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Rule 504. Lawyer - Client.

 

(a)  Definitions.

 

(1)   "Client"means a person, public officer, corporation, association, or other organizationor entity, either public or private, who is rendered professional legal servicesby a lawyer or who consults a lawyer with a view to obtaining professionallegal services.

 

(2)   "Lawyer"means a person authorized, or reasonably believed by the client to beauthorized, to practice law in any state or nation.

 

(3)   "Representativeof the lawyer" means a person or entity employed to assist the lawyer in arendition of professional legal services.

 

(4)   "Representativeof the client" means a person or entity having authority:

 

(A)   toobtain professional legal services;

 

(B)   toact on advice rendered pursuant to legal services on behalf of the client; or

 

(C)   personor entity specifically authorized to communicate with the lawyer concerning alegal matter.

 

(5)   "Communication"includes:

 

(A)   advicegiven by the lawyer in the course of representing the client; and

 

(B)   disclosuresof the client and the client's representatives to the lawyer or the lawyer'srepresentatives incidental to the professional relationship.

 

(6)   "Confidentialcommunication" means a communication not intended to be disclosed to thirdpersons other than those to whom disclosure is in furtherance of rendition ofprofessional legal services to the client or those reasonably necessary for thetransmission of the communication.

 

(b)   Statementof the Privilege. Aclient has a privilege to refuse to disclose, and to prevent any other personfrom disclosing, confidential communications:

 

(1)   madefor the purpose of facilitating the rendition of professional legal services tothe client; and

 

(2)   thecommunications were between:

 

(A)   theclient and the client's representatives, lawyers, lawyer's representatives, andlawyers representing others in matters of common interest; or

 

(B)   amongthe client's representatives, lawyers, lawyer's representatives, and lawyersrepresenting others in matters of common interest.

 

(c)   WhoMay Claim the Privilege.The privilege may be claimed by:

 

(1)   theclient;

 

(2)   theclient's guardian or conservator;

 

(3)   thepersonal representative of a client who is deceased;

 

(4)   thesuccessor, trustee, or similar representative of a client that was acorporation, association, or other organization, whether or not in existence;and

 

(5)   thelawyer on behalf of the client.

 

(d)   Exceptionsto the Privilege.Privilege does not apply in the following circumstances:

 

(1)   Furtheranceof the Crime or Fraud. If the services of the lawyer were sought or obtained toenable or aid anyone to commit or plan to commit what the client knew orreasonably should have known to be a crime or fraud;

 

(2)   Claimantsthrough Same Deceased Client. As to a communication relevant to an issuebetween parties who claim through the same deceased client, regardless ofwhether the claims are by testate or intestate succession or by inter vivos transaction;

 

(3)   Breachof Duty by Lawyer or Client. As to a communication relevant to an issue ofbreach of duty by the lawyer to the client;

 

(4)   DocumentAttested by Lawyer. As to a communication relevant to an issue concerning adocument to which the lawyer was an attesting witness; or

 

(5)   JointClients. As to the communication relevant to a matter of common interestbetween two or more clients if the communication was made by any of them to alawyer retained or consulted in common, when offered in an action between anyof the clients.

 

 

2011Advisory Committee Note. The language of this rule has been amended as part of the restyling of theEvidence Rules to make them more easily understood and to make style andterminology consistent throughout the rules. These changes are intended to bestylistic only. There is no intent to change any result in any ruling onevidence admissibility.

 

ADVISORYCOMMITTEE NOTE

 

Rule 504 isbased upon proposed Rule 503 of the United States Supreme Court. Rule 504 wouldreplace and supersede Utah Code Ann. 78-24-8(2) and is intended to beconsistent with the ethical obligations of confidentiality set forth in Rule1.6 of the Utah Rules of Professional Conduct.

 

The Committeerevised the proposed rule of the United States Supreme Court to address theissues raised in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677(1981), as to when communications involving representatives of a corporationare protected by the privilege. The Committee rejected limiting the privilegeto members of the "control group" and added as subparagraph (a)(4) adefinition for "representative of the client" that includes withinthe privilege disclosures not only of the client and the client's formalspokesperson, but also employees who are specifically authorized to communicateto the lawyer concerning a legal matter. The word "specifically" isintended to preclude a general authorization from the client for the client'semployees to communicate under the cloak of the privilege, but is intended toallow the client, as related to a specific matter, to authorize the client'semployees as "representatives" to disclose information to the lawyeras to that specific matter with confidence that the disclosures will remainwithin the lawyer-client privilege.

 

A"representative" of the lawyer need not be directly paid by thelawyer as long as the representative meets the requirement of being engaged toassist the lawyer in providing legal services. Thus, a person paid directly bythe client but working under the control and direction of the lawyer for thepurposes of providing legal services satisfies the requirements of subparagraph(a)(3). Similarly, a representative of the client who may be an independentcontractor, such as an independent accountant, consultant or person providingother services, is a representative of the client for purposes of subparagraph(a)(5) if such person has been engaged to provide services reasonably relatedto the subject matter of the legal services or whose service is necessary toprovide such service.

 

The client isentitled not only to refuse to disclose the confidential communication, butalso to prevent disclosure by the lawyer or others who were involved in theconference or learned, without the knowledge of the client, the content of theconfidential communication. Problems of waiver are dealt with by Rule 507.

 

Undersubparagraph (b) communications among the various people involved in the legalmatter, relating to the providing of legal services, are all privileged, exceptfor communications between clients. Those are privileged only if they are partof a conference with others involved in legal services.

 

Subparagraph(c) allows the "successor, trustee, or similar representative of acorporation, association, or other organization, whether or not inexistence" to claim the privilege. Where there is a dispute as to which ofseveral persons has claims to the rights of a previously existing entity, thecourt will be required to determine from the facts which entity's claim is mostconsistent with the purposes of this rule.

 

The Committeeconsidered and rejected an exception to the rule for communications infurtherance of a tort. Disallowing the privilege where the lawyer's servicesare sought in furtherance of a crime or fraud is consistent with the trend inother states. The Committee considered extending the exception to include"intentional torts," but concluded that because of the broad range ofconduct that may be found to be an intentional tort, such an exception wouldcreate undesirable ambiguities and uncertainties as to when the privilegeapplies.

 

The Committeefelt that exceptions to the privilege should be specifically enumerated, andfurther endorsed the concept that in the area of exceptions, the rule shouldsimply state that no privilege existed, rather than expressing the exception interms of a "waiver" of the privilege. The Committee wanted to avoidany possible clashes with the common law concepts of "waiver."