Utah Bar Journal

Volume 18 No. 3 May/June 2005

COVER: “The Wave,” Paria River, near Kanab, Utah. Photo by first-time contributor, Walter F. Bugden, Jr. of Bugden & Isaacson, Salt Lake City.

Letter to the Editor
Why Don’t They Like Us? Why Don’t They Respect Us? - by Keith E. Taylor
Standards for Standards’ Sake: Questioning the Standards of Professionalism and Civility - by Eric K. Johnson
Outsourcing – for Easy, Effective Data Protection - by David Saperstein
Some Thoughts Concerning Trustee Selection - by Langdon T. Owen, Jr.
Utah Law Developments: New Laws Every Lawyer Should Know - by Brent N. Bateman
Standards of Professionalism & Civility: Standard 11 – Ex Parte Communications - by Judge Gregory K. Orme
State Bar News
Paralegal Division: Paperless? Hah! Less Paper – Absolutely! Basic Records Management Concepts - by Heather Holland

PDF Version: http://www.utahbar.org/barjournal/pdf/2005_may_june.pdf

Dear Editor:

I agree completely with the sentiments expressed by Gus Chin regarding the decline of professionalism, having been an involved observer for nearly three decades. The pit bull disposition he describes had its genesis in the "you only eat what you kill" mentality that was pervasive in the 1980s and was not limited to lawyers. Investment bankers contributed their fair share. Unfortunately, we seem not to have evolved much in the last twenty years. I won't speak for the investment bankers.

It would be nice if the Utah Bar Journal would contribute to professionalism by rejecting paid advertisements that perpetuate the image of lawyers as snarling dogs. How can we expect the public, TV and movie producers, or the news media to view us any differently than we portray ourselves?

R. Steven Chambers

Editor's Note: Point taken, but (without having made an extensive analysis) the editorial board expects that such advertising likely falls within the precedents protecting commercial speech by lawyers. In addition, in our experience these advertisements are usually somewhat tongue in rabid cheek. Alas, sincere civility and professionalism must ultimately come from the hearts of our members, as should expressions of approval or disapproval. Your letter sets an example of speaking up, civilly and professionally.

Why Don't They Like Us?

by Keith E. Taylor

In the January 2000 issue of the Utah Bar Journal, I bid my fond farewell to a noble profession. Since then I have given some serious thought to why the general public does not recognize lawyers as being trusted representatives of a noble profession. After all, lawyers are responsible for our unprecedented freedom in this wonderful country. The difference between our society and those of such totalitarian states as the late USSR is not in the words of our respective constitutions but in the vigorous implementation, application and enforcement of those words, almost exclusively done by lawyers. Well then, why don't they like and respect us?

With some justification, some think that a major cause are those few self-aggrandizing buffoons frequently foisted upon us by the mass media. Others blame the media itself for creating circus - like trials such as the O. J. Simpson trial. However, I suggest that these are aberrations and simply can't be the sole cause of widespread disdain of the legal profession among members of the general public.

Standards for Standards' Sake:

by Eric K. Johnson

On October 16, 2003, the Utah Supreme Court approved Rule 23 of the Utah Supreme Court Rules of Judicial Administration (itself comprised of twenty new rules), entitled "Standards of Professionalism and Civility" "[t]o enhance the daily experience of lawyers and the reputation of the Bar as a whole." I am all for satisfying daily experiences and for burnishing the Bar's reputation, but I submit that the passage of twenty new rules over and above those that already apply to the profession do little to achieve either goal. This is not to state that the motives for Standards are somehow wrongheaded. The Preamble to the Standards of Professionalism and Civility, which has no normative force, is, for the most part, as sensible as it is aspirational. It reads, in part:

In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. We must remain committed to the rule of law as the foundation for a just and peaceful society.

* * * * * *

Outsourcing - for Easy, Effective Data Protection

by David Saperstein

Attorneys' Data - and Practices - Are Vulnerable
Attorneys, whether solo practitioners, members of a small or large firms, or in-house counsel for corporations, need to consider these statistics:

¥ 40% of data loss arises from hardware failure and 29% from human error.1

¥ About 7 million laptops are lost, badly damaged, or stolen each year.2

¥ 47% of organizations surveyed by the Computer Security Institute experienced between 1 and 5 computer security breaches in the last 12 months.3 56% of disaster recovery professionals identified such issues (e.g., unauthorized access, viruses) as an extreme threat to business continuity.4

¥ The amount of stored data is growing at 125% per year.5 This growth increases the data security, long-term recordkeeping, and/or auditing challenges of compliance with such laws as Gramm-Leach Bliley, the Health Insurance Portability and Accountability Act (HIPAA), Sec. Rule 17a-4, and Sarbanes-Oxley.

¥ Companies that cannot resume operations - including recovering key data - within 10 days of a disaster are not likely to survive.6

What do these statistics have to do with the practice of law? Answer these questions:

¥ Who performs data backup in the office (or branch offices) and how often? Is the backup reliable?

¥ Does the office maintain a copy of its data off-line - and off-site in a secure location - so that it is safe from natural disasters, technical malfunctions, and accidents at your site (as well as from a range of human risks such as deletion errors, viruses and hacking)?

¥ How fast can the office recover its data? How much of it can be recovered?

Some Thoughts Concerning Trustee Selection

by Langdon T. Owen, Jr.

The selection of an appropriate trustee is of concern for anyone establishing a trust. A good trustee will provide real tangible benefits, and a bad trustee will provide nothing but nightmares. This article contains thoughts on the subject of trustee selection that counsel drafting trust instruments may find useful in dealing with clients.

New Laws Every Lawyer Should Know

by Brent N. Bateman

This article highlights some important bills passed in the recently concluded 2005 Utah legislative session. The new laws discussed here are important to members of the State Bar, not because they are interesting or controversial, but because they include changes that attorneys should be aware of in practice. For example, some legislative changes may affect the advice an attorney gives to a client. Naturally, this article will not provide an exhaustive review of new legislation impacting the bar. Rather, it will briefly discuss a few selected laws, hoping to inspire members of the bar to undertake a more detailed review.

The newly enacted statutes are organized here into very general practice areas. Note, however, that a bill often impacts more than one practice area. For example S.B. 47, Wrongful Lien Offenses, discussed below in the criminal section, also raises issues of real property law, tort law, and estate planning.

Standard 11 - Ex Parte Communications

by Judge Gregory K. Orme

Editors' Note: A member of the Supreme Court's Advisory Committee on Professionalism will discuss one of the new Standards of Professionalism and Civility with each issue of the Bar Journal. The opinions expressed are those of the member and not necessarily those of the Advisory Committee.

"Lawyers shall avoid impermissible ex parte communications." There's nothing novel about this idea: Don't talk to a judge (or other adjudicator) about a case unless opposing counsel is in on the conversation. The same precept holds for conversations with the judge's law clerk or other members of the judge's staff. There are a few exceptions, mostly having to do with procedural things, like scheduling, but always err on the side of avoiding one-sided conversations about cases.

Commission Highlights

During its regularly scheduled meeting of March 10, 2005, which was held in St. George, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

Mailing of Licensing Forms

The licensing forms for 2005-06 are scheduled to be mailed during the last week of May and the first week of June. Fees are due July 1, 2005; however, fees received or postmarked on or before August 1, 2005 will be processed without penalty.

It is the responsibility of each attorney to provide the Bar with current address information. This information must be submitted in writing. Failure to notify the Bar of an address change does not relieve an attorney from paying licensing fees or late fees. Failure to make timely payment will result in an administrative suspension for non-payment after the deadline. You may check the Bar's website to see what information is on file. The site is updated weekly and is located at www.utahbar.org.

If you need to update your address information, please submit the information to:

Arnold Birrell
Utah State Bar
645 South 200 East
Salt Lake City, UT 84111-3834

You may also fax the information to (801)531-9537, or e-mail the corrections to licensing@utahbar.org.

Notice of Legislative Rebate

Bar policies and procedures provide that any member may receive a proportionate dues rebate for legislative related expenditures by notifying the Executive Director, John C. Baldwin, 645 South 200 East, Salt Lake City, UT 84111

2005 Fall Forum Awards

The Board of Bar Commissioners is seeking nominations for the 2005 Fall Forum Awards. These awards have a long history of honoring publicly those whose professionalism, public service and personal dedication have significantly enhanced the administration of justice, the delivery of legal services and the building up of the profession. Your award nominations must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Tuesday, September16, 2005. The award categories include:

1. Distinguished Community Member Award

2. Pro Bono Lawyer of the Year

3. Professionalism Award

Notice Appointing Trustee to Protect the Interests of the Clients of the Late Melvin E. Leslie

On February 4, 2005, the Honorable Joseph C. Fratto, Jr., Third Judicial District Court, entered an Order Appointing Trustee to Protect the Interests of the Clients of Melvin E. Leslie. Pursuant to Rule 27 of the Rules of Lawyer Discipline and Disability, Gary Atkin is appointed as trustee to take control of client files and other property that was in Mr. Leslie's possession, and distribute them to the clients.

West Jordan Courthouse to Open Doors in June

A new West Jordan Courthouse is scheduled to open its doors for business at 8080 Redwood Road on Monday, June 20, 2005. The 112,000 sq. ft. courthouse will be the second largest courthouse in Utah - next to the Scott M. Matheson Courthouse - with a 12-courtroom configuration. The courthouse will administer cases from the south end of the Salt Lake valley and will expand operations to execute court functions that previously have not been available at the Sandy and West Valley City courthouses.

Since the ground breaking on the courthouse took place November 2003, work has been steady to build the $19.3 million facility. The courthouse will include six Third District courtrooms - including two unfinished courtrooms - and six Third District juvenile courtrooms - one of which will be unfinished. In addition, Alternative Dispute Resolution and mediation rooms will be located in the courthouse and are designed to minimize the formality of the courtroom setting. Offices for the District Attorney's office will also be located in the courthouse.

"The West Jordan Courthouse will allow the public from the south end of the valley convenient access to court services," said Dan Becker, Utah State Court administrator. "The West Jordan facility will offer all of the services available at the Matheson Courthouse, but not currently available at the Sandy or West Valley City courthouses."

Employees of the Sandy and West Valley City courthouses will move into the West Jordan Courthouse during the week of June 13. The Sandy Courthouse will close for business on June 10 at 5:00 p.m. and the West Valley City Courthouse is expected to completely close fall 2005. The West Jordan Courthouse phone numbers and additional information will be posted on the Utah State Courts' website at www.utcourts.gov when available.

GSBS Architects designed the West Jordan Courthouse. The firm also designed the Logan Courthouse. Okland Construction Company is the project contractor.

DISBARMENT

On February 1, 2005, the Honorable G. Rand Beacham, Fifth Judicial District Court, entered Findings of Fact, Conclusions of Law, Ruling and Order of Disbarment against Roy L. Bischoff disbarring Mr. Bischoff from the practice of law for violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), 1.5(a) (Fees), 1.5(b) (Fees), 1.15(b) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 3.2 (Expediting Litigation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4 (a), (c), and (d) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Bischoff was retained to represent a client in a bankruptcy matter. The client paid a fee to Mr. Bischoff. Mr. Bischoff did not file the necessary documents with the court and the case was dismissed. In the meantime, Mr. Bischoff had moved out of state and did not inform the client of his new address. The client located Mr. Bischoff and Mr. Bischoff promised to return the client's retainer fee and file. Mr. Bischoff did not return the client's property. In a second matter, Mr. Bischoff was retained to represent a client in an immigration matter. The client paid Mr. Bischoff a filing and retainer fee. Mr. Bischoff moved out of state. The client located Mr. Bischoff and requested proof of filing the immigration petition. In order to appease the client, Mr. Bischoff produced a fabricated letter to the client alleging it was from the former Immigration and Naturalization Service ("INS") (now U.S. Citizenship and Immigration Service). The client made inquiries with the INS and was told there was no record of the application. The client thereafter attempted to contact Mr. Bischoff without success. In a third matter, Mr. Bischoff was retained in debt collection matters. Despite attempts to contact Mr. Bischoff, Mr. Bischoff did not keep his clients reasonably informed of the progress of the cases. In a fourth matter, Mr. Bischoff was retained to represent a client in a lease agreement dispute. The client paid Mr. Bischoff a retainer fee and Mr. Bischoff had the client sign an agreement stating part of the fee was non-refundable. Mr. Bischoff prepared a bill and one letter for the client to review. Two months later, Mr. Bischoff moved out of state. The client attempted to contact Mr. Bischoff without success. Mr. Bischoff did not return the client's unearned retainer or file. In a fifth matter, Mr. Bischoff represented a client to establish visitation rights. The client paid Mr. Bischoff a retainer fee. Mr. Bischoff told the client that he had filed a foreign judgment in court, but the clients never received a copy of any documents. The last communication from Mr. Bischoff was a bill, which the client paid. No visitation was ever established. The Office of Professional Conduct ("OPC") sent Mr. Bischoff Notices of Informal Complaint in all five cases requesting that Mr. Bischoff respond in writing. Mr. Bischoff failed to respond to the OPC's lawful demands for information.

Aggravating factors include: dishonest or selfish motive; pattern of misconduct; multiple offenses; obstruction of disciplinary proceedings; refusal to acknowledge the wrongful nature of the misconduct involved; vulnerability of victim; lack of timely effort to make restitution in good faith; and illegal conduct.

INTERIM SUSPENSION

On March 4, 2005, the Honorable Leslie A. Lewis, Third Judicial District Court, entered an Order of Interim Suspension suspending Jay W. Taylor from the practice of law pending final disposition of Mr. Taylor's resignation with discipline pending filed with the Utah Supreme Court.

INTERIM SUSPENSION

On February 17, 2005, the Honorable Fred D. Howard, Fourth Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Interim Suspension, suspending Trevor L. Zabriskie from the practice of law pending final disposition of the Complaint filed against him.

In summary:
Mr. Zabriskie was convicted of endangerment of a child, a third degree felony, in violation of Utah Code Annotated ¤ 76-5-112.5 and sexual battery, a class A misdemeanor, in violation of Utah Code Annotated ¤ 76-9-702(3), which were later reduced to a class A misdemeanor and class B misdemeanor respectively. The interim suspension is based upon this conviction.

PUBLIC REPRIMAND

On February 24, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Bret Hicken for violation of Rules 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.16(a) (Declining or Terminating Representation), 5.3(a), (b), and (c) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Hicken was retained to pursue a collection action for an out of state client. Mr. Hicken sent demand letters to the debtors and the complaints were signed approximately five months later. The client flew to Utah to attend court hearings, but Mr. Hicken told the client that the court dates had been postponed. The client contacted Mr. Hicken on numerous occasions, but Mr. Hicken did not return the telephone calls. The client continued to send monthly billings to the debtors, and as a result of these billings later found out that the complaints had not been served upon the debtors. When the client eventually contacted Mr. Hicken, Mr. Hicken reassured the client that the work had been completed. Mr. Hicken later indicated to the client that a favorable judgment had been obtained against the debtors and requested copies of costs of the client's trip to Utah. The client contacted Mr. Hicken to ascertain when the client would receive the money. Mr. Hicken required to withdraw from representation because of health reasons. The client contacted Mr. Hicken's paralegal, who gave the client court dates and status updates which were false and misleading. The client subsequently retained another attorney who told the client that there was no record of any filings or of any work done. Mr. Hicken reimbursed the client's retainer.

PUBLIC REPRIMAND

On May 24, 2004, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against David O. Drake for violation of Rules 5.3(a) and (b) (Responsibilities Regarding Nonlawyer Assistants) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Drake was retained to represent his employee in a lawsuit. Mr. Drake permitted his non-attorney employee to take a sworn statement of the defendant the employee was suing. In a second matter, Mr. Drake was retained to represent a client in a personal injury matter. Mr. Drake permitted his non-attorney employee to enter into and sign a contingent fee retainer agreement and prepare and submit a settlement demand letter to an insurance company on behalf of the client, which resulted in a substantial recovery for the client. In a third matter, Mr. Drake was retained to represent a client who was involved in an automobile accident. Mr. Drake permitted his non-attorney employee to sign a lien to a medical provider, which required an attorney's signature. When the client's case settled, Mr. Drake's non-attorney employee deposited the settlement funds into an attorney trust account, which the employee had inappropriately opened without Mr. Drake's knowledge. The settlement was safely disbursed to the client. In the course of representing these three clients, Mr. Drake failed to properly supervise his employee, and failed to ensure that his employee's conduct was compatible with Mr. Drake's professional obligations as a lawyer.

ADMONITION

On March 6, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 8.1(b) (Bar Admission and Disciplinary Matters) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The Office of Professional Conduct ("OPC") received an informal complaint against an attorney. The OPC sent a Notice of Informal Complaint to the attorney requesting a written response. The attorney failed to respond to the OPC's lawful demand for information.

ADMONITION

On March 6, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 1.4(a) and (b) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was retained to represent a husband and wife in a termination of parental rights and step-parent adoption matter. The attorney did not timely inform the clients about hearing dates or adequately communicate with the clients to explain the process to them. The attorney also failed to protect the clients' interests by not clearly communicating withdrawal from the representation, nor advising the clients of the consequences of withdrawal, nor cooperating with successor counsel to protect the clients.

Message from ABA President

As members of the legal profession, I know you share my concern over the public's misunderstanding of the judiciary's role and the politically motivated criticism of the judiciary stemming from the Terri Schiavo case, and are equally alarmed about the murders of Judge Lefkow's family members in Chicago and the attacks at the Fulton County Courthouse in Georgia. The circumstances of these tragic events require careful analysis, thoughtful leadership, and measured response. The American Bar Association has long held the preservation of judicial independence as one of the most important Association goals. These recent events have elevated the urgency of that commitment among the ABA's leadership. In the past several days, I have issued public statements condemning the violence against our judiciary and the gratuitous and vicious public attacks on the dedicated men and women who are our country's judges. During my speaking engagements, I have taken the opportunity to call for a change in tenor when the national discussion turns to our justice system.

Regardless of how one feels about the specific circumstances of the Schiavo - or any - situation, the role of the judiciary is clear. Federal and state judges are charged with weighing the facts of a case and following the remedies set forth in the law, responsibilities they carry out valiantly and with great dignity and sensitivity.

It is vital that the legal community address the current atmosphere in which our legal system operates, in what can only be called a decline in civility and respect toward our justice system. Too often judges are characterized as political tools and the justice system merely an offshoot of politics, and not the independent leg of our democracy that they are. Efforts to address the problems of courthouse security have been initiated by the Judicial Conference of the United States and the National Center for State Courts, and I have approached these organizations as well as a number of entities within the ABA to determine where and how we can best contribute to resolving problems faced by the nation's courts and judges.

The Association is committed to promoting the importance of judicial independence. The four entities that comprise the ABA Justice Center: the Judicial Division, the Standing Committee on Judicial Independence, the Standing Committee on Federal Judicial Improvements, and the Coalition for Justice work tirelessly to develop resources, initiatives, policies, and programs that support our justice system, our judges, and our courts. Information on each of these entities' initiatives can be accessed through the Justice Center's Web site at http://www.abanet.org/justicecenter/home.html

Thank you for your continued support of the ABA, the legal profession, and the judiciary. As the voice of the legal profession, we must not allow those among us who would do harm, in any form, to destroy the very freedoms our legal system is entrusted to protect.

Sincerely,

Robert J. Grey, Jr.
President, American Bar Association

Paperless? Hah! Less Paper - Absolutely

by Heather Holland

If you have not considered records management as part of your business or firm plan, it can be time consuming and if done in-house it can be overwhelming, however it is absolutely necessary. Good recordkeeping and a good recordkeeping system are essential components and healthy for every business: ensuring compliance with state and federal employment laws, it can also play a defining role in litigation, arbitration or mediation or when the auditor comes knocking at your door. (See Arias v. United States Service Industries, Inc., D.C. CA, No. 95-7158, 1996.)

Annual Paralegal Day Celebration

Every third Thursday in May has been declared Paralegal Day in the State of Utah. We invite all attorneys and their paralegals to join us in celebrating this day and are pleased to have Lt. Governor Gary Herbert offering some opening remarks and U.S. District Court Judge Dale A. Kimball, presenting the keynote address. Please see the invitation below for complete details.

As paralegals in the State of Utah, we take great pride in our profession. The paralegal field is currently one of the fastest growing professions in the country and was ranked by the State of Utah, Department of Workforce Services as one of Utah's "five-star" jobs. The paralegal profession is projected to grow faster than average for all occupations through 2012.

A paralegal's primary role is to assist attorneys with the delivery of low cost and professional legal services to the public. The valuable contribution of paralegals was recognized by the Utah State Bar through the creation of the Paralegal Division (formerly known as the Legal Assistant Division) in 1996.

The Utah Supreme Court defines a paralegal as a person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically delegated substantive legal work, which work, for the most part, requires sufficient knowledge of legal concepts that, absent such a paralegal, the attorney would perform the task.

Paralegals should at all times maintain the integrity of the legal profession and are subject to the rules of professional conduct governing lawyers licensed to practice in the State of Utah known as the Rules of Professional Conduct of the Utah State Bar.

The utilization of paralegals in rendering legal services has been recognized and promulgated by the American Bar Association and other professional societies. Attorneys who use paralegals have achieved unparalleled success in providing clients with high-quality service. Utilizing qualified paralegals helps attorneys deliver better service and more value while increasing law firm profits. As a result, paralegals have gained widespread acceptance and have become essential contributors in the delivery of legal services.

The Paralegal Division of the Utah State Bar is committed to serving both the profession and the community at large. The Paralegal Division thanks the Bar as well as the many law firms and attorneys that continually give support to paralegals and to our Division. We look forward to a bright and promising future together.