’s error; older versions of this statute uses the term “whosesoever.” Utah Rev. Stat. § 6-0-40 (1933).
3.Utah Code Ann. § 78-51-41 (1996).
4.Arguably, if Rule 1.8(a) were read this narrowly, it could also be read to apply to a fee agreement between an attorney and a client. This reading is not reasonable, as it would require the lawyer to prepare a written fee agreement in every case and to suggest that the client seek advice of independent counsel about it—a reading that is not consistent with Rule 1.5.
5.Note: The statute requires that a “written agreement shall contain a statement that the attorney has a lien upon the client’s cause of action or counterclaim.” Utah Code Ann. § 78-51-41 (1996).
6.39 P.2d 703 (Utah 1935) (interpreting Utah Rev. Stat. § 6-0-40 (1933), which is, in relevant part, identical to the current Utah Code Ann. § 78-51-41).
7.Eastmond v. Earl, 912 P.2d 994 (Utah Ct. App. 1996).
8.789 P.2d 24 (Utah 1990).
9.See Farrey v. Sanderfoot, 500 U.S. 291 (1991) (Wisconsin divorce decree extinguished undivided interests and created new interests in their place.)
10.E.g., Ethics Advisory Opinion Com. R. Proc. § III(b)(3).
11.Meritorious Claims and Contentions.
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.
Utah Rules of Professional Conduct 3.1
12.Consensual contractual creation of a lien on marital property prior to entry of a final decree or order raises separate ethical issues that we do not address in this opinion. See, e.g., Maine Ethics Comm’n Op. 97 (May 3, 1989).
13.Flake v. Frandsen, 578 P.2d 516 (Utah 1978).

Ethics Advisory Opinion No. 01-02

(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).
¶ 3 Facts: A Utah lawyer referral service charges a referral fee to participating lawyers. It also charges a referral fee to its customers who are referred to lawyers. In order to make its business more appealing to the general public and businesses, the referral service also asks each participating lawyer to discount by 10% the lawyer’s usual fees to a referred client until the client is credited with an amount equal to the referral fee that the client paid to the referral service. Because not all participating lawyers agree to discount their legal fees, the referral service cannot guarantee to its customers that their referral fees will be reimbursed to them through the proposed payment arrangement.
¶ 4 Analysis: Under Utah Rules of Professional Conduct 7.2(c) (2000), “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the usual charges of a lawyer referral service or other legal service organization, but only as allowed by the provisions of Rule 1.5(e).” The relevant comment to Rule 7.2(c) further explains that the rule restricts the lawyer’s ability to pay referral fees by specifying that the “lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another person for channeling professional work on a fee-per-case basis.”
¶ 5 Thus, a Utah lawyer may pay a fee to an organization that provides referrals so long as that fee is not calculated on a per-referral basis. In addition, if the referral organization consists entirely of lawyers, the payment of the referral fee must comply with the limitations imposed by Rule 1.5(e) on the division of fees between lawyers who are not in the same firm.1Based on the facts submitted to the Committee, we assume that the referral service comprises nonlawyers, rather than lawyers and, therefore, do not address the issue as to lawyer-generated referrals.
¶ 6 Under the proposed arrangement, the payment of a referral fee to the referral service is made initially by the client and later may be reimbursed by the participating lawyer by the lawyer’s discount in an amount equal to the referral fee initially paid by the client to the referral service. That arrangement is by nature a payment made on a fee-per-case basis because it cannot occur until the client hires the lawyer upon the referral provided by the referral service. The fact that the participating lawyer does not pay the referral fee directly to the referral service does not avoid the violation of the prohibition against the payment of referral fees on a fee-per-case basis.
¶ 7 On the other hand, this indirect payment seems to serve as a pretext for avoidance of the prescriptions of Rule 7.2(c). By agreeing to rebate the client’s referral fee out of the client’s bill, the lawyer agrees to pay a referral fee on a fee-per-case basis to the referral service through the acts of a third person, the client. The payment arrangement, therefore, is structured in such a way as to accomplish indirectly what is expressly prohibited by Rule 7.2(c), and it triggers the provisions of Utah Rules of Professional Conduct 8.4(a): “It is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct . . . or do so through the acts of another.”
¶ 8 The purpose of the payment arrangement implemented by the referral service is, by the admission of the referral service, “[t]o make the referral business more appealing to the general public and businesses.” The discount offered by the participating lawyer to the client is intended as, and constitutes, a benefit to the referral service. In the different but related context of determining whether a lawyer gave “something of value” to a third party in exchange for a referral, thus violating the provisions Rule 7.2(c) or its equivalent, several state bar associations have concluded that a lawyer who discounts her fees to clients referred by a third party clearly gives something of value to that third party because she creates an incentive for clients to use the third party’s services. The Connecticut Bar, for instance, has determined that the discount offered by a lawyer to participants in a fund raising for a charitable organization was “something of value” because it provided an incentive to the public to participate in the contest, and it did not constitute a referral fee only because the charitable organization did not recommend the lawyer’s services.2Likewise, the New York State Bar has concluded that a payment arrangement under which a client obtains a discount from the lawyer recommended to the client by an accounting firm and under which the same client contemporaneously enters into a separate contingency fee agreement with the referring accounting firm for a fee in an amount approximately equal to the lawyer’s discount is unethical because “it involves compensation by the lawyer to the accounting firm in connection with the referral of the client.”3The California State Bar reached a similar conclusion when it found that a lawyer offering a discount on legal fees for clients to be referred by a third party gave something of value to that third party because it promoted the third party’s practice and, therefore, violated the prohibition against compensating someone for recommending the lawyer’s services.4
¶ 9 Thus, the fee reduction that is offered by a participating lawyer to a client referred by the referral service and advertised by the referral service to promote its business constitutes an indirect form of payment from the lawyer to the referral service. Although a participating lawyer is not required to discount fees to the client, when he agrees to do so, he also agree to pay indirectly a referral fee to the referral service that is calculated on a per-referral basis. Through the provisions of Rule 8.4(a), the payment of that fee violates Rule 7.2(c).
Footnotes
1.This interpretation of Rule 7.2(c), as amended in 1999, is based on two assumptions: first, that the Rule 1.5(e) limitation that was inserted into Rule 7.2(c) in 1999 is intended to apply only if the referral source is a lawyer and is not intended to prohibit lawyers from paying referral fees to non-lawyers; second, that the newly adopted language explaining the prohibition against fee-per-case referral fees contained in the related comment to Rule 7.2(c) is intended to prohibit the payment of a fee-per-case referral fee to a lawyer referral service, but is not intended to prohibit the payment of referral fees authorized by Rule 1.5(e). The Utah Supreme Court Advisory Committee on the Rules of Professional Conduct recently adopted, and will soon publish for comment, some proposed changes to Rule 7.2(c) that the Committee has recommended in order to clarify the application of the Rule consistent with the two assumptions described above.
2.Conn. Ethics Op. 94-7, 1994 WL 780747 (Conn. Bar Ass’n.). See also Mich. Ethics Op. RI-147, 1992 WL 510838 (Mich. Bar Ass’n) (lawyer allowed to discount fees to clients referred by Chamber of Commerce as long as Chamber of Commerce did not advertise discount as incentive for membership in Chamber of Commerce).
3.N.Y. Comm. on Prof. Ethics Op. 727, 2000 WL 567964 (N.Y. St. Bar Ass’n).
4.Cal. Ethics Op. 1983-75, 1983 WL 31676 (Cal. St. Bar Ass’n). See also Iowa Sup. Ct. Bd. of Professional Ethics and Conduct, Op. 96-06 www.iowabar.org/ethics (1996) (lawyer’s participation in group of entities operating a referral service that requires lawyers to pay a referral fee and to discount their fees to referred clients violates provisions of Rule 7.2(c)); Pa. Ethics Op. 93-107, 1993 WL 851217 (Pa. Bar Ass’n) (lawyer violates Rule 7.2(c) when lawyer reduces fees for person who referred clients to lawyer.

Ethics Advisory Opinion No. 01-03

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.
¶ 4 We have been asked to consider whether it is unethical conduct for either the initial counsel or the new colleague to remove or attempt to remove a judge from a case by intentionally creating a circumstance in which the judge will feel compelled to recuse himself under Canon 3E of the Code of Judicial Conduct.2
¶ 5 Analysis: There are no provisions of the Utah Rules of Professional Conduct that directly address relationships between a lawyer and a judge that could lead to the judge’s disqualification. For example, the rules that define conflicts of interest-primarily Rules 1.7, 1.8, and 1.9-concern a lawyer’s interests that may conflict with loyalty to a client. They do not govern relations between a lawyer and a judge that could lead to the judge’s disqualification. Without more than the mere association of a lawyer from the judge’s prior law firm, we can find no per se ethical violation for the initial lawyer to solicit, or for the prospective new colleague to accept, an offer to associate on a case that will result in a judge’s recusal.
¶ 6 The issue of the intentional manipulation of the judicial system by interfering with the court’s assignment of a judge to hear a case is, however, more troubling. Such manipulation would constitute unethical conduct when the new colleague, who has a current or past relationship with the judge, is retained for the primary purpose of provoking a judge’s recusal after the judge has issued preliminary orders or rulings or has had other substantial involvement in the litigation. A significant indicator of this improper intent would arise when the initial lawyer associates with a new colleague chosen from the court’s prior private law firm, and the association has no basis in the new colleague’s expertise, experience or area of practice, or the new colleague makes no significant contribution to the representation.
¶ 7 Rule 8.4(d) of the Rules of Professional Conduct establishes that, “It is professional misconduct for a lawyer to . . . [e]ngage in conduct which is prejudicial to the administration of justice.” The broad language of Rule 8.4(d) is designed to reach and prohibit some activities that are not explicitly addressed in the other rules.3Notwithstanding the breadth of the language in Rule 8.4(d), the courts have generally rejected arguments that it is unconstitutionally vague.4
¶ 8 The facts presented to the Committee involve cases where the judge has invested time and resources in reviewing a case and has issued a preliminary ruling or order, following which the association of the new colleague is undertaken with the primary purpose to disqualify the judge. We conclude that this is a factual situation of the kind that Rule 8.4(d) was intended to apply to, and that the lawyers’ conduct would be “prejudicial to the administration of justice.”
¶ 9 The assignment and management of cases in multi-judge judicial districts is a matter that is clearly within the discretionary power and supervision of the presiding judge. A pattern of conduct that intentionally disrupts that case-assignment system- especially where there is no purpose other than to remove an unwanted judge-constitutes conduct that is “prejudicial to the administration of justice.” Whether or not the manipulation of the case-assignment system would also be subject to court-imposed sanctions, we find the conduct to be unethical under the Utah Rules of Professional Conduct.
¶ 10 The conduct described also involves a lawyer’s responsibility of candor toward the tribunal.5If the court were aware of the actual reason for the association with the new colleague-to recuse the judge-that knowledge could affect the judge’s decision. Although the conduct here does not fall squarely within the delineated provisions of Rule 3.3, it appears to us that a lawyer who engages in this conduct is not exhibiting appropriate “candor toward the tribunal.”
¶ 11 Conduct, knowingly assist or induce another to do so, or do so through the acts of another.”6Thus, either the initial counsel or the new colleague in the fact situation before us may be subject to discipline for professional misconduct.
¶ 12 In rendering an opinion on this matter, we recognize that many circumstances give rise to a legitimate need to associate with new counsel or engage in other activities that might create a genuine need to recuse the judge in an ongoing proceeding. Furthermore, there are many legitimate methods by which counsel can choose a preferred forum by invoking jurisdictional thresholds and similar requirements. Such conduct, where there is a bona fide purpose and no misleading of the court, does not present ethical concerns. However, under the factual circumstances described in this opinion, the conduct would be unethical.
Footnotes
1.
(1) A judge shall enter a disqualification in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instance where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, a strong personal bias involving an issue in a case, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge had served as a lawyer in the matter in controversy, had practiced law with a lawyer who had served in the matter at the time of their association or the judge or such lawyer has been a material witness concerning it…
Utah Code of Judicial Conduct, Canon 3E(1) (200)
2.This Committee, of course, has no jurisdiction to interpret the Code of Judicial Conduct and, therefore, takes no position on whether a judge in this position must recuse himself under Canon 3E(1). We assume only that recusal does result from the situation.
3.See generally Annotated Model Rules of Professional Conduct 595-97 (ABA 4th ed. 2000) and cases cited there.
4.E.g., Howell v. Texas State Bar, 843 F.2d 205 (5th Cir. 1988), Comm. on Legal Ethics v. Douglas, 370 S.E.2d 325 (W. Va. 1988).
5.
Candor toward the tribunal.
(a) A lawyer shall not knowingly
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;…
(b) The duties state in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Utah Rules of Professional Conduct 3.3 (2000)
6.Utah Rules of Professional Conduct 8.4(a) (2000)

Ethics Advisory Opinion No. 01-04

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.”
¶ 4 Applicable Rules of Professional Conduct: Rule 1.5(a) of the Utah Rules of Professional Conduct provides, in pertinent part:
A lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) The fee customarily charged in the locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation and ability of the lawyer or lawyers performing the services; and
(8) Whether the fee is fixed or contingent.
(b) When the lawyer has not regularly represented the client, and it is reasonably foreseeable that total attorneys fees to the client will exceed $750.00, the basis or rate of the fee shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation.
Also, Rule 1.4(b) of the Utah Rules of Professional Conduct provides: “A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.”
¶ 5 Analysis: The fundamental requirement of the Utah Rules of Professional Conduct with respect to attorneys fees is that they must be reasonable.2The ethical propriety of hourly, contingency, retainer, fixed-fee and other arrangements for payment for legal services must be determined with reference to the provisions of Rule 1.5.3A percentage fee is no exception.4Accordingly, whether the annual percentage fee proposed is ethically proper must be determined with reference to the provisions of Rule 1.5.
¶ 6 There are likely to be very few circumstances where application of the provisions of Rule 1.5 would justify an annual percentage fee as proposed in the request. First, services for estate planning and asset protection are not normally billed on a percentage-fee basis. Further, because the percentage fee proposed in the request is not contingent on the outcome of the matter, the reasonableness of this percentage fee cannot be justified using considerations of risk applicable to contingent-fee arrangements.5In ordinary circumstances, therefore, an annual percentage fee based upon the value of the client’s assets would not be appropriate. However, a percentage fee may be reasonable in extraordinary circumstances, such as for an unusually complex estate, where the anticipated time and labor required, the anticipated novelty and difficulty of the questions involved, the skill requisite to perform the legal services properly, and other particular circumstances, make a percentage fee “reasonable.” A lawyer and client with a substantial history of significant estate planning transactions may, for example, be in a position to implement a percentage fee as a reasonable substitute for prior fee arrangements.
¶ 7 Under Rule 1.4(b), a law firm must explain its fee arrangements to the extent reasonably necessary to enable the client to make informed decisions regarding the representation. In the case of an annual percentage fee arrangement, the explanation would have to include the advantages and disadvantages of this fee arrangement as compared to others.6Further, under Rule 1.5(b), when the lawyer has not regularly represented the client and it is reasonably foreseeable that total attorneys’ fees to the client will exceed $750, the basis or rate of the fee shall be communicated to the client in writing before or within a reasonable time after commencing the representation.
¶ 8 Attempting to charge a percentage fee based on vague concepts such as “assets owned” without specifying important details, such as how and by whom asset values will be determined and whether 100% ownership is required, is likely to lead to disputes. Entering into such an arrangement without a clear understanding of what services are included, what services are not included, the duration of the arrangement, and the client’s right to terminate the arrangement, could also lead to disputes.7
¶ 9 Another area that could present a difficult ethical problem for the lawyer attempting to use a percentage-based fee: If the client desires to deplete or dispose of major portions of the assets, an arrangement for an annual fee based on a percentage of the value of the client’s assets must not have an adverse influence on the lawyer in providing independent professional advice to the client.8
¶ 10 Conclusion: An arrangement for an annual fee for legal services for estate planning or asset protection that is based on a percentage of the value of the assets involved is likely to be appropriate only in unusual circumstances.
Footnotes
1.The request involves legal services, as opposed to non-legal services such as investment advice. The Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio has concluded that an attorney who provides financial services through a law firm should not charge a fee in which the compensation is based upon the total value of a fund, based in part upon the possibility that such compensation might open the attorney and the attorney’s records to state regulation and inspection under the Ohio Securities Act. Supreme Court of Ohio board of Commissioners on Grievances and Discipline, Op. 2000-4 (Dec. 1, 2000).
2.Utah Rules of Professional Conduct 1.5(a).
3.See, e.g., Utah Ethics Advisory Op. 136, 1993 WL 755253, (Utah St. Bar) (advance payment characterized as fixed fee or “nonrefundable retainer”); In re Babilis, 951 P.2d 207 (Utah 1997) (contingent fee agreement); Utah Ethics Advisory Op. No 114, 1992 WL 685248 (Utah St. Bar) (contingent fee, where recovery includes personal injury protection or no “fault payments” from an insurer); Utah Ethics Advisory Op. No. 98-13, 1998 WL 863904 (Utah St. Bar) (agreements for a financial interest, such as stock in a client company in return for performing legal services); Utah Ethics Advisory Op. No. 97-05, 1997 WL 223851 (Utah St. Bar) (agreements for payment for legal services in a form other than money, such as through a barter exchange).
4.See Ala. Ethics Op. RO-94-07 (It is improper for a lawyer to charge a set percentage fee in a foreclosure sale without regard to the factors for determining a reasonable fee as contained in Rule 1.5 of the Rules of Professional Conduct); Kans. Ethics Op. 92-13 (Dec. 1, 1992) (construing Kansas Rule 1.5 not to prohibit, per se, a percentage fee for collection of support arrearages, but imposing several conditions on the lawyer in connection with the arrangement).
5. For example, a higher percentage of plaintiff’s recovery may be justifiable as a reasonable contingent fee if the risk of obtaining recovery is relatively smaller at the outset of the case.
6. Cf. Utah Rules of Professional Conduct 1.5, cmt.: “When there is doubt whether a contingent fee is consistent with the client’s best interest, the lawyer should offer the client alternative bases for the fee and explain their implications.”
7. Cf. Archuleta v. Hughes, 969 P.2d 409 (Utah 1998) (to avoid cumbersome litigation and confusion over contingency fees involving personal injury protection payments, retainer agreements should be specific as to fee calculation and provide explicit disclosures concerning client’s options).
8. Utah Rules of Professional Conduct 1.7, cmt. states:
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. The conflict in effect forecloses alternatives that would otherwise be available to the client. . . . 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. . . . The lawyer’s own interests should not be permitted to have an adverse effect on representation of a client.

Ethics Advisory Opinion No. 01-05

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.
¶4. Analysis: The lawyer, acting in his role as a real estate broker,1is not marketing legal services that he will deliver as a lawyer, but is alerting prospective real estate clients that he is a lawyer-trained real estate broker and can deliver real estate professional services. The purpose of a factually correct claim in advertising his real estate services that he is a lawyer may be to gain the confidence of clients or gain an advantage over non-lawyer real estate agents or brokers on the indirectly promoted assumption that a lawyer-trained real estate broker would be able to exercise better professional judgment than a non-lawyer-trained broker with respect to issues that could come up in the marketing, sale or acquisition of real estate.
¶5. When a lawyer markets himself as able to perform non-legal professional services for a client and lists his qualifications or experience as a lawyer in a communication for “law-related professional services,” the use of such legal credentials is a “communication” within the meaning of the Rule 7.1, if a recipient of such materials could reasonably believe that the lawyer is offering legal services or professional advice that involves his legal experience, judgment or considerations.2An inactive member of the Bar may list a J.D. degree as a “credential,” but may not hold himself out as a lawyer.3The display of such credentials without more would not invoke the Rules of Professional Conduct even though the inactive member is engaged in a law-related profession.
¶6. The real estate broker profession is law-related,4and it may not be possible to know whether the lawyer’s work for the client is performed as part of a practice of law or part of the lawyer’s other occupation: “If the second occupation (such as a real estate brokerage business) is so law-related that the work of the lawyer in such an occupation will involve, inseparably, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation. Accordingly, he is held to the standards of the bar while conducting that second occupation from his law offices.”5
¶7. As to the actively practicing lawyer, we have previously concluded that a lawyer who engages in a real estate, life insurance or title business is held to the ethical standards of a lawyer in both profession.6We have also more recently determined that a lawyer who holds himself out as a lawyer in any context may not ethically form a partnership with a non-lawyer if any of the activities of the partnership constitute the practice of law.7Applying this standard to an inactive lawyer who holds himself out in advertising in a law-related profession as lawyer-trained, we affirm that he would be held to the ethical standards of the legal profession while acting in the law-related profession. Further, because the lawyer is not currently qualified to practice law in the State of Utah, he may be engaged in the unauthorized practice of law when engaged in the real estate profession if he advertises that he is a lawyer, albeit, inactive. However, it is not within the purview of this Committee to determine what constitutes the unauthorized practice of law.
¶8. Once the broker-lawyer advertises or communicates his legal training or expertise in advertising for real estate services, whether an active or inactive lawyer, the restrictions of the Rules of Professional Conduct apply, including: Rule 1.5(a) (reasonable fees); Rules 1.7 through 1.11 (conflicts of interest); Rule 1.6 (confidentiality of information); and Rules 7.1 through 7.3 (advertising and solicitation). This list is far from exhaustive, and the application of the Rules of Professional Conduct could be very problematic in the case of a real estate broker whose professional obligations and limitations are different from those governing lawyers.8
¶9. In the absence of any attorney-client relationship, and arguably without any mention of the fact that the broker is lawyer-trained, a member of the Bar (active or inactive) is required to conform to the Rules of Professional Conduct when rendering non-legal professional services that involve a fiduciary relationship. It is noted that some aspects of the brokerage business involve such fiduciary relationships such as handling funds, closing transactions or acting as an escrow agent.
¶10. It is unlikely that an express disclaimer in any advertising by the agent or broker that he is not and does not intend to provide legal services or legal advice would be sufficient. We have previously held that a lawyer may solicit insurance business from clients of his law practice if he complies with the disclaimer and consent required in Rule 1.8.9A real estate broker who subjects himself to the Rules of Professional Conduct by indicating his status as a lawyer in real estate advertising has the same right to use the disclaimer and consent provisions of the Rule 1.8 or other Rules where waiver and consent are possible. However, to avoid the application of the Rules of Professional Conduct, the lawyer must avoid advertising he is a lawyer in his law-related profession.10
Footnotes
1.We refer throughout this opinion to a lawyer who provides services as a real estate “broker” rather than real estate “agent.” Although there are functional and legal differences between the two, the ethical analysis is the same, and we do not mean to distinguish between them in the analysis and conclusion in this opinion.
2.Cal. State Bar Formal Op. 1999-154, at 2.
3.ABA/BNA Lawyers Manual on Professional Conduct § 81:3012.
4.ABA Comm. on Ethics and Professional Responsibility, Formal Op. 328 (1972), cited in Cal. State Bar Formal Op. 1982-69, at 2 (“activities of a real estate broker are clearly ‘law related’ as contemplated by [ABA Op. 328] and an attorney who is acting as a real estate broker in the same transaction must conform to the standards of the bar and the Rules of Professional Conduct in all aspects of such activities”).
5.ABA Formal Op. 328; ABA Committee on Ethics and Professional Responsibility, Informal Op. 709; Neb. State Bar Assn. Op. 74-3; Mont. State Bar Assn. Op. 17; Colo. Bar Assn. Ethics Comm., Formal Op. 98 (Dec. 14, 1996).
6.Utah Ethics Advisory Op. 30 (Utah State Bar, Oct. 14, 1976) (title business); Utah Ethics Advisory Op. 17 (Utah State Bar, Nov. 28, 1973) (real estate business); Utah Ethics Advisory Op. 5 (Utah State Bar, Jan. 13, 1972) (insurance business); The American Bar Association’s Model Rule of Professional Conduct 5.7, “Responsibilities Regarding Law-Related Services” (not adopted in Utah), is consistent with these opinions.
7.Utah Ethics Advisory Op. 00-03, 2001 WL 314288 (Utah St. Bar).
8.For example, confidentially obligations in representing and being paid by more than one side of a transaction are different for real estate brokers and lawyers. “An attorney-broker thus can be caught between conflicting professional obligations, viz., disclosure versus revealing client confidences. Honoring the duty of confidentiality may jeopardize the broker’s license, harm the client and expose the lawyer to civil liability.” Cal. State Bar, Formal Op. No. 1982-69, at 3; Ore. State Bar, Op. 75-5.
9.Utah Ethics Advisory Op. 146A, 1995 WL 283828 (Utah State Bar).
10.We have previously held that the Rules of Professional Conduct will not apply if a lawyer withdraws from the practice of law and pursues another profession. Utah Ethics Advisory Op. 00-03, 2001 WL 314288 (Utah State Bar).

Ethics Advisory Opinion No. 01-07

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).
¶ 3. Facts: A law firm desires to use the name “Legal Center for the Wrongfully Accused” in selected pleadings “in appropriate circumstances.” The law firm does not intend to use the trade name in advertising or in every pleading filed with a court. Use of the name will be limited to domestic violence cases, and will be used only in circumstances where the law firm deems it appropriate. The law firm proposes to use this trade name in response to the use by a public or charitable legal services organization designated “Legal Center for the Victims of Domestic Violence.”
¶ 4. Applicable Rules of Professional Conduct: Rule 7.5(a) of the Utah Rules of Professional Conduct states:
A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
¶ 5. Rule 7.1 states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
(c) Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.
¶ 6. Analysis: Rule 7.5(a) expressly authorizes a lawyer’s use of trade names provided certain conditions are met. Use of trade names can assist the public in the selection of an attorney. The Committee is of the opinion that a law firm’s use of the trade name “Legal Center for the Wrongfully Accused” would satisfy the requirements of Rule 7.5(a) provided the law firm actually represents clients accused of unlawful conduct and provided the firm uses the name uniformly in all cases in which the firm’s client is accused of unlawful conduct. The law firm may not use the trade name in some “unlawful conduct” cases but not others. The same analysis applies to the trade name “Legal Center for Victims of Domestic Violence.”
¶ 7. The name “Legal Center for the Wrongfully Accused” does not imply any connection with any government agency or with a public or charitable legal services organization. The trade name therefore does not implicate this part of Rule 7.5. The name “Legal Center for Victims of Domestic Violence” is used by a public or charitable legal services organization, so its use of the name would not implicate this part of Rule 7.5
¶ 8. Use of a trade name is not permitted if it makes a false or misleading communication about the lawyer or the lawyer’s services.1Rule 7.1 provides three situations in which a trade name (or other communication about a lawyer’s services) may be misleading. Subdivisions (b) and (c) of that Rule are not implicated here.
¶ 9. Rule 7.1(a) provides that a communication about a lawyer’s services is false or misleading if it “contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.” Consistent and uniform use of the trade name “Legal Center for the Wrongfully Accused” in all alleged “unlawful conduct” cases is not likely to mislead anyone regarding the nature of legal services provided by the law firm. Furthermore, members of the judiciary, juries and the community are not likely to be misled into believing that a person’s cause is or is not just simply because that person is represented by a law firm that calls itself the “Legal Center for the Wrongfully Accused.” By virtue of the simple fact of representation, the judiciary, juries and the community expect the lawyer to advocate that her client’s claim or defense is just and proper. Obviously, the same analysis applies to the name “Legal Center for Victims of Domestic Violence.” Judges, juries and the public are unlikely to be persuaded that a defendant is in fact guilty of perpetrating domestic violence on the claimant simply because the claimant’s lawyer is from the “Legal Center for Victims of Domestic Violence,” especially if the lawyer uses that name in all matters relating to domestic violence”2
¶ 10. Selective use of the trade names in question, however, opens the door to abuses that could intentionally or unintentionally mislead others. By using the name “Legal Center for the Wrongfully Accused” only in limited situations where the law firm deems it “appropriate,” the law firm affirmatively represents that some of its clients are “wrongfully accused,” while others are not. By drawing this distinction, the law firm signals to others the law firm’s judgment that certain clients are “guilty” and others are not.3This practice would easily open the door for the law firm to materially mislead others into believing that a client is “wrongfully accused,” because the law firm has made it known that it will not use the name unless it believes the client is in fact “wrongfully accused.”
¶ 11. The same danger does not exist if the law firm uses the trade name uniformly in all aspects of the firm’s “unlawful conduct” practice, including the firm name, letterhead, business cards, office sign, fee contracts, all pleadings, and so forth. If the law firm were to use the name uniformly in all cases in which it represents a client accused of wrongful conduct, there would be little or no danger that others would be misled or falsely persuaded of the client’s guilt or innocence simply because of the name. While a firm may use the name “Legal Centers for the Wrongfully Accused” uniformly in all matters pertaining to alleged wrongful conduct, the firm would not have to use that name while providing other unrelated types of legal services, such as drafting a will or contract. The same analysis applies to the name “Legal Center for Victims of Domestic Violence.”
¶ 12. The Committee notes that former Disciplinary Rule DR 2-102(A) provided that “[a] lawyer . . . shall not use . . . professional cards . . . letterheads, or similar notices or devices, [except] . . . if they are in dignified form.” 4 If this Committee were called upon to apply the former Disciplinary Rule, it might reach a different result. The comment to our current Rule 7.2, however, expressly provides, “Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment.” That statement certainly applies to the situation addressed in this opinion. While some people might find the trade name “Legal Center for the Wrongfully Accused” offensive, others are likely to believe that such a center serves a valuable and laudable purpose. It is also likely that there are differing opinions as to whether the name “Legal Center for Victims of Domestic Violence” is a dignified or tasteful trade name. Our Rules do not prohibit trade names that otherwise comply with Rules 7.1 and 7.5 simply because certain segments of the community might find the name to be in poor taste.5
¶ 13. Conclusion: A legal services organization may use a trade name such as “Legal Center for the Wrongfully Accused” or “Legal Center for Victims of Domestic Violence” if it actually represents clients who claim to fit the indicated categories. The trade name must be used uniformly in all aspects of the organization’s practice relating to such representation. The organization may not use the trade name selectively for some clients in the indicated categories and not others.
Footnotes
1.Utah Rules of Professional Conduct 7.1 (2001).
2.This is not a case where a law firm is deliberately misrepresenting the nature of services it provides or the identity of the persons providing the services. See, e.g., Medina County Bar Ass’n v. Grieselhuber, 678 N.E.2d 535 (Ohio 1997) (sole practitioner’s holding himself out as “Body Injury Legal Centers” falsely suggested he had multiple legal centers).
3.Such selective use of a trade name may convey information about the client that might be a violation of Utah Rule of Professional Conduct 1.6, Confidentiality of Information.
4.See Utah Rules of Professional Conduct 7.5, cmt.
5.See also, e.g., Philadelphia Bar Ass’n Professional Guidance Comm., Op. 98-17 (1998) (permitting use of the trade name “Medical Malpractice Trial Attorneys, Inc.” if law firm actually handles medical malpractice cases through trial); In re Shannon, 638 P.2d 482 (Ore. 1982) (permitting use of the trade name “Shannon and Johnson’s Hollywood Law Center”).

Ethics Advisory Opinion No. 01-06A Update

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.
¶3. Facts: An attorney has been declining to represent private clients at protective-order hearings in the county where the attorney serves as a part-time prosecutor as a result of objections made against such a representation by a lawyer practicing in that jurisdiction. The objecting lawyer has alleged an impermissible conflict of interest with the county attorney’s prosecutorial duties that would arise in the event that the subject of the protective order were to violate the order and consequently become the subject of a criminal investigation. One of the county attorney’s clients has been served with a protective order and required to appear at a hearing in an adjacent county. The county attorney intends to represent that client, since the hearing will be held in a jurisdiction where the county attorney does not have prosecutorial duties. The county attorney would also like to be able to undertake the representation of defendants to protective orders in the county where he serves as a part-time prosecutor, with the understanding that, if any of those clients were to violate their protective orders, he would withdraw from prosecuting the criminal case and refer it to another prosecutor.
¶4. Analysis: The facts submitted to the Committee raise the issue of the ethical obligations of a part-time county attorney in regard to conflicts of interest that may arise from the county attorney’s simultaneous private civil practice. The applicable standard is found in Utah Rules of Professional Conduct 1.7(b):
A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third 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.
¶5. An impermissible conflict of interest would arise in the event that an attorney were to represent a criminal defendant in the jurisdiction in which he serves as a part-time county prosecutor, since the interests of the county prosecutor’s client (i.e., the public) are adverse to the interests of the criminal defendant.1Utah law clearly states the prohibition against such a representation: “A county attorney may not: (a) in any manner consult, advise, counsel, or defend within this state any person charged with any crime, misdemeanor, or breach of any penal statute or ordinance.”2In State v. Brown,3the Utah Supreme Court articulated the public concerns supporting a per se rule against the private representation of a criminal defendant by an attorney with concurrent prosecutorial duties. Among those concerns are: the client’s hesitation to confide in counsel known to be a prosecutor; the prosecutor’s reluctance to attack the constitutionality of the laws that he is sworn to uphold; reluctance to vigorously cross-examine those officials on whom he relies in his prosecutorial role; and, more generally, the potential erosion of the public’s confidence in the criminal justice system.4
¶6. However, in the situation under consideration here, the proceedings are civil in nature, rather than criminal. In our Opinion No. 95-03, we concluded that a part-time city prosecutor acting as a private practitioner may represent a defendant in a civil contempt proceeding, provided that the public is not a party to the proceeding. The Committee observed that the public-policy reasons sustaining a prohibition against a part-time prosecutor’s involvement in the representation of an accused in a criminal case are not involved in a civil case. A civil protective-order case is not likely to entail the possibility that the part-time prosecutor will argue the constitutionality of the criminal laws that he is required to enforce, although he may need to attack the constitutionality of the civil protective order statutes and cross-examine police officers vigorously if they are witnesses in the civil proceeding.5This should be addressed on a case-by-case basis. The issue here is, therefore, whether the possibility that the civil case might develop into a criminal investigation, or that the subject of the civil case might already be the subject of a criminal investigation, should in itself constitute the foundation for a conflict of interest under Rule 1.7(b) and thus force the part-time prosecutor to decline representation in connection with all civil protective orders.
¶7. The events that give rise to a protection-from-abuse proceeding may eventually constitute the basis for a separate criminal cause of action or for a contempt proceeding or criminal prosecution stemming from a future violation of the protective order. Accordingly, if the county attorney were to accept the representation of the defendant to a protective order at a time when no criminal investigation had been conducted, nor prosecution had begun, the attorney could later neither represent the defendant nor the county in such a criminal prosecution action, as it would be a violation of his statutory duties and of Rule 1.7.6Utah Rule of Professional Conduct 1.2(b) allows a lawyer “to limit the objectives of the representation if the client consents after consultation.” Thus, if the county attorney is going to accept the civil representation, he and the client must expressly limit the scope of the services to be provided to the client under Rule 1.2(b) and agree that the representation would not extend to any criminal matter that might arise in connection with the protective order or the facts giving rise to the protective order in the first instance.
¶8. The determining factor in whether the county attorney can take the private matter should not be the possibility that the client might later be charged with a crime, but rather the fact that no criminal investigation had been instituted when he agreed to represent the client in the first instance. Should the county attorney subsequently learn that his client has become the subject of a criminal investigation (either as a consequence of his violation of the protective order or in the context of a criminal case arising out of the same events underlying the protective order), it would be improper for the county attorney to participate in the criminal investigation or any subsequent proceeding on behalf of any party. The institution of a criminal investigation or a prosecution would trigger a direct conflict between the county attorney’s prosecutorial duties and the interests of his private client. He would have to withdraw from the representation of his client, now a defendant in a criminal matter, and he would have to refer the criminal case to another prosecutor.7Clearly, if the client in the protective-order action were to confess to criminal behavior in the context of an attorney-client communication, the prosecutor could not reveal those communications to law enforcement officials.
¶9. It would be easy to argue that, as publicly elected officials holding an office of unusual responsibility, prosecutors should be held to the highest ethical standards and should have a duty not only to refer matters to another prosecutor in the event of conflicts of interest, but—in order avoid the appearance of impropriety—to prevent and avoid those conflicts from the outset. Still, as a practical matter, we recognize that the problems facing rural counties, where the number of cases does not justify funding a full-time county prosecutor, must be addressed. Further, if we are to find it per se impermissible to undertake a civil case that might later give rise to a criminal investigation and thus result in the prosecutor’s having to abstain from participating in the subsequent criminal case, we must find the ethical grounds for the prosecutor’s disqualification from the civil representation in the Utah Rules of Professional Conduct.
¶10. The “appearance of impropriety,” however, is not the standard set forth in the Rules.8The relevant comment to Rule 1.7(b) clarifies the meaning of the rule with respect to potential conflicts of interest by stating: “A possible conflict does not itself preclude the representation.” The comment proceeds to explain that “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.”
¶11. Thus, a county attorney faced with the decision of whether to accept the representation of a private client with respect to a protective-order hearing should carefully consider if, under the specific circumstances, it is likely that the events involved in the protective-order proceeding will give rise to a separate criminal case or that the client will violate the protective order and become the subject of a criminal investigation. If the likelihood that this will occur is relatively low, the attorney may undertake the representation, but he must fully inform the protective-order client of the possible future conflict of interest with the attorney’s prosecutorial responsibilities and clarify that the civil client will not enjoy any benefit nor suffer any harm from retaining his services, and that the county attorney will be required to withdraw from the representation if the matter progresses to a criminal matter. This will enable the client fully to evaluate his original decision to retain the county attorney. If the likelihood is high that his client will be involved in a subsequent criminal proceeding, Rule 1.7(b) is applicable and the attorney must obtain not only the client’s consent, but the county’s informed consent as well.9
¶12. Finally, we also look at the situation where the county attorney undertook the representation of a petitioner, rather than a respondent, in a protective-order proceeding. In that case, the issue is whether the county attorney could participate as a prosecutor in a criminal proceeding eventually instituted against the object of the protective order. The interests of the private client appear to be similar to those of the public in prosecuting a person who violates the protective order. However, the interests may also be divergent, as when the petitioner in the protective-order proceeding is later found to have exaggerated her charges. Given (a) the risk that the neutrality that characterizes a prosecutor’s role could be compromised by the interest that the prosecutor and his private client have in the case, (b) the confidential information regarding the pending charges to which the county attorney would be privy as a result of his previous representation of the victim of the alleged abuse, and (c) the possibility of an actual conflict between the interests of the victim and the prosecuting authority, it would be unethical for the county attorney to continue in the protective-order case or to participate in the criminal proceeding under these circumstances. The county attorney would, therefore, be required to refer to another prosecutor any criminal case that might arise in connection with the protective order on the facts giving rise to that order and would be required to withdraw from the protective-order case as well. This potential for a subsequent conflict, therefore, yields the same need for an initial analysis of the likelihood of subsequent criminal proceedings as in the case of the potential respondent representation.
*This opinion amends Opinion No. 01-06, previously issued on July 2, 2001. Upon reconsideration, the Committee has concluded that the original holding of Opinion No. 01-06 is to be affirmed, but that certain aspects of the original opinion should be clarified. Accordingly, Opinion No. 01-06 is withdrawn, and this Opinion No. 01-06A issued in its place.
Footnotes
1.The exception contained in Rule 1.7(a) concerning clients’ consent to direct conflicts would not apply because the public, as a party to the criminal proceedings, could not reasonably consent to the representation. See, e.g., Utah Ethics Advisory Op. No. 99, 1989 WL 509365 (Utah St. Bar) (county attorney’s statutory duties to collect delinquent support payments cannot be satisfied by the consent of the relevant state agency).
2.Utah Code Ann. § 17-18-1(8)(a) (1991).
3.853 P.2d 851 (Utah 1992) (city attorneys may not be appointed to defend indigent persons).
4.Id. at 856-59. The Committee has reiterated the public concerns expressed by the Utah Supreme Court in concluding that city attorneys with prosecutorial functions may not represent a criminal defense client in any jurisdiction. Utah Ethics Advisory Op. 126, 1994 WL 579846 (Utah St. Bar).
5.Utah Ethics Advisory Op. No. 95-03, 1995 WL 283826 (Utah St. Bar) (part-time city prosecutor may represent defendant in civil contempt proceeding if city or any other prosecutor’s client is not a party to proceeding).
6.See Pa. Ethics Op. 90-12A, 1990 WL 709585 (Pa. Bar Ass’n) (where no criminal proceedings have been instituted, part-time public defender or assistant district attorney may represent either party in protection from abuse proceeding, even though, by doing so, attorney may become disqualified from participation in subsequent criminal case).
7.See Utah Ethics Advisory Op. 98-01, 1998 WL 32436 (Utah St. Bar) (county attorney already involved in civil matter in which opposing party commits a crime need not withdraw from civil matter and can avoid conflict by referring criminal matter to another prosecutor); but see Pa. Ethics Op. 90-12A (attorney may be disqualified from participation in criminal case arising out of same incident involved in protective-order case, but he is not disqualified from contempt proceedings arising from violation of protective order, which are civil in nature).
8.Although the Utah Supreme Court in State v. Brown applied the “appearance of impropriety” standard, it did so in the context of a prosecutor’s representation of a criminal defendant. The Court noted that “[a]n unavoidable appearance of impropriety is created when a prosecutor assists in the defense of an accused.” 853 P.2d at 858. In the case under consideration, however, what is at issue is the prosecutor’s private representation of a client in a civil matter, rather than a criminal matter. Moreover, as explained above, the other public-policy concerns expressed by the State v. Brown court are not involved in a civil case.
9.As was the case in Utah Ethics Advisory Op. 98-02, 19 WL 199532 (Utah St. Bar), we do not address the question of who or what body can provide “consent” on behalf of a Utah county for purposes of the county attorney’s compliance with Rule 1.7(b).