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January 2002 Archives

January 7, 2002

Volume 15 No. 1 Jan/Feb 2002

* The President's Message: A Prayer for the Professions
* Avoiding Legal Malpractice Claims
* Aspirational Morality: The Ideals of the Professionalism
* Judicial Independence and the Blame Game: The Easiest Target is a Sitting One
* Views From the Bench: The View From Here

Discipline Corner

On August 3, 2001, the Honorable Bruce J. Lubeck, Third Judicial District Court, entered an Order of Suspension suspending J. Douglas Kinateder from the practice of law for a period of twenty months, beginning October 15, 2001, for violation of Rules 1.3 (Diligence), 1.15(a) and (b) (Safekeeping Property), 5.5 (Unauthorized Practice of Law), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

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Aspirational Morality: The Ideals of Professionalism

EDITOR'S NOTE: The following article is the first of a two-part series examining the professionalism movement, and current attitudes and efforts directed towards improving professionalism -including civility and integrity -in the legal profession.

I. The Concept of Professionalism
In his oft-cited Democracy in America, Alexis de Tocqueville observed this about lawyers in the early nineteenth century: "If I were asked where I place the American aristocracy, I should reply, without hesitation, that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar."1 An aristocrat himself, Tocqueville's observation was not likely intended as a denouncement of lawyer elitism. Rather, his purpose was probably to describe his perception, as a political journalist, of the critical role that lawyers played in the early development and maintenance of a reliable democracy. Most of the signers of the Declaration of Independence were lawyers. Many of America's early statesmen were lawyers. Perhaps in Tocqueville's view, the place occupied by lawyers in early American society was most comparable to the place the aristocracy was supposed to occupy in the classic European tradition -leaders and statesman dedicated to protecting and advancing the public good.

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Judicial Independence and the Blame Game: The Easiest Target is a Sitting One

I. Introduction
When discussing judicial independence in Utah, many think about the relatively recent arguments and struggles that have occurred, and certainly will continue to occur, between the Utah judiciary and the Utah legislature. Where the judiciary has continually argued the necessity of maintaining its independence, the legislature has argued for greater judicial accountability. However, when considering the issue of judicial independence, little emphasis has been placed on the extensive harm that parties and their attorneys can have on the judiciary. This article examines the threat to judicial independence when a judge renders a politically unpopular decision and/or vindictive parties and attorneys accuse a judge of improper behavior. First, this article examines judicial accountability as it exists in Utah. Second, it discusses the public perception of judges. Third, it discusses methods by which public perception can and at times is used as a tool against judges and judicial independence, and its effect upon the judiciary. Fourth, it suggests some practical solutions to aid in protecting judicial independence in Utah.

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Avoiding Legal Malpractice Claims

Most lawyers who are sued for legal malpractice feel like the police officer convicted of a crime. Like the police, lawyers tend to view themselves as the ones who solve problems, undo mistakes, and provide comfort and security to clients who usually are distressed. When the tables are turned, awkward does not even begin to describe the situation. Almost all lawyers who become defendants use terms like "agony," "hell," and "a lot of sleepless nights." Most lawyers take being sued about twice as hard as the average citizen. After all, cops are not supposed to go to jail.

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Message From the Chair

2002 . . . . hard to believe that a new year is underway! As with each new year, many of us make resolutions to try and improve ourselves, within and without. As resolutions are made let's not forget to include our careers. It is time to start out with a fresh, new perspective and to set realistic career goals. Some suggested career resolutions are:

* Be on time
* Organize your work area to make yourself more efficient
* Create checklists for routine procedures
* Get CLE in an area in which you do work

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State Bar News

Commission Highlights

During its regularly scheduled meeting October 26, 2001 which was held in Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

1. Scott Daniels updated the Commission on the activities of the Bar's special committee on the Unauthorized Practice of Law and the Delivery of Legal Services.

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A Prayer for the Professions

The Utah Supreme Court has established a commission to address the problem of unprofessionalism in the legal profession. This commission is to be chaired by Justice Mathew Durrant. The Court has expressed real concern that this problem is serious and growing. Courts across the country have established similar commissions to study whether the phenomenon of incivility and unprofessionalism is becoming more widespread or is limited to a few bad actors. These commissions are studying possible responses the courts or the Bar should make.

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CLE Information for the Regional Conference

In addition to the opportunity of meeting with lawyers from all over the country in a post-Olympic environment that includes the option of world-class snow skiing, this Regional Conference offers a variety of outstanding seminars to meet a wide range of interests, all of which are approved for CLE credit. David Schwendiman, Assistant U.S. Attorney, and author of the Utah Public Safety Command System Book, and Edwin Firmage, professor of law at the University of Utah, a well-known civil rights attorney, will present what is likely to be a lively discussion on the topic of "Public Safety While Protecting Civil Rights and Liberties." The discussion is likely to include, among other things, ideas for implementing additional security in businesses, public areas, and the impacts the tragedies of September 11 have had on security and civil rights.

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The View From Here

As I stand on the top of Angel's Landing in Zion National Park there are spectacular views in every direction. I can look north, up the canyon to the Temple of Sinawava, south down the canyon, east across the canyon to the Great White Throne, or west to the treacherous trail over which I just came. As I consider this "View from the Bench," I feel somewhat the same way. From my perspective early in the transition from lawyer to judge, I can look back down the canyon, reflecting on the almost 21 years in the practice which are still fresh on my mind, or up the canyon towards what I hope will be a long and productive career on the bench. Maybe a little of both will be in order for this article.

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About January 2002

This page contains all entries posted to Utah Bar Journal in January 2002. They are listed from oldest to newest.

December 2001 is the previous archive.

March 2002 is the next archive.

Many more can be found on the main index page or by looking through the archives.

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