Focus on Ethics & Civility

JurisdictionUtah,United States
CitationVol. 33 No. 4 Pg. 44
Pages44
Publication year2020
Focus on Ethics & Civility
Vol. 33 No. 4 Pg. 44
Utah Bar Journal
August, 2020

July, 2020

Titanic Changes to Rules of Professional Conduct Under Consideration

By Keith A. Call and Kendra M. Brown

Some topics deserve more than one article. This is one of those topics.

In March, Keith wrote about the potential for significant changes to the Utah Rules of Professional Conduct. See Call, Legal Industry Disruption May Be Here: A Primer on Regulatory Reform in Utah, 33 Utah b. J. 47 (Mar./Apr. 2020). We are now one step closer to those changes. On April 24, 2020, the Utah Supreme Court formally posted for comment several proposed changes to Rules 1.5, 5.4, and 7.1 through 7.5. You can see the specific rule changes at http://www.utcourts.gov/utc/rules-comment/ (last visited May 22, 2020). Here is a brief summary.

Proposed Change to Rule 1.5

The court proposes to eliminate Rule 1.5(e) relating to the division of fees. Rule 1.5(e) currently provides:

A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

This proposed rule change would eliminate restrictions on fee sharing among lawyers of different firms. Referral fees and other forms of fee sharing would apparently be permitted, even if the lawyer receiving the fee does not actively participate in the representation.

Proposed Changes to Rule 5.4

Rule 5.4 addresses professional independence of a lawyer. Among other things, Rule 5.4 currently prohibits fee sharing with non-lawyers (with very narrow exceptions) and prohibits partnerships with non-lawyers if the partnership activities will include practicing law. These specific prohibitions are designed to preserve the lawyer’s professional independence from outside forces, including economic incentives. In other words, fee sharing and partnering are prohibited in order to preserve professional independence.

Under the proposal, Rule 5.4 will be substantially re-written and divided into two parts, Rule 5.4A and Rule 5.4B. The proposed rules would eliminate the blanket prohibitions on fee sharing and non-lawyer partnering. Instead, the new rule would allow fee sharing and partnering with...

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