The Utah State Bar provides confidential advice about your ethical obligations.
Need ethics help? Contact the Utah State Bar’s Ethics Hotline for advice. Email us at ethicshotline@utahbar.org. We’ll give you advice and point you to the rules and authority that apply to your situation.
Our limits: We can provide advice only directly to lawyers and LPPs, and we can advise you only about your prospective conduct—not someone else’s conduct. We don’t form an attorney-client relationship with you, and our advice isn’t binding.
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For a formal ethics opinion that provides a safe harbor under rule 11-522, suggest an ethics opinion from the Ethics Advisory Opinion Committee.
Lawyers using these materials are responsible for conforming their practices to the law of the appropriate jurisdiction.
If the matter involves complex issues, or implicates a substantive area of law, you may wish to retain professional ethics counsel.
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Utah State Bar Guidance on Cybersecurity Breaches for Law Firms[97]
A: Yes, if the services arise out of or are reasonably related to the attorney’s practice in the jurisdiction in which the attorney is admitted. This is governed by Rule 5.5(c)(4), which allows a non-Utah licensed attorney to practice law temporarily in Utah. Comment [14] affirms that the representation is warranted where the matter has “significant connections” to the jurisdiction where the lawyer is licensed.
A: Reviewing and drafting contracts on behalf of a company constitutes the “practice of law” in Utah under 14-802, which is defined as the “representation of another by informing, counseling, advising, assisting, advocating for or drafting documents.” For an attorney licensed in another state, representing a Utah company would not be permitted unless the legal work arises out of or is reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted, under Rule 5.5(c)(4). In sum, an out-of-state attorney cannot represent a Utah company where the attorney will be working on matters impacted primarily by Utah law.
A: Attorneys in this situation should look to the laws of that state to determine if that state considers this conduct the unauthorized practice of law. Utah’s Rule of Professional Conduct, 5.5, affirms that Utah attorneys cannot violate the practice laws of another state.
A: Rule 5.5 describes the circumstances through which out-of-state attorneys may practice law on a limited basis in Utah. Namely, such temporary representation can occur if done in association with a lawyer admitted in Utah, or if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which they are licensed.
A: Yes, as long as the out-of-state attorney does not establish a public-facing office in Utah and does not represent that the attorney is licensed in Utah. This is governed by subsection (b)(3) of Rule 5.5 and confirmed in Ethics Advisory Opinion 19-03.
A: Yes, as long as the flat fee is reasonable and refundable. This is governed by Rule 1.5. Utah State Bar Ethics Advisory Opinion 12-02 addresses the ethical and practical considerations of flat fee agreements. You must keep the flat fee in your trust account until it is earned.
A: Yes, if you satisfy the requirements in subsection (d) of Rule 5.4. Notably, the nonlawyers’ organization must have been authorized as required by Utah Supreme Court Standing Order No. 15 (the Utah Office of Legal Services Innovation).
A: No. On December 8, 2020, the Supreme Court issued a press release prohibiting “bare referrals,” or those referral fee arrangements where payment is made by the lawyer to the nonlawyer solely to compensate the nonlawyer for referring a potential client to the lawyer, and where there’s not a preexisting business relationship between the parties. As of 2024, the Supreme Court’s Advisory Committee on the Rules of Professional Conduct has been working on rule amendments that would expressly prohibit referral fees.
A: Yes. Under the revised Rule 1.5, the former prohibition on the division of fees between lawyers who are not in the same firm has been removed.
A: Only if you accept the payment in advance. Rule 14-1001 requires only client funds to be in a client trust account. If you have already performed the work when you receive the payment, then you have earned the funds, and they belong to you—not the client—and you can place them in your personal or operating account.
A: Ordinarily, 1.15(d) of the Rules of Professional Conduct requires that, at the time of the client’s death, the firm promptly deliver the funds belonging to the client or to a third party if such a party has a legal interest. In cases where it remains unclear to whom the funds should be dispersed, those funds are considered “disputed.” In such cases, Rule 1.15(e) requires that the firm keep the disputed funds in the trust account until the matter is resolved. Funds are disputed if they involve an active claim or the attorney has been unable to locate the party for whom they are owed.
A: Yes. Rule 1.16 requires an attorney to return the client’s file at the termination of representation, as the client file is deemed the client’s “property” under the Rules. If the termination is due to the death of the client, the attorney can return the client’s files only to the client’s legal representative, as the attorney maintains a continuing duty of confidentiality under Rule 1.6, even after the client’s death. Failure to pay is not a part of the analysis.
A: No. Rule 1.7 strictly prohibits the representation where there’s an assertion of a claim by one client against the other client represented by the lawyer in the same litigation. Situations in which informed consent to the representation despite a conflict can be found in Rule 1.7(b).
A: Under Rule 1.7 of the Rules of Professional Conduct, attorneys are prohibited from representing clients who are directly adverse from each other in the same litigation or in instances where there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s interest to another client, a former client, or by a personal interest of the lawyer.
A: Yes, if you received information during the consultation that “could be significantly harmful if used in the matter.” This issue is governed by subsection (c) of Rule 1.18. If you’ve received disqualifying information, then you can proceed with the representation only if you comply with subsection (d), which requires, among other things, that each client provides informed consent, confirmed in writing.
A: Proceeding with representation is inadvisable. Even where the matters are not the same, your former representation of the client could potentially impact the current matter. Even if you do not currently recall the representation of the former client, is there any possibility that you could inadvertently reveal confidential information otherwise protected by Rule 1.6? As the legal matter continues, for example, you may recall information about the client that will make it impossible for you to give your current client detached advice.
A: Yes, keeping in mind the ethical restrictions of Rule 1.8, which require that the terms of the agreement are fair to the client, the terms are in writing and they are understandable to the client, the client is advised in writing that he should seek the independent advice of another lawyer, and the client must give informed consent to the essential terms of the transaction. Comment 1 adds, “the requirements of paragraph (a) must be met even when the transaction is not closely related to the subject matter of the representation.”
A: Under Rule 1.7, applying to a firm that is acting as opposing counsel on one of your current cases could ‘materially limit’ your duties to your current client. If you are actively interviewing with this firm, they could even move to disqualify your firm from the case entirely. An attorney can, however, pursue employment with a rival firm, so long as the attorney is not directly working on the matter, and thus won’t impact the diligent representation of a current client of your firm.
A: You must terminate your representation of both clients. First, 1.7(a), you are prohibited from taking a matter directly adverse to a current client. Second, if you terminate the representation of one of the parties, you remain prohibited from representing the remaining party against the former client under 1.9(a), where representation in a substantially related matter in which the person’s interests are materially adverse to a former client are prohibited. Custody matters are frequently substantially related because they involve the attorney’s knowledge of both parties’ financial and familial issues, and the information the attorney gained during the initial representation is very likely to be relevant to a subsequent action.
A: Yes, so long as the identification is not false or misleading, contains a material misrepresentation of fact or law, is likely to create an unjustified or unreasonable expectation about the results the lawyer can achieve, or contains a testimonial or endorsement that violates any portion of the revised Rule 7.1. Recent amendments have eliminated Rules 7.2-7.5 in favor of a condensed Rule 7.1, which removes many of the advertising and solicitation restrictions contained in the former rules.
A: Recent amendments have eliminated Rules 7.2-7.5 in favor of a condensed Rule 7.1, which removes many of the advertising and solicitation restrictions contained in the former rules. While there are no longer rules for labeling one’s communications as “advertisements,” attorneys are constrained from creating advertisement that is materially misleading or is likely to create an unjustified or unreasonable expectation about the results the lawyer can achieve.
A: The current version of Rule 7.1 does not contain the advertising and solicitation restrictions contained in the former rules. Under 7.1(b), solicitations of clients are permissible so long as the lawyer does not interact with a prospective client in a manner that involves coercion, duress, or harassment. As of 2024, the Supreme Court’s Advisory Committee on the Rules of Professional Conduct has been working on rule amendments that would reimpose restrictions on soliciting clients.
A: In all instances, an attorney must be vigilant in protecting their clients’ confidentiality under Rule 1.6. Subsection (b) of the Rule enumerates exceptions to this prohibition, which include revelation in order “to prevent reasonably certain death or substantial bodily harm.” 1.6(b)(1). Unfortunately, 1.6(b)(1) determinations are highly discretionary, and your firm is in the best position to make the assessment of whether you deem the threat to be “reasonably certain” to result in harm or death to the subject of the threat. Any subsequent ethics complaints stemming from the revelation of confidential information would factually analyze the reasonableness of the revelation under the circumstances.
A: It depends on whether the lie was material. If it was material, Rule 3.3 requires you to “take reasonable remedial measures,” which might include informing the court. And if the client persists, you might need to withdraw from the representation. Rule 1.16 requires you to withdraw if the representation will cause you to violate the rules, if the client insists on a course of action that you reasonably believe is criminal or fraudulent, or if the client is using your services to perpetrate a crime or fraud.
You need to report it to the Office of Professional Conduct. Under Rule 8.3(a), a “lawyer who knows that another legal professional has committed a violation of the applicable Rules of Professional Conduct that raises a substantial question as to that legal professional’s honesty, trustworthiness or fitness as a legal professional in other respects shall inform the appropriate professional authority.”
A: In anticipation of an attorney’s departure from a firm, the firm and departing attorney should work on a joint communication strategy to notify all clients for whom the attorney has a prior professional relationship or maintains an active case with, regarding the attorney’s departure. ABA Formal Opinion 99-414 clarifies this relationship, stating, “a lawyer does not have a prior professional relationship with a client sufficient to permit in-person or live telephone solicitation solely by having worked on a matter for the client along with other lawyers in a way that afforded little or no direct contact with the client.” Your notice to such clients should give them the opportunity to choose counsel, which for current clients means the option of staying with the firm or following you to your new firm/practice. These obligations are noted in Rule 1.4 of the Rules of Professional Conduct, which affirms that attorneys are obligated to communicate to clients any material changes in the status of their case. The period by which to inform clients of your departure should be the minimum necessary under the circumstances for the client to make an informed decision.
A: It depends on whether the person is a “duly authorized constituent” or part of the “control group” under Rule 4.2(d)(2). If so, then they are considered to be represented by the employer’s counsel, and you cannot contact them directly. For more on determining the scope of representation, and a corporation’s “control group,” see the Utah State Bar Ethics Advisory Opinion Committee’s Opinion No. 15-04.
A: Attorneys may share office space with non-lawyers (paralegals, businesses, etc.), but must implement an internal strategy to robustly protect their clients’ confidentiality under Rule 1.6. Comment 18 to the rule elaborates on this duty, which includes training and requiring your staff to maintain policies for safekeeping client confidences and property.
A: Under the recently revised Rule 5.4 of the Rules of Professional Conduct, attorneys can share fees and partnerships with non-lawyers if the arrangement has been authorized by the Office of Legal Service Innovation, also known as the “regulatory sandbox,” consistent with Standing Order No. 15. In addition to gaining the approval pursuant to the standing order, the lawyer/firm must also provide written notice of the arrangement to prospective clients, including informing a client the financial and managerial structure of the organization in which the lawyer practices.
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