State v. Trotter, 2014 UT 17 (May 20, 2014)

The Utah Supreme Court’s Ethics and Discipline Committee’s private admonishment of an attorney for failing to obtain informed consent for third-party payment of legal fees under rule 1.8(f) of the Utah Rules of Professional Conduct was reversed as unsupported by substantial evidence. While the court acknowledged substantial evidence would support a finding that no written consent was obtained, it held that “informed consent” may be oral. Because the Office of Professional Conduct bore the burden of showing noncompliance, its failure to inquire as to whether oral consent was obtained warranted reversal.

The defendant, who had pled guilty to unlawful sexual contact with a minor, appealed the denial of his motion to set aside his guilty plea. He had argued that his plea was not knowing and voluntary or that he received ineffective assistance of counsel because neither the court nor his lawyer had informed him of the sex offender registration requirement associated with his plea. The Utah Supreme Court rejected the defendant’s argument that the United States Supreme Court’s opinion in Padilla v. Kentucky, 559 U.S. 356, 130 S. Ct. 1473 (2010), abolished the distinction between direct and collateral consequences in contexts outside of deportation. The court then held that the sex offender registration requirement is a collateral, not direct, consequence of the defendant’s plea. Therefore, neither the court nor the defendant’s lawyer was required to advise the defendant of the registration requirement.