Utah Sup. Ct. R. Prof'l. Prac. 1.9
Utah. Sup. Ct. R. Prof'l. Prac. 1.9
Comment
[1] After termination of a licensed paralegal practitioner-client relationship, a licensed paralegal practitioner has certain continuing duties with respect to confidentiality and conflicts of interest and thus may not represent another client except in conformity with this Rule. Under this Rule, for example, a licensed paralegal practitioner who has represented multiple clients in a matter could not represent one of the clients against the others in the same or a substantially related matter after a dispute arose among the clients in that matter, unless all affected clients give informed consent. See Comment [9]. Current and former government licensed paralegal practitioners must comply with this Rule to the extent required by Rule 1.11.
[2] The scope of a "matter" for purposes of this Rule depends on the facts of a particular situation or transaction. The licensed paralegal practitioner's involvement in a matter can also be a question of degree. When a licensed paralegal practitioner has been directly involved in a specific transaction, subsequent representation of other clients with materially adverse interests in that transaction clearly is prohibited. On the other hand, a licensed paralegal practitioner who recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. The underlying question is whether the licensed paralegal practitioner was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
[3] Matters are "substantially related" for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a licensed paralegal practitioner who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a divorce. Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related. A former client is not required to reveal the confidential information learned by the licensed paralegal practitioner in order to establish a substantial risk that the licensed paralegal practitioner has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the licensed paralegal practitioner provided the former client and information that would in ordinary practice be learned by a licensed paralegal practitioner providing such services.
Licensed Paralegal Practitioners Moving Between Firms
[4] When licensed paralegal practitioners have been associated within a firm but then end their association, the question of whether a licensed paralegal practitioner should undertake representation is more complicated. There are several competing considerations. First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper licensed paralegal practitioners from forming new associations and taking on new clients after having left a previous association. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of licensed paralegal practitioners to move from one practice setting to another and of the opportunity of clients to change counsel.
[5] Paragraph (b) operates to disqualify the licensed paralegal practitioner only when the licensed paralegal practitioner involved has actual knowledge of information protected by Rules 1.6 and 1.9(c). Thus, if a licensed paralegal practitioner while with one firm acquired no knowledge or information relating to a particular client of the firm, and that licensed paralegal practitioner later joined another firm, neither the licensed paralegal practitioner individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 1.10(b) for the restrictions on a firm once a licensed paralegal practitioner has terminated association with the firm.
[6] Application of paragraph (b) depends on a situation's particular facts, aided by inferences, deductions or working presumptions that reasonably may be made about the way in which licensed paralegal practitioners work together. A licensed paralegal practitioner may have general access to files of all clients of a law firm and may regularly participate in discussions of their affairs; it should be inferred that such a licensed paralegal practitioner in fact is privy to all information about all the firm's clients. In contrast, another licensed paralegal practitioner may have access to the files of only a limited number of clients and participate in discussions of the affairs of no other clients; in the absence of information to the contrary, it should be inferred that such a licensed paralegal practitioner in fact is privy to information about the clients actually served but not those of other clients. In such an inquiry, the burden of proof should rest upon the firm whose disqualification is sought.
[7] Independent of the question of disqualification of a firm, a licensed paralegal practitioner changing professional association has a continuing duty to preserve confidentiality of information about a client formerly represented. See Rules 1.6 and 1.9(c).
[8] Paragraph (c) provides that information acquired by the licensed paralegal practitioner in the course of representing a client may not subsequently be used or revealed by the licensed paralegal practitioner to the disadvantage of the client. However, the fact that a licensed paralegal practitioner has once served a client does not preclude the licensed paralegal practitioner from using generally known information about that client when later representing another client.
[9] The provisions of this Rule are for the protection of former clients and can be waived if the client gives informed consent, which consent must be confirmed in writing under paragraphs (a) and (b). See Rule 1.0(b) and (f). With regard to the effectiveness of an advance waiver, see Comment [22] to Rule 1.7. With regard to disqualification of a firm with which a licensed paralegal practitioner is or was formerly associated, see Rule 1.10.