Utah Bar Journal

PDF Version
President’s Message: The Dreaded Letter from OPC

Articles:

Conundrum Revisited
by David S. Dolowitz

Advising Your Clients (and You!) in the New World of Social Media:
What Every Lawyer Should Know About Twitter, Facebook, YouTube, & Wikis
by Randy L. Dryer

An Overview of Criminal Tax Fraud Cases and Consequences in the State of Utah
by Mark Baer & Alex Goble

Utah Law Developments: So Now What is My Deadline? Timing Changes to the Federal Rules

Book Review: The Guantánamo Lawyers
Edited by Mark P. Denbeaux and Jonathan Hafetz

State Bar News

Young Lawyer Division: Upcoming Events

Paralegal Division: The Law School Dilemma

by Stephen W. Owens

The Bar’s efforts can be broken down into four categories: Admissions, Discipline, Education, and Services. I would like to talk about the unpleasant topic of Discipline. Nothing can ruin a lawyer’s day like receiving a letter from the Office of Professional Conduct (OPC) advising the lawyer of a Bar Complaint.

by David S. Dolowitz

In the 1998 article, The Conundrum of Gifted, Inherited and Premarital Property in Divorce, Utah Bar Journal, Volume XI, No. 3, April 1998, the question of how courts treat gifted, inherited, and premarital property was explored. The inconsistency of the decisions of the appellate courts rotating between the fairly definitive language of Mortensen v. Mortensen, 760 P.2d 304 (Utah 1988), and the equitable approach actually effected in the Mortensen case and utilized in Burke v. Burke, 733 P.2d 133 (Utah 1987), was addressed and analyzed. A series of decisions from the Utah Appellate Courts was examined. These decisions traced the evolution of utilization of the Burke approach, that is, equitably deciding how to treat this property; sometimes returning it to the person to whom it had been gifted or who owned it before the marriage or by whom it was inherited during the marriage, other times treating it as though it was marital, utilizing equitable division principles.

by Mark Baer & Alex Goble

Benjamin Franklin, in a letter to Jean-Baptiste Le Roy in 1789, is credited with saying that “in this world nothing can be said to be certain, except death and taxes.” For this, Mr. Franklin is well known and credited. But another aphorism accredited to this great man is as follows: “There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the government.”

by Randy L. Dryer

By March of 2010, there were 200 million blogs worldwide, 450 million people on Facebook, 27 million tweets every 24 hours, and 1.2 billion YouTube views each day. These staggering statistics reflect the explosive growth social media has experienced over the past three years, which growth is expected to continue unabated in the future.

by R. Christopher Preston

On December 1, 2009, major changes took effect in the Federal Rules of Civil Procedure, affecting the time for filing nearly every document or pleading that one files in federal district court. Though at the same time changes were also made to the federal procedural rules governing bankruptcy and criminal cases, this article only addresses the timing changes to the Federal Rules of Civil Procedure (“Federal Rules”). In conjunction with these changes to the Federal Rules, the United States District Court for the District of Utah modified the timing provisions for some of its local rules. For the most part, these changes affect only how one calculates deadlines for filing documents or pleadings pursuant to the Federal Rules. The purpose of this article is to alert and educate readers on these recent changes.

by Stephanie Wilkins Pugsley

On May 15, 2010, a chapter in Utah’s judiciary closes. With the departure of Justice Michael J. Wilkins from the Utah Supreme Court, Utah’s first and only husband/wife judge team will have fully retired. Judge Diane W. Wilkins retired in November 2008, after 19 years on the Second District Juvenile Court. Between them, they served for more than 35 years. Their service is noteworthy for their example of a true partnership and the path they forged for couples who may follow.

by Mary Jane E. Wagg

A certain amount of stress is to be expected in any lawyer’s life. But, have you ever asked yourself why or wondered about the long-term effects of constant stress? Google “lawyer” and “suicide” and you will get 5,730,000 results. Replace “suicide” with “stress” and it is a sobering 7,980,000. Our profession demands empathy and aggression in equal measure. Our clients expect around-the-clock accessibility and accountability. Our bottom lines require a constant stream of billable hours and positive cash flow. Over the last several decades, the work day has expanded and it is harder than ever to get your mind out of the office, even when your body is out of the office. So it is no wonder lawyers feel stressed out and suffer from depression and struggle with addiction at greater rates than the general public.

by Gary G. Sackett

Two Hypotheticals

As a preliminary exercise, consider medical patient P, who is currently under the care of physician D1. D1 has advised P that P should undergo spinal surgery to relieve major back pain. P decides that, before going under the knife, P would like a second opinion on the matter and consults privately with D2, who examines and diagnoses P and suggests a period of therapeutic treatment before making a final decision on surgery. Is D2 out of line for talking to D1’s patient? No, of course not. No one would question the prudence of P’s action, or the propriety of D2’s responding to P’s request for a second opinion before making such a life-affecting decision.

Edited by Mark P. Denbeaux and Jonathan Hafetz

Reviewed by John West

The measure of a country is how it acts in time of peril

– Brigadier General David M. Brahms

Since the publication of the Jan/Feb issue of the Utah Bar Journal, there has been some discussion among members of the Bar regarding a notice in the Attorney Discipline section. That notice concerned a respondent’s reliance upon an opinion issued by the Ethics Advisory Opinion Committee. To provide some clarification to this discussion, the OPC is printing this letter, which was the source material for the disciplinary note:

Young Lawyers Division (YLD) All members of the Utah State Bar in good standing under 36 years of age and members who have been admitted to their first state bar for less than five years, regardless of age, are automatically members of the Young Lawyers Division. For more information on YLD, or the events listed below, visit www.utahyounglawyers.org or contact Michelle Allred, YLD President, at allredm@ballardspahr.com.

by Steven A. Morley

Have you ever heard an attorney comment on how indispensible his or her paralegal is? Maybe you have overheard an attorney say something like, “My paralegal runs things so well at my firm that all I am good for is my signature.” When paralegals get to the point in their careers that they are literally doing everything an attorney does except establish the attorney-client relationship, set legal fees, or give legal advice; i.e., the things paralegals are prohibited from doing, see Guideline 3 of the ABA Model Guidelines for the Utilization of Paralegal Services (2004), it is conceivable that such paralegals might have thoughts like, “Why am I doing all the attorney’s work and not getting paid the attorney’s salary?”