Draft: March 25, 2005

Court rules

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Preamble: A Lawyer's Responsibilities.

[1] A lawyer, is a representative of clients, an officer of the legal system and a public

citizen having special responsibility for the quality of justice. Every lawyer is responsible

to observe the law and the Rules of Professional Conduct, shall take the Attorney's

Oath upon admission to the practice of law, and shall be subject to the Rules of Lawyer

Discipline and Disability. as a member of the legal profession, is a representative of

clients, an officer of the legal system and a public citizen having special responsibility

for the quality of justice.

Attorney's Oath

"I do solemnly swear that I will support, obey and defend the

Constitution of the United States and the Constitution of this State; that I

will discharge the duties of attorney and counselor at law as an officer of

the courts of this State with honesty and fidelity; and that I will strictly

observe the Rules of Professional Conduct promulgated by the Supreme

Court of the State of Utah."

[2] As a representative of clients, a lawyer performs various functions. As advisor, a

lawyer provides a client with an informed understanding of the client's legal rights and

obligations and explains their practical implications. As advocate, a lawyer zealously

asserts the client's position under the rules of the adversary system. As negotiator, a

lawyer seeks a result advantageous to the client but consistent with requirements of

honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal

affairs and reporting about them to the client or to others. A lawyer's representation of a

client, including representation by appointment, does not constitute an endorsement of

the client's political, economic, social or moral views or activities.

[3] In addition to these representational functions, a lawyer may serve as a third-

party neutral, a nonrepresentational role helping the parties to resolve a dispute or other

matter. Some of these Rules apply directly to lawyers who are or have served as third-

party neutrals. See, e.g., Rules 1.12 and 2.4. In addition, there are rules that apply to

lawyers who are not active in the practice of law or to practicing lawyers even when they

are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in

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the conduct of a business is subject to discipline for engaging in conduct involving

dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.

[4] In all professional functions a lawyer should be competent, prompt and diligent. A

lawyer should maintain communication with a client concerning the representation. A

lawyer should keep in confidence information relating to representation of a client

except so far as disclosure is required or permitted by the Rules of Professional

Conduct or other law.

[5] A lawyer's conduct should conform to the requirements of the law, both in

professional service to clients and in the lawyer's business and personal affairs. A

lawyer should use the law's procedures only for legitimate purposes and not to harass

or intimidate others. A lawyer should demonstrate respect for the legal system and for

those who serve it, including judges, other lawyers and public officials. While it is a

lawyer's duty, when necessary, to challenge the rectitude of official action, it is also a

lawyer's duty to uphold legal process.

[6] As a public citizen, a lawyer should seek improvement of the law, access to the

legal system, the administration of justice and the quality of service rendered by the

legal profession. As a member of a learned profession, a lawyer should cultivate

knowledge of the law beyond its use for clients, employ that knowledge in reform of the

law and work to strengthen legal education. In addition, a lawyer should further the

public's understanding of and confidence in the rule of law and the justice system

because legal institutions in a constitutional democracy depend on popular participation

and support to maintain their authority. A lawyer should be mindful of deficiencies in the

administration of justice and of the fact that the poor, and sometimes persons who are

not poor, cannot afford adequate legal assistance and therefore, all lawyers should

devote professional time and resources and use civic influence in their behalf to ensure

equal access to our system of justice for all those who because of economic or social

barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal

profession in pursuing these objectives and should help the Bbar regulate itself in the

public interest.

[7] Many of a lawyer's professional responsibilities are prescribed in the Rules of

Professional Conduct, as well as substantive and procedural law. However, a lawyer is

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also guided by personal conscience and the approbation of professional peers. A lawyer

should strive to attain the highest level of skill, to improve the law and the legal

profession and to exemplify the legal profession's ideals of public service.

[8] A lawyer's responsibilities as a representative of clients, an officer of the legal

system and a public citizen are usually harmonious. Thus, when an opposing party is

well represented, a lawyer can be a zealous advocate on behalf of a client and at the

same time assume that justice is being done. So also, a lawyer can be sure that

preserving client confidences ordinarily serves the public interest because people are

more likely to seek legal advice, and thereby heed their legal obligations, when they

know their communications will be private.

[9] In the nature of law practice, however, conflicting responsibilities are

encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's

responsibilities to clients, to the legal system and to the lawyer's own interest in

remaining an ethical person while earning a satisfactory living. The Rules of

Professional Conduct often prescribe terms for resolving such conflicts. Within the

framework of these Rules, however, many difficult issues of professional discretion can

arise. Such issues must be resolved through the exercise of sensitive professional and

moral judgment guided by the basic principles underlying the Rules. These principles

include the lawyer's obligation zealously to protect and pursue a client's legitimate

interests, within the bounds of the adversarial system, while maintaining a professional,

courteous and civil attitude toward all persons involved in the legal system.

[10] The legal profession is largely self-governing. Although other professions also

have been granted powers of self-government, the legal profession is unique in this

respect because of the close relationship between the profession and the processes of

government and law enforcement. This connection is manifested in the fact that ultimate

authority over the legal profession is vested largely in the courts.

[11] To the extent that lawyers meet the obligations of their professional calling, the

occasion for government regulation is obviated. Self-regulation also helps maintain the

legal profession's independence from government domination. An independent legal

profession is an important force in preserving government under law, for abuse of legal

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authority is more readily challenged by a profession whose members are not dependent

on government for the right to practice.

[12] The legal profession's relative autonomy carries with it special responsibilities of

self-government. The profession has a responsibility to asensure that its regulations are

conceived in the public interest and not in furtherance of parochial or self-interested

concerns of the bBar.

Professional Conduct. A lawyer should also aid in securing their observance by other

lawyers. Neglect of these responsibilities compromises the independence of the

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profession and the public interest which it serves.

Every lawyer is responsible for observance of the Rules of

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[13] Lawyers play a vital role in the preservation of society. The fulfillment of this role

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requires an understanding by lawyers of their relationship to our legal system. The

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Rules of Professional Conduct, when properly applied, serve to define that relationship.

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Scope.

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[14] The Rules of Professional Conduct are rules of reason. They should be

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interpreted with reference to the purposes of legal representation and of the law itself.

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Some of the Rules are imperatives, cast in the terms "shall" or "shall not." These define

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proper conduct for purposes of professional discipline. Others, generally cast in the term

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"may," are permissive and define areas under the Rules in which the lawyer has

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discretion to exercise professional judgment. No disciplinary action should be taken

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when the lawyer chooses not to act or acts within the bounds of such discretion. Other

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Rules define the nature of relationships between the lawyer and others. The Rules are

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thus partly obligatory and disciplinary and partly constitutive and descriptive in that they

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define a lawyer's professional role. Many of the Comments use the term "should."

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Comments do not add obligations to the Rules but provide guidance for practicing in

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compliance with the Rules.

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[15] The Rules presuppose a larger legal context shaping the lawyer's role. That

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context includes court rules and statutes relating to matters of licensure, laws defining

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specific obligations of lawyers and substantive and procedural law in general. The

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Comments are sometimes used to alert lawyers to their responsibilities under such

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other law.

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[16] Compliance with the Rules, as with all law in an open society, depends primarily

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upon understanding and voluntary compliance, secondarily upon reinforcement by peer

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and public opinion and finally, when necessary, upon enforcement through disciplinary

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proceedings. The Rules do not, however, exhaust the moral and ethical considerations

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that should inform a lawyer, for no worthwhile human activity can be completely defined

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by legal rules. The Rules simply provide a framework for the ethical practice of law.

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[17] Furthermore, for purposes of determining the lawyer's authority and

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responsibility, principles of substantive law external to these Rules determine whether a

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client-lawyer relationship exists. Most of the duties flowing from the client-lawyer

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relationship attach only after the client has requested the lawyer to render legal services

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and the lawyer has agreed to do so. But there are some duties, such as that of

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confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a

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client-lawyer relationship shall be established. See Rule 1.18. Whether a client-lawyer

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relationship exists for any specific purpose can depend on the circumstances and may

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be a question of fact.

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[18] Under various legal provisions, including constitutional, statutory and common

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law, the responsibilities of government lawyers may include authority concerning legal

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matters that ordinarily reposes in the client in private client-lawyer relationships. For

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example, a lawyer for a government agency may have authority on behalf of the

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government to decide upon settlement or whether to appeal from an adverse judgment.

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Such authority in various respects is generally vested in the attorney general and the

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state's attorney in state government, and their federal counterparts, and the same may

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be true of other government law officers. Also, lawyers under the supervision of these

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officers

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intragovernmental legal controversies in circumstances where a private lawyer could not

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represent multiple private clients. These Rules do not abrogate any such authority.

may

authorized

represent

several

government

agencies

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[19] Failure to comply with an obligation or prohibition imposed by a Rule is a basis

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for invoking the disciplinary process. The Rules presuppose that disciplinary

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assessment of a lawyer's conduct will be made on the basis of the facts and

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circumstances as they existed at the time of the conduct in question and in recognition

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of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the

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situation. Moreover, the Rules presuppose that whether or not discipline should be

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imposed for a violation, and the severity of a sanction, depend on all the circumstances,

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such as the willfulness and seriousness of the violation, extenuating factors and

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whether there have been previous violations.

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[20] Violation of a rRule should not itself give rise to a cause of action against a

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lawyer nor should it create any presumption in such a case that a legal duty has been

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breached. In addition, violation of a rule does not necessarily warrant any other

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nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The

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Rules are designed to provide guidance to lawyers and to provide a structure for

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regulating conduct through disciplinary agencies. They are not designed to be a basis

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for civil liability. Furthermore, the purpose of the Rules can be subverted when they are

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invoked by opposing parties as procedural weapons. The fact that a rRule is a just basis

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for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a

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disciplinary authority, does not imply that an antagonist in a collateral proceeding or

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transaction has standing to seek enforcement of the Rrule. Nevertheless, since the

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Rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may

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be evidence of breach of applicable standard of conduct.

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[21] The Ccomment accompanying each Rrule explains and illustrates the meaning

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and purpose of the Rrule. The Preamble and this note on Scope provide general

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orientation. The Ccomments are intended as guides to interpretation, but the text of

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each Rrule is authoritative.

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Rule 1.0. Terminology.

(a) “Belief” or “believes” denotes that the person involved actually supposed the fact

in question to be true. A person's belief may be inferred from circumstances.

(b) “Confirmed in writing,” when used in reference to the informed consent of a

person, denotes informed consent that is given in writing by the person or a writing that

a lawyer promptly transmits to the person confirming an oral informed consent. See

paragraph (f) for the definition of “informed consent.” If it is not feasible to obtain or

transmit the writing at the time the person gives informed consent, then the lawyer must

obtain or transmit it within a reasonable time thereafter.

sufficient to permit the client to appreciate the significance of the matter in question.

(d) “Firm” or “law firm” denotes a lawyer or lawyers in a private firm, law partnership,

professional corporation, sole proprietorship or other association authorized to practice

law; or lawyers employed in a legal services organization or the legal department of a

corporation or other organization and lawyers employed in a legal services organization.

See Comment, Rule 1.10.

(e)

“Fraud” or “fraudulent” denotes conduct having that is fraudulent under the

substantive or procedural law of the applicable jurisdiction and has a purpose to deceive

and not merely negligent misrepresentation or failure to apprise another of relevant

information.

(f) “Informed consent” denotes the agreement by a person to a proposed course of

conduct after the lawyer has communicated adequate information and explanation

about the material risks of and reasonably available alternatives to the proposed course

of conduct.

(g)

“Knowingly,” “known” or “knows” denotes actual knowledge of the fact in

question. A person's knowledge may be inferred from circumstances.

(h) “Partner” denotes a member of a partnership and, a shareholder in a law firm

organized as a professional corporation, or a member of an association authorized to

practice law.

(i)

“Reasonable” or “reasonably” when used in relation to conduct by a lawyer

denotes the conduct of a reasonably prudent and competent lawyer.

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(j) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer

denotes that the lawyer believes the matter in question and that the circumstances are

such that the belief is reasonable.

(k) “Reasonably should know” when used in reference to a lawyer denotes that a

lawyer of reasonable prudence and competence would ascertain the matter in question.

(l) “Screened” denotes the isolation of a lawyer from any participation in a matter

through the timely imposition of procedures within a firm that are reasonably adequate

under the circumstances to protect information that the isolated lawyer is obligated to

protect under these Rules or other law.

(m) “Substantial” when used in reference to degree or extent denotes a material

matter of clear and weighty importance.

(n) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a

legislative body, administrative agency or other body acting in an adjudicative capacity.

A legislative body, administrative agency or other body acts in an adjudicative capacity

when a neutral official, after the presentation of evidence or legal argument by a party or

parties, will render a binding legal judgment directly affecting a party's interests in a

particular matter.

(o) “Writing” or “written” denotes a tangible or electronic record of a communication

representation,

including

handwriting,

typewriting,

printing,

photostating,

photography, audio or videorecording and e-mail. A “signed” writing includes an

electronic sound, symbol or process attached to or logically associated with a writing

and executed or adopted by a person with the intent to sign the writing.

Comment

Confirmed in Writing

[1] If it is not feasible to obtain or transmit a written confirmation at the time the

client gives informed consent, then the lawyer must obtain or transmit it within a

reasonable time thereafter. If a lawyer has obtained a client's informed consent, the

lawyer may act in reliance on that consent so long as it is confirmed in writing within a

reasonable time thereafter.

Firm

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[2] Whether two or more lawyers constitute a firm within paragraph (d) can depend

on the specific facts. For example, two practitioners who share office space and

occasionally consult or assist each other ordinarily would not be regarded as

constituting a firm. However, if they present themselves to the public in a way that

suggests that they are a firm or conduct themselves as a firm, they should be regarded

as a firm for purposes of these Rules. The terms of any formal agreement between

associated lawyers are relevant in determining whether they are a firm, as is the fact

that they have mutual access to information concerning the clients they serve.

Furthermore, it is relevant in doubtful cases to consider the underlying purpose of the

rule that is involved. A group of lawyers could be regarded as a firm for purposes of the

rule that the same lawyer should not represent opposing parties in litigation, while it

might not be so regarded for purposes of the rule that information acquired by one

lawyer is attributed to another.

[3] With respect to the law department of an organization, including the government,

there is ordinarily no question that the members of the department constitute a firm

within the meaning of the Rules of Professional Conduct. There can be uncertainty,

however, as to the identity of the client. For example, it may not be clear whether the

law department of a corporation represents a subsidiary or an affiliated corporation, as

well as the corporation by which the members of the department are directly employed.

A similar question can arise concerning an unincorporated association and its local

affiliates.

[4] Similar questions can also arise with respect to lawyers in legal aid and legal

services organizations. Depending upon the structure of the organization, the entire

organization or different components of it may constitute a firm or firms for purposes of

these Rules.

Fraud

[5] When used in these Rules, the terms “fraud” or “fraudulent” refer to conduct that

is characterized as such under the substantive or procedural law of the applicable

jurisdiction and has a purpose to deceive. This does not include merely negligent

misrepresentation or negligent failure to apprise another of relevant information. For

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purposes of these Rules, it is not necessary that anyone has suffered damages or relied

on the misrepresentation or failure to inform.

Informed Consent

[6] Many of the Rules of Professional Conduct require the lawyer to obtain the

informed consent of a client or other person (e.g., a former client or, under certain

circumstances, a prospective client) before accepting or continuing representation 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 such consent will vary according to the rule involved

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and the circumstances giving rise to the need to obtain informed consent. The lawyer

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must make reasonable efforts to ensure that the client or other person possesses

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information reasonably adequate to make an informed decision. Ordinarily, this will

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require communication that includes a disclosure of the facts and circumstances giving

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rise to the situation, any explanation reasonably necessary to inform the client or other

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person of the material advantages and disadvantages of the proposed course of

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conduct and a discussion of the client's or other person's options and alternatives. In

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some circumstances it may be appropriate for a lawyer to advise a client or other

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person to seek the advice of other counsel. A lawyer need not inform a client or other

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person of facts or implications already known to the client or other person; nevertheless,

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a lawyer who does not personally inform the client or other person assumes the risk that

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the client or other person is inadequately informed and the consent is invalid. In

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determining whether the information and explanation provided are reasonably

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adequate, relevant factors include whether the client or other person is experienced in

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legal matters generally and in making decisions of the type involved, and whether the

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client or other person is independently represented by other counsel in giving the

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consent. Normally, such persons need less information and explanation than others,

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and generally a client or other person who is independently represented by other

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counsel in giving the consent should be assumed to have given informed consent.

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[7] Obtaining informed consent will usually require an affirmative response by the

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client or other person. In general, a lawyer may not assume consent from a client's or

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other person's silence. Consent may be inferred, however, from the conduct of a client

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or other person who has reasonably adequate information about the matter. A number

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of rules require that a person's consent be confirmed in writing. See Rules 1.7(b) and

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1.9(a). For a definition of “writing” and “confirmed in writing,” see paragraphs (o) and (b).

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Other rules require that a client's consent be obtained in a writing signed by the client.

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See, e.g., Rules 1.8(a) and (g). For a definition of “signed,” see paragraph (o).

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Screened

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[8] This definition applies to situations where screening of a personally disqualified

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lawyer is permitted to remove imputation of a conflict of interest under Rules 1.11, 1.12

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or 1.18.

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[9]

The purpose of screening is to assure the affected parties that confidential

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information known by the personally disqualified lawyer remains protected. The

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personally disqualified lawyer should acknowledge the obligation not to communicate

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with any of the other lawyers in the firm with respect to the matter. Similarly, other

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lawyers in the firm who are working on the matter should be informed that the screening

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is in place and that they may not communicate with the personally disqualified lawyer

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with respect to the matter. Additional screening measures that are appropriate for the

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particular matter will depend on the circumstances. To implement, reinforce and remind

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all affected lawyers of the presence of the screening, it may be appropriate for the firm

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to undertake such procedures as a written undertaking by the screened lawyer to avoid

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any communication with other firm personnel and any contact with any firm files or other

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materials relating to the matter, written notice and instructions to all other firm personnel

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forbidding any communication with the screened lawyer relating to the matter, denial of

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access by the screened lawyer to firm files or other materials relating to the matter and

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periodic reminders of the screen to the screened lawyer and all other firm personnel.

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[10] In order to be effective, screening measures must be implemented as soon as

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practical after a lawyer or law firm knows or reasonably should know that there is a

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need for screening.

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Rule 1.1. Competence.

A lawyer shall provide competent representation to a client. Competent

representation requires the legal knowledge, skill, thoroughness and preparation

reasonably necessary for the representation.

Comment

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a

particular matter, relevant factors include the relative complexity and specialized nature

of the matter, the lawyer's general experience, the lawyer's training and experience in

the field in question, the preparation and study the lawyer is able to give the matter and

whether it is feasible to refer the matter to, or associate or consult with, a lawyer of

established competence in the field in question. In many instances, the required

proficiency is that of a general practitioner. Expertise in a particular field of law may be

required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle

legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer

can be as competent as a practitioner with long experience. Some important legal skills,

such as the analysis of precedent, the evaluation of evidence and legal drafting, are

required in all legal problems. Perhaps the most fundamental legal skill consists of

determining what kind of legal problems a situation may involve, a skill that necessarily

transcends any particular specialized knowledge. A lawyer can provide adequate

representation in a wholly novel field through necessary study. Competent

representation can also be provided through the association of a lawyer of established

competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the

lawyer does not have the skill ordinarily required where referral to or consultation or

association with another lawyer would be impractical. Even in an emergency, however,

assistance should be limited to that reasonably necessary in the circumstances, for

ill-considered action under emergency conditions can jeopardize the client's interest.

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[4] A lawyer may accept representation where the requisite level of competence can

be achieved by reasonable preparation. This applies as well to a lawyer who is

appointed as counsel for an unrepresented person. See also Rule 6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of

the factual and legal elements of the problem and use of methods and procedures

meeting the standards of competent practitioners. It also includes adequate preparation.

The required attention and preparation are determined in part by what is at stake; major

litigation and complex transactions ordinarily require more extensive treatment than

matters of lesser complexity and consequence. An agreement between the lawyer and

the client regarding the scope of the representation may limit the matters for which the

lawyer is responsible. See Rule 1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of

changes in the law and its practice, engage in continuing study and education and

comply with all continuing legal education requirements to which the lawyer is subject.

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Rule 1.2. Scope of Rrepresentation and Allocation of Authority Between Client and

Lawyer.

(a) A Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions

concerning the objectives of representation, subject to paragraphs (b), (c), (d), and and,

as required by Rule 1.4, shall consult with the client as to the means by which they are

to be pursued. A lawyer may take such action on behalf of the client as is impliedly

authorized to carry out the representation. A lawyer shall abide by a client's decision

whether to accept an offer of settlement of settle a matter. In a criminal case, a the

lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea

to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer’s representation of a client, including representation by appointment,

does not constitute an endorsement of the client’s political, economic, social or moral

views or activities.

(c)

A lawyer may limit the objectives scope of the representation if the client

consents after consultation limitation is reasonable under the circumstances and the

client gives informed consent.

(c)(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that

the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal

consequences of any proposed course of conduct with a client and may counsel or

assist a client to make a good faith effort to determine the validity, scope, meaning or

application of the law.

(d) When a lawyer knows that a client expects assistance not permitted by the

Rules of Professional Conduct or other law, the lawyer shall consult with the client

regarding the relevant limitations on the lawyer's conduct.

Comment

Scope of Representation

Allocation of Authority between Client and Lawyer

[1] Both lawyer and client have authority and responsibility in the objectives and

means of representation. The client has Paragraph (a) confers upon the client the

ultimate authority to determine the purposes to be served by legal representation, within

the limits imposed by law and the lawyer's professional obligations. Within those limits,

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a client also has a right to consult with the lawyer The decisions specified in paragraph

(a), such as whether to settle a civil matter, must also be made by the client. See Rule

1.4(a)(1) for the lawyer’s duty to communicate with the client about such decisions.

With respect to the means by which the client’s objectives are to be pursued, the lawyer

shall consult with the client as required by Rule 1.4(a)(2) and may take such action as is

impliedly authorized to carry out the representation.

[2] On occasion, however, a lawyer and a client may disagree about the means to

be used in pursuing those objectives. At the same time, a lawyer is not required to

pursue objectives or employ means simply because a client may wish that the lawyer do

so. A clear distinction between objectives and means sometimes cannot be drawn, and

in many cases the client-lawyer relationship partakes of a joint undertaking. In questions

of means, the lawyer should assume responsibility for technical and legal tactical issues

but should to accomplish the client’s objectives. Clients normally defer to the special

knowledge and skill of their lawyer with respect to the means to be used to accomplish

their objectives, particularly with respect to technical, legal and tactical matters.

Conversely, lawyers usually defer to the client regarding such questions as the expense

to be incurred and concern for third persons who might be adversely affected. Law

defining the lawyer's scope of authority in litigation varies among jurisdictions. Because

of the varied nature of the matters about which a lawyer and client might disagree and

because the actions in question may implicate the interests of a tribunal or other

persons, this Rule does not prescribe how such disagreements are to be resolved.

Other law, however, may be applicable and should be consulted by the lawyer. The

lawyer should also consult with the client and seek a mutually acceptable resolution of

the disagreement. If such efforts are unavailing and the lawyer has a fundamental

disagreement with the client, the lawyer may withdraw from the representation. See

Rule 1.16(b)(3). Conversely, the client may resolve the disagreement by discharging

the lawyer. See Rule 1.16(a)(3).

Services Limited in Objectives or Means

[3] At the outset of a representation, the client may authorize the lawyer to take

specific action on the client’s behalf without further consultation. Absent a material

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change in circumstances and subject to Rule 1.4, a lawyer may rely on such an

advance authorization. The client may, however, revoke such authority at any time.

[4] In a case in which the client appears to be suffering diminished capacity, the

lawyer’s duty to abide by the client’s decisions is to be guided by reference to Rule 1.14.

Independence from Client’s Views or Activities

[5]

Legal representation should not be denied to people who are unable to afford

legal services or whose cause is controversial or the subject of popular disapproval. By

the same token, representing a client does not constitute approval of the client’s views

or activities.

Agreements Limiting Scope of Representation

[6] The objectives or scope of services The scope of services to be provided by a

lawyer may be limited by agreement with the client or by the terms under which the

lawyer's services are made available to the client. For example, a retainer may be for a

specifically defined purpose. Representation provided through a legal aid agency may

be subject to limitations on the types of cases the agency handles. When a lawyer has

been retained by an insurer to represent an insured, for example, the representation

may be limited to matters related to the insurance coverage. TheA limited

representation may be appropriate because the client has limited objectives for the

representation. In addition, the terms upon which representation is undertaken may

exclude specific objectives or means means that might otherwise be used to accomplish

the client’s objectives. Such limitations may exclude objectives or means actions that

the client thinks are too costly or that the lawyer regards as repugnant or imprudent.

[7] Although this Rule affords the lawyer and client substantial latitude to limit the

representation, the limitation must be reasonable under the circumstances.

example, a client’s objective is limited to securing general information about the law the

client needs in order to handle a common and typically uncomplicated legal problem,

the lawyer and client may agree that the lawyer’s services will be limited to a brief

telephone consultation. Such a limitation, however, would not be reasonable if the time

allotted were not sufficient to yield advice upon which the client could rely. Although an

agreement for a limited representation does not exempt a lawyer from the duty to

provide competent representation, the limitation is a factor to be considered when

If, for

Draft: March 25, 2005

determining the legal knowledge, skill, thoroughness and preparation reasonably

necessary for the representation. See Rule 1.1.

[8]

All agreements concerning a lawyer’s representation of a client An agreement

concerning the scope of representation must accord with the Rules of Professional

Conduct and other law. Thus, the client may not be asked to agree to representation so

limited in scope as to violate Rule 1.1 or to surrender the right to terminate the lawyer's

services or the right to settle litigation that the lawyer might wish to continue See, e.g.,

100

Rules 1.1, 1.8 and 5.6.

101

Criminal, Fraudulent and Prohibited Transactions

102

A lawyer is required to give [9] Paragraph (d) prohibits a lawyer from knowingly

103

counseling or assisting a client to commit a crime or fraud. This prohibition, however,

104

does not preclude the lawyer from giving an honest opinion about the actual

105

consequences that appear likely to result from a client's conduct. The Nor does the fact

106

that a client uses advice in a course of action that is criminal or fraudulent does not, of

107

itself, make a lawyer a party to the course of action. However, a lawyer may not

108

knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction

109

between presenting an analysis of legal aspects of questionable conduct and

110

recommending the means by which a crime or fraud might be committed with impunity.

111

[10] When the client's course of action has already begun and is continuing, the

112

lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the

113

client's wrongdoing, except where permitted by Rule 1.6. However, the lawyer is

114

required to avoid furthering the purpose, for example, by suggesting how it assisting the

115

client, for example, by drafting or delivering documents that the lawyer knows are

116

fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not

117

continue assisting a client in conduct that the lawyer originally supposes is supposed

118

was legally proper but then discovers is criminal or fraudulent. Withdrawal The lawyer

119

must, therefore, withdraw from the representation, therefore, may be required. of the

120

client in the matter. See Rule 1.16(a). In some cases, withdrawal alone might be

121

insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal

122

and to disaffirm any opinion, document, affirmation or the like. See Rule 4.1.

Draft: March 25, 2005

123

124

[11]

Where the client is a fiduciary, the lawyer may be charged with special

obligations in dealings with the a beneficiary.

125

[12] Paragraph (c)(d) applies whether or not the defrauded party is a party to the

126

transaction. Hence, a lawyer should must not participate in a sham transaction, for

127

example, a transaction to effectuate criminal or fraudulent escape avoidance of tax

128

liability. Paragraph (c)(d) does not preclude undertaking a criminal defense incident to a

129

general retainer for legal service services to a lawful enterprise. The last clause of

130

paragraph (c)(d) recognizes that determining the validity or interpretation of a statute or

131

regulation may require a course of action involving disobedience of the statute or

132

regulation or of the interpretation placed upon it by governmental authorities.

133

[13] If a lawyer comes to know or reasonably should know that a client expects

134

assistance not permitted by the Rules of Professional Conduct or other law or if the

135

lawyer intends to act contrary to the client’s instructions, the lawyer must consult with

136

the client regarding the limitations on the lawyer’s conduct. See Rule 1.4(a)(5).

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Draft: March 25, 2005

Rule 1.3. Diligence.

A lawyer shall act with reasonable diligence and promptness in representing a client.

Comment

[1]

A lawyer should pursue a matter on behalf of a client despite opposition,

obstruction or personal inconvenience to the lawyer and may take whatever lawful and

ethical measures are required to vindicate a client's cause or endeavor. A lawyer should

must act with commitment and dedication to the interests of the client and with zeal in

advocacy upon the client's behalf. However, a A lawyer is not bound, however, to press

for every advantage that might be realized for a client. For example, A a lawyer has may

have authority to exercise professional discretion in determining the means by which a

matter should be pursued. See Rule 1.2. A The lawyer's duty to act with reasonable

diligence does not require the use of offensive tactics or preclude the treating of all

persons involved in the legal process with courtesy and respect.

[2] A lawyer’s work load should must be controlled so that each matter can be

handled adequately competently.

[3]

Clients resent Perhaps no professional procrastination shortcoming is more

widely resented than procrastination. A client's interests often can be adversely affected

by the passage of time or the change of conditions; in extreme instances, as when a

lawyer overlooks a statute of limitations, the client's legal position may be destroyed.

Even when the client's interests are not affected in substance, however, unreasonable

delay can cause a client needless anxiety and undermine confidence in the lawyer's

trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not

preclude the lawyer from agreeing to a reasonable request for a postponement that will

not prejudice the lawyer’s client.

[4] Unless the relationship is terminated as provided in Rule 1.141.16, a lawyer

should carry through to conclusion all matters undertaken for a client. If a lawyer's

employment is limited to a specific matter, the relationship terminates when the matter

has been resolved. If a lawyer has served a client over a substantial period in a variety

of matters, the client sometimes may assume that the lawyer will continue to serve on a

continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a

client-lawyer relationship still exists should be clarified by the lawyer, preferably in

Draft: March 25, 2005

writing, so that the client will not mistakenly suppose the lawyer is looking after the

client's affairs when the lawyer has ceased to do so. For example, if a lawyer has

handled a judicial or administrative proceeding that produced a result adverse to the

client and the lawyer and the client have not agreed that the lawyer will handle the

matter onbut has not been specifically instructed concerning pursuit of an appeal, the

lawyer should advise must consult with the client about of the possibility of appeal

before relinquishing responsibility for the matter.

lawyer is obligated to prosecute the appeal for the client depends on the scope of the

representation the lawyer has agreed to provide to the client. See Rule 1.2.

See Rule 1.4(a)(2). Whether the

[5] To prevent neglect of client matters in the event of a lawyer’s death or disability,

the duty of diligence may require that each lawyer prepare a plan, in conformity with

applicable rules, that designates another competent lawyer to review client files, notify

each client of the lawyer’s death or disability, and determine whether there is a need for

immediate protective action. Cf. Rule 27 of the Utah Rules for Lawyer Discipline and

Disability (providing for court appointment of a lawyer to inventory files and take other

protective action in absence of a plan providing for another lawyer to protect the

interests of the clients of a deceased or disabled lawyer).

[5a] Comment [5] to ABA Model Rule 1.3 refers to the duty of diligence for sole

practitioners only. Utah Comment [5] does not distinguish between sole practitioners

and lawyers practicing in a firm or other organization.

Draft: March 25, 2005

Rule 1.4. Communication.

(a) A lawyer shall:

(a)(1) promptly inform the client of any decision or circumstance with respect to

which the client=s

informed consent, as defined in Rule 1.0(e), is required by these Rules;

(a)(2)

reasonably consult with the client about the means by which the client=s

objectives are to be accomplished;

(a)(3) keep a the client reasonably informed about the status of a the matter; and

(a)(4) promptly comply with reasonable requests for information; and.

(a)(5) consult with the client about any relevant limitation on the lawyer’s conduct

when the lawyer knows that the client expects assistance not permitted by the Rules of

Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to enable

permit the client to make informed decisions regarding the representation.

Comment

[1] Reasonable communication between the lawyer and the client is necessary for

the client effectively to participate in the representation.

Communicating with Client

[2] If these Rules require that a particular decision about the representation be

made by the client, paragraph (a)(1) requires that the lawyer promptly consult with and

secure the client=s consent prior to taking action unless prior discussions with the client

have resolved what action the client wants the lawyer to take. The client should have

sufficient information to participate intelligently in decisions concerning the objectives of

the representation and the means by which they are to be pursued, to the extent the

client is willing and able to do so. For example, a lawyer negotiating on behalf of a client

should provide the client with facts relevant to the matter, inform the client of

communications from another party and take other reasonable steps that permit the

client to make a decision regarding a serious offer from another party. A lawyer who

receives from opposing counsel an offer of settlement in a civil controversy or a

proffered plea bargain in a criminal case shall must promptly inform the client of its

substance unless prior discussions with the client have left it clear

the client has

Draft: March 25, 2005

previously indicated that the proposal will be unacceptable. See Rule 1.2(a). Even when

a client delegates authority to the lawyer, the client should be kept advised of

acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

See Rule 1.2(a).

[3] Paragraph (a)(2) requires the lawyer to reasonably consult with the client about

the means to be used to accomplish the client=s objectives. In some situations C

depending on both the importance of the action under consideration and the feasibility

of consulting with the client C this duty will require consultation prior to taking action. In

other circumstances, such as during a trial when an immediate decision must be made,

the exigency of the situation may require the lawyer to act without prior consultation. In

such cases the lawyer must nonetheless act reasonably to inform the client of actions

the lawyer has taken on the client=s behalf. Additionally, paragraph (a)(3) requires that

the lawyer keep the client reasonably informed about the status of the matter, such as

significant developments affecting the timing or the substance of the representation.

[4] A lawyer=s regular communication with clients will minimize the occasions on

which a client will need to request information concerning the representation. When a

client makes a reasonable request for information, however, paragraph (a)(4) requires

prompt compliance with the request, or if a prompt response is not feasible, that the

lawyer, or a member of the lawyer=s staff, acknowledge receipt of the request and

advise the client when a response may be expected. Client telephone calls should be

promptly returned or acknowledged.

Explaining Matters

[5]

The client should have sufficient information to participate intelligently in

decisions concerning the objectives of the representation and the means by which they

are to be pursued, to the extent the client is willing and able to do so. Adequacy of

communication depends in part on the kind of advice or assistance that is involved. For

example, in negotiations where when there is time to explain a proposal made in a

negotiation, the lawyer should review all important provisions with the client before

proceeding to an agreement. In litigation, a lawyer should explain the general strategy

and prospects of success and ordinarily should consult the client on tactics that might

are likely to result in significant expense or to injure or coerce others. On the other

Draft: March 25, 2005

hand, a lawyer ordinarily cannot will not be expected to describe trial or negotiation

strategy in detail. The guiding principle is that the lawyer should fulfill reasonable client

expectations for information, whether written or oral, consistent with the duty to act in

the client's best interest interests and the client's overall requirements as to the

character of representation. In certain circumstances, such as when a lawyer asks a

client to consent to a representation affected by a conflict of interest, the client must

give informed consent, as defined in Rule 1.0(e).

[6] Ordinarily, the information to be provided is that appropriate for a client who is a

comprehending and responsible adult. However, fully informing the client according to

this standard may be impracticable, for example, where the client is a child or suffers

from mental disability diminished capacity.

organization or group, it is often impossible or inappropriate to inform every one of its

members about its legal affairs; ordinarily, the lawyer should address communications

to the appropriate officials of the organization. See Rule 1.13. Where many routine

matters are involved, a system of limited or occasional reporting may be arranged with

the client. Practical exigency may also require a lawyer to act for a client without prior

consultation.

See Rule 1.14. When the client is an

Withholding Information

[7] In some circumstances, a lawyer may be justified in delaying transmission of

information when the client would be likely to react imprudently to an immediate

communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when

the examining psychiatrist indicates that disclosure would harm the client. A lawyer may

not withhold information to serve the lawyer's own interest or convenience or the

interests or convenience of another person. Rules or court orders governing litigation

may provide that information supplied to a lawyer may not be disclosed to the client.

Rule 3.4(c) directs compliance with such rules or orders.

Draft: March 25, 2005

Rule 1.5. Fees.

(a) A lawyer shall not enter into make an agreement for, charge or collect an illegal

or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a

lawyer of ordinary prudence would be left with a definite and firm conviction that the fee

is in excess of a reasonable fee unreasonable fee or an unreasonable amount for

expenses.

reasonableness of a fee include the following:

Factors The factors to be considered as guides in determining the

(a)(1) Tthe time and labor required, the novelty and difficulty of the questions

involved and the skill requisite to perform the legal service properly;

(a)(2) Tthe likelihood, if apparent to the client, that the acceptance of the particular

employment will preclude other employment by the lawyer;

(a)(3) Tthe fee customarily charged in the locality for similar legal services;

(a)(4) Tthe amount involved and the results obtained;

(a)(5) Tthe time limitations imposed by the client or by the circumstances;

(a)(6) Tthe nature and length of the professional relationship with the client;

(a)(7) Tthe experience, reputation and ability of the lawyer or lawyers performing the

services; and

(a)(8) Wwhether the fee is fixed or contingent.

(b) When the lawyer has not regularly represented the client, and it is reasonably

foreseeable that total attorneys fees to the client will exceed $750.00, The scope of the

representation and the basis or rate of the fee and expenses for which the client will be

responsible shall be communicated to the client, preferably in writing, before or within a

reasonable time after commencing the representation, except when the lawyer will

charge a regularly represented client on the same basis or rate. Any changes in the

basis or rate of the fee or expenses shall also be communicated to the client.

rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or

other law. A contingent fee agreement shall be in a writing signed by the client and shall

state the method by which the fee is to be determined, including the percentage or

percentages that shall accrue to the lawyer in the event of settlement, trial or appeal,;

litigation and other expenses to be deducted from the recovery; and whether such

Draft: March 25, 2005

expenses are to be deducted before or after the contingent fee is calculated. The

agreement must clearly notify the client of any expenses for which the client will be

liable whether or not the client is the prevailing party. Upon conclusion of a contingent

fee matter, the lawyer shall provide the client with a written statement stating the

outcome of the matter and, if there is a recovery, showing the remittance to the client

and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge or collect:

(d)(1) Aany fee in a domestic relations matter, the payment or amount of which is

contingent upon the securing of a divorce or upon the amount of alimony or support, or

property settlement in lieu thereof; or

(d)(2) A a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made

only if:

(e)(1) Tthe division is in proportion to the services performed by each lawyer or, by

written agreement with the client,

representation;

each lawyer assumes joint responsibility for the

(e)(2) The client is advised of and does not object to the participation of all lawyers

involved; andthe client agrees to the arrangement, including the share each lawyer will

receive, and the agreement is confirmed in writing; and

(e)(3) Tthe total fee is reasonable.

Comment

Reasonableness of Fee and Expenses

[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the

circumstances. The factors specified in (a)(1) through (a)(8) are not exclusive. Nor will

each factor be relevant in each instance. Paragraph (a) also requires that expenses for

which the client will be charged must be reasonable.

reimbursement for the cost of services performed in-house, such as copying, or for

other expenses incurred in-house, such as telephone charges, either by charging a

reasonable amount to which the client has agreed in advance or by charging an amount

that reasonably reflects the cost incurred by the lawyer.

Basis or Rate of Fee

A lawyer may seek

Draft: March 25, 2005

[2] When the lawyer has regularly represented a client, they ordinarily will have

evolved an understanding concerning the basis or rate of the fee and the expenses for

which the client will be responsible. In a new client-lawyer relationship, however, an

understanding as to the fee should fees and expenses must be promptly established in

writing, where it is reasonably foreseeable that the fees will exceed $750.00. It is not

necessary to recite all the factors that underlie the basis of the fee, but only those that

are directly involved in its computation. It is sufficient, for example, to state that the

basic rate is an hourly charge or a fixed amount or an estimated amount or to identify

the factors that may be taken into account in finally fixing the fee. When developments

occur during the representation that render an earlier estimate substantially inaccurate,

a revised estimate should be provided to the client. Generally, it is desirable to furnish

the client with at least a simple memorandum or copy of the lawyer’s customary fee

arrangements that states the general nature of the legal services to be provided, the

basis, rate or total amount of the fee and whether and to what extent the client will be

responsible for any costs, expenses or disbursements in the course of the

representation.

reduces the possibility of misunderstanding. Furnishing the client with a simple

memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis

or rate of the fee is set forth.

A written statement concerning the fee terms of the engagement

[3] Contingent fees, like any other fees, are subject to the reasonableness standard

of paragraph (a) of this Rule. In determining whether a particular contingent fee is

reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer

must consider the factors that are relevant under the circumstances. Applicable law

may impose limitations on contingent fees, such as a ceiling on the percentage

allowable, or may require a lawyer to offer clients an alternative basis for the fee.

Applicable law also may apply to situations other than a contingent fee, for example,

government regulations regarding fees in certain tax matters.

Terms of Payment

[4] A lawyer may require advance payment of a fee but is obligated to return any

unearned portion. See Rule 1.14(d)1.16(d). A lawyer may accept property in payment

for services, such as an ownership interest in an enterprise, providing this does not

Draft: March 25, 2005

involve acquisition of a proprietary interest in the cause of action or subject matter of the

litigation contrary to Rule 1.8(j)(i). However, a fee paid in property instead of money may

be subject to special scrutiny because it involves questions concerning both the value of

the services and the lawyer's special knowledge of the value of the property. the

requirements of Rule 1.8(a) because such fees often have the essential qualities of a

business transaction with the client.

100

[5] An agreement may not be made whose terms might induce the lawyer improperly

101

to curtail services for the client or perform them in any way contrary to the client's

102

interest. For example, a lawyer should not enter into an agreement whereby services

103

are to be provided only up to a stated amount when it is foreseeable that more

104

extensive services probably will be required, unless the situation is adequately

105

explained to the client. Otherwise, the client might have to bargain for further assistance

106

in the midst of a proceeding or transaction. However, it is proper to define the extent of

107

services in light of the client's ability to pay. A lawyer should not exploit a fee

108

arrangement based primarily on hourly charges by using wasteful procedures. When

109

there is doubt whether a contingent fee is consistent with the client's best interest, the

110

lawyer should offer the client alternative bases for the fee and explain their implications.

111

Applicable law may impose limitations on contingent fees, such as a ceiling on the

112

percentage.

113

Prohibited Contingent Fees Division of Fee

114

[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic

115

relations matter when payment is contingent upon the securing of a divorce or upon the

116

amount of alimony or support or property settlement to be obtained. This provision

117

does not preclude a contract for a contingent fee for legal representation in connection

118

with the recovery of post-judgment balances due under support, alimony or other

119

financial orders because such contracts do not implicate the same policy concerns.

120

Division of Fees

121

[7] A division of fee is a single billing to a client covering the fee of two or more

122

lawyers who are not in the same firm. A division of fee facilitates association of more

123

than one lawyer in a matter in which neither alone could serve the client as well, and

124

most often is used when the fee is contingent and the division is between a referring

Draft: March 25, 2005

125

lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on

126

the basis of the proportion of services they render or by agreement between the

127

participating lawyers if all assume if each lawyer assumes responsibility for the

128

representation as a whole. and the client is advised and does not object. It does not

129

require disclosure to the client of In addition, the client must agree to the arrangement,

130

including the share that each lawyer is to receive, and the agreement must be

131

confirmed in writing. Contingent fee agreements must be in a writing signed by the

132

client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for

133

the representation entails the obligations stated in Rule 5.1 for purposes of the matter

134

involved. Rule 1.5(e) is not intended to prevent the sale of a law practice (including

135

goodwill) if the sale otherwise complies with the Rules of Professional Conduct. financial

136

and ethical responsibility for the representation as if the lawyers were associated in a

137

partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer

138

reasonably believes is competent to handle the matter. See Rule 1.1.

139

140

[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the

future for work done when lawyers were previously associated in a law firm.

141

Disputes over Fees

142

[9] If a procedure has been established for resolution of fee disputes, such as an

143

arbitration or mediation procedure established by the Bar Bar, the lawyer must comply

144

with the procedure when it is mandatory, and, even when it is voluntary, the lawyer

145

should conscientiously consider submitting to it. Law may prescribe a procedure for

146

determining a lawyer's fee, for example, in representation of an executor or

147

administrator, a class or a person entitled to a reasonable fee, as part of the measure of

148

damages. The lawyer entitled to such a fee and a lawyer representing another party

149

concerned with the fee should comply with the prescribed procedure.

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Draft: March 25, 2005

Rule 1.6. Confidentiality of Information.

(a) A lawyer shall not reveal information relating to the representation of a client

except as stated in paragraph (b), unless the client consents after consultation unless

the client gives informed consent, the disclosure is impliedly authorized in order to carry

out the representation or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information relating to the representation of a client to

the extent the lawyer reasonably believes necessary:

(b)(1) To prevent the client from committing a criminal or fraudulent act that the

lawyer believes is likely to result in to prevent reasonably certain death or substantial

bodily harm, or substantial injury to the financial interest or property of another;

(b)(2) to prevent the client from committing a crime or fraud that is reasonably

certain to result in substantial injury to the financial interest or property of another and in

furtherance of which the client has used the lawyer’s services;

(b)(3) To to prevent, mitigate or rectify the consequences of a client's criminal or

fraudulent act in the commission of which the lawyer's services had been used

substantial injury to the financial interests or property of another that is reasonably

certain to result or has resulted from the client’s commission of a crime or fraud and in

furtherance of which the client has used the lawyer’s services;

(b)(3) (4) to secure legal advice about the lawyer’s compliance with these Rules;

(b)(5) To to establish a claim or defense on behalf of the lawyer in a controversy

between the lawyer and the client or, to establish a defense to a criminal charge or civil

claim against the lawyer based upon conduct in which the client was involved, or to

respond to allegations in any proceeding concerning the lawyer’s representation of the

client; or

(b)(6)(4) To to comply with the Rules of Professional Conduct or other lawthe law or

court order or when necessary to comply with these Rules.

lawyer(s) about the need for or availability of treatment for substance abuse or

psychological or emotional problems by members of the Utah State Bar serving on the

Lawyers Helping Lawyers Committee.

Comment

Draft: March 25, 2005

[1]

A fundamental principle in the client-lawyer relationship is that the lawyer

maintain confidentiality This Rule governs the disclosure by a lawyer of information

relating to the representation of a client during the lawyer’s representation of the client.

See Rule 1.18 for the lawyer’s duties with respect to information provided to the lawyer

by a prospective client, Rule 1.9(c)(2) for the lawyer’s duty not to reveal information

relating to the lawyer’s prior representation of a former client and Rules 1.8(b) and

1.9(c)(1) for the lawyer’s duties with respect to the use of such information to the

disadvantage of clients and former clients.

[2] A fundamental principle in the client-lawyer relationship is that, in the absence of

the client’s informed consent, the lawyer must not reveal information relating to the

representation. See Rule 1.0(e) for the definition of informed consent. This contributes

to the trust that is the hallmark of the client-lawyer relationship. The client is thereby

encouraged to seek legal assistance and to communicate fully and frankly with the

lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs

this information to represent the client effectively and, if necessary, to advise the client

to refrain from wrongful conduct. Almost without exception, clients come to lawyers in

order to determine their rights and what is, in the complex of laws and regulations,

deemed to be legal and correct. Based upon experience, lawyers know that almost all

clients follow the advice given, and the law is upheld.

[3] The principle of client-lawyer of confidentiality is given effect in two by related

bodies of law,: the attorney-client privilege in the law of evidence , the work-product

doctrine and the rule of confidentiality established in professional ethics. The attorney-

client privilege applies and work-product doctrine apply in judicial and other proceedings

in which a lawyer may be called as a witness or otherwise required to produce evidence

concerning a client. The rule of client-lawyer confidentiality applies in situations other

than those where evidence is sought from the lawyer through compulsion of law. The

confidentiality rule, for example, applies not merely only to matters communicated in

confidence by the client but also to all information relating to the representation,

whatever its source. A lawyer may not disclose such information except as authorized

or required by the Rules of Professional Conduct or other law. See also Scope.

Draft: March 25, 2005

[4]

Paragraph (a) prohibits a lawyer from revealing information relating to the

representation of a client. This prohibition also applies to disclosures by a lawyer that

do not in themselves reveal protected information but could reasonably lead to the

discovery of such information by a third person. A lawyer’s use of a hypothetical to

discuss issues relating to the representation is permissible so long as there is no

reasonable likelihood that the listener will be able to ascertain the identity of the client or

the situation involved.

Authorized Disclosure

[5]

A lawyer may disclose information Except to the extent that the client’s

instructions or special circumstances limit that authority, a lawyer is impliedly authorized

to make disclosures about a client when necessary in the proper representation of the

client. In litigation appropriate in carrying out the representation. In some situations, for

example, a lawyer may disclose information by admitting be impliedly authorized to

admit a fact that cannot properly be disputed, or in negotiation by makingor to make a

disclosure that facilitates a satisfactory conclusion to the matter. Lawyers in a firm may,

in the course of the firm's practice, disclose to each other information relating to a client

of the firm, unless the client has instructed that particular information be confined to

specified lawyers.

Disclosure Adverse to Client

The confidentiality rule is subject to limited exceptions. In becoming privy to

information about a client, a lawyer may foresee that the client intends serious and

perhaps irreparable harm to another person. To the extent a lawyer is prohibited from

making disclosure, the interests of the potential victim are sacrificed in favor of

preserving the client's confidences even though the client's purpose is wrongful. To the

extent a lawyer is required or permitted to disclose a client's purposes, the client may be

inhibited from revealing facts which would enable the lawyer to counsel against a

wrongful course of action. A rule governing disclosure of threatened harm thus involves

balancing the interests of one group of potential victims against those of another. On the

assumption that lawyers generally fulfill their duty to advise against the commission of

deliberately wrongful acts, the public is better protected if full disclosure by the client is

encouraged than if it is inhibited.

Draft: March 25, 2005

Generally speaking, information relating to the representation must be kept

confidential, as stated in paragraph (a). However, where the client is or has been

engaged in criminal or fraudulent conduct or the integrity of the lawyer's own conduct is

involved, the principle of confidentiality may have to yield, depending on the lawyer's

knowledge about and relationship to the conduct in question and the seriousness of that

conduct. Several situations must be distinguished.

First, the lawyer may not counsel or assist a client in conduct that is criminal or

100

fraudulent. See Rule 1.2(d). As noted in the Comment to that Rule, there can be

101

situations where the lawyer may have to reveal information relating to the

102

representation in order to avoid assisting a client's criminal or fraudulent conduct.

103

Paragraph 1.6(b)(4) permits doing so. Similarly, a lawyer has a duty under Rule

104

3.3(a)(4) not to use false or fabricated evidence. This duty is essentially a special

105

instance of the duty prescribed in Rule 1.2(d) to avoid assisting a client in criminal or

106

fraudulent conduct. Rule 1.6(b)(4) permits revealing information to the extent necessary

107

to comply with Rule 3.3(a). The same is true of compliance with Rule 4.1 concerning

108

truthfulness of a lawyer's own representations.

109

Second, the lawyer may have been innocently involved in past conduct by the client

110

that was criminal or fraudulent. In such a situation, the lawyer has not violated Rule

111

1.2(d), because to "counsel or assist" criminal or fraudulent conduct requires knowing

112

that the conduct is of that character. Even if the involvement was innocent, however, the

113

fact remains that the lawyer's professional services were made the instrument of the

114

client's crime or fraud. The lawyer, therefore, has a legitimate interest in being able to

115

rectify the consequences of such conduct and has the professional right, although not a

116

professional duty, to rectify the situation. Exercising that right may require revealing

117

information relating to the representation. Paragraph (b)(2) gives the lawyer

118

professional discretion to reveal such information to the extent necessary to accomplish

119

rectification.

120

Third, the lawyer may learn that a client intends prospective conduct that is criminal

121

or fraudulent. Inaction by the lawyer is not a violation of Rule 1.2(d), except in the

122

limited circumstances where failure to act constitutes assisting the client. See Comment

123

to Rule 1.2(d). However, the lawyer's knowledge of the client's purpose may enable the

Draft: March 25, 2005

124

lawyer to prevent commission of the prospective crime or fraud. If the prospective crime

125

or fraud is likely to result in substantial injury, the lawyer may feel a moral obligation to

126

take preventive action. When the threatened injury is grave, such as homicide or

127

serious bodily injury, the lawyer may have an obligation under tort or criminal law to take

128

reasonable preventive measures. Whether the lawyer's concern is based on moral or

129

legal considerations, the interest in preventing the harm may be more compelling than

130

the interest in preserving confidentiality of information relating to the client. As stated in

131

paragraph (b)(1), the lawyer has professional discretion to reveal information in order to

132

prevent substantial harm likely to result from a client's criminal or fraudulent act.

133

It is arguable that the lawyer should have a professional obligation to make a

134

disclosure in order to prevent homicide or serious bodily injury which the lawyer knows

135

is intended by a client. However, it is very difficult for a lawyer to "know" when such a

136

heinous purpose will actually be carried out, for the client may have a change of mind.

137

To require disclosure when the client intends such an act, at risk of disciplinary liability if

138

the assessment of the client's purpose turns out to be wrong, would be to impose a

139

penal risk that might interfere with the lawyer's resolution of an inherently difficult moral

140

dilemma.

141

The lawyer's exercise of discretion requires consideration of such factors as the

142

magnitude, proximity and likelihood of the contemplated wrong, the nature of the

143

lawyer's relationship with the client and with those who might be injured by the client,

144

the lawyer's own involvement in the transaction and factors that may extenuate the

145

conduct in question. In any case, a disclosure adverse to the client's interest should be

146

no greater than the lawyer believes necessary to the purpose. A lawyer's decision not to

147

take preventive action permitted by paragraph (b)(1) does not violate this Rule.

148

The term "another" in paragraph (b)(1) includes a person, organization and government.

149

Paragraph (b)(2) does not apply where a lawyer is employed after a crime of fraud

150

has been committed to represent the client in matters ensuing therefrom.

151

Dispute Concerning Lawyer's Conduct

152

If the lawyer is charged with wrongdoing in which the client's conduct is implicated,

153

the rule of confidentiality should not prevent the lawyer from defending himself.

Draft: March 25, 2005

154

[6]

Although the public interest is usually best served by a strict rule requiring

155

lawyers to preserve the confidentiality of information relating to the representation of

156

their clients, the confidentiality rule is subject to limited exceptions. Paragraph (b)(1)

157

recognizes the overriding value of life and physical integrity and permits disclosure

158

reasonably necessary to prevent reasonably certain death or substantial bodily harm.

159

Such harm is reasonably certain to occur if it will be suffered imminently or if there is a

160

present and substantial threat that a person will suffer such harm at a later date if the

161

lawyer fails to take action necessary to eliminate the threat. Thus, a lawyer who knows

162

that a client has accidentally discharged toxic waste into a town’s water supply may

163

reveal this information to the authorities if there is a present and substantial risk that a

164

person who drinks the water will contract a life-threatening or debilitating disease and

165

the lawyer’s disclosure is necessary to eliminate the threat or reduce the number of

166

victims.

167

[7] Paragraph (b)(2) is a limited exception to the rule of confidentiality that permits

168

the lawyer to reveal information to the extent necessary to enable affected persons or

169

appropriate authorities to prevent the client from committing a crime or fraud, as defined

170

in Rule 1.0(d), that is reasonably certain to result in substantial injury to the financial or

171

property interests of another and in furtherance of which the client has used or is using

172

the lawyer’s services. The client can, of course, prevent such disclosure by refraining

173

from the wrongful conduct. Although paragraph (b)(2) does not require the lawyer to

174

reveal the client’s misconduct, the lawyer may not counsel or assist the client in conduct

175

the lawyer knows is criminal or fraudulent. See Rule 1.2(d). See also Rule 1.16 with

176

respect to the lawyer’s obligation or right to withdraw from the representation of the

177

client in such circumstances, and Rule 1.13(c) which permits the lawyer, where the

178

client is an organization, to reveal information relating to the representation in limited

179

circumstances.

180

[8] Paragraph (b)(3) addresses the situation in which the lawyer does not learn of

181

the client’s crime or fraud until after it has been consummated. Although the client no

182

longer has the option of preventing disclosure by refraining from the wrongful conduct,

183

there will be situations in which the loss suffered by the affected person can be

184

prevented, rectified or mitigated. In such situations, the lawyer may disclose information

Draft: March 25, 2005

185

relating to the representation to the extent necessary to enable the affected persons to

186

prevent or mitigate reasonably certain losses or to attempt to recoup their losses.

187

Paragraph (b)(3) does not apply when a person who has committed a crime or fraud

188

thereafter employs a lawyer for representation concerning that offense.

189

[9] A lawyer’s confidentiality obligations do not preclude a lawyer from securing

190

confidential legal advice about the lawyer’s personal responsibility to comply with these

191

Rules. In most situations, disclosing information to secure such advice will be impliedly

192

authorized for the lawyer to carry out the representation. Even when the disclosure is

193

not impliedly authorized, paragraph (b)(4) permits such disclosure because of the

194

importance of a lawyer’s compliance with the Rules of Professional Conduct.

195

[10] Where a legal claim or disciplinary charge alleges complicity of the lawyer in a

196

client’s conduct or other misconduct of the lawyer involving representation of the client,

197

the lawyer may respond to the extent the lawyer reasonably believes necessary to

198

establish a defense. The same is true with respect to a claim involving the conduct or

199

representation of a former client.

200

professional , disciplinary or other proceeding and can be based on a wrong allegedly

201

committed by the lawyer against the client or on a wrong alleged by a third person, for

202

example, a person claiming to have been defrauded by the lawyer and client acting

203

together. A lawyer entitled to a fee is not prevented by the rule of confidentiality from

204

proving the services rendered in an action to collect it.

205

Disclosures Otherwise Required or Authorized

206

The attorney-client privilege is defined differently in various jurisdictions. If a lawyer

207

is called as a witness to give testimony concerning a client, absent waiver by the client,

208

Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable.

Such a charge can arise in a civil, criminal or

209

The Rules of Professional Conduct in various circumstances permit or require a

210

lawyer to disclose information relating to the representation. See Rules 1.13, 2.2, 2.3,

211

3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by

212

other provisions of law to give information about a client. Whether another provision of

213

law supersedes Rule 1.6 is a matter of interpretation beyond the scope of these Rules,

214

but a presumption should exist against such a supersession.

215

Use of Information

Draft: March 25, 2005

216

A lawyer may not make use of information relating to the representation in a manner

217

disadvantageous to the client. The duty of confidentiality continues after the client-

218

lawyer relationship has terminated. See Rule 1.9.

219

The lawyer’s right to respond arises when an assertion of such complicity has been

220

made. Paragraph (b)(3) does not require the lawyer to await the commencement of an

221

action or proceeding that charges such complicity, so that the defense may be

222

established by responding directly to a third party who has made such an assertion.

223

The right to defend also applies, of course, where a proceeding has been commenced.

224

[11] A lawyer entitled to a fee is permitted by paragraph (b)(5) to prove the services

225

rendered in an action to collect it. This aspect of the rule expresses the principle that

226

the beneficiary of a fiduciary relationship may not exploit it to the detriment of the

227

fiduciary.

228

[12]

Other law may require that a lawyer disclose information about a client.

229

Whether such a law supersedes Rule 1.6 is a question of law beyond the scope of

230

these Rules. When disclosure of information relating to the representation appears to

231

be required by other law, the lawyer must discuss the matter with the client to the extent

232

required by Rule 1.4. If, however, the other law supersedes this Rule and requires

233

disclosure, paragraph (b)(6) permits the lawyer to make such disclosures as are

234

necessary to comply with the law.

235

[13] A lawyer may be ordered to reveal information relating to the representation of

236

a client by a court or by another tribunal or governmental entity claiming authority

237

pursuant to other law to compel the disclosure. Absent informed consent of the client to

238

do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that

239

the order is not authorized by other law or that the information sought is protected

240

against disclosure by the attorney-client privilege or other applicable law. In the event

241

of an adverse ruling, the lawyer must consult with the client about the possibility of

242

appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph

243

(b)(6) permits the lawyer to comply with the court’s order.

244

[14]

Paragraph (b) permits disclosure only to the extent the lawyer reasonably

245

believes the disclosure is necessary to accomplish one of the purposes specified.

246

Where practicable, the lawyer should first seek to persuade the client to take suitable

Draft: March 25, 2005

247

action to obviate the need for disclosure. In any case, a disclosure adverse to the

248

client’s interest should be no greater than the lawyer reasonably believes necessary to

249

accomplish the purpose. If the disclosure will be made in connection with a judicial

250

proceeding, the disclosure should be made in a manner that limits access to the

251

information to the tribunal or other persons having a need to know it and appropriate

252

protective orders or other arrangements should be sought by the lawyer to the fullest

253

extent practicable.

254

[15] Paragraph (b) permits but does not require the disclosure of information relating

255

to a client’s representation to accomplish the purposes specified in paragraphs (b)(1)

256

through (b)(6). In exercising the discretion conferred by this Rule, the lawyer may

257

consider such factors as the nature of the lawyer’s relationship with the client and with

258

those who might be injured by the client, the lawyer’s own involvement in the

259

transaction and factors that may extenuate the conduct in question. A lawyer’s decision

260

not to disclose as permitted by paragraph (b) does not violate this Rule. Disclosure may

261

be required, however, by other rules. Some rules require disclosure only if such

262

disclosure would be permitted by paragraph (b). See Rules 1.2(d), 4.1(b), 8.1 and 8.3.

263

Rule 3.3, on the other hand, requires disclosure in some circumstances regardless of

264

whether such disclosure is permitted by this Rule. See Rule 3.3(c).

265

Acting Competently to Preserve Confidentiality

266

[16]

A lawyer must act competently to safeguard information relating to the

267

representation of a client against inadvertent or unauthorized disclosure by the lawyer

268

or other persons who are participating in the representation of the client or who are

269

subject to the lawyer’s supervision. See Rules 1.1, 5.1 and 5.3.

270

[17] When transmitting a communication that includes information relating to the

271

representation of a client, the lawyer must take reasonable precautions to prevent the

272

information from coming into the hands of unintended recipients. This duty, however,

273

does not require that the lawyer use special security measures if the method of

274

communication affords a reasonable expectation of privacy. Special circumstances,

275

however, may warrant special precautions. Factors to be considered in determining the

276

reasonableness of the lawyer’s expectation of confidentiality include the sensitivity of

277

the information and the extent to which the privacy of the communication is protected by

Draft: March 25, 2005

278

law or by a confidentiality agreement. A client may require the lawyer to implement

279

special security measures not required by this Rule or may give informed consent to the

280

use of a means of communication that would otherwise be prohibited by this Rule.

281

Former Client

282

[18] The duty of confidentiality continues after the client-lawyer relationship has

283

terminated. See Rule 1.9(c)(2). See Rule 1.9(c)(1) for the prohibition against using such

284

information to the disadvantage of the former client.

285

[19]

Paragraph (dc) is an addition to ABA Model Rule 1.6 and provides for

286

confidentiality of information between lawyers providing assistance to other lawyers

287

under the Utah State Bar program, Lawyers Helping Lawyers.

288

Draft: March 25, 2005

Rule 1.7. Conflict of Iinterest: general rule Current Clients.

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the

representation involves a concurrent conflict of interest. A concurrent conflict of interest

exists if:

(a)(1) The representation of one client will be directly adverse to another client; or

(a)(2) There is a significant risk that the representation of one or more clients will be

materially limited by the lawyer’s responsibilities to another client, a former client or a

third person or by a personal interest of the lawyer.

(b)

Notwithstanding the existence of a concurrent conflict of interest under

paragraph (a), a lawyer may represent a client if:

(b)(1)

the lawyer reasonably believes that the lawyer will be able to provide

competent and diligent representation to each affected client;

(b)(2) the representation is not prohibited by law;

(b)(3) the representation does not involve the assertion of a claim by one client

against another client represented by the lawyer in the same litigation or other

proceeding before a tribunal; and

(b)(4) each affected client gives informed consent, confirmed in writing.

Comment

General Principles

[1]

Loyalty and independent judgment are essential elements in the lawyer’s

relationship to a client. Concurrent conflicts of interest can arise from the lawyer’s

responsibilities to another client, a former client or a third person or from the lawyer’s

own interests. For specific rules regarding certain concurrent conflicts of interest, see

Rule 1.8. For former client conflicts of interest, see Rule 1.9. For conflicts of interest

involving prospective clients, see Rule 1.18. For definitions of “informed consent” and

“confirmed in writing,” see Rules 1.0(e) and (b).

[2] Resolution of a conflict of interest problem under this Rule requires the lawyer

to:1) clearly identify the client or clients; 2) determine whether a conflict of interest

exists; 3) decide whether the representation may be undertaken despite the existence

of a conflict, i.e., whether the conflict is consentable; and, 4) if so, consult with the

clients affected under paragraph (a)(1) and obtain their informed consent, confirmed in

Draft: March 25, 2005

writing. The clients affected under paragraph (a)(1) include both of the clients referred

to in paragraph (a)(1) and the one or more clients whose representation might be

materially limited under paragraph (a)(2).

[3] A conflict of interest may exist before representation is undertaken, in which

event the representation must be declined, unless the lawyer obtains the informed

consent of each client under the conditions of paragraph (b). To determine whether a

conflict of interest exists, a lawyer should adopt reasonable procedures, appropriate for

the size and type of firm and practice, to determine in both litigation and nonlitigation

matters the persons and issues involved. See also Comment to Rule 5.1. Ignorance

caused by a failure to institute such procedures will not excuse a lawyer’s violation of

this Rule.

established, is continuing, see Comment to Rule 1.3 and Scope.

As to whether a client-lawyer relationship exists or, having once been

[4] If a conflict arises after representation has been undertaken, the lawyer ordinarily

must withdraw from the representation, unless the lawyer has obtained the informed

consent of the client under the conditions of paragraph (b). See Rule 1.16. Where

more than one client is involved, whether the lawyer may continue to represent any of

the clients is determined both by the lawyer’s ability to comply with duties owed to the

former client and by the lawyer’s ability to represent adequately the remaining client or

clients, given the lawyer’s duties to the former client. See Rule 1.9.

Comments [5] and [29].

[4a]