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.
¶ 7 The word “lawyer” in subparagraph (a) of Rule1.12 applies only to an individual attorney and not his law firm. This is clear from subparagraph (c), which permits a law firm to undertake representation of a party involved in a matter in which an Assistant Attorney General served as an adjudicative officer provided he is screened and apportioned no part of the fee. Under Rule1.12, the conflict of interest is not necessarily imputed to an entire law firm.
¶ 8 Our analysis and conclusions are consistent with accepted authority. Official commentary on Model Rule1.12 summarizes the intent of the rule: “A lawyer who has served as an adjudicative officer or judicial clerk may not represent anyone in connection with a matter in which the lawyer personally and substantially participated.”5 The import of that statement, as the comment clarifies, is that disqualification under the Rules of Professional Conduct is required only if there is substantial and personal conflict in the same matter.6
¶ 9 Likewise, our prior opinions on similar subjects follow the same logic. In Opinion 95-02A,7 we held that a lawyer may represent criminal defendants in the same judicial district in which a law partner sits as a justice court judge, provided the lawyer does not appear before his partner. In our Opinion 142, we stated that “In these circumstances [e.g., when the Attorney General’s offices is representing various state agencies], the conflict of interest rules apply only on an attorney-specific basis, and conflicts in the Office of the Utah Attorney General should not be imputed to all attorneys in that office.”8
¶ 10 Quoting ABA Formal Opinion 242, we noted in Opinion No. 24,9“One who assumes to act as a judge on one day and as an advocate the next in the same judicial system is confronted with inherent difficulties that ought to be avoided and deprecates the employment of such a system.” Notwithstanding the broader ethical implications of this statement, Opinion No. 24 concluded there was no “disqualification [under applicable Utah rules] in your serving as pro-tem judge for misdemeanor matters in County B by reason of your full-time employment as a criminal-felony deputy county attorney in County A.”10The essence of these opinions is that the Utah Rules of Professional Conduct do not preclude a lawyer from simultaneously serving in potentially incompatible roles, for instance as an adjudicator and an advocate, provided the precise matter at issue is not the same and the likelihood of conflicting loyalties is not direct and substantial.
Footnotes
1. There is apparently no shortage of qualified hearing officers on the roster, many of whom are not government lawyers, and who would, presumably, not be objectionable to anyone.
2. The IDEA is codified at 20 U.S.C. §§ 1400 et seq. The IDEA requires school districts to provide a free appropriate public education and related services to students with disabilities. Anyone alleging a violation of IDEA must exhaust administrative remedies before filing a complaint in federal court. IDEA, its implementing regulations, and state rules provide for an administrative hearing before an impartial and unbiased hearing officer. The decision of the hearing officer is appealable to either state or federal court. Hearing officers by statute and regulation are limited to hearing complaints relating to the identification, evaluation, and educational placement of a child with a disability, or the provision of a free appropriate public education to the child.
3. We also received a companion request for an opinion on the same set of facts and circumstances from the school district that was the respondent in the proceeding that gave rise to the original request for an ethics opinion. The two requests were consolidated by the Committee, and this Opinion resolves both requests. The Committee also acknowledges receipt and consideration of filings submitted by counsel for the child who was the petitioner in that hearing.
4. All three participants in the IDEA proceeding agree that Rule 1.12 is the key to the analysis:
Former judge or arbitrator.
(a) . . . [A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator or law clerk to such a person, unless all parties to the proceeding consent after consultation.

(c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) Written notice is promptly given to the appropriate tribunal to enable it to ascertain compliance with the provisions of this Rule. Utah Rules of Professional Conduct1.12 (2002).
5. ABA Comm. on Evaluation of Professional Standards, Ann. Model Rules of Professional Conduct, 189 (4th ed. 1999).
6. See, e.g., Mississippi Comm’n on Judicial Performance v. Atkinson, 645 So. 2d 1331 (Miss. 1994) (setting bail for accused while acting as municipal judge and thereafter seeking to have bail reduced while acting as practicing lawyer representing accused amount to conduct prejudicial to administration of justice, warranting public sanction).
7. Utah Ethics Adv. Op. 95-02A, 1996 WL 73352 (Utah St. Bar). Utah ethics opinions are also available on the Utah State Bar website at:

http://www.utahbar.org/opinions/index.html.

8. Utah Ethics Adv. Op. 142, 1994 WL 579850 (Utah St. Bar).
9. Utah Ethics Adv. Op. 24 (1976 Utah St. Bar).
10. Opinion No. 24 was issued when the Utah Code of Professional Responsibility governed attorneys’ behavior. The principle is the same under the Utah Rules of Professional Conduct.

ETHICS ADVISORY OPINION No. 03-02

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?
d. Must Attorney report this information to the insurance carriers or to law enforcement? May she do so?
SUMMARY
¶9 Because Attorney owes a duty of confidentiality to Client, she may not reveal information disclosed to her by Client in the course of the representation without Client’s consent.1On the other hand, Attorney may seek Client’s consent to give the information about Provider to others and may do so as broadly as Client’s consent permits.2Whether or not Client consents to revealing the information, Attorney is not prevented from working with the Provider in the future, so long as she takes reasonable and prudent steps to assess the accuracy of Provider’s billing statements. This experience neither prevents Attorney from representing other clients who are patients of Provider, nor from advising them generally to be cautious about all bills from their health-care providers. Further, Attorney has no ethical duty to report her concerns to law enforcement, and she may not do so under these circumstances without the Client’s consent.
ANALYSIS
¶10 We can best address Attorney’s inquiries by first reviewing the fundamental areas.
¶11 The Relationship Between Attorney and Provider. Whether an attorney-client relationship has been established between parties is a legal question driven by the facts and applicable case law,3and it is not within our authority to render legal opinions.4However, it appears on the facts given that no attorney-client relationship has been established between Attorney and Provider by Provider’s voluntary “confessions” to Attorney. For purposes of this opinion, we therefore assume that no attorney-client relationship was formed between Attorney and Provider.5
¶12 Keeping Client Confidences. Rule1.6 of the Utah Rules of Professional Conduct provides for the confidentiality of information an attorney receives in the course of representing a client. Specifically subparagraph (a) provides: “A lawyer shall not reveal information relating to representation of a client except as stated in subparagraph (b), unless the client consents after consultation.” Subparagraph (b) specifies the exceptions that permit an attorney to reveal confidential information relating to the representation of a client: (1) to prevent the client from committing a future crime; (2) to rectify the consequences of the client’s using the lawyer as an unwitting accomplice in a past crime or fraud; (3) to establish a claim or defense in a legal controversy between the lawyer and the client, or to establish a defense to a criminal charge against the lawyer based upon conduct in which the client was involved; or (4) to otherwise comply with the Rules of Professional Conduct.
¶13 As a separate matter, evidentiary rules and statutory law provide various individuals with protection from the disclosure of certain information. These protections are generally applicable to adjudicative proceedings and cover a much more restricted range of attorney-client communications than those subject to the protections of Rule1.6. Attorneys should not confuse the obligation of confidentiality owing to clients under Rule1.6 with the more limited legal privileges afforded to their clients in adjudicatory matters.
¶14 The obligation of confidentiality owing to a client under Rule1.6 is much broader than evidentiary privileges and doctrines, which are creations of the law and not within the Committee’s authority to interpret. On the other hand, the confidentiality requirement of Rule1.6 is an ethical constraint that applies to any information relating to any representation of a client (with the exceptions noted in Rule1.6(b)), not just adjudicative representations. Thus, Rule1.6 confidentiality includes not only statements and information obtained directly from a client, but also other information obtained by a lawyer in the course of investigating a client’s case.
¶15 In the case here, the statements made by Provider to Attorney are confidential information as to Client and are protected by Rule1.6. Absent Client’s consent, these communications may not be revealed. Because the information obtained does not pertain to Client’s future commission of a criminal or fraudulent act, to Client’s engaging in past criminal conduct in which Attorney was complicit, or to Attorney’s establishing a claim or defense in a controversy with Client, there is no basis under Rule1.6 for Attorney to breach the confidentiality of Client, absent Client’s informed consent.6
¶16 The fact that the information obtained by Attorney may reveal past criminal conduct by a third party, or even possibly of an ongoing criminal fraud scheme in which the client is not participating, is immaterial. The lawyer is bound to the obligation of confidentiality under Rule1.6 and may not reveal the information she has received in the course of representing Client to anyone, including insurance carriers or law enforcement authorities, without Client’s consent.7
¶17 Of course, Client may choose to authorize Attorney, after consultation, to reveal what she had learned in the course of the representation. In that case, Attorney could reveal the information to third parties to the extent Client’s waiver would allow. Client can control the breadth of the waiver, limiting it to time, persons or incident, for example. Further, nothing prohibits Attorney from asking Client for permission to disclose Provider’s conduct to authorities, so long as there is proper consultation about the ramifications of the disclosure.
¶18 The foregoing analysis does not prohibit an attorney who has gained experience about human behavior or human nature in the course of her practice from using the general knowledge and information for the benefit of other clients at a later time. Thus, although Attorney could not specifically advise future clients about the exact information she has learned about this particular Provider, the lawyer may warn all clients who are patients of health-care providers to review their bills carefully and to be vigilant in assuring that their health-care providers submit proper bills.
¶19 Duty of Candor and Duty of Fairness. All of these circumstances raise an additional question about future dealings with Provider. Under Rule 3.3 of the Utah Rules of Professional Conduct, a lawyer owes a duty of candor toward any tribunal in which she is practicing. This obligation includes the requirement that “[a] lawyer shall not knowingly. . . [m]ake a false statement of material fact or law to a tribunal or offer evidence that the lawyer knows to be false.” To be in compliance with Rule3.3, Attorney may need to exercise extra vigilance if she is to continue associating with Provider as an expert in her cases.
¶20 Further, under Rule3.4 of the Rules of Professional Conduct, the lawyer owes a duty of fairness to opposing parties and to opposing counsel. Rule3.4(b) prohibits a lawyer from falsifying evidence or assisting a witness to testify falsely. This would prohibit a lawyer from knowingly submitting false billing information to an opposing counsel or insurance adjustor in furtherance of a client’s claim for settlement or from knowingly submitting false medical bills as trial exhibits.
¶21 In this case, Attorney may be wise to review Provider’s bills with care before submitting them to insurance carriers, adjustors, opposing counsel or a court in furtherance of her clients’ claims. If, however, the lawyer has no actual knowledge the bills are inaccurate, then the lawyer will commit no ethical violation for submitting Provider’s billings to anyone in the future.8
CONCLUSION
¶22 We summarize the responses to Attorney’s specific questions:
a. Did Attorney form an attorney-client relationship with Provider by telling him that his conduct was illegal? We do not answer this legal question for reasons set forth above. For purposes of addressing the remaining questions, we assume on these facts—without deciding—that there is no attorney-client relationship with Provider.
b. Can Attorney warn future clients who are patients of Provider that they should review their bills carefully and tell them specifically why? Would this violate Rule1.6 regarding confidential information obtained from Client? Attorney can generally warn any of her clients that they should be careful in analyzing their health-care provider bills for accuracy. Absent consent from Client, Attorney may not advise existing clients or future clients that they should specifically be aware of this Provider or state the reasons they should be aware of this particular Provider, because such information has been obtained in Attorney’s representation of Client, to whom Attorney owes a duty of confidentiality.
c. Given what she knows, can Attorney ethically submit settlement packages to insurance carriers containing Provider’s billings? Yes, if she does not have actual knowledge that the billing statements are inaccurate.
d. Must or may she report anything to the insurance carriers or law enforcement? A lawyer is not required to report these crimes. Further, only with the informed consent of Client may Attorney report any information obtained without causing a breach of her obligations of confidentiality under Rule1.6.
Footnotes
1.Utah Rules of Professional Conduct1.6(a). We assume that none of the exceptions in Rule1.6(b) that allow discretionary disclosures are present here, such as rectifying the consequences of a client’s criminal act. We also note that the lawyer is, of course, authorized to make disclosures of confidential information as necessary to carry out the representation.
2.We also note that Rule1.6(a) does not require the consent to be in writing, although in some cases a lawyer would be well advised to obtain written consent.
3.See, e.g., Roderick v. Ricks, 2002 UT 84, 54 P.3d 1119.
4.See, e.g., R. Proc. Ethics Adv. Op. Comm. § I(b)(2)(iii).
5.If an attorney-client relationship were found to exist between Attorney and Provider, a different analysis would be necessary.
6.From another perspective, Attorney’s disclosure without the informed consent of Client could be to Client’s disadvantage. Utah Rules of Professional Conduct1.8(b). For example, if Client were to continue to need treatment by Provider, Provider might refuse to supply such treatment were he to know that disclosure of his indiscretions to Attorney could lead to civil, criminal or administrative discipline.
7. The obligation to treat information obtained in the representation of Client as confidential does not end with the termination of the representation. Utah Rules of Professional Conduct1.9(b).
8. Under the Utah Rules of Professional Conduct, Terminology, “knowingly” and related terms imply actual knowledge, although a person’s knowledge may be inferred from circumstances.

ETHICS ADVISORY OPINION No. 03-03

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
¶ 8 Because the definition of the practice of law in Utah is an issue of law, the Com­mittee is without authority to decide what is and what is not the unauthorized practice of law. However, for purposes of this opinion, we assume that it is not the unauthorized practice of law for a lawyer to use nonlawyer para­professionals in administrative hearings as permitted by the agency’s applicable rules and regulations. Therefore, so long as the lawyer adequately supervises the work delegated to the paraprofessional and retains responsibility for the paraprofessional’s work, the lawyer would not violate Utah Rule of Professional Conduct 5.5(b), which prohibits a lawyer from aiding another person in the unauthorized practice of law.9
¶ 9 Consent. A lawyer may not, however, delegate to a nonlawyer parapro­fessional the representation of the client before an agency proceeding such as a Social Security Administration hearing without consulting with the client as required by Rules 1.2 and 1.4 regarding the means of representation of the client.
¶ 10 Rule 1.2 requires that the lawyer discuss with the client the relative advantages and disadvantages of being represented at the hearing by a nonlawyer paraprofessional, as opposed to being represented by a licensed lawyer.10 Rule 1.4(b) requires that this matter be explained to the client to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.11 Therefore, the lawyer must discuss with the client the lawyer’s intention to delegate the representation of the client at the hearing to a paraprofessional. This discussion must be sufficiently in advance of the hearing that the client will not be prejudiced if he decides to change counsel. If the lawyer regularly delegates paraprofessionals to represent clients at Social Security Ad­ministration hearings, the lawyer should discuss with the client at the time of engagement the lawyer’s normal practice of using a nonlawyer paraprofessional as the client’s repre­sentative at the hearing.
¶ 11 It is good practice, although not required by the Utah Rules of Professional Con­duct, that the lawyer enter a written engagement agreement with the client disclosing that a nonlawyer paraprofessional may represent the client at the administrative hearing.12
¶ 12 Summary: It is not unethical for a lawyer to advertise to provide representation of claimants denied benefits in Social Security Administration hearings, so long as the advertisement is not false or misleading and otherwise complies with Rules 7.1 and 7.2 of the Utah Rules of Professional Conduct. If an administrative agency, such as the U.S. Social Security Administration, authorizes representation of parties in administrative hearings by nonlawyer representatives, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in such hearings, so long as the paraprofessional is adequately trained and supervised by the lawyer and the lawyer retains responsibility for the work.
¶ 13 If the lawyer ordinarily provides representation of clients in Social Security Ad­ministration hearings using nonlawyer paraprofessionals, the lawyer’s advertisement is not false or misleading solely because the lawyer’s use of nonlawyer paraprofessionals in providing these services is not disclosed in the advertisement. Rule 1.2 requires that the lawyer discuss with the client the objectives of the representation and the means by which the objectives will be pursued. The lawyer should discuss with the client at the initial stages the lawyer’s intention to use a nonlawyer parapro­fessional as the client’s represen­tative at the hearing. Rule 1.4(b) requires that the lawyer explain the advantages and disadvantages of the representation of the client in the hearing by a nonlawyer para­professional supervised by the lawyer to an extent reasonably necessary to enable the client to make an informed decision regarding who will appear at the hearing as the client’s representative. Under the assumptions set forth in this opinion, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances.
Footnotes
1.It is not the province of the Committee to decide what is the unauthorized practice of law. This is an issue of law for the courts. In rendering this opinion, we have assumed that it is not the unauthorized practice of law for a lawyer to use non-lawyer paraprofessionals in federal administra­tive hearings as permitted by the federal agency’s applicable rules. See, e.g., Sperry v. State ex rel. Florida Bar, 373 U.S. 379, 385-402 (1963); see also In re: Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990).
2.Utah Rules of Professional Conduct 7.2(a) (2003).
3.Id., Rule 7.1(a).
4.Id., Rule 7.1, cmt. Also, under the current rules, “A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.” Id. Rule 7.2(b). We note that this provision does not appear in the current ABA Model Rules of Professional Conduct that resulted from the ABA’s Ethics 2000 project. Although Utah may ultimately adopt this deletion as it considers the new ABA Model Rules, Rule 7.2(b) is still a requirement for attorney advertising in Utah. Also, under current Utah Rule 7.2(d): “Any communication made pursuant to this Rule shall include the name of at least one lawyer respon­sible for its content.” The new ABA Rule 7.2(d) broadens this to “at least one lawyer or law firm.”
5.A number of administrative agencies permit representation of parties in administrative hear­ings by nonlawyers. The analysis in this opinion is equally applicable to hearings before such agencies.
6.“A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to insure that the person’s conduct is compatible with the professional obligations of the lawyer.” Utah Rules of Professional Conduct 5.3(b) (2003).
7.Id., Rule 5.3, cmt.
8.See generally Utah Ethics Advisory Op. 99-02, at 1-2, 1999 WL 260749, http://www.­utahbar.org/opinions (Utah St. Bar). There, we stated that determination of “adequate supervision” of a nonlawyer assistant requires a case-by-case analysis. At a minimum, the nonlawyer assistants must be appropriately trained and their performance of professional services monitored and evaluated.
9.“Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.” Rule 5.5, cmt.
10.Under Rule 1.2 provides:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of the representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. . . .
(b) A lawyer may limit the objectives of the representation if the client con­sents after consultation.
Utah Rules of Professional Conduct 1.2 (2003).
11.“A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” Id. Rule 1.4(b).
12.We understand that engagements to represent claimants at Social Security Administration hearings are commonly performed under a contingency-fee agreement. If the lawyer’s services are to be provided for a contingent fee, the agreement must be in writing. Utah Rules of Professional Conduct 1.5(c) (2003). Also, pursuant to 42 U.S.C. § 406(a)(1), “[t]he Commissioner of Social Security may prescribe rules and regulations governing recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants . . . .” The written fee agreement provides an excellent opportunity for the lawyer to memorialize the discussion with the client of the use of a nonlawyer paraprofessional as the client’s representative at the administrative hearing.

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.
¶8 Analysis: Given the deliberate omission of DR 7-105 from the current Model Rules and the reasoning of Opinion 363, we conclude that threats of possible criminal charges are sometimes permissible under the Utah Rules of Professional Conduct. As Hazard & Hodes explain:
In reality, many situations arise in which a lawyer’s communications on behalf of a client cannot avoid addressing conduct by another party that is both criminal and tortious. . . . An example is where a lawyer for a financial corporation must deal with an employee who has been discovered in embezzlement. . . . In these circumstances it is counterproductive to prohibit the lawyer from discussing with the employee, or the employee’s counsel, the possibilities [of having the employee pay back the money without the adverse publicity that a criminal trial would bring].8
Such threats, however, are subject to limitations on the manner with which an advocate may proceed.
¶9 Under the current rules, as with the old, behavior that is “extortionate” is impermissible,9 because extortion is a “crime that reflects adversely on a lawyer’s honesty.”10 Whether lawyer conduct is extortionate and qualifies as an ethical violation is to be determined by the facts on a case-by-case basis.11
¶10 For example, a 1993 New Hampshire case involved a lawyer being disciplined for such improper behavior. In that case, when a plaintiff’s civil rights lawyer publicly maligned city officials and threatened them with serious criminal charges, his behavior was found to be “decidedly intimidating” and “beyond the parameters of zealous advocacy.”12 An ethical violation also occurred when a plaintiff’s lawyer, on the eve of trial, sent a letter to defendant’s lawyer threatening to send the prosecutor’s office certain documents that could incriminate the defendant, her sister and other members of her family, unless the plaintiff was immediately paid for rent due.13
¶11 The possible criminal action must, moreover, be related to the current civil matter.14 This helps insure that a lawyer’s conduct does not compound another crime. The relatedness requirement also ensures that permissible negotiation will be focused on the merits of the civil litigation and that parties will not become distracted by unconnected matters.
¶12 The use of threats also implicates Utah Rules of Professional Conduct 3.1, 4.1, 4.4 and 8.4. A lawyer must conform to these rules when using the possibility of criminal prosecution as leverage. Rule 3.1, for example, prohibits a lawyer from asserting claims in court that are not meritorious. Rule 4.1 requires lawyers to be truthful in dealing with others on a client’s behalf, forbidding a lawyer from “knowingly” making a “false statement of material fact or law to a third person.” Accordingly, a lawyer violates Rule 4.1 if he threatens criminal prosecution where he knows the facts do not support such charges. Further, Rule 4.4 says, “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person.” Thus, an off-hand threat without any informed opinion that criminal charges are well-founded may violate Rule 4.4.
¶13 A lawyer who threatens criminal proceedings must be sure that both the present civil suit and the threat of criminal action are well-founded. The lawyer, therefore, can only threaten criminal prosecution in the good-faith belief that such prosecution may be warranted by the law and facts. While a lawyer in a civil action may not use the criminal justice system to make frivolous, patently untruthful or otherwise unjustified threats against an opposing witness, the threat of criminal charges that are warranted would not violate these rules.
¶14 Various provisions of Rule 8.4 also affect the permissibility of threats of criminal prosecution. A lawyer’s failure to report criminal wrongdoing may be unethical under Rule 8.4(b) if it facilitates another crime. More generally, under section (c) of Rule 8.4, it is professional misconduct for a lawyer to “[e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Additionally, section (d) of the rule prohibits a lawyer from behaving in a manner that is “prejudicial to the administration of justice,” and section (e) says that a lawyer may not “state or imply an ability to influence improperly a government . . . official.” These provisions, also, prohibit the lawyer from dishonestly stating that another has committed a crime. Similarly, a lawyer is prohibited from suggesting that he can ensure that the prosecution or the court will act in a particular way if criminal charges are in fact considered.
¶15 Finally, although in certain circumstances it is ethically permissible for a lawyer to discuss both the civil and criminal implications of certain matters (e.g., embezzlement), this does not give a lawyer unfettered license to threaten parties or witnesses with criminal prosecution. In suggesting the possibility of criminal prosecution, a lawyer needs to be very careful not to violate ethical standards set forth in Rules 3.1, 4.1, 4.4 and 8.4, that the comments are not subject to being misinterpreted as attempted extortion, and that whatever is said about the possibility of criminal prosecution is directly related to the pending civil matter.
¶16 Conclusion. We adopt the position of a number of other states’ ethics committees15 and conclude that, 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, a lawyer should use these tactics with a watchful eye on whether their use constitutes “extortion” under Utah Law, whether the lawyer reasonably believes that such charges are warranted by the law and the facts, and whether they involve “abusive treatment” of a witness.
Footnotes
1. The Model Code of Professional Responsibility governed Utah attorneys’ professional behavior until January 1988, when the Utah Supreme Court adopted a version of the ABA’s Model Rules of Professional Conduct.
2. C.W. WOLFRAM, MODERN LEGAL ETHICS § 13.5.5, at 718, citing ABA Model Rule 8.4, legal background note (Proposed Final Draft, May 30, 1981) (1986) (hereinafter “Wolfram”).
3. G.C. HAZARD & W.W. HODES, THE LAW OF LAWYERING § 40.4, at 40-7 (2003) (hereinafter, “Hazard & Hodes”).
4. Utah Rules of Professional Conduct 4.4 (2003).
5. Id. Rules 8.4(c) and (d).
6. See also ABA/BNA, Lawyers’ Manual on Professional Conduct § 1001:117 (1984).
7. The situation is somewhat different, however, when it involves threats against a party’s lawyer. Rule 8.3 imposes an affirmative duty of reporting when a lawyer has knowledge of another lawyer’s violation of the Rules of Professional Conduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness.”
8. Hazard & Hodes § 40.4, at 40-7 to 40-8 (2003). See Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992), permitting negotiations regarding embezzlement as described above.
9. See id. and Wolfram, supra note 1.
10. Utah Rules of Professional Conduct 8.4(b).
11. Utah Code Ann. § 76-6-406(2) defines “theft by extortion.” Our opinion here is limited to the ethical implications of a lawyer’s conduct. It is not our purview to render legal opinions about whether specific conduct may or may not cause a prosecutor to conclude that the conduct constitutes the crime of extortion under Utah law.
12. In re Robertson’s Case, 626 A.2d 397, 400 (N.H. 1993).
13. In re Office of Disciplinary Counsel v. King, 617 N.E.2d 676 (Ohio 1993).
14. See Kate A. Toomey, Practice Pointer: The Rule Against Threatening Criminal Prosecution to Gain an Advantage in a Civil Matter. UTAH BAR J., Dec. 2002, at 12.
15. For example, in Opinion No. 1995-2, www.dsba.org/ethics95-2.pdf, the Delaware State Bar Commission on Professional Ethics held that a lawyer may threaten criminal charges to gain relief for a client in the administration of an estate matter. The charges must be related and be warranted by law and facts. Opinion 97-2 (1997) of the Ethics Commission of Alaska Bar Association, www.alaskabar. org/index.cfm?ID=4870, holds similarly. The West Virginia Committee on Legal Ethics found that a lawyer’s threat to press criminal charges against his client’s former employee unless he made restitution of embezzled funds was a legitimate negotiating technique. Committee on Legal Ethics v. Printz, 416 S.E.2d 720 (W. Va. 1992).