Utah Bar Journal

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* President’s Message: Get Involved!
* Articles:
* Utah Standards of Appellate Review
* Business Valuation Applications to Economic Damages for Lost Profits
* In Defense of Sales to Defective Grantor Trusts
* Utah Law Developments:
* The 2010 Medical Malpractice
* Amendments: A Summary of Major Changes
* New Lawyer Training Program: Helping Lawyers through The Great Recession 3
* Focus on Ethics & Civility:
* Avoiding Ethical Landmines: A Review of the 2010 OPC Annual Report
* State Bar News
* Young Lawyer Division:
* Who Needs Pro Bono?
* Paralegal Division:
* Upcoming Events

by Robert L. Jeffs

One of the “perks” of being Bar President is the opportunity to meet with or speak with so many of the leaders of the Sections, Committees, and Divisions of the Bar about the projects and initiatives they are working on for the benefit of their members and the public. Like many of you, prior to my Bar service, I suffered from the myopia that is a symptom of the significant time commitments of a busy law practice. This last month, Isaac Paxman from the Executive Committee of the Litigation Section told me about the new Topic Bank launched by the Litigation Section through its website. This project helps law students identify important, interesting, and current topics for research and writing in law journals or law school projects.

by Norman H. Jackson and Lisa Broderick Thornton

Editor’s Note: This article is the fourth and final installment of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal. You can find Judge Jackson’s two prior Appellate Review articles, as well as the entire current article, at http://utahbar.org/barjournal/Utah_Standards_of_Appellate_Review.html.

by Matt Connors and Robert P.K. Mooney

This article is meant to convey the similarity of education, knowledge, skills, and training used in valuing a business with those needed for estimating lost profits a business may sustain. This skill set is held by a niche group of professionals, typically accountants, who have training and experience in matters related to business valuation and expert witness services. Qualified experts need to have a solid understanding of business valuation, accounting, finance, and other principles that are generally accepted in the expert community and need to use reliable principles and methods to ensure the highest level of client service and to have their work accepted by courts.

by Jeffrey D. Steed

In what has become a near-landmark publication, Julie K. Kwon and Daniel J. Loewy, two senior analysts from Bernstein Global Wealth Management, published their article, GRATs: On a Roll, in the June 2005 issue of Trust & Estates Magazine. See Julie K. Kwon & Daniel J. Loewy, GRATS: On a Roll, Trusts & Estates, June 2005, at 33. In their article, Kwon and Loewy analyze the “probabilities of success” when comparing a rolling grantor-retained annuity trust (“GRAT”) to other investment-driven gifting strategies for large estates, including a sale to a defective grantor trust (“DGT”). See id. Using a highly advanced wealth forecasting analysis model that simulated over 10,000 capital market scenarios across a wide spectrum of asset classes, Kwon and Loewy determined that, in almost all cases, a rolling GRAT strategy statistically outperforms other popular strategies for increasing the likelihood of successful wealth transfer. See id. According to Kwon and Loewy, the success of rolling GRATs is largely due to the ability to significantly decrease the inherent market risk associated with investment-driven estate planning strategies while, at the same time, capturing the upside of market volatility. See id. In other words, the ability to lock in wealth transfer gains from previous years in a rolling GRAT strategy has a greater probability to outweigh any advantage from lower interest-rate benefits and the avoidance of all mortality risk generally provided by a sale to a DGT.

by Patrick Tanner

Introduction

During the last session, the Utah Legislature made significant changes to the statutes governing medical malpractice claims in Utah. Senate Bill 145, the Medical Malpractice Amendments, has three major aspects: First, it replaces the escalating cap on non-economic damages with a fixed cap; second, it limits the circumstances in which an “ostensible agency” claim may be asserted; and third, it adds an affidavit of merit requirement to the prelitigation panel hearing process. While the full implications and practical effects of these changes will become clear only as new cases are litigated, practitioners will need to consider the changes in evaluating and preparing to bring and defend medical malpractice claims.

by Zachary W. Derr

After my swearing-in ceremony at the Salt Palace, I received congratulations from some of the older members of the Bar. We spoke about the difficult economic times and pro bono opportunities for new lawyers. The conversation then turned to thoughts on the New Lawyer Training Program (“NLTP”). Although I did not have much to say, I specifically remember their enthusiasm about the program; they were anxious to see it implemented. Initially, I was eager to finish the requirements and move on with being a lawyer. However, the NLTP has been a fantastic learning experience and aided me in setting up my own law practice.

by Keith A. Call

The Utah Constitution gives the Utah Supreme Court authority to adopt and enforce rules governing the practice of law in Utah, including attorney discipline. See Utah Const. Art. VIII, § 4. In turn, the Utah Supreme Court has given the Office of Professional Conduct broad authority to receive, investigate, and in some cases prosecute claims of attorney misconduct. See Supreme Court Rules of Professional Practice, Rule 14-501 et seq.

Utah State Bar Ethics Hotline
Call the BarÕs Ethics Hotline at (801) 531-9110 Monday through Friday from 8:00 a.m. to 5:00 p.m. for fast, informal ethics advice. Leave a detailed message describing the problem and within a twenty-four hour workday period a lawyer from the Office of Professional Conduct will give you ethical help about small everyday matters and larger complex issues.

by Angelina Tsu

In 2010, the Utah State Bar conducted a Member Survey. The survey asked members to, among other things, comment on the Bar’s pro bono projects. The comments ran the spectrum of extremes from mildly funny to truly disturbing. Some of the more colorful comments appear below.