The Utah State Bar Board of Commissioners received the following reports and took the actions indicated during the May 12, 2017 Commission Meeting held at the Logan Golf and Country Club in Logan, Utah.
1. The Bar Commission voted to approve the 2017–2018 budget.
2. The Bar Commission voted to petition the Utah Supreme Court to approve a limited practice rule for lawyers who are licensed in other jurisdictions and awaiting admission in Utah.
3. The Bar Commission voted to award Paul Simmons Lawyer of the Year Award.
4. The Bar Commission voted to award Hon. Frederick Voros and Hon. Stephen Roth Judge of the Year Award.
5. The Bar Commission voted to award the Governmental Relations Committee the Committee of the Year Award.
6. The Bar Commission voted to award the Limited Scope Section the Section of the Year Award.
7. The Bar Commission voted to select Grand Summit at the Canyons as the hotel and conference center for the 2019 Annual Meeting. (Commission voted on December 4, 2015 to hold annual meeting in Park City).
8. The Bar Commission voted to select Rob Rice as the Commission Representative on the Utah Judicial Council.
9. The Minutes of the April 14, 2017 Commission Meeting were approved by consent.
The minute text of this and other meetings of the Bar Commission are available at the office of the Executive Director.
Ethics Advisory Opinion Committee – Recent Opinions
Opinion Number 16-03
Issued September 13, 2016
When a client asks a lawyer to modify a fee arrangement, what Utah Rules of Professional Conduct (“URPC”) apply?
The particular rules of the URPC concerning conflicts of interest govern this issue. Rule 1.5 of the URPC applies to all modifications of fee arrangements, which requires that clients be charged a reasonable fee throughout the representation. It governs when the fee modification is clearly beneficial to the client. Rule 1.7(a) provides that “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” URPC 1.7(a). Rule 1.7(a) of the URPC may also apply to a fee modification if the modification is not clearly beneficial to the client and/or is the result of a fee dispute with the client. In addition, Rule 1.8 applies in two situations: (1) the lawyer enters into a “business transaction” with the client; or (2) the lawyer “acquires an ownership, possessory, security or other pecuniary interest adverse to a client.” URPC 1.8(a). A situation that implicates Rule 1.8 is permissible so long as the lawyer complies with all of the safeguards of Rule 1.8(a)(1) through (a)(3), complies with Rule 1.7, and the modified arrangement satisfies Rule 1.5(a)’s reasonableness requirement.
Opinion Number 17-01
Issued April 3, 2017
The Utah State Bar Ethics Advisory Opinion Committee (“EAOC”) received a request for an ethics opinion “explaining the limits or constraints on lawyers with respect to advocacy in connection with an election for confirmation of a judge in Utah.” The opinion request includes the following inquiries: 1. “May a lawyer contribute to an entity that engages in advocacy concerning the retention of a Utah judge? If so, must the entity comply with the Utah Rules of Professional Conduct?”
2. “May a lawyer be an officer or employee of such an entity?’
When a judge standing for retention election has drawn opposition, the judge may establish a committee to support his or her retention, and an attorney may contribute financially or through statements of support to that committee. See Rule 4.2, Utah Code of Judicial Conduct (“UCJC”); Rules 8.2 & 8.4, Utah Code of Professional Conduct (“URPC”). In accordance with an attorney’s constitutional right to free speech, an attorney may also make public statements against the retention of a judge and make contributions to a campaign committee or entity advocating against the retention of a judge. However, whether supporting or opposing retention, an attorney may not personally or through the acts of another make a statement that the attorney “knows to be false or with reckless disregard as to truth or falsity concerning the qualifications or integrity of a judge.” URPC Rule 8.2. Nor may an attorney “engage in conduct that is prejudicial to the administration of justice” or “knowingly assist a judge…in conduct that is a violation of applicable rules of judicial conduct or other law.” URPC Rule 8.4(d) & (f).
A. Utah Judge Retention Elections
Utah Code Section 20A-12-201 codifies the Utah judicial appointment and retention election process. The Utah governor appoints a committee of lawyers and non-lawyers for each Utah judicial district, including the Utah appellate courts. These committees are called judicial nominating commissions (justice.utah.gov). Commission members review the applications for vacant judicial positions and select candidates to interview. After interviews have been conducted, the commission refers five names (for each district and juvenile court judge) or seven names (for appellate court judges) to the governor. The governor then appoints one of the nominated judicial candidates as a Utah judge, who the Utah State Senate must thereafter confirm by majority vote.
Pursuant to Article VII, Section 9 of the Utah Constitution, Utah judges must stand for retention election at the end of each term of office, which term expires after eight years of service. Section 20A-12-201(1)(a) provides: “Each judicial appointee to a cour is subject to an unopposed retention election at the first general election held more than three years after the judge or justice was appointed.” Utah law further provides: At the general election, the ballots shall contain, as to each justice or judge of any court to be voted on in the county, the following question:
Shall _________________________________ (name of justice or judge) be retained in the office of ______________________________ ? (name of office, such as ”Justice of the Supreme Court of
Utah”; “Judge of the Court of Appeals of Utah”; ”Judge of the District Court of the Third Judicial District”; “Judge of the Juvenile Court of the Fourth Juvenile Court District”; “Justice Court Judge of (name of county) County or (name of municipality)”)
Yes ( )
No ( )
Utah Code Ann. § 20A-12-201(4)(a).
B. Requested EOAC Opinion Issues
This requested EOAC opinion, deciding whether a Utah attorney may “contribute to an entity that engages in advocacy concerning the retention of a Utah judge,” raises multiple related, yet distinguishable, issues depending upon what accurately describes a “contribution” to entity advocacy. Hypothetically, for example, an attorney’s “contribution to an entity” could conceivably be the attorney’s financial contribution to an entity, such as a nonprofit foundation, which advocates in favor of or against political issues, including advocacy for Utah citizen confirmation or defeat of a Utah judge in a retention election. An attorney’s “contribution to an entity” could also conceivably be the attorney’s direct comment, either positive or negative, intended for a publication that impacts Utah citizens voting in a judge’s retention election. The attorney submits his or her comments to an entity, which then publishes and/or makes such comments publically available. These hypothetical examples raise different applicable analyses that this EOAC opinion discusses and decides based upon the Utah Rules of Professional Conduct.
Opinion Number 17-02
Issued April 24, 2017
Is a lawyer required to report to the Bar a fellow lawyer who orally articulates an anticipated violation of the Rules of Professional Conduct?
Under the circumstances of the requested opinion, there is no duty to report.
Lawyer A overhears Lawyer B telling third persons that he was contemplating forming a business relationship with his non-attorney employee. Lawyer A requests an opinion as to her duty to report the conversation to the appropriate disciplinary authority.
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