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Mother’s Rights in Utah – Although Utah is a seemingly conservative state, there are still some benefits available to mothers, whether single or married. It is important mothers seek legal representation from a qualified mother rights attorney with experience on important family law matters such as child custody, child visitation, child support, and so on. An experienced family law attorney can help you make an informed decision and seek the fair enforcement of your legal rights.
Courts no longer favor mothers as they used to – While it is true mothers have been highly favored by the court system, there has been a recent shift in recent years. Now, fathers are also favored in child custody disputes. The courts take a look at both parents’ circumstances and determine whether they are equipped to raise the child. Joint custody also comes into play as it keeps the father equally involved in the child’s life. This approach can save the family, even when parents decide to file for divorce. So mothers must show that they are the most capable parent with the help of an experienced mother rights attorney otherwise they may not be able to claim their rights.
Even though children born outside of marriage and births to unmarried parents no longer raises eyebrows in Utah, having a child with a person you are not married to does create quite a few legal challenges that must be taken into account.
Establishing paternity is vital
If a child is born to an unmarried couple, a father can be legally named as the father of the child only after establishing paternity. The mother of the child born to a man outside of marriage will not be able to request a child support order until paternity has been legally established. The child whose paternity has not been established and documented will have no legal claim on his or her father’s inheritance rights or financial benefits. If paternity of the child is not disputed or questioned, the father can gain rights to his child by signing a Voluntary Declaration of Paternity in Salt Lake City Utah. This form is usually offered to the father after the baby is born in the hospital. This is a voluntary way of establishing paternity in Utah and does not require the man to take a paternity test. If the mother or father have doubts over the paternity of their child or anyone contests paternity, the man who is thought to be or claims to be the father must take a paternity test. If the child’s biological connection is linked to the man, paternity will be legally established.
Unmarried mother has the natural (primary) right to custody
One of the biggest legal challenges faced by the father of the child whose paternity has not been established is that he may not be able to gain custody rights. Under federal and state laws in Utah, when the child is born to unmarried parents, the mother will gain the natural or primary right to custody. The father whose name was not included on the birth certificate, meanwhile, has no right to custody until paternity is legally established. In case any legal action arises between the unmarried parents – be it child custody, parent visitation, or other – the father of the child will have no legal claim whatsoever in courts unless paternity has been established at or after birth.
Father gains primary custody of a child if the unmarried mother abandons, neglects or abuses her child or if her parental rights are legally disputed, the father can gain primary custody of that child only if paternity has been legally established. The mother, meanwhile, will have her custody rights removed if the court proves any of the above-mentioned wrongdoings to be true. If no father has established paternity, the child will be placed in foster case. As you can see, there are quite a few legal challenges that unmarried parents may face. If you have any questions about your custody rights as an unmarried parent, consult a Salt Lake City child custody attorney right away.
It is important to establish what is in the best interest of your children during and after your divorce and what parenting plan will work best for your situation to present to the court during the divorce proceedings. The court will evaluate both the mother and father to determine the child or children’s best interest for the following:
• Child Custody – Utah courts presume that joint legal custody is in the child’s best interest. Primary custody is usually awarded to the child’s primary caretaker over the parent who is the primary financial provider.
• Child Support – In Utah, child support is based on the number of overnight stays a child spends with each parent.
• Spousal Support – A mother in Utah us entitled to temporary alimony during divorce proceedings and post-divorce alimony based on circumstances surround her divorce.
• Marital Property Division – The courts will take into consideration factors like your age, the length of your marriage, the occupation, and standard of living of each spouse to enter a ruling for the division of marital property.
• Domestic Violence – A mother in Utah have the legal right to seek protective orders if she feels unsafe during the legal proceeding for divorce, child custody, child support and visitation rights. The mother’s rights advocates at Wasatch Defense Attorneys will help you obtain a protective order to help you feel safe during your legal proceeding
Importance of Establishing Paternity
To establish child support orders in Utah, an unmarried mother must first establish the child’s paternity. Under the Utah Administrative Procedures Act (UAPA), the Office of Recovery Services (ORS) has the authority to legally establish paternity to ensure parents are financially responsible for their children.
What Are Your Legal Rights As A Mother?
Mothers have certain legal rights when it comes to her children. During a divorce proceeding, it is important for mothers to obtain legal assistance when it comes to child custody, visitation, child support and other legal matters. Wall & Wall Attorneys at Law are experienced in representing mothers in family law issues, and will actively seek a fair enforcement of your rights in order to obtain a favorable result.
Mothers Are No longer Favored… What Does That Mean For Mother’s Rights?
Although the mother has been historically favored by the court system for many years when it comes to custody disputes, the latter half of the 20th century saw a greater shift in the rights of fathers. The courts have begun to decide more cases based on an even playing field, looking at the merits of both parents and their ability to raise the child. They have also begun to favor joint custody, as a way to maintain the presence of the father in the child’s life. Some judges will want to do what they can to preserve the family, even if there is no chance of reconciliation between the two parents. So with the assumption that the mother is always the better choice for custody now gone, she must be able to show that she is a good parent and capable of taking care of the child, especially in a contentious court battle.
Mother’s Rights In Utah
When you need legal help with Utah Mothers Rights, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
Utah Real Estate 57-1-11: Claimant Out Of Possession May Convey.
Any person claiming title to any real estate may, notwithstanding there may be an adverse possession thereof, sell and convey his interest therein in the same manner and with the same effect as if he were in the actual possession thereof.
How to Acquire Property through Adverse Possession
It is a cornerstone of American law that no one can take real property from you without paying you. However, the law of “adverse possession” is an exception. With adverse possession, someone gains title (ownership) to the real estate by continuously occupying it for a certain length of time. In order to acquire property using adverse possession, you need to treat the property as if you own it by making improvements to the property and, in some states, paying taxes.
Occupying the Land
• Occupy the land in a “hostile” fashion: Adverse possession requires that you make a “hostile” claim on the land. This means different things in different states.
For example:
In some states, simply occupying the land qualifies. Most states follow this rule.
In other states, you have to be aware that you are trespassing. This means that you know the land doesn’t belong to you, but you occupy it anyway.
In a few states, you must make a good faith mistake when you occupy the land. This generally means that you think you have a valid deed for the property but the deed is either defective or fraudulent.
• Possess the land: To adversely claim the property, you must have actual possession. You must also treat it as if you were the owner by, for example, making improvements to the property.
Be sure to document any improvements on the property. For example, you might have built a small building on the property or erected a fence. Take photographs of the changes you have made.
Evidence like this will be important when you later bring a lawsuit to get title to the property.
• Occupy the land in an “open and notorious” fashion: You can’t be hiding on the property if you want to claim it using adverse possession. Instead, it must be obvious to anyone that someone is living on the land. Visible changes to the property should tip people off that someone is living there. Accordingly, take photographs or get witness testimony that they saw you coming and going from the property regularly.
• Possess the land continuously and exclusively: To claim adverse possession, you can’t stop into someone’s property once every six months. Instead, the law requires that you really possess it. This means two things:
You continuously occupy the land. You can’t abandon the property and then return later. Each state has a time period for how long you must continuously occupy the land.
You exclusively occupy the land. You can’t share possession with the actual owner of the property or with strangers.
• Pay taxes on the property: In some states, you must actually pay taxes on the land in order to qualify for adverse possession. In other states, the amount of time you must continuously occupy the land will be reduced if you pay taxes. Make sure to hang onto copies of your tax assessment and canceled checks or other proof that shows you paid taxes on the property. You will be sent the tax bill if you took possession with what you thought was a valid deed, and you recorded the deed with the Recorder of Deeds office. However, if you don’t have any deed, then in some counties you can go to the tax assessor’s office and file a document asserting your attempt to establish adverse possession.
• Read your state law: In order to understand your state’s specific requirements, you should read your state’s laws on adverse possession.
• Perform a title search: You need to find out exactly who owns the property so that you can sue them in court. You can hire a title company to perform a title search. When you get the title report back, look to see who owns the property. There are many different interests people can have in the property. For example, someone might claim an “easement” on the property. This means that they have the right to use a portion of the property for a certain purpose (e.g., use a driveway to reach their own piece of property). You will need to sue all people who have an interest in the property. This includes the owner, as well as anyone with an easement or other interest. Your title report should identify all of these people.
Filing a Lawsuit in Court
• Consult with a lawyer: Adverse possession claims are complicated. You really have only one shot of winning this kind of lawsuit. Once the owner is tipped off that you are trying to get the property, they will move to eject you. Accordingly, you should think about hiring a lawyer to represent you. He or she can tell you what kinds of evidence will be most persuasive. You can find a lawyer by contacting your local or state bar association and asking for a referral.
• Get a complaint form: You need to bring a lawsuit to “quiet title,” which is a suit to decide who owns the title to the property. You will start the quiet title action by filing a document with the court called either a “complaint” or a “petition.” This document should identify you, the property, and the owner of the property. Many courts have blank complaint forms you can complete. Using a printed complaint form makes bringing a quiet title action easy. You should go to the county court in the county where the property is located. You can find this court by looking in the phone book or online.
• Format your own complaint: If your court does not have a form you can use, then you need to create your own. You can begin by opening a blank word processing document and setting the font to Times New Roman or Arial 14 point. Also double-space the document and use one-inch margins throughout.
• Create a caption: The caption appears at the top of the page. It contains standard information and will not change throughout the lawsuit. The caption should contain the following information:
The name of the court. Insert this at the top of the page, centered between the left- and right-hand margins. Also type the court name in bold, all caps.
Your name. You are the “plaintiff.” You should type your name like this “Michael Jones, plaintiff.” Put this information beneath the court name, justified with the left-hand margin.
The letter “v” a couple of lines below your name.
The name of the owner of the property. Space down three lines below the “v” and insert the name of the owner, justified with the left-hand margin.
The case number. On the right-hand side of the page, you should type “Case No.” and then leave a blank line. The court clerk will give you a case number when you file your petition.
• Title the document: You can title your complaint “Action to Quiet Title” or “Complaint to Quiet Title.” Insert the title right below the caption and make your title all caps, in bold. Add an introduction. Your introduction can briefly identify yourself and state why you are bringing this action
• Identify the parties: You should state your name and address. Also include this information for all defendants. Also identify the land. The land is a party to the lawsuit as well. You should state where the property is located; using a street address, but then you should also attach a legal description of the property to the complaint.
• Explain that you have adversely possessed the land: Go into detail and explain how you have satisfied your state’s law on adverse possession. You should number your paragraphs so that each fact has its own number. Also be sure to identify your state’s law on adverse possession by number.
• Insert a conclusion: In conclusion, request that the court enter judgment in your favor. Then add a signature block underneath the conclusion and include the words “Respectfully submitted” just above the signature line.
For example, your conclusion could read: “Wherefore, Plaintiff respectfully requests that this Honorable court find in his favor and against Defendants, and enter a judgment ordering the Recorder of Deeds to convey the property located at [insert address] to Plaintiff, upon presentment of an order stating the same, and granting such other relief as is necessary and appropriate.”
• Include verification: In many states, every complaint must be “verified.” This means that you swear under penalty of perjury that every statement made in the complaint is truthful. You can either create a separate affidavit or you could add a paragraph underneath your signature verifying that the statements are true. For example, you could state the following: “I hereby verify that the statements set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that these statements are made subject to the penalties under the laws of Maine relating to unsworn falsification to authorities.”
• File with the court: Once you have completed your complaint, you should make multiple copies. Take your copies and the original to the court clerk. Ask to file. You probably will have to pay a filing fee, which will differ depending on your county. If you can’t afford the fee, then ask for a fee waiver form. This form will typically ask for information about your monthly income and expenses.[20]
• Serve notice of the lawsuit on the record owner: You will need to give the owner of the property notice that you are suing. Generally, you must arrange for someone to serve a copy of your complaint on the owner. You may also have to publish notice in a newspaper. This publication will let everyone who might claim an interest in the property know that you are trying to quiet title to it.
Going to Court
• Organize your evidence: Go through each element that you need to prove to win an adverse possession claim. Then find evidence that can help you prove that you have met the law’s requirements. For example:
Hostile occupation. If your state requires that you occupy the land because you have a deed, then get your copy of the deed. It will be an exhibit in your trial.
Open and notorious occupation. Use photographs or video that shows you openly possessed the land. You could also find witnesses, such as a neighbor, to testify. Of course, you can testify on your own behalf, but it will be more convincing to also have third party witnesses testify.
Continuous possession. You and witnesses can testify that you possessed the land for the required number of years.
Payment of taxes. Get receipts that show you made payment.
• Dress for success: You should look professional for your trial. Try to dress up as best as you can. Although you don’t have to wear a suit, you should wear one if you feel more comfortable in a suit. Remember the following tips:
Men should wear dress pants and with a button-up shirt. Make sure the shirt is long-sleeved (and not short-sleeved). Wear a conservative tie if you have one. For footwear, wear dress shoes (not sneakers) with dark-colored socks.
Women can wear a skirt or slacks with a blouse. Women can also wear conservative dresses. For women, fit is most important. Make sure the clothing is not too tight or too revealing.
Neither men nor women should wear shorts, blue jeans, tank tops, T-shirts, clothing with writing, flip flops, or hats.
• Present your evidence: You will go first at the trial. You should have your witnesses ready to testify. Also have exhibits prepared that support your claim that you have met all of the requirements for adverse possession.
• Testify at the trial: You will probably have to testify. For example, you will want to explain to the judge the improvements you have made to the property as well as the fact that you have continuously and exclusively occupied the property for the required number of years. Remember the following tips when you testify:
Listen closely to the question and answer the question asked. If you don’t understand a question, ask for clarification.
Don’t guess. If you don’t know the answer, then say you don’t know.
Always tell the truth. You are testifying under oath, and it is against the law to lie in court.
Never argue with the attorney or the judge.
• Listen to the defendant’s witnesses: The owner of the property also gets to put on a case. He or she could call witnesses who challenge your version of events. You will have a chance to cross-examine them. For example, the owner might have someone testify that you left the property for long periods of time.
• Receive the verdict. The judge should issue a ruling shortly after all evidence has been presented. In many states, you can’t get a jury for a quiet title action, so the judge will hear all of the evidence and then make a decision. If you lose, then you should consider bringing an appeal. An appeal is heard by a higher court, which reviews the trial transcripts. If the judge made a serious error, then the appellate court can set aside the verdict. You can start the appeal process by filing a Notice of Appeal with the trial court. You shouldn’t delay. Generally, you get 30 days or less from the date final judgment is entered to file your Notice of Appeal.
• File your judgment with the Recorder of Deeds: In order to become the new record owner of the property, you need to take your final judgment to the Recorder of Deeds office. Ask to enter the judgment on the books so that you show up as the new owner.
Real Estate Attorney
When you need help from a real estate attorney in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
We are hotel lawyers in Utah. If you own or manage a hotel or motel in Utah, call Ascent Law for Legal help.
Hotel Lending Lawyer: What Every Hotel Lender Needs To Know About Hotel Franchise Agreements
Hotel loan problems and hotel loan document issues are best dealt with at the loan origination. Do you know these fundamentals about your hotel loan documents dealing with hotel management agreements (HMAs) and hotel franchise agreements? There is a long list of things every hotel lender should take into account before making a loan so that it will be protected when a default occurs — much less a foreclosure. But few considerations are as important as dealing with issues raised by HMAs and hotel franchises. Lenders need hotel-specific experience not just real estate experience because, “You don’t know what you don’t know.” And what you don’t know can cost you a bundle. Because a hotel’s operating business is inextricably intertwined with single-purpose real estate, the borrower’s financial obligations are exceedingly complex.
Why hotel loans are different than other real estate loans
Hotel lending involves more lending to an operating business than lending to an owner of most types of commercial real property. Unlike typical real estate, hotel revenues are cyclical and not fixed. In fact, hotel revenues change daily. (That can be good news, as hotels can be a solid inflation hedge.) An experienced hotel lender will structure its loan with hotel-related loan covenants consistent with the hotel’s operating results, so that loan payments will more closely match the fluctuating and cyclical nature of hotel revenues. Further, because the hotel is an operating business, the hotel will succeed or fail by the actions and inactions of the hotel management team. Running a hotel is much more difficult than running a traditional real estate project. Because many lenders handle their hotel lending out of their real estate lending department, they often make the mistake of twisting their real estate secured loan documents to include hotel lending provisions. This is always a mistake. We have to remind these lenders that “You don’t know what you don’t know” when it comes to hotel lending. Hotel loans need to be in the hands of legal and business hotel specialists. Because the operating business of the hotel represents at least half the value of the hotel, the hotel lender has to be tuned into issues that arise in the running of the hotel.
Such issues include hotel projected revenues and expenses, marketing, trade credit, capital and operating costs, revenue enhancement and cost containment, employment and unions, ADA compliance, labor and employment, branding, back-end systems, and so forth. Any good commercial real estate lender will plan for an exit strategy in the event the borrower should default. For the hotel lender, this means it must be prepared to own and run a hotel. Hotel management and branding are keys to a successful hotel. The hotel lender has to understand thoroughly the hotel management and franchise arrangements. An experienced hotel lender will be well aware that the hotel and franchise agreements carry significant obligations, burdens and requirements on the hotel owner’s part. The hotel lender must confirm that the hotel owner has the financial resources and experience to comply with them. The hotel lender also needs to understand the other costs associated with the hotel management and franchise agreements, how these issues impact the value of its collateral, and how these agreements impact its rights and remedies as a hotel lender. For example, such arrangements will have a significant cost structure, including a requirement that the hotel owner pay a variety of fees beyond the base fee, such as incentive fees, marketing fees, centralized system fees, consulting fees, and so forth. This fee structure can often be three or four times the base fee amount. This is why the hotel lender needs to take a systematic approach to reviewing the hotel and the hotel operating documents.
Buying a Hotel and Financing Hotel Purchase
Buying hotels is in vogue right now. But financing hotel purchases has some twists every borrower should understand. The industry fundamentals continue to go from good to better, and values are increasingly favorable compared to alternative investments. Many think that this is the time to jump in, before it is too late. Most hotel buyers will want financing. Some of the big REITs or other cash rich players will buy for all cash and then find financing at their leisure. That gives them an advantage in bidding on hot properties. But most buyers will want financing to pay for their acquisition. Either way, there are some things your mother may not have told you, but as a buyer (and a borrower) in a hotel purchase, you really should know these 10 things that my partner, hotel lawyer Jeffrey Steiner, lays out for us in his article. The following are some special aspects of hotel lending for borrowers to be aware in negotiating hotel loans. Many of this matter are appropriately addressed at the term sheet or commitment stage, rather than leaving them to be negotiated in the loan documents.
Franchise Agreements; Comfort Letters.
A hotel franchise may be important in the lender’s underwriting of a hotel’s economic performance. Many contracts valuable to the real property collateral for a hotel loan, such as leases and management agreements, can be collaterally assigned to the lender and preserved after a mortgage foreclosure. However, major brand hotel franchise agreements typically are not assignable to hotel lenders and are not assumable by a foreclosure purchaser. Also, the hotel lender is exposed to the risk of a borrower default under the franchise agreement and its termination before the hotel lender is in a position to cure. In the absence of a separate agreement between the hotel lender and franchisor, the hotel lender faces the risk of franchise loss following a foreclosure or imposition of new franchise fees, property improvement requirements (known as a property improvement plan or program (PIP)), or more stringent franchise terms as a condition of franchise continuation.
Comfort Letters. To improve the lender’s position, typically it will require the franchisor to enter into a separate agreement addressing lender cure and franchisor termination rights upon a borrower franchise agreement default and lender rights to continue the franchise after a foreclosure. This agreement is known as a “comfort letter.”
Typical terms of a comfort letter. The following are some typical terms of a comfort letter:
• Franchisor default notice to the lender and lender cure rights, including time extensions (such as 120 days) for the lender to gain access to the hotel through a receiver or by completing a foreclosure before the franchise rights are terminated;
• the lender’s right to obtain a new franchise agreement following foreclosure without having to pay a full franchise application fee or complete a PIP, or continue the existing franchise agreement for a limited period while the lender decides whether to continue it on a longer term basis or permit a purchaser from the lender to make that decision without the lender incurring franchise termination fees;
• the lender’s right to transfer the franchise agreement post-foreclosure to a hotel purchaser and be relieved of future liability under the franchise agreement;
• the lender’s rights to transfer the comfort letter benefits to its successor, if it sells the hotel loan.
The hotel lender will require a borrower covenant to perform its obligations under the franchise agreement and not amend or terminate the franchise agreement without the lender’s consent. The borrower should negotiate for exceptions to the restrictions on amendments for minor changes and modifications not detrimental to the lender’s interests, such as a franchise fee reduction or term extension. Also, the loan documents should detail the time the lender has to respond as to whether proposed amendments are approved and what happens if the lender does not respond on a timely basis.
Hotel Management Agreement; SNDAs
The hotel lender will typically also require the assignment of any hotel management agreement to it as additional loan security. If the hotel manager is a borrower affiliate, the hotel management agreement, or at least the manager’s right to fee payments, will have to be subordinated to the hotel loan payments. The borrower will be restricted from amending or terminating the hotel management agreement without the lender’s consent. The borrower may want to negotiate for rights to terminate for a manager default or performance test failure, or to make modifications that are minor or not detrimental to the lender’s interests without having to obtain the lender’s consent, such as management fee reductions, or a term extension if the manager is not in default.
Do’s and Don’ts for Distressed Hotels
The hotel lender may require the borrower to replace the hotel manager if there is a failure of financial covenants in the loan documents. The borrower should determine at the loan commitment stage what rights the lender will require to force the hotel manager termination. That way the borrower can evaluate whether it has those rights under the hotel management agreement or if the manager will modify the borrower rights to terminate to conform to the loan documents. Even if the borrower can terminate the hotel manager, the logistics of doing so while remaining in compliance with the loan document covenants may be difficult, unless the covenant terms are carefully negotiated in the loan documents. The loan documents will generally require that the hotel continuously be managed by a qualified hotel manager, while any new hotel manager and new hotel management agreement must be approved by the lender, which can take time. The borrower may be able to negotiate in the loan document a standard for new hotel manager qualification and permitted new hotel management agreement terms, so that the selecting an replacement manager selection process can be streamlined.
For instance, if the hotel is branded, the franchisor may maintain a pre-approved management company list, and the lender may allow any franchisor-approved management company to be the manager. A hotel management agreement is a contract for services that binds the hotel owner, but not the hotel real property, as distinguished from a lease of hotel space, for instance, that creates a real property interest to which a future hotel owner’s rights will ordinarily be subject. A successor hotel owner, including a lender acquiring by foreclosure, is not typically bound by the hotel management agreement and may terminate the existing hotel manager without liability to it. Major hotel management companies entering into long term hotel management agreements may require that as a condition of the hotel owner obtaining a hotel loan, the general legal principles regarding hotel management agreement survival be reversed. This change is accomplished through a separate agreement of the lender to be bound by the hotel management agreement following a foreclosure, which is commonly known as a Subordination, Non-disturbance and Attornment Agreement (SNDA), a name taken from the real estate leasing world. Lenders also may have want an SNDA with the hotel manager confirming the subordination principle, providing for the lender to receive notices of default and cure rights before the hotel management agreement can be terminated, and imposing restrictions on amendments and terminations without lender consent.
Hotel Cash Management
A cash management mechanism is required in almost all major hotel loans, particularly for loans to be securitized. The cash management system ordinarily requires that hotel revenues be deposited directly into a bank deposit account sometimes referred to as a clearing account or lock box that is blocked to borrower withdrawals. The borrower is required to send payment direction letters to credit card processors and other major hotel revenue sources, such as travel agencies, group travel organizers, airlines, and retail tenants, requiring them to make payments into the clearing account. The next stage of the cash management system is more critical to the borrower in terms of its practical effects on day to day hotel operations. In the more restrictive version (sometimes known as a hard lock box or cash management arrangement), the clearing account receipts are swept periodically into a lender-controlled account for distribution to subaccounts, such as for debt service, property taxes, insurance premiums, capital reserves, and operating expenses or excess cash flow subaccount. The subaccounts are filled from the available cash in the clearing account in the priority set forth in the loan documents known as a “cash flow water fall.”
In this arrangement, the amount payable for operating expenses may be based upon a lender approved annual operating budget, or the amount in the excess cash flow subaccount will be distributed to the borrower’s operating account for use to pay operating expenses instead of there being a specific allocation to an operating expense subaccount. The borrower’s right to the excess cash flow or operating expense payments may be suspended in the case of loan default. In the less restrictive system more favorable to the borrower (sometimes known as a soft lock box or cash management arrangement), the funds in the clearing account will automatically be distributed or swept to a borrower operating account for use by the borrower in its discretion, until the lender notifies the clearing account bank to cease the sweeps to the borrower operating account. The lender may terminate the sweeps to the borrowing operating account upon a loan default or other triggering events identified in the loan documents, such as a debt yield or debt service ratio test failure. When those sweeps terminate, the funds will be redirected to the cash collateral account and handled in a similar fashion as in the hard cash management system. In negotiating the cash management system details, the hotel owner should take into account the requirements of its hotel manager, which may want hotel revenues to flow through its cash management system, so it has control over the funds to pay hotel operating expenses for which the manager may have personal liability, such as employee wages and benefits. It is advisable for the hotel owner to build in flexibility to meet lender cash management requirements when it negotiates its hotel management agreement.
PIP Reserve And Capital Reserves
PIP Reserve. If the hotel financing is funding a branded hotel purchase, the franchisor may require a PIP to be completed following the closing the purchase and finance closing. A hotel lender will typically require that the borrower deposit funds needed to pay for the PIP (plus a contingency) in a pledged reserve account or in a “hold back” from the loan proceeds to be disbursed to pay costs as the work progresses or upon completion. Alternatively, the borrower may be able to negotiate to substitute a letter of credit for the reserve account. The lender may also require a completion guaranty from the borrower’s principals, or if the borrower has strong enough sponsorship, the lender may accept a parent completion guaranty in place of the reserve. The borrower should make sure the loan document terms for reserve disbursements are consistent with its cash flow requirements for funding the work, and the time schedule for progress payments to the borrower’s contractor. To allow the borrower to complete the PIP work in an orderly manner and in accordance with the franchisor’s time schedule, the borrower should negotiate for the Approval Mechanism to apply to lender approvals of plans, design changes, contractors, and applications for payment.
Capital Reserve: The hotel lender will typically require that a capital reserve be funded periodically from hotel gross revenues, usually 4% of gross revenues, and deposited in a lender controlled account. The loan documents will address the permitted capital reserve uses, and the conditions upon reserve disbursements. If lender budget approval is required, the capital reserve use may be limited to projects identified in the budget, or else, the capital reserve funds may be available for any projects necessary to keep the hotel in the condition required by the loan agreement, franchise agreement, and hotel management agreement. The conditions upon disbursement may include lender approval of the contractors, plans for major projects, bonding requirements, invoices and lien releases in applications for payment, and title insurance endorsements. Borrower compliance with these requirements may be burdensome and expensive. Through negotiation, certain requirements may be eliminated or restricted only to projects costing above a minimum threshold. Exceptions to the requirement that capital expenses be on the approved budget may also be qualified for improvements to meet brand standards, improvements costing less than an agreed upon maximum, code-required improvements, and tenant improvements. The Approval Mechanism should also be applicable to lender decisions concerning capital reserve use.
Motel Annual Operating Budgets
The degree to which a hotel lender will require control over the hotel’s annual operating budget will depend in part upon the level of cash management control imposed. In those cases, whether at the loan inception or following a triggering event, where the disbursements to the borrower to pay operating expenses are subject to lender control, it follows that the lender will have to approve the annual operating budget. Where the cash management controls are not as strict, the hotel lender may be willing to forego budget approval, particularly for lower loan-to-value ratio loans. Also, if the annual operating budgets are being prepared by a major hotel management company, the hotel lender may be willing to eliminate budget approval as long as that management company operates the hotel. In any case where lender approval is required, the borrower should negotiate for coordination of the lender approval process with the time schedule for budget delivery and approval in the hotel management agreement. Provisions addressing the temporary budget to be used if the final annual operating budget has not been approved in time, and dispute resolution provisions in the hotel management agreement, also need to be consistent with the loan documents. Finally, having the Approval Mechanism apply to the lender-budget approval is an important part of the coordination effort.
Hotel Lawyer In Utah
When you need a hotel lawyer, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
Custody of children in case of separation or divorce–Custody consideration
Child custody issues arise in divorce, legal separation, protective orders, child abuse cases, and paternity cases. Two types of child custody must be considered: legal custody and physical custody. Legal custody has to do with a parent’s rights, privileges, duties, and powers, regarding a child, including authority to make decisions. Physical custody has to do with where the child will live. The trial court has broad discretion to determine custody.
Child Custody
In cases where the parties are separated or where a marriage is declared void or dissolved the court shall enter an order of custody and parent-time, and the court shall have continuing jurisdiction to modify the order. In making custody determinations, the court is to consider the best interests of the child, and may consider the following factors:
• evidence of domestic violence, neglect or abuse;
• ability to meet the developmental needs of the child;
• capacity and willingness to function as a parent;
• past conduct and moral character;
• emotional stability;
• drug abuse, excessive drinking or other causes affecting the ability to function as a parent;
• intentionally exposing the child to harmful material, including pornography;
• reasons for having relinquished custody or parent-time in the past;
• desire for custody or parent-time;
• religious compatibility;
• financial responsibility;
• relationships with step-parents, extended family, etc.;
• who has been the primary caretaker;
• previous arrangements in which the child has been happy and well-adjusted;
• keeping siblings together;
• wishes and concerns of a mature child;
• strength of bond with parents; and
• any other factor the court finds relevant.
There can be joint, split, or sole custody. Joint custody may be joint legal custody, joint physical custody, or both. Joint legal custody means sharing the rights, privileges, duties and powers of a parent. Joint physical custody means that both parents have periods of time during which the children reside with them and that both parents contribute to the support and expenses of the child. There is a rebuttable presumption that joint legal custody is in the best interests of the child except when there is evidence of domestic violence, neglect or abuse; special physical or mental needs; physical distance between the residences of the parents; or other factors the court deems relevant.
Split custody means that each parent has physical custody of at least one of the children. Sole physical custody is where one parent has all the children residing with them and the other parent has some type of parent-time rights. A presumption favors natural parents and adoptive parents over nonparents. That presumption may be rebutted by evidence that:
• no strong mutual bond exists,
• the parent has not demonstrated a willingness to sacrifice their own interest and welfare for the child, and
• the parent lacks sympathy and understanding of the child. Once that presumption is rebutted the custody decision is made based on the best interests of the child.
Joint Custody and Parenting Plans
The court may not order joint legal and/or joint physical custody unless one or both of the parents files a parenting plan and the court determines it is in the best interests of the child. A parenting plan is a plan for parenting a child, including allocation of parenting functions such as maintaining a loving relationship, attending to daily needs, education, assisting with interpersonal relationships, exercising appropriate judgment, and financial support. Any party seeking a shared parenting arrangement, such as joint custody, is to file and serve a proposed parenting plan when they file their petition, answer, or counterclaim. A party that files a proposed parenting plan, as required, may move the court for an order of default to adopt the plan if the other party fails to file a proposed parenting plan. The parenting plan must include provisions concerning future dispute resolution, allocation of decision-making authority, residential arrangements, and provisions addressing notice and parent-time responsibilities in the event of the relocation of either party. Either parent may make emergency decisions affecting the health or safety of the child. Each parent is allowed to make decisions regarding the day-to-day care and control of the child during times that the child is residing with that parent. Other provisions may be included regarding the welfare of the child.
In deciding whether or not to make an order of joint legal custody and/or joint physical custody, the court is to determine whether the best interest of the child will be served by such an order, considering the following factors:
• whether or not the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
• the ability of the parents to give first priority to the welfare of the child and reach shared decisions;
• co-parenting skills, including ability to appropriately communicate with the other parent, encourage the sharing of love and affection, and willingness to allow frequent and continuous contact between the child and the other parent;
• whether both parents participated in raising the child before the divorce;
• the geographical proximity of the parents’ homes;
• the preference of a mature child;
• the maturity of the parents;
• the past and present ability of the parents to cooperate with each other and make decisions jointly;”; and
• any other relevant factors.66
An order for joint legal custody or joint physical custody is to provide the terms the court believes are appropriate. Any parental rights not specified in the order may be exercised by the parent having physical custody most of the time. The order may be modified or terminated, following a hearing, based on the petition of either party.
Custody Evaluations
A custody evaluation may be used to determine which parent should have custody. Custody evaluations must be done by a state licensed clinical social worker, psychologist, state licensed physician who is board certified in psychiatry, licensed marriage and family therapist, or clinical mental health counselor. Unless otherwise specified, custody evaluators must consider the factors set forth in Utah Code sections 30-3-10 and 30-3-10.2.71. The court orders performance of a custody evaluation, based on stipulation or motion. Although one factor in deciding custody is who can give personal rather than surrogate care, it would be an abuse of discretion to change custody because the mom now has to work full time and the dad has a new wife who can stay at home with the children. Another factor to consider is the identity of the children’s primary caretaker. If the court looks at who has been the primary caretaker, in determining who should get custody, they would look at such things as: preparation and planning of meals; bathing, grooming, and dressing; purchase, cleaning, and care of clothes; medical care; arranging social interactions; arranging alternative care, putting children to bed and attending to them at night; disciplining children; educating children; and teaching elementary skills. The district court is required to provide specific findings in custody cases. Gender-based preferences are no longer allowed in child custody cases because of article IV, section 1 of the Utah Constitution and the 14th amendment of the U.S. Constitution. Under appropriate circumstances, Utah Code Annotated section 30-3-40 allows noncustodial parents to provide care for their minor children during times when the custodial parent is away for military service.
Can Children Express Preference in Utah Custody Proceedings?
Overview of Custody Decisions in Utah
Utah courts decide child custody whenever parents can’t come to an agreement on their own. Judges must consider a number of factors when making custody decisions, including each of the following:
• the parents’ past conduct and moral standards
• which parent is most likely to act in the child’s best interests, including allowing the child frequent contact with the other parent
• the child’s relationship with each parent
• either parent’s history of domestic violence
• the child’s special needs, if any
• the distance between the parents’ residences
• the child’s preference, if the child is old enough, and
• any other factor the court deems relevant to custody.
When Will the Court Consider a Child’s Preference?
Whether a Utah court will consider a child’s preference when deciding custody depends on the child’s age and maturity. Judges will give more weight to older children’s preferences (14 and older), and disregard the opinion of children under ten. Children between ten and 14 can have limited input on custody decisions. In one case, an 11-year old boy stated a preference to live with his father, but the judge specifically stated that an 11-year old shouldn’t have control over where he lives. Judges will also look at the reasons a child prefers to live with one parent over the other. In one case, a father with custody of two boys moved them from their hometown and away from their school, friends, and other family members. The children wanted to live with their mother to be close to friends and family, and to continue going to the school they knew. The court found that these were valid reasons to want to live with their mother and gave the children’s preferences significant weight in the custody decision. On the other hand, if a child’s reasons for wanting to live one parent are immature, for example, because one parent is more lax with discipline or gives them lavish gifts, the judge won’t give the child’s preference much weight. Even if a child has a strong custodial preference, it won’t be the controlling factor in a court’s decision. A judge can always overrule a child’s preference if it’s in the child’s best interest to live with the non-preferred parent. Judges will also watch to see if parents have coached their children. In one case, a judge questioned the children and discovered that their mother had told them to lie about her boyfriend’s overnight visits in their home. The mother’s coaching was a major factor in the judge’s decision to transfer custody to the father.
Do Children Have to Testify About Their Custodial Preferences in Court?
In Utah, children can’t testify in court unless there are extenuating circumstances, and there’s no other way to obtain their testimony. Instead, judges usually interview children in court chambers to determine their custodial preferences. Normally, the court will ask the parents for permission to interview a child, but parental consent isn’t necessary if the judge decides that an interview is the only way to figure out the child’s custodial desires. Parents can’t attend the in-chambers interview. The judge may or may not allow the parent’s attorneys to be present. Often, a court reporter will record the interview. Courts can determine a child’s preference in other ways as well. In one case, the judge deciding custody considered letters written by two boys to their mom, stating that they wanted to live with her. Courts may also allow custody evaluators or mental health professionals to testify about what children have told them regarding their custodial preferences. When a couple with children parts ways, the responsibility of taking care of the children rests on the shoulders of both parents. An important part of child custody is whom the children will live with and what visitation of the other parent will be like. If both parents cannot mutually agree on whom the child will live with, the court steps in place as a neutral arbiter.
While there are no defined or set rules of which parent will automatically have the privilege of becoming the custodian, there are statutory factors that the court considers before awarding any decision regarding the minors.
What is in the “Best Interests” of Your Child?
When deciding on which parent should take the primary custodial mantle, or whether custody should be shared, and how much visitation is allowed by either parent, family courts factor in several considerations. While the factors may vary from one state to another, the overall question in nearly all custodial cases is pretty much the same, “What are the best interests of the child?” Below are just some of the factors that are considered.
• The emotional ties: The court would want to know which of the either parent has deepest emotional bonds with the kid. Some of the actions that reveal emotion ties include the tendency of caring for your child’s needs and knowledge in the child`s hobbies, or interests.
• Financial strength: Either parent seeking child custodial should prove that they are financially stable, and can cater for all the benefits of the child. The parent should have a regular, reliable, and stable stream of income.
• Past record: An aspiring parent should not have a tainted record, with regards to handling children. HE should not be convicted of engaging is vices such as kidnapping, child abuse, spouse abuse, child molestation, or rape.
• Family unit: Another critical factor in the child development is the support, stability, and love of the family unit. In such instances, the judge will consider whether the custodial parent can cooperate with the other better half in raising the kid. Also, does he/she have the ability and maturity of avoiding conflict of interest for the sake of the child.
• Other factors: Depending on the type of case, and the couple involved, the judge may also consider other factors such as the health of the parent, the child`s age, and gender, impact on the child`s education, and the distance between the parents.
Factors that Determine the Best Interests of a Child in Case of Custody Dispute
Just like most of the courts in other states, the Utah family courts always put the best interests of the child before making any custodial decision. Some of the typical factors that may influence who is going to the primary caregiver include;
• Past conduct
• Financial position/strength of the parent
• Bond between the child and parent
• The physical, physiological and emotional needs of the child
• The child’s preferences and the ability of the parent to protect the child against conflict
• Parenting skill
What Factors Can Affect Custody?
While there is no set formula for what factors count and how much weight each has, there are some fundamental questions that the court will take into consideration when determining which parent should be awarded primary physical custody. Some of the factors the court may use for a custody determination include:
• Who transports the child to and from school, daycare, or activities?
• Who takes care of the child’s primary needs such as feeding, bathing, dressing?
• Who stays at home when the child is ill or away from school?
• Who schedules and takes the child to appointments?
• Who helps the child with school and extracurricular activities?
• Who disciplines the child and monitors their behavior?
Utah Child Custody
While custody cases are rarely cut and dried, there four primary categories that a child custody ruling could fall into. When making the decisions, the court is tasked with choosing a custody agreement that will serve the best interests of the children involved.
Joint Legal Joint Physical Custody
This type of custody is most common in child custody cases where both parents live in the same general area and are more common in cases of amicable divorce where both the parents want the children to reside with them. This type of custody involves parents sharing physical custody which means that each parent will have the children for at least 111 days each year. They will also share in the decision making process in regards to the children such as medical treatment, educational goals, and additional activities the children will participate in.
Joint Legal Sole Physical Custody
In this type of custody arrangement, both parents will be involved in making decisions in regards to any legal issue associated with the children such as educational and medical decisions. Unlike joint physical and legal custody, the children will reside with one primary parent on a full-time basis. The other parent will often receive a set visitation, or parent-time schedule to spend time with the children. This type of custody is more common when one or both parents work, when the parents live farther apart, or when the children would benefit from a more set daily schedule.
Sole Legal Sole Physical Custody
In sole custody arrangements, one parent will have the children living with them full-time or at least 255 overnights a year and the other parent will be entitled to visitation. Visitation is usually set to at least a minimum of 86 overnights per year. This usually includes a mix of weekends, holidays, and school breaks. With sole legal custody, the parent who was awarded sole physical custody will have the right to make all necessary decisions for the child on their own. While the primary parent does not have to seek consent for their decision from the non-custodial parent, they must share the information as the other parent has the right to know. This type of custody arrangement is not very often used and is primarily reserved for cases where one of the parents is perceived by the court as unfit or unable to care for the children.
Split Custody
Split custody is an infrequent occurrence in the judicial system and occurs when two or more children in the household are split up between parents. In this situation, each parent would receive sole and physical custody of one of the children. This type of custody is used when the court deems that it is in the best interest of the children to live separately each with a different parent. These cases can occur in such instances as siblings that do not get along, a child who has a lot of anger against one parent, or a child who have mental health issues that make separation a better option.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
A lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice. A lawyer may perform various functions. As advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each client. As third party neutral, a lawyer represents neither party, but helps the parties arrive at their own solution. As evaluator, a lawyer examines a client’s legal affairs and reports about them to the client or to others. In all professional functions a lawyer should be competent, prompt and diligent. A lawyer should maintain communication with a client concerning the representation.
A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients; employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law.
However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession’s ideals of public service. A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private.
In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living. The Rules of Professional Conduct prescribe terms for resolving such conflicts. Within the framework of these Rules, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. The legal profession is largely self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested largely in the courts. To the extent that lawyers meet the obligations of their professional calling, the occasion for government regulation is obviated.
Self-regulation also helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.
Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship.
The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives; cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has professional discretion. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6 that may attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact.
These Rules apply to all lawyers, whether practicing in the private or the public sector. However, under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the Attorney General and the commonwealth attorneys in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. They also may have authority to represent the “public interest” in circumstances where a private lawyer would not be authorized to do so. These Rules do not abrogate any such authority.
Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations.
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
Moreover, these Rules are not intended to govern or affect judicial application of either the attorney-client or work product privilege. Those privileges were developed to promote compliance with law and fairness in litigation. In reliance on the attorney-client privilege, clients are entitled to expect that communications within the scope of the privilege will be protected against compelled disclosure. The attorney-client privilege is that of the client and not of the lawyer. The fact that in exceptional situations the lawyer under the Rules has either a limited discretion or a limited obligation to disclose a client confidence does not vitiate the proposition that, as a general matter, the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed and that disclosure of such information may be judicially compelled only in accordance with recognized exceptions to the attorney-client and work product privileges.
The lawyer’s exercise of discretion not to disclose information under Rule 1.6 should not be subject to reexamination. Permitting such reexamination would be incompatible with the general policy of promoting compliance with law through assurances that communications will be protected against disclosure.
The Preamble and this note on Scope provide general orientation. The text of each Rule and the following Terminology section are authoritative and the Comments accompanying each Rule are interpretive.
• “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances.
• “Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.
• “Firm” or “law firm” denotes a professional entity, public or private, organized to deliver legal services, or a legal department of a corporation or other organization.
• “Fraud” or “fraudulent” denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information.
• “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
• “Partner” denotes a member of a partnership or a shareholder or member of a professional entity, public or private, organized to deliver legal services, or a legal department of a corporation or other organization.
• “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer.
• “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
• “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question.
• “Should” when used in reference to a lawyer’s action denotes an aspirational rather than a mandatory standard.
• “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance.
Assessing the Case
A criminal defense attorney’s role begins long before he sets foot in a courtroom for trial. He must have a firm understanding of every detail of his client’s case. Some large law firms have investigators on retainer to do the work of interviewing the state’s witnesses and potential witnesses for the accused. Other attorneys will do this work themselves, as well as analyze crime scenes and police reports. After all information is gathered, it’s the defense attorney’s job to determine his client’s odds of acquittal or conviction, and to begin planning how to best present the case to the court.
It’s not unusual for the prosecutor the state’s lawyer to contact the defense attorney early on in a case and make an offer for a plea bargain. This typically involves the defendant pleading guilty, but to a lesser crime than the one the state has charged him with. In exchange, the state saves time and money because it does not have to go to trial. The defendant receives a lighter sentence. It’s the defense attorney’s role to determine if accepting the deal is in his client’s best interests, based on the investigation he’s already done. He might also negotiate with the prosecutor to try to get an even better deal.
A public defender’s role is identical to that of a private defense attorney, but he may not always have the ability to devote the same extensive time to it as a lawyer practicing in the private sector. Public defenders are employed by the state to represent defendants who cannot afford to pay an attorney to defend their rights. At any given time, there may be many such defendants in the court system, and a public defender must divide his time and attention among all of those assigned to him.
Civil Attorneys
The primary difference between a criminal defense attorney and a civil defense attorney is that the latter defends his client against charges leveled by someone other than the government. His client doesn’t face jail time or a criminal record, but rather the possibility of having to pay financial damages or restitution for wrongdoing, such as if he violated someone’s rights or broke the terms of a contract. In one respect, a civil defense attorney’s job is harder, however, at least at the trial stage. The state must prove criminal charges beyond any reasonable doubt. A civil litigant or his attorney only has to prove that there’s a probability the client committed the act he’s accused of.
When you need a lawyer in 84058 zip code
Please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
Ascent Law LLC 8833 S. Redwood Road, Suite C West Jordan, Utah 84088United States
Telephone: (801) 676-5506
