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.
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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.
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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.
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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.
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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.
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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."
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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.
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"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.
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"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.
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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.
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by Benjamin Toronto Davis
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.
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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.
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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...
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Violence Against the Utah Legal Profession - a Statewide Survey
by Stephen D. Kelson
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.
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