Utah Bar Journal

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President’s Message:
Baby Boomers Meet Millennials in the Legal Workplace: From Face-lift to Facebook
Views from the Bench:
Referrals to the OPC
Articles:
In Utah, Scanning a Person’s Face or Iris to Determine Identity
is a Search Justified Only in Limited Circumstances
Focus on Ethics & Civility:
Litigators Beware
Utah Law Developments:
Preconstruction Service Liens: A New Chapter in Utah’s Mechanics’ Lien Law
Location-Based Electronic Discovery in Criminal and Civil Litigation – Part 2
Bankruptcy Filings and Civil Litigation – Judicial Estoppel in Action
Young Lawyers Division:
A Primer to the New Utah Rules of Civil Procedure
State Bar News
Paralegal Division:
5 Reasons for Taking the CP Exam

by Rodney G. Snow

AUTHOR’S NOTE: I gratefully acknowledge the considerable assistance and input from Sarah L. Campbell, a Millennial at the Clyde Snow firm. The dialogue and events described in this article are based on personal experiences working with the under-30 demographic.

The Millennial generation,2 which has been defined broadly as those born between 1980 and 2000, has emerged in the legal workplace as our associates and employees. They will soon be taking on partnership and managerial roles. As a group, these Millennials are bright, optimistic, yearn for meaning and work-life balance, and have an unprecedented ability to use technology and multi-task. Technology is often thought to be the perfect replacement for the long hours to which Boomers are accustomed. Millennial traits often create conflict with other groups who currently make up the American workforce – Baby Boomers (1943-60) and Generation Xers (1961-81). The differences between generations become especially apparent in work and communication styles. Although the Millennials have been named the “toughest generation to work with,”3 my experience is they add a dimension to the workplace that is beneficial. I’ve found them to be productive and energetic. And working with them can produce excellent results for clients. I’m not implying there aren’t some downsides to the demographic. There are a few. Focusing on the positives seems to be the best approach for developing a good working environment and well-trained associates.

The stark reality of these generational differences hit home recently when I was looking for an associate at the office to help me with a project on a particular Friday. It was a Boomer “Red Alert.” Not one of the ten could be found. Was it possible they were all sick or all taking vacation on the same day? (Probably.) I couldn’t imagine, however, they all coincidentally left work early (it was only 1:30 p.m.). The following week I discovered the reason for the missing bodies. A “Training Day” at Willard Bay – better described as the associates skillfully maneuvering a Friday afternoon water ski trip on a partner’s open-bow Sea Ray boat. The primary conspirator in the activity was a fourth-year associate who has now designated herself the firm recreational director. If your firm doesn’t have one, watch out! Millennials value rest and recreation, better known as the “killer lifestyle,” first coined by Generation X. I bet you already knew that!

by Judge Kate A. Toomey

The current iteration of the Code of Judicial Conduct1 provides that “A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.” Utah Code of Jud. Conduct R. 2.15(B). And it exhorts judges who “receive[] information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct” to “take appropriate action.” Id. R. 2.15(D). The Comment following the rule reminds us that “[i]gnoring or denying known misconduct among….members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system.” Id. R. 2.15, comment [1]. On the other hand, if the judge merely has information indicating a substantial likelihood of misconduct, the appropriate action might include “communicating directly with the lawyer who may have committed the violation or reporting the suspected violation to the appropriate authority or other agency or body.” Id. R. 2.15, comment [2].

by Adam Alba

Introduction

Dozens of law enforcement groups in several states have recently outfitted police with handheld iris and face scanners to aid officers in quickly identifying a person. See Emily Steel & Julia Angwin, Device Raises Fear of Facial Profiling, The Wall St. J., July 13, 2011. The Mobile Offender Recognition and Information System (“MORIS”) is a device that attaches to an iPhone and allows an officer to snap a picture of a face from up to five feet away, or scan a person’s irises from up to six inches away. See id. The device performs “an immediate search to see if there is a match with a database of people with criminal records.” Id. Though the device isn’t yet in police hands in Utah, the manufacturer of the handheld scanner has already placed one of its less portable scanners in the Davis County Jail to prevent the mistaken release of inmates. See Melanie S. Welte, Iris Scans May Prevent Mistaken Release of Inmates, Deseret News, Feb. 28, 2010. Use of the handheld device in this state raises constitutional concerns related to search and seizure law that no court in Utah has addressed. Attorneys and judges in the state should be ready to confront these issues if and when they arise.

by Keith A. Call

In the words of my daughter, “Dad, have you ever dreamed you got to court and couldn’t find your briefs?” If you have had a dream like this recently, it could be because the Utah Supreme Court just adopted the most drastic rule changes in the modern history of Utah Civil Procedure and you don’t know what they are.

Here are three suggestions to help you avoid ethical trouble with the new rules.

Crack open the book.

by D. Scott DeGraffenried

Utah’s Mechanics’ Lien Law comprises a technical area of the law involving many requirements and deadlines. The nuances of Utah’s Mechanics’ Lien Law have caused attorneys to wake up in the middle of the night hoping they complied with certain steps or did not miss one of the many imposed deadlines. Just when construction law attorneys thought we had the system mastered, the Utah Legislature made sweeping changes to Utah’s Mechanics’ Lien Law. See Utah Code Ann. §§ 38-1-1 to 38-1-37 (Supp. 2011). During the 2011 general session, the legislature passed two bills, House Bills 115 and 260, that created two types of mechanics’ liens. H.B. 115 created liens for preconstruction services, which are services provided before actual construction commences, such as design, architectural, engineering, and surveying work. H.B. 260 applies to liens for construction services, which are tasks performed in the physical construction of a project. Both bills are now in effect. This article is limited to H.B. 115. The purpose of this article is to explain some of the motivations behind the bill and introduce the mechanics (no pun intended) of the newly-created preconstruction service liens.

The Push for H.B. 115

Utah’s previous mechanics’ lien statutes gave lien rights to preconstruction service providers. The problem, however, has been defining the priority of their liens. Mechanics’ lien litigation often comes down to one issue: whether a mechanics’ lien has priority over other encumbrances on a particular piece of property. This dispute is often referred to as one of “broken priority.” The dispute usually involves the mechanics’ lien claimants and the bank that holds a trust deed on the property. Under Utah’s pre-2011 statutes, all mechanics’ liens related back to and took effect as of the date visible construction work commenced on a project. This triggering point is known as the relation back doctrine. If visible work commenced before another encumbrance was recorded, all the lien claimants had priority over the later encumbrance.

The problem for those performing preconstruction services was that they were always at the mercy of construction commencing. An architect could spend months designing a project, performing significant services. If actual construction never commenced, however, no date was established for the architect’s lien priority.

Similarly, if a preconstruction service provider performed services before a trust deed was recorded but construction began after the recording of the trust deed, the provider’s lien fell in with the rest of the lien claimants. The lien would be deemed inferior to the trust deed. Simply put, preconstruction service providers were often relegated to an inferior priority position even though they performed their services early in the project.

by David K. Isom

This paper examines the impact of location technology upon civil and criminal legal processes in the United States, in two parts: Part 1 summarized the location-based digital technology that has recently become ubiquitous and readily accessible. This Part 2 explores the important legal and ethical issues that location-based electronic discovery (LBED) raises for civil and criminal judicial proceedings.

Part 2: Location-Based Law, Ethics and Privacy

Why Location Matters in Civil Litigation and Law Enforcement

by Tanya N. Lewis

Bankruptcy Basics

The federal government retains exclusive jurisdiction to administer the United States Bankruptcy Code, which provides relief for financially distressed individuals or corporations to obtain relief from their creditors. Most personal bankruptcies in the United States are filed under Chapter 7 or Chapter 13 of the United States Bankruptcy Code. Bankruptcies filed and granted under Chapter 7 (usually called “no-asset bankruptcy”) typically provide debtors with a complete liquidation of their debts and complete relief from their creditors. When a federal bankruptcy court grants relief under Chapter 7, the debtor’s obligations are paid out of the bankruptcy estate’s existing assets, and most debts are usually wiped away. The case is then said to be “discharged.” Bankruptcies filed under Chapter 13 place debtors in a repayment program, where they are obligated to repay all or part of their debts, usually out of future income from employment or other sources. When a bankruptcy court approves a Chapter 13 debtor’s proposed repayment plan, the bankruptcy case is said to be “confirmed.” Repayment plans usually range from thirty-six to sixty months.

by Joe Stultz

The Utah Supreme Court has approved a number of substantial amendments to the Utah Rules of Civil Procedure. These amendments are effective for cases filed on or after November 1, 2011. The purpose of the amendments is to achieve the just, speedy, and inexpensive determination of every action by limiting parties to discovery that is proportional to the stakes of the litigation, curbing excessive expert discovery, and requiring the early disclosure of documents, witnesses, and evidence that a party intends to offer in its case-in-chief. What follows are some of the highlights of the changes.

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.
More information about the BarÕs Ethics Hotline may be found at www.utahbar.org/opc/opc_ethics_hotline.html. Information about the formal Ethics Advisory Opinion process can be found at www.utahbar.org/rules_ops_pols/index_of_opinions.html.

by Joelle Taylor

Take a moment and ask yourself a very important career question, “Why have I not taken NALA’s Certified Paralegal exam?” NALA’s voluntary Certified Paralegal/Certified Legal Assistant exam is a nationally recognized exam that tests the skills and knowledge of paralegals through five sections for the federal system and laws including Communications, Ethics, Legal Research, Judgment & Analytical Ability, and Substantive Law. The Substantive Law section is further divided into five subsections. The examinee must take General Law and chooses four out of nine available legal subject. The available choices are Litigation, Criminal, Family, Estate Planning/Probate, Administrative, Bankruptcy, Contracts, Business Organization, and Real Estate. NALA reviews the test questions regularly and updates them to fit new laws.