Lex Mundi Global Attorney-Client Privilege Guide |
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USA, Utah |
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(United States)
Firm
Ray Quinney & Nebeker P.C.
Contributors
Justin Toth |
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| Is the ACP recognized in your jurisdiction? | Yes. Utah Code Ann. § 78B-1-137 (2) (“An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or any advice given regarding the communication in the course of the professional employment.”); see also Utah R. Evid. 504 (defining the scope of “lawyer-client” privilege). |
| If the ACP is not recognized in your jurisdiction, are there rules of professional confidentiality or other rules that would enable a lawyer or a client to withhold attorney-client communications or work product prepared by counsel from disclosure... | Not applicable. |
| Is a distinction made in applying the ACP or professional confidentiality rules in civil and criminal proceedings? May government authorities require disclosure of attorney-client communications and legal work product? | Not applicable. |
| In the corporate context, what test is applied to determine who within a corporation is considered the client for the purposes of the ACP? (e.g., in the U.S.: the Upjohn approach, control group test, etc.) | Utah courts follow the test set forth in Utah Rule of Professional Responsibility 4.2(d) (1)-(2), which incorporates the “control group” test, but also includes those persons “whose acts or omissions in the matter may be imputed to the organization under applicable law” or “whose statements under applicable rules of evidence would have the effect of binding the organization with respect to proof of the matter.” Id. |
| Is in-house counsel expected to meet a higher burden than outside counsel in order to establish that privilege applies to in-house counsel’s communications? | No, but in-house counsel’s advice must be purely “legal” advice and not “business” or other non-legal communications to satisfy the elements of the privilege. |
| Civil Law Jurisdictions: May in-house counsel assert privilege or professional confidentiality? | Not applicable. |
| Civil Law Jurisdictions: Is in-house counsel allowed to be active members of your jurisdiction’s bar? | Not applicable. |
| Is the common interest doctrine recognized in your jurisdiction? | Not applicable. |
| How is the doctrine articulated in your jurisdiction? | Not applicable. |
| Must a common interest agreement be in writing? | Not applicable. |
| Is litigation funding permitted in your jurisdiction? Are there any professional rules in this respect? | Yes. Litigation funding must comply with Utah Code Ann. § 13-57-101, et. seq. |
| Have the courts in your jurisdiction addressed whether communications with litigation funders may be protected by the ACP or the work-product protection | Not to date. |
| Is the crime-fraud exception recognized in your jurisdiction? | Yes. the crime-fraud exception is recognized in Utah. |
| What statutes or key court decisions articulate the crime-fraud exception in your jurisdiction? | Utah Rule of Evidence 504(d)(1); Lifewise Master Funding v. Telebank, 206 F.R.D. 298 (D. Utah 2002). |
| Is there a statute or rule that protects information obtained or prepared in anticipation of litigation from disclosure in legal proceedings? (In the U.S.: What state rule is your jurisdiction’s analog to FRCP 26(b)(3)?) | Yes. Utah Rule of Civil Procedure 26(b)(5). |
| What are the elements of the protection in your jurisdiction? | See Gold Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 169–70 (Utah 1990) (applying Fed.R.Civ.P. 26(b)(3) and setting forth a three-part test for work product: “1) documents and tangible things otherwise discoverable, 2) prepared in anticipation of litigation or for trial, 3) by or for another party or by or for that party’s representative”). |
| Does your jurisdiction recognize an accountant-client privilege? | No, Utah does not recognize an accountant-client privilege. |
| Does your jurisdiction recognize a mediation privilege? | Yes. The privileges and confidentiality of the mediation process are set forth in the Utah Uniform Mediation Act, Utah Code Ann. § 78b-10-101, et. seq. |
| Does your jurisdiction recognize a settlement negotiation privilege? | Yes. The privilege against disclosure for mediation communications is set forth in Utah Code Ann. § 78b-10-104. In addition, “compromise offers and negotiations” are likewise inadmissible “to prove or disprove liability or the validity or amount of a disputed claim” as set forth in Utah Rule of Evidence 408. |
Lex Mundi Global Attorney-Client Privilege Guide
USA, Utah
(United States) Firm Ray Quinney & Nebeker P.C.Contributors Justin Toth
Updated 15 Aug 2021Yes. Utah Code Ann. § 78B-1-137 (2) (“An attorney cannot, without the consent of the client, be examined as to any communication made by the client to the attorney or any advice given regarding the communication in the course of the professional employment.”); see also Utah R. Evid. 504 (defining the scope of “lawyer-client” privilege).
Not applicable.
Not applicable.
Utah courts follow the test set forth in Utah Rule of Professional Responsibility 4.2(d) (1)-(2), which incorporates the “control group” test, but also includes those persons “whose acts or omissions in the matter may be imputed to the organization under applicable law” or “whose statements under applicable rules of evidence would have the effect of binding the organization with respect to proof of the matter.” Id.
No, but in-house counsel’s advice must be purely “legal” advice and not “business” or other non-legal communications to satisfy the elements of the privilege.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Not applicable.
Yes. Litigation funding must comply with Utah Code Ann. § 13-57-101, et. seq.
Not to date.
Yes. the crime-fraud exception is recognized in Utah.
Utah Rule of Evidence 504(d)(1); Lifewise Master Funding v. Telebank, 206 F.R.D. 298 (D. Utah 2002).
Yes. Utah Rule of Civil Procedure 26(b)(5).
See Gold Standard, Inc. v. Am. Barrick Res. Corp., 805 P.2d 164, 169–70 (Utah 1990) (applying Fed.R.Civ.P. 26(b)(3) and setting forth a three-part test for work product: “1) documents and tangible things otherwise discoverable, 2) prepared in anticipation of litigation or for trial, 3) by or for another party or by or for that party’s representative”).
No, Utah does not recognize an accountant-client privilege.
Yes. The privileges and confidentiality of the mediation process are set forth in the Utah Uniform Mediation Act, Utah Code Ann. § 78b-10-101, et. seq.
Yes. The privilege against disclosure for mediation communications is set forth in Utah Code Ann. § 78b-10-104. In addition, “compromise offers and negotiations” are likewise inadmissible “to prove or disprove liability or the validity or amount of a disputed claim” as set forth in Utah Rule of Evidence 408.