2005 UT 44
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Paul C. Burke,
No. 20040500
Petitioner,
v.
Honorable Leslie Lewis,
Respondent.
___________________________
The Doctors' Company,
G. Gregory Drezga, M.D.,
Heidi Judd, personally as the
natural parent and guardian of
Athan Montgomery for and on
F I L E D
behalf of Athan Montgomery,
Real Parties In Interest.
July 12, 2005
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Original Proceeding in this Court
Attorneys: Paul C. Burke, Salt Lake City, for petitioner and
real-party-in-interest G. Gregory Drezga, M.D.
Brent M. Johnson, Salt Lake City, for respondent
Jaryl L. Rencher, Vaun B. Hall, Salt Lake City, for
real-party-in-interest The Doctors' Company
James W. McConkie, Bradley H. Parker, Jonathon T.
Tichy, Salt Lake City, for real-party-in-interest
Heidi Judd
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DURRANT, Justice:
¶1
In addressing this petition for extraordinary relief,
we must determine whether a district court may, without express
authorization by statute or rule, appropriately appoint counsel
for an absent, nonindigent civil litigant. We conclude that, in
this case, the district court operated within the bounds of its
discretion when it ordered such an appointment. This conclusion
is based upon our determination that a court's inherent power to
appoint counsel is not limited to situations involving indigency

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and our decision that, despite ethical concerns raised by the
litigant's absence, the appointed attorney's good-faith
compliance with the appointment order will not constitute a
violation of the rules of professional conduct.
BACKGROUND
¶2
Athan Montgomery suffered serious injuries at the time
of his birth, including paralysis and brain damage, as the result
of a botched forceps delivery performed by Dr. Gregory Drezga.
Heidi Judd, as the parent and guardian of Montgomery,
subsequently filed a medical malpractice suit against Drezga on
Montgomery's behalf, ultimately obtaining a jury award of nearly
$2.3 million.1
¶3
Although the exact timing of his departure is
uncertain, Drezga apparently disappeared from Utah soon after
Montgomery's birth, but before the malpractice suit was filed
against him. Despite Drezga's absence, The Doctors' Company
("TDC"), Drezga's malpractice insurer, hired counsel for Drezga
and prepared to mount a defense against Judd's malpractice claim.
¶4
However, before trial commenced in the malpractice
action, TDC filed a separate action against Drezga, seeking a
declaration that TDC had no duty to defend Drezga in the
malpractice suit because Drezga had failed to comply with his
contractual duty to cooperate in his own defense. TDC named Judd
as a codefendant in the declaratory action, but asserted no
separate claims against Judd.
¶5
After uncovering documentation indicating that Drezga
may have omitted material information in his application for
insurance, TDC amended its complaint in the declaratory action,
seeking retroactive invalidation of the insurance contract.
Although TDC received the district court's permission to serve
the initial complaint by publication, service of the amended
complaint was initially accepted by David Slagle, the attorney
representing Drezga in the malpractice action. However, Slagle
subsequently sent a letter to the district court, expressing his
belief that he could not properly accept service on behalf of
Drezga and purporting to withdraw his acceptance of service.
While concerns about the effectiveness of service lingered in the
background, TDC pursued its new legal theory, arguing in a

1 Upholding the constitutionality of a legislatively
enacted limitation on noneconomic damages recoverable in medical
malpractice cases, we subsequently reduced the jury award by $1
million. See Judd v. Drezga, 2004 UT 91, ¶¶ 3, 39, 103 P.3d 135.
No. 20040500
2

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summary judgment motion that the district court should declare
the insurance contract invalid as a matter of law.
¶6
Judd, no doubt realizing that a retroactive
invalidation of Drezga's malpractice insurance policy would
effectively preclude the possibility of collecting any judgment
awarded in the malpractice action, successfully opposed TDC's
summary judgment motion. However, when TDC subsequently renewed
its earlier request for a default judgment against Drezga, citing
his failure to appear in the declaratory action, Judd filed a
motion asking the court to appoint counsel to represent Drezga's
interests in the case.
¶7
For over two years, Judd and TDC argued over the
propriety of appointing counsel for Drezga. TDC contended that
any attorney undertaking representation of Drezga would
necessarily violate the Utah Rules of Professional Conduct
because no lawyer-client relationship can be formed with an
absent, incommunicado, individual and the appointed attorney
would be unable to comply with communication obligations imposed
by those rules. According to TDC, the ethical problems inherent
in commencing representation of an absent client rendered
inappropriate any attempt to appoint counsel for Drezga. Judd
and TDC supplied the district court with opinions from four
individuals, all knowledgeable in matters of legal ethics, who
addressed the potential ethical quandaries an appointed attorney
would face in undertaking representation of Drezga. Two of those
individuals concluded that representation of Drezga would be
ethical, while two reached the opposite conclusion.
¶8
After allowing extensive briefing, and after
considering the countervailing arguments raised by TDC and Judd,
the district court appointed the current petitioner, Paul C.
Burke, to represent Drezga. Burke sought appellate review of the
appointment order, but his appeal was dismissed on procedural
grounds by the court of appeals. Citing his inability to gain
speedy review of the appointment order through normal appellate
channels, Burke filed the current Petition for Extraordinary
Relief pursuant to rule 65B of the Utah Rules of Civil Procedure,
requesting that we review the district court's order of
appointment.2 We have jurisdiction pursuant to Utah Code section
78-2-2(2) (2002).

2 Given the procedural posture of the current controversy,
Judge Leslie Lewis is properly designated the respondent to
Burke's petition. However, Judd and TDC, as real parties in
interest, have also participated in briefing and arguing the
merits of Burke's petition.
3
No. 20040500

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STANDARD OF REVIEW
¶9
Our rules of civil procedure provide that, "[w]here no
other plain, speedy and adequate remedy is available, a person
may petition the court for extraordinary relief." Utah R. Civ.
P. 65B(a). Extraordinary relief may be granted if, among other
grounds detailed in rule 65B, the petitioner can establish that a
lower court "exceeded its jurisdiction or abused its discretion."
Id. 65B(d)(2)(A).
¶10
In the present case, no party contends that the
district court acted beyond the bounds of its jurisdiction by
issuing the appointment order. Rather, the issue in this case,
properly framed, is whether the district court abused its
discretion by choosing to wield its appointment power under the
circumstances. See, e.g., Hatchlings v. State, 2003 UT 52, ¶ 20,
84 P.3d 1150 (appointment of counsel in civil postconviction
relief context is left to the discretion of the district court);
State v. Arguelles, 2003 UT 1, ¶ 83, 63 P.3d 731 (mentioning
courts' discretion to appoint amicus counsel); see also Hill v.
Smithkline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004)
(appointment of counsel for an indigent prisoner in a civil
action is a matter left to the discretion of the district court).
Consequently, we will review the district court's action only to
determine whether the court abused its discretion by appointing
Burke.
¶11
We note that the parties disagree as to whether an
abuse of discretion must be particularly egregious before
extraordinary relief becomes appropriate. Interpreting our prior
decisions addressing petitions for extraordinary relief, the Utah
Court of Appeals has held that "`abuse of discretion' for
[extraordinary writs] must be much more blatant than the garden
variety `abuse of discretion' featured in routine appellate
review." State v. Stirba, 972 P.2d 918, 922 (Utah Ct. App.
1998). TDC argues, however, that our case law is properly read
as creating two distinct abuse of discretion standards of review
variously applicable to petitions for extraordinary relief, a
garden variety standard and a gross and flagrant standard. Under
this approach, when utilizing the garden variety abuse of
discretion standard, we will find that discretion has been abused
if a district court takes any action beyond the sphere of its
discretion. In contrast, when utilizing a gross and flagrant
abuse of discretion standard, we will find that discretion has
been abused only if a district court greatly exceeds the limits
of its discretion. As a result, when utilizing the gross and
flagrant standard, some actions exceeding the bounds of
No. 20040500
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discretion will go uncorrected.
¶12
TDC argues that our prior decisions do not hold that a
gross and flagrant abuse of discretion standard should be used in
every situation involving a petition for extraordinary relief.
Rather, according to TDC, the gross and flagrant abuse of
discretion standard is applicable only in situations where the
legislature has abrogated the right to pursue normal appellate
review. It is unclear whether TDC's assertion is accurate.
Compare Kawamoto v. Fratto, 2000 UT 6, ¶ 7, 994 P.2d 187
(arguably utilizing a garden variety abuse of discretion standard
even though a statutory bar on appeals was present), with Renn v.
Utah State Bd. of Pardons, 904 P.2d 677, 683-84 (Utah 1995)
(utilizing a gross and flagrant abuse of discretion standard when
a statutory prohibition against appellate review was present).
See also Panos v. Third Judicial Dist. Court, 2004 UT 87, ¶ 7,
103 P.3d 695 (identifying concern about the appropriateness of
the review standard utilized in Kawamoto).
¶13
According to TDC, we applied the gross and flagrant
abuse standard in Renn not simply because extraordinary relief
was sought, but due to our concern that use of the garden variety
abuse of discretion standard in such situations would allow
parties to essentially circumvent statutory limitations on
appellate review. Therefore, TDC argues, when no statutory
abrogation of the right to seek appellate review exists, the
garden variety abuse of discretion standard should govern.
¶14
We acknowledge and appreciate the parties' arguments
relative to the appropriate standard of review. However, in this
case, we have no need to resolve the lingering uncertainty as to
the proper standard to apply in the extraordinary writ context
because we conclude that the district court acted within the
bounds of its discretion. Our determination that there was no
abuse of discretion makes inescapable the conclusion that the
district court did not grossly and flagrantly abuse its
discretion.
¶15
In undertaking our review, we grant no deference to the
district court's legal conclusions. Salt Lake Child & Family
Therapy Clinic, Inc. v. Frederick, 890 P.2d 1017, 1019 (Utah
1995); see also Stirba, 972 P.2d at 920 ("[We limit our review of
Judge Stirba's actions to deciding whether she has regularly
exercised her authority, . . . grant[ing] no deference to her
interpretation and application of [statutory law].").
Additionally, any factual findings serving as a predicate for the
district court's actions will be disturbed only if they are
clearly erroneous. See Utah R. Civ. P. 52(a). Having explained
5
No. 20040500

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the appropriate standard of review, we now turn to our analysis
of the issues raised in Burke's petition.
ANALYSIS
¶16
The issue in this case is whether a district court may,
without express authorization by statute or rule, appropriately
appoint counsel for an absent, nonindigent civil litigant.3
No party has referred us to any case in which the propriety of
such an appointment has been analyzed. We too have been unable
to locate any authority directly on point.4 Although such an
appointment is certainly novel, that reality does not necessarily

3 In addition to appointing Burke to represent Drezga, the
district court's order mandated that TDC pay all attorney fees
associated with Drezga's representation. TDC has twice sought
review of the attorney fees portion of the appointment order by
petitioning this court for extraordinary relief as well as for
permission to pursue an interlocutory appeal. We denied both of
TDC's requests without comment. In briefing the issues raised by
Burke's petition, TDC once again requests that we review whether
the attorney fees portion of the order was proper. However, the
petition filed by Burke did not seek review of the attorney fees
portion of the district court's order. In fact, in his petition,
Burke expressly contrasted the relief he was pursuing with that
sought by TDC in its earlier request to pursue an interlocutory
appeal, which asked this court to review the attorney fees
portion of the order. Additionally, at oral argument, Burke
stated that his petition, by design, focuses on ethical rather
than financial issues. Therefore, the appropriateness of
requiring TDC to assume the full burden of Drezga's attorney fees
is not properly before us, and we decline to address it. See
Osborne v. Adoption Ctr. of Choice, 2003 UT 15, ¶ 24, 70 P.3d 58
(declining to address arguments raised in a rule 65B petitioner's
brief that were not contained in the original petition).

4 We do note that rule 244 of the Texas Rules of Civil
Procedure requires courts to appoint counsel for a civil
defendant who has been served by publication and who has not
answered the complaint or otherwise entered an appearance within
the prescribed time. Tex. R. Civ. P. 244 see Isaac v. Westheimer
Colony Ass'n, 933 S.W.2d 588, 591 (Tex. App. 1996) ("The purpose
of the portion of rule 244 requiring the appointment of an
attorney ad litem is to provide a non-appearing defendant
effective representation."). However, the cases discussing
appointments made pursuant to that rule are of limited value
here, as in Utah, an appointment of this nature is not required
or even expressly authorized by rule.
No. 20040500
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dictate the outcome of the present controversy. See Flynn v.
Hubbard, 782 F.2d 1084, 1087 (1st Cir. 1986) (stating that the
lack of any case law addressing the propriety of a specific
action does not foreclose a determination that the action is
appropriate). There is, after all, a critical distinction
between undertaking an action in conflict with precedent and
undertaking an unprecedented action. That said, the absence of
case law addressing an appointment of this kind indicates that a
careful analysis of the scope and nature of the appointment power
is necessary to determine whether the district court abused its
discretion by exercising its appointment authority in the present
situation.
¶17
TDC argues that we should conclude that the district
court abused its discretion because (1) it is simply improper for
a court to appoint an attorney for a nonindigent civil litigant,
and (2) a court cannot order an attorney to represent a client
when that representation will necessarily result in a violation
of the Utah Rules of Professional Conduct. We address each of
these grounds in turn.
I. APPOINTMENT OF COUNSEL FOR A NONINDIGENT CIVIL LITIGANT

¶18
It appears from the record that the district court's
decision to appoint counsel rested on two distinct grounds: (1)
the district court's conclusion that our opinion in Chatterton v.
Walker, 938 P.2d 255 (Utah 1997), requires insurance companies to
provide or finance independent representation of their insureds
when an adverse litigation relationship exists between insurer
and insured, and (2) the inherent authority of courts to appoint
counsel to ensure that the interests of justice are adequately
served. We address each justification in turn.
A. The Applicability of Chatterton v. Walker
¶19
In issuing its appointment order, the district court
accepted, at least to some degree, Judd's contention below that
our decision in Chatterton requires TDC to provide or finance
independent counsel for Drezga in the declaratory action.
Chatterton involved a suit against an uninsured motorist filed by
an individual who sustained damages in an automobile accident.
Id. at 256. The uninsured motorist had apparently left the state
and was therefore served by publication. Id. at 256-57. The
plaintiff's insurance company sought leave to intervene in the
action, claiming that a judgment against the uninsured motorist
would render it liable to the plaintiff under the uninsured
motorist provision of the insurance contract. Id. After
intervention was granted, the insurance company answered the
7
No. 20040500

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plaintiff's complaint and asserted that the plaintiff, its own
insured, was partially liable for the accident due to
malfunctioning brake lights. Id. at 257. In other words, in
Chatterton, the insurance company took a position adverse to its
insured on the very subject upon which it had a contractual duty
to defend its insured, specifically, the insured's liability for
the accident. To remedy the conflict created by the insurance
company's intervention, we held that the insurance company could
be required to provide or finance independent representation of
the insured. Id. at 262. However, we went on to state that
"[t]he provision of counsel or reimbursement of expenses should
be directly related to litigation of the issue of the uninsured
motorist's negligence and the damages resulting from that
negligence and should not implicate collateral issues relating to
the insurer's intervention." Id.
¶20
TDC argues that our holding in Chatterton is limited to
those situations where an insurance company is adverse to its
insured as to an issue implicating the insurance company's
contractual duty to defend the insured, a situation unlike the
present case. We agree.
¶21
The present case presents a type of conflict entirely
different from that at issue in Chatterton. Unlike the situation
in Chatterton, TDC's efforts to declare the insurance contract
void do not necessarily implicate a contractual duty on the part
of TDC to defend Drezga in the declaratory action. In other
words, in the declaratory action, the insurer is not necessarily
playing the role of accuser and defender simultaneously. Rather,
the dispute is centered on whether insurance coverage even
exists. Consequently, we conclude that Chatterton is not
directly applicable to the present situation and neither
meaningfully supports nor undermines the appointment decision
made by the district court.
¶22
Judd, in her brief before this court, acknowledges as
much, referring to Chatterton as a "red herring" and relying
primarily on the district court's inherent appointment power in
advocating the propriety of Burke's appointment. Consistent with
Judd's current argument, the record reveals that the district
court did not rely solely on Chatterton when issuing the
appointment order. For example, when denying TDC's request that
the appointment order be reconsidered, the district court stated
that "[t]he Court is confident that fair play and the interest of
justice, as well as the legal reasons set forth in the Court's
prior opinions, dictate that counsel be appointed." (Emphasis
added.) Because we conclude that Chatterton has little, if any,
application to the present controversy, we now examine whether
No. 20040500
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the district court's order can be justified as an exercise of the
court's inherent appointment power.
B. The Inherent Appointment Power
¶23
Our case law has long acknowledged that courts possess
inherent powers to ensure the pursuit of a just process and
result. For example, in Peterson v. Evans, we stated that "it
has always been held, regardless of express statutory authority,
that courts of general jurisdiction have the inherent power to
make and enforce all necessary rules and orders calculated to
enforce the orderly conduct of their business and secure justice
between parties litigant." 188 P. 152, 153 (Utah 1920). That
language is in accord with the contemporaneous conclusion of the
United States Supreme Court in Ex parte Peterson, 253 U.S. 300,
312 (1920), that "[c]ourts have (at least in the absence of
legislation to the contrary) inherent power to provide themselves
with appropriate instruments required for the performance of
their duties." See also id. at 313 (stating that courts possess
the authority to seek aid in carrying out judicial duties and
that "[w]hether such aid shall be sought is ordinarily within the
discretion of the trial judge"); Anderson v. Dunn, 19 U.S. 204,
227 (1821) ("[All] Courts of justice are universally acknowledged
to be vested, by their very creation, with the power to impose
silence, respect, and decorum, in their presence, and submission
to their lawful mandates and . . . to preserve themselves and
their officers from the approach and insults of pollution.").
The principle represented by the above-quoted language has been
repeatedly reaffirmed by this court. See, e.g., Chen v. Stewart,
2004 UT 82, ¶ 39, 100 P.3d 1177 ("Defendants erroneously assume
that the sole source of the court's power is rule 53 of the Utah
Rules of Civil Procedure. However, . . . the trial court has
broad equitable power . . . ."); Griffith v. Griffith, 1999 UT
78, ¶ 13, 985 P.2d 255 ("`It is undoubtedly true that courts of
general and superior jurisdiction possess certain inherent powers
not derived from any statute. Among these are the power to . . .
direct and control its officers, including attorneys as such . .
. .'" (quoting In re Evans, 130 P. 217, 224-25 (Utah 1913))).
¶24
Although its analysis is centered on the federal
justice system, Bothwell v. Republic Tobacco Co., 912 F. Supp.
1221 (D. Neb. 1995), provides a helpful and thorough examination
of the inherent authority possessed by courts and the manner in
which that general authority relates specifically to the
appointment power. The Bothwell court commences its analysis by
outlining three separate categories of inherent judicial
authority: (1) powers necessary to maintain independence from
9
No. 20040500

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other branches of government, (2) powers necessary to exercise
all other vested powers, and (3) powers to ensure "`the pursuit
of a just result.'" Id. at 1226 (quoting Eash v. Riggins
Trucking Inc., 757 F.2d 557, 563 (3d Cir. 1985)).5 After
identifying the three general categories of inherent authority
possessed by courts, the Bothwell court concluded that, although
the power to appoint counsel falls most readily into the third
category, the appointment power actually furthers all of the
functions covered by the three identified categories. Id. at
1227. Having so concluded, the Bothwell court then made the
broad pronouncement that, while there may not be a constitutional
right to counsel in the context of a civil dispute, "counsel
nevertheless may be necessary in a particular civil proceeding to
ensure fairness and justice in the proceeding and to bring about
a fair and just outcome." Id. (citing Merritt v. Faulkner, 697
F.2d 761, 764 (7th Cir. 1983)); see also Travelers Indem. Co. v.
Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) ("[I]n some exceptional
cases, the public and private interests at stake are such that
the administration of justice may best be served by appointing a
lawyer to represent an indigent civil litigant."); Cache County
v. Lauritzen, 810 P.2d 494, 498 (Utah Ct. App. 1991) (recognizing
"the inherent authority of courts to appoint counsel when the
need arises").
¶25
TDC correctly points out that the majority of decisions
discussing the propriety of appointment of counsel in the civil
context expressly mention indigency as a primary factor
justifying such an appointment. In fact, even those cases that
do not expressly mention indigency when commenting on the scope
of the appointment power implicitly rely on indigency as a key
factor justifying the appointment of counsel. See id. (citing
Wash. County v. Day, 447 P.2d 189, 191 (Utah 1968) (discussing
the inherent appointment power and strongly implying that
indigency is a critical factor in appointment decisions)).
However, we are unaware of any authority that circumscribes the
appointment power such that it can only operate to remedy the
obvious inequities present when an indigent civil litigant seeks
access to the courts. Significantly, the language courts use
when discussing the inherent appointment authority is broadly
cast and typically unadorned with equivocations or limitations,
evincing a recognition that the existence of a broad, necessarily
amorphous power is essential to the effective pursuit of the

5 In undertaking its analysis of the appointment power, the
Bothwell court relied heavily on the Third Circuit's decision in
Eash, which held that a district court had inherent authority to
impose jury empaneling costs on an attorney as a form of
sanction. Eash, 757 F.2d at 568.
No. 20040500
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judicial obligation to provide justice. See, e.g., Bothwell, 912
F. Supp. at 1227 ("[C]ounsel . . . may be necessary in a
particular civil proceeding to ensure fairness and justice in the
proceeding and to bring about a fair and just outcome."); Gibson
v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003) (stating that the
Texas Supreme Court has "not addressed any limits to the courts'
discretionary authority to appoint counsel" other than holding
that appointment is acceptable when "exceptional circumstances
exist"); Lauritzen, 810 P.2d at 498 (counsel can be appointed
"when the need arises"); cf. Eash, 757 F.2d at 563 (stating that
inherent judicial powers derived from "necessity" are "necessary
only in the sense of being highly useful in the pursuit of a just
result"). We have been referred to no language, and we have
discovered none, that purports to identify or set limits to the
appointment authority implicated here; we are certainly unaware
of any language expressing the position that courts lack
appointment power until the possibility of indigency is raised.
See Eash, 757 F.2d at 561 (the concept of inherent judicial
powers "has been described as nebulous and its bounds as
`shadowy'").
¶26
Given the above discussion, we conclude that
appointment of counsel for a nonindigent civil litigant is not
excluded per se from the sphere of a district court's authority.
Even so, TDC and Burke still question whether the appointment of
counsel for an absent litigant is acceptable because, they argue,
appointed counsel will necessarily violate the Utah Rules of
Professional Conduct simply by complying with the appointment
order. We do not discount the gravity of such a question. It is
of paramount importance that judges wield their appointment power
wisely and judiciously and that judges avoid leading officers of
the court down a path that runs counter to ethical principles.
¶27
However, unlike TDC, we believe that Burke is able to
obey the district court's appointment order without running afoul
of the Utah Rules of Professional Conduct. For example, although
we recognize it is a remote possibility, Burke may be able to
locate Drezga and assume normal lawyer-client relations, which
would dissipate all of the concerns raised by both Burke and TDC.
Failing that outcome, we are nevertheless of the opinion that the
rules of professional conduct are flexible enough to allow Burke
to serve Drezga's interests in the most effective manner
permitted by the unusual circumstances of this case. The
reasoning behind this conclusion is outlined below.
II. COMPLIANCE WITH THE APPOINTMENT ORDER DOES NOT NECESSITATE A
VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT
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No. 20040500

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¶28
Perhaps the overarching concern prompting the present
petition is Burke's understandable unease with the potential
ethical ramifications implicit in representing an absent
individual. In this regard, Burke questions whether the district
court, driven by its "equitable instincts," may have
inadvertently compelled him to undertake a representation that is
incompatible with the Utah Rules of Professional Conduct.
Because "[t]his court . . . has a special interest in the
administration of the Rules of Professional Conduct," Spratley
v. State Farm Mut. Auto. Ins. Co., 2003 UT 39, ¶ 8, 78 P.3d 603,
we accept Burke's invitation to address the ethical implications
of his appointment.
¶29
Initially, we note that the Utah Rules of Professional
Conduct are "rules of reason . . . . [that] should be interpreted
with reference to the purpose of the legal representation and of
the law itself." Utah R. Prof'l Conduct Scope. Flexibility in
the application of the rules is necessary, as no set of rules or
guidelines can "exhaust the moral and ethical considerations that
should inform a lawyer." Id. As the rules correctly point out,
"no worthwhile human activity can be completely defined by legal
rules." Id. As a result, "[t]he Rules simply provide a
framework for the ethical practice of law." Id. The principle
that the rules of professional conduct should be applied in a
manner reasonable under the circumstances is of special
importance here, as there is no indication that the drafters of
the rules contemplated the ethical implications of representing
an absent client.
¶30
In fact, it is fair to say that the rules generally
operate on the assumption that clients will be able and willing
to actively participate in their representation. Building upon
that assumption, the Utah Rules of Professional Conduct contain
multiple provisions that impose an ethical duty on the part of
attorneys to consult and communicate with their clients. See,
e.g., Utah R. Prof'l Conduct 1.2 ("A lawyer shall abide by a
client's decisions concerning the objectives of representation
. . . and shall consult with the client as to the means by which
they are to be pursued."); id. 1.4 ("A lawyer shall keep a client
reasonably informed about the status of a matter[.] . . . A
lawyer shall explain a matter to the extent reasonably necessary
to enable the client to make informed decisions regarding the
representation.").
¶31
TDC argues that Burke cannot represent Drezga without
violating the rules that require lawyers to communicate with
their clients and, therefore, that any representation under the
circumstances is contrary to the rules of professional conduct.
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However, just because representation of Drezga will not neatly
accord with the general assumptions underlying the communication
requirements contained in the rules of professional conduct, it
does not necessarily follow that the rules prohibit the
representation entirely. Such an unyielding application of the
rules runs counter to the principle that the rules of
professional conduct are rules of reason to be applied to myriad
factual settings in a flexible fashion. See Restatement (Third)
of The Law Governing Lawyers § 20 cmt. c. (2000) ("[A] standard
of reasonableness under the circumstances determines the
appropriate measure of consultation."). In fact, the principle
that only reasonable communication under the circumstances is
required allowed TDC to ethically proceed in its defense of
Drezga in the underlying malpractice action. It seems clear that
the communication rules were not followed to the letter during
the course of the malpractice litigation, but no party has
contended that representing Drezga in the malpractice action was
unethical for that reason.
¶32
TDC argues, however, that there is more at stake in the
present situation than a mere inability to keep Drezga informed
about the status of his case. Specifically, TDC contends that
representation of Drezga is inappropriate because a lawyer-client
relationship has not been consensually formed between Burke and
Drezga. According to TDC, Drezga, by securing malpractice
insurance, consented to any representation necessitated by the
commencement of a malpractice suit. TDC argues that Drezga has
not supplied any comparable form of consent in the present
action, preventing the formation of a lawyer-client relationship
for the purposes of its suit against Drezga. The lack of that
relationship, according to TDC, is what truly distinguishes the
representation of Drezga in the malpractice action from the
representation of Drezga in the current declaratory action,
making the former ethical and the latter unethical.
¶33
TDC's concerns are undoubtedly legitimate. In fact,
the ethical anxiety caused by the lack of express consent to the
representation, coupled with the inability to communicate with an
absent litigant, prompted the Utah State Bar Ethics Advisory
Opinion Committee ("Ethics Advisory Committee") to recently issue
an advisory opinion6 concluding that initiating representation of

6 As this court is charged with the ultimate duty of
overseeing the conduct of attorneys practicing law in this state,
we are not bound by opinions issued by the Ethics Advisory
Committee. See Utah Const. art. VIII, § 4. Nevertheless, the
analyses contained in the committee's opinions provide a rich
(continued...)
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an absent client would be contrary to the Utah Rules of
Professional Conduct. See Utah State Bar Ethics Advisory Opinion
Committee, Op. 04-01A (Dec. 2, 2004) (replacing and superceding
Op. 04-01 (Mar. 29, 2004)).7 The advisory opinion addressed a
situation in which an employer asked its attorney to undertake
representation of its absent former employee in order to avoid
the entry of a default judgment against the employee that could
potentially be used in later proceedings against the employer.
Although the analysis conducted by the Ethics Advisory Committee
is thorough and illuminating, the fact scenario it addresses is
distinct from that in the current case, in which a court has
issued an order appointing counsel for the absent litigant. As
discussed below, the presence of a court order nullifies the
primary concern driving the Ethics Advisory Committee's analysis
in Opinion 04-01A, the absence of a lawyer-client relationship.

¶34
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"8 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

6 (...continued)
vein of material worthy of examination.

7 Initially, in a 10-3 opinion, the Ethics Advisory
Committee determined that limited representation of an absent
litigant could ethically be pursued. That opinion was superceded
by Opinion 04-01A, in which the Ethics Advisory Committee, though
acknowledging that the issue was a close call for several
members, unanimously reached the opposite conclusion.

8 The term "nonconsensual" is somewhat misleading, as the
relationship is deemed formed through a type of implied consent.
The term is used when, for example, a court appoints a lawyer to
represent an individual lacking the capacity to reject the
lawyer's services. See Restatement(Third) of The Law Governing
Lawyers § 14 cmt. g. (entitled "Nonconsensual relationship:
appointed counsel").
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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.").
¶35
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.9
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.
¶36
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.
¶37
Although we do not anticipate that Burke will offend
the rules of professional conduct while representing Drezga, we

9 The district court expressly acknowledged this
determination, stating that "the Court in its discretion presumes
that a defendant under similar circumstances to defendant Drezga
would expressly agree to be represented by the attorney that the
Court selects . . . ."
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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), the 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
¶38
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.
¶39
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
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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.
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¶40
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant's
opinion.
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