Ethics Advisory Opinionstag:webster.utahbar.org,2013:/committees/eaoc/32012-12-23T09:26:52ZMovable Type 3.33Opinion No. 12-03tag:webster.utahbar.org,2012:/committees/eaoc//3.39552012-12-23T09:22:43Z2012-12-23T09:26:52ZUTAH 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...BlogStaffwww.utahbar.org
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).
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.
Opinion No. 12-02tag:webster.utahbar.org,2012:/committees/eaoc//3.37152012-05-09T15:48:33Z2013-02-25T14:29:59ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE Opinion No. 12-02 Issued December 12, 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...
UTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 12-02
Issued December 12, 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
2. 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.
3. Recent cases on the permissibility of flat fee agreements under the Utah Rules of Professional Conduct implicate several questions regarding the permissibility of such, as well as practical considerations faced by lawyers using such agreements. Such questions are addressed below.
ANALYSIS
A. What fee agreements are relevant to this opinion?
4. The term “flat fee” and “flat fee agreement” are used in this opinion to refer generally to fee agreements wherein the client agrees at the inception of a matter to pay a fixed sum to the attorney in exchange for which the attorney agrees to perform a particular scope of work. Flat fees are essentially a species of advance payment retainers, wherein the client provides the attorney with payment at the beginning of the relationship in exchange for work to be performed later. Examples of flat fees include a criminal defense attorney that agrees to handle the defense of a misdemeanor case through trial for a fixed sum, a commercial litigator that agrees with a corporate client to conduct all aspects of the discovery phase of a particular case for a specified sum or a transactional or patent attorney that agrees to create and file specific documents or handle certain aspects of a transaction for a fixed sum.
5. Clients pursuing flat fee agreements often do so in order to avoid the negative consequences of the billable hour or to obtain representation where paying for legal services by the hour is not feasible. Hourly clients are generally required to make regular monthly or quarterly payments to the attorney, which may be undesirable or impossible for some clients. Attorneys paid by the hour are not rewarded for performing their work as efficiently as possible, which may increase costs. Corporate clients often use flat fee agreements to ensure that legal fees do not exceed pre-budgeted amounts. Certain types of collection or criminal defense cases raise the specter that any funds held by the client or in the attorney’s trust account may be subject to seizure by the client’s creditors or forfeiture by government officials, and thus become unavailable to compensate the attorney. Each of these concerns may be appropriately addressed by flat fee agreements.
6. Attorneys may prefer to enter into flat fee agreements to avoid the risk that the client will be unable (or unwilling) to periodically pay for services rendered at an hourly rate. Flat fee agreements are particularly attractive where, depending on the outcome of the litigation, the client may eventually be incarcerated, unemployed or insolvent. By entering into a flat fee agreement, the attorney is able to ensure collection in exchange for accepting the risk that the matter may be more expensive or time-consuming to resolve than anticipated at the outset. If the attorney correctly estimates the time and effort needed to perform the scope of work agreed, then the attorney may be able to earn a higher fee than would be possible under an hourly fee arrangement. Conversely, if the attorney does not accurately estimate the scope of work required to meet the client’s needs, the costs and expenses of the matter may render the flat fee agreement unprofitable.
B. What factors should be considered in determining the reasonableness of a flat fee?
7. Rule 1.5 lists several factors that should be considered in determining the reasonableness of fees. See Long v. Ethics & Discipline Comm. of the Utah Supreme Court, 2011 UT 32, ¶45, 256 P.3d 206; Utah R. Prof'l Conduct 1.5(a). Utah follows the practice of other jurisdictions in allowing attorneys to charge flat fees. See Utah State Bar Ethics Advisory Opinion No. 136; Long, 2011 UT 32 at ¶48; Utah State Bar v. Jardine, 2012 UT 67, ¶ 43, --- P.3d ----. In determining whether a fee is unreasonable, the Utah Supreme Court has indicated that each of the Rule 1.5(a) factors is relevant, specifically including (but not limited to) the following:
(1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Long, 2011 UT 32 at ¶45; see also Jardine, 2012 UT 67 at ¶43.
8. The recent Utah Supreme Court decision of Long v. Ethics & Discipline Comm. of the Utah Supreme Court, illustrates some of the challenges faced by lawyers using flat fee agreements. In Long, the Utah Supreme Court indicated that sufficient evidence existed to support the screening committee’s finding that the petitioner charged unreasonable fees in three criminal cases. See id. at ¶¶ 48, 52. The Court discussed evidence of the amount charged to each of the clients and the time spent by petitioner on the case. See id. In one case, the petitioner admitted to attempting to collect approximately $6,600.00 for six hours of work. See id. at ¶ 57. In the other two cases, the screening committee compared the district court docket, which suggested that petitioner did very little work, with a narrative accounting created by petitioner after ethics complaints were filed that indicated that petitioner did between fifty and sixty hours of work on each case. See id. at ¶ 21. The Utah Supreme Court determined that because petitioner’s rebuttal evidence did not consist of contemporaneous documentation, “a reasonable mind might not give this ‘accounting’ much weight” in comparison with the district court docket. See id. at ¶ 52.
9. The Long opinion does not indicate whether the Utah Supreme Court weighed the time spent by petitioner on his cases more heavily than other Rule 1.5 factors which might have shown that the fees were reasonable. Rather, the Court merely indicates that the evidence was sufficient to support the screening committee’s finding based on the record. See id. at ¶26. The only factor discussed in the opinion is the amount of time spent by petitioner on the cases. The Court’s decision can therefore be read to suggest that, in defending his actions before the screening committee, petitioner faced a difficult problem of proof. It is unclear from the opinion itself whether petitioner submitted any evidence of other Rule 1.5(a) factors that supported his contention that the fee was reasonable.
10. Long demonstrates a difficulty that often arises with flat fee practice. Attorneys must prove the reasonableness of their fees when challenged. It is common for solo and small firm attorneys in some practice areas to forgo contemporaneous accounting for time spent on flat fee cases because of administrative costs and limited utility of such information in the flat fee context. While “the time and labor required” is only one of several factors to consider in determining whether a fee is reasonable, in disciplinary cases, time spent by the lawyer often weighs heavily in the determination of the reasonableness of the fee. The failure by the lawyer to accurately and contemporaneously account for time spent on a particular matter is not itself a violation of the Rules. Indeed, the Utah Supreme Court has recently accepted an accounting prepared after the fact as sufficient evidence that the work performed in a particular case rendered a flat fee reasonable. See Jardine, 2012 UT 67 at ¶¶ 44-46. However, failing to account may create practical difficulties in defending against disciplinary action. If maintaining contemporaneous time records is inconvenient, the attorney would be wise to include language in their fee agreement designating various benchmark events that correlate with work to be performed on the case, the occurrence of which will deem set percentages of the flat fee to have been earned.
C. When is the fee earned and can fees be non-refundable?
11. When the flat fee is earned depends primarily on the contractual arrangement between the attorney and client, subject to the rules of professional conduct. See Ryan v. Butera, Beausang, Cohen & Brennan, 193 F.3d 210, 214 (3d Cir. 1999). “A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses.” Utah R. Prof'l Conduct 1.5(a). Nothing in the Rules of Professional Conduct or the case law reviewed by the committee suggests that the fee need only be reasonable at the outset of the attorney-client relationship. Rather, courts have consistently found that a fee may become unreasonable given circumstances that develop during the attorney-client relationship. See McKenzie Const., Inc. v. Maynard, 758 F.2d 97, 101 (3d Cir. 1985); Long, 2011 UT 32 at ¶ 48 (noting that, while a flat fee agreement was reasonable when signed, it was still improper to demand payment if such fee was unreasonable given the outcome of the representation); Jardine, 2012 UT 67 at ¶¶ 37-39, 45 (examining two fee agreements for reasonableness in light of services performed and outcomes obtained); In re Powell, 953 N.E.2d 1060, 1063-64 (Ind. 2011); see also Douglas R. Richmond, Understanding Retainers and Flat Fees, 34 J. Legal Prof. 113, 123 (2009). The Rules of Professional Conduct therefore require that fees be reasonable at all times during the representation. See Utah R. Prof'l Conduct 1.5(a).
12. The question of where the attorney must deposit the flat fee largely turns on when the fee is earned. The fee agreement may provide means by which the fee or portions thereof may be deemed “earned” and become the property of the attorney, subject always to the requirement that the fee agreement must not result in the attorney charging an unreasonable fee. The Utah Supreme Court has indicated that “[i]t is the attorney’s responsibility to apply sound judgment and fairness in determining when this transition [from unearned to earned fees] occurs.” See Jardine, 2012 UT 67 at ¶50.
13. The flat fee remains property of the client until it is earned. See Jardine, 2012 UT 67 at ¶50; Iowa Supreme Court Bd of Prof’ Ethics & Conduct v. Apland, 577 N.W.2d 50, 55-56 (Iowa 1998). The unearned portion of a flat fee must be kept separate from the attorney’s personal funds. See Utah R. Prof'l Conduct 1.15(a) (“[a] lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property”); see also In re Kendall, 804 N.E.2d 1152, 1155 (Ind. 2004). Keeping the unearned portion of the fee in trust provides some protection for client funds from the attorney’s creditors. Moreover, maintaining unearned fees in the client trust account assures that client property will be available for repayment in the event that the attorney is not able to complete the representation to an extent that would entitle the attorney to retain the entire fee.
14. Prior ethics opinions appear to allow flat fees to be non-refundable, subject to later disgorgement. See Utah State Bar Ethics Advisory Opinion No. 136; Long, 2011 UT 32 at ¶48. However, the distinction between a refundable fee and a non-refundable fee subject to potential disgorgement, as discussed in Opinion No. 136, is somewhat unclear. The only practical difference seems to be that the latter shifts the risk of the attorney’s default to the client. If the attorney collects a truly “non-refundable fee”, that fee is the property of the attorney. The fee can be spent by the attorney or attached by the attorney’s creditors. In the event that the fee later became unreasonable, the client may have no way to recover the unreasonable fee. This result is unsatisfying, particularly given that attorneys are required to hold fees in trust in other circumstances where the client may be entitled to a refund, e.g., where there is a dispute over the amount of fees, or where there is a dispute over ownership of funds held in trust. See Utah R. Prof'l Conduct Rule 1.15(e).
15. Given the prohibition on unreasonable fees under Rule 1.5, there is no such thing as a fully nonrefundable fee. It is well established that clients are entitled to a refund of unearned or unreasonable fees, regardless of language used in a fee agreement. See id. (“A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred”) (emphasis added). Utah attorneys should reasonably know that any flat fee may have to be refunded if it is unreasonable. Language in a fee agreement which states, without further explanation or qualification, that a flat fee or other advance payment retainer is nonrefundable is a misrepresentation. See Utah R. Prof'l Conduct Rule 8.4(c); In re Dawson, 8 P.3d 856, 859 (N.M. 2000). To the extent that Utah State Bar Ethics Advisory Opinion No. 136 suggests otherwise, it is hereby superseded by the instant opinion. Attorneys may avoid making this misrepresentation in their fee agreements by clearly explaining in plain language that fees will be refunded in the event they are unreasonable under the circumstances. If there are particular circumstances which render a flat fee (or portion thereof) reasonably earned at any time prior to the termination of the representation, the attorney should clearly explain such circumstances in the fee agreement, especially with regard to the factors indicated in Rule 1.5(a).
16. Permissible arrangements where fees may be “earned” prior to conclusion of the representation, thus allowing the attorney to transfer portions of the fee to the attorney’s personal or operating account are numerous. The attorney is not required to use a hypothetical hourly rate in determining when the fee is earned, though such an arrangement could be strong evidence of reasonableness. The fee agreement may designate reasonable events which correlate with the work performed by the attorney, which cause portions of the fee to be earned, such as completion of substantial discovery, filing of a notice of appearance or commencement of trial. Alternatively, an agreement could indicate that the fee is earned once the attorney is committed to the expenditure of substantial work and expenses, for example, where the attorney has appeared in a criminal case immediately prior to trial and is unable to withdraw. Again, where particular circumstances are the basis for designating a certain portion of the fee earned prior to termination of the representation, the attorney should specifically identify such in the fee agreement.
17. Once a portion of the fee is “earned” under the terms of the fee agreement, it becomes the attorney’s property and should not be kept in the trust account. See Utah R. Prof'l Conduct Rule 1.15(a). If retention of the fee (or some portion thereof) later becomes unreasonable, the attorney has an obligation to return such fees to the client. See Utah State Bar Ethics Advisory Opinion No. 136.
18. The committee notes that the practice of designating the majority of a flat fee as earned at the outset of the representation is often unreasonable, given that the attorney has not yet performed the services contracted for in the fee agreement. There are circumstances where such a practice might be reasonable, such as where “a lawyer of towering reputation provides a benefit just by agreeing to represent a client, or if the lawyer’s commitment to be available has value in and of itself, or when, by accepting representation, the lawyer is disqualified from other representation.” See Utah State Bar Ethics Advisory Op. 136 (July 29, 1993). However, such circumstances are comparatively rare. The Utah Supreme Court has noted that “if the lawyer must later defend his debits against a Bar complaint, it is his obligation to demonstrate that the money was earned before it was withdrawn, whether that happened at the moment the lawyer agreed to representation, or after many hours of work were performed.” See Jardine, 2012 UT 67 at ¶51.
19. If the attorney is subsequently terminated or is otherwise unable to carry out the object of the fee agreement, the attorney’s ability to disgorge or repay fees becomes a critical question. In such a case, the client will almost certainly be entitled to a refund of all or part of the fee. Rule 1.5 directs that attorneys shall not “make an agreement for, charge or collect an unreasonable fee…” See Utah R. Prof'l Conduct 1.5(a). By deeming the entire fee earned at the outset of the litigation, and transferring the fee to the operating account before the object of the representation, or any part thereof, has been accomplished, the lawyer has made “an agreement for” an unreasonable fee, if the object of the representation is not accomplished. See id. Under such circumstances, the attorney may have violated the requirements of Rule 1.5, as discussed by the Utah Supreme Court in Long.
Conclusion
20. When managed as required by the Rules, flat fee agreements provide substantial benefits to clients, attorneys and serve the interests of justice. Attorneys can manage financial risks so as to allow clients who could not otherwise afford counsel to obtain representation. Sophisticated clients are able to anticipate and accurately manage litigation expenses, and attorneys are able to avoid the administrative expenses of billing for their services by the hour. It is the committee’s opinion that, as discussed herein, Utah attorneys may enter into flat fee agreements with clients where such agreements do not violate Utah Rules of Professional Conduct Rules 1.5, 1.15 or 8.4.
1. Flat fee agreements are also referred to in some of the relevant literature as a class of special or security retainers to distinguish them from general retainers, which are payments that give the client an option on the attorney’s availability at some future time. See Douglas R. Richmond, Understanding Retainers and Flat Fees, 34 J. Legal Prof. 113, 123 (2009); Tyler Moore, Note, Flat Fee Fundamentals: An Introduction To The Ethical Issues Surrounding the Flat Fee after In re Mance, 23 Geo. J. Legal Ethics 701 (2010); see also Dowling v. Chicago Options Associates, Inc., 875 N.E.2d 1012, 1018 (Ill. 2007). However, flat fee arrangements also differ from typical security retainers, which are paid at the inception of a matter and held in trust to secure payment for work to be performed at hourly rates. While general and security retainers are still subject to the requirements of Rules 1.5 and 1.15, they are beyond the scope of this opinion.
2. While Rule 1.5 does not specifically list the risk undertaken by the attorney in undertaking the representation on a flat fee basis as a factor in determining whether the fee itself is reasonable, the Rule specifically indicates that the listed factors are not exclusive. See Utah R. Prof'l Conduct 1.5(a). The committee believes that the financial risk undertaken by an attorney taking on a particular case is a relevant factor that should be considered when evaluating the reasonableness of a flat fee agreement in subsequent disciplinary proceedings.
3.It is instructive to note that two of the three complaints filed against Mr. Long for violation of Rule 1.5 were referred to the Office of Professional Conduct by a district court judge that reviewed fees charged in two of Mr. Long’s cases and found the fees to be excessive and unreasonable under the circumstances. The third complaint was brought after Mr. Long hired a collection agency to sue another client for unpaid fees.
4.Indeed, the Utah Supreme Court notes that “[t]hese factors do not represent an exclusive list, and each factor may not be relevant in every case.” Long, 2011 UT 32 at ¶45.
5.In certain cases, it may be reasonable for a client to give informed consent to allow the entire flat fee to be earned upon commencement of the representation in order to protect the client’s ability to secure counsel. Adding such a provision to a fee agreement may benefit the client where government seizure of the client’s funds is reasonably believed to be imminent. In such a case, the fee agreement should be drafted so as to clearly explain in plain language terms the risks of designating the fee as earned immediately upon receipt, and describe the benefits to the client of doing so given the facts of the client’s particular case. See Dowling, 875 N.E.2d at 1022-23. In other words, even in such circumstances, the fee must comply with Utah Rules of Professional Conduct Rule 1.5.
6.Given the numerous factors which may be considered in determining whether a fee is reasonable under Utah Rules of Professional Conduct Rule 1.5(a), it is not possible to specify all of the potential circumstances which might cause a fee (or a portion thereof) in a particular case to be reasonably earned.
7.The comments to Utah Rules of Professional Conduct 1.3 note that the lawyer’s duty of diligence may require a sole practitioner to “prevent neglect of client matters in the event of…death or disability,” by preparing a plan to protect clients in such circumstances. See Utah R. Prof'l Conduct Rule 1.3 cmt. 5. In appropriate circumstances, Rule 1.5 may require an attorney holding substantial funds which may become subject to disgorgement to prepare a plan whereby such funds may be repaid if the attorney is unable to complete the object of the representation.
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Opinion No. 12-01tag:webster.utahbar.org,2012:/committees/eaoc//3.36032012-02-15T11:25:08Z2012-02-15T11:26:09ZUTAH 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),...BlogStaffwww.utahbar.org
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?
OPINION
2. Because it does not appear to “involve” a “substantially related matter,” representation of the wife in the separate action prior to the marriage would not necessarily preclude the lawyer from representing the husband on appeal in the divorce. The mere fact of the wife’s dismissal or that the lawyer agreed or disagreed with the court’s decision dismissing her from the joint litigation involving both parties is not a determinative factor to this opinion. The fact that the lawyer testified during the divorce proceedings as a percipient witness, is likewise most likely not a relevant factor, subject to the caveats set forth in the Analysis below. Where, however, the lawyer represented both the husband and wife against a third party in the joint litigation during the course of the marriage, the joint litigation and the divorce appear to be “substantially related” because they “involve the same transaction or legal dispute.” It would therefore be a violation of the duty of loyalty and independence under the Utah Rules of Professional Conduct for the lawyer to undertake representation of the husband on appeal in the divorce without the informed written consent of the wife.
BACKGROUND
3. Prior to the marriage of the parties involved, the attorney represented the wife in the joint litigation. The issues before court in no way involved the future husband. Subsequently the parties married. During the course of their marriage, the attorney represented both husband and wife against a third party in the joint litigation. The wife’s standing to sue was at issue in the joint litigation and in spite of the lawyer’s vigorous advocacy of her position, the court dismissed her from the litigation. The lawyer disagreed with this ruling at the time, but later came to accept the court’s decision as a correct one.
4. The couple then initiated divorce proceedings. The attorney recognized that there would be an obvious conflict and thus declined to represent either party at trial. As a result of the long standing attorney-client relationship with the husband, the attorney was called and did testify as a percipient witness regarding the husband’s procurement of certain property rights and other matters which were apparently not a violation of confidentiality or otherwise privileged under the Utah Rules of Professional Conduct. According to the attorney, she did not assume a position advocating on behalf of either party in the trial court and testified only as to non-contested issues. She represents that on appeal she would not be placed in a position of advocating her own credibility as a witness at the trial. However, representation of the husband on appeal of the divorce would perhaps, although not necessarily, require the attorney to argue that at least one of the positions, specifically in the joint litigation matter, previously advocated by the lawyer on behalf of the wife in that litigation, was incorrect.
5. The husband is appealing the trial court’s decision regarding the division of property and property rights between the couple in the divorce proceeding. He has requested the attorney to represent him against the wife in the appeal.
ANALYSIS
6. General principles regarding conflicts of interest are set forth at the outset of the Comments to the Rules of Professional Conflict 1.7, Conflict of Interest: Current Clients. Pertinent to the Committee’s discussion of the issues raised, Official Comment (1) to Rule 1.7 states that,
(1) Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. Concurrent Conflicts of interest can arise from the lawyer’s responsibilities to another client, a former client or a third person or from the lawyers own interests. . . .
7. The duty of loyalty is further explored in Comment (6) to Rule 1.7 in its discussion of circumstances where the conflict involves concurrent directly adverse positions, which, while not directly applicable to this discussion, is helpful in understanding the philosophy behind the rule:
[6] Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client’s informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer’s ability to represent the client effectively. . . . (emphasis added).
8. Regarding former clients, Official Comment (9) to Rule 1.7 directs attention to Rule 1.9, stating that, “. . . a lawyer’s duties of loyalty and independence may be materially limited by responsibilities to former clients under Rule 1.9 . . .”
Rule 1.9, Duties to Former Clients, of the Rules of Professional Conduct, subsection (a), states that,
(a) 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.
9. Official Comment (1) to Rule 1.9 makes the following observation:
After termination of a client-lawyer relationship, a lawyer has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a lawyer could not properly seek to rescind on behalf of a new client a contract drafted on behalf of the former client. So also a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. Nor could a lawyer who has represented multiple clients in a matter represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. . . . . (emphasis added).
10. The critical question therefore is whether the prior matters in which the lawyer represented the either or both parties are “substantially related” to the divorce. It is important under Rule 1.9(a) to make a determination as to the “scope” of a prior matter in order to determine if it was “substantially related.” Comment (2) to the Rule states,
(2) The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or transaction. The lawyer's involvement in a matter can also be a question of degree. When a lawyer has been directly involved in a specific a transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. . . . The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question. (Emphasis added)
11. Additionally, Official Comment (3) to Rule 1.9 addresses the question of whether matters are “substantially related” as follows:
[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. . . . (emphasis added).
12. Consequently, whether the two prior representations of the wife preclude the lawyer’s representation of the husband on appeal under Rule 1.9(a) essentially comes down to the question of whether either of those representations of the wife were “substantially related matters” to the divorce action under Rule 1.9(a), taking into consideration the “scope” of the lawyer’s representation of the wife in those matters. As indicated in Comment (3) a “substantially related matter,” in order to preclude representation, may not necessarily implicate the proscription against violating the duty of confidentiality. Even though the concern regarding confidentiality may not be material, the duty of loyalty remains a major concern. The prior litigation may simply “involve the same transaction.” If it does, it is substantially related and precludes representation of the husband without the wife’s informed written consent.
13. At the core of Rule 1.9 is the lawyer’s continuing duty of loyalty to former clients. The Annotated Model Rules of Professional Conduct, from which many of the Utah Rules of Professional Conduct are derived, provides pertinent guidance. It states as follows:
Once it is established that there was a lawyer-client relationship and that it has ceased, the next issue in determining whether a lawyer may undertake a representation adverse to a former client is the relationship between the two matters: if the two matters are substantially related, the subsequent adverse representation is prohibited.
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The substantial-relationship test grew out of case law on disqualification. See. T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F. Supp. 265 (S.D.N.Y. 1953) (“the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him”).
The test protects “not only confidences but also the expectation of loyalty by a prior client.” I Successor Corp. v. Feld Group Inc., 321 B.R. 640 (Bankr. S.D.N.Y. 2005) (collecting cases); see People v. Frisco, 119 P.3d 2093 (Colo. 2005)(en banc) (“Because the use of information . . . is separately restricted by Rule 1.9(c), Rule 1.9(a) applies only to situations involving an inherent and substantial risk of violating an attorney’s duty of loyalty to former clients.”; Nationwide Assocs., Inc. v. Targee St. Internal Med. Group, P.C., 758 N.Y.S.2d 108 (App. Div. 2003) (lawyer in breach of contract action had represented other side in substantially related mortgage foreclosure actions; conflict of interest required disqualification under state’s analogue to Rule 1.9(a), even if no confidential information involved); Centerline Indus., Inc. v. Knize, 894 S.W. 2d 874 (Tex. App. 1995)(lawyer must be disqualified even though all confidences obtained from former client had been disclosed in another proceeding: “if two matters are substantially related(,) it should make no difference whether the lawyer gained no confidences or whether all the confidences gained have been publicly disclosed”).
Id., p. 162.
14. With this background, the Committee turns to the specific questions. As to the first, it is the Committee’s opinion that the previous representation of the wife in the separate action would not preclude the lawyer from representing the husband in the divorce on appeal because it does not appear to “involve” a “substantially related matter.” Unless there is something which would demonstrate that the husband was somehow “involved” in that matter, i.e., either arguably received some palpable benefit or suffered some appreciable detriment as a result thereof, the lawyer’s representation of the wife in the separate action would not preclude her from representing the husband in the divorce proceeding on appeal.
15. As to the question of the lawyer’s representation of the wife and advocacy of her position, along with her husband, in the joint litigation, such representation would in fact preclude the lawyer from representing the husband on appeal in the divorce matter. Before addressing this directly, the Committee observes that two related items raised by the lawyer would seem to be irrelevant to the analysis. First, whether or not the lawyer was successful in representing the wife or personally now agrees with the court’s decision in the joint litigation is of no consequence and is plainly irrelevant to the issue of whether the lawyer can represent either party on appeal in the divorce. Second, the fact that the lawyer testified as a percipient witness to facts outside of the lawyer-client relationship at the divorce trial, advocating for neither party, would seemingly have no bearing on the question posed, particularly if the lawyer testified only as to non-contested matters. Although Rule of Professional Conduct 3.7, which prohibits attorneys from acting as both an advocate and testifying at trial, does not apply to service as appellate counsel , the Committee believes that a lawyer should be extremely cautious in undertaking the representation of a party on appeal in which the lawyer has testified during trial as to contested factual matters and/or where the lawyer’s testimony might be the subject of scrutiny by the appellate court.
16. The critical question is whether, having represented the wife in the joint litigation, involving both husband and wife and specific advocacy of the wife’s interests, it was “substantially related” to an issue or cause arising in the divorce. In this regard, the Committee observes that the lawyer determined at the trial level that she could not represent either party because there was a clear and obvious conflict of interest in representing either one of them against the other at that stage. This is undoubtedly because, inter alia, the issue of the division and value of property in the divorce proceedings could be readily determined to be substantially related to issues raised in joint litigation. Applying the “involves the same transaction” test set forth above, that litigation would be a “substantially related matter.”
17. The Committee readily concedes that it is likely true at the appellate level, as the lawyer points out, that there would be little risk that she would be put in a position of exploiting any attorney-client confidential information or privilege, and would not be “testifying” in her representation of the husband on appeal. There are other factors, however, which are determinative of the outcome of the lawyer’s question. Specifically, there is every reason to believe that the wife would justifiably feel betrayed by what she would perceive as the lawyer’s “changing sides” in the divorce matter. This of course calls to the forefront the issue of whether the lawyer’s appellate representation of the husband in the divorce matter would be a violation of her duty of loyalty. The Committee believes it would. In the context of the specific facts of this inquiry, it is important to understand, and we emphasize, that Rule 1.9 of the Utah Rules of Professional Conduct draws no distinction between whether a matter is at the trial level or on appeal. A lawyer’s duty of loyalty to a client survives and is equally as applicable at the appellate level as it would be in the trial court.
18. Inasmuch as the joint litigation and the divorce appear to be “substantially related” because they “involve the same transaction or legal dispute,” at least to some degree, it would be a violation of the attorney’s duty of loyalty to the wife to undertake representation of the husband in the divorce matter without informed written consent from the wife.
Opinion No. 11-02tag:webster.utahbar.org,2011:/committees/eaoc//3.35182011-12-07T13:09:56Z2011-12-07T14:11:40ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE Opinion No. 11-02 Issued November 8, 2011 1. ISSUE: If an indigent litigation client asks his attorney for a financial gift, is the attorney permitted to provide that charitable gift or do the...BlogStaffwww.utahbar.org
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 11-02
Issued November 8, 2011
1. ISSUE: If an indigent litigation client asks his attorney for a financial gift, is the attorney permitted to provide that charitable gift or do the Utah Rules of Professional Conduct prohibit doing so?
2. OPINION: Utah Rule 1.8(e) prohibits “financial assistance” in connection with litigation, which includes paying living expenses for a client. However, a lawyer representing an indigent client may pay court costs, expenses of litigation and “minor expenses reasonably connected to the litigation.” The rule does not prohibit occasional small charitable gifts.
Footnotes
1. GEOFFREY HAZARD & W. WILLIAM HODES, THE LAW OF LAWYERING §12.2 (3rd ed., 2011).
2. Id. at § 12.11.
3. Rule 1.8(i) of both the Utah and the Model Rules of Professional Conduct carries on the prohibition of investing in the client’s case: “A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except . . . . a lien authorized by law to secure the lawyer’s fee or expenses; and . . . contract . . . for a reasonable contingent fee. . . .”
4. Id.
5. Id.
6. Id. at §12.12
7. Id.
8. Id.
9. The American Law Institute proposed permitting loans to clients, but ultimately dropped that idea. Hazard & Hodes, §12.12, note 1. The following states permit, in limited and strictly controlled circumstances, the advancement of living expenses: , Alabama, California, Louisiana, Mississippi, Minnesota, Montana, North Dakota, Texas, See Oklahoma Bar Ass’n v. Smolen, 17 P.3d 456, 459 (2000).
10. This change to the Utah Rule was made when Utah adopted the Ethics 2000 amendments in November, 2005.
11. Shapiro v. Kentucky Bar Assn., 486 U.S. 466 (1988).
12. “If an impoverished person is unable to secure subsistence from some source during disability, he may be deprived of the only effective means by which he can wait out the necessary delays that result from litigation to enforce his cause of action. He may, for reasons of economic necessity and physical need, be forced to settle his claim for an inadequate amount.” Louisiana State Bar Ass’n v. Edwins, 329 So.2d 437, 446 (1976)
13. Mississippi Bar v. Attorney HH, 671 So.2d 1293, 1296 Miss. 1995) withdrawn, substitute opinion, reh’g denied, 1998 Miss. LEXIS 75 (Miss. 1996),
14. Oklahoma Bar Ass’n v. Smolen, 17 P.3d at 462.
15. In re: Application of G.M., 797 So.2d 931, 935 (Miss., 2001).
16. Attorney AAA v. Mississippi Bar, 735 So.2d 294, 299 (Miss., 1999)., citing The Mississippi Bar v. Attorney HH, 671 So.2d 1293 (Miss. 1995).
17. In re: Application of G.M., 797 So.2d at 935.
18. Attorney Griev. Comm. v. Kandel, 341 Md. 113, 563 A.2d 387, 390 (1989).(public reprimand for advancing living expenses, including medical treatment).
19. Hazard & Hodes, supra note 1, at §12.12.
20. Utah Code Ann. § 77-32-202 (2010).
21. Utah Code Ann. § 78A-2-302 (2010). ‘The Board of District Court Judges has decided that if you have completed a financial statement to qualify for representation by Utah Legal Services or The Legal Aid Society of Salt Lake, you may use that financial statement with your Motion and Affidavit to Waive Fees, rather than completing the court form.” http://www.utcourts.gov/resources/forms/waiver/
22. http://www.utahlegalservices.org/public/do_i_qualify
23. http://www.legalaidsocietyofsaltlake.org/index.php?o=income-guidelines
24. https://www.cms.gov/MedicaidEligibility/downloads/POV10Combo.pdf
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Opinion No. 11-03tag:webster.utahbar.org,2011:/committees/eaoc//3.35172011-12-07T09:04:46Z2011-12-07T13:08:27ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE Opinion No. 11-03 Issued November 15, 2011 1. ISSUE: Is it a violation of the Utah Rules of Professional Conduct for an attorney to ask a law student to undertake research using the...BlogStaffwww.utahbar.org
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 11-03
Issued November 15, 2011
1. ISSUE: Is it a violation of the Utah Rules of Professional Conduct for an attorney to ask a law student to undertake research using the law student’s free account and in breach of the student’s contract with Lexis and/or Westlaw?
2. OPINION: A lawyer who encourages or participates in a law student’s violation of the student’s contractual obligation to the electronic research service violates the Rules of Professional Conduct.
3. BACKGROUND: Certain electronic research services such as WESTLAW and LEXIS allow law students access to their services. That access is given to further the student’s education. The student is required to sign an agreement that the services will be used only for educational or non-profit use.
For example, Westlaw limits the student’s use to “Educational Purposes.” That term means:
“If User is a career services personnel, Educational Purposes include Westlaw access and use solely for placement purposes. Any other use, including any use in connection with User’s employment outside of the Law School and any Student internship or externship, is prohibited. Notwithstanding the foregoing, User may, however, access Westlaw by means of User’s Law Student Password for purposes of unpaid public internships or externships (excluding those sponsored by a state or local government or a court. Any other use, including any use in connection with the employment or externship of User, if User is a student, is prohibited. . . )”
Lexis defines appropriate use as:
“Students may request access to LexisNexis using their Law School Education ID . . . for academic purposes. Academic purposes include, but are not limited to:
Research skill improvement, such as improving research efficiency and sharpening your area of law research skills as you prepare for practice
Summer School or course work
Work as a professor’s research assistant
Internship or externship for school credit
Study for the Bar Exam
“Academic purposes” do not include research conducted for a law firm, corporation, or other entity (other than a professor or law school) that is paying the student to conduct research, or that is passing along the cost of research to a third party. These are deemed “commercial purposes.” 1
Numerous students have reported that practicing attorneys have conditioned initial or continuing employment as a law clerk upon the student’s violation of the agreement with the research services. In other instances, lawyers have knowingly used information retrieved from the electronic services in violation of the student’s contractual agreement.
4. ANALYSIS: When a lawyer hires a law clerk, the lawyer is hiring the clerk for the clerk’s services and not for access to the electronic database. The lawyer has no expectation that the law clerk will breach the contractual obligations for the benefit of the lawyer. Indeed, the lawyer’s obligation is to make certain that the law clerk not violate any of the contractual duties and responsibilities.
5. Rules of Professional Conduct, Rule 5.3 place obligations on a lawyer supervising non-lawyer assistants. A lawyer with supervisory authority over the non-lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer. Further, the lawyer violates ethical obligations if the lawyer orders or with knowledge of the specific conduct (misuse of the electronic services) ratifies conduct of the non-lawyer which would be a violation of the lawyer’s own ethical duties. Finally, it is a violation of Rule 5.3 if the lawyer knows of unethical conduct by the non-lawyer and does not take steps to avoid the misconduct or take reasonable remedial actions.
6. Misuse of the student’s educational privileges is a theft of services. (Utah Code Ann. §76-6-409) The companies have specifically limited the use of their products to non-profit or educational uses. The lawyer hiring a law student has no reasonable expectation that the law student will violate her contractual obligation to refrain from the use of those services in a for-profit situation. A theft of services is a violation of Rule 8.4(b). It is a criminal act, which, depending upon the amount of services wrongfully appropriated, could range anywhere from a Class B Misdemeanor to a Second Degree Felony. (Utah Code Ann. §76-6-412) Such a criminal act reflects adversely upon the lawyer’s honesty if the lawyer specifically directs the student to violate her contract. It is also a criminal act and an ethical violation if the lawyer indirectly encourages the contractual breach through the coercion of the law student. See Utah Code Ann. §76-2-202 regarding criminal responsibility for the conduct of another person.
7. Requiring, encouraging or even tolerating the violation of the law student’s contractual obligation to refrain from using the services for profit is also conduct involving dishonesty or misrepresentation. It therefore is also a violation of Rule 8.4(c).
8. Requiring, expecting or profiting from a student’s violation of the contractual obligations is not protected by Ethics Opinion 98. That Opinion deals with the engagement of a third party to perform services for the client. The opinion specifically excluded conduct which amounts to dishonesty, fraud, deceit or misrepresentation by the attorney.
9. Misuse of the student’s privileges is dishonest. Allowing, expecting or not rectifying the student’s contractual breach of the contract violates the duty of supervision imposed upon the lawyer-employer.
4821-9567-5918, v. 1
ETHICS ADVISORY OPINION COMMITTEE Opinion Number 11-01tag:webster.utahbar.org,2011:/committees/eaoc//3.33912011-09-06T14:47:00Z2011-10-11T14:49:24ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE Opinion Number 11-01 Issued August 24, 2011 1. ISSUE: Two interrelated issues are before the Committee: First, may an attorney representing a plaintiff in a personal injury action indemnify and hold harmless a...BlogStaffwww.utahbar.org
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion Number 11-01
Issued August 24, 2011
1. ISSUE: Two interrelated issues are before the Committee: First, may an attorney representing a plaintiff in a personal injury action indemnify and hold harmless a party being released from any medical expenses and/or liens which might remain unpaid after the settlement funds are fully disbursed? Second, in a personal injury action, may an attorney request another attorney to indemnify and hold harmless a party being released from any medical expenses and/or liens which might remain unpaid after the settlement funds are fully disbursed?
(level of cognition must be inferred when not specified; comments to Rule 1.15(b) concerning “just claims,” and lawyer's “duty under applicable law to protect” third-party claims, and lawyer's obligation not to “unilaterally assume to arbitrate” matters between client and third party strongly infer that a lawyer must have actual knowledge of a third party's interest before acting). Under the Rules of Professional Conduct, “knowingly,” “known,” or “knows” “denotes actual knowledge of the fact in question. A person's knowledge may be inferred from the circumstances.” Utah Rules of Professional Conduct, Preamble, comment. 6
If a dispute arises as to entitlement to any portion of funds held by a lawyer, Rule 1.15 addresses that issue in the following subsection:
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
For purposes of this Opinion, suffice it to say that a lawyer’s ethical duty is to protect a third person’s lawful interest of which the lawyer has actual knowledge and the lawful interest must be in specific funds in the lawyer’s custody and control.
9. With this general background regarding a lawyer’s duties to third persons in relation to funds or property held by the lawyer, the primary question posed is whether a lawyer may be required to indemnify an opposing party against claims of potential but unknown third parties. As one recent prominent ethics opinion on this issue has stated,
A personal agreement by a lawyer to indemnify the opposing party from any and all claims is distinct from an agreement by a client, or the lawyer on behalf of the client, guaranteeing payment of lawful claims from the funds in the lawyer's possession.
Such a personal indemnification agreement by a lawyer is, in essence, an agreement by the lawyer to provide financial assistance to the client. The lawyer is undertaking an obligation to pay the client's bills. This is unethical for several reasons. 8
The referenced Ohio opinion cites Ohio Rule of Professional Conduct 1.8(e), which is substantially the same as Utah Rule of Professional Conduct 1.8(e). Utah’s Rule 1.8(e) states as follows:
(e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(e)(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
(e)(2) a lawyer representing an indigent client may pay court costs and expenses of litigation, and minor expenses reasonably connected to the litigation, on behalf of the client.
The Committee is therefore in accord with Ohio’s opinion, which is consistent in substance with virtually all of the opinions referenced in footnote 1, supra, that neither of these exceptions applies to the issue at hand,9 and therefore such an indemnification agreement on the part of a claimant’s lawyer constitutes a violation of Rule 1.8(e).
10. The tension created between the lawyer, who wishes to obtain the best possible settlement for his client without putting herself personally on the line to the client’s creditors, and client who may desperately want and need the settlement proceeds after what may be many months and perhaps years of litigation and/or negotiation, is simply untenable. The lawyer’s interest in avoiding potential liability in an unknown amount to an unknown third party is pitted against the client’s need to achieve settlement and receive funds. This poses a clear concurrent conflict of interest in violation of Utah Rule of Professional Conduct 1.7(a)(2), which states,
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(a)(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
In the circumstances presented, there is a “significant risk” that the representation of a client would be “materially limited” by the lawyer’s perceived responsibilities to a third person as well as by a personal interest of the lawyer. And, the Committee again concurs in the words of the Ohio Opinion, that, “(e)ven if this conflict of interest could be ameliorated under (Utah’s) Rule of Professional Conduct 1.7(b), the agreement still would be improper under (Utah’s) Rules 1.15 and 1.8(e) as discussed, supra.”10 The further observation that this Committee would make is that, because a lawyer’s duty to a third party under Rule are not distinguishable from a lawyer’s duty to his or her client, it is the sense of the Committee that “informed consent” via Rule 1.7(b) would be very difficult to achieve as a practical matter, where a third party claim and a client’s claim stand in pari materia, as a third party claim to specific funds carries the same weight in relation to the lawyer’s duty as a lawyer’s duty to his client.
11. Lastly, with respect to the second question put to the Committee, the Utah Rule of Professional Conduct 8.4 states that It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
As discussed previously, a plaintiff’s or claimant’s lawyer, on behalf of the client, may not agree to personally and generally indemnify the opposing party and his lawyer against all unpaid liens and medical expenses without violating Rules 1.7(b) and 1.8(e). Rule 8.4(a) provides that is an ethical violation for any lawyer to “induce another” to “violate the Rules of Professional Conduct.” As such, the conclusion cannot be avoided that a lawyer cannot require or ask opposing counsel to agree to generally indemnify as a condition of settlement since that would constitute inducing and assisting another to violate the Rules of Professional Conduct.
12. CONCLUSION: It is a violation of the Utah Rules of Professional Conduct 1.7(a), 1.8(e) for a plaintiff’s or claimant’s lawyer to personally agree to indemnify an opposing party from any and all claims by third persons to settlement funds. It is professional misconduct for a lawyer to “knowingly assist or induce” another lawyer to violate the Utah Rules of Professional Conduct pursuant to Utah Rule of Professional Conduct 8.4(e). It is therefore improper for a lawyer to request or demand that a plaintiff’s or claimant’s attorney indemnify or hold harmless a party being released from third party claims which may remain unpaid after the settlement funds are fully disbursed.
4837-2217-2170, v. 1
Footnotes:
1. Alabama State Bar, Office of General Counsel Formal Opinions, RO 2011-01 [lawyer many not indemnify opposing party, their insurer, or their lawyer for any unpaid liens or medical expenses, nor may a lawyer request or require another lawyer to personally indemnify the lawyer’s client against any unpaid liens or medical expenses as condition of settlement, citing Rules 1.7, 1.8, 8.4(a)]; OH Adv. Op. 2011-1, 2011 WL 572428 (Ohio Bd. Com. Griev. Disp.) [See discussion, infra]; State Bar of Wisconsin, O. E-87-11 [“inclusion of such indemnification and hold harmless provisions in settlement agreements is improper” under both the Code of Professional Responsibility and the Rules of Professional Conduct for Attorneys. “Accordingly, lawyers may not propose, demand or enter into such agreements.”]; The Association of the Bar of the City of New York Committee on Professional and Judicial Ethics, Op. 2010-03 [Plaintiff's counsel may not agree to hold defendant harmless from claims arising out of defendant's payment of settlement consideration and defendant's counsel may not ask plaintiff's counsel to provide such financial assistance, citing Rules 1.2(a), 1.7(a), 1.8(e), 1.15(c), 1.16(b), 8.4(a)]; Tennessee Sup Ct, Board of Professional Responsibility, Op. 2010-F-154 (2010) [“an attorney cannot ethically agree to such agreements and/or clauses,” citing Rules 1.7(b), 2.1, 1.2 and 1.8(e); Missouri Sup Ct, Advisory
2.Committee, Op. 125 (2008) [“[b]ecause an attorney who agrees to indemnify an opposing party will violate Rule 4-1.8(e), it is a violation for another attorney to request or demand that an attorney enter into such an agreement. The second attorney would violate Rule 4-8.4.”]; Illinois State Bar Assn., Op. 06-01 (2006) [such an agreement constitutes the provision of financial assistance in violation of Rule 1.8(d) of the Illinois Rules of Professional Conduct. The opinion did not address whether it would violate also Rule 1.7(b)]; Indiana State Bar Assn., Op. 1 (2005) [The practice violates Rule 1.2(a), 1.7(a)(2), 1.8(e), 2.1 (a), 1.16, 1.15(d)]; State Bar of Arizona, Op. 03-05 (2003) [such agreements would violate Arizona Rules of Professional Conduct, ER 1.7, 2.1, 1.8, 1.16(a).]; Kansas Bar Assn., Op. 01-5 (2001) [signing such an agreement places the lawyer in a position where he or she creates a conflict of interest between the client and the insurance company and insured, and/or the lawyer's own interests.”]; North Carolina State Bar Assn. Op. 228 (1996) [A lawyer for a personal injury client who executes an agreement to indemnify the tort-feasor's liability insurance carrier against the unpaid liens of medical providers as part of the settlement of the client's claims violates (then) Rule 5.1(b) of the North Carolina Rules of Professional Conduct.]
UT Eth. Op. 00-04 (Utah St. Bar), 2000 WL 815564 (Utah St. Bar).
3. Id., See ¶ 2.
4. Id., ¶ 2.
5. Professors Hazard and Hodes have analyzed the significance of this comment (see current Comment 4 to Rule 1.15, which incorporates the gist of the then existing Comment to which this refers) as follows:
The fact that a third party “expects” funds held by the lawyer to be the source of payment would not justify a lawyer's refusal to obey the instructions of his client to turn over the entire amount. The Comment to Rule 1.15 uses the phrases “just claims” and “duty under applicable law” to suggest that the third party must have a matured legal or equitable claim in order to qualify for special protection. Only in such cases may it be said that failure to recognize the third party interest is a species of fraud upon creditors or fraud upon the rendering court. (footnote omitted)
Only those claims that rise to the level of a “matured legal or equitable claim” constitute an “interest” and trigger the duties owed under Rule 1.15. For example, a valid assignment of the funds in question could be such a claim. Certainly, a statutory or judgment lien that attaches to the specific property or funds in question or a court order requiring that the specific property or funds be turned over to the third party is such an interest. A lawyer's knowledge that the client owes bills, even if the lawyer knows that the creditor expects to be paid out of the proceeds of a settlement or judgment, does not give rise to such duties unless the creditor has an interest in the proceeds within the meaning of Rule 1.15. Id., ¶ 3.
6. Id., ft.nt. 3.
7. Nothing stated in this Opinion is intended to lead an attorney to the conclusion the she is relieved from any reporting or payment obligations imposed by the Medicare Secondary Payer Act, 42 U.S.C. §1395. See Tennessee Sup Ct, Board of Professional Responsibility, Op. 2010-F-154 (2010), supra, cited herein at ft.nt. 1, for a detailed discussion of the statute, regulations and obligations thereunder.
8. OH Adv. Op. 2011-1, supra, cited at ft. nt. 1.
9. Id.
10.Id.
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09-01 - What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites?tag:webster.utahbar.org,2009:/committees/eaoc//3.27682009-01-06T11:17:23Z2010-01-06T11:18:29ZOPINION NO. 09-01 MAIN OPINION: Issued February 23, 2009 1. Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites?...BlogStaffwww.utahbar.org
Issue: What are the ethical limits for the use of testimonials, dramatizations or fictionalized representations in lawyers’ advertising on television or web sites?]]>
Opinion: Advertising may not be "false or misleading". Testimonials or dramatizations may be false or misleading is 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.
3. Background: As this Committee explained in Opinion No. 00-02, “The U.S. Supreme Court has made it clear that public communication concerning a lawyer’s services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. The cardinal rule concerning all public communication about a lawyer and her services is that the communication not be false or misleading.” 1
4. Since we issued our most recent opinion regarding advertising, Rule 7.1 of the Utah Rules of Professional Conduct (and of the Model Rules) has been amended to include only the simple paragraph set forth below. The amendments deleted subsections (b) and (c) which had specified that a communication was “false or misleading” if it “is likely to create an unjustified expectation about results the lawyer can achieve” or if “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” Instead these issues were dealt with less rigidly in the Comments to Rule 7.1. The ABA Ethics 2000 Commission that recommended these amendments to Rule 7.1 explained its rationale:
The Commission recommends deletion of this specification of a “misleading” communication because it is overly broad and can be interpreted to prohibit communications that are not substantially likely to lead a reasonable person to form a specific and unwarranted conclusion about the lawyer or the lawyer's services. . . . . The Commission also believes that a prohibition of all comparisons that cannot be factually substantiated is unduly broad. Whether such comparisons are misleading should be assessed on a case-by-case basis in terms of whether the particular comparison is substantially likely to mislead a reasonable person to believe that the comparison can be substantiated. . . . . 2
5. While some state regulators retained the old language and other regulators adopted detailed categories of statements that are “false or misleading,” a leading commentator and original draftsperson of the Model Rules recommends against such an approach:
In the end, the best course for state regulators is to adopt the current simple and direct language of Model Rule 7.1 and issue interpretive guidelines . . . .Attempts to impose more burdensome and categorical prohibitions are likely to lead to little but constitutional litigation. GEOFFREY HAZARD, W. WILLIAM HODES, AND PETER JARVIS, THE LAW OF LAWYERING (3rd) §55.3
6. Analysis: We issue the following “interpretive guidelines” relying upon suggestions of commentators, other state’s suggestions and case law. We also suggest that Utah lawyers be aware of Utah’s Truth in Advertising Statute, Utah Code Ann. §13-11a-1 et. seq; Utah’s Consumer Sales Practices Act, §13-11-1 et. seq. which prohibit deceptive acts or practices.
7. Rules of Professional Conduct: Rules of Professional Conduct: Rule 7.2 of the Utah Rules of Professional Conduct permits a lawyer to advertise on the “public media” as long as the ad includes “the name and office address of at least one lawyer or law firm responsible for its content” and it complies with Rule 7.1. Rule 7.1 provides:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
The Comments to Rule 7.1 state in relevant part: [2] . . . A truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. [3] An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case. Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.
8. Testimonials: Some states define “any advertisement that ‘contains a testimonial’ to be ‘false, misleading, deceptive or unfair’” creating standards of dubious constitutionality according to HAZARD, HODES & JARVIS at§ 55.4 (hereinafter Hazard); see also Alexander v. Cahill, 2007 WL 2120024 (N.D.N.Y.) (restriction against testimonials held unconstitutional). Other states require that testimonials or endorsements be “paired with cautionary language about how results may differ depending on the case.” HAZARD at § 55.4. It is legitimate to require such additional language when it is necessary to prevent the advertisement as a whole from being materially misleading or likely to create unjustified expectations. In our view when using testimonials to advertise prior accomplishments it is wise (and may be necessary depending upon the context) to include such qualifying language. Similarly, a “testimonial” should be given by the real person involved (e.g. a former client), unless the portrayal expressly states otherwise (e.g. an actor dramatizing a former client’s letter of thanks) in order to avoid its being misleading.
9. Connecticut Informal Op. 01-07 (2001) addressed testimonials and concluded that client testimonials regarding a lawyer’s “personal qualities such as being knowledgeable, patient or courteous, may be included in advertising copy if they are truthful.” HAZARD at § 55.4 at p.55 21. However, comparative statements would require factual substantiation to avoid being misleading. Id. Because it is almost impossible to substantiate certain comparisons (“best attorney in town”) the wiser course is to advertise qualities that can be substantiated. Id. At 55.4 See also In the Matter of Wamsley, 725 N.E.2d 75 (Ind. 2000) (ad stating “Best Possible Settlement . . . Least Amount of Time” created an unjustified expectation).
10. Lawyer's Traits and Accomplishments: Some states have attempted to ban “self-laudatory” statements about the quality of the lawyer’s services. We agree with commentators HAZARD, et. al. that these bans will not withstand constitutional challenge and note some states have backed away from these rules. Id.; see Mason v. Florida Bar, 208 F.3d 952, (2000)(bar not justified in requiring disclaimer in advertisement of Martindale-Hubbell’s AV rating.)Some regulators have attempted to prohibit nicknames or trade names that suggest an ability to get results (the “heavy hitters”) and to prohibit advertising techniques that have no relevance to selecting a lawyer (attorneys portrayed as giants). But these rules were recently struck down as unconstitutional in Alexander v. Cahill, supra. (not reported in F. Supp.). In Florida, rules now prohibit statements characterizing the quality of a lawyer’s services and depictions that are not “objectively relevant” to selecting an attorney; the Florida Supreme Court ordered the discipline of lawyers who used a “pit bull” logo and phone number. The Florida Bar v. Pape, 918 So.2d 240 (Fla. 2005).The Court reasoned that the pit bull image suggests that the lawyer “will get results through combative and vicious tactics . . . conduct that would violate our Rules of Professional Conduct.” Pape, 918 So.2d at 246. The Florida Court then construed the prohibition against “false or misleading” advertisement to include advertising that suggests behavior or tactics that are contrary to the Rules. Id. We note that statements “implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules . . . or other law” are, according to Comment [4] to Rule 7.1, prohibited by Rule 8.4(e). In our view it is unnecessary and unwise to twist the meaning of “false and misleading” to additionally prohibit statements that already violate Rule 8.4(e).
11. However, lawyers’ factual statements about themselves can run afoul of the rule if they are not scrupulously factual or if they are misleading. Thus, we have opined that a lawyer on inactive status in another state may not ethically communicate by means of letterhead or otherwise that the lawyer is “admitted” in the state unless (i) the lawyer also affirmatively discloses the lawyer's inactive status or (ii) the lawyer reasonably concludes that the communication would not be materially misleading under the circumstances as a whole, Opinion No. 00-02. Similarly, a Utah lawyer cannot have a firm name “and Associates” unless there are at least two lawyer associates. Opinion No. 138 (1994).
12. Dramatizations and Fictional Performances: Some states have tried to ban dramatizations and fictional performances while other states require that these performances be accurately identified. HAZARD at §55.4. New York sought to prohibit the portrayal of a judge or fictitious law firm, and that rule was held unconstitutional. See Alexander v. Cahill, supra.
13. As an initial matter, we note that there is a difference between a “dramatization” and a fictional performance or sketch. To “dramatize” means to “adapt (a story, event, etc.) for performance on the stage, in a movie, etc.” WEBSTER’S NEW WORLD DICTIONARY, SECOND COLLEGE EDITION (1986). Hence, calling something a “dramatization” may imply that the event actually occurred, such as “dramatizations” of historical events in television programs. This would be accurate language to use if a lawyer were accurately re-enacting the oral argument he delivered before the court. However, it would be misleading to use the word “dramatization” to label an entirely fictional presentation.
14. Certain fictional sketches have attracted the attention of regulators. One is what Hazard calls “the notorious ‘Strategy Session’ used by several plaintiffs’ law firms” and describes thusly:
In the spot actors portray insurance company adjusters or lawyers discussing a newly filed automobile injury claim, and at first consider employing delay tactics to see if the plaintiff will ‘crack.’ When they learn (to their apparent chagrin) that the plaintiff is represented by the advertising law firm, however, they immediately determine to settle the case. In each version of the advertisement, actor Robert Vaughn then faces the audience and suggests that persons with serious injury claims should engage that firm. Hazard §55.4 at p. 55-22 n. 3.
The Indiana Supreme Court reprimanded two lawyers for televising this advertisement in In re: Keller, 792 N.E.2d 865 (Ind. 2003). The Indiana rules prohibited advertising which contained an opinion as to the quality of legal services (a prohibition that is, in our view, overly broad). However, the court reasoned that sanctions were appropriate because the ads “create an impression that the claims they handle are settled, not because of the specific facts or legal circumstances of the claims, but merely by the mention of the name of the respondents’ firm. . . .” 792 N.E. 2d at 868. Similarly, a U.S. District Court held that this advertisement was not protected speech but constituted a material misrepresentation of fact regarding the insurance industry and was likely to create an unjustified expectation that the lawyers advertised can obtain settlements based solely on their reputation and the insurance industry’s fear of them and irrespective of the facts of the case. Farrin v. Thigpen, 173 F. Supp. 2d 427, 440 (M.D.N.C. 2001). In that case insurance industry experts testified about the various factors taken into consideration in deciding whether to settle a claim, and that reputation of the attorney was a small part of the equation. Hazard’s commentary suggests that this outcome is correct. See Hazard §55.4 at p. 55-22 n. 3.
15. Nevertheless, this does not suggest that fictional portrayals are always misleading or likely to create unjustified expectations. An acceptable fictional vignette should be labeled as “fictional” or should be clearly identifiable as fictional, as with lawyers portrayed as giants towering over the town, counseling a space alien about an insurance matter, and “running as fast as blurs to reach a client in distress.” See Alexander v. Cahill, supra. A fictional vignette can convey such a message about a lawyer or law firm so long as the message itself is not misleading or likely to create unjustified expectations. A clearly identified fictional sketch in which a fictional party or opposing counsel shows frustration to learn that the opposing party has retained Firm X would be acceptable. The only limits are that these vignettes should be identified as fictional and ultimately must not lead a reasonable person to form an unjustified expectation. Obviously which fictional portrayals will be appropriate and which deemed misleading may depend, to some extent, on the facts about the lawyer and the contents of the vignette.
Conclusion: Advertising may not be “false or misleading.” Testimonials or dramatizations may be false or misleading if there is a substantial likelihood that a reasonable person will reach a conclusion for which there is no factual foundation or will form an unjustified expectation regarding the lawyer or the services to be rendered. The inclusion of appropriate disclaimer or qualifying language may prevent testimonials or dramatizations from being false or misleading.
Footnotes:
1. In re Utah State Bar Petition for Approval of Changes in Disciplinary Rules of Advertising, 647 P.2d 991, 993 (Utah 1982) (state has substantial and compelling interest in protecting the public from false or misleading advertising by lawyers).
2. Ethics 2000 Commission, Report on the Model Rules of Professional Conduct, Reporter’s Explanation of Changes, available at: http://www.abanet.org/cpr/e2k/e2k-report_home.html.]]>
09-02 - Analyzing five issues regarding attorney representatin of homeowner's associations and association managerstag:webster.utahbar.org,2009:/committees/eaoc//3.27672009-01-06T11:13:58Z2010-01-06T11:16:26ZOPINION NO. 09-02 MAIN OPINION: Issued August 11, 2009 The five issues addressed in this Opinion are based upon the following general scenario: A lawyer represents many homeowner's associations (both condominium and PUD) in various matters, at various times. Many...BlogStaffwww.utahbar.org
OPINION NO. 09-02
MAIN OPINION:
Issued August 11, 2009
The five issues addressed in this Opinion are based upon the following general scenario:
A lawyer represents many homeowner's associations (both condominium and PUD) in various matters, at various times. Many of these associations are nonprofit corporations and others are common law associations. They are all operated through elected volunteer owner representatives who are organized into boards of directors (although they sometimes use diferent names for the representatives such as the management committee or board of trustees). Many
of these boards hire professional managers, as they lack the experience, skils, and time to properly manage the associations. Some associations that the lawyer represents were referred through managers of the associations. Some of these managers work for management companies that manage many associations, thus providing an incentive for the lawyer to develop a good relationship with the manager to hopefully facilitate future referrals of other associations that the manager manages. It is also important for the lawyer to maintain a reasonably good relationship with the manager related to the lawyer's clients managed by that manager, because it is common in the industry for the manager to act as the point of contact with the attorney on legal matters involving an association. The lawyer does not represent or work directly for the manager or management companies.
Issue 1: Given the general circumstances described above, can the lawyer ethically represent associations in matters that do not include adversarial situations with the manager, and is any disclosure required?
Opinion: The lawyer may represent the associations, and no disclosure is required.
Analysis: Under the circumstances summarized in the Introduction, there does not appear to be a conflct of interest in the scenario described in Issue 1. Assuming compliance with the Rules of Professional Conduct generally, the representation does not appear to implicate Rule 1.7 1, and it does not appear that disclosure would be required.
2. Issue 2: Given the general circumstances described above, can the lawyer represent the association in a lawsuit against the manager, and is any disclosure required?
Opinion: conflct of interest exists under this scenario. Whether the clients may consent to the representation wil depend upon the circumstances of the representation.
Analysis: This scenario clearly creates a conflict under Rule 1.7(a), as "there is a significant risk that the representation of (the homeowner's association ('HOA')) wil be materially limited by. . . a personal interest of the lawyer." Lawyer has a personal and financial interest in preserving a friendly relationship with Manager, both to enhance the likelihood of future business referrals, and to preserve existing business relationships with other HOAs with which the manager is affiiated 2.
"Ordinarily, clients may consent to representation notwithstanding a conflct. However, as indicated in (Rule 1.7) paragraph (b), some conflcts are nonconsentable, meaning that the lawyer involved canot properly ask for such agreement or provide representation on the basis of the client's consent 3. A conflct of interest is consentable if each of the four provisions of Rule 1. 7(b) is satisfied:
(b)(1) the lawyer reasonably believes that the lawyer wil be able to provide competent and diligent representation to each affected client;
(b)(2) the representation is not prohibited by law;
(b)(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(b)(4) each affected client gives informed consent, confrmed in writing.
In this case, the scenario described does not involve the representation of adverse "clients" "in the same litigation or other proceeding before a tribunaL." Unless Manager has some other basis for reasonably believing that an attorney-client relationship exists
between Manager and Lawyer, Manager is not a client 4. Additionally, the Issue assumes the absence of pending litigation or similar proceeding, and the representation of Manager by Lawyer also does not appear to be otherwise prohibited by law.
Although the inquiry "(a)ssume(s) for each question that the attorney believes that he or she wil be able to provide competent and diligent representation to the association," such belief must be reasonable in order for a conflct to be waivable. In this case, the Committee lacks sufficient facts to make a determination as to whether such belief would be reasonable. Although Lawyer may not technically owe duties to Manager, Manager's apparent ability to direct present and future business on its face appears to pose a significant threat to Lawyer's ability to provide unfettered loyalty and
independent judgment to HOA 5. Other factors would include the nature of the lawsuit (e.g., a claim that is essentially uncontested, such as for indemnification, versus a claim of fraud).
However, it is possible that Lawyer might reasonably believe that his or her representation of HOA would be unimpaired by assuming an adversarial relationship with Manager. For example, Lawyer might lear that Manager has no actual ability to affect an association's choice of counsel, or the HOA line of business might reflect a relatively minor portion of Lawyer's practice. Lawyer has an obligation to determine whether Rule i. 7(b)(1) is satisfied, based upon the facts actually and constructively known to Lawyer.
The fourh requirement of Rule 1.7(b) is informed consent. Rule 1.0(e) of the Utah Rules of Professional Conduct provides:
(f) "Informed consent" denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and
explanation about the material risks of and reasonably available alternatives to the proposed course of conduct,
(i) "Reasonable" or "reasonably" when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
(j) "Reasonable belief' or "reasonably believes" when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
(m) "Substantial" when used in reference to degree or extent denotes a material matter of clear and weighty importance.
"Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client 6. Merely advising HOA that Manager manages other HOA clients of Lawyer's would not be sufficient to meet this requirement. Rather, Lawyer must disclose not only his or her relationship with Manager, but explain the implications of that relationship, including Lawyer's financial interest in maintaining a good business relationship with Manager in order to keep existing business and/or obtain future referrals.
3. Issue 3: Given the general circumstances described above, can the lawyer represent the association in contract negotiations with manager, and is any disclosure required?
Opinion: The lawyer may represent the association, but disclosure is required.
Analysis: As stated earlier, "there is a significant risk that the representation of (HOA) wil be materially limited by. . . a personal interest of the lawyer," because lawyer has a financial interest in preserving a friendly relationship with Manager. The conflct of interest appears to be consentable, assuming that the four requirements of Rule 1.7(b) are met. See also Rule 1.7, cmt. 28,29, and 32 (addressing nonlitigation conflcts between clients). The lawyer's duty of confidentiality remains in effect. See Rule 1.6.
4. Issue 4: Given the general circumstances described above, can the lawyer represent associations in matters that are not adversarial to the manager, and simply refuse when the association asks the attorney to represent the association in a matter that is adversarial to the manager?
Opinion: Yes.
Analysis: A conflict arises only when Lawyer represents HOA in matters in which Lawyer's personal interest (keeping Manager amenable to continued and futue business) might negatively impact Lawyer's representation of HOA. There would appear to be no such impact when HOA's and Manager's interests are non-adversarial.
In general, a lawyer may refuse to represent a client (and a client may refuse to retain a lawyer) on any given matter. That principle would appear to apply to matters in which HOA and Manager are adversarial. This answer assumes compliance with Rule 1.2( c) (Scope of Representation).
5. Issue 5: Given the general circumstances described above, can the lawyer represent associations in matters that are adverse to the manager, but limit that representation by refusing to engage in an actual lawsuit, and, is any disclosure required?
Opinion: The lawyer can representat associations in such matters only if the
Analysis: As indicated in response to Issue 2, a clear conflct of interest exists in representing HOA in matters adverse to Manager. Accordingly, representation would be permitted only if all four of the elements of Rule 1. 7(b) are present. Those requirements include Informed Consent, which requires complete disclosure of pertinent facts, including the nature of Lawyer's personal interest and its specific implications. This answer assumes compliance with Rule 1.2( c) (Scope of Representation). requirements of Rule 1. 7 (b) are satisfied.
Note: the scenarios presented in the letter of inquiry, Lawyer would have to consider the impact of his or her representation on other existing clients. For example, if Lawyer is representing HOA1 in a dispute against Manager, such representation could impact other HOA clients that employ the same Manager. In the event of a conflct, the same principles set forth above would apply to these other clients.
1. Rule 1.7 of the Utah Rules of Professional Conduct provides:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflct of interest. A concurrent conflct of interest exists if:
(1) The representation of one client wil be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients wil be materially limited by the lawyer's responsibilties to another client, a former client or a third person or by a personal interest of the lawyer.
2. See, e.g., Formal Advisory Opinion 05-11,284 Ga. 283 (Ga. 2008) ("the attorney might have a conflict with the attorney's own interests under Rule 1.7(a), since the attorney would have a financial interest in maintaining a good business relationship with the non-client insurance company"); In re Mid-America Living Trust Assoc., Inc., 927 S.W.2d 855, 862 (Mo. 1996, En Banc) ("attorneys who regularly receive referrals from trust marketing companies, without being
directly employed by them, also have been found to suffer from a conflict of interest. An attorney's advice may be tainted by his desire to continue receiving referrals."), and cases cited.
3. Rule 1.7, cmt. 14.
4. See, e.g., D.R.Prof.Conduct 1.13 (Organization as a Client). The letter of inquiry assumes that Manager is not a client. These opinions further assume that Manager has not sought Lawyer's
advice on matters adverse to the HOA in such a manner as to become a "prospective client," to whom Lawyer would owe duties under Utah Rule of Professional Conduct 1.18 (Duties to Prospective Client).
5. See, e.g., UT Eth. Op. 06-03 (where lawyer proposed to operate entity that would lend litigation expenses to lawyer's client, "Lawyer's dual loyalties make it diffcult, if not impossible, for Lawyer to provide objective, unbiased advice and representation to the client where, by doing so, the interests of Affiliated Lending might be impaired, or the personal interests of Lawyer in Affiiated Lending might be adversely affected.")
6. Rule 1.7, cmt. 19.]]>
Dissenting Opinion For 08-01tag:webster.utahbar.org,2008:/committees/eaoc//3.31852008-04-08T11:32:23Z2011-03-02T11:51:16ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE OPINION 08-01 PDF Version DISSENT: For Main Opinion click here>>> 1. Dissents from a Utah Ethics Advisory Opinion are understandably rare because of the harmonious working relationship among Ethics Committee members and the...BlogStaffwww.utahbar.org
click here>>>
1. Dissents from a Utah Ethics Advisory Opinion are understandably rare because of the harmonious working relationship among Ethics Committee members and the shared objective: to provide well-researched and analyzed ethics opinions upon which Utah State Bar members can hopefully rely. It is, therefore, with some trepidation that I dissent from the main opinion. In my view, the main opinion is logically inconsistent with a Tenth Circuit decision that binds Utah lawyers in federal court; incompatible with judicial and ethics opinions in other jurisdictions; and potentially harmful to what I think should be the overriding ideal of all ethics opinions—to ensure justice for clients.
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2. To begin, I believe the Committee’s framing of the issue is overly broad. As the Opinion states the issue: “May an attorney provide legal assistance to litigants appearing before tribunals pro se and prepare written submissions for them without disclosing the nature or extent of such assistance?” The Committee’s answer to that question is an unqualified “yes.” Yet, I believe the Committee’s categorical all-or-nothing, black-or-white answer, inclusive of “substantial” with “insubstantial” or quite limited legal services, is ill-advised and contrary to law. To me, the issue is not whether “insubstantial,” unbundled legal assistance for pro se litigants is permissible and ethical. No one has ever disagreed that such assistance is permissible, ethical and encouraged. In fact, Rule 1.2(c) of the Utah Rules of Professional Conduct provides for this type of limited representation.1 Instead, the issue for me, and most jurisdictions that analyze the issue, is whether undisclosed and “substantial” legal assistance, commonly called ghost-lawyering is ethical. Admittedly, the difference between “substantial and “insubstantial” can, in some circumstances, be ambiguous. Presumably, no one would argue that ghost-written appellate briefs or individualized complaints are “insubstantial”— or, to the contrary, that boiler-plate forms available to anyone on the Utah courts web-site (I assume written by lawyers) run afoul of current prohibitions against ghost-lawyering.
3. As described in Nevada Formal Opinion No. 34, issued in 2006,“Ghost-lawyering occurs when a member of the bar gives substantial legal assistance, by drafting or otherwise, to a party ostensibly appearing pro se, with the lawyer’s actual or constructive knowledge that the legal assistance will not be disclosed to the court.”2
4. Citing the same cases and law review articles as does our Committee in Opinion No. 74, the Nevada Opinion, as initially issued, came to an opposite result, concluding, as do I, that “ghost-lawyering is unethical unless the ghost-lawyer assistance and identity are disclosed to the court by the signature of the ghost-lawyer under Rule 11 [the same as Rule 11 of the Utah Rules of Civil Procedure] upon every paper filed with the court for which the ‘ghost-lawyer’ gave ‘substantial assistance’ to the pro se litigant by drafting or otherwise.”3
5. From the outset, there appears to be some disparity of perception between the main opinion and me over the potential harm in ghost-lawyering. The Committee writes, “It is not clear to this Committee at what point such a typical pro se party needing limited scope legal help has obtained ‘extensive’ or ‘substantial’ help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.” The Committee further opines, “Therefore, the ‘unfair advantage’ that pro se parties ostensibly gain through the court’s liberal construction of their pleading—one of the bases for prohibiting ghost-writing—does not appear to apply under Utah law.”
6. The underlying rationale for the main opinion from this observation appears to be that needed legal assistance in domestic relations cases will be unavailable if disclosure of ghost-lawyers is ethically mandated; and that Utah law presumes there is no “unfair advantage” to ghost-represented litigants. To me, there are at least two insurmountable difficulties with such rationale. First, the proper answer to an ethical issue is not based upon a result-oriented quantity test. Whether more or fewer indigents will receive legal assistance if ghost-lawyers are disclosed to opposing parties is not determinative of the ethical propriety in failing to disclose. Second, Utah courts, as the opinion notes, may not be “required” to defer to ghost-written pleadings and putatively pro se litigants, but that observation does not answer the underlying issue—whether the courts, in fact, do give deference to ghost-written pleadings, or, more fundamentally, whether they should, or if so, under what circumstances. o my knowledge, no court or ethics opinion has ever suggested that the line between “limited” or “substantial” legal assistance from ghost-lawyers is easily drawn. In fact, the Tenth Circuit in Duran v. Carris,4 acknowledges that the difference is problematic. That does not mean, however, there is no difference or that there is no dishonesty or harm in substantial legal assistance from undisclosed ghost-lawyers.
7. A case in which I have intimate familiarity solidified my view that substantial ghost-lawyering can indeed be harmful, and is unethical. In the case, a pro se petition in a domestic-relations matter seeking comprehensive and unusual remedies, inclusive of child custody and relocation for the children, was filed. It would have been obvious to anyone that ghost-lawyering was involved because the petition included statutory citations, sophisticated analysis and legalese, yet the petitioner was not only unsophisticated in legalese, but spoke no English. The respondent was also unsophisticated and only moderately fluent in English. Initially, the respondent was also pro se, but fortunately secured the assistance of pro bono counsel, who filed an entry of appearance. With the help of respondent’s pro bono counsel, the identity of petitioner’s ghost-lawyers eventually was disclosed. Without respondent’s pro bono counsel, I doubt if petitioner’s “ghost-lawyers” would ever have been disclosed.
8. Yet, by the time respondent secured pro bono counsel, rather draconian orders, based upon largely fabricated, ghost-written pleadings, had already been imposed against respondent. Even after respondent secured pro bono counsel, attempted communication between respondent’s pro bono counsel and the fictitious pro se litigant to settle, resolve or even identify certain issues was impossible. Letters from respondent’s counsel were written to the pro se litigant (undoubtedly because the identity of petitioner’s ghost-lawyers was then unknown), discussing aspects of the case. But, being unable to read or understand English, much less legal jargon, petitioner did not comprehend the substance or procedure discussed by respondent’s counsel in his letters, nor the remedies sought by her ghost-lawyers in the so-called pro se petition. Had the respondent, who ultimately prevailed in the matter some years later, not been fortunate enough to secure pro bono counsel, he and the parties’ children would have been severely and permanently disadvantaged. Such a result would have contravened what the court itself concluded was the just result after a lengthy trial where respondent was represented by his pro bono counsel, and petitioner was represented by her formerly undisclosed ghost-lawyers.
9. Some have suggested that legal assistance for indigents would be impaired if ghost-lawyering were not permitted. To me, the dispositive answer to such an assertion is that the legitimate and necessary points of fact and law to be made in litigation can certainly involve indigents on both sides. Facilitating the first indigent-litigant who successfully contacts a ghost-lawyer may indeed provide impetus for more petitions and complaints from the poor in need of legal services, but can be detrimental to justice for all, which should be our overriding concern.
10. I am also troubled by the Committee’s analysis of Duran v. Carris, the Tenth Circuit case directly on point. The Committee quotes a portion of Duran, as follows:
We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledged by signature. In fact, we agree with the New York City Bar’s ethics opinion that ‘an attorney must refuse to provide ghostwriting assistance unless the client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.’ . . . We hold today, however, than any ghostwriting of an otherwise pro se brief must be acknowledged by the signature of the attorney involved.5
11. The main opinion acknowledges that in federal court, Utah lawyers must comply with Duran. This, in itself, creates a problem for Utah lawyers because the main opinion, presumptively applicable to Utah lawyers in Utah courts, is at odds with federal law. To minimize that conflict, the Committee maintains that it is not clear how far Duran extends beyond its facts. The Committee then implies that Duran is limited to ghost-written appellate briefs.
12. This is not an accurate reading of Duran. Under Federal Rule of Civil Procedure 11(b), the Duran Court concluded that applicable “Ethics requires that a lawyer acknowledge the giving of his advice by the signing of his name. Besides the imprimatur of professional competence such a signature carries, its absence requires us to construe matters differently for the litigant, as we give pro se litigants liberal treatment, precisely because they do not have lawyers.”6 Here again, the main opinion appears to conflict with federal law. The main opinion asserts that under Utah law, Utah courts are not required to give deference to pro se litigants, even though, in my experience, they do. To the contrary, under federal law, as Duran explains, such deference is “required.”
13. More significantly, it is beyond dispute that “giving of . . . advice,” which the Tenth Circuit condemns when it is “substantial,” unless there is a “signing of his [the attorney’s] name,” is hardly limited to writing appellate briefs. The Tenth Circuit acknowledges that the definition of “substantial” legal assistance that must be disclosed under Rule 11 is problematic. I emphasize, however, that Duran’s holding does not turn on the fact that the ghost-written document was an appellate brief, rather than some other document. Instead, the Court concluded:
It is disingenuous for Mr. Duran and Mr. Snow to argue that ghost writing [not only of briefs but any substantial submission] represents a positive contribution such as reduced fees or pro bono representation. Either of these kinds of professional representation are analogous to the concept of rescue in the field of torts. A lawyer usually has no obligation to provide reduce fee or pro bono representation; that is a matter of conscience and professionalism. Once either kind of representation is undertaken, however, it must be undertaken competently and ethically or liability will attach to its provider.7
14. In the Tenth Circuit, the ghost-lawyer violates the ethical test when the ghost-lawyering is “substantial,” which is obviously not limited to brief writing. The Duran Court highlighted that its decision is consistent with decisions in many other jurisdictions. Such decisions condemn ghost-writing of documents involving any substantial attorney assistance, such as “pleadings,” “complaints and other documents.” Duran holds that such ghost-writing “constitutes a misrepresentation to this court by litigant and attorney.”8
15. Because Duran has not been overturned, the Goldschmidt law review article the main opinion references, which rebuts claimed unfair advantage of ghost-lawyering, is not controlling or even highly relevant. Notwithstanding any law review article, the Tenth Circuit opinion is binding upon Utah lawyers practicing in Utah federal courts. Likewise significant to this dissent, the Tenth Circuit opinion has been followed by other federal courts.
16. The most recent reported federal case on point is Delso v. Trustees for the Retirement Plan.9 The Delso Court acknowledges that there is currently “a nationwide discussion regarding unbundled legal services, including ghostwriting, [that] has only burgeoned within the past decade.”10 The Court further notes that “Proponents of unbundled legal services [such as our Committee] have touted its benefits, including increased access to justice for the poor, efficiency in pro se matters, enfranchisement of clients and opportunities for attorneys.”11 The Court even acknowledges the Goldschmidt article, as does the main opinion.
17. Nonetheless, the Court explains the significant downsides of “Ghost-lawyering, including unfair advantage to pro se litigants.” The Delso Court examines the public policy of ghost-writing, quoting from other courts that conclude that ghost-writing, even if deemed ethical, “does little for the judicial process, inasmuch as pro se litigants are ill equipped to prosecute the complex issues raised without continued legal assistance.”12 That observation certainly reflects my experience. Aside from such practical difficulties, the Delso Court primarily relies on ethical rules of candor. Delso quotes Duran that “if neither a ghostwriting attorney nor her pro se litigant client disclose the fact that any pleadings ostensibly filed by a self-represented litigant were actually drafted by the attorney, this could itself violate the duty of candor.”13 Delso then cites to multiple courts that have held “ghostwriting of pleadings was violative of Fed. R. Civ. P. 11.”14
18. I am, therefore, troubled with the anomaly that under the main opinion, ghost-writing would remain unethical for Utah lawyers involving pro se litigants in Utah federal courts, yet permissible in Utah state courts. I do not believe such a dichotomy is advisable. The main opinion further notes that Colorado, Florida and Wyoming all have rules mandating disclosure of substantial counsel assistance, but “Utah has no comparable rules for attorneys who engage in ghost-writing for a pro se litigant to notify the court of this assistance.” From this and similar observations, the main opinion opines that, “in the absence of any court rule addressing the issue, we conclude that it is not dishonest behavior of an attorney to provided limited legal help to a pro se litigant without disclosing the fact of that assistance to the court.”
19. This reasoning runs afoul of a recent Utah Supreme Court decision as well as logical thinking. In Sorensen v. Barbuto,15 an attending physician, Dr. Barbuto, claimed that his ex parte communications with opposing counsel in plaintiff Sorensen’s personal injury actions were permissible because they were not proscribed by an explicit ethical rule. The Utah Supreme Court disagreed and vacated Utah Ethics Advisory Opinion No. 99-03, which had concluded such communication was permissible because, “No ethical rule prohibits ex parte contact with plaintiff’s treating physician when plaintiff’s physical condition is at issue.”16 Like the main opinion here, Utah Opinion No. 99-03 was premised on the absence of an explicit ethical rule, concluding that such absence therefore permitted ex parte communications between opposing counsel and physicians. Nonetheless, the Supreme Court held: “Because it would be illogical to permit attorneys to lead physicians into breaching their duty of confidentiality, we vacate Utah State Bar Ethics Advisory Opinion Committee Opinion 99-03 and instruct lawyers to confine their contact and communications with a physician or therapist who treated their adversary to formal discovery methods.”17
20. For the Committee to conclude here that Utah lawyers are not precluded under present Rule 11 from ghost-lawyering, irrespective of Utah’s lack of explicit rules that parallel those in Colorado, Wyoming and Florida, is illogical, runs afoul of Sorensen’s analysis and disregards the Tenth Circuit holding in Duran. Besides Rule 11, Rule 3.4 of the Utah Rules of Professional Conduct mandates “Fairness to Opposing Party and Counsel.” In the Utah domestic-relations case referenced above, it was hardly “fair” to the ultimately prevailing respondent that he had to endure the barrage and practical adverse impact of ghost-lawyer pleadings ostensibly filed as pro se.
21. Nevada Ethics Opinion 34, issued in December 2006, came to the same conclusion as I did. The Nevada opinion acknowledges “differing views” on ghost-lawyering, also citing Jona Goldschmidt, “In Defense of Ghostwriting.” That committee nonetheless concluded that “it is unethical to act as a ‘ghost-lawyer’ unless both the ghost-lawyer assistance and identity are disclosed to the court by the signature of the ghost-lawyer under Rule 11 upon every paper filed with the court for which the ghost-lawyer gave substantial assistance to the pro se litigant or otherwise.”18
22. While it remains to be seen whether the Nevada ethics opinion will be revised, the opinion, as issued, cited many other state bar opinions in support of its conclusion, which opinions stand to this day.19 Not all of these opinions were issued before the ABA undertook a comprehensive retooling of its Model Rules in 2000.
23. I believe it also important to acknowledge that the Nevada Ethics Committee, while in agreement with Duran, is not bound by a Tenth Circuit decision, nor are Utah lawyers directly affected by a Nevada opinion, because Nevada is a Ninth Circuit state. However, we in Utah do not have the option of disregarding an applicable Tenth Circuit opinion. Consistent with Duran, the Nevada Ethics Committee initially concluded that “it is an act of misrepresentation to the court that violates the attorney’s duty of candor to the courts as required by the Nevada Rule of Professional Conduct 3.3.” This Nevada rule is identical to the Utah Rule of Professional Conduct, 3.3, which states, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. . . .”
24. In summary, the main opinion concludes, “It is not dishonest conduct to provide even extensive undisclosed legal help to a pro se party, including the preparation of various pleadings for the client, unless a court rule or ethical rule explicitly requires disclosure.” I disagree. For the reasons explained above, I agree with the Tenth Circuit that ghost-lawyering of any substantial work product submitted to a Utah court as pro se is dishonest and unethical. No further amendment of Utah’s present Rules of Professional Conduct is necessary to preclude such unethical conduct.
This dissent is subscribed to by Committee Member Maxwell A. Miller and two other Committee Members.
Footnotes
1. Rule 1.2(c) provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
2. State Bar of Nev., Standing Comm. Ethics & Prof. Resp., Formal Op. 34, at 1 (Dec. 11, 2006) (hereinafter “Nevada Opinion”). On October 24, 2007, the Nevada Standing Committee on Ethics and Professional Responsibility requested that this opinion be noted as “temporarily withdrawn,” to permit “further deliberation and possible revision in light of recent developments.” The Nevada Opinion includes the ABA references in the Committee’s main opinion although, as of March 2008, no changes in the Nevada opinion had been made. Whatever the ultimate revision of the Nevada opinion, if any, I believe the Nevada Ethics Committee “got it right” the first time. The Nevada Opinion as initially written is consistent with what I find is the virtually unanimous view of federal courts, significantly including the Tenth Circuit, as discussed in this dissent.
3. Nevada Opinion 34, at 1.
4. 238 F.3d 1268 (10th Cir. 2001).
5. Id. at 1273. (emphasis added).
6. Id. at 1272 (emphasis added)
7. Id. (emphasis added).
8. Id. (emphasis added)
9. 2007 U.S. Dist. LEXIS 16643 (Mar. 5, 2007)
10. Id. at *37.
11. Id. at *38.
12. Id. at *52, quoting 2001 U.S. Dist. LEXIS 13269.
13. Id. at *45, quoting Duran, 283 F.3d at 1271.
14. Id.
15. 2008 UT 8.
16. Id. at ¶ 26, citing Utah Ethics Adv. Op. 99-03, 1999 WL 196999 (Utah St. Bar).
17. Id. at ¶ 27.
18. Nev. Eth. Op. 34, at 6.
19. Ellis v. Maine, 448 F.2d 1325 (1st Cir. 1971); N.Y. State Bar Comm. Prof. Ethics, Op. 613 (Sept. 24, 1990); Conn. Ethics Op. 98-5 (Jan. 30, 1998); Iowa Ethics Op. 97-31 (June 5, 1997); Okla. Bar Ethics Op. 2001-4 (2001).
08-01 - 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 reprtag:webster.utahbar.org,2008:/committees/eaoc//3.27662008-01-06T11:10:43Z2011-03-02T11:45:11ZOPINION NO. 08-01 MAIN OPINION: For Dissent Opinion click here>>> Issued April 8, 2008 1. 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...BlogStaffwww.utahbar.org
OPINION NO. 08-01
MAIN OPINION:
For Dissent Opinion click here>>>
Issued April 8, 2008
1. 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?]]>
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.
3. Background: Our Committee has previously issued three opinions regarding limited-scope legal representation under certain circumstances regarding various aspects of limited-scope legal representation.1 These opinions were issued under the Utah Code of Professional Responsibility that was superseded by the Utah Rules of Professional Conduct, adopted by the Utah Supreme Court in 1988 and modified in certain respects by amendments that were adopted by the Court in November 2005. A synopsis of those opinions is found in Appendix A to this Opinion. In this opinion, we undertake a more comprehensive analysis of the “behind the scenes” limited representation under the current Utah rules.
4. Recently, the ABA Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 07-446 (May 5, 2007), comprehensively discussing assistance to pro se parties and expressly superseding ABA Informal Opinion 1414, which disapproved certain undisclosed assistance of pro se litigants under the prior Code of Professional Conduct. ABA Opinion 07-446 concluded that under the Model Rules of Professional Conduct, “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 of the nature or extent of such assistance.”
5. Analysis: In addressing the issue posed, we begin by recognizing that a new regulatory framework is in place nationally and in Utah that provides directly for limited-scope legal representation of clients who, for various reasons, engage lawyers for narrowly circumscribed participation in their legal affairs.
6. Rules of Professional Conduct: Rule 8.4(c) of the Rules of Professional Conduct prohibits “conduct involving dishonesty, fraud, deceit or misrepresentation.” However, none of the comments to that rule suggest that failure to notify opposing parties and the court of limited assistance to a pro se party involves such dishonest conduct.2 Recently issued ABA Formal Opinion 07-446 expressly concludes that it does not: “[W]e do not believe that nondisclosure of the fact of legal assistance is dishonest so as to be prohibited by Rule 8.4(c).” Because the Rules of Professional Conduct include comments that explain and illustrate “the meaning and purpose of the rule” and “are intended as guides to interpretation,”3 and because the ABA drafters certainly knew of Informal Opinion 1414, it would have been obvious to include this example to illustrate dishonest conduct if that had been intended.
7. More significantly, however, is that the Utah and ABA Rules of Professional Conduct include a rule that explicitly addresses the possibility of a lawyer’s limiting the scope of representation of a client. Rule 1.2(c) provides: “A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comments [6], [7] and [8] address such limited-scope representation. None of these comments suggest that “extensive undisclosed assistance” to a pro se party is an inappropriate limited-scope representation.
8. Similarly, Rule 1.2(d) also addresses the issue of a lawyer’s assisting a client in “criminal or fraudulent” behavior and provides in relevant part: “A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal or fraudulent . . . .” Comments [9] through [14] provide illustrations of Rule 1.2(d) and again fail to identify that providing undisclosed assistance to a pro se party is assisting a client’s fraud. If the drafters of the Rules of Professional Conduct had intended to impose a prohibition against undisclosed assistance to pro se litigants, Rule 1.2 regarding both limited-scope representation and assisting in a client’s fraud would have been one place to make this clear.
9. The Rules of Professional Conduct further signal the appropriateness of limited-scope representation through Rule 6.5, Nonprofit and Court-Annexed Limited Legal Service Programs. This rule addresses conflicts of interest when “a lawyer . . . under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter.” The comments to Rule 6.5 recount the fact that such limited-scope programs exist and what they do:
Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services such as advice or the completion of legal forms that will assist persons to address their legal problems without further representation by a lawyer . . . [through] programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs . . . . 4
Here again, if the drafters of the Rules had wanted to prohibit “substantial professional assistance” that was not disclosed, Rule 6.5 would have been a likely place to include such a provision.
10. Accordingly, given the decision to expressly include and permit limited-scope representation in the Rules of Professional Conduct and the failure of the Rules and comments to state or even suggest that nondisclosure of substantial assistance to pro se parties is dishonest conduct, we conclude that the drafters of the current Rules did not intend to prohibit undisclosed, substantial professional assistance to pro se parties.
11. Rules of Civil Procedure: We also believe that the ethical requirements for limited-scope representation must be put in the wider context of other law and court rules. Some states have adopted rules of procedure that address how a lawyer who is providing limited legal help must act and what must be disclosed to the court. For example, Colorado Rules of Civil Procedure 11(b) provides that pleadings filed by a pro se party that were prepared with the drafting assistance of a lawyer must include the lawyer’s name and contact information, and the assisting attorney must so advise the pro se party. Rule 12.040 of the Florida Family Law Rules of Procedure requires a pro se party who has received a lawyer’s help to certify that fact in the pleadings. Rule 102(a)(1) of the Wyoming Rules for District Court provides that the appearance of an attorney’s name on the pleadings indicates that the attorney assisted in their preparation does not constitute an appearance by the attorney. Utah has no comparable court rules for attorneys who engage in ghost writing for a pro se client to notify the court of this assistance.
12. Utah Rules on Disclosure: Utah has addressed two circumstances in which an attorney must disclose to the tribunal the limited services provided to a client. Rule 2.4(c) of the Utah Rules of Professional Conduct uniquely permits a lawyer mediator to “prepare formal documents that memorialize and implement the agreement reached in mediation” and “with the informed consent of all parties confirmed in writing, may record or may file the documents in court, informing the court of the mediator’s limited representation of the parties for the sole purpose of obtaining such legal approval as may be necessary.” 5
13. Rule 75 of Utah’s Rules of Civil Procedure, “Limited Appearance,” provides in relevant part:
(a) An attorney acting pursuant to an agreement with a party for limited representation . . . may enter an appearance limited to one or more of the following purposes:
(1) filing a pleading or other paper;
(2) acting as counsel for a specific motion;
(3) acting as counsel for a specific discovery procedure;
(4) acting as counsel for a specific hearing, including a trial, pretrial conference, or an alternative dispute resolution proceeding; or
(5) any other purpose with leave of the court.
(b) Before commencement of the limited appearance the attorney shall file a Notice of Limited Appearance signed by the attorney and the party. The Notice shall specifically describe the purpose and scope of the appearance and state that the party remains responsible for all matters not specifically describe in the Notice . . . . The Notice of Limited Appearance and all actions taken pursuant to it are subject to Rule 11.
Utah Rules of Civil Procedure 74, Withdrawal of Counsel, and 5, Service, both reference and provide further guidance regarding how the “limited appearance” will affect service and withdrawal.
14. The Utah Supreme Court recently approved both of these rules permitting certain limited -scope services by a lawyer and requiring notice to the court in these circumstances. The fact that the Court did not require any disclosure except in these circumstances suggests that assistance short of an actual appearance without disclosure is permitted and is not considered “dishonest conduct.”
15. It is also important to consider the requirements imposed by Rule 11 of the Utah Rules of Civil Procedure to understand the context of this issue. Rule 11(a) requires that every paper filed with the court be signed by “one attorney of record” or “if the party is not represented by an attorney, . . . by the party.” Under Rule 11(b), that signature “is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, (1) it is not being presented for any improper purpose . . . . . (2) the claims . . . are warranted by . . . law, (3) the allegations . . . have evidentiary support . . . .”6
16. If an attorney drafts and appears to argue one motion only, the attorney will appear under Rule 74 and comply with Rule 11 for that portion of the case. The attorney must have performed “reasonable inquiry” to insure that the facts presented (e.g., in supporting affidavits) have “evidentiary support.” However, where an attorney provides limited -scope representation to assist a party to draft a complaint or answer after the attorney has simply interviewed the party, but is not engaged to appear in court, it is doubtful that the attorney could sign the complaint or answer as part of a limited appearance under Rule 75 and in compliance with Rule 11, since that attorney would have made no “inquiry” beyond talking with the client. In that case, it must be the client who certifies that he has “evidentiary support” as required by Rule 11, since only the client will have investigated the facts. Where the client will alone sign the papers, there is no court rule or procedure that requires the attorney who assists with drafting to notify the court of this assistance, no rule that tells the lawyer how to inform the court of the limited legal help provided, and no rule that tells the client how to inform the court of the limited legal help received. Accordingly, the “nondisclosure” of the assistance could not reasonably be considered “dishonest conduct” prohibited by the Rules of Professional Conduct since there is no procedure provided to disclose.
17. Other States’ Rules: Both Washington and Colorado have amended their Rule 11 provisions to provide that “in helping to draft” a pleading “the attorney certifies” that it is well-grounded in fact and law and not interposed for any improper purpose. These rules further provide that when an attorney provides drafting assistance the attorney “may rely on the otherwise self-represented persons’ representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts.”7 Colorado further provides that when an attorney assists a pro se party “in filling out pre-printed and electronically published forms that are issued through the judicial branch” the attorney is not subject to the certification or name disclosure requirements. Should the Utah Supreme Court wish to impose some requirement for lawyers who provide drafting assistance to notify the court, we would expect that it would do so by explicitly setting forth the requirement, as has been in certain other states. (We note, as a practical matter, that when attorneys at court-annexed legal clinics provide advice and drafting assistance under Rule 6.5, it may be impossible for the attorney to insure that the client ultimately provides notice of that assistance to the court on the final draft papers the client eventually files.8)
18. Moreover, even Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper by Utah Opinion 74 and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, the party then may obtain brief advice as to service of process. Thereafter the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to this Committee at what point such a typical pro se party needing limited scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.9
19. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.10 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
20. In any event, Utah law provides that “as a general rule, a party who represents himself will be held to the same standard of knowledge and practice as any qualified member of the bar.”11 While a judge may give an unrepresented party leniency, this is not required under Utah law. Therefore, the “unfair advantage” that pro se parties ostensibly gain through the court’s liberal construction of their pleading—one of the bases for prohibiting “ghost-writing”—does not appear to apply under Utah law.
21. Finally, we note that the Utah State Courts website explicitly describes “limited legal help” on its Self-Help Resources page, indicating that an attorney might “only advise” or “help draft” or “review a draft” or “any combination of these kinds of services.”12
22. Judicial Precedent: The Committee is not aware of any Utah Supreme Court opinion that addresses the questions presented here.
23. It is important, however, to take account of Duran v. Carris,13 a Tenth Circuit opinion. In this case, a New Mexico lawyer who had represented the plaintiff/appellant in the trial court, was criticized for ghost-writing the brief appealing the dismissal of the case for failure to state a claim. This per curiam opinion relied on Rule 11 of the Federal Rules of Civil Procedure, which requires pleadings be signed, Rule 3.3 of the Rules of Professional Conduct, which requires candor to the tribunal, Rule 8.4 of the Rules of Professional Conduct, which prohibits conduct involving misrepresentation, and case law that accords pro se parties leniency. The Tenth Circuit opinion states:
[The attorney’s] actions in providing substantial legal assistance to [the client] . . . without entering an appearance in this case not only affords [the client] . . . the benefit of this court’s liberal construction of pro se pleadings . . . but also inappropriately shields [the attorney] . . . from responsibility and accountability for his actions and counsel.14
The opinion holds as follows:
We recognize that, as of yet, we have not defined what kinds of legal advice given by an attorney amounts to “substantial” assistance that must be disclosed to the court. Today, we provide some guidance on the matter. We hold that the participation by an attorney in drafting an appellate brief is per se substantial, and must be acknowledge by signature. In fact, we agree with the New York City Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting assistance unless the client specifically commits herself to disclosing the attorney’s assistance to the court upon filing.” . . . We hold today, however, than any ghostwriting of an otherwise pro se brief must be acknowledged by the signature of the attorney involved. 15
24. Certainly, Utah lawyers who appear before Tenth Circuit must be aware of this opinion and comply with it. A Utah lawyer who writes a brief for a pro se party must acknowledge this participation by signing the brief filed with the Tenth Circuit.
25. However, it is not clear how far the Duran v. Carris opinion extends beyond its own rather unusual facts. First, the Tenth Circuit opinion regarding a New Mexico lawyer’s failure to comply with ethical rules that apply to him does not bind the Utah Supreme Court in its interpretation of the Utah Rules of Professional Conduct. Second, the lawyer’s conduct in failing to sign a brief suggests malfeasance that providing limited legal help in the trial court typically does not. Here, the lawyer wrote a brief for an appeal from a dismissal for failure to state a claim, yet declined to sign the brief. This suggests that the lawyer was intentionally assisting a client to pursue a cause of action knowing it was frivolous, but declining to appear to avoid sanction. In Utah, Rule of Professional Conduct 3.3 requires candor and prohibits a lawyer from failing to disclose to a tribunal legal authority the lawyer knows is directly adverse to his position. And Rule 3.1 prohibits a lawyer from bringing any proceeding “unless there is a basis in law and fact for doing so that is not frivolous.” The facts of Duran v. Carris suggest that the attorney was avoiding being charged with violating those provisions by declining to sign the brief.
26. There are many reasons other than dishonesty and malfeasance that an attorney might provide extensive assistance with a trial-court matter, yet would not sign a pleading and enter appearance as counsel. Initially, the attorney may interview the client, advise about the claims that are well founded, and draft a complaint. Yet, unless the attorney further investigates the facts and accepts the case for full representation, the attorney would not enter an appearance. The attorney may provide further assistance with service, with discovery, and with trial preparation either on a pro bono or reduced-fee basis to permit the client to prosecute his claim without paying for full-service representation. The Duran v. Carris case should not be extended to prohibit such assistance in the absence of the attorney’s intentionally aiding a client to bring a case the lawyer believes is frivolous or without legal foundation.
27. We agree that attorneys who intentionally assist pro se parties to file frivolous cases can be sanctioned for this behavior under Rule 8.4. Similarly, an attorney cannot act as a mere scrivener and draft a complaint (or a brief) at the client’s behest without forming a professional opinion that a cause of action has a basis in law and fact based on the client’s description of the facts. Such negligent conduct could be sanctioned as incompetence in interviewing, analyzing and advising the client. Indeed, both the Duran v. Carris case and early New York cases16 that condemned ghost-writing for a frequent litigant suggest that the misconduct is in helping a litigant bring a frivolous matter, not providing extensive help to a pro se litigant who has a meritorious claim. This Committee believes that sanctioning such intentional wrong-doing or negligence is preferable to a sweeping prohibition of extensive assistance to pro se parties.
28. For all of the reasons set forth above, in the absence of any court rule addressing the issue, we conclude that it is not dishonest behavior of an attorney to provided limited legal help to a pro se litigant, including assistance with drafting of pleadings, without disclosing the fact of that assistance to the court.
29. Disclosures Required for Limited Legal Help: As set forth above, we conclude that the only disclosures that an attorney must make to the court (or to other parties) are disclosures expressly required either by court rule or the Rules of Professional Conduct. Disclosure to the court is required where a lawyer-mediator prepares documents to file in court after a successful mediation.17 Similarly, Rule 75 of the Utah Rules of Civil Procedure sets forth requirements, including that the lawyer enter an appearance in accordance with Rules 11, when the attorney makes a limited appearance.
30. Rule 1.2(c) of the Utah Rules of Professional Conduct does require that the attorney obtain “informed consent” from the client prior to providing a limited scope of representation, and this requires appropriate disclosures to the client. The Rules define “informed consent” as agreement “after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”18 Exactly what must be explained to a client prior to providing limited-scope assistance—the information that will permit the client to make an informed decision whether to proceed in this way, including alternative courses the client could consider—is, of necessity, highly fact-intensive and case-specific. Increasingly, books and articles and web-posted reports provide advice and suggested forms for undertaking limited representation.
31. We note one important limit on securing client agreement to limited representation. It is only permitted “if the limitation is reasonable under the circumstances.” A comment illustrates this limitation:
If . . . a client’s objective is limited to securing general information the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief telephone consultation. Such a limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely.19
Obviously there are other circumstances in which a proposed limitation would not be “reasonable” given the nature of the case.
32. Providing unbundled legal services does require particular attention and care to various other ethical rules. Comment [8] to Rule 1.2 instructs that “all agreements concerning a lawyer’s representation of a client must accord with the Rules of Professional Conduct and other law.
33. First, Rule 1.1 expressly insists that the legal services be “competent.” As Opinion 330 of the District of Columbia Bar states: “In other words, the scope of the services may be limited but their quality may not. When hired to diagnose legal problems, an attorney providing services under an unbundling arrangement must be as thorough in identifying legal issues as an attorney who intends to continue with a case through its conclusion.” In providing limited legal help, an attorney must nevertheless alert the client to any legal problem the attorney discovers, even if outside the scope of the representation, according.20 We have previously opined that an attorney does not perform competently if the lawyer is merely a scrivener.
Various state bars have addressed the limitation on legal services where the lawyer provides only legal analysis and drafting services. We can find no judicial or ethics opinion that approves drafting services alone; the drafting services are always an adjunct to analysis and advice provided by the lawyer. Finally, best practices in “unbundled” legal services are addressed in various books and articles, and we can find none that suggest drafting services alone are adequate or appropriate . . . . It is difficult to understand how a lawyer could appropriately assist an individual to file pro se divorce pleadings without advising the party when his claims appear to lack any legal support and without advising the party regarding the evidentiary support the party will need to support certain contentions. In the absence of any court rules that address the propriety of ghostwritten pleadings, this Committee concludes that, at a minimum, a lawyer may not limit her services to conforming a party’s pleadings to proper form without providing analysis and advice to the party seeking such advice.21
Accordingly, prior to drafting a paper for a client, the lawyer must interview the client sufficiently and know the law adequately to conclude that the paper is warranted based on the facts as reported by the client.
34. Other duties that are not diminished by the limited legal service agreement are the duties of diligence, Rule 1.3, the duty to communicate, Rule 1.4, and the duty of confidentiality, Rules 1.6 and 1.8.
35. Rule 6.5 alters slightly the lawyer’s duty of loyalty. It applies when limited legal services are rendered as part of a court-annexed or nonprofit program. In this situation, the lawyer is prohibited from providing the limited legal services only if the lawyer “knows” that there is a personal “conflict of interest” under Rule 1.7 or Rule 1.9(a) or “knows” that another lawyer in the lawyer’s firm has a conflict of interest that would disqualify the firm under Rule 1.10.
36. Another aspect of limited representation that warrants comment is Rule 4.2, which prohibits communicating with persons a lawyer “knows” to be represented “in the matter” without that lawyer’s permission. When the lawyer has entered a limited appearance in court, Utah Rule of Civil Procedure Rule 75 governs and explicitly provides that “the party remains responsible for all matters not specifically described in the Notice” of limited appearance. When there is no appearance in the court, the matter is less clear. District of Columbia Bar Opinion 330 concludes that:
Even if the lawyer has reason to know that the pro se litigant is receiving some behind-the-scenes legal help, it would be unduly onerous to place the burden on that lawyer to ascertain the scope and nature of that involvement. In such a situation, opposing counsel acts reasonably in proceeding as if the opposing party is not represented, at least until informed otherwise.
This seems a sensible approach.
37. Conclusion: It is not dishonest conduct to provide extensive undisclosed legal help to a pro se party, including the preparation of various pleadings for the client, unless a court rule or ethical rule explicitly requires disclosure. Undertaking to provide limited legal help does not generally alter any other aspect of the attorney’s professional responsibilities to the client.
38. To the extent that our previous Opinions 47, 53 and 74 are inconsistent with this opinion, they are superseded.
APPENDIX A
1. In 1978, Utah Ethics Opinion 47 dealt with a lawyer’s providing “legal advice, consultation, and assistance to inmates regarding the preparation of initial pleadings in civil matters,” including preparing “complaints, summons, affidavits of impecuniosity, and motions for leave to proceed in forma pauperis,” after which the inmates would proceed pro se. The opinion concluded there was “nothing inherent in the proposal that is unethical” and discussed the need fully to inform the inmate of the limited nature of the representation and the need to warn the State of Utah (which would pay for the lawyer’s services) that the State could have no influence over the services.
2. A year later, Opinion No. 53 similarly approved of a lawyer’s providing “limited legal services to persons wishing to handle their own divorces,” where the attorney interviewed the client and provided the client with a manual of instructions and forms to use. The opinion referenced and distinguished this “more limited” involvement of the lawyer from the situation presented and disapproved of in the then recently issued ABA Ethics Committee Informal Opinion 1414 (1978). ABA Opinion 1414 involved a lawyer’s assisting in the preparation of jury instructions and memoranda for the client and attending the trial to advise the litigant on procedural matters. The ABA opinion concluded that the litigant was not in fact proceeding pro se and, therefore, the lawyer’s conduct constituted a misrepresentation as to his undisclosed involvement and ran afoul of the rule prohibiting a lawyer from engaging in conduct involving dishonesty, fraud, deceit of misrepresentation.22
3. In 1981, Utah Opinion No. 74 addressed “the propriety of an attorney preparing a responsive pleading showing the party to be appearing pro se,” where the client was financially unable to pay the lawyer’s retainer but wanted to have an answer filed to protect his rights. That opinion again relied on DR 1-102(A)(4) of the old Code, which prohibited “conduct involving dishonesty, fraud, deceit or misrepresentation” and adopted the reasoning and standard set forth in (but did not cite) ABA Informal Opinion No. 1414. Opinion No. 74 holds:
There is nothing improper in an attorney giving initial advice to a litigant who is proceeding pro se nor is it improper for an attorney to prepare or assist in the preparation of pleadings.
However, when the attorney gives any additional assistance and the litigant continues to inform the court that he is proceeding pro se, he has engaged in misrepresentation by professing to be without representation. The attorney who engages in this conduct is involved in the litigant’s misrepresentation contrary to DR 1-102(A)(4) . . . .23
The opinion goes on to advise that determining whether the attorney’s conduct is proper or improper “will depend upon the particular facts” and:
The extent of the attorney’s participation . . . is the determining factor. Minimal participation by the attorney is not improper. However, extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.24
4. Opinion 74 approved of the drafting of one document. It was the “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance” that was identified as improper this opinion and ABA Informal Opinion 1414. The imprecision of that standard is itself troublesome. In a typical case in which a party obtains assistance in drafting a divorce petition, for example, the party then may obtain brief advice as to service of process. Thereafter, the party may need assistance with a motion for temporary orders or information about how to mark the case for a pre-trial hearing. It is not clear to us at what point such a typical pro se party’s needing limited-scope legal help has obtained “extensive” or “substantial” help that appears dishonest. Because over 80% of respondents and 49% of petitioners in divorce cases are unrepresented, these are the typical pro se parties and needed limited assistance of counsel.25
5. Indeed, ABA Informal Opinion 1414 did not closely analyze the Code of Professional Responsibility, but relied instead on two New York cases which “condemned” ghostwriting, both involving the same “habitual litigant who in the past five or six year . . . commenced well over thirty law suits.” Various courts have condemned ghost-written pleadings and briefs based on the notion that courts give pro se parties greater leeway and that undisclosed legal assistance is therefore an unfair advantage. However, Professor Jona Goldschmidt has rebutted the idea of unfair advantage, noting that courts liberally construe pleadings regardless of who drafted them.26 Likewise, ABA Formal Opinion 07-446 considered and rejected the notion that pro se parties are granted “unwarranted ‘special treatment.’”
In 1983 the ABA replaced its Model Code of Professional Responsibility with the entirely re-conceptualized Model Rules of Professional Conduct. In 1988, Utah likewise replaced the Utah Code of Professional Responsibility with the Utah Rules of Professional Conduct based on the 1983 ABA Model Rules. The ABA Model Rules received a comprehensive retooling in the ABA’s “Ethics 2000” project, and the Utah Rules were modified in 2005 to adopt many of the changes made to the ABA Model Rules.
Footnotes
1. Utah Eth. Adv. Op 47 (Utah St. Bar 1978); Utah Eth. Adv. Op. 53 (Utah St. Bar 1979); Utah Eth. Adv. Op. 74 (Utah St. Bar 1981).
2. Utah Rules of Professional Conduct, Rule 3.3, Candor Toward the Tribunal, addresses related issues and prohibits the lawyer from knowingly (1) making a false statement of fact or law to a tribunal, (2) failing to disclose legal authority directly adverse, and (3) offering evidence the lawyer knows to be false.
3. Id., Preamble ¶ [21].
4. Id., Rule 6.5, cmt. [1].
5. Id., Rule 2.4(c) (emphasis added).
6. Utah R. Civ. P. 11(b) (emphasis added).
7. Colo. R. Civ. P. 11(b) and Wash R. Civ. P. 11(b).
8. The Utah State Courts website lists many free legal clinics that provide brief advice and help with forms. http://www.utcourts.gov/howto/legalclinics/
9. Committee on Resources for Self-Represented Parties Strategic Planning Initiative Report to the Judicial Council, p. 5 (July 25, 2006) reporting statistics from 2005.At: http://www.utcourts.gov/resources/reports: 2006 Survey of Self-Represented Parties in the Utah State Courts.pdf
10. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).
11. Nelson v. Jacobsen, 669 P.2d 1207, 1213 (Utah 1983).
12.http://www.utcourts.gov/howto/legalassist/
13. 238 F.3d 1268 (10th Cir. 2001).
14. Id. at 1271-72.
15. Id. at 1273 (emphasis added). The Tenth Circuit court did not, however, sanction the lawyer but resolved that issue as follows: “Therefore, we admonish [the lawyer] . . . that this behavior will not be tolerated by this court, and future violations of this admonition will result in the possible imposition of sanctions.”
16. See ¶ 41, App. A.
17. Utah R. Prof. Conduct 2.4(c).
18. Id., Rule 1.0(f).
19. Id., Rule 1.2(c), cmt. [7].
20. See also Los Angeles Co. Bar Assoc. Eth. Op. 502.
21. Utah Eth. Adv. Op. 02-10, 2002 WL 31922503 (Utah St. Bar) (references omitted).
22. DR 1-102(A)(4) of the ABA Code of Professional Responsibility.
23. Utah Ethics Op. 74, at 1-2 (emphasis added).
24. Id. at 2 (emphasis added). The standards set forth: “extensive undisclosed participation by an attorney that permits the litigant falsely to appear as being without substantial professional assistance is improper for the reasons noted above.” This is an exact, though unattributed quote of ABA Informal Opinion No. 1414.
25. Committee on Resources for Self-Represented Parties Strategic Planning initiative Report to the Judicial Council, at 5 (July 25, 2006) (reporting statistics from 2004). http://www.utcourts.gov/resources/reports/Self%20Represented%20Litigants%20
Strategic%20Plan%202006.pdf
26. Jona Goldschmidt, In Defense of Ghostwriting, 29 FORDHAM URBAN L.J. 1145 (2002).]]>
08-02 - Under what circumstances may an attorney who has represented a party in conjunction with a proceeding to appoint a guardian for an adult incapacitated person represent the guardian that is subsequently appointed as a result of that proceeding? tag:webster.utahbar.org,2008:/committees/eaoc//3.27652008-01-06T11:04:18Z2010-01-06T11:07:07ZUTAH STATE BAR ETHICS ADVISORY OPINION COMMITTEE Opinion No. 08-02 Issued March 11, 2008 ¶ 1. Issue: Under what circumstances may an attorney who has represented a party in conjunction with a proceeding to appoint a guardian for an adult...BlogStaffwww.utahbar.org
UTAH STATE BAR
ETHICS ADVISORY OPINION COMMITTEE
Opinion No. 08-02
Issued March 11, 2008
¶ 1. Issue: Under what circumstances may an attorney who has represented a party in conjunction with a proceeding to appoint a guardian for an adult incapacitated person represent the guardian that is subsequently appointed as a result of that proceeding?
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Conclusion: The representation of a court-appointed guardian by an attorney who has also represented one of the parties to the proceeding for the appointment of the guardian must be analyzed under Rules of Professional Conduct, Rules 1.7 and 1.9, the same way an attorney would analyze any conflict of interest between two current clients or between a current and former client. If the facts and circumstances of the case raise the specter of a direct or material adversity, or if the representation of another client creates a material limitation on the lawyer’s ability to represent the guardian effectively in light of the fiduciary, statutory and court imposed obligations on the guardian, the attorney should either avoid the joint representation or exercise great care in obtaining the informed written consent of both affected clients. If there is an on-going proceeding involving both the former client and the prospective new client (the guardian), the conflict may not be waived and the representation of the guardian must be avoided.
¶ 3. Background: The issue addressed by this opinion arises in the context of a request under Utah Code Ann. § 75-5-303 (1988) for the appointment of a guardian of an incapacitated person. Under that section, the incapacitated person herself or “. . . any person interested in the incapacitated person’s welfare may petition for a finding of incapacity and appointment of a guardian.1 Once the guardian is appointed, he or she may retain counsel to advise with respect to the conduct of the guardian’s duties.
¶ 4. The nature of the proceedings leading to the appointment of a guardian involve several parties, including the person (usually a relative) requesting the appointment. This person is frequently represented by counsel. The person for whom guardianship is required to be represented by counsel. The proceedings seeking the appointment may be largely consensual or they may be contested. Conflicts in the proceedings will primarily arise in two different contexts:
a) the party to the guardianship wishes to be appointed guardian, and other parties in interest object in favor of an unrelated third party guardianship or
b) the person for whom the guardianship is sought objects to the appointment.
Additional conflicts other may arise, depending on the nature of the guardianship proceeding and the identity of the parties to it, but should nonetheless be resolved as set forth below.
¶ 5. Analysis: If an attorney who has represented one of the parties in a contentious guardianship proceeding wishes to subsequently represent the person appointed as guardian, he or she must determine whether there is an impermissible conflict of interest in the subsequent representation. Resolution of the question is dependent on the facts of each given situation.
¶ 6. The conflict scenarios set forth above raise an issue under Utah Rule of Professional Conduct Rule 1.7 (Conflict of Interest: Current Clients) and Utah Rule of Professional Conduct Rule 1.9 (Duties to Former Clients), depending on whether the attorney continues to represent the party his or her previous client or whether the attorney withdraws from the prior representation.
¶ 7. Rule 1.7(a) provides:
. . .that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by a lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
¶ 8. Notwithstanding the provisions of Rule 1.17(a), Rule 1.7(b) provides:
A lawyer may represent the second client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or in other proceedings before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
¶ 9. Rule 1.9(a) provides that an attorney may not 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.” Rule 1.9(b), the ongoing duty of confidentiality, prohibits the use of confidential information obtained during the representation of the former client, unless the former client gives informed consent, confirmed in writing; Rule 1.9(c), the ongoing duty of loyalty, prohibits the use of any information obtained during the former representation to the disadvantage of the former client.
¶ 10. In the case where there has been no dispute over the necessity for, or the identity of the appointed guardian, analysis of these rules will likely result in the conclusion that the subsequent representation of the guardian – whether concurrent with a continued representation of the former client or not – presents no conflict of interest that would preclude representation.
¶ 11. In a contested proceeding in which the attorney has represented the person for whom the guardian was appointed, the application of the conflict of interest rules may well lead to the conclusion that the attorney may not represent the guardian following his or her appointment. In fact, the attorney may actually be disqualified from such representation; see, e.g., In the Matter of the Guardianship of Tamara L.P.2, discussing the conflict of interest issue in the context of the appointment of a guardian ad litem for a minor child, which discussion is equally applicable to the representation of an adult of allegedly diminished capacity.
¶ 12. Application of these rules to representation of the appointed guardian following a contentious guardianship proceeding might also lead to the conclusion that representation of the appointed guardian must be declined, depending on the nature of the conflict and the interests of the party to the guardianship proceeding weighed against the responsibilities of the guardian and his legal representative.
¶ 13. The duties of the guardian are set forth in Utah Code Ann. § 75-5-312. These duties of the guardian are not necessarily adverse to the interests of any party to a contentious guardianship proceeding. If analysis of the facts and circumstances leads to the conclusion that, taking into account these duties, representation of the guardian will neither be “directly adverse” to, nor materially limited by, the lawyer’s obligations to his other client, then there would be no ethical impediment to representing the subsequently appointed guardian.
¶ 14. However, the guardian is a fiduciary for the incapacitated person, and is further constrained in the exercise of his duties by statutory and court imposed obligations, all of which must be carried out in the best interests of the incapacitated person. This being the case, it is not difficult to imagine a scenario in which there is substantial potential for conflict between the views of the client or former client and the statutory obligations of the guardian For example, there could be a difference of opinion regarding the best use of the ward’s money and property, or as to the appropriate medical care or living conditions of the ward.3
¶ 15 The Comments to the Utah Rules of Professional Conduct give guidance as to how to identify and address conflict of interests that arise in a non-litigation context and should be carefully reviewed by any attorney in determining whether there is a conflict of interest under Rule 1.7 or Rule 1.9, arising out of either direct adversity or material limitation on the attorney’s ability to represent the guardian. Comments [8]4, [26]5 and [32]6 to Rule 1.7 are particularly helpful in that regard.
¶ 16. If the attorney determines that there is either a direct adversity of interest or a significant risk that his representation of the guardian may be materially limited by his obligations to the protected person, Rule 1.7 requires that the attorney may only continue to represent both clients if he has determined that he will be able to provide competent and diligent representation notwithstanding the adversity or limitation, the representation is not prohibited by law7, and it does not involve the assertion of a claim by one client against the other client in litigation. In that event, Rule 1.7(b)(4) provides that the conflict may be waived by the informed consent, confirmed in writing, of both affected parties. Rule 1.9(a) requires the informed consent of the former client only, again confirmed in writing. Of course, if the representation of the guardian is “directly adverse” to the interests of a former client and there is an on-going proceeding in which both the old and new clients continue as parties, the conflict is non-consentable. Rule 1.9 (b).
¶ 17. There is no issue with respect to the informed consent of the existing client, who can freely give such consent if he so wishes. The guardian, however, has statutory and court-imposed obligations with respect to the ward and may be constrained thereby from waiving the conflict; whether this an issue in a given case would require analysis of the facts and circumstances of that particular situation. It may be desirable under this circumstance, if possible, to petition the court that appointed the guardian for additional guidance on this point.
¶ 18 Additional ethical issues are raised if the attorney who wishes to represent the guardian has previously represented the person for whom the guardianship was sought. These issues are governed by Utah Rule of Professional Conduct 1.14, which together with the comments to Rule 1.14, sets forth the considerations governing representation of parties with diminished capacity. As set forth in Comment [4] to Rule 1.14, if a guardian is appointed, the lawyer who formerly represented the client with diminished capacity should “ . . .ordinarily look to the representative for decisions on behalf of the client.” Although this Rule speaks to the issue of being appointed guardian and does not directly address the issue of being appointed counsel to the guardian, an attorney who has formerly represented the client with diminished capacity should carefully consider representation of the appointed guardian, as well.
¶ 19. The comments to the ABA Model Rules point out that the seeking of a guardian is a “serious deprivation of the client’s rights” and a lawyer representing the person of alleged diminished capacity should only initiate such a proceeding if there are no other, less drastic, solutions available. Moreover, if a third party initiates the guardianship proceeding, the attorney should not represent the third party, nor should the attorney seek to be appointed guardian of a client with diminished capacity. See ABA Formal Ethics Opinion 96-404 (1996) (lawyer who files guardianship proceeding under Rule 1.14(b) should not act or seek to be appointed as guardian, except in the most exigent of circumstances; that is, when immediate and irreparable harm will result from the slightest delay).
¶ 20. Conclusion: The representation of a court-appointed guardian by an attorney who has also represented one of the parties to the proceeding for the appointment of the guardian must be analyzed under Utah’s Rules of Professional Conduct, Rules 1.7 and 1.9 the same way the attorney would analyze any conflict of interest between two current clients or between a current and former client. If the facts and circumstances of the case raise the specter of a direct or material adversity, or if responsibilities to the client impose a material limitation on the attorney’s ability to represent the guardian effectively in light of the fiduciary, statutory, and court imposed obligations on the guardianship, the attorney should either avoid the joint representation or exercise great care in obtaining the informed written consent of both affected clients.
FOOTNOTES
1. Utah Code Ann. § 75-5-303(1) (1988).
2. 503 N.W. 2d 333, 336, 177 Wis. 2d 770, 779 (Wis.Ct.App. 1993).
3. See, e.g., Guardianship of Nelson, 663 P.2d 316, 204 Mont. 90 (Mont. 1983).
4. Comment [8] to Rule 1.7 describes the danger of the “material limitation” type of conflict, observing that “The conflict in effect forecloses alternatives that would otherwise be available to the client . . . The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.”
5. Comment [26] to Rule 1.7 describes the relevant factors to be considered as: “ . . .the duration and intimacy of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that disagreements will arise and the likely prejudice to the client from the conflict. The question is often one of proximity and degree.”
6. Comment [29] to Rule 1.7 provides:
Moreover, because the lawyer is required to be impartial between commonly represented clients, representation of multiple clients is improper when it is unlikely that impartiality can be maintained. Generally, if the relationship between parties has already assumed antagonism, the possibility that a client’s interests can be adequately served by common representation is not very good. Other relevant factors are whether the lawyer will subsequently represent both parties on a continuing basis and whether the situation involves creating or terminating a relationship between the parties.
7. There does not appear to be any provision of Utah law that would prohibit the attorney for one of the parties to the guardianship proceeding from representing the subsequently appointed guardian.]]>
07-01 - 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? tag:webster.utahbar.org,2007:/committees/eaoc//3.27642007-01-06T11:01:10Z2010-01-06T11:02:32ZIssued March 9, 2007 ¶ 1. 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...BlogStaffwww.utahbar.org
Issued March 9, 2007
¶ 1. 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?
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Opinion: The proposed arrangement, which contemplates the exclusive funneling of referrals to one lawyer or firm, is not permitted, as it violates Rule 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.
¶ 3. Facts: A Utah for-profit organization provides an array of services to its members, including assistance in finding legal representation for its members for various circumstances, including immigration, criminal defense and personal injury following an automobile accident. This organization has solicited a Utah law firm to purchase the exclusive right to receive referrals generated by its membership base, for members who need legal consultation following an automobile accident.
¶ 4. Analysis: Rule 7.2(b) of the Utah Rules of Professional Conduct sets out the basic rule that applies to the issue presented:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services; except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; or
(4) divide a fee with another lawyer as permitted by Rule 1.5(e).1
This fundamental rule is elaborated upon by Comment [5] to the Rule, which further states: “Lawyers are not permitted to pay others for channeling professional work.”2 Under the plain language of this Rule and the explanatory comment, a lawyer would be prohibited from purchasing exclusive referral rights from the organization, because that would constitute paying another person for recommending the lawyer’s services.3
¶ 5. Rule 7.2(b) contains several exceptions to this blanket prohibition. Subsection 7.2(b)(2) permits a lawyer to “pay the usual charges of a legal service plan or lawyer referral service.” This provision of the Utah Rules of Professional Conduct differs from the American Bar Association Model Rule, which permits a lawyer to pay the usual charges of a legal service plan or a “not-for-profit or qualified” lawyer referral service.4 It would be inappropriate to conclude, however, that the difference between the Utah Rule and the ABA Model Rule was intended to permit a lawyer to avoid the prohibition of Rule 7.2(b) through the use of an organization that is not, in fact, a “lawyer referral service” in even the most colloquial sense of the term.
¶ 6. Comment [6] to Rule 7.2 defines a lawyer referral service as “an organization that holds itself out to the public to provide referrals to lawyers with appropriate experience in the subject matter of the representation.” At a minimum, Rule 7.2(b)(2) requires that the lawyer referral service be available to the public and that it provide referrals to multiple lawyers and law firms, not to a single lawyer or a single law firm.
¶ 7. Comment [6] to Rule 7.2 also defines a legal service plan as “a prepaid or group legal service plan or similar delivery system that assists prospective clients to secure legal representation.” Thus, the “plan” under Rule 7.2(b)(2) must be a provider of legal services to plan members using the services of licensed lawyers.5 The organization at issue provides no legal services to its members; the lawyers do not provide legal services “through the plan.”
¶ 8. Conclusion: The organization in this case is not operated as a public service, but rather channels legal work to a single lawyer or firm who has paid the organization for that privilege. The organization is not, therefore, a “legal service plan” or a “lawyer referral service” within the meaning of Rule 7.2(b)(2), and the proposed exclusive funneling of referrals to one lawyer or firm that has paid for the privilege violates Rule 7.2(b)’s prohibition against giving anything of value to another person for recommending a lawyer’s services.6
Footnotes
1 Utah Rules of Professional Conduct 7.2(b) (2006).
2 Id. cmt. [5].
3 “Person” in Utah is generally defined to include any “individual, firm, company, association or corporation.” See, e.g., Utah Code Ann. §§ 48-2a-101(12); 76-1-601 and 78-27-23 (2006).
4 ABA Model Rules of Professional Conduct 7.2(b)(2) (2002).
5 Utah Rules of Professional Conduct, Rule 7.3, Cmt. [8]. Comment [8] describes lawyers participating in a group or prepaid legal services plan as “provider[s] of legal services through the plan.”
6 As we have concluded that the organization at issue is neither a prepaid or group legal services plan nor a lawyer referral service for which a lawyer may pay the “usual charges” pursuant to Rule 7.2(b), we do not reach the issue of whether this organization violates rule 7.3(a) through its use of in-person or other real-time communications to solicit memberships to the organization.
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07-02 - If an attorney guardian ad litem is appointed by a court for a person, may another attorney communicate with the person about the subject of the representation without the prior consent of the attorney guardian ad litem?tag:webster.utahbar.org,2007:/committees/eaoc//3.27632007-01-06T10:55:51Z2010-01-06T10:59:39Z(Approved February 25, 1993) Issue: May an attorney give a "second opinion" on a legal matter, when approached by a non-client who is represented by counsel?...BlogStaffwww.utahbar.org
(Approved February 25, 1993)
Issue: May an attorney give a "second opinion" on a legal matter, when approached by a non-client who is represented by counsel?]]>
Opinion: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, "[i]n representing a client," from "communicat[ing] about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter." A lawyer does not violate the letter or purposes of this rule by rendering a second opinion on a legal matter, when the lawyer is not "representing a client" on the same subject. However, the lawyer should make every effort neither to impair the first attorney-client relationship nor to use the consultation as a means of soliciting the represented party.
Rationale: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, in representing a client, from communicating with a party the lawyer knows is represented by another lawyer in the matter, "unless the lawyer has the consent of the other lawyer or is authorized by law to do so." The main thrust of this rule is "to prevent situations in which a represented party may be taken advantage of by adverse counsel; . . ."1 Of course, an attorney cannot give advice to an unrepresented person with the exception of suggesting that he or she seek counsel.2
A lawyer does not violate the letter or purposes of Rule 4.2 by rendering a second opinion to a represented party, when the lawyer is not "representing a client" in the same matter. Under its express terms, Rule 4.2 applies only to situations in which the lawyer is "representing a client" in making the communications. Moreover, the situation is not one "in which [the] represented party may be taken advantage of by adverse counsel; . . ."3 The Ethics Advisory Opinion Committee is, therefore, of the view that an attorney does not violate the Rules of Professional Conduct by rendering a second opinion, when the lawyer is not representing a client in the same matter.
This conclusion is supported by In re Mettler,4 where the Supreme Court of Oregon addressed the scope of DR7-104(A)(1), the predecessor to Rule 4.2. DR7-104(A) provided:
During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation . . . with a person he knows to be represented by a lawyer on that subject . . . .
The court concluded that the phrase "during the course of his representation of a client" acts "as a threshold requirement for unethical conduct" and that a lawyer, therefore, cannot violate the rule unless he or she communicates with a represented person in the course of representing a client.5
This conclusion is also consistent with the ethics advisory opinions of other jurisdictions. In 1987, Kentucky considered the issue and concluded that a lawyer may provide legal advice to a person who is represented by counsel and is seeking a second opinion. The opinion cautioned, however, that the lawyer must make every effort neither to impair the first relationship nor to use the consultation as a means of soliciting the client. The opinion also suggested that the lawyer should obtain the party's consent to consult the first lawyer so that all significant facts can be taken into account in rendering the second opinion.6 In Philadelphia, a lawyer who is approached by a represented party may ask the party to review how his or her present lawyer is handling the case. However, the opinion advises lawyers to be prudent in questioning the represented parties and to exercise discretion in evaluating the work of other lawyers.7
The prudential concerns noted in these opinions, while not expressly addressed in the Rules of Professional Conduct, are consistent with the spirit of the rules as well as the candor, discretion, and fair dealing that should characterize the legal profession. As second opinions become more acceptable, a policy of disclosure to the first attorney could prevent undue influence or overreaching by the attorney rendering the second opinion. Further, an attorney may be able to give a better evaluation if he or she communicates with the first attorney as well as with the client. The purposes of Rule 4.2, however, are not served by restricting an individual's ability to discuss his or her case with an attorney who is not connected with the matter.
Footnotes
1. Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P.2d 564, 567 (1984) (en banc) (construing Code of Professional Responsibility DR7-104(A)(1)).
2. Rules of Professional Conduct 4.3(a).
3. 691 P.2d at 567.
4. 305 Or. 12, 748 P.2d 1010 (1988).
5. Id. at 1011-12.
6. Kentucky Ethics Opinion No. 325 (1987).
7. Philadelphia, Pa., Bar Ethics Opinion No. 86-137.]]>
06-01 - May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders? If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent vtag:webster.utahbar.org,2006:/committees/eaoc//3.27622006-01-06T10:36:02Z2010-01-06T10:45:00Z June 2, 2006 Issue: May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders? If so, is it thereafter permissible for the County Attorney’s Office to prosecute...BlogStaffwww.utahbar.org
June 2, 2006
Issue: May members of the County Attorney’s Office provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders?
If so, is it thereafter permissible for the County Attorney’s Office to prosecute the subsequent violation of the protective order?]]>
Opinion: While statute, ordinance or employment contract may prohibit a government lawyer from representing individuals on a pro bono basis, the only ethical prohibition would arise from conflicts of interest provisions. Conflicts of interest rules would not prohibit the initial private representation but would prohibit the individual government lawyer from thereafter having any involvement in the prosecution of the abuser. It is conceivable that the pro bono work of one government lawyer in a large office with different divisions would have no impact upon another government lawyer in a different division handling a related matter for the government. However, it would be improper for the second lawyer to undertake to represent the governmental entity if the pro bono work undertaken by the first lawyer could create a material limitation for that second lawyer. Finally, two separate divisions of a governmental office can be established to undertake potentially conflicting work, provided that attorneys in one unit do not in any way “participate” in the work of the other unit (best achieved through “screening”) and provided that any representation of an individual or non-governmental entity fully complies with Rule 1.8(f).
Facts: The County Attorney’s Office seeks to help victims of domestic violence obtain protective orders in civil cohabitant abuse actions, since such individuals may be deterred from obtaining this protection without legal representation. The County Attorney seeks to provide full representation, including appearing in court on behalf of the victim, not merely to provide information sufficient to permit the victim to proceed pro se. 1 The County Attorney’s Office, however, does not wish to provide this assistance at the expense of being able to prosecute the abuser, either for the initial incident or for future incidents, including incidents that are violations of the order. The County Attorney’s Office asks about the possibility of one attorney providing this representation “pro bono” and about the possibility of a division of the Office providing this representation as part of its regular public service. Both scenarios are addressed here.
Authority: The questions must be answered in light of the Utah Rules of Professional Conduct (2005) and EAOC Opinions:
Rule 1.7 regarding concurrent conflicts of interest (actual and potential) of the attorney
Rule 1.9 regarding successive conflicts of interest of the individual attorney
Rule 1.11 regarding conflicts of interest for government lawyers
Opinion No. 98-01
Opinion No. 01-06A
Analysis:
Applicable Rules
Rule 1.7 provides in relevant part:
. . . A lawyer shall not represent a client if . . . There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or . . . by a personal interest of the lawyer.
Rule 1.9 provides in relevant part:
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. . . .
Rule 1.11 provides in relevant part:
(d) Except as law may otherwise expressly permit, a lawyer serving as a public officer or employee:
(d)(1) is subject to Rules 1.7 and 1.9 and
(d)(2) shall not
(d)(2)(I) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing .
County Attorney Undertaking Private Pro Bono Representation
This Committee has previously addressed similar questions of conflicts of interest as they apply to an individual part-time county attorney who also maintains a part-time private practice. 2 To the extent that the County Attorney’s office contemplates permitting one of its attorney employees to occasionally engage in pro bono work for private clients, we rely upon these prior opinions. 3
Our prior Opinions largely answer the first two questions. Opinion No. 01-06A (issued June 12, 2002) and Opinion No. 98-01 both address the conflicts involved when a part-time county attorney undertakes private representation in a civil cohabitant abuse action. Opinion No. 01-06A concluded that a part-time county attorney is not prohibited from representing a defendant in a civil protective order case, but if a criminal case arises out of the initial incident or is brought for violation of the protective order, that individual county attorney may not represent the defendant client or the county in such a case. 4 Opinion No. 98-01 considered the situation in which the part-time county attorney represents the victim/plaintiff in a cohabitant abuse action. There, if a subsequent criminal case is filed against the opponent/respondent, that individual part-time county attorney need not withdraw from representing the victim/plaintiff in the civil action but cannot be involved in the prosecution and must refer it to an appropriate conflict attorney. The Committee reasoned that because the interests of the victim-client and the county might diverge, the attorney may have confidential information from the private client, and the prosecutor’s neutrality might be compromised by his private representation; it would be unethical for the part-time county attorney to be involved in the prosecution of this matter. 5
Thus, an individual county attorney may, under the rules of professional conduct, provide pro bono legal assistance to victims of domestic violence in seeking civil protective orders. However after the county attorney has done so he may not be involved in the prosecution of the perpetrator for the initial act or for a subsequent violation of the protective order. And he may only continue the pro bono representation if he is fully able to comply with Rule 1.7(a) where his personal interest in his paid work for the County does not create a material limitation.
Our prior Opinions have further established that the part-time county attorney must, at the outset, fully inform the client of potential conflicts and the need to withdraw if actual conflicts arise. Moreover if the possibility of a conflict arising is likely and if that possibility will materially interfere with the lawyer’s representation, the lawyer should not undertake the case initially.
Imputation of Conflicts of Interest to Other Attorneys in County Attorney Office
The second issue is whether the conflict of one county attorney undertaking individual pro bono representation is attributed to others in the office.
In the past some have looked to Rule 1.10 to indicate when conflicts of interest are imputed to others within a governmental law office. However, in November, 2005 the Utah Supreme Court adopted revised versions of Rules 1.10 and 1.11 which now make clear that Rule 1.10 is not intended to and does not apply to impute conflicts of interest within a government law office. 6 Instead, solely Rule 1.11 governs any imputation of conflicts of interest for government lawyers 7 unless the Rules expressly provide otherwise. 8
Rule 1.11(d) expressly deals with conflicts of interest for the current government lawyer and provides that the government lawyer “shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment. . . .” As comment [2] to Rule 1.11 states, “paragraph (d) does not impute the conflicts of a lawyer currently serving as an officer or employee of the government to other associated government officers or employees, although ordinarily it will be prudent to screen such lawyers.” Hazard and Hodes likewise note:
Because governmental lawyers in the same government agency are not subject to the imputation rule, the legal work of the government may go forward whether or not other affected parties consent, and whether or not the personally disqualified lawyer is screened in the normal sense. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
* * * * * * *
Rule 1.11(d) does not require disqualification of anyone except the affected government lawyer individual. Accordingly, there is no reason for this paragraph to advert to screening and it does not. However . . . the lawyer is required to avoid ‘participating’ in the matters in question. This could imply that isolating the lawyer from the office’s work in the matter – a form of screening – is required after all . . . . One important reason to screen government lawyers . . . is to avoid a motion to disqualify the entire government office or “firm.” HAZARD AND HODES, THE LAW OF LAWYERING § 15.9
Similarly, the amendments make clear that Rule 1.11 applies to concurrent representation by government lawyers as well as successive representation. The name of the rule was changed from “Successive Government and Private Employment” to “Special Conflicts of Interest for Former and Current Government Officers and Employees.” Likewise, comment [9] and expert commentary clarify that it should apply to concurrent representation as well. Hazard and Hodes explain that Rule 1.11(d) applies when a government lawyer has a concurrent conflict:
Paragraph (d) controls situations in which a lawyer is currently serving the government. . . A government lawyer might have competing responsibilities to others that could materially limit representation of the government. For example, it is not unheard of for lawyers representing state and local government units to be representing other clients with conflicting interests while also representing the government. HAZARD AND HODES, THE LAW OF LAWYERING § 15.2
Rule 1.11 has been looked to when considering concurrent conflicts of interest of government lawyers given “the policy and practical reasoning behind the rule.” See Vermont Ethics Opinion No. 2003-04 at www.vtbar.org (addressing part-time assistant attorney general who also serves “of counsel” at a law firm).
For these reasons we conclude that the pro bono work of one government lawyer will not create a conflict of interest that will be imputed to others in the government office providing that the pro bono lawyer does not “participate” in the conflicting work that the government office undertakes. We further note, however, that Rule 1.7 regarding concurrent personal conflicts of interest must be fully complied with by both the pro bono lawyer and the government lawyer. Thus, if there is a “significant risk that the representation of” either the pro bono or the government client “will be materially limited” by the attorneys’ relationships with one another or by either attorney’s personal interests, the conflicting representation cannot go forward.
Finally, we note that this interpretation of the Rules of Professional Conduct does not control whether a court will find grounds to disqualify an attorney or an office, particularly where there are constitutional rights involved. While “screening” is not required of government lawyers under these rules, undertaking a screening mechanism (see below) may be wise to minimize the possibility of disqualification.
Establishing Separate Divisions to Handle Possible Conflicts
The County Attorney asks about the viability of assigning civil work for domestic violence victims to an individual or division within the County Attorney’s Office separate from the individual or division that prosecutes criminal cases.
This scenario adds one further complication to the analysis above in that it proposes doing work for a client (the victim) while being paid by another entity (the county) as addressed in Rule 1.8(f) Utah Rules of Professional Conduct. Such an arrangement is permissible only if the attorney maintains a confidential relationship solely with the victim-client (not the county-employer), permits only the victim client to direct the attorney’s work, and obtains informed consent to this arrangement from the victim client. “Informed consent” is now defined in the Utah Rules of Professional Conduct as denoting “an agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
Here, again, Rule 1.11 would not impute the disqualification of one government attorney to other governmental attorneys if each of the two attorneys did not “participate” in the conflicting work of the other. The underlying concern is that for each client confidentiality and independent legal judgment must be fully protected.
This Committee considered the issue of conflicts of interest within a governmental law office in Opinion No. 142 (1994) dealing with the office of the Attorney General. Opinion No. 142 established that Rule 1.10 (defining a “firm” and imputing disqualification to all within the “firm”) does not apply to the office of the Attorney General and the conflicts of one Assistant Attorney General are not necessarily imputed to all other attorneys in that office. Opinion No. 142 (1994). That Opinion concludes that the Office may represent different agencies with adverse interests or positions so long as “the attorneys with conflict problems are removed and screened from the particular representation at issue.” Accordingly, the Attorney General’s office has been organized to operate through different “divisions.”
While there were constitutional reasons for that analysis with regard to the Attorney General, we now make clear that other governmental law offices are also permitted to organize themselves in such a way as to constitute two separate “firms” 9 and undertake conflicting representation. In order to guard most effectively against disqualification motions, it would be “prudent” for the attorneys with potentially conflicting responsibilities to be entirely screened from one another, not sharing access to the same confidential files (see Rule 1.6) or operating so that one attorney has “managerial authority” or “supervisory authority” over the other (see Rule 5.1). However, even if no formal screening system is put in place, government attorneys comply with the ethical rules if they ensure they do not “participate” in any matter for which they have a personal conflict of interest.
We further note that undertaking such an endeavor in which one section of a government office represents victim-clients would result in the governmental entity owing all the duties of a lawyer to the victim-clients and those victim-clients having possible claims against the governmental entity.
Conclusion:
The conclusion is that it could be possible for a County Attorney’s Office to organize itself in such a way as to ethically provide representation for individual client victims in civil cohabitant abuse actions and then later permit a separate division or attorney in the Office to represent the state in any related criminal prosecution. However, any such organization would have to prohibit any confidential information from flowing from one sector to the other. Similarly, it is possible for a government lawyer to undertake pro bono representation without having a conflict imputed to other government lawyers provided the pro bono lawyer is kept entirely apart from any conflicting representation (and the other government lawyers have no access to the pro bono lawyer’s confidential files and no ability to influence the pro bono lawyer in his work.) Whether those services are provided by separate divisions or by pro bono representation, the County Attorney’s Office would have to assure that there was no “significant risk” that the county attorney’s representation of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. Rule 1.7(a).
Footnotes
1 We note that providing “general legal information” or “clerical assistance” to a victim seeking a protective order is not the “practice of law” and hence can be undertaken by the staff of the court or the county attorney’s office. See Supreme Court R. Prof. Prac., ch. 13A, Rule 1.0 (c) (2005).
2 This Committee has also addressed conflicts of interest as they apply to the Office of the Attorney General Opinion in No. 142, to an Assistant Attorney General serving as a hearing officer in Opinion No. 03-01, and to a private attorney with a partner who serves as a part-time judge in Opinion No. 95-02A which are related and relied upon to some extent here.
3 We note that such pro bono work would not be part of the attorney’s duties for the county and thus the county could incur no liability for it and the client would need to be fully and clearly advised that the attorney is not acting in the capacity as a government lawyer but as a private volunteer.
4 State v. Brown 853 P.2d 851 (Utah 1992) prohibits a prosecutor from appearing as defense counsel in a criminal case. The Committee concluded that the on-going civil representation of a person also charged with a crime would be prohibited under Rule 1.7 because the lawyer’s responsibilities to another client (the county) would materially limit his representation of the client.
5 Inconsistent with Opinion No. 98-01, we concluded in Opinion 01-06A that a part-time county attorney would have to withdraw from representing the victim in a civil cohabitation abuse action as well. To the extent that conclusion is over broad, our opinion here is to be considered as modifying Opinion 01-06A. Rather, Rule 1.7(a) would find a conflict where “there is significant risk that the representation” of the victim client would be “materially limited by the lawyer’s responsibilities” to the county or by the attorney’s “personal interest” as a county attorney. This is a fact-specific and case-specific inquiry. We note that the “personal interest” of a part-time county attorney who also maintains a part-time private practice may be factually different from the interest of a full-time county attorney undertaking occasional pro bono representation.
6 Paragraph (e) and Comment [7] were added to Rule 1.10 and Comments [2], [3] and [9] were added to Rule 1.11 together with a redrafted paragraph (d) of Rule 1.11 seeking to clarify that Rule 1.11 is the exclusive rule governing imputation of conflicts of interest applicable to current or former government lawyers. See ABA Model Rules 2000 with Redlining and the Reporters Explanation Memos available on the ABA website at: http://www.abanet.org/cpr/e2k-report_home.html
7 This Committee’s Opinion 98-01 states: “In withdrawing from the criminal matter, the limitations and requirements of Rule 1.10 . . . describing imputed disqualification among attorneys associated in a firm, must also be strictly followed.” While this interpretation applies to the part-time attorney withdrawing from his private practice representation; it does not apply to a part-time county attorney withdrawing from any governmental representation.
8 Rule 1.12 governs imputed disqualification of an attorney (including a government attorney) who had previously served as a judge, other adjudicative officer or law clerk.
9 Utah Rules of Professional Conduct (2005) now define “firm” to include “other association authorized to practice law . . . or lawyers employed in . . . the legal department of a corporation or other organization.” Rule 1.0
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06-02 - Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the “client’s file” within the meaning of Rule 1.16 which must be delivered to the client at the termination of the representationtag:webster.utahbar.org,2006:/committees/eaoc//3.27612006-01-06T10:27:40Z2010-01-06T10:29:17Z June 2, 2006 Issue: Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the “client’s file” within the meaning of Rule 1.16 which must be delivered to the...BlogStaffwww.utahbar.org
June 2, 2006
Issue: Is an unexecuted trust or will or an unfiled extraordinary writ prepared by a lawyer for a client part of the “client’s file” within the meaning of Rule 1.16 which must be delivered to the client at the termination of the representation.]]>
Opinion: An unexecuted legal instrument such as a trust or will, or an unfiled pleading, such as an extraordinary writ, is not part of the “client’s file” within the meaning of Rule 1.16(d). The lawyer is not required by Rule 1.16 to deliver these documents to the client at the termination of the representation.
Facts: An attorney accepted a fixed fee engagement to prepare for a client a trust, a will and a petition for extraordinary writ. The lawyer sent a retainer agreement to the client reflecting the fixed fee engagement, but the client did not sign the retainer agreement. The lawyer prepared the trust, will and petition for extraordinary writ, but the client refused to pay the lawyer for the services, and the client terminated the attorney-client relationship. The client is now demanding that the lawyer deliver to the client as part of the “client’s file” the unexecuted trust and will, and the unfiled extraordinary writ.
Analysis: Rule 1.16(d) of the Utah Rules of Professional Conduct differs from the ABA Model Rule 1.16(d) in that the Model Rule permits the lawyer to retain the “client’s file” following the termination of the attorney-client relationship if state law affords the lawyer a retaining lien against the client’s file for purposes of securing the lawyer’s fee. Model Rule 1.16(d) states: “The lawyer may retain papers relating to the client to the extent permitted by other laws.”
Utah Rule 1.16(d) was amended to delete from Rule 1.16(d) the right of the lawyer to assert a retaining lien against the “client’s file”. Utah Rule 1.16(d) states: “The lawyer must provide, upon request, the client’s file to the client. The lawyer may reproduce and retain copies of the client file at the lawyer’s expense.”
Comment 9 to Rule 1.16(d) explains the amendment to Utah Rule 1.16(d) as follows: “The Utah Rule differs from the ABA Model Rule in requiring that papers and property considered to be part of the client’s file be returned to the client notwithstanding any other laws or fees or expenses owing to the lawyer.”
The amendment of Utah Rule 1.16(d) followed the Utah Supreme Court’s decision in Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366 (Utah 1996). In Dawson the plaintiff law firm sued its client for payment of its attorney’s fees. In a “postscript” to its decision, the Utah Supreme Court stated that it disapproved of the plaintiff law firm’s assertion of a retaining lien in the defendant’s file during on-going litigation following the termination of the attorney-client relationship. Although the Court affirmed in part a judgment in favor of the plaintiff law firm for unpaid fees and costs, the Court stated that the plaintiff law firm had failed to “take steps to the extent reasonably practicible to protect the client’s interest, such as surrendering papers and property to which the client is entitled (quoting from Rule 1.16(d))” when the law firm refused to surrender to defendant her file during the course of on-going litigation. 1
It is noteworthy that the plaintiff law firm’s conduct in Dawson was consistent with Ethics Advisory Opinion Committee Opinion No. 91 (May 17, 1989). This Opinion concluded that the use of the common law attorney’s retaining lien recognized by the Utah Supreme Court in several cases was not per se improper under Rule 1.14 (currently, Rule 1.16). Relying on decisions of the Utah Supreme Court, Opinion No. 91 permitted use of a retaining lien even in the course of on-going litigation if (i) the lawyer was wrongfully discharged or withdrew for good cause; and (ii) during the representation, the lawyer represented the client with reasonable diligence.
In adopting Opinion No. 91, the Board of Bar Commissioners recommended a Petition for Amendment of Rule 1.14 (currently Rule 1.16) be filed with the Utah Supreme Court “to clarify the attorney’s duty to the client in returned documents and papers upon termination of representation”.
With Utah’s amended Rule 1.16(d), it is clear that if the unexecuted trust and will or the unfiled petition for extraordinary writ are part of the “client’s file”, then the lawyer is required by Rule 1.16(d) to turn over to the client the trust, will and petition for extraordinary writ upon the termination of the representation, regardless of whether the lawyer has been wrongfully discharged and regardless of whether the lawyer has been paid for these services. It is therefore critical to determine what is the “client’s file” within the meaning of Rule 1.16(d).
Comment 9 of Rule 1.16 states: “It is impossible to set forth one all encompassing definition of what constitutes the client’s file. However, the client file generally would include the following: all papers and property the client provides to the lawyer; litigation material such as pleadings, motions, discovery, and legal memoranda; all correspondence; depositions; expert opinions; business records; exhibits or potential evidence; and witness statements. The client file generally would not include the following: the lawyer’s work product such as recorded mental impressions; research notes; legal theories; internal memoranda; and unfiled pleadings.”
Of significance to the issue before the Committee is the statement in Comment 9 to Rule 1.16 that the client file would not include the attorney’s work product and would not include unfiled pleadings. This would exclude the unfiled petition for extraordinary writ from the “client’s file” within the meaning of Rule 1.16(d). We interpret Comment 9 to also exclude from the “client’s file” unsigned legal instruments such as agreements, trusts and wills. Unsigned legal instruments such as agreements, trusts and wills are the transactional lawyer’s equivalent of the litigation lawyer’s unfiled pleadings. 2 This interpretation is not at odds with the Rule 1.16(d) requirement that upon the termination of representation the lawyer takes steps “to the extent reasonably practicible to protect the client’s interest”. Unlike the pleadings and correspondence files withheld from the client in Dawson during on-going litigation, depriving the client of unexecuted legal instruments (such as agreements, trusts and wills) will not normally prejudice the client’s interests. The same is true of withholding from the client unfiled legal pleadings. The client is entitled to the client’s own papers and property and the “client’s file”, and the client may deliver these to new counsel for the purpose of preparing the legal instruments and the legal pleadings in accordance with the instructions of the client.
Our interpretation of Comment 9 also is consistent with public policy on two fronts: (i) lawyers should not be exposed to liabilities arising from a requirement that the lawyer deliver to the client upon termination of the representation legal instruments that are neither executed nor filed as such instruments may be incomplete drafts or unchecked final documents not appropriate for execution or filing by the client or the client’s new counsel; and (ii) the Utah Rules of Professional Conduct should not be interpreted in a manner to encourage and facilitate unscrupulous clients in defrauding lawyers by requesting the preparation of legal instruments, then terminating the attorney-client relationship after the legal instruments are prepared, for the purpose of obtaining the lawyer’s services without payment.
Footnotes
1 Jones Waldo Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1376 (Utah 1996).
2 The punctuation of Comment 9 quoted above is interpreted by the Committee to exclude from the client file unfiled pleadings, whether or not they constitute lawyer’s “work product”. The Committee interprets the Comment to include as lawyer’s “work product” documents containing the lawyer’s recorded mental impressions. Unexecuted legal instruments and unfiled legal pleadings are often incomplete or non-final drafts. As such, these documents contain the lawyer’s mental impressions (not the lawyer’s finalized legal services), and constitute the lawyer’s “work product”. ]]>