Ethics Advice FAQ's

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Unauthorized Practice of Law/Jurisdictional Questions:

Can an attorney, licensed out of state, represent a Utah client in a Utah court?

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 [14] affirms that the representation is warranted where the matter has “significant connections” to the jurisdiction where the lawyer is licensed.

Can an attorney, licensed out of state, assist a Utah-formed company in reviewing and drafting internal contracts?

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.

Can an attorney, licensed to practice in Utah, assist a client in reviewing a contract governed by laws of another state?

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.

Can an attorney, licensed out of state, represent a Utah client for a cause of action that occurred in Utah?

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.

Can an attorney, licensed out of state, appear in court in Utah on a matter that predominantly takes place outside of Utah?

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.”

Can an attorney, licensed out of state, reside in Utah, and continue representing non-Utah clients?

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.

Can I practice law pending admission to the Utah Bar?

Guidance surrounding practicing pending admission can be found in Rule 14-809.

 

Fees:

Am I permitted to charge a flat fee?

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.

Can an attorney accept retainer payments using Payment-to-Payment (P2P) sites such as Paypal, Venmo, etc.?

This form of payment is not currently permitted under the Rules. Rules 1.15 of the RPC and 14-1001 requires attorneys to use payment services that immediately deposits any collected funds into their client trust account without the need for an intermediary transfer.

Can I share legal fees with nonlawyers?

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.

Can I accept a referral fees from a non-attorney?

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.

Can I share fees with lawyers who are not employed by my firm?

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.