Utah Bar Journal

A Conservative View of the Originalist View of the Bill of Rights
by Boyd Kimball Dyer

The "Originalist" view of the Bill of Rights taken in Mr. David McKinney's article "The Tyranny of the Courts" in the last issue of the Utah Bar Journal is not historically accurate. A conservative view puts the Bill of Rights in its true historical context as the first step in its interpretation.

The Dangers of Overreacting to "Judicial Activism"
by Thomas L. Murphy

According to the guidelines for "Submission of Articles for the Utah Bar Journal," the publication "seeks articles of practical interest to attorneys." For the most part, I find the articles in the Utah Bar Journal interesting and helpful. However, a recent article published, "The Tyranny of the Courts," by David R. McKinney, Esq., is, in my opinion, an expression of political belief.

Lessons from Kindergarten
by Justice Jill N. Parrish

EDITOR'S NOTE: Justice Parrish delivered these remarks on October 12, 2005 at the Admissions Ceremony for new inductees to the Utah State Bar.

Congratulations on passing the bar exam! You now have permission to practice what you've spent the last three years learning. You've proven that you can retain material not only long enough to pass a final exam, but long enough to convince the Bar Examiners (and all of us) that you are, in fact, qualified to practice law.

Standard 14 - Professional Courtesy
by Bonnie Mitchell

"Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the merits of the cause or prejudicing the client's right, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage."

Commission Highlights

During its regularly scheduled meeting of October 7, 2005, which was held in Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

1. Scott Sabey reminded Commissioners of the Leadership Conference to be held October 26, 2005 at the Little America. All those holding leadership positions in bar sections, committees and local bars are invited.

2006 Spring Convention Awards

The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2006 Spring Convention. These awards honor publicly those whose professionalism, public service, and public dedication have significantly enhanced the administration of justice, the delivery of legal services, and the improvement of the profession. Award applications must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, January 16, 2006.

1. Dorathy Merrill Brothers Award - For the Advancement of Women in the Legal Profession.

2. Raymond S. Uno Award - For the Advancement of Minorities in the Legal Profession.

2006 Annual Convention Awards

The Board of Bar Commissioners is seeking nominations for the 2006 Annual Convention 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 Friday, April 21, 2006. The award categories include:

* Judge of the Year

* Distinguished Lawyer of the Year

* Distinguished Section/Committee of the year

Notice of Election of Bar Commissioners

Third, Fourth & Fifth Divisions
Pursuant to the Rules of Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for two members from the Third Division, one member from the Fourth Division and one member from the Fifth Division, each to serve a three-year term. To be eligible for the office of Commissioner from a division, the nominee's mailing address must be in that division as shown by the records of the Bar.

2005 Fall Forum Awards

Reverend Mr. France A. Davis
Distinguished Community Member of the Year

James S. Jardine
Distinguished Lawyer of the Year

Su J. Chon
Pro Bono Lawyer of the Year

Hon. Richard C. Howe
Professionalism

Pro Bono Honor Roll

Stanley Adams
Richard Armstrong
Lauren Barros
M. Paige Benjamin
James Blakesley
Mary Brown
Robert Cosson
Martin Custen
Jerald Engstrom
Dana Farmer
Angela Fonnesbeck
Samuel Gardiner
Nathan Hult
Jonathan Jaussi
Chase Kimball
H. Ralph Klemm
D. David Lambert
Deanna Lasker-Warden
Michelle Lesue
Robert Lovell
Vinh Ly
Ramona Mann
Daniel McKay
Suzanne Marychild
Stephen Mayfield
Sam Meziani
Russell Minas
William Morrison
Stephen Oda
Lester Perry
Candice Ragsdale-Pollock
Chen Shen
Emily Smoak
Kirsten Sparks
Steven Stewart
Sidney Unrau

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.

Appointments

The Bar appoints or nominates for appointments to various state boards and commissions each year. The following is a listing of positions which will become vacant in the next twelve months. If you are interested in being considered for one or more of these positions, please send a letter of interest and resume to John C. Baldwin, Utah State Bar, 645 South 200 East, Salt Lake City UT 84111 or e-mail john.baldwin@utahbar.org.

Utah State Lawyer Legislative Directory
57th Legislature 2006-2007

The Utah State Senate

Patrice Arent
Democrat - District 4

Education: B.S., University of Utah, 1978; J.D., Cornell Law School, 1981

Committee Assignments: Executive Office of Criminal Justice Appropriations Committee; Judiciary, Law Enforcement, and Criminal Justice Committee

Elected to House of Representatives, 1996; Elected to Senate, 2002

Area of Practice: Commercial Litigation

Discipline Corner

ADMONITION
On September 20, 2005, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), and 1.4(b) (Communication) of the Rules of Professional Conduct.

The Unauthorized Practice of Law
A Paralegal's Duty and Responsibility - Know the Limits
by Bonnie Hamp

UPL, the "unauthorized practice of law", we've all heard the phrase, but do we really know what it means? Simply put, the unauthorized practice of law occurs when a person who is not a licensed attorney engages in the practice of law.

Bar Journal Vol. 18 No. 6 Nov/Dec 2005

PDF version: http://www.utahbar.org/barjournal/pdf/2005_nov_dec.pdf

Cover Art Information: COVER: Fall scene on the Alpine Loop above Sundance, Utah. Photo by Daniel J. Anderson of Kaysville.

* Letter to the Editor
* Practice Pointer: Ethical Considerations for Office Sharing
* The Tyranny of the Courts
* An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
* Reflections on Poverty, Bankruptcy, and Heresy
* Applying the Standards of Professionalism and Civility to the Practice of Criminal Law
* Utah's Law Developments: Utah's Newest Anti-Spam Law: The Child Protection Registry
* Standards of Professionalism & Civility: Standard 3 - Baby Steps... Toward Civility
* Book Review: Life in the Law: Answering God's Interrogatories Galen L. Fletcher and Jane H. Wise, editors
* Paralegal Division: Results of the Beta Test of the Utilization/Salary Survey - 2005

Dear Editor,

The ethical rules do not allow attorneys to collect interest on trust accounts because the property held in trust does not belong to the attorney. We should not take something that does not belong to us.

In 1983 the Supreme Court approved the IOLTA program. Endemic in the decision was the cankered logic that although the means to get the money was corrupt, the ends justified those means. After all, giving to charity is a noble virtue.

Practice Pointer: Ethical Considerations for Office Sharing
by Kate A. Toomey

If you're a solo practitioner an office sharing arrangement might be attractive for a number of reasons such as saving money while at the same time enjoying the advantages of collegial relationships without undertaking the responsibilities of a more complex business organization. From an ethical standpoint, there is no reason you shouldnÕt do it, but you need to be aware of the Rules of Professional Conduct and their ramifications for office-sharing. Here are a few things to keep in mind.

The Tyranny of the Courts
by David R. McKinney

The recurring political battles over federal judicial nominations demonstrate a continuing and disturbing development Ð the increasing politicization of the courts. These battles would not occur, but for the willingness of courts to decide political questions. The fighters on both sides implicitly recognize the courts as institutions through which policy preferences can be turned into law. The political leanings of judicial candidates therefore become all-important, as evidenced by the recent hearings on the nomination of John Roberts as Chief Justice.

An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
by Gary G. Sackett1

Introduction
Here's a test for lawyers who think they know what their profession is fundamentally about: Define the "practice of law." Is it what we lawyers do when we help clients or employers deal with legal issues? Is it what law school and studying for and passing a bar exam prepares us to do? Is it the application to the circumstances of another person of legal principles and judgment that require the knowledge and skill of a person trained in the law? More difficult yet, what is the unauthorized practice of law? Does that occur when a person who hasn't passed the Bar exam tries to do what we lawyers are licensed to do?

Reflections on Poverty, Bankruptcy, and Heresy
by Paul Toscano

Introduction
In January and February of 2005, the Salt Lake Tribune published a series on bankruptcy in which Utah was reported to have the highest bankruptcy-filing rate in the country. The articles were extensive and informative. I was, however, disturbed by them because, while they discussed bankruptcy, they said so little about poverty. I decided to do some research on:

* How poverty is measured;

* The actual number of Utah households living in functional poverty;

* How much credit card debt Utahns carry;

* How much credit card companies earn annually in Utah;

* How Utah bankruptcy discharges affect those credit card companies; and

* How some new Bankruptcy Code amendments may affect Utahns seeking debt relief.

Applying the Standards of Professionalism and Civility to the Practice of Criminal Law
by Sandi Johnson

Many attorneys criticize the Utah Standards of Professionalism and Civility, not because they are a bad idea, but because they are "unenforceable." Despite their external unenforceability, attorneys should support these Standards. If attorneys rely on external consequences to guide their behavior, they will always be at risk of compromising their professionalism and integrity as officers of the court. The purpose of the Standards should be to create higher expectations for ourselves and for each other as colleagues, regardless of the practical consequences. After all, it is better to aim for the stars and hit the moon. The Rules of Professional Conduct are the baseline, and most attorneys find those rules relatively easy to follow. This is a tumultuous time period when the judiciary and legal profession are under attack. As external validation and respect are waning, attorneys should exhibit pride in their own professionalism and integrity, and the Standards provide one means to reach that goal.

Utah's Newest Anti-Spam Law: The Child Protection Registry
by Gregory M. Saylin & Leanne N. Webster

The Utah legislature is again attempting to curb certain email advertising. Effective August 15, 2005, email marketers, arguably those throughout the country and around the world,1 must comply with the Child Protection Registry law, U.C.A. ¤ 13-39-101, et seq. (ÒCPRÓ). Unlike UtahÕs previous legislative effort to battle spam (the Unsolicited Commercial Email Act), the CPR is aimed only at emails to minors, solicited or not, that promote the sale of goods or services that minors cannot legally purchase. While many presume the scope of the act addresses only pornography, it actually is much broader, including solicitations for alcohol, tobacco, and gambling. Emails advertising such products and services must not be sent to the email addresses contained in the registry. Violators may face both civil and criminal penalties. If the new law can pass constitutional muster (a significant hurdle), the CPR is worthy of notice by email marketers everywhere.

Standard 3 - Baby Steps . . . Toward Civility
by Robert S. Clark

Insults, personal attacks, intimidation, verbal abuse. Too many, both inside and outside the legal profession, assume that such conduct has become so deeply rooted among lawyers that it can't be eradicated. No one seems to deny the erosion of civility among lawyers. To a degree, misbehavior by imperfect participants is inevitable in the rough and tumble of an adversarial process, but few would argue that incivility advances the fair administration of justice. I believe we must not stand idly by and allow corrosive behavior to thrive until it dominates our system of justice.

Life in the Law: Answering God's Interrogatories

Galen L. Fletcher and Jane H. Wise, editors

Reviewed by R. Lee Warthen

Every lawyer should read this book. This recent book of thoughts on being a Latter-day Saint lawyer is good meat for the souls of lawyers of any denomination.

You never know what is going on in some back room at BYU; what is being shared at some private little fireside or convocation that those of us outside the greater Provo area are not likely to notice. Now, many of the pearls of wisdom dropped at twenty-six such occasions have been gathered up by Galen LeGrande Fletcher and Jane H. Wise into this little volume entitled Life in the Law: Answering God's Interrogatories.

Notice of Election of Bar Commissioners

Third, Fourth & Fifth Divisions
Pursuant to the Rules of Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for two members from the Third Division, one member from the Fourth Division and one member from the Fifth Division, each to serve a three-year term. To be eligible for the office of Commissioner from a division, the nomineeÕs mailing address must be in that division as shown by the records of the Bar.

Notice of Direct Election of President

In response to the task force on Bar governance the Utah Supreme Court has amended the BarÕs election rules to permit all active Bar members in good standing to submit their names to the Bar Commission to be nominated to run for President-Elect in a popular election and to succeed to the office of President. The Bar Commission will interview all potential candidates and select two final candidates who will run on a ballot submitted to all active Bar members and voted upon by the active Bar membership. Final candidates may include sitting Bar Commissioners who have indicated interest.

Notice of Approved Amendments to Utah Court Rules

To view a list of amendments to Utah Court rules recently approved by the Supreme Court and Judicial Council go to http://www.utcourts.gov/ resources/rules/approved/, then click on the rule number to see the text of the amendments. All amendments are effective November 1, 2005 unless otherwise indicated.

Appointments

The Bar appoints or nominates for appointments to various state boards and commissions each year. The following is a listing of positions which will become vacant in the next twelve months. If you are interested in being considered for one or more of these positions, please send a letter of interest and resume to John C. Baldwin, Utah State Bar, 645 South 200 East, Salt Lake City UT 84111 or e-mail john.baldwin@utahbar.org.

2006 Spring Convention Awards

The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2006 Spring Convention. These awards honor publicly those whose professionalism, public service, and public dedication have significantly enhanced the administration of justice, the delivery of legal services, and the improvement of the profession. Award applications must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, January 16, 2006.

1. Dorathy Merrill Brothers Award - For the Advancement of Women in the Legal Profession.

2. Raymond S. Uno Award - For the Advancement of Minorities in the Legal Profession.

Ethics Advisory Opinion Committee Seeks Members

The Utah State Bar's Ethics Advisory Opinion Committee is seeking a volunteer member of the Utah State Bar to fill a vacancy on the Committee. The Committee responds to requests for opinions concerning ethics matters. The Committee is particularly interested in applicants who practice outside of Salt Lake County. Committee appointments are for a term of three years. Meetings are held at 4:00 p.m. on the second Tuesday of each month at the Utah Law & Justice Center, Salt Lake City, Utah. Members undertake individual research and writing assignments. Please send your resume to Craig Mariger, Chair of the Ethics Advisory Opinion Committee, Jones Waldo Holbrook & McDonough PC, 170 S. Main Street, Suite 1500, Salt Lake City, Utah 84101 no later than November 30, 2005.

Notice

The Judicial Council's Standing Committee on Court Interpreters requests applications for membership from criminal defense attorneys. The Court Interpreter Committee is charged with (a) researching, developing, and recommending policies and procedures for interpretation and translation; (b) certifying court interpreters who meet minimum qualifications; (c) issuing opinions to questions regarding the Code of Professional Responsibility; and (d) disciplining court interpreters. While not a requisite, bilingualism and experience in working with court interpreters are preferred abilities for members of this Committee. Please send a letter of interest and a brief resume to the following address by November 30, 2005:

Mary Boudreau, Program Manager
Public Access to the Courts
Administrative Office of the Courts
P.O. Box 140241
Salt Lake City, UT 84114-0241

Pro Bono Honor Roll

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.

Supplementation to Local Rules/ U.S. Bankruptcy Court/Utah

Pursuant to Standing Order #1: Effective for all cases filed and also for existing cases converted to Chapter 13 after July 2005, new requirements for Local Rules 2003-1; 2083-1; 5005-1 and 6070-1 are available at: www.utb.uscourts.gov.

New Interim Rules and Forms/ U.S. Bankruptcy Court/Utah

Pursuant to Standing Order # 2: Effective for all cases filed on or after the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, newly approved official forms and approved rules designed to implement the substantive and procedural changes mandated by the Act are available at: www.utb.uscourts.gov.

Discipline Corner

PUBLIC REPRIMAND
On July 28, 2005, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against John Sorge for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.5(a) and (b) (Fees), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Results of the Beta Test of the Utilization/Salary Survey - 2005
by J. Robyn Dotterer

At long last the data have been compiled on the first web-based utilization/salary survey for the Utah State Bar Paralegal Division with the assistance and cooperation of the Legal AssistantÕs Association of Utah (LAAU). A joint committee was formed to undertake the drafting of a utilization/salary survey that could be established on the Utah State Bar Paralegal Division's web page and could then be taken by paralegals or their supervising attorneys online.