Rule 1.0. Terminology.
(a)"Belief" or "believes" denotes that the person involvedactually supposed the fact in question to be true. A person's belief may beinferred from circumstances.
(b)"Confirmed in writing," when used in reference to the informed consentof a person, denotes informed consent that is given in writing by the person ora writing that a lawyer promptly transmits to the person confirming an oralinformed consent. See paragraph (f) for the definition of "informedconsent." If it is not feasible to obtain or transmit the writing at thetime the person gives informed consent, then the lawyer must obtain or transmitit within a reasonable time thereafter.
(c)"Consult" or "consultation" denotes communication ofinformation reasonably sufficient to permit the client to appreciate thesignificance of the matter in question.
(d)"Firm" or "law firm" denotes a lawyer or lawyers in a lawpartnership, professional corporation, soleproprietorship or other association authorized to practice law; or lawyersemployed in a legal services organization or the legal department of acorporation or other organization.
(e)"Fraud" or "fraudulent" denotes conduct that is fraudulentunder the substantive or procedural law of the applicable jurisdiction and has apurpose to deceive.
(f)"Informed consent" denotes the agreement by a person to a proposedcourse of conduct after the lawyer has communicated adequate information andexplanation about the material risks of and reasonably available alternativesto the proposed course of conduct.
(g)"Knowingly," "known" or "knows" denotes actualknowledge of the fact in question. A person's knowledge may be inferred fromcircumstances.
(h)"Partner" denotes a member of a partnership, a shareholder in a lawfirm organized as a professional corporation, or a member of an associationauthorized to practice law.
(i) "Reasonable" or "reasonably" whenused in relation to conduct by a lawyer denotes the conduct of a reasonablyprudent and competent lawyer.
(j)"Reasonable belief" or "reasonably believes" when used inreference to a lawyer denotes that the lawyer believes the matter in questionand that the circumstances are such that the belief is reasonable.
(k)"Reasonably should know" when used in reference to a lawyer denotesthat a lawyer of reasonable prudence and competence would ascertain the matterin question.
(l)?Reckless? or ?recklessly? denotes the conscious disregard of a duty that alawyer is or reasonably should be aware of, or a conscious indifference to thetruth.
(m)"Screened" denotes the isolation of a lawyer from any participationin a matter through the timely imposition of procedures within a firm that arereasonably adequate under the circumstances to protect information that theisolated lawyer is obligated to protect under these Rules or other law.
(n)"Substantial" when used in reference to degree or extent denotes amaterial matter of clear and weighty importance.
(o)"Tribunal" denotes a court, an arbitrator in a binding arbitrationproceeding or a legislative body, administrative agency or other body acting inan adjudicative capacity. A legislative body, administrative agency or otherbody acts in an adjudicative capacity when a neutral official, after thepresentation of evidence or legal argument by a party or parties, will render abinding legal judgment directly affecting a party's interests in a particularmatter.
(p)"Writing" or "written" denotes a tangible or electronicrecord of a communication or representation, including handwriting, typewriting,printing, photostating, photography, audio or videorecording and electronic communications. A"signed" writing includes an electronic sound, symbol or processattached to or logically associated with a writing and executed or adopted by aperson with the intent to sign the writing.
If it is not feasible to obtain or transmit a written confirmation at the timethe client gives informed consent, then the lawyer must obtain or transmit itwithin a reasonable time thereafter. If a lawyer has obtained a client'sinformed consent, the lawyer may act in reliance on that consent so long as itis confirmed in writing within a reasonable time thereafter.
Whether two or more lawyers constitute a firm within paragraph (d) can dependon the specific facts. For example, two practitioners who share office spaceand occasionally consult or assist each other ordinarily would not be regardedas constituting a firm. However, if they present themselves to the public in away that suggests that they are a firm or conduct themselves as a firm, theyshould be regarded as a firm for purposes of these Rules. The terms of anyformal agreement between associated lawyers are relevant in determining whetherthey are a firm, as is the fact that they have mutual access to informationconcerning the clients they serve. Furthermore, it is relevant in doubtfulcases to consider the underlying purpose of the rule that is involved. A groupof lawyers could be regarded as a firm for purposes of the rule that the samelawyer should not represent opposing parties in litigation, while it might notbe so regarded for purposes of the rule that information acquired by one lawyeris attributed to another.
With respect to the law department of an organization, including thegovernment, there is ordinarily no question that the members of the departmentconstitute a firm within the meaning of the Rules of Professional Conduct.There can be uncertainty, however, as to the identity of the client. Forexample, it may not be clear whether the law department of a corporationrepresents a subsidiary or an affiliated corporation, as well as thecorporation by which the members of the department are directly employed. Asimilar question can arise concerning an unincorporated association and itslocal affiliates.
Similar questions can also arise with respect to lawyers in legal aid and legalservices organizations. Depending upon the structure of the organization, theentire organization or different components of it may constitute a firm orfirms for purposes of these Rules.
When used in these Rules, the terms "fraud" or "fraudulent"refer to conduct that is characterized as such under the substantive orprocedural law of the applicable jurisdiction and has a purpose to deceive.This does not include merely negligent misrepresentation or negligent failureto apprise another of relevant information. For purposes of these Rules, it isnot necessary that anyone has suffered damages or relied on the misrepresentationor failure to inform.
Many of the Rules of Professional Conduct require the lawyer to obtain theinformed consent of a client or other person (e.g., a former client or, undercertain circumstances, a prospective client) before accepting or continuingrepresentation or pursuing a course of conduct. See, e.g,Rules 1.2(c), 1.6(a) and 1.7(b). The communication necessary to obtain suchconsent will vary according to the rule involved and the circumstances givingrise to the need to obtain informed consent. The lawyer must make reasonableefforts to ensure that the client or other person possesses informationreasonably adequate to make an informed decision. Ordinarily, this will requirecommunication that includes a disclosure of the facts and circumstances givingrise to the situation, any explanation reasonably necessary to inform theclient or other person of the material advantages and disadvantages of theproposed course of conduct and a discussion of the client's or other person'soptions and alternatives. In some circumstances it may be appropriate for alawyer to advise a client or other person to seek the advice of other counsel.A lawyer need not inform a client or other person of facts or implicationsalready known to the client or other person; nevertheless, a lawyer who doesnot personally inform the client or other person assumes the risk that theclient or other person is inadequately informed and the consent is invalid. Indetermining whether the information and explanation provided are reasonablyadequate, relevant factors include whether the client or other person isexperienced in legal matters generally and in making decisions of the typeinvolved, and whether the client or other person is independently represented byother counsel in giving the consent. Normally, such persons need lessinformation and explanation than others, and generally a client or other personwho is independently represented by other counsel in giving the consent shouldbe assumed to have given informed consent.
Obtaining informed consent will usually require an affirmative response by theclient or other person. In general, a lawyer may not assume consent from aclient's or other person's silence. Consent may be inferred, however, from the conductof a client or other person who has reasonably adequate information about thematter. A number of rules require that a person's consent be confirmed inwriting. See Rules 1.7(b) and 1.9(a). For a definition of "writing"and "confirmed in writing," see paragraphs (o) and (b). Other rulesrequire that a client's consent be obtained in a writing signed by the client.See, e.g., Rules 1.8(a) and (g). For a definition of "signed," seeparagraph (o).
This definition applies to situations where screening of a personallydisqualified lawyer is permitted to remove imputation of a conflict of interestunder Rules 1.10, 1.11, 1.12 or 1.18.
The purpose of screening is to assure the affected parties that confidentialinformation known by the personally disqualified lawyer remains protected. Thepersonally disqualified lawyer should acknowledge the obligation not tocommunicate with any of the other lawyers in the firm with respect to thematter. Similarly, other lawyers in the firm who are working on the mattershould be informed that the screening is in place and that they may notcommunicate with the personally disqualified lawyer with respect to the matter.Additional screening measures that are appropriate for the particular matterwill depend on the circumstances. To implement, reinforce and remind allaffected lawyers of the presence of the screening, it may be appropriate forthe firm to undertake such procedures as a written undertaking by the screenedlawyer to avoid any communication with other firm personnel and any contactwith any firm files or other information, including information in electronicform, relating to the matter, written notice and instructions to all other firmpersonnel forbidding any communication with the screened lawyer relating to thematter, denial of access by the screened lawyer to firm files or otherinformation, including information in electronic form, relating to the matterand periodic reminders of the screen to the screened lawyer and all other firmpersonnel.
In order to be effective, screening measures must be implemented as soon aspractical after a lawyer or law firm knows or reasonably should know that thereis a need for screening.
[10a]The definitions of ?consult? and ?consultation,? while deleted from the ABAModel Rule 1.0, have been retained in the Utah Rule because ?consult? and?consultation? are used in the rules. See, e.g., Rules 1.2, 1.4, 1.14, and1.18.
EffectiveNovember 1, 2017