Thursday, September 2, 2021
Utah On Flat Fees And Safe Harbors
A significant opinion of the Utah Supreme Court confirmed and reversed in part the district court's denial of summary judgment to an attorney who had accepted flat fees treated as earned on receipt.
The court found the attorney had violated Rule 1.15(c) in two instances but that a third such arrangement was protected by a Safe Harbor provision in Utah's disciplinary rules.
The Safe Harbor against disciplinary prosecution is a provision that protects an attorney whose conduct complies with an in-force ethics advisory opinion.
The case - which does not seem amenable to cut-and-paste - extensively interprets prior Utah disciplinary and ethics opinions on the subject of flat/advanced fees and will be required reading for every lawyer practicing in the Beehive State.
To better understand [the attorney's] arguments. it helps to consider how the law surrounding flat fee agreements has developed. This requires us to examine two rules, two ethics opinions and one Utah Supreme Court case.
Ethics Opinion 136 addressed the circumstances under which a retainer could be earned on receipt.
The court decision in the Jardine case considered that opinion
But while one hand giveth, the other taketh away. Although we acknowledged that Opinion 136 could be read to support Jardine's argument, we rejected that reading.
The second ethics opinion came in the wake of the Jardine decision.
There are two concurring and dissenting opinions.
Chief Justice Durrant would apply the rule of lenity and give safe harbor here with notice to the Bar going forward.
Associate Chief Justice Lee would find the violation in all three instances. (Mike Frisch)