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Burke v. Lewis7/12/2005
e Ethics Advisory Committee stated that it would be "unlikely that the Utah State Bar would pursue disciplinary action" against a lawyer who complies with an appointment order that may cause a violation of the rules of professional conduct. We feel that a more categorical statement is warranted, as we can comprehend no situation in which a lawyer should be subject to discipline for complying in good faith with an order of appointment. In situations where an appointment raises ethical concerns, a lawyer, through no action of his or her own, is thrust into circumstances in which conflicting duties demand seemingly incompatible actions. Having so placed a lawyer in the mire, it offends fundamental notions of fairness to think that the lawyer can be subject to punishment regardless of which duty he or she chooses to serve. Consequently, we hold that good-faith compliance with an appointment order provides lawyers with a safe harbor in which they can be free from exposure to disciplinary action.
CONCLUSION
In this case, the district court, after a careful analysis of the factors affecting its appointment decision, determined that appointment of counsel was the best means of effectuating a just process and a fair result and that Drezga's consent to such representation could be fairly implied. We are not persuaded that the district court's order requires Burke to violate the Utah Rules of Professional Conduct or that the district court otherwise abused its discretion in reaching its conclusion. However, given the multitude of factors that a district court must weigh before determining whether appointment of counsel is appropriate, our decision in this matter is, by necessity, inextricably linked to the particular facts presented by this case. Consequently, we do not hold that appointment of counsel is generally an acceptable practice whenever an innocent third party may be subject to adverse repercussions if a judgment is entered against an absent civil litigant.
Indeed, in this case there are unusual factors that are not likely to be readily reproduced in future controversies. For example, in the present case, the request for appointment was made by an actual party to the litigation and not by a third party whose connection to the underlying proceeding is tenuous or otherwise indirect. Additionally, the present case involves a considerable amount of confusion as to the effectiveness of service and the extent of the role played by David Slagle, the attorney retained by TDC to defend Drezga in the malpractice action. Finally, due to the manner in which this litigation has unfolded, there are doubts as to whether a default judgment can be entered in favor of TDC even if Drezga remains unrepresented and fails to appear in the action. This possibility may make a trial on the merits of TDC's claims unavoidable. Although the district court may have pursued other options to resolve the quandaries present in this case, we are unpersuaded that the court abused its discretion by following the course it did. Therefore, we decline to relieve appointed counsel from the burdens imposed by that order.
Chief Justice Durham, Associate Chief Justice Wilkins, Justice Parrish, and Justice Nehring concur in Justice Durrant's opinion.
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