Ethics Advisory Opinion No. 11-02



Opinion No. 11-02

Issued November 8, 2011

1.  ISSUE:  If an indigent litigation client asks his attorney for a financial gift, is the attorney permitted to provide that charitable gift or do the Utah Rules of Professional Conduct prohibit doing so?

2.  OPINION:  Utah Rule 1.8(e) prohibits “financial assistance” in connection with litigation, which includes paying living expenses for a client.  However, a lawyer representing an indigent client may pay court costs, expenses of litigation and “minor expenses reasonably connected to the litigation.” The rule does not prohibit occasional small charitable gifts.

3.  BACKGROUND:  The attorney represents, by appointment, a death row inmate in a state habeas corpus matter.  The client has asked the attorney to contribute a regular sum each month to the client’s prison account for his personal use (e.g. purchase of items from the commissary such as snacks, items of clothing, entertainment such as a television, radio or CD player.)  The attorney suggests that many such clients suffer from mental illness and that CLE events have suggested making such charitable donations to elicit trust from difficult clients.  Death row inmates have their basic needs provided for (food, clothing, necessary toiletries, paper) and are permitted to spend up to a certain amount each month in the commissary for items beyond this.  They may earn some small amount of money doing prison work and may receive gifts.

4.  ANALYSIS:  This situation is addressed by Rule 1.8(e) of the Utah Rules of Professional Conduct.  It is useful to understand the common law history leading up to this rule, to consider cases and opinions from other jurisdictions, and lastly to be aware of the differences between Utah’s version of this rule and the Model Rules of Professional Conduct and other states’ rules.

5.  Utah’s Rule 1.8, like the Model Rule, is entitled “Conflict of Interest:  Current Clients:  Specific Rules.”  Utah Rule 1.8(e) reads in relevant part:

(e)A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:  (e)(1) a lawyer may advance court costs and expenses in litigation . . . and (e)(2) a lawyer representing an indigent client may pay courts costs and expenses of litigation and minor expenses reasonably connected to the litigation, on behalf of the client. (emphasis added)

6.  Hazard and Hodes’ The Law of Lawyering explains that Rule 1.8 “presents a series of specific applications of the basic conflicts of interest principles . . . . [where] most . . . involve situations in which the lawyer’s own interests threaten to adversely affect the representation. . . .”[1] Regarding the specific prohibition of providing financial assistance to a client in connection with litigation addressed in Model  Rule 1.8(e), Hazard et al. note that this rule derived from the common law prohibition of champerty and maintenance.[2]

Champerty[3] consisted of ‘investing’ in the cause of action of another by buying a certain percentage of the hoped-for recovery. . . .Maintenance was a similar offense, where the form of investment was providing living or other expenses to a client so that the litigation could be carried on.  The prohibition applied to lawyers and nonlawyers alike and was generally enforced via the criminal law. The main harm . . . was said to be ‘stirring up litigation.’ It was feared that plaintiffs would be encouraged to bring suits they would otherwise forgo, thus adding to the public cost of administering justice, imposing unjust burdens on defendants, and enriching lawyers.[4]

Ethics Advisory Opinion No. 11-03


Opinion No. 11-03
Issued November 15, 2011

1. ISSUE: Is it a violation of the Utah Rules of Professional Conduct for an attorney to ask a law student to undertake research using the law student’s free account and in breach of the student’s contract with Lexis and/or Westlaw?

2. OPINION: A lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct.

3. BACKGROUND: Certain electronic research services such as WESTLAW and LEXIS allow law students access to their services. That access is given to further the student’s education. The student is required to sign an agreement that the services will be used only for educational or non-profit use.

For example, Westlaw limits the student’s use to “Educational Purposes.” That term means:
“If User is a career services personnel, Educational Purposes include Westlaw access and use solely for placement purposes. Any other use, including any use in connection with User’s employment outside of the Law School and any Student internship or externship, is prohibited. Notwithstanding the foregoing, User may, however, access Westlaw by means of User’s Law Student Password for purposes of unpaid public internships or externships (excluding those sponsored by a state or local government or a court. Any other use, including any use in connection with the employment or externship of User, if User is a student, is prohibited. . . )”
Lexis defines appropriate use as:
“Students may request access to LexisNexis using their Law School Education ID . . . for academic purposes. Academic purposes include, but are not limited to:
Research skill improvement, such as improving research efficiency and sharpening your area of law research skills as you prepare for practice
Summer School or course work
Work as a professor’s research assistant
Internship or externship for school credit
Study for the Bar Exam
“Academic purposes” do not include research conducted for a law firm, corporation, or other entity (other than a professor or law school) that is paying the student to conduct research, or that is passing along the cost of research to a third party. These are deemed “commercial purposes.” 1
Numerous students have reported that practicing attorneys have conditioned initial or continuing employment as a law clerk upon the student’s violation of the agreement with the research services. In other instances, lawyers have knowingly used information retrieved from the electronic services in violation of the student’s contractual agreement.

4. ANALYSIS: When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.
5. Rules of Professional Conduct, Rule 5.3 place obligations on a lawyer supervising non-lawyer assistants. A lawyer with supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Further, the lawyer violates ethical obligations if the lawyer orders or with knowledge of the specific conduct (misuse of the electronic services) ratifies conduct of the non-lawyer which would be a violation of the lawyer’s own ethical duties. Finally, it is a violation of Rule 5.3 if the lawyer knows of unethical conduct by the non-lawyer and does not take steps to avoid the misconduct or take reasonable remedial actions.

Ethics Advisory Opinion No. 11-01


Opinion Number 11-01
Issued August 24, 2011

1. ISSUE: Two interrelated issues are before the Committee: First, may an attorney representing a plaintiff in a personal injury action indemnify and hold harmless a party being released from any medical expenses and/or liens which might remain unpaid after the settlement funds are fully disbursed? Second, in a personal injury action, may an attorney request another attorney to indemnify and hold harmless a party being released from any medical expenses and/or liens which might remain unpaid after the settlement funds are fully disbursed?

2. OPINION: It is a violation of the Utah Rules of Professional Conduct and improper for a plaintiff’s or claimant’s lawyer to personally agree to indemnify the opposing party from any and all claims by third persons to the settlement funds. As it is professional misconduct for a lawyer to “knowingly assist or induce” another lawyer to violate the Utah Rules of Professional Conduct, it is improper for a lawyer to request a plaintiff’s or claimant’s attorney to indemnify or hold harmless a party being released from third party claims which may remain unpaid after the settlement funds are fully disbursed.

3. BACKGROUND: It has become an increasingly prevalent practice in Utah in recent years, as it has in other states, for lawyers representing plaintiffs to be asked to indemnify the opposing party and counsel from any and all claims by third persons to the settlement proceeds. This obviously arises most commonly, but not necessarily always, in personal injury actions where third party providers of medical services have colorable claims upon the funds derived from settlement of the claimant’s cause of action against a tort-feasor, usually, but not necessarily always, involving settlement funds provided by an insurer.
4. ANALYSIS: Although these specific issues have not previously come before this Committee, it has the benefit of opinions from several other states which have thoroughly analyzed the questions1. All have come to essentially the same conclusion the Committee has reached in this Opinion.
5. The Committee begins its analysis by discussing, at some length, a lawyer’s duty with respect to property held for clients or third parties. It should be clearly understood that this discussion is essentially for background purposes. This Opinion is in no way contingent upon whether a third party actually has a matured equitable or legal claim interest sufficient to trigger the duties stated in Utah Rule of Professional Conduct 1.15.
6. The general duty of a lawyer toward clients and third parties is set forth in Utah Rule of Professional Conduct 1.15, which states as follows:
(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state where the lawyer’s office is situated or elsewhere with the consent of the client or third person. The account may only be maintained in a financial institution that agrees to report to the Office of Professional Conduct in the event any instrument in properly payable form is presented against an attorney trust account containing insufficient funds, irrespective of whether or not the instrument is honored. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.