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March 2012 Archives

March 6, 2012

Volume 25 No. 2 Mar/Apr 2012


PDF Version
NEW! The Bar Journal is now available in eBook formats!
Letter to the Editor
President-Elect & Bar Commission Candidates
President’s Message:

Lend a “Learned Hand” – Check Yes and Volunteer for a Pro Bono Matter
Commission Message:
Utah State Bar Member Survey Results
Views from the Bench:
The Importance of Lawyers and Judges in American Life
Utah Law Developments:
Young Living Essential Oils, LC v. Marin: Clarifying the Limited Scope
and Content of the Implied Covenant of Good Faith and Fair Dealing
Articles:
Blow the Whistle: The Dodd-Frank Act Creates New Incentives for Whistleblowers –
and Compliance Issues for Utah Businesses
Focus on Ethics & Civility:
The Civic-Minded Lawyer
Book Review
The How to Win Trial Manual, Winning Trial Advocacy in a Nutshell, 5th Ed.
State Bar News
Young Lawyers Division:

The Green Utah Pledge
DUI Law in a Flash
Paralegal Division

Dear Editor:

In the Jan/Feb 2012 Bar Journal the Bar Commission announced a newly adopted “Diversity and Inclusion” policy. The policy broadens the term diversity to be inclusive of almost every personal, cultural, and economic characteristic imaginable. But, the policy is not new, it merely elucidates the Mission and Vision of the Bar; to create a just system, respected, and accessible to all. Why the new expansive definition of diversity?


The globalization of the term diversity implies that integration of racial and ethnic minorities into the legal profession is, Mission Accomplished. As the Bar President states in his message, “[Diversity] is No Longer Black and White.” Really? Attorneys racially or ethnically different than the majority of Bar members are treated as equals? Then how do you explain that soon there will only be 3/71 District Court Judges and 3/108 City Court Judges that are racially or ethnically diverse? The minority community representative on the Bar Commission has no vote. Can readers name a medium/large firm with a minority partner?

The policy acknowledges identifiable groups are treated differently. Rather than identify practices that inhibit equality the Commission passively expands the definition of “diverse” groups, encourages diversity training, and prints articles. Rather a timid response to acknowledged disparate treatment.

The article’s account of how aristocrat Robert Shaw led a Negro regiment to “Glory,” 150 years ago, echoes the myth that discrimination is a historical footnote. Discrimination doesn’t vaporize because we admire historical figures, celebrate a holiday, or pass superfluous policy. We must remain vigilant and cognizant of barriers to equal treatment. Is the Commission reluctant to identify obstacles?

I write not to offend, but to remind fellow lawyers that, theoretically, we seek justice for all, even our own. Is there no Robert Shaw among us to lead the diverse charge?

Michael N. Martinez

President-Elect & Bar Commission Candidates

Candidate for President-Elect

Retention of President-Elect: Curtis Jensen has been nominated by the Bar Commission to serve as President-Elect in 2012-2013 and as President in 2013-2014, subject to a confirmation ballot submitted to all lawyers on active status. No other candidates petitioned the Commission to run for the office.

CURTIS JENSEN

It is an honor to be nominated by the Bar Commission as the next Bar President-Elect. For the past five years I have had the pleasure to serve with talented colleagues on the Bar Commission and within the Bar Office. These individuals love our profession and bring great energy, experience, judgment, and dedication with their many hours of service. The Bar President has always set the tone for the Commission and, through collaboration, develops a consensus in setting goals and objectives to better serve the Bar and its membership. This is a charge that I will not take lightly. We will continue to focus on the core functions of the Bar and continue through our collective effort in nurturing civility and professionalism in our practice of law, improving and providing affordable and practical CLE, developing and implementing programs to improve the efficiency of legal services and access to justice, educating our members and the public about available resources and opportunities, and continuing fiscal prudence in Bar operations and expenditures.

Continue reading "President-Elect & Bar Commission Candidates" »

President’s Message

Lend a “Learned Hand” – Check Yes and Volunteer for a Pro Bono Matter
by Rodney G. Snow


Judge Learned Hand was well known as a preeminent jurist and legal philosopher. He served on the United States District Court for the Southern District of New York and on the United States Court of Appeals for the Second Circuit. He has been quoted by the Supreme Court more often than any other judge. Judge Hand was an advocate for counsel for the underprivileged. In a speech to the New York Legal Aid Society in 1951, Judge Hand stated, “If we are to keep our democracy, there must be one commandment: Thou shall not ration justice.”


The Honorable Carolyn B. McHugh, Presiding Judge of the Utah Court of Appeals, reported last month at the leadership breakfast for “and Justice for all” that poverty is on the rise in Utah, with an increase between 2008 and 2010 of over 20%.

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Commission Message

Utah State Bar Member Survey Results

by Dickson Burton


Did you know that 67% of active members of the Bar are in private practice, and of those about two-thirds are in solo practice or in firms of less than ten attorneys? Or that more than one third of the Bar is younger than thirty-seven years old? Did you know that 32% of attorneys are now using a tablet computer? (I’m sure you won’t be surprised to know which tablet computer is most popular). You may also be interested to know that 51% of attorneys now advertise in some media. This and much more data is now available thanks to a comprehensive survey of Bar membership conducted this past December. The Bar Commission is now pleased to share the results, which have proved to be most interesting and helpful, with Bar membership.

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Views from the Bench

The Importance of Lawyers and Judges in American Life

by Judge Dale A. Kimball
EDITOR’S NOTE: The following is Judge Kimball’s Keynote Address, given at the Utah State Bar Summer Convention in San Diego, California on July 7, 2011. We thank Judge Kimball for agreeing to let us share his speech with you here.

This is a beautiful place. I am happy and honored to be giving this speech this morning. The title of my address is: “The Importance of Lawyers and Judges in American Life.” You will, of course, note from that cleverly broad title that I can speak today about anything I choose. Let me admit that my remarks may be somewhat biased because I have now been a Federal Judge for a long time, perhaps too long. Evidence of that may be that on a very cold day this past spring, I realized as I was walking past Judge Benson’s courtroom on the way to the elevator to go home that, instead of my overcoat, I had put on my robe over my suit.

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Utah Law Developments

Young Living Essential Oils, LC v. Marin: Clarifying the Limited Scope and Content of the Implied Covenant of Good Faith and Fair Dealing

by Cory A. Talbot and J. Derek Kearl


“[S]hrouded in mystery.”1 “[F]rustratingly elusive.”2 “[I]nexact.”3 Each phrase has been used to describe the implied covenant of good faith and fair dealing. In general terms, this implied covenant imposes a duty on contracting parties to act consistently with the parties’ agreed upon common purpose and to not do anything to destroy or injure the other party’s right to receive the benefits of the contract. See Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 43, 104 P.3d 1226; St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 200 (Utah 1991). The doctrine “is based on judicially recognized duties not found within the four corners of the contract,” Christiansen v. Farmers Ins. Exch., 2005 UT 21, ¶ 10, 116 P.3d 259, and, although it has long been a part of Utah law, continues to pose difficulties to contracting parties, practitioners, and judges alike.

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Blow the Whistle: The Dodd-Frank Act Creates New Incentives for Whistleblowers – and Compliance Issues for Utah Businesses

by Barry Scholl and Kevin Timken


A new client makes an appointment to discuss an employment issue with you. When you talk, she tells you that she works in the warehouse for a widget distributor. Recently, right before the end of the prior fiscal year, her warehouse received an unusually large shipment of widgets from a public company. She heard her boss tell the public company’s auditor that he requested the shipment and that the widgets were not returnable – but she also heard the public company’s president thank her boss for accepting the unusual shipment and assure him that as soon as the audit was completed, he could return all of the widgets he had not sold. Her boss owns the company she works for, and when she mentioned the difference between what he told the auditor and what the agreement really was, he threatened to fire her.

Continue reading "Blow the Whistle: The Dodd-Frank Act Creates New Incentives for Whistleblowers – and Compliance Issues for Utah Businesses" »

Focus on Ethics & Civility

The Civic-Minded Lawyer
by Keith A. Call

In the summer of 1988, the lawyers at Fabian & Clendenin were kind enough to give me a job as a court runner. I now grin to think about how genuinely exciting it was for me, a small-town son of a country lawyer, to deliver important documents – complaints, thick motions, and even interrogatory answers – around town to court and other law firms. A few years later, I experienced an even more exhilarating feeling when I first signed my name as a bona fide lawyer on an actual complaint that was about to be filed in the Maricopa County Superior Court.

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Book Review

The How to Win Trial Manual, Winning Trial Advocacy in a Nutshell, 5th Ed.

by Ralph Fine

Reviewed by Andrea Garland


The best advice is “practice, practice, practice,” which is also Judge Ralph Fine’s advice for mastering the art of trial advocacy. Judge Fine, on the Wisconsin Court of Appeals since 1988, served as a judge on the Wisconsin circuit court from 1979 to 1988. This book provides great how-to instruction coupled with relevant, interesting examples from well-known trials. Judge Fine includes authentic trial transcripts with commentary on what the lawyers did right and wrong. It is a useful book for any trial lawyer.

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Attorney Discipline

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.

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Young Lawyers Division

The Green Utah Pledge

by Jon Clyde, Kelly J. Latimer, and Kallie A. Smith

One million two hundred thousand! This is the number of sheets of paper used by Clyde Snow on a yearly basis. This equates to 100,000 sheets of paper each month or 25,000 sheets each week. Lawyers tend to print out everything and rationalize the excessive printing in various ways: “it is just too hard to read double-sided copies” or because “it is easier to edit that way.” Without a doubt, the practice of law is one of the more paper-intensive professions. However, a large number of firms do not purchase recycled paper or recycle used paper. Instead, this paper finds its way to the landfill.

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DUI Law in a Flash

by Philip Wormdahl


Editor’s Note: This article is part of a series summarizing CLE presentations given as part of the YLD’s “Practice in a Flash” program.

More than 15,000 DUI arrests were made in Utah during 2010. Roughly two-thirds of those arrests were first-time offenders. With so many citizens facing DUI charges, most lawyers should expect that someone they know will need representation for DUI. Because of the volume of arrests, being able to competently handle a DUI case is a critical skill for attorneys working in criminal defense and a huge asset to attorneys looking to develop and grow their clientele. This article is meant to give a basic overview of the “typical” DUI case by exploring some of the most common procedures, hearings, and issues.


The Offense

Driving Under The Influence of Alcohol and\or Drugs, or “DUI,” is codified at Utah Code section 41-6a-502. See Utah Code Ann. § 41-6a-502 (LexisNexis 2010). The conduct prohibited by the statute is as follows:

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About March 2012

This page contains all entries posted to Utah Bar Journal in March 2012. They are listed from oldest to newest.

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