Attorney Confidentiality, the Ethics Advisory Committee, and the Rules of Professional Conduct

• Publication year: 2024
• Citation: Vol. 37 No. 4 Pg. 44
• Pages: 44

Attorney Confidentiality, the Ethics Advisory Committee, and the Rules of Professional Conduct Vol. 37 No. 4 Pg. 44 Utah Bar Journal July 2024

August 2024

Article

by The Ethics Advisory Opinion Committee

A recent article that appeared in the Utah Bar Journal^[1] requires further explanation of Utah State Bar Ethics Advisory Opinion No. 21-01 (issued April 13, 2021), by the Utah State Bar Ethics Advisory Opinion Committee (the Committee). The Committee wishes to reiterate its purpose and authority.

The Committee is a standing committee of the Utah State Bar. The Committee's duties are to receive and respond to requests for ethics advisory opinions relating to the conduct of Utah attorneys under the Utah Rules of Professional Conduct as adopted by the Utah Supreme Court. Modifying the Utah Rules of Professional Conduct is the prerogative of the Utah Supreme Court. Section V of the Rules Governing the Ethics Advisory Opinion Committee provides, in pertinent part: "The Office of Professional Conduct shall not prosecute a Utah lawyer for conduct that is in compliance with an ethics advisory opinion that has not been withdrawn at the time of the conduct in question." See Utah State Bar, Rules Governing the Ethics Advisory Opinion Committee (Apr. 27, 2007), https://www.utahbar.org/governing-rules/. This is often referred to as the "safe harbor" provision. A lawyer is free to ignore an Ethics Advisory Opinion Committee opinion knowing that, if the lawyer's conduct is questioned by the Utah State Bar's Office of Professional Conduct, the lawyer is not entitled to safe harbor protection. Because the Committee's opinions limit the ability of the Office of Professional Conduct to prosecute an attorney, the safe harbor provision requires the Committee to opine conservatively.

In Ethics Advisory Opinion No. 21-01, the Committee was asked to opine as to a lawyer's handling of confidential information under Rule 1.6 of the Utah Rules of Professional Conduct. Specific questions were asked concerning the propriety of keeping the name and extent of the representation, as well as the source of compensation, confidential. Rule 1.6(a) provides that with certain exceptions, a lawyer "shall not reveal information relating to the representation of a client." The Preamble to the Utah Rules of Professional Conduct explains the scope of the Rules: "Some of the Rules are imperatives, cast in the terms 'shall' or 'shall not.' These define proper conduct for...