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Burke v. Lewis7/12/2005
ion 04-01A, the absence of a lawyer-client relationship.
It is well established that the lawyer-client relationship is essentially one of agency and cannot be established without either the express or implied consent of the client. See Margulies by Margulies v. Upchurch, 696 P.2d 1195, 1200 (Utah 1985); Restatement (Third) of The Law Governing Lawyers § 14. Nevertheless, there are situations in which a "nonconsensual" lawyer-client relationship can be formed. See Restatement (Third) The Law Governing Lawyers § 14 cmt. g. According to the Restatement, a lawyer-client relationship arises when "a person manifests to a lawyer the person's intent that the lawyer provide legal services for the person" and the lawyer either manifests consent or fails to manifest lack of consent such "that the person reasonably relies on the lawyer to provide the services," or when "a tribunal with power to do so appoints the lawyer to provide the services." Id.; see also id. cmt. g. ("When a court appoints a lawyer to represent a person, that person's consent may ordinarily be assumed absent the person's rejection of the lawyer's services.").
As previously discussed, we conclude that the district court does possess the authority to appoint Burke to represent Drezga's interests in the declaratory action. The order of appointment itself serves as an official determination that Drezga's consent to the representation may be properly implied.
However, TDC argues emphatically that Drezga's consent cannot be implied, as no one knows whether Drezga would desire to defend himself against the declaratory judgment action or whether he would prefer to allow TDC to obtain a default judgment. However, the district court has expressed its concern that issuing a default judgment in this case may not be appropriate, as litigation has proceeded and TDC's motion for summary judgment has already been denied. If the possibility of a default judgment is removed and a trial on the merits of TDC's claim is unavoidable, it seems beyond contention that Drezga would desire a vigorous defense to be mounted on his behalf. In fact, even if the entry of a default judgment remains a possibility, an issue upon which we express no opinion, we cannot say that the district court unreasonably concluded that Drezga would desire to defend himself against TDC's claims. TDC argues that a default judgment may be more advantageous to Drezga than a loss on the merits because a loss on the merits could negatively affect Drezga's ability to gain a medical license in another state. However, as the district court noted, there is sound reason to believe that Drezga would desire his malpractice insurance policy to remain in place, especially given the significant liability he now faces.
Given the presence of a court order creating a nonconsensual lawyer-client relationship, we conclude that Burke can defend Drezga in the declaratory action without violating the Utah Rules of Professional Conduct. We recognize that additional ethical issues may need to be resolved as Burke commences his representation of Drezga, but we are confident that the district court can capably address and resolve those concerns as they arise.
Although we do not anticipate that Burke will offend the rules of professional conduct while representing Drezga, we do wish to provide Burke with the assurance that, so long as his actions as Drezga's advocate are undertaken in a good-faith effort to comply with the district court's order of appointment, he cannot be subjected to disciplinary action. The Ethics Advisory Committee has previously implied as much, but we now hold that this is the case. In Ethics Advisory Committee Opinion 107 (Feb. 15, 1992), th
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