Ethics Advisory Opinion No. 02-01

Issued February 11, 2002
¶ 1 Issue:
Do the Utah Rules of Professional Conduct preclude a Utah lawyer from financing litigation costs through a loan from a third-party lending institution, if (a) the lawyer is obligated to repay the loan and (b) the client, by separate agreement with the lawyer, is obligated to reimburse the lawyer for such costs?

¶ 2 Conclusion: The Utah Rules of Professional Conduct do not preclude such litigation-financing arrangements, provided the lawyer discloses to the client the terms and conditions of the loan, the client consents, and the lawyer, but not the client, is obligor on the loan.
¶ 3 Background: A Utah State Bar lawyer seeks an advisory opinion regarding the ethical propriety under the Utah Rules of Professional Conduct of participating in a “recourse” loan program,1by which the lawyer would finance the costs of litigation for his client through a third-party lending institution offering loans to lawyers for litigation expenses.
The primary features of a typical program include:
The program allows a lawyer, often a personal-injury lawyer seeking to finance a contingent-fee case, to raise the money at low cost to be invested in litigation expenses. This is accomplished through a low-interest, recourse loan to the lawyer or law firm who uses the potential fees from the case as loan collateral.
Under the terms of the loan, the lending institution advances reimbursable litigation costs, as defined in the loan agreement, to the lawyer. The brochure of one such lending institution claims it advances 95% to 100% of the lawyer’s case costs.
The lawyer pays monthly interest charges on funds advanced under the loan, and remits the loan principal upon settlement or resolution of the case. By a separate agreement with the client, the lawyer ultimately recoups litigation expenses and interest charges from the client if the case is successful.
If the case is abandoned or lost, the lawyer is obligated to repay advanced costs and expenses and any outstanding interest to the lender. The lawyer may elect not to receive funding from the lending institution on a particular case if the potential for success is not deemed high enough. The client remains obligated to repay the lawyer for such advanced costs under a separate agreement between the lawyer and the client.
The lending institution recommends the lawyer add language to the client fee agreement that discloses the case-financing transaction. A sample client letter discloses, “If no recovery is obtained, you will be obligated only for disbursements and charges as described below.” Such disbursements include photocopying, messenger service, computerized research, videotape recordings, travel expenses, experts, investigators, etc. In disclosing the financing arrangement, the letter states, “You acknowledge and agree that we [the law firm] may borrow funds from time to time to pay certain of the costs referred to above and agree that, in addition to reimbursing us for the amount of such costs, you also will reimburse us for any interest charges and related expenses we incur in connection with such borrowings.”
¶ 4 Variations of such financing arrangements are possible, but the essential features for purposes of this opinion are that the lawyer is obligated to the lending institution to repay the loan principal, and the client is obligated to reimburse the lawyer for advanced litigation costs, plus any applicable interest. (more…)

Ethics Advisory Opinion No. 02-02

(Issued February 11, 2002)
¶1 Issue:
To what extent does the recent amendment to Utah Rules of Professional Conduct 7.3(c) affect a lawyer’s or law firm’s newsletters and “alerts” to clients and prospective clients, brochures provided at public seminars, promotional items provided at seminars and other events, and web-site information?

¶2 Facts: A law firm1prepares and mails, or e-mails, newsletters to clients and, in certain instances, to prospective clients with whom attorneys at the firm have no prior or current business, familial or close personal relationship. The newsletter and other firm information is also posted on the firm’s web-site. The law firm also sends notices or “alerts” on certain areas of the law to clients and prospective clients who may be interested in those areas. The law firm also on occasion, especially with sponsorship of activities such as seminars, sets up a booth or other location where various materials, such as general brochures about the law firms are made available to attendees of the function. Finally, the firm, either at seminars or other events, provides promotional items such as golf balls, flashlights, pens, and the like which have the firm’s logo on them.
¶3 Analysis: Rule 7.3(c) currently states:
Every written communication from a lawyer soliciting professional employment from a prospective client and with whom the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, shall prominently include the words “Advertising Material” on the outside envelope, if any, and at the beginning of the communication. For the purposes of this subsection, “written communication does not include advertisement through public media, including but not limited to a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television.2
¶4 In Opinion 99-043we determined that a “solicitation” in the context of Rule 7.3 means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment and necessarily includes an offer by the lawyer to provide or to accept professional employment.4
¶5 If the newsletter, alert or brochure encourages the recipient to engage the firm’s services or contact the firm for further information, extolls the firm’s expertise, or otherwise contains an offer to provide legal services, then the item constitutes a “solicitation” of professional employment. As such, unless it is sent to a current or prior client or to someone with whom a lawyer in the firm has a familial relationship or close personal friendship, Rule 7.3(a) requires that it contain the words “Advertising Material” prominently on the outside envelope, if any, and at the beginning of the communication.
¶6 The firm’s web-site, however, is not a written communication which is “sent” from the firm to anyone. A person’s visit to a web-site to obtain information can be viewed either as “advertisement through public media” or as analogous to telephoning the firm or visiting a lawyer’s office to request information; it does not require an “Advertising Material” legend.5An e-mail that is directed to a person’s individual e-mail address, on the other hand, falls in the same category as a regular mailing and must contain the appropriate “Advertising Material” legend at the beginning of the e-mail message. (more…)

Ethics Advisory Opinion No. 02-03

(Issued February 27, 2002)
¶ 1 Issue:
What are the ethical obligations of an insurance defense lawyer with respect to insurance company guidelines and flat-fee arrangements?

¶ 2 Opinion: An insurance defense lawyer’s agreement to abide by insurance company guidelines or to perform insurance defense work for a flat fee is not per se unethical. The ethical implications of insurance company guidelines must be evaluated on a case by case basis. An insurance defense lawyer must not permit compliance with guidelines and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured. If compliance with the guidelines will be inconsistent with the lawyer’s professional obligations, and if the insurer is unwilling to modify the guidelines, the lawyer must not undertake the representation. Flat-fee arrangements for insurance defense cases are unethical if they would induce the lawyer improperly to curtail services for the client or perform them in any way contrary to the client’s interests. Obligations of lawyers under the Utah Rules of Professional Conduct, including the duty zealously to represent the insured, cannot be diminished or modified by agreement.
Insurance Company Guidelines
¶ 3 Opinion Request Concerning Insurers’ Guidelines. The Ethics Advisory Opinion Committee has received a request for an ethics advisory opinion concerning insurance company guidelines for counsel who are employed to defend litigation brought by a third party against an insured. The requestors state that insurance companies doing business in Utah have incorporated in their defense-counsel retainer agreements certain billing protocols or guidelines governing attorneys’ procedures and payments that raise ethical issues.
¶ 4 Prior Opinions. Although issues pertaining to insurance company guidelines have been the subject of considerable discussion elsewhere,1 they have not been addressed directly by this Committee.2 When ethical concerns about insurance company guidelines have been raised in ethics opinions from other jurisdictions, the opinions are generally consistent with the summary set forth in ABA Opinion No. 01-421:
A lawyer must not permit compliance with “guidelines” and other directives of an insurer relating to the lawyer’s services to impair materially the lawyer’s independent professional judgment in representing an insured.
Although most of the ethics opinions on insurance company guidelines take a general approach, a few—while acknowledging that certain guidelines may be appropriate—have taken issue with particular guidelines. For purposes of illustration, portions of selected ethics opinions from other jurisdictions are set forth in Appendix A. We do not intend to imply agreement with the conclusions of these opinions. Rather, we wish to describe more fully the kinds of concerns that have been raised elsewhere, many of which are raised directly in the request before us.
¶ 5 Montana Supreme Court Decision. The Montana Supreme Court has issued an opinion that addresses these topics, but only after having determined that the insured is the sole client of the defense lawyer. Under that structure, the court noted that defense counsel (a) does not have a “blank check” to escalate litigation costs, (b) should consult with the insurer, (c) must charge reasonable fees, and (c) can be held accountable for its work. The Montana court then held that “defense counsel in Montana who submit to the requirement of prior approval [obtaining consent of the insurer prior to taking certain actions] violate their duties under the Rules of Professional Conduct to exercise their independent judgment and to give their undivided loyalty to insureds.”3 (more…)

Ethics Advisory Opinion No. 02-04

Issued March 15, 2002
¶ 1 Issue:
May a lawyer, who is also a certified public accountant employed by an accounting firm, contemporaneously conduct from an office at the accounting firm public accounting services as an employee of the accounting firm and a law practice independent from the accounting firm without violating the Utah Rules of Professional Conduct?

¶ 2 Opinion: A lawyer who is a certified public accountant and employed by an accounting firm may not contemporaneously practice law and accounting from the offices of the accounting firm without violating Rule 5.4(b) of the Utah Rules of Professional Conduct. Accounting is a “law-related service,” and, when accounting services are provided by an active lawyer, the lawyer is subject to the Utah Rules of Professional Conduct while engaged in either profession. The lawyer is, therefore, prohibited by Rule 5.4(b) from forming a business association with a non-lawyer to provide the accounting services when the lawyer is contemporaneously engaged in the practice of law.
¶ 3 Factual Background: A lawyer (“Lawyer”) who is also a certified public accountant (“CPA”) is employed by an accounting firm owned by other CPAs (“Accounting Firm”). Lawyer is an employee of Accounting Firm, but does not have an ownership interest in the firm. Lawyer desires to conduct the professional practices of accounting and law from his office at Accounting Firm. Lawyer will pay Accounting Firm rent for the fair market value of office space, computer and furniture, receptionist and other Accounting Firm resources used by Lawyer in the legal practice, calculated on an hourly basis. Lawyer will develop his own clients, but may accept referrals from CPAs employed by Accounting Firm. Lawyer will directly and separately bill clients for legal services performed, and will not pay any referral fees to Accounting Firm. Lawyer will maintain confidentiality of law client files by maintaining these files separately from the accounting files of Accounting Firm.
¶ 4 Analysis: In the Committee’s prior opinions, we have found that, under certain circumstances, a lawyer engaged in a law-related occupation will be subject to the Utah Rules of Professional Conduct while engaged in either occupation.1These opinions are consistent with opinions issued by the American Bar Association prior to its adoption of ABA Model Rule 5.7 in 1994.2
¶ 5 Model Rule 5.7 addresses circumstances under which a lawyer who provides “law-related services” is subject to the ABA Rules of Professional Conduct. Under the rule, if the services are not provided in circumstances that (a) are distinct from the lawyer’s provision of legal services to clients, or (b) are provided by a separate entity, but the lawyer fails to take reasonable measures to assure that persons obtaining the law-related services know that the services of the separate entity are not legal services and that the protections of the attorney-client relationship do not exist.3
¶ 6 The Utah Supreme Court has not adopted Model Rule 5.7. While the Committee has noted that Model Rule 5.7 is consistent with its analysis in prior opinions,4 the Committee has not endorsed the rule, as the decision to adopt any new rule is exclusively within the purview of the Utah Supreme Court.5 (more…)

Ethics Advisory Opinion No. 02-05

Issued March 18, 2002
¶ 1 Issue:
What are the ethical considerations for a governmental lawyer who participates in a lawful covert governmental operation, such as a law enforcement investigation of suspected illegal activity or an intelligence gathering activity, when the covert operation entails conduct employing dishonesty, fraud, misrepresentation or deceit?

¶ 2 Conclusion: A governmental lawyer who participates in a lawful covert governmental operation that entails conduct employing dishonesty, fraud, misrepresentation or deceit for the purpose of gathering relevant information does not, without more, violate the Rules of Professional Conduct.1
¶ 3 Background: A bar member who works for a federal agency that routinely performs undercover investigative work and covert actions directed against criminal and terrorist groups asks whether supervision of or participation in those activities violates Utah Rules of Professional Conduct 8.4(c), which states that: “It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” Similar issues are raised by federal and state prosecutors’ supervision of undercover criminal investigations.
¶ 4 Analysis: On its face, Rule 8.4(c) would seem to make it professional misconduct for a lawyer to engage in any kind of misrepresentation. However, the Official Comment to Rule 8.4 is read by some to restrict its range to a more limited scope of illegal conduct:
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.”. . . Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice are in that category.
Relying on the Comment, commentators David Isbell and Lucantonio Salvi have concluded that Rule 8.4(c) is intended to “apply only to conduct of so grave a character as to call into question the lawyer’s fitness to practice law” and does not apply to deception by undercover investigators.2Furthermore, Congress, in its report on Abscam, indicated that “[i]n this era of increasingly powerful and sophisticated criminals, some use of the undercover technique is indispensable to the achievement of effective law enforcement.”3
¶ 5 Surprisingly, there is little authority bearing directly on the issue of whether Rule 8.4(c) applies to lawyer participation in lawful government covert operations. We are aware of no bar ethics opinions that have faced this question squarely.4A recent ABA opinion does hold that a lawyer’s recording of a conversation without the knowledge or consent of the other party does not necessarily violate the Model Rules.5It specifically reserves, however, the question presented here:
The Committee does not address in this opinion the application of the Model Rules to deceitful, but lawful conduct by lawyers, either directly or through supervision of the activities of agents and investigators, that often accompanies nonconsensual recording of conversations in investigations of criminal activity, discriminatory practices, and trademark infringement. We conclude that the mere act of secretly but lawfully recording a conversation inherently is not deceitful, and leave for another day the separate question of when investigative practices involving misrepresentations of identity and purpose nonetheless may be ethical.6 (more…)

Ethics Advisory Opinion No. 02-06

Issued June 12, 2002
¶ 1 Issue:
May an attorney represent a client in a criminal matter where the attorney will have to cross-examine as an adverse witness a former client whom the attorney previously represented in an unrelated matter?

¶ 2 Opinion: In general, an attorney may represent a client in a criminal case where the attorney will have to cross-examine a former client whose interests are adverse to the defendant as long as the representations of the present and former clients are not substantially factually related and the attorney does not disclose or use any confidential information gained in the course of the former client’s representation to his disadvantage, as provided by Rule 1.9.
¶ 3 Analysis: The examination of a former client as an adverse witness on behalf of another client presents a potential conflict of interest for the attorney that must be examined under the provisions of Utah Rules of Professional Conduct: Rule 1.9, which governs successive conflicts of interest; Rule 1.7(b), which deals with concurrent conflicts of interest; Rule 1.6(a), which governs the duty of confidentiality; and Rules 1.1 and 1.3, which set forth the duties of competency and diligence, respectively. The Committee concludes that the cross-examination of the former client by the attorney does not per se create a disqualifying conflict of interest. However, the specific facts and circumstances of the case may involve a violation of the foregoing rules, and it is the lawyer’s responsibility to analyze the situation to determine whether there will be compliance with the applicable rules.1
¶ 4 Under Rules of Professional Conduct 1.9(a), an attorney may not represent a person “in the same or a substantially factually related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents after consultation.” Unlike the ABA Model Code of Professional Responsibility, which requires that the matters be simply “substantially related,” Rule 1.9 requires that the matters be “substantially factually related,” thus focusing on the factual nexus between the prior and current representations, rather than a similarity of legal issues.2If the attorney determines that the facts underlying the representation of the former client-witness are substantially related to the indictment of the defendant, then the attorney needs to assess whether the interests of the former client and the defendant are materially adverse.3Should the attorney conclude that the two representations are substantially factually related and that the interest of the former and present clients are materially adverse, the attorney would be faced with an impermissible conflict of interest that could be cured only by obtaining the former client-witness’s consent to the representation of the defendant.
¶ 5 In cross-examining the former client, the attorney must also comply with the ethical obligation not to disclose any confidential information related to the representation of the former client. The cross-examination may create a tension between (a) the attorney’s duty of loyalty to the client, which encompasses the duty to represent the client diligently and therefore to cross-examine the adverse witness vigorously, and (b) the attorney’s duties to the former client-witness. The attorney will need to resolve any such tension within the boundaries of Rule 1.9(b). (more…)

Ethics Advisory Opinion No. 02-07

Issued: September 13, 2002
¶ 1 Issue:
Under Rule 5.4 of the Utah Rules of Professional Responsibility, may a Utah lawyer (a) hire a paralegal, not otherwise associated with the lawyer or the lawyer’s firm, as an independent contractor, or (b) compensate an employee paralegal or other firm employee based on a percentage of the lawyer’s fees.
¶ 2 Conclusion: Utah lawyers may hire outside paralegals on an independen-contractor basis, provided the paralegal does not control the lawyer’s professional judgment. In addition, if the amounts paid for services are not tied to specific cases, Utah lawyers or law firms may share fees with nonlawyer employees in a compensation plan.
¶ 3 Background: A Utah lawyer contemplates hiring outside paralegals and compensating them on a per task basis. The lawyer seeks our opinion on whether such an arrangement complies with the Utah Rules of Professional Responsibility. While the lawyer’s inquiry is limited to hiring outside paralegals, it raises related issues about whether compensation for paralegals and other professionals, either as independent contractors or employees, can be tied to fees the lawyer generates. We take the occasion to resolve both the lawyer’s inquiry and to reiterate and clarify our prior opinions on these issues.
¶ 4 Analysis: The plain language of Rule 5.4,1as well as official comments to the Rule, and our opinions interpreting it, stress its underlying rationale: “protect[ion of] the lawyer’s professional independence of judgment” and overriding loyalty to the client against potential conflicts.2The proposed contractual arrangement here is between the lawyer and an outside, independent paralegal. This arrangement does not violate either the letter or spirit of Rule 5.4, assuming the paralegal compensation is totally independent from the lawyer’s relationship with, and compensation from, the client. The same rationale would apply to other third parties the lawyer hires, such as expert witnesses, copy centers, computer specialists, etc.
¶ 5 Under Rule 5.4(a), the lawyer in such a relationship would not be sharing legal fees with the non-lawyer paralegal or other third-party professional. Our rationale for this conclusion is the same as that in Opinion 02-01, in which we concluded that a lawyer would not be sharing legal fees with a non-lawyer financing company that underwrote litigation under a “recourse” loan to the lawyer.3The non-lawyer paralegal, as with the financing company in Opinion No. 02-01, has an independent contractual relationship with the lawyer and is paid for work done, no matter the outcome of any legal matter.
¶ 6 Succinctly stated, the contemplated lawyer-paralegal relationship is permissible under the Utah Rules of Professional Conduct because the lawyer’s professional judgment is not compromised.
¶ 7 The same concept applies to employee-paralegals. Rule 5.4(a) forbids the sharing of legal fees, except in three instances, one of which is the inclusion of a “nonlawyer employee” in a “compensation plan” under Rule 5.4(a)(3). The Rule does not presume to define the boundaries of an acceptable compensation plan. We have previously held, however, that compensation of nonlawyer employees may be based upon a percentage of gross or net income provided: (a) compensation is not tied to specific fees from a particular case; (b) there is nothing in the nature of the arrangement that would tend to impair the independence of the law firm or lawyer; and (c) no other rule of professional conduct is violated.4 (more…)

Ethics Advisory Opinion No. 02-08

Issued September 18, 2002
¶ 1 Issue
: An attorney filed a complaint with the Judicial Conduct Commission against a judge. The complaint was eventually dismissed for insufficient evidence with no finding of misconduct. May the attorney accept new cases as counsel and appear before that judge without advising the clients of the complaint and without giving them the option of the attorney filing a motion for recusal?

¶ 2 Conclusion: The attorney must inform the client if the attorney thinks the judge may harbor some ill feelings toward the attorney. However, if the attorney has a reasonable good-faith belief that the judge does not harbor any ill feeling toward the lawyer, then the lawyer need not advise the client of the complaint the lawyer filed against the judge.
¶ 3 Background: An attorney was the victim of a criminal act. During the pretrial process, the attorney-victim thought that the judge did not afford him his constitutional and statutory rights. He subsequently filed a personal complaint with the Utah Judicial Conduct Commission. The attorneyvictim then advised new clients that were placed on this judge’s docket of the unresolved personal complaint against the judge and offered to file a Rule 29 motion to recuse. In the cases that were not placed on different dockets, the judge recused himself. After processing the complaint, the Judicial Conduct Commission informed the attorney that there was insufficient evidence to warrant further proceedings. The attorney now seeks guidance on whether he may accept new cases as counsel and appear before this particular judge without advising the clients of the prior dismissed complaint and without offering to file a motion to recuse.
¶ 4 Analysis: Rule 1.4(b) provides “A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” The commentary to Rule 1.4 further provides that “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information . . . consistent with the duty to act in the client’s best interest and the client’s overall requirements as to the character of representation.” No doubt a client would like to be informed about potential ill will or even hostility between a judge and counsel and its possible effects on the client’s representation. The commentary aptly provides “A lawyer may not withhold information to serve the lawyer’s own interest or convenience.”
¶ 5 If an actual conflict of interest exists, rather than just a potential for a conflict, Rule 1.7(b) applies: “A lawyer shall not represent a client if the representation of that client may be materially limited . . . 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.” A “lawyer’s own interest” could include the lawyer’s taking on new clients despite the potential ill feelings against him by a district court judge. The commentary to Rule 1.7 indicates a hypothetical or potential conflict does not itself preclude representation. Accordingly, if there is no actual conflict, client consent is not required. (more…)

Ethics Advisory Opinion No. 02-09

Issued September 24, 2002
¶ 1 Issue:
Is it ethical for an attorney to enter into a contingency-fee agreement, under which all fees, expenses and costs of litigation are unconditionally assumed by the attorney?

¶ 2 Opinion: Within broad limitations, the Utah Rules of Professional Conduct permit an attorney and a client to determine the terms of the lawyer’s compensation, and there is no per se restriction prohibiting the attorney from assuming all litigation costs and expenses under a contingency-fee agreement. Such fee agreements, however, must comply with all other applicable provisions of the Utah Rules of Professional Conduct concerning fees.
¶ 3 Analysis: We have received a request for an opinion as to the propriety of a lawyer’s entering into a contingent-fee agreement with a commercial client on collection matters that contains the following paragraph:
All fees, expenses and costs, such as filing fees, court disbursements, photocopy costs, telephone expenses, travel, postage, storage, office supplies, and miscellaneous expenses associated with the collection shall be the sole responsibility of the attorney and will not be billed or reimbursed by client.
The issue requires a determination of whether a fee arrangement of this kind is consistent with Rules1.5, 1.7, and 1.8(e) of the Utah Rules of Professional Conduct (“The Rules”).1
¶ 4 Lawyers are generally free to determine the terms of their representation with their clients, consistent with the Rules. The Ethics Advisory Opinion Committee has recently addressed this issue in Opinion No.02-03, reaching a conclusion that a flat-fee agreement between a defense lawyer and an insurance company is not per se unethical and cautioning:
A lawyer who enters into any type of flat-fee arrangement with an insurer must use caution to assure that she exercises independent professional judgment on behalf of the insured. This is particularly important in situations where the scope of the case has unexpectedly increased beyond the attorney’s original expectations in agreeing to a fixed fee.2
¶ 6 Our Opinion No.136 also addressed the issue of whether a client’s advance payment, made as a fixed fee or non-refundable retainer, was unethical. The opinion concluded that fixed-fee contracts or non-refundable retainers are not expressly prohibited by Rule1.5. 3
¶ 7 Rule1.5(c) addresses certain requirements related to contingent-fee arrangements, including the requirement that the fee agreement must be in writing, and it must state the method by which the fee is to be determined and how expenses are to be handled.4While Rule1.5(c) anticipates that expenses will be deducted either before or after the contingent fee is calculated, nothing in the rule prohibits the attorney from agreeing to assume those costs and expenses within her contingent fee, or, if no judgment or settlement is obtained, to assume responsibility for those costs and expenses.
¶ 8 As was extensively addressed in Opinion 02-03, a lawyer must ensure that her agreement relating to fees will not require her improperly to curtail services provided to the client that would normally be within the scope of the representation.
¶ 9 Rule 1.7(b) requires a lawyer to decline representation if the representation of the client may be limited, among other things, by the lawyer’s own interest. As we pointed out in Opinion No. 02-03, the economics of any agreement between the lawyer and her client is not the Committee’s business. In the context of our discussion of fee arrangements between lawyers and insurers, we noted: (more…)

Ethics Advisory Opinion No. 02-10

Issued December 18, 2002
¶ 1 Issue:
May a lawyer review pleadings prepared by a non-lawyer mediator for simple, uncontested divorces and advise the mediator on how to modify the pleadings for filing in court?

¶ 2 Conclusion: (1) As lawyer for the mediator, a lawyer may advise the mediator on the issues likely to arise in the course of the mediation, but may not advise the mediator how to prepare the divorce agreement and court pleadings for particular parties who are clients of the mediator. This would constitute assisting in the unauthorized practice of law and would violate Utah Rules of Professional Conduct 5.5. (2) An attorney may provide representation to a party engaged in a divorce mediation that is limited to advising the party and assisting with pleadings, but may not so limit the representation without first fully informing the party of the proposed limitation and obtaining the party’s informed consent.
¶ 3 Background: A divorce mediator has requested that a lawyer perform a limited service: review pleadings prepared by the mediator and amend them as needed. Prior to the attorney’s involvement, the mediator would meet with the divorcing parties and assist them in reaching a settlement of all issues in their divorce. Then, the mediator would draft the parties’ agreement, which would be filed with the court or incorporated into the judgment of the court. Finally, the mediator would draft the various additional court documents (e.g., complaint, findings of fact and conclusions of law, judgment) needed for the parties’ divorce. The mediator would inform the divorcing parties that the pleadings were not prepared by an attorney, but had been reviewed by an attorney for “sufficiency.” The divorcing parties would pay the attorney a small fee for this service.
¶ 4 Analysis: The request raises the following issues:
* Whether the lawyer is representing the mediator or the divorcing parties.
* Whether this plan involves the lawyer’s assisting in the unauthorized practice of law in violation of Utah Rules of Professional Conduct 5.5.
* Whether this plan constitutes an appropriate limitation on the lawyer’s representation for the client under Utah Rules of Professional Conduct 1.2 and 1.1.
A. Whether the lawyer is representing the mediator or the divorcing parties.
¶ 5 The original request appears to presume that the lawyer is advising the mediator. However, the advice sought from the Committee focuses on the agreement and pleadings for a divorce between two particular parties. Here, we consider the ethical constraints on both possible relationships.
B. Whether the lawyer, in advising the mediator, is assisting in the authorized practice of law.
¶ 6 Rule 5.5 provides that a lawyer shall not “assist any person in . . . the unauthorized practice of law.” However, the Comments to Rule 5.5 state that the rule “does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law.” Accordingly, it should be permissible for a lawyer to form an attorney-client relationship and provide a mediator with professional advice that the mediator needs for this occupation. In order to understand the limits of what is appropriate legal advice to give a mediator, we first examine what constitutes the practice of mediation under Utah law and current codes of conduct for mediators. (more…)

Ethics Advisory Opinion No. 02-06

Issued June 12, 2002
¶ 1 Issue:
May an attorney represent a client in a criminal matter where the attorney will have to cross-examine as an adverse witness a former client whom the attorney previously represented in an unrelated matter?

¶ 2 Opinion: In general, an attorney may represent a client in a criminal case where the attorney will have to cross-examine a former client whose interests are adverse to the defendant as long as the representations of the present and former clients are not substantially factually related and the attorney does not disclose or use any confidential information gained in the course of the former client’s representation to his disadvantage, as provided by Rule 1.9.
¶ 3 Analysis: The examination of a former client as an adverse witness on behalf of another client presents a potential conflict of interest for the attorney that must be examined under the provisions of Utah Rules of Professional Conduct: Rule 1.9, which governs successive conflicts of interest; Rule 1.7(b), which deals with concurrent conflicts of interest; Rule 1.6(a), which governs the duty of confidentiality; and Rules 1.1 and 1.3, which set forth the duties of competency and diligence, respectively. The Committee concludes that the cross-examination of the former client by the attorney does not per se create a disqualifying conflict of interest. However, the specific facts and circumstances of the case may involve a violation of the foregoing rules, and it is the lawyer’s responsibility to analyze the situation to determine whether there will be compliance with the applicable rules.1
¶ 4 Under Rules of Professional Conduct 1.9(a), an attorney may not represent a person “in the same or a substantially factually related matter in which that person’s interests are materially adverse to the interest of the former client unless the former client consents after consultation.” Unlike the ABA Model Code of Professional Responsibility, which requires that the matters be simply “substantially related,” Rule 1.9 requires that the matters be “substantially factually related,” thus focusing on the factual nexus between the prior and current representations, rather than a similarity of legal issues.2If the attorney determines that the facts underlying the representation of the former client-witness are substantially related to the indictment of the defendant, then the attorney needs to assess whether the interests of the former client and the defendant are materially adverse.3Should the attorney conclude that the two representations are substantially factually related and that the interest of the former and present clients are materially adverse, the attorney would be faced with an impermissible conflict of interest that could be cured only by obtaining the former client-witness’s consent to the representation of the defendant.
¶ 5 In cross-examining the former client, the attorney must also comply with the ethical obligation not to disclose any confidential information related to the representation of the former client. The cross-examination may create a tension between (a) the attorney’s duty of loyalty to the client, which encompasses the duty to represent the client diligently and therefore to cross-examine the adverse witness vigorously, and (b) the attorney’s duties to the former client-witness. The attorney will need to resolve any such tension within the boundaries of Rule 1.9(b). (more…)