Ethics Advisory Opinion No. 12-03

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 12-03
Issued December 13, 2012

ISSUE

1. May a community association management company profit from legal work performed by the company’s in-house attorney?

OPINION

2. A community association management company’s profiting from legal work performed by the company’s in-house attorney constitutes the improper sharing of fees with a non-lawyer in violation of Utah Rule of Professional Conduct 5.4(a).[1]

BACKGROUND

3. An attorney is employed as in-house counsel for a community association management company. Although the company does not profit from the legal work the attorney performs, the company believes that other community association management companies routinely profit from the legal work performed by their respective in-house attorneys. Specifically, these companies collect a fee from their clients for legal services at a rate that is higher than the cost the companies incur in employing their corporate attorneys. The issue addressed in this Opinion stems from this practice.

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Ethics Advisory Opinion No. 12-02

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 12-02
Issued December 13, 2012

ISSUE

  1. What are the ethical and practical considerations applicable to attorneys representing clients in the state of Utah under flat fee or fixed fee agreements (hereinafter referred to as “flat fee agreements”)?

OPINION

  1. The permissibility of flat fee agreements in Utah is well established, subject always to the requirements of the Utah Rules of Professional Conduct. Utah lawyers may use such agreements under circumstances that ensure that clients will not be charged an unreasonable fee, as prohibited by Rule 1.5, and that client funds will not be comingled with the attorney’s funds as prohibited by Rule 1.15. Whether a flat fee arrangement complies with these rules depends heavily on an analysis of the applicable facts and circumstances. Except in rare circumstances where a fee may reasonably be earned upon receipt, as described in this opinion, fee agreements should not describe such fees as “non-refundable,” as such fees are always subject to refund in the event they are or become unreasonable under the particular facts of the case. Representation that a flat fee is nonrefundable is deceptive and violates Rule 8.4.
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Ethics Advisory Opinion No. 12-01

UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE

Opinion No. 12-01
Issued January 10, 2012

ISSUE

1. Three related questions are before the Committee. The attorney states that she separately represented a woman and a man (the “wife” and “husband,” respectively), both prior to their marriage. She subsequently represented both parties after they were married. The parties subsequently went to trial seeking a divorce (the “divorce”). The first question is whether representation of the wife, prior to the marriage of the parties, in litigation (the “separate action”) constitutes a conflict which would preclude the attorney from representing the husband on appeal in the divorce? Second, does the fact that the attorney testified at the divorce trial as a percipient witness, preclude her from representing the husband on appeal. Third, does representation of the wife in litigation involving both husband and wife against a third party during the course of their marriage (the “joint litigation”), wherein, notwithstanding the attorney’s vigorous but unsuccessful advocacy of the wife’s position, the wife was dismissed from the case, preclude the attorney from representing the husband on appeal in the divorce, particularly where the attorney now believes the trial court was correct in dismissing the wife from the joint litigation?
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