RPC01.02. Scope of representation and allocation of authority between client and lawyer. Licensed paralegal practitioner notice to be displayed. AMEND. Clarifies the circumstances under which a lawyer may advise or assist a client with respect to Utah’s cannabis laws.
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.
RPC07.01. Communications Concerning a Lawyer’s Services. Amend. The proposed amendments to Rule 7.1 prohibit direct solicitation of a potential client for the purpose of obtaining professional employment. For conduct of nonlawyers acting on behalf of lawyers, see Rule 5.3.
RULES OF PROFESSIONAL CONDUCT
RPC08.03. Reporting Professional Misconduct. Amend. Clarifies that a lawyer or judge participating in a Utah State Bar-sponsored fee dispute resolution program is not required to disclose information gained in that program to the Office of Professional Conduct.
RULES GOVERNING THE UTAH STATE BAR
USB14-0111. Exemption from future testimony and confidentiality of records and information. Amend. Clarifies when the Bar may disclose confidential information and what information it may disclose; also clarifies that a Fee Dispute Resolution Committee member who participates in a fee dispute arbitration may not be called as a witness in any subsequent legal proceeding related to the fee dispute.
USB14-0116. Conduct of the mediation. Amend. Permits the fee dispute mediator to serve notice of the mediation by email on the mediating parties.
RPC01.16. Declining or terminating representation. AMEND. In accordance with Strickland v. Washington, 466 U.S. 668 (1984), Roe v. Flores-Ortega, 528 U.S 470 (2000), and ABA Standard 4-9.1, codifies in new paragraph (e) the ethical obligation of defense counsel to secure a criminal defendant’s right to appeal.
RPC08.04(c). Misconduct. AMEND. Codifies in 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.
RPC05.05. Unauthorized Practice of Law; Multijurisdictional Practice of Law. Amend. Clarifies that a non-Utah lawyer who is living in Utah may provide legal services remotely to clients in a jurisdiction where the lawyer is admitted. The lawyer must not establish a public-facing office nor hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
RPC01.00. Terminology. Amend. Defines a public-facing office as an office that is open to the public and provides a service that is available to the population in that location.
RPC01.02. Scope of representation and allocation of authority between client and lawyer.
RPC04.02. Communication with persons represented by legal professionals.
RPC06.01. Voluntary pro bono legal service.
The Utah Supreme Court requests comments on its regulatory reform efforts. The comment period is open for 90 days, ending on July 23, 2020. Please see https://sandbox.utcourts.gov/ and the press release for more information.
Supreme Court Standing Order
Standing Order 15: This order would establish a pilot legal regulatory sandbox and an Office of Legal Services Innovation to assist the Utah Supreme Court with respect to overseeing and regulating the practice of law by nontraditional legal service providers or by traditional providers offering nontraditional legal services.
Rules of Professional Conduct
- Rule 5.4A: This rule would govern lawyers delivering legal services in the traditional and conventional model. New Rule 5.4A(a) outlines the foremost duties of a lawyer – the duty of independence of judgment, duty of loyalty to the client, and duty of confidentiality – applicable to the rest of the Rule. The preeminence of these professional core values is further explained in new Comments  and  as they pertain to sharing fees with nonlawyers, with lawyers in a separate firm, and accepting referrals and payments from parties other than the client. In order to loosen the restriction on fee sharing, Rule 5.4A(b) allows a lawyer to share legal fees with a nonlawyer as long as written notice is given at the outset of the representation or before sharing fees from an existing client.
- Rule 1.5: Paragraph (e) of this rule would be eliminated to allow dividing fees among lawyers who are not in the same firm.
- Rule 5.4B: This rule would be applicable to lawyers participating in the pilot legal regulatory sandbox. Like proposed Rule 5.4A, the core professional values for lawyers underlying this proposed rule are stated at the outset under subsection (a). Comments  and  reiterate and clarify the importance of the underlying core values and duties of a lawyer, notwithstanding the novel arrangement with nonlawyers. Proposed Rule 5.4B(b) allows a lawyer to practice law in an organization that is managed or owned, in whole or in part, by nonlawyers, as long as (i) the client is given written notice that nonlawyers have a financial interest in the organization or nonlawyers have managerial authority over the lawyer, and (ii) the client receives in writing the financial or managerial structure of the organization.
Lawyer Advertising Rules: The Supreme Court proposes significantly simplifying the lawyer advertising rules in the Rules of Professional Conduct. Under this proposal, current Rules 7.1, 7.2, 7.3, 7.4, and 7.5 would be repealed and replaced with new Rule 7.1. Notably, this proposal would eliminate the prohibition against in-person solicitation found in current Rule 7.3.
- Rule 7.1: Would prohibit (i) making false and misleading claims about the lawyer or the lawyer’s services, and (ii) interacting in a way that involves coercion, duress, or harassment.
Drafts for Review
Standing Order 15 (conceptualizing the pilot legal regulatory sandbox and Office of Legal Services Innovation)
Redline Rules 5.4A and 5.4B (showing the changes from current Rule 5.4)
Redline Rule 1.5 (showing the elimination of paragraph (e))
Clean Rules 5.4A and 5.4B (showing the traditional legal services delivery model and the model contemplated in the pilot legal regulatory sandbox)
Redline Rules 7.1 through 7.5 (showing the process of simplifying the lawyer advertising rules)
Clean Rules 7.1 through 7.5 (showing simplified Rule 7.1 and the reservation of Rules 7.2, 7.3, 7.4, and 7.5)
RPC.0804. Misconduct. Amend. Provides that it is professional misconduct for a lawyer to engage in conduct that is an unlawful, discriminatory, or retaliatory employment practice under Title VII of the Civil Rights Act of 1964 or the Utah Antidiscrimination Act. “Employer” means any person or entity that employs one or more persons. The amendments also provide that it is professional misconduct for a lawyer to egregiously violate, or engage in a pattern of repeated violations, of the Standards of Professionalism and Civility if such violations harm the lawyer’s client or another lawyer’s client or are prejudicial to the administration of justice.
This rule coordinates with Utah State Bar Rule 14-301, Standards of Professionalism and Civility.
Following the recent enactment of rules authorizing licensed paralegal practitioners, the Rules of Professional Conduct have been amended to address interactions between lawyers and licensed legal practitioners. “Legal professional” is now the umbrella term for lawyers and licensed paralegal practitioners.
RPC01.07. Conflict of Interest: Current Clients.
RPC01.10. Imputation of Conflicts of Interest: General Rule.
RPC01.11. Special Conflicts of Interest for Former and Current Government Employees.
RPC01.12. Former Judge, Arbitrator, Mediator or Other Third-Party Neutral.
RPC01.18. Duties to Prospective Client.
RPC02.04. Lawyer Serving as Third-Party Neutral.
RPC03.03. Candor toward the Tribunal.
RPC03.05. Impartiality and Decorum of the Tribunal.
RPC04.02. Communication with Persons Represented by Counsel.
RPC05.01. Responsibilities of Partners, Managers, and Supervisory Lawyers.
RPC08.03. Reporting Professional Misconduct.