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March 2009 Archives

March 6, 2009

Volume 22 No. 2 March/April 2009

Volume 22 No. 2 March/April 2009


PDF Version

COVER: Lake Blanch, Sundial Peak, Big Cottonwood Canyon, by Heather Finch, Provo, Utah

  • President-Elect & Bar Commission Candidates

  • President's Message: Change

  • President Elect's Message: Group Health Insurance Options

  • Recent Changes to Federal Employment Laws Will Affect Utah Companies: Examining the ADA Amendments and New FMLA Regulations

  • Living With Twombly

  • Utah's Justice Court System, a Legal Charade

  • Got Trade Secrets? No? Guess Again

  • ERISA and Plan Administrator Conflicts - Analysis and Best Practices of the U.S. Supreme Court's Decision in Glenn

  • Researching Utah Administrative Law

  • UPDATE: Workers' Compensation & Liability Lawyers Beware: Section 111 of the MMSEA Imposes Signigicant New Penalties for Failing to Protect Medicare's Interests

  • State Bar News (Attorney Discipline)
  • President-Elect and Bar Commssion Candidates

    President-Elect Candidates

    jeffs_rob.jpgRob Jeffs

    For almost six years, I have had the pleasure of serving the members of the Utah State Bar as a Commissioner. During that time, we have implemented many new projects, policies, and programs to improve the practice of law and the administration of the Bar, including Blomquist-Hale counseling services, a new diversion program for certain OPC cases, e-bulletins, web surveys, e-mail communications, a web-based lawyer referral program, the outside audit of the Bar, a comprehensive review by the Commission of all programs, operations and services, and the adoption of the New Lawyer Training Program.

    In these difficult economic times, the Bar must be a community leader and develop ways to assist members in their practices. In addition, the Bar needs to serve as ambassador to the Legislature and the public. Programs like the Young Lawyers’ “Wills for Heroes” serve the community and enhance the public’s view of lawyers. We all benefit when the public appreciates the vital role of lawyers and the Judiciary in society. If elected President, I pledge to serve you by delivering services to assist your practice and programs to improve the profession’s stature in the community. I would be honored to serve and ask for your vote.

    King_Felshaw.jpgFelshw King

    The Mission Statement of the Bar is “to represent lawyers and serve the public.” The first duty of the Bar is to represent its members. During my time as a Commissioner the Bar has adopted Casemaker, improved the Lawyers Helping Lawyers/Blomquist Hale program, created the Mentoring Program and adopted a long range plan, which includes review and audit of each program of the Bar.

    To remain vibrant and viable the Bar must build on the momentum created and utilize the skills of young lawyers, who are the life blood of the Bar, as well as support women lawyers, the minority bar, and other specialized bar groups. Sections should be independent while receiving support from Bar staff. We must continue to develop legislative relationships and support the judiciary. I will make these goals a priority.

    Even though the country is currently undergoing difficult economic times, the Bar can fulfill its core responsibilities without an increase in Bar dues. I will not support any increase of dues and will oppose taxing of legal fees.

    My experience as a legislator, president of a national organization, and years of service as a Commissioner qualify me to serve as President-Elect. I ask for your support.

    Continue reading "President-Elect and Bar Commssion Candidates" »

    March 5, 2009


    by Nathan D. Alder

    Even as I write this I know that the landscape will change by the time you read this. So much is happening right now. Bar leaders are working very hard to stay on top of all the issues and concerns we face as a profession; now more than ever we need member involvement. It is an honor to be able to serve you at this critical time.

    I submit that the Utah State Bar must change as the world changes around us. We need to respond to this rapidly developing environment and make correct decisions that will serve the Bar’s mission well into the future. Don’t be fooled by the notion that our law practices, our profession, the courts, and the Bar will not be affected by what is happening around us. Please allow me to share some thoughts on a variety of issues.

    Continue reading "Change" »

    Group Health Insurance Options

    by Stephen W. Owens

    One of the primary functions of The Utah State Bar is to identify and provide members with programs and services which improve opportunities and quality of life for our members. One of the most common frustrations for our membership has been the ever increasing cost of providing healthcare for attorneys, employees, and families.

    Continue reading "Group Health Insurance Options" »

    Changes to Federal Employment Laws Will Affect Utah Companies

    Examining the ADA Amendments and New FMLA Regulations

    by Christopher Snow and Sarah Campbell

    Significant overhaul of both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) means that businesses nationwide, including those in the state of Utah, must understand and implement new practices related to the interpretation of disability and requests for leave. Changes to these two laws went into effect at the beginning of 2009.

    Continue reading "Changes to Federal Employment Laws Will Affect Utah Companies" »

    Living With Twombly

    by John H. Bogart

    On May 21, 2007, the United States Supreme Court handed down Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Just short of two years have passed since Twombly was decided, time enough to assess its impact on pleading and motion practice in the federal courts. We can now answer the question of whether Twombly was an antitrust pleading case or a federal civil pleading case.

    The issue before the Supreme Court in Twombly was how much detail must a plaintiff allege in order to state a claim for conspiracy under Section 1 of the Sherman Act? May a plaintiff rest with allegations of parallel conduct by several defendants, or is a plaintiff required to allege something more in order to state a claim for conspiracy? In Twombly, the plaintiffs, based on a history of parallel conduct, had alleged a conspiracy among telecommunications companies not to compete against one another and to block entry of new local service providers.

    Continue reading "Living With Twombly" »

    Utah's Justice Court System, a Legal Charade

    by Mike Martinez

    One December night a West Jordan City police officer was “trolling” cars parked at Wal-Mart. While randomly entering license plate numbers into her computer, the officer discovered Christopher Goodman’s automobile was uninsured. When Goodman exited the store and drove onto a public street the officer ticketed him.

    Goodman’s trial was before the West Jordan City Municipal Judge. Goodman was found guilty and fined. That was not unusual. After canvassing numerous monthly reports filed by municipal courts with the Administrative Office of the Courts, Goodman discovered that city judges impose a fine on nearly every defendant appearing before them.

    Continue reading "Utah's Justice Court System, a Legal Charade" »

    Got Trade Secrets? No? Guess Again.

    by Thomas D. Boyle

    What do restaurants, insurance companies, and technology businesses have in common? If they’re successful, chances are good they all have trade secrets.

    Like a king who secures the kingdom’s greatest treasures deep inside the castle walls, so too must business owners protect trade secrets. Otherwise, business owners may lose the ability to protect the heart of their business because of a quirky statute of limitations issue that could easily go unnoticed.

    Continue reading "Got Trade Secrets? No? Guess Again." »

    ERISA and Plan Administrator Conflicts

    Analysis and Best Practices of the U.S. Supreme Court’s Decision in Glenn

    by Michael P. Barry

    In the health care benefits industry, plan administrators commonly fill the dual roles of evaluating benefit claims and paying claims. This scenario, however, can cause administrators to face an inherent conflict of interest. In 1989 the U.S. Supreme Court established the standard of judicial review for such conflicts in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). The Firestone Court found that under the principles of trust law, a conflict of interest is just one of several factors a court should weigh to determine whether an administrator has engaged in an “abuse of discretion.” See id. 108-16.

    In its most recently completed term, the Supreme Court again confronted the issue of a conflicted administrator in Metropolitan Life Insurance Co. v. Glenn, 128 S.Ct. 2343 (2008). This time around, the Supreme Court considered how much weight a conflict should receive on judicial review. This article will take an in-depth look at Glenn, and discuss the best practices for plan administrators, fiduciaries, and employers in light of this case.

    Continue reading "ERISA and Plan Administrator Conflicts" »

    Researching Utah Administrative Law

    by Jessica Van Buren and Mari Cheney

    Your client may have violated a Department of Environmental Quality rule. As you investigate the situation, you discover that the department may have fined your client wrongly thirty years ago, but you are having a difficult time locating the agency’s administrative rule as it existed then.

    Researching administrative rules is not as complicated as it may first seem. Although it is true that it is easier to find information about a rule after 1987, do not give up hope if you need information about an older rule.

    Continue reading "Researching Utah Administrative Law" »

    Workers' Compensation & Liability Lawyers Beware

    Section 111 of the MMSEA Imposes Significant New Penalties for Failing to Protect Medicare’s Interests

    by Mark Popolizio and Carrie T. Taylor

    The following serves as an “update” to the information contained in an article published in the Utah Bar Journal, January, 2009, Vol. 22, No. 1.

    As noted in the article, the Center for Medicare & Medicaid (CMS) is currently in the process of releasing its Mandatory Insurer Reporting (MIR) guidelines to implement the provisions of Section 111 of the Medicare, Medicaid & SCHIP Extension Act (MMSEA).

    Subsequent to the preparation of the January article, CMS released its “Revised” Interim Record Layout (12/5/08 Version). In addition, CMS held its fourth national “Town Hall” teleconference on January 22, 2009, which was followed by a “Question and Answer” session on January 28, 2009. CMS released this information in relation to Section 111 compliance regarding “liability insurance (including self-insurance), no-fault insurance and workers’ compensation,” which is collectively referred to under the MIR as “Non-Group Health Plans” (non-GHP or NGHP).

    Continue reading "Workers' Compensation & Liability Lawyers Beware" »

    Attorney Discipline

    On November 26, 2008, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Roy D. Cole for violation of Rules 1.8(a) (Conflict of Interest: Current Clients: Specific Rules), 1.15(a) (Safekeeping Property), 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

    In summary:
    Mr. Cole was hired by a client that gave Mr. Cole Power of Attorney entrusting items of personal property to Mr. Cole. Mr. Cole accepted property from his client without the proper safeguards in place; without keeping records; and without keeping the client’s property separate from his property. Mr. Cole did not provide an accounting which was full, accurate, and timely to his client. Mr. Cole failed to take steps to protect his client’s interests upon termination of the representation.

    Continue reading "Attorney Discipline" »


    About March 2009

    This page contains all entries posted to Utah Bar Journal in March 2009. They are listed from oldest to newest.

    January 2009 is the previous archive.

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