Utah Bar Journal

Medical Expert Testimony: A View From the Utah Supreme Court

by Karen McCall

A recent decision by the Utah Supreme Court in the state’s master asbestos litigation has clarified the role of out-of-state experts preparing testimony within the framework of the Utah Medical Practice Act.

Carbaugh v. Asbestos Corporation Limited, 2007 UT 65, 167 P.3d 1063, as appealed from Third District Court in Salt Lake City, involved four cases and forty-seven plaintiffs, all of whom had been diagnosed with asbestos-related illnesses after an examination by Dr. Alvin Schonfeld. Dr. Schonfeld, who is licensed to practice medicine in eleven states but not in Utah, had been designated by the plaintiffs as a medical expert witness and was prepared to offer testimony on the cause(s) of the plaintiffs’ medical conditions.

Medical Expert Testimony: A View From the Utah Supreme Court

by Karen McCall
A recent decision by the Utah Supreme Court in the state’s master asbestos litigation has clarified the role of out-of-state experts preparing testimony within the framework of the Utah Medical Practice Act.

Carbaugh v. Asbestos Corporation Limited, 2007 UT 65, 167 P.3d 1063, as appealed from Third District Court in Salt Lake City, involved four cases and forty-seven plaintiffs, all of whom had been diagnosed with asbestos-related illnesses after an examination by Dr. Alvin Schonfeld. Dr. Schonfeld, who is licensed to practice medicine in eleven states but not in Utah, had been designated by the plaintiffs as a medical expert witness and was prepared to offer testimony on the cause(s) of the plaintiffs’ medical conditions.

Discipline Corner

ADMONITION
On September 27, 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 1.4(a) (Communication), 1.4(b) (Communication), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during the November 9, 2007 Commission meeting held in Salt Lake City, Utah.

1. The Commission approved website posting of the Commission’s draft for the Long-Range Plan for a 30-day comment period.

2. The Commission approved a “Communications Planning Guide” line item funding for an enhanced public relations campaign.

Thank You…

Thank you to all participants and volunteers for their assistance and support in the 18th Annual Lawyers & Court Personnel Food and Winter Clothing Drive. We were able to deliver a large truck load of donated items, along with just over $7,000 in cash donations to specific shelters. We thank you all for your kindness and generosity.

Fall Forum Award Recipients

Congratulations to the following distinguished attorneys who were honored with awards at the 2007 Fall Forum:

Francis J. Carney – Professionalism Award
Christina L. Micken – Pro Bono Attorney of the Year
Kelly J. Latimer – Pro Bono Attorney of the Year
Matthew Wride – Pro Bono Attorney of the Year
David R. Hall – Special Recognition

2008 Annual Convention Awards
The Board of Bar Commissioners is seeking nominations for the 2008 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 18, 2008. The award categories include:

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

Fall Forum Award Recipients

2008 Spring Convention Awards

The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2008 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 11, 2008. You may also fax a nomination to (801) 531-0660 or email to cabad@utahbar.org.

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.

Pro Bono Honor Roll

Lois Baar
Alan Bell
David Broadbent
Nate Brower
Brad Demile
Sam Gardiner
Jennie Garner
Ronald Goodman
Jason Grant

Notice of Election of Bar Commissioners – Second and Third 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 three members from the Third Division and one member from the Second Division. 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.

Utah State Lawyer Legislative Directory
59th Legislature 2008

The Utah State House of Representatives

Greg J. Curtis
Speaker of the House
Republican – District 49
Education: Brighton High School; B.S., Accounting, Brigham Young University, 1984; J.D., University of Utah College of Law, 1987

Elected to House: 1994
Legislative Assignments: Executive Appropriation Committee; Administrative Rules Review Committee; Legislative Managment Committee; Utah Constitutional Revision Commission
Practice Areas: Real Estate and Land Use and Development

ABA Names Utah Lawyer as National Outstanding Young Lawyer

The American Bar Association has named Salt Lake City lawyer, Sean Reyes, as the 2007 National Outstanding Young Lawyer. Reyes, a 36-year-old litigation attorney at Parsons Behle & Latimer, was chosen over 24 other nominees nationwide for his legal skills and professionalism, local and national bar leadership, and commitment to public service. Reyes will be the first recipient of this newly established award.

Utah Supreme Court Justice Christine M. Durham Named William H. Rehnquist Award Recipient
Chief Justice of the Utah Supreme Court Christine M. Durham has been named recipient of the 2007 William H. Rehnquist Award for Judicial Excellence by the National Center for State Courts. One of the most prestigious judicial honors in the country, the Rehnquist Award is presented annually to a state court judge who exemplifies the highest level of judicial excellence, integrity, fairness, and professional ethics. Chief Justice of the United States John G. Roberts presented the award to Chief Justice Durham at a ceremony on November 15 in Washington, D.C.

Law & Mental Health Professionals – Utah
by Leslie Pickering Francis and Linda F. Smith

Reviewed by Judge Judith S. H. Atherton

Providers of mental health services (MHPs) are affected by the law in numerous ways. Not only does the law govern their credentialing, licensing, business practice, and personal liability but also, and, importantly, it dictates their direct participation in the administration of the legal system. MHPs increasingly are called upon to provide expert opinions and testimony on subjects ranging from an individual’s competency to participate in court proceedings, marry, enter a contract, vote, sign a will, or testify in court about that person’s mental status, amenability to treatment and even the likelihood of effectively responding to a prescribed medication treatment regimen to restore competence. Lawyers and MHPs do not necessarily speak the same language, but they must interact on a regular basis. Law & Mental Health Professionals – Utah seeks to be a comprehensive and accurate review and integration of all the law that affects MHPs in Utah. This book is the latest in a series of similar state volumes published by the American Psychological Association, which has a stated goal of having such a book for each state and federal jurisdiction and for the District of Columbia. It is, then, a handbook, written primarily for the MHP, in language readily understood by non-lawyers, but it is also a valuable resource for the law-trained. It is meant to provide an accurate statement of the existing law only and offers neither critique nor commentary on the law’s substance.

The 4-Hour Workweek: Escape 9-5, Live Anywhere, and Join the New Rich
by Timothy Ferriss

Reviewed by Bentley J. Tolk

Can lawyers reduce their working time to four hours per week? Probably not. Can lawyers dramatically reduce the number of hours they work? The 4-Hour Workweek, a New York Times bestselling book, suggests that they can.

Timothy Ferriss, the book’s author, is a Princeton graduate who began his career working 12-hour days for a start-up company. After getting burned out and discouraged with the corporate world, Ferriss started his own dietary supplement company through $5000 in credit card debt and lots of outsourcing. Although his supplement company became successful relatively quickly, Ferriss found that he was working 12-hour days seven days a week as a result. He subsequently decided to simplify his role with the company and to make himself “expendable.” Thus, Ferriss bought a one-way plane ticket to Europe, where he began operating his supplement company through one hour of e-mails each Monday morning. Astonishingly, the company’s profits increased by 40% as Ferriss lessened his hands-on role in operating the company.

Reducing Stress
by Robert H. Henderson

Stress. My life has been haunted by stress (I shamelessly borrow Norman MacLean’s last line from A River Runs Through It). I’m the King of Stress. You are thinking, “no way reading this piece can benefit me.” You are wrong – I can help you. Suspend disbelief for 5 minutes while I briefly qualify myself.

In the early 60’s, we were hysterically afraid of the communists, much as we are now of the terrorists. President 35 asked me to go to a service academy. You know, part of that “ask what you can do for your country” bit. You have to admit, he had a certain charm, and I was a sap. My beloved U.S. of A. had just been through the Bay of Pigs and the Cuban Missile Crisis. So, at 17, I found myself at the United States Military Academy at West Point, New York. Huge mistake. I couldn’t quit without my father’s permission. My father had flown bombing missions in the South Pacific during World War II, and he was not in a permitting mood. I am now a fervent believer than no human being should commit to anything beyond the next day or so before their age starts with a 3. Anyway, at the end of my second year, I was 12th from the bottom of my class in “military aptitude,” in a class of 800 or so. They kicked out 10 of the 11 below me. The “cutoff man” had been my roommate. Two years later, I graduated, with relief. The Latin phrase is “summa cum difficultate.” To me, those 4 years seemed to last as long as the 40 since. I was a total failure as a cadet. This was a very stressful time for me.

My Mentors
by Stephen W. Owens

You will be hearing a lot about mentoring in the coming months. Rod Snow and Margaret Plane are leading a bar commission subcommittee on this issue. Alan Sullivan has also been a leader in this area.

In the not-too-distant future, you may see a formal matching of new lawyers to seasoned lawyers organized through the bar with a list of practical experiences the new lawyer will be expected to complete. The Minority Bar and Women Lawyers of Utah already have such programs in place.

Stress Management for New Lawyers, Or “You Can Do It!”
by Marianne McGregor Guelker

I write this article about stress management to new lawyers as a relatively new lawyer. However, the tips contained in this article may be helpful to all lawyers.

Remember who you are and stay true to your best qualities.
Remember the positive characteristics, which helped you to be admitted to and to complete law school. The law is a profession which prizes character, grit, intelligence and industry. You could not have completed law school without having these qualities. Remember that you possess these strengths and that you can rely upon them as you practice law.

Lessons from Recent Utah Legal Malpractice Cases
by Michael Skolnick

We can all learn from our mistakes. But it’s likely less painful to learn from other’s mistakes – either actual or alleged. This article is offered in that spirit – a compilation of some recent Utah attorney malpractice cases containing a grab bag of valuable lessons for every day practitioners. “Recent” is arbitrarily defined as the last two years.

Stress in Practicing Law and How to Minimize it from the Perspective of a Family Law Practitioner
by Carolyn Zuethen

Although most lawyers will agree that the practice of law is demanding and intense, the legal community does not agree on how one finds satisfaction, fulfillment, creativity, and happiness in the practice of law. Perhaps the choices I have made to reduce the stress in my practice will serve to illustrate that a positive attitude is possible. As a lawyer practicing in family law for the past twenty years, I have certainly struggled with the intensity and demanding nature of the practice of family law. But I believe that I have come to enjoy it now more than ever. There are several reasons for this, but the most important are the choices I made that helped me to come to terms with the stressful environment in which I work.

A Sober Look Back
by Anonymous

Hello, my name is “Steve,” and I am a career prosecutor. I’ve practiced law for over two decades and I haven’t billed an hour yet. In that time, I have prosecuted everything from barking dog cases to capital homicides. Of course, I’ve prosecuted illegal narcotics cases, automobile homicides, and DUIs; lots of DUIs.

“Ain’t Stress Grand?”
by Herm Olsen

The fault, dear Brutus,
Is not in our stars,
But in ourselves
– William Shakespeare, Julius Caesar, I, ii.134

It’s 5:13 a.m. – you’re bone-dead tired. But you can’t get your eyes to slam shut. Deadlines eat at you. Clients are getting frustrated because you’re not prompt at getting back to them. Your secretary is irritated because her bonus isn’t as large as she deserves.

Why Are So Many Lawyers Depressed?
by Brent Hale

Do lawyers suffer more depression than other professionals? Do the demands and pressures of a legal career make lawyers particularly prone to burnout and other stress-related illnesses? Consider the following comments taken from ABA publications and websites:

LHL: Reflecting the Principles of the ABA Model
by Michael E. Bulson

One of the strengths of Utah’s Lawyers Helping Lawyers program (LHL) is that it is based on the American Bar Association’s (ABA) model for lawyer assistance programs (LAP). Since 1987 when its efforts to assist lawyers facing impairment problems first began, the ABA has aided and supported the establishment of LAPs in every state. The ABA’s support for this important initiative grew out of its awareness that the number of lawyers suffering the effects of drug and alcohol addiction, as well as mental health issues, was disproportionate to that of society as a whole. Studies put the percentage of lawyers in crisis at 15 to 18%, compared with 10% for the rest of society. In response, the ABA House of Delegates adopted a model program in February 2004, for providing help to lawyers, judges, and law students impaired by any physical or mental health condition affecting the competent practice of their profession, quality of life, or study of law.1

What to Expect When You Call Lawyers Helping Lawyers
by Shannon Johnson

“Lawyers Helping Lawyers, this is Shannon.” If you call (801) 579-0404 or 1 (800) 530-3743, this is most likely what you will first hear on the other end of the phone. My name is Shannon Johnson and I am the administrative assistant for Lawyers Helping Lawyers (LHL). As such, I have the opportunity of answering the phone and therefore being your first contact with LHL. I count this as a privilege and hope that I can always help you feel by the time you hang up the phone that your needs were or will be met. In order to make sure this happens, let me take a moment to guide you through what to expect if you call LHL.

A Friend in Need
by David Bernstein

Some years ago a close colleague confided in me that he felt he couldn’t take practicing law much longer. He was at the end of his rope. He felt paralyzed and overwhelmed. Phone calls from counsel and even clients went unanswered or unreturned for weeks; unopened mail filled his desk. Deadlines loomed and the pressure mounted as his cases stagnated. He lived in fear of missing deadlines or receiving a malpractice complaint. He resented his work and his whole life felt out of sync. The good news is that he managed to make it through those dark days unscathed. Not everyone is so lucky.

Lawyer Assistance in Utah – Let Us Help
by V. Lowry Snow

In 2002, Utah Lawyers Helping Lawyers (Utah LHL) invited the ABA Commission on Lawyers Assistance Programs to conduct an on-site evaluation of the availability of programs in place to assist Utah lawyers with a range of issues including chemical dependency, stress, depression, and other psychological conditions. The final report the review team issued first addressed the question of whether Utah needed a fully funded assistance program to address these issues. In response, the report offered statistics generated from lawyer assistance programs in other states and frankly, the data are disconcerting. For example, the report highlights the results of a Johns Hopkins study from 1990 that attorneys lead the nation in the incidence of depression. One study indicated that between 15% and 18% of lawyers and judges will suffer from chemical dependency or psychological impairment at some point during their career. Another study estimates that between 50% and 70% of all disciplinary matters are related to substance abuse or other psychological problems. It can be argued that because of Utah’s unique culture, healthy lifestyle, and strong emphasis on family life and support, that these numbers are simply not representative of its lawyers. However, after reviewing additional ABA literature on this matter and after spending considerable time with the leaders from both of our lawyer assistance providers: Utah LHL and Blomquist Hale, I am convinced that these same issues, to some extent, affect our membership.

Vol. 21 No. 1 Jan/Feb 2008

PDF Version

* President's Message: Lawyer Assistance in Utah - Let Us Help
* A Friend in Need
* What to Expect When You Call Lawyers Helping Lawyers
* LHL: Reflecting the Principles of the ABA Model
* Why Are So Many Lawyers Depressed?
* "Ain't Stress Grand?"
* A Sober Look Back
* Stress in Practicing Law and How to Minimize it from the Perspective of a Family Law Practitioner
* Lessons from Recent Utah Legal Malpractice Cases
* Stress Management for New Lawyers, Or "You Can Do It!"
* My Mentors
* Reducing Stress
* Book Review: The 4-Hour Workweek: Escape 9-5, Live Anywhere, and Join the New Rich by Timothy Ferris
* Book Review: Law & Mental Health Professionals - Utah by Leslie Pickering Francis and Linda F. Smith
* Paralegal Division: Medical Expert Testimony: A View From the Utah Supreme Court