Utah Sup. Ct. R. Prof'l. Prac. 1.0
Utah. Sup. Ct. R. Prof'l. Prac. 1.0
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 licensed paralegal practitioner must obtain or transmit it within a reasonable time thereafter. If a licensed paralegal practitioner has obtained a client's informed consent, the licensed paralegal practitioner may act in reliance on that consent so long as it is confirmed in writing within a reasonable time thereafter.
Firm
[2] Whether two or more licensed paralegal practitioners 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 licensed paralegal practitioners 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 licensed paralegal practitioners could be regarded as a firm for purposes of the rule that the same licensed paralegal practitioner should not represent opposing parties in litigation, while it might not be so regarded for purposes of the rule that information acquired by one licensed paralegal practitioner is attributed to another.
[3] Reserved.
[4] Similar questions can also arise with respect to licensed paralegal practitioners 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 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 licensed paralegal Practitioner Rules of Professional Conduct require the licensed paralegal practitioner 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 1.6(a), 1.7(b) and 1.9(a). The communication necessary to obtain such consent will vary according to the rule involved and the circumstances giving rise to the need to obtain informed consent. In some circumstances it may be required for a licensed paralegal practitioner to advise a client or other person to seek the advice of an attorney.
[7] Obtaining informed consent will usually require an affirmative response by the client or other person. In general, a licensed paralegal practitioner may not assume consent from a client's or other person's silence. Consent may be inferred, however, from the conduct of a client or other person who has reasonably adequate information about the matter. A number of rules require that a person's consent be confirmed in writing. See, e.g., Rules 1.7(b) and 1.9(a). For a definition of "writing" and "confirmed in writing," see paragraphs (p) and (b). Other rules require that a client's consent be obtained in a writing signed by the client. See, e.g., Rules 1.8(a) and (g). For a definition of "signed," see paragraph (p).
Screened
[8] This definition applies to situations where screening of a personally disqualified licensed paralegal practitioner is permitted to remove imputation of a conflict of interest under Rules 1.10, 1.11, 1.12 or 1.18.
[9] The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified licensed paralegal practitioner remains protected. The personally disqualified licensed paralegal practitioner should acknowledge the obligation not to communicate with any of the other attorneys and licensed paralegal practitioners in the firm with respect to the matter. Similarly, other licensed paralegal practitioners in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified licensed paralegal practitioner with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected licensed paralegal practitioners of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened licensed paralegal practitioner to avoid any communication with other firm personnel and any contact with any firm files or other information, including information in electronic form, relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened licensed paralegal practitioner relating to the matter, denial of access by the screened licensed paralegal practitioner to firm files or other information, including information in electronic form, relating to the matter and periodic reminders of the screen to the screened licensed paralegal practitioner and all other firm personnel.
[10] In order to be effective, screening measures must be implemented as soon as practical after a licensed paralegal practitioner or law firm knows or reasonably should know that there is a need for screening.