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Univ. of South Carolina School of Law

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Tuesday, August 5, 2008

Representative Republic: Supreme Court of Utah Finds That Trial Court Misapplied The Attorney-Client Privilege In Daughter Representation Case

The recent opinion of the Supreme Court of Utah in Moler v. CW Management Group, 2008 WL 2776775 (Utah 2008), contains an important discussion of Utah's attorney-client privilege.  In Moler, Dennis and Marilynn Moler contracted to purchase a new home from Franklin Homes in a new gated community named Redfeath Estates.  When the Molers first met with Redfeather Estates' real estate agent, Christopher McCandless, the homes in Redfeather Estates were burdened with covenants, conditions, and restrictions ("CC & Rs") that limited occupancy to households with at least one person 55 years of age or older.  But before the Molers closed on their purchase, the sellers executed and recorded amended CC & Rs removing the age restriction. The Molers claimed that they learned of the restriction's removal only after they closed and sued McCandless, Franklin Homes, and other entities alleging several causes of action related to the sale of the property and the removal of the restriction.

Before filing suit, however, the Molers enlisted their daughter, Wendy Moler-Lewis, to help them with various aspects of the dispute. Although Moler-Lewis graduated from law school and was at one time a practicing attorney, she never represented the Molers in the lawsuit, but she did assist the Molers in identifying and retaining a law firm to represent them and was present and participated in some conversations between the Molers and McCandless.  The question thus arose whether conversations between the plaintiffs and their daughter were protected by Utah's attorney-client privilege, with the trial court finding that the privilege did not extend to the plaintiffs because Moler-Lewis did not qualify as their representative.

The plaintiffs' appeal eventually reached the Utah Supremes, who started their analysis with the text of Utah Rule of Evidence 504(b), which states that:

     "A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client between the client and the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, and among the client's representatives, lawyers, lawyer's representatives, and lawyers representing others in matters of common interest, in any combination."

Meanwhile, Utah Rule of Evidence 504(a)(4) defines a "representative of the client" as

     "one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or one specifically authorized to communicate with the lawyer concerning a legal matter."

The Supreme Court of Utah then noted that the trial court found that Moler-Lewis did not qualify as the plaintiffs' representative because she "was not retained to give legal advice and her services were not 'essential to [the Molers'] representation."  The Utah Supremes found that in doing so, the trial court imposed requirements "not found in rule 504."  Instead, the Supreme Court of Utah noted that to find that the attorney-client privilege applied, it needed "make only the following factual determination: Was Moler-Lewis 'one having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or one specifically authorized to communicate with the lawyer concerning a legal matter'?"  The Utah Supremes thus remanded to the trial court to resolve this matter one way or the other.

Looking at the facts of Moler, however, it seems clear that the trial court will find that the attorney-client privilege applies.  The facts indicate that Moler-Lewis assisted her parents in identifying and retaining a law firm to represent them, which would strongly imply that she had authority to obtain professional legal services on their behalf.  Therefore, Moler-Lewis was a "representative of the client," triggering the attorney-client privilege.

(In a separate part of the opinion, the Supreme Court of Utah rejected precedent from other courts stating that only corporate entities may have representatives, finding that it is "salutary that natural persons should be afforded the same level of protection when communicating with their representatives as corporations now enjoy.")

-CM

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