Utah Bar Journal

PDF Version: http://www.utahbar.org/barjournal/pdf/2007_july_aug.pdf

COVER: Cover Art Information: Summer Flowers on Mount Timpanogos, by Nathan Lyon, Weber County Attorney's Office

* President's Message: A Few Parting Thoughts
* Advance Health Care Planning in Utah
* Utah Law Developments: Noteworthy Laws Passed During 2007 Legislative Session
* When Does a Skier Become a Tresspasser?
* Unsworn Declarations in Lieu of Affidavits: Increasing Efficiency of Practice Under the Utah Rules of Criminal and Civil Procedure and the Utah Rules of Evidence
* Synopsis of Recent Criminal Cases Law Pertaining to Fourth Amendment Issues and Incredible Evidence
* Juvenile Defense in Utah
* Arbitration - In Trouble Again?
* Book Review: Thunder Over Zion: The Life of Chief Judge Willis W. Ritter by Parker Nielson and Patricia Cowley
* Utah Bar Foundation: The Utah Supreme Court IOLTA Program Announces 2007-2008 Grant Awards
* Standard #5: Proceed With Caution in Seeking Sanctions
* State Bar News
* The Paralegal Division Supports Access to Justice and Recognizes its Distinguised Paralegal of the Year

A Few Parting Thoughts
by Gus Chin

Dear Bar Members:

At the May Bar admission ceremony, Senior United States District Judge Bruce S. Jenkins, in his remarks to the new admittees, mentioned how times have changed. He had them stand, look towards their family and friends, and reminded them that their accomplishments, including admission to the practice, were not achieved alone. He also said that ends and means must harmonize and challenged the new admittees to use their skills so that the rule of law continues in all of its revolutionary majesty.

Active Emeritus Lawyers
The Board of Bar Commissioners congratulates the eighty lawyers who, according to our records, enjoy the distinction of 50 years or more as an active member of the Utah State Bar. With apologies for any inadvertent omissions, the lawyers and their dates of admission to the Bar are as follows:

Advance Health Care Planning in Utah
by Maureen Henry
The Utah State Legislature updated and transformed advance health care directives in Utah during the 2007 legislative session. Effective January 1, 2008, under Senate Bill 75 (second substitute), the Advance Health Care Directive Act will replace the Personal Choice and Living Will Act1 as the law governing advance health care planning in Utah. The new law was developed through collaboration among dozens of organizations and individuals with an interest in aging and health care planning.

Noteworthy Laws Passed During the 2007 Legislative Session
by Neal C. Geddes
The purpose of this article is to highlight some of the noteworthy laws passed during the recent legislative session. As members of the Bar, it is important to be aware of modifications to existing laws, as well as provisions that are altogether new. Please note that this article does not provide a detailed analysis of the bills passed. Accordingly, attorneys are encouraged to initiate a more detailed review of these laws on their own.

When Does a Skier Become a Trespasser?
by Gordon Strachan, Adam Strachan, and Kevin Simon
Many western states, including Utah, encourage the public’s recreational use of open space by having Limitation of Landowner Liability (“LLL”) statutes.1 If a recreational user is injured, these statutes limit the liability of landowners by absolving the landowner of any duty to make the land safe, or even to warn of dangerous conditions. These statutes apply to a very broad range of recreational activities, including skiing, hunting, fishing, boating, river running and mountain biking. If, however, a landowner charges for recreational use of the land – as ski resorts do by selling lift tickets for skiing, snowboarding or for lift-served mountain bike access – the recreationist is considered a business invitee, and the LLL statutes do not apply. Instead, the general rules of negligence control. The question, then, is whether recreation providers who charge for their services have any protection under negligence law similar to that afforded by the LLL statutes. The answer is “yes” if recreationists become trespassers by exceeding the scope of their business invitations. In such situations, the recreation provider’s only duty is to refrain from willful or wanton conduct.

Unsworn Declarations in Lieu of Affidavits: Increasing Efficiency of Practice Under the Utah Rules of Criminal and Civil Procedure and the Utah Rules of Evidence
by John H. Bogart and Scott D. McCoy
On April 30, 2007, Utah Code Annotated § 46-5-101, Self-authentication of documents, came into effect. Section 46-5-101 states:

(1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence, require or permit a written declaration upon oath, an individual may, with like force and effect, provide an unsworn written declaration, subscribed and dated under penalty of this section, in substantially the following form:

Synopsis of Recent Criminal Case Law Pertaining to Fourth Amendment Issues and Incredible Evidence
by Patrick Tan
One of the more common motions in criminal defense practice is the motion to suppress based on a constitutional violation of a defendant’s Fourth Amendment rights. In 2006 and early 2007, appellate courts ruled favorably for the defense on certain subcategories of Fourth Amendment rights, including searches of residences, the scope of traffic stops for passengers, and detentions. Brief summaries of those cases follow. In addition, this article touches on a redefinition of the standard for bindovers of preliminary hearings.

Juvenile Defense in Utah
by Paul Wake

Juvenile defense in Utah is largely handled pro se or by public defenders, since the stakes are usually too small to justify hiring a defense attorney. Still, attorneys should be ready for the call to defend a wayward youth. This article aims to help attorneys be prepared. Note that juvenile court deals both with delinquency cases and with child welfare cases. This article deals solely with delinquency.

Arbitration – In Trouble Again?
by Kent Scott

Arbitration, long a preferred method for resolving commercial disputes, is in trouble – again! I emphasize “again” because, two decades ago, arbitration experienced a great deal of criticism from the legal profession.

Thunder Over Zion: The Life of Chief Judge Willis W. Ritter
by Parker Nielson and Patricia Cowley
Reviewed by Todd Zagorec

A friend gave me a copy of Thunder Over Zion: The Life of Chief Judge Willis W. Ritter by Parker Nielson and Patricia Cowley. I knew almost nothing about Judge Ritter, and only an odd memory from high school kept the book from joining the dusty stack I really intend to read someday, but didn’t actually pick out for myself. I remembered Willis Ritter as the crotchety old judge who declared the Salt Lake City parking ordinance unconstitutional and ordered Jake Garn to stop writing parking tickets. I like eccentrics, and that was enough to get me to open the book. I was surprised. There are plenty of sidebars about the quirky, grouchy judge, but there is also real drama in the flawed brilliance that made Ritter’s life a Greek tragedy set against the law, politics, and personalities of Utah in the 20th century.

The Utah Supreme Court IOLTA Program Announces 2007-2008 Grant Awards
The Utah Supreme Court IOLTA (Interest On Lawyers Trust Accounts) Program is administered by the Utah Bar Foundation, a private non profit 501(c)(3) organization. While there is a close working relationship with the Utah State Bar, the Utah Bar Foundation is a completely separate entity. No funds from the Utah Bar Foundation go to support the Utah State Bar.

The Paralegal Division Supports Access to Justice and Recognizes its Distinguished Paralegal of the Year
by Kathryn K. Shelton, Chair

The Paralegal Division’s mission statement as adopted by the Board of Directors is that “The Paralegal Division of the Utah State Bar shall serve the legal profession by promoting and advancing professional competence and excellence throughout the legal profession.” The Division’s objectives and long-range plan goals include, among other items, the following: 1) to assist the Utah State Bar with its mission to serve the public and the legal profession by promoting justice, professional excellence, civility, ethics, respect for and understanding of the Law; and 2) to assist the Utah State Bar in increasing access to lower cost, affordable legal services and, at the same time, protect the public from harm from unqualified persons seeking to provide legal assistance to unrepresented persons.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during their regularly scheduled April 27, 2007 Commission meeting held in Vernal, Utah.

1. The Commission awarded Judge of the Year to Judges Gregory K. Orme and Sandra N. Peuler. Oscar W. McConkie, Jr. was selected as Lawyer of the Year. Committee of the Year was awarded to the Bar Journal Committee and the Paralegal Division was selected as Section of the Year.

Standard #5: Proceed With Caution in Seeking Sanctions
by Billy Walker

“Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.”

Some may wonder why the Office of Professional Conduct would comment on the Standards of Professionalism and Civility adopted by the Utah Supreme Court on October 16, 2003 since these Standards are not the Rules of Professional Conduct. Well, it is true that unlike the mandatory nature of the Rules of Professional Conduct, the Standards are intended to be aspirational. And, it is true that the Office of Professional Conduct’s primary investigative focus is the violation of Rules of Professional Conduct as a basis for possible discipline against an attorney. However, conduct by an attorney that does not comply with the Standards may only be one step removed from a violation of the Rules of Professional Conduct.

Notice of Petition for Reinstatement to the Utah State Bar by J. Keith Henderson

Pursuant to Rule 14-525(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 J. Keith Henderson in In re Henderson, Third District Court, Civil No. 040903585. 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.

Retention Election Results
Nate Alder ran unopposed for the position of President-Elect of the Utah State Bar. Bar bylaws require that, in the event a candidate for President-Elect is unopposed, a retention election must be held. The results of the vote was 1,582 for retention, 79 against.

Mailing of Licensing Forms

The licensing forms for 2007-08 have been mailed. Fees are due July 1, 2007; however fees received or postmarked on or before August 1, 2007 will be processed without penalty.

2007 Fall Forum Awards
The Board of Bar Commissioners is seeking nominations for the 2007 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 Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, September 17, 2007. The award categories include:

1. Distinguished Community Member Award

2. Pro Bono Lawyer of the Year

3. Professionalism Award

2007 Utah State Bar Award Winners

The Annual Awards of the Utah State Bar were presented at the Bar’s 77th 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; and exemplification of the highest standards of professionalism. Awards given at the annual meeting were for Section of the Year, Committee of the Year, Judge of the Year, and Lawyer of the Year.

Utah State Bar Ethics Advisory Opinion Committee Opinion No. 07-02
Issued June 10, 2007

Issue: If an attorney guardian ad litem is appointed by a court for a person, may another attorney communicate with the person about the subject of the representation without the prior consent of the attorney guardian ad litem?

Pro Bono Honor Roll

Andres Alarcon
James Baker
Lauren Barros
Charles Brown
Russell Cannon
Shelly Coudreaut
Roberto Culas
Meredith Dinkins
Peter Donaldson
H.D. Gailey
Jason Grant
Brent Hall
Lincoln Harris
Michael Johnson
Louise Knauer
Rick Lundell
John Maddox
Michael Mohrman
Allen Moore
William Morrison
Todd Olsen
Adam Price
Stewart Ralphs
Robin Ravert
Jon Rogers
Leslie Schaar
Linda Smith
Matthew Storey
Virginia Sudbury
Pam Thompson
Carrie Turner
Renon Warner
Tracey Watson

Utah Legal Services and the Utah State Bar wish to thank these volunteers for their time and assistance during the months of April and May. Call Brenda Teig at (801) 924-3376 to volunteer.

Discipline Corner

RESIGNATION WITH DISCIPLINE PENDING
On April 25, 2007, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning Lona Monson Webb.