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Rule 1.8. Conflict of Interest: Current Clients: Specific Rules.

(a) A lawyer shall not enter intoa business transaction with a client or knowingly acquire an ownership,possessory, security or other pecuniary interest adverse to a client unless:

(a)(1) the transaction and terms on whichthe lawyer acquires the interest are fair and reasonable to the client and arefully disclosed and transmitted in writing in a manner that can be reasonablyunderstood by the client;

(a)(2) the client is advised in writingof the desirability of seeking and is given a reasonable opportunity to seekthe advice of independent legal counsel on the transaction; and

(a)(3) the client gives informed consent,in a writing signed by the client, to the essential terms of the transactionand the lawyer?s role in the transaction, including whether the lawyer isrepresenting the client in the transaction.

(b) A lawyer shall not useinformation relating to representation of a client to the disadvantage of theclient unless the client gives informed consent, except as permitted orrequired by these Rules.

(c) A lawyer shall not solicitany substantial gift from a client, including a testamentary gift or prepare onbehalf of a client an instrument giving the lawyer or a person related to thelawyer any substantial gift unless the lawyer or other recipient of the gift isrelated to the client. For purpose of this paragraph, related persons include aspouse, child, grandchild, parent, grandparent or other relative or individualwith whom the lawyer or the client maintains a close, familial relationship.

(d) Prior to the conclusion ofrepresentation of a client, a lawyer shall not make or negotiate an agreementgiving the lawyer literary or media rights to a portrayal or an account basedin substantial part on information relating to the representation.

(e) A lawyer shall not providefinancial assistance to a client in connection with pending or contemplatedlitigation, except that:

(e)(1) a lawyer may advance court costsand expenses of litigation, the repayment of which may be contingent on theoutcome of the matter; and

(e)(2) a lawyer representing an indigentclient may pay court costs and expenses of litigation, and minor expensesreasonably connected to the litigation, on behalf of the client.

(f) A lawyer shall not acceptcompensation for representing a client from one other than the client unless:

(f)(1) the client gives informed consent;

(f)(2) there is no interference with thelawyer's independence of professional judgment or with the client-lawyerrelationship; and

(f)(3) information relating torepresentation of a client is protected as required by Rule 1.6.

(g) A lawyer who represents twoor more clients shall not participate in making an aggregate settlement of theclaims of or against the clients or in a criminal case an aggregated agreementas to guilty or nolo contendere pleas, unless each client gives informedconsent, in writing signed by the client. The lawyer?s disclosure shall includethe existence and nature of all the claims or pleas involved and of theparticipation of each person in the settlement.

(h) A lawyer shall not:

(h)(1) make an agreement prospectivelylimiting the lawyer's liability to a client for malpractice unless the clientis independently represented in making the agreement; or

(h)(2) settle a claim or potential claimfor such liability with an unrepresented client or former client unless thatperson is advised in writing of the desirability of seeking and is given areasonable opportunity to seek the advice of independent legal counsel inconnection therewith.

(i) Alawyer shall not acquire a proprietary interest in the cause of action orsubject matter of litigation the lawyer is conducting for a client, except thatthe lawyer may:

(i)(1) acquire a lien authorized by law to secure the lawyer's feeor expenses; and

(i)(2) contract with a client for a reasonable contingent fee in acivil case.

(j) A lawyer shall not engage insexual relations with a client that exploit thelawyer-client relationship. For the purposes of this Rule:

(j)(1) "sexual relations" meanssexual intercourse or the touching of an intimate part of another person forthe purpose of sexual arousal, gratification, or abuse; and

(j)(2) except for a spousal relationshipor a sexual relationship that existed at the commencement of the lawyer-clientrelationship, sexual relations between the lawyer and the client shall bepresumed to be exploitive. This presumption is rebuttable.

(k) While lawyers are associatedin a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all ofthem.


Business Transactions Between Client and Lawyer

[1] A lawyer?s legal skill andtraining, together with the relationship of trust and confidence between lawyerand client, create the possibility of overreaching when the lawyer participatesin a business, property or financial transaction with a client, for example, aloan or sales transaction or a lawyer investment on behalf of a client. Therequirements of paragraph (a) must be met even when the transaction is notclosely related to the subject matter of the representation, as when a lawyerdrafting a will for a client learns that the client needs money for unrelatedexpenses and offers to make a loan to the client. The Rule applies to lawyersengaged in the sale of goods or services related to the practice of law, forexample, the sale of title insurance or investment services to existing clientsof the lawyer?s legal practice. See Rule 5.7. It also applies to lawyerspurchasing property from estates they represent. It does not apply to ordinaryfee arrangements between client and lawyer, which are governed by Rule 1.5,although its requirements must be met when the lawyer accepts an interest inthe client?s business or other nonmonetary property as payment of all or partof a fee. In addition, the Rule does not apply to standard commercialtransactions between the lawyer and the client for products or services that theclient generally markets to others, for example, banking or brokerage services,medical services, products manufactured or distributed by the client, andutilities? services. In such transactions, the lawyer has no advantage indealing with the client, and the restrictions in paragraph (a) are unnecessaryand impracticable.

[2] Paragraph (a)(1) requires that the transaction itself be fair to theclient and that its essential terms be communicated to the client, in writing,in a manner that can be reasonably understood. Paragraph (a)(2)requires that the client also be advised, in writing, of the desirability ofseeking the advice of independent legal counsel. It also requires that theclient be given a reasonable opportunity to obtain such advice. Paragraph(a)(3) requires that the lawyer obtain the client?s informed consent, in awriting signed by the client, both to the essential terms of the transactionand to the lawyer?s role. When necessary, the lawyer should discuss both thematerial risks of the proposed transaction, including any risk presented by thelawyer?s involvement, and the existence of reasonablyavailable alternatives and should explain why the advice of independent legalcounsel is desirable. See Rule 1.0(f) (definition of informed consent).

[3] The risk to a client isgreatest when the client expects the lawyer to represent the client in thetransaction itself or when the lawyer?s financial interest otherwise poses asignificant risk that the lawyer?s representation of the client will be materiallylimited by the lawyer?s financial interest in the transaction. Here thelawyer?s role requires that the lawyer must comply, not only with therequirements of paragraph (a), but also with the requirements of Rule 1.7.Under that Rule, the lawyer must disclose the risks associated with thelawyer?s dual role as both legal adviser and participant in the transaction,such as the risk that the lawyer will structure the transaction or give legaladvice in a way that favors the lawyer?s interests at the expense of theclient. Moreover, the lawyer must obtain the client?s informed consent. In somecases, the lawyer?s interest may be such that Rule 1.7 will preclude the lawyerfrom seeking the client?s consent to the transaction.

[4] If the client is independentlyrepresented in the transaction, paragraph (a)(2) of this Rule is inapplicable,and the paragraph (a)(1) requirement for full disclosure is satisfied either bya written disclosure by the lawyer involved in the transaction or by theclient?s independent counsel. The fact that the client was independentlyrepresented in the transaction is relevant in determining whether the agreementwas fair and reasonable to the client as paragraph (a)(1)further requires.

Use of Information Related toRepresentation

[5] Use of information relatingto the representation to the disadvantage of the client violates the lawyer?sduty of loyalty. Paragraph (b) applies when the information is used to benefiteither the lawyer or a third person, such as another client or businessassociate of the lawyer. For example, if a lawyer learns that a client intendsto purchase and develop several parcels of land, the lawyer may not use thatinformation to purchase one of the parcels in competition with the client or torecommend that another client make such a purchase. The Rule does not prohibituses that do not disadvantage the client. For example, a lawyer who learns agovernment agency?s interpretation of trade legislation during therepresentation of one client may properly use that information to benefit otherclients. Paragraph (b) prohibits disadvantageous use of client informationunless the client gives informed consent, except as permitted or required bythese Rules. See Rules 1.2(d), 1.6, 1.9(c), 3.3, 4.1(b), 8.1 and 8.3.

Gifts to Lawyers

[6] A lawyer may accept a giftfrom a client, if the transaction meets general standards of fairness. Forexample, a simple gift such as a present given at a holiday or as a token ofappreciation is permitted. If a client offers the lawyer a more substantialgift, paragraph (c) does not prohibit the lawyer from accepting it, althoughsuch a gift may be voidable by the client under the doctrine of undueinfluence, which treats client gifts as presumptively fraudulent. In any event,due to concerns about overreaching and imposition on clients, a lawyer may notsuggest that a substantial gift be made to the lawyer or for the lawyer?sbenefit, except where the lawyer is related to the client as set forth inparagraph (c).

[7] If effectuation of asubstantial gift requires preparing a legal instrument such as a will orconveyance the client should have the detached advice that another lawyer canprovide. The sole exception to this Rule is where the client is a relative ofthe donee.

[8] This Rule does not prohibit alawyer from seeking to have the lawyer or a partner or associate of the lawyernamed as executor of the client?s estate or to another potentially lucrativefiduciary position. Nevertheless, such appointments will be subject to the generalconflict of interest provision in Rule 1.7 when there is a significant riskthat the lawyer?s interest in obtaining the appointment will materially limitthe lawyer?s independent professional judgment in advising the clientconcerning the choice of an executor or other fiduciary. In obtaining theclient?s informed consent to the conflict, the lawyer should advise the clientconcerning the nature and extent of the lawyer?s financial interest in theappointment, as well as the availability of alternative candidates for theposition.

Literary Rights

[9] An agreement by which alawyer acquires literary or media rights concerning theconduct of the representation creates a conflict between the interestsof the client and the personal interests of the lawyer. Measures suitable inthe representation of the client may detract from the publication value of anaccount of the representation. Paragraph (d) does not prohibit a lawyerrepresenting a client in a transaction concerning literary property fromagreeing that the lawyer's fee shall consist of a share in ownership in theproperty, if the arrangement conforms to Rule 1.5.

Financial Assistance

[10] Lawyers may not subsidizelawsuits or administrative proceedings brought on behalf of their clients,including making or guaranteeing loans to their clients for living expenses,because to do so would encourage clients to pursue lawsuits that might nototherwise be brought and because such assistance gives lawyers too great afinancial stake in the litigation. These dangers do not warrant a prohibitionon a lawyer lending a client court costs and litigation expenses, including theexpenses of medical examination and the costs of obtaining and presentingevidence, because these advances are virtually indistinguishable fromcontingent fees and help ensure access to the courts. Similarly, an exceptionallowing lawyers representing indigent clients to pay court costs andlitigation expenses and minor sums reasonably connected to the litigation, suchas the cost of maintaining nominal basic local telephone service or providingbus passes to enable the indigent client to have means of contact with thelawyer during litigation, regardless of whether these funds will be repaid, iswarranted.

[10a] Relative to the ABA ModelRule, Utah Rule 1.8(e)(2) broadens the scope of directsupport that a lawyer may provide to indigent clients to cover minor expensesreasonably connected to the litigation. This would include, for example,financial assistance in providing transportation, communications or lodgingthat would be required or desirable to assist the indigent client in the courseof the litigation.

Person Payingfor a Lawyer?s Services

[11] Lawyers are frequently askedto represent a client under circumstances in which a third person willcompensate the lawyer, in whole or in part. The third person might be arelative or friend, an indemnitor (such as a liability insurance company) or aco-client (such as a corporation sued along with one or more of its employees).Because third-party payers frequently have interests that differ from those ofthe client, including interests in minimizing the amount spent on therepresentation and in learning how the representation is progressing, lawyersare prohibited from accepting or continuing such representations unless thelawyer determines that there will be no interference with the lawyer?sindependent professional judgment and there is informed consent from theclient. See also Rule 5.4(c) (prohibiting interference with a lawyer?sprofessional judgment by one who recommends, employs or pays the lawyer torender legal services for another).

[12] Sometimes, it will besufficient for the lawyer to obtain the client?s informed consent regarding thefact of the payment and the identity of the third-party payer. If, however, thefee arrangement creates a conflict of interest for the lawyer, then the lawyermust comply with Rule. 1.7. The lawyer must also conform to the requirements ofRule 1.6 concerning confidentiality. Under Rule 1.7(a), a conflict of interestexists if there is significant risk that the lawyer?s representation of theclient will be materially limited by the lawyer?s own interest in the feearrangement or by the lawyer?s responsibilities to the third-party payer (forexample, when the third-party payer is a co-client). Under Rule 1.7(b), thelawyer may accept or continue the representation with the informed consent ofeach affected client, unless the conflict is nonconsentableunder that paragraph. Under Rule 1.7(b), the informed consent must be confirmedin writing.

Aggregate Settlements

[13] Differences in willingnessto make or accept an offer of settlement are among the risks of commonrepresentation of multiple clients by a single lawyer. Under Rule 1.7, this isone of the risks that should be discussed before undertaking therepresentation, as part of the process of obtaining the clients? informedconsent. In addition, Rule 1.2(a) protects each client?s right to have thefinal say in deciding whether to accept or reject an offer of settlement and indeciding whether to enter a guilty or nolo contendere plea in a criminal case.The rule stated in this paragraph is a corollary of both these Rules andprovides that, before any settlement offer or plea bargain is made or acceptedon behalf of multiple clients, the lawyer must inform each of them about allthe material terms of the settlement, including what the other clients willreceive or pay if the settlement or plea offer is accepted. See also Rule1.0(f) (definition of informed consent). Lawyers representing a class ofplaintiffs or defendants, or those proceeding derivatively, may not have a fullclient-lawyer relationship with each member of the class; nevertheless, suchlawyers must comply with applicable rules regulating notification of classmembers and other procedural requirements designed to ensure adequateprotection of the entire class.

Limiting Liability and SettlingMalpractice Claims

[14] Agreements prospectivelylimiting a lawyer?s liability for malpractice are prohibited unless the clientis independently represented in making the agreement because they are likely toundermine competent and diligent representation. Also, many clients are unableto evaluate the desirability of making such an agreement before a dispute hasarisen, particularly if they are then represented by the lawyer seeking theagreement. This paragraph does not, however, prohibit a lawyer from enteringinto an agreement with the client to arbitrate legal malpractice claims,provided such agreements are enforceable and the client is fully informed ofthe scope and effect of the agreement. Nor does this paragraph limit theability of lawyers to practice in the form of a limited-liability entity, wherepermitted by law, provided that each lawyer remains personally liable to theclient for his or her own conduct and the firm complies with any conditionsrequired by law, such as provisions requiring client notification ormaintenance of adequate liability insurance. Nor does it prohibit an agreementin accordance with Rule 1.2 that defines the scope of the representation,although a definition of scope that makes the obligations of representationillusory will amount to an attempt to limit liability.

[15] Agreements settling a claimor a potential claim for malpractice are not prohibited by this Rule.Nevertheless, in view of the danger that a lawyer will take unfair advantage ofan unrepresented client or former client, the lawyer must first advise such aperson in writing of the appropriateness of independent representation inconnection with such a settlement. In addition, the lawyer must give the clientor former client a reasonable opportunity to find and consult independentcounsel.

Acquiring Proprietary Interest inLitigation

[16] Paragraph (i) states the traditional general rule that lawyers areprohibited from acquiring a proprietary interest in litigation. Like paragraph(e), the general rule has its basis in common law champertyand maintenance and is designed to avoid giving the lawyer too great an interestin the representation. In addition, when the lawyer acquires an ownershipinterest in the subject of the representation, it will be more difficult for aclient to discharge the lawyer if the client so desires. The Rule is subject tospecific exceptions developed in decisional law and continued in these Rules.The exception for certain advances of the costs of litigation is set forth inparagraph (e). In addition, paragraph (i) sets forthexceptions for liens authorized by law to secure the lawyer?s fees or expensesand contracts for reasonable contingent fees. The law of each jurisdictiondetermines which liens are authorized by law. These may include liens grantedby statute, liens originating in common law and liens acquired by contract withthe client. When a lawyer acquires by contract a security interest in propertyother than that recovered through the lawyer?s efforts in the litigation, suchan acquisition is a business or financial transaction with a client and isgoverned by the requirements of paragraph (a). Contracts for contingent fees incivil cases are governed by Rule 1.5.

Client-Lawyer SexualRelationships

[17] The relationship betweenlawyer and client is a fiduciary one in which the lawyer occupies the highestposition of trust and confidence. The relationship is almost always unequal;thus, a sexual relationship between lawyer and client can involve unfairexploitation of the lawyer?s fiduciary role, in violation of the lawyer?s basicethical obligation not to use the trust of the client to the client?sdisadvantage. In addition, such a relationship presents a significant dangerthat, because of the lawyer?s emotional involvement, the lawyer will be unableto represent the client without impairment of the exercise of independentprofessional judgment. Moreover, a blurred line between the professional andpersonal relationships may make it difficult to predict to what extent clientconfidences will be protected by the attorney-client evidentiary privilege,since client confidences are protected by privilege only when they are impartedin the context of the client-lawyer relationship. Because of the significantdanger of harm to client interests and because the client?s own emotionalinvolvement renders it unlikely that the client could give adequate informedconsent, this Rule prohibits the lawyer from having sexual relations with aclient regardless of whether the relationship is consensual and regardless ofthe absence of prejudice to the client.

[18] Spousal relationships andsexual relationships that predate the client-lawyer relationship are notprohibited. Issues relating to the exploitation of the fiduciary relationshipand client dependency are diminished when the sexual relationship existed priorto the commencement of the client-lawyer relationship. However, beforeproceeding with the representation in these circumstances, the lawyer shouldconsider whether the lawyer?s ability to represent the client will bematerially limited by the relationship. See Rule 1.7(a)(2).

[19] When the client is anorganization, paragraph (j) of this Rule prohibits a lawyer for theorganization (whether inside counsel or outside counsel) from having a sexualrelationship with a constituent of the organization who supervises, directs orregularly consults with that lawyer concerning the organization?s legalmatters.

[19a] Utah Rule 1.8(j) isdifferent from the ABA Model Rule. It follows the language from former UtahRule 8.4(g) regarding the prohibition of sexual relations with a client. ThisRule defines "sexual relations" and clarifies the presumption thatsexual relations with a client are exploitive of the client.

Imputation of Prohibitions

[20] Under paragraph (k), aprohibition on conduct by an individual lawyer in paragraphs (a) through (i) also applies to all lawyers associated in a firm withthe personally prohibited lawyer. For example, one lawyer in a firm may notenter into a business transaction with a client of another member of the firmwithout complying with paragraph (a), even if the first lawyer is notpersonally involved in the representation of the client. The prohibition setforth in paragraph (j) is personal and is not applied to associated lawyers.


Effective November 1, 2017