Utah Bar Journal

Vol. 21 No. 2 March / April 2008

PDF Version

COVER: Escalante Canyon at Lake Powell, Utah, by Steven Black of Alpine, Utah.

* Letters to the Editor
* The Ethical Utah Lawyer: What Are the Limits in Negotiation?
* Bankruptcy Exemption Planning: Counseling in Shades of Gray
* Dealing with Metadata in the Non-Discovery Context
* Interpreting Rules and Constitutional Provisions
* Utah Law Developments: Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah
* Views from the Bench: Senior Attorneys for Low-Income Litigants
* Book Review: Blind Justice? A Review of Missing Witness by Gordon Campbell
* Book Review: Business and Commercial Litigation in Federal Courts, Second Edition Edited by Robert L. Haig

Dear Editor:

I chime in re colleague Vetter’s excellent suggestions to improve our bar, particularly regarding bar finances and lawyer referral.

Dear Editor:

Judge Reva Beck Bosone has served as a role model and inspiration to many Utah women who have desired to become lawyers. I was reminded of this recently and decided to write concerning my limited experience with Judge Bosone.

The Ethical Utah Lawyer: What Are the Limits in Negotiation?

by Michael H. Rubin

Editor’s Note: Mr. Rubin was the keynote speaker at the Utah State Bar’s 2007 Annual Convention. His engaging presentation included a turn at the “baby grand,” which unfortunately cannot be replicated here. This article otherwise draws heavily on his remarks in Sun Valley as well as on his prior publications.1

The Lawyer as a “Zealous Advocate”
For over two hundred years, lawyers have been encouraged to be “zealous advocates” of their clients’ interests.

Bankruptcy Exemption Planning: Counseling in Shades of Gray

by Joel Marker

For a debtor’s counsel, the easiest bankruptcy case involves a client with little or no non-exempt property. To quote Kris Kristofferson from his ballad “Me and Bobby McGee,” “freedom’s just another word for nothin’ left to lose.” But for many individuals who qualify for Chapter 7 relief in spite of the substantial hurdles imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 (those with incomes below the state median or whose debts are primarily business related), the issue of exemption planning remains important. Attorneys representing clients contemplating bankruptcy must be familiar both with state and federal exemption statutes, and with inconsistent case law, that may limit a debtor’s ability to take full advantage of the protections to which the debtor is entitled.

Dealing with Metadata in the Non-Discovery Context

by H. Craig Hall, Jr.

I’m not exactly sure how this was done, but rumor has it that lawyers used to practice law without computers.

Word processing software, e-mail, spreadsheets, PowerPoint, and the like have become an almost essential part of the professional and personal lives of lawyers and their clients. Such technology can significantly enhance our communication capabilities and efficiency as lawyers. However, potential dangers abound for lawyers. Perhaps one of the most dangerous issues to be aware of is the existence of metadata in electronic documents.

Interpreting Rules and Constitutional Provisions

Remarks by Laura Dupaix, Linda Jones, and Christina Jepson Schmutz

Edited by John Bogart

Editor’s Note: At the July 2007 Convention of the Utah State Bar, the Appellate Practice Section sponsored a panel discussion on some recent developments and trends in decisions of the Utah appellate courts. The discussion focused on expert testimony and constitutional interpretation. What follows is a summary of the remarks by the panelists.

Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah

by Stephen D. Kelson

On January 2, 2001, newlyweds Steven and Aimee Ellis were traveling by car on their honeymoon. Near Shelley, Idaho, Mr. Ellis lost control of the vehicle and crossed the center median into oncoming traffic, resulting in a collision with a two-ton Mitsubishi truck. Mr. Ellis died as a result of the accident. Mrs. Ellis was hospitalized with serious injuries, including a severe head injury, numerous broken bones, internal injuries, and emotional trauma. Four years later Mrs. Ellis filed a personal injury action against her husband’s estate for negligence, in the Third District Court, Salt Lake County, State of Utah.1 The Estate brought a motion to dismiss Mrs. Ellis’s claim, in part, asserting that it was barred by the doctrine of interspousal immunity.2 The district court granted the Estate’s motion in part, dismissing Mrs. Ellis’s claim of negligence and concluding with reluctance that interspousal immunity is abrogated in Utah only with respect to intentional torts. Mrs. Ellis appealed the decision.

Senior Attorneys for Low-Income Litigants
by Judge Sam McVey

I hope to generate a discussion in the Bar Journal and elsewhere of new ideas addressing an old problem – providing legal representation to litigants who can’t afford attorneys and aren’t among the few who get help from Legal Services, Legal Aid, or attorneys who do pro bono work.

Blind Justice? A Review of Missing Witness

by Gordon Campbell

Reviewed by Betsy Burton

In theory, justice must be blind if it is to be fair; the same may be said of book reviews. If a critic is for some reason prejudiced for or against a book, the resultant review is likely to be biased. That being said, it is best to warn readers at the outset that this review is as far from blind as a review can be since (1) I’m not a critic but a bookseller, (2) I know and like Gordon Campbell, and (3) I feel about Missing Witness like a mother hen might feel about her favorite chick. The good news is that therein lies a tale (although not one I’m going to tell in this review). The bad news is you’re unlikely to hear snide comments, plot quibbles, or literary character assassination from this source – although in fairness there are few reviews in this town or across the nation other than that in the Deseret News (a subject that I suspect had more to do with religion than reality) that were anything but wholly positive.

Business and Commercial Litigation in Federal Courts, Second Edition

Edited by Robert L. Haig

Reviewed by Michael D. Zimmerman

Commercial litigation is a vast arena. In the course of practice, one is constantly confronted with new issues, often legal but perhaps more often practical. The many tactical and strategic questions that arise are every bit as subtle as any the courts address, and the answers appropriate to a particular situation are far less certain because of the varying and complex factual contexts in which they are encountered. An experienced litigator will have plumbed the depths of a number of substantive areas and will have addressed many practical problems of litigation tactics and strategy. However, no matter how sage, any such lawyer will find this eight volume treatise invaluable for its scope and depth, and for its down to earth practicality.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during the January 25, 2008 Commission meeting held in Salt Lake City, Utah.

1. The Commission voted to hold the 2011 Annual Convention at a beach location other than the Newport Beach Marriott site.

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, Utah 84111.

2007 Utah Bar Journal Cover of the Year Announced

The winner of the Utah Bar Journal Cover of the Year award for 2007 is Cristina Pianezzola, of Orem, Utah. Her photo, taken at South Fork in Provo Canyon, was featured on the cover of the September/October issue.

Notice of Open Board of Director Position and Notice of Annual Meeting for the Utah Bar Foundation

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.

Recognition for Southern Utah Bar Association

The legitimate object of governments is to do for a community of people, whatever they need to have done, but cannot do at all or cannot, so well do for themselves – in their separate and individual capacities.

Abraham Lincoln

The same can be said for the legitimate object of the Bar, that is, to do for a community of people, that which they cannot do at all or so well for themselves. The Southern Utah Bar Association (SUBA) appears to have taken to heart the sentiments of Lincoln, forging a rich tradition of service to the community. SUBA has taken upon itself the mission to provide legal services to those most in need in their community.

Juvenile Law Section Organizational Meeting

Join us to elect officers and plan future CLE events. Martha Pierce of the Guardian Ad Litems Office and Carol Verdoia Assistant Attorney General Child Protection Division will provide a case law and legislative update.

April 23, 2008 • 12:00–1:00 pm
1 hour CLE (pending bar approval)
$15 Lunch will be provided
Register by April 18 by e-mail: sections@utahbar.org
or by fax at: (801) 531-0660

Notice of Ethics & Discipline Committee Vacancies

The Bar is seeking interested volunteers to fill four vacancies on the Ethics & Discipline Committee of the Utah Supreme Court. The Ethics & Discipline Committee is divided into four panels, which hear all informal complaints charging unethical or unprofessional conduct against members of the Bar and determine whether or not informal disciplinary action should result from the complaint or whether a formal complaint should be filed in district court against the respondent attorney. Appointments to the Ethics & Discipline Committee are made by the Utah Supreme Court.

Please send a resume, no later than May 2, 2008, to:

Utah Supreme Court
c/o Matty Branch, Appellate Court Administrator
P.O. Box 140210
Salt Lake City, Utah 84114-0210

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, Utah 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

Notice of Petition for Reinstatement to the Utah State Bar by Harold J. Dent

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 Respondent’s Verified Petition Requesting Reinstatement to the Practice of Law (“Petition”) filed by Harold J. Dent in In re Dent, Fifth Judicial District Court, Civil No. 040500436.  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 Fifth District Court.

Mandatory CLE Rule Change
Effective January 1, 2008, the Utah Supreme Court adopted the proposed amendment to Rule 14-404(a) of the Rules and Regulations Governing Mandatory Continuing Legal Education to require that one of the three hours of “ethics or professional responsibility” be in the area of professionalism and civility.

Rule 14-404. Active Status Lawyers
(a) Active status lawyers. Commencing with calendar year 2008, each lawyer admitted to practice in Utah shall complete, during each two-calendar year period, a minimum of 24 hours of accredited CLE which shall include a minimum of three hours of accredited ethics or professional responsibility. One of the three hours of ethics or professional responsibility shall be in the area of professionalism and civility. Lawyers on inactive status are not subject to the requirements of the rule.

Steve Kaufman Receives Lifetime Achievement Award

The Weber County Bar Association has awarded Ogden attorney Steve Kaufman its Lifetime Achievement Award for 2007 in recognition of his invaluable service to the legal community. During his 30 year career Mr. Kaufman has mentored many young attorneys, founded the largest law firm in Weber and Davis Counties, and has always been very active in bar functions. In addition Mr. Kaufman served as the 1981-82 Weber County Bar President, was a Utah State Bar Commissioner from 1992 through 1998, and was the 1996-97 President of the Utah State Bar.

Discipline Corner

ADMONITION
On December 17, 2007, the Honorable Anthony Quinn, Third Judicial District Court, entered an Order of Discipline: Admonition against an attorney for violation of Rules 4.4 (Respect of Rights of Third Persons), 1.3 (Diligence), 1.4(a) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Your Attendance is Requested
Paralegal’s Day CLE Luncheon honoring Utah Paralegals

Hosted by: Paralegal Division – Utah State Bar and The Legal Assistants Association of Utah

Thursday, May 15, 2008 • 12:00 Noon to 1:30 p.m.
Little America Hotel • Ball Room B-C • 500 South Main Street, Salt Lake City, Utah

Keynote Speaker: Chief Justice Christine Durham, Chief Justice of the Utah Supreme Court

1.0 hour of Ethics credit

Register on-line by May 9, 2008 at http://www.utahbar.org/cle/events/registration/annual_paralegal.html