Utah Bar Journal

Vol. 21 No. 6 Nov/Dec 2008

PDF Version

Dear Editor,

Thank you, UBJ, for publishing Eric K. Johnson’s “Open letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board” (Sept/Oct.2008). This piece is a refreshing alternative voice for those of us who are already regulated to death and don’t feel the need for still another layer of micromanagement and regulation of our practices. Eric’s counterpoint, like Alexander Pope’s “wit,” contains views “oft thought, but ne’er so well expressed.”

Dear Editor,

In the most recent Utah Bar Journal, Eric K. Johnson wrote a letter to the newly-established Utah Supreme Court Professionalism Counseling Program Board. The law firm Smart, Schofield, Shorter & Lunceford wishes to make it known that the opinions expressed in the letter are not a reflection of the attitude and position of our firm. This letter was published without the knowledge or consent of the shareholders. Our firm supports the efforts to improve the civility and professionalism of attorneys toward each other.

Very truly yours,
Smart, Schofield, Shorter & Lunceford Shareholders

The Bar is Looking for a Few Good Mentors Actually, We Need Hundreds of You to Step Forward
by Nathan D. Alder

On September 30, 2008, the Bar petitioned the Utah Supreme Court to replace the first year of mandatory New Lawyer Continuing Legal Education (“NLCLE”) with a one-on-one mentoring program called the New Lawyer Training Program (“NLTP”). While we await the Supreme Court’s final action on the petition, as well as Bar members’ comments, the Court has endorsed the mentoring concept and approved the Bar’s recruitment of mentors. Many new lawyers indicate that they do not feel well-prepared for the practical aspects of practicing law. And, adequate on-the-job training too often is subordinated to billable hours and business pressure. The new program matches a newly-admitted lawyer with an experienced attorney to help the new lawyer acquire the practical skills and judgment necessary to practice in a highly competent manner. The mentor can also help the new lawyer to better understand ethical and professional requirements and constraints and to develop networking and long-term relationships within the profession.

Does the Wrongful Lien Statute Apply to Mechanics’ and Other Types of Liens?
by R. Spencer Macdonald
Although the response to the question in the title of this note may seem obvious, attorneys in Utah may be surprised to learn that several district courts have concluded that the Wrongful Liens and Wrongful Judgment Liens Statute, (the Wrongful Lien Statute), see Utah Code Ann. § 38-9-1 to -7 (2005), categorically does not apply to mechanics’ liens. However, recent developments on this issue have demonstrated that the Wrongful Lien Statute can, in fact, apply to mechanics’ liens (and other types of liens) in some circumstances.

Unbundled in Utah
by Virginia Sudbury

There are certain keys to a better life; among them world peace, the Cubs in the World Series (next year!), and, of course, accessible legal services. Few things are more keenly needed than the latter, and often at cruelly unexpected times. I am an attorney who believes passionately in public interest law, and yet I want to eat relatively well. I want a way to engage in the private practice of law while wearing public interest clothes. Practicing “unbundled” law is providing me that satisfaction.

A Notary Primer for Utah Attorneys
by Scott M. Ellsworth

We all know the frustration of having a notary form attached to a document that innocently asserts that the document was signed in front of a notary when in fact it has already been signed and all that’s needed is an acknowledgement. Few people are even sufficiently into notarial minutiae to distinguish among jurats, acknowledgements, copy certifications, and pronotarial oaths (and, of course, such people could, with some justification, reply “that’s what attorneys are for”). The problem is, however, that chapter 46-1 of the Utah Code (the Notaries Public Reform Act) just doesn’t come up all that often, and we can hardly expect our assistants and paralegals to comprehend the ins and outs of notarial verification (at least, not without some training) unless they themselves are notaries. And even notaries are often unaware of which kind of document requires what kind of certificate.

The Spider to the Fly
by Just Learned Ham

I have a confession to make. I am an in-house lawyer, and I’ve been one for a long time. I am the reason your clients no longer think of you as a trusted advisor, but just another cost in need of control (well, that plus your $450 billing rate – for that kind of money, shouldn’t you at least offer to wash my windshield?). It’s my fault your bills have those incomprehensible matter numbers. If it’s any comfort, those numbers don’t mean anything to me, either. The whole point is so you, and my CEO, will think I’m watching you (that’s the kind of thing we talk about at those corporate counsel CLE’s in the Lesser Antilles). And I still get to tell people I practice law (and no, I don’t feel bad saying that – Jim Matheson still gets to call himself a Democrat, doesn’t he?).

Utah Legislative History Research Tips
by Mari Cheney

Researching legislative history can be daunting. It is often a multimedia experience that includes print, online, and audio resources. You may have to visit more than one place, including your law library, the Archives, and Capitol Hill. A renumbered code section can complicate your research. And sometimes you will go through the entire process and have no more insight into what the legislature’s intent was than when you started.

Don’t be discouraged. Here are some tips to help you through the process.

Legislative Update: Senate Bill 83 “Check Cashing and Deferred Deposit Lending Registration Act”
by Jill O. Jasperson

Senate Bill 83 modified what was known as the Check Cashing Registration Act to the more correct title of Check Cashing and Deferred Deposit Lending Registration Act (the Act). It was sponsored by legislator Karen Mayne and approved by the governor on March 14, 2008. The Act went into effect May 5, 2008. The bill makes technical and conformation amendments to the Utah Code, found mainly in Title 7. In part, the bill was a housekeeping effort to add the words “deferred deposit lender” or “deferred deposit lending” alongside the words “check casher” already used in other parts of the code. The bill was considered a compromise between legislators and consumer advocates in trying to establish further regulation of check cashers and deferred deposit lenders.

Commission Highlights

The Board of Bar Commissioners received the following reports and took the actions indicated during the September 12, 2008 Commission meeting held at the Law & Justice Center in Salt Lake City, Utah.

1. The Commission approved a Distinguished Service Award for “and Justice for All” in recognition of their outstanding service toward the creation of a better public understanding of the legal profession and the administration of justice.

2. The Commission approved appointments to the Bar Operations Review Committees for evaluations of the Office of Professional Conduct, Continuing Legal Education, Fee Dispute Resolution, the Fund for Client Protection, and the Law & Justice Center. Evaluations of these Bar programs are set to begin in October 2008.

Whistle-Blower Policy

Bar Commissioners, Bar staff, and any member of the Bar may anonymously report concerns regarding fraud, violations of law, conflicts of interest, other breakdown in internal controls, financial reporting issues, and other areas of major governance concern to the Chief Justice of the Utah Supreme Court for investigation and action as is deemed by the Chief Justice to be appropriate.

Notice of Election of Bar Commissioners

Third, Fourth, and Fifth Divisions
Pursuant to the Rules for 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, one member from the Fourth Division, and one member from the Fifth 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.

Notice of Election of Bar President-Elect
Any active member of the Bar in good standing is eligible to submit his or her name to the Bar Commission to be nominated to run for the office of president-elect in a popular election and to succeed to the office of president. Indications of an interest to be nominated are due at the Bar offices, c/o Executive Director John Baldwin, 645 South 200 East, Salt Lake City, Utah, 84111 or via e-mail at director@utahbar.org by 5:00 p.m. on January 2, 2009.

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.

Notice of Petition for Reinstatement to the Utah State Bar by Cheri K. Gochberg

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 the Verified Petition for Reinstatement of Cheri K. Gochberg (Petition) filed by Francis J. Carney, counsel for Cheri K. Gochberg, in In the Matter of the Discipline of Cheri K. Gochberg, Third Judicial District Court, Civil No. 080901793. 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.

Notice of Petition for Reinstatement to the Utah State Bar by Charles C. Brown

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 the Verified Petition for Reinstatement of Charles C. Brown (Petition) filed by John A. Snow, counsel for Charles C. Brown, in In the Matter of the Discipline of Charles C. Brown, Third Judicial District Court, Civil No. 970905495. 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.

Announcing the formation of the new Communications Law Section of the Utah Bar

The communications industry is evolving rapidly, spurred by innovations in technology as well as recent and pending regulatory changes. The new Communications Law Section is intended to bring together attorneys with experience in the communications industry to better serve clients in the Utah market. The purposes of the Section are broadly defined and the Section’s meetings and CLE presentations will encompass everything from legal issues encountered by traditional broadcast companies to First Amendment issues.

Pro Bono Honor Roll

Fred Anderson – Guadalupe Clinic
Andres Alacon – Family Law Clinic
Lauren Barros – Family Law Clinic
Joseph Beane – Divorce Case
Nelda Bishop – Custody Case
Matt Boley – Housing Case
Sasha Brown – Family Law Clinic
Bryan Bryner – Guadalupe Clinic
Heather Carter-Jenkins – Housing Case
Danielle Dallas – Guadalupe Clinic
Annie Deprey – Divorce Case
Sandy Dolowitz – Domestic Manual

Mentors Needed for the New Lawyer Training Program

Join the best and the brightest group of Utah lawyers and become a mentor for a new attorney through the New Lawyer Training Program (NLTP)

What is Required:
1. Submit the mentor volunteer form
2. Approval by the Utah Supreme Court Committe on Professionalism
3. Meet with your new lawyer a minimum of two a month.

The rewards that come from mentoring are priceless, but as an added bonus you will receive 12 hours of CLE credit for your work.

Bar Thank You and Welcome to New Admittees

Over 300 new admittees were welcomed into the Utah State Bar at the October 23, 2008 admission ceremony, held at the Salt Palace. A sincere thank you goes to all the attorneys who donated their time to assist with the July 2008 Bar exam. Over 86 attorneys volunteered their time to review the Bar exam questions and grade the exams. The Bar greatly appreciates the contribution made by these individuals and gives a big thank you to the following:

Bar Thank You and Welcome to New Admittees

Over 300 new admittees were welcomed into the Utah State Bar at the October 23, 2008 admission ceremony, held at the Salt Palace. A sincere thank you goes to all the attorneys who donated their time to assist with the July 2008 Bar exam. Over 86 attorneys volunteered their time to review the Bar exam questions and grade the exams. The Bar greatly appreciates the contribution made by these individuals and gives a big thank you to the following:

Attorney Discipline

ADMONITION
On July 18, 2008, the Vice-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 1.2(c) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.2(d) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

The Paralegal Division of the Utah State Bar has concluded our 2008 Salary Survey. We thank you for your participation and invite you to check out our analysis of the survey data coming soon on our website, www.utahparalegals.org. Additional coverage of the survey results will appear in the January/February 2009 edition of the Utah Bar Journal.

Thank you,
Salary Survey Committee
Paralegal Division, Utah State Bar

When Witnesses Attack: Dealing With Third-Party Harassment and Threats
by Karen McCall

Despite the adversarial nature of most legal proceedings, the parties involved normally conduct themselves in an appropriate and civil manner. However, as many of us know firsthand, there are exceptions to this rule. While threats or other alarming or dangerous behavior toward legal professionals are perhaps seen, or at least reported, more frequently in family law, no one in any practice area is immune.