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). (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. (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. (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. (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. (more…)