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June 2003 Archives

June 4, 2003

The Constitutional Guarantee of an Independent Judiciary

A few years ago, while attending the National Judicial College, I met a judge from another state who was lamenting the fact that he was running for reelection and, upon returning home, had to raise a great deal of money. His jurisdiction covered three rural counties. I asked him how much money he needed to raise, and he replied, "Well over a hundred thousand dollars." I asked him where in the world he would get that amount of money, and he replied, "Well, principally from the local banks, farm implement dealers, and large farmers." I then asked what happens when one of those appeared in his courtroom as a party. He replied, "Well, it makes it pretty tough." I wondered at the time what kind of justice was served in that jurisdiction when the judge, obligated and sworn to uphold and apply the law, was subject to such pressure.

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Volume 16 No. 5 June/July 2003

* President's Message: The Year in Review
* Practice Pointer: Sex, Lies and the OPC
* Weapon-Free Courthouses and the Gun Locker Dilemma
* Community Property Issues Can Arise Where Least Expected
* Law and Unity on Main Street
* M&A Transactions Under Utah's New "Fairness Hearing" Statute
* Views From the Bench: Freedom and Independent Courts
* Book Review: An Accidental Soldier - Memoirs of a Mestizo in Vietnam
* Legal Assistants Division: Legal Assistant Utilization May Optimize Client Services in Litigation Practice

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An Accidental Soldier Memoirs of a Mestizo in Vietnam

"An Accidental Soldier" is a hard book to read. It will challenge your ideas about race, identity, war, and the human condition. It will anger you at times, it may cause you to become defensive, and you may ultimately dismiss it as "unpatriotic" and the ramblings of a cynic and malcontent. I don't know Manny Garcia, a Utah criminal defense attorney, but I sense that this memoir is above all else, honest, and is worth reading just for that.

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Community Property Issues Can Arise Where Least Expected

"What do you mean there is community property in Utah?" my friend, Clyde, asked in horror and disbelief. "Utah is a common law property jurisdiction and always has been, so how can you even talk about community property here?" His arm moved in a gesture of disgust at the very thought of community property in our midst, and as his arm came around, he knocked over the pitcher of Provo Girl beer into my lap. It was an accident - I'm sure.

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Freedom and Independent Courts

EDITOR'S NOTE: The following remarks were made by Judge Kimball on May 1, 2003, at the annual Law Day Luncheon sponsored by the Utah State Bar's Young Lawyers Division. Judge Kimball has graciously permitted his remarks to be reprinted here.

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Law and Unity on Main Street

Utah's citizens, of late, have been at the center of an unusual controversy. I say unusual not because of the uniqueness of the issues at play but because of the intensity of a controversy that has brought illumination to the intersection of politics, religion and law. We are all accustomed to the seemingly inexhaustible stream of Mormon/Anti-Mormon, "love it or leave"/"we don't have to do either" polemics, usually in the form of letters to the editor. Regrettably, these tend to be tedious and predictable in the extreme on both sides, utterly devoid of wit or elegance, typically having the subtlety and style of a hurled water balloon or rotten egg and adding nothing to reasoned discourse. But, they are, in addition to being an irritant, a constant reminder of the tension that is part of the fabric of our community, that for many this is very much a place of "us" and "them" of "nons" and "non-nons."

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Legal Assistant Utilization May Optimize Client Services in Litigation Practice

To get the most from an experienced and trained legal assistant1 in litigation practice, an attorney may need to open their practice to the pain of change. This will however lead to the benefits of change. The benefits are many. The most prevalent is an optimization of two valuable resources in litigation law practice - Cost-Savings and Efficiency. Cost-saving and efficient task delegation to accomplish the law firm's goals are for the benefit of client services. While cost-savings and efficiency are improved, economic and service benefits are realized by your clients.2 Incidental to the process of improving client services is an increase in the law firm's bottom line of potential earnings.

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Letters to the Editor

Dear Editor,
I have spent a good deal of my 19 years in legal practice training and advising mostly white male managers about what is legally permissible to ask in an employment interview. Therefore, I was shocked and disappointed at the recent treatment of Utah Supreme Court Justice nominees Jill Parrish and Ron Nehring at the hands of the Utah legislature during confirmation hearings. The central inquiry made of Ms. Parrish was whether or not she could balance her family responsibilities with serving on the court. The central inquiry made of Mr. Nehring (who presumably has a family as well) was what effect his health condition would have on his performance. Neither inquiry is permissible under federal law. The Utah legislature is sending a clear message that they are above the law. When two long-time attorneys, who have reached the pinnacle of being appointed to the State Supreme Court and obviously know their rights, are unable to receive the law's protection, how does the average employee fare?

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M&A Transactions Under Utah's New "Fairness Hearing" Statute

One of the more difficult hurdles to overcome in many M&A transactions in which securities are being issued by the acquirer as part or all of the consideration is compliance with applicable federal and state securities laws in connection with the issuance of those securities. Under prevailing state and federal securities laws, such securities must either qualify for a registration exemption or be registered with the Securities and Exchange Commission (the "SEC") and all applicable state securities regulatory agencies. Utah's recently enacted "fairness hearing" statute will dramatically simplify issuing securities in connection with M&A transactions, and will save Utah companies substantial amounts of time and money, while increasing the available structuring alternatives for proposed M&A transactions.

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Sex, Lies, and the OPC

Utah has a Rule of Professional Conduct explicitly forbidding sex with a client if it "exploits the lawyer-client relationship." Rule 8.4(g), Rules of Professional Conduct. The rule even defines "sexual relations."1 Under the rule, such relations are presumed exploitative, but the presumption may be rebutted. See id. at (g)(2). Complaints about attorneys having sex with their clients seldom reach the Office of Professional Conduct, and oftentimes, the sexual relationship preceded the attorney/client relationship and therefore would not constitute a prima facie violation of the rule. See Rule 8.4(g)(2) (spousal relationships and relationships that "existed at the commencement of the lawyer-client relationship" are not presumed to be exploitative).

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State Bar News

President-Elect and Bar Commission Election Results

N. George Daines was elected President-Elect of the Utah State Bar. George received 1,089 votes to Randy S. Kester's 1,033. Nathan D. Alder and Yvette D. Diaz were elected to the Commission in the Third Division. Nate received 908 votes, Yvette received 787, to Brian Burnett's 611 votes and Nanci Snow Bockelie's 557. In the Fourth Division, Robert L. Jeffs was elected to the Commission. Robert received 102 votes to Thomas W. Seiler's 78 and Brent H. Bartholomew's 75. In the Fifth Division, V. Lowry Snow ran unopposed.

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The Year in Review

Now that my term as Bar president is drawing to a close, I see the seamless transition of Bar governance much like a track relay team. Each president has the privilege of carrying the baton and running hard for one year and then handing it off to another who is already running at full speed side-by-side when the actual hand-off occurs. On a successful relay team, each runner benefits from and then tries to increase the strides made by previous relay members. In the end, any win is a team victory achieved by all.

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Weapon-Free Courthouses and the Gun Locker Dilemma

A bill to require installation of gun lockers in Utah's courthouses raised important issues for judges and lawyers. Though resolved last fall, the subject was not widely understood and has continued to surface periodically. This article puts the issues in perspective and examines their historical and legal context.

The gun locker legislation of 2002 placed Utah's courts squarely between two competing legal mandates, each having force of law. On the one hand, courts were bound by the "weapon-free" requirements of the Code of Judicial Administration ("Judicial Code") adopted pursuant to authority recognized by statute. On the other hand, courts were confronted with the newly enacted obligation to install gun lockers, the natural consequence of which would be to invite the presence of guns, especially in the older courthouses of rural Utah.

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About June 2003

This page contains all entries posted to Utah Bar Journal in June 2003. They are listed from oldest to newest.

May 2003 is the previous archive.

August 2003 is the next archive.

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