Utah State Bar Ethics Advisory Opinion Committee Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the Utah State Bar Ethics Advisory Opinion Committee, with full citations and source links on every page.
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Can a lawyer contact a former employee of a represented corporate party without the company's lawyer's consent?
Yes. The opinion concludes Utah Rule 4.2 does not bar contacting an unrepresented former employee of a represented organization, because Rule 4.2(c) reaches only current control-group members and curr…
Can a lawyer keep representing a client when opposing counsel announces it will call the lawyer as a witness, and the lawyer's own conduct may be at issue?
There is no automatic disqualification. The lawyer must decide whether she is a 'necessary witness' under Rule 3.7 and, if so and withdrawal would not cause the client substantial hardship, withdraw b…
Can an employer's lawyer file an answer or take other action for a former employee co-defendant who has vanished and cannot be contacted?
Yes, narrowly. Even though the lawyer cannot communicate with the missing former employee as Rule 1.4 contemplates, the lawyer may undertake a brief transitional representation, such as filing an answ…
Can a lawyer threaten criminal charges against an opposing party or witness to gain advantage in a civil matter?
It is not per se unethical, if the criminal and civil matters are related, the lawyer reasonably believes the charges are warranted by the law and facts, and the threat is not extortion or abusive tre…
Can a lawyer advertise to handle Social Security disability hearings and send a supervised nonlawyer paraprofessional to appear at the hearing, without disclosing that in the ad?
Yes. Where the Social Security Administration authorizes nonlawyer representatives, a lawyer may use a supervised nonlawyer paraprofessional at the hearing without assisting unauthorized practice, and…
A plaintiff's lawyer learns, while representing a client, that a health-care provider she works with regularly is billing for services never rendered. Can she warn other clients or report the provider?
Not without the client's consent. What the lawyer learned in the representation is confidential under Rule 1.6, so she may not reveal it or report the provider's fraud to insurers or law enforcement w…
Can an Assistant Attorney General serve as a hearing officer in a matter that the Attorney General's office might later litigate?
Yes. Under Rule 1.12, employment by the Attorney General's office does not by itself disqualify a lawyer from serving as a hearing officer for an agency in a matter the office may later handle as an a…
Can a lawyer cross-examine a former client as an adverse witness while representing a current client?
Generally yes, if the prior and current matters are not substantially factually related and the lawyer does not use or disclose the former client's confidential information to that client's disadvanta…
Does a government lawyer violate Rule 8.4(c) by supervising or taking part in a lawful undercover operation that uses deception?
Not without more. The opinion concludes that a governmental lawyer who participates in a lawful covert government operation employing dishonesty, deceit, or misrepresentation to gather information doe…
Can an insurance defense lawyer in Utah agree to an insurer's litigation guidelines and accept flat-fee defense work?
Neither is per se unethical, but the lawyer may not let an insurer's guidelines or a flat fee impair independent professional judgment or competent, diligent representation of the insured. If complian…
Do a law firm's newsletters, legal alerts, seminar brochures, logo giveaways, and website have to carry an 'Advertising Material' label under the lawyer-solicitation rule?
Only the items that solicit employment do. A newsletter, alert, or brochure that offers the firm's services to a prospective client with no family, professional, or close-personal tie must carry the '…
Can a Utah lawyer finance a client's litigation costs with a loan from a third-party lender and pass the interest on to the client?
Yes. A recourse loan that finances litigation costs is permitted if the lawyer (not the client) is the obligor on the loan, the lawyer discloses the loan's terms, and the client consents. Because the …
Can a lawyer charge an annual fee for estate planning and asset-protection work calculated as a percentage of the value of the client's assets?
Only in extraordinary circumstances. A percentage-of-assets annual fee must satisfy Rule 1.5's reasonableness factors; because estate-planning work is not normally billed that way and the fee is not c…
Is it ethical for a lawyer to bring in co-counsel from a judge's former law firm for the purpose of forcing the judge to recuse from the case?
Depending on the facts, it may be professional misconduct. Associating a lawyer from a judge's prior firm for the primary purpose of provoking the judge's recusal, especially after the judge has issue…
Can a divorce lawyer assert a statutory attorney's lien against property the client was awarded in the divorce, and does Rule 1.8(a) apply?
Asserting a statutory attorney's lien does not require satisfying Rule 1.8(a)'s business-transaction conditions, because the lien is a right granted by statute and is expressly allowed by Rule 1.8(j).…
Can a plaintiff's lawyer make a settlement offer letting the plaintiff take an assignment of the defendant's bad-faith claim against the insurer in exchange for a covenant not to execute beyond policy limits?
Yes, as long as the offer is communicated in compliance with Rules 4.1 and 4.2. The plaintiff's lawyer does not act unethically just because the offer may create a conflict of interest for the defenda…
What must a lawyer do when a client unexpectedly lies to or misleads the court, whether or not the client is under oath?
Counsel who knows a client has materially misled the court may not stay silent and keep representing the client; that is assisting a fraud on the court under Rule 3.3(a)(2). Counsel must first remonst…
When a lawyer holds a client's settlement funds and a medical provider or other creditor claims part of it, what must the lawyer do?
The lawyer must first decide whether the third person has an interest strong enough to trigger Rule 1.15(b). Only a matured legal or equitable claim, such as a valid assignment, judgment lien, or stat…
Can a lawyer who is on inactive status in another state still say on her letterhead that she is 'also admitted' there?
Only with care. A lawyer on inactive status in a state may not communicate that she is 'admitted' there unless she discloses the inactive status or reasonably concludes the omission is not materially …
Can a lawyer send a client's confidential information by ordinary unencrypted email without violating the duty of confidentiality?
Yes. In ordinary circumstances a lawyer may use unencrypted Internet email to transmit confidential client information, because there is a reasonable expectation of privacy in its use; particularly se…
Can a lawyer agree in a plea bargain that a subpoenaed officer will not appear at a related hearing?
No. The opinion concluded that a prosecutor or defense lawyer who seeks an investigating officer's agreement not to honor a lawfully issued subpoena violates Rules 3.4(a) and 8.4, and may commit witne…
Can the Attorney General's office investigate an organization that the Attorney General was personally associated with before taking office, or is that a disqualifying conflict?
Not per se. Neither Rule 1.11(c) (successive private and government employment) nor Rule 1.7(b) (personal-interest conflicts) categorically bars the investigation, but each participating lawyer has an…
What client-development activities can a lawyer use, like free seminars, trade-show booths, and senior-center tables, without it becoming improper in-person solicitation?
Lawyers may make their services known through methods that do not involve uninvited one-on-one approaches, such as seminars, group Q&A sessions, trade-show booths, open houses, and discussion tables t…
Can a defense lawyer contact the plaintiff's treating physician ex parte (without plaintiff's counsel present) when the plaintiff's physical condition is at issue?
Withdrawn. At the time, the Committee concluded no ethical rule prohibited ex parte contact with a plaintiff's treating physician who is not separately represented; the Utah Supreme Court vacated this…
If a lawyer negotiates with the opposing party's paralegal, secretary, or other non-lawyer representative, is the lawyer helping that person engage in the unauthorized practice of law?
Generally no. As long as the non-lawyer representative is supervised by a lawyer under Rule 5.3, communicating with that representative does not assist the unauthorized practice of law, and a lawyer m…
What must a Utah lawyer do after lawfully obtaining an opposing party's privileged communication?
The opinion concluded the lawyer must notify opposing counsel of the receipt unless it is clear the attorney-client privilege was intentionally waived, grounding the duty in Rule 8.4(d).
Can a private lawyer appointed as a special deputy county attorney to prosecute one matter keep representing criminal defendants elsewhere in Utah?
The opinion concluded no: under Rule 1.7(a) and the reasoning of Opinion No. 126, a special deputy county prosecutor could not represent criminal defendants in any Utah jurisdiction during the appoint…
Can a lawyer hired by an insurance company to defend an insured send detailed billing statements to the insurer's outside audit service?
Only with the insured client's informed consent. A detailed billing statement is information relating to the representation under Rule 1.6, so before sending it to an outside auditor the lawyer must o…
Can one lawyer represent both a county and a city within that county on civil matters, or is that a per se conflict of interest?
There is no blanket prohibition. A lawyer may represent both a county and a city on civil matters, but when the two entities are directly adverse on a matter the lawyer may not represent either (and p…
A part-time county prosecutor in private practice represents a client in a civil case, and the opposing party becomes a criminal suspect in the same county. Must the prosecutor withdraw from the civil case, or is referring the criminal matter enough?
If the prosecutor has not become personally substantially involved in, and has no meaningful control over, any investigation of the criminal matter, he need not withdraw from the civil case and can cu…
Can a Utah lawyer accept credit cards for legal fees and costs?
Yes. The opinion concluded lawyers may accept payment by credit card like other merchants, overruling the earlier Opinion 21, subject to ordinary duties such as safekeeping advance payments and protec…
Can a lawyer accept payment in property or services instead of money, and can a lawyer barter legal services through a barter exchange?
Yes to both in principle. Nothing requires fees be paid in money as long as the fee is reasonable and complies with the prohibited-transaction rules, and bartering through an exchange is not barred pe…
Can a law firm sell or give its client list (names, addresses, and phone numbers) to securities brokers, financial planners, or insurance agents without the clients' consent?
No. A client's name, address, and telephone number obtained through the representation are confidential under Rule 1.6, so the firm may not furnish a client list to third parties, with or without a fe…
Can a lawyer send a direct-mail solicitation, for profit, advertising mediation and arbitration services to people already in litigation?
Yes, but only if the mailing makes clear to all recipients that the alternative dispute resolution services are not legal services and that no attorney-client relationship will be created; on those te…
If an accused person calls a lawyer for help turning himself in, can the lawyer give police the client's phone number or whereabouts?
No. Information an accused gives a lawyer in an initial telephone conference, where the lawyer agrees to represent him, is confidential under Rule 1.6, even against a request from law enforcement seek…
What must a Utah lawyer do with trust funds held for a client the lawyer cannot locate?
The opinion said the lawyer must first secure the funds in trust, make reasonable diligent efforts to find the client, and if the client still cannot be found, hold the funds and ultimately follow Uta…
What are a Utah lawyer's duties when the lawyer cannot communicate with a client in a language the client understands?
The lawyer need not personally speak the client's language but must communicate adequately, which the opinion said may require a skilled interpreter, with care taken so the interpreter does not give i…
Can a lawyer send the interest from a pooled client trust account (IOLTA) to a law-related charity of the lawyer's choice instead of the Utah Bar Foundation?
No. The Utah Supreme Court approved the IOLTA program only for remitting nominal trust-account interest to the Utah Bar Foundation, so a lawyer who directs that interest to a different charity would v…
Can a lawyer secretly record a phone call with a client, witness, or another lawyer without telling them it is being recorded?
Yes, in ordinary circumstances. Recording a conversation the lawyer is party to, without disclosure, is not unethical when, considered in context, it does not involve dishonesty, fraud, deceit, or mis…
If a lawyer agreed to pay a personal-injury client's medical providers out of a settlement, and the client then discharges those debts in bankruptcy, must the lawyer pay the providers personally?
No. Absent dishonesty, fraud, deceit, or misrepresentation, the lawyer has no ethical obligation to personally honor the client's agreement to pay medical providers from a settlement or judgment; the …
How long must a Utah lawyer keep a client's file after the representation ends?
There is no fixed retention period. The opinion concluded a lawyer must return the portions of the file that are the client's property and keep the rest as long as needed to protect the client's fores…
Can a defendant's lawyer contact former plaintiffs who already settled their claims, to investigate their old lawyers, without going through plaintiffs' counsel?
Yes, but only if the settling plaintiffs are no longer represented by counsel and only after the lawyer makes appropriate disclosures; under Rule 4.2 the lawyer must confirm the prior representation h…
Browse Utah State Bar Ethics Advisory Opinion Committee opinions by topic
Legal ethics opinions from the Utah State Bar Ethics Advisory Opinion Committee interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.