Tuesday, March 12, 2013

As Near As Possible

The Utah Supreme Court has considered whether an attorney-client relationship betwen the United Effort Plan Trust ("UEP") and a law firm continued after the trust was reformed cy pres.

The trust was created in 1942 and reformed in 2005. The district court used the doctrine of cy pres to reform the trust to fulfill its purpose to "provide for the wants and needs of FLDS Church members."

The court held that the UEP and the reformed trust are not the same client. As there was no attorney-client relationship between the law firm and the reformed trust, the district court erred in disqualifying the law firm in the litigation and ordering the firm to disgorge privileged information to the reformed trust.

Chief Justice Durrant concurred and dissented in part.

The Chief Justice would hold that the district court did not abuse its discretion in ordering the law firm to turn over privileged information and disqualifying the law firm:

The reformed trust is the same trust [the law firm] previously represented. As a result, the district court did not abuse its discretion when it disqualified [them] and ordered disclosure of privileged communications. But even under the court's legal fiction that the two trust are distinct for the narrow purpose of deciding matters of attorney-client relations, I believe that the special fiduciary remains the best person to assert privileges on behalf of a hypothetically nonexistent trust and that this case is too full of potential nascent conflicts to hold that the district court's order was an abuse of discertion.

 (Mike Frisch)

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