Ethics Advisory Opinion No. 03-01

Issued January 30, 2003
¶ 1 Issue:
May a Utah Assistant Attorney General serve as a hearing officer or other adjudicator for a Utah government agency on a matter for which the Office of Attorney General, which employs the attorney, may eventually undertake an advocacy role?

¶ 2 Conclusion: Yes. Under the Utah Rules of Professional Conduct, a lawyer’s employment by the Office of Attorney General does not, by itself and without the lawyer’s personal involvement in the matter before him, preclude the lawyer from serving as a hearing officer for a governmental agency in a matter the Office of Attorney General may later undertake as an advocate for the agency.
¶ 3 Background: From a roster the Utah State Office of Education maintain,1 an attorney in the Utah Attorney General’s office was randomly selected to serve as a hearing officer in a due-process hearing arising under the Individuals with Disabilities Education Act (“IDEA”).2 Petitioners were the parents of a disabled child. Respondent was the affected school district. The child’s parents were opposed to any Assistant Attorney General serving as a hearing officer because they claimed a potential conflict of interest between the Assistant Attorney General’s role as an impartial hearing officer and loyalty to his employer, which eventually might represent the school district in an advocacy role. Accordingly, Petitioners requested the Assistant Attorney General to recuse himself as a hearing officer.
¶ 4 On October 10, 2002, the hearing officer issued a “Decision on Petitioners’ Motion to Recuse Hearing Officer,” granting the Petitioner’s Motion to Recuse, though he concluded “Respondents’ arguments [against recusal] are far more persuasive and logically correct” than Petitioner’s arguments. Notwithstanding what he viewed as Respondent’s superior arguments, the hearing officer recused himself because, among other reasons, he felt there is “a lack of clear guidance on the conflict of interest issue, and the current lack of any safe harbor from an ethics complaint.” The hearing officer subsequently requested an Ethics Advisory Opinion from the Committee on this issue.3
¶ 5 Analysis: At the outset, we stress our opinion on the issue stated is necessarily limited to the scope of our jurisdiction—namely, whether an Assistant Attorney General who serves as a hearing officer under the facts summarized above will be in violation of the Utah Rules of Professional Conduct. We do not opine on how the IDEA, its supporting regulations and case law, the Utah Code of Judicial Conduct or public policy may bear on the issue. Our analysis and conclusion are, therefore, intentionally narrow and should not be construed otherwise.
¶ 6 The primary rule applicable to this issue is Rule1.12 of the Utah Rules of Professional Conduct.4 By its terms, Rule1.12 prohibits an Assistant Attorney General from serving as a hearing officer and later representing either party in any subsequent dispute. The rule likewise prohibits any law firm an Assistant Attorney General may later join from representing either party in the same matter, unless he is screened and apportioned no fee, and the firm provides notice to the appropriate tribunal. Rule1.12 does not, however, preclude the Assistant Attorney General from serving as a hearing officer when no other lawyer in the Attorney General’s office will represent either party before that Assistant Attorney General when acting as a hearing officer. An Assistant Attorney General’s employment with the Attorney General’s office does not, by itself and without personal involvement in the matter as an Assistant Attorney General on behalf of the Attorney General’s Office, violate Rule1.12. (more…)


Issued April 23, 2003
¶1 Issue:
What are the ethical responsibilities of a plaintiff’s lawyer who reasonably believes a health-care provider that he deals with on a recurring basis may be charging his clients and prospective clients for services not actually rendered?

¶2 Facts: An attorney (“Attorney”) represents tort plaintiffs. A health-care provider (“Provider”) regularly treats patients with injuries arising from motor vehicle accidents, including some of Attorney’s clients. Attorney expects to encounter Provider repeatedly as she maintains her practice in this area.
¶3 A client (“Client”) engages Attorney to represent him in connection with injuries suffered in an auto accident. In the course of the representation, Client complains about Provider’s bills, adamant that they were for services never rendered. Attorney reasonably believes Client’s claims.
¶4 In reviewing Client’s case with Provider in preparation for trial or settlement discussions, Attorney questions the bills. Provider readily admits that the bills include amounts for work not actually performed. Attorney tells Provider that its illegal to submit such bills, that his records need to be legitimate, and that he should return the funds so obtained. A few days later, Provider calls Attorney, thanks her for the advice, and asks her advice about how to return the money.
¶5 Attorney tells Provider that she will act only in conformity with the law and will not participate in dealings involving false records. She also tells Provider that she cannot advise Provider how to fix his problems. Later, Attorney sends a letter to Provider confirming that she is not representing Provider. A few days later, Provider sends Attorney a letter outlining the return of money to the health insurance carrier on Client’s case.
¶6 Attorney is not sure if the overbillings admitted to by Provider were the result of billing patients for missed visits, of input errors in the billing or patient codes, or of some deliberately fraudulent scheme. The discussions with Provider could be interpreted in several different ways. Attorney does not want to ask more questions of Provider about this issue, but her level of suspicion about Provider’s ongoing conduct is very high.
¶7 Attorney has other clients who are the ongoing patients of Provider for injuries for which Attorney is pursuing legal compensation. Attorney has bought a medical code book to interpret all billing codes and uses a form letter to all her clients (not just Provider’s patients) advising them to review their medical bills carefully for errors before they are submitted to insurance carriers or in legal proceedings.
¶8 Inquiry:
a. Did Attorney form an attorney-client relationship with Provider by informing Provider that his conduct was illegal? Is Attorney obliged to keep Provider’s “confessions” confidential?
b. Can Attorney warn existing patients of Provider and Attorney’s future clients who are also Provider’s patients that they should review their bills carefully and tell them why? If so, would this violate Utah Rule of Professional Conduct1.6 concerning confidential client information?
c. In representing her clients, Attorney must submit settlement packages containing Provider’s billings to insurance carriers. Given what she has learned about Provider’s past actions, although she does not actually know that any future bills will be fraudulent, may she ethically submit such packages? (more…)


Issued June 23, 2003
¶ 1 Issue
: Is it ethical for a lawyer to advertise to provide legal services in Social Security Administration hearings to claimants who have been denied benefits, where nonlawyers are used by the lawyer in providing these services?

¶ 2 Opinion: With due consideration for the rules governing advertising and supervi­sion of nonlawyers assistants, it is not unethical for a lawyer to use nonlawyer para­professionals to provide representation of clients in hearings before a government agency that authorizes nonlawyer representation. In particular, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circum­stances.1
¶ 3 Background: The United States Social Security Administration permits nonlawyers to appear at hearings as representatives of claimants challenging the denial of Social Security benefits. The hearings are evidentiary and require representatives of claimants to offer direct testimony and to cross-examine adverse witnesses. Lawyers who represent claimants for Social Security Administration benefits often use nonlawyer parapro­fessionals to represent the clients in the agency hearings. These lawyers advertise their services in Social Security Administration matters, but commonly do not disclose in the advertisements that the client’s representative at the hearing is normally a nonlawyer paraprofessional.
¶ 4 Analysis: We have been asked whether an advertisement placed by a lawyer to provide legal services in Social Security Administration hearings to claimants who have been denied Social Security benefits must disclose that the lawyer normally uses nonlawyer para­professionals in making appearances for claimants in such hearings.
¶ 5 Advertising Rules. The first step in the analysis is to review the rules governing advertising. First, “[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.”2 But, any advertisement for the lawyer’s legal services must comport with Rule 7.1(a):
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.3
As the comment to the Rule emphasizes, “This Rule applies to all communications concerning the lawyer’s services, including advertising materials.”4
¶ 6 Thus, a disclosure concerning the use of paraprofessionals would only be required if it were necessary to make the advertisement “considered as a whole, not materially misleading.” But, lawyers routinely provide legal services through the use of nonlawyer paraprofessionals and, indeed, are encouraged to do so to make legal services affordable to the broadest spectrum of the population. Thus, we conclude that the advertisement in question is not materially misleading if it does not disclose that the services are often provided through nonlawyer paraprofessionals.
¶ 7 Delegation to Nonlawyers. Social Security Administration rules and regulations permit the appearance of nonlawyer representatives for claimants in Social Security Administration hearings challenging the denial of benefits.5 Without such authority, paraprofessionals would ordinarily not be allowed to provide unassisted representation of a client in an evidentiary hearing. Given the Social Security Administration’s authoriza­tion of nonlawyer professionals to appear as representatives of claimants at its hearings, a lawyer does not act unethically in delegating to paralegals the representation of clients at these hearings. However, the lawyer must comply with his supervisory responsibilities under Rule 5.3,6 which permits nonlawyer paraprofessionals to “act for the lawyer in rendition of the lawyer’s professional services.”7 Rule 5.3 requires, however, that the lawyer provide nonlawyer paraprofessionals appropriate supervision and retain responsi­bility for their work.8 (more…)

Ethics Advisory Opinion No. 03-04

Issued October 14, 2003
¶1 Issue
: May a lawyer threaten to present criminal charges against an opposing party or witness during negotiations in a private civil matter?

¶2 Opinion: In the course of representing a client in a civil matter, it is not per se unethical for a lawyer to threaten that the client may pursue criminal charges against an adverse party where the civil and criminal matters are related. However, such a threat will be a violation of the Utah Rules of Professional Conduct if it constitutes “extortion,” if the lawyer does not have a reasonable belief that such charges are warranted by the law and the facts, or if it involves “abusive treatment” of a witness.
¶3 Background: This query arose when counsel, during a mediation, stated that the opposing party’s witness was in violation of Utah law and that the County Attorney’s office “would be interested” to learn of the alleged violation.
¶4 The Former Rule. Prior Disciplinary Rule 7-105 of the Model Code of Professional Responsibility barred a lawyer from using criminal charges to gain leverage in a civil action: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”1 The stated intent of DR 7-105 was to prevent lawyers from using the criminal justice system for oppressive purposes, and the rule set the boundaries of acceptable lawyer conduct clearly.
¶5 The drafters of the American Bar Association Model Rules of Professional Conduct (“Model Rules”), however, deliberately left out the provisions of DR 7-105. The rationale behind this omission was the drafters’ belief that “extortionate, fraudulent, or otherwise abusive threats were covered by other, more general prohibitions in the Model Rules and thus that there was no need to outlaw such threats specifically.”2 The prior rule was thought to be overbroad because it prohibited legitimate pressure tactics and negotiation strategies.3 The current Utah Rules of Professional Conduct also include no analog to DR 7-105, but instead prohibit a lawyer from using “means that have no substantial purpose other than to embarrass, delay or burden a third person”4 and from engaging “in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . in conduct that is prejudicial to the administration of justice.”5
¶6 ABA Opinion 92-363: The American Bar Association addressed the permissibility of threats in 1992 in Formal Opinion 92-363 (“Opinion 363”). Opinion 363 concluded that a lawyer may use the possibility of presenting criminal charges against the opposing party in a private civil matter to gain relief for the client, as long as the criminal and civil matters are related, the lawyer has a reasonable belief that threat is warranted by the law and the facts, and the lawyer does not suggest she possesses improper influence over the criminal process or try to exert such influence.6 Correspondingly, a lawyer may agree to refrain from presenting criminal charges as part of a settlement so long as the agreement does not violate applicable law.7
¶7 The same factors apply to threats against an opposing party’s witness. Opinion 363 notes that “abusive treatment” of witnesses may implicate Model Rule 4.4. Abusive treatment exists if the lawyer’s purpose in suggesting charges may be brought is merely to embarrass, delay or burden a third person. If, however, the lawyer has a well-founded belief that criminal charges related to the civil action may be justified, and the lawyer does not suggest the presence of improper influence over the criminal process, the conduct is not abusive. (more…)