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July 2012 Archives

July 10, 2012

Volume 25 No.4 July/August 2012

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NEW! The Bar Journal is now available in eBook formats!

President’s Message: The Jewels on the Hill by Rodney G. Snow
Article: Donor Intent and the Failure of the Honor System by David L. Wilkinson
Focus on Ethics & Civility: Fee Basics by Keith A. Call
Article: Founder Dallin H. Oaks’ Visit Spurs Call to Join of Utah-born American Inns of Court Movement by Isaac D. Paxman
Article: Utah Department of Health Hearing Process by Drew B. Quinn
Article: I Finally Got My Day in Court by Peg McEntee
Article: The Utah Territorial Bar Association: Our Forgotten Heritage by Michael S. Eldredge
Article: Survey Says…Mentors Reap Benefits of Mentoring by Elizabeth A. Wright
Article: The Mortgage Lender’s Primer on a TILA Rescission Claim by Aaron B. Millar
State Bar News
Young Lawyers Division: Estate Planning: A Practice Management Primer by Matthew L. Mitton
Paralegal Division: Letter from the Chair by Danielle Davis
CLE Calendar

The Jewels on the Hill

by Rodney G. Snow

Thank You
This is my last President’s Message to the Bar. I have had the privilege of meeting many of you, including dozens of our new lawyers. I have made new friends, for which I am grateful. I continue to be impressed by the untold hours of quiet service many of you render for the benefit of the Bar and our community. For that and so many other reasons it has been an honor and pleasure to represent you as your Bar president.

Service is both a responsibility and a reward that comes with being professional. It is what distinguishes a profession from just another business.

As you renew your Bar license this year, please “Check Yes” to volunteer for the opportunity of a pro bono matter or case. Many of you will have read about or seen the video of Meghan Vogel, a track star from West Liberty Salem high school in Ohio, help Arden McMath across the finish line after she had collapsed in a 3400 meter race, ensuring that Arden finished ahead of Vogel. This moment of humanity exhibited in a competitive race should move us to offer our professional services to those who otherwise might not be able to finish their race for justice.

I thank the Bar Commissioners and the Executive Committee for their hard work and support this year. Your Commission provides many hours of service to Bar matters. I acknowledge, once again, the incredible work and service of our Young Lawyers Division and their leaders. The YLD continues to show us the way with their energy, compassion, and extraordinary service. I also express my thanks to John Baldwin, Richard Dibblee, and the entire Bar staff for their patience, support, and assistance this year.

Thank you to Lori Nelson, our President Elect, who has supported and participated in the launch of our new programs and is already working hard in preparation for next year. Lori pays close attention to critical detail and will be a superb President.

I thank my firm, Clyde Snow & Sessions, and my clients for their patience and understanding this past year.

And last but not least I thank my wife Bobbi and our family for their listening ears, support and constructive suggestions.

As many of you know, during the summer of 2002, I was diagnosed with laryngeal cancer. It was, of course, a shock. I am not a smoker. Among the possible suspects was acid reflux. I don’t know many lawyers, particularly trial lawyers, who do not experience acid reflux at least occasionally. Get checked and medicated, if necessary. Maalox and Tums may not solve the problem. The “C” experience opened windows and vistas I may have otherwise missed. I am pleased to be working and enjoying life with family and colleagues. My grandchildren who are fascinated with my robot friend (electronic larynx) are persistent in learning how to use it.

I also learned to appreciate the incredible resources and talent we have in Salt Lake City, the University of Utah Medical Center and the S.J. Quinney College of Law, two bright jewels that provide unparalleled service to our community and, indeed, the entire Rocky Mountain region. Of course, there are other jewels at the University of Utah, the business and engineering schools, humanities, and many others.

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Donor Intent and the Failure of the Honor System

by David L. Wilkinson

The private sector of philanthropy is facing huge challenges today, at a time unfortunately when government resources to assist those in need are shrinking. The assets of charitable foundations in the USA declined by 28% in 2008 according to a study by The Chronicle of Philanthropy. See Daniel J. Popeo, Op-Ed., Freedom of Philanthropy?, N.Y. Times, Feb. 23, 2009, available at http://acreform.com/files/pdf/Freedom_of_Philanthropy.pdf. This was the biggest drop of the past four decades. The loss to the nonprofit organizations they fund and to society was actually much greater due to the multiplying effect of the charitable dollar. A study by The Philanthropic Collaborative calculated that the $43 billion foundations distributed in 2007 generated identifiable social and economic benefits of $368 billion. See id.

The decline in the value of assets of American charitable foundations is only part of the picture. Recently released IRS figures show that charitable giving declined some 20% in 2008-09. See Editorial, Protecting Charitable giving, Deseret News, June 26, 2011.

Charities have come under fire in the eyes of Americans who count the most – those who contribute. Those Americans who contribute include 65% of all households with family incomes below $100,000. A 2007 survey showed that 59% of over 3000 respondents were more concerned than they had been a decade earlier that their charitable donations were not getting to the people who need it the most; 46% said they are more worried today about charity fraud or theft of funds or services. See William Robertson, Donor Intent Revisited, The Washington Times, September 28, 2008, available at http://www.washingtontimes.com/news/2008/sep/28/donor-intent-revisited/?page=1.

A front-burner issue is that the charitable deduction in the tax code has been under fire from President Obama and members of Congress who are looking to find ways to shrink the nation’s growing deficit. See Lisa Chiu and Suzanne Perry, Charitable Deduction Could Be Under Threat in Coming Deficit-Panel Talks, The Chronicle of Higher Education, Aug. 2, 2011, available at http://chronicle.com/article/Charitable-Deduction-Could-Be/128480/. Among those submitting testimony against the possible impairment of the charitable deduction was Elder Dallin H. Oaks representing Utah’s largest, and one of America’s largest, charities, the Church of Jesus Christ of Latter-day Saints. Quoting from his testimony: “Some also assert that reductions in the charitable deduction would not cause charitable organizations to suffer financial losses from decreased private gifts since the government would make up some of these losses by additional appropriations.” Testimony Submitted by Elder Dallin H. Oaks, Senate Finance Committee Hearing, Oct. 18, 2011, available at http://www.finance.senate.gov/imo/media/doc/Oaks%20Testimony1.pdf. He then concludes: “[M]ost Americans would not have us relinquish the freedom and diversity of our vigorous private sector of charities in exchange for the assurance that the government would select and manage their functions.” Id.

Donor Intent in Jeopardy
Many scholars believe a more serious threat to the health of charitable giving than the tax code is the widespread and growing disregard for donor intent by recipient charities. One law professor begins a leading law review article on the subject:

The cat is out of the bag: Donors are fast discovering what was once a well-kept secret in the philanthropic sector – that a gift to public charity donated for a specific purpose and restricted to that purpose is often used by the charity for its general operations or applied to other uses not intended by the donor.

Iris J. Goodwin, Donor Standing to Enforce Charitable Gifts: Civil Society vs. Donor Empowerment, 58 Vanderbilt Law Review 1093, 1094 (2005).

The reason many administrators ignore donor intent lies not in their inability to understand the donor’s intent but in their knowing there is no real mechanism to enforce that intent – so they can’t get caught. In most states, the Attorney General is the only person recognized as having standing to enforce restricted charitable gifts. But in a majority of those states, including Utah, there is no reporting law which allows the Attorney General to monitor how each charity administers its restricted gifts. Additionally, the Attorney General gives low priority to charitable gift enforcement, leaving the charities on the honor system. The Uniform Trust Code, adopted in twenty-three states, including Utah, does give the settlor (donor) standing to enforce the restrictions on his or her own charitable gift; but that does not help if the settlor dies before the charity wants to divert the gift to another purpose. Courts are moving in the direction of recognizing standing to sue in the executor of a deceased donor or in one of the heirs. A major recent case permitted standing to a distant heir of a long-since deceased donor to challenge the decision of the administrators of Tulane University to discontinue the operation of Newcomb College as a coordinate women’s college. See Henderson v. Admins. of Tulane Univ. of Lousiana, 426 So.2d 291 (La. App. 4 Cir. 1983), (a continuation of Howard v. Tulane, 970 So.2d 21 (La. App. Ct. 2007), vacated, 986 So.2d 47 (La. 2008)). Earlier, the New York Court of Appeals allowed the executrix of her deceased husband’s estate to sue to enforce his gift. See Smithers v. St. Luke’s-Roosevelt Hosp. Ctr., 723 N.Y.S.2d 426 (N.Y. App. Div. 2001). But those cases are the exception.

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Fee Basics

by Keith A. Call

Turn to the “Attorney Discipline” section of this or almost any other issue of the Utah Bar Journal, and chances are high you will see one or more cases involving violations of Utah Rule of Professional Conduct 1.5, which deals with fees. In fact, ethical violations involving fee issues comprise a large percentage of complaints lodged with the Bar’s Office of Professional Conduct. See, e.g., Utah State Bar Office of Prof’l Conduct, 2011 Annual Report, available at http://www.utahbar.org/assets/ANNUAL Report2010-2011.pdf (last visited May 31, 2012). Based on my casual review of the “Attorney Discipline” section of recent issues of the Bar Journal, many lawyers seem to be getting into trouble for violating some simple fee basics. Here are some ideas to help keep you safe.

When to Get It in Writing
Rule 1.5(c) requires a written fee agreement for any contingent fee case. The written agreement must be signed by the client and must explain details of how the fee will be calculated. It must spell out any costs that will be deducted from the recovery, how they will be determined, and whether the client will be responsible for them if there is no recovery. At the conclusion of a contingent fee case, the lawyer must provide a written accounting to the client that shows how the remittance to the client is calculated.

Rule 1.5(e)(2) requires a written agreement if lawyers in different firms will be sharing fees. The share each lawyer will receive must be part of the written agreement.

In non-contingent fee situations, Rule 1.5(b) requires the lawyer to communicate the basis or rate of the fee and expenses to the client, “preferably in writing.” This must be done before or within a reasonable time after commencing the representation. There is an exception if you will charge a “regularly represented client” the same rate as you have customarily done in the past.

Don’t forget to clearly communicate any rate changes to your client. Simply increasing your hourly rate on your January invoice each year may not be sufficient, especially if the invoice does not clearly state your hourly rate. See Severson & Werson v. Bolinger, 235 Cal. App. 3d 1569, 1571-72 (Cal. Ct. App. 1991).

Prohibited Contingent Fee Cases
Rule 1.5(d)(2) prohibits contingent fees in criminal defense cases. This rule reflects a concern for conflicts of interest that could arise in a contingent criminal defense case. For example, a lawyer may seek to avoid a plea bargain in order to try to get an acquittal at trial.

Rule 1.5(d)(1) also prohibits contingent fees in most domestic relations matters, reflecting a public policy favoring marital reconciliation and a desire to prevent overreaching in emotionally-charged situations. The comment to the rule clarifies, however, that contingent fees are allowed in connection with post-judgment balances due under child support, alimony, or other financial orders.

Division of Fees
Rules 5.4(a) and 7.2(b) prohibit sharing legal fees with non-lawyers in most situations. In the case of lawyers who are not in the same law firm, Rule 1.5(e)(1) allows fee sharing, but only in proportion to the services performed by each lawyer or in cases where each lawyer assumes joint responsibility for the representation. Rule 7.2(b) prohibits referral fees in most cases.

Make Sure You Earn It and Communicate It
Lawyers’ fees must always be reasonable. Rule 1.5(a) provides a non-exclusive list of factors to be used to determine whether a fee is reasonable. These factors include such things as the time and labor required, the difficulty of the issues involved, fees customarily charged for similar services, results obtained, and the experience, reputation and ability of the lawyer. Many of these factors are very subjective and hard to precisely measure.

Perhaps the most common fee-related complaint lodged against lawyers is that the fee was not earned or was unreasonable. A neighbor of mine recently complained to me about paying a $1000 fee to an immigration lawyer who allegedly did nothing, but kept the fee. My guess is that the breakdown was one of communication more than it was one of dishonesty. A lawyer whose only communication about fees is in the form of an invoice is setting him or herself up for potential problems. Make sure you frequently invite open discussion about your fees and most disputes can be avoided.

Founder Dallin H. Oaks’ Visit Spurs Call to Join of Utah-born American Inns of Court Movement

by Isaac D. Paxman

Did you know that the American Inns of Court (“AIC”) movement was born here in Utah? Designed to enhance the skills, professionalism, and ethics of the bar and bench, the movement has swept the country, impacting over a hundred thousand attorneys and judges over the last three decades.

Dallin H. Oaks Addresses First Inn
On January 24, 2012, Dallin H. Oaks, who helped found the AIC movement, dined with and addressed the first American Inn at an evening event held in his honor at the courtroom of the Utah Supreme Court in Salt Lake City, Utah.

Utah Chief Justice Christine M. Durham introduced Elder Oaks, as he is now known in his calling as a member of the Council of the Twelve Apostles of The Church of Jesus Christ of Latter-day Saints. Chief Justice Durham, a long-time member of the A. Sherman Christensen American Inn of Court I, served with then-Justice Oaks on Utah’s highest court almost thirty years ago. She recalled the keen intellect, engaging stories, and warm humor Oaks brought to his interactions with fellow justices. Oaks, in turn, spoke highly of Chief Justice Durham as both judge and administrator, noting that the court was good before she arrived, but notably better after her arrival.

Oaks then recounted for those in attendance how he became involved with the founding of the AIC movement.

Oaks was president of Brigham Young University when he received a phone call announcing that Warren E. Burger, Chief Justice of the United States Supreme Court, was vacationing in Utah and wanted to meet with Oaks and Rex E. Lee, dean of the law school at BYU. Although both Oaks and Lee had clerked for justices of the U.S. Supreme Court, Oaks noted that neither had met Burger previously.

On an August morning in 1979, Oaks and Lee drove to a spot near the Upper Provo River. As they arrived at a cabin owned by O.C. Tanner, Burger greeted them in shorts, a tank top, and sandals. It is an image that Oaks said he can recall as though it was yesterday. “His distinction was far greater than his appearance,” quipped Oaks. As the Chief Justice bustled in and out of the kitchen, making and serving breakfast, Oaks and Lee still had no inkling of the reason for the unusual invitation.

After the meal, however, Burger confided that he was concerned about the trial skills of American attorneys. He was impressed with the English system, with its Inns of Court and the mentoring that occurred there, and wondered if BYU would launch a pilot program designed to capture some of the benefits of the English model. According to Oaks, Burger chose BYU because of his high regard for Dean Rex E. Lee, former U.S. Assistant Attorney General, and because he knew that Oaks, another U.S. Supreme Court law clerk, was its president. Burger “had all the authority he needed in that room” to get an immediate decision from the university, noted Oaks. Oaks and Lee accepted the invitation, and shortly thereafter a pilot program was underway.

After speaking about his involvement with the founding of the AIC movement, Oaks spoke fondly of his four “fathers in the law,” including U.S. Chief Justice Earl Warren, for whom he clerked, and described a significant lesson learned from each of them. His points regarding Chief Justice Warren were particularly applicable to members of our legal community. During his clerkship, Oaks learned to separate his affection for the person – and respect for his or her office – from differing views with the person. Near the end of his clerkship, Oaks realized he had disagreed with Warren’s votes roughly 60% of the time – a percentage Oaks found remarkably high, given that many of the votes had no direct tie to judicial activism or any other philosophical leaning. Yet throughout his clerkship and afterward, Oaks felt both deep affection for Warren, who was good and kind to Oaks and his family, and high regard for his office. Oaks declared that our “commonwealth” would be better off if all understood and implemented this principle.

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Utah Department of Health Hearing Process

by Drew B. Quinn

While relatively few people have experience filing requests for administrative hearings with the Utah Department of Health, this lack of know-how should not prevent attorneys representing medical assistance beneficiaries or providers from doing so. This area of law may afford attorneys the opportunity to provide pro bono services to Medicaid clients who can benefit from legal representation. The following article describes the steps an attorney must take to assist such a client, pro bono or otherwise.

Administrative fair hearings for Medicaid applicants, beneficiaries, or providers are an interplay of federal law, federal regulations, state law, state administrative rules, and policy and provider contracts. This article provides the ABCs of negotiating the hearing process at the Office of Formal Hearings, Division of Medicaid and Health Financing, Utah Department of Health (“DOH”).

The right to a Medicaid hearing originates in Title XIX of the Social Security Act. The Code of Federal Regulations requires states to provide a fair hearing to a Medicaid applicant or recipient whose claim was denied, given limited authorization, not acted upon promptly, or whose previous authorized service is reduced, suspended, terminated, or denied. See 42 C.F.R. §§ 431.200, -201. Utah rules also grant the right to a hearing to an “aggrieved person,” which includes providers. See generally Utah Admin. Code R410-14. These broad provisions open the door to an applicant, recipient or provider who for some reason disputes the action taken by Medicaid. To request a hearing, the following steps must be followed.

The Department of Workforce Services (“DWS”) determines eligibility for Medicaid and other medical assistance programs such as Children’s Health Insurance Program and Primary Care Network. Appeals from denials of eligibility must be filed with DWS, except for appeals from denials of disability under the Medicaid program. Responsibility for disability appeals was recently moved to DOH, and the request for hearing must be filed with the Office of Formal Hearings.

All Other Claims
Most appeals come from clients or providers who either have not received, or not been paid for, medical services. The correct place for filing these and other appeals is with the Office of Formal Hearings at DOH. However, there is an extra step for Medicaid clients living along the Wasatch Front who are required to enroll with a managed care organization (“MCO”) such as Molina Healthcare or Healthy U. A client or provider who is displeased with an action taken or denial given by an MCO must file his or her appeal and complete the appeal process with the MCO before having the right to a fair hearing with the State.

A hearing request must be filed within thirty days of the agency’s written notice of an intended action, except that an expanded time limit of ninety days in which to file an appeal is given to persons denied eligibility for Medicaid. A request must also be filed within thirty days of an appeal of a denial by an MCO.

A request must be in writing, and should be on the Request for Hearing form found on the Utah Medicaid website under “Forms.” See http://health.utah.gov/medicaid/pdfs/Forms/HearingRequest2010.pdf (last visited May 30, 2012). Please fill the form out as completely as possible and include all relevant documentation. Incomplete information delays the processing of the file. If you are an attorney joining an appeal that was already initiated by a Medicaid client or provider, you must file a notice of appearance in order to have access to information about the case.

Complete information should be included with the hearing request, as indicated by the instructions on the form. Be sure to include a copy of the denial letter or other document you are appealing. If you are appealing a denial on appeal from an MCO, please submit the final decision from the MCO. The type of issue will dictate what sort of supporting documentation is appropriate, whether it be medical records, proof of billing, or other records.

Because most petitioners in this forum are pro se, the procedures of this office are kept as informal and helpful as possible. However, a Medicaid hearing must follow the due process principles outlined in Goldberg v. Kelly, 397 US 254 (1970), which provides the right to a full, evidentiary hearing before an impartial hearing officer, including the right to present witnesses, confront and cross-examine adverse witnesses, and be provided the reason an action was taken or not taken. See id. at 266-71; 42 C.F.R. § 431.205(d). The Utah Rules of Civil Procedure do not apply, and hearsay evidence can be used to supplement or explain other evidence. Hearings must comply with the Utah Administrative Procedures Act, see generally Utah Code Ann. §§ 63G-4-101 to -601 (2011), and the procedure in the Office of Formal Hearings is governed by the Utah Administrative Code, see generally Utah Admin. Code R410-14.

After a file is opened, each timely hearing request is referred to the department within the DOH that took the action or issued the denial that is being appealed. Occasionally, if the problem is straightforward and can be solved easily, the reviewer may call the petitioner directly and work with them to resolve the issue. All others are scheduled for a prehearing conference call with the petitioner, the administrative law judge assigned to the case, and a representative of DOH.

The prehearing conference call provides an opportunity for Medicaid to explain its action or denial and the rule or policy on which it is based. The petitioner has the chance to ask questions and provide additional information that might be helpful. Our goal is to have an informative and substantive discussion about the case. A participating attorney should be prepared to explain the Medicaid action that his or her client disagrees with and why the action was erroneous, and to present the relevant federal and state laws, rules, and policies. At the conclusion of the call, if the issue is not resolved, or neither party agrees to withdraw, the case may be pended for additional information or agency review, another prehearing call, or scheduled for a formal or informal hearing. If there are no material facts at issue, the case may be briefed by the parties or submitted for decision on the existing record, and a written decision is rendered without holding a hearing.

A hearing gives the petitioner a court-like forum in which to present witnesses, evidence, argument, and cross-examine the Medicaid witnesses. Hearings are recorded, either by an audio device or by a court reporter, depending on the expected length of the hearing and the complexity of the issues involved. A written recommended decision is thereafter given to the director of the Division of Medicaid and Health Financing, who can accept, modify, or reject the decision, and who issues a final order.

Formal v. Informal
All agency adjudicative proceedings are conducted formally unless specifically designated as informal. A party wishing his or her case to be designated as informal must make a motion to the court, alleging that changing the proceeding from formal to informal is in the public interest and that its conversion does not unfairly prejudice the rights of any party. The primary reason for asking for a change from formal to informal pertains to what court an adverse decision may be appealed.

Appeal Rights
Any party wishing to challenge a Final Agency Order has two options: judicial appeal or reconsideration. District courts have jurisdiction to review by trial de novo all final agency actions resulting from informal appeals; the Utah Court of Appeals or Utah Supreme Court hears appeals from formal hearings.1 See Utah Code Ann. §§ 63G-4-402, -403 (2011). Prior to a judicial appeal, a party may request a reconsideration of the opinion from the Medicaid director within twenty days of the release of the decision.

The Office of Inspector General of Medicaid Services (“OIG”) was created by the Utah Legislature during the 2011 legislative session. It is an entity separate from DOH that selects and reviews representative samples of claims submitted for reimbursement under the state Medicaid program to determine whether fraud, waste, or abuse has occurred. All questions about requests or letters that come from OIG must be directed to that office, at PO Box 143103, Salt Lake City, Utah 84114-3103, telephone 801-538-6123.

Our office tries to make the hearing process user-friendly while protecting the due process rights of the participants. If you have questions about the hearing process in general you may e-mail me at dbquinn@utah.gov or call our office at 801-538-6576.

1. The Utah Court of Appeals has original appellate jurisdiction over judicial review of every agency’s decisions except for six agencies reserved to the Utah Supreme Court. See Utah Code Ann. §§ 78A-3-102, 4-103 (Supp. 2011).

I Finally Got My Day in Court

by Peg McEntee

EDITOR’S NOTE: A version of this article was previously published in the Salt Lake Tribune. The Bar Journal does not ordinarily publish material that has appeared elsewhere, but given the subject of the column, an exception seemed appropriate in this case.

Last fall, I was talking to a top cop and mentioned I was on a list for jury duty. Don’t worry, he said, they never choose cops, lawyers, or reporters.

The next morning, I reported to a Third District courthouse, where the jury pool was questioned briefly about age, profession, marriage status, children, and residence. Then the attorneys spent about ten minutes deciding which of us to keep. In the interim, the judge read us a brief history of justice, starting with the hunter-gatherers and ending with the U.S. system, which he deemed the finest in the world.

So it was with considerable surprise that, despite my profession, I was named to a six-member jury for a criminal trial. We were sworn in and took our seats. By serving as jurors, the judge told us, we would not only be doing our civic duty, we would be ennobled by the experience. Then we got down to work.

The trial involved allegations that, in the midst of an acrimonious divorce, one person violated a protective order and engaged in criminal mischief. The protocol was familiar to what I’ve seen covering scores of trials. The defense and prosecution offered opening statements and the first witness took the stand, describing what she believed the defendant had done. More witnesses followed, each with his or her version of the chain of events, some in conflict with the others. Periodically, we’d be led out of court and to the jury room by a bailiff who lightened the mood with truly awful jokes, most involving Utah and BYU football players. When we returned to court, the bailiff would proclaim, “All rise for the jury!” For the first time, people were rising for me.

We were released for lunch, and I headed to a diner the bailiff recommended. As it happened, the accuser and who I assumed was an attorney were there, and I took care to sit as far away from them as possible. Back in court, we heard a last witness, and then the defense attorney and prosecutor gave their closing arguments. But before we were led to the jury room, the judge advised us that one of the charges had been resolved. Meantime, the criminal mischief charge had been reduced to a class B misdemeanor.

The moment the door shut, we chose a foreperson, who seemed to really want the job, then started talking. The judge had given us a general instruction on how to consider the thirty-three specific jury instructions. For example, all the jury instructions were equally important and should be thought of in the context of all the rest. We must obey the instructions and cannot reach decisions that go against the law. (It’s worth noting that after the column dealing with my jury experience ran in the Tribune, a gentleman brought me some literature on jury nullification.) Very important: keep an open mind and don’t look at news reports regarding the case. Most important: we must agree that the prosecution has proven its case beyond a reasonable doubt to reach a verdict of guilty.

There wasn’t much discussion about reasonable doubt. We agreed on its meaning and moved on. We talked intently for an hour, weighing the testimony, using common sense to figure out who had done what and why, and referring often to the instructions. Then the foreperson polled us, and we all said we couldn’t get past the standard of beyond a reasonable doubt. Given the testimony, which included some unsavory family issues, we agreed the prosecution’s case was just too weak to convict. We acquitted the defendant.

There are times when one’s acute attention and focus is paramount. In my business, that may be big breaking news that requires absolute focus and the most ethical decision-making. On that Wednesday in October, everyone involved in that trial was fully engaged, and the urgency of the issue was palpable. After our verdict, we were ushered back to the jury room and the judge came in, sans robe, to talk with us about the experience. He listened as attentively as he had in the courtroom, and we gave him the same respect. He also said the case was weak to begin with, and apologized for wasting our time. All six of us said our time certainly was not wasted, and that we had, in fact, been ennobled.

As dusk was falling, a couple of jurors and I walked out of the courthouse together, then scattered to find our cars. It’s likely we’ll never see each other again, but I’ll always remember that day and those good people.

The Utah Territorial Bar Association: Our Forgotten Heritage

by Michael S. Eldredge

On the official Utah State Bar website, the history of the Utah bar before 1931 condenses into one compound sentence: “The history of the Utah State Bar began in the early 1900s with the association of several Utah lawyers hoping to improve communication within the legal community and to find ways of serving the general public.” See “Utah State Bar History & Purpose,” Utah State Bar, http://www.utahbar.org/public/bar_history_and_purpose.html, (last visited April 1, 2012). Whether because of oversight, or a generally accepted lack of relevance, the result is the same; Utah is forgetting its legal heritage, one that is as unique, colorful, and controversial as Utah’s struggle for statehood and beyond.

The seal of the Utah State Bar has emblazoned on the bottom, the year “1931.” However, regarding the organization of the legal community in Utah, 1931 is misleading. If anything, it merely commemorates the year that the Utah State Bar became integrated; all lawyers practicing in Utah were required to be members. The Utah State Bar became a creature of statute and reformed the entity of organizational existence; the people, the goals and ideals remained the same.

Utah attorneys have a heritage similar to Wisconsin, which organized in 1878. Indeed, the American Bar Association also formed in 1878, but because of its multi-jurisdiction membership it remains a voluntary organization today. Wisconsin, Utah, and several other state bar associations went from elite associations of lawyers whose membership did not include all resident attorneys, to becoming fully integrated by the mid-twentieth century. Perhaps revisiting the legal historical roots in Utah will shed some light on what may be misperceptions by many as a gross oversight of our true legal heritage.

The Organic Act for the Territory of Utah passed on September 9, 1850, as part of the Compromises of 1850. However, Brigham Young did not receive word until the following January 28, 1851, when George Q. Cannon returned from California. Cannon had purchased an old copy of The New York Tribune in Los Angeles in December, delivered from a ship traveling from the Panama overland route. Although chagrined at the changes in area and name of the State of Deseret, Young accepted his appointment as governor. See Orson F. Whitney, History of Utah 452 (George Q. Cannon & Sons Co. 1892-1902.

Justices Lemuel G. Brandenbury and Perry Brocchus arrived in August 1851 and joined by Zerubbabel Snow, a Mormon already residing in the territory, gave Utah its first judiciary capable of admitting lawyers to the bar of the federal courts in Utah. The dubious session, however, ended abruptly as Brandenbury and Brocchus fled the jurisdiction in September 1851 in the famous case of the “runaway judges.” Justice Snow was left behind, and on October 6, 1851, an improvised court seal was adopted. The legislative assembly authorized him to hold district court in all three districts, necessitating him to admit members of the bar in the Territory of Utah. Without addressing the history of the troubles of the bench and bar of the Utah Territory over the next forty years, about which much has been written, suffice it to say that the profession of lawyering had some interesting and colorful challenges.

Throughout the latter half of the 19th Century, lawyers who wanted to practice in the Territory of Utah petitioned the Supreme Court for admission, accompanied by the recommendation of an examination committee. Once being admitted, lawyers were members of the bar of all the courts in the territory, much the same as the federal courts continue to do today.1 In essence, there was a Bar of the Territory of Utah, but no bar association existed until 1884. Years later, the Territorial Legislature memorialized the requirements to be admitted to practice law in Section 3100, Volume 2, Page 214 of the Compiled Laws of Utah (1888), which required an applicant to be: (a) a citizen of the United States, or one who has declared his intentions to become the same in the manner as required by law, (b) that he be over the age of 21, (c) of good moral character, and (d) possess the necessary qualifications of learning and ability. It was the latter qualification that was anything but objective.

Education was an integral part of a lawyer’s admission to a bar. The first law school in America was the Litchfield Law School in 1784, followed some sixty years later by Harvard and Yale, and in 1858 at Columbia. The pattern in all law schools was the same, preparation of the student for apprenticeship by studying works such as Abraham Lincoln recommended: Blackstone’s Commentaries, Chitty’s Pleadings, and Story’s Equity and Equity Pleading. The case method of Socratic learning did not appear until Columbus Langdell instituted it at Harvard in 1870, but by 1900 it was gaining favor over the apprenticeship method as the most efficient way to train lawyers in the eastern population centers. However, most lawyers in the 19th Century did not attend law schools, but rather chose to “read” law under the supervision of an experienced lawyer, and serve as the lawyer’s apprentice. An apprenticeship would last preferably two, even three years before applying for admission to a bar. Indeed, as the website of the American Bar Association states,

The legal profession as we know it today barely existed at that time. Lawyers were generally sole practitioners who trained under a system of apprenticeship. There was no national code of ethics; there was no national organization to serve as a forum for discussion of the increasingly intricate issues involved in legal practice.

“History of the ABA,” American Bar Association, http://www.americanbar.org/utility/about_the_aba/history.html, (last visited April 1, 2012).

It is more than a coincidence that the bar associations began appearing the same time legal education was undergoing changes. Though the territory and state did not have a law school until the University of Utah Law School was founded in 1913, the paradigm was certainly not lost on the lawyers of Utah. Law was becoming a sophisticated and organized profession that had infinitely more objective in admission standards and rules of practice.

On January 8, 1894, Elmer B. Jones called a meeting of several attorneys to order, at the Federal Courthouse in Salt Lake City. After preliminaries, Jabez G. Sutherland, Franklin S. Richards, Richard B. Shepard, William H. King, and L. R. Rogers were appointed to form a permanent organization, constitution, and bylaws of a territorial bar association. See Proceedings of the Territorial Bar Association of Utah 4 (Salt Lake City Magazine Co. 1894).

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Survey Says…Mentors Reap Benefits of Mentoring

by Elizabeth A. Wright

At the Utah State Bar Summer Convention in Sun Valley, Idaho, the Bar Commission will recognize Sharon Donovan of Dart, Adamson & Donovan and Riley “Josh” Player, an Assistant District Attorney at the Salt Lake County District Attorney’s Office, as Outstanding Mentors in the New Lawyer Training Program (“NLTP”). New lawyers who have been mentored in the NLTP were invited to nominate their mentors for the first “Outstanding Mentor” award to be given in July. Though Ms. Donovan and Mr. Riley are to be commended for their outstanding service, there were many other terrific nominees. The large number of thoughtful nominations indicates that the new lawyers are truly appreciative of the time mentors devote to them and the relationship that is formed. The following comments from mentees demonstrate the significance of mentoring in the early stages of a lawyer’s career:

• “The relationship that [my mentor and I] developed through the mentoring program is one of the most valuable assets I maintain in my practice.”

• “[My mentor] guided me through my first year as an attorney and continues to do so as I become a more experienced attorney. I am a better attorney because of [my mentor’s] guidance.”

• “I gained a life-long friend and confidant.”

• “My mentor taught me how to be a good member of the legal community.”

• “[My mentor’s] encouragement and advice helped me through a very difficult first year as a new lawyer.”

• “[My mentor] was genuinely interested in making sure that I was prepared to be a well-rounded and skilled attorney.”

The Bar’s mentoring program has been humming along nicely since 2009. The NLTP requires new admittees to the Utah State Bar to work with a Utah Supreme Court Approved Mentor during their first year of practice.1 The mentor and new lawyer are required to meet once a month for twelve months to discuss the new lawyer’s legal work, professional development, and adjustment to the practice of law. They are also required to discuss the Rules of Professional Conduct as a means of more effectively teaching and fostering professionalism, ethics and civility. Both the new lawyer and the mentor receive twelve CLE credits for participating in the program. There are 804 approved mentors in the NLTP, 285 of whom are currently mentoring new lawyers. By the time this article appears in print, 561 new lawyers will have completed the program.

As Coordinator of the NLTP, I have the pleasure of interacting on a regular basis with our state’s newest lawyers and have found it extremely rewarding to work with new lawyers as they begin their careers and find their way in the profession and our legal community. I am glad to answer new lawyers’ questions about the Utah State Bar, how it works and what it offers to them professionally and personally.

However, because of the way the NLTP is designed, I have much less interaction with our NLTP mentors. I am aware of the time and effort NLTP mentors are devoting to their mentees, not only because I know what the program requires of them, but because I hear from the new lawyers about the work they do together. I know the practice of law is stressful and time consuming. I know people’s personal lives are busy. I know that mentoring hours are non-billable. So when I see and hear what NLTP mentors are doing to teach and help their mentees I am appreciative, but I also hope and wonder if they are glad they took on this huge task.

Why would a busy, experienced lawyer take the time to mentor a new lawyer? There are multiple studies and articles that discuss the benefits of mentoring for the mentor.2 The benefits of mentoring include building leadership skills, expanding horizons, revitalizing an interest in one’s own career, and expanding one’s professional network. Mentoring is good for business because it helps legal organizations attract and retain good lawyers. Finally, mentoring is community service. Lawyers who are successful and/or who had mentors themselves often like and want to give back to the profession.

To find out if NLTP mentors are reaping the benefits of mentoring, the Bar did a survey of mentors in 2011. The mentors who responded all said they would mentor again and recommend mentoring to other experienced practitioners. 88.7% think that mentoring is an effective way to train new lawyers in the practice of law. 94% will maintain a relationship with their mentee. 87.3% feel they benefitted from participating as a mentor.

Here are some quotes from the survey that support what the studies say about the benefits of mentoring:

• “Mentoring made me reflect on my practice and how I could improve.”

• “It is gratifying to pass on what you have learned in practice.”

• “It gave me an appreciation of how hard it is to commence a practice and what ‘blind spots’ new lawyers have that require assistance.”

• “I had to pay much more attention to detail and it required me to make sure I understood and followed correct procedure. Mentoring required me to update myself on certain areas of the law.”

• “It made me review the Rules of Professional Responsibility.”

• “It helped me share my experience and advice to better help the new lawyer, which in turn made me feel better about my job as an attorney.”

• “I benefited as it was a way of paying back to those that encouraged me in my early legal career.”

• “I had to analyze the ‘why’ of things.”

• “The preparation for each session was good review for me.”

• “New relationships will foster career development for both parties.”

• “I made a much stronger connection to the new attorney than would have taken place otherwise.”

• “It is a great feeling to be a mentor. Both times have been very special, particularly at months 10, 11, 12 as you realize how much you’ve been able to do together.”

• “I enjoyed being around enthusiastic young people.”

• “Acting as a mentor showed me how much my knowledge, skills, and confidence have increased since I was a new lawyer. I confirmed that I actually know a few things about practicing law and doing it well.”

The survey results mirror the scholarship about mentoring and demonstrate that mentors find the mentoring experience personally and professionally beneficial. Serving as a mentor creates an opportunity for mentors to develop new business contacts, friendships that may last a lifetime, the opportunity to pass on some of their insights from years of practice, and the satisfaction of knowing they have contributed positively to the well-being and integrity of the profession.

1. New admittees who have practiced in another jurisdiction for at least two years or who live outside of Utah are exempt from the NLTP.

2. See, e.g., Raymond A. Noe, David B. Greenberger and Sheng Wang, Mentoring: What We Know and Where We Might Go, 21 Research in Personnel and Human Resources Management 129, 151 (2002); Connie R. Wanberg, Elizabeth T. Welch and Sarah A. Hezlett, Mentoring Research: A Review and Dynamic Process Model, 22 Research in Personnel and Human Resources Management 39, 52-53 (2003); Sharon K. Gibson, Being Mentored: The Experience of Women Faculty, 30 Journal of Career Development 173, 173 (2004).

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The Mortgage Lender’s Primer on a TILA Rescission Claim

by Aaron B. Millar

The latest statistics show that although the Utah foreclosure rate has decreased, Utah foreclosures are still quite high relative to the nation. In Q3 2011, one in 145 Utah homes was in foreclosure, sixth highest in the nation. See http://knowledgebase.findlaw.com/kb/2011/Dec/504952.html. Consumers often turn to consumer protection statutes, such as the federal Truth in Lending Act (“TILA”), for protection against foreclosing lenders.

Imagine this scenario: Hours before the foreclosure sale, the mortgage lender receives a fax from the defaulting borrower’s lawyer stating that the borrower rescinds the loan and that the lender is obligated to reconvey its deed of trust because the finance charge in the loan disclosures was understated by $36. The borrower further demands that the lender return all of the fees and interest payments the borrower made on the loan. Possible? Yes. Many lenders have been unprepared to confront a rescission demand under TILA. Given the tight statutory time frame and the risks involved, the lender must proceed expeditiously and with caution when responding to a rescission demand.

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Attorney Discipline

Utah State Bar Ethics Hotline

Call the Bar's 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 Bar's 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.

On March 15, 2012, 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 3.5(b) (Impartiality and Decorum of the Tribunal), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
The attorney represented an employer in an administrative hearing before the Workforce Services Board. After receiving an unfavorable ruling, the attorney represented the employer in an appeal of the unemployment eligibility decision before the Utah Court of Appeals. The Utah Court of Appeals affirmed the decision and issued its decision. The attorney sent a letter to the judges involved in the case. The letter was entered on the court’s docket. A copy of the letter was not sent to opposing counsel on the case. The letter criticized the court’s decision and asked the court to reconsider the merits of his arguments. The criticism was made in a disrespectful and condescending manner. At the time the attorney sent the letter to the judges, the time for appealing the decision had passed.

Mitigating factors:
Absence of prior discipline and absence of dishonest or selfish motive.

Aggravating factors:
Refusal to acknowledge wrongful conduct and begrudging acknowledgment that the language could be offensive.

On March 22, 2012, 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 1.2(a) (Scope of Representation) and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
An attorney was hired for a bankruptcy matter. The attorney failed to adequately communicate with the client regarding the consequences of the trustees’ objections. The failed communication with the clients resulted in the attorney allowing the conformation hearing to go forward with an unacceptable payment plan for the debtors. The client should have approved the payment in advance. The attorney failed to communicate with the clients regarding the consequences of the hearing and the strategy being employed. The attorney’s behavior was generally negligent and caused injury.

Mitigating factors:
Lack of prior discipline.

On March 26, 2012, 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 8.4(c) (Misconduct) and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
The attorney was hired to represent a client in a custody and child support matter. The attorney received an initial payment with additional payments to be paid in the future. As the representation progressed, the client was unable to make payments and the amount owed to the attorney continued to grow. The client and the attorney exchanged text messages where the attorney indicated the client could pay the bills in “other ways.” In an effort to persuade the client, the attorney indicated they would write off a set amount of the bill for each “visit.” Although it appears that the client considered accepting the attorney’s offer, the client did so only because the client did not want the attorney to withdraw from representation. The client acknowledged that the attorney’s representation was not negatively impacted by the text message exchanges. After the client submitted the complaint to the OPC, the attorney was offered a diversion, with one of the terms being that the attorney would write off the remainder of the client’s bill. The attorney negligently sent an email to the client believing that the client was aware of the diversion proposal. The attorney believed that the terms of diversion were not determined with regard to whether any fee waiver would be less than the total outstanding amount. Little injury was caused.

Mitigating factors:
Personal problems; seeking and receiving counseling; and remorse.

On March 26, 2012, 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 1.1 (Competence), 1.3 (Diligence), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
The attorney failed to review the client’s documentation. The attorney failed to adequately prepare for the client’s administrative hearing. The attorney failed to timely submit evidence and review documents submitted by the client and others. This resulted in little or no injury.

Mitigating factors:
Lack of prior discipline.

On April 12, 2012, 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 1.4(a) (Communication), 1.15(d) (Safekeeping Property), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
Following the termination of the representation, the attorney knowingly failed to provide the former client a full accounting of the retainer despite requests for such accounting. The attorney negligently failed to keep the client reasonably informed about the status of the retainer. The attorney failed to inform the client about circumstances when disgorgement of the retainer might occur by including a disgorgement provision in the fee agreement. There was generally little or no injury because the fee was earned and reasonable in light of the services rendered.

Mitigating factors:
No prior history of discipline; no dishonest or selfish motive; and eventual (although untimely) accounting was provided.

Aggravating factors:
Refusal to acknowledge wrongful conduct; substantial experience in practice; and vulnerability of the client.

On February 28, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Bryan T. Adamson, for violation of Rules 1.4(a) (Communication), 1.5(b) (Fees), 1.15(d) (Safekeeping Property), 7.1 (Communications Concerning a Lawyer’s Services), 7.2(c) (Advertising), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
Mr. Adamson and his client entered into a contingency fee agreement wherein Mr. Adamson agreed to represent the client in a medical malpractice case. The client paid Mr. Adamson an advance to cover filing costs. The client later sent Mr. Adamson an email terminating the representation and requesting a return of the filing costs. Mr. Adamson responded that he would not refund any money because he had spent significant hours on the case. Mr. Adamson further told the client that he would place a lien on the case if she took the case to a new attorney. Mr. Adamson told the client her case was not worth pursuing. The client sent three follow up requests for Mr. Adamson to provide an itemization of his fees. Mr. Adamson refused to provide an itemization of his fees. The client again requested that Mr. Adamson document his lien claim so that she could make a decision about whether to proceed with her case. Mr. Adamson did not respond to this request. Mr. Adamson had not done the amount of work on the case to justify the figure he used when threatening to place the lien. Mr. Adamson’s yellow page advertising included a guarantee that he would pay a client $1000 if they did not win their case. Mr. Adamson’s firm website did not contain his name. Mr. Adamson was informed by the OPC that the website did not contain his name, but he failed to take steps to correct it.

On April 9, 2012, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Bryan T. Adamson, for violation of Rules 1.4(a) (Communication), 1.4(b) (Communication), 1.5(b) (Fees), 1.16(b) (Declining or Terminating Representation), 1.16(d) (Declining or Terminating Representation), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
Mr. Adamson was retained to represent a client in a divorce. The fee agreement was signed by the client’s mother, who also paid the fee. The fee agreement was entitled “Stipulated Divorce Flat Fee Retainer Agreement.” The fee agreement provided that the case would be handled on a flat fee basis, but in the event of trial, the client would pay an hourly rate. Mr. Adamson filed the Petition for Divorce and later sent the client an invoice for an amount over and above the flat fee already paid. Prior to sending the bill, Mr. Adamson did not communicate to the client that he had converted the case from a flat fee to an hourly rate. Later Mr. Adamson told the client he would not complete the case until the fees were paid. Mr. Adamson eventually withdrew from the case. Mr. Adamson admitted that when he withdrew from the case there was only about thirty minutes of work left to do on the case to get the divorce finalized.

On April 17, 2012, the Honorable Steven L. Hansen, Fourth District Court, entered an Order of Discipline: One Year Suspension suspending Earl B. Taylor from the practice of law for one year for violation of Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.15(a) (Safekeeping Property), 7.3(c) (Direct Contact with Prospective Clients), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
Potential clients received a form letter from Mr. Taylor advertising Mr. Taylor’s bankruptcy-related services. The form letter indicated that Mr. Taylor could assist them in preventing foreclosure of their home. The phrase “Advertising Material” was not located on the form letter or the envelope. At their initial consultation, the clients paid Mr. Taylor money toward his advance fee and provided Mr. Taylor with a packet containing their asset and debt information. Later, when the clients sought to pay the remainder of the advance fee, Mr. Taylor asked them to deposit cash directly into his personal bank account. They deposited the money into his account. During the period of the representation, Mr. Taylor did not have a client trust account. Mr. Taylor also did not place the advance fee into a client trust account. The clients were expecting to pay the remaining balance at the next court date. Mr. Taylor filed a Petition for Chapter 7 Bankruptcy on behalf of the clients. The clients paid the filing fee. Later, the clients were notified that Mr. Taylor failed to submit numerous required documents to further their Bankruptcy. Mr. Taylor had to provide the documents or the Petition would be dismissed. Mr. Taylor failed to submit the documents and the Petition was dismissed. After learning of the dismissal, the clients confronted Mr. Taylor who agreed to re-file their Petition. A second Petition was filed. The Bankruptcy Court served Mr. Taylor with a Deficiency Notice identifying numerous documents that he had failed to provide. Later the client’s second Petition for Bankruptcy was dismissed. The clients contacted Mr. Taylor upon learning that their second Petition for Bankruptcy had been dismissed. Mr. Taylor indicated he would pay for and re-file the Petition for a third time. Mr. Taylor failed to file the third Petition for Bankruptcy. The clients repeatedly tried to communicate with Mr. Taylor. Mr. Taylor stopped responding to the client’s telephone calls and emails. The clients were forced to retain another attorney to complete their Bankruptcy. Mr. Taylor was served with a Notice of Informal Complaint (“NOIC”). Mr. Taylor failed to submit a response to the NOIC.

On March 29, 2012, the Honorable Paul G. Maughan, Third District Court, entered an Order of Discipline: Suspension suspending Jeffrey M. Gallup from the practice of law from January 26, 2010 until March 29, 2012 for violation of Rules 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Utah Rules of Professional Conduct.

In summary:
On January 22, 2009, Mr. Gallup entered a no contest plea to one count of Violation of a Protective Order, a 3rd degree felony. On April 30, 2009, Mr. Gallup entered a guilty plea to one count of Violation of a Protective Order, a 3rd degree felony. On June 30, 2009, Mr. Gallup entered a guilty plea to one count of Violation of a Protective Order, a 3rd degree felony. On August 18, 2009, Mr. Gallup entered a guilty plea to two counts of Driving Under the Influence of Alcohol/Drugs. Mr. Gallup was placed on interim suspension on January 26, 2010 based upon the felony convictions. The suspension was lifted on March 29, 2012 allowing Mr. Gallup to file for reinstatement when he chooses to do so.

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Estate Planning: A Practice Management Primer

by Matthew L. Mitton

Invest in Yourself
I made a presentation last year to the Young Lawyers Division on practice management tips for new estate planning attorneys. I decided to tailor the presentation around practice management issues rather than to attempt to present a comprehensive primer on estate planning.

I mentioned to this group of new lawyers that the most rewarding thing I do as an estate planning attorney is meet with people with diverse, interesting and challenging needs and objectives. Like many of my colleagues, I am privileged to meet fascinating people who are happy to engage my services. I can’t think of a better way to practice law. I spend most of my days in consultations with clients that range from two to three hours. Why bring this up? I believe it’s critical to understand early in your practice what your strengths and weaknesses are before you find yourself in a state of torment. I know attorneys who don’t enjoy spending hour after hour in consultations with clients; they would rather spend hours in front of the computer drafting estate planning provisions or researching complex tax matters. If you are a technician, find a practice area where those talents and strengths are needed, and where appropriate, find colleagues that can add other dimensions to your practice where you lack.

The greatest complaint clients have expressed to me as they meet with attorneys is the inability to communicate complex legal terms and ideas in a “language” they understand. The estate planning experience can be emotionally charged and complicated to begin with. If the client doesn’t understand how their attorney and counselor at law can solve their legal challenges, the attorney-client relationship will fail and the efficacy of the plan will be at risk over time.

One of the best things that ever happened in my early practice was the opportunity I had to present estate planning topics to countless associations and groups throughout the state. Take every opportunity in your new legal career to speak and teach. Make certain you practice and hone the craft of effective communication. This skill may serve you better than any other skill I know. The other skill new lawyers must fight to develop is the ability to listen when you need to listen. After three years of law school, we are anxious to tell people what we know. In my opinion, the key to every successful estate planning engagement is rooted in your ability to be an empathetic listener and effective communicator. Don’t be afraid to discuss these skills with and solicit honest and constructive feedback from friends and family, or other colleagues.

Invest in Good Forms and CLE
If you are in a well-established firm with an existing estate planning practice group, you probably have great forms at your disposal; however, even the best forms can become outdated over time. Make it a point to review and update forms as a practice group at least once a year, if not more frequently.

In a small firm or solo practice, one of the most critical “practice management” decisions an estate planning attorney will make is choosing solid estate planning software and forms. In a recent conversation I had with a local banker, he remarked that most attorneys in the same geographic area would ultimately draft a “common” or “shared” trust agreement. While that might have been the case years ago, the proliferation of estate planning documents through myriad internet and publishing sources has led to a very robust “forms menu” for lawyers in every imaginable practice. The American Bar Association routinely sells estate planning documents and conducts CLE workshops in this area of practice. Practice management groups like WealthCounsel (wealthcounsel.com) and the American Academy of Estate Planning Attorneys (aaepa.com) cater to lawyers and firms who not only want forms, but are also willing to pay for assistance in other practice management areas. These companies provide marketing assistance, law firm profitability analysis, case mentoring, and assistance with staffing and ongoing education support. It is not inexpensive to join and pay the monthly dues for this type of service, but each lawyer needs to decide how the “business” of their practice will operate.

The American Bar Association is a great resource for estate planning forms and CLE. You can purchase materials to assist with drafting trusts, wills, powers of attorney, and other estate planning-related documents. I recently discovered a website that “links” together estate planning web sites from around the country (estateplanninglinks.com). It was through this website that I found several great estate planning resources that I use almost daily in my practice. Whether I need May’s applicable federal rate or an estate planning contact in Maine, estateplanninglinks.com and other websites provide tremendous assistance.

Your ability to stay current, relevant, and educated in this practice area is largely based, in my opinion, on your participation in CLE events. The Salt Lake Estate Planning Council meetings take place the third Wednesday of every month and the Estate Planning Section of the Utah State Bar meets the second Tuesday of each month. Well-established attorneys in this practice area generously share with their colleagues invaluable information that you may not be able to find from any other source. ALI-ABA, NBI, Lorman, and others offer classroom and online CLE events. These sources are fairly expensive, but may offer, in certain circumstances, important information for a complicated case or unique estate planning topics.

Invest in and Design a System
While it’s a cliché to say that we never learned “this or that” in law school, we have the ability to forge our own unique law-practice course. It’s perhaps just as well that no one formula for practicing law is presented in law school. As a new attorney, I was fortunate enough to learn from dozens of seasoned lawyers what it meant to create a “systems-based” practice. In a traditional business environment, a system is typically an unflinching course all employees and management pursue to send a product or service out the front doors. Why should it be any different in a law practice? As a service-oriented practice, an estate planning attorney should create and manage a system that provides a predictable service and product for a client. While every system is different, there are fundamental components that should never be ignored. Another way to approach this is to put ourselves in the client’s shoes and analyze if they have questions like these: After our first consultation, I’m still wondering what’s next? The meeting with the attorney went well, but I am still not sure what it will cost or how long it will take to complete the documents. Should I call the attorney to ask these questions or will a staff member call me to follow up? Once a client begins to ask these and other questions about the engagement, the level of confidence drops and the attorney’s ability to keep a happy client begins to disintegrate.

Creating a system around the entire client relationship not only holds the attorney accountable for the client experience, but just as importantly, it holds the client accountable to participate in a confident and purposeful way. A good system should clearly address questions about fees, how estate planning forms are delivered and completed, the amount of time to complete the project, client-staff interaction, and more. I will say it again, if the client is asking, “I just don’t know what happens next,” the system is broken, or no system exists.

Decide how you will charge your clients. Will you offer a free initial consultation, conduct annual reviews, or bill for phone calls and e-mails? Whatever you decide, make sure you have a clear understanding with your clients, and when appropriate, put it in writing.

Invest in Your Staff
If Kathy or Carie ever leaves my practice, I will retire immediately. Kathy and Carie are members of my staff; however, I view them as my practice partners. My law practice success is directly correlated to the interaction they have with my clients. I spoke earlier about business systems in this article. Kathy and Carie continually guide clients though our estate planning “system” and remind me when I stray from the system we work hard to implement and follow. They have been critical in shaping and changing, as needed, the systems that guide our clients through the estate planning process.

As I mentioned above, the members of your estate planning practice should be performing duties that correspond to their strengths and talents. In other words, let the technician do the technical work in your practice.

While this goes without saying, never, ever forget to offer thanks and words of encouragement to those who make your practice successful. Whether it’s a bonus that was expected or unexpected, flowers during professional assistants’ week, or a sincere expression of gratitude, we need our team members’ help more than they need our help. The respect and appreciation present within a successful practice group will always translate into better client-attorney relationships, practice efficiency and firm profitability.

Finally, I can’t think of a better way to make a living and I certainly can’t think of a better practice area. Good luck.

Young Lawyer of the Year 2011-2012: Gabriel K. White
Each year, the Young Lawyers Division has the difficult job of choosing one recipient from a stack of letters nominating outstanding and deserving candidates for the Young Lawyer of the Year Award. It is inspiring (and humbling) to read about the accomplishments that young lawyers have achieved early in their careers. This year Gabriel (ÒGabeÓ) K. WhiteÕs nomination stood out from the competition. Gabe is one of those rare individuals who has taken to heart the motto ÒSuccess comes to the person who does today what others were thinking about doing tomorrow.Ó Seeing a need go unmet, Gabe acts quickly to address it regardless of any obstacles.

Shortly after graduating from the S.J. Quinney College of Law in 2007, Gabe joined the law firm of Christensen & Jensen. He quickly became a rising star as one of the firmÕs litigation and trial lawyers.

Despite his thriving practice and heavy workload, Gabe has gone out of his way to serve young lawyers and underrepresented minorities. Among his other accomplishments, Gabe single-handedly created the Wednesday Night Bar program through Young Lawyers Division in 2009. Wednesday Night Bar is a semi-monthly legal clinic that provides low-income, Spanish-speaking Utahans with free legal advice. Gabe persisted in holding Wednesday Night Bar even when he was its only volunteer, and he is still a constant presence at the clinic. Under GabeÕs leadership, the program has expanded from the Salt Lake Valley to include hundreds of Utahns throughout Northern and Central Utah. Gabe hopes to eventually grow the program to serve Southern Utah too.

Gabe has also played a pivotal role in bringing the Practice in a Flash CLE Series to Utah. This program is designed to help the record number of young lawyers that are going straight from law school to starting their own practices. In addition to in-person and online free CLE training covering a variety of basic legal issues that young lawyers commonly encounter, Practice in a Flash participants will have access to an online database and flash drives donated by Lexis. The database and flash drive will contain practice forms, practice area specific training, and practical business advice for the small business entrepreneur.

When Gabe is not busy with his practice or saving the world, he loves to spend time with his wife, Wendy, and their daughter, Percy. Together they enjoy traveling.
Thank you Gabe for your service and example.

Paralegal Division: Letter from the Chair

by Danielle Davis

One of the highlights of the year as Chair of the Paralegal Division is the Annual Paralegal Day Luncheon and CLE which was held on May 17, 2012. Paralegal Day provides an opportunity to recognize everyone that has achieved their National Certification through NALA. This year there were sixteen paralegals added to the ranks of Certified Paralegals in Utah.

Paralegal Day is also the day to recognize a paralegal who, over a long and distinguished career, has by their ethical and personal conduct, commitment and activities, exemplified for their fellow paralegals and attorneys with whom they have worked, a high standard of professionalism and who has rendered extraordinary contributions that coincide with the purposes of the Bylaws of the Paralegal Division and of the Utah Paralegal Association. This year, the Distinguished Paralegal of the Year Award was presented to Bonnie Hamp, CP.

Bonnie was nominated by her supervising attorneys, Catherine L. Brabson and Lisa R. Petersen, who provided the following information about Bonnie in their nomination submission:

Bonnie began her career in the legal profession in 1978 as a paralegal for Utah Legal Services in Ogden working with low income clients and referring pro bono cases to private counsel. In 1985 she began working in a private practice handling domestic, corporate and administrative transportation issues before the Public Service Commission. From 1989-1993, Bonnie worked as a legal assistant with Suitter Axland Armstrong & Hanson. In 2000, Bonnie passed the National Association of Legal Assistant’s Certified Paralegal exam. From 2003-2007, she worked for Holme Roberts & Owen as a litigation paralegal.

Since 2007, Bonnie has worked for Parsons Kinghorn Harris, P.C. She initiated the conversion of an archaic conflict database where she worked with independent IT vendors to create and formulate a more efficient search mechanism for attorneys and staff to search for potential conflicts of interest. She has assisted her attorneys with preparation for and attended numerous trials and arbitrations, including a two-week arbitration at which she organized and electronically presented and organized numerous complex financial documents and spreadsheets, resulting in a victory for the firm’s client, including an award of all the firm’s attorneys’ fees and costs.

In 2009, Bonnie obtained her Advanced Paralegal Certification from the University of California, taking six substantive legal courses in Divorce Probate and Estates, Bankruptcy, Water, Legal Research, and Victim Advocacy.

From 2000-2010, Bonnie served on the Unauthorized Practice of Law Committee. She has also served several years as a Director on the Paralegal Division Board including a position on the Executive Committee and elected positions for Secretary and Finance Officer. Bonnie has also been a member of the Utah Paralegal Association (fka LAAU) and served on its Board as the NALA Liaison.

Bonnie, as evidenced by all of her achievements described above, is truly an exceptional person as well as professional. She is highly motivated, talented, smart, hardworking, thoughtful, and resourceful. She has excellent people skills and works incredibly well with all attorneys, staff, clients, court personnel, and opposing counsel. She is a great writer and organizer. There is no task that Bonnie cannot undertake and she approaches every project with a smile. Indeed, she is truly a pleasure to work with. There are few paralegals in this profession with whom either of us has ever worked who has such a broad catholicity of skills, deep integrity, genuine responsiveness, and kind temperament. We believe that she unquestionably deserves to be awarded the Distinguished Paralegal of 2012.

I have personally known Bonnie for many years and am pleased that the nomination committee felt her deserving of this year’s award.

This issue of the Bar Journal marks the end of my term as Chair of the Paralegal Division of the Utah State Bar. Thora Searle will be taking over as Chair for the 2012-2013 year beginning in July. It has been an honor to serve on the Division’s Board of Directors and on the Board of Bar Commissioners of the Utah State Bar as the Paralegal Division ex-officio member.

I look forward to working with Thora as she leads the Paralegal Division in the coming year.

Update to the Memorial Scholarship Created for Paralegal Heather Johnson Finch
Heather Finch was tragically killed in a late August 2010 airplane crash while traveling from Katmandu, Nepal to the Lukla Airport at the base of Mount Everest. Ê

Ms. Finch, a paralegal with over twenty years of experience in the legal profession, took over as Chair of the Paralegal Division of the Utah State Bar just two months before her tragic death. Heather was excited to be the Chair of the Division and had many exciting plans for her year of service. Heather dedicated her life to serving the legal community with countless hours of volunteering in the Utah State Bar Paralegal Division. In 2009, Finch was awarded UtahÕs highest honor for paralegals, the Distinguished Paralegal of the Year Award.

The Paralegal Division of the Utah State Bar, in coordination with the Finch and Johnson families and Utah Valley University, established the Heather Johnson Finch Memorial Endowed Scholarship to recognize her legacy, honor her dedication to the legal profession, and ensure that her leadership efforts continued. This scholarship was designed to achieve the goals that Heather had aimed to accomplish as a leader of the paralegal community, including promoting higher education and advanced training for paralegals.

The Scholarship must raise $30,000 to be fully funded and ensure HeatherÕs lasting legacy. The Scholarship to date has raised $14,134 through private donations, and through the First Annual Civility, Ethics, professionalism CLE held last June. The Division held its Second Annual Civility, Ethics and Professionalism CLE on June 26th at the Law & Justice Center. All proceeds going to the Heather Johnson Finch Memorial Endowed Scholarship. It is hoped that this scholarship will inspire generations of students as they learn about HeatherÕs remarkable qualities. For more information about how to contribute to the Heather Johnson Finch Memorial Endowed Fund, go online to http://www.utahparalegals.org/ or contact Nancy Smith at UVU, (801) 863-8896.


About July 2012

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

May 2012 is the previous archive.

September 2012 is the next archive.

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