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Rule 1.0. Terminology.

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

(b) "Confirmed in writing," whenused in reference to the informed consent of a person, denotes informed consentthat is given in writing by the person or a writing that a lawyer promptlytransmits to the person confirming an oral informed consent. See paragraph (f)for the definition of "informed consent." If it is not feasible toobtain 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.

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

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

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

(f) "Informed consent" denotesthe agreement by a person to a proposed course of conduct after the lawyer hascommunicated adequate information and explanation about the material risks ofand reasonably available alternatives to the proposed course of conduct.

(g) "Knowingly,""known" or "knows" denotes actual knowledge of the fact inquestion. A person's knowledge may be inferred from circumstances.

(h) ?Lawyer? includes lawyers licensed topractice law in any jurisdiction of the United States, foreign legalconsultants, and licensed paralegal practitioners, insofar as the licensedparalegal practitioner is authorized in Utah Special Practice Rule 14-802, unless provided otherwise.

(i) ?LegalProfessional? includes lawyers and licensed paralegal practitioners in thepractice areas for which licensed paralegal practitioners are authorized topractice in Utah Special Practice Rule 14-802.

(j) ?Licensed paralegal practitioner?denotes a person authorized by the Utah Supreme Court to provide legalrepresentation as authorized in Utah Special Practice Rule 14-802.

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

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

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

(n) "Reasonably should know" whenused in reference to a lawyer denotes that a lawyer of reasonable prudence andcompetence would ascertain the matter in question.

(o) ?Reckless? or ?recklessly? denotes theconscious disregard of a duty that a lawyer is or reasonably should be awareof, or a conscious indifference to the truth.

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

(q) "Substantial" when used inreference to degree or extent denotes a material matter of clear and weightyimportance.

(r) "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. Alegislative body, administrative agency or other body acts in an adjudicativecapacity when a neutral official, after the presentation of evidence or legalargument by a party or parties, will render a binding legal judgment directlyaffecting a party's interests in a particular matter.

(s) "Writing" or"written" denotes a tangible or electronic record of a communicationor representation, including handwriting, typewriting, printing, photostating, photography, audio or video recording andelectronic communications. A "signed" writing includes an electronicsound, symbol or process attached to or logically associated with a writing andexecuted or adopted by a person with the intent to sign the writing.

Comment

Confirmed in Writing

[1] If it isnot feasible to obtain or transmit a written confirmation at the time theclient gives informed consent, then the lawyer must obtain or transmit itwithin a reasonable time thereafter. If a lawyer has obtained a client'sinformed consent, the lawyer may act in reliance on that consent so long as itis confirmed in writing within a reasonable time thereafter.

Firm

[2] Whethertwo or more lawyers constitute a firm within paragraph (d) can depend on thespecific facts. For example, two practitioners who share office space andoccasionally consult or assist each other ordinarily would not be regarded asconstituting a firm. However, if they present themselves to the public in a waythat suggests that they are a firm or conduct themselves as a firm, they shouldbe regarded as a firm for purposes of these Rules. The terms of any formalagreement between associated lawyers are relevant in determining whether theyare a firm, as is the fact that they have mutual access to informationconcerning the clients they serve. Furthermore, it is relevant in doubtfulcases to consider the underlying purpose of the rule that is involved. A groupof lawyers could be regarded as a firm for purposes of the rule that the samelawyer should not represent opposing parties in litigation, while it might notbe so regarded for purposes of the rule that information acquired by one lawyeris attributed to another.

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

[4] Similarquestions can also arise with respect to lawyers in legal aid and legalservices organizations. Depending upon the structure of the organization, theentire organization or different components of it may constitute a firm orfirms for purposes of these Rules.

Fraud

[5] When usedin these Rules, the terms "fraud" or "fraudulent" refer toconduct that is characterized as such under the substantive or procedural lawof the applicable jurisdiction and has a purpose to deceive. This does notinclude merely negligent misrepresentation or negligent failure to appriseanother of relevant information. For purposes of these Rules, it is notnecessary that anyone has suffered damages or relied on the misrepresentationor failure to inform.

Informed Consent

[6] Many ofthe Rules of Professional Conduct require the lawyer to obtain the informedconsent of a client or other person (e.g., a former client or, under certaincircumstances, a prospective client) before accepting or continuingrepresentation or pursuing a course of conduct. See, e.g,Rules 1.2(c), 1.6(a) and 1.7(b). Thecommunication necessary to obtain such consent will vary according to the ruleinvolved and the circumstances giving rise to the need to obtain informedconsent. The lawyer must make reasonable efforts to ensure that the client orother person possesses information reasonably adequate to make an informeddecision. Ordinarily, this will require communication that includes adisclosure of the facts and circumstances giving rise to the situation, anyexplanation reasonably necessary to inform the client or other person of thematerial advantages and disadvantages of the proposed course of conduct and adiscussion of the client's or other person's options and alternatives. In somecircumstances it may be appropriate for a lawyer to advise a client or otherperson to seek the advice of other counsel. A lawyer need not inform a clientor other person of facts or implications already known to the client or otherperson; nevertheless, a lawyer who does not personally inform the client orother person assumes the risk that the client or other person is inadequatelyinformed and the consent is invalid. In determining whether the information andexplanation provided are reasonably adequate, relevant factors include whetherthe client or other person is experienced in legal matters generally and inmaking decisions of the type involved, and whether the client or other personis independently represented by other counsel in giving the consent. Normally,such persons need less information and explanation than others, and generally aclient or other person who is independently represented by other counsel ingiving the consent should be assumed to have given informed consent. A licensed paralegal practitioner may be required to advisea client or other person to seek the advice of a lawyer licensed to providelegal services without restrictions or limitations.

[7] Obtaininginformed consent will usually require an affirmative response by the client orother person. In general, a lawyer may not assume consent from a client's orother person's silence. Consent may be inferred, however, from the conduct of aclient or other person who has reasonably adequate information about thematter. A number of rules require that a person's consent be confirmed inwriting. See, e.g., Rules 1.7(b) and 1.9(a). For adefinition of "writing" and "confirmed in writing," seeparagraphs (r) and (b). Other rules require that a client's consent be obtainedin a writing signed by the client. See, e.g., Rules 1.8(a) and (g).For a definition of "signed," see paragraph (r).

Screened

[8] Thisdefinition applies to situations where screening of a personally disqualifiedlawyer is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.

[9] Thepurpose of screening is to assure the affected parties that confidentialinformation known by the personally disqualified lawyer remains protected. Thepersonally disqualified lawyer should acknowledge the obligation not tocommunicate with any of the other lawyers in the firm with respect to thematter. Similarly, other lawyers in the firm who are working on the mattershould be informed that the screening is in place and that they may notcommunicate with the personally disqualified lawyer with respect to the matter.Additional screening measures that are appropriate for the particular matterwill depend on the circumstances. To implement, reinforce and remind allaffected lawyers of the presence of the screening, it may be appropriate forthe firm to undertake such procedures as a written undertaking by the screenedlawyer to avoid any communication with other firm personnel and any contactwith any firm files or other information, including information in electronicform, relating to the matter, written notice and instructions to all other firmpersonnel forbidding any communication with the screened lawyer relating to thematter, denial of access by the screened lawyer to firm files or otherinformation, including information in electronic form, relating to the matterand periodic reminders of the screen to the screened lawyer and all other firmpersonnel.

[10] In orderto be effective, screening measures must be implemented as soon as practicalafter a lawyer or law firm knows or reasonably should know that there is a needfor screening.

[10a] Thedefinitions of ?consult? and ?consultation,? while deleted from the ABA ModelRule 1.0, have been retained in the Utah Rule because ?consult? and?consultation? are used in the rules. See, e.g., Rules 1.2, 1.4, 1.14, and 1.18.   

 

Effective May 1, 2021.