Rules of Professional Conduct

I’m not the brightest bulb on the tree but I have some concerns about the change in fee agreements for hourly clients. I believe that the stringent rule of requiring written fee agreements in almost all cases relieves the lawyer and client of ambiguities. While attorneys may find themselves in tight spots when this requirement is not met ” and I really am not for making it harder on us ” the written fee agreement idea in every instance is a good practice. I do not think this requirement should be lessened in any way.

Statewide Association of Public Attorneys
Board of Directors
Resolution Regarding Proposed Rule 4.2 of the Rules of Professional Conduct
Whereas: This board represents the prosecutors and government civil attorneys of the State Of Utah; and
Whereas, provision of competent and ethical legal advise to investigative agencies is of paramount importance to the preservation of individual freedom and the protection of society from criminal activity;
Now therefore: We urge the following modification of the proposed rule.
First of all, we express our gratitude to the members of the committee for their professional cooperation in working out the difficulties in Rule 3.8 and Rule 4.2. These rules remain among the most balanced in the nation.
One proposed change in the wording of 4.2(a) is of great concern. The redrafting of paragraph (a) is generally a good idea since it adds the idea that communication should be restricted to that allowed by the law, rule or court order. That is undeniably good public policy. The difficulty is the use of the words “meet the requirements” on line 12 of the draft of March 25, 2005. The current rule uses the standard of “…authorized to do so by….”. The difference is potentially very significant. Government attorneys are not “required” to advise police in legally conducted undercover investigations, but they are certainly “authorized” to do so. If they are discouraged from giving such advice by the Rules of Professional Conduct, the potential for violation of individual rights by zealous but unadvised law enforcement agents is enormous.
We realize that such an outcome is not the purpose of the committee since the Rule contains several contrary provisions. First, the very sentence containing the word “requirements” then goes on to refer to restricting the communication to that – allowed by the law, rule or court order….(line13). Second, paragraph (c) of the rule contains extensive authorization of the type of conduct in question, but makes no mention of the public attorney’s being “required” to perform the described duties. Third, Comment 7 (beginning on line124) describes paragraph (a) – the language in question – as allowing the communication “…if the communicating lawyer is authorized to do so…” (Line130). Judging from the comment, there was no change (or at least intended change) in paragraph (a).
We suggest that the following language resolves the issue:
On line 12 delete the words “in order to meet the requirements of” and in their place insert the words “if authorized to do so by”.
This change would preserve both the carefully negotiated and crafted provisions of the current Rule 4.2 and the improvements suggested by the committee.
Resolved this 6th day of June, 2005, in a regular meeting of The Board of Directors of the Statewide Association of Public Attorneys by a vote of eleven in favor and none against.
/s/ David E. Yocom, Chairman /s/Paul W. Boyden, Executive Director