June 2, 2006
Issue: May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders?
If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent violation of the protective order?
Would it be permissible for the County Attorney’s Office to provide such legal assistance to victims of domestic violence as a governmental service and thereafter prosecute subsequent violations of the protective order if the civil division of the office assisted in the civil protective order and the criminal division in any subsequent prosecution?
Opinion: While statute, ordinance or employment contract may prohibit a government lawyer from representing individuals on a pro bono basis, the only ethical prohibition would arise from conflicts of interest provisions. Conflicts of interest rules would not prohibit the initial private representation but would prohibit the individual government lawyer from thereafter having any involvement in the prosecution of the abuser. It is conceivable that the pro bono work of one government lawyer in a large office with different divisions would have no impact upon another government lawyer in a different division handling a related matter for the government. However, it would be improper for the second lawyer to undertake to represent the governmental entity if the pro bono work undertaken by the first lawyer could create a material limitation for that second lawyer. Finally, two separate divisions of a governmental office can be established to undertake potentially conflicting work, provided that attorneys in one unit do not in any way “participate” in the work of the other unit (best achieved through “screening”) and provided that any representation of an individual or non-governmental entity fully complies with Rule 1.8(f).
Facts: The County Attorney’s Office seeks to help victims of domestic violence obtain protective orders in civil cohabitant abuse actions, since such individuals may be deterred from obtaining this protection without legal representation. The County Attorney seeks to provide full representation, including appearing in court on behalf of the victim, not merely to provide information sufficient to permit the victim to proceed pro se. 1 The County Attorney’s Office, however, does not wish to provide this assistance at the expense of being able to prosecute the abuser, either for the initial incident or for future incidents, including incidents that are violations of the order. The County Attorney’s Office asks about the possibility of one attorney providing this representation “pro bono” and about the possibility of a division of the Office providing this representation as part of its regular public service. Both scenarios are addressed here.
Authority: The questions must be answered in light of the Utah Rules of Professional Conduct (2005) and EAOC Opinions:
Rule 1.7 regarding concurrent conflicts of interest (actual and potential) of the attorney
Rule 1.9 regarding successive conflicts of interest of the individual attorney
Rule 1.11 regarding conflicts of interest for government lawyers
Opinion No. 98-01
Opinion No. 01-06A
Rule 1.7 provides in relevant part:
. . . A lawyer shall not represent a client if . . . There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or . . . by a personal interest of the lawyer. (more…)
June 2, 2006
Issue: Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the “client’s file” within the meaning of Rule 1.16 which must be delivered to the client at the termination of the representation.
Opinion: An unexecuted legal instrument such as a trust or will, or an unfiled pleading, such as an extraordinary writ, is not part of the “client’s file” within the meaning of Rule 1.16(d). The lawyer is not required by Rule 1.16 to deliver these documents to the client at the termination of the representation.
Facts: An attorney accepted a fixed fee engagement to prepare for a client a trust, a will and a petition for extraordinary writ. The lawyer sent a retainer agreement to the client reflecting the fixed fee engagement, but the client did not sign the retainer agreement. The lawyer prepared the trust, will and petition for extraordinary writ, but the client refused to pay the lawyer for the services, and the client terminated the attorney-client relationship. The client is now demanding that the lawyer deliver to the client as part of the “client’s file” the unexecuted trust and will, and the unfiled extraordinary writ.
Analysis: Rule 1.16(d) of the Utah Rules of Professional Conduct differs from the ABA Model Rule 1.16(d) in that the Model Rule permits the lawyer to retain the “client’s file” following the termination of the attorney-client relationship if state law affords the lawyer a retaining lien against the client’s file for purposes of securing the lawyer’s fee. Model Rule 1.16(d) states: “The lawyer may retain papers relating to the client to the extent permitted by other laws.”
Utah Rule 1.16(d) was amended to delete from Rule 1.16(d) the right of the lawyer to assert a retaining lien against the “client’s file”. Utah Rule 1.16(d) states: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.”
Comment 9 to Rule 1.16(d) explains the amendment to Utah Rule 1.16(d) as follows: “The Utah Rule differs from the ABA Model Rule in requiring that papers and property considered to be part of the client’s file be returned to the client notwithstanding any other laws or fees or expenses owing to the lawyer.”
The amendment of Utah Rule 1.16(d) followed the Utah Supreme Court’s decision in Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996). In Dawson the plaintiff law firm sued its client for payment of its attorney’s fees. In a “postscript” to its decision, the Utah Supreme Court stated that it disapproved of the plaintiff law firm’s assertion of a retaining lien in the defendant’s file during on-going litigation following the termination of the attorney-client relationship. Although the Court affirmed in part a judgment in favor of the plaintiff law firm for unpaid fees and costs, the Court stated that the plaintiff law firm had failed to “take steps to the extent reasonably practicible to protect the client’s interest, such as surrendering papers and property to which the client is entitled (quoting from Rule 1.16(d))” when the law firm refused to surrender to defendant her file during the course of on-going litigation. 1 (more…)
Issued December 8, 2006
1. Issue: Under what circumstances may a Utah lawyer be personally involved in a lending transaction to finance a client’s cause of action or obtain funds for the payment of the lawyer’s legal fees and expenses?
2. Conclusion: (a) A lawyer may not directly or indirectly represent a lender to the lawyer’s client in connection with a loan that is made for the purpose of enabling the client to pay the lawyer’s fees or costs. (b) A lawyer may not participate in a contingent, non-recourse loan with a third-party lender to finance the costs and expenses of litigation where the terms of the lending arrangement create the potential that the financial risk to the lawyer of the lending arrangement are lessened if the lawyer obtains no recovery for the client.
3. The Committee has received two separate requests regarding the propriety of financial transactions between Utah lawyers and third-party lending sources. Although the factual backgrounds are substantially different, they both raise similar questions concerning lawsuit funding for clients who may not be in a position to pay a lawyer’s ongoing fees or costs up front.
4. Background for EAOC File No. R0206: In the first situation, a Utah lawyer (“Lawyer”) has clients who cannot pay Lawyer’s retainer or flat fee because they do not have sufficient available cash on hand, although they are employed and could repay a loan over time. Lawyer proposes to organize and manage a consumer money-lending company (“Affiliated Lending”) as a limited liability company that would be capitalized and owned by Lawyer’s relatives. Affiliated Lending would be a manager-managed limited liability company (“LLC”), and Lawyer would be the sole manager of the LLC. Lawyer would review loan applications, initiate and service loans for Affiliated Lending. Lawyer also would receive compensation from Affiliated Lending for these services. Affiliated Lending would consider and make loans to the public, as well as to Lawyer’s clients. If the client were subsequently to default on a loan, any judicial collection action would be referred by Affiliated Lending (presumably acting through its manager-lawyer) to a third-party collection agency. Lawyer would never represent Affiliated Lending in pursuing a collection action against one of Lawyer’s clients.1
5. In referring clients to Affiliated Lending, Lawyer would explain potential conflicts of interest to the client in a written disclosure. This disclosure would explain that Affiliated Lending is owned by Lawyer’s relatives, that Lawyer manages Affiliated Lending, that the client has the right to have the arrangement reviewed by independent counsel, that there would be severe repercussions to the client if there is a default on a loan, and that a potential conflict could arise between Lawyer and the client if the client did default. The client would be required to sign this written disclosure before applying for a loan from Affiliated Lending. The loans would be made at or below market rates for comparable high risk, short-term loans.2
6. Analysis: The proposed lending-fee arrangement here places Lawyer in a dual relationship with conflicting loyalties. On the one hand, Lawyer owes a duty of loyalty to the client, while, at the same time, Lawyer owes a duty of loyalty to Affiliated Lending as its sole, managing employee. The relationship between Affiliated Lending and the client is adverse: Affiliated Lending is a creditor of the client. As such, Lawyer’s duties to both the client and Affiliated Lending are in conflict. More importantly, Lawyer’s dual loyalties make it difficult, if not impossible, for Lawyer to provide objective, unbiased advice and representation to the client where, by doing so, the interests of Affiliated Lending might be impaired, or the personal interests of Lawyer in Affiliated Lending might be adversely affected. (more…)
Issued December 8, 2006
1. Issue: May a current or former client’s access to information in his client file in a criminal matter be restricted by his attorney?
2. Opinion: Absent prosecutorial or court-ordered restrictions, a former client’s access to his client file may not be restricted. In limited circumstances, a lawyer may delay transmission of certain information in a current client’s file.
3. Facts: In the course of representation, a public defender may develop client files that contain crime-scene photos, autopsy photos, victim body photos (such as in criminal or physical-abuse cases), third-party medical reports, victim-identification information (social security numbers, addresses and telephone numbers), psychological and psychosexual evaluations and reports regarding the client and others. Some of these documents in the client file may have been obtained through discovery or be subject to court-ordered or other prosecutorial restrictions on dissemination to the client. Not infrequently, current and former clients in criminal matters request all or portions of their files that may contain restricted materials.
A. As to Current Clients.
4. Rule 1.4 sets out the general rule:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.1
5. The obligation of a lawyer to keep the client “reasonably informed” and “promptly comply with reasonable requests for information” contained in Rules 1.4(a)(3), and (a)(4), implies that the lawyer may, under some circumstances, withhold information from a client whose request may be viewed as “unreasonable.” This is supported in comment  to Rule 1.4:
 In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not withhold information to serve the lawyer’s own interest or convenience or the interests or convenience of another person. Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule 3.4(c) directs compliance with such rules or orders.2
Comment  makes clear that rules and court orders restricting disclosure of information that may become part of the client file cannot be disclosed to the client.
6. There are several rules and statutes that permit or impose dissemination restrictions on sensitive materials. Rule 16(e) of the Utah Rules of Criminal Procedure allows limits to be imposed on the use of information provided through discovery. Rule 16(f) further provides for the entry of court orders limiting dissemination of sensitive discovery.3 Information obtained from a governmental entity may be subject to court orders restricting dissemination under the Governmental Records Access and Management Act.4 (more…)
Issued December 30, 2006
1 Issue: Do the Utah Rules of Professional Conduct1 preclude a lawyer from participating in an ad hoc legal advisory group to a private, nonprofit, public interest legal organization, if the persons served by the legal services organization have interests adverse to the interests of a client of the lawyer or the lawyer’s law firm?
2 Conclusion: Generally, no. Rule 6.3, with respect to legal services organizations, and Rule 6.4, with respect to organizations involved in the reform of law or its administration, provide that service as an officer or director of such organizations or membership in such organizations does not by itself create an attorney-client relationship with the organization or the organization’s clients. These rules do require that a lawyer be observant of the lawyer’s duties under Rule 1.7 to the lawyer’s clients and to the clients of the lawyer’s firm. Rule 6.3 requires that the lawyer not knowingly participate in a decision of the organization that are incompatible with the lawyer’s obligations under Rule 1.7 or that could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer or on the representation of a client of the lawyer or the lawyer’s firm. Rule 6.4 requires that when the lawyer knows a client of the lawyer may be materially benefited by a decision of the law reform organization, that the lawyer-member disclose this fact to the organization. Under some circumstances, a lawyer’s participation on an ad hoc litigation advisory group may create an attorney-client relationship with the organization or the organization’s clients requiring the lawyer to comply with Rules 1.6, 1.7 and 1.9 before representing or continuing to represent clients adverse to the interests of the organization or the organization’s clients in such matters.
3 Background: The legal services entity requesting this opinion defines itself as a private, nonprofit, public interest organization. The organization’s mission is to enforce and strengthen laws that protect the opportunities, choices and legal rights of certain disadvantaged people in Utah. The organization provides free legal services to such individuals.
4 In an effort to improve services and provide the best legal representation possible, the organization’s board of trustees proposes to establish an ad hoc litigation advisory group consisting of experienced and knowledgeable private attorneys. This advisory group of pro bono attorneys would be called upon from time to time to answer questions and provide advice on various issues that arise as the organization represents various clients. The organization anticipates most questions would be procedural in nature or would involve general litigation strategy issues.
5 In the process of establishing the litigation advisory group, questions have arisen about possible conflicts between the interests of clients of advisory group members or their law firms and the organization and/or the organization’s clients. Specifically, the organization has asked whether Rules 6.3 or 6.4 of the Utah Rules of Professional Conduct apply to members of a litigation advisory group, and if so, under what circumstances the lawyer-members who represent clients or whose law firms represent clients with interests adverse to the organization’s clients could nonetheless serve on the advisory group. (more…)