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November 2012 Archives

November 12, 2012

Volume 25 No. 6 November/December


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

Letter to the Editor

President’s Message: How We See Ourselves by Lori W. Nelson

Article: Where Many Litigators Still Fear to Tread: Adapting to Mediation
by Stephen D. Kelson

Article: Guardianships: The Fine Line Between Protection and Exploitation
by Kristin K. Woods

Article: Cloud Computing: Silver Lining or Rainy Day? by Peter W. Summerill

Article: Season’s Greetings by Learned Ham

Article: Red Mass by Scott R. Sabey

Article: An Overview of FAA Enforcement Actions by Peyton H. Robinson

Article: The Dollars and Sense of Divorce:
The Role of Certified Divorce Financial Analysts in Divorce by Lorraine P. Brown and Billy Peterson

Focus on Ethics & Civility: Changes May Be Coming to the RPC – or Are they Already Here? by Keith A. Call

Book Review: Winning at Deposition by D. Shane Read Reviewed by Jack T. Nelson

State Bar News

Young Lawyers Division: YLD President’s Message by Katherine A. Conyers

Article: What Every Lawyer Should Know About Appeals by Noella Sudbury

Letter to the Editor

Dear Editor:

In the Sep/Oct 2012 Bar Journal our Bar President propounds two ways the Bar can better serve lawyers. One way is to inform the public of the “countless and unacknowledged hours of service to the public” freely contributed by lawyers. Also, there is hope of providing Bar services which are not “inefficient.” I applaud both efforts and suggest Bar Commissioners lead by example.

I have always assumed Bar Commissioners to be volunteers, who contribute “countless and unacknowledged hours of service.” Theoretically, volunteers should not expect payment of any kind, nor take advantage of their volunteerism. But, according to the 2012 Bar budget, it appears that Commissioners are “inefficient” volunteers.

Commissioners spend $49,300.00 traveling to various national and regional conferences. They get mileage, lodging and meals paid for while attending the Summer Conference in Sun Valley. Commission “retreat” funds, with food, beverage and meeting facilities total $36,317.00, were partially spent at the Stein Erickson Lodge in Deer Valley. And, the Bar President has a $29,800.00 “expense” fund. In total, the Commission/Special Projects budget is $155,600.00. This amount does not reflect additional Bar employee costs, who also attend the same conferences and retreats.

Voluntarily, Commissioners should do with less luxurious retreats. They should travel at their own expense, as other “volunteers” do, when attending Bar conferences and programs. (I would make an exception for any Commissioner who is a provider of Modest Means legal services.) Then you will truly know the spirit of “service to the public.” Speaking of luxurious accommodation, Commission discussion about raising dues to build a new Bar building does not reflect the “modest means” of our times. I vote no on the new building, increased dues and trips to Sun Valley and Deer Valley on my dime.

Michael N. Martinez

How We See Ourselves

by Lori W. Nelson

As many of you know, in December, 2011, the Utah State Bar had Dan Jones & Associates conduct a survey of Bar members on several issues. Over fifty-two percent of the membership responded, making the survey statistically very representative. One of the categories included questions on Courts, Professionalism & Civility, Job Satisfaction, Public Image, Pro Bono, and Diversity.

The survey results of the questions in this category were unexpected. Contrary to anecdotal information, a huge majority of Bar members are satisfied with the Utah State courts and staff. The courts have been doing a great job being more responsive and trying to ensure that the needs of the public are being met in an efficient way. These efforts are reflected in the survey results.

Other results were not as unexpected. For instance, on Professionalism and Civility, it was apparent from the survey results that our perception of civility is not improving. Twenty-three percent of us believe civility is declining while only nine percent believe it is improving. Most of us, however, are satisfied with the efforts that are being made to improve civility.

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Where Many Litigators Still Fear to Tread: Adapting to Mediation

by Stephen D. Kelson

Introduction
Most litigators would agree that mediation is a helpful process in the attempt to resolve disputes before they reach trial. However, many attorneys often unsuspectingly obstruct their clients’ ability to achieve resolution of their disputes in mediation, and thus prolong legal disputes and underlying conflicts, due to their assumed role and inability to adapt to the mediation process.

The following discussion briefly examines: (1) the attorney’s role and philosophical assumptions in legal disputes; (2) the attorney’s philosophical conflict with mediation; (3) contentious tactics employed by attorneys; (4) the unfortunate results of employing contentious tactics in mediation; and (5) simple recommendations to help attorneys make the most of mediation and better serve the interests of their clients.

The Attorney’s Role and Philosophical Assumption in Legal Disputes
In general, by the time parties seek an attorney, they have already invested themselves emotionally and financially in their legal dispute. It then becomes the attorney’s job, as a provider of professional services, to define the needs of the client. See William L.F. Felstiner et al., The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…, 15 Law & Soc’y Rev. 631. 645 (1981). The method attorneys apply to define these needs is instilled in them through law school training and has been characterized by Leonard Riskin, Professor of Law at the University of Florida Levin College of Law, as “the lawyer’s standard philosophical map” (standard philosophical map). Chris Guthrie, The Lawyer’s Philosophical Map and the Disputant’s Perceptual Map: Impediments to Facilitative Mediation and Lawyering, 6 Harv. Negot. L. Rev. 145, 155 (Spring 2001). This philosophical map is governed by two significant assumptions: (1) that disputants are adversaries, where one must win and one must lose and (2) disputes may be resolved through the application of law to facts of a given case. See id.; see also Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29, 36 (1982). This philosophy is instilled in law school where attorneys are taught “to put people and events into categories that are legally meaningful, to think in terms of rights and duties established by rules, [and] to focus on acts more than persons.” Riskin, 43 Ohio St. L.J. 29, 45.

In the practice of law, the assumptions of the standard philosophical map are regularly encouraged through regular application, the legal process itself, and procedural rules and the professional standards. With these experiences and standards, attorneys apply themselves to a given case by primarily behaving in an evaluative manner, focusing upon the parties’ rights and duties under the law, determining the strengths and weaknesses in legal positions, and deciding how to exploit these positions to the clients’ advantage. The duty to zealously represent clients by focusing upon disputes in an evaluative manner discourages attorneys from concerning themselves with their opponents’ situation and the ultimate results caused by the application of the standard philosophical map. Victory by attorneys on both sides becomes solely defined by the size of the monetary judgment. See id. at 44.

The standard philosophical map may also affect the manner in which attorneys live their personal lives away from work. Researchers have concluded that attorneys generally apply “‘a cognitive and rational outlook’” on the world, have underdeveloped emotional and interpersonal skills, and “tend toward an adversarial orientation.” See Guthrie, 6 Harv. Negot. L. Rev. 145, 156 (citation omitted). Whether or not the attorney’s standard philosophical map is the cause of these deficiencies, it arguably reinforces them, and provides attorneys the excuse and/or justification that “this is how an attorney acts.”

The Attorney’s Philosophical Conflict with Mediation
Attorneys often find themselves confused by the mediation process after they have spent years learning and honing evaluative and adversarial skills which are based on the standard philosophical map. While the standard philosophical map assumes that disputants are adversaries, where one must win and one must lose, and disputes are resolved through the application of law to facts of a given case, mediation has its own distinct philosophy, which assumes that (1) parties can work together and cooperate to create solutions in which each gains and (2) the parties can resolve their conflict without being limited by strict rules of procedure and substantive law (the mediation philosophical map). See Riskin, 43 Ohio St. L.J. 29, 34.

My personal experience has revealed that attorneys who are ingrained with the standard philosophical map react to mediation in one of three ways. First, some attorneys adapt to the circumstances once they gain an understanding of the difference between the philosophies of litigation and mediation. This ability to adapt is usually due to each attorney’s personal disposition, as well as training in alternative dispute resolution and prior experiences in mediation. Second, some attorneys’ “fight or flight” mechanism appears to kick in when they are confused and unprepared for the philosophical differences that are required in the mediation process. These attorneys revert to what they know best: the standard philosophical map. Third, some attorneys fail to distinguish the difference between the philosophical assumptions between litigation and mediation, or simply refuse to set aside any part of the standard philosophical map, and proceed in mediation as if it were a trial.

Contentious Tactics Employed by Attorneys
Reliance upon the standard philosophical map often undermines mediation’s overarching purpose, which is to resolve disputes. While attorneys and clients alike can create any number of challenges, the application of the standard philosophical map prior to and during mediation often creates and fosters serious pitfalls which prevent the parties from achieving resolution. One of the most serious pitfalls created by the standard philosophical map is the employment of contentious tactics, which regularly escalates the conflict between the parties, and the legal dispute, instead of resolving it.

When attorneys rely on the standard philosophical map, they often intentionally and unintentionally adopt a hierarchy of contentious tactics to achieve victory against the opposing party and counsel prior to and during mediation. Some of these contentious tactics include: (1) integration, (2) promises, (3) gamesmanship, (4) shaming, (5) persuasive arguments, (6) tit-for-tat, (7) threats, (8) coercive commitments, and (9) violence. These contentious tactics are often applied sequentially; however, some tactics may be skipped as a conflict escalates. See Dean G. Pruitt & Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement 63-84 (3d ed. 2003); see also Stephen Potter & Frank Wilson, The Theory and Practice of Gamesmanship: The Art of Winning Games Without Actually Cheating (1948). Arguably, the hierarchical order of contentious tactics may differ based on how the tactics are employed. While some of these tactics are not inherently inappropriate, others – and the methods in which an attorney employs them – both violate the Utah Standards of Professionalism and Civility and can be destructive to achieving resolution of disputes in mediation.

Integration
Integration is a tactic employed in an effort to “butter-up” an opposing party or counsel through flattery, charm, and guile, with the intention of coercing the party into concessions. Some methods used to achieve this end are (a) exaggerating admirable qualities in order to make it difficult to be disliked, (b) expressing agreement with another’s opinions to express similar attitudes, (c) giving “favors” to be liked, and (d) using indirect methods of “tooting their own horn.” See Pruitt, Social Conflict at 65. For example, an experienced attorney might use this tactic by making exaggerated compliments to a less experienced opponent, sharing “war stories” about many successful trials, and recommending a “joint” course of action based on the experienced attorney’s knowledge of similar cases. If an opponent is unaware this tactic is being employed, it can be a very cheap and effective way to resolve a dispute. However, if detected, it can backfire by diminishing trust between counsel and escalating the dispute. See id.

Promises
Promises provide an exchange for compliance, which creates a sense of indebtedness to the one who makes the promise. However, successful promises can be very expensive, tend to require increased rewards in exchange for further compliance, can create undue dependence, and are often costly to break. Moreover, failing to provide a sufficient promise can result in failing to resolve a dispute and offending an opponent. See id. at 67-68.

Gamesmanship
Gamesmanship is far too common in the practice of law, and is regularly employed with the hope of pushing the other party and their counsel off balance. Some common examples of gamesmanship include preparing and filing a complaint which contains unfounded allegations in order to increase the cost of litigation, serving unnecessary discovery requests, the failure or refusal to provide requisite discovery responses, delay, name calling, offensive statements, etc. Attorneys regularly see through these tactics, resulting in a rapid escalation of the dispute.

Shaming
Shaming is the act of causing another to feel the emotion of shame, often by publicizing inappropriate conduct. While shaming is a highly effective way to obtain compliance with social norms and the standards of practice, it often backfires. If a party perceives the shaming as unjustified, it can result in anger and aggression, and can damage the relationship between the attorneys and parties. See id. at 69-70. For example, it is unusual for an attorney not to take offense when faced with a Rule 11 motion. Where the relationship between the attorneys is unsound before a Rule 11 motion is filed, the motion often results in anger, a professional grudge, and escalation of the existing dispute.

Continue reading "Where Many Litigators Still Fear to Tread: Adapting to Mediation" »

Guardianships: The Fine Line Between Protection and Exploitation

by Kristin K. Woods

A guardianship can be an essential tool for a spouse, child, or other caregiver who is charged with managing and protecting the assets of a loved one who is no longer able to make responsible decisions. However, because there are emergency provisions within Utah’s guardianship statutes that allow for an immediate, temporary guardianship, there exists the potential for abuse. The severe and potentially devastating impact that a guardianship has upon the rights of the ward requires members of the Utah legal community, both attorneys and judges, to pursue and decide guardianship cases with caution and discernment.

Utah Code section 75-5-310 provides the procedure for one to acquire a temporary guardianship. This statute states that if an emergency exists, or if an already appointed guardian is not performing his or her duties, and the court finds that the welfare of an incapacitated person “requires immediate action,” the court may, without notice, appoint a temporary guardian to serve for a period of not more than thirty days. Utah Code Ann. § 75-5-310(1) (Michie 1993). As an apparent safeguard against potential abuses, the statute also requires the court to hold a hearing to consider the appropriateness of the temporary guardianship within five days of the appointment of the temporary guardian. The ward must be noticed of this hearing, and the court “may appoint an appropriate official or attorney to represent that person in the proceeding” unless the ward retains his or her own attorney. Id. § 75-5-310(2).

Utilizing section 75-5-310 can be a necessary and even lifesaving tool in appropriate circumstances where a proposed ward is in immediate physical or financial danger. However, the statute leaves room for a nefarious or misinformed person to misuse this statute to gain control over a person and their assets without due process. The language of the statute reveals important and practical realities. For one thing, in order to grant a temporary guardianship, the judge must be able to make a quick determination that the proposed ward is, in fact, “incapacitated.” Utah Code section 75-1-201(22) provides that the definition of an “incapacitated person” is “any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause, except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.” Utah Code Ann. § 75-1-201(22) (Michie Supp. 2012). Most often the petitioner will submit an affidavit and/or a letter from a medical provider or other material witness that provides the judge with enough information to determine that the proposed ward appears to be incapacitated on the basis of the facts. Because the judge is being presented this information ex parte and without notice to the proposed ward, the greatest potential for abuse exists at this initial stage. Theoretically, a person could submit fraudulent documents to the court and the judge would have no way of knowing this. Although this risk of fraud exists in any ex parte proceeding, in guardianship proceedings this reality is especially daunting because the appointment of a guardian removes the ward’s ability to make his own decisions and allows the guardian access to financial accounts. Once under a guardianship, the constitutional rights of the ward are limited, and in some cases stripped, and the ward is completely dependent upon the authority of his guardian.

Continue reading "Guardianships: The Fine Line Between Protection and Exploitation" »

Cloud Computing: Silver Lining or Rainy Day?

by Peter W. Summerill

What Is Cloud Computing?
Cloud computing can be defined in a variety of different ways. These definitions can include a number of arcane and difficult to understand computing concepts. However, the simple definition is that cloud computing means your stuff is stored somewhere other than the computer in front of you. A very simple example is everyday e-mail. If you use a service such as Yahoo!, Google’s Gmail, or Microsoft’s online services, all of your e-mail is stored online, in “the cloud.” More recently, services have successfully expanded beyond e-mail. The advancement of technology allows companies to provide a vast array of hosted, online, 24-7 availability to your information and software from anywhere. The services have expanded to include legal specific practice management software such as time and billing, calendaring, messaging, and file sharing. These cloud services allow smaller firms and solo practitioners to access and deploy high-end software solutions at an affordable price, and also provide more efficient and economical services to their clients.

You Can’t Teleport to the Information, But You Can Teleport the Information to You.
Imagine sitting in court and pulling up your entire client file, including all contact information, all phone calls that you have made, all e-mail that you may have sent, and any documents associated with the file, including pleadings, correspondence, and evidentiary materials. Imagine being able to log new billable hours and activities associated with the client matter automatically and before you ever even returned to the office. Finally, imagine that all of this information, your e-mail, phone notes, billing entries and file documents, are fully indexed and searchable, from an interface available on your smart phone such as an iPhone or Android. RocketMatter (www.rocketmatter.com) and Clio (www.goclio.com), the two main players in the cloud-based practice management arena, offer this very functionality. Each of these services exist entirely in “the cloud.” Because each service exists in the cloud, all of your client-matter information is available anywhere that you can gain Internet access. Additionally, each has optimized its online interface for access via smartphones.

Other services can seamlessly synchronize all of the files on your laptop with those of your paralegal, secretary, and law partners. Any change made to a file by your paralegal is almost instantaneously synchronized to your laptop over the Internet. This means you could be in a client meeting in Phoenix while your paralegal makes alterations and finalizes a contract/pleading in Salt Lake City. So long as you have an Internet connection, the changes your paralegal makes will be synchronized to your laptop almost immediately for review and approval by the client. An additional benefit to such synchronization services is that you have now effectively backed up that same file across all computers using the service. If your office scans all incoming mail, you will always have a redundant backup of your entire paper file. Even if an earthquake were to level your law office and destroy every desktop computer in the office, all of your client file documents would still exist independently both “in the cloud” and on your laptop. Under this scenario, your laptop could even be destroyed and, so long as you are able to regain Internet access at some point, you would be able to access and retrieve every document scanned or created by you and your firm.

Dropbox (www.dropbox.com), Box (www.box.com), and SugarSync (www.sugarsync.com) all provide cloud-based synchronization services that leverage the Internet. Considering that these services provide a seamless off-site backup to all of your designated client-matter folders, it may be malpractice to refuse to consider these services as part of your law office practice management strategy. The question, of course, is to what extent use of a cloud service can be done in compliance with both the rules of professional responsibility and the ability to maintain privacy and security.

Continue reading "Cloud Computing: Silver Lining or Rainy Day?" »

Cloud Computing: Silver Lining or Rainy Day?

by Peter W. Summerill

What Is Cloud Computing?
Cloud computing can be defined in a variety of different ways. These definitions can include a number of arcane and difficult to understand computing concepts. However, the simple definition is that cloud computing means your stuff is stored somewhere other than the computer in front of you. A very simple example is everyday e-mail. If you use a service such as Yahoo!, Google’s Gmail, or Microsoft’s online services, all of your e-mail is stored online, in “the cloud.” More recently, services have successfully expanded beyond e-mail. The advancement of technology allows companies to provide a vast array of hosted, online, 24-7 availability to your information and software from anywhere. The services have expanded to include legal specific practice management software such as time and billing, calendaring, messaging, and file sharing. These cloud services allow smaller firms and solo practitioners to access and deploy high-end software solutions at an affordable price, and also provide more efficient and economical services to their clients.

You Can’t Teleport to the Information, But You Can Teleport the Information to You.
Imagine sitting in court and pulling up your entire client file, including all contact information, all phone calls that you have made, all e-mail that you may have sent, and any documents associated with the file, including pleadings, correspondence, and evidentiary materials. Imagine being able to log new billable hours and activities associated with the client matter automatically and before you ever even returned to the office. Finally, imagine that all of this information, your e-mail, phone notes, billing entries and file documents, are fully indexed and searchable, from an interface available on your smart phone such as an iPhone or Android. RocketMatter (www.rocketmatter.com) and Clio (www.goclio.com), the two main players in the cloud-based practice management arena, offer this very functionality. Each of these services exist entirely in “the cloud.” Because each service exists in the cloud, all of your client-matter information is available anywhere that you can gain Internet access. Additionally, each has optimized its online interface for access via smartphones.

Other services can seamlessly synchronize all of the files on your laptop with those of your paralegal, secretary, and law partners. Any change made to a file by your paralegal is almost instantaneously synchronized to your laptop over the Internet. This means you could be in a client meeting in Phoenix while your paralegal makes alterations and finalizes a contract/pleading in Salt Lake City. So long as you have an Internet connection, the changes your paralegal makes will be synchronized to your laptop almost immediately for review and approval by the client. An additional benefit to such synchronization services is that you have now effectively backed up that same file across all computers using the service. If your office scans all incoming mail, you will always have a redundant backup of your entire paper file. Even if an earthquake were to level your law office and destroy every desktop computer in the office, all of your client file documents would still exist independently both “in the cloud” and on your laptop. Under this scenario, your laptop could even be destroyed and, so long as you are able to regain Internet access at some point, you would be able to access and retrieve every document scanned or created by you and your firm.

Dropbox (www.dropbox.com), Box (www.box.com), and SugarSync (www.sugarsync.com) all provide cloud-based synchronization services that leverage the Internet. Considering that these services provide a seamless off-site backup to all of your designated client-matter folders, it may be malpractice to refuse to consider these services as part of your law office practice management strategy. The question, of course, is to what extent use of a cloud service can be done in compliance with both the rules of professional responsibility and the ability to maintain privacy and security.

Continue reading "Cloud Computing: Silver Lining or Rainy Day?" »

Season’s Greetings

by Learned Ham

Budget season for the in-house lawyer. Every Faustian bargain has a price tag. Sure, we kept lawyers never have to worry about billing and collection or client development, but we do have department budgets. I know, law firms have budgets, too: salaries and benefits, rent, copier leases, CLE in the Greater Antilles, receptions for summer clerks in the Lesser Antilles, retirement parties in the Leeward Antilles, partner retreats in the Windward Antilles, Christmas parties in the French Antilles, strategy sessions in the Dutch Antilles, and malpractice premiums. You will have noticed that I did not mention client entertainment in any of the Antilles. I appreciate the gesture, but accepting your offer would violate the Gifts and Gratuities section of the Code of Conduct you drafted for me. Thanks anyway. But back to budgets. I have to budget for all that stuff, too – plus your fees.

By the time you read this, budget season will be over. As I write this, I’m waiting for your responses to my emails asking you to predict: (a) what I will ask you to do next year; and (b) what it will cost.

If that sounds unfair, well, I’m happy to stipulate to that. I’ve raised the same complaint with my CFO. I’ve tried explaining that 95% of what I spend each year is determined by: (i) what customers and competitors decide to sue us for; (ii) what regulators decide to investigate us for; and (iii) what the supply chain and marketing departments decide to do that will cause (i) or (ii) (usually both). And all three of those can be hard to predict. CFO doesn’t care. CFO just wants a number. CFO not like words.

It’s an exercise in creative fiction. Theater of the Absurd. Samuel Beckett, Eugene Ionesco, name-that-GC. I will spend hours looking at what I spent last year, what I’ve spent so far this year, and imagining everything that will go wrong next year and assigning numbers to it. Then I spread-sheet it, total it up, and send it to CFO with pages of explanations that start to sound a lot like the qualifications you staple to your opinion letters. CFO doesn’t read explanations. CFO doesn’t care. CFO says everything will be fine so long as number = .93X (where X = last year’s number). Sisyphus pushes the rock back up the hill.

It’s part of the annual cycle.

In the springtime the forsythia turn yellow, and you get messages from me explaining that cash flow is tight and all non-essential work must be deferred until the second half of the year. We sell in the spring, so supply chain is bleeding money and our customers won’t be paying us until the fall.

In the summer the lawn turns yellow, and you get messages from me explaining that it’s budget season and CFO needs numbers. Little numbers. Smaller numbers than last year.

In the fall the aspens turn yellow, and you get messages from me explaining that I’m over budget and all non-essential work must be deferred until January. You’re not the only one suffering. I have dimmed the lights and cancelled the department retreat in the Antilles.

In the winter the snow turns yellow, and you get messages from me explaining that I need major concessions on hourly rates because we’ve retained cost-cutting consultants (again) who are: (1) making my life a living hell; and (2) urging me to outsource you to Bangalore.

Continue reading "Season’s Greetings" »

Red Mass

by Scott R. Sabey

The other day the Utah Italian Society sent me an email from the St. Thomas More Society inviting me to attend the Red Mass being held at the Cathedral of the Madeleine, September 21, 2012. While I am always interested in what the Italian community is doing here in Utah (I served an LDS mission in Italy), I had no idea what the Red Mass was about, so I decided to attend.

It is, quite simply, a mass for justice. It derives its name from the red vestments, worn traditionally by judges, and it is intended for members of the legal profession and all those involved in the administration of justice. The Red Mass was first celebrated in the early 1200s in Paris, France, and quickly spread around Europe. It has been celebrated in the United States for more than 135 years. Since 1953, on the first Sunday in October, the Red Mass has been held in the Cathedral of St. Matthew the Apostle in Washington, D.C., with the participation of the members of the U.S. Supreme Court. In fact, the first time it was held, there were no Catholic members of the Supreme Court of the United States, so the “Catholic Seat” had to be filled by Justice Sherman Minton, who although he was Protestant, had a wife who was Catholic.

As a result of the efforts of the St. Thomas More Society (the patron saint of lawyers), the Red Mass has been conducted at the Cathedral of the Madeleine in Salt Lake for the last five years. I was impressed with the level of participation at the Mass. I saw attorneys I know from around town, attorneys who own companies rather than practice law, and a number of judges from both the State and Federal Courts.

The Cathedral of the Madeleine is a grand, beautiful, yet peaceful building. Bishop John C. Wester, with the assistance of Monsignor Joseph Mayo, was very welcoming of all who attended. Bishop Wester talked about the need for justice in society and a solid judicial system. He recognized the contributions of judges, lawyers, police, military, and corrections officers. He gave special recognition to those individuals who gave their lives in the service of others, naming each of them. The Mass sought the blessings of God on all those involved in the administration of justice, to have an open mind and compassionate heart, and to do our best in serving others.

The time I was in attendance was a wonderful opportunity to rise above the billable hour and contemplate the profound impact that the practice of law has on the lives of people every day. I left feeling at peace and recommitted to the proud profession we call the practice of law. I hope to see you there next year!

An Overview of FAA Enforcement Actions

by Peyton H. Robinson

The aviation industry is highly regulated by the Federal Aviation Administration (FAA). Pilots, airlines, flight schools, maintenance shops, fractional ownership businesses, charter operations, and others in the industry have to contend with strict regulations and potentially severe penalties for missteps. An alleged violation of a regulation could mean an enforcement action against the business or individual and is where an attorney’s assistance could be critical. Yet many lawyers do not know what processes may apply in FAA investigations and prosecutions.

This article provides a high-level overview of FAA enforcement actions, and is intended to help enlighten lawyers advising aviation clients about what processes apply. The majority of this discussion focuses on procedures affecting the approximate 670,000 pilots holding active airmen certificates, including nearly 7,600 that are located in Utah (database available at http://www.faa.gov). However, FAA processes affect aviation businesses as well (and many aviation businesses in Utah are owned by pilots).

The FAA Can Investigate Potential Violations
The Federal Aviation Act authorizes the Administrator of the FAA to conduct investigations, hold hearings, issue subpoenas, require the production of relevant documents, records, and property, and take evidence and depositions. See 14 C.F.R. § 13.3 (2012); see also 49 U.S.C. §§ 40113, 44709, 46101 (2006). On the FAA side, the lead investigator will typically be an Aviation Safety Inspector (ASI) from the Flight Standards District Office (FSDO, commonly called fizz-doe) with jurisdiction over the area where the potential violation occurred. The ASI could be involved due to a regularly scheduled audit, an ASI-initiated check, an Air Traffic Control (ATC) report, a witness report, an accident, or any other number of ways a violation may appear to have occurred.

Results of an FAA Investigation
Generally, seven things can occur as a result of an FAA investigation:

(1) No action;

(2) Oral or written counseling;

(3) Administrative action;

(4) Remedial training;

(5) Request for reexamination;

(6) Legal enforcement action; and

(7) Criminal action.

The first two results are minor in relative terms, and criminal action is beyond the scope of this article. Since the first two events result in no material action (though doubtless there could be a lot of stress and concern), and the last could be its own article, I will focus on items three through six.

Administrative Action
An administrative action represents the first significant step in an FAA enforcement action. The FAA officially recognizes two types of administrative actions: a “warning notice” and a “letter of correction.” See 14 C.F.R. § 13.11. If legal enforcement action (discussed below) is not required, such as in the more serious strata of errors, the administrative action may be approved. The purpose is to bring the incident to the attention of the alleged violator, document corrective action if required, encourage future compliance, and provide a record for the FAA. In administrative action cases, there is evidence to show some violation, but the action does not officially charge the person or entity with a violation. See FAA Order 2150.3B with Change 4 Included, Chapter 5.3.a, available at http://www.faa.gov/regulations_policies/orders_notices/index.cfm/go/document.information/documentid/17213.

A warning notice is a letter or form addressed to the violator that points out the facts and circumstances of the incident involved, and that the violator’s action or inaction appears to be contrary to the regulations, but does not warrant legal action. The warning notice requests future compliance with statutory and regulatory requirements.

A letter of correction serves the same purpose as a warning notice but is generally used where the violator agrees to take some action within a certain period of time. The purpose of the correction letter is to bring attention to the apparent violation and to document action that has been or will be taken to correct the situation. Typically, the FAA issues two letters. The first letter states the agreement for the violator to take some action by a specific date. The second letter then acknowledges that the required action was completed (or not completed, with potential sanctions to follow).

The FAA considers the following factors when determining whether to allow administrative action instead of a more serious sanction:

(1) Legal enforcement action is not required by law, and administrative action would serve as an adequate deterrent to future violations;

(2) For pilots, he or she is otherwise qualified for an airman’s certificate;

(3) The violation was inadvertent and not purposeful;

(4) There was not a substantial disregard for safety or security, and there were no aggravating circumstances;

(5) The alleged violator has a constructive attitude toward complying with the regulations; and

(6) There is not a trend of noncompliance indicated by past violations.

See id. FAA Order 2150.3B, Chapter 5.4.b.

Remedial Training
Remedial training might be an option for an airman being investigated for a potential violation. Take for example the following scenario: a pilot takes off under instrument flight rules and is given a heading and altitude by ATC. However, the pilot fumbles with the autopilot on takeoff and is unable to program it correctly to handle the instructions, deviates from the heading and altitude, causes ATC to divert an incoming aircraft to avoid a mid-air collision, and thereby finds him or herself in trouble. In this case, remedial training on autopilot operation and instrument skills might be required to keep the airman’s certificate.

In cases where remedial training is an option, pilots should generally take it (if he or she wants to continue to fly). It may be offered as part of an administrative action, such as with a letter of correction, and it may be included with a Letter of Investigation (LOI) at the start of a legal enforcement action. If the training is available, it will be specific to the event that led to the enforcement action. The pilot will sign an agreement to undergo specific training from a flight instructor designated by the FAA. A letter will outline the reason for the training, the date by which it must be completed, and contact information for the instructor.

The factors the FAA considers for remedial training are as follows:

(1) Can future compliance reasonably be ensured through remedial training alone;

(2) Does the airman display a constructive attitude;

(3) Does the conduct display a reasonable basis to question the airman’s qualifications (e.g., false medical records, or other core requirement issues);

(4) Does the airman have a record of enforcement actions; and

(5) Was the conduct deliberate, grossly negligent, or a criminal offense?

See id. FAA Order 2150.3B, Chapter 5.9.d

Continue reading "An Overview of FAA Enforcement Actions" »

The Dollars and Sense of Divorce: The Role of Certified Divorce Financial Analysts in Divorce

by Lorraine P. Brown and Billy Peterson

“‘Only people who have what you want can take you where you say you want to go.’”

– Pauline Tesler1

Today’s divorcing couples face different and far more complex challenges than divorcing couples forty years ago. Multiple incomes, combined families, alternative lifestyles, new retirement and investment options, and an unpredictable economic landscape present new issues which challenge the traditional, and almost exclusively, legal, response to divorce. After all, divorce is more than the dissolution of a marital contract; it is an emotional gauntlet, a parenting journey, and, most significantly, a financial restructuring. In light of these realities, it is time we rethink the legal paradigm for divorce and acknowledge that the fracture of American families is more than a legal phenomenon and demands a multi-professional response.

Attorneys are generally first-tier responders to divorcing parties, together with counselors, accountants, and forensic experts. What is missing in this first-tier response, however, is the financial analyst. The Certified Divorce Financial Analyst® (CDFA™) offers a second, equally indispensable professional tier, specifically trained to assist divorcing couples resolve the financial issues of their divorce. Unlike financial planners and accountants – whose expertise generally extends only to questions of accounting and profitability – CDFAs are specifically trained to evaluate and plan for the short and long-term consequences of divorce. Their role is to assure that clients and their attorneys fully understand the parameters and consequences of all financial decisions incident to divorce. This information is critical to decision-making, but frequently beyond the expertise of the family law practitioner. Without this information, both the divorcing client and attorney may unwittingly act on assumptions that, though successful in achieving a settlement, work against the client’s long-term interests and financial goals. Just what are these mistaken assumptions? Consider the following:

This couple’s financial health will improve once they divorce.
Although the reasons for divorce are generally unrelated to financial health, many divorcing clients perceive that their financial well-being will improve once they independently control their assets. This is not usually true. Dividing one household in two leads to many new and often overlooked expenses. One utility bill, one phone bill, one garbage bill suddenly doubles, not to mention the cost savings of purchasing household goods and services such as cleaners, kitchen items and lawn care for a single family unit rather than separate units. The sad reality is that financial hardship accompanies almost all divorces, and those who do regain their pre-divorce financial status do so only over the long term.2

My client should keep the marital home.
Although maintaining the status quo may enhance your client’s sense of security and ease the discomfort of divorce in the short term, keeping the marital home may be a financial liability, realized fully only in the months and years following divorce. Capital gains exposure, mortgage terms, property taxes and other fixed expenses may no longer be affordable after factoring in the lifestyle changes that frequently accompany divorce. In some situations it is better to sell the home and find another one that is smaller and less expensive to pay for and maintain. It may actually be a better idea to start fresh in another home. Aside from the financial considerations, there may be too many memories attached to the marital home to allow the client to move forward emotionally. Some of the ways to handle the marital home are:

• One spouse can buy the other out by refinancing the home or by trading the home for other property. Special care should be taken to match cost basis and tax liabilities on assets that are traded.

• Both parties can hold it jointly for a number of years – for instance, until the parent who has custody of the children remarries, or the children reach a certain age, after which the home is sold and proceeds divided in some fashion. In many cases, the party who remains in the home pays the mortgage and taxes and gets credit for any reduction in principal on the mortgage from the date of the divorce until the date that the home is sold or one party buys the other out. Major repairs are often divided between the parties, with the person who advances the money for repairs being repaid at the time of the closing on sale or buyout of the home. Note – this option doesn’t work well if the parties are at odds with one another and unlikely to cooperate.

Continue reading "The Dollars and Sense of Divorce: The Role of Certified Divorce Financial Analysts in Divorce" »

Changes May Be Coming to the RPC – or Are they Already Here?

by Keith A. Call

On August 6, 2012, the ABA House of Delegates – the governing body over the Model Rules of Professional Conduct – adopted some important amendments that will impact your practice. Of course, Utah lawyers are governed by the Utah Rules of Professional Conduct, not the Model Rules. But the Model Rules form an important body of common law and are a harbinger of likely future changes to the Utah Rules.

The new amendments reflect an effort to address the increased use of technology in law practice and in daily life. They reflect a critical need for all lawyers, young and old, to be familiar with the impact of technology on the law.

Here is a quick summary of the most important changes:

Technophobes: Beware

Everyone: Pay Attention

The ABA amended the comments to Rule 1.1 (Competence) to state that a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. ABA Model Rules of Prof’l Conduct, R. 1.1, cmt. 8 (2012). The ABA also added a provision to Rule 1.6 (Confidentiality) stating that a lawyer “shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure” of information relating to a client. Id. R. 1.6(c). And comments to Rule 5.3 (Non-Lawyer Assistants) impose expanded responsibilities on lawyers to ensure that outside vendors and others (including document management companies, data storage companies, etc.) comply with the lawyer’s professional obligations. Id. R. 5.3, cmt. 3.

Wow! These are significant changes. The scope of these expanded duties is yet to be fully defined. But it is clear that technophobic lawyers can no longer ignore computers and other emerging technologies. They at least need to associate with someone who is competent in these areas. All of us should seek more competence in such things as information retention and destruction policies, information preservation issues, and e-discovery.

On a related issue, Rule 4.4 (Respect for Rights of Third Persons) continues to require a lawyer to notify the sender upon receipt of a document that the lawyer knows or should know was inadvertently sent. The ABA amended this rule to specifically include electronically stored information and amended the comment to specifically address ESI, including metadata. Id. R. 4.4(b) and cmt. 2.

Advertising
The old Model Rule 7.2 (and Utah’s current Rule 7.2) generally prohibits a lawyer from giving anything of value for recommending the lawyer’s services, except for payment of such things as “reasonable costs of advertisements” or the “usual charges” of certain lawyer referral services. See ABA Model Rules of Prof’l Conduct R. 7.2(b) (2009); Utah Rules of Prof’l Conduct, R. 7.2(b) (2012). Application of the old rule was pretty clear in the case of television or yellow pages advertisements. But it is extremely murky in the world of internet referral services such as Legal Match, Total Attorneys, Groupon, Martindale-Hubble.com, and others. One ambiguity is whether such services are “recommending” the lawyer’s services in exchange for a referral fee.

The ABA addresses this issue in amendments to a Rule 7.2 comment by defining the word “recommendation” as “communication…[that] endorses or vouches for a lawyer’s credentials, abilities, competence, character, or other professional qualities.” ABA Model Rules of Prof’l Conduct, R. 7.2, cmt. 5 (2012). A lawyer may pay others for internet-based client leads as long as the lead generator does not “recommend” the lawyer, does not make false or misleading communications about the lawyer, and meets certain other conditions. In short, you cannot pay a lead generator to “recommend” you and you cannot pay a lead generator whose advertisements violate other ethics rules. Id.

Direct Client Solicitation
The ABA has amended Rule 7.3 (Direct Contact with Prospective Clients) in an effort to bring more clarity to the definition of “solicitation” in the internet world. For example, are you “soliciting” a client when you participate in a chat group on LinkedIn, or when your pop-up ad appears in response to a particular internet search?

A new comment defines a “solicitation” as a “targeted communication initiated by a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood to provide, legal services.” Id. R. 7.3, cmt. 1. A lawyer’s communication will not typically be considered a “solicitation” if it is directed to the general public, if it is in response to a request for information, or if it is automatically generated in response to internet searches. Id.

Continue reading "Changes May Be Coming to the RPC – or Are they Already Here?" »

Winning at Deposition

by D. Shane Read

Reviewed by Jack T. Nelson

Winning at Deposition presents a well-structured and relatively concise reference for depositions, as a whole, within a lawyer’s practice. From taking a deposition, to preparing clients before they are deposed, to using deposition testimony at trial, Read provides a good general overview of where the deposition fits within the scope of civil litigation.

While the overall themes of being prepared, not letting opposing counsel get to you, and keeping your cool should come as no surprise, the book makes its strongest points with the specific practice pointers. Everything, from where to sit, to limiting your introductory questions, to suggestions for outlining a deposition for impeachment use at trial, are addressed in a clear and easy to read narrative. A thorough index also helps the reader identify any areas he or she may want to review to brush up on a particular topic.

In combination with these practice pointers, Read does an excellent job using specific examples from high profile depositions to provide concrete applications of his suggested techniques. Excerpts from the depositions of Bill Gates, OJ Simpson and others are used to demonstrate both the good and bad in real world situations. As a final overview, two of the last chapters present a review of Bill Clinton’s deposition and grand jury testimony related to the Linda Jones and Monica Lewinsky scandals. The use of these actual deposition transcripts not only helps to solidify the ideas presented, but given most readers’ general familiarity of these high profile cases, it also helps to keep the book readable from start to finish. (Readers should be aware that, given the nature of the Clinton scandal, the Clinton testimony does get a little racy.)

Overall, particularly for a starting practitioner, Winning at Deposition presents an excellent “how to” resource for conducting and defending depositions. While it certainly is no substitute for experience, it may help new attorneys skip a few avoidable mistakes along the way. Additionally, even for a seasoned attorney, Winning at Deposition provides helpful tips to help increase efficiency and decrease headaches with difficult witnesses and opposing counsel.

November 9, 2012

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.

Continue reading "Attorney Discipline" »

YLD President’s Message

by Katherine A. Conyers

All members in the Utah State Bar in good standing and (1) under thirty-six years of age or (2) who have been admitted to their first state bar for less than five years, regardless of age, are automatically members of YLD. There is no need to sign up or pay dues to be a member. So why should you participate in the Young Lawyers Division of the Utah State Bar (YLD), when you already have so much going on? Unquestionably, you are busy with work – perhaps concerned with billable hours at a large firm or building your solo practice – and you also have family, friends, and other meaningful things in your life.


First, YLD gives members an opportunity to use their law degrees as most hoped to do after law school – to help people. YLD members volunteer with well-established projects like Tuesday Night Bar, Wills For Heroes, and Serving Our Seniors, as well as new programs like Help R.I.S.E. In this new program – rolling out this fall – volunteer attorneys will provide pro bono representation in bankruptcy, custody and/or child support, and landlord/tenant matters to individuals in the federal court’s mental health and drug courts who have been selected to participate in the court’s Re-entry Independence through Sustainable Efforts (R.I.S.E.) program.


Second, YLD gives members access to free, quality CLEs, specifically through its Practice in a Flash program. Practice in a Flash is designed to help young lawyers by providing resources that make the process of opening and operating a solo or small practice easier and safer. The program will provide a website with tools and information about how to avoid malpractice complaints, comply with ethical rules, as well as suggest marketing strategies to help young lawyers succeed. The program also has a CLE series focused on the basic fundamentals of various practice areas.


YLD also offers members valuable networking opportunities. Almost every month, YLD hosts networking events where members have the opportunity to meet each other and build meaningful relationships. The favorite of these events is the annual Speed Networking Event held in late spring. At this event, young lawyers have the opportunity to meet judges and other more experienced Bar members in a fun, relaxed environment, allowing for meaningful connections and conversations to occur, and providing a place where young lawyers can seek advice in advancing their careers.


If that isn’t enough, YLD provides members with numerous opportunities for community service. One program added last year – the Choose Law project – is a public education program that seeks to improve the civics education taught to Utah high school students by teaching them about the important role that law and lawyers play in society and the diverse careers that a law degree can provide. Volunteer attorneys also encourage students to complete and continue their education regardless of socio-economic and other barriers.


Last, but not least, YLD provides members opportunities to have fun, gain leadership skills, and get even more involved with the legal community through its Board, committees, and liaison positions. Over fifty young lawyers dedicate time and effort to make YLD successful, and each one deserves special recognition. Since there is not enough space in this journal to do them that sort of justice, these individuals and their positions are listed below. Please find these individuals and thank them for what they do for YLD. Without their hard work, YLD couldn’t do all of the things it does for its members.

This article has only given a brief overview of what YLD does and some of the programs it offers. For more information about YLD events and programs and for a calendar of events, visit its website at www.utahyounglawyers.org. Hopefully, though, this article was enough for you to determine that there are many answers to the main question posed and that all of them involve you becoming an overall better lawyer.

Continue reading "YLD President’s Message" »

What Every Lawyer Should Know About Appeals

by Noella Sudbury

An appeal is not a do-over. The appellate process is unique, complex, and structured in favor of affirming the trial court’s decision. Recent Utah court statistics indicate that in the Utah Court of Appeals, an appellant generally prevails less than 10% of the time. Although the appellate process can be daunting and unpredictable, the following five tips will help lawyers avoid common pitfalls and find their way to a prevailing path:

The appellate process begins at the trial level.
In more than 10% of cases issued this year, an appellate court has declined to reach one or more of the claims on appeal due to a lawyer’s failure to preserve the issue for appellate review. For this reason, when a lawyer tries a case, the lawyer must always have the appeal in mind. To preserve an issue for appeal, a lawyer must present the issue “to the district court in such a way that the court has an opportunity to rule on [it].” Patterson v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828 (internal quotations marks omitted). Proper preservation requires a specific and timely objection on the record and citation to legal authority to support it. It requires an attorney to anticipate objections before trial even begins and to prepare a list of objections for trial with supporting law. The more you prepare the objections before trial, the better your objections will be, and the more you will have to work with on appeal. Finally, you must make objections, even if you are afraid it will annoy the judge. If you do not, you risk the likely outcome that an appellate court will decline to review the issue on appeal.

Continue reading "What Every Lawyer Should Know About Appeals" »

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About November 2012

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

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