Utah Bar Journal

Making a Difference in the Legal Profession and the Community
by Sharon M. Andersen

July is here and my term as Chair of the Paralegal Division has ended. For me it has been an extraordinary year, jam-packed with wonderful experiences, new and deepened friendships, and tremendous personal growth. I cannot begin to express how grateful I am to have had the opportunity to serve the Paralegal Division (Division) and its members. However, I know that I could not have accomplished anything without the hard work and unbelievable support of the Division’s Board of Directors. What an exceptional group of paralegals! Their examples of commitment and dedication prove that individuals who work together with a shared vision, passion, and purpose can achieve remarkable results. Nevertheless, the leadership could not have realized any degree of success without the support from Division members and other paralegals that stepped up offering their personal time and resources to help with community service events. Together, we have shown that paralegals make a difference not only within the legal profession, but also within the community.

Congratulations Deb Calegory: Recipient of Utah’s 2008 Distinguished Paralegal of the Year Award
by Sharon M. Andersen

On May 15, 2008, we celebrated Paralegal’s Day at Little America in Salt Lake City, Utah. As many of you know, Paralegal’s Day is a yearly event co-sponsored by the Paralegal Division and the Legal Assistants Association of Utah (LAAU). This year we were especially privileged to have Chief Justice Christine Durham of the Utah Supreme Court as our keynote speaker who spoke to us on the topic of The Role of the Supreme Court, the Judicial Council, the Many Committees and the Ways We Administer the Court System.

Attorney Discipline
ADMONITION
On May 19, 2008, 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 1.15(c) (Safekeeping Property) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

Ethics Opinions

Opinion No. 08-02
Issued March 11, 2008

Issue: Under what circumstances may an attorney who has represented a party in conjunction with a proceeding to appoint a guardian for an adult incapacitated person represent the guardian that is subsequently appointed as a result of that proceeding?

Ethics Opinions
OPINION NO. 08-01
MAIN OPINION
Issued April 8, 2008

Issue: May an attorney provide legal assistance to litigants appearing before a tribunal pro se and prepare written submissions for them without disclosing the nature or extent of such assistance? If so, what are the attorney’s obligations when full representation is not undertaken?

2008 Award Recipients

During the Utah State Bar’s 2008 Summer Convention in Sun Valley, Idaho the following awards were presented:

Judge of the Year
Judge Glenn K. Iwasaki

2008 Fall Forum Awards

The Board of Bar Commissioners is seeking nominations for the 2008 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 15, 2008. The award categories include:

1. Distinguished Community Member Award
2. Pro Bono Lawyer of the Year
3. Professionalism Award

View a list of past award recipients at: http://www.utahbar.org/members/awards_recipients.html

Lawyer Referral Service

On July 1, 2008, the Utah State Bar created a new directory for lawyer referrals. Participation in the introductory “Find a Utah Lawyer Directory” is voluntary and free of charge. The directory provides potential clients with an on-line listing of each lawyer’s name, address, admission date, law school, and telephone number within specific geographic areas and practice types as identified by the search criteria. It includes a lawyer’s email address only if specifically authorized. Lawyers are permitted to list up to five practice types. You may sign up for the Find a Utah Lawyer Directory at www.utahbar.org/LRS.

Mailing of Licensing Forms

The licensing forms for 2008-09 have been mailed. Fees are due July 1, 2008; however fees received or postmarked on or before July 31, 2008 will be processed without penalty.

It is the responsibility of each attorney to provide the Bar with current address information. This information must be submitted in writing. Failure to notify the Bar of an address change does not relieve an attorney from paying licensing fees or late fees. Failure to make timely payment will result in an administrative suspension for non-payment after the deadline. You may check the Bar’s website to see what information is on file. The site is updated weekly and is located at www.utahbar.org.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during the April 25, 2008 Commission meeting held in Logan, Utah.

1. Lowry Snow, Nate Alder, Rob Jeffs, Lori Nelson, and Steve Owens reported on their recent attendance at the Western States Bar Conference. Nate reported that he learned that the Bar’s reserve could easily be depleted if an “issue” arose, e.g., citizens’ referendum on judicial retention, which required our opposition. He also learned about the Nevada Bar’s efforts to curb inappropriate lawyer advertising and would like to see something similar adopted here. Rob reported that he found that most lawyer referral programs have incorporated a low bono component. Lori reported that some bars are facilitating the availability of health insurance to their members. Steve reported that we should consider hosting a “Utah State Bar Day” to address prominent current legal issues. He further reported that some bars have term limits for their board members.

With Hope Across America
A Father-Daughter Journey
by Bob Braithwaite

Reviewed by Cathy Roberts

Good books should make you want to get up and do something: eat a delicious meal, fall in love, or even travel with your not-so-small child through 37 states across America.
This book creates that desire to hit the road. Written by Bob Braithwaite, part-time U.S. magistrate, and former district court judge from Cedar City, it has little to do with the law, and everything to do with being a parent, and a child. Not that it is a parenting guide, mind you; rather, it is a guidebook to seeing the United States in a truck accompanied by a willing but skeptical family member.

No One Makes It Alone

by Andrew A. Valdez

Reviewed by J. Simón Cantarero

No One Makes It Alone (2006) was written by Andrew A. Valdez. Many readers will recognize the author as Judge Valdez of the Third District Juvenile Court. This book is Judge Valdez’s first book and is an autobiographical story about a critical time in his youth. While the book may not win any awards for being a literary masterpiece, it should be required reading for practicing lawyers to remind them of the importance of having and being a mentor, not only for their chosen profession but for life. The book is worth at least 3 CLEs.

Highlights from the 2008 Legislative Session
by Nancy J. Delacenserie

As in most years, the 2008 legislative session was full of controversy. Subjects as diverse as immigration and water were hotly debated. The following is a brief summary of a variety of bills that were enacted during the 2008 legislative session. With the volume of bills passed, no attempt is being made here to provide the reader with more than a taste of several bills of general interest to Utah lawyers. While the bills discussed herein may not directly affect your legal practice, they may very well impact your life in other ways.

Skeptics at the Gate – The 2007 Revisions to Rule 702, Utah Rules of Evidence
by John R. Lund and Keith A. Kelly, with assistance from Richard Vazquez1

Introduction
On November 1, 2007, the Utah Supreme Court adopted a significantly revised version of Rule 702, Utah Rules of Evidence, as well as a substantive Advisory Committee Note. Revised Rule 702 overrules a substantial body of Utah case law that called for a bifurcated standard in admitting expert testimony, depending on whether the testimony involved “novel” or “non-novel” expert analysis.2 Revised Rule 702 now provides a unified framework for determining the admission of expert testimony. The Advisory Committee Note explains the reasoning for these changes, while introducing the perspective of “rational skepticism” for a judge to take when keeping the gate for admission of expert testimony and emphasizing the instruction to focus on the “work at hand” when applying Rule 702.

Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

An Enigmatic Degree of Medical Certainty
by Nelson Abbott and Landon Magnusson

Every profession uses its own jargon. Psychologists describe a client’s “affect” while an acting coach describes a student’s “expression.” The use of jargon frequently causes difficulties when members of differing professions converse. For example, economists and accountants find themselves at odds over the meaning of terms like “capital” and “profit.” In the legal profession, attorneys must also converse frequently with members of other professions. Misunderstandings and problems can be especially common when meaning is lost in the translation from “legalese” to plain English. For example, when professionals are required to give opinion testimony under Utah Rules of Evidence 702, such misunderstandings may result in testimony being wrongfully admitted or improperly excluded.

The Commercial Loan Guaranty – Types & Techniques
by Rick L. Knuth

The guaranty agreement is often only an after-thought in a commercial loan transaction. Lenders tend to focus more on the collateral, and borrowers tend to assume that a guaranty’s presented form is non-negotiable. As a result, no one pays much attention to the guaranty agreement – until the loan is in trouble, that is, at which point everyone suddenly becomes very interested in whatever recourse against the guarantors was agreed to back
on that sunny, optimistic day when the loan was first made. The proposition of this article is that the guaranty agreement ought to receive a more thoughtful, flexible consideration than that; that it should not be treated just as another document‑in‑the‑stack, but as a separate agreement of equal concern to all parties.

Drawing the Short Straw – Mortgage Fraud and Straw Buyers
by Brad R. Jacobsen and Michael Barnhill

I. Introduction
Mortgage fraud is a significant problem in Utah, and it is growing. The FBI listed Utah as one of the top ten hotspots for mortgage fraud in its 2006 Mortgage Fraud Report.1 Recently, both state and federal agencies have increased their investigation of mortgage fraud and the enforcement of mortgage fraud laws. New Mortgage Fraud Task Forces have been created by state and federal agencies to tackle the problems created by these schemes and to stop those involved.2

Giving Generously
by V. Lowry Snow

Bar meetings in Salt Lake City usually begin with a 4:30 AM alarm. My wife has become more accepting of my predawn rustling and rushing to shower and dress before heading out the door to catch the early commuter flight to Salt Lake City. Typically, I use the flight time in review of contracts, pleadings or correspondence – the things that I try to keep up with in a busy practice while still devoting a good measure of time to the fulfillment of my presidential duties. Instead this morning, I’m reflecting on the events of the past year and trying to identify what it is about this experience that has been so rewarding.

Vol 21 No. 4 July / Aug 2008

PDF Version

COVER: Desert Flower, taken on Poison Spider Mesa above Moab, Utah, by first-time contributor John Lund of Salt Lake City, Utah.

* President's Message: Giving Generously
* Drawing the Short Straw - Mortgage Fraud and Straw Buyers
* The Commercial Loan Guaranty - Types & Techniques
* An Enigmatic Degree of Medical Certainty
* Winning Arguments Supporting the "Made Whole" Doctrine
* Utah Law Developments: Skeptics at the Gate - The 2007 Revisions to Rule 702, Utah Rules of Evidence
* Utah Law Developments: Highlights from the 2008 Legislative Session
* Book Review: No One Makes it Alone by Andrew A. Valdez
* Book Review: With Hope Across America, A Father-Daughter Journey by Bob Braithwaite
* Paralegal Division: Congratulations Deb Calegory: Recipient of Utah's 2008 Distinguished Paralegal of the Year Award
* Paralegal Division: Making a Difference in the Legal Profession and the Community