If a Utah lawyer is hired by another law firm to consult on a narrow area of law using only hypotheticals, does the lawyer take on a client-lawyer relationship or a duty of confidentiality?
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This page answers the general question as of 2018. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 18-02 addresses what duties a Utah attorney takes on when she is retained by a law firm to act as a consulting lawyer on a specific subject-matter area. The scenario assumes the consulted lawyer will have no direct contact with the consulting firm's client, and that the consultation will be hypothetical in nature.
The Committee concludes that in this scenario the consulted lawyer does not have a client-lawyer relationship by virtue of the consultation alone. It frames lawyer-to-lawyer consultation as encouraged: Rule 1.1 requires competent representation, and consultation lets the client receive expertise in a specific area as that skill-set is needed. The Committee draws on ABA Formal Opinion 98-411 ("Ethical Issues in Lawyer-to-Lawyer Consultation," 1998), which in turn referenced ABA Formal Opinion 88-356 ("Temporary Lawyers").
The Committee then addresses confidentiality. Under Rule 1.6, comment [4], paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client, and that prohibition extends to disclosures that do not themselves reveal protected information but could reasonably lead a third person to discover it. Using a hypothetical to discuss the representation is permissible so long as there is no reasonable likelihood that the listener can ascertain the identity of the client or the situation involved; if the client or situation can be ascertained, other duties apply. The Committee notes that additional duties may apply to the consulting firm that the opinion does not address. It concludes that, although no client-lawyer relationship arises with the consulting firm's client, the consulted lawyer is obligated to protect information she has agreed explicitly or implicitly to keep confidential under Rule 1.6(a).
In practice
Under this opinion, a Utah lawyer who consults for another firm on a hypothetical basis, with no direct contact with that firm's client, does not by the consultation alone enter a client-lawyer relationship with the firm's client. Per the opinion, the analysis turns on whether the hypothetical is framed so that the listener cannot reasonably ascertain the client's identity or situation; if it can be ascertained, the opinion states other duties apply. The opinion holds that the consulted lawyer may still owe a duty of confidentiality under Rule 1.6 over information she agreed, explicitly or implicitly, to keep confidential. The opinion was issued in 2018; confirm the current text of Utah Rules 1.1 and 1.6 before relying on the rule numbering here.
Common questions
Q: Does consulting another lawyer create a client-lawyer relationship with that lawyer's client?
A: No, not from the consultation alone, under this opinion. The Committee concludes that in the scenario presented, where the consulted lawyer has no direct contact with the firm's client and the consultation is hypothetical, no client-lawyer relationship arises between the consulting lawyer's client and the consulted lawyer (citing ABA Formal Opinion 98-411).
Q: Can a lawyer discuss a pending matter with an outside lawyer without breaching confidentiality?
A: The opinion permits using a hypothetical to discuss issues relating to the representation, so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. If the client or situation can be ascertained, the opinion states that other duties apply.
Q: Does the consulted lawyer owe any confidentiality duty if there is no client relationship?
A: Yes. The opinion concludes the consulted lawyer is obligated to protect information she receives that she has agreed explicitly or implicitly to keep confidential, citing Rule 1.6(a), which bars revealing information relating to the representation of a client absent informed consent or another exception.
Background and rules framework
The opinion interprets Utah Rule of Professional Conduct 1.1 (competence) and Rule 1.6 (confidentiality of information), which correspond to ABA Model Rules 1.1 and 1.6. Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by paragraph (b). The Committee relies on Comment [4] to Rule 1.6 for the principle that the prohibition reaches disclosures that could reasonably lead a third person to discover protected information, and on ABA Formal Opinions 98-411 and 88-356 for guidance on lawyer-to-lawyer consultation.
Citations and references
Rules of Professional Conduct:
- MR 1.1 / Utah RPC 1.1 (competence)
- MR 1.6 / Utah RPC 1.6(a), cmt. [4] (confidentiality of information)
Other opinions cited:
- ABA Formal Opinion 98-411 (1998), "Ethical Issues in Lawyer-to-Lawyer Consultation"
- ABA Formal Opinion 88-356, "Temporary Lawyers"
See also
- ABA Formal Op. 98-411: Lawyer-to-Lawyer Consultation
- ABA Formal Op. 507: Office-Sharing Arrangements
- Utah Ethics Op. 18-03: Conflict When a Firm Member Testified as an Expert
Source
- Landing page: https://www.utahbar.org/ethics-opinions/18-02/
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Issue. What are the Utah attorney's duties under the Utah Rules of Professional Conduct when the attorney is retained by a law firm to act as a consulting lawyer on a specific subject matter area? It is anticipated that the consulted lawyer will not have any direct contact with the consulting firm's client, and that the consultation will be hypothetical in nature.
OPINION
- In the scenario presented, the consulted lawyer does not have a client-lawyer relationship by the virtue of the consultation alone. However, the consulted lawyer may acquire a duty of confidentiality regarding the information received.
BACKGROUND
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The Ethics Advisory Opinion Committee has been asked to opine as to a Utah attorney's obligations under the Utah Rules of Professional Conduct while consulting for another lawyer.
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In 1998, the American Bar Association's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 98-411, "Ethical Issues in Lawyer-to-Lawyer Consultation," which provides practical guidance. This opinion referenced the American Bar Association's Standing Committee on Ethics and Professional Responsibility's 1988 Formal Opinion 88-356 "Temporary Lawyers," which also provides guidance.
ANALYSIS
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All attorneys admitted to the Utah State Bar are required to comply with the Utah Rules of Professional Conduct. These Rules include Rule 1.1, which states that "a lawyer shall provide competent representation to a client," meaning the "legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation." Utah R. Prof. Cond. 1.1. In this way, lawyer-to lawyer consultation is encouraged as the client receives expertise in a specific area of law as that skill-set becomes needed.
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Rule 1.6, comment [4] Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person. A lawyer's use of a hypothetical to discuss issues relating to the representation is permissible so long as there is no reasonable likelihood that the listener will be able to ascertain the identity of the client or the situation involved. In the event that the identity of the client or the situation involved can be ascertained, then other duties will apply. In addition, there are duties which would apply to the consulting law firm which are not addressed herein.
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In the scenario presented, no client-lawyer relationship between the consulting lawyer's client and the consulted lawyer arises as a result of the consultation. (ABA Formal Opinion 98-411.) Both the consulting and the consulted lawyers are obligated to protect the information that she receives that she has agreed explicitly or implicitly to keep confidential under Rule 1.6(a), which requires that:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
CONCLUSION
- Consultations are advisable and valuable to both practitioners and clients, however, careful consideration and caution is required. Although the consultation does not create a lawyer-client relationship between the consulting firm's client and the consulted lawyer and the scenario presented contemplates advice requested in the form of a hypothetical, the consulted lawyer is obligated to protect the information that she receives that she has agreed explicitly or implicitly to keep confidential.
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