Utah Bar Journal

Message from the Chair
by Danielle Price

I have a few membership and CLE updates to share and I have some information in follow up to Paralegal's Day, which was May 18th.

As many of you may already know, the Bar has added a new member benefit for attorneys which is a Lawyers Assistance Program that began in March of this year. The Paralegal Division is very pleased to announce that the Bar is also making this program available to members of the Paralegal Division. These services are offered through Blomquist Hale and will be available to Division members beginning September 1, 2006. Additional information about Blomquist Hale is available on their website at www.blomquisthale.com. The Paralegal Division will be mailing information on this program to all Division members at their home address in August.

Saviors
by Paul Eggers

Reviewed by Betsy Ross

I find myself waking up these days to a kind of hazy depression attributable to some extent to mid-life crisis, I suppose, but to a greater extent I am probably no different than many who harbor what seems to be a lingering dis-ease with the world around them. From the very local to the world-wide scene, I feel oppressed by leaders who are not "leaders," by the elevation of differences over commonalities, and by the pure, unadulterated hubris exhibited by those in power.

Discipline Corner

PUBLIC REPRIMAND
On April 10, 2006, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Justin Roberts for violation of Rules 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.5(b) (Fees), 1.15(a) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

PLEASE NOTE:

The Bar Journal has been requested to clarify that the Jonathan Pace whose disciplinary action was reported in the May/June edition is not lawyer John P. Pace of the Salt Lake Legal Defender Association.

Nominations for the Peter W. Billings, Sr. Outstanding Dispute Resolution Service Award

In memory of the great contributions of Peter W. Billings, Sr. to alternative dispute resolution in our state, the ADR Section of the Utah State Bar annually awards the Peter W. Billings, Sr. Outstanding Dispute Resolution Service Award to the person or organization that has done the most to promote alternative dispute resolution in the State of Utah. The award is not restricted to an attorney or judge. The ADR Section is currently seeking nominations for this award, which will be presented at the Bar's Annual Fall Forum.

Please submit nominations for this award by October 13, 2006 to Peter W. Billings, Jr., P. O. Box 510210, Salt Lake City, UT 84151.

2006 Fall Forum Awards

The Board of Bar Commissioners is seeking nominations for the 2006 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 Monday, September 18, 2006. The award categories include:

1. Distinguished Community Member Award
2. Pro Bono Lawyer of the Year
3. Professionalism Award

Pro Bono Honor Roll

Angela Adams
Stanley S. Adams
Heidi Alder
Fred Anderson
Selina Andrews
Lauren Barros
Erika Birch
John Black Jr.
Matthew Boley
James Brown
Charles Carlston
Mary Pat Cashman
Thomas Crowther
Shelly Coudreaut
Mary Cline
Clark Fetzer
Jonathan Grover
Brent Hall
George Hunt
Laura Hansen
April Hollingsworth
Kyle Hoskins
Bill P. Kandarusman
Anthony Kaye
Jay Kessler
Louise Knauer
D. David Lambert
Larry Larsen
Robert Lovell
Brandon Mark
Sean McBride
Chad McKay
Jack Molgard
Matt Moncur
Lawrence Peterson
Ken Reich
Boyd Rogers
Richard J. Rowley
Lauren Scholnick
Elizabeth Schulte
Steve Stewart
Scott Thorpe
Stewart Ralph
Frank Warner
Tracey Watson
John Zidow

Utah Legal Services and the Utah State Bar wish to thank these attorneys for either accepting a pro bono case or volunteering at clinic during the months of April and May. Call Brenda Teig at (801) 924-3376 to volunteer.

Mailing of Licensing Forms

The licensing forms for 2006-07 were mailed during the last week of May and the first week of June. Fees are due July 1, 2006; however, fees received or postmarked on or before August 1, 2006 will be processed without penalty.

Commission Highlights

During its regularly scheduled meeting of April 28, 2006, which was held in Provo, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.

Standard 15 - of Calendars, Courtesy, and Holiday Weekends
by Ken Black

"Lawyers shall endeavor to consult with other counsel so that depositions, hearings, and conferences are scheduled at mutually convenient times. Lawyers shall never request a scheduling change for tactical or unfair purpose. If a scheduling change becomes necessary, lawyers shall notify other counsel and the court immediately. If other counsel requires a scheduling change, lawyers shall cooperate in making any reasonable adjustments."

Parduhn Me: the Utah Supreme Court and the Insurable Interest Requirement
by Mark W. Dykes

Insurance is not supposed to be a vehicle for gambling or incentive to murder. The law thus forbids a party from taking out a life insurance policy on a total stranger, given the risk that the beneficiary might attempt prematurely to dispatch the life of the insured and reap the proceeds. One may thus take out a life insurance policy only on a life in which one has an "insurable interest," that being defined (as noted below) as an interest grounded in family relationships or business ties.

"A Relatively Simple Matter"1 - Navigating the Utah Discovery Rule
by Christopher M. Von Maack

Simply put, operation of the so-called "discovery rule" tolls a limitations period (e.g., statute of limitations, statute of repose, or lookback period) until a plaintiff discovers or reasonably should have discovered the facts forming the basis for his or her cause of action. The discovery rule serves to balance the competing interests of predictability, on one hand, with penalizing wrongdoing, on the other.2 However, before the discovery rule can operate, the plaintiff must trigger application of the discovery rule to his or her cause of action. This article aims to guide the plaintiff's cause of action through the potential pitfalls of the Utah discovery rule.

"Max 25" is Retiring - the End of an Era in Utah Law Enforcement
by Judge Donald J. Eyre

This year will mark a changing of the guard in Utah law enforcement history. Sergeant Paul V. Mangelson has retired after nearly 39 years of service to the Utah Highway Patrol and the citizens of the State of Utah. There are varied opinions about his performance as a law enforcement officer. But most people would have to agree that he has made a great impact upon the criminal justice system of the State of Utah and the development of criminal case law. I have had the privilege of associating with Sergeant Mangelson for the past 29 years: the first two years were as a criminal defense attorney, the next 16 years were as the Juab County Attorney, and the past eleven years were as a District Judge.

Fee Arbitration
by G. Steven Sullivan

One of the big challenges of private practice is an unhappy client. One of the more emotional issues is a controversy over the lawyer's fee.

A fee dispute generates a unique set of issues for both the lawyer and the client. For the average legal consumer, the attorney fee is one of the most important factors in the legal relationship.

Constitutional Adjudication1
by Benjamin Toronto Davis

Introduction
In the past several issues of the Utah Bar Journal four articles were published dealing with judicial interpretation of our American Constitution. These articles constitute a representative sampling from some of the "in vogue" approaches to constitutional adjudication. The approaches variously claim to originate, or apparently do originate, from what would normally be considered both liberal and conservative perspectives. One of them represents perhaps the currently predominant "originalist" approach to Constitutional adjudication. However, assuming that what we want in America is a limited and democratic constitutional republic - a representative government with ultimate sovereignty residing in the people themselves, and a government limited both by the people's specific delegation of power to that government and by an acknowledgment of each individual's Creator granted, unalienable, and equal rights; in short, an American constitutionalism grounded upon the principles of the Declaration of Independence - none of these approaches to constitutional adjudication fits the bill. None of these or other similar approaches is up to the task of securing our liberty under the rule of law. In fact, they contribute to ensuring that what Abraham Lincoln described as "government of the people, by the people, [and] for the people" will indeed "perish" in America.

Separation of Powers
by Judge Carolyn B. McHugh

EDITOR'S NOTE: The following text is taken from the Law Day Speech given by Judge McHugh on May 1, 2006.

When I was invited to speak to you about Separation of Powers, I enthusiastically accepted because of my conviction that this doctrine is the cornerstone of the United States' Constitution. Indeed, I believe that the understanding of and respect for the doctrine of separation of powers is what has made our system of government successful for the past 200 years and what will see it through the next centuries.

Separating Powers: the Judiciary's Constitutional Claim on Procedural and Evidentiary Matters
by R. Chet Loftis

Article VIII, Section 4, of the Utah Constitution was amended in 1984 to explicitly state:

The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature...

Violence Against the Utah Legal Profession - a Statewide Survey
by Stephen D. Kelson

I. Introduction
When a sensational act of violence against the legal profession occurs somewhere in the United States, we see repeated updates on television, websites, and in newspapers and magazines for the next week or two. Legal commentators quickly appear and voice their opinions that the latest incident is just another example of increasing violence against the legal profession. However, after a week or two, the event is generally forgotten as media attention is turned to the next new big story. Such was the situation in early 2005 with the media coverage of the slaying of U.S. Judge Joan Lefkow's husband and mother in Chicago, Illinois, on February 28, 2005, and the courtroom slayings of Judge Rowland Barnes, a court reporter and deputy in Atlanta, Georgia, on March 11, 2005. Such acts of violence are soon forgotten and the legal profession continues with its daily activities. Many members of the Utah legal profession assume that similar acts of violence are too remote to occur in Utah or wonÕt happen to them. Think again.

Dear Editor:

I read the recent article entitled, "Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah" in the last issue of the Utah Bar Journal with interest. While I join with Mr. Starr in urging Utah appellate courts to place more reasonable restrictions on law enforcement officers in traffic stop circumstances, I cannot agree with Mr. Starr's premise that present law can be interpreted to allow Utah law enforcement officers to conduct a more expansive investigation with respect to passengers than can be conducted with the driver on the basis that the passenger is not justifiably seized. Utah law holds that a traffic officer exceeds the permissible scope of a traffic stop when he unlawfully seizes a passenger by taking her name and birth date, while expecting her to await the completion of a warrants check. To date, Utah cases continue to reason that if the officer is restrained from exceeding the scope of investigation permitted incident to a traffic stop with respect to a driver, then the officer is even further restrained with respect to the innocent passenger - not less as Mr. Starr suggests. Although there is room to refine Utah's passenger-warrants cases in light of recent U.S. Supreme Court opinions holding that questioning is not a seizure, it is unlikely that Utah appellate courts will abandon their previous acquiescence in defendants' arguments claiming that the passenger is seized concurrently with the driver by the initial stop of the car. It is difficult for me to imagine a traffic officer permitting passengers to run about or flee while a citation is being issued. Nevertheless, I applaud Mr. Starr's efforts in raising several of the many thorny issues involved in the law regarding traffic stops.

B. Kent Morgan

Dear Editor:

In May/June volume of the Utah Bar Journal, Jessica Peterson published her analysis of the Utah Supreme Court's opinion in Chen v. Stewart, 2004 UT 82, 100 P.3d 1177. While Ms. Peterson acknowledged her affiliation during law school with the law firm that lost the appeal, she nonetheless presented her analysis as objective. We also served as counsel in Chen v. Stewart and have a rather different view of the Court's opinion. However, instead of publishing our own lengthy analysis exposing each of Ms. Peterson's mistakes, we simply urge those interested in what the case stands for to read the opinion for themselves. In our view, Chen v. Stewart does not represent the furtive, radical shift in Utah law that Ms. Peterson suggests.

Todd M. Shaughnessy
James D. Gardner

Dear Editor:

I enjoyed Bryan Pattison's article, "Henriod, Dissenting" in the May/June 2006 issue, on the flamboyant and humorous dissents by Justice F. Henri Henriod.

When I clerked for Justice Henriod part-time as a law student in 1974-75, I found him always decent, courteous, and sensitive to the rights of litigants and their attorneys. He believed that legal precepts often could be conveyed best through a unique phrase.

My own favorite Henriodism was not a dissent but a concurrence. In a divorce appeal, he joined the majority opinion which disallowed testimony from a mother who attempted to show that a child born during the marriage was not the legitimate offspring of the husband. The husband acknowledged paternity but the wife disputed it. The majority was critical of the attempt by a parent to subvert the interests and welfare of the child. Justice Henriod added: "[I]n cases like this the children are not the bastards, but you know who." 518 P.2d at 690.

Roger Bullock

Vol. 19 No. 4 July/Aug 2006

PDF Version: http://www.utahbar.org/barjournal/pdf/2006_july_aug.pdf

Cover Art Information: COVER: Pine Creek Canyon, Zions National Park, by first time contributor Steven Black, Highland, Utah.

* Violence Against the Utah Legal Profession - a Statewide Survey
* Separating Powers: the Judiciary's Constitutional Claim on Procedural and Evidentiary Matters
* Separation of Powers
* Constitutional Adjudication
* Fee Arbitration
* "Max 25" is Retiring - the End of an Era in Utah Law Enforcement
* "A Relatively Simple Matter" - Navigating the Utah Discovery Rule
* Utah Law Developments: Parduhn Me: the Utah Supreme Court and the Insurable Interest Requirement
* Standards of Professionalism & Civility: Standard 15 - of Calendars, Courtesy, and Holiday Weekends
* Book Review: "Saviors" by Paul Eggers
* Paralegal Division: Message from the Chair