Complete Summary
The Utah State Bar Ethics Advisory Opinion Committee has stated that an attorney may extensively assist a pro se litigant in state court cases (e.g. by ghostwriting) without a formal appearance unless a specific court or ethical rule requires disclosure of such assistance. The Committee noted that disclosure is required for lawyer-mediators under Rule 2.4(c) of the Utah Rules of Professional Conduct (“RPCs”) and for attorneys who make limited court appearances under Rule 75 of the Utah Rules of Civil Procedure, but not more generally. In reaching its opinion, the Committee analyzed related ethical and procedural rules, ethics opinions from Utah and elsewhere, and judicial precedent from other jurisdictions.

The Committee first reasoned that if the drafters of the RPCs had intended general disclosure of pro se assistance, they would have mentioned this in the rules. A disclosure requirement could have naturally been included under Rules 8.4(c) (prohibiting dishonest conduct), 1.2(c) (permitting limited scope representation), 1.2(d) (prohibiting assisting a client in fraudulent conduct), or 6.5 (dealing in part with limited scope representation through pro se counseling programs). Along the same lines, Utah’s procedural rules, unlike those of certain other states (e.g. Colorado, Wyoming, Florida), do not address disclosure of attorneys who ghostwrite for pro se parties.

The Committee then addressed Utah Ethics Opinion 74 and ABA Informal Opinion 1414, both of which condemned, under the Code of Professional Responsibility, “extensive undisclosed participation” by an attorney in a pro se action because, to the extent that courts give pro se parties greater leniency, such assistance could result in an unfair advantage. In rebuttal, the Committee noted that Utah law generally requires pro se litigants to be held to the same standard as represented parties.

Lacking any Utah judicial precedent, the Committee discussed cases from other jurisdictions, including Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001), which held that ghostwriters must sign briefs written for pro se parties. The Committee did not follow Duran because Tenth Circuit holdings are not binding on Utah courts and because the underlying facts were unusual. Duran involved a New Mexico—rather than Utah—lawyer who had avoided disclosing his work because he feared that the pro se party’s claim was frivolous. The Committee reasoned that such misconduct could have been condemned under RPCs 3.1, 3.3 or 8.4. Consequently, a general condemnation of the attorney’s failure to disclose was unnecessary.

Finally, the Committee noted that when a lawyer provides limited services, any limits must be reasonable, the client must give informed consent, and the lawyer’s duties of diligence, communication, loyalty (except under RPC 6.5), and confidentiality within those limits must not be diminished.

Three Committee members dissented from the opinion. Among other things, the dissent was troubled by the fact that Utah lawyers could be subject to disclosure in federal court under Duran but not in state court under the main opinion.

Significance of Opinion
Given that the Committee did not unanimously agree on the issue and that some jurisdictions have taken different approaches, this opinion may be of little value outside of Utah.

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.

Register Now for the Eighth Annual Legal Malpractice & Risk Management Conference and receive a 10% Early Bird Discount before December 1, 2008

March 4-6, 2009
The Westin Chicago River North Hotel
320 North Dearborn
Chicago, Illinois

Attend the industry's premier annual event focused on current and important developments in the law and litigation of malpractice claims, legal malpractice insurance and risk management strategies. Each conference panel examines recent case law and significant developments throughout the last year. One and one-half days will be devoted to legal malpractice (March 4-5), and one and one-half days will be devoted to risk management (March 5-6). The conference will be held in Chicago at The Westin Chicago River North Hotel.

Earn up to 13.75 hours of CLE credit including up to 5.50 ethics credit!

Conference Topics
Legal Malpractice Sessions (March 4-5)
• Guess Where You Are Being Sued – Bankruptcy Court
• Developments Concerning the Litigation Attorney – Jurisdiction, Ethics Rules and Admission of Fault
• Expert Witnesses – Selecting the Expert and Structuring the Interview
• Insurance Law – Prior Knowledge and Additional Negligence Claims
• Statutory Causes of Action – Consumer Protection Statutes
• Developments in Disciplinary Defense
• Stump the Panel

Legal Malpractice/Risk Management Cross-Over Sessions (March 5)
• Patent Law – Jurisdiction and Loss Measurement
• The Insurance Marketplace and Considerations
• Reducing Loss – Self-Help, Mitigation and Protection

Risk Management Sessions (March 5-6)
• The General Counsel Forum
• Plaintiff’s Perspective — Red Flags and Criteria Used in Selecting Cases
• Risk Management and Electronic Advertising — Websites and E-mail
• Grab and Leave Cases — How to Protect the Firm When People Leave
• On Horizon — Subprime, MJP and Alternative Billing

Registration Fees
$1,300 for the Entire Conference — March 4-6
$925 for the Legal Malpractice Sessions Only — March 4-5
$925 for the Risk Management Sessions Only — March 5-6

Discounts (only one discount per person)
Returning registrants receive 5% off the conference price
Multiple registrants receive 15% off when another colleague from the same company registers (one full paid registrant required)
Early birds receive 10% until December 1, 2008

For more information, please visit www.LMRM.com or click here to Register Online Now! To speak with the Conference Planner, Katherine McCormack, please call 312-704-3329.