Utah Bar Journal

Volume 22 No. 4 July/August 2009

PDF Version

COVER: Maybird Gulch, Little Cottonwood Canyon, by first-time contributor, Wally Lloyd, Salt lake City.

• President's Message: Looking Back, Looking Forward


• Family v. Institution - Advising Clients on the Selection of a Successor Trustee


• Utah Law Developments - Decisions from the Utah Court of Appeals, 2008


• Judge David K. Winder: A Model Mentor and Judge


• Twenty Years of Bar Operations


• Never Litigate as a Matter of Principle - Unless, of Course, You're Being Accused of Speeding on a Bicycle


• In Defense of the Collection Lawyer


• Preparing for Future Development: Government Entities and Developers Should Take Time to Solve Problems that Arose During the Recent Market Boom


• Utah Law Developments: Noteworthy Laws Passed During the 2009 Legislative Session


• State Bar News: Attorney Discipline


• Young Lawyer Division: Thank You to the 2008-2009 Young Lawyer Division Executive Council


• Paralegal Division: 20th Anniversary of Paralegals' Day - Recipient of Utah's 2009 Distinguished Paralegal of the Year Award

by Nathan D. Alder

No leader knows exactly what he or she will face when taking over the reins of an organization. We anticipate, and hope, that things will turn out in our favor, and that we can positively influence the issues. Sometimes it may turn out easier to serve than one might originally expect; other times it may be exactly as envisioned. But sometimes the service required of a leader is heightened and intensified by dramatically changing conditions. Leaders must rise to the occasion and shepherd their cause to safety when storms suddenly appear.

by Scott M. McCullough and David W. Macbeth

A trustee is a trusted fiduciary who holds the utmost responsibility and duty in caring for another’s assets. This is not just a duty of care and loyalty, not just the morals of the marketplace and not just honesty alone, but the “punctilio of an honor the most sensitive.” Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (N.Y. 1928). This statement from Judge Cardozo has long been recognized and repeated as the classic statement for describing fiduciary duties, duties held by every trustee.

by Judge Carolyn B. McHugh

Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of last year’s important Utah appellate decisions at an Appellate Practice Section luncheon on April 20, 2009. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, Judge McHugh’s handout is reprinted here, with her permission. (Justice Nehring’s handout will be published in a future issue of the Bar Journal.) Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

by Jeffrey J. Hunt

With the recent passing of United States District Judge David K. Winder, members of the bar have been celebrating his life and legacy with countless courtroom stories, memories, and reflections of our interactions with this extraordinary judge and man.

As his friend and former law clerk, I mourn the loss of this humble, decent man while cherishing my memories of him and the valuable lessons he taught me and so many others about life and the law. As the Utah bar moves this year to mentor-based training for new lawyers, I can think of few better examples of a model mentor than Judge Winder.

by Nathan D. Alder, President, Utah State Bar

Over the past three years, the Supreme Court, Bar Commission, Bar staff, and certain Bar committees have engaged in extensive reviews of Bar governance, operations, regulatory obligations, financial status and investments, member services, and public programs. At the direction of the Court, the Commission retained the services of Grant Thornton to conduct a non-financial audit of Bar governance and management. That report included several recommendations, one of which was an extensive review of the Bar’s operations. Through Court direction, the Bar then conducted five extensive year-long reviews (management and technology, communications, admissions, access to justice, and member benefits) by July 2008, and will finish five more reviews (professional conduct, continuing legal education, building and property, fee dispute resolution, and client security fund) by this July. As an outside provider, the Grant Thornton review came at a significant financial cost. The remaining two years of operational reviews have been conducted by volunteers, namely Bar Commissioners, key bar leaders and members, in order to ensure that no additional cost would be incurred by the Bar for such reviews. I would like to thank those volunteers for the many thousands of dollars in time donated to this intensive review of the Bar’s finances, assets, operations, and programs.

by Jon Schofield

Last summer, I got a speeding ticket for going 37 mph in a 25-mph zone. So what? Speeding tickets are given out all the time. Right? But I was on my bike. I mean, who gets a speeding ticket on a bicycle? After thinking about it, I began to question whether I was really going that fast, and even if I was, I had a legal argument that the speed limit should not apply to a cyclist. So, I decided to fight my ticket, and, after some time, my case finally went to trial (yes, the wheels of justice seem to turn about as fast as my cadence pedaling up Little Cottonwood Canyon). Here is how it all went down.

by Lawrence R. Peterson

I was recently in a meeting of collection lawyers who were telling stories about their recent experiences with bar commissioners, court administrators, judges, and other attorneys where collection lawyers as a class were referred to with ridicule or contempt. I guess it is not surprising that these supposedly knowledgeable officers of the court should be prejudiced, since they are people first and professionals only second. Times are hard. But legal professionals should know better than the average Joe that the villain is not the lawyer. Properly viewed, the collection lawyer is an important force for creating that prosperity and commerce that everyone now longs for – not to mention being an agent for fairness and justice.

by Brent N. Bateman

The bottom fell out of the real estate market in 2007. By all accounts, Utah land development was a conflagration for several years. Steady, almost exponential growth of home sales, home
building, and real property values led to a tremendously opportune atmosphere for real property development. See, e.g., Diane S. Gillam & Francis X. Lilly, Construction in Utah Shatters Records in 2005, Utah Construction Report, University of Utah Bureau of Economic and Business Research, Vol. 48, No.4 (October, November, December 2005). Landowners and developers benefited by generously feeding the nearly insatiable market demand. Builders benefited by plentiful work and hardy sales. Communities benefited by a steady and healthy inflow of population, infrastructure, and development application fees.

by Jeffry R. Gittins

During the 2009 General Legislative Session, almost 400 bills were passed. This article presents a brief summary of a few bills enacted during the session that may be of interest to members of the Utah Bar.

Private Attorney General Doctrine
Senate Bill 53, Awarding of Attorney Fees, abolished the private attorney general doctrine, a common law doctrine under which a court could award attorney fees to a plaintiff who vindicated a strong or societally important public policy. S.B. 53 is in direct response to the recent cases of Utahns For Better Dental Health- Davis, Inc. v. Davis County Clerk, 2007 UT 97, 175 P. 3d 1036, and Culbertson v. Board of County Commissioners, 2008 UT App 22, 177 P. 3d 621. In both of these cases, the district court had denied the plaintiffs’ request for attorney fees under the private attorney general doctrine, but the appellate court reversed the district court and held that the plaintiffs were entitled to attorney fees under the doctrine. Under S.B. 53, courts cannot award attorney fees under the private attorney general doctrine in any action filed after May 12, 2009.

ADMONITION
On April 17, 2009, 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 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

In Summary:
An attorney was hired to represent a client in a Social Security Administration matter. After the briefing schedule was set, the attorney missed the first deadline to file the brief on behalf of
the client. The attorney asked for an extension and was givenone. The attorney missed the deadline and asked for extensions six additional times. Ultimately, when the brief was not filed after the seventh extension of time, the Commissioner filed a Motion to Dismiss for failure to prosecute the claim. The attorney did not respond to the Motion to Dismiss on behalf of the client. The attorney failed to notify his client of the Motion to Dismiss. The case was dismissed. Although the attorney filed an appeal of the dismissal, the U.S. District Court upheld the dismissal. The attorney’s explanation for not filing the pleadings was that he
had delegated preparation of the documents to his paralegal.

by Michelle Allred

The Utah State Bar Young Lawyers Division (“YLD”) would like to thank the following attorneys and paralegal liaisons for their tremendous service as volunteer leaders on the YLD Executive
Council during the 2008-2009 bar year. Because of their willingness to devote their time and energy, the YLD offered significant contributions to the Bar and to members of the public through a variety of programs, services, and events.

If you are interested in volunteering with the YLD in the future, please contact Michelle Allred, 2009-2010 YLD President, at allredm@ballardspahr.com. For more information about the
YLD, please visit www.utahyounglawyers.org.

by Julie L. Eriksson and Sharon M. Andersen

On May 21, 2009, the Paralegal Division and the Legal Assistants Association of Utah (LAAU) came together to celebrate the 20th anniversary of Paralegals’ Day, originally designated as
Legal Assistants’ Day on June 15, 1989, by Governor Norman Bangerter. Subsequent declarations, signed by Govs. Michael Leavitt and Olene Walker in 1994 and 2004, respectively, have set aside the third Thursday of each May to honor all Utah paralegals and
their contributions to the legal profession.

This year’s event, held at the Grand America, featured an address on “Civility in the Legal Profession and Civility in Everyday Life,” presented by Associate Justice Matthew M. Durrant of the Utah Supreme Court. The 4th Annual Distinguished Paralegal of the Year Award, co-sponsored by the Paralegal Division and LAAU, was also given out. This award is presented to the Utah paralegal who, over a long and distinguished career, has, by his/her ethical and personal conduct, commitment and activities, exemplified the epitome of professionalism, as well as rendering extraordinary contributions coinciding with the purposes of the Paralegal Division and LAAU as set forth in their bylaws.