Ethics Advisory Opinion Committee
Opinion Number 16-02
Issued March 23, 2016
- What are the ethical constraints on lawyers settling potential legal malpractice claims or bar complaints with clients?
- A lawyer may neither request nor agree to limit his or her duties to the administration of justice regarding filing or participating in a bar complaint.
- A lawyer may not request that a present or former client refrain from filing or participating in a bar complaint as a condition to settling disputes between the client and the lawyer.
- A lawyer may not participate in an agreement that limits the lawyer’s liability for malpractice or prohibits the lawyer from accepting future clients except as permitted by rule or law.
- There are three factual situation to consider:
- In the context of settling civil litigation a lawyer for one party demands as a condition of settlement that the lawyer for the opposing party agree to forgo filing or participating in a bar complaint.
- A lawyer is settling a dispute with a former client. That client has threatened to file a bar complaint which the lawyer believes frivolous. As a condition of settling the dispute the lawyer wishes to include a provision precluding the former client from filing or participating in a bar complaint.
- Finally, in consideration of settlement, a party demands conditions that would limit the lawyer’s ability to take further cases against the settling party or waives a former client’s malpractice claim.
- Requesting an opposing attorney, an opposing party, or a client or former client to refrain from filing or participating in a bar complaint as a condition of settlement of outstanding disputes violates several of the Rules of Professional Conduct including Rules 8.3 and 8.4. Agreeing to refrain from filing or participating in such a complaint also violates these same rules.
- Rule 8.3 of the Rules of Professional Conduct requires that a lawyer who has knowledge “that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall inform the appropriate professional authority” (emphasis added). Accordingly, Rule 8.3(a) would preclude a lawyer from agreeing to refrain from filing or participating in a meritorious bar complaint.
- Rule 8.4 (a) provides that “it is professional misconduct” for a lawyer to “knowingly assist or induce another” to “violate . . .the Rules of Professional Conduct.” Because it is unethical for an attorney to agree not to report a serious breach of the Rules of Professional conduct, Rule 8.4 (a) would preclude a lawyer from making such a request as his conduct would knowingly “assist or induce” a violation of the other lawyer’s obligation to report under Rule 8.3.
- Demands to forego reporting as a condition of settlement would hinder bar authorities from meeting their responsibilities of deterrence of serious matters and the protection of the public. As the Comment to Rule 8.3 notes, “An apparently isolated incident may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”
- Simply because the opposing party or client is a lay person without duties to the public and the bar does not lessen the misconduct in attempting to obtain an agreement not to file a complaint. It is “professional misconduct” to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(d). Seeking to prevent a client or opposing party from filing or participating in a bar complaint is “prejudicial to the administration of justice.”
Utah State Bar
Ethics Advisory Opinion Committee
Opinion Number 16-01
Issued February 8, 2016
- Lawyer A, a sole practitioner, was retained to represent Wife in divorce matter. Husband retained Lawyer B at Law Firm B to represent him in the divorce. Husband later discharged Lawyer B and Law Firm B, and Lawyer A continued to represent Wife. Lawyer A later joined Law Firm B, and Husband executed a waiver consenting to Lawyer A’s continued representation of Wife, but only for the express purpose of mediation and settlement negotiation. While employed at Law Firm B, Lawyer A obtained no information regarding Husband from Law Firm B. Lawyer A did not access Husband’s electronic or hard file maintained by Law Firm B and did not discuss the case with Lawyer B. Instead, all information obtained about the case came from Wife and/or third parties. The case settled and Lawyer A withdrew. Lawyer A later left Law Firm B and joined Law Firm C. Lawyer B remains employed at Law Firm B.
- May Wife re-hire Lawyer A at Law Firm C to represent Wife against Husband on various post-decree enforcement issues?
- Yes. When Lawyer A left Firm B and joined Firm C, under Rule 1.9(b) of the Utah Rules of Professional Conduct (the “URPC”), Lawyer A could continue to represent Wife without Husband’s consent because Lawyer A did not obtain any information protected by Rules 1.6 and 1.9(c) about Husband.
- When Lawyer A joined Law Firm B, Husband was a former client of Law Firm B. Rule 1.10(a) provides that [w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 and 1.9….” URPC 1.10(a). This means that if Lawyer B and Firm B have a conflict that would prohibit them from representing Wife against Husband, who is Lawyer B’s and Firm B’s former client, then that conflict would be imputed to Lawyer A now that Lawyer A has joined Firm B, and Lawyer A would not be able to represent Wife, unless an exception applies.
- Because Husband is a former client of Lawyer B and Law Firm B, the first issue is whether pursuant to Rule 1.9, Duties to Former Clients, a conflict exists. Rule 1.9(a) provides that a “lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” URPC 1.9(a) (emphasis added). Here, Husband’s and Wife’s interests are directly adverse in the same matter, the divorce proceedings. However, Lawyer A obtained Husband’s consent in writing to Lawyer A’s continued representation of Wife in the divorce proceedings for the express purpose of mediation and settlement negotiation.
- Rule 1.9(c)(1) further provides that a lawyer or firm may not use information relating to the representation of a former client to the disadvantage of the former client. URPC 1.9(c)(1). In addition to obtaining Husband’s written consent, Lawyer A did not access Husband’s file while at Firm B or speak to Lawyer B about the case involving Husband and Wife. Lawyer A did not obtain any information from Lawyer B or Law Firm B related to their representation of Husband. Because it appears that Lawyer A’s representation of Wife while at Law Firm B complied with Rule 1.9, it was proper for Lawyer A to represent Wife while Lawyer A was at Firm B.
by Jennifer MJ Yim
Conventional wisdom suggests that 50% of people appearing in court will walk away unhappy with their judge, their attorney, and the legal system in general. How could a criminal defendant sentenced to prison have positive things to say about the judge? When the Judicial Performance Evaluation Commission (JPEC) first discussed the statutory requirement to survey litigants and witnesses about judicial performance, some commissioners questioned how such surveying could result in anything but a 50-50 split, with winners praising the judge and losers voicing dissatisfaction. Many judges believe they are powerless to prevent half the participants leaving their courtrooms unhappy.
And yet, for each of the three years that the Administrative Office of the Courts has surveyed court users statewide, over 70% of respondents rated satisfaction with their court experience as “more than adequate” or “excellent.” A 2009 national study sponsored by the National Center for State Courts found that 74% of those with direct court experience expressed confidence in their state courts. If it is not winning and losing that accounts for public satisfaction and confidence in the justice system, then what is it?
Multiple studies show that procedural justice, also called fair processes, makes the crucial difference when people evaluate the quality of their experience with a decision-maker. People are more likely to base their judgments about a decision maker’s performance on whether they experienced fair processes than on whether they were granted advantageous outcomes or were afforded fair outcomes. Despite the counter-intuitive nature of this conclusion, it may sometimes matter less whether you win or lose than how the game was played!
In the judicial arena, procedural justice usually encompasses four factors: participation, neutrality, trustworthiness, and dignified and respectful treatment.
Participation: Was the party afforded an active voice in the decision-making process, allowing litigants to feel they have “been heard” by the judge?
Neutrality: Did the judge treat all parties in an impartial manner, basing decisions on objective factors?
Trustworthiness: Did the judge demonstrate concern about the situation? Does the judge appear to have proper motives, adequate reputation, and character to serve as a decision-maker in the case? (Litigants may not feel they have the information necessary to judge judicial competence but feel able to weigh a judge’s motives.)
Treatment with dignity and respect: Was the party treated courteously and as a valued member of society?
Studies show that judges who successfully afford litigants procedural justice based upon the above factors enjoy at least two benefits. First, such judges are more likely to have litigants who express satisfaction with their judge’s performance, regardless of the actual verdict. And second, the litigants are more likely to comply with the judge’s orders. In other words, procedural justice pays dividends both in measures of public trust and confidence as well as in higher levels of compliance with court orders.
What makes these findings even stronger is their replication in numerous settings, including personnel management, banking, law enforcement, correctional institutions, federal aid programs, tax collections, courts, and even with military soldiers in Iraq. In all of these settings, what consistently matters most to people on the receiving end of decisions is whether they believed the processes used to reach the decision were fair. (more…)
by Meb W. Anderson
It is five minutes to five and you are sitting in your office just about to leave for the weekend, when of course the phone rings. It is a former client calling from the county jail. He asks you to mail him his entire client file. You say, “OK, I’ll locate it and send it to you,” and you hang up. On the drive home, you recall that this particular client file contains explicit crime scene photos, third-party medical reports, victim identification information, psychological and psychosexual evaluations, and so on, and you also recollect that a number of these documents are subject to court-ordered restrictions. You also recall, albeit faintly, that at some point in your career someone told you that when a former client requests the file, the Utah Rules of Professional Conduct define what constitutes the file, and require that most, if not all, of it should be turned over to the client.
On Monday morning you ask around the office, but nobody gives you the certainty you desire in addressing this issue. You do some legal research, but continue to feel uncertain. Do you send the former client the entire file, as required by Utah Rule of Professional Conduct 1.16(d)? Do you commit an ethical violation – or worse – if you send the former client the restricted documents? Certainly someone somewhere must have faced a similar ethical dilemma.
A Utah lawyer once confronted this exact scenario. Luckily, this lawyer knew where to turn, and his dilemma became the subject of an ethics opinion. On December 8, 2006, the Utah State Bar Ethics Advisory Opinion Committee issued Opinion 06-04, which advises that: “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.” Utah State Bar Ethics Advisory Opinion Committee, Op. 06-04 (2006).
What is the Ethics Advisory Opinion Committee?
The Ethics Advisory Opinion Committee (“the Committee”) is authorized to issue letter responses and to issue and publish formal written opinions responding to requests from members of the Bar for advisory opinions regarding the ethical propriety of anticipated professional or personal conduct. The Committee consists of fourteen voting members, each of whom is an active member of the Utah State Bar in good standing, and at least one of whom is a sitting or former judge. An attorney from the Office of Professional Conduct serves as a non-voting consultant to the Committee.
The current Committee members are: Maxwell A. Miller, Chair; Judge Kate Toomey, Vice-Chair; Linda F. Smith, Secretary; Nelson T. Abbott; Meb W. Anderson; Alain C. Balmanno; Herschell Bullen; Paul C. Farr; John Morris; Karra J. Porter; John D. Ray; John A. Snow; Ryan Tenney; Shelley Wismer; and Judith D. Wolferts. These individuals represent a broad range of practice areas, and include attorneys in private practice affiliated with firms of all sizes, government employment, and academia.
Each year the Committee receives a variety of requests for ethics advisory opinions concerning Utah lawyers’ ethical behavior under the Utah Rules of Professional Conduct. The Committee responds to all such requests either by issuing a formal ethics opinion to be published and thereby available to Utah lawyers and the public at large, or by issuing a letter response to the requesting party. (more…)