Focus on Ethics & Civility, 0218 UTBJ, Vol. 31, No. 1. 40

AuthorKeith A. Call, J.
PositionVol. 31 1 Pg. 40

Focus on Ethics & Civility

Vol. 31 No. 1 Pg. 40

Utah Bar Journal

February, 2018

January, 2018

If You Are Local Counsel in Utah, You Should Read This

Keith A. Call, J.

A year and a half ago, I wrote about the ethics of serving as local counsel. See Keith A. Call & Robert T. Denny, Serving as Local Counsel, 29 Utah B.J. 48 (July/Aug 2016). Since that time, the Utah law of local counsel has had a major shakeup.

In September 2017, the Utah Bar Ethics Advisory Opinion Committee (EAOC) gave Utah lawyers important new guidance. Any Utah lawyer who serves as local counsel should read this opinion. See Utah State Bar Ethics Adv. Op. Comm., Op. No. 17-04 (Sep. 26, 2017). Here are a few highlights.

Acting as Mail Drop is Insufficient

Sometimes out-of-state counsel seeks to retain local counsel for no other reason than to “rent” a Utah Bar license with a Utah address. Perhaps the most important take-away from the new EAOC opinion is that acting as a mere mail drop will not fulfill your ethical duties as local counsel.

Quoting Rule 5.5(c) of the Utah Rules of Professional Conduct, the EAOC opines that local counsel must “actively participate[] in the matter.” Op. 17-04, ¶ 6. Based on this standard, the EAOC concludes, “Acting as local counsel for a pro hac vice attorney is not a minor or perfunctory undertaking. Local counsel violates the Utah Rules of Professional Conduct when local counsel acts as nothing more than a mail drop or messenger for the pro hac vice attorney.” Id. ¶ 2 (emphasis added).

So, to the extent Utah local counsel have acted only as a mail drop in the past, the EAOC has made it clear this practice should stop.

Know the Case

By rule, Utah local counsel must sign the first pleading signed in any case filed in Utah district courts. See Utah R. Jud. Admin. 14-806(f)(4). According to the EAOC, only licensed Utah local counsel should electronically file any documents in Utah district courts. Op. 17-04, ¶ 12 (citing Utah R. Jud. Admin. 4-503).

Local counsel is therefore responsible to make sure the pleadings and other documents comply with Rule 11. “Local counsel must…investigate the merits of the case to the extent necessary to be satisfied that the substance of the documents, both legal and factual, prepared by the pro hac vice attorney complies with Rule 11 and Utah law generally before filing them with the district court.” Id. The opinion further suggests that...

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