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March 2010 Archives

March 9, 2010

Volume 23 No. 2 March / April 2010


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* Letters to the Editor
* President-Elect & Bar Commission Candidates
* President’s Message: Helping Unemployed/Underemployed Lawyers
* Articles:
* Domestic Asset Protection Trusts: A Comparison of the Laws of Utah and Wyoming
* Alternative Dispute Resolution Procedures with IRS Appeals
* Attorney Volunteers in Court
* Services for Attorneys at the Utah State Law Library
* Evaluating Judicial Performance: 28
How Judges Can Earn High Marks Even

Letters to the Editor

The Utah Bar Journal has been receiving and publishing word of lawyers who do pro bono work at various clinics, and that work is commendable indeed. Not published in these lists, however, are the names of those who do their alms in secret. Recently I was blessed by someone from the latter group.

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Helping Unemployed/Underemployed Lawyers

by Stephen W. Owens

I have been talking to and meeting with a number of unemployed/underemployed lawyers who are definitely feeling the contracted economy. The sun will come out tomorrow, but until it does, here are some ideas:

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Domestic Asset Protection Trusts: A Comparison of the Laws of Utah and Wyoming

by Timothy O. Beppler and Christopher M. Reimer

In recent years, asset protection has gone from a niche industry to a mainstream area of estate planning. Whereas estate planning lawyers were once primarily concerned with minimizing taxes, since the 1980s they have focused increasingly on asset protection. The surge of interest in asset protection tools can be attributed to a variety of factors, including bankruptcy reforms and the perception of a growing risk of liability, whether from tort, contract, or professional conduct. One viable option for clients seeking to place assets beyond the reach of future creditors consists of the asset protection trust. A number of states have enacted statutes making self-settled spendthrift provisions enforceable, subject to certain conditions. The Rocky Mountain region has been no stranger to this trend, with the recent enactment of domestic asset protection trust statutes in Utah and Wyoming. This article will examine the requirements and relative benefits of Utah and Wyoming as a situs for an asset protection trust.

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Alternative Dispute Resolution Procedures with IRS Appeals

by Peyton H. Robinson

The IRS has a formal, administrative process available to taxpayers for resolving proposed adjustments resulting from audits. In the Appeals Office, taxpayers are able to meet with an officer who is required by his or her position to be independent from any other IRS function, in order to try to resolve a dispute without litigation. See 26 C.F.R. § 601.106 (2009). The Appeals program has been moderately successful, but the IRS would like to make it more so by broadening its alternative dispute resolution (“ADR”) functions into mediation and arbitration, and allowing these processes for a variety of different types of taxpayers. These efforts have been in conformity with the IRS Restructuring and Reform Act of 1998, P.L. 105-106, see 26 U.S.C. § 7123 (2000), which directed the IRS to implement procedures to allow a broader use of early appeals programs and to establish procedures that allow for ADR processes such as mediation and arbitration.

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Attorney Volunteers in Court

by Nicole Farrell

The Litigation Section of the Utah State Bar and the Administrative Office of the Courts are launching a new program that they hope will help remedy two problems – underemployed attorneys and a heavily burdened state court system – that have worsened as a result of difficult economic times.

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Services for Attorneys at the Utah State Law Library

by Mari Cheney

A variety of free and low-cost services are available at the Utah State Law Library. Even though the law library is physically located in Salt Lake City, many of the library’s services are available to attorneys throughout Utah via our document delivery service and the Utah State Courts’ website.

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Evaluating Judicial Performance: How Judges Can Earn High Marks Even From Those Who Lose

by Jennifer MJ Yim

Conventional wisdom suggests that 50% of people appearing in court will walk away unhappy with their judge, their attorney, and the legal system in general. How could a criminal defendant sentenced to prison have positive things to say about the judge? When the Judicial Performance Evaluation Commission (JPEC) first discussed the statutory requirement to survey litigants and witnesses about judicial performance, some commissioners questioned how such surveying could result in anything but a 50-50 split, with winners praising the judge and losers voicing dissatisfaction. Many judges believe they are powerless to prevent half the participants leaving their courtrooms unhappy.

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Better Late than Never – Implied Warranties of Workmanlike Manner and Habitability Now Available in Utah

by Timothy R. Pack

I must make a confession: Sometimes I am dead wrong. I have misstated a rule or legal principle to a client before, insisted to my wife that pizza is best eaten cold, and lectured friends that this year was Greg Ostertag’s year. And sometimes, just sometimes, after I realize my mistake and the bone-headedness of my statements, I admit that I was wrong and see the good sense and reasonableness in the right answer. Although I have not been practicing law for very long, I have found, surprisingly, that it is hard to get lawyers to admit that they were wrong. So when the Utah Supreme Court admits that it was wrong, and goes so far as to publicly state it, and in writing no less, I take notice and commend the court.

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Avoiding General Solicitations in a Securities Private Placement

by Jason D. Rogers, Christopher A. Scharman, and Brad R. Jacobsen

Other than the most mature and profitable businesses, all businesses need to raise capital. Due to the broad definition of the term “security,” capital investments other than bank loans will generally be deemed a security. All sales of securities generally must either be registered with the Securities & Exchange Commission (the “SEC”), or be exempt from registration. Since few Utah businesses have registered an offering of securities with the SEC, most Utah businesses seeking non-bank funding must find an exemption from registration.

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Upcoming Events

New Lawyers Survivor’s Guide CLE Seminar
Dates: April 9
Times: TBD
Location: Utah Law & Justice Center
645 South 200 East
Salt Lake City, Utah.

The Utah State Bar and the YLD are teaming up to provide new lawyers with the information that they need to practice law in a changing economy – successfully starting a solo law practice, getting and keeping your first client, interviewing tips and secrets, advice from seasoned lawyers, and other information to help you succeed. Additional information will be announced by email and on the YLD website at www.utahyounglawyers.org.

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The Litigation Paralegal: Tips and Advice for Assisting in all Phases of Ligitation

by Heather Finch

The Role of the Paralegal
While most attorneys are becoming more accustomed to including a paralegal in their litigation teams, they do not always know how to make maximum use of a paralegal’s skills and talents. You can increase your involvement and responsibility in a case by developing a strong and open line of communication with the attorneys and then by doing good work.

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About March 2010

This page contains all entries posted to Utah Bar Journal in March 2010. They are listed from oldest to newest.

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