Utah Bar Journal

The Young Lawyer Division in 2007

by David R. Hall

The Young Lawyers Division of the Utah State Bar (the “YLD”) is looking forward to another outstanding year in 2007. With a leadership body made up of five officers, eleven committees, and six liaisons, the YLD continues to make significant contributions to the Bar and the public. The following is a brief overview of the YLD as well as a look at what is planned for the coming year.

Discipline Corner

ADMONITION
On November 27, 2006, 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 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 3.2 (Expediting Litigation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Encourage Your Paralegals to Join the Paralegal Division

Lawyers are encouraged to have their paralegals review the criteria for membership in the Paralegal Division of the Bar and to support and encourage them to join. Division members are qualified by education, experience or training that can assist members of the Bar in improving the quality and efficiency of the delivery of legal services and the practice of law. In addition, your paralegal’s membership in the division assists the Bar in the protection of the public from unqualified persons engaging in the unauthorized practice of law, and will increase the availability of low-cost legal services through the increased utilization of paralegals.

2007 Spring Convention Awards

The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2007 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 Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Friday, January 12, 2007.

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.

Notice of Petition for Reinstatement to the Utah State Bar by Sheryl L. Gardner Bunker (a.k.a. Sheryl Rose)

Pursuant to Rule 25(d), Rules of Lawyer Discipline and Disability, the Utah State Bar’s Office of Professional Conduct hereby publishes notice of a Verified Petition for Reinstatement (“Petition”) filed by Sheryl L. Gardner Bunker in In re Bunker, Third District Court, Civil No. 040916336. Any individuals wishing to oppose or concur with the Petition are requested to do so within thirty days of the date of this publication by filing notice with the District Court.

2007 Annual Convention Awards

The Board of Bar Commissioners is seeking nominations for the 2007 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 Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Friday, April 21, 2007. The award categories include:

1. Judge of the Year
2. Distinguished Lawyer of the Year
3. Distinguished Section/Committee of the year

Notice of Election of Bar Commissioners – Third Division

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, 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.
Applicants must be nominated by a written petition of ten or more members of the Bar in good standing and residing in their respective Division. Nominating petitions may be obtained from the Bar office on or after January 1, and completed petitions must be received no later than February 10. Ballots will be mailed on or about April 1 with balloting to be completed and ballots received by the Bar office by 5:00 p.m. May 1. Ballots will be counted on May 2.
In order to reduce out-of-pocket costs and encourage candidates, the Bar will provide the following services at no cost.

Notice of Election of Bar Commissioners – Second Division

Pursuant to the Rules of Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for one member from the Second Division 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.
Applicants must be nominated by a written petition of ten or more members of the Bar in good standing and residing in their respective Division. Nominating petitions may be obtained from the Bar office on or after January 1, and completed petitions must be received no later than February 10. Ballots will be mailed on or about April 1 with balloting to be completed and ballots received by the Bar office by 5:00 p.m. May 1. Ballots will be counted on May 2.
In order to reduce out-of-pocket costs and encourage candidates, the Bar will provide the following services at no cost.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during their regularly scheduled September 21, 2006 Commission meeting held at Brigham Young University, J. Reuben Clark Law School.

Judge Disqualification Rules in Action

by Judge Robert K. Hilder

In the Third District, the associate presiding judge acts as reviewing judge for most Rule 63(b), Utah Rules of Civil Procedure, and Rule 29, Utah Rules of Criminal Procedure, motions to disqualify the assigned judge.1 After more than one year of direct exposure to the rules in action, I am persuaded that ignorance of the rules’ substance and procedural requirements is the norm, both for judges and lawyers. The Third District has thirty-two and one-half judicial officers (we presently share one of our five commissioners with the Third District Juvenile Court). I have now reviewed more than thirty motions to disqualify (all but two in civil cases), involving nineteen of those officers.

Standard 19

by Donald J. Winder and Lance F. Sorenson

“In responding to document requests and interrogatories, lawyers shall not interpret them in an artificially restrictive manner so as to avoid disclosure of relevant and non-protected documents or information, nor shall they produce documents in a manner designed to obscure their source, create confusion, or hide the existence of particular documents.”

The Paperless Deposition

by Bradley Parker, Jim McConkie, Bradley Sidle and Lynn Packer

Historically, depositions have been a bonanza for billable hours, airlines and certified court reporters. An out-of-state deposition often meant hours of travel to gather witnesses, attorneys and sometimes even parties in a single room to scour piles of documents, often at a distant locale. During the past few years, technology has begun to change this time-honored tradition.

Electronic Filing in Federal Court: Where are We Now?1

by H. Craig Hall, Jr.

“Attorneys in this district are charged with learning and becoming proficient with the court’s new system.” 2 – Judge Dale Kimball

Just less than ten years ago, an article appeared in the Utah Bar Journal entitled: “Is Electronic Court Filing in Your Future?”3

My, how far we’ve come.

In this relatively short time span, electronic filing has gone from a remote possibility, to “mandatory” (beginning May 1, 2006) for all attorneys practicing in the United States District Court for the District of Utah.4

A Precious Birthright or Federal Porridge: Which Should Utah Lawyers Choose?

by Paul Wake

In recent months, several attorneys have written interesting Utah Bar Journal articles exploring constitutional interpretation. Unfortunately, these articles have tended to assume that “the Constitution” means “the U.S. Constitution.” For years, the Utah Supreme Court has encouraged attorneys to remember the Utah Constitution. In State v. Earl, 716 P.2d 802 (Utah 1986), the Court suggested that Utah constitutional law is a precious birthright that we have sold for a bowl of federal porridge. In November of 1989, Justice Durham – now Chief Justice – took to the pages of this journal with an article entitled Employing the Utah Constitution in Utah Courts, and urged attorneys to help the Court develop a jurisprudence of state constitutional law. Yet in the past decade Utah’s appellate courts rejected dozens of different attempts to advance constitutional arguments in appellate briefs, because the analyses were too slipshod to be considered seriously. The same problem plays out in trial courts.

Going to Court in Babylon

by Major Darrin K. Johns

When I passed the bar exam in July 2003 and became a member of the Utah Bar, I never imagined that I would be presenting criminal cases in an Iraqi court. Although I was already an Air Force officer with over eight years of military experience, I thought at most I might have to deploy to Iraq to work in a deployed legal office taking care of the needs of our deployed troops. I was wrong. Last October I got the call. I was told I was needed in Iraq to present cases in front of Iraqi judges against suspected terrorists and insurgents. I was told to be there only two days after I was notified!

Attorney Fee Discrimination for Solo Practitioners?

by Michael A. Jensen

This article stems from a recent case where the trial court excluded billing rates from large law firms and instead relied exclusively on two solo practitioner rates simply because “large law firms, and especially national law firms, have large overhead/ expenses.” Such logic, if left to stand, would allow large law firms to charge higher hourly rates than solo practitioners for the same legal services. In effect, trial courts could impose discriminatory billing rates against solo practitioners.

Keep Dreaming

by Learned Ham

The scariest part of the Bar Journal is usually the Discipline Corner. There but for the grace of the Office of Professional Conduct go I. But this issue is different. There’s a letter to the editor asking the best way to wake a dozing judge. It’s one of the most frightening things I’ve ever seen in print (next to last year’s State of the Union Address and that picture in my high school yearbook). The terrifying thing about it is the idea that someone would seriously consider waking a sleeping judge. Letting a 17-year-old pack (or draft) my parachute – yes; climbing behind the wheel of a ’72 Vega and dropping in a Barry Manilow eight-track – in a heartbeat; but “Ahem, rise and shine, your honor…” Sleeping dogs, sleeping giants, sleeping babies, sleeping sickness, Sleeping Beauty, sleeping judges – all the same thing. Don’t go looking for trouble.

Going Dark – An Alternative to Sarbanes-Oxley Compliance

by Brad Jacobsen and Chris Scharman

A client of ours recently learned first hand the significant costs that implementation of the Sarbanes-Oxley Act of 2002 (“SOX”) can have on a small business issuer. In connection with the review of the company’s quarterly report, its chief financial officer unfortunately made an off-hand remark regarding the company’s internal controls and procedures. As a result of such comment, the company’s auditors demanded that the audit committee hire independent counsel and conduct a full review of the company’s financial statements – with a materiality threshold (items requiring documented back-up to be provided to the auditors) of only $2,000. Over the next six weeks, the company incurred in excess of $300,000 in legal and auditing fees (not to mention lost opportunity costs and lost management time), filed its 10-QSB late and was threatened with potential delisting by Nasdaq. The resulting review by the auditors and the audit committee’s independent counsel found no improper or illegal acts by the company and only required that the company make adjustments to its accruals of a net aggregate amount of less than $1,000. The significant cost incurred by the company for this review nullified its entire third quarter profit.

Blind Guides: The Difficult Task of Comprehending the Law

by D. David Lambert

One point emphasized during the first year of law school is that the law is difficult to comprehend. Although it was first published three quarters of a century ago, today’s reading lists for entering students almost invariably continue to include Karl Llewellyn’s book, The Bramble Bush, to help drive home that point. The poem facing the title page contains the essence of the book’s message. For many first-year students the only thing in the book that they are able to comprehend is the poem:

There was a man in our town
and he was wondrous wise:
He jumped into a bramble bush
and scratched out both his eyes –
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.

A Mid-Term Report

by Gus Chin

The beginning of the new year marks the midpoint of the 2006-2007 Bar Commission year. I am pleased to report that the Bar is financially sound. The purpose of this mid-term report is to make you aware of some of the issues addressed to date.

Dear Editor,

I would like suggestions on how to wake the snoozing judge. I’d like to think I’m not the only boring attorney in Utah. I understand why judges snooze. But each case is important to the litigant and it’s frustrating to make an important point I know will not be heard. I’d be interested to hear from attorneys and from judges. I’ve seen the problem in more than one county, but since my practice is pretty geographically limited, I’d rather not be identified.

Anonymous

PDF: http://www.utahbar.org/barjournal/pdf/2007_jan_feb.pdf

Cover Art Information: COVER: Winter Cattails, by Bret B. Hicken, Spanish Fork, Utah.

* Letter to the Editor
* President's Message: A Mid-Term Report
* Blind Guides: The Difficult Task of Comprehending the Law
* Going Dark - An Alternative to Sarbanes-Oxley Compliance
* Keep Dreaming
* Attorney Fee Discrimination for Solo Practitioners?
* Going to Court in Babylon
* A Precious Birthright or Federal Porridge: Which Should Utah Lawyers Choose?
* Electronic Filing in Federal Court: Where Are We Now?
* Utah Law Developments: The Paperless Deposition
* Standards of Professionalism and Civility: Standard 19
* Views from the Bench: Judge Disqualification Rules in Action
* The Young Lawyer: The Young Lawyer Division in 2007
* Paralegal Division: Nonlawyers Help Keep Lawyers out of the "Discipline Corner"

What Is Paralegal Work? – The Utah Supreme Court Offers a Three-Pronged Test

by Peggi Lowden

The Utah Supreme Court’s definition of a paralegal does not simply define a category of personnel within the legal profession. It is a useful tool to determine effective delegation of legal tasks to non lawyer personnel. The specific section of the definition that provides this delegation tool states, “[paralegal work] involves the performance . . . of specifically delegated substantive legal work, which work for the most part, requires a sufficient knowledge of legal concepts, that absent the [paralegal] the attorney would perform the task.”1

Discipline Corner

ADMONITION

On January 18, 2007, 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 1.5(b) (Fees), 1.15(c) (Safekeeping Property), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

2007 “Spring Convention in St. George” Award Winners

Irene Warr
Dorathy Merrill Brothers Award
For the Advancement of Women in the Legal Profession

Irene Warr, a native of Erda, Tooele County, Utah, began her law-related career as a legal secretary for the Utah State Tax Commission Inheritance Tax Division on March 1, 1949, after graduating from Tooele High School. She enrolled in Westminster College in 1950, when she also began working in the law office of the late Dan B. Shields. She graduated with a Bachelor of Arts Degree in 1954, cum laude in biology, chemistry and pre-med., and then entered the University of Utah College of Law, receiving her Juris Doctor in 1957. Since 1957 she has been engaged in private practice in Salt Lake City.

2006 Utah Bar Journal Cover of the Year

The 2006 Utah Bar Journal cover of the year comes from the special Professionalism and Civility issue that was published in Nov/Dec of last year. The cover featured an image of Gregory Peck as Atticus Finch in a scene from the film To Kill a Mockingbird, based on the landmark novel by Harper Lee. An emblem of legal professionalism and courage, Atticus Finch was an apt image to represent the message of this special Bar Journal issue.

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 06-05

Issued December 30, 2006
Issue: Do the Utah Rules of Professional Conduct1 preclude a lawyer from participating in an ad hoc legal advisory group to a private, nonprofit, public interest legal organization, if the persons served by the legal services organization have interests adverse to the interests of a client of the lawyer or the lawyer’s law firm?

Notice of Utah Bar Foundation Open Board of Director Positions and Notice of Annual Meeting

The Utah Bar Foundation is a non profit organization that acts as the collection point for IOLTA (Interest on Lawyers Trust Accounts) funds and distributes those funds for law related education and legal services for the poor and disabled.

The Utah Bar Foundation is governed by a seven-member Board of Directors, all of whom are active members of the Utah State Bar. The Utah Bar Foundation is a separate organization from the Utah State Bar.

Distinguished Paralegal of the Year Nominations Now Being Accepted

The Paralegal Division of the Utah State Bar and Legal Assistants Association of Utah are seeking nominations for “Distinguished Paralegal of the Year.” Nomination forms and additional information are available online at http://www.utahbar.org/sections/paralegals or you may contact Suzanne Potts at spotts@clarksondraper.com The deadline for nominations is Monday, April 16, 2007. The award will be presented at the Paralegal’s Day Luncheon on Thursday, May 17, 2007.

Pro Bono Honor Roll

Michael S. Anderson
Nick Angelides
Keith Backman
James Baker
Lauren Barros
Emilie Bean
David Berceau
David Blaisdell
James M. Brady
David Broadbent
Brian Cannell
Shelly Coudreaut
Roberto Culas
Kenyon Dove
Christopher Edwards
Sam Gardiner
Chad Gladstone
Frederick Green
Brent Hall
David Hamilton
Joseph Hatch
Bill Heder
Rori Hendrix
Kyle Hoskins
Jeffrey Howe
Nicholas Huntsman
Daniel Irvin
Troy Jensen
Nathan Jeppsen
Asa Kelley
Thomas King
H. Ralph Klemm
Louise Knauer
Stephen Knowlton
Sharee Laidlaw
Larry Larsen
Chris Laurence
Jose Loayza
Craig McArthur
Paul MacArthur
Kenneth Margetts
Suzanne Marelius
Sally McMinimee
Christina Micken
Russell Minas
Walter Merrill
Stewart Ralphs
Michael Shaw
Jeremy Sink
Jane Semmel
Carrie Turner
James Mitch Vilos
Frank Warner
Tracey Watson
Carolyn Zeuthen
Michael Zundel

Utah Legal Services and the Utah State Bar wish to thank these attorneys for their donation of time and skills during the months of October, November, December and January. Call Brenda Teig at (801) 924-3376 to volunteer.

2007 Annual Convention Awards

The Board of Bar Commissioners is seeking nominations for the 2007 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 Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Friday, April 21, 2007. The award categories include:

Judge of the Year
Distinguished Lawyer of the Year
Distinguished Section/Committee of the Year

Notice of Legislative Rebate

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

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during their regularly scheduled January 26, 2007 Commission meeting held at the Law & Justice Center.

1. Gus Chin reported on the Constitutional Law class for legislators and the breakfast held for lawyer-legislators and legislative leadership.

Standard #10

by Nate Alder

“Lawyers shall make good faith efforts to resolve by stipulation undisputed relevant matters, particularly when it is obvious such matters can be proven, unless there is a sound advocacy basis for not doing so.”

This Standard is one of the most straightforward of the twenty Standards of Professionalism and Civility adopted October 16, 2003. Simply put, the Utah Supreme Court considers it unprofessional and uncivil for counsel to not make good faith efforts to resolve “undisputed relevant matters,” especially those that can obviously be proven, and counsel may only contest such matters upon a “sound advocacy basis.” Otherwise, the clear expectation is that counsel will work together to resolve the issues that should be resolved, and reserve for a contest only those that are truly worth contesting. It is burdensome on courts, litigants, and counsel when we continue to squabble over such “undisputed relevant matters.” And in such instances, the person who resists takes on a burden of showing a “sound advocacy basis.”

Sundance 2007
by Betsy Ross

Each year I am reminded of how fortunate we are to have the Sundance Film Festival right here in our midst. And I’m not talking about star-gazing. I’m talking about the chance we have to be educated with a minimum of cost, and a modicum of hassle. Many of the films show in Salt Lake City, where one can escape the frenzy of Park City, and just settle in to a cozy theater (showings at the Tower, the Broadway, and Rose Wagner theaters) and watch a film. But not just any film. These are films that can change your heart, your mind, your orientation towards life. This year was no different.

Practicing to Practice: Scholastic Debate as Law-Related Education

by Chad R. Derum

Before he argued the petitioner’s side in the Guantanamo detention case Hamdan v. Rumsfeld before the United States Supreme Court last year, Georgetown Law Center professor Neal Katyal first tested his arguments in more than a dozen moot court sessions.1 It should come as no surprise that, for his first moot court session, Katyal invited the highly-regarded Harvard Law School professor Lawrence Tribe to bombard him with questions. Along with Tribe, however, Katyal also invited Ken Strange, the coach of Katyal’s college debate team. Although Strange is not a lawyer, this second invitation should be no more surprising than the first. Katyal had been a champion debater at Dartmouth College in the early 1990’s and Strange had been Katyal’s greatest teacher in the art of argument and persuasion – the very skills Katyal would need to make an effective argument before the Court. It is also unlikely that Strange’s invitation surprised Tribe, who had himself been a national champion debater at Harvard in the 1960s before beginning his own legal career.

The Justice Gap: The Unmet Legal Needs of Low-Income Utahns

by Utah Legal Services and “and Justice for all” under the guidance of D. Michael Dale

“Equal justice is not just a caption on the façade of the Supreme Court building. It is perhaps the most inspiring ideal of our society....It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

– Justice Lewis Powell, Jr., Former Associate Justice,
US Supreme Court

The Rapid Evolution of Climate Change Law

by Gary Bryner

The scientific debate over the causes and consequences of global warming likely will continue for years to come, as scientists continue to explore a host of questions about how climate change affects different regions of the world, how current trends compare with historical patterns, and whether the steady increase in carbon dioxide emissions will translate into gradual warming or could, with the help of feedback mechanisms, produce cataclysmic changes. In contrast, the debate over whether to take some kind of action to begin reducing the threat of disruptive climate change is rapidly shifting from whether there will be a national climate change regulatory policy and associated energy policies to when those policies will be put in place and what form they will take. While there is still much uncertainty in climate change law and policy, the trajectory is clearly toward regulating greenhouse gas (“GHG”) emissions.

When Lawyers Become Pre-law Advisors

by Eileen Crane

Many practicing attorneys and judges never talked to a pre-law advisor when they were preparing to apply to law school. Often they did not consider themselves pre-law students while they were undergraduate students. Others did not think they needed to speak to someone about the application process, so they collected test materials from various sources and applications directly from the law school. They believed that they successfully completed the process, gauged by the fact that they were accepted and attended law school. Some attorneys have never heard of a pre-law advisor and wonder what use such a person might be.

Net Operating Losses: Preserving What You Never Wanted in the First Place

by Scott R. Carpenter

One of the ironies of the modern business world is the fact that a company’s biggest asset may not be its client list or its intellectual property, but its tax losses. Those losses can be carried forward for up to twenty years and can be offset against the company’s future taxable income and tax liabilities, significantly improving its future cash position. For a company with a $100 million net operating loss, that right of offset could translate into potential future tax savings of $40 million, assuming a 40% combined federal and state tax rate.

Veni, Vidi, Vici: The Brave New World of E-Discovery

by Blake Miller and Mary Mark

Although attorneys have become converts to the use of technology in their practices, many still eschew electronic discovery in favor of paper. With more than 98 percent of information created and stored electronically it is difficult to justify the continued use of traditional paper production. The recent amendments to the Federal Rules of Civil Procedure, effective December 1, 2006, now make it impossible to avoid e-discovery issues. It is crucial attorneys understand electronic discovery, not only to satisfy their professional obligations but also to avoid severe judicial sanctions.