Utah Bar Journal

Volume 22 No. 5 Sep/Oct 2009

PDF Version

COVER: Milk Weed at Flaming Gorge, by three-time contributor, Paul Amann, Salt lake City.

• President's Message: Protecting the Critical Role of our Fair and Impartial Courts


• Judicial Independence and Civics Education


• Utah Law Developments - Summary of Significant Utah Supreme Court Cases 2008-2009


• Should We Put the Death Penalty on the Chopping Block?


• Analyzing Mechanics' Lien Claims: A Few Suggestions


• Utah LLCs vs. Other State LLCs: When Should Attorneys Consider Forming LLCs Outside Utah?


• Before the Utah Bar Jounal


• State Bar News: Attorney Discipline


• Young Lawyer Division: Young Lawyer Division Celebrates Pro Bono Opportunities


• Paralegal Division: Propagating Paralegal Punditry

by Stephen W. Owens

It is a pleasure to take over the reins of the Utah State Bar from Nate Alder, our outgoing President, who has done an extraordinary job. It is also delightful to associate with our very
competent, hard-working, and experienced Bar Commission and Bar Staff (including John Baldwin, Richard Dibblee, and Connie Howard).

I love lawyers and the law. My dad was a lawyer. My brother is a lawyer. I also have plenty of relatives who have found themselves on the other (criminal) side of the law! I will always speak up to defend the value of lawyers to society and their important role in preventing and peacefully solving problems.

by Justice Ronald E. Nehring

Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of the 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, Justice Nehring’s handout is reprinted here. (Judge McHugh’s handout was
reprinted in the July/August 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.

Editor’s Note: Justice Sandra Day O’Connor addressed the Utah State Bar on July 18, 2009 at the Bar’s Summer Convention in Sun Valley, Idaho. Her speech was met with great enthusiasm and we are grateful that she has given her permission to have her remarks published here.

It’s too early to stand up. And I like those introductions from your chairman’s two daughters, whom I’ve met, they’re great. What he could have told you is much shorter, he could have told
you I’m just an unemployed cowgirl now.

It’s early in the day. I’m very impressed to see so many of you out at this early hour, very impressive indeed. I’m so glad to be invited to come to Sun Valley. Through the years my family and I have visited Sun Valley a number of times, most often in winter to have a little skiing, but other times too. And it’s just a great spot for any gathering.

by Ralph Dellapiana

Deaths due to violence are always tragic. Most especially affected are the victims’ families. And, in a broader sense, all of us are diminished.

Some homicides have aggravating factors that allow them to be charged under Utah’s aggravated murder statute. See Utah Code Ann. § 76-5-202 (2009). Inherent in every aggravated murder case is the critical moral question of whether or not to seek the death penalty. New Jersey repealed its death penalty in 2007 and replaced it with a maximum sentence of life in prison without possibility of parole, as did New Mexico in 2009. Bills to abolish the death penalty are also pending in a few other states.

by Spencer Macdonald

A few years ago I inherited a case in which I was defending my client against a mechanics’ lien. Shortly into the case I realized that the plaintiff had filed the lawsuit thirteen months after recording the lien, far outside the statutory requirement of 180 days. I called opposing counsel and explained that the untimely filing of the suit was fatal to his client’s lien claim. Plaintiff’s counsel (who, by this point, had run up tens of thousands of dollars in fees) reluctantly conceded the point and agreed to dismiss the lien claim. And because the lien statute was the sole basis for the plaintiff’s right to recoup its fees, the plaintiff decided to cut its losses and settle the case for pennies on the dollar.

by Justin J. Atwater and Russell K. Smith

Since Wyoming’s passage of the first limited liability company (“LLC”) statute in 1977, the LLC has grown to be a favored form of business entity, not only in Utah, but throughout the nation. This is largely because of the flexibility of an LLC and its hybrid feature of corporate protection coupled with partnership taxation.

All states and the District of Columbia have adopted LLC statutes, and many of these statutes have been substantially amended several times. These statutes vary considerably in both form and substance. Many of the early statutes were based on the first version of the ABA Model Prototype Limited Liability Company Act (the “Prototype Act”) while a few of the later statutes were based on the Uniform Limited Liability Company Act (“ULLCA”). Because of important differences between the various statutes, attorneys have the opportunity to forum shop and choose the LLC statute which best fits a particular client’s needs.

by Mari Cheney

The Utah Bar Journal has existed in its present form since 1988. Before that, a variety of publications acted as a state bar journal to provide information to members. Because there
have been so many incarnations of publications acting as the official journal of the state bar, it is sometimes difficult to locate specific articles because many of these publications are often
casually referred to as the bar journal. To make things even more confusing, during the 1970s and 1980s, multiple bar publications overlapped to provide information to attorneys.

Valuable information can be found in these publications, including old court rules and commentary on newly enacted laws.

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. Should you have questions regarding your CLE compliance, please contact Sydnie Kuhre, MCLE Board Director at skuhre@utahbar.org or (801) 297-7035.

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 this rule.

The Utah State Bar is currently accepting applications to fill vacancies on the 14-member Ethics Advisory Opinion Committee. Lawyers who have an interest in the Bar’s ongoing efforts to resolve ethical issues are encouraged to apply.

The charge of the Committee is to prepare and issue formal written opinions concerning the ethical issues that face Utah lawyers. Because the written opinions of the Committee have
major and enduring significance to members of the Bar and the general public, the Bar solicits the participation of lawyers who can make a significant commitment to the goals of the Committee and the Bar.

ADMONITION
On June 15, 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 1.4(a)
(Communication) and 8.4(a) (Misconduct).

In summary:
An attorney was hired to represent a client in a personal injury case. For approximately eight months the attorney rarely communicated with the client. The client contacted the attorney’s office and spoke with a staff member on numerous occasions attempting to find out about the case. When the client asked for status updates, the attorney failed to comply.

As the Utah State Bar prepares for the upcoming American Bar Association’s (“ABA”) National Pro Bono Celebration October 25-31, 2009,1 I would like to highlight a few of the pro bono and service opportunities offered by the Young Lawyers Division (“YLD”). If you would like to get involved in these or other YLD activities, please visit www.utahyounglawyers.org or contact Michelle Allred at allredm@ballardspahr.com.

by Aaron L. Thopmson

In all my years working in the paralegal profession one alliteration has forever influenced my daily decisions; “Prior Preparation Prevents Pretty Poor Performance.”

I recently became the newest Chair of the Utah State Bar Paralegal Division. With the welfare of our division weighing heavily on my mind I can not help but naturally assume the role as its Chief Cheerleader, incessantly proclaiming the diverse benefits that paralegals provide to the legal profession. And yet this single resounding alliteration continues to reverberate the inherent
significance of our state’s paralegals ever so naturally.