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August 2004 Archives

August 30, 2004

Bar Journal Volume 17 No. 6 Aug/Sept 2004

Bar Journal Volume 17 No. 6 Aug/Sept 2004

v17_no6_aug_sep2004_sm.jpg

Cover Art Information: COVER: Fish Towers, Colorado River Scenic Byway near Moab, Utah by Bret Hicken, Hicken & Hatch, Spanish Fork.

* Practice Pointer: When Can a Lawyer End an Attorney-Client Relationship?
* Possible Defense Responses to Plaintiff's "Experts"
* Mental Illness, Addiction and Attorneys
* Facsimile Advertising and the Requirement to Get Signed, Written Consents
*The Utah Marshaling Requirement: An Overview
*Objectives of Revocable Trusts
* Utah Law Developments: Can You Amend That Revocable Trust? Utah Estate Planning Lawyers Face a Trap for the Unwary
* Views from the Bench: Remember, for Every Case Won at Oral Argument, the Other Side Loses
* Book Review: Reading Lolita in Tehran, by Azar Nafisi and The Last Summer of Reason, by Tahar Djaout
* Paralegal Division: Division Officers and Directors 2004-2005

PDF Version available at: http://www.utahbar.org/barjournal/pdf/2004_aug_sep.pdf

Practice Pointer: When Can a Lawyer End an Attorney-Client Relationship?

Practice Pointer: When Can a Lawyer End an Attorney-Client Relationship?
by Kate A. Toomey

Attorneys sometimes ask about the circumstances under which they must withdraw from a representation, and those under which they are permitted to end it. The answers vary with the situations: some are essentially no-brainers (for example, you must withdraw from the representation if the client fires you) while others are far more ambiguous (for example, you want to withdraw because it has become clear the lawyer-client relationship requires high maintenance).

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Possible Defense Responses to Plaintiff's "Experts"

Possible Defense Responses to Plaintiff's "Experts"
by Gordon Strachan

This article clarifies differences between the testimonial latitude permitted for defendants' and plaintiffs' expert witnesses in negligence-based personal injury litigation and clarifies Utah law regarding granting increased discretion to defense experts. This should help curtail the proliferation of plaintiffs' motions in limine designed to reallocate - impermissibly - the burden of proof.

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Mental Illness, Addiction and Attorneys

Mental Illness, Addiction and Attorneys
by Jack M. Morgan, Jr.

Mental illness and addiction are devastating to lives, careers, relationships, families, and communities. In any given year, 9.5% of the population, approximately 18 million Americans, suffers from a depressive illness, generally defined to include major depression, dysthymia and bipolar disorder.1 Nearly 1 in 13 adults abuse alcohol or are alcoholic.2 A 1999 study by the Substance Abuse and Mental Health Services Administration concluded that an estimated 4 million people - about 2% of the population - were using prescription medication non-medically,3 and the same study a year earlier found that 1.7 million - about 0.8% - were using cocaine.

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Facsimile Advertising and the Requirement to Get Signed, Written Consents

Facsimile Advertising and the Requirement to Get Signed, Written Consents
by Berk W. Washburn

Recently, much attention has been focused in the media on new rules and regulations issued by the Federal Communications Commission (the "FCC") and the Federal Trade Commission (the "FTC") in connection with a national Do-Not-Call Registry. For the most part, the media has not noticed that there are included within the same new FCC rules substantial changes in the statutory guidelines for the legal requirements in facsimile advertising. These new facsimile advertising rules apply to both residential phone lines (consumer transactions) and business phone lines (commercial transactions). In the last decade, facsimile advertisements have become a cheap and pervasive form of advertising. Many businesses quickly embraced facsimile advertising in order to capitalize on the minimal cost and time required to reach a very large audience. On the other hand, because much of the cost and wasted time is shifted to the recipient, "fax ads" have become the bane of many dedicated facsimile lines, both for business and residential users. In Utah, many businesses have been at different times both a sender and a receiver of fax ads. Since the FCC has now substantially reversed its position on the legal rules for fax ads, both senders and receivers of fax ads in Utah will be interested in the new rules.

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The Utah Marshaling Requirement: An Overview

The Utah Marshaling Requirement: An Overview
by Ryan D. Tenney1

Rule 24(a)(9) of the Utah Rules of Appellate Procedure states that "[a] party challenging a fact finding must first marshal all record evidence that supports the challenged finding." At first glance, this rule may appear misguided. After all, ours is a profession that stresses zealous advocacy on behalf of a client. It may sometimes be difficult for an appellate litigator to imagine why he or she should have to make the opponent's case for them; it may be even more difficult for the attorney to then imagine having to explain that particular portion of the brief to their client. As the reported cases suggest, however, the appellate courts can and do regard a failure to marshal as a fatal defect.

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Objectives of Revocable Trusts

Objectives of Revocable Trusts
by Langdon T. Owen, Jr.

Why use a revocable trust? Revocable trusts can be a good tool to help clients achieve their objectives; but they are only a tool. Let's review some key objectives:

Tax Savings
Clients sometimes ask how trusts can save them transfer taxes. Let's look at the long and the short of the matter, starting with the short. The short answer is that trusts have no magic to reduce taxes. The long answer, however, is more interesting: certain transaction structures can reduce taxes, and trusts are marvelous tools for creating such structures.

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August 27, 2004

Can You Amend That Revocable Trust? Utah Estate Planning Lawyers Face a Trap for the Unwary

Can You Amend That Revocable Trust? Utah Estate Planning Lawyers Face a Trap for the Unwary
by Charles M. Bennett

Revocable living trusts have become a ubiquitous estate planning tool in Utah. Thousands of Utahns have such trusts, most prepared by Utah lawyers. One of the benefits of revocable living trusts is the ability to easily amend them prior to the death of the trustor. Several recent Utah Supreme Court decisions, however, require revocation rather than amendment under certain circumstances. As such an amendment will likely not be questioned until after the death of the trustor - when it is too late to go back and repair anything -attorneys who have prepared revocable trusts or who represent those who have such trusts need to carefully review these trusts in light of the recent rulings.

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Remember, for Every Case Won at Oral Argument, the Other Side Loses

Remember, for Every Case Won at Oral Argument, the Other Side Loses

by Justice Michael J. Wilkins

As I sat through another oral argument before the Utah Supreme Court last month, I began to wonder if I could list the characteristics that differentiate the most successful advocates before our court from the least successful. I smiled to myself, and thought, "Well, the first characteristic is that they don't let me drift off mentally when they are at the podium." After the calendar concluded, I jotted down a few thoughts for my own amusement. As the list developed on paper, I realized that these were suggestions that I wish someone had given me when I was still on the other side of the bench. They apply nearly as well to the trial courts, and seem only common sense to me now that I have been privileged to participate in the court's side of appellate arguments for ten years. I offer them to you for what use you may be able to make of them.

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Book Review: Reading Lolita in Tehran, The Last Summer of Reason

Book Review: Reading Lolita in Tehran, The Last Summer of Reason
Reading Lolita in Tehran, by Azar Nafisi

The Last Summer of Reason, by Tahar Djaout

Reviewed by Betsy Ross

What role does literature play in a repressive theocracy? That is a topic each of these novels, one by an Iranian-born professor of English literature and the other by an Algerian writer, addresses. In the process, each gives a glimpse into the Muslim world, giving us a chance to see behind the veils and the homogenous images Islam invokes in Western society. It also provides us a chance to take stock of our own inching toward theocracy - the merging of religious beliefs and political ideology - telling a cautionary tale if we are willing to hear it.

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Utah State Bar Presents Awards At 2004 Annual Convention

Utah State Bar Presents Awards At 2004 Annual Convention

The Annual Awards of the Utah State Bar were presented at the Bar's 74th Annual Convention by the Board of Bar Commissioners, on behalf of the entire Bar membership. Recipients are selected on the basis of achievement; professional service to clients, the public, courts and the Bar; and exemplification of the highest standards of professionalism to which all judges and lawyers aspire.

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Sun Valley Golf

Sun Valley Golf
2004 Annual Convention Golf Tournament Sun Valley, Idaho

Richard Bird, right, posing with his son, David Bird during the 2004 Annual Convention Golf Tournament in Sun Valley, Idaho. Richard and David practice law with the firm of Richards, Bird & Kump. Richard Bird, a graduate of Harvard Law School, has been a member of the Utah State Bar since 1933. Upon returning to Utah in 1939, Richard has been a regular attendee at the Bar's Annual Conventions. At 97 years young, Richard was the oldest participant at this year's golf tournament. Congratulations!

Discipline Corner

Discipline Corner

ADMONITION

On June 23, 2004, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court admonished an attorney for violation of Rules 5.3(a) (Responsibilities Regarding Nonlawyer Assistants) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

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About August 2004

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