Utah Bar Journal

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Letters to the Editor
President’s Message: Practicing Law, a Profession or a Business?
Views from the Bench: To Persuade a Judge, Think Like a Judge
Articles:
Utah House Bill 260: Not Your Father’s Mechanics’ Lien Law
This Is the Place
Counseling Individual Trustee Clients
Location Based Electronic Discovery in Criminal and Civil Litigation – Part 1
Focus on Ethics & Civility: Client Communication
Use it or Lose It – How To Effectively Impact the Utah Legislature
Disasters: Are You Prepared Personally and Professionally?
State Bar News
Young Lawyers Division: President’s Message and Invitation
Paralegal Division: Message from the Chair

Dear Editor:

We just opened our July/August issue of the Journal and saw the letter from Michael Deamer regarding mandatory CLE. We agree with his concerns. Mandatory CLE should only be imposed if an attorney demonstrates incompetence and needs a remedial course. Otherwise, CLE should be voluntary. By the way, in our experience the least useful CLE courses are generally the ethics courses.

Chris L. Schmutz
Jay R. Mohlman

by Rodney G. Snow

This is my first article to the Bar membership. Thank you for your support. It is an honor to serve each of you as bar president. I most appreciate the many friends I have made over the years in the Bar. I always welcome any suggestions you have for a better Bar. In fact, I look forward to hearing from you.

by J. Frederic Voros, Jr.

After nearly two decades as an appellate lawyer, I was appointed to the Utah Court of Appeals. I now see the appellate process from the opposite point of view. I went from a producer of briefs and a consumer of opinions to a consumer of briefs and a producer of opinions; from a persuader to a target of others’ persuasion; from interrogatee to interrogator in oral argument. This shift in perspective has raised to my level of consciousness this thought: to persuade a judge, as to catch a thief, you must think like one.

by J. Frederic Voros, Jr.

After nearly two decades as an appellate lawyer, I was appointed to the Utah Court of Appeals. I now see the appellate process from the opposite point of view. I went from a producer of briefs and a consumer of opinions to a consumer of briefs and a producer of opinions; from a persuader to a target of others’ persuasion; from interrogatee to interrogator in oral argument. This shift in perspective has raised to my level of consciousness this thought: to persuade a judge, as to catch a thief, you must think like one.

by Richard E Danley, Jr. and Rick Carlton

Title insurance companies in Utah and much of the nation changed their coverage regarding mechanics’ liens in 2010, in particular their coverage of broken lien priority. In a complete reversal of their prior practice, virtually all major title companies stopped insuring construction lenders as holding a first lien position when there is broken lien priority. Broken lien priority occurs when work on the property is commenced or materials are furnished prior to the recording of the deed of trust or mortgage. Previously, for established lenders and experienced, financially strong developers, it was normal and expected to have the title company insure over the broken lien priority. When a mechanics’ lien claimant filed a lien or construction commenced prior to the recording of the construction lender’s lien, it was common for most title companies to insure the lender as holding a first lien position, with no exception taken for the mechanics’ lien claims. Suddenly in 2010 for lenders, contractors, and developers, the world changed. As mechanics’ lien claims mounted in the recession, title companies refused to insure over mechanic-lien claims and title coverage was more limited, with careful underwriting of the project and a serious evaluation of the borrower’s financial capacity. But what was most alarming for many contractors and developers, was that without first-lien-title coverage many construction lenders simply refused to fund projects involving broken lien priority, demanding an insured first lien for the loan.

by Editor-in-Exile, Learned Ham

Years ago, a friend explained to me his driftwood theory of life. It was his opinion that planning a life is a waste of valuable time that could be much better spent playing pool. I think there was more to it than that, but that was the bottom line. He has since drifted onto the bench and would probably appreciate it if I didn’t mention his name. I have recently drifted to Connecticut. In-house practice lends itself well to the driftwood theory.

by Robert S. Tippett

It is common for the settlor or the beneficiaries of a trust to ask a family member, a family friend, or a close family advisor, such as an accountant, to serve as trustee. The individual may have substantial experience serving as a fiduciary, or may have no such experience at all.

When counseling an individual fiduciary, the attorney should ensure that the client has a solid understanding of the powers and responsibilities associated with the job. In some cases, this may mean explaining to the client what a trust is and how it works. If the client has experience serving as a trustee, the attorney’s role may be one of impressing on the client the gravity of the client’s responsibilities. This article describes the basic points that an attorney should bring to the attention of an individual client who serves, or is considering serving, as a trustee.

by David K. Isom

2010 was the year that geolocation technologies such as mobile social networks and check-ins exploded into general use and awareness in the United States. In the final quarter of 2010, more mobile phones (approximately 100 million) were sold worldwide than PCs (approximately ninety-two million) for the first time. See Dylan McGrath, IDC: Smartphones Out Shipped PCs in Q4 (Feb. 9, 2011, 7:05 PM), http://www.eetimes.com/electronics-news/4213010/IDC--SmartPhones-out-shipped-PCs-in-Q4. This article examines the impact of location technology upon civil and criminal legal processes in the United States, in two successive parts: This Part I summarizes the location based digital technology that has recently become ubiquitous and readily accessible. Part II explores the important legal and ethical issues that this technology raises for civil and criminal judicial proceedings.

Client Communication

by Keith A. Call

George Bernard Shaw once said, “The greatest problem of communication is the illusion that it has been accomplished.”1 Communication, it is safe to say, is one of the most difficult life skills to master. Perhaps just as difficult as the act of communicating is the fact that the way we communicate exposes our character, for good or for bad. Relationship coach Matt Townsend teaches that “the real power of communication comes not from the words being spoken or the flare of their delivery. The real power is always found in the character and integrity of the author behind the message.”2

by Lorie D. Fowlke

The Utah State Legislature has been the focus of much attention for good and ill. Local newspapers and pundits frequently criticize the legislature for its conservative position on everything from gay marriage to private property rights. See Rosemary Winters, Anti-gay Bias Pervasive in Utah, Report Says, Salt Lake Tribune, June 19, 2011; Allen Greenblatt, Real Power (Utah Real Estate Lobby), Governing Magazine, June 2008. The national press also gives Utah’s legislature its share of attention, but more often it is for things like “best managed state,” see Susan Struglinski, Utah No. 1 for Governing, March 4, 2008, Deseret News, Mar. 4, 2008; or one of half a dozen states with a viable public employee pension plan. See Frank Keegan, Utah Wins Public Pension Reform Award, but Still at Risk (June 2, 2011), http://watchdog.org/9627/utah-wins-public-pension-reform-award-but-still-is-at-risk/.

by Brooke Ashton

“In fair weather prepare for foul.”– Thomas Fuller

When I was in my third year of law school at the University of Kentucky, Hurricane Katrina hit the gulf coast. I remember watching on TV thousands of people being evacuated from their homes; helicopters air lifting stranded citizens from their roofs; stadiums filled with cots to provide some shelter to now homeless individuals. Everyone wanted to help or provide some sort of aid, either money, time, or donations.

Imagine graduating from law school only to be offered a position as the typing pool supervisor. That is exactly what happened to Elaine Larsen in 1963. Or imagine you are riding up the elevator with opposing counsel who openly discusses the merits of his case because the fact that you are a female attorney is incomprehensible. After the elevator ride, Connie Holbrook had the upper hand during courtroom introductions when the embarrassed opposing counsel member blurted, “You can’t be an attorney.”

ADMONITION

On June 17, 2011, 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 1.5(a) (Fees), 1.7 (Conflict of Interest: Current Clients), 1.16(d) (Declining or Terminating Representation), 5.1(a) (Responsibilities of Partners, Managers, and Supervisory Lawyers), 5.1(b) (Responsibilities of Partners, Managers, and Supervisory Lawyers), and 8.4(a) (Misconduct).

In summary:

The attorney concurrently represented three parties in various matters. The attorney failed to fully advise these clients of the current and/or potential conflicts. The attorney failed to obtain signed waivers from the clients. The attorney concurrently represented the parties whereby certain interests and various liabilities were shifted amongst the parties. The attorney subsequently represented one of the parties in an action brought by creditors wherein one of the other parties was a party. The first client had a valid cross-claim against the second client which the attorney failed to advise the first client of or assert in the action. These actions likely impaired the attorney’s ability to effectively represent the parties. The attorney failed to provide the parties files in a timely matter. The attorney’s associate violated Rule 1.7 and the attorney knew about the conduct based on the motions filed or otherwise ratified the conduct through his billing or otherwise. The attorney was aware that the associate was representing concurrently two of the parties even though their interests were adverse. The Bankruptcy Trustee recognized this conflict at the meeting of the creditors and disallowed the attorney’s firm from further representation of the party. The attorney failed to submit fees for the bankruptcy court’s approval and said fees were for another client and/or for unrelated matters.

by Jenifer L. Tomchak

Young attorneys often overlook the benefits of being involved in professional organizations. With so much time spent learning your new practice, it is easy to forget the importance of developing professional relationships that will help your future practice. Professional organizations create opportunities for lawyers to network with, get advice from, and commiserate with other practitioners. But these organizations also provide a forum for young attorneys to establish their reputations amongst a large group of potential referral sources. Professional organizations also often organize community service and legal education events. These events help improve the reputation of attorneys in the community, give young lawyers an opportunity to use and develop their legal skills, and, perhaps most importantly, remind us of the importance of our profession.

by Danielle Davis

As the new Chair of the Paralegal Division, I would like to take this opportunity to introduce the 2011-2012 Board of Directors and myself.

Chair-Elect – Thora Searle attended Weber State University and has spent thirty-three years working in the legal field. She worked as a legal assistant to William Thomas Thurman at McKay, Burton & Thurman for twenty-one years and currently works as a Judicial Assistant to Judge Thurman at the United States Bankruptcy Court for the District of Utah. She has served several terms as a Director of the Legal Assistant Division/Paralegal Division of the Utah State Bar serving several years as the Secretary and the Membership Chair. Thora’s husband of forty-eight years passed away in January of this year so her time outside of work is devoted to her children, grandchildren, and great-grandson. She loves to spend time with them and enjoys watching them participate in soccer, softball, dance, and tumbling.