by Gary G. Sackett

Two Hypotheticals

As a preliminary exercise, consider medical patient P, who is currently under the care of physician D1. D1 has advised P that P should undergo spinal surgery to relieve major back pain. P decides that, before going under the knife, P would like a second opinion on the matter and consults privately with D2, who examines and diagnoses P and suggests a period of therapeutic treatment before making a final decision on surgery. Is D2 out of line for talking to D1’s patient? No, of course not. No one would question the prudence of P’s action, or the propriety of D2’s responding to P’s request for a second opinion before making such a life-affecting decision.

Now change patient P to client C, and D1 and D2 to lawyers L1 and L2, respectively. L1 has advised C to become a plaintiff in a major lawsuit that has the potential for exposure to a significant counterclaim against C. C is inclined to go forward, but wants to consult L2 privately to get a second opinion before proceeding with L1. No one would seriously suggest that L2 should be constrained from providing such additional advice as C might seek on such an important matter, independent of whether L1 was aware of the contact.

This brings us to two items that appear, maybe serendipitously – maybe not, in the January-February 2010 issue of the Utah Bar Journal: Meb Anderson’s article Ethical Conundrum? Try Asking the Ethics Advisory Opinion Committee and a report (“Disciplinary Note”) on page 47 about a lawyer who provided legal services to a “mature” minor whose best interests were already represented by a court-appointed guardian ad litem (GAL).

Irony in the Bar Journal

A thoughtful article by Mr. Anderson, a member of the Ethics Advisory Opinion Committee (the “Ethics Committee”),1 urges lawyers to seek ethical guidance from that committee when in doubt about an ethical issue. In the Attorney Discipline section of the same issue, a scant 16 pages further on, the Office of Professional Conduct (“OPC”), which authors the entries in this section,2 pointedly warns Utah lawyers that the opinions of the Ethics Committee cannot be relied upon and are “inconclusive”:

The Rules of Procedure for the Ethics Advisory Opinion Committee (“EAOC”) state: “A lawyer who acts in accordance with an ethics advisory opinion enjoys a rebuttable presumption of having abided by the Utah Rules of Professional Conduct.” The Utah Supreme Court has advised that it expects the OPC to take action whenever it believes a disciplinary rule has been violated and that the OPC cannot adequately perform that function if it is bound by the opinions issued by the EAOC. As was the case in this matter, the opinions are advisory, and the presumption that an attorney who follows an opinion has not violated a Rule is rebuttable and inconclusive.

Attorney Discipline, Utah Bar J., Jan.-Feb. 2010, at 47. The irony of these two items being published within a few pages of each other is conspicuous and palpable.

The warning in the Disciplinary Note that the Ethics Committee’s opinions are not binding on OPC is technically accurate as of 2007, but there are two major problems with it: (a) It sends a dreadful message to Utah attorneys – namely, if you have an ethical dilemma about which you prudently seek and obtain thoughtful, reasoned advice from the Ethics Committee, that and $3.00 may get you a latté at Starbucks and very little else. After reading these items in the Bar Journal, an anonymous member of the Ethics Committee noted that, “The lesson is, if we [the Committee] say you can’t do it, don’t do it; and if we say you can do it, don’t do it.” (b) The Disciplinary Note appears to have been unnecessary to conclude that a private admonition was appropriate disciplinary action in the case at hand and, accordingly, it was unnecessary to negate the salutary effects of Mr. Anderson’s otherwise timely article.

Factual Setting

The disciplinary action that led to this paradoxical situation arose when a “mature” minor became dissatisfied with having had no contact for two years from his court-appointed GAL and, accordingly, sought assistance from another, private attorney.3 The private attorney, being concerned about a possible violation of Rule 4.2,4 which prohibits certain direct contacts with parties known to be represented by counsel, prudently researched the issue and found Utah State Bar Advisory Opinion 07-02 that addressed, in part, a nearly identical situation. Utah State Bar Ethics Advisory Opinion Committee, Op. 07-02 (2007).

Click here to view article published in the May/June 2010 Utah Bar Journal.