This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 15

IN THE

SUPREME COURT OF THE STATE OF UTAH

SNOW, CHRISTENSEN & MARTINEAU, RAYMOND SCOTT BERRY,

WILLIE JESSOP, DAN JOHNSON, and MERLIN JESSOP,

Petitioners,

v.

HONORABLE DENISE P. LINDBERG,

District Court Judge,

Respondent.

No. 20091006

Filed March 12, 2013

Third District, Salt Lake

The Honorable Denise P. Lindberg

No. 053900848

Attorneys:

Michael D. Zimmerman, James C. Bradshaw, Mark R. Moffat,

Troy L. Booher, M. Lane Molen, Salt Lake City, for petitioners

John E. Swallow, Att’y Gen., Bridget K. Romano, Asst. Att’y Gen.,

Brent M. Johnson, Salt Lake City, for respondent

JUSTICE PARRISH authored the opinion of the Court,

in which JUSTICE DURHAM and JUDGE THORNE joined.

CHIEF JUSTICE DURRANT filed a concurring in part and dissenting

in part opinion, in which ASSOCIATE CHIEF JUSTICE NEHRING

joined.

Due to his retirement, JUSTICE WILKINS did not participate herein;

Court of Appeals JUDGE WILLIAM A. THORNE sat.

JUSTICE THOMAS R. LEE became a member of the Court on July 19,

2010, after oral argument in this matter, and accordingly did not

participate.

JUSTICE PARRISH, opinion of the Court:

INTRODUCTION

¶1 This case requires us to determine whether an attorney-client

relationship that existed between the United Effort Plan Trust (UEP

Trust or Trust) and its attorneys at the law firm Snow, Christensen
SNOW et al v. HONORABLE LINDBERG

Opinion of the Court

1

 On June 13, 2011, we stayed the present case pending disposition of the appeal in a related case, Fundamentalist Church of Jesus

Christ of Latter-Day Saints v. Wisan, 698 F.3d 1295 (10th Cir. 2012)

(FLDS v. Wisan). Wisan was an appeal from the federal district

court’s decision granting the Fundamentalist Church of Jesus Christ

of Latter-Day Saints (FLDS Association) a preliminary injunction

barring the probate court’s further administration of the Trust.

Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Wisan, 773

F. Supp. 2d 1217, 1236, 1244–45 (D. Utah 2011). On November 5,

2012, the Court of Appeals for the Tenth Circuit vacated the federal

district court’s order granting a preliminary injunction and remanded with directions to dismiss the claims filed by the FLDS

Association. Fundamentalist Church of Jesus Christ of Latter-Day Saints

v. Horne, 698 F.3d 1295, 1299 (10th Cir. 2012). We thereafter lifted

our stay on December 12, 2012.

2

& Martineau (SCM) continued after the Trust was reformed cy pres.1

Specifically, we must determine whether the district court’s

reformation of the UEP Trust altered the Trust to such an extent that

it can no longer be considered the same client for purposes of the

attorney-client privilege and rule 1.9 of the Utah Rules of Professional Conduct. The district court determined that reformation of

the UEP Trust did not sever the attorney-client relationship and it

therefore ordered SCM to disgorge privileged attorney-client

information to the reformed UEP Trust (Reformed Trust). Additionally, it disqualified SCM under rule 1.9 of the Utah Rules of Professional Conduct from representing clients Willie Jessop, Dan Johnson,

and Merlin Jessop (Movants) in substantially related matters in

which the Movants’ interests were materially adverse to the

Reformed Trust.

¶2 We hold that the UEP and the Reformed Trust were not the

same client. Therefore, there was no attorney-client relationship

between SCM and the Reformed Trust. As a result, the district court

erred when it disqualified SCM from representing Movants and

ordered SCM to disgorge privileged attorney-client information to

the Special Fiduciary of the Reformed Trust. 

BACKGROUND

¶3 The UEP Trust was created in 1942 by the predecessors of

a religious group known as the Fundamentalist Church of Jesus

Christ of Latter-Day Saints (FLDS Church). The UEP Trust’s stated

purpose was primarily “charitable and philanthropic.” Membership
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Opinion of the Court

3

in the UEP Trust was established by “consecrating” property to the

Trust “in such amounts as shall be deemed sufficient by the Board

of Trustees.”

¶4 In 1987, the Trustees of the UEP Trust were sued by Trust

land residents. The suit alleged several causes of action, including

a claim for breach of fiduciary duty. The district court dismissed

these claims because it found that the UEP Trust was charitable and

the plaintiffs therefore lacked standing. But in Jeffs v. Stubbs, we

reversed the district court’s decision and held that the UEP Trust

was not charitable because it benefitted specific individuals. 970

P.2d 1234, 1252–53 (Utah 1998). In response to our decision, the sole

surviving beneficiary of the UEP Trust, Rulon Jeffs, acting for

himself and as the president of the Corporation of the FLDS Church,

and other trustees amended and reinstated the UEP Trust. It is

undisputed that the amended UEP Trust is a charitable trust. Unlike

the original trust documents, which essentially limited the class of

beneficiaries to the UEP Trust founders, the 1998 restatement

substantially broadened the class of beneficiaries to include FLDS

Church members who “consecrate their lives, times, talents, and

resources to the building and establishment of the Kingdom of God

on Earth under the direction of the President of the [FLDS] Church.”

¶5 The primary purpose of the UEP Trust was religious. The

1998 UEP Trust’s declaration expressly states that it “is a religious

and charitable trust,” and “a spiritual . . . step toward[s] living the

Holy United Order.” The Trust further provides that the Holy

United Order is a “central principle of the Church” that “requires the

gathering together of faithful Church members on consecrated and

sacred lands to establish as one pure people the Kingdom of God on

Earth under the guidance of Priesthood leadership.”

¶6 “[C]onsistent with its religious purpose,” the UEP Trust

states that it is to be administered “to provide for Church members

according to their wants and their needs, insofar as their wants are

just (Doctrine and Covenants, Section 82:17–21).” The UEP Trust

makes clear that participation in the Trust is conditioned on living

in accordance with the principles of the United Effort Plan and the

FLDS Church as determined by spiritual leaders. It provides that

 [p]articipants who, in the opinion of the Presidency of

the Church, do not honor their commitments to live

their lives according to the principles of the United

Effort Plan and the Church shall remove themselves

from the Trust property and, if they do not, the Board
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Opinion of the Court

2

 The district court determined that it could not reform the UEP

Trust to advance its religious purposes for primarily two reasons.

First, it determined that it could not advance the religious purposes

(continued...)

4

of Trustees may . . . cause their removal.

The UEP Trust was “intended to be . . . of perpetual duration;

however in the event of [its] termination, . . . the assets of the Trust

Estate at the time [were to] become the property of the Corporation

of the President of the [FLDS] Church, corporation sole.”

¶7 In 2004, the UEP Trust and then FLDS president, Warren

Jeffs, were sued in two separate tort actions. Rodney Parker, an

attorney from the law firm of SCM entered an appearance as counsel

for the UEP Trust and the FLDS Church in both of these actions but

later withdrew when he was discharged by his clients. Because the

controlling trustee, Warren Jeffs, did not appoint substitute counsel

in either action, the UEP Trust was vulnerable to having default

judgments entered against it. The Utah Attorney General (AG)

responded by petitioning the district court for: (1) removal of the

trustees for breach of fiduciary duty; (2) an order that the trustees

provide an inventory, final report, and accounting of Trust assets;

and (3) an appointment of a Special Fiduciary to administer the

Trust until a new trustee was appointed.

¶8 In June 2005, the district court entered an order for a

preliminary injunction suspending the trustees of the UEP Trust and

appointing Bruce Wisan as special fiduciary “on a limited basis” to

manage the affairs of the Trust. Additionally, the court asked the

Special Fiduciary to identify any issues that the court needed to

address before it appointed new trustees. In response to the court’s

request, the Special Fiduciary indicated that the Trust would need

to be reformed before new trustees could be appointed.

¶9 On December 13, 2005, the district court issued an order

that the UEP Trust be reformed. Using the doctrine of cy pres, the

district court found that the UEP Trust had two primary purposes.

It concluded that its first purpose was to advance the religious

doctrines and goals of the FLDS Church and that its second purpose

was to provide for the “just wants and needs” of FLDS Church

members. The district court held that although the trust could not

be reformed to advance its religious purposes, it could be reformed

to advance its charitable purpose to provide for UEP Trust beneficiaries’ “just wants and needs.”2
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Opinion of the Court

2

(...continued)

of the UEP Trust insofar as those purposes were illegal. Specifically,

the district court noted that it could not advance the FLDS doctrines

of polygamy, bigamy, or sexual activity between adults and minors.

Second, the district court determined that it could not advance the

religious purposes of the Trust because it was prohibited by the First

Amendment to the United States Constitution from resolving

property disputes on the basis of religious doctrines.

5

¶10 Using secular principles, the district court reformed the

UEP Trust. The purpose and provisions of the Reformed Trust are

vastly different from those of the UEP Trust. The UEP Trust existed

solely for the purpose of “preserv[ing] and advanc[ing] the religious

doctrines and goals of the [FLDS Church].” In contrast, the

Reformed Trust is “separate and distinct from . . . the FLDS Church,

as well as other religious efforts, objectives, doctrines or

organizations.” Additionally, the Reformed Trust was to be

administered “based on neutral principles of law,” independent of

Priesthood input. But Priesthood input was critical to the

administration of the UEP Trust. Indeed “[t]he doctrine and laws of

the Priesthood . . . [were] the guiding tenants by which the Trustees

of the [UEP] Trust” were to act. The beneficiaries of the Reformed

Trust were also different from those of the UEP Trust. While

participation in the UEP Trust was limited to FLDS Church

members, beneficiaries of the Reformed Trust included nonmembers

“who [could] demonstrate that they had previously made

contributions to either the [UEP] Trust or the FLDS Church.” 

¶11 Petitioners argue that the administration of the Reformed

Trust differs vastly from that of the UEP Trust. Unlike the UEP

Trust, which was administered in a manner that advanced the FLDS

Church and its members, petitioners contend that the Reformed

Trust is administered in a manner that is hostile towards the FLDS

Church and its members. To support their argument, they point to

the Special Fiduciary’s attorney’s characterization of the administration of the trust as “sociological and psychological war with the

beneficiaries.” They also point to the Special Fiduciary’s court

filings, which refer to church members and the former Trustees of

the UEP Trust, including the president of the FLDS Church, as

“saboteurs” and “conspirators.” Petitioners also note that the

Special Fiduciary has admitted that a factor in determining whether

Trust property will be conveyed to beneficiaries outright or subject

to a spendthrift trust is whether the transferee is likely to participate
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Opinion of the Court

6

in the United Holy Order. Petitioners claim that this practice

discriminates against beneficiaries who practice the doctrines of the

FLDS Church.

¶12 Petitioners are particularly critical of the Special

Fiduciary’s attempt to sell the Berry Knoll Farm. Petitioners take

offense to the sale because they view the Berry Knoll Farm as having

historic and religious value. They claim that the Berry Knoll Farm

is sacred because it was revealed to FLDS Church leadership by

divine inspiration that the property was to be the site for an FLDS

temple. Despite these protests, the Special Fiduciary claims that he

must sell Berry Knoll Farm to meet the Reformed Trust’s cash flow

problems.

¶13 In response to concerns over administration of the Trust,

an association of members of the FLDS Church (Association) filed a

petition for an extraordinary writ, which challenged the validity of

the Reformed Trust on several grounds. In Fundamentalist Church of

Jesus Christ of Latter-Day Saints v. Lindberg, we concluded that

because the Association’s petition was filed three years after the

district court’s reformation of the UEP Trust, all but one of the

Association’s claims were barred by the doctrine of laches. 2010 UT

51, ¶ 1, 238 P.3d 1054. We further concluded that the remaining

claim that was not barred by laches was not ripe for adjudication. Id.

We therefore held that the district court’s reformation of the UEP

Trust was final and could not be challenged. Id. ¶ 35.

¶14 On May 19, 2008, the Special Fiduciary served subpoenas

on SCM seeking documents related to SCM’s former representation

of the UEP Trust. SCM objected, claiming that the requested

documents contained privileged attorney-client information. SCM

argued that the Special Fiduciary was not entitled to these documents because the Reformed Trust was not the same entity as the

UEP Trust and because the Special Fiduciary and the Reformed

Trust were, in fact, adversaries of the former UEP Trustees and the

settlor of the UEP Trust. On June 26, 2008, the Special Fiduciary filed

a motion to compel compliance with the subpoenas, and the district

court granted the Special Fiduciary’s motion.

¶15 On August 14, 2008, Movants learned of the Special

Fiduciary’s intent to sell the Berry Knoll Farm and hired SCM to

represent them in their efforts to prevent the sale. On August 25,

2008, the Special Fiduciary moved to disqualify SCM under rule 1.9

of the Utah Rules of Professional Conduct. The Special Fiduciary

argued that because SCM had formerly represented the UEP Trust
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Opinion of the Court

7

and because the Reformed Trust and the UEP Trust were the same

entity, SCM was prohibited from representing Movants in any

matter in which they were materially adverse to the Reformed Trust.

SCM opposed the Special Fiduciary’s motion. First, it argued that

trusts are not capable of forming attorney-client relationships and

therefore it never established a relationship with the Reformed

Trust. Second, it argued that, even if it were possible to form an

attorney-client relationship with a trust, the Reformed Trust is not

the same entity as the UEP Trust. It therefore argued that it neither

represented the Reformed Trust nor established an attorney-client

relationship with that entity.

¶16 The district court rejected SCM’s arguments and disqualified SCM from representing Movants. Because SCM and Movants

were not parties to the proceedings, they had no right to appeal.

They therefore petitioned this court for a writ of extraordinary relief

under rule 65B of the Utah Rules of Civil Procedure. We have

jurisdiction pursuant to Utah Code section 78A-3-102(2).

STANDARD OF REVIEW

¶17 Rule 65B of the Utah Rules of Civil Procedure governs

petitions for extraordinary relief. It provides that “[w]here no other

plain, speedy and adequate remedy is available . . . relief may be

granted . . . where an inferior court . . . has exceeded its jurisdiction

or abused its discretion.” UTAH R. CIV. P. 65B(a), (d)(2). A district

court’s mistake of law “may constitute an abuse of [its] discretion.

State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682; see also State v.

Henriod, 2006 UT 11, ¶ 19, 131 P.3d 232.

¶18 Petitioners argue that the district court abused its discretion when it ordered SCM to disclose privileged attorney-client

information to the Reformed Trust and when it disqualified SCM

from representing the Movants. The existence of a privilege is a

question of law that we review for correctness. Burns v. Boyden, 2006

UT 14, ¶ 6, 133 P.3d 370. “[T]he proper standard of review for

decisions relating to disqualification is abuse of discretion.” Cheves

v. Williams, 1999 UT 86, ¶ 57, 993 P.2d 191 (internal quotation marks

omitted). “However, to the extent this [c]ourt has a special interest

in administering the law governing attorney ethical rules, a trial

court’s discretion is limited.” Id. (internal quotation marks omitted).

ANALYSIS

¶19 This case raises three issues: (1) whether a petition for

extraordinary relief is an appropriate mechanism for challenging the

district court’s order disqualifying SCM and compelling it to disclose
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Opinion of the Court

8

privileged attorney-client information to the Special Fiduciary of the

Reformed Trust, (2) whether SCM is required to disclose attorneyclient information to the Special Fiduciary, and (3) whether SCM can

represent clients whose interests are materially adverse to the

interests of the Reformed Trust. We address each of these issues in

turn.

I. THE PETITION FOR EXTRAORDINARY RELIEF

IS AN APPROPRIATE PROCEDURE TO

CHALLENGE THE DISTRICT COURT’S ORDER

¶20 Judge Lindberg argues that a writ for extraordinary relief

is not the appropriate procedural mechanism for challenging the

district court’s ruling. Specifically, she argues that this case does not

involve extraordinary circumstances. We disagree. 

¶21 Rule 65B of the Utah Rules of Civil Procedure provides that

“[w]here no other plain, speedy and adequate remedy is available,

a person may petition the court for extraordinary relief on . . .

grounds . . . involving the wrongful use of judicial authority.” UTAH

R. CIV. PROC. 65B(a). A court wrongfully uses its judicial authority

when it abuses its discretion. UTAH R. CIV.PROC. 65B(d)(2)(A). “[I]f

a petitioner is able to establish that a lower court abused its discretion, that petitioner becomes eligible for, but not entitled to,

extraordinary relief.” State v. Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682.

¶22 The question of whether to grant a petition for extraordinary relief lies within the sound discretion of this court. Id. When

considering whether to grant a petition, we may consider a variety

of factors such as “the egregiousness of the alleged error, the significance of the legal issue presented by the petition, the severity of the

consequences occasioned by the alleged error, and additional

factors.” Id. ¶ 24. But these factors are neither controlling nor do

they wholly measure the extent of our discretion. Id.

¶23 We conclude that SCM and Movants appropriately utilized

a petition for extraordinary writ in challenging the district court’s

order. As nonparties to the district court proceeding, SCM and

Movants had “no other plain, speedy and adequate remedy . . .

available” to challenge the district court’s order. Moreover, the

consequences of the district court’s error—disgorgement of documents allegedly protected by attorney-client privilege and disqualification of counsel—are of sufficient severity to justify the writ.

¶24 Because SCM and Movants were not parties to the

proceeding below, they cannot appeal the district court’s order. 
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Opinion of the Court

3

 Judge Lindberg also argues that a petition for extraordinary writ

is not an appropriate procedure to challenge the validity of the

Reformed Trust because such a challenge implicates the rights of the

Reformed Trust’s beneficiaries. We disagree that our decision here

will implicate the validity of the Reformed Trust. Indeed, we

explicitly decided in Fundamentalist Church of Jesus Christ of LatterDay Saints v. Lindberg that, because no one had challenged the

district court’s reformation of the UEP Trust for three years, the

validity of the Reformed Trust could no longer be challenged. 2010

UT 51, ¶ 35, 238 P.3d 1054. Although our decision in this case

addresses the reformation of the Trust, it does so for the limited

purpose of determining whether SCM should be required to turn

over the subpoenaed information and whether SCM should be

disqualified from representing the Movants. 

9

Thus, outside of the extraordinary writ process, they have no “plain,

speedy, and adequate remedy” to challenge it. As we have previously indicated, when an individual who is not a party to a district

court proceeding is adversely affected by an order or judgment, the

procedural mechanism for challenging the district court’s action is

through a petition for extraordinary writ. See Soc’y of Prof’l Journalists v. Bullock, 743 P.2d 1166, 1168, 1171 (Utah 1987).3

¶25 Second, an extraordinary writ is appropriate in this case

because compelling SCM to turn over what is alleged to constitute

privileged information has the potential to result in irreparable

injury. “[A]ppellate courts cannot always unring the bell once the

information has been released.” United States v. Sciarra, 851 F.2d 621,

636 (3d Cir. 1988) (internal quotation marks omitted); see also In re

Perrigo Co., 128 F.3d 430, 437 (6th Cir. 1997) (“[F]orced disclosure of

privileged material may bring about irreparable harm.”). 

¶26 Finally, the order disqualifying SCM will result in irreparable injury to the Movants because it will separate them “from the

counsel of [their] choice with immediate and measurable effect.”

Zurich Ins. Co. v. Knotts, 52 S.W.3d 555, 560 (Ky. 2001); see, e.g.,

AlliedSignal Recovery Trust v. AlliedSignal, Inc., 934 So.2d 675, 681

(Fla. Dist. Ct. App. 2006). And in this case, SCM is not only the

Movants’ counsel of choice, but is uniquely situated to represent the

Movants because it has knowledge of the circumstances surrounding

the creation of the UEP Trust, the trust documents, and the trust

reformation. Because SCM and the Movants cannot appeal the

district court’s order and because any error could result in irrepara-
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Opinion of the Court

10

ble harm to petitioners, we conclude that a petition for extraordinary

relief was the correct procedure for challenging the district court’s

order. We now turn to the question of whether SCM and Movants

are entitled to the relief they seek.

II. THE DISTRICT COURT ABUSED ITS DISCRETION

WHEN IT DETERMINED THAT SCM HAD AN

ATTORNEY-CLIENT RELATIONSHIP WITH

THE REFORMED TRUST

¶27 We next address whether the district court abused its

discretion when it ordered SCM to disgorge privileged attorneyclient information to the Special Fiduciary. SCM argues that the

district court abused its discretion because “charitable trusts are not

entities capable of entering into an attorney-client relationship or

holding a privilege.” It therefore reasons that the only attorneyclient relationship created by SCM’s prior representation of the UEP

Trust was between SCM and the former trustees and not between

SCM and the UEP Trust itself. Alternatively, SCM argues that even

if an attorney-client relationship existed between SCM and the UEP

Trust, the Reformed Trust is not the same client as the UEP Trust.

Therefore, SCM cannot be disqualified from representing the

Movants based on its former relationship with the UEP Trust.

¶28 We hold that the UEP Trust was an entity that was capable

of forming an attorney-client relationship. Nevertheless, we hold

that the Reformed Trust and the UEP Trust are not the same entity

for purposes of analyzing the attorney-client relationship. We

therefore conclude that the district court abused its discretion when

it ordered SCM to disgorge privileged information to the Special

Fiduciary and when it disqualified SCM from representing Movants.

A. The UEP Trust Was an Entity Capable of Entering

 Into an Attorney-Client Relationship

¶29 We first consider whether the UEP Trust was a client of

SCM. SCM argues that the UEP Trust was never its client because

a charitable trust is merely a fiduciary relationship and is not an

entity capable of being a “client” for purposes of asserting an

attorney-client privilege. SCM argues that it established an attorneyclient relationship with the trustees of the UEP Trust and not the

UEP Trust itself. It therefore reasons that when the district court

reformed the UEP Trust and removed its trustees, SCM was entitled

to continue its attorney-client relationship with the former trustees.

We disagree. 

¶30 The attorney-client privilege is defined by rule 504 of the
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Utah Rules of Evidence. “When interpreting [our rules of evidence],

we use general rules of statutory construction.” Clark v. Archer, 2010

UT 57, ¶ 9, 242 P.3d 758. “[W]e consider the literal meaning of each

term and avoid interpretations that will render portions of a [rule]

superfluous or inoperative.” Hoyer v. State, 2009 UT 38, ¶ 22, 212

P.3d 547. “If a rule’s language is clear and unambiguous, analysis

of the rule’s meaning ends.” Clark, 2010 UT 57, ¶ 9. We therefore

begin with the plain language of rule 504. 

¶31 Rule 504 provides that an attorney’s “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.”

UTAH R. EVID. 504(b)(1). The rule defines client as “a person[,] . . .

corporation, association, or other organization or entity . . . who is

rendered professional legal services by a lawyer.” Id. 504(a)(1). The

rule further provides that “[t]he [attorney-client] privilege may be

claimed by . . . the successor, trustee, or similar representative of a

client that was a corporation, association, or other organization,

whether or not in existence.” Id. 504(c)(4). 

¶32 For purposes of rule 504, a trust is an entity not unlike a

corporation. Under the plain language of the rule, a trustee can

claim the privilege on behalf of the entity that it represents just as a

representative of a corporation can assert the privilege on behalf of

the corporation. Interpreting rule 504 as stating that a trust could

not hold the privilege is simply inconsistent with the language of

provision (c), which specifies who can claim the privilege on behalf

of an entity or organization. Under the plain language of rule 504,

it is the trust that holds the actual privilege and the trustee who

claims the privilege on behalf of the trust.

¶33 Having determined that the UEP Trust is capable of

forming an attorney-client relationship and thereby holding the

attorney-client privilege, we next address whether the privilege

continued from the original UEP Trust to the Reformed Trust. We

conclude that the district court’s reformation of the UEP Trust so

significantly altered it that the UEP Trust was transformed into an

entirely different entity. In other words, we conclude that the UEP

Trust and the Reformed Trust are not the same client.

B. The UEP Trust and the Reformed

Trust Are not the Same Entity

¶34 To determine whether the UEP Trust and the Reformed

Trust are the same client for purposes of the attorney-client privi-
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12

lege, we begin by examining the Trust’s reformation. The district

court reformed the trust using the doctrine of cy pres. When the

purposes of a charitable trust “become[] unlawful, impracticable,

impossible to achieve, or wasteful,” a “court may apply cy pres to

[either] modify or terminate the trust by directing that the trust

property be applied . . . in a manner consistent with the settlor’s

charitable purposes.” UTAH CODE § 75-7-413(1).

Cy pres is a doctrine that is sometimes invoked when

there has been a gift or bequest for a charitable purpose, which for some reason cannot be literally carried

out, and something closely analogous is done which

comports with and fulfills what appears to be the

donor’s intention and purpose. 

In re Gerber, 652 P.2d 937, 940 (Utah 1982) (emphasis omitted)

(internal quotation marks omitted).

¶35 When employing the doctrine of cy pres, the donor’s

intention “should be the aim of the court.” Id. (internal quotation

marks omitted). The idea underlying the doctrine is that the donor

may have a general charitable intent, and that the particular

charitable institution is only an agent for effectuating that intent.

Therefore, if it becomes impossible or illegal to effectuate the gift in

the precise manner specified by the donor, the court may look for

another agent that is of the same character as the one specified and that

will effectuate the settlor’s general charitable intent. Id. at 937–40.

Essential to the application of cy pres is the requirement that the

court determine what “the settlor would have wanted to happen if

he were aware of the contingency which has made the exact

effectuation of his expressed intent impossible.” Howard Sav. Inst. of

Newark, N.J. v. Peep, 170 A.2d 39, 43 (N.J. 1961). Thus, application of

the cy pres doctrine requires a court to determine whether the settlor

would have chosen the district court’s modifications over a simple

termination of the trust.

¶36 Although we previously upheld the reformation of the

Trust in Fundamentalist Church of Jesus Christ of Latter-Day Saints v.

Lindberg, we did so exclusively on the basis of laches. 2010 UT 51,

¶ 35, 238 P.3d 1054. We did not evaluate whether the reformation

was consistent with the principle or requirements of cy pres in that

the Reformed Trust was of the same character as the UEP Trust or

that the Reformed Trust was consistent with the settlor’s intent.

¶37 In determining the settlor’s intent, a court considering

reformation under the doctrine of cy pres looks first to the plain
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Opinion of the Court

13

language of the trust. Makoff v. Makoff, 528 P.2d 797, 798 (Utah 1974).

If the settlor’s intent is clear from the language of the trust, parol

evidence is inadmissible to vary the terms of the instrument. Id.

“However, in ascertaining the intention of the settlor[, the court]

may consider the entire instrument aided by the surrounding

circumstances existing at the time of creation of the trust.” Id.

¶38 In this case, the plain language of the Trust makes clear

that advancement of the FLDS religion was an essential purpose of

the Trust. This religious purpose permeates all aspects of the Trust,

starting with the manner in which Trust assets were acquired. Trust

assets were acquired through the “consecration” of property by

FLDS members. The Trust described “consecration” as “an unconditional dedication to a sacred purpose.” The Trust’s religious

purpose also was reflected in the manner in which trustees were

appointed. Trustees were appointed by the President of the FLDS

Church and the President of the Church was to serve as “a trustee

and President of the Board of Trustees.”

¶39 In addition, Trust distributions were judged by religious

standards. Whether beneficiaries were entitled to benefit from Trust

property was evaluated based on their righteousness. Specifically,

[t]hose who [sought] the privilege to . . . live upon the

lands and in the buildings of the . . . Trust . . .

commit[ed] themselves and their families to live their

lives according to the principles of the United Effort

Plan and the Church, and they and their families

consent[ed] to be governed by the Priesthood leadership. 

Additionally, the beneficiaries of the Trust were required to

“consecrate their lives, times, talents and resources to the building

and establishment of the Kingdom of God on Earth.” And those

beneficiaries “who[,] in the opinion of the Presidency of the Church,

[did] not honor their commitments to live their lives according to the

principles of the United Effort Plan and the Church [were to] remove

themselves from the trust property and, if they do not, the Board of

Trustees may in its discretion cause their removal.”

¶40 Finally, the Trust’s provisions regarding termination were

meant to ensure that Trust property remained under the control of

the FLDS Church. In the event of the Trust’s termination, “the assets

of the Trust Estate at that time [were to] become the property of the

Corporation of the President of the Fundamentalist Church of Jesus

Christ of Latter-Day Saints, corporation sole.”
SNOW et al v. HONORABLE LINDBERG

Opinion of the Court

14

¶41 In reforming the UEP Trust, the district court stripped the

Trust of its essential religious purpose and required that the Trust be

administered according to secular principles. In place of these

essential religious principles, it seized upon a provision of the Trust

requiring that the Trust be administered to “members according to

their wants and their needs, insofar as their wants are just.” Although the district court relied on this provision to suggest that the

Trust had a secular purpose of providing for the needs of its

members, the language of the Trust makes clear that “just wants and

needs” is a religious determination. And the Trust specifically states

that the “Board of Trustees, in its sole discretion, shall administer the

Trust consistent with its religious purpose to provide for Church

members according to their wants and their needs, insofar as their

wants are just.” (Emphasis added.)

¶42 The religious purpose of the Trust is also evidenced by the

fact that the “just wants” provision was intended to promote the

FLDS doctrine of communal property ownership:

The United Effort Plan is the effort and striving on the

part of Church members toward the Holy United

Order. This central principle of the Church requires the

gathering together of faithful Church members on consecrated and sacred lands to establish as one pure people

the Kingdom of God on Earth under the guidance of

Priesthood leadership. . . . [C]onsistent with its religious purpose [the Trust is to be administered to]

Church members according to their wants and their

needs, insofar as their wants are just.

(Emphasis added.) Indeed, the “just wants” provision cites to FLDS

scripture. 

¶43 In short, the district court seized upon an isolated trust

provision to find a secular component to the Trust where none

existed. Because the settlor intended that the advancement of the

FLDS religion was the essential purpose of the Trust, the district

court’s reformation of the trust by stripping it of its religious

purpose so changed its purpose and identity that it is a different

entity. 

C. SCM Had no Attorney-Client Relationship

with the Entity Known as the Reformed Trust

¶44 We now address whether an attorney-client relationship

existed between SCM and the Reformed Trust. The Special

Fiduciary argues that because SCM previously represented the UEP
Cite as: 2013 UT 15

Opinion of the Court

15

Trust, the Reformed Trust is therefore the holder of any privileged

information. We disagree.

¶45 Rule 504 of the Utah Rules of Evidence recognizes

attorney-client communications as privileged. UTAH R. EVID. 504.

It provides 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.” Id. 504(b). “The attorneyclient privilege is intended to encourage candor between attorney

and client and promote the best possible representation of the

client.” Doe v. Maret, 1999 UT 74, ¶ 7, 984 P.2d 980 (internal

quotation marks omitted), (overruled on other grounds by Munson

v. Chamberlain, 2007 UT 91, ¶ 10, 173 P.3d 848). Rule 504(c) states

that “the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence”

may claim the privilege. The advisory committee’s notes provide

that “[w]here there is a dispute as to which of several persons has

claims to the rights of a previously existing entity, the court will be

required to determine from the facts which entity’s claim is most

consistent with the purposes of this rule.” UTAH R. EVID. 504

advisory committee’s note.

¶46 In this case, we conclude that allowing the Special

Fiduciary to claim the privilege for communications between SCM

and the UEP Trust would be inconsistent with the purpose of rule

504 because the Reformed Trust and the UEP Trust are so different

that they cannot be considered the same entity. Indeed, the purposes of these two trusts are inconsistent. The UEP Trust existed

solely for the purpose of “preserv[ing] and advanc[ing] the religious

doctrines and goals of the [FLDS Church].” In contrast, the purpose

of the Reformed Trust is secular. It is “separate and distinct from . . .

the FLDS Church, as well as other religious efforts, objectives,

doctrines or organizations.” Additionally, the Reformed Trust is

administered “based on neutral principles of law,” independent of

priesthood input. This is in stark contrast to the administration of

the UEP Trust in which priesthood input was critical. In addition,

the beneficiaries of the trusts are different. While participation in the

UEP Trust was limited to faithful FLDS members, the Reformed

Trust beneficiaries include individuals “who can demonstrate that

they had previously made Contributions to either the Trust or the

FLDS Church.” Therefore, the beneficiaries of the Reformed Trust

can include individuals who have left the FLDS Church, joined a

rival sect, and/or have been critical of the FLDS Church.
SNOW et al v. HONORABLE LINDBERG

Opinion of the Court

16

¶47 Our conclusion that the Reformed Trust cannot be

considered the successor of the UEP Trust is also supported by the

differences in trust administration. The administration of the UEP

Trust has been characterized as “sociological and psychological war”

with FLDS Church members. And the Special Fiduciary has

admitted that a determination of whether property should be

conveyed outright or subject to a spendthrift trust depends in part

on whether the transferee is likely to continue to advance the FLDS

Church’s United Holy Order. In other words, a determination of

whether a beneficiary will be given ownership of trust property

outright or merely use of that property can depend on whether that

beneficiary will promise not to advance a specific FLDS doctrine. It

is clear that the settlor did not intend that the Trust that it created to

advance the FLDS religion be reformed and administered in a

manner that is hostile to that same religion.

¶48 The Special Fiduciary correctly notes that the Reformed

Trust and the UEP Trust are holding primarily the same property.

However, we do not find this fact determinative. Generally, when

a court reforms a trust cy pres, the reformation is considered a

modification of the trust. See UTAH CODE § 75-7-413 (1)(c)

(Supp. 2010). But in this case where the Reformed Trust is so

different from the original Trust that it cannot be deemed a continuation for purposes of the attorney-client privilege, the assets of the

original Trust are deemed to have been purchased by the Reformed

Trust. 

¶49 The Special Fiduciary also argues that if an attorney-client

relationship does not exist between the Reformed Trust and SCM,

any time an entity undergoes a “change of corporate management

or control,” or amends its bylaws or corporate mission, it will risk

severing the attorney-client relationships that have been formed.

The Special Fiduciary’s argument is misplaced because this case

does not involve a mere change in the management of the UEP

Trust. Rather, this case involves the district court’s reformation of

a charitable trust that, absent the defense of laches, would have been

set aside because the Reformed Trust does not effectuate the settlor’s

intent. Unlike a corporation or similar entity, a charitable trust’s

very existence is tied to the settlor’s intent. See Utah Code Ann. § 75-

7-413 (noting that a “court may apply cy pres to modify or terminate

the trust . . . in a manner consistent with the settlor’s charitable

purposes”); cf. id. § 75-7-410(1) (“A trust terminates to the extent

the . . . purposes of the trust have become unlawful, contrary to

public policy, or impossible to achieve.”). If a charitable trust cannot
Cite as: 2013 UT 15

Opinion of the Court

17

be reformed in a manner that is consistent with the settlor’s intent,

it should be terminated. In this case, the district court reformed the

trust rather than terminating it. Because the district courts reformation of the UEP Trust drastically altered the purpose and identity of

the Trust, we hold that the district court’s modifications transformed

it into an entirely different entity.

III. SCM IS NOT REQUIRED TO DISGORGE

PRIVILEGED ATTORNEY-CLIENT INFORMATION

TO THE REFORMED TRUST

¶50 We next consider whether SCM is required to disgorge

privileged attorney-client communications to the Reformed Trust.

Rule 1.9 of the Utah Rules of Professional Conduct describes the

duties lawyers owe to former clients. Specifically, “[a] lawyer who

has formerly represented a client in a matter shall not thereafter . . .

reveal information relating to the representation except as these

Rules would permit or require with respect to a client.” UTAH R. OF

PROF’L CONDUCT 1.9(c). An attorney’s duty of confidentiality is the

“hallmark of the client-lawyer relationship.” By safeguarding

attorney-client communications, a client is “encouraged to seek legal

assistance and to communicate fully and frankly with the lawyer

even as to embarrassing or legally damaging subject matters.” Id. 1.6,

cmt. 2 advisory committee’s notes. In turn, the client’s frankness

facilitates the effectiveness of a lawyer in representing the client.

¶51 In this case, not only is SCM not required to disgorge

privileged attorney-client information related to its representation

of the UEP Trust, it is prohibited by rule 1.9(c) from so doing. The

Reformed Trust is not the same entity as the UEP Trust and therefore

it is not entitled to the UEP Trust’s privileged attorney-client

information. Requiring the UEP Trust to disgorge privileged

information to the Reformed Trust would be contrary to the

underlying purpose of the attorney-client privilege in encouraging

candor between lawyer and client. It would require the UEP trust

to turn over possibly embarrassing or legally damaging material to

an entity that it perceives as hostile to the FLDS Church and thus

hostile to the very purpose of the UEP Trust.

¶52 The Special Fiduciary argues that disgorgement is

necessary because without the records relating to the underlying

management and property of the UEP trust, he cannot effectively

manage the Reformed Trust. But we disagree. The attorney-client

privilege protects communications, not facts. Munson v. Chamberlain,

2007 UT 91, ¶ 15, 173 P.3d 848. The property records that the special
SNOW et al v. HONORABLE LINDBERG

Opinion of the Court

4

 SCM and Movants also argue that the Special Fiduciary waived

its right to bring a motion to disqualify SCM. Because we resolve the

disqualification issue on the grounds that the Reformed Trust and

the UEP Trust are not the same client, we need not and do not

(continued...)

18

fiduciary requests are therefore not privileged and are available

through discovery. The special fiduciary has not pointed us to any

privileged communications that are required for the administration

of the Reformed Trust. And while we can imagine some circumstances where privileged attorney-client communication may

facilitate the administration of the Reformed Trust, we believe the

importance of safeguarding the confidentiality of attorney-client

communications justifies any minor inconvenience that will result.

Because requiring SCM to disgorge privileged attorney-client

communication is inconsistent with rule 1.9 of the Utah Rules of

Professional Conduct, we hold that the district court erred when it

ordered SMC to disgorge privileged communications related to its

representation of the UEP Trust.

IV. SCM IS NOT DISQUALIFIED FROM REPRESENTING

PARTIES ADVERSE TO THE REFORMED TRUST

¶53 We finally address whether SCM is disqualified from

representing Movants under rule 1.9 of the Utah Rules of Professional Conduct. The Special Fiduciary argues that SCM cannot

represent the Movants because their interests are materially adverse

to those of the Reformed Trust. We disagree.

¶54 Rule 1.9 of the Utah Rules of Professional Conduct

provides that “[a] lawyer who has formerly represented a client in

a matter shall not thereafter represent another person in the same or

a substantially related matter in which that person’s interests are

materially adverse to the interests of the former client.”

UTAH R. PROF’L CONDUCT 1.9(a).

¶55 In this case, SCM is not disqualified from representing the

movants in matters that are materially adverse to the Reformed

Trust because SCM has never represented the Reformed Trust. As

previously discussed, SCM represented the UEP Trust. When the

district court reformed the UEP Trust in a manner that was inconsistent with the settlor’s intent, the Trust was transformed into an

entirely new entity for purposes of the attorney-client relationship.

The Reformed Trust is therefore not the same client as the UEP

Trust.4
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

4

(...continued)

address the waiver issue. 

1

 2010 UT 51, 238 P.3d 1054.

19

CONCLUSION

¶56 Because the district court’s reformation of the UEP Trust

was contrary to the settlor’s intent, the Reformed Trust cannot be

considered the same client as the UEP Trust. The district court

therefore erred when it ordered SCM to disgorge to the Special

Fiduciary of the Reformed Trust privileged communications

between SCM and the UEP Trust. It further erred when it disqualified SCM from representing the Movants in matters that are

materially adverse to the Reformed Trust.

CHIEF JUSTICE DURRANT, concurring in part, dissenting in part:

¶57 I concur in the majority’s holding that a trust may be an

attorney’s client and that a trustee is entitled to assert privilege on

behalf of the trust-client, but I respectfully dissent as to the rest of

the opinion. I believe the majority has not properly framed the issue

before it, which has led to confusing results. Properly framed, the

issue before the court in this petition for extraordinary writ is

whether the district court abused its discretion when it ordered that

(1) SCM hand over confidential information protected by attorneyclient privilege to the special fiduciary and that (2) SCM stop

representing clients in litigation against the reformed trust. The

majority instead focuses on a different action taken by the district

court years earlier—its modification of the trust. The majority’s

argument that the district court transformed the UEP Trust into an

entirely different entity really amounts, in substance, to an argument

that the court should have terminated the trust rather than modify

it and that, as a result, the court abused its discretion years later

when it entered the orders at issue here. The majority reaches this

conclusion despite the fact that the trust’s modification was not

appealed and despite the fact that we declined to reach whether the

modification was appropriate in Fundamentalist Church of Jesus Christ

of Latter-day Saints v. Lindberg.1

 In that case, we declined to address

the propriety of the trust’s modification because the claims were

brought too late and after too many parties had relied to their
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

2

 Id. ¶ 35.

3

 UTAH R. CIV. P. 65B(a).

4

 Id. 65B(d)(2) (emphasis added).

5

 State v. Laycock, 2009 UT 53, ¶ 8, 214 P.3d 104.

6

 State v. Maughan, 2008 UT 27, ¶ 20, 182 P.3d 903 (internal

quotation marks omitted).

7 Laycock, 2009 UT 53, ¶ 9 (internal quotation marks omitted).

20

detriment on the modification.2 Because the modification stands, I

would hold that the district court did not abuse its discretion when

it assumed that its unchallenged modification of the trust was valid,

disqualified SCM accordingly, and ordered SCM to provide

privileged information to the trust.

STANDARD OF REVIEW

¶58 SCM has filed a petition for extraordinary writ under rule

65B(d) of the Utah Rules of Civil Procedure, alleging that the district

court either abused its discretion or exceeded its jurisdiction when

it disqualified SCM as attorneys in matters adverse to the trust and

compelled SCM to disclose to the trust attorney-client communications between SCM and the suspended trustees regarding trust

administration. Petitioners may seek relief under rule 65B “[w]here

no other plain, speedy and adequate remedy is available.”3

 Importantly, rule 65B provides that “relief may be granted . . . where an

inferior court . . . abused its discretion.”4 This means that even if we

find that the district court abused its discretion, we may opt not to

grant relief.5 And especially in matters of disqualification, we grant

the district court “considerable latitude” because “the likelihood and

dimensions of nascent conflicts of interest are notoriously hard to

predict.”6

 When deciding to grant relief after an abuse of discretion

has been found, we “will consider multiple factors, including the

egregiousness of the alleged error, the significance of the legal issue

presented by the petition, the severity of the consequences occasioned by the alleged error, and any additional factors that may be

regarded as important to the case’s outcome.”7

ANALYSIS

¶59 I would hold that the district court did not abuse its

discretion when it (I) ordered SCM to disclose to the special

fiduciary communications protected by the attorney-client privilege
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

8 UTAH R. EVID. 504(c) (emphasis added).

21

and (II) disqualified SCM from representing clients with interests

adverse to the modified trust. I reach these conclusions largely

because the district court’s order modifying the trust was never

appealed and was not reversed, even after we were asked to do so

in a petition for extraordinary writ. I address each of the orders

below.

I. THE DISTRICT COURT DID NOT ABUSE ITS

DISCRETION WHEN IT ORDERED SCM TO 

DISCLOSE PRIVILEGED COMMUNICATIONS

¶60 To determine whether the district court abused its

discretion in ordering SCM to disclose confidential attorney-client

communications to the special fiduciary, we must decide whether

the special fiduciary is entitled to claim the attorney-client privilege

on behalf of the trust, and whether the special fiduciary is still

entitled to claim the privilege after the district court modified the

trust using the cy pres doctrine. Because the majority correctly

concludes that the trust was the client, I would hold that the special

fiduciary was entitled to claim the privilege on behalf of the trust

before the trust was modified, and that the special fiduciary is still

entitled to assert that privilege even though the trust has been

modified.

A. Before the Trust Was Modified, the Special Fiduciary

Was Entitled to Claim the Attorney-Client Privilege

on Behalf of the Trust

¶61 Upon appointment by the district court, the special

fiduciary had the power to claim attorney-client privilege on the

trust’s behalf. Rule 504 allows persons other than trustees to assert

privileges on behalf of a trust-client: “The privilege may be claimed

by . . . (1) the client; (2) the client’s guardian or conservator; (3) the

personal representative of a client who is deceased; (4) the successor,

trustee, or similar representative of a client that was a corporation,

association, or other organization, whether or not in existence; and (5)

the lawyer on behalf of the client.”8

 The question then is whether for

the purposes of rule 504, the special fiduciary is a “successor” or

“similar representative” so that he may claim privilege on the trust’s

behalf. I would hold that he is.

¶62 When the district court suspended the acting trustees, a
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

9

 UTAH CODE § 75-7-704(5).

10 947 P.2d 279, 284 (Cal. 1997) (emphasis added).

22

vacancy in trusteeship occurred. Pursuant to its authority under

section 75-7-704, the district court then appointed a special fiduciary

“for the administration of the trust.”9

 Importantly, these acts took

place before the trust’s modification. Mr. Parker (of SCM) had just

been fired by the trustees, who had decided not to defend the trust

in lawsuits. This decision left the trust vulnerable to default

judgments. Mr. Parker petitioned the district court to notify the Utah

Attorney General before a default judgment was entered so that the

Attorney General might intervene on behalf of the trust’s charitable

beneficiaries. The Utah Attorney General did intervene, and after the

trustees failed to respond, the district court suspended them and

appointed the special fiduciary. While the majority takes issue with

the district court’s modification of the trust, it is undisputed that

suspending nonresponsive trustees charged with breaching their

fiduciary duties and appointing an interim special fiduciary to

manage trust affairs until new trustees could be appointed was

within the district court’s power and was not an abuse of its

discretion. Thus, even under the majority’s reasoning, the special

fiduciary was properly charged with managing the trust before its

modification and therefore took the place of or succeeded the

properly suspended trustees.

¶63 And the special fiduciary was a “successor” or a “similar

representative” to a trustee in every way relevant to the purposes of

the attorney-client privilege where the trust is the client. For

example, before modification, the special fiduciary was charged with

administering the trust. This charge included protecting trust assets

by defending the trust against the pending lawsuits. In addition, the

charge included conducting trust business such as fulfilling any

contracts entered into by the former trustees. As the California

Supreme Court stated in Moeller v. Superior Court, “[t]o allow for

effective continuous administration of a trust, the right of access to

[attorney-client] communications and the privilege to prevent their

disclosure must belong to the person presently acting as trustee,

because that person has the duty to conduct all pending trust business.”10

Before modification, the special fiduciary, like the trustee in Moeller,

was the person who had “the duty to conduct all pending trust

business.” Because access to attorney-client communications and the

privilege to prevent their disclosure are vital to conducting trust
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

11 Supra ¶ 48. 

12 UTAH CODE § 75-7-413(1)(C) (emphasis added).

23

business and managing the trust’s legal affairs, the special fiduciary,

being a “similar representative” and “successor” to the previous

trustees is entitled to claim the attorney-client privilege on behalf of

the trust under rule 504(c).

B. The Special Fiduciary is Entitled to Claim the

Attorney-Client Privilege on Behalf of the Trust

Even Though the Court Modified the Trust

¶64 I would hold that the special fiduciary is entitled to claim

the attorney-client privilege on behalf of the trust even though the

trust has been modified. Thus, I conclude that the majority errs in

three important ways. First, instead of accepting that the trust’s

purpose was modified—erroneously or not—in an attempt to

effectuate the settlor’s legitimate and legal charitable purposes, the

majority, without foundation in fact, asserts that a terminated trust’s

assets were purchased by a reformed trust. But this asset-purchase

metaphor does not account for the legal and practical ramifications

arising from the fact that, in reality, the trust was modified, not

terminated. Second, although the majority rejects the special

fiduciary’s assertion of the attorney-client privilege, the majority

fails to explain who holds the privilege on behalf of the old trust.

Third, even assuming the majority’s legal fiction that, for purposes

of the attorney-client privilege, the trust, in effect, terminated and a

new trust bought its assets, the special fiduciary, under rule 504, was

still the last to manage the old trust and has the best claim to assert

the privilege on behalf of the hypothetically nonexistent trust.

¶65 To begin, I believe the majority errs by creating an inapt

legal fiction when it holds that “for purposes of the attorney-client

privilege, the assets of the original Trust are deemed to have been

purchased by the Reformed Trust.”11 This holding has no basis in

Utah law and does not describe what happened here. As the district

court stated in its order, the plain language of Utah Code section 75-

7-413 authorizes a court, under certain conditions, to “apply cy pres

to modify or terminate [a] trust.”12 Here, the district court elected to

modify (and not terminate) the trust in an effort to effectuate the

settlor’s original and legitimate charitable purposes. Thus, even after

modification, the reformed trust remains an instrument to “provide

for [FLDS] Church members according to their [just] wants and their
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

13 Fundamentalist Church of Jesus Christ of Latter-day Saints v.

Lindberg, 2010 UT 51, ¶ 35, 238 P.3d 1054.

14 When trustees breach duties, a court may impose liens and

constructive trusts on trust property to remedy the breach. See UTAH

CODE § 75-7-1001(2)(i). The special fiduciary, much like a trustee, is

charged with protecting trust property. See id. § 75-7-807.

24

needs.” The district court modified the trust in October 2006. Its

decision was not appealed. Further, when the modification was

eventually challenged years later in a petition for extraordinary writ,

we held that the challenge was barred by laches.13 Thus, the district

court’s order modifying the trust stands and the present legal reality

is that there now exists a single trust whose purpose has been

modified, not two separate trusts, one of which purchased the assets

of the other.

¶66 Because the trust was modified and not terminated, it

continues to function in ways relevant to the attorney-client

privilege. For example, the modified trust has the same liabilities, the

same fiduciary obligations to beneficiaries, the same contractual

obligations and rights, and the same assets as the old trust. In

addition, the beneficiaries are largely the same, and the special

fiduciary owes these charitable beneficiaries fiduciary obligations

much as the now-suspended trustees did. In fact, the special

fiduciary has the responsibility of defending the trust against any

claims that the previous trustees breached their fiduciary duties.14

Before modification, the special fiduciary did exactly that.

¶67 The special fiduciary’s continuing duty to defend the trust

against litigation, makes the majority’s asset-purchase metaphor

particularly inapt. If an interested party sues the reformed trust for

actions that constitute a breach of fiduciary duty by the previous

trustees before modification, the special fiduciary is obligated to

defend against those claims to protect trust assets. And this is not

merely hypothetical—the previous trustees’ breaches of fiduciary

duty were the very reason for the special fiduciary’s appointment.

If the majority’s asset-purchase legal fiction were reality, there could

be no cause of action against the new trust for the previous trustees’

breaches of duty because the old trust would have terminated and

the new, unrelated trust would owe no duties to the old beneficiaries. But since the legal reality is that the trust was modified, and the

majority creates the asset-purchase metaphor only for the limited
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

15 Moeller, 947 P.2d at 284.

25

purpose of defining privilege, the reformed trust is still legally

responsible for the actions of its predecessors and can have its assets

seized to remedy any fiduciary duties they breached.

¶68 In addition, since the beneficiaries of the modified trust are

largely the same—that is, FLDS Church members—legal actions

against the trust that deplete trust assets injure the same people

before and after modification. The mere fact that the class of

beneficiaries has been slightly expanded to include people who had

previously donated to the trust, regardless of their religious views,

does not change the fact that the vast majority of trust beneficiaries

are still faithful FLDS members. When the trust loses assets in legal

battles, these assets will no longer benefit the FLDS community. So

it is not as though some new, unrelated entity purchased the assets,

because fiduciary duties are still owed to the FLDS members.

¶69 Because successor trustees are responsible for their

predecessors’ actions and owe beneficiaries the same fiduciary

obligations, the California Supreme Court has held that the power

to assert attorney-client privilege should follow the office of trustee:

To allow for effective continuous administration of a

trust, the right of access to [privileged] communications and the privilege to prevent their disclosure must

belong to the person presently acting as trustee, because

that person has the duty to conduct all pending trust

business. Therefore, for a trust to continue to operate

smoothly when a change in trustee occurs, the power

to assert the attorney-client privilege must pass from

the predecessor trustee to the successor.15

Allowing the trust modification to stand, but handicapping the

special fiduciary in his efforts to defend the trust by denying him

access to privileged communications through an asset-purchase legal

fiction, is the worst of all possible worlds—one in which only the

beneficiaries lose.

¶70 Nonetheless, the majority uses the asset-purchase metaphor to find not only that SCM is not required to disgorge the

privileged communications, but that SCM is actually prohibited from

disclosing this information under rule 1.9 of the Utah Rules of

Professional Conduct. The majority takes this position even though
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

16 Supra ¶ 52. 

17 Supra ¶ 51.

26

it “can imagine some circumstances where privileged attorney-client

communication may facilitate the administration of the Reformed

Trust.”16 Because the modified trust is legally responsible for the

suspended trustees’ actions, however, it makes no sense to deny the

modified trust access to those trustees’ attorney-client communications on behalf of the trust. Thus, the majority’s asset purchase legal

fiction for attorney-client purposes is unworkable because it fails to

appreciate the modified trust’s responsibilities and liabilities.

¶71 The majority’s asset-purchase metaphor is also unworkable

because it spawns confusion about who represents the old trust’s

interests. For example, in concluding that the old trust cannot

disgorge privileged information, the majority reasons that to hold

otherwise “would require the [old trust] to turn over possibly

embarrassing or legally damaging material to [the new trust,] an

entity it perceives as hostile to the FLDS Church and thus hostile to

the very purpose of the [old trust].”17

 But because the majority

contends that the old trust, in effect, terminated, it is unclear how

this hypothetically nonexistent trust perceives the so-called new

trust as “hostile.” It is also unclear whose statements the majority

relies upon to come to this conclusion and whether those individuals

are qualified to represent the old trust’s interests. In reaching its

decision, is the majority relying upon statements by the FLDS

Church, beneficiaries of the old trust, the now-suspended trustees,

beneficiaries of the new trust, the petitioners in this action, or SCM

itself? Also, are any of those entities qualified to represent the old

trust’s interests? Without these answers, the majority’s legal fiction

is ultimately unworkable and confusing.

¶72 Instead of creating a legal fiction to deal with a trust

modification the majority feels was incorrect, but which we have

allowed to stand, I would hold that the propriety of modification is

not before us and focus on the presently existing legal reality: the

trust was modified. Because the trust was modified, and not

terminated, it continues to function in ways relevant to the attorneyclient privilege.

¶73 Further, even accepting the majority’s fictional construct

that the trust, in effect, terminated for purposes of the attorney-client

privilege, the majority does not identify who holds the privilege now
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

18 See UTAH R. EVID. 504(b)(1) (“A client has a privilege to refuse to

disclose, and to prevent any other person from disclosing, confidential communications . . . made for the purposes of facilitating the

rendition of professional legal services . . . .” (emphasis added)).

19 Id. 504(c)(5) (emphasis added).

27

and who is in the best position to assert the privilege on the trust’s

behalf. Instead, the majority appears to conclude that it is SCM itself

who holds the privilege. But the attorney-client privilege belongs to

the client and cannot be held in a vacuum.18 Because the privilege

belongs to the client, the client must direct the attorney when to

assert or waive that privilege. Indeed, the attorney may only assert

the privilege “on behalf of the client.”19 Thus, for SCM to successfully

assert the privilege, it must be acting for an entity that has some

basis for claiming to hold the privilege on behalf of the old trust.

Here, SCM has failed to point to any client or entity that makes such

a claim. For example, SCM cannot purport to act on behalf of the

former trustees because the majority correctly recognizes that the

trust, and not the trustees, holds the privilege. In addition, the

privilege can hardly be said to have passed from the trust to the

former trustees because they were suspended before modification

for breaching their fiduciary obligations. Further, SCM has offered

no basis on which the court could conclude that SCM’s new clients,

the petitioners in this action, have any claim to hold the privilege on

behalf of the old trust. Because the privilege belongs to the client, the

majority must address who inherited the privilege upon the trust’s

modification or explain on whose behalf SCM asserts the privilege.

The majority has failed to do either.

¶74 I would therefore hold that the modification has not altered

who holds the attorney-client privilege: it is the trust, now as ever.

In addition, the person who is entitled to claim this privilege, under

rule 504, is the same person who was entitled to claim the privilege

on the trust’s behalf before modification: the special fiduciary.

¶75 Even accepting the legal fiction of the majority, where the

old trust, in effect, terminated and a new trust acquired its assets, the

special fiduciary remains the best person to claim the old trust’s

attorney-client privilege. Rule 504 specifically anticipates situations

where a client “corporation, association, or other organization” is no
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

20 Id. 504(a)(1), (c)(4).

21 Id. 504(c)(4).

22 Id. 504 advisory committee note (emphasis added). Here, it is

again worth noting that the special fiduciary is the only party

claiming the trust’s privilege. For instance, the suspended trustees

have not attempted to assert that they have the best claims or any

claims to the rights of the trust.

23 Id. 504(c)(4).

28

longer “in existence.”20 Even then, a “successor, trustee, or similar

representative” can claim the privilege on behalf of the nonexistent

organization-client.21 The advisory committee’s note indicates that

“[w]here there is a dispute as to which of several persons has claims

to the rights of a previously existing entity, the court will be required

to determine from the facts which entity’s claim is most consistent

with the purposes of this rule.”22

¶76 When the special fiduciary took over after the district court

suspended the previous trustees for various breaches of duty, it took

over the same trust SCM had represented; the trust that had not yet

been modified. Therefore, at the very least, the special fiduciary

became a “successor . . . or similar representative of a[n] . . . organization . . . not in existence” and is entitled to assert privilege on

behalf of the hypothetically nonexistent trust.23 Because the special

fiduciary held the privilege before modification, it is troubling that

the majority does not explain who inherited that privilege after

modification. Even if SCM were correct in stating that the trust it

represented no longer exists, the last person responsible for the old

trust’s administration was the special fiduciary. He would have been

the last person who needed both the information contained in

attorney-client communications and the power to keep that information privileged in order to protect the beneficiaries’ interests.

Therefore, the special fiduciary’s claim is better than anyone else’s

claim, including that of the suspended trustees or the petitioners.

¶77 Further, even as modified, the special fiduciary still

controls the trust’s property and still owes fiduciary obligations to

the original trust’s beneficiaries. Thus, even if the trust has been so

unrecognizably altered that it can no longer be considered the same

client SCM represented, the privilege is best claimed on the trust’s

behalf by the controller of whatever vestiges of the trust remain.

That is because this person is the only person with any remaining
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

29

duties to any beneficiaries, whom the trust, any lawyer representing

the trust, and any communications between trust and lawyer were

intended to benefit. Neither the suspended trustees nor the petitioners hold such duties. Thus, as between the suspended trustees, the

petitioners, and the later-appointed special fiduciary, the special

fiduciary’s claim to assert the attorney-client privilege would be

more consistent with rule 504.

¶78 In sum, I would hold that, whether the trust was properly

modified or not, it was modified, and thus the majority’s assetpurchase metaphor fails. First, the trust’s modification has practical

and legal ramifications for which the asset-purchase legal fiction

does not properly account. For example, the trust’s liabilities,

contractual rights and obligations, rights to property, and fiduciary

duties all continued through modification. Yet under the majority’s

reasoning, the privileges necessary to defend the trust and to assert

these rights terminated. This is a position I cannot support. I would

therefore hold that the reformed trust is the same trust as it was

before modification, and that the special fiduciary, charged with

administering the trust before and after modification, has the best

claim to assert privilege on the trust’s behalf. Second, in using the

asset-purchase legal fiction to reject the special fiduciary’s claim, the

majority fails to explain who now holds the privilege on behalf of the

old, hypothetically nonexistent trust. Thus, the majority fails to

address how SCM can even assert the privilege. Third, even

assuming the old trust terminated, as the last manager of the trust,

the special fiduciary would be the best party to assert attorney-client

privilege on the terminated trust’s behalf.

¶79 For these reasons, I believe that the majority errs when it

holds that the district court abused its discretion in ordering

disclosure of the privileged communications. To arrive at this

conclusion, the majority reasons that Judge Lindberg abused her

discretion in failing to conclude that her previous modification of the

trust, which was not appealed or reversed by our recent decision in

Lindberg, was incorrect. Then, the majority reasons that this earlier

incorrect modification could only be remedied by creating a legal

fiction, unprecedented in Utah law, that the modification was, in

effect, a termination insofar as the narrow issue of privilege was

concerned. The majority creates this legal fiction even though it

could harm trust beneficiaries and even though it does not account

for who is entitled to assert privilege on the terminated trust’s

behalf. This is too slender a reed upon which to rest a holding of
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

24 UTAH R. PROF’L CONDUCT 1.9(a).

25 970 P.2d 1234, 1253 (Utah 1998).

30

abuse of discretion. I would thus hold that the district court did not

abuse its discretion when it ordered disclosure of privileged

communications to the special fiduciary.

II. THE DISTRICT COURT DID NOT ABUSE

 ITS DISCRETION IN DISQUALIFYING SCM

¶80 The majority holds that the district court abused its

discretion when it disqualified SCM from representation adverse to

the modified trust, reasoning that the modified trust was never

SCM’s client. I believe this is incorrect for the same reasons outlined

above. Rule 1.9 of the Utah Rules of Professional Conduct provides

that “[a] lawyer who has formerly represented a client in a matter

shall not thereafter represent another person in the same or a

substantially related matter in which that person’s interests are

materially adverse to the interests of the former client.”24 As

discussed in Part I, supra, I would hold that the reformed trust is the

same trust that SCM represented before the trust’s modification. I

would also hold that SCM is currently representing clients whose

interests are adverse to the trust in matters substantially related to

the matters in which SCM previously represented the trust.

¶81 The majority rests its holding that disqualification was

inappropriate on its legal fiction that, for the purpose of attorneyclient relationships, an incorrectly modified trust is no longer the

same trust that existed before modification. I have addressed why I

think this argument is incorrect in Part I, supra. But when the

attorney who represents a trust switches sides and represents clients

suing that trust in matters substantially related to his previous

representation, the majority’s legal fiction becomes even less

workable.

¶82 The overlap of SCM’s representation is extensive. But

perhaps the most troubling aspect of SCM’s previous representation

of the trust is that SCM helped to restate the trust in 1998 after we

held in Jeffs v. Stubbs that the 1942 version of the trust was not

charitable and that beneficiaries, therefore, had standing to sue.25 In

that case, the trial court held that the trust was charitable, which had

the effect of denying would-be beneficiaries standing to assert
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

26 Id. at 1251.

27 Id. at 1251–53.

28 See, e.g., id. at 1252 (quoting RESTATEMENT (SECOND) OF TRUSTS

§ 364 cmt. a (1959)).

31

“breach of fiduciary duty, accounting, and distribution claims.”26 But

we reversed, holding that the trust’s settlors had structured the trust

so that it would benefit specific individuals, and that these individuals therefore had standing.27 Restating the trust so that it had no

specific beneficiaries, but was instead “‘devoted to the accomplishment of purposes beneficial to the community,’” made the trust

charitable and was one way to deny standing to those who, now

incidentally rather than specifically, benefitted from the trust.28

Indeed, SCM has, in previous litigation, made this argument on

behalf of the trust. But now SCM represents beneficiaries suing the

trust—even though SCM, during its representation of the trust, tried

to immunize the trust against exactly these kinds of suits. When it

issued the presently disputed disqualification order, the district

court found that

it is abundantly clear that during the 17 years that

[SCM] (and, in particular, Mr. Parker) represented the

Trust, [SCM] advocated positions on matters “substantially factually related” to those presently at issue

before this Court. Furthermore, the positions previously advocated by [SCM] on behalf of the Trust are

directly contrary to their present arguments on behalf

of the Movants. For example, [SCM] does not dispute

that the 1998 Restatement drafted by Mr. Parker expressly

provided that any donations to the Trust would be made

“without any reservation or claim of right and/or ownership,” and that “use of property owned by the [Trust]

is not and does not become a right or claim of anyone

who may benefit in any way from the Trust.” [SCM],

on behalf of the Trust, vigorously litigated this position in several cases . . . . Now . . . [SCM] argues that the

Movants [have rights] to use Trust land, and that such

use invests them with “rights” to seek an injunction

against the Fiduciary in order to prevent the sale of

certain Trust land.

. . . [I]n light of the breadth of [SCM]’s prior represen-
SNOW et al v. HONORABLE LINDBERG

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

29 State v. Maughan, 2008 UT 27, ¶ 20, 182 P.3d 903.

32

tation of the Trust and the arguments it is now making

against the Trust, the Court is persuaded that the

substantiality requirement is satisfied in that there is “a

factual nexus between [SCM]’s prior and current representations.”

Since the legal reality of this case is that the trust has been modified,

disqualifying SCM from representing clients with interests adverse

to its former client in substantially related matters was not an abuse

of the district court’s discretion.

¶83 But even assuming, as the majority does, that the reformed

trust is not the same trust that SCM represented, who SCM has

represented is less than straightforward. Indeed, this case seems ripe

with potential nascent conflicts. SCM represented a religious trust

and helped restate it to avoid suits by beneficiaries; then, after being

fired by trustees who did not want to defend the trust against

lawsuits, petitioned the court to notify the Utah Attorney General so

that the Attorney General could intervene and defend the trust

anyway. After the Attorney General intervened and the court

suspended the trustees, appointed a special fiduciary, and modified

the trust, SCM has now returned to represent charitable beneficiaries

against the trust that SCM drafted in 1998 and that was modified as

a result of the petition SCM filed after being fired by the former

trustees. Even if the reformed trust is not the old trust, this pattern

of representation leaves questions about where SCM’s loyalty lies:

Is it with the old trust, the former trustees who fired SCM, charitable

beneficiaries of the old trust who they evidently tried to protect by

petitioning the court against the former trustees’ wishes after their

firing, or beneficiaries of the modified trust? Given these potential

nascent conflicts and the wide latitude we grant district courts when

deciding matters of disqualification,29 I would hold that, even

assuming the legal fiction that the modified trust is not the same

trust SCM represented, the district court did not abuse its discretion

in disqualifying SCM.

¶84 The sole argument SCM presents, apart from arguing that

the modified trust is not the same client SCM represented, is that the

special fiduciary waived any right to move for disqualification due

to its failure to object to SCM’s earlier representation of a party in a

matter adverse to the trust. Although SCM filed a memorandum in
Cite as: 2013 UT 15

CHIEF JUSTICE DURRANT: concurring in part,

dissenting in part

33

opposition to the special fiduciary’s motion to disqualify below,

SCM never argued the waiver issue to the district court. It cannot be

argued that the district court abused its discretion in failing to

consider a waiver argument it never had an opportunity to consider.

¶85 In sum, I would hold that the district court did not abuse

its discretion when it disqualified SCM because SCM is representing

parties with interests adverse to its former client, the trust, in matters

substantially related to the matters in which SCM represented the

trust. But even if the modified trust is not the same trust SCM

represented, I believe the potential for nascent conflicts in this case

warrants granting the district court wide discretion, which it did not

abuse when it disqualified SCM.

CONCLUSION

¶86 The reformed trust is the same trust SCM previously

represented. As a result, the district court did not abuse its discretion

when it disqualified SCM and ordered disclosure of privileged

communications. But even under the court’s legal fiction that the

two trusts 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 the 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

discretion. I would therefore deny SCM’s petition for extraordinary

writ.