Posted: July 19, 2023
Rules of Professional Conduct – Comment Period Closed September 2, 2023
RPC07.01. Communications Concerning a Lawyer’s Services. AMEND. Rule 7.1 was recently circulated for comment in response to a petition to the Supreme Court. That petition expressed concern about the direct solicitation of potential clients soon after traumatic events. The petition proposed returning to the Rules of Professional Conduct a ban on direct solicitation. Such a ban previously appeared in Rule 7.3 and still appears in the ABA Model Rule. The Utah Supreme Court eliminated the ban on direct solicitation in 2020. The proposed amendments that were drafted in response to the petition generated a large number of comments in opposition. Using Fla. Bar v. Went For It, Inc., 515 U.S. 618, 620–21 (1995) as a guide, the rule was redrafted to more narrowly address the petition’s concerns. That rule proposal is now the subject of this comment period.
RPC08.04. Misconduct. AMEND. Rule 8.4 circulated for comment last year. The proposal attempted to codify in a new paragraph (2) Ethics Advisory Opinion 02-05, which concluded that 8.4(1)(c) (conduct involving dishonesty, fraud, deceit or misrepresentation) does not apply to government attorneys overseeing an otherwise legal undercover criminal investigation. The proposal as written received a number of comments in opposition. A new proposal, which is now the subject of this comment period, provides that while it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, a lawyer may participate in lawful investigatory activities employing deception for the purpose of detecting ongoing violations of law. Those lawful investigatory activities include governmental “sting” operations; use of testers in fair-housing cases to determine whether landlords or real estate agents discriminate against protected classes of applicants; and gathering evidence of copyright violations.
There does not appear to be a redrafted proposed rule available for review.
John,
The new proposed rule is linked in the post directly above your comment, also available here: http://legacy.utcourts.gov/utc/rules-comment/wp-content/uploads/sites/31/2023/07/RPC07.01.2nd-Comment.pdf.
To your point, the link in the Notice e-mail is to the prior Feb. 2023 version.
In my view any solicitation or advertisement by lawyers should be prohibited. During my early years as a lawyer, clients found the best representation by speaking with lawyers and former clients and receiving a recommendation based on experience. Now, clients find lawyers based on the amount the lawyers spend on advertising and the cleverness of their ad agency. In the end, the clients lose hand the profession no longer looks like a profession. Instead, it has been reduced to a crass business!
A 90 day waiting period for direct contact seems like a more appropriate waiting time for grieving family members.
There is no justifiable reason to restrict attorneys’ first amendment rights to advertise their services. The rule changed in 2020 and few, if any, problems have arisen since. Many other states permit in-person solicitation and they don’t have dramatic issues with lawyers overstepping common decency either.
Rule 7.1 already covers coercive, false and misleading statements, duress, and harassment. There is no need to restrict attorneys in this manner.
RE: 8.04
It appears this latest proposal is an attempt to narrow the scope of dishonesty and deception allowed by government lawyers in their investigative capacities that would have been authorized by the previous proposal. I am not convinced is actually does narrow it much at all, at least not in practice. The prior version stated that government lawyers could employ dishonesty, fraud, misrepresentation and deceit in their covert government operations. The new proposal says they can employ deception for the purpose of detecting ongoing violations. The only real difference I see is the timing, the current version only allows for deception in detection of “ongoing violations of law” where the last version had no such limit.
My greater concern is with the exception generally and would urge the committee to leave rule alone. Authorizing, and even encouraging, government lawyers to be deceptive is antithetical to the rules of professional conduct entirely. Though it can hardly be doubted that if government lawyers are authorized to lie, cheat, deceive and defraud in their investigative activities, they will have more, and probably more efficient, tools at their disposal in detecting and punishing crime. But the ethical rules are not designed to give any specific set of lawyers the tools they want in order to be more effective in their individual areas of practice. This rule especially is designed to set a high bar, requiring those who want to practice law to do so “with honesty, fidelity, professionalism, and civility”. Working for the government should not be a license to lie.
The committee suggests, in its comment, that these kinds of behaviors (lying, defrauding, etc., during investigative stings) are “legitimate activities that benefit the common good”. Setting aside my doubts that many or most sting-type activities are legitimate or that they actually promote the common good, I still have grave concern about exempting any lawyer from the most basic of ethical obligations, honesty.
The proposed exception gives only government lawyers the authorization to lie. Perhaps it is because the committee believes that government lawyers are special, or their legal responsibilities are more important than other lawyers; Or perhaps this exception is proposed because the committee believes government lawyers can be trusted not to abuse this special exemption. I don’t think any of these justifications are valid. In my experience government lawyers are not better or worse than other lawyers, they are just about as ethical and as trustworthy as other lawyers in pursuing their professional ends. And in my experience the professional ends of government lawyers are about as noble and legitimate as the professional ends of most other lawyers. For example, when a civil liberties lawyer seeks to establish that his client’s rights are being violated as a prison inmate, I believe that these are “legitimate activities that benefit the common good” similar to a government lawyer engaging in a covert criminal investigation. Does that legitimacy justify the civil liberties lawyer in employing deception in the form of dishonesty, fraud, deceit or misrepresentation to show prisoner abuse? No. Despite the legitimacy of his ends, the ethical practice of law holds all lawyers to a high standard that, at a minimum, eliminates fraud and deception as an available tools. Why should a government lawyer be treated differently?
The Rules of Professional Conduct are supposed to make lawyers different, to hold lawyers to a high standard. Exempting government lawyers from the most basic of these rules debases the practice as a whole and tends to de-legitimize the government generally. It is short-sighted, misguided, and promotes an ends-justify-the-means As Mr. Turner noted in his comment to the previous proposal,
This amendment (as compared to that circulated for comment in Feb 2023) is a step in the right direction. That said, however, the proposed rule still takes a broad and inflexible approach to a very narrow issue. Recall that the original petition from the UAJ raised concerns about “aggressive, inappropriate, or uninvited solicitation at an injury scene or hospital.” Rather than a flat prohibition with certain exceptions carved out, the better approach is to have a narrowly tailored prohibition that addresses the specific concern raised. It seems to me that the rule could be most effectively amended by drafting it so as to prohibit uninvited solicitation for retention by a prospective client at the scene of an injury or treatment/medical facility, or any solicitation that is abusive.
The committee should start with the least restrictive approach in attempting to solve the problem and introduce additional restrictions only if the initial effort proves inadequate. The committee should bear in mind the contemporaneous efforts of the Bar to close the access to justice gap, and consider the proposed rule’s impact on that initiative.
That got posted too soon. My apologies.
… and promotes an ends-justifies-the-means mentality, exactly the opposite of what both the bar and the government should be promoting. As Mr. Turner noted in his previous comment to the previous proposal, “If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself, it invites anarchy.” Olmstead v. United States, 277 U.S. 438 (1928).” We are talking about ethics, it should be simple. If the government wants to use dishonesty, fraud, deceit, and misrepresentation in its efforts to investigate crime, it is legal to do so. Let’s not pretend like it is ethical to do so.
“employing deception for the purpose of detecting ongoing violations of law.”
“Those lawful investigatory activities include governmental “sting” operations; use of testers in fair-housing cases to determine whether landlords or real estate agents discriminate against protected classes of applicants”
The language in this comment sounds like you are authorizing investigations that have no other purpose than to find a crime to hang on someone, and the government can do anything in the investigation to make that happen. The fact that you include the words “otherwise legal undercover criminal investigation” does not change this. Given the gross abuses of government power that have happened in the past, there should be some language that clearly limits these type of activities. At a minimum, you should have a reasonably articulable suspicion that the targets of the investigation are engaged in criminal activity and the attorney know of it before taking part in the investigation.
While this comment may be well intentioned, IT SHOULD NOT BE ASSUMED THAT ATTORNIES CANNOT AND/OR WILL NOT INTERPRET THIS LANGUAGE TO FIT THEIR OWN NEEDS OR IN SUCH A WAY THAT THEY CAN VIOLATE THE RIGHTS OF US CITIZENS.
The revision to the portions of Rule 7.1 put the provision concerning unreasonable representations to clients who are naive as to hiring an attorney into the comments. I’m not so concerned about in person solicitation as I am about those representations. Certain portions of the bar are testing the outer limits of what is allowed in advertising.
The Utah Advisory Ethics Opinion Committee opined that $0 down bankruptcy advertising might be beyond the scope of the Rule given that the $0 down was only filing the petition and that in order to obtain discharge, the lawyer would be charging fees. That opinion was cited in bankrupcy court but the practice continues unabated.
Passing rules on advertising and in-person solicitation is good but if the bar continues to ignore the rules that are passed, it is a futile waste of time. It is perhaps helpful that the provisions of Rule8.1 are included but, again, what is the purpose if that rule is ignored as well?
The 30-day waiting period in Rule 7.1(c)(1) is a good compromise between an outright ban on personal solicitation and a desire to contact potential clients who may need legal assistance.
The 8.4 rule change is appropriate to protect otherwise lawful use of dishonesty, fraud, etc. in law enforcement and anti-terrorism activities. Other dishonesty, fraud, deceit or misrepresentation should continue to be prohibited.
Dear utcourts.gov admin, Thanks for the well-presented post!
On behalf of the American Civil Liberties Union (“ACLU”) of Utah, we write to request that the Court reject or defer voting on the proposed Rule of Professional Conduct 7.1 Amendments (“Proposed Rule”) until an additional exception can be added to allow for the solicitation of clients in accordance with the United States Supreme Court’s ruling in In re Primus, 436 U.S. 412 (1978). As presently written, the Proposed Rule raises constitutional concerns and may conflict with First Amendment protections.
The ACLU of Utah is a non-profit non-partisan organization that has engaged in impact litigation in Utah for over 60 years. The organization’s goal has been to consistently advance and defend civil rights, and the types of suits brought forth have differed throughout several decades and include a mixture of constitutional claims as well as other civil claims.
One constitutional infirmity contained in the Proposed Rule is the failure to differentiate between pecuniary and non-pecuniary solicitation. While the Proposed Rule contemplates various exceptions, the text does not include exceptions for solicitation for non-pecuniary reasons in instances where attorneys engage in litigation as a form of political expression and political association. As the Supreme Court recognized in In Re Primus, for organizations such as the ACLU and other civil liberties organizations, “litigation is not a technique of resolving private differences; it is a form of political expression and political association.” In re Primus, 436 U.S. at 428 (citing National Association for the Advancement of Colored People v. Robert Y. Button, 436 U.S. 412, 428 (1963) (internal citations and quotations omitted)). Accordingly, as the Supreme Court recognized in In Re Primus, solicitation of prospective litigants by non-profit organizations that engage in such litigation enjoys First Amendment protections. See id.
Because the text of subsection (c) does not provide accommodations for counsel that may engage in non-pecuniary solicitation as contemplated in In re Primus, the Proposed Rule may conflict with the Supreme Court’s directive providing First Amendment protections to the work of organizations which engage in such type of litigation. Accordingly, we kindly request the Committee defer on adopting these modifications to Rule 7.1 until language can be added to ensure that constitutionally protected conduct is not inadvertently barred by the Rule.