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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When a parent hires a lawyer for an injured child's personal injury claim, what does the lawyer owe the child if the parent's wishes conflict with the child's interest?
The opinion concludes the conflict rules (1.7, 1.8, 1.9) apply to the child as a client even though the parent retained and can discharge the lawyer, and the lawyer must protect the child's funds unde…
What are a prosecutor's and defense lawyer's ethical duties toward the victim in a domestic violence case?
The opinion concludes that the alleged victim is the client of neither the prosecutor nor defense counsel; both must avoid implying they represent the victim, may not give the victim legal advice beyo…
Can a Utah lawyer renegotiate a flat fee if the matter turns out larger than expected?
The opinion concludes that a lawyer who unilaterally underestimated the scope of a matter cannot simply renegotiate the flat fee; a renegotiation for the lawyer's advantage is a business transaction w…
Can a private lawyer sue one government agency while representing another agency of the same government in an unrelated matter?
The opinion concludes that this simultaneous representation is not categorically prohibited; whether it creates a conflict turns on identifying the government client through a functional analysis and …
Can a contingency-fee firm charge the client for the cost of litigation cost insurance, payable only if the client recovers?
Yes, with conditions. The opinion concludes a firm may pass the cost of a litigation insurance policy to the client upon recovery if the terms are fair, reasonable, and fully disclosed in writing, the…
Can a registered investment adviser (RIA) firm in Utah employ a lawyer to provide estate-planning services to the RIA's clients and pay the lawyer a share of the firm's advisory fees?
The opinion concludes a lawyer's duties run to the client; a non-client may pay the lawyer's fee if Rule 1.8(f) is met, but an RIA cannot employ a lawyer to deliver legal services to its clients and p…
Can a Utah lawyer put an indemnification clause in a retainer agreement, and can the lawyer use it to make a client pay the lawyer's malpractice insurance deductible if the client's malpractice claim fails?
The opinion concludes a lawyer may include an indemnification provision covering third-party claims arising from the client's own conduct, but using such a clause to recover the lawyer's malpractice i…
Can a law firm represent a party on appeal when one of its own lawyers testified as an expert witness for the opposing party in the same case?
The opinion concludes that if the testifying lawyer truly had no attorney-client relationship with the party who engaged him, the firm's later representation of the adverse party on appeal is not barr…
If a Utah lawyer is hired by another law firm to consult on a narrow area of law using only hypotheticals, does the lawyer take on a client-lawyer relationship or a duty of confidentiality?
The opinion concludes the consultation alone does not create a client-lawyer relationship between the consulted lawyer and the consulting firm's client, but the consulted lawyer may acquire a duty of …
When a client asks a Utah lawyer to modify a fee agreement mid-representation, what ethics rules apply?
Rule 1.5 always governs, so the modified fee must stay reasonable throughout; if the change is not clearly beneficial to the client or settles a fee dispute, Rule 1.7(a) treats it as a personal-intere…
Can a lawyer make a client, a former client, or opposing counsel promise not to file or take part in a bar complaint as a condition of settling a dispute?
No. The opinion concludes a lawyer may neither request nor agree to a settlement term that forgoes filing or participating in a bar complaint, and may not enter a settlement that limits the lawyer's m…
If a lawyer briefly joined the firm that had represented the opposing spouse, then left, can the lawyer keep representing the other spouse in the same divorce when the lawyer never got any confidential information about the opposing spouse?
The opinion concludes the lawyer may continue to represent the wife against the husband on post-decree matters without the husband's consent, because under Rule 1.9(b) the lawyer acquired no informati…
Can a former member or hearing officer of the parole board later represent an offender before that same board, and do all proceedings involving one offender count as the same 'matter' under Rules 1.11 and 1.12?
The opinion concludes that any proceeding involving the same offender is the same 'matter,' so a former Board member or hearing officer who personally and substantially participated in prior proceedin…
Can a criminal defense lawyer counsel a client to accept a plea agreement that waives the lawyer's own future ineffective assistance of counsel at sentencing or in postconviction proceedings?
The Committee concludes it violates Rule 1.7 for a defense lawyer to counsel a client to enter a plea agreement waiving the lawyer's prospective ineffective assistance at sentencing or other postconvi…
Can a Utah lawyer take part in an on-site program that finances client retainers through a third-party lender?
Not without curing the conflict. Participating in an on-site retainer-financing program creates a personal-interest conflict under Rules 1.7(a) and 1.8(a), but the lawyer may proceed by obtaining the …
Can a Utah lawyer pay a non-lawyer for client referrals, run joint advertising with a chiropractor or insurer, or own a business expecting it to send clients to the lawyer?
The opinion concludes a lawyer may not give anything of value, directly or indirectly, for a referral (and reciprocal-referral agreements are barred in Utah); joint advertising with a non-lawyer is no…
Can a lawyer who once represented the wife (separately, and jointly with the husband against a third party) now represent the husband on appeal in their divorce?
The opinion concludes the lawyer's earlier separate representation of the wife does not bar representing the husband on appeal because it is not substantially related, but the joint litigation against…
Can a Utah lawyer give a financial or charitable gift to an indigent litigation client?
Rule 1.8(e) bars financial assistance in connection with litigation, including paying a client's living expenses, so regular monthly payments to an inmate's commissary account are prohibited; but Utah…
Can a plaintiff's lawyer personally agree to indemnify and hold the opposing party harmless against unpaid medical liens as a condition of a personal injury settlement, and can opposing counsel demand it?
No. The opinion concludes that a plaintiff's lawyer personally agreeing to indemnify the opposing party against any and all third-party lien claims violates Rules 1.7(a) and 1.8(e), and that asking op…
Can a Utah lawyer represent a homeowners association against a property manager who refers business to the lawyer?
Representing an association in matters not adverse to the manager raises no conflict and needs no disclosure, but suing or negotiating against the manager creates a personal-interest conflict under Ru…
Can a Utah lawyer who represented a party in a guardianship case go on to represent the guardian the court appoints?
Only after analyzing it as a current-or-former-client conflict under Rules 1.7 and 1.9; if the facts show direct or material adversity, or the guardian's fiduciary and statutory duties would materiall…
Can a lawyer serve on a legal-services organization's litigation advisory group when its clients have interests adverse to the lawyer's own clients?
Generally yes. The opinion concludes that under Rules 6.3 and 6.4, serving as a director, officer, or member of a legal-services or law-reform organization does not by itself create an attorney-client…
Can a Utah lawyer set up or borrow from a lending company to finance a client's case or pay the lawyer's own fees?
No to both arrangements presented. A lawyer may not run a lending company that loans money to the lawyer's own clients to cover fees, because the lawyer's loyalty to the lender conflicts non-consentab…
Can a county attorney's office help domestic-violence victims get protective orders and still prosecute the abuser?
Yes, with limits. An individual government lawyer may provide the pro bono protective-order representation but then may not take part in prosecuting the abuser; under Rule 1.11 that lawyer's conflict …
Does a lawyer owe confidentiality to someone interviewed as a prospective client who is never retained, and can that interview disqualify the lawyer's firm?
Yes. The opinion concludes confidentiality usually attaches when a prospective client consults a lawyer in contemplation of retention, even if the lawyer is never retained and gives no advice; Rules 1…
After successfully mediating a divorce, can a Utah lawyer-mediator draft the settlement agreement and court pleadings for both parties?
The majority concludes no: drafting the settlement and divorce pleadings is the practice of law, and a lawyer may not represent both opposing parties in litigation under Rule 1.7(a). The lawyer-mediat…
Can corporate counsel block opposing counsel from interviewing employee fact-witnesses by asserting that counsel represents all of them?
Only where counsel has actually formed an attorney-client relationship with each employee-witness in compliance with Rule 1.7 (informed consent to joint representation, with notice of possible withdra…
Can a lawyer refer clients to a cooperative the lawyer co-owns that provides non-legal, law-related services, and share in its profits?
It is not per se unethical. The opinion permits a lawyer to refer clients to a lawyer-formed cooperative offering non-legal, law-related services (such as trust administration) and to share in its pro…
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 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…
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…
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…
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…
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…
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…
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.