Ethics Advisory Opinion No. 05-01

April 28, 2005
1 Issue:
A former client of an attorney moved the trial court to set aside the former client’s previous guilty plea on the basis that the attorney’s prior advice on accepting the prosecution’s plea offer had “confused” him. May the attorney testify concerning the previous discussions with the former client to prevent a possible fraud upon the court or to protect the attorney’s good name and reputation?

2 Opinion: Absent a court order requiring the attorney’s testimony, and notwithstanding a subpoena served on the attorney by the prosecution, the attorney may not divulge any attorney-client information, either to the prosecution or in open court.
3 Facts: The client hired the attorney (the “reviewing attorney”) for the limited purpose of reviewing and advising about a plea offer made by the prosecution to the client in a matter where the client had been charged with a first-degree felony. The client had retained another attorney to represent him at trial (“trial attorney”) for the purpose of entering a guilty plea. The client subsequently moved to set aside the plea of guilty, asserting that he had become “confused” in his discussions with the reviewing attorney, and that the confusion resulted in an improvident entry of a plea of guilty.
4 The prosecution subpoenaed the reviewing attorney to testify regarding the issue of the scope and substance of the attorney’s representation. The reviewing attorney desires to testify, believing that the client may commit a fraud upon the court by misrepresenting their relationship and the advice given. The attorney also wishes to defend and maintain her good name and reputation if the matter is to be heard in open court. The former client has refused to waive his attorney-client privilege, indicating he intends to assert the privilege fully to bar the attorney’s testimony.
5 May the attorney testify regarding matters within the scope or substance of the attorney’s representation? May the attorney discuss the nature of anticipated testimony out of court with the prosecutor?
6 Analysis: The reviewing attorney’s inquiry presents two issues. The first relates to the subject of testimony in a judicial setting and involves the attorney-client privilege under Rule 504(b) of the Utah Rules of Evidence. 1 The question of what an attorney may testify to, or be compelled to testify to, in obedience to a court order is established by an exception to the privilege, either as stated in the evidentiary rules or by judicial precedent. When a former client objects in a judicial proceeding to disclosure of privileged material or information, the decision regarding what the attorney may reveal is one for the court.
7 The second issue relates to the attorney’s ethical requirement of client confidentiality pursuant to the Utah Rules of Professional Conduct, which is a separate and independent obligation. The attorney’s obligation of client confidentiality pursuant to Utah Rule of Professional Conduct 1.6 and loyalty to a former client pursuant to Rule 1.9 must be considered by the attorney in the determination of whether any disclosures may be made to the prosecution during trial preparation. Although there are some similarities between the two principles, they are not the same and should not be confused. 2
8 We have previously made clear that the attorney-client relationship is established when a party seeks and receives the advice of an attorney, regardless of the brevity of the conversation, whether a fee was charged or a contract of employment executed between them, or whether the conversation was in person or by telephone. The fact that advice and assistance are sought and the attorney agrees to represent the client fully suffices to establish the relationship. 3
9 We have also previously dealt with the somewhat related question of the ethical obligations of an attorney who, without prior warning, hears his client commit perjury or otherwise materially mislead a tribunal. 4 However, we have not addressed the ongoing obligation of an attorney to maintain client confidences after the attorney-client relationship has come to an end in a situation like the one before us.
10 In this case, there is no question that there was an attorney-client relationship, albeit brief and limited in scope; that advice was sought with respect to the subject of entry of a plea of guilty to a serious felony charge; and that advice was given. However limited the representation, the prosecution has now subpoenaed the attorney, intending to elicit testimony with respect to the scope of the representation agreement and to probe the details of the discussions between attorney and client.
11 We examine the two interrelated, but separate and independent, principles relating to the protections of confidences, documents and other such things growing out of the attorney-client relationship: the privilege undergirded by evidentiary rules and substantive case law; and the principle of confidentiality, primarily as stated in Rule 1.6 of the Utah Rules of Professional Conduct.
12 The Evidentiary Rule of Privilege. It would be inappropriate for the Committee to opine about the issues to the extent the attorney’s request calls for a legal opinion and interpretation of law. 5 Because the evidentiary considerations are intertwined with the ethical rule, however, some recitation of established law as it relates to confidentiality is appropriate.
13 The evidentiary rule governing the lawyer-client privilege is Utah Rule of Evidence 504, subject to enumerated exceptions listed there and in Rule 507. Rule 504(b) states:
(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, and among the client’s representatives, lawyers, lawyer’s representatives, and lawyers representing others in matters of common interest, in any combination.
Rule 504(d) enunciates five general exceptions to the privilege:
(d) Exceptions. No privilege exists under this rule [504]:
1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud; or
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction; or
(3) Breach of duty by lawyer or client. As to a communication relevant to an issue of breach of duty by the lawyer to the client or by the client to the lawyer; or
(4) Document attested by lawyer. As to a communication relevant to an issue concerning a document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between any of the clients.
The focus of the exceptions, as with the statement of the privilege in Rule 504(b) itself, is on the evidentiary aspects of litigation, rather than in providing ethical guidance to the attorney.
14 Rule 507(a) of the Utah Rules of Evidence contains a further exception:
A person upon whom these rules confer privilege against disclosure of the confidential matter or communication waives the privilege if a person or a predecessor while holding the privilege voluntarily discloses or consents to the disclosure of any significant part of the matter or communication or fails to take reasonable precautions against inadvertent disclosure. This Rule does not apply if the disclosure is itself a privileged communication.
15 There is a direct constraint upon the attorney within the formulation of the privilege embodied in Rule 504(b). The right belongs to the client, and it is the client’s alone to waive. No examination of the attorney regarding the relationship may take place without client consent or waiver or a court order overruling the client’s objection. 6
16 The Utah Supreme Court has discussed the nature and basis of the Rule 504 privilege and its exceptions, identifying an additional exception of judicial origin: A party may waive the privilege by placing the attorney-client communication at the heart of a case—e.g., by asserting good-faith reliance on the advice of counsel. 7 This speaks to at least one of the essential considerations of the question before us.
17 How courts might best deal with the privilege issue, once raised by the client or the attorney seeking protection of the privilege, has been addressed at length by the United States Supreme Court, 8 and the extent to which the issue is intertwined with the ethical considerations has also been noted by at least one court in Utah. 9
18 The Ethical Rule of Confidentiality. Utah Rule of Professional Conduct 1.6, Confidentiality of Information, governs a lawyer’s ethical obligation to maintain inviolate the information received and advice given during the course of the attorney-client relationship: 10
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.
(b) A lawyer may reveal such information to the extent the lawyer believes necessary:
(1) To prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another;
(2) To rectify the consequences of the client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; or
(4) To comply with the Rules of Professional Conduct or other law.
These exceptions are entirely permissive. None establish a duty requiring disclosure, although circumstances may well require in-court disclosure pursuant to the obligations of Utah Rule of Professional Conduct 3.3, Candor Toward the Tribunal. 11
19 In discerning the fundamental distinction to be drawn in Utah between the privilege established by law and the principle of confidentiality entrenched in the rules of ethics, we turn to the comment to Utah Rule of Professional Conduct 1.6, which states, in pertinent part:
The principle of confidentiality is given effect in two related bodies of law, the attorney-client privilege in the law of evidence and the rule of confidentiality established in professional ethics. The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
(Emphasis added.)
20 The Rule 1.6 comment draws the distinction between the attorney-client privilege afforded in judicial and other proceedings and the rule of confidentiality established by ethical rule, and this is of particular importance in resolving the issue before the Committee. Here, the reviewing attorney has been subpoenaed and presumably will be questioned and requested, or compelled, to testify. This takes the question out of those situations to which Rule 1.6 is addressed.
21 The Case Before Us. This distinction highlights the necessity of responding to the issue not explicitly addressed by the reviewing attorney, but which is inherent in the inquiry. The request covers a broader issue than seems to be answered by reported cases. In fact, the request mirrors what may, in practice, occur more frequently than the case law might suggest. The appellate decisions generally address circumstances where either client or the client’s present or former lawyer is attempting to enforce the privilege against the claim of exception by a third party. 12
22 The twist in this case is the affirmative desire of the reviewing attorney to be allowed to speak freely regarding otherwise confidential or privileged communications. The determination of whether an attorney will be compelled to testify over the client’s assertion of the privilege normally would be made by the trial judge, and if the court rules that the privilege is abrogated, the attorney must testify. Although undoubtedly quite rare, an attorney may occasionally have to make a decision whether to risk contempt pending appeal in order to protect the attorney-client relationship or comply with the court’s order. 13
23 In contrast, in this case the reviewing attorney wishes to cooperate with the prosecution. The threshold question therefore becomes: What may the reviewing attorney disclose to the prosecutor before the trial court rules on whether the attorney may be compelled to testify? There is no attorney-client privilege between counsel for the government and a potential witness that might protect such a discussion any more than exists between a third party’s lawyer and any witness who happens to be an attorney.
24 Indeed, the attorney should be cautious in her relationship with the prosecutor. Under the request before us, there is no reason to suspect abuse or that the prosecution might subpoena an attorney-witness for an improper purpose or to drive a wedge between the client and the attorney. Nonetheless, the attorney should not be too eager to find circumstances providing justification for disclosing confidential information. 14
25 Utah Rule of Professional Conduct 1.9 prohibits attorneys from using “information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client.” A desire to protect one’s good name is not among the authorized exceptions to the rule. The reported cases are replete with examples of circumstances that may tempt the reviewing attorney to testify in contravention of the privilege, particularly where the crime-fraud exception is invoked. 15 Whether rightly or wrongly, in some cases an attorney may feel that the only alternative to becoming a target of the investigation is to be cooperative with the prosecution. In such a case, the attorney may be tempted to reveal privileged communications in order to avoid that possibility. 16 As this request illustrates, there is also a very real possibility for conflict, where the attorney wishes to defend a good reputation with the prosecutor and the trial judge. Nevertheless, it is the attorney’s obligation to uphold the privilege and, if anything, to err on the side of refusing to disclose attorney-client communications in any but a clear and convincing case.
26 The facts presented by the requesting attorney do not fit within any of the exceptions provided by Rule 1.6(b), and reliance on any of the Rule 1.6(b) exceptions would, in our opinion, be misplaced.
27 Exception 1.6(b)(1) allows permissive disclosure “[t]o prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm, or substantial injury to the financial interest or property of another.” This exception is inapplicable because the former client is not attempting to commit a criminal or fraudulent act the lawyer believes is likely to result in death or to inflict substantial bodily injury or substantial injury to the financial interest or property of another.
28 The attorney could take the position that substantial injury to the attorney’s own financial interests may occur if word of the client’s defamatory testimony reaches the street. However, such a prospect is far too speculative to invoke this provision. 17 In addition, court proceedings, pleadings and testimony are protected with absolute privilege. Nor would the State of Utah or the judiciary itself suffer any but the most attenuated injury. There are no other potential victims. Accordingly, Rule 1.6(b)(1) does not permit disclosure.
29 Rule 1.6(b)(2) sets forth the classic crime-fraud exception: “To rectify the consequences of the client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.” It does not apply to this case because the former client has not utilized services of the lawyer to complete a criminal or fraudulent act, nor is he now acting on advice the lawyer gave in aid of the commission of a fraudulent act, which would free the lawyer to “rectify the consequences.” The mere fact that the client maintains he was confused because of the existence of the former attorney-client relationship or merely being given advice falls far short of using a lawyer’s services or advice in the commission of a fraud or crime. 18 The lawyer is better advised to await or, if the situation warrants, affirmatively seek directly or on motion of the prosecution, a court order allowing extra-judicial disclosure.
30 Exception 1.6(b)(3) allows disclosure “[t]o establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client or to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.” While an arguable case might be made for disclosure under this exception, it too is fraught with problems. The primary problem is that the “controversy” is not between lawyer and client, except quite tangentially. While there may well be a dispute over the facts between lawyer and client, there is no “controversy” between them in the sense contemplated by the rule. Nor is there a criminal or civil action against the lawyer. 19
31 Finally, there does not appear to be any other Rule of Professional Conduct or case law that would allow disclosure under Rule 1.6(b)(4) “to comply with the Rules of Professional Conduct or other law.” However, should the court issue an order permitting any such disclosures, either sua sponte or in response to a motion from the reviewing attorney or the prosecutor, this would constitute “other law” under Rule 1.6(b)(4) and would permit the lawyer to disclose prior attorney-client communications in strict compliance with such an order.
32 Conclusion: As a matter of professional ethics under the Utah Rules of Professional Conduct, in the absence of a court order to the contrary, the reviewing lawyer may not divulge any aspect of the communications with the former client.
Footnotes
1. Utah Rule of Evidence 504 supersedes the statutory privilege set forth in Utah Code Ann. § 78-24-8. Spratley v. State Farm Mut. Automotive Ins. Co., 78 P.3d 603, 612 n.3 (Utah 2003).
2. “The ethical rule of confidentiality is distinct from the evidentiary rule of attorney-client privilege. The scope of the attorney-client privilege is much more limited than that of the confidentiality rule.” ABA/BNA Lawyers’ Manual on Professional Conduct 55:102 (1993).
3. Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar).
4. Utah Ethics Advisory Op. 00-06, 2000 WL 1523292 (Utah St. Bar).
5. “Committee opinions shall interpret the Rules of Professional Conduct adopted by the Utah Supreme Court but, except as necessary to the opinion, shall not interpret other law.” Rules of Procedure, Ethics Advisory Opinion Comm. § 1(b). The following requests are outside the Committee’s authority: . . . [r]equests for legal, rather than ethics opinions.” Id. § I(b)(2)(iii).
6. Hunt v. Blackburn, 128 U.S. 464, 470 (1888).
7. Doe v. Maret, 984 P.2d 980 (Utah 1999).
8. United States v. Zolin, 491 U.S. 554 (1989).
9. Although the case centers more on issues of conflict than confidentiality, Bullock v. Carver, 910 F. Supp. 551, 557 (D. Utah 1995) (Boyce, Mag. J.), points with approval to a client’s former counsel’s action in responding to a subpoena in a habeas corpus petition:
The evidence presented shows that [counsel] has conducted herself in this matter with utmost sensitivity to her former role as co-counsel for petitioner. She has consulted with the Utah State Bar on several occasions in order to receive direction as to her ethical responsibilities. She has been particularly sensitive to her potential conflicts and sought to remove herself from these conflicts from the time of entering the Utah Attorney General’s office up to the present time. She has refused to discuss her representation of Bullock or any confidences and only spoke to Bullock’s counsel and respondent’s counsel about this case after this court entered its order authorizing her to discuss the case.
(Emphasis added.)
10. ABA Model Rule 1.6 differs somewhat from the current Utah Rule 1.6. However, the differences do not affect our analysis or conclusion in this case.
11. Utah Ethics Advisory Opinion 00-06, 2000 WL 1523292 (Utah St. Bar).
12. Hunt v. Blackburn, 128 U.S. 464, 470 (1888); Doe v. Maret, 984 P.2d 980 (Utah 1999); United States v. Zolin, 491 U.S. 554 (1989); In Re Grand Jury Subpoenas v. United States, 144 F. 3d 653 (10th Cir. 1998).
13. See, e.g., In Re Grand Jury Proceedings, 857 F.2d 710 (10th Cir. 1988); In re Vargas, 723 F.2d 1461 (10th Cir. 1983).
14. A statement of the rule and a prudent course of action, although grounded in a different set of requirements from those prevailing in Utah is set forth in United States v. Edgar, 82 F.3d 499, 508 (1st Cir. 1996):
The first line of defense to protect Edgar’s privilege lay in the hands of his lawyer. A lawyer has an obligation not to reveal client confidences. . . . A lawyer also has an obligation to assert privilege on behalf of a client. . . . Generally, an attorney has an obligation to assert the privilege on behalf of the client and not to disclose confidential information until there is a judicial determination that there is no privilege. . . . Even if there is an assertion that there is no privilege because the crime-fraud exception applies, the attorney is required to give notice to the client. . . . If the attorney violates these duties, he is at risk at least of a malpractice suit and of professional discipline.
(Citations omitted.)
15. In Clark v. United States, 289 U.S. 1 (1933), Justice Cardozo first recognized the crime-fraud exception to the rule of privilege.
16. See United States v. Edgar, at 507-08.
17. Absolute immunity is afforded to the testimony of witnesses, whether testifying voluntarily or under compulsion. “The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.” W. PAGE KEETON & WILLIAM L. PROSSER, PROSSER AND KEETON ON TORTS § 114 (5th ed. 1984); Krouse v. Bower, 2001 UT 28, 20 P.3d 895, 898.
18. The circumstances undoubtedly contemplated by this exception to the rule were dealt with in ABA Formal Op. 92-366, ABA/BNA Lawyers’ Manual on Professional Conduct 1001:134 (1992). where the lawyer acting for a client in negotiating a loan unknowingly used fraudulent audited financial statements and fraudulent auditor opinion letters supplied by the client to obtain a loan. The ABA opinion stated that under those circumstances, “A lawyer who knows or with reason believes her services or work product are being used or are intended to be used by a client to perpetrate a fraud must withdraw from further representation of the client, and may disaffirm documents prepared in the course of the preparation that are being, or will be, used in furtherance of the fraud, even though such a ‘noisy’ withdrawal may have the collateral effect of inferentially revealing client confidences.”
19. For a discussion of the role of Rule 1.6(b)(3) within the framework of an attorney’s response in a claim or controversy, see Spratley, 79 P.3d at 608-09.

Ethics Advisory Opinion No. 05-02

Issued April 28, 2005
1 Issue:
What is the ethical responsibility of an attorney serving as defense counsel in a criminal case, when expressly requested by the court at a sentencing hearing for information obtained from or about the defendant regarding the defendant’s prior convictions?

2 Opinion: An attorney may only answer such a query with the client’s informed consent. Otherwise, the attorney must respectfully decline to answer the court’s request in a manner that will not be misleading to the court. The attorney may respond by asserting the client’s right to remain silent, and the attorney’s ethical responsibilities or a by giving a similar explanation that does not disclose client confidences. 1
3 Facts: An attorney represents a defendant in a criminal case. At a sentencing hearing, the court requests information from the attorney regarding the defendant’s prior convictions. The attorney has obtained such information during the course of the representation from conducting an independent investigation or from a confidential communication with the client. After consultation, the client does not consent to the disclosure.
4 Applicable Rules:
Rule 1.6—Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation.
(b) A lawyer may reveal such information to the extent that the lawyer believes necessary . . . . (4) To comply with the Rules of Professional Conduct or other law. 2
5 Rule 3.3—Candor Toward the Tribunal
(c) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client. 3
6 Rule 8.4—Misconduct
It is professional misconduct for a lawyer to . . . (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration or justice . . . . 4
DISCUSSION
7 The issue touches on a fundamental aspect of the attorney-client relationship, namely, confidentiality. A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of all information relating to the representation. The client is thereby encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. 5 The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. 6
8 Information given to an attorney by a client, including the client’s name, address and telephone number, is confidential, and the attorney is prohibited from disclosing such information under Rule 1.6 unless the client consents after consultation. 7 Information provided by an accused to his attorney in an initial telephone conference is confidential, even as against a request for such information by law enforcement authorities seeking to apprehend the accused client. 8 A disclosure of information harmful to the client would be utterly inconsistent with the relationship of trust and confidence protected by Rule 1.6. Thus, Rule 1.6 9 precludes disclosure by the lawyer, whether voluntary or in response to an inquiry from the court, absent informed consent from the client.
9 Under Rule 1.6(a), a lawyer shall not reveal information relating to representation of a client except as stated in paragraph (b), unless the client consents after consultation. As indicated above, the client has not consented and, presumably, would not consent due to the potential adverse consequences from the disclosure. Here, the only possible exception to this rule is subpart (b)(4) which permits a lawyer to reveal information “to the extent the lawyer believes necessary to comply with the Rules of Professional Conduct or other law.”
10 Rule 3.3(a)(1) and (2) prohibit a lawyer from “knowingly making a false statement of material fact or law to a tribunal,” and from “failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.” Rule 8.4 defines “professional misconduct” as a lawyer engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation” or to engaging in conduct that is “prejudicial to the administration of justice.” Arguably, in this situation, the attorney’s duty to the client under Rule 1.6 may conflict with the attorney’s duty to the court under Rule 3.3 and with the attorney’s duty to the administration of justice under Rule 8.4.
11 Attorneys also owe a duty of candor to the court, and they must maintain the respect due to courts of justice and to judicial officers. Thus, attorneys may not intentionally deceive a judge or intentionally provide misleading or deceiving information to a court. If a lawyer knows that his client has materially misled the court, the attorney may not remain silent and continue to represent the client, for doing so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court. 10
12 Rule 3.3 prohibits a lawyer from knowingly making a false statement of material fact or law to a tribunal, or from failing to disclose a material fact to a tribunal when disclosure is “necessary to avoid assisting a criminal or fraudulent act by the client.” Arguably, Rule 3.3 only applies to “false statements,” and to inactions which assist in the commission of a crime or fraudulent act by the client. Here, the attorney’s silence is not a “false statement,” except to the extent that the attorney knows that the silence is interpreted by the court as an affirmation that there is no prior criminal conviction, in which case the attorney is obligated to inform the court that silence is not intended as a statement of any kind and that it is not appropriate for the attorney to comment further.
13 In addition, silence by the advocate is not assisting the client to commit a criminal or fraudulent act, even though it may enable the client to avoid a more severe punishment for a criminal act. Thus, while Rule 3.3 creates an ethical obligation on the lawyer to not knowingly make a false statement to the tribunal about the defendant’s criminal record, it does not create an ethical obligation to affirmatively disclose confidential information that could harm the client. Rule 3.3, however, does prohibit a lawyer from making a statement that misleads the court or that is false, such as a statement here to the effect that the client has no prior convictions. Thus, the proper course of action for counsel is to decline to answer any such question that is posed by the court.
14 Finally, it is professional misconduct under Rule 8.4 for a lawyer to engage in conduct “involving dishonesty, fraud, deceit or misrepresentation” or to engage in conduct that is “prejudicial to the administration of justice.” Although the lawyer’s silence respecting the client’s prior criminal history could prevent the client from receiving a more appropriate sentence, the protection of confidential information by the lawyer is not dishonest, fraudulent, deceitful or a misrepresentation proscribed by Rule 8.4(c). The protection of the client’s confidential information does not prejudice the administration of justice. On the contrary, it advances the administration of justice.
15 For the foregoing reasons, in the absence of the client’s informed consent, the lawyer must not provide to the court information obtained from or about the defendant regarding prior convictions. Limited strictly to an approach that would be ethically satisfactory, we have concluded that the lawyer may properly (and tactfully) inform the judge that the lawyer’s ethical responsibilities under the Rules of Professional Conduct prevent him from providing such information, and that the failure to respond is not to be construed as indicating one way or another whether there are any convictions.
16 The lawyer’s approach, however, will necessarily depend on the specific circumstances. Inasmuch as the issue before us may well implicate the client’s substantive rights under the Fifth Amendment to the United States Constitution or Article 1, Section 12, of the Utah Constitution, the attorney is strongly advised to be fully aware of the current state of the law in this area and to proceed accordingly. 11 The client may have an absolute right to remain silent, with attendant benefits, in such situations. The lawyer may be required to exercise due care not to make any statement inconsistent with those rights, unless knowingly and intentionally waived by the client. As it is outside our purview, we have not analyzed this area of the law or opined as to what may be the most appropriate course of action with respect to constitutional principles.
Footnotes
1 The attorney’s approach may require being fully informed and conversant with respect to the client’s substantive rights under the Fifth Amendment to the United States Constitution and Article 1, Section 12, of the Utah Constitution. Mitchell v. United States, 526 U.S. 314 (1999). The Committee has made no attempt to analyze this substantive area of the law.
2 Utah Rules of Professional Conduct 1.6 (2004).
3 Id. Rule 3.3(a).
4 Id. Rule 8.4(c) & (d).
5 Id. Rule 1.6, cmt.
6 Id.
7 Utah Ethics Advisory Op. 97-04, 1997 WL 223850 (Utah St. Bar).
8 Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar).
9 See, e.g., Industrial Indemnity Co. v. Great American Ins. Co., 73 Cal. App. 3d, 529, 536 (1977).
10 Utah Ethics Advisory Op. 00-06, 2000 WL 1523292 (Utah St. Bar).
11 See note 1, supra.

Ethics Advisory Opinion No. 05-03

September 30, 2005
HISTORY:
On May 6, 2005, the Utah Ethics Advisory Opinion Committee issued Utah Ethics Advisory Op. No. 05-03, 2005 WL 4748681 (Utah St. Bar). The Requestors of the Opinion filed a Petition for Review with the Board of Bar Commissioners pursuant § III(e)(1) of the Ethics Advisory Opinion Committee Rules of Procedure and § VI(a)(1) of the Utah State Bar Rules Governing the Ethics Advisory Opinion Committee. At a meeting of the Board of Bar Commissioners of the Utah State Bar on July 13, 2005, the Commission reviewed the conclusions and analysis of the majority view and the minority view of Opinion No. 05-03, and voted to issue a revised opinion, set forth below as Opinion No. 05-03. The initial Opinion No. 05-03 as originally issued by the Committee is appended in its entirety for historical reference only and should not be cited or used for purposes other than background.
1. Issue: May a lawyer who serves as a domestic relations mediator, following a successful mediation, draft the settlement agreement and necessary court pleadings to obtain a divorce for the parties?

2. Opinion: When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation. A lawyer may not represent both parties following a mediation to obtain a divorce for the parties.
3. Analysis: The issue considered here was the subject of a prior opinion issued by the Ethics Advisory Opinion Committee in 1992. We have been asked to revisit this issue again because of the expansion and apparent success of divorce mediators in resolving domestic relations matters for pro se litigants for whom the cost of retaining legal counsel may be a serious financial burden. 1
4. Utah Ethics Advisory Opinion 116 considered the following issue: “Under what circumstances may an attorney represent both parties in a divorce?”2 The answer given in Opinion 116 was “never,” based on the clear ethical mandates of Rules 1.7(a) and 1.7(b) of the Utah Rules of Professional Conduct.3 These rules establish a duty of undivided loyalty of counsel to a client.4 Opinion 116 concluded that our rules preclude concurrent representation of clients with directly adverse interests in the matter. Opinion 116 included a lengthy discussion of policy arguments favoring dual representation and policy arguments opposing dual representation in divorce proceedings and concluded that: “The concurrent representation of both parties in a divorce is an ethically unacceptable practice.”5
5. In the 12 years since Opinion 116 was issued, the applicable rules and the arguments bearing upon dual representation in divorce proceedings have not materially changed. The arguably successful and beneficial development of alternative dispute resolution and mediation in the interim does not change our conclusion here. Since the Ethics Advisory Opinion Committee has no policy-making authority, the fact that parties to all lawsuits, including divorces, are increasingly turning to alternative dispute resolution with reportedly positive results to the public and Bar alike cannot alter the clear mandate of our Rules. Whatever the social, financial or other impacts of the alternative dispute resolution trend, and even assuming its worth and inevitability, the ethical rules we are charged to uphold have no “public policy” exceptions that would permit the Ethics Advisory Opinion Committee to rewrite the rules to achieve a result some may believe is beneficial, even if that revision is a carefully reasoned, narrowly crafted exception.6
6. Several states have considered this issue and arrived at a similar conclusion to this opinion and Opinion 116.7 Other states have concluded otherwise. 8 However, the opinions of other bars, while instructive, are not controlling.
7. We reaffirm the conclusion in Opinion 116 because we believe that Rule 1.7(a) creates a per se bar to dual representation of a plaintiff and a defendant in litigation, even in the settlement phase of that litigation. The official comment to our Rule 1.7(a) makes this conclusion clear: “Paragraph (a) prohibits representation of opposing parties in litigation.”
8. Rule 1.7(a) recognizes that under certain limited circumstances a lawyer may represent a client adverse to another client. A lawyer may do so only when (1) the lawyer “reasonably believes the representation will not adversely affect the relationship with the other client,” and (2) each client consents after consultation. The comment to Rule 1.7(a) provides that the “reasonable belief” that the representation will not adversely affect the relationship with the other client is tested by the objective standard of a disinterested lawyer. The comment provides: “When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” The direction in the comment that Rule 1.7(a) prohibits representation of opposing parties in litigation is simply the recognition that a disinterested lawyer would not recommend that a single lawyer represent adverse parties in litigation.
9. We recognize the Utah Legislature and the American Bar Association Section on Dispute Resolution have concluded that “mediation is not the practice of law.” However, when the mediator performs tasks that are the practice of law or are even law-related, such as the preparation of pleadings for use in litigation, the mediator is subject to the Utah Rules of Professional Conduct.9
10. One court in Utah has specifically addressed the issue of a mediator-turned-lawyer. In Poly Software International v. Su,10 litigants moved the trial court to disqualify plaintiff’s counsel where plaintiff’s lawyer had previously acted as mediator for the parties. The Poly Software court held that the lawyer who had previously been a mediator had received confidential information from both parties and was therefore unable to represent anyone in connection with the same or a substantially factually related matter unless all parties consented after disclosure. Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter.
11. We are unpersuaded that, once a mediation results in a settlement of existing property, custody and other disputes, the parties are not “adverse.” We believe it unlikely that two lay, adverse litigating parties can both be aware of their legal rights and all the other practical problems inherent in divorce proceedings, without an experienced lawyer advising them. Consequently, it is possible, and perhaps even likely, that the settlement reached in mediation, where parties do not have counsel, may be based upon the ignorance of unrepresented parties or upon ill-advised concessions. If the mediator-turned-lawyer for both parties does not then advise both clients of all considerations and possible alternatives previously overlooked in the hopes of securing a deal, the lawyer would not be acting ethically.
12. In Opinion 116, the Ethics Advisory Opinion Committee noted the substantial danger of improper influence exercised by a dominant spouse to prevent adequate disclosure of conflicts. 11 That observation remains just as true today. Divorced couples often make recurrent visits to the courts despite what once appeared as a mutually agreed-on decree. In fact, the recurrent disputes over property, custody, visitation, child support amounts and alimony termination is at least as significant as the number of so-called successful mediations.
13. Under Rule 1.7(a), this conflict cannot be waived by the opposing parties, even with the fullest kind of disclosure and consent. Rule 1.7 (a) permits the lawyer to request consent only if the lawyer reasonably believes that the proposed simultaneous representation of both parties will not adversely affect the lawyer’s relationship with either client. This test of Rule 1.7(a) is judged by the objective standard of a disinterested lawyer. As in Opinion 116 and here, we conclude that this standard cannot be met. Informed consent would require explaining to each of the clients that the lawyer would be obligated to explain to each their respective rights, what they may have given up to arrive at a deal, previously unresolved disputes may result during the drafting of a final agreement, the risk that the settlement could be undone, and the requirement that the mediator-lawyer have no further involvement for either party if that were to occur. A disinterested lawyer could not possibly conclude that a lawyer could fairly and zealously represent both clients and not impair the lawyer’s relationship with either client under these circumstances.12
14. Strong policy arguments favor the position of the Ethics Advisory Opinion Committee in Opinion 116 and here. Opinion 116 explained these policy considerations:
Allowing dual representation tends to erode confidence in the courts as a tool for equitable resolution of disputes. The risk of the appearance of impropriety is great in divorce cases where the inherent adversity of the parties is so obvious. Furthermore, the court is presented with only one view of the facts in the divorce, substantially reducing the court’s ability to protect both parties.
Besides an appearance of impropriety, dual representation can foster impropriety by facilitating a fraud on the court, either with or without the attorney’s collusion. The potential for fraud enlarges when one spouse dominates the marriage.
Additionally, the attorney representing both parties has a financial disincentive to inquire too closely into the details of the property settlement he is arranging, because he must withdraw from the case entirely if he discovers a conflict.13
15. Rule 1.7(a) does not allow these potential conflicts to be remedied simply by disclosure and consent. As was said in Opinion 116, “The danger to the parties and the courts outweighs the advantages of cost and convenience advanced as the reasons for adoption of a rule allowing dual representation.”14
Footnotes
1. The actual question put to the Committee was whether it was permissible for an attorney who serves as a domestic relations mediator to draft the parties’ settlement agreement and pleadings (complaint, findings of fact, conclusions of law, and divorce decree) so that the settlement reached in mediation could be entered as a judgment of the court. When the mediator drafts a settlement agreement and pleadings, the mediator is acting as an attorney and, if purporting to act for both parties, the mediator is attempting to represent the petitioner and respondent simultaneously—opposing parties in litigation.
2. Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah St. Bar) (hereinafter Opinion 116).
3. (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
Utah Rules of Professional Conduct 1.7 (2004).
4. The Utah Supreme Court has observed that “[T]he [R]ules [of Professional Conduct] establish the general impropriety of an attorney representing separate clients with adverse interests.” State v. Brown, 853 P.2d 851, 858 (Utah 1992).
5. Opinion 116, at *5.
6. Tanasse v. Snow, 929 P.2d 351, 355 (Ut. Ct. App. 1996).
7. N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
8. New York, for example, concluded that dual representation may be possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents,” New York State Bar Assn. Op. 763 (Jan. 3, 2001); Mass. Bar Assn. Ethics Op. 85-3 (Dec. 31, 1985).
9. It is beyond the purview of the Committee to define the practice of law. Historically, the preparation of pleadings in litigation by a representative of a party has been considered the practice of law. Utah State Bar v. Peterson, 937 P. 2d 1263, 1268 (Utah 1997). Even if the preparation of such pleadings by a non-lawyer mediator would not constitute the unauthorized practice of law, their preparation by a lawyer-mediator would constitute a law-related activity. Unless the lawyer discontinued the practice of law, the lawyer would be required to comply with the Utah Rules of Professional Conduct. Utah Ethics Advisory Op. 02-04, 2002 WL 459018 (Utah State Bar).
10. 880 F. Supp. 1487 (D. Utah 1995).
11. Opinion 116 at *2.
12. It has been brought to the Committee’s attention that Rule 101(e) of the Utah Rules of Court Annexed Alternative Dispute Resolution currently authorizes the mediator to prepare a settlement agreement and “any documents appropriate for resolution of the action.” A proposed amendment to this rule would not permit the mediator to prepare legal documents for the parties. It is common for mediators to assist the parties in preparing a term sheet or a memorandum of understanding to set forth the essential terms of the mediated resolution of the dispute. This activity is undertaken as a mediator, not as the lawyer for either party. We see no problem with a lawyer-mediator engaging in this task. We conclude that under the Utah Rules of Professional Conduct a mediator may not ethically create pleadings to implement the mediated settlement.
13. Opinion 116, at *2.
14. Id. at *5.
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 05-03
May 6, 2005
1 Issue: May a lawyer who serves as a domestic relations mediator, following a successful mediation, draft the settlement agreement and necessary court pleadings to obtain a divorce for the parties?
2 Opinion: When a lawyer-mediator, after a successful mediation, drafts the settlement agreement, complaint and other pleadings to implement the settlement and obtain a divorce for the parties, the lawyer-mediator is engaged in the practice of law and attempting to represent opposing parties in litigation. A lawyer may not represent both parties following a mediation to obtain a divorce for the parties. It may be posible after the mediation has terminated, in limited circumstances, for the lawyer mediator to act as the lawyer for one party in drafting a settlement agreement and in obtaining a divorce decree after disclosure and consent of both parties consistent with Rule 1.7.
3 Analysis: The issue considered here was the subject of a prior opinion issued by this Committee in 1992. We have been asked to revisit this issue again because of the expansion and apparent success of divorce mediators in resolving domestic relations matters for pro se litigants for whom the cost of retaining legal counsel may be a serious financial burden.1
4 Utah Ethics Advisory Opinion 116 considered the following issue: “Under what circumstances may an attorney represent both parties in a divorce?”2 The answer given in Opinion 116 was “never,” based on the clear ethical mandates of Rules 1.7(a) and 1.7(b) of the Utah Rules of Professional Conduct.3 These rules establish a duty of undivided loyalty of counsel to a client.4 Opinion 116 concluded that our rules preclude concurrent representation of clients with directly adverse interests in the matter. Opinion 116 included a lengthy discussion of policy arguments favoring dual representation and policy arguments opposing dual representation in divorce proceedings and concluded that: “The concurrent representation of both parties in a divorce is an ethically unacceptable practice.”5
5 In the 12 years since Opinion 116 was issued, the applicable rules and the arguments bearing upon dual representation in divorce proceedings have not materially changed. The arguably successful and beneficial development of alternative dispute resolution and mediation in the interim does not change our conclusion here. Since our Committee has no policy-making authority, the fact that parties to all lawsuits, including divorces, are increasingly turning to alternative dispute resolution with reportedly positive results to the public and Bar alike cannot alter the clear mandate of our Rules. Whatever the social, financial or other impacts of the alternative dispute resolution trend, and even assuming its worth and inevitability, the ethical rules we are charged to uphold have no “public policy” exceptions that would permit this Committee to rewrite the rules to achieve a result some may believe is beneficial, even if that revision is a carefully reasoned, narrowly crafted exception.6
6 Several states have considered this issue and arrived at a similar conclusion to this opinion and Opinion 116.7 Other states have concluded otherwise.8 However, the opinions of other bar associations, while instructive, are not controlling.
7 We reaffirm our conclusion in Opinion 116 because we believe that Rule 1.7(a) creates a per se bar to dual representation of a plaintiff and a defendant in litigation, even in the settlement phase of that litigation. The official comment to our Rule 1.7(a) makes this conclusion clear: “Paragraph (a) prohibits representation of opposing parties in litigation.”
8 Rule 1.7(a) recognizes that under certain limited circumstances a lawyer may represent a client adverse to another client. A lawyer may do so only when (1) the lawyer “reasonably believes the representation will not adversely affect the relationship with the other client,” and (2) each client consents after consultation. The comment to Rule 1.7(a) provides that the “reasonable belief” that the representation will not adversely affect the relationship with the other client is tested by the objective standard of a disinterested lawyer. The comment provides: “When a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer cannot properly ask for such agreement or provide representation on the basis of the client’s consent.” The direction in the comment that Rule 1.7(a) prohibits representation of opposing parties in litigation is simply the recognition that a disinterested lawyer would not recommend that a single lawyer represent adverse parties in litigation.
9 We recognize the Utah Legislature and the American Bar Association Section on Dispute Resolution have concluded that “mediation is not the practice of law.” However, when the mediator performs tasks that are the practice of law or are even law-related, such as the preparation of pleadings for use in litigation, the mediator is subject to the Utah Rules of Professional Conduct. 9
10 One court in Utah has specifically addressed the issue of a mediator-turned-lawyer. In Poly Software International v. Su,10 litigants moved the trial court to disqualify plaintiff’s counsel where plaintiff’s lawyer had previously acted as mediator for the parties. The Poly Software court held that the lawyer who had previously been a mediator had received confidential information from both parties and was therefore unable to represent anyone in connection with the same or a substantially factually related matter unless all parties consented after disclosure. Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter.
11 We are unpersuaded that, once a mediation results in a settlement of existing property, custody and other disputes, the parties are not “adverse.” We believe it unlikely that two lay, adverse litigating parties can both be aware of their legal rights and all the other practical problems inherent in divorce proceedings, without an experienced lawyer advising them. Consequently, it is possible, and perhaps even likely, that the settlement reached in mediation, where parties do not have counsel, may be based upon the ignorance of unrepresented parties or upon ill-advised concessions. If the mediator-turned-lawyer for both parties does not then advise both clients of all considerations and possible alternatives previously overlooked in the hopes of securing a deal, the lawyer would not be acting ethically.
12 In Opinion 116, we noted the substantial danger of improper influence exercised by a dominant spouse to prevent adequate disclosure of conflicts.11 That observation remains just as true today. Divorced couples often make recurrent visits to the courts despite what once appeared as a mutually agreed-on decree. In fact, the recurrent disputes over property, custody, visitation, child support amounts and alimony termination is at least as significant as the number of so-called successful mediations.
13 Under Rule 1.7(a), this conflict cannot be waived by the opposing parties, even with the fullest kind of disclosure and consent. Rule 1.7 (a) permits the lawyer to request consent only if the lawyer reasonably believes that the proposed simultaneous representation of both parties will not adversely affect the lawyer’s relationship with either client. This test of Rule 1.7(a) is judged by the objective standard of a disinterested lawyer. In Opinion 116 and here, we conclude that this standard cannot be met. Informed consent would require explaining to each of the clients that the lawyer would be obligated to explain to each their respective rights, what they may have given up to arrive at a deal, previously unresolved disputes may result during the drafting of a final agreement, the risk that the settlement could be undone, and the requirement that the mediator-lawyer have no further involvement for either party if that were to occur. A disinterested lawyer could not possibly conclude that a lawyer could fairly and zealously represent both clients and not impair the lawyer’s relationship with either client under these circumstances. 12
14 Strong policy arguments favor the position of the Committee in Opinion 116 and here. Opinion 116 explained these policy considerations:
Allowing dual representation tends to erode confidence in the courts as a tool for equitable resolution of disputes. The risk of the appearance of impropriety is great in divorce cases where the inherent adversity of the parties is so obvious. Furthermore, the court is presented with only one view of the facts in the divorce, substantially reducing the court’s ability to protect both parties.
Besides an appearance of impropriety, dual representation can foster impropriety by facilitating a fraud on the court, either with or without the attorney’s collusion. The potential for fraud enlarges when one spouse dominates the marriage.
Additionally, the attorney representing both parties has a financial disincentive to inquire too closely into the details of the property settlement he is arranging, because he must withdraw from the case entirely if he discovers a conflict.13
15 Rule 1.7(a) does not allow these potential conflicts to be remedied simply by disclosure and consent. As we said in Opinion 116, “The danger to the parties and the courts outweighs the advantages of cost and convenience advanced as the reasons for adoption of a rule allowing dual representation.”14
16 Representing One Party Following Mediation. It may be possible, under limited circumstances, for a lawyer-mediator, after a mediation has terminated, to represent one party to divorce litigation, in order to draft final court documents to effectuate the mediated settlement. This representation may only be undertaken if the mediator-turned-lawyer complies with Rule 1.7(b) and the lawyer’s duties as a mediator to the non-represented party.15 This could occur in the event of the following:
17 a. Full disclosure by the lawyer of the lawyer’s ethical responsibilities as a former mediator not to disclose confidential information revealed to the mediator by the non-represented party, and that such non-disclosure may limit the lawyer’s ability to represent the client fully;
18 b. Full disclosure of the potential conflict of interest by the lawyer to both parties, and an informed consent by both parties to the conflict after independent consultation, which shall include an explanation to each client of the implications of the representation and the advantages and risks involved;16 and
19 c. An independent good-faith assessment by the lawyer that the representation of the one client whom the lawyer undertakes to represent will not be materially limited by the lawyer’s responsibilities to the other party or to a third person or by the lawyer’s own self interest.
20 It may seem incongruous, and even ironic, that the mediator-turned-lawyer might undertake to represent the interests of only one party to a mediated divorce, but may not represent both parties. Rule 1.7(a) simply does not allow representation by one lawyer of both parties in the same lawsuit. On the other hand, the rules allow for the possibility of representation of one party to a lawsuit, even if the lawyer’s representation may be limited by the lawyer’s responsibility to a third person. The teaching of Poly Software is that confidential information may be obtained when acting as a mediator in the course of mediation, and the subsequent representation of one party in the same or a substantially factually related matter is possible with consent and full disclosure.17 It is expected that the lawyer-mediator would sufficiently alert the parties to the mediation of all of the potential pitfalls in this situation to permit the parties to make a truly informed decision whether to allow the mediator to act as a lawyer representing only one of the opposing parties in divorce litigation.
We respectfully dissent:
21 The majority has reached two results that we believe are wrong—one that imposes an unnecessarily narrow constraint on parties to resolve disputes that is not required under the Utah Rules of Professional Conduct; and one that produces an illogical result inconsistent with the overall goals and aspiration of the Rules of Professional Conduct.
22 Contrary to the claim of the majority, their results are not mandated by the Rules of Professional Conduct. Indeed, we believe the majority has lost sight of at least one fundamental principle: The Rules are “rules of reason, . . . [to be] interpreted with reference to the purposes of legal representation and of the law itself”18 Because of an unnecessarily rigid interpretation of Rule 1.7, the opinion produces an inequitable result, one that is logically and internally inconsistent, and one that does not serve the best interests of a segment of the public that is looking to the legal profession for effective, low-cost legal services.19
23 Under a careful and reasonable interpretation of the Rules, we conclude that they permit an attorney-mediator, in limited circumstances, to undertake the subsequent joint representation of the mediating parties in obtaining final judicial approval of a fully successful settlement.
BACKGROUND
24 Increasing Role of Alternate Dispute Resolution. Parties with domestic disputes are increasingly turning to alternative dispute resolution approaches to resolving their disputes. Indeed, court rules may require certain domestic litigants to attempt mediation before arguing contested issues to the court.20 Some believe that the use of mediation is a superior way to resolve disputes when there are strong personal feelings or a need for an on-going relationship. Many believe that mediation may be a more affordable process than adversary litigation.
25 But, even mediating parties often need legal advice or information about their options under the law in order to make informed decisions. And, parties often need legal assistance in preparing the final agreement so that it will be enforceable. Similarly, when parties have a domestic dispute that must ultimately be presented to a court for a final judgment, they may need legal services in preparing required court pleadings. The desire for a consensual process, an informed process and an affordable process presents challenges regarding how mediators and lawyers might work together for the best interests of their clients.
26 Turning to the specific situation of a divorcing couple, Ethics Advisory Opinion 116 concluded that it is impermissible for one lawyer to “concurrently represent both parties in a divorce in any circumstances.”21 The current question concerning post-mediation representation requires a closer analysis of a situation that may not have been fully contemplated by Opinion 116.22
27 We also note that the new ABA Model Rules of Professional Conduct (the “Model Rules”), adopted from the ABA’s Ethics 2000 project, address various issues that are implicated in the issues before us.23 In particular, Model Rule 1.12 includes, for the first time, the lawyer-mediator regarding subsequent representation and related conflicts of interest, and new Model Rule 2.4 addresses a lawyer serving as a third-party neutral, including as a mediator.
28 Mediation Is Not the Practice of Law. There is wide agreement that mediation, per se, is not the practice of law. The Utah Alternative Dispute Resolution Act defines “mediation” as a “private forum in which one or more impartial persons facilitate communication between parties to a civil action to promote a mutually acceptable resolution or settlement.”24 Similarly, Utah’s “Alternative Dispute Resolution Provider Act” identifies mediation as a form of “alternative dispute resolution”25 and defines a “dispute resolution provider” as “a person, other than a judge acting in his official capacity, who holds himself out to the public as a qualified neutral person trained to function in the conflict-solving process using the techniques and procedures of negotiation, conciliation, mediation.”26
29 It is generally agreed that a mediator—whether a lawyer or a lay person—may draft a “memorandum of understanding” that precisely reflects the parties’ agreement and does not go beyond it, without engaging in the practice of law. However, once a mediator adds to the parties’ agreement or selects language with its legal import in mind, the mediator may be engaged in the practice of law.27
30 A Mediator’s Preparation of the Parties’ Settlement Agreement and Court Pleadings Is the Practice of Law. The question presented suggested that any mediator might prepare the settlement agreement and court pleadings as a mediator. However, once the attorney-mediator begins drafting final settlement agreements or court documents, he is engaging in the practice of law as defined by the Utah Supreme Court. In the Utah State Bar v. Petersen case, the Court stated:
[W]ith the aid of forms he selected, he drafted such things as complaints, summonses, motions, orders, and findings of fact and conclusions of law for pro se clients; . . . Thus Petersen held himself out to the public as a person qualified to provide, for a fee, services constituting the practice of law.28
Clearly, the mediator-lawyer would not be engaged in the unauthorized practice if he were to prepare and file such documents. The only remaining question is whether the Utah Rules of Professional Conduct would prohibit him from doing so.
31 Parties in Mediation Should Have Access to Independent Legal Advice. Where parties have independent counsel, there is much less concern about the mediator drafting agreements for the parties. Mediation standards and guidelines unanimously and unequivocally recommend that parties consult with independent counsel—before, during or at the conclusion of the mediation. The lawyer can advise a party about legal standards and a range of options. During the mediation a lawyer can advise a party about the legal import of any proposed agreement. At the conclusion of the mediation, the lawyer can advise the party not only about his rights, but about the best ways to carry out the proposed agreement. A lawyer can prepare—or review—documents that will be filed in court to insure that they are complete and will accomplish what the parties have agreed. This benefit of having access to legal counsel exists even if counsel has limited the objectives of the representation (after consultation and with client consent) as provided for by Rule 1.2(b).
DISCUSSION
32 The General Approach and Rationale of Opinion 116 Is Still Valid. In Opinion 116 the Committee considered whether an attorney could concurrently represent both parties in a divorce and decided that no such representation was possible.
33 The Opinion considered such representation to be governed by Rule 1.7(a) regarding concurrent representation of clients with “directly adverse interests.” That rule permits dual representation only when the representation of one client will not adversely affect “the relationship” with the other client. Moreover, the rule imposes a requirement on the lawyer that the lawyer “reasonably believe” that such dual representation will not adversely affect the relationship with either client. Thus, even if both clients consented to such representation, a lawyer would not be permitted to undertake it unless the lawyer “reasonably believed” there would be no adverse affect on the relationship with either client.
34 The Committee concluded that an attorney representing both parties in a divorce would have a disincentive to inquire closely into the parties’ financial circumstances and thus discover a conflict between them. It noted that the attorney might be disinclined to point out any inequities to a disadvantaged party and thus upset the dual representation.
35 We agree with these concerns and the conclusion that a lawyer, serving solely as counsel, may not undertake to represent both parties to a divorce. At the outset of such a representation, the lawyer would have too little information to reasonably conclude such a representation could be undertaken without harming the relationship with one or the other client.
36 However, we note that “mediation” is not “representation,” and the mediation process provides for sharing of information and development of proposed solutions, separate and apart from legal representation in a divorce. Therefore, it is possible that an attorney-mediator could reasonably conclude, after an entirely successful mediation, that he could then serve as lawyer and fairly represent the interests of both clients without adversely affecting the relationship with either client. However, the circumstances in which an attorney-mediator would fairly so conclude are limited and would need to be thoroughly understood.
37 The Role of Rule 1.2. The Committee has considered at various times the possibility of a lawyer’s providing limited legal services.29 Under Rule 1.2, parties engaged in divorce mediation have the option of retaining counsel for narrowly limited representation as appropriate in the individual case. Limiting the representation to the drafting of the settlement agreement and related court documents is a sensible approach:
Even drafting the stipulated judgment is a task often ceded to the mediator. By the end of the process, both parties usually have a high level of confidence in the mediator’s impartiality and may be more comfortable in the settlement agreement is prepared by the neutral mediator instead of either party’s consulting attorney.30
38 In this context, Rule 1.2 provides a major tool by which parties may limit the scope of the engagement of a lawyer. No one would argue that a lawyer who is a “stranger” to the transaction could not so limit her involvement to come in at the conclusion of the mediation. This, of course, makes perfect sense from a public-policy perspective, as long as the limitation is not so narrow as to render the lawyer’s role a nullity.31 But, it may be far more economical for this to be done by the lawyer who has absorbed all of the facts and circumstances leading to a successful mediation to do so. And that, in turn, furthers the general goals of providing mechanisms that allow parties to resolve their disputes in an effective and economical way.
39 Thus, pursuant to that rule, it is perfectly reasonable for the two now-resolved parties to say to their mediator-lawyer, “Will you now represent us in or common goal to have this matter made final by the legal system?” To the extent that this request is memorialized with the consent of the two parties that satisfies the requirements of Rule 1.7(a) (“each client consults after consultation”) and Rule 1.12 (“all parties to the proceeding consent after consultation”),32 we believe it would be well within the prerogative of the parties and their selected mediator-turned-lawyer to continue to assist the parties to negotiate the final legal formalities of filing papers and obtaining the appropriate court disposition.
40 Other Jurisdictions’ View of the Issue. Other states have considered the same issue posed here.33 Some states prohibit a mediator from doing anything that could constitute the “practice of law.”34 These states permit drafting a memorandum of understanding, but prohibit giving a legal opinion as to its effect. This broad approach of requiring mediators never to opine on the law is widely criticized by the national organizations for mediation. Given the Utah Supreme Court’s loose definition of the practice of law in Petersen, it is not necessary to prohibit a mediator from providing an opinion that could be construed as the practice of law or to prohibit a lawyer-mediator from providing such legal advice.
41 Early ethics opinions from Florida 35 and Massachusetts 36 permit the lawyer-mediator to draft the separation agreement following a fully successful divorce mediation under certain circumstances and with certain guidelines.37 A recent opinion by the New York State Bar specifies limited circumstances when such a practice is permitted and prohibits lawyer-mediators from advertising this possible service, given the limited circumstances in which it will be appropriate. 38
42 The 2001 New York State Bar opinion partially modified its prior opinion that a lawyer cannot represent both spouses in a divorce, concluding that, in some cases, at the conclusion of the mediation, a “disinterested lawyer” could conclude that he could competently represent both parties consistent with DR5-105(C).39 The New York committee stated:
[T]he lawyer may not represent both spouses unless the lawyer objectively concludes that, in the particular case, the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents. In those circumstances, the per se ban of NY State 258 should be relaxed to permit spouses to avoid the expense incident to separate representation and permit them to consummate a truly consensual parting, provided both spouses consent to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved.
43 The New York opinion notes that full disclosure must include informing the parties that the absence of separate representation creates a risk that the agreement might be successfully challenged. The opinion goes on to say that “because the disinterested lawyer test cannot easily be met” the lawyer may not do this as a regular practice. The lawyer may not indicate that the lawyer will routinely do this in advertising or in retainer agreements. The opinion also notes that where the lawyer-mediator does draft and file divorce papers, “If the lawyer does not make a formal appearance in the divorce proceeding, the lawyer must ensure that his or her role is disclosed to the court.”
44 The only Utah case of which we are aware that touches on a related subject is Poly Software International, Inc. v. Su.40 This case involved a mediator’s attempt to represent one of the mediating parties in a subsequent related matter that was opposed by the other party to the mediation.. The mediator-turned-lawyer was disqualified by U.S. District Judge David Winder under Rule 1.12 because there was no consent. Poly Software has no application to the post-mediation representation of one or both parties by the mediator-lawyer where there is full consent.41
45 The main opinion’s claim that, “Poly Software stands for the proposition that, with consent of both parties, Rule 1.7 would permit the mediator to become the lawyer for one party, not both parties in the factually related matter” is, quite simply, incorrect. On this issue, Judge Winder’s decision addressed only the conditions under which the former mediator can represent a mediating party when the other party will not consent. One can draw no inference from Poly Software concerning the breadth or narrowness of post-mediation representation if the parties consent.42
ANALYSIS
46 Our analysis is founded primarily on a reading and interpretation of Rule 1.7, in connection with Rules 1.2 and 1.12.43 Rule 1.7(a) addresses “direct adversity” where the lawyer can represent both parties only if “each client consents after consultation” and “the lawyer reasonably believes the representation will not adversely affect the relationship with the other client.” Because the parties to a divorce will, at least initially, oppose one another in a litigated matter, and because their interests are then “directly adverse,” Rule 1.7(a) applies.44 The question under Rule 1.7(a), like the question before the Massachusetts and New York bars, is whether a mediator-lawyer could, at the conclusion of a totally successful mediation, “reasonably believe” he could undertake to represent both parties.
47 We start with Rule 1.7(a), first assuming that, even after a completely successful mediation, husband and wife are deemed to be technically “adverse.” Here, it must be assumed that their agreement at the end of the mediation has resolved all the issues before the parties. Further, we are specifically dealing with a situation in which the mediator is a lawyer. Notwithstanding that during the mediation he has not represented a party, he is, nonetheless, engaged in a law-related activity. By our prior ethics opinions, he carries the “baggage” of adherence to the Rules of Professional Conduct with him as he carries out those activities.45 In particular, under Rule 1.1, he is required to be competent in such endeavors. Thus, we must assume that a mediated result that is acceptable to the parties has been supplied with competent mediation guidance. Accordingly, it would be inconsistent with the conditions put before us to assume that there are still unresolved issues and that the parties are still at odds on one or more issues.
48 The Rule 1.7 Comment. In analyzing whether Rule 1.7(a) precludes the kind of post-mediation assistance under consideration here, some have seized on an isolated sentence in the comment to Rule 1.7 as categorically prohibiting it: “Paragraph [1.7](a) prohibits the representation of opposing parties in litigation.”46 There are two independent arguments that show this does not dispose of the issue.
49 First, this statement must be read in the context of the rule it refers to. It can not trump the plain reading of 1.7(a), which quite clearly admits of situations where directly adverse parties can be concurrently represented under the “unless” clauses. If the rule were meant to exclude absolutely all representation of adverse parties in the same matter, it would not have been hard for the drafters to have explicitly said so. They did not. In this case, the apparent absoluteness of the comment must be read with and understood to be conditioned by the “unless” clauses of the black-letter rule. That is, it must be read: “Unless clauses (1) and (2) can be satisfied, p]aragraph (a) prohibits the representation of opposing parties in litigation.” It is not possible to take the “unless” clauses out of the black-letter rule by an out-of-context reading of an isolated sentence in the comment. If the parties consent and the lawyer-mediator concludes that his representations will not be adversely affected, then Rule 1.7(a) is satisfied.
50 Second, we consider the role of the term “adverse” in Rule 1.7(a). We believe that, after the parties have come to an agreement under the guidance of a competent lawyer-mediator, they may be considered no longer “adverse” under Rule 1.7(a). The two parties are, by definition, adverse going into a mediation. But, if the mediation has been completely successful, having had the assistance of a skilled mediator trained in the law, the parties will shake hands, agree that their differences are resolved, that all that is left to do is memorialize their agreement. And, because society has declared that divorcing parties must complete the procedure before a magistrate of some kind, they must submit appropriate paperwork to satisfy the legal requirements.
51 At this point, the parties have a single, common goal in the matter: They wish only to get the legal system to put its stamp of approval on what they’ve agreed to. Are they “adverse?” Not under a common interpretation of the word. An authoritative dictionary tells us that things (such as parties) are adverse if they are “[a]cting or serving to oppose; antagonistic” or that they are “[m]oving in an opposite or opposing direction.”47 Does this describe parties who have settled their differences? Not at all. Indeed, to continue to refer to them as “adverse” is rather an artificial and non-standard use of the term.48
52 ABA Model Rule 1.12. In its Ethics 2000 modifications to the Rules of Professional Conduct dealing with the restriction on the representation of clients by former adjudicators, the ABA expressly included mediators. That rule reads:
Former Judge, Arbitrator, Mediator Or Other Third-party Neutral
(a) Except as stated in paragraph (d), 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 or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.49
This makes it crystal clear that the former mediator may subsequently represent a party to the mediation if all parties to the proceeding give informed consent, confirmed in writing;50 there is nothing inherent in this rule that would limit the representation to one party.
53 For those who would find that the mediator-turned-lawyer could represent one of the settling parties (with appropriate consent) in the post-mediation proceedings, but not both, we find such a result perplexing, at best. The legal profession would be telling the outside world that it is perfectly all right for the parties to agree that their former mediator can now line up with one of the parties, while the other party must either go without representation or must obtain (and presumably pay for) a lawyer to come to the process for the first time. But, should we tell the same two parties that they are incapable of agreeing that they are comfortable to have the mediator who led them through the thicket of issues to hand-hold them through the rest of the process? We think this result is indefensible—from both logical and public-policy perspectives. It’s no wonder that the public sometimes looks at lawyers and wonders where their common sense is.51
54 In addition, denying the settling parties in a divorce the opportunity to consent to post-mediation representation by their lawyer-mediator is inconsistent with the latitude granted under Rule 1.12. How could one logically deny these parties the flexibility afforded under Rule 1.12 and not other types of once-adverse-but-now-settled parties to avail themselves of the continuing services of their lawyer-mediator?
55 The Lawyer-Mediator May Undertake Limited Representation of Both Parties. We have reviewed the ethics opinions from other states as well as the ABA’s proposed Model Rules from Ethics 2000. We believe that the best reading of the applicable rules is that, in limited circumstances, the mediator may undertake to represent both parties in a divorce, following an entirely successful mediation.
56 We, like the New York committee, are persuaded that a lawyer could “reasonably believe” dual representation is possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents.”52
57 We note that not every case settled through mediation will qualify under this standard and agree with the Massachusetts bar opinions that drafting the separation agreement involves “dual representation” that is fraught with challenges. While it may be the case that the mediation process was so thorough and the agreement reached so uncomplicated that the drafter’s efforts are truly those of a mere ‘scrivener or secretary,’ [citation omitted] this will not usually be the case.”53 We find this analysis persuasive, particularly insofar as it notes that there will usually be choices to make in the drafting of such an agreement, so that the lawyer-mediator must reasonably believe that he can discuss the choices with both parties as his clients in order to proceed.
58 We also believe that, at the point the mediator is asked to begin dual representation, “Rule 1.7(b) must also be considered, for there is an unavoidable risk . . . that [the lawyer’s] best efforts on behalf of one of the parties will ‘materially limit’ what can be done for the other.”54 Rule 1.7(b) regarding potential conflicts of interests requires that each client consent “after consultation” and that the lawyer fully explain “the implications of the common representation and the advantages and risks involved.” Here that would require explaining to the clients the challenges in drafting a final agreement, the risk that the settlement could come undone, and the requirement that the lawyer-mediator have no further involvement for either party if that were to occur.
59 Moreover, we observe that the lawyer-mediator who declines during mediation to indicate what typical outcomes are ordered by the court may not continue to avoid providing the parties with such information once he undertakes to provide them with dual legal representation. At that point, the lawyer must inform both parties of their legal rights and respond to their questions in order to comply with applicable ethical rules.55 For these reasons, there will be some settled cases in which the lawyer-mediator will not be able reasonably to conclude he can serve both parties as their lawyer at that point.
60 However, in some cases the parties’ agreement will so closely follow typical court orders that this will not be a problem. Similarly, parties may be so committed to their particular agreement that learning what a court would order in the absence of an agreement will not influence them at all.
61 We agree with the analysis of the New York committee that the attorney-mediator should not advertise that he will regularly serve the dual roles of mediator and lawyer for both parties, since this will not be typical. Such a statement could constitute a violation of Rule 7.1 as prohibited “false or misleading communication about the lawyer or the lawyer’s services.” Also, the lawyer-mediator who undertakes to prepare court pleadings on behalf of the divorcing parties should indicate his representation of both parties and his prior role as the mediator in these pleadings in order to comply with the obligation of candor toward the tribunal required by Rule 3.3. This will provide the court with the proper and accurate information with which to review the parties’ agreement and proposed judgment.
62 Opinion 116—Reprise. We believe that permitting the two spouses to give informed consent to the joint representation is not inconsistent with the basic analysis of Opinion 116. Opinion 116 was founded on the premise that the two divorcing parties had, at least potentially, unresolved issues between them and that it was not possible to postulate that the parties could reasonably consent to joint representation under those circumstances. Here, however, we have a situation where the issues have, by definition, been resolved by a lawyer-mediator and the remaining task is to deal with the legal formalities of making the result final. This, in our, judgment, is a situation that can be the subject of consent by the two settling parties.
63 Thus, we have two parties who, through mediation conducted by a lawyer, have reached a full concurrence on how to resolve the issues of their divorce and the only remaining hurdle is to memorialize the agreement in a fashion that will (a) capture the agreement of the parties, and (b) satisfy such legal requirements as will allow the agreement to be effected through appropriate legal proceedings. This was not the context in which the analysis of Opinion 116 was conducted. We, accordingly, would not overrule Opinion 116 except to the extent that parties who have reached a comprehensive settlement of the relevant divorce issues through the assistance of a competent lawyer serving as a mediator under Utah law may seek and consent to limited joint representation by the mediator-lawyer to obtain final disposition of the divorce proceedings.
CONCLUSION
64 We conclude that a lawyer-mediator could undertake to represent both parties and to prepare the ultimate Settlement Agreement and to prepare the necessary court pleadings for the parties’ divorce at the conclusion of a fully successful mediation only when:
* The lawyer could “reasonably believe that the representation” of both parties “will not adversely affect the relationship with” either in this directly adverse representation. Rule 1.7(a).
* The parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents.
* Both parties give fully informed consent.
* The lawyer-mediator makes known to the court the nature of his dual role.
Accordingly, five members of the Committee dissent, including:
Robert A. Burton
Keith A. Call
Gary G. Sackett
Linda F. Smith
Footnotes
1 The actual question put to the Committee was whether it was permissible for an attorney who serves as a domestic relations mediator to draft the parties’ settlement agreement and pleadings (complaint, findings of fact, conclusions of law, and divorce decree) so that the settlement reached in mediation could be entered as a judgment of the court. When the mediator drafts a settlement agreement and pleadings, the mediator is acting as an attorney and, if purporting to act for both parties, the mediator is attempting to represent the petitioner and respondent simultaneously—opposing parties in litigation.
2 Utah Ethics Advisory Op. 116, 1992 WL 685249 (Utah St. Bar) (hereinafter Opinion 116).
3 (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) The lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) Each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person or by the lawyer’s own interest, unless:
(1) The lawyer reasonably believes the representation will not be adversely affected; and
(2) Each client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation to each client of the implications of the common representation and the advantages and risks involved.
Utah Rules of Professional Conduct 1.7 (2004).
4 The Utah Supreme Court has observed that “[T]he [R]ules [of Professional Conduct] establish the general impropriety of an attorney representing separate clients with adverse interests.” State v. Brown, 853 P.2d 851, 858 (Utah 1992).
5 Opinion 116, at *5.
6 Tanasse v. Snow, 929 P.2d 351, 355 (Ut. Ct. App. 1996).
7 N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); N.H. Bar Assn. Ethics Comm. Formal Op. 1989-90115 (July 25, 1990).
8 New York, for example, concluded that dual representation may be possible where “the parties are firmly committed to the terms arrived at in mediation, the terms are faithful to both spouses’ objectives and consistent with their legal rights, there are no remaining points of contention, and the lawyer can competently fashion the settlement agreement and divorce documents,” New York State Bar Assn. Op. 763 (Jan. 3, 2001); Mass. Bar Assn. Ethics Op. 85-3 (Dec. 31, 1985).
9 It is beyond the purview of the Committee to define the practice of law. Historically, the preparation of pleadings in litigation by a representative of a party has been considered the practice of law. Utah State Bar v. Peterson, 937 P. 2d 1263, 1268 (Utah 1997). Even if the preparation of such pleadings by a non-lawyer mediator would not constitute the unauthorized practice of law, their preparation by a lawyer-mediator would constitute a law-related activity. Unless the lawyer discontinued the practice of law, the lawyer would be required to comply with the Utah Rules of Professional Conduct. Utah Ethics Advisory Op. 02-04, 2002 WL 459018 (Utah State Bar).
10 880 F. Supp. 1487 (D. Utah 1995).
11 Opinion 116 at *2.
12 It has been brought to the Committee’s attention that Rule 101(e) of the Utah Rules of Court Annexed Alternative Dispute Resolution currently authorizes the mediator to prepare a settlement agreement and “any documents appropriate for resolution of the action.” A proposed amendment to this rule would not permit the mediator to prepare legal documents for the parties. It is common for mediators to assist the parties in preparing a term sheet or a memorandum of understanding to set forth the essential terms of the mediated resolution of the dispute. This activity is undertaken as a mediator, not as the lawyer for either party. We see no problem with a lawyer-mediator engaging in this task. We conclude that under the Utah Rules of Professional Conduct a mediator may not ethically create pleadings to implement the mediated settlement.
13 Opinion 116, at *2.
14 Id. at *5.
15 Mediations are often administered by alternative dispute resolution (“ADR”) providers. Many such providers have codes or rules of ethical conduct for mediators. A mediator must abide by all such applicable codes or rules of ethical conduct. For example, the Center for Public Resources (“CPR”) has drafted a model rule for lawyers serving as third-party neutrals which it has proposed for adoption by the American Bar Association. CPR-GEORGETOWN COMMISSION ON ETHICS AND STANDARDS IN ALTERNATIVE DISPUTE RESOLUTION MODEL RULE FOR THE LAWYER AS THIRD-PARTY NEUTRAL (2002). CPR Model Rule 4.5.4(a)(2) prohibits a lawyer serving as a third-party neutral from subsequently representing any party to an ADR proceeding (in which the lawyer served as a neutral) “in the same or a substantially related matter, unless all parties consent after disclosure.” CPR Model Rule 4.5.2 prohibits the lawyer serving as neutral from using (after an ADR proceeding) to the disadvantage of any party to the ADR proceeding any information acquired in the ADR proceeding, except in limited circumstances. Similarly, the American Arbitration Association restricts the lawyer-arbitrator from accepting representation of a party to the arbitration or using information acquired in any arbitration proceeding to the disadvantage of a party to the arbitration. AAA Code of Ethics for Arbitrators in Commercial Disputes, Canons I.C and VI.A (2004). These rules and codes place similar restrictions on lawyers serving as neutrals, as does Rule 1.9 of the Utah Rules of Professional Conduct with regard to legal representation of a client.
16 The Committee recommends that the disclosures include a recommendation to the party that will not be represented by the mediator-turned-lawyer to seek the advice of independent counsel before giving the consent. If disputes do arise between the parties in the course of the former mediator’s preparation of settlement documentation, the lawyer needs to assess whether the disclosures made were adequate and the consent of the unrepresented party is valid and enforceable. If they were not, the lawyer may be ethically required to withdraw from the representation in the preparation of the settlement documentation.
17 The Poly Software court found that the lawyer-mediator (Broadbent) was constrained by our ethical rules:
Poly Software argues that, because Wang was present whenever Su revealed anything to Broadbent, Poly Software does not gain access, by employing Broadbent in the present litigation, to any confidential information that it does not already possess. However, this argument ignores the fact that Broadbent’s professional expertise afforded him a perspective on the legal significance of the confidences that Wang himself could not possibly obtain or communicate to new counsel. In short his role as a mediator with experience in intellectual property litigation gives him an unfair advantage as an attorney in the present case.
Poly Software, 880 F. Supp at 1495.
18 Utah Rules of Professional Conduct, Scope 1.
19 The main opinion implies (at 5) that our conclusion is an attempt to “rewrite the rules” and make public-policy judgments that are not consistent with the Rules. To the contrary, our view is wholly compatible with the Rules. We fully understand the limited role of the Committee in interpreting the Rules. But, we also recognize that the Rules aren’t always crystal clear and do not directly address every possible ethical situation. It is the charge of the Committee to fill the interstices of the Rules’ framework when called upon to do so—admittedly driven in part by public policy where those considerations are not inconsistent with the Rules.
20 Utah Code Ann. § 30-3-38 (West 2004), regarding visitation enforcement; Utah Code Ann. § 78-3a-109 (West 2004), regarding mediation in abuse/neglect petitions.
21 Utah Ethics Op. 116, 1992 WL 685249 (Utah St. Bar).
22 There is no discussion in Opinion 116 of a situation in which the parties have come to complete agreement with the mediation services of a lawyer.
23 It is important to take the ABA Model Rules into account here, because the Utah Supreme Court’s Advisory Committee on the Rules of Professional Conduct is currently evaluating the adoption of those rules—either as written or in modified form—in Utah. Although we do not know the outcome of the process, we anticipate that many of the provisions in the new Model Rules will ultimately be adopted by the Court.
24 Utah Code Ann. § 78-31b-2 (West 2004).
25 Utah Code Ann. § 58-39a-2 (West 2004).
26 Id. § 58-39a-2(4).
27 See Utah State Bar v. Peterson, 937 P.2d 1263, 1268 (Utah 1997), regarding the definition of the practice of law; see also Utah Ethics Advisory Op. 02-10, 2002 WL 31922503 (Utah State Bar), concerning advice to a non-attorney mediator.
28 937 P.2d 1263, 1268 (Utah 1997).
29 See, e.g., Utah Ethics Op. 47 (1978) (attorney may provide legal advice, consultation and assistance to inmates regarding initial pleadings in civil matters, after which the inmate will proceed pro se); Utah Ethics Op. 74 (1981) (attorney may give advice to a party who is proceeding pro se); Utah Ethics Op. 98-14 (attorney representing a client in a divorce case may advise the client of the right to obtain a protective order pro se): Utah Ethics Op. 02-10 (lawyer may provide limited representation to a party engaged in divorce mediation).
30 Franklin Garfield, Unbundling Legal Services in Mediation, 40 Fam. Ct. Rev. 76, 82 (2002).
31 See, e.g., Utah Ethics Advisory Opinion 02-01, 2002 WL 231939 (Utah St. Bar).
32 Existing Utah Rule of Professional Conduct 1.12(a) encompasses judges and arbitrators, but not mediators. The new ABA Model Rule 1.12(a) expressly includes mediators, and this technical modification is currently proposed to be adopted in the near future in Utah. Nothing in the current Utah rule or corresponding comment is inconsistent with the inferential extension of the operation of Rule 1.12 to mediators, and that is corroborated by the change to Model Rule 1.12.
33 Fla. Ethics Op. 86-8 (Oct. 15, 1986), Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985), N.Y. State Bar Assoc. Ethics Op. 736 (Jan. 1, 2001), Ariz. Ethics Op. 96-01, Va. Ethics Op. 511 (Sept 8, 1983), N.C. Ethics Op. 286 (Jan. 14, 1981).
34 N.C. Ethics Op. 286 (Jan. 14, 1981); Va. Ethics Op. 511 (Sept. 8, 1983); Guidelines for the Ethical Practice of Mediation and to Prevent the Unauthorized Practice of Law, N.C. Bar Assoc. Dispute Resolution Section (April 14, 1999).
35 Fla. Ethics Op. 86-8 (Oct. 15, 1986), www.flabar.org/, states that lawyers can engage in mediation, and sets forth various standards and precautions. The lawyer-mediator “may prepare a settlement agreement. . . that reflects the decisions made by [the parties] during the mediation. The lawyer should advise the parties to consult independent legal counsel before signing any such agreement.”
36 Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985), massbar.org/publications/ethics_opinions, concludes: “An attorney may also represent both parties in drafting a separation agreement, the terms of which are arrived at through mediation, but must advise the parties of the advantages of having independent legal counsel review any such agreement, and must obtain the informed consent of the parties to such joint representation.”
37 Arizona considered this question and was unable to decide what guidance to offer the members of its bar who are mediators in Arizona Ethics Op. 96-01.
38 N.Y. State Bar Assoc. Op. 736 (Jan. 3, 2001), www.nysba.org/Content/NavigationMenu/-Attorney_Resources/Ethics_Opinions.
39 Both the New York and Massachusetts opinions interpret Disciplinary Rule 5-105(C) of the Code of Professional Responsibility which “permitted a lawyer to undertake concurrent representation only where it was ‘obvious’ that he could ‘adequately’ represent each client’s interests. . . . Today Model Rule 1.7(a) has replaced DR 5-105.” HAZARD & HODES, THE LAW OF LAWYERING, § 11.6, at 11-16 (2003).
40 880 F. Supp. 1487 (D. Utah 1995).
41 Poly Software would be relevant if, after consent is given, a conflict between the parties were to develop and consent withdrawn. The mediator-turned-lawyer could not continue to represent any party, given Poly Software’s citation to Rule 1.9 and the mediator’s acquisition of confidential information.
42 The main opinion makes the Logic 101 error of arguing that p implies q leads to the conclusion that not-p implies not-q.
43 For clarification, Rule 1.7 of the new ABA Model Rules is constructed somewhat differently from the current Utah Rule 1.7, but there appear to be no material differences in application.
44 See HAZARD & HODES § 11.4 , at 11-9, and § 11.7, at 11-31.
45 See, e.g., Utah Ethics Op. 04-05, 2004 WL 2803336; Utah Ethics Op. 01-05, 2001 WL 829237 (Utah St. Bar); see also ABA Model Rules of Professional Conduct 5.7, Responsibilities Regarding Law-related Services (2002), a version of which seems likely to be adopted by the Utah Supreme Court.
46 Rule 1.7, cmt., “Conflicts in Litigation.” There is no further explanation or expansion of this isolated remark.
47 American Heritage Dictionary 25 (4th ed. 2000).
48 We also note that the new ABA Model Rule 1.7 and the associated comment are slightly different from the current Utah Rule 1.7:
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
ABA Model Rules of Professional Conduct 1.7 (2004). ABA Rule 1.7 comment [23] states: “Paragraph(b)(3) prohibits representation of opposing parties in the same litigation, regardless of the clients’ consent.” Again, if this taken out of context, it seems to address the situation we have in front of us. But, as before, it must be read in the context of the now-changed ABA Model Rule. Paragraph (b)(3), to which comment [23] refers, deals with the “the assertion of a claim by one client against another client represented by the lawyer in the same litigation.” The foundational premise of the matter before us is that there is no longer any “assertion of a claim by one client against another client.” To the contrary, the two putative clients are, by definition, no longer asserting claims against one another, and subparagraph (b)(3) does not apply, nor does the part of comment [23] that refers to (b)(3). Hence, even under the re-engineered version of the Model Rules, the mediator may, with the parties’ informed consent, provide the limited representation described.
49 ABA Model Rules of Professional Conduct 1.12(a) (2004) (emphasis added). The written confirmation is an addition to the Model Rule that is not included in the current Utah Rule 1.12. The reference to paragraph (d) is “An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.”
50 The requirement for a written confirmation is not presently in Utah Rule 1.12, but this is likely to be adopted in Utah. Even if not required, it is a recommended practice—particularly in a case of this type.
51 Indeed, the policy that underlay Opinion 116 is hindered by prohibiting a neutral mediator who obtained confidential information from both parties from providing candid legal counsel to both parties while permitting such candid lawyering for only one party. The main opinion here could encourage the precise imbalance of power that Opinion 116 sought to avoid. The mediator lawyer might be motivated to take up the case of whichever party got “the better deal” and now, being answerable as attorney only to that party, would deny candid legal counsel to the other. Far better, if the mediator is to assume the lawyering role, for the mediator to be candid with both parties. Then, if the deal falls apart, the lawyer-mediator has not manipulated the case in an inequitable way.
52 N.Y. State Bar Assoc. Op. 736 (Jan. 3, 2001).
53 Mass. Bar Assoc. Ethics Op. 85-3 (Dec. 31, 1985).
54 HAZARD & HODES, § 11-7, at 11-31.
55 Utah Rules of Professional Conduct 1.2,

Ethics Advisory Opinion No. 05-04

Issued September 8, 2005
1 Issue:
What are the responsibilities of an attorney to a person the attorney has interviewed as a prospective client after it has been determined that the attorney will not undertake the representation?

2 Opinion: In most circumstances, the obligation of confidentiality attaches when a prospective client consults with the attorney in contemplation of retaining the attorney, even if that attorney is not ultimately retained and never advises the client. The provisions of Rules 1.6 and 1.9 regarding former clients outline the attorney’s responsibilities and the circumstances when such an attorney may breach confidentiality.1 Absent consent, the attorney may not undertake representation of another party in the same or substantially factually related matter if the attorney acquired relevant confidential information from the prospective client. An attorney may avoid disqualification by strictly limiting the information acquired during the initial consultation or by explicit agreement and waiver prior to the initial consultation. Under the Utah Rules of Professional Conduct in effect on the date of issuance of this Opinion, if the attorney is disqualified, the entire firm of that attorney is also disqualified.
3 Facts: We consider three sequential questions:
(a) A prospective client meets with an attorney in anticipation of retaining counsel and discusses certain facts with that attorney. The client does not retain the attorney. What, if anything, may the attorney say about the consultation?
(b) Thereafter, the prospective client retains other counsel who files court papers in the matter. The original attorney notices that certain facts pled in the court papers are inconsistent with the facts the prospective client originally reported to that attorney. May the initial attorney reveal this discrepancy?
(c) After the prospective client retains other counsel, an opposing party seeks to retain the attorney who did the initial interview with the prospective client. May the attorney or others in the attorney’s firm represent an opposing party in the matter?
4 Analysis: These questions require a multi-step analysis. First, we must determine if, due to the initial interview, an attorney-client relationship existed such that the obligation of confidentiality attached. Second, if such an attorney-client relationship with obligations of confidentiality did develop, we must consider whether there are exceptions to confidentiality that would permit counsel to breach confidentiality or reveal information about such a former prospective client. Third we discuss whether an attorney-client relationship may attach for some purposes (e.g., obligation of confidentiality) and not for others (e.g., conflicts of interest). We outline when the interview of a prospective client will prevent the attorney (and the attorney’s firm) from representing another party in the same or a substantially related matter.
Formation of Attorney-Client Relationship for Obligation of Confidentiality
5 Previously, we considered a case regarding an attorney holding a telephone conference with a potential client who was a fugitive from justice. The police asked the attorney to disclose the whereabouts of the client. The attorney refused. The Committee concluded:
[An] attorney/client relationship is established when a party seeks and receives the advice of an attorney in matters pertinent to the lawyer’s profession. An attorney/client relationship can arise from brief informal conversations, in person or by telephone, even though no fee is ever discussed or charged and no contract of employment is signed. 2
However, Opinion 97-02 does not entirely answer the first question before us. Here, the attorney did not render any advice, but merely received information from the client in contemplation of being retained.
6 The Rules of Professional Conduct do not state when an attorney-client relationship is formed. Nor do the current Rules explicitly deal with the “prospective” client.3 Yet, in order to interpret the Rules—under either the current or proposed Rules—we must consider when the attorney’s obligations to a prospective client arise. We rely upon related law, ethics opinions and informed commentary about the Rules.
7 ABA Opinion 90-358 provides the following opinion and rationale:
Information imparted to a lawyer by a would-be client seeking legal representation is protected from revelation or use under Model Rule 1.6 even though the lawyer does not undertake representation of or perform legal work for the would-be client. . . . The legal basis for a lawyer’s duty of confidentiality is derived from the law of agency and the law of evidence. See Rule 1.6 Comment.4
8 Similarly, the Restatement of the Law Governing Lawyers addresses a lawyer’s duties to prospective clients and concludes that the duty of confidentiality is owed to a prospective client interviewed by the attorney:
A Lawyer’s Duties to a Prospective Client
(1) When a person discusses with a lawyer the possibility of their forming a client-lawyer relationship of a matter and no such relationship ensues, the lawyer must: (a) not subsequently use or disclose confidential information learned in the consultation, except to the extent permitted with respect to confidential information of a client or former client as stated in §§ 61-67.5
9 Professor Geoffrey Hazard, Reporter for the committee that drafted the 1983 version of the ABA Model Rules of Professional Conduct, explained that the duty of confidentiality was always intended to attach at the point a potential client contacted the lawyer:
The Model Rules are limited to matters of discipline, while the Restatement must address a full range of common law doctrines, whether or not they are incorporated into a disciplinary code. . . Although the Model Rules as promulgated in 1983 did not deal explicitly with prospective clients, there was unanimous agreement that some of the basic duties owed to clients are also owed to prospective clients during the period of uncertainty. This result is easy to reconcile with the rationale and even the text of key rules regulating the client-lawyer relationship, and in 2002, a new Rule 1.18 was added to the Model Rule, making these understandings explicit.6
10 We find the standard and reasoning set forth in ABA Formal Op. 90-358, in Professor Hazard’s commentary on the current Model Rules of Professional Conduct, and in the Restatement persuasive on this issue and applicable here, even without the formal adoption of Rule 1.18.
11 We further note that whether a person is a prospective client is a fact-intensive question. A friend or acquaintance may engage an attorney in informal conversation about his problems with the aim of obtaining some free legal advice, while the attorney believes she is hearing a tale of woe from a friend rather than from a “prospective client.” The Restatement addresses this issue helpfully as well:
Formation of a Client-Lawyer Relationship
A relationship of client and lawyer arises when:
(1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services . . . .7
12 If there is some ambiguity in the nature of the client-attorney relationship, the law generally imposes the burden on the lawyer to “clearly and affirmatively negative the existence of the client-lawyer relationship.”8
Breadth of Obligation of Confidentiality
13 Rule 1.6 prohibits the lawyer from revealing “information relating to representation of a client.” As Professors Hazard and Hodes note, “This language is exceedingly broad. . . .”9 The lawyer may be required to keep even “client identity” confidential.10 This may be particularly salient regarding prospective clients who might be harmed by anyone knowing that he had consulted a particular lawyer—for example, a lawyer whose practice was limited to criminal law or to bankruptcy law.
14 Thus, “prospective clients are similar in many ways to ‘actual’ current clients during the period in which forming a relationship is under mutual consideration.”11 Accordingly, the attorney may not reveal any information gained from the prospective client in the consultation except as would be permitted under Rule 1.6.
15 However, prospective clients “are much like ‘former’ clients when that period ends with a parting of the ways. . . . If no client relationship is formed, the principle of Rule 1.9 . . . prohibits adverse use of information gained during the earlier consultations with the ‘almost former clients’.”12 Rule 1.9 would thereafter permit the lawyer to use or reveal such information “when the information has become generally known.”13
Grounds to Breach Confidentiality
16 Rule 1.6 provides that a lawyer may reveal confidential information even without the client’s consent in the following circumstances:
(b) A lawyer may reveal such information [relating to the representation of the client] to the extent the lawyer believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interest or property of another;
(2) to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used;
(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. . . ; or
(4) to comply with the Rules of Professional Conduct or other law.14
17 In general, the lawyer is restricted by the provisions of Rule 1.9 concerning former clients and, without the prospective client’s consent, can only disclose information about the matter that is generally known or otherwise permitted under Rule 1.6(b).
18 In the second question posed, the lawyer asserts that the client has filed court pleadings that contain misstatements of fact. However, under exception (1) of Rule 1.6(b), such misstatements must constitute a crime or fraud and be “likely to result in . . . substantial injury” to another’s financial interests before the attorney may breach confidentiality. If a false statement meets this standard, the lawyer may reveal confidential information to “prevent the [former] client from committing a fraudulent or criminal act.” If it does not, the lawyer may not disclose the information.
19 Often the prospective client will simply communicate the nature of his case and his goals and will obtain no advice from the attorney. On some occasions, however, the attorney may point out particular problems with a proposed course of action. If the attorney does provide some advice to the prospective client and this advice is used to carry out a criminal or fraudulent enterprise, then exception (2) to Rule 1.6 would apply, permitting the first lawyer to blow the whistle on the scheming client. If no advice was given, exception (2) does not provide license for the lawyer to disclose.
20 The crime-fraud exception to attorney-client privilege would also permit the first lawyer to testify against such a prospective client. As Justice Benjamin Cardozo wrote regarding the crime-fraud exception to privilege: “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law.”15
Conflicts of Interest and Disqualification with Prospective Clients
21 The last issue is whether a conference with a prospective client would disqualify the lawyer (and the entire firm) from representing another party in the matter. This issue requires reference to Rule 1.7 for concurrent conflicts of interest, to Rule 1.9 for successive conflicts of interest, and to applicable case law.
22 A major rationale for conflict-of-interest rules is to protect confidential information and to advance loyalty to the client. However, the prospective attorney-client relationship clearly calls for less loyalty than that of actual attorney-client relationship and the necessity of disqualifying a lawyer to protect confidential information depends heavily upon the nature and amount of confidential information acquired.
23 Under applicable case law, a lawyer who interviews a prospective client will not be disqualified from representing an opposing party in the same matter if the lawyer does not learn sensitive confidential information in that first meeting. The Restatement cites the Utah federal district court case of Poly Sofltware Int’l., Inc. v. Su 16 for this proposition and cautions:
In order to avoid acquiring disqualifying information, a lawyer considering whether or not to undertake a new matter may limit the initial interview to such confidential information as reasonably appears necessary for that purpose. . . . The lawyer may also condition conversations with the prospective client on the person’s consent to the lawyer’s representation of other clients or on the prospective client’s agreement than any information disclosed during the consultation is not to be treated as confidential.17
24 ABA Model Rule 1.18 adopts the provisions of the Restatement relied upon here, but, according to Hazard & Hodes, these were already implicit in the existing Model (and Utah) Rules. However, we note that proposed Rule 1.18 (and the Restatement) go a good bit further in usefully defining requirements regarding prospective clients in the area of conflicts of interest.
25 Model Rule 1.18 takes two further clarifying steps. First, subsection 1.18(c) defines what sort of information will disqualify the lawyer who interviewed the prospective client as “information that would be significantly harmful” to that person in the matter.18
26 Second, proposed Rule 1.18(d) permits the firm of the lawyer who interviewed the prospective client and received “disqualifying information” to represent another party by screening that lawyer from the new representation, provided (1) the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and by providing notice to the prospective client” and (2) the former prospective client is notified. If the Utah Supreme Court adopts proposed Rule 1.18, this will permit adverse representation when the screening and notice provisions are complied with.
27 Conclusion. After an attorney has interviewed a prospective client, and even though the lawyer does not undertake the representation and has not given legal advice to the prospective client, the obligation of confidentiality usually attaches. The circumstances when the attorney may breach confidentiality are governed by Rules 1.6 and 1.9 applied to former clients.
28 Absent consent, the attorney may not undertake representation of another party in the same or substantially factually related matter if the attorney acquired relevant confidential information from the prospective client. However, the lawyer may represent an opposing party in the same matter if the lawyer has not learned sensitive, confidential information in that first meeting. Under the Utah Rules of Professional Conduct in effect at the time of the issuance of this Opinion, if the attorney may not undertake the representation, the entire firm of that attorney is also disqualified.
APPENDIX
[Proposed] Utah Rules of Professional Conduct 1.18: Duties to Prospective Client
(June 6, 2005)
(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or;
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Footnotes
1. At the time this Opinion is being issued, the Utah Supreme Court has proposed to adopt Rule 1.18 of the ABA Model Rules of Professional Conduct, “Duties to Prospective Clients.” If finally adopted, Rule 1.18 will make explicit most of the conclusion we have reached here, but will liberalize the standards governing the disqualification of law firms in certain situations by permitting screening of an individually disqualified attorney. See the Appendix to this Opinion for the full test of proposed Rule 1.18.
2. Utah Ethics Advisory Op. 97-02, 1997 WL 45141 (Utah St. Bar) (emphasis added). The opinions of the Ethics Advisory Opinion Committee can be found at http://www.utahbar.org/-rules_ops_pols/Welcome.html.
3. See note 1, supra.
4. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 90-358 (1990).
5. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15(1)(a) (2000) (hereinafter “RESTATEMENT”).
6. GEOFFREY C. HAZARD, JR. & W. WILLIAMS HODES, THE LAW OF LAWYERING § 2-5, at 2-7 (3d ed., 2003 Supp.)
7. RESTATEMENT § 14.
8. Hazard & Hodes § 2.5, at 2-8 (2004 Supp.).
9. Id. § 9.15, at 9-29 (2004-2 Supp.).
10. Id. § 9.11, at 9-45 (2004-2 Supp.).
11. Id. § 21A.5, at 21A-9 (2005-1 Supp.).
12. Id.
13. Utah Rules of Prof’l Conduct 1.9(b) (2004).
14. Utah Rules of Prof’l Conduct 1.6(b) (2004).
15. Clark v. United States, 289 U.S. 1, 14 (1933).
16. 880 F.Supp. 1487, 1491 (D. Utah, 1995).
17. RESTATEMENT § 15, cmt. (c).
18. [Proposed] Utah Rules of Prof’l Conduct Rule 1.18(c). See note 1, supra.