Utah Bar Journal

Bar Journal Volume 17 No. 7 October 2004

Cover Art Information: COVER: "Tendrills" of Virginia Creeper vines struggle to survive October by exploding with color. Taken in Holladay, Utah by Dana Sohm.

Table of Contents:

* Practice Pointer: Neither a Borrower Nor a Lender Be
* Cracking the Computer Forensics Mystery
* Judicial Disqualification in Utah
* An Overview of State Sovereign Immunity in the Federal System
* Casemaker Coming Soon
* Paralegal Division: Utilization and Salary Survey to be Unveiled This Fall

Practice Pointer: Neither a Borrower Nor a Lender Be
by Kate A. Toomey

You've known her for years, and in many respects the two of you have a great deal in common; she regards you as a friend. You've been around her young children a few times, and you like them a lot. She's a wonderful mother and she works hard, but she struggles to provide for the kids because she's been on her own since her husband died overseas. You've been helping her with a wrongful death action, but it's going to be awhile before the money comes through, and she may have to file a lawsuit to get everything she's entitled to. She hits a financial rough patch but doesn't qualify for a loan and can't borrow money from her extended family. Meantime, she's so behind on paying her bills that she could lose her house, and if she loses her car, too, she could lose her job as well. Then one of the boys gets sick. She can't stay at home to care for him, but she can't afford a babysitter, either. Finally, she asks you for a small loan, just until her money comes through. You're a generous person who cares about others, and besides, you know she'll do anything she can to pay you back. What can you do to help her?

Cracking the Computer Forensics Mystery
by Christopher Wall and Jason Paroff1

Only a few short years ago, the term "computer forensics" was a mystery to most attorneys. In the digital age, however, attorneys are discovering that a basic understanding of "computer forensics" and computer forensic protocol is crucial in both civil and criminal lawsuits. Without a doubt, most information generated today is stored electronically. In 2002, approximately 5 exabytes of new information was stored in print, film, magnetic, and optical storage media. 92% of that information was stored on magnetic media, mostly in hard disk drives.2 Because of the increasing trend toward creating and using electronic documents, the computer is becoming a vital point of investigation in almost every case. Computer forensics can be essential in uncovering twenty-first century evidence.

Judicial Disqualification in Utah
by Steve Averett

The purpose of this article is to summarize Utah law regarding disqualification of judges.

Judges are generally not allowed to hear cases in which they: (1) are interested parties, (2) are closely related to a party, or (3) have served as an attorney for one of the parties. Utah Code Ann. ¤ 78-7-1 (2002).

An Overview of State Sovereign Immunity
by Bless Young and Kurt Gurka

I. State Sovereign Immunity and the Eleventh Amendment

A. Historical Perspective
Sovereign immunity shields states from having to defend themselves against suits in law or at equity in the federal system. Although not explicitly incorporated into the constitutional text, it seemed apparent that sovereign immunity, as it had existed up to ratification, would remain in place. However, this assumption was destroyed by the 1793 case of Chisholm v. Georgia, 2 Dall. 419 (1793), where the Supreme Court, in a 4-1 vote, upheld its jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia.

Casemaker Coming Soon
by Toby Brown

Imagine a Bar benefit that provides online legal research of Utah law for free. That's Casemaker and it's coming soon to Utah State Bar members.

What is Casemaker?
Casemaker is an online legal research service provided through state bar associations. It is easily accessed via the Internet and requires no special software. The content of each state bar library focuses on primary law for that jurisdiction. This normally includes applicable state case law, codes, court rules and some administrative law. There is a federal law library, as well, consisting of case law for the US Supreme Court back to 1935 and all Federal Circuits, at least back to 1995.

Commission Highlights
During its regularly scheduled meeting of June 4, 2004, which was held at the Pete Suazo Building, Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

Utah State Bar Ethics Advisory Opinions

Opinion No. 04-04
Issued August 25, 2004

Issue: In litigation to enforce an oral contract allegedly made by a corporate defendant's former employee on behalf of the corporation, where the former employee was not a member of the control group, may the plaintiff's attorney contact the ex-employee without the consent of the corporate defendant's attorney?

Notice Appointing Trustee to Protect the Interests of the Clients of the Late D. Richard Smith

On August 3, 2004, the Honorable Frank G. Noel, Third Judicial District Court, entered an Order Appointing Trustee to Protect the Interests of the Clients of D. Richard Smith. Pursuant to Rule 27 of the Rules of Lawyer Discipline and Disability, Roy D. Cole is appointed as trustee to take control of client files and other property that was in Mr. Smith's possession, and distribute them to the clients.

UPL Notice
On August 2, 2004, pursuant to the Utah State Bar's complaint, the Third District Court entered a civil injunction against Michael S. Salveson for engaging in the unauthorized practice of law. The permanent injunction recites, in part, that Mr. Salveson, who is not licensed to practice law in the State of Utah, "represented another in the presentation of a legal claim," that his representation "included legal opinions and legal conclusions concerning the liability of the product manufacturer," and that a "document titled 'Personal Injury Works' constitutes the presentation of a legal claim in a representative capacity of another and that the form of the document connotes that [Salveson] is engaged in the work of an attorney." The injunction also recites that "the use of the title of 'Esq.' in connection with the presentation of the personal injury claims for another connotes that [Salveson] is an attorney as does the use of the term 'client' in the written presentation made."

Discipline Corner

PUBLIC REPRIMAND
On August 10, 2004, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court publicly reprimanded Brent R. Chipman for violation of Rules 1.3 (Diligence), 1.5(b) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Chipman was retained to represent a client in a divorce case. Mr. Chipman did not communicate the rate or basis of his fee in writing to the client. Mr. Chipman agreed to prepare a Qualified Domestic Relations Order ("QDRO") for the client. Mr. Chipman failed to complete the QDRO despite numerous requests from the client over a two year period to complete the work.

Utilization and Salary Survey to be Unveiled This Fall
by Robyn Dotterer, Utilization Chair - Paralegal Division

The Paralegal Division of the Utah State Bar is pleased to announce an exciting upcoming event. We are producing the first on-line Utilization and Salary Survey under the auspices of the Utah State Bar web site!

What this means is that the survey can be filled out by attorneys, paralegals or your office legal administrators on line on the Bar web site at any time - day or night. Anyone who has access to the Utah State Bar web site can fill out the survey for themselves or their paralegals. We are hoping to reach as many of you as we reasonably can to make the survey as comprehensive as possible.