Can individual clients have representatives protected by attorney-client privilege? Moler v. McCandless Explained

In Moler v. McCandless, the Utah Supreme Court addressed a fundamental question about the scope of attorney-client privilege: whether individual clients can have representatives whose communications are protected by privilege, or if such protection is limited to corporate entities.

Background and Facts

The Molers contracted to purchase a home in a gated community that was originally restricted to households with at least one person fifty-five years or older. Before closing, the sellers removed this age restriction without informing the Molers. After discovering this change post-closing, the Molers filed suit against the sellers. The Molers enlisted their daughter, Wendy Moler-Lewis—a law school graduate and former practicing attorney—to help them identify and retain counsel. During discovery, defendants sought to compel testimony about communications between the Molers and their daughter.

Key Legal Issues

The case presented three critical questions: (1) whether Moler-Lewis qualified as a “representative of the client” under Utah Rule of Evidence 504(a)(4); (2) whether the communications constituted “confidential communications” for purposes of facilitating legal services; and (3) whether any privilege was waived during deposition testimony.

Court’s Analysis and Holding

The Utah Supreme Court rejected defendants’ argument that only corporate entities can have representatives under Rule 504. The court emphasized that Rule 504(a)(1) explicitly defines “client” to include “a person,” and the fact that the rule was revised in response to Upjohn Co. v. United States did not limit representation to corporate contexts. The court held that natural persons should receive the same privilege protection as corporations when communicating with their representatives. However, because the district court applied an incorrect legal standard, the court remanded for proper factual determinations.

Practice Implications

This decision clarifies that individual clients may have privileged communications with representatives, provided those representatives have “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.” Practitioners should carefully document the scope of authority granted to family members or advisors who assist clients, as the privilege protection depends on meeting these specific definitional requirements.