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.
Ethics opinions focus on “the ethical propriety of anticipated professional or personal conduct of Bar members.” Ethics Advisory Opinion Committee Rules of Procedure I(a)(1). Accordingly, the Committee does not entertain requests for legal opinions or opinions on any other subject outside the scope of its authority. Moreover, the Committee may exercise its discretion to decline a request if it “does not involve a significant subject or involves isolated conduct,” id. R. I(b)(3)(i), or if the request “is clearly resolved by applicable Committee opinions, the Rules of Professional Conduct, statutes or case law,” id. R. I(b)(3)(ii). The Committee also may, in its discretion, decline an otherwise appropriate request if it involves a matter that is already the subject of review by a court or by the Office of Professional Conduct, and may decline a request to opine upon the propriety of the conduct of an attorney who is not the author of the request.
The Committee is not the Office of Professional Conduct. Nevertheless, because an attorney from the Office of Professional Conduct serves as a consultant to the Committee, its views and perspectives are available to the Committee.
How Do I Request an Ethics Advisory Opinion?
The Board of Bar Commissioners, any member of the Bar in good standing, or any “person with a significant interest in obtaining an advisory opinion on legal ethics may request an opinion.” Id. R. III(a)(1). Requests must be in writing, and include a brief description of the facts; a concise statement of the issue presented; and relevant citations to rules and ethics opinions, judicial decisions, and statutes. See id. R. III(a)(2), (3). The requests may be submitted directly to the Committee, or filed with the Board of Bar Commissioners or the Office of Professional Conduct, in which case those entities must forward the request to the Committee. See id. R. III(a)(2).
Once received, the Committee reviews each request, making a preliminary determination as to whether it is within the Committee’s authority, should be declined, or should be the subject of an opinion. The Chair or the Chair’s designee conducts a preliminary determination, which is followed by the full Committee’s review. Regardless of the Committee’s ultimate disposition of the requests, each receives considerable effort and discussion. In appropriate circumstances, the Committee may seek the views of appropriate Bar sections or committees, request public comment, invite the requestor to make additional oral or written presentations, or consult with the Office of Professional Conduct. See id. R. III(c).
The identities of persons or entities involved in making a request for an ethics opinion are confidential and shall not be disclosed in a published opinion without their consent. See id. R. VI. All voting and non-voting members of the committee and their staff are bound to maintain the confidentiality of the requesting persons or entities, and further, may not disclose the particulars of pending requests or circulate draft opinions. See id. (noting some limited exceptions for circulating drafts among colleagues and consulting non-Committee members concerning general issues).
In the event you disagree with an ethics opinion, recourse is available. See id. R. III(e). Generally, ethics opinions and letter responses are subject to review by the Board of Bar Commissioners within thirty days of their issuance. Also, a request for reconsideration of an ethics opinion may be filed with the Committee at the requesting party’s option. The ethics opinion under review “shall remain in full force and effect for the period during which the review is pending, unless the Board, in its discretion, issues a stay pending the outcome.” Id. R. III(e)(1)(iii). Appeal procedures for letter responses are handled a bit differently, with a mandatory request for reconsideration to the Committee. See id. R. III(e)(2).
What Does an Ethics Opinion Do For Me?
The ethics opinions are advisory in nature, and assist attorneys in avoiding unethical conduct. Assuming a factual context similar to what was posed by the request, a Utah lawyer who acts in a manner that is consistent with what was prescribed in an ethics opinion enjoys a “rebuttable presumption” of having conformed his or her conduct to the Utah Rules of Professional Conduct.
Where Can I Find Ethics Opinions?
An index of the Committee’s opinions can be found at: http://www.utahbar.org/rules_ops_pols/index_of_opinions.html
Recent ethics opinions of interest include:
Opinion No. 09-01
Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites? See Utah State Bar Ethics Advisory Opinion Committee, Op. 09-01 (2009).
Opinion: Advertising may not be “false or misleading.” Testimonials or dramatizations may be false or misleading if 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. See id.
Opinion No. 08-01
Issue: May an attorney provide legal assistance to litigants appearing before a tribunal pro se and prepare written submissions for them without disclosing the nature or extent of such assistance? If so, what are the attorney’s obligations when full representation is not undertaken? See id. Op. 08-01 (2008).
Opinion: Under the Utah Rules of Professional Conduct, and in the absence of an express court rule to the contrary, a lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure to others of the nature or extent of such assistance. Although providing limited legal help does not alter the attorney’s professional responsibilities, some aspects of the representation require special attention. See id.
Opinion No. 07-01
Issue: May a lawyer purchase the exclusive right to referrals generated from the membership base of an organization whose members from time to time may have need of the legal services offered by that lawyer? See id. Op. 07-01 (2007).
Opinion: The proposed arrangement, which contemplates the exclusive funneling of referrals to one lawyer or firm, is not permitted, as it violates Utah Rule of Professional Conduct 7.2(b), which prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services. The fact that the recommendation is made by an organization does not change the outcome here. See id.
Opinion No. 06-05
Issue: Do the Utah Rules of Professional Conduct 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? See id. Op. 06-05 (2006).
Opinion: Generally, no. Rule 6.3 of the Utah Rules of Professional Conduct, 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 is 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. See id.