Utah Bar Journal

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President’s Message: Don’t Tax Justice

Articles: The Slope of Utah Ski Law 10

The Utah Minority Bar Association and Ripples of Hope

Ethical Conundrum? Try Asking the Ethics Advisory Opinion Committee

Utah Law Developments: A Plaintiff Attorney’s View of Sorenson v. Barbuto

Should Utah Lawyers Stop Forming Utah LLCs?

Online Judicial Performance Evaluation Survey: Why You Shouldn’t be Afraid

The Not-So-Secret Crucible of Bankruptcy

Book Review: Samurai Lawyer

State Bar News

Young Lawyer Division: Tuesday Night Bar: A Model Pro Bono Program

Paralegal Division: UDVC, Not Just Another Abbreviation

by Stephen W. Owens

Our legislature goes back to work shortly, facing another tremendous budget shortfall. Certain policy groups and politicians are considering trying to expand the state’s tax base to include a tax on professional services, which obviously would include lawyers. This consideration is due to the downward shift in Utah’s economy and the belief that Utah’s sales tax structure is still based on archaic manufacturing models rather than services-based realities.

by David S. Kottler

This article marks the thirtieth anniversary of the Utah Legislature’s 1979 enactment of Utah’s Inherent Risks of Skiing Act. See Utah Code Ann. §§ 78B-4-401 to -404 (2009). Since then, national statistical studies tell us that there have been approximately 900 ski/snowboard related fatalities and over five million ski/snowboard related injuries. Each year, Utah’s slopes can expect to see about three fatalities and over 10,000 injuries. While the vast majority of these accidents are not actionable, it is nonetheless surprising that the entire body of Utah ski law consists of only a handful of reported cases – in a state which boasts “The Greatest Snow on Earth” and around four million skier visits annually. Despite the scant volume of ski-injury litigation in Utah, the statistics above suggest that many Utah attorneys will confront the issue at some time in their career. This article attempts to provide a general framework in which to understand, evaluate, and advise clients about the slope of Utah ski law.

by Scott M. Matheson, Jr.

EDITOR’S NOTE: Scott M. Matheson, Jr. addressed the attendees of the Utah Minority Bar Association’s annual scholarship banquet on October 23, 2009. We are pleased that he has given his permission to have his remarks published in the Bar Journal.

by Roger A. Kraft

In early July 2008, the family of David James Bell (D.J.) walked into my office and hired me to represent D.J. on two counts of first degree felony child kidnapping and one count of second degree felony burglary. The family informed me that two neighbor children ended up in D.J.’s house, which resulted in the brutal beating of D.J. and his partner, Dan Fair, by the family of the two children. D.J.’s family paid a fairly handsome retainer expecting the best defense possible, and I promised them everything short of guaranteeing them an acquittal. I wanted this case and I was ready to do whatever was necessary to get a positive result. However, there was a problem. I had a guy who had just been arrested for kidnapping two children and, in a recorded police interview, said, “I took the children, I know I shouldn’t have.” Additionally, D.J. was gay, and I was going to have to deal with the social and political issues that went along with this case. The media latched onto the case immediately, adding another element to deal with.

by Meb W. Anderson

It is five minutes to five and you are sitting in your office just about to leave for the weekend, when of course the phone rings. It is a former client calling from the county jail. He asks you to mail him his entire client file. You say, “OK, I’ll locate it and send it to you,” and you hang up. On the drive home, you recall that this particular client file contains explicit crime scene photos, third-party medical reports, victim identification information, psychological and psychosexual evaluations, and so on, and you also recollect that a number of these documents are subject to court-ordered restrictions. You also recall, albeit faintly, that at some point in your career someone told you that when a former client requests the file, the Utah Rules of Professional Conduct define what constitutes the file, and require that most, if not all, of it should be turned over to the client.

by Brent Gordon

In Sorenson v. Barbuto, 2008 UT 8, 177 P.3d 614, the Utah Supreme Court prohibited informal ex parte contacts between insurance defense attorneys and plaintiffs’ treating physicians. The supreme court directed insurance defense attorneys to “confine their contact and communications with a physician who treated their adversary to formal discovery methods.” Id. ¶ 27. The court explained that formal discovery is necessary, because physicians and insurance attorneys are not reliable sources to ensure that privileged medical communications are not disclosed during ex parte conversations. See id. ¶ 23.

A Response to Smith/Atwater

by Brent R. Armstrong

Stop Forming LLCs in Utah – Form them in Delaware! That’s the recommendation of two Utah lawyers, Russell K. Smith and Justin J. Atwater, in their article published in the Sep/Oct 2009 issue of the Utah Bar Journal.

Introduction

by Karen Wikstrom

Introduction – Survey is going online

In 2008, the legislature changed the way Utah judges are evaluated as part of the judicial retention process. In the past, the Administrative Office of the Courts, through an independent contractor, administered a survey to attorneys and jurors that requested information about the judge’s performance, demeanor, legal knowledge, and temperament. This information was then reported to voters as part of the official voter information packet prepared by the Lieutenant Governor to help inform the public about the judges standing for a retention vote.

by J. Robert Nelson

Judging by the popularity of some recent novels, there seems to be a deep-rooted fascination with the mysterious world of codes, secret symbols, and rituals. For some, my topic is equally arcane – the implications of a bankruptcy filing for the dealings, transfers, and transactions that precede it.

by Harold G. Christensen

Reviewed by Cathy Roberts

In his book Samurai Lawyer, Harold G. Christensen describes a colleague who paced the hall of the courthouse, smoking one cigarette after another while the jury deliberated. Every time this attorney walked out of the courtroom after a trial, whether he had won or lost, he said he felt as if he had left a part of himself at the counsel table. “He died at a young age without realizing he was trying to do the work of the jury,” Christensen writes.

ADMONITION

On September 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 4.2(a) (Communication with Persons Represented by Counsel) and 8.4(a) (Misconduct).

by M. Michelle Allred

The Young Lawyers Division (“YLD”) is dedicated not only to assisting young lawyers in the practice of law, but also to improving the availability of legal services to the public. Each year, the YLD offers an array of programs and services to the community, providing young lawyers with the opportunity to volunteer for several hours or several days.

UDVC, Not Just Another Abbreviation

by Heather A. Roberson

Prior to becoming a corporate paralegal, I spent eight years after graduating from college working for both the local domestic violence shelter and the Salt Lake City Police Department Victim Advocates performing on-scene crisis intervention and counseling victims of violent crimes. I worked with victims, survivors and abusers alike. After two homicides which impacted me personally, I decided to take a different career path. However, after an eight year hiatus in the for-profit business world, I decided to serve again and started to volunteer for the Utah LinkLine – a statewide domestic violence resource hot line. I am amazed at the number of people who are not familiar with the issues of domestic violence. This includes attorneys, paralegals, and their clients, all of whom could benefit from this information.