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Rule 1.0. Terminology.

(a) "Belief"or "believes" denotes that the person involved actually supposed thefact in question to be true. A person's belief may be inferred fromcircumstances.

(b) "Confirmed inwriting," when used in reference to the informed consent of a person,denotes informed consent that is given in writing by the person or a writingthat a lawyer promptly transmits to the person confirming an oral informedconsent. See paragraph (f) for the definition of "informed consent."If it is not feasible to obtain or transmit the writing at the time the persongives informed consent, then the lawyer must obtain or transmit it within areasonable time thereafter.

(c) "Consult"or "consultation" denotes communication of information reasonablysufficient to permit the client to appreciate the significance of the matter inquestion.

(d) "Firm" or"law firm" denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or otherassociation authorized to practice law; or lawyers employed in a legal servicesorganization or the legal department of a corporation or other organization.

(e) "Fraud" or"fraudulent" denotes conduct that is fraudulent under the substantiveor procedural law of the applicable jurisdiction and has a purpose to deceive.

(f) "Informedconsent" denotes the agreement by a person to a proposed course of conductafter the lawyer has communicated adequate information and explanation aboutthe material risks of and reasonably available alternatives to the proposedcourse of conduct.

(g)"Knowingly," "known" or "knows" denotes actualknowledge of the fact in question. A person's knowledge may be inferred fromcircumstances.

(h) ?Legal Professional? includes alawyer and a licensed paralegal practitioner.

(i)?Licensed Paralegal Practitioner? denotes a person authorized by the UtahSupreme Court to provide legal representation under Rule 15-701 of the SupremeCourt Rules of Professional Practice.

(j) "Partner"denotes a member of a partnership, a shareholder in a law firm organized as aprofessional corporation, or a member of an association authorized to practicelaw.

(k) "Reasonable" or"reasonably" when used in relation to conduct by a lawyer denotes theconduct of a reasonably prudent and competent lawyer.

(l) "Reasonable belief" or"reasonably believes" when used in reference to a lawyer denotes thatthe lawyer believes the matter in question and that the circumstances are suchthat the belief is reasonable.

(m) "Reasonably shouldknow" when used in reference to a lawyer denotes that a lawyer ofreasonable prudence and competence would ascertain the matter in question.

(n) ?Reckless? or ?recklessly?denotes the conscious disregard of a duty that a lawyer is or reasonably shouldbe aware of, or a conscious indifference to the truth.

(o) "Screened" denotes theisolation of a lawyer from any participation in a matter through the timelyimposition of procedures within a firm that are reasonably adequate under thecircumstances to protect information that the isolated lawyer is obligated toprotect under these Rules or other law.

(p) "Substantial" whenused in reference to degree or extent denotes a material matter of clear andweighty importance.

(q) "Tribunal" denotes acourt, an arbitrator in a binding arbitration proceeding or a legislative body,administrative agency or other body acting in an adjudicative capacity. Alegislative body, administrative agency or other body acts in an adjudicativecapacity when a neutral official, after the presentation of evidence or legalargument by a party or parties, will render a binding legal judgment directlyaffecting a party's interests in a particular matter.

(r) "Writing" or"written" denotes a tangible or electronic record of a communicationor representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecordingand electronic communications. A "signed" writing includes anelectronic sound, symbol or process attached to or logically associated with awriting and executed or adopted by a person with the intent to sign thewriting.

Comment

Confirmed in Writing

[1] If it is notfeasible to obtain or transmit a written confirmation at the time the clientgives informed consent, then the lawyer must obtain or transmit it within a reasonabletime thereafter. If a lawyer has obtained a client's informed consent, thelawyer may act in reliance on that consent so long as it is confirmed inwriting within a reasonable time thereafter.

Firm

[2] Whether two or morelawyers constitute a firm within paragraph (d) can depend on the specificfacts. For example, two practitioners who share office space and occasionallyconsult or assist each other ordinarily would not be regarded as constituting afirm. However, if they present themselves to the public in a way that suggeststhat they are a firm or conduct themselves as a firm, they should be regardedas a firm for purposes of these Rules. The terms of any formal agreementbetween associated lawyers are relevant in determining whether they are a firm,as is the fact that they have mutual access to information concerning theclients they serve. Furthermore, it is relevant in doubtful cases to considerthe underlying purpose of the rule that is involved. A group of lawyers couldbe regarded as a firm for purposes of the rule that the same lawyer should notrepresent opposing parties in litigation, while it might not be so regarded forpurposes of the rule that information acquired by one lawyer is attributed toanother.

[3] With respect to thelaw department of an organization, including the government, there isordinarily no question that the members of the department constitute a firmwithin the meaning of the Rules of Professional Conduct. There can beuncertainty, however, as to the identity of the client. For example, it may notbe clear whether the law department of a corporation represents a subsidiary oran affiliated corporation, as well as the corporation by which the members ofthe department are directly employed. A similar question can arise concerningan unincorporated association and its local affiliates.

[4] Similar questionscan also arise with respect to lawyers in legal aid and legal servicesorganizations. Depending upon the structure of the organization, the entireorganization or different components of it may constitute a firm or firms forpurposes of these Rules.

Fraud

[5] When used in theseRules, the terms "fraud" or "fraudulent" refer to conductthat is characterized as such under the substantive or procedural law of the applicablejurisdiction and has a purpose to deceive. This does not include merelynegligent misrepresentation or negligent failure to apprise another of relevantinformation. For purposes of these Rules, it is not necessary that anyone hassuffered damages or relied on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules ofProfessional Conduct require the lawyer to obtain the informed consent of aclient or other person (e.g., a former client or, under certain circumstances, aprospective client) before accepting or continuing representation or pursuing acourse of conduct. See, e.g, Rules 1.2(c), 1.6(a) and1.7(b). The communication necessary to obtain such consent will vary accordingto the rule involved and the circumstances giving rise to the need to obtaininformed consent. The lawyer must make reasonable efforts to ensure that theclient or other person possesses information reasonably adequate to make aninformed decision. Ordinarily, this will require communication that includes adisclosure of the facts and circumstances giving rise to the situation, anyexplanation reasonably necessary to inform the client or other person of thematerial advantages and disadvantages of the proposed course of conduct and adiscussion of the client's or other person's options and alternatives. In somecircumstances it may be appropriate for a lawyer to advise a client or otherperson to seek the advice of other counsel. A lawyer need not inform a clientor other person of facts or implications already known to the client or otherperson; nevertheless, a lawyer who does not personally inform the client orother person assumes the risk that the client or other person is inadequatelyinformed and the consent is invalid. In determining whether the information andexplanation provided are reasonably adequate, relevant factors include whetherthe client or other person is experienced in legal matters generally and inmaking decisions of the type involved, and whether the client or other person isindependently represented by other counsel in giving the consent. Normally,such persons need less information and explanation than others, and generally aclient or other person who is independently represented by other counsel ingiving the consent should be assumed to have given informed consent.

[7] Obtaining informedconsent will usually require an affirmative response by the client or otherperson. In general, a lawyer may not assume consent from a client's or otherperson's silence. Consent may be inferred, however, from the conduct of aclient 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 (r) 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 (r).

Screened

[8] This definitionapplies to situations where screening of a personally disqualified lawyer ispermitted to remove imputation of a conflict of interest under Rules 1.10,1.11, 1.12 or 1.18.

[9] The purpose ofscreening is to assure the affected parties that confidential information knownby the personally disqualified lawyer remains protected. The personallydisqualified lawyer should acknowledge the obligation not to communicate withany of the other lawyers in the firm with respect to the matter. Similarly,other lawyers in the firm who are working on the matter should be informed thatthe screening is in place and that they may not communicate with the personallydisqualified lawyer with respect to the matter. Additional screening measuresthat are appropriate for the particular matter will depend on thecircumstances. To implement, reinforce and remind all affected lawyers of thepresence of the screening, it may be appropriate for the firm to undertake suchprocedures as a written undertaking by the screened lawyer to avoid anycommunication with other firm personnel and any contact with any firm files orother information, including information in electronic form, relating to thematter, written notice and instructions to all other firm personnel forbiddingany communication with the screened lawyer relating to the matter, denial ofaccess by the screened lawyer to firm files or other information, includinginformation in electronic form, relating to the matter and periodic remindersof the screen to the screened lawyer and all other firm personnel.

[10] In order to beeffective, screening measures must be implemented as soon as practical after alawyer or law firm knows or reasonably should know that there is a need forscreening.

[10a] The definitions of?consult? and ?consultation,? while deleted from the ABA Model Rule 1.0, havebeen retained in the Utah Rule because ?consult? and ?consultation? are used inthe rules. See, e.g., Rules 1.2, 1.4, 1.14, and 1.18.  

 

 

Effective May 1, 2019