Rule 14-910. Eligible claim.
(a) The loss must be caused by the dishonest conduct of the lawyer and
shall have arisen out of the course of a lawyer/client or fiduciary
relationship between the lawyer and the claimant and by reason of that
relationship.
(b) The claim for reimbursement shall be filed within one year after
the date of the final order of discipline.
(b)(1) In cases of the lawyer’s death, the claim for reimbursement
shall be filed within one year of the lawyer’s date of death.
(b)(2) In cases of the lawyer’s formal disability, the claim for
reimbursement shall be filed within one year of the date of the order of
disability.
(c) If the subject of the application for reimbursement from the Fund
is or arises out of loss occasioned by a loan or an investment transaction with
a lawyer, each loss will not be considered reimbursable from the Fund unless it
arose out of and in the course of the attorney/client relationship; and but for
the fact that the dishonest lawyer enjoyed an attorney/client relationship with
the claimant, such loss could not have occurred. In considering whether that
standard has been met the following factors will be considered:
(c)(1) the disparity in bargaining power between the lawyer and the
client in their respective educational backgrounds in business sophistication;
(c)(2) the extent to which the lawyer's status overcame the normal
prudence of the claimant;
(c)(3) the extent to which the lawyer, by virtue of the attorney/client
relationship with the claimant, became privy to information as to the client's
financial affairs. It is significant if the lawyer knew of the fact that the
client had available assets or was expecting to receive assets which were
ultimately wrongfully converted by the lawyer;
(c)(4) whether a clear majority of the service arose out of a
relationship requiring a license to practice law in Utah, as opposed to one
that did not. In making this evaluation, consideration will be given to:
(c)(4)(A) whether the transaction originated with the lawyer;
(c)(4)(B) the reputation of the lawyer as to scope and nature of
his/her practice and/or business involvement;
(c)(4)(C) the amount of the charge made for legal services, if any,
compared to that for a finder's fee, if any; and
(c)(4)(D) the number of prior transactions of either a similar or
different nature in which the client participated, either with the lawyer
involved or any other lawyer, person or business organization;
(c)(5) the extent to which the lawyer failed to make full disclosure to
the client in compliance with the Utah Rules of Professional Conduct, including
disclosure of the lawyer's financial condition and his/her intended use of the
funds.
(d) Exceptions. Except as provided by paragraph (e), the following
losses shall not be reimbursed:
(d)(1) loss incurred by spouses, children, parents, grandparents,
siblings, partners and associates of the lawyer;
(d)(2) losses covered by any bond, surety, agreement or insurance
contract to the extent covered thereby, including any loss to which any bonding
agent, surety or insurer is subrogated to the extent of that subrogated
interest;
(d)(3) losses of any financial institution which are recoverable under
a "Banker's Blanket Bond" or similar commonly available insurance or
surety contract;
(d)(4) any business entity controlled by the lawyer or any person or
entity described in paragraph (d)(1);
(d)(5) any governmental entity or agency;
(d)(6) any assigned claims, third party claims, claims of heirs or
estates of deceased claimants;
(d)(7) any claims where claimant has failed to exhaust all other
reasonably available services or recovery methods;
(d)(8) any investment losses, as distinguished from lawyer fees, which
might reasonably be characterized as:
(d)(8)(A) any pyramid or ponzie scheme;
(d)(8)(B) any investment in or loan to any offshore entity;
(d)(8)(C) any investment in or loan to an entity that claims that a
benefit to the investor would be the evasion, avoidance, reduction or other
sheltering of taxes that would be otherwise assessed on the investment; or
(d)(8)(D) any investment that promises such a high rate of return that
a reasonable and prudent person would suspect that the venture is of unusually
high risk.
(e) In cases of extreme hardship or special and unusual circumstances,
the Committee may, in its discretion, recognize a claim which would otherwise
be excluded under these rules.