Utah Bar Journal

Enhanced PDF Version
Basic PDF Version
NEW! The Bar Journal is now available in eBook & Enhanced PDF formats!

President’s Message: Looking Ahead
by Lori W. Nelson

Commission Message: Modest Means Lawyer Referral Program: How You Can Make this Program Work for Your Practice
by Hon. Su J. Chon

Article: Twombly and Iqbal: How the Supreme Court has Radically Redefined Access to the Federal Courts
by Aaron S. Bartholomew

Article: The New Respect for Justice George Sutherland
by Andrew M. Morse

Article: Five Proportionality Principles That Can Reduce eDiscovery Costs and Burdens
by Philip J. Favro

Article: How to Develop and Maintain Good and Lasting Client Relationships With In-House Corporate Counsel
by Virginia Smith & Paul Tyler

Utah Law Developments: The Limited Scope of the Wrongful Lien Statute
by Michael Barnhill

Book Review: The Death Penalty: Debating the Moral, Legal, and Political Issues Edited by Robert M. Baird & Stuart E. Rosenbaum
Reviewed by Ralph Dellapiana

Focus on Ethics & Civility: When it Comes to Ethics and Civility, Don’t Use Your Head
by Keith A. Call

Article: Looking for the Lorax on Utah’s Capitol Hill: SB 11 and the Re-Balkanization of State Agency Administrative Procedures
by Alvin Robert Thorup

State Bar News

Young Lawyers Division: Thinking of Swimming With the Sharks: Lessons Learned While Starting a Practice
by S. Yossof Sharifi

Paralegal Division: Message from the Chair
by Thora Searle

by Lori W. Nelson

As I begin the year as Bar President I want to first look back at everything Rod Snow was able to accomplish during his year. Most notable is the pro bono project designed by Rod to ensure there is pro bono coverage in each judicial district. Under the leadership of the pro bono committee headed by Rob Rice, James Backman, and Sue Crisman, the new Pro Bono Commission, chaired by Judge Michele Christiansen and Judge Royal Hansen, is prepared to get services to those in our society most in need.

Rod also moved forward the modest means project to match underemployed lawyers with low income individuals who do not qualify for a pro bono attorney. This project, spearheaded by Rob Jeffs, is also designed to meet the needs of the under-served population.

by Hon. Su J. Chon

The Utah State Bar Commission is getting ready to launch a new program called Modest Means Lawyer Referral Program (“Modest Means”).1 You may have heard rumors about it but don’t really understand what this may mean for your practice. Modest Means will benefit both the general public and Bar members because it will facilitate the provision of affordable legal services to those who might otherwise be forced to carry out their case on their own. For pro se litigants, this could mean having legal expertise at a rate that they can afford.2 For lawyers, the program will provide them with potential client referrals for paid legal services at a discounted rate.3 For the courts, this program could ease the backlog of pro se litigants who think that they cannot afford a lawyer.4

Modest Means will also complement the Pro Bono Commission to “Lend a Learned Hand” and reach those potential clients who may fall between the cracks in the legal system, earning too much to qualify for pro bono services, but not enough to pay for an attorney at the normal rate. Frederick Douglass said, “Where justice is denied, where poverty is enforced, where ignorance prevails, and where any one class is made to feel that society is an organized conspiracy to oppress, rob and degrade them, neither persons nor property will be safe.” Modest Means is a way to help this underserved segment of society in their navigation of the justice system.

by Aaron S. Bartholomew

In 2009, the U.S. Supreme Court issued the second of two decisions that have radically altered interpretation of the general pleading requirements of the Federal Rules of Civil Procedure. Of great concern to counsel for both plaintiffs and defendants, as well as legal scholars, these decisions have had and continue to have tremendous effect in federal courts.

The Utah Bar Journal briefly addressed the Twombly case in a 2009 article, but the full import of the change in federal pleading standards has only recently been realized. See John H. Bogart, Living with Twombly, 22 Utah B.J. 23 (March/April 2009). This article explores the evolution of Rule 8 pleading requirements in federal court, the Rule 8 revolution hastened in by the Twombly and Iqbal line of cases, and the consequences and criticisms of the newly-required heightened pleading requirements over the last several years since their introduction.

by Andrew M. Morse

We need to name our new federal courthouse. Perhaps it should simply be known as “The United States Courthouse,” like many. But if it bears the name of an exemplary Utahn, it should be named after Justice George Sutherland, the only Utahn to serve on the United States Supreme Court.

To date, Sutherland has been Utah’s most accomplished attorney, public servant, and judge. Before joining the Court, he was a renowned legal scholar and sage politician, having served in the Utah State Senate, U.S. Congress, and U.S. Senate. No past or present Utahn has done more for his state or country, or accomplished more as a lawyer.

by Philip J. Favro

Talk to most any enterprise about legal issues and invariably the subject of eDiscovery will come up as a thorny point. These discussions typically focus on the high costs of eDiscovery, particularly for data preservation and document review. Such costs and the inevitable delays that accompany the discovery process provide ample justification for organizations to be on the alert for ways to address these issues.

by Virginia Smith and Paul Tyler

As a profession, the practice of law is both a business for the lawyer and a service to the client. Depending on the practice and point of view, the lawyer may order these attributes differently, but care must be taken to balance them to avoid the inherent conflict of interest with the client who sees the lawyer as their advocate providing effective and efficient low cost service first and foremost. As with any service, the client expects the relationship to be a sort of professional friendship with the most important aspects being trust and good communication. The client wants to know that the lawyer has his/her every best interest in mind, including issues relating to billing, efficiency, competency, and ethics. Corporate clients with in-house counsel on staff present additional challenges. For most businesses, legal issues come with the territory, and managers quickly realize that in-house staff attorneys can do much of the routine and specialized work cheaper and more efficiently than outside counsel. When legal needs exceed staff resources, in-house lawyers act as purchasing agents for the selection, hiring, managing, and directing of outside counsel. What follows is intended to provide insight into the thinking that goes on when in-house corporate counsel retain outside counsel, highlight the expectations that in-house counsel have with regard to their outside attorneys, and identify areas where these professional relationships can be improved.

by Michael Barnhill

Many litigators have had the experience of receiving a demand letter informing them that a client’s lien is wrongful and that it must be removed. Many of those same attorneys have responded to complaints and petitions to nullify the supposedly wrongful lien. In Utah, many practitioners and jurists alike misapply Utah’s wrongful lien statute found in the Utah Code see Utah Code Ann. § 38-9-1 et seq. The confusion occurs when the unenforceability of a lien becomes synonymous with “wrongful.”

“Unenforceable” and “Wrongful” are Synonymous.
Prior to 2009, courts often held that unenforceable liens were wrongful. For example, in Russell v. Thomas, 2000 UT App 82, 999 P.2d 1244, a recorded notice of interest was held to be a wrongful lien because the agreement upon which the defendant relied when he filed the notice of interest did not give him an interest in the real property at issue. See id ¶¶14-15. Similarly, in another case, a notice of interest recorded by a lien claimant was held to be wrongful because the notice of interest included land in excess of what the lien claimant could arguably claim it had a right to under the real estate contract. See Commercial Inv. Corp. v. Siggard, 936 P.2d 1105 (Utah Ct. App. 1997).

Edited by Robert M. Baird & Stuart E. Rosenbaum

Reviewed by Ralph Dellapiana

“In early October 1283, Prince David of Wales was hanged, drawn, and quartered for an attack during the Easter season against the English King Edward.” The Death Penalty: Debating the Moral, Legal, and Political Issues, starts with a graphic look at the historical use of the death penalty, and then describes its rapidly declining use in most of the modern world.

The editors, both professors of philosophy at Baylor University in Texas, have compiled a compendium of some thirty articles by a diverse selection of authors on both sides of the issue. The book is divided into six sections, covering topics including: the history and current status of the death penalty, arguments for and against the death penalty, whether lethal injection is cruel or unusual, whether capital punishment may be applied to crimes other than murder, such as the rape of children, how DNA advances have led to the exoneration of innocent people who would otherwise have been executed, and whether obvious racial disparities in the application of the death penalty make it unconstitutional.

by Keith A. Call

Recently, over 2,600 former players have filed nearly 100 separate lawsuits against the NFL for concussion-related injuries. The players allege the NFL concealed the long-term impacts of concussion injuries. See Nathan Fenno, Former Redskins RB Stephen Davis Sues NFL Over Concussions, Wash. Times, July 5, 2012, available at http://www.washingtontimes.com/blog/screen-play/2012/jul/5/former-redskins-rb-stephen-davis-sues-nfl-over-con/?tw_p=twt. These modern-day lawsuits are particularly interesting in light of modern day equipment – hard-shell helmets and other “protective” equipment used by football players.

SB 11 and the Re-Balkanization of State Agency Administrative Procedures

by Alvin Robert Thorup

Apparently because some powerful people were unhappy with one or more decisions of the Utah Department of Environmental Quality (DEQ) and its citizen decision-making boards, likely involving hazardous waste storage, the 2012 Utah Legislature made sweeping changes in how environmental permit matters will be decided in two bills. Senate Bill 21 shrunk and revamped the boards and the substantive rules on permit matters, while Senate Bill 11 provided new administrative procedures to be followed by the DEQ in granting or denying environmental permits. Prior to S.B. 11, the DEQ, like all other state agencies, was subject to the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. §§ 63G-4-101 to -401 (2011). I believe the Utah Legislature made a mistake by creating special administrative procedures for the DEQ. Instead, UAPA should continue to govern the DEQ.

First, some background

If someone looked at the Utah Code in 1981, the provisions dealing with agency administrative procedures were obviously in disarray. Between 1945 and 1981, each time a new state agency was created or a new power was given to a state agency, new and separate administrative procedures were provided for each agency. As noted in Utah’s Administrative Procedures Act:

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.

by S. Yossof Sharifi

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.

My first client in private practice was a white supremacist prison gang leader. Odd, considering I’m Afghan and my law partner is Jewish, but he liked us and was far more pleasant than I would have thought.

We thought when we signed him up that it was a simple felony. As we started receiving the police reports, we realized our client was under investigation for an alleged murder that occurred during this simple felony.

I had been a prosecutor for Salt Lake City for a while but thought I would start my own practice out with some misdemeanors, maybe some traffic tickets, and slowly and methodically work my way up to defending felonies. Instead, we had a murder thrown in our lap as our first case.

We had two choices: send the case elsewhere due to lack of experience, or work our tails off. Since we were sick of playing Angry Birds and watching Hulu in our office all day, we chose to work our tails off. We ended up getting our client a deal that, looking back, I can’t believe we got him. Probably because I was too inexperienced at the time to know that you can’t push for the things I was pushing for. But we pulled it off and our client went home while the co-defendants in the case took their trips to an all-male government retreat.

That first case, in retrospect, taught me a lot of lessons about opening a practice; in fact, it taught me the most important lesson I’ve picked up along the way. Our firm also grew extremely fast and that quick growth has taught us lessons about running a practice we couldn’t have learned any other way.

When the Young Lawyers Division asked that I write this piece, I was excited to share these lessons with those just starting their practices. Also, if any of you young bucks run into roadblocks and need some quick advice, don’t hesitate to email me at ysharifi@sb-legal.net.

by Thora Searle

As the new Chair of the Paralegal Division, I would like to take this opportunity to introduce myself and the 2012-2013 Board of Directors.

Thora Searle – Chair: I attended Weber State University and have spent thirty-four years working in the legal field. I worked as a legal assistant to William Thomas Thurman at McKay, Burton & Thurman for twenty-one years and currently work as a Judicial Assistant to Judge Thurman at the United States Bankruptcy Court for the District of Utah. I have served several terms as a Director at Large and also as a Regional Director of the Legal Assistant Division/Paralegal Division of the Utah State Bar. I also served several years as the Secretary and the Membership Chair. I have participated in the Wills for Heroes program and feel that this program is a great way to pay it forward. As Chair elect, I served on the Governmental Relations Committee and will serve this year on the Bar Commission of the Utah State Bar as an ex-officio member. My time outside of work is devoted to my children, grandchildren, and great-grandson. I love to spend time with them and enjoy watching them participate in soccer, softball, dance, and tumbling.

Danielle Davis, CP – Immediate Past Chair: Danielle is a certified paralegal with Strong & Hanni where she works in insurance defense litigation. She has worked as a paralegal for twenty years with experience in insurance defense, personal injury, bankruptcy, construction law, adoption, collections, and family law. She received her paralegal certificate from Westminster College. Danielle was Chair of the Paralegal Division in 2005-2006 and 2011-2012. She has served as a Director-at-Large and an ex-officio member of the Division. She has served on the Bar Journal Committee, Governmental Relations Committee, and Licensing Committee and served as an ex-officio member of the Bar Commission of the Utah State Bar. She is a former President, Education Chair, Parliamentarian, and Newsletter Editor for the Legal Assistants Association of Utah (LAAU) and is a member of the National Association of Legal Assistants (NALA).

Director at Large – Heather Allen: is a Paralegal at Ray Quinney & Nebeker. She has been with RQN since August 2010 and prior to that she was a paralegal at Snell & Wilmer since 2005. Heather works in product liability, personal injury/wrongful death actions, both defense and plaintiff. She graduated from Utah Valley University with a Bachelor’s Degree in Paralegal Studies and a minor in Psychology. She is also involved in the community as a volunteer at Intermountain Medical Center in Murray for the parent support group associated with the Neonatal Intensive Care Unit.

Director at Large – Sharon M. Andersen: has been a paralegal for over twenty-one years. Sharon currently works as an in-house paralegal for American Family Insurance. Prior to taking the job with American Family in June 2011, Sharon worked as a litigation paralegal at Strong & Hanni Law Firm for almost four years after having worked in the civil division of Salt Lake City Attorney’s office since 2004. From 1998 to 2004 Sharon worked as a paralegal in the General Counsel’s offices of several corporations including IHC, Kennecott Utah Copper, and Huntsman Corporation where she assisted in a variety of litigation matters involving medical malpractice, worker’s compensation, labor relations, contracts, chemical exposure, and environmental law as well as becoming contract administrator while employed at IHC. She spent the first eight years of her career in smaller law firms working primarily in family law, personal injury, insurance defense, and medical malpractice litigation. Sharon attended BYU, married and had a family, then returned to school and graduated from the Legal Assistant Program at Westminster College in 1990. Sharon served as CLE Co-Chair of the Paralegal Division from 2005-2007 and in that capacity actively participated in the Utah State Bar’s Spring Convention, Annual Convention, and Fall Forum CLE committees. In August of 2006, she became Chair-Elect of the Paralegal Division and served as the Division’s Governmental Relations Liaison to the Utah State Bar’s Governmental Relations Committee while also serving on the Division’s Executive Committee. From 2007 to 2008, Sharon served as chair of the Paralegal Division and as Ex-Officio member of the Bar Commission. From 2008 through 2010, she served as Ex Officio Director then parliamentarian for the Division. Sharon has six adult children and four grandchildren. She views her children and grandchildren as her greatest accomplishment and joy in life.