Ethics Advice FAQ's
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Unauthorized practice of law/jurisdictional questions
This inquiry implicates Rule 5.5(c)(4), which allows a non-Utah licensed attorney to practice law temporarily in Utah if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. Comment  affirms that the representation is warranted where the matter has “significant connections” to the jurisdiction where the lawyer is licensed.
Reviewing and drafting contracts on behalf of a company constitutes the “practice of law” in Utah under 14-802, which is defined as the “representation of another by informing, counseling, advising, assisting, advocating for or drafting documents.” For an attorney licensed in another state, representing a Utah company would not be permitted unless the legal work arises out of or is reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted, under Rule 5.5(c)(4). In sum, an out-of-state attorney cannot represent a Utah company where the attorney will be working on matters impacted primarily by Utah law.
Attorneys in this situation should look to the laws of that state to determine if that state considers this conduct the unauthorized practice of law. Utah’s Rule of Professional Conduct, 5.5, affirms that Utah attorneys cannot violate the practice laws of another state.
Rule 5.5 describes the circumstances through which out-of-state attorneys may practice law on a limited basis in Utah. Namely, such temporary representation can occur if done in association with a lawyer admitted in Utah, or if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which they are licensed.
An out-of-state attorney can appear in court in Utah, even if most of their work may take place in another state, but where certain matters stemming from the matter are likely to occur in Utah. The out-of-state attorney can likely appear pro hac vice in Utah, as [Comment 10] to 5.5 states, “a lawyer admitted only in another jurisdiction may engage in conduct temporarily in this jurisdiction in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear.”
Rule 5.5 of Utah’s Rules of Professional Conduct prohibits a lawyer not licensed in Utah from having a “continuous and systematic presence” in Utah for the practice of law. Practice before federal agencies (like USPTO for example) while unlicensed in Utah is allowed because federal law on the matter preempts Utah law. However, 5.5 is not quite settled. Ethics Advisory Opinion 19-03 allows attorneys not licensed in Utah to domicile in Utah while representing non-Utah clients, however Utah’s Office of Professional Conduct has challenged the Ethics Opinion as being inconsistent with the language of the Rule. The Utah Supreme Court has yet to issue a rule on this challenge.
Guidance surrounding practicing pending admission can be found in Rule 14-809.
Rule 1.5 of the Rules of Professional Conduct allow for fee arrangements that are “reasonable,” and where the basis of the fees is clearly described to the client. Attorneys may not enter into a contingency fee arrangement in a family law matter. Utah State Bar Ethics Advisory Opinion 12-02 addresses the ethical and practical considerations of flat fee agreements.
Under the revised Rule 5.4 of the Rules of Professional Conduct, a lawyer or law firm may share legal fees with a nonlawyer if: the fee to be shared is reasonable and the fee-sharing arrangement has been authorized as required by Utah Supreme Court Standing Order No. 15. The lawyer or firm must also provide written notice of the arrangement to the affected client which describes the relationship with the nonlawyer and that the written notice is given before accepting representation or the proposed fee sharing.
No. On December 8, 2020, the Supreme Court issued a press release prohibiting “bare referrals,” or those referral fee arrangements where payment is made by the lawyer to the nonlawyer solely to compensate the nonlawyer for referring a potential client to the lawyer, and where there’s not a preexisting business relationship between the parties.
Yes. Under the revised Rule 1.5, the former prohibition on the division of fees between lawyers who are not in the same firm has been removed.
Client funds and file retention
The determination of whether to open a client trust account depends on when the attorney doing the work receives the funds. If you obtain the funds before you have earned them, Rule 14-1001 requires you to place the funds in a client trust account. If you consider the funds after the transaction is completed however, then the funds are considered “earned” and can be placed directly into your operating or personal accounts.
Ordinarily, 1.15(d) of the Rules of Professional Conduct requires that, at the time of the client’s death, the firm promptly deliver the funds belonging to the client or to a third party if such a party has a legal interest. In cases where it remains unclear to whom the funds should be dispersed, those funds are considered “disputed.” In such cases, Rule 1.15(e) requires that the firm keep the disputed funds in the trust account until the matter is resolved. Funds are disputed if they involve an active claim or the attorney has been unable to locate the party for whom they are owed.
If the funds are not “in dispute,” meaning they are not part of an active claim and if a third party cannot claim an interest in the funds, you should use reasonably diligent efforts to return the funds to the client or their legal representative. If your attempts to contact the client are unsuccessful, you can transfer the funds to the state’s unclaimed property division. Utah State Bar Ethics Advisory Committee Opinion 97-01 addresses the ethical obligations of attorneys to a client or former client when the attorney is unable to locate them.
It is recommended that all attorneys create a contingency plan to detail procedure in the event of their retirement, death, or incapacitation. Absent a plan of this kind, a fellow attorney aiming to assist the firm after an attorney’s death should begin by conducting a thorough accounting of funds in the deceased attorney’s trust account to determine who the funds belong to. Once an attorney has clearly identified the funds in relation to the outstanding clients, the firm should inform the deceased attorney’s clients of the situation and give the clients the opportunity to retain counsel by another attorney in the firm, or elsewhere. Once a thorough accounting of the clients and accompanying funds are completed, and the clients have provided their consent, the client files can be transferred to another attorney in the firm.
Yes. Rule 1.16 requires an attorney to return the client’s file at the termination of representation, as the client file is deemed the client’s “property” under the Rules. If the termination is due to the death of the client, the attorney can return the client’s files only to the client’s legal representative, as the attorney maintains a continuing duty of confidentiality under Rule 1.6, even after the client’s death. Failure to pay is not a part of the analysis.
Attorneys should craft a file retention policy which is discussed with each client at the onset of the attorney-client relationship. As such, the attorney should implement a policy of returning the file to the client at the termination of representation, as the client file is deemed the client’s “property” under the Rules of Professional Conduct. A Utah State Bar Ethics Advisory Opinion Committee’s Opinion 96-02 states, “generally speaking…a client’s property is likely to include at least the material the client has given the attorney, the material the client has directed the attorney to obtain or procure and for which the client has paid, as well as that which constitutes the primary object of the representation.” In the absence of such a policy, and if an attorney retains client funds after the termination of representation, Rule 1.15 of the Rules of Professional Conduct governs the safekeeping of client property, indicating that “complete records of account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after the termination of representation. 1.15(a).
Rule 1.15 of the Rules of Professional Conduct governs the safekeeping of client property, indicating that “complete records of account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after the termination of representation. 1.15(a). Comment 1 to the Rule clarifies this to include, “all property which is the property of clients or third persons, including prospective clients…” While attorneys can digitize copies of client files, the hard copies should be returned to the client before being disposed of, a lawyer who wants to scan closed client files may not then dispose of the hard copy of the files without the client’s permission. The hard copy of the file belongs to the client. It is advisable for the lawyer to discuss file retention with the client during the representation and inform her that the client may retrieve her file t any time, but that after a specified number of years, the lawyer will dispose of it.
Conflicts of Interest
No. Rule 1.7 strictly prohibits the representation where there’s an assertion of a claim by one client against the other client represented by the lawyer in the same litigation. (b)(3). Situations in which informed consent to the representation in spite of a conflict can be found in 1.7(b).
Under Rule 1.7 of the Rules of Professional Conduct, attorneys are prohibited from representing clients who are directly adverse from each other in the same litigation or in instances where there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s interest to another client, a former client, or by a personal interest of the lawyer.
I was recently retained by a client who wishes to sue his employer. The employer then informed me that I engaged in phone consultation with him several months ago, but I do not remember anything about this, as he never retained me. Does the earlier phone consultation with a prospective client create an impermissible conflict for me in the current case?
It depends on the information you obtained in your initial consultation with the prospective client. Rule 1.18 (duties to prospective clients) addresses this issue, with [Comment 6] to the rule stating, “…under paragraph (c), the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter.” A Utah State Bar Ethics Advisory Opinion No. 05-04, drafted before the adoption of 1.18, arrives at the same conclusion that the rule would later approve. The Rule makes evident that it is not necessarily the length of the consultation that matters, but how material the information may be to the prospective client’s case.
Years ago I represented a client in a criminal possession case. Through discovery, I’ve now learned that my current client is an associate of my former client and the two are implicated in larger conspiracy operation. In light of my relationship with the former client, can I continue to represent my client?
No. Under Rule 1.9 of the Rules of Professional Conduct states that a lawyer shall not knowingly represent a person in the same or substantially related matter….about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter unless the former client gives informed consent confirmed in writing.
Proceeding with representation is inadvisable. Even where the matters are not the same, your former representation of the client could potentially impact the current matter. Even if you do not currently recall the representation of the former client, is there any possibility that you could inadvertently reveal confidential information otherwise protected by Rule 1.6? As the legal matter continues, for example, you may recall information about the client that will make it impossible for you to give your current client detached advice.
Yes, keeping in mind the ethical restrictions of Rule 1.8, which require that the terms of the agreement are fair to the client, the terms are in writing and they are understandable to the client, the client is advised in writing that he should seek the independent advice of another lawyer, and the client must give informed consent to the essential terms of the transaction. Comment 1 adds, “the requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation.”
Under Rule 1.7, applying to a firm that is acting as opposing counsel on one of your current cases could ‘materially limit’ your duties to your current client. If you are actively interviewing with this firm, they could even move to disqualify your firm from the case entirely. An attorney can, however, pursue employment with a rival firm, so long as the attorney is not directly working on the matter, and thus won’t impact the diligent representation of a current client of your firm.
No. You must terminate your representation of both clients. Firstly, 1.7(a), you are prohibited from taking a matter directly adverse to a current client. Secondly, if you terminate the representation of one of the parties, you remain prohibited from representing the remaining party against the former client under 1.9(a), where representation in a substantially related matter in which the person’s interests are materially adverse to a former client are prohibited. Oftentimes, custody matters are substantially related because they involve the attorney’s knowledge of both parties financial and familial issues and the information the attorney gained during the initial representation is very likely to be relevant to a subsequent action.
Yes, so long as the identification is not false or misleading, contains a material misrepresentation of fact or law, is likely to create an unjustified or unreasonable expectation about the results the lawyer can achieve, or contains a testimonial or endorsement that violates any portion of the revised Rule 7.1. Recent amendments have eliminated Rules 7.2-7.5 in favor of a condensed Rule 7.1, which removes many of the advertising and solicitation restrictions contained in the former rules.
Recent amendments have eliminated Rules 7.2-7.5 in favor of a condensed Rule 7.1, which removes many of the advertising and solicitation restrictions contained in the former rules. While there are no longer rules for labeling one’s communications as “advertisements,” attorneys are constrained from creating advertisement that is materially misleading or is likely to create an unjustified or unreasonable expectation about the results the lawyer can achieve.
Recent amendments have eliminated Rules 7.2-7.5 in favor of a condensed Rule 7.1, which removes many of the advertising and solicitation restrictions contained in the former rules. Under 7.1(b), solicitations of clients are permissible so long as the lawyer does not interact with a prospective client in a manner that involves coercion, duress, or harassment. A lawyer is also prohibited from providing a nonlawyer a “bare referral fee,” or a fee simply for referring the lawyer.
In all instances, an attorney must be vigilant in protecting their clients’ confidentiality under Rule 1.6. Subsection (b) of the Rule enumerates exceptions to this prohibition, which include revelation in order “to prevent reasonably certain death or substantial bodily harm.” 1.6(b)(1). Unfortunately, 1.6(b)(1) determinations are highly discretionary, and your firm is in the best position to make the assessment of whether you deem the threat to be “reasonably certain” to result in harm or death to the subject of the threat. Any subsequent ethics complaints stemming from the revelation of confidential information would factually analyze the reasonableness of the revelation under the circumstances.
Misconduct by client or attorney
In such instances, attorneys have an obligation under Rule 3.3 of the Rules of Professional Conduct, to take remedial measures, including informing the court if necessary, where they believe a client is engaged in fraudulent conduct (including offering incomplete or misleading evidence) in the proceeding. Attorneys must be cautious in doing so, however, as the duty of confidentiality under Rule 1.6 remains. If you know your former client has made a substantial misrepresentation or intends to engage in fraudulent conduct, 3.3(d) states that disclosure may be required even where information is otherwise protected under 1.6. Lastly, in such instances, withdrawal is proper under Rule 1.16, where either the representation will result in a violation of the Rules of Professional Conduct, the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes to be criminal or fraudulent, or other good cause for the withdrawal exists.
Under Rule 8.3(a), a “lawyer who knows that another legal professional has committed a violation of the applicable Rules of Professional Conduct that raises a substantial question as to that legal professional’s honesty, trustworthiness or fitness as a legal professional in other respects shall inform the appropriate professional authority.” The threshold is quite high. Comment 3 adds, “a report should be made to the Bar disciplinary agency unless some other agency, such as a peer review agency, is more appropriate under the circumstances. Rule 8.4 provides further clarification of conduct which constitutes professional misconduct.
In anticipation of an attorney’s departure from a firm, the firm and departing attorney should work on a joint communication strategy to notify all clients for whom the attorney has a prior professional relationship or maintains an active case with, regarding the attorney’s departure. ABA Formal Opinion 99-414 clarifies this relationship, stating, “a lawyer does not have a prior professional relationship with a client sufficient to permit in-person or live telephone solicitation solely by having worked on a matter for the client along with other lawyers in a way that afforded little or no direct contact with the client.” Your notice to such clients should give them the opportunity to choose counsel, which for current clients means the option of staying with the firm or following you to your new firm/practice. These obligations are noted in Rule 1.4 of the Rules of Professional Conduct, which affirms that attorneys are obligated to communicate to clients any material changes in the status of their case. The period by which to inform clients of your departure should be the minimum necessary under the circumstances for the client to make an informed decision.
Rule 4.2 of the Rules of Professional Conduct prohibits attorneys from communicating with persons the attorneys knows are represented by counsel. The determination of the scope of representation-or which individuals are represented by counsel- can be a difficult determination when the client is a corporation. Rule 1.13 (organization as client) is applicable here. The determination of whether an attorney can contact a current employee is dependent on whether the individual is a “duly authorized constituent” or part of the “control group” under Rule 4.2(d)(2). Under 1.13(g), the lawyer representing the corporation may also represent any of its directors, officers, employees, members, shareholders, and other constituents, however employees are not automatically represented by the corporation’s attorney by mere virtue of their employment. Instead, the scope of the corporation’s representation extends to the “control group,” which are high-level officials such as the chief operating financial or legal officer, chair of governing body or one who performs a major policy-making function for the organization. For more on determining the scope of representation, and a corporation’s “control group,” see the Utah State Bar Ethics Advisory Opinion Committee’s Opinion No. 15-04.
Partnership structure/business arrangements with nonlawyers
Attorneys may share office space with non-lawyers (paralegals, businesses, etc.), but must implement an internal strategy to robustly protect their clients’ confidentiality under Rule 1.6. Comment 18 to the rule elaborates on this duty, which includes training and requiring your staff to maintain policies for safekeeping client confidences and property.
Under the recently revised Rule 5.4 of the Rules of Professional Conduct, attorneys can share fees and partnerships with non-lawyers if the arrangement has been authorized by the Office of Legal Service Innovation, also known as the “regulatory sandbox,” consistent with Standing Order No. 15. In addition to gaining the approval pursuant to the standing order, the lawyer/firm must also provide written notice of the arrangement to prospective clients, including informing a client the financial and managerial structure of the organization in which the lawyer practices.