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October 2005 Archives

October 16, 2005

Bar Journal Volume 18 No. 5 Sep/Oct 2005

Bar Journal Volume 18 No. 5 Sep/Oct 2005

v18_no5_sept_oct_2005.jpg

Cover Art Information: COVER: Small stream and wetlands up American Fork Canyon on the trail to the top of Mt. Timpanogos. Photo by first-time contributor Laramie D. Merritt, Bluffdale, Utah.

Table of Contents:

* President's Message: Many Hands Make Light Work
* Commissioner Report: Why the Bar Might Mandate Disclosure of Uninsured Practice
* Commissioner Report: Is Mandating Disclosure in Your Fee Letter That You Do Not Carry Malpractice Insurance a Sound Idea?
* Considerations in Purchasing and Using Malpractice Insurance
* ERISA Standards of Review and the Administrator's Conflict of Interest
* Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned
* Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder - Resolution
* Standards of Professionalism & Civility: Standard 6 - Adherence to Promises & Commitments
* Utah Bar Foundation
* Book Review: Overcoming The 6-Minute Life: How and Why The Legal Profession Should Free Itself From Billable Hours
* Paralegal Division: Why Paralegal Certificate Counts

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

Many Hands Make Light Work

Many Hands Make Light Work
by David R. Bird

'Many hands make light work' was a favorite saying of my grandmother. This has never been truer than it is at the Utah State Bar. I wish to begin my term as President by thanking each of you who give freely of your time and talents to further the Bar and improve our profession. Without you the organization could do little. If each one of us will help where we can, great results will occur.

There are many important things happening in our Bar. As I write, we have just concluded a very successful Annual Meeting at Sun Valley under the direction of Lauren Scholnick and Michael Petrogeorge and their committee. Elaina Maragakis and Christian Clinger and their committee are hard at work planning next yearÕs meeting to be held July 12-15 in Newport Beach. Mark your calendars and plan to attend it as well as the Fall Forum on November 11, 2005 in Salt Lake City and the Spring Convention, March 9-11, 2006 in St. George.

Three hundred and seventeen people recently took the Bar exam; the largest number ever. The admissions process could not work without the Admissions, Character and Fitness, and Bar Examiners Committees and the staff led by Joni Seko. Much of the work of the Bar is done by standing voluntary committees.

We have twenty such committees and over 550 participating members appointed by the Bar Commission:

Admissions; Annual Meeting; Bar Exam Administration; Bar Examiners; Bar Journal; Character and Fitness; CLE Advisory Board; Client Security Fund; Courts And Judges; Ethics Advisory Opinion; Fee Arbitration; Governmental Relations; Law Related Education and Law Day; Law and Technology; Lawyer Benefits; Lawyers Helping Lawyers; Needs of the Elderly; NLCLE; Spring Convention; and Unauthorized Practice of Law.

If you would like to participate in one of these committees please let me know.

In addition there are 32 different Bar Sections covering most areas of practice. Each Section elects its own officers, collects dues and arranges activities for its members. A list of the Sections, their officers and links to their websites can be found on the Bar's web site: www.utahbar.org under 'Utah Bar Directories.' Section participation exceeds 6500 Bar members. There is no better way to interact informally with colleagues in your practice area. Contact the Bar office if you desire information about joining a Section.

Regional and Specialty Bars also provide opportunities for service and personal satisfaction. Please take note of the Utah Minority Bar Association event scheduled for October 15th to honor the first 50 minority members of the Utah Bar. I hope you will plan to attend as the profession honors these trailblazers.

The Bar Commission comprised of 12 elected, 2 Supreme Court appointed, and 10 ex officio members direct the Bar. These men and women spend countless hours in service to the profession. All do so at considerable monetary sacrifice, but great personal satisfaction. I encourage any Bar member to consider running for the Commission.

Lastly, I would like to express my appreciation for our professional staff led by John Baldwin and Richard Dibblee. These 33 people are dedicated individuals who work each day to make sure our Bar functions smoothly.

Please consider my Grandmother's saying. Share your hands. The personal and professional rewards will be incalculable.

Why the Bar Might Mandate Disclosure of Uninsured Practice

Why the Bar Might Mandate Disclosure of Uninsured Practice

by Yvette Donosso Diaz

Introduction

The Utah State Bar Commission is considering amendments to Rule 1.4 of the Rules of Professional Conduct (Rule 1.4) that would require lawyers to disclose to their clients if they do not have professional liability insurance with at least $100,000 coverage. Why are we doing this? Is it to make life more difficult for solo practitioners or new lawyers? To increase the price of legal fees and malpractice suits against our colleagues? The answer is that disclosure of lack of minimum insurance coverage will have a positive impact on our profession: it will increase our 'professionalism,' protect the interests of our members, protect the interests of clients and serve the public.

Continue reading "Why the Bar Might Mandate Disclosure of Uninsured Practice" »

Is Mandating Disclosure in Your Fee Letter That You Do Not Carry Malpractice Insurance a Sound Idea?

Is Mandating Disclosure in Your Fee Letter That You Do Not Carry Malpractice Insurance a Sound Idea?

by Rodney Snow

The Utah Bar Commission meeting was progressing quite nicely. It was my first experience. George Daines was professional, pleasant and organized as he kept the meeting moving through the agenda. While there was discussion, there was little controversy until the new proposed amendment to Rule 1.4 was disseminated, requiring attorneys who carry less than $100,000 in malpractice insurance (hereafter MPI) to disclose that fact in their fee letters. To say that a lively debate ensued is an understatement. I was impressed at the breadth of the Bar Commission's work and the professional manner in which it was being accomplished. I also noted that all points of view were presented and well argued. Based on the discussion, it became clear that the policy behind the proposed change is to encourage all attorneys to carry MPI. As part of the discussion, I voiced some concern regarding the proposed change to Rule 1.4. I have now been 'invited' to present the loyal opposition to the proposed amendment.

Continue reading "Is Mandating Disclosure in Your Fee Letter That You Do Not Carry Malpractice Insurance a Sound Idea?" »

Considerations in Purchasing and Using Malpractice Insurance

Considerations in Purchasing and Using Malpractice Insurance
by Michael Skolnick

A couple of months ago, members of the Utah State Bar received a letter from Salt Lake attorney Grant Clayton. When he's not out driving his vintage TR-6 or writing patents, Grant serves as chairperson of the Bar's Lawyers Benefits Committee. His recent letter urged members of the Utah Bar to support our Bar-endorsed malpractice insurance program. That program is administered by Marsh Affinity and underwritten by Liberty Mutual. This article is intended for those who take the next step; either in obtaining malpractice insurance for the first time, or carefully reviewing their existing policy to ensure it meets their needs. The article will briefly address key considerations in obtaining and using malpractice insurance, with the goal of helping the reader become a wiser consumer of this professionally-invaluable commodity.

Continue reading "Considerations in Purchasing and Using Malpractice Insurance" »

ERISA Standards of Review and the Administrator's Conflict of Interest

ERISA Standards of Review and the Administrator's Conflict of Interest
by Scott Hagen

The Tenth Circuit Court of Appeals recently provided helpful guidance for district courts evaluating claims of wrongful denial of employee benefits under ERISA. In particular, the court clarified the standard of review to be applied where the plan administrator of the employee benefit plan had a potential conflict of interest at the time the benefits were denied.

Continue reading "ERISA Standards of Review and the Administrator's Conflict of Interest" »

Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned

Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned
by Lincoln Mead

VoIP Who?

VoIP stands for Voice over Internet Protocol and it should be the only acronym in this article. In a nutshell, VoIP or broadband telephony, is a technology based on the same type of communications standards that drive our Internet connections. The phones connect to the existing data network and the conversations become just another digital stream running through the network wiring. Calls placed to numbers outside the office are routed over the Internet or a service provider's private network. The calls can link up with traditional phone systems, so someone on a regular landline or cellular service and another using VoIP can talk to each other.

Continue reading "Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned" »

Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution

Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution
by Michele Mattsson and Kent B. Scott

Anyone who has ever experienced the joy of skiing through Utah's dry, untracked powder has felt euphoria, the bliss of floating, effortlessly. But like mediation, getting there takes lots of work and creativity. Do you hike up to your favorite backcountry spot before anyone else does? Do you hire a helicopter? Do you dash up to the nearest resort and try to be the first person on the lift? How do you avoid the dangers? In this article, we'll discuss the tricks, twists, and turns of getting to the untracked powder Ð getting to a settlement.

Continue reading "Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution" »

Standard 6 - Adherence to Promises & Commitments

Standard 6 - Adherence to Promises & Commitments
by V. Lowry Snow

It is late Friday afternoon after a harried week of work. You are tired and want to get out of the office early. Just as you think you are finally free to leave the demands of your clients and enjoy your weekend, a return telephone call comes in from opposing counsel on one of your cases, dealing with an important issue. The attorney on the other end of the line makes one or more of the following representations to you:

Continue reading "Standard 6 - Adherence to Promises & Commitments" »

New Rules governing IOLTA program adopted by the Utah Supreme Court

New Rules governing IOLTA program adopted by the Utah Supreme Court

by Steve Sullivan, Utah Bar Foundation President and Kim Paulding, Utah Bar Foundation Executive Director

On June 27, 2005, the Utah Supreme Court executed an Order setting out new rules to govern the IOLTA (Interest on LawyersÕ Trust Accounts) Program. The Order is effective upon signing and the new set of rules clarifies many of the questions that have arisen during the 22-year history of the program.

The new IOLTA rule no longer allows attorneys to opt-out of the IOLTA program and still maintain a non-interest bearing trust account. It now states that all client trust accounts must be interest bearing with the attorney making one of two choices of where the interest should be directed. The first option is that the interest be generated for the benefit of the client if it is a large enough sum of funds or is being held for a long enough period of time to generate net interest on behalf of the client. (Net interest would be the remaining funds left after the bank has taken their service fees and other charges associated with administering the account). If the first option is not viable, the second option is to direct the interest to the IOLTA program. The Utah Bar Foundation enjoys a good relationship with the Utah Banker's Association and at this time, most of the participating banks in the IOLTA program waive all services fees associated with the IOLTA accounts helping to generate even more funds for legal services for the poor and law related education.

The IOLTA program was created in 1983 by the Utah Supreme Court Opinion In The Matter of Interest on LawyersÕ Trust Accounts, 672 P.2d 406 (Utah 1983). It allowed attorneys to pool client funds that were to be held for a minimal amount of time or were of small amount in an interest-bearing client trust account. The interest from this account is directed to the IOLTA Program.

Over the past 22 years, the Utah Bar Foundation has donated more than $4.1 million dollars for charitable purposes that:

¥ Promote legal education and increase the knowledge and awareness of the law in the community.

¥ Assist in providing legal services to the disadvantaged.

¥ Improve the administration of justice.

¥ Serve other worthwhile law-related public purposes.

Past recipients of funds have included agencies such as Utah Law Related Education Center, Legal Aid Society of Salt Lake, Utah Legal Services, Disability Law Center, DNA People's Legal Services, International Rescue Committee, Community Mediation Center, Multi Cultural Legal Center, as well as many others.

It is worth noting that the Utah Bar Foundation is a completely separate non-profit organization from the Utah State Bar. While there is a long-standing good relationship between the two organizations, they are completely separate from one another.

The Foundation has been organized as a member organization in which every licensed attorney in Utah in good standing is a member. The general membership elects seven members from the membership to serve on the Board of Directors to govern the operations of the Foundation. If you are interested in serving on the Board or becoming more involved, please contact the Foundation offices.

To see a complete copy of the petition, new rule or Order from the Court, please visit our website at http://www.utahbarfoundation.org/ html/downloadable_forms.html. For questions about the IOLTA program or help with bringing your account in to compliance with the new rule, please contact the Foundation offices at (801)297-7046.

Overcoming The 6-Minute Life:How And Why The Legal Profession Should Free Itself From Billable

Overcoming The 6-Minute Life:
How And Why The Legal Profession Should Free Itself From Billable Hours

by Bentley J. Tolk

Reviewed by Russell A. Cline

Most lawyers earn their living by billing clients for services rendered, and most lawyers bill their clients based on the number of 'billable hours' spent on the client's case. In Overcoming the 6-Minute Life, Utah lawyer Bentley J. Tolk makes a persuasive case for the argument that the 'billable hour' system is responsible for much of the current dissatisfaction experienced by lawyers. Tolk also presents a number of ways to mitigate the negative effects of the 'billable hours' system, as well as alternatives thereto.

In discussing his topic, Tolk integrates an impressive amount of research, including literature from both the legal and popular press. For example, Tolk cites a number of empirical studies demonstrating the increasing problem of lawyer 'burn out,' the recent increases in the 'minimum billable hours' required at large and medium law firms, and how the two are related. One informal study, on 'why graduates of the Harvard Law School Class of 1990 were quitting the practice of law in droves,' observed that by the year 2000, one-half of that class was no longer working in law firms, and twenty-five percent were no longer practicing law. Another commentator noted that 'many new lawyers view themselves as being in a rat race where they are moving ahead without an end in sight. The work of billable hours becomes a monotonous, never-ending reality with no inherent meaning and with no opportunity to be free. . . . Many lawyers have arguably forgotten what it means to play or to experience joy.'

Tolk cites one commentator who stated that 'for each 100 hours that a lawyer bills over 1,500 hours in a given year, 10 percent of the lawyerÕs soul dies.' When a lawyer routinely leaves the office at 8:00 p.m. instead of 6:00 p.m., his or her time with children, a spouse, or recreation becomes almost non-existent. Billing demands often become so all consuming that pro bono work, community service and other activities within the law firm cease to exist. Lawyers rarely have a lunch 'hour,' but will frequently 'wolf down' a sandwich in their office so as to 'make up' for missed billable time. Social outings and holidays seem like items on a checklist that need to be completed so that the lawyer can get back to work. When a friend or family member calls a lawyer during the day, the lawyer resents the intrusion since the missed billable time will have to be made up later. The lawyer begins to value himself or herself based on the number of billable hours he or she produces. He or she constantly has to justify his or her existence in terms of feeding the firmÕs bottom line through billable hours.

Tolk also discusses how billing by the hour often provides the wrong incentives. The system rewards inefficiency since the longer it takes to complete a task, the more the lawyer is paid, irrespective of the value of the work performed to the client. However, '[a] law firm is a business, and the lifeblood of that business has generally been the billable hour.' Tolk has a number of suggestions for how the interests of the firm and the client can be harmonized. Interestingly, Tolk makes a strong case for not under billing clients, arguing that such a practice usually does a disservice to both the client and the attorney.

Tolk also includes a section addressed to law students. As Tolk correctly notes, many law students have a 'rose-colored' view of working in a large law firm. He relates the story of a lawyer who left a large law firm for an academic position, only to find that most of his students wanted to join the same law firm that he and his former colleagues were so anxious to escape. Some law firms are also less than honest during the 'wining and dining' process of recruiting law students. As a result, some new lawyers are shocked by the demands that are suddenly placed upon their time.

In recent years, the starting salaries for new associates have increased dramatically at many large law firms. Tolk notes the irony in this trend, since each time that the salaries of starting associates in a law firm are raised, lawyers at all levels must bill more hours, since increases in billing rates have not been able to keep up with the increases in compensation for new associates. Tolk also dispels the popular myth that lawyers in large firms simply need to work hard for 7-10 years, and then they can live a balanced, affluent lifestyle for the rest of their careers. In fact, the 'treadmill' continues and is not diminished for senior lawyers and partners. Furthermore, many lawyers often spend most of what they make, and do not save much. This keeps many lawyers on the billing 'treadmill' well into their late 60Õs to make ends meet.

Tolk suggests a number of ways to control the negative effects of the '6-Minute Life.' These include setting specific hours to arrive at work and leave work, and other rules as to when work will be allowed to infringe on personal time. Once set, however, boundaries need to be strictly observed to prevent the demands of billable hours from engulfing other aspects of the lawyerÕs life. Similarly, the lawyer must abandon the concept that there can never be too many billable hours, and he or she must view billable hours as 'putting money in the bank.' Once the 'billable hours' account is built up (i.e., the lawyer is ahead of schedule), the lawyer has more flexibility in structuring his or her life.

Lawyers who focus on 'niche' practices (such as tax law, employment law, securities, or environmental law) are relatively more content than lawyers who are less specialized. Specialization provides the intrinsic satisfaction that comes from mastering an area of the law that one loves, and developing a reputation and client basis in a specialized area. 'Niche' practices also often lend themselves to 'value billing,' where the lawyer can bill a flat fee for a particular procedure, irrespective of how many 'billable hours' may be required. A lawyer's fee for services becomes tied more closely to the value produced, rather than the number of hours worked, which is inherently more satisfying. Tolk also addresses a number of alternatives to 'hourly billing,' including 'contingency billing,' 'value billing,' 'flat fees' and bonuses for success.

Overcoming The 6-Minute Life provides a thorough and well-written discussion of its topic. The audience includes any lawyer who bills clients for services rendered on an hourly basis, as well as every law student. TolkÕs writing style is brisk and clear and makes for a very easy read. The book is also well organized, and lends itself well to readers who like to'jump around.'

Tolk has also been unusually candid as to his personal struggles in balancing the '6-Minute Life' with personal and family demands. For example, Tolk discusses having to leave the events surrounding two family funerals early because of the pressures of billing time. His personal comments are a welcome addition that serves to illustrate and personalize many of the concepts he discusses.

Most importantly, the book addresses a very important topic to the legal profession. It serves as a cautionary tale to newer and more seasoned attorneys as to the physical and emotional toll that the 'billable hour' system can extract. It also provides insights and suggestions that are practical, useful and well worth considering. Tolk has set up a website at www.6minutelife.com, which provides additional information, for those interested in the topic. The book is currently available at that website or through e-mailing Tolk directly at bentleytolk@6minutelife.com.

Why Paralegal Certification Counts

Why Paralegal Certification Counts
by Debra J. Monke

Designation as a Certified Legal Assistant (CLA), or Certified Paralegal (CP) is more than the pinnacle of professional achievement for individual paralegals. It is also a sound indication of proficiency to the attorneys, firms, and organizations that hire them.

Since the CLA program was launched by the National Association of Legal Assistants (NALA) in 1976, it has become widely recognized as the definitive credential for paralegals. More than 25,000 individuals have participated in the program, and some 12,500 paralegals are on the certification rolls today.

Continue reading "Why Paralegal Certification Counts" »

Message from the Paralegal Division Chair

Message from the Chair
by Danielle S. Price

For those of you looking for a good CLE opportunity, please consider the Utah State Bar Fall Forum. The Paralegal Division is supporting the Forum this year as our last full day CLE offered through the Bar for 2005. If you have attended the Fall Forum in years past, you know that it is a great day of CLE. If you have not yet attended, this is the year to do it. The Bar has put together some great tracks and speakers at a great cost for paralegals. Tracks include: litigation, transactional, general, ADR and practice management/ technology. Please be on the look out for registration materials or go to the Bar's website for additional information and to register. I look forward to seeing you there.

Date: Friday, November 11, 2005
Time: 8:00 a.m. - 6:00 p.m.
Location: Little America Hotel
Cost: $60 for paralegals

Paralegal Salary Survey Results

The Utah State Bar Paralegal Division Board of Directors is pleased to announce the completion of our first survey regarding Utah Paralegals' salary and employment. An executive summary will be published in the upcoming Nov/Dec issue of the Utah Bar Journal. Complete survey results will also be made available on the division's web page. Take a look and see where you or your firm fit in our profession!

Commission Highlights

Commission Highlights

During its regularly scheduled meeting of July 13, 2005, which was held in Sun Valley, Idaho, the Board of Bar Commissioners received the following reports and took the actions indicated.

Continue reading "Commission Highlights" »

The Utah Minority Bar Association Presents:'Celebrating Diversity in the Law'

The Utah Minority Bar Association Presents:
'Celebrating Diversity in the Law'
Banquet and Program Honoring the First 50 Minority Attorneys in Utah

October 15, 2005 at 6:00 p.m.
Grand America Hotel ¥ Salt Lake City, Utah

Since the Utah Minority Bar Association ('UMBA') first announced its upcoming 'First 50' event, excitement has been building rapidly. If you have not already heard, UMBA is hosting a celebration to honor and recognize the First 50 minority lawyers admitted to practice law in the State of Utah. This will be a gala event and everyone is invited. Many firms, organizations, and individuals have already committed to attend. I hope you do too.

Continue reading "The Utah Minority Bar Association Presents:'Celebrating Diversity in the Law'" »

Pro Bono Honor Roll

Pro Bono Honor Roll

Clark Allred
Michael Anderson
Deb Badger
Judy Barking
Justin Bond
David Broadbent
David Connors
Tracy Cowdell
Roberto Culas
Keith Eddington
Ronald Elton
James Farmer
John Gothard
David Hamilton
M. Darin Hammond
Milton Harmon
D. Rand Henderson
Angela Hendricks
Timothy Houpt
Brent Johns
Michael R. Johnson
Jason Jones
Jan Malmberg
Ramona Mann
David Marx
William Ormond
Lester Perry
Leslie Randolph
J. Bruce Savage
Jeremy Sink
Kevin P. Sullivan
Benjamin Thomas
Thomas Thompson
Todd Turnblom
Leslie Van Frank
Gregory B. Wall
Kimberly Washburn
Carolyn Zeuthen

Utah Legal Services and the Utah State Bar wish to thank these attorneys for their time and willingness to help those in need. Call Brenda Teig at (801) 924-3376 to volunteer.

2005 Fall Forum Awards

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

Grant Program Seeks Requests

Grant Program Seeks Requests

'and Justice for all' annual grant program seeks requests to support civil legal aid programs in Utah. Grants are made to non-profit organizations in Utah providing direct legal aid, especially those who face barriers due to income, disability, age, geography, race or ethnicity. The agency expects to award three to six grants totaling approximately $25,000. Grants are due September 30, 2005. For an application please contact kaiwilson@lasslc.org.

Utah Attorney Swims English Channel

Utah Attorney Swims English Channel

Richard Barnes, a Utah attorney, has accomplished something no other Utahn has done before. On August 6, 2005 he swam the English Channel. The swim from England to France was completed in sixteen hours and forty-three minutes.

Known as the 'Mount Everest' of swimming because of its difficulty, the English Channel is 21 miles straight across, but because of the very strong currents, tides, and weather conditions, swimmers must swim much further than that. Richard Barnes' swim was approximately 36 miles.

Richard entered an elite group of swimmers who have successfully made the crossing. Out of thousands of attempts, only approximately 680 people have completed the swim, less than half of the number of people who have climbed Mr. Everest.

The English Channel is known as the most difficult open water swim because of the extreme cold water, averaging only 60 degrees at its warmest season. Other obstacles are jellyfish stings, strong currents, and six-foot swells, not to mention the occasional passing freighter creating even larger waves. It is one of the busiest shipping lanes in the world with 600 tankers passing through and 200 ferries and other vessels going across daily.

In order to be officially recognized by the Channel Swimming Association, swimmers are not allowed to wear a wet suit or anything that will aid in buoyancy or thermal protection. The only exception is that swimmers are allowed to apply 'Channel Grease' (a mixture of Vaseline and lanolin) before the swim.

Mr. Barnes has been practicing law for five years and works as an insurance defense attorney for Paul H. Matthews & Associates, P.C.

Notice of Stay of Suspension

Notice of Stay of Suspension

By Order of the Third Judicial District Court in In the Matter of the Discipline of Marsha M. Lang, Case No. 010910847, the Honorable Robert K. Hilder presiding, Marsha LangÕs twelve-month suspension beginning May 1, 2005 has been stayed, as of August 1, 2005. For a period of nine months, Ms. Lang's practice of law is under the supervision of attorney Gary R. Howe.

Utah State Bar Presents Awards At 2005 Annual Convention

Utah State Bar Presents Awards At 2005 Annual Convention

The Annual Awards of the Utah State Bar were presented at the Bar's 75th 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.

Judge of the Year
Hon. Andrew A. Valdez
Judge Andrew A. Valdez was appointed to the Third District Juvenile Court in June of 1993 by Gov. Michael O. Leavitt. He serves Salt Lake, Summit and Tooele counties. He graduated from the University of Utah College of Law in 1977.

Prior to his appointment, Judge Valdez was a commissioned captain in the U.S. Army J.A.G. Corp and trial counsel with the Legal Defenders Association Felony/Homicide Division.

Awards include Board of Youth Corrections Distinguished Service Award; American Red Cross Lifesaver Award; Minority Bar Association Leadership Award; Lillian Smith 'Youth Advocate of the Year' Award; 'Peace in the Streets' Award given by the Salt Lake Area Gang Project; U.C.L.R. Leadership Award; Catholic Community Service Award; and Honorary Doctorate Degree of Humane Letters, Salt Lake Community College.

Judge Valdez has developed a court-based mentoring program, partnerships with community education schools, and opportunities for female juvenile offenders to work off restitution obligations.

Judge Valdez has served as chair of the statewide Youth Parole Authority, and has served on the Utah Sentencing Commission, Board of Trustees for Primary Children's Medical Center, Juvenile Justice Task Force, Board of Juvenile Court Judges, and the Judicial Council. He is currently a member of the National Youth Gang Center and was honored January 2003 with the Martin Luther King Civil Rights Award by the N.A.A.C.P. Judge Valdez was awarded the Footprinter's Association Law Enforcement Officer of the Year award and the Utah Children Child Advocate of the Year award in May 2005.


Distinguished Committee of the Year
Governmental Relations
Lori W. Nelson & Scott R. Sabey, Co-Chairs
The Bar's Governmental Relations Committee assists the members of the Bar by monitoring activity at the offices of the Governor, Senate and the House of Representatives. Pursuant to Article VIII, Section 4 of the Utah Constitution, and as set out in Rule III, Section O of the Supreme Court Rules of Professional Practice and State Bar Integration and Management, the Utah Supreme Court has directed the Governmental Relations Committee to study and provide assistance on public policy issues, and advise the Bar Commission on positions to adopt on public policy issues and pending legislation. This includes issues involving: the courts of this state; rules of procedure and evidence in the courts; the administration of justice; the practice of law; and matters of substantive law on which the collective expertise of lawyers has special relevance and/or which may affect an individual's ability to access legal services or the legal system as defined by the Utah Supreme Court.

The Committee also uses the broad participation of the Bar by seeking participation in the Governmental Relations Committee by each of the other Sections and Committees of the Bar. The Committee's members also review and analyze pending or proposed legislation and provide technical assistance to the Legislature, the Governor, the Judicial Council and other public bodies upon request.

The greatest challenge the Governmental Relations Committee has faced over the last few years has been to improve the Bar's relationship with the Legislature. A better working relationship is necessary to assist in improving the quality and clarity of laws that are passed. To that end Constitutional Law classes by professors of both law schools have been offered for new legislators, presentations on the available services of the Governmental Relations Committee have been made to the caucuses of both parties, and meetings have been held with key members of the House and Senate. The Committee has also assisted the Bar Commission in the effort to ensure the Bar's representations to the Legislature are consistent with the views of its members.

The degree of success enjoyed to date in Governmental Relations Committee's overall goals of improving the practice of law for lawyers and the impact of the laws on the public could not be accomplished without the tremendous contributions of Bar member John T. Nielsen, to whom we all owed a debt of thanks.


Distinguished Section of the Year
Alternative Dispute Resolution
Michelle M. Roybal, Chair
At 136 members, the ADR Section may well be one of the smallest of our Bar. We have found, however, that the membership is vocal, strong, and committed to supporting events advocating for dispute resolution throughout our community.

The Alternative Dispute Resolution Section of the Utah State Bar is pleased to welcome attorneys and non-attorneys as its members. We are one of the few Sections of the State Bar authorized to allow non-attorney members to join. We believe this is indicative of the collaborative work that we do as conflict resolution practitioners and we hope that the professional diversity represented in our Section improves the quality of the education programs we offer as a Section.

Some of the accomplishments of the ADR Section over this past year include the establishment of the ADR Academy as our flagship event, co-sponsoring the Utah ADR Symposium Seeking Just Resolutions with the Utah Council on Conflict Resolution, and holding sessions at the Midyear Conference, Annual Convention and Fall Forum. As well, annually, the Section honors a community member who has significantly contributed to the field of dispute resolution with the Peter W. Billings, Sr. Outstanding Service Award.

In addition to these CLE and professional development programs, our members have become increasingly involved in outreach and education efforts regarding conflict resolution. We have been involved with the review of legislation mandating mediation in domestic law disputes in Utah, as well as the in the establishment of a volunteer mediation program at the Sandy Division of the Third District Court. One of the primary goals of the Section leadership over the coming years is to increase the exposure of students in public schools to the ADR process and to their own abilities to resolve conflicts in an effective manner.

We are honored by this award from the Board of Bar Commissioners and are pleased to be involved in the recognition of the importance of the role of lawyer as problem solver.

Antitrust & Unfair Competition Law Section: An Introduction

Antitrust & Unfair Competition Law Section: An Introduction

The Antitrust & Unfair Competition Law Section of the Utah State Bar was established in January 2005. Our membership currently includes lawyers on both the plaintiff and defense sides of the Bar, academics, government prosecutors and economists. In that regard, we would like to invite all Utah lawyers whose practices involve antitrust and unfair competition matters to join our Section and add their expertise to our group. We believe we will form an effective network of lawyers in Utah whose knowledge and expertise allow us to support each others' practices.

Continue reading "Antitrust & Unfair Competition Law Section: An Introduction" »

Discipline Corner

Discipline Corner

PUBLIC REPRIMAND
On June 10, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Richard L. Musick for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) and (d) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Musick was retained to represent a client in a real estate contract dispute. The Court directed Mr. Musick to prepare the findings and judgment as well as the necessary paperwork needed to show closure to the Court of Appeals. Mr. Musick failed to file a final order which would have allowed his client to enforce the Court's order or get the appeal dismissed in the case. Mr. Musick also failed to communicate the basis of his fee in writing and failed to promptly withdraw from the case when the client requested that he do so.

PUBLIC REPRIMAND
On June 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Robert J. Barron for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.14(a) (Client Under a Disability), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Barron was hired to assist a sibling of a U.S. citizen apply for an immigration visa. At the time, there was about a twelve year waiting period for the immigrant visa and a petition needed to be filed to place the visa applicant on the waiting list. Mr. Barron incorrectly instructed the client regarding the proper forms to be filed and the filing process. Mr. Barron informed the client he was checking to obtain the correct filing information but he failed to promptly comply with the client's written requests for status updates or provide further information. Mr. Barron did not communicate by telephone with the client due to a language barrier with the client and Mr. Barron's bilingual secretary did not return the client's calls. Mr. Barron's inability to communicate with the client due to the language barrier interfered with the representation. Mr. Barron also failed to diligently pursue the filing information needed to enable Mr. Barron to file the petition and start the visa application process.

PUBLIC REPRIMAND
On June 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Robert J. Barron for violation of Rules 1.1 (Competence), 1.4(a) and (b) (Communication), 1.5(a) (Fees), 1.14(a) (Client Under a Disability), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Barron was hired for an immigration matter. Due to a language barrier he was unable to adequately explain matters to the client. Mr. Barron provided the client with incorrect advice and he failed to review the necessary supporting documentation before filing the immigration forms. Mr. Barron failed to keep the client adequately informed about the case status and he failed to explain how the lack of substantiating evidence could affect the case. The client terminated the representation. Mr. Barron partially refunded the retainer but he charged and collected a fee for work that was not performed or performed incorrectly. Mr. Barron failed to refund the advanced payment for fees that were not earned.

ADMONITION
June 10, 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 1.15(a) (Safekeeping Property) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney failed to promptly remove fees that the attorney earned from the attorney's trust account thereby commingling the earned fees with funds belonging to clients in the attorney's trust account. The attorney also incurred an ATM transaction fee for withdrawing funds which caused an overdraft of the attorney's trust account.

RECIPROCAL DISCIPLINE
On May 26, 2005, the Honorable Joseph Fratto, Third Judicial District Court, entered an Order of Discipline: Disbarment disbarring Alan Barber from the practice of law in Utah.

In summary:
On February 13, 2004, the Supreme Court of Idaho entered an order disbarring Mr. Barber from the practice of law in Idaho. Mr. Barber's misconduct in Idaho included knowingly converting clients' property, abandoning his practice or knowingly failing to perform services for clients or engaging in a pattern of neglect with respect to clients' matters, knowingly deceiving clients with the intent to benefit himself, knowingly violating duties owed to the profession with an intent to obtain a benefit for himself, causing serious or potentially serious injury to clients, the public and the legal system.

RECIPROCAL DISCIPLINE
On May 19, 2005, the Honorable Pamela G. Heffernan, Second Judicial District Court, entered an Order of Discipline: Public Reprimand, publicly reprimanding Kent Snider.

In summary:
On September 1, 2004, the United States Court of Appeals for the Tenth Circuit entered an order publicly reprimanding Mr. Snider. Mr. Snider's misconduct included failing to respond to the court's orders and directives and failing to follow the court's rules.

ADMONITION
On May 31, 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) (Communication), 1.15(b) (Safekeeping Property), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was hired to pursue a malpractice claim for a client. Since the client had filed for bankruptcy, any recovery could first be claimed by the trustee in the bankruptcy case. A small settlement was offered by the defendants to the trustee that would not give the attorney's client any recovery. The trustee filed a motion to approve the settlement and a hearing was held. The attorney did not communicate with the client concerning the settlement, failed to respond to the client's telephone calls and letters, and did not inform the client about the hearing. When the court approved the settlement, the attorney did not send a copy of the court's disposition to the client. After the case ended, the client requested a refund of the unearned retainer. It took six months for the attorney to mail the refund to the client.

ADMONITION
On May 31, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was hired to recover monies owed to the client. The attorney did not demonstrate the requisite skill and preparation that was necessary to adequately represent the client. The attorney did not diligently pursue the case. For almost a five month period, the attorney failed to timely communicate and respond to the client. The attorney also failed to notify the client of the attorney's need to withdraw from the representation.

PUBLIC REPRIMAND
On May 24, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Thuan V. Tran for violations of Rules 1.1 (Competence), 1.3 (Diligence), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Tran was hired to represent a client's spouse to prevent the deportation of the spouse. Immigration had already issued an order of deportation for removal of the spouse. Mr. Tran received a call from immigration concerning the readiness of the spouse's work permit for collection. Mr. Tran informed the client's spouse that the spouse could pick up the work permit at the immigration office without counsel, even though the spouse was still subject to the deportation order. The client's spouse attended the immigration office and was detained and subsequently deported.

PUBLIC REPRIMAND
On May 24, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Clayne Corey for violations of Rules 8.4(b) (Misconduct) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Corey pled guilty to driving under the influence of alcohol and entered an Alford plea. Mr. Corey committed criminal acts that reflect adversely on his fitness as a lawyer.

ADMONITION
On July 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.7(a) (Conflict of Interest), 1.16(a)(1) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was appointed to represent a party in a divorce action. In a separate divorce action, the attorney was appointed to represent a party that had adverse interests to the first party the attorney was appointed to represent. The attorney failed to withdraw.

PUBLIC REPRIMAND
On July 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Nathan N. Jardine for violations of Rules 1.5 (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Jardine was paid to represent a client. The fee agreement stated the retainer would not be refunded for any reason and provided no terms for disgorgement. The client terminated the representation and requested a refund. Mr. Jardine collected an excessive fee by refusing to offer any kind of refund although he admitted that there was only 2 to 3 hours of work done on the case.

ADMONITION
On July 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.15(a) (Safekeeping Property), 5.3(a) and (b) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The Office of Professional Conduct ('OPC') received an overdraft notice on an attorney's client trust account. The overdraft was created by a check written to a client as a refund. Before the check was presented for payment, the attorney mistakenly withdrew more money from the trust account as earned than the client had in the trust account based on the attorney's accounts person's advice. The attorney also failed to ensure that the attorney's staff kept adequate accounting records and implemented accounting procedures to ensure that the practices of the staff were consistent with the attorney's obligations.

ADMONITION
On June 20, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.1 (Competence), 1.3 (Diligence), 1.5(a) (Fees), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was hired to represent a client in bankruptcy proceedings. The attorney missed a hearing but another attorney stood in for the hearing and did not have the necessary paperwork. At the hearing, the Utah State Tax Commission indicated that they had not received the copies of the client's tax returns. The client had already given the attorney's office the returns and when the client inquired about the tax returns the attorney's office could not find the returns. The client received notice that the case was going to be dismissed because of the failure to provide the tax returns. The attorney advised that the returns just needed to be filed and would do so. The case was dismissed because of the attorney's failure to file the returns. After the dismissal, the attorney told the client that the case could be reopened. The attorney eventually filed a new bankruptcy after the client's car was repossessed. The client subsequently hired another attorney to get the car back. The attorney also filed a financial statement in the new bankruptcy that the client did not review or sign.

PUBLIC REPRIMAND
On July 8, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Earl B. Taylor for violations of Rules 1.1 (Competence), 1.3 (Diligence), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Taylor was hired to represent a client in a bankruptcy. The case was dismissed because of Mr. Taylor's failure to respond to the trustee's motion.

ADMONITION
On June 21, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
The attorney was hired to represent a client in immigration matters. The attorney failed to inform the client that a petition was rejected by immigration, failed to explain the situation or options to the client, failed to respond to status requests, and failed to provide copies of filings or a copy of the file to the client.

ADMONITION
On June 22, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violations of Rules 8.4(a) and (c) (Misconduct) of the Rules of Professional Conduct.

In summary:
An attorney was convicted of a Class A misdemeanor for attempting to deliver Oxycontin tablets to the attorney's spouse, an inmate at the Adult Detention Center.

PUBLIC REPRIMAND
On June 21, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Joseph Goodman for violations of Rule 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In summary:
Mr. Goodman was hired to represent a client in divorce proceedings. Mr. Goodman failed to file all of the necessary documents to request a default judgment on behalf of his client. Mr. Goodman was not diligent in pursuing his client's case and permitted the case to be dismissed. Mr. Goodman failed to communicate with his client. Mr. Goodman failed to provide requested documents to his client. Mr. Goodman failed to inform his client of an Order to Show Cause hearing and failed to explain the court's ruling from that hearing. Mr. Goodman failed to respond to the Office of Professional Conduct's requests for information.

Letter to the Editors

Dear Editor:

It seems that with numbing regularity your Journal addresses the issue of lawyer civility and such a constant theme in the publication suggests that the Bar there has simply never learned good manners from any source. However, the article by Mr. Johnson I read with particular amusement. Were I in court trying the issue of whether new standards promulgated by the Utah Supreme Court for civility among lawyers should be adopted and Mr. Johnson were the witness for the proposition that such standards are unnecessary, and assuming that he testified in the same vein as his article, the court's offer of cross-examination would be met by the following heartfelt response: 'No questions, your Honor. The witness has adequately proved our point.'

Michael T. Lowe,
Orange, California

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About October 2005

This page contains all entries posted to Utah Bar Journal in October 2005. They are listed from oldest to newest.

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