Ethics Advisory Opinion No. 09-01

Issued February 23, 2009
1. Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites?

2. Opinion: Advertising may not be “false or misleading”. Testimonials or dramatizations may be false or misleading is there is substantial likelihood that a reasonable person will reach a conclusion for which there is no factual foundation or will form an unjustified expectation. The inclusion of appropriate disclaimer or qualifying language may prevent testimonials or dramatizations from being false or misleading.
3. Background: As this Committee explained in Opinion No. 00-02, “The U.S. Supreme Court has made it clear that public communication concerning a lawyer’s services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. The cardinal rule concerning all public communication about a lawyer and her services is that the communication not be false or misleading.” 1
4. Since we issued our most recent opinion regarding advertising, Rule 7.1 of the Utah Rules of Professional Conduct (and of the Model Rules) has been amended to include only the simple paragraph set forth below. The amendments deleted subsections (b) and (c) which had specified that a communication was “false or misleading” if it “is likely to create an unjustified expectation about results the lawyer can achieve” or if “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” Instead these issues were dealt with less rigidly in the Comments to Rule 7.1. The ABA Ethics 2000 Commission that recommended these amendments to Rule 7.1 explained its rationale:
The Commission recommends deletion of this specification of a “misleading” communication because it is overly broad and can be interpreted to prohibit communications that are not substantially likely to lead a reasonable person to form a specific and unwarranted conclusion about the lawyer or the lawyer’s services. . . . . The Commission also believes that a prohibition of all comparisons that cannot be factually substantiated is unduly broad. Whether such comparisons are misleading should be assessed on a case-by-case basis in terms of whether the particular comparison is substantially likely to mislead a reasonable person to believe that the comparison can be substantiated. . . . . 2
5. While some state regulators retained the old language and other regulators adopted detailed categories of statements that are “false or misleading,” a leading commentator and original draftsperson of the Model Rules recommends against such an approach:
In the end, the best course for state regulators is to adopt the current simple and direct language of Model Rule 7.1 and issue interpretive guidelines . . . .Attempts to impose more burdensome and categorical prohibitions are likely to lead to little but constitutional litigation. GEOFFREY HAZARD, W. WILLIAM HODES, AND PETER JARVIS, THE LAW OF LAWYERING (3rd) §55.3
6. Analysis: We issue the following “interpretive guidelines” relying upon suggestions of commentators, other state’s suggestions and case law. We also suggest that Utah lawyers be aware of Utah’s Truth in Advertising Statute, Utah Code Ann. §13-11a-1 et. seq; Utah’s Consumer Sales Practices Act, §13-11-1 et. seq. which prohibit deceptive acts or practices.

Ethics Advisory Opinion No. 09-02

Issued August 11, 2009
The five issues addressed in this Opinion are based upon the following general scenario:
A lawyer represents many homeowner’s associations (both condominium and PUD) in various matters, at various times. Many of these associations are nonprofit corporations and others are common law associations. They are all operated through elected volunteer owner representatives who are organized into boards of directors (although they sometimes use diferent names for the representatives such as the management committee or board of trustees). Many
of these boards hire professional managers, as they lack the experience, skils, and time to properly manage the associations. Some associations that the lawyer represents were referred through managers of the associations. Some of these managers work for management companies that manage many associations, thus providing an incentive for the lawyer to develop a good relationship with the manager to hopefully facilitate future referrals of other associations that the manager manages. It is also important for the lawyer to maintain a reasonably good relationship with the manager related to the lawyer’s clients managed by that manager, because it is common in the industry for the manager to act as the point of contact with the attorney on legal matters involving an association. The lawyer does not represent or work directly for the manager or management companies.

1. Issue 1: Given the general circumstances described above, can the lawyer ethically represent associations in matters that do not include adversarial situations with the manager, and is any disclosure required?
Opinion: The lawyer may represent the associations, and no disclosure is required.
Analysis: Under the circumstances summarized in the Introduction, there does not appear to be a conflct of interest in the scenario described in Issue 1. Assuming compliance with the Rules of Professional Conduct generally, the representation does not appear to implicate Rule 1.7 1, and it does not appear that disclosure would be required.
2. Issue 2: Given the general circumstances described above, can the lawyer represent the association in a lawsuit against the manager, and is any disclosure required?
Opinion: conflct of interest exists under this scenario. Whether the clients may consent to the representation wil depend upon the circumstances of the representation.
Analysis: This scenario clearly creates a conflict under Rule 1.7(a), as “there is a significant risk that the representation of (the homeowner’s association (‘HOA’)) wil be materially limited by. . . a personal interest of the lawyer.” Lawyer has a personal and financial interest in preserving a friendly relationship with Manager, both to enhance the likelihood of future business referrals, and to preserve existing business relationships with other HOAs with which the manager is affiiated 2.
“Ordinarily, clients may consent to representation notwithstanding a conflct. However, as indicated in (Rule 1.7) paragraph (b), some conflcts are nonconsentable, meaning that the lawyer involved canot properly ask for such agreement or provide representation on the basis of the client’s consent 3. A conflct of interest is consentable if each of the four provisions of Rule 1. 7(b) is satisfied:
(b)(1) the lawyer reasonably believes that the lawyer wil be able to provide competent and diligent representation to each affected client;