Utah Bar Journal

by Michael Goldsmith

In 2004, the Boston Globe ran a story suggesting that lawyers nationwide, increasingly frustrated and depressed by “win-at-any-cost legal work,” yearned for less confrontational ways to resolve disputes. The article extolled the virtues of adopting a more “holistic” approach to law practice instead of the usual “slash and burn” litigation model. However, despite widespread job dissatisfaction within our profession, this call for more enlightened conflict resolution largely went unheeded. Today slash and burn litigation remains the norm.

by Joanne C. Slotnik

In 2008, the Utah Legislature changed the way Utah’s judges are to be judged. The judiciary’s evaluative process, established for almost two decades and implemented by the Administrative Office of the Courts, had included a broad survey of attorneys and jurors, supplemented by an assessment of judge’s compliance with education, judicial conduct, and case management standards. Beginning with judges standing for retention election in 2012, however, the evaluative process will become far more comprehensive and will be under the aegis of a newly-created and independent Judicial Performance Evaluation Commission (the Commission).

by Gary L. Johnson

“We are all in the gutter, but some of us are looking at the stars.”

Oscar Wilde, Lady Wyndermere’s Fan, Act III (1891).

He was accused of being a criminal and a terrorist. His earlier writings had been ignored by the government, but his latest works were perceived as maliciously and wickedly intended to incite violence toward the government. Charges were brought and a criminal action was instituted.

It was not easy to find a lawyer for the defendant. Finally, one attorney stepped forward and was promptly told by his largest and most important client that he would lose that business if he continued the representation. The lawyer indicated his intent to proceed and was promptly fired by the client.

by S. Grace Acosta

If defense attorneys seeking medical records have noticed a dramatic increase in the objections to subpoenas and medical releases, this is likely due to the recent supreme court opinion of Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614. Barbuto is a case that has mistakenly been interpreted by some as making medical releases and disclosure of medical records beyond the reach of discovery. Barbuto is neither as broad as some claim nor should we want it to be as broad as it has been touted.

by Mark Dykes

Yes. “Reinsurance” is “an insurance transaction where an insurer, for consideration, transfers any portion of the risk it has assumed to another insurer.” Utah Code Ann. § 31A-1-301(140) (2005).

The Basics: Some Nomenclature
The insurer “transferring the risk” is the “ceding insurer,” id. § 31A-1-301(140)(a), or more commonly, the “cedent.” The “insurer assuming the risk” is the “assuming insurer,” id. § 31A-1-301(140)(b)(i), or “assuming reinsurer,” id. § 31A-1-301(104)(b)(ii), more commonly, the “reinsurer.” Reinsurers can in turn cede portions of their risks to yet another insurer by “retrocession.” The “retrocedent” here cedes business to the “retrocessionaire.” Id. § 31A-1-301(143). In very complex, large risk situations, this process can continue through multiple levels of reinsurers and retrocessionaires.

by Dale H. Boam

Twenty-four years after my first exposure to the Deaf community I am still deeply involved with Deafness and Deaf Culture as an attorney, certified interpreter, teacher of interpreters, and a friend to the Deaf community.1 In my practice, I often represent persons who are Deaf and who, by reason of their Deafness, face discrimination at the workplace and barriers when they attempt to access goods and services that the hearing population takes for granted. Sadly, I have seen such barriers in hospitals, doctors’ offices, educational institutions, courts, and attorneys’ offices. Most of these situations are misunderstandings and easily resolved once people understand their legal obligations and make a slight adjustment in their analysis of the situation. In my practice, I have found that law is a profession inhabited by persons seeking to do right. Doing right is often simply a matter of knowing how to analyze the situational requirements and acting accordingly.

by Stephen Kelson

Although small claims court may not be a regular part of most attorneys’ practices, it is likely that at some point during one’s legal career, one will have the opportunity to represent a client with a small claims case. It is even more likely that an attorney will be approached in a limited or informal capacity to explain the small claims process and procedure to someone who has a small claims case. Among the important elements of an answer to this query is a discussion of the availability of mediation in the small claims context. Although several small claims courts in Utah have provided free mediation services for more than ten years, many attorneys are not fully informed about the availability or the benefits of mediation in the small claims process.

Many attorneys misunderstand what mediation is. Some attorneys believe that if they call the opposing counsel or party and make an offer of resolution, they have then “mediated” the case. Such an exchange may be a settlement negotiation, but it is not mediation. Mediation is where a neutral third party (the mediator) assists two or more parties in order to help resolve their dispute.

by Mari Cheney

You’ve probably heard people talking about blogs, social networking, and Twitter, but may have wondered how these technologies are relevant to you in your professional life. These online technologies are all part of “Web 2.0,” a term first coined to describe the transition from web pages only programmers could manipulate to a web that allows anyone to participate online by publishing and sharing content.

Web 2.0 today generally describes online resources that encourage site visitors to add their own content through interactive features like comments and tags. Tags are user-generated and user-assigned identifiers. If you uploaded and tagged a photo with “Bar Retreat” on a photo sharing site like Flickr, other users could upload their photos to the same site and use the same tags. Then, if you searched for Bar Retreat photos, you would find your photos as well as those posted by others. Some of the common websites associated with Web 2.0 and professional awareness/marketing are free blog creation sites like Blogger or WordPress, Twitter, and LinkedIn.

by Donald J. Winder and Jerald V. Hale

“That man is guilty! That man there is a slime! He is a slime! If he is allowed to go free, then something real wrong is goin’ on here!”

“You’re out of order, you’re out of order! This whole trial is out of order!”

Al Pacino as Arthur Kirkland in And Justice for All. Valerie Curtain & Barry Levinson, And Justice for All, Columbia Pictures, 1979.

We have all seen the entertainment industry’s impressions of the legal profession. Fired-up attorneys in court yelling at witnesses, belittling their opponents, and battling the judge hammer and tongs over every perceived slight or unfavorable ruling. Despite the artistic license entertainment writers take in creating these characters for the screen, we know all too well the caricature of the uncivil attorney has a basis in reality and in many cases is not far off the mark. We live in an increasingly disrespectful and competitive world, and our profession is not immune from the general discourtesies that permeate society. The nature of our adversarial system of law can also foster an environment where it is often believed antisocial behavior can get you noticed and get results.

Examining the ADA Amendments and New FMLA Regulations

by Christopher Snow and Sarah Campbell

INTRODUCTION
Significant overhaul of both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA) means that businesses nationwide, including those in the state of Utah, must understand and implement new practices related to the interpretation of disability and requests for leave. Changes to these two laws went into effect at the beginning of 2009.

by John H. Bogart

On May 21, 2007, the United States Supreme Court handed down Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). Just short of two years have passed since Twombly was decided, time enough to assess its impact on pleading and motion practice in the federal courts. We can now answer the question of whether Twombly was an antitrust pleading case or a federal civil pleading case.

The issue before the Supreme Court in Twombly was how much detail must a plaintiff allege in order to state a claim for conspiracy under Section 1 of the Sherman Act? May a plaintiff rest with allegations of parallel conduct by several defendants, or is a plaintiff required to allege something more in order to state a claim for conspiracy? In Twombly, the plaintiffs, based on a history of parallel conduct, had alleged a conspiracy among telecommunications companies not to compete against one another and to block entry of new local service providers.

by Mike Martinez

One December night a West Jordan City police officer was “trolling” cars parked at Wal-Mart. While randomly entering license plate numbers into her computer, the officer discovered Christopher Goodman’s automobile was uninsured. When Goodman exited the store and drove onto a public street the officer ticketed him.

Goodman’s trial was before the West Jordan City Municipal Judge. Goodman was found guilty and fined. That was not unusual. After canvassing numerous monthly reports filed by municipal courts with the Administrative Office of the Courts, Goodman discovered that city judges impose a fine on nearly every defendant appearing before them.

by Thomas D. Boyle

What do restaurants, insurance companies, and technology businesses have in common? If they’re successful, chances are good they all have trade secrets.

Like a king who secures the kingdom’s greatest treasures deep inside the castle walls, so too must business owners protect trade secrets. Otherwise, business owners may lose the ability to protect the heart of their business because of a quirky statute of limitations issue that could easily go unnoticed.

Analysis and Best Practices of the U.S. Supreme Court’s Decision in Glenn

by Michael P. Barry

Introduction
In the health care benefits industry, plan administrators commonly fill the dual roles of evaluating benefit claims and paying claims. This scenario, however, can cause administrators to face an inherent conflict of interest. In 1989 the U.S. Supreme Court established the standard of judicial review for such conflicts in Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). The Firestone Court found that under the principles of trust law, a conflict of interest is just one of several factors a court should weigh to determine whether an administrator has engaged in an “abuse of discretion.” See id. 108-16.

In its most recently completed term, the Supreme Court again confronted the issue of a conflicted administrator in Metropolitan Life Insurance Co. v. Glenn, 128 S.Ct. 2343 (2008). This time around, the Supreme Court considered how much weight a conflict should receive on judicial review. This article will take an in-depth look at Glenn, and discuss the best practices for plan administrators, fiduciaries, and employers in light of this case.

by Jessica Van Buren and Mari Cheney

Your client may have violated a Department of Environmental Quality rule. As you investigate the situation, you discover that the department may have fined your client wrongly thirty years ago, but you are having a difficult time locating the agency’s administrative rule as it existed then.

Researching administrative rules is not as complicated as it may first seem. Although it is true that it is easier to find information about a rule after 1987, do not give up hope if you need information about an older rule.

The Irrevocable Life Insurance Trust: An Underutilized Tool
by Gregory C. Zaugg

The Irrevocable Life Insurance Trust (ILIT) is a powerful and often underutilized estate planning tool. Significant tax advantages are possible when life insurance policies are held in an ILIT. A properly drafted ILIT can remove the life insurance proceeds from the insured-grantor’s estate and the surviving spouse’s estate, while allowing the proceeds to be available to meet the needs of the surviving spouse and children.

On Beyond GRAMA and the Open Meetings Act – The Proposal for Greater Transparency, Openness, and Inclusion in Salt Lake City Government
by Edwin P. Rutan, II and Esther Hunter

AUTHOR’S NOTE: Ed Rutan, City Attorney, and Esther Hunter, Senior Policy Advisor to the Mayor, are supporting the Transparency Project administratively for the City.

The Open and Public Meetings Act (the Open Meetings Act) has been on the books in Utah for thirty years now and the Government Records Access and Management Act (GRAMA) for nearly twenty. These two Acts are fundamental pillars of the way that the business of government is conducted in Utah. The Open Meetings Act states a very clear public policy that the state and its political subdivisions are to “take their actions openly” and “conduct their deliberations openly.” Utah Code Ann. § 52-4-102(2) (2007). Similarly, GRAMA recognizes “the public’s right of access to information concerning the conduct of the public’s business” (while also recognizing “the right of privacy in relation to personal data gathered by governmental entities”). Utah Code Ann. § 63-2-102(1) (2004). These two Acts laid the foundation for a growing public expectation of “transparency” in our local governments.

Workers’ Compensation & Liability Lawyers Beware: Section 111 of the MMSEA Imposes Significant New Penalties for Failing to Protect Medicare’s Interests
by Mark Popolizio and Carrie T. Taylor

On December 29, 2007, President Bush signed into law the Medicare, Medicaid, and SCHIP Extension Act (MMSEA). Section 111 of the MMSEA significantly amends the “notice and reporting” requirements under the Medicare Secondary Payer Statute (MSP) relating to workers’ compensation, liability (including self-insurance) and no-fault cases. This new law becomes effective July 1, 2009, for all primary payers except for group health plans for which the effective date is January 1, 2009.1 The penalty for non-compliance is steep: $1000 per day, per claim.

Researching and Using Utah Appellate Briefs and Other Appellate Resources
by Mari Cheney

Why Use Appellate Briefs?
In law school, we were taught how to analyze legal opinions but rarely, if ever, were we required to read the briefs related to the case. Briefs help the court decide the case, and if the court has not heard your oral arguments, the briefs are the sole source of your arguments. As such, briefs can be a valuable research tool for seasoned appellate litigators, recent law school graduates, and those who are new to appellate litigation.

Lawyers are Needed to Clean up Wall Street’s Mess and Rebuild the Economy
by Wayne Klein

Introduction
Wall Street “quants,” employing sophisticated (but flawed) algorithms, joined with shortsighted bankers to cause a near-collapse of our financial system. This meltdown precipitated severe investment losses, destroyed long-standing business relationships, and pushed companies into crisis mode. The impact is being felt in law offices as firms implode, close offices, and lay off attorneys.

Does the Wrongful Lien Statute Apply to Mechanics’ and Other Types of Liens?
by R. Spencer Macdonald
Although the response to the question in the title of this note may seem obvious, attorneys in Utah may be surprised to learn that several district courts have concluded that the Wrongful Liens and Wrongful Judgment Liens Statute, (the Wrongful Lien Statute), see Utah Code Ann. § 38-9-1 to -7 (2005), categorically does not apply to mechanics’ liens. However, recent developments on this issue have demonstrated that the Wrongful Lien Statute can, in fact, apply to mechanics’ liens (and other types of liens) in some circumstances.

The Spider to the Fly
by Just Learned Ham

I have a confession to make. I am an in-house lawyer, and I’ve been one for a long time. I am the reason your clients no longer think of you as a trusted advisor, but just another cost in need of control (well, that plus your $450 billing rate – for that kind of money, shouldn’t you at least offer to wash my windshield?). It’s my fault your bills have those incomprehensible matter numbers. If it’s any comfort, those numbers don’t mean anything to me, either. The whole point is so you, and my CEO, will think I’m watching you (that’s the kind of thing we talk about at those corporate counsel CLE’s in the Lesser Antilles). And I still get to tell people I practice law (and no, I don’t feel bad saying that – Jim Matheson still gets to call himself a Democrat, doesn’t he?).

Utah Legislative History Research Tips
by Mari Cheney

Researching legislative history can be daunting. It is often a multimedia experience that includes print, online, and audio resources. You may have to visit more than one place, including your law library, the Archives, and Capitol Hill. A renumbered code section can complicate your research. And sometimes you will go through the entire process and have no more insight into what the legislature’s intent was than when you started.

Don’t be discouraged. Here are some tips to help you through the process.

Riding High With Your Mediator: The Do’s and Don’ts of Effective Mediation Advocacy
by Tracy L. Allen

Perhaps it’s age; maybe it’s experience. Name the cause but the result is all the same. There are just certain things lawyers should and shouldn’t do when mediating. While nothing is absolute, what we’re about to discuss should be “the norm,” not “the exception.”

As lawyers, we pride ourselves on being ahead of the curve, out in front, ready to catch and throw whatever comes our way. We think we know just about everything there is to know about our cases and our clients, and we’d like to believe we are right. Humility left many of us after we walked through the law school doors and some haven’t ever bothered to look back. Using a mediator to settle or negotiate is something many feel is an unnecessary, time-consuming, and expensive exercise. But here we are, a sea of mediators with daily work, so there must be something to this mediation thing after all.

ERISA: License to Cheat, Lie, and Steal for the Disability Insurance Industry
by Loren M. Lambert

Introduction
There is an increasingly popular notion that modern litigation is an evil that must be stamped out at all costs. This belief has not only been propounded by the uninformed, but has been championed by some of our leading legal scholars, judges, and legislators. They have sought to rarefy litigation by creating unnecessary legal complexity, stripping litigation of its essential components, gutting administrative agencies of staff and money, limiting attorneys fees, and completely eliminating adjudication of some claims.

A Primer on the National Vaccine Injury Compensation Program
by Christopher J. Rogers

In recent months, you may have seen various news stories debating an alleged connection between childhood vaccines and autism.1 These news stories have raised the specter of vaccine injury nationwide. Vaccine injury claims are distinct from traditional tort actions and this article is an effort to help navigate the legal minefield of vaccine injury claims.2

An Open Letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board
by Eric K. Johnson

Introductory Note: At the Utah State Bar 2008 Spring Convention in St. George, the Utah Supreme Court announced issuance of Utah Supreme Court Standing Order No. 7 (effective April 1, 2008), establishing a program of “professionalism counseling” for members of the Utah State Bar, overseen by “a board of five counselors (the Board) to: (1) counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) provide counseling to members of the Bar who request advice on their own obligations under the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”); (3) provide CLE on the Standards; and (4) publish advice and information relating to the work of the Board.”

John Hill, Public Defenders’ Long-Time Leader, Retires

In the landmark Supreme Court case of Gideon v. Wainwright 372 U.S. 335 (1963), the Court concluded that the Sixth and Fourteenth Amendments required states to provide an attorney to indigent defendants in cases involving serious crimes. Nine years later in Argersinger v. Hamlin, 407 U.S. 25 (1972), a unanimous Court extended that right to cover defendants charged with misdemeanors who faced the possibility of a jail sentence. To guarantee fairness in trials involving potential jail time, no matter how petty the charge, and to avoid the danger of “assembly-line justice,” the Court found that the state was obligated to provide the accused with counsel.

Drawing the Short Straw – Mortgage Fraud and Straw Buyers
by Brad R. Jacobsen and Michael Barnhill

I. Introduction
Mortgage fraud is a significant problem in Utah, and it is growing. The FBI listed Utah as one of the top ten hotspots for mortgage fraud in its 2006 Mortgage Fraud Report.1 Recently, both state and federal agencies have increased their investigation of mortgage fraud and the enforcement of mortgage fraud laws. New Mortgage Fraud Task Forces have been created by state and federal agencies to tackle the problems created by these schemes and to stop those involved.2

The Commercial Loan Guaranty – Types & Techniques
by Rick L. Knuth

The guaranty agreement is often only an after-thought in a commercial loan transaction. Lenders tend to focus more on the collateral, and borrowers tend to assume that a guaranty’s presented form is non-negotiable. As a result, no one pays much attention to the guaranty agreement – until the loan is in trouble, that is, at which point everyone suddenly becomes very interested in whatever recourse against the guarantors was agreed to back
on that sunny, optimistic day when the loan was first made. The proposition of this article is that the guaranty agreement ought to receive a more thoughtful, flexible consideration than that; that it should not be treated just as another document‑in‑the‑stack, but as a separate agreement of equal concern to all parties.

An Enigmatic Degree of Medical Certainty
by Nelson Abbott and Landon Magnusson

Every profession uses its own jargon. Psychologists describe a client’s “affect” while an acting coach describes a student’s “expression.” The use of jargon frequently causes difficulties when members of differing professions converse. For example, economists and accountants find themselves at odds over the meaning of terms like “capital” and “profit.” In the legal profession, attorneys must also converse frequently with members of other professions. Misunderstandings and problems can be especially common when meaning is lost in the translation from “legalese” to plain English. For example, when professionals are required to give opinion testimony under Utah Rules of Evidence 702, such misunderstandings may result in testimony being wrongfully admitted or improperly excluded.

Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

President-Elect and Bar Commission Candidates

President-Elect Candidates
STEPHEN W. OWENS
Background & Bar Service

• Practice in five-attorney litigation firm in Salt Lake City, Epperson Rencher & Owens (1997-present)
• Elected Bar Commissioner (2002-present) (Executive Committee 2007-08)

Subcommittees: Lawyer Assistance, OPC Diversion, Public Affairs, Mentoring, Communications
Liaison: Litigation Section, Tooele County Bar, Cyber Law Section

• Training at Western States Bar Conferences (2007, 2008)
• Routinely represent pro bono clients
• Raised $1.25 million for U of U’s Wayne Owens Endowed Professorship (2007)
• Ethics Advisory Opinion Committee Member (2006-present)
• Law-Related Education Teacher and Judge of Mock Trial Finals (1994-present)
• President, Utah Bar Young Lawyers Division (2001)
• Clerk Utah Supreme Court (Richard C. Howe) and Third District Court (1994-97)
• Law Degree from the University of Utah/S.J. Quinney College of Law (1994)
• Harry S. Truman National Scholarship for Leadership and Public Service (1989)

Utah Supreme Court Establishes Professionalism Counseling Program
by The Honorable Christine M. Durham and Marilyn (Matty) Branch

During the Utah State Bar 2008 Spring Convention in St. George, Justice Ronald E. Nehring announced the issuance of Utah Supreme Court Standing Order No. 7, 1 establishing a program of professionalism counseling for members of the Utah State Bar. Standing Order No. 7 became effective April 1, 2008. It represents a further effort by the Supreme Court to draw attention to the Utah Standards of Professionalism and Civility and to encourage adherence to them. The text of Standing Order No. 7 and the Utah Standards of Professionalism and Civility are found at the end of this article.

Well, What Did You Expect? The Utah Supreme Court Discusses “Accidents”
by Mark W. Dykes
If you borrow your neighbor’s cabin, build an excessively festive fire in the hearth, and burn the place down, your liability insurer will defend you against the ensuing lawsuit and indemnify you against payment of any judgment.1 But if you intentionally torch the place, you are out of luck, because liability insurance normally only applies to accidents, not the outcome of deliberate acts.

Going Green in a Red State
by Lisa McGarry & Margaret Olson
The offices of Hobbs & Olson, LC and Hobbs Mediation are committed to environmentally responsible office practices. All it takes is awareness, a desire to reduce, and a commitment to try. In this article, we share our energy policy with members of the bar in the hope that others will follow.

The Ethical Utah Lawyer: What Are the Limits in Negotiation?

by Michael H. Rubin

Editor’s Note: Mr. Rubin was the keynote speaker at the Utah State Bar’s 2007 Annual Convention. His engaging presentation included a turn at the “baby grand,” which unfortunately cannot be replicated here. This article otherwise draws heavily on his remarks in Sun Valley as well as on his prior publications.1

The Lawyer as a “Zealous Advocate”
For over two hundred years, lawyers have been encouraged to be “zealous advocates” of their clients’ interests.

Bankruptcy Exemption Planning: Counseling in Shades of Gray

by Joel Marker

For a debtor’s counsel, the easiest bankruptcy case involves a client with little or no non-exempt property. To quote Kris Kristofferson from his ballad “Me and Bobby McGee,” “freedom’s just another word for nothin’ left to lose.” But for many individuals who qualify for Chapter 7 relief in spite of the substantial hurdles imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 (those with incomes below the state median or whose debts are primarily business related), the issue of exemption planning remains important. Attorneys representing clients contemplating bankruptcy must be familiar both with state and federal exemption statutes, and with inconsistent case law, that may limit a debtor’s ability to take full advantage of the protections to which the debtor is entitled.

Dealing with Metadata in the Non-Discovery Context

by H. Craig Hall, Jr.

I’m not exactly sure how this was done, but rumor has it that lawyers used to practice law without computers.

Word processing software, e-mail, spreadsheets, PowerPoint, and the like have become an almost essential part of the professional and personal lives of lawyers and their clients. Such technology can significantly enhance our communication capabilities and efficiency as lawyers. However, potential dangers abound for lawyers. Perhaps one of the most dangerous issues to be aware of is the existence of metadata in electronic documents.

Interpreting Rules and Constitutional Provisions

Remarks by Laura Dupaix, Linda Jones, and Christina Jepson Schmutz

Edited by John Bogart

Editor’s Note: At the July 2007 Convention of the Utah State Bar, the Appellate Practice Section sponsored a panel discussion on some recent developments and trends in decisions of the Utah appellate courts. The discussion focused on expert testimony and constitutional interpretation. What follows is a summary of the remarks by the panelists.

A Friend in Need
by David Bernstein

Some years ago a close colleague confided in me that he felt he couldn’t take practicing law much longer. He was at the end of his rope. He felt paralyzed and overwhelmed. Phone calls from counsel and even clients went unanswered or unreturned for weeks; unopened mail filled his desk. Deadlines loomed and the pressure mounted as his cases stagnated. He lived in fear of missing deadlines or receiving a malpractice complaint. He resented his work and his whole life felt out of sync. The good news is that he managed to make it through those dark days unscathed. Not everyone is so lucky.

What to Expect When You Call Lawyers Helping Lawyers
by Shannon Johnson

“Lawyers Helping Lawyers, this is Shannon.” If you call (801) 579-0404 or 1 (800) 530-3743, this is most likely what you will first hear on the other end of the phone. My name is Shannon Johnson and I am the administrative assistant for Lawyers Helping Lawyers (LHL). As such, I have the opportunity of answering the phone and therefore being your first contact with LHL. I count this as a privilege and hope that I can always help you feel by the time you hang up the phone that your needs were or will be met. In order to make sure this happens, let me take a moment to guide you through what to expect if you call LHL.

LHL: Reflecting the Principles of the ABA Model
by Michael E. Bulson

One of the strengths of Utah’s Lawyers Helping Lawyers program (LHL) is that it is based on the American Bar Association’s (ABA) model for lawyer assistance programs (LAP). Since 1987 when its efforts to assist lawyers facing impairment problems first began, the ABA has aided and supported the establishment of LAPs in every state. The ABA’s support for this important initiative grew out of its awareness that the number of lawyers suffering the effects of drug and alcohol addiction, as well as mental health issues, was disproportionate to that of society as a whole. Studies put the percentage of lawyers in crisis at 15 to 18%, compared with 10% for the rest of society. In response, the ABA House of Delegates adopted a model program in February 2004, for providing help to lawyers, judges, and law students impaired by any physical or mental health condition affecting the competent practice of their profession, quality of life, or study of law.1

Why Are So Many Lawyers Depressed?
by Brent Hale

Do lawyers suffer more depression than other professionals? Do the demands and pressures of a legal career make lawyers particularly prone to burnout and other stress-related illnesses? Consider the following comments taken from ABA publications and websites:

“Ain’t Stress Grand?”
by Herm Olsen

The fault, dear Brutus,
Is not in our stars,
But in ourselves
– William Shakespeare, Julius Caesar, I, ii.134

It’s 5:13 a.m. – you’re bone-dead tired. But you can’t get your eyes to slam shut. Deadlines eat at you. Clients are getting frustrated because you’re not prompt at getting back to them. Your secretary is irritated because her bonus isn’t as large as she deserves.

A Sober Look Back
by Anonymous

Hello, my name is “Steve,” and I am a career prosecutor. I’ve practiced law for over two decades and I haven’t billed an hour yet. In that time, I have prosecuted everything from barking dog cases to capital homicides. Of course, I’ve prosecuted illegal narcotics cases, automobile homicides, and DUIs; lots of DUIs.

Stress in Practicing Law and How to Minimize it from the Perspective of a Family Law Practitioner
by Carolyn Zuethen

Although most lawyers will agree that the practice of law is demanding and intense, the legal community does not agree on how one finds satisfaction, fulfillment, creativity, and happiness in the practice of law. Perhaps the choices I have made to reduce the stress in my practice will serve to illustrate that a positive attitude is possible. As a lawyer practicing in family law for the past twenty years, I have certainly struggled with the intensity and demanding nature of the practice of family law. But I believe that I have come to enjoy it now more than ever. There are several reasons for this, but the most important are the choices I made that helped me to come to terms with the stressful environment in which I work.

Lessons from Recent Utah Legal Malpractice Cases
by Michael Skolnick

We can all learn from our mistakes. But it’s likely less painful to learn from other’s mistakes – either actual or alleged. This article is offered in that spirit – a compilation of some recent Utah attorney malpractice cases containing a grab bag of valuable lessons for every day practitioners. “Recent” is arbitrarily defined as the last two years.

Stress Management for New Lawyers, Or “You Can Do It!”
by Marianne McGregor Guelker

I write this article about stress management to new lawyers as a relatively new lawyer. However, the tips contained in this article may be helpful to all lawyers.

Remember who you are and stay true to your best qualities.
Remember the positive characteristics, which helped you to be admitted to and to complete law school. The law is a profession which prizes character, grit, intelligence and industry. You could not have completed law school without having these qualities. Remember that you possess these strengths and that you can rely upon them as you practice law.

My Mentors
by Stephen W. Owens

You will be hearing a lot about mentoring in the coming months. Rod Snow and Margaret Plane are leading a bar commission subcommittee on this issue. Alan Sullivan has also been a leader in this area.

In the not-too-distant future, you may see a formal matching of new lawyers to seasoned lawyers organized through the bar with a list of practical experiences the new lawyer will be expected to complete. The Minority Bar and Women Lawyers of Utah already have such programs in place.

Reducing Stress
by Robert H. Henderson

Stress. My life has been haunted by stress (I shamelessly borrow Norman MacLean’s last line from A River Runs Through It). I’m the King of Stress. You are thinking, “no way reading this piece can benefit me.” You are wrong – I can help you. Suspend disbelief for 5 minutes while I briefly qualify myself.

In the early 60’s, we were hysterically afraid of the communists, much as we are now of the terrorists. President 35 asked me to go to a service academy. You know, part of that “ask what you can do for your country” bit. You have to admit, he had a certain charm, and I was a sap. My beloved U.S. of A. had just been through the Bay of Pigs and the Cuban Missile Crisis. So, at 17, I found myself at the United States Military Academy at West Point, New York. Huge mistake. I couldn’t quit without my father’s permission. My father had flown bombing missions in the South Pacific during World War II, and he was not in a permitting mood. I am now a fervent believer than no human being should commit to anything beyond the next day or so before their age starts with a 3. Anyway, at the end of my second year, I was 12th from the bottom of my class in “military aptitude,” in a class of 800 or so. They kicked out 10 of the 11 below me. The “cutoff man” had been my roommate. Two years later, I graduated, with relief. The Latin phrase is “summa cum difficultate.” To me, those 4 years seemed to last as long as the 40 since. I was a total failure as a cadet. This was a very stressful time for me.

The Diversion Process in Disciplinary Cases: Utah Rule 14-533
by Lori Nelson

On November 1, 2007, Utah Rule 14-533 becomes effective, formalizing Utah’s process for diversion. Although diversion from discipline has always been an option in particular disciplinary cases, the rule makes the process formal and details the specifics and qualification for diversion.

The First Decade: The Consumer Assistance Program Has Proven Itself to be a Valuable Program
by Jeannine P. Timothy

Ten years ago, the Utah State Bar initiated the Consumer Assistance Program (CAP) designed to offer assistance to consumers who have minor complaints about their attorneys. The program was spearheaded by former bar president Charlotte Miller and former Utah Supreme Court Justice Michael Zimmerman, both of whom had been introduced to the concept of an informal assistance program by the Mississippi State Bar and decided Utah needed just such an office. Not only would the program assist consumers, but it would also help attorneys resolve minor complaints with their clients. By the end of September 1997, the Utah State Bar CAP was in full swing, and newspaper articles notified the public of the new part-time office. Calls immediately started coming in, and they haven’t slacked off since. Based on the number of clients and attorneys whom CAP has assisted over the years, one can easily conclude that CAP is among the most important programs the Utah State Bar developed during the past decade.

Helping Our Clients Tell the Truth: Rule of Professional Conduct 2.1 in Criminal Cases
by Ted Weckel

Over the past 14 years, I have practiced in the area of criminal law. I have tried one federal murder case to verdict and have represented clients in scores of other serious cases. I have worked for a public defender’s office in Virginia and have accepted many cases under the federal and D.C. Criminal Justice Act programs. One issue which has troubled me at times pertains to whether we as lawyers should be striving to obtain an acquittal at all costs for our client’s benefit (and of course for our own recognition), before considering whether we should first advise our clients of the moral implications of going to trial, when we suspect that they are lying to us about the facts of their case. Let’s put aside, for the moment, the fact that some police officers not infrequently ignore the constitutional rights of our clients, trick them into confessing, fabricate evidence and “testi-lie,” and that some prosecutors charge our clients with crimes for which they are not guilty. That is why we take these kinds of cases – to protect the innocent and less valued members of society from oppression.

SEC Receivers: What Are They and What Do They Do?
by Robert G. Wing and Katherine Norman

Federal Securities and Exchange Commission (SEC) receiverships are becoming a more common sight on the dockets of the Federal District Court for the District of Utah. In the past ten years the SEC has filed six actions in Utah that resulted in receiver appointment: SEC v. Novus Technologies, et al., 2:07CV235-PGC; SEC v. Wolfson, et al., 2:03CV914-DAK; SEC v. 4NExchange, et al., 2:02CV431-DAK; SEC v. Merrill Scott & Associates, Ltd., et al., 2:02CV39-TC; SEC v. Miller, 2:99CV383-DB; and SEC v. Capital Acquisitions, et al., 2:97CV977-DB. This article focuses on federal equity receiverships brought at the request of the SEC. The Federal Trade Commission and the Commodity Futures Trading Commission have also brought equity receivership actions in Utah courts, either as a companion case to SEC actions or separately. See FTC v. Peterson, 3 Fed. Appx. 780 (10th Cir. 2001). Courts have not drawn distinctions between equity receiverships based on the agency seeking them. An understanding of the mechanics of equity receiverships is important when a client either has invested with a receivership company or has a claim against a company.

Utah Control Shares Acquisitions Act
by Brad R. Jacobsen

Utah’s Control Shares Acquisitions Act (Utah Code Ann. § 61-6-1 et seq. “Control Shares Act”) provides stringent rules governing takeovers of certain qualifying Utah corporations. The Control Shares Act is governed by numerous defined terms that must be carefully reviewed. The Control Shares Act denies voting rights to any person or entity (“acquiring person”) that acquires “control shares” of a Utah “issuing public corporation” (not necessarily an SEC public company) in a “control share acquisition.” The acquiring person’s voting rights may only be restored if shareholders holding a majority of shares that are not “interested shares” elect to restore those voting rights.

Ten Ways the Bar Can Be Improved
by E. Russell Vetter

The Utah State Bar (the Bar) and its Bar Commission (the Commission) are at a crossroads that may lead to a request to increase Bar dues. In the Spring of 2005, the Utah Supreme Court (the Court) requested that the Bar perform an audit of its operations. As a member of the Bar Commission at that time, I was hopeful that the audit would lead to meaningful changes at
the Bar to better address the needs of Bar members, significantly improve communications with members, and fulfill a component of the Bar’s mission to serve the public. More than a year later, in August of 2006, a very limited audit began. The audit focused on Bar governance, the activities of the Commission, and how the Commission interacts with the Court and the Bar’s Executive Director. The audit was performed by members of the Grant Thornton accounting firm. I was one of a few members of the Bar interviewed for the audit.

An Open Discussion of 10 Ways
by V. Lowry Snow, Utah State Bar President and on behalf of the Board of Bar Commissioners

This article will provide a response to the suggestions of our colleague Russell Vetter on how the Bar can be improved. This response is not so much in the nature of a rebuttal as it is a discussion of the issues raised. Indeed, the Bar Commission recognizes there are ways it can and should improve, and agrees with some of the suggestions of Mr. Vetter, while respectfully disagreeing with others. We welcome and encourage from our members your questions and comments on or about Bar operations and governance. This is, in fact, your Bar.

The Supreme Court Decision in Twombly: a New Federal Pleading Standard?
by John H. Bogart

The United States Supreme Court, for the first time in many years, decided to take up antitrust cases. In one such case, the Supreme Court addressed the standards applicable to pleading a claim for conspiracy under the Sherman Act. The opinion should be of interest beyond the world of private antitrust litigation.

Implementing Flat Fees in Your Practice
by R. Steven Chambers
The Wall Street Journal recently published an article about a growing trend among large law firms: flat fees in place of traditional hourly billing. Flat or fixed fee billing and other alternative billing practices are attractive to clients who are continually looking both for reductions in legal fees and for more certainty in the amount of fees they will have to pay.

WiFi in Utah: Legal and Social Issues
by Cheryl B. Preston

All over Utah, parents are buying their children the tools necessary to access astonishingly degrading and violent sexually explicit materials. For instance, innocent looking gaming systems, i.e., PlayStation Portable, X-Box 360, and Nintendo Wii, can access the internet and are available everywhere from around $130 to $500. Many minors also have internet enabled cell phones, PDAs, and Blackberrys. Most of these systems do not come with a content filter and cannot be modified by software to add any protections.

Active Emeritus Lawyers
The Board of Bar Commissioners congratulates the eighty lawyers who, according to our records, enjoy the distinction of 50 years or more as an active member of the Utah State Bar. With apologies for any inadvertent omissions, the lawyers and their dates of admission to the Bar are as follows:

Advance Health Care Planning in Utah
by Maureen Henry
The Utah State Legislature updated and transformed advance health care directives in Utah during the 2007 legislative session. Effective January 1, 2008, under Senate Bill 75 (second substitute), the Advance Health Care Directive Act will replace the Personal Choice and Living Will Act1 as the law governing advance health care planning in Utah. The new law was developed through collaboration among dozens of organizations and individuals with an interest in aging and health care planning.

When Does a Skier Become a Trespasser?
by Gordon Strachan, Adam Strachan, and Kevin Simon
Many western states, including Utah, encourage the public’s recreational use of open space by having Limitation of Landowner Liability (“LLL”) statutes.1 If a recreational user is injured, these statutes limit the liability of landowners by absolving the landowner of any duty to make the land safe, or even to warn of dangerous conditions. These statutes apply to a very broad range of recreational activities, including skiing, hunting, fishing, boating, river running and mountain biking. If, however, a landowner charges for recreational use of the land – as ski resorts do by selling lift tickets for skiing, snowboarding or for lift-served mountain bike access – the recreationist is considered a business invitee, and the LLL statutes do not apply. Instead, the general rules of negligence control. The question, then, is whether recreation providers who charge for their services have any protection under negligence law similar to that afforded by the LLL statutes. The answer is “yes” if recreationists become trespassers by exceeding the scope of their business invitations. In such situations, the recreation provider’s only duty is to refrain from willful or wanton conduct.

Unsworn Declarations in Lieu of Affidavits: Increasing Efficiency of Practice Under the Utah Rules of Criminal and Civil Procedure and the Utah Rules of Evidence
by John H. Bogart and Scott D. McCoy
On April 30, 2007, Utah Code Annotated § 46-5-101, Self-authentication of documents, came into effect. Section 46-5-101 states:

(1) If the Utah Rules of Criminal Procedure, Civil Procedure, or Evidence, require or permit a written declaration upon oath, an individual may, with like force and effect, provide an unsworn written declaration, subscribed and dated under penalty of this section, in substantially the following form:

Synopsis of Recent Criminal Case Law Pertaining to Fourth Amendment Issues and Incredible Evidence
by Patrick Tan
One of the more common motions in criminal defense practice is the motion to suppress based on a constitutional violation of a defendant’s Fourth Amendment rights. In 2006 and early 2007, appellate courts ruled favorably for the defense on certain subcategories of Fourth Amendment rights, including searches of residences, the scope of traffic stops for passengers, and detentions. Brief summaries of those cases follow. In addition, this article touches on a redefinition of the standard for bindovers of preliminary hearings.

Juvenile Defense in Utah
by Paul Wake

Juvenile defense in Utah is largely handled pro se or by public defenders, since the stakes are usually too small to justify hiring a defense attorney. Still, attorneys should be ready for the call to defend a wayward youth. This article aims to help attorneys be prepared. Note that juvenile court deals both with delinquency cases and with child welfare cases. This article deals solely with delinquency.

Arbitration – In Trouble Again?
by Kent Scott

Arbitration, long a preferred method for resolving commercial disputes, is in trouble – again! I emphasize “again” because, two decades ago, arbitration experienced a great deal of criticism from the legal profession.

The Utah Supreme Court IOLTA Program Announces 2007-2008 Grant Awards
The Utah Supreme Court IOLTA (Interest On Lawyers Trust Accounts) Program is administered by the Utah Bar Foundation, a private non profit 501(c)(3) organization. While there is a close working relationship with the Utah State Bar, the Utah Bar Foundation is a completely separate entity. No funds from the Utah Bar Foundation go to support the Utah State Bar.

Standard #5: Proceed With Caution in Seeking Sanctions
by Billy Walker

“Lawyers shall not lightly seek sanctions and will never seek sanctions against or disqualification of another lawyer for any improper purpose.”

Some may wonder why the Office of Professional Conduct would comment on the Standards of Professionalism and Civility adopted by the Utah Supreme Court on October 16, 2003 since these Standards are not the Rules of Professional Conduct. Well, it is true that unlike the mandatory nature of the Rules of Professional Conduct, the Standards are intended to be aspirational. And, it is true that the Office of Professional Conduct’s primary investigative focus is the violation of Rules of Professional Conduct as a basis for possible discipline against an attorney. However, conduct by an attorney that does not comply with the Standards may only be one step removed from a violation of the Rules of Professional Conduct.

Thrown Into the Deep End
by Judge Gregory K. Orme

Although the Administrative Office of the Courts had designed an education and orientation program for us so we’d have some sense of what we were supposed to be doing before we started hearing cases, it didn’t really work in my case. I was the Court of Appeals representative on the Judicial Council. Soon after I was sworn in, the Council was scheduled to meet in St. George – maybe in conjunction with the mid-year meeting of the Bar – and the Supreme Court was scheduled to hear cases down there, too. Chief Justice Hall called me at home and asked if I could fill in for Justice Stewart, who wasn’t feeling well and wouldn’t be making the trip. I had been sworn in, but hadn’t read a single brief or heard a single argument as an appellate judge. Our robes hadn’t arrived yet, so I was invited to borrow the Supreme Court’s “loaner,” which proved to be former Justice Henriod’s robe. I accepted the invitation. This promised to be excellent on-the-job training! And it was.

In the Beginning
by Judge Judith M. Billings

It was exciting and daunting to be a founding member of the Utah Court of Appeals in 1987. I knew a few members of the court but had not met others. We had been given no internal procedures and faced the challenge of creating a new appellate court that could assist the Utah Supreme Court. From the outset, we were all dedicated to becoming a hardworking, efficient and, most importantly, a collegial court. I personally treasure my association with the founding members of the court and those who subsequently joined us.

Pioneers in the Utah Judiciary
by Associate Presiding Judge Pamela T. Greenwood

There were seven of us. We included two district court judges, one juvenile court judge, two civil law practitioners, one corporate counsel, and one Utah Supreme Court staff attorney. We included five men and two women, our ages spanned about twenty years, and our heights ranged from about 5’2” to 6’6” (guess who). None of us knew all of the others who would be our colleagues. We began by having dinner together at Le Parisien, in downtown SLC, to get an initial read of each other. It was a good start.

em>Memorable “Firsts” of the Court
by Presiding Judge Russell W. Bench

By virtue of the Chief Justice’s decision to swear us in individually and alphabetically, I became the very first member of the Utah Court of Appeals (albeit by only a few minutes). The swearing-in ceremony was conducted in the rotunda of the State Capitol on Saturday January 17, 1987. The following Monday, Judge Norman Jackson and I went to work as court of appeals judges, and the others joined us a couple of weeks later. Judge Jackson and I held the first hearing of the Utah Court of Appeals even before our doors were officially opened. The hearing addressed a criminal defendant’s request for release on a certificate of probable cause while his appeal was pending. Because construction of our courtroom in the Mid-Town Office Plaza was not yet completed, we had to hold the hearing downstairs in a conference room of the Court Administrator’s Office.

The Utah Court of Appeals – Twenty Years Later
by Judge Gregory K. Orme

In his book, An Unfinished Life – John F. Kennedy, author Robert Dallek quotes Kennedy as saying he felt like he had always been president. I thought that was odd. After all, Kennedy was president for just under three years. Reading this passage, however, did prompt me to muse that I feel like I have always been a Court of Appeals judge. Really. And if I may say so, this seems inherently less incredible. After all, I have been a Court of Appeals judge about seven times longer than Kennedy was president. I have been an appellate judge twice as long as I was a practicing attorney. I have been on the court for two-thirds of my adult life. At the first out-of-state judicial conference I went to, somebody asked me if I was there with my dad; at the last one I went to, somebody asked me when I plan to retire. So I guess I shouldn’t be surprised – much less shocked – to remember that this year marks the twenty-year anniversary of the Utah Court of Appeals.

BYU Alumni Women’s Law Forum Survey on Maternity/Paternity Leave and Flexible Schedule Policies for Lawyers

EDITOR’S NOTE: The editorial staff of the Utah Bar Journal believes that an important part of its mission is to share with our readers information, such as these survey results, which helps to describe the experience of practicing law in our community. We applaud the efforts of the BYU Alumni Women’s Law Forum, which is of course solely responsible for the contents of this report.

The BYU Alumni Women’s Law Forum surveyed several organizations in Salt Lake City regarding their maternity and paternity leave and flexible schedule policies and would like especially to thank those that responded to this survey for their time, effort and willingness to participate. The following spreadsheet is a summary of their survey responses. The data in this spreadsheet was provided directly by the organizations/firms themselves and is provided for informational purposes only. It should not be relied upon in making employment or other decisions or for research or other purposes. The data was current when it was collected. For the most recent information individuals should directly contact the organizations/firms.

Utah’s Parental Involvement Law: Minors’ Access to Abortion
by Margaret D. Plane

During the 2006 General Legislative session, Utah amended its laws requiring prior parental notification for minors seeking abortions.1 Utah lawmakers passed House Bill 85 S1, “Abortion by a Minor – Parental Notification and Consent,” which requires, except in limited circumstances, that minors both notify and receive consent from a parent or guardian before obtaining an abortion. See H.B. 85, 56th Leg., 2006 Gen. Sess. (Utah 2006). The amended Utah Parental Consent Act (the Act), Utah Code Ann. § 76-7-304.5, took effect on May 1, 2006.

Laying the Foundation
by Learned Ham

I don’t like litigation. That’s probably why I haven’t done any for about 20 years. A good 20 years. A great 20 years. Well, that’s one of the reasons, anyway. Another reason would be the senior partner who was eventually assigned to watch me in action. I guess they wondered how someone could be so convincing in an interview and so, well, less than convincing in court. Most of my oral arguments started out with a variation on one of the following themes: “This is probably a long shot, Your Honor, but…” Or, “It isn’t every case that presents this Court with an opportunity to establish its reputation as a maverick in the District, but…” Or, “Fine. I remember very well what you said last time, and you can rule against me again if you want, Your Honor, but…” Or, the proven winner: “Your Honor, you and I may simply have to agree to disagree, but…” I thought the court would be impressed with my candor and I was certain the firm’s lobby would be jammed with clients eager for my unique brand of passive aggressive advocacy. I do remember clients in the lobby. And they were there to discuss my litigation style. And there was a certain eagerness about them. I was probably just ahead of my time.

How to Advise Employers on Immigration Issues
by Roger Tsai

Immigration related liabilities are an increasing concern for employers. In 2006, the number of employers and employees arrested in immigration raids quadrupled, and immigration enforcement will continue to increase in 2007. While hiring undocumented workers has been illegal for twenty years, federal agencies have in the past year shifted from imposing minimal fines to serious criminal penalties against employers that knowingly hire undocumented workers.

Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?
by Karin S. Hobbs

Editor’s note: On May 2, 2007, the Utah Supreme Court will hear argument on an interlocutory appeal involving a trial court’s order requiring an attorney to testify regarding mediation discussions.

After hours of mediation, the parties have reached a “deal” on the principal issues. The parties want closure. Attorneys begin preparing the written agreement to ensure the deal is clear, complete, final and enforceable. Mediation discussions continue. Emotions run high as the parties work through the final issues. If the “deal” is not written and signed, is there an agreement? Are the discussions confidential? How do attorneys ensure confidentiality of mediation? How do attorneys create an enforceable settlement agreement and avoid court action?

The Strength is in the Research
by Duane L. Ostler

America in the mid 1780s was in turmoil. The sacrifice of the sons of liberty had won the revolutionary war, but not the peace. The economy was tattered and practically nonfunctional because of the ongoing British embargo. The various states were constantly quarreling about who should pay war debts. There was much resentment among the common people who had borne the suffering of the war against those who had profited by it. And in the midst of it all, the Continental Congress was powerless to do anything about the deteriorating situation.

Update: The Utah State Law Library
by Jessica Van Buren

A Bit of History
The Utah State Law Library has existed in some form since the Territory of Utah was established in 1850. In fact, Congress appropriated $5000 for the library in the same enabling act that created the territory.1 The territorial librarian earned a salary of $400 per year, with an additional $150 for contingent expenses.2 We still have a few books that bear the Territorial Library property stamp.

Veni, Vidi, Vici: The Brave New World of E-Discovery

by Blake Miller and Mary Mark

Although attorneys have become converts to the use of technology in their practices, many still eschew electronic discovery in favor of paper. With more than 98 percent of information created and stored electronically it is difficult to justify the continued use of traditional paper production. The recent amendments to the Federal Rules of Civil Procedure, effective December 1, 2006, now make it impossible to avoid e-discovery issues. It is crucial attorneys understand electronic discovery, not only to satisfy their professional obligations but also to avoid severe judicial sanctions.

Net Operating Losses: Preserving What You Never Wanted in the First Place

by Scott R. Carpenter

One of the ironies of the modern business world is the fact that a company’s biggest asset may not be its client list or its intellectual property, but its tax losses. Those losses can be carried forward for up to twenty years and can be offset against the company’s future taxable income and tax liabilities, significantly improving its future cash position. For a company with a $100 million net operating loss, that right of offset could translate into potential future tax savings of $40 million, assuming a 40% combined federal and state tax rate.

When Lawyers Become Pre-law Advisors

by Eileen Crane

Many practicing attorneys and judges never talked to a pre-law advisor when they were preparing to apply to law school. Often they did not consider themselves pre-law students while they were undergraduate students. Others did not think they needed to speak to someone about the application process, so they collected test materials from various sources and applications directly from the law school. They believed that they successfully completed the process, gauged by the fact that they were accepted and attended law school. Some attorneys have never heard of a pre-law advisor and wonder what use such a person might be.

The Rapid Evolution of Climate Change Law

by Gary Bryner

The scientific debate over the causes and consequences of global warming likely will continue for years to come, as scientists continue to explore a host of questions about how climate change affects different regions of the world, how current trends compare with historical patterns, and whether the steady increase in carbon dioxide emissions will translate into gradual warming or could, with the help of feedback mechanisms, produce cataclysmic changes. In contrast, the debate over whether to take some kind of action to begin reducing the threat of disruptive climate change is rapidly shifting from whether there will be a national climate change regulatory policy and associated energy policies to when those policies will be put in place and what form they will take. While there is still much uncertainty in climate change law and policy, the trajectory is clearly toward regulating greenhouse gas (“GHG”) emissions.

The Justice Gap: The Unmet Legal Needs of Low-Income Utahns

by Utah Legal Services and “and Justice for all” under the guidance of D. Michael Dale

“Equal justice is not just a caption on the façade of the Supreme Court building. It is perhaps the most inspiring ideal of our society....It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”

– Justice Lewis Powell, Jr., Former Associate Justice,
US Supreme Court

Practicing to Practice: Scholastic Debate as Law-Related Education

by Chad R. Derum

Before he argued the petitioner’s side in the Guantanamo detention case Hamdan v. Rumsfeld before the United States Supreme Court last year, Georgetown Law Center professor Neal Katyal first tested his arguments in more than a dozen moot court sessions.1 It should come as no surprise that, for his first moot court session, Katyal invited the highly-regarded Harvard Law School professor Lawrence Tribe to bombard him with questions. Along with Tribe, however, Katyal also invited Ken Strange, the coach of Katyal’s college debate team. Although Strange is not a lawyer, this second invitation should be no more surprising than the first. Katyal had been a champion debater at Dartmouth College in the early 1990’s and Strange had been Katyal’s greatest teacher in the art of argument and persuasion – the very skills Katyal would need to make an effective argument before the Court. It is also unlikely that Strange’s invitation surprised Tribe, who had himself been a national champion debater at Harvard in the 1960s before beginning his own legal career.

Blind Guides: The Difficult Task of Comprehending the Law

by D. David Lambert

One point emphasized during the first year of law school is that the law is difficult to comprehend. Although it was first published three quarters of a century ago, today’s reading lists for entering students almost invariably continue to include Karl Llewellyn’s book, The Bramble Bush, to help drive home that point. The poem facing the title page contains the essence of the book’s message. For many first-year students the only thing in the book that they are able to comprehend is the poem:

There was a man in our town
and he was wondrous wise:
He jumped into a bramble bush
and scratched out both his eyes –
and when he saw that he was blind,
with all his might and main
he jumped into another one
and scratched them in again.

Going Dark – An Alternative to Sarbanes-Oxley Compliance

by Brad Jacobsen and Chris Scharman

A client of ours recently learned first hand the significant costs that implementation of the Sarbanes-Oxley Act of 2002 (“SOX”) can have on a small business issuer. In connection with the review of the company’s quarterly report, its chief financial officer unfortunately made an off-hand remark regarding the company’s internal controls and procedures. As a result of such comment, the company’s auditors demanded that the audit committee hire independent counsel and conduct a full review of the company’s financial statements – with a materiality threshold (items requiring documented back-up to be provided to the auditors) of only $2,000. Over the next six weeks, the company incurred in excess of $300,000 in legal and auditing fees (not to mention lost opportunity costs and lost management time), filed its 10-QSB late and was threatened with potential delisting by Nasdaq. The resulting review by the auditors and the audit committee’s independent counsel found no improper or illegal acts by the company and only required that the company make adjustments to its accruals of a net aggregate amount of less than $1,000. The significant cost incurred by the company for this review nullified its entire third quarter profit.

Keep Dreaming

by Learned Ham

The scariest part of the Bar Journal is usually the Discipline Corner. There but for the grace of the Office of Professional Conduct go I. But this issue is different. There’s a letter to the editor asking the best way to wake a dozing judge. It’s one of the most frightening things I’ve ever seen in print (next to last year’s State of the Union Address and that picture in my high school yearbook). The terrifying thing about it is the idea that someone would seriously consider waking a sleeping judge. Letting a 17-year-old pack (or draft) my parachute – yes; climbing behind the wheel of a ’72 Vega and dropping in a Barry Manilow eight-track – in a heartbeat; but “Ahem, rise and shine, your honor…” Sleeping dogs, sleeping giants, sleeping babies, sleeping sickness, Sleeping Beauty, sleeping judges – all the same thing. Don’t go looking for trouble.

Attorney Fee Discrimination for Solo Practitioners?

by Michael A. Jensen

This article stems from a recent case where the trial court excluded billing rates from large law firms and instead relied exclusively on two solo practitioner rates simply because “large law firms, and especially national law firms, have large overhead/ expenses.” Such logic, if left to stand, would allow large law firms to charge higher hourly rates than solo practitioners for the same legal services. In effect, trial courts could impose discriminatory billing rates against solo practitioners.

Going to Court in Babylon

by Major Darrin K. Johns

When I passed the bar exam in July 2003 and became a member of the Utah Bar, I never imagined that I would be presenting criminal cases in an Iraqi court. Although I was already an Air Force officer with over eight years of military experience, I thought at most I might have to deploy to Iraq to work in a deployed legal office taking care of the needs of our deployed troops. I was wrong. Last October I got the call. I was told I was needed in Iraq to present cases in front of Iraqi judges against suspected terrorists and insurgents. I was told to be there only two days after I was notified!

A Precious Birthright or Federal Porridge: Which Should Utah Lawyers Choose?

by Paul Wake

In recent months, several attorneys have written interesting Utah Bar Journal articles exploring constitutional interpretation. Unfortunately, these articles have tended to assume that “the Constitution” means “the U.S. Constitution.” For years, the Utah Supreme Court has encouraged attorneys to remember the Utah Constitution. In State v. Earl, 716 P.2d 802 (Utah 1986), the Court suggested that Utah constitutional law is a precious birthright that we have sold for a bowl of federal porridge. In November of 1989, Justice Durham – now Chief Justice – took to the pages of this journal with an article entitled Employing the Utah Constitution in Utah Courts, and urged attorneys to help the Court develop a jurisprudence of state constitutional law. Yet in the past decade Utah’s appellate courts rejected dozens of different attempts to advance constitutional arguments in appellate briefs, because the analyses were too slipshod to be considered seriously. The same problem plays out in trial courts.

Electronic Filing in Federal Court: Where are We Now?1

by H. Craig Hall, Jr.

“Attorneys in this district are charged with learning and becoming proficient with the court’s new system.” 2 – Judge Dale Kimball

Just less than ten years ago, an article appeared in the Utah Bar Journal entitled: “Is Electronic Court Filing in Your Future?”3

My, how far we’ve come.

In this relatively short time span, electronic filing has gone from a remote possibility, to “mandatory” (beginning May 1, 2006) for all attorneys practicing in the United States District Court for the District of Utah.4

The Paperless Deposition

by Bradley Parker, Jim McConkie, Bradley Sidle and Lynn Packer

Historically, depositions have been a bonanza for billable hours, airlines and certified court reporters. An out-of-state deposition often meant hours of travel to gather witnesses, attorneys and sometimes even parties in a single room to scour piles of documents, often at a distant locale. During the past few years, technology has begun to change this time-honored tradition.

Judge Disqualification Rules in Action

by Judge Robert K. Hilder

In the Third District, the associate presiding judge acts as reviewing judge for most Rule 63(b), Utah Rules of Civil Procedure, and Rule 29, Utah Rules of Criminal Procedure, motions to disqualify the assigned judge.1 After more than one year of direct exposure to the rules in action, I am persuaded that ignorance of the rules’ substance and procedural requirements is the norm, both for judges and lawyers. The Third District has thirty-two and one-half judicial officers (we presently share one of our five commissioners with the Third District Juvenile Court). I have now reviewed more than thirty motions to disqualify (all but two in civil cases), involving nineteen of those officers.

Promoting the Standards of Professionalism and Civility
by Chief Justice Christine M. Durham

On October 1, 2001, the Utah Supreme Court voted to create an advisory committee on professionalism in the practice of law and appointed Justice Matthew Durrant to chair the committee. The committee held its first meeting on January 15, 2002. At that meeting, Justice Durrant spoke of the Court's increasing concern about the erosion of civility and professionalism in the practice of law, and that it wanted the committee to examine the nature and extent of the problems with civility and professionalism in Utah and to make recommendations as to how problems might be addressed.

Honest Lawyers Make Good Lawyers
Thoughts on Ethics and Civility in the Legal Profession
by Justice Richard D. Fybel

EDITOR'S NOTE: This article is based on a speech given by Justice Fybel at the Utah State Bar's Annual Meeting in Newport Beach, California this past July.

I am pleased to offer my thoughts on the subject of civility and ethics in the practice of law. I've been a member of our profession for over 35 years, the first 29 as a lawyer practicing civil business litigation and the last six years as a trial and appellate judge.

Enforcing the Standards of Professionalism and Civility
by Donald J. Winder and Dennis Flynn

A good advocate avidly pleads his or her client's case in order to achieve favorable results. At the heart of effective advocacy are good communication skills essential for conveying expectations and intentions to the court, to other attorneys, and to clients. When correspondence, phone calls and other encounters are mottled with impolite or abusive content, the message being conveyed is often obscured or even lost. At times lawyers become a reflection of an emotional client rather than an objective advocate on behalf of that client. When a lack of civility begins to permeate the lawyer's discourse, it can impede his or her success and ability to represent clients well.

Civility and Chivalry
by William C. Duncan

I suspect that any author of an article on matters related to civility and professionalism has a significant hesitation since none of us is a perfect example of those values, and many more qualified and highly-respected people have written on the subject. The only excuse then, that I can offer for this particular article is that I believe it uses an historical analogy to present another approach to the concept of civility that may be illuminating in a novel way.

Need Help on Professionalism Training in Your Office? Call Us.
by Alan Sullivan

Would you like to provide training to lawyers in your office or agency on the Utah Standards of Professionalism and Civility? Do you need a set of tried and true presentation materials to assist you? Then call us.

Civility in the Practice of Law: A Young Lawyer's Perspective
by Christopher M. Von Maack

This article seeks to briefly examine the challenge of civility in the practice of law from one young lawyer's perspective - mine. From the outset, I believe that civility assists lawyers to resolve disputes more rationally, peacefully, and efficiently. Thus, lawyers should strive to maintain civility in their dealings with others, i.e., clients, counsel, judges, juries, and the public.

A Professionalism Quiz: How Does Your Conduct Measure Up?
by Wayne Klein

Introduction
As sworn defenders of the Constitution and officers of the court, attorneys always have been under legal and moral obligations to demonstrate high standards of conduct. Accordingly, attorneys must meet ethical standards higher than that required for most professionals. However, concern over the misconduct of some attorneys and a dissatisfaction with the public's perception of the reputation of attorneys now are leading to adoption of "professionalism standards" by the Utah Supreme Court and many bar associations.1

by Gus Chin

Over the years, as well as fairly recently, some have expressed concern about the relevancy of the Utah State Bar. I hope that our members realize that in addition to the essential regulatory functions of admissions and discipline, the Bar provides services intended to assist each of us professionally and otherwise. These services include, but are not limited to, CLE, information access via a well designed and managed web site, lawyer assistance programs, and a variety of volunteer opportunities.

As president of the Bar, I am mindful of the legacy of my predecessors and fellow commissioners. Their energy, effort, and commitment coupled with the assistance of a dedicated Bar staff headed by an exceptional executive director have made a difference and continue to make the Bar most relevant. I am convinced of the importance of the Bar as a stable, structured organization whose purpose includes "service to the public and legal profession by promoting justice, professional excellence, civility, ethics, respect for and understanding of the law."

Best wishes to the Utah State Bar on the occasion of its 75th birthday. Article VIII, Sec. 4 of the state constitution gives the Utah Supreme Court responsibility for governing the practice of law, including admission to practice and the discipline of admitted lawyers. For better or worse, the Court and the Bar are permanently entwined.

Some months back, I received a copy of a publication titled The Utah Bar Bulletin, Official Organ, The Utah State Bar, Vol. 1, October, 1931. This publication appears to be the great-grandfather of our current Bar Journal. As I read the familiar "Message from the President," it was clear that the public image of the legal profession in 1931 was no less ambiguous than it is today. President Dean F. Brayton wrote:

Because it is one of the most essential cogs in the present complicated social, economic and political machine, the profession of the law has come in for more than its share of criticism from the public. This criticism has been directed both at us as individuals and as a class; - at us as individuals because of asserted sharp practices by many of us and at the profession generally because of its alleged failure, and that of our whole judicial structure, properly to function in the development of our civilization.

The writer is one of those who feel that the present Organized State Bar can and will do much to eliminate this criticism and to re-establish the profession, the whole judicial structure, in the public mind, where it rightfully belongs, - as the chief protector, in our form of government, of the public welfare. How will this be done?

First, by the careful scrutiny and examination of applicants for admission to the practice of law;

Second, by enforcing strictly disciplinary rules of conduct among its members; and

Third, by such contact with boards and commissions and with agencies offering service of a legal character as will acquaint them with the ability of the profession and the judicial department within their fields to render, to the public, the best possible service.

The old adage "the more things change, the more they remain the same," comes to mind. Then, as now, the mission of the Utah State Bar is to serve the public and the profession by promoting justice, professional excellence and respect for the law. Professionalism in the practice of law is the essential component in such service. Former Justice Sandra Day O'Connor defines professionalism as follows:

To me, the essence of professionalism is a commitment to develop one's skills to the fullest and to apply that responsibly to the problems at hand. Professionalism requires adherence to the highest ethical standards of conduct and a willingness to subordinate narrow self-interest in pursuit of the more fundamental goal of public service. Because of the tremendous power they wield in our system, lawyers must never forget that their duty to serve their clients fairly and skillfully takes priority over the personal accumulation of wealth. At the same time, lawyers must temper bold advocacy for their clients with a sense of responsibility to the larger legal system which strives, however imperfectly, to provide justice for all.

In this 75th anniversary year, I wish to pay tribute to and sincerely thank those members of the Utah Bar who have served in the past or are serving now on a Supreme Court committee. These lawyers render countless hours of invaluable service to the Court, the profession, and the public with all too little praise or reward. At the current time, there are 72 lawyers serving on six Supreme Court Advisory Rules Committees. There are 20 lawyers painstakingly drafting model civil and criminal jury instructions. There are 28 lawyers serving on the Ethics and Discipline Committee of the Utah Supreme Court. There are 16 lawyers serving on the Supreme Court's Advisory Committee on Professionalism. And, there are 129 lawyers presently serving as pro tempore judges. In so many ways, the judiciary cannot function without you. On behalf of the Utah Supreme Court and the Judicial Council, please accept my sincere gratitude for your efforts and my best wishes for the continued success of the partnership between the bench and bar in promoting justice.

The Honorable Christine M. Durham

by The Honorable Christine M. Durham

Introduction
Utah's judicial branch of government has an unusually effective governance system. With representatives from all court levels and from the Utah State Bar, the Utah Judicial Council is in a position to evaluate all parts of our court system with a perspective on local needs but independent of parochial interests.

The Utah Judicial Council has a role that in many states is performed solely by the Supreme Court or the Chief Justice. Although the Supreme Court justices of those states work diligently to represent to the other branches of government and to the public the needs of their court systems, their own current experiences are necessarily limited to the needs of the Supreme Court. Certainly some individuals have some experience in other courts, but just as certainly, not the level, nor the breadth, nor the immediacy of the experience available to the Judicial Council in Utah's system.

by John Baldwin

My father was a lawyer for as long as I can remember before he sat on the District Court Bench. I grew up wondering where you took a deposition to, why we got calls from the jail in the middle of the night and thinking that his going to a Bar meeting was just another way of saying he was at the University Club. In sixth grade I did a report on careers. Even then I had heard that people thought there were too many lawyers. My father told me there would always be room for good lawyers. So I went to law school to become a good lawyer.

by Gretchen C. Lee

A few legal pads and files are scattered on his desk. A calendar is sitting on the corner of his desk. The walls are lined with legal books. No computer is in sight. He sits comfortably behind his desk as he has for many years. In fact, seventy-three years later he is still practicing law. Admitted to the Utah Bar in 1933, Richard L. Bird, Jr. is the most senior practicing attorney in Utah. Nearly a centenarian, he will turn one hundred in April 2007, Mr. Bird can still be found most days at his office at 333 East 400 South at the firm of Richards, Bird and Kump.

Born and raised in Salt Lake City, Mr. Bird graduated from the University of Utah and then attended Harvard Law School. After graduating from Harvard in 1933 he returned to Utah for several years before accepting a position in the Anti-Trust Division of the Department of Justice in Washington DC. After four years in Washington he decided it was time to come home and "be a part of the Utah community." Upon his return he clerked at the Utah Supreme Court, worked at both the Tax Commission and legislature, before finally turning to private practice.

Probate and domestic relations have been the heart of his practice. Lynn S. Richards, the senior partner of the firm passed away in 2001 at the age of 100. These days the firm consists of his son, David J. Bird, and Rod Kump. Mr. Kump has been practicing with Mr. Bird for over fifty years and still feels extremely fortunate to have joined such a solid firm and could not imagine having found a better man to work with stating, "He is a fine, honest, gentleman and a good lawyer."

As the years have passed, Mr. Bird admits that it is difficult to keep up with both the technological and legal changes but recognizes that he has a wonderful support staff which includes his secretary who has worked with him for over forty years. Despite his age creeping up on him he works about as hard today as he did years ago. He has, however, slowed down a bit on the golf course. An ever-present figure on the links at the Utah Bar conventions, he only made it out once last year and has yet to pick up the clubs this year.

Back at the office, however, he has no plans to close up shop. When recently asked whether he has thought about retiring he stated that although he has thought about retiring he has never taken it seriously. If only we could all feel that way about our careers.

by Katherine Fox

My name is Katherine Fox and I am the Bar's general counsel. I moved from Ann Arbor, Michigan (GO BLUE!), to Utah shortly before we had the "big flood" of 1983 and there was a river running down the middle of State Street, complete with splashing trout. I was delighted to see that Utah had so much water because I had been told it was a desert! It's fairly easy to write about the evolution of my position during the Bar's 75-year history because I was the first one to fill it. Prior to my arrival in 1996, the Bar did not have a separate office of general counsel. In the past, most of my job duties were divided and performed by others such as the executive director and the senior counsel in the Office of Professional Conduct. Other tasks either were handled by outside counsel, tackled by volunteer lawyers, or simply remained undone.

by Kate A. Toomey

Does this sound familiar?

During the year, as usual, disciplinary matters have been referred to the Commission. Most of them have been the result of the client's being disappointed with the result of the litigation, or the amount of fees charged by the attorney.

It's an excerpt from an address given in 1945 by the president of the Utah State Bar.1 A perusal of the Bar's early publications is a lesson not only on the enduring nature of the challenges of policing our own, but also the commitment of the Bar itself, through its leadership and its members, to serving the public and the system of justice with the highest degree of ethics and professionalism. The procedural mechanisms for meeting that commitment have evolved, but the themes endure.

by Cheryl Miyuki Mori

The Utah Minority Bar Association ("UMBA") congratulates the Utah State Bar on its 75th Anniversary and its enormous achievements during its 75 years. In reflecting on the history of the Utah State Bar, UMBA has had the opportunity to think about its own history. As UMBA was not officially organized until 1991, it has a very short history compared to the Utah State Bar. UMBA has made enormous strides in those years, however, and the Utah State Bar has been a large part of those efforts. The progress of UMBA is clearly evident this year as UMBA has just been recognized with two prestigious honors, one from the Utah State Bar itself and one from the American Bar Association.

by Jan Graham

EDITOR'S NOTE: The following recollection was presented on August 31, 2001 to commemorate the 20th Anniversary of Women Lawyers of Utah. The current leadership of WLU asked for permission to submit this Recollection for this special issue of the Utah Bar Journal).

I'm delighted to share this recollection on the occasion of the 20th Anniversary of Women Lawyers of Utah. It continues to amaze and warm me to see the growing importance and numbers of WLU, and the excellent diverse paths taken each year with different leadership. Given how things started, itÕs a miracle! So, take a moment and walk back in time with me to the beginning.

by Scott Sabey and Tim Shea

Shea: The small claims court is almost as old as the Utah State Bar, so this may be a good time to take a look at an area of the law in which lawyers seldom practice. Not because they are prohibited from doing so, although some states take that approach, but because it's not economically feasible to practice. In 1933 the Utah Legislature created the SMALL CLAIMS COURT.1 Of course the name had to be in all CAPS in the legislation. All caps lettering is at least more officious, if not more official. Enacted March 9, 1933, and effective 60 days later, the jurisdictional ceiling at the depth of the Great Depression was $50; the filing fee was $1. Although both the filing fee and the jurisdictional limit have grown since then, lawyers still contribute most, not as advocates, but from the other side of the bench, as volunteer pro tempore judges.

by Randall L. Romrell

Note from the author: As one of the founders of the Bar Journal and as one who has been actively involved on its editorial board (as principal articles editor, associate editor, or as art/design editor) for 26 of its 33 years I am in a unique position to author this article. My objective is to celebrate the rich history and legacy of the Journal and to underscore its continuing value to the Utah Bar. I express appreciation to Christine Critchley, Bar staff liaison to the Journal, and to Ron Fuller, librarian at the S J Quinney Law Library, for their contributions in collecting historical information for this article.

At the Utah State Bar's 75th Anniversary dinner on September 21, 2006, the Bar Commission honored six esteemed attorneys with lifetime achievement awards. These awards were given in grateful recognition of a distinguished career in the law and for many years of leadership, loyalty, contributions and devotion to the programs, services and activities of the Utah State Bar.

by John A. Adams

For the past quarter-century, the Young Lawyers of the Utah State Bar have always been at the forefront of innovative, service-oriented programs and have been a fertile training ground for future leaders of the Bar. Because of their unabashed enthusiasm and willingness to pitch in, the Young Lawyers have brought a "Midas touch" to almost every endeavor they have undertaken. Both past and present Young Lawyers speak with fondness of what they have helped accomplish and the friends and acquaintances they have made in being part of the effort.1

The exact year the Young Lawyers Section of the Utah State Bar was formed is uncertain. Colin King served as president in 1983-84, but he remembers that he was not the first president of the Section. He is reasonably sure that one or two others preceded him. If he is right, then the Young Lawyers may well be celebrating their 25th anniversary this year. In the years Colin, Cecelia Espenoza and John Adams served as president, the Section leadership consisted mainly of the Section officers serving as part of a small executive committee. Paul Durham and those who followed him (Stuart Hinckley and Jerry Fenn) were primarily responsible for creating a larger executive committee and fully functioning committees.

Mr. Gray Goes to Washington

by Brett J. DelPorto and Jeffrey S. Gray

MR. GRAY: ...[T]he defendants in this case were the adults inside the home.

JUSTICE STEVENS: Oh, they charge that the adults were intoxicated.

MR. GRAY: Yes.

JUSTICE STEVENS: Well, thatÕs a serious crime in Utah I guess. (Laughter.)

MR. GRAY: We anticipated that comment actually. (Laughter.)

JUSTICE STEVENS: And what's your response?

When Jeff Gray first announced he was appealing Brigham City v. Stuart to the United States Supreme Court, the response from colleagues in the Criminal Appeals Division of the Utah Attorney General's Office was immediate. Congratulations. The obligatory "high five." Some even named Jeff as a personal hero.1

Why Lawyers Matter

by R. Clayton Huntsman

A few weeks ago I had the honor of attending my daughter Sonia's graduation services at Willamette Law School in Salem, Oregon. The dean, and then Willamette's president, spoke to us, with a refreshing absence of cliche or braggadocio, focusing on honoring the new law school graduates and praising the profession of law. As each spoke, I couldn't help but silently assess my own legal career, soon to begin its fourth decade. As I reflected I renewed my own gratitude for the opportunity of practicing law, and reaffirmed an appreciation of our legal system and for those who labor hard in so many ways to improve and maintain it. I was pleased that another generation of accomplished and motivated lawyers was joining us, with all of their hopes for, and good faith toward, their futures.

Tax Matters: Statutes of Limitation

by Paul K. Savage

Some taxpayers still haven't recovered from their disappointment that the computers at the IRS didn't explode when the calendar rolled over to 2000, but we should all be thankful they did not. Government snafus seldom result in good news for citizens, despite the hopes and prayers of many that somehow the IRS wouldn't be able to collect taxes in the new millennium. Instead, each year taxpayers still have to count all the chickens that finally hatched in order to calculate how much Uncle Sam can lay claim to. We start our calculations by determining our gross income. Congress has defined gross income in broad terms as "all income from whatever source derived" and then provided a non-exclusive laundry list of examples, such as compensation for services, business income, interest, rents, royalties, dividends, alimony, etc. (See Section 61 of the Internal Revenue Code, hereafter "IRC"). It seems pretty simple on its face, until one realizes that hundreds of additional sections of code also come into play, not to mention the thousands of pages of regulations and rulings and innumerable interpretive court decisions.

Bankruptcy Alternatives in the Face of Recent Bankruptcy Abuse Prevention and Consumer Protection Act

by J. Robert Nelson

I. Introduction
More than a year has passed since enactment of the well publicized Bankruptcy Abuse Prevention and Consumer Protection Act (the "Amendments") and six months since key provisions actually took effect. The Amendments appeared to make personal bankruptcies more complicated and less accessible. As to business bankruptcies, the Amendments seemed to reduce the leverage of debtors in chapter 11 reorganizations. The last six months would suggest that, as to personal bankruptcies, the Amendments have had the anticipated effect. Compared with the pre-Amendments period, personal bankruptcies are down dramatically.1 As to business reorganizations, it is still too early to assess whether the Amendments will, as has been speculated, materially change some dynamics.

Utah Enacts the Uniform Environmental Covenants Act ("UECA")

by Steven J. Christiansen

Earlier this year, Utah State Senator Lyle W. Hillyard introduced Senate Bill No. 153 entitled, "Uniform Environmental Covenants Act" ("UECA"Ó). S.B. 153 was enacted during the 2006 General Session of the Utah Legislature and should be of interest to anyone involved with real property or environmental issues in the State of Utah.

Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station

by Walter F. Bugden, Jr. & Tara L. Isaacson

It is time for the Utah Supreme Court to exercise its supervisory power to require videotaping of custodial interrogations of juvenile and adult crime suspects. This requirement should be imposed when the questioning occurs at a place of detention where videotaping equipment is available. If video recording is unavailable, an audio recording should be required. The videotaping requirement should only be excused when impracticable, and the failure to do so, excusable. Requiring electronic recording when the questioning occurs at a place of detention will provide courts the means to develop a complete, accurate, and objective record on the voluntariness of a confession. With the simple flip of a switch, the courts can be provided with a record of everything that transpires during a custodial interrogation. Recording is a reasonable safeguard which will ensure the protection of an accused's right to counsel, right against self-incrimination, and his or her right to a fair trial. Recording will also protect law enforcement from false claims of coercion and improper conduct.

Violence Against the Utah Legal Profession - a Statewide Survey
by Stephen D. Kelson

I. Introduction
When a sensational act of violence against the legal profession occurs somewhere in the United States, we see repeated updates on television, websites, and in newspapers and magazines for the next week or two. Legal commentators quickly appear and voice their opinions that the latest incident is just another example of increasing violence against the legal profession. However, after a week or two, the event is generally forgotten as media attention is turned to the next new big story. Such was the situation in early 2005 with the media coverage of the slaying of U.S. Judge Joan Lefkow's husband and mother in Chicago, Illinois, on February 28, 2005, and the courtroom slayings of Judge Rowland Barnes, a court reporter and deputy in Atlanta, Georgia, on March 11, 2005. Such acts of violence are soon forgotten and the legal profession continues with its daily activities. Many members of the Utah legal profession assume that similar acts of violence are too remote to occur in Utah or wonÕt happen to them. Think again.

Separating Powers: the Judiciary's Constitutional Claim on Procedural and Evidentiary Matters
by R. Chet Loftis

Article VIII, Section 4, of the Utah Constitution was amended in 1984 to explicitly state:

The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process. The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature...

Separation of Powers
by Judge Carolyn B. McHugh

EDITOR'S NOTE: The following text is taken from the Law Day Speech given by Judge McHugh on May 1, 2006.

When I was invited to speak to you about Separation of Powers, I enthusiastically accepted because of my conviction that this doctrine is the cornerstone of the United States' Constitution. Indeed, I believe that the understanding of and respect for the doctrine of separation of powers is what has made our system of government successful for the past 200 years and what will see it through the next centuries.

Constitutional Adjudication1
by Benjamin Toronto Davis

Introduction
In the past several issues of the Utah Bar Journal four articles were published dealing with judicial interpretation of our American Constitution. These articles constitute a representative sampling from some of the "in vogue" approaches to constitutional adjudication. The approaches variously claim to originate, or apparently do originate, from what would normally be considered both liberal and conservative perspectives. One of them represents perhaps the currently predominant "originalist" approach to Constitutional adjudication. However, assuming that what we want in America is a limited and democratic constitutional republic - a representative government with ultimate sovereignty residing in the people themselves, and a government limited both by the people's specific delegation of power to that government and by an acknowledgment of each individual's Creator granted, unalienable, and equal rights; in short, an American constitutionalism grounded upon the principles of the Declaration of Independence - none of these approaches to constitutional adjudication fits the bill. None of these or other similar approaches is up to the task of securing our liberty under the rule of law. In fact, they contribute to ensuring that what Abraham Lincoln described as "government of the people, by the people, [and] for the people" will indeed "perish" in America.

Fee Arbitration
by G. Steven Sullivan

One of the big challenges of private practice is an unhappy client. One of the more emotional issues is a controversy over the lawyer's fee.

A fee dispute generates a unique set of issues for both the lawyer and the client. For the average legal consumer, the attorney fee is one of the most important factors in the legal relationship.

"Max 25" is Retiring - the End of an Era in Utah Law Enforcement
by Judge Donald J. Eyre

This year will mark a changing of the guard in Utah law enforcement history. Sergeant Paul V. Mangelson has retired after nearly 39 years of service to the Utah Highway Patrol and the citizens of the State of Utah. There are varied opinions about his performance as a law enforcement officer. But most people would have to agree that he has made a great impact upon the criminal justice system of the State of Utah and the development of criminal case law. I have had the privilege of associating with Sergeant Mangelson for the past 29 years: the first two years were as a criminal defense attorney, the next 16 years were as the Juab County Attorney, and the past eleven years were as a District Judge.

"A Relatively Simple Matter"1 - Navigating the Utah Discovery Rule
by Christopher M. Von Maack

Simply put, operation of the so-called "discovery rule" tolls a limitations period (e.g., statute of limitations, statute of repose, or lookback period) until a plaintiff discovers or reasonably should have discovered the facts forming the basis for his or her cause of action. The discovery rule serves to balance the competing interests of predictability, on one hand, with penalizing wrongdoing, on the other.2 However, before the discovery rule can operate, the plaintiff must trigger application of the discovery rule to his or her cause of action. This article aims to guide the plaintiff's cause of action through the potential pitfalls of the Utah discovery rule.

Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah
by Lance Starr

Utah law recognizes three levels of encounter between police and a civilian. For the purposes of this essay, only the first two levels are of interest. A level one encounter occurs when a citizen voluntarily elects to respond to non-coercive questioning by a law enforcement officer. The law assumes that since the encounter is consensual, the person is free to leave or terminate the encounter at anytime and therefore no Fourth Amendment seizure occurs. State v. Hansen, 63 P.3d 650, 661 (Utah 2002). A level two encounter involves an investigative detention that is brief and non-intrusive. It is a Fourth Amendment seizure but probable cause is not required. Rather, the officer need only have "specific and articulable facts and rational inferences which give rise to a reasonable suspicion a person has or is committing a crime, in order to initiate an investigative detention without consent.'" Id.

Preserving State Constitutional Issues in the Trial Court
by Ralph Dellapiana

This article is about when, why and how attorneys may and should be using Article I, Section 14 of the Utah Constitution, instead of the Fourth Amendment, as a basis for motions to suppress evidence. Although this article is directed at the criminal defense bar, it should be of general interest to all attorneys involved in protecting clients against the abrogation of their state constitutional rights.

When case law supports an argument under the Fourth Amendment, it is frankly much simpler and easier to use it than to attempt to persuade a trial court judge to create a new rule of law. Thus, attorneys should use the Utah Constitution when the Fourth Amendment case law directly opposes their argument, and perhaps also when there is no Fourth Amendment case directly on point.

Special Masters, Receivers, and the Duty to Marshal Evidence
Chen v. Stewart
by Jessica G. Peterson

I. INTRODUCTION
During the summer of 2004, the Utah Supreme Court was invited to revisit special master law, receiver law, and Utah's duty of marshaling the evidence, in a case of family corporate contention of overwhelming proportions. The defendants contended that the trial court's appointment of an individual to act as an interim CEO, vested with the judicial immunity of a special master, was unconstitutional. The court refused to place form over substance, and did not allow choice of words and technical meaning to outweigh what it believed was in substance a just result. The unique facts in Chen v. Stewart probably will not serve as useful precedent for another close corporation's falling out. However, the case has already been cited to explain Utah's strict marshaling standard, and Chen v. Stewart is a valuable primer on Utah special master, receiver, and marshaling law.

Henriod, Dissenting
by Bryan J. Pattison

The Honorable F. Henri Henriod served on the Utah Supreme Court from 1951-1976. In that time he became well known as one of the court's most frequently dissenting justices.1 On this subject, he stated, "There are very few of these controversies that are so one-sided that a plausible opinion cannot be written to show that there is also merit on the other side."2 That's putting it mildly for this jurist. In showing there was merit to the other side he crafted opinions that ranged from scholarly, to humorous, to condescending and accusatory.

Geologic Hazard Disclosure Laws: Why They Make Sense
by Stephen Cranney and Trevor Salter

The population of Utah County is projected to double in just 25 years,1 creating tremendous demand for new housing. Such development is often built close to the mountains. This land is often geologically hazardous. Hazardous land is designated as such by state and federal geologic agencies as having an increased risk of mudslides, floods, earthquakes and other natural disasters. One recent example of the risks associated with hazardous land development is the Cedar East Townhomes subdivision in Cedar Hills, Utah County.

Utah State Bar Unveils the Lawyers Assistance Program (LAP)

by Brent Hale

"One of every four lawyers suffers from stress, and out of 105 occupations, lawyers rank first in depression. In addition, a disproportionate number of lawyers commit suicide."

ABA Journal, June 2005

The Utah State Bar, at the urging of the ABA Commission on Lawyer Assistance Programs, has taken the lead in an extensive effort to reach out to lawyers and judges who are struggling with personal difficulties. A new Lawyers Assistance Program (LAP) is now available to assist lawyers and their immediate family. The new LAP will not be limited to alcohol/drug abuse and offers help for a full spectrum of personal and professional dilemmas. Comfortable in the role of trained helper and problem solver, lawyers too often tend to ignore their own personal and family distress until small problems become major threats to their careers and well-being. These problems can affect their work, leading to professional difficulties and, sometimes, to ethical lapses.

The First 50: "Celebrating Diversity in the Law"

by Professor Robert L. Flores & Karthik Nadesan

On October 15, 2005, the Utah Minority Bar Association hosted a gala celebration honoring the First 50 minority lawyers admitted to the Utah State Bar. Reaching 50 minority lawyers in the state was an important milestone in the Bar's history. Following are two perspectives on reaching that milestone - one from a lawyer who arrived on the legal scene shortly after the final members of the First 50 entered practice in 1980, and one from a lawyer who entered practice not long ago.

Phishing and Pharming and Trojans - Oh My!

by Polly Samuels McLean and Michelle M. Young

"DEAR SIR/MADAM: I REPRESENT THE RECENTLY DEPOSED MINISTER OF AGRICULTURE FOR NODAMBIZIA, WHO HAS EMBEZZLED 30 MILLION DOLLARS FROM HIS STARVING COUNTRYMEN AND NOW NEEDS TO GET IT OUT OF THE COUNTRY. . ."

"Dear Client of US Bank: As the Technical service of bank have been currently updating the software, we kindly ask you to follow the reference given below to confirm your data, otherwise your access to the system may be blocked."

SPYWARE: Living in a Cyber-Fishbowl

by Polly Samuels McLean and Michelle M. Young

One of the most potent and pervasive types of cybercrime is commonly known as spyware. Spyware, a general term used for software that performs certain behaviors such as advertising, collecting and transmitting personal information, or changing a computer's configuration without the owner's knowledge or permission, invades consumers' privacy, inundates users with pop-up windows, slows computers down, and causes computers to crash.

Finding a Solution to the Problem With Finders in Utah

by Brad R. Jacobsen and Olympia Z. Fay

A significant issue facing attorneys and their clients in Utah is the use of unregistered securities brokers by small businesses and start-up companies to raise investment capital. The unregistered securities brokers are commonly referred to as "finders," however, other titles exist to describe these individuals, including, unlicensed broker-dealers, intermediaries, private placement brokers, merchant bankers, investment bankers, financial public relations advisors and business consultants.1 Black's Law Dictionary, Sixth Edition, defines a finder as "an intermediary who contracts to find, introduce and bring together parties to a business opportunity, leaving ultimate negotiations and consummation of business transactions to the principals." For convenience of reference throughout this Article, these unregistered securities brokers will be referred to as "finders." Finders usually charge a transaction fee based on the amount of capital which the finders are responsible for bringing to the company. This type of compensation is commonly referred to as a "finders fee" and is usually paid in either securities or in cash (or a combination of both) as a percentage of the money raised (generally around 5-10%).

A Guide to the Administrative Safeguards of HIPAA's Security Rule

by Michael P. Barry

The Health Insurance Portability and Accountability Act ("HIPAA") was originally signed into law in 1996. To implement HIPAA, the U.S. Department of Health and Human Services ("HHS") published the "Standards for Privacy of Individually Identifiable Health Information" (the "Privacy Rule")and the "ecurity Standards for the Protection of Electronic Protected Health Information"(the "Security Rule"). See 45 C.F.R. Parts 160 and 164, Subparts A, C, and E. Both the Privacy Rule and the Security Rule include important compliance deadlines for entities subject to HIPAA.

Update on End-of-Life Issues in Utah
by Maureen Henry

Utahns have faced two cases in the last six years that have shaken and informed their views of end-of-life issues. The local case against psychiatrist Robert Weitzel led to news coverage that appeared to equate the use of morphine with murder - a problematic message for patients and physicians alike. Weitzel was charged with murdering five elderly patients under his care in a geriatric psychiatric ward in a Davis County hospital. Although he was ultimately acquitted of the charges in the second of two trials, the case raised concerns that it had become impossible for physicians to walk the line between quality pain management and the threat of charges of murder or malpractice.

The Estate Planner / Insurance Salesman and the Fiduciary Duty of Loyalty:

Why no amount of disclosure and consent should overcome the breach of the fiduciary duty of loyalty by the attorney who drafts an estate plan and then receives a sales commission for the financial products sold to fund the plan

by Scott M. McCullough

Introduction
Imagine a client comes to your office needing to plan his estate in anticipation of retirement from the family business and you recommend an irrevocable life insurance trust (ILIT) as the vehicle to transfer wealth and minimize taxes. To fund this plan you recommend he purchase a $2,000,000 life insurance policy, and you refer him to an old friend to purchase the policy. The commission on the sale of a $2,000,000 policy is 3% ($60,000). Now imagine that you repeat this for similar clients four times a year, your friend is making $240,000 from your referrals. Why not take a piece of the action? Why not get licensed (or have you spouse get licensed) to sell the insurance and keep those commissions for yourself?

The Road Ahead for the Practice of Elder Law1
by Jilenne Gunther and Alan K. Ormsby

I. Introduction
Utah's senior population is booming, and consequently, the demand for elder law attorneys is increasing. This demographic change will impact both private practitioners and Utah's non-profit community. Utah's legal community needs a clear vision of the legal problems seniors face to plan for the future.

To prepare for these challenges and opportunities, Jilenne Gunther from the Borchard Foundation on Law and Aging, and Alan Ormsby from Utah's Division of Aging and Adult Services collaborated on a pioneering study of the legal needs of Utah's aging population. This study has received positive national attention from the Administration on Aging, AARP, the American Bar Association, and the Center for Social Gerontology. Many states, including Iowa, Georgia and Florida, are now using Utah's study as a model to conduct similar studies of their own.

Why a Private Conservator?
by Becky Allred

He drove an automobile dangerously - and without insurance. Their checking account held in excess of $100,000 and he adopted the habit of handing blank, signed checks to people to fill in as it was to difficult to write it out himself. He decided he no longer wanted to visit the doctor for medication refills and would cause disturbances at the pharmacy when demanding medications inappropriately. His wife was frightened of his driving and would not ride in the car with him but was equally as frightened to take away the car keys. Together they could not fill out an insurance form so they paid full price for prescriptions. When they did decide to cook, they often forgot that there was food in the oven. She needed help and assistance but he, being frugal, thought it would be too expensive. She became malnourished and dehydrated and had to be hospitalized. They both suffered. Clearly there was a need for a conservator and/or a guardian.

Private Care Management - Professional Assistance for the Care of Elderly and/or Disabled Clients
by Margy Campbell

The Growing Challenge
The over-80 population is steadily increasing and creating a challenge to lawyers - older clients with problems in their decision-making capacity. It seems that more and more frequently lawyers are faced with the issue of mental capacity of their clients.

Rule 1.14, ABA's Model Rules of Professional Conduct, 2002 Revised, concerning the client with diminished capacity, provides some guidance. The rule triggers protective action when an attorney reasonably believes that a client has diminished capacity, there is a potential for harm to the client, or the client cannot act in his or her own interest.

Assisted Living in Utah: A Brief Overview for Consumers
by Mary Jane Ciccarello and Joanne Wetzler

What is Assisted Living?
The term "assisted living" describes a wide range of facilities that provide some type of long-term care to older or disabled persons who can no longer live independently. Assisted Living has become a very popular long-term care option in recent years, and assisted living facilities now provide a greater variety of services than ever before. In the past, assisted living residents generally needed no more than limited assistance with "activities of daily living," (ADLs), such as bathing, grooming, dressing, eating, toileting, and walking. Today, however, assisted living facilities provide or arrange for a significant amount of health care, from medication administration to physical therapy and wound care.

The Bible of Elder Law
by Just Learned Ham

I was puzzled when Sister Emily Latella asked me to write an article for the special Bar Journal elder law issue. I was, of course, flattered and eagerly agreed - you've always got to be thinking about the resume, and the exposure of a major legal periodical is intoxicating - but it seemed like such an unlikely subject. Missionaries don't typically face many legal issues. I have to confess that, at first, I couldn't think of enough elder law issues to fill an elder law issue. But the more I thought about it, an elder faces tough legal calls every day of the best two years of his life. And there really aren't any good treatises available. Even if there were, the "triple combination" is hefty enough as it is. I think we'll have to settle for some issue-spotting.

A Conservative View of the Originalist View of the Bill of Rights
by Boyd Kimball Dyer

The "Originalist" view of the Bill of Rights taken in Mr. David McKinney's article "The Tyranny of the Courts" in the last issue of the Utah Bar Journal is not historically accurate. A conservative view puts the Bill of Rights in its true historical context as the first step in its interpretation.

The Tyranny of the Courts
by David R. McKinney

The recurring political battles over federal judicial nominations demonstrate a continuing and disturbing development Ð the increasing politicization of the courts. These battles would not occur, but for the willingness of courts to decide political questions. The fighters on both sides implicitly recognize the courts as institutions through which policy preferences can be turned into law. The political leanings of judicial candidates therefore become all-important, as evidenced by the recent hearings on the nomination of John Roberts as Chief Justice.

An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
by Gary G. Sackett1

Introduction
Here's a test for lawyers who think they know what their profession is fundamentally about: Define the "practice of law." Is it what we lawyers do when we help clients or employers deal with legal issues? Is it what law school and studying for and passing a bar exam prepares us to do? Is it the application to the circumstances of another person of legal principles and judgment that require the knowledge and skill of a person trained in the law? More difficult yet, what is the unauthorized practice of law? Does that occur when a person who hasn't passed the Bar exam tries to do what we lawyers are licensed to do?

Reflections on Poverty, Bankruptcy, and Heresy
by Paul Toscano

Introduction
In January and February of 2005, the Salt Lake Tribune published a series on bankruptcy in which Utah was reported to have the highest bankruptcy-filing rate in the country. The articles were extensive and informative. I was, however, disturbed by them because, while they discussed bankruptcy, they said so little about poverty. I decided to do some research on:

* How poverty is measured;

* The actual number of Utah households living in functional poverty;

* How much credit card debt Utahns carry;

* How much credit card companies earn annually in Utah;

* How Utah bankruptcy discharges affect those credit card companies; and

* How some new Bankruptcy Code amendments may affect Utahns seeking debt relief.

Applying the Standards of Professionalism and Civility to the Practice of Criminal Law
by Sandi Johnson

Many attorneys criticize the Utah Standards of Professionalism and Civility, not because they are a bad idea, but because they are "unenforceable." Despite their external unenforceability, attorneys should support these Standards. If attorneys rely on external consequences to guide their behavior, they will always be at risk of compromising their professionalism and integrity as officers of the court. The purpose of the Standards should be to create higher expectations for ourselves and for each other as colleagues, regardless of the practical consequences. After all, it is better to aim for the stars and hit the moon. The Rules of Professional Conduct are the baseline, and most attorneys find those rules relatively easy to follow. This is a tumultuous time period when the judiciary and legal profession are under attack. As external validation and respect are waning, attorneys should exhibit pride in their own professionalism and integrity, and the Standards provide one means to reach that goal.

Considerations in Purchasing and Using Malpractice Insurance
by Michael Skolnick

A couple of months ago, members of the Utah State Bar received a letter from Salt Lake attorney Grant Clayton. When he's not out driving his vintage TR-6 or writing patents, Grant serves as chairperson of the Bar's Lawyers Benefits Committee. His recent letter urged members of the Utah Bar to support our Bar-endorsed malpractice insurance program. That program is administered by Marsh Affinity and underwritten by Liberty Mutual. This article is intended for those who take the next step; either in obtaining malpractice insurance for the first time, or carefully reviewing their existing policy to ensure it meets their needs. The article will briefly address key considerations in obtaining and using malpractice insurance, with the goal of helping the reader become a wiser consumer of this professionally-invaluable commodity.

ERISA Standards of Review and the Administrator's Conflict of Interest
by Scott Hagen

The Tenth Circuit Court of Appeals recently provided helpful guidance for district courts evaluating claims of wrongful denial of employee benefits under ERISA. In particular, the court clarified the standard of review to be applied where the plan administrator of the employee benefit plan had a potential conflict of interest at the time the benefits were denied.

Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned
by Lincoln Mead

VoIP Who?

VoIP stands for Voice over Internet Protocol and it should be the only acronym in this article. In a nutshell, VoIP or broadband telephony, is a technology based on the same type of communications standards that drive our Internet connections. The phones connect to the existing data network and the conversations become just another digital stream running through the network wiring. Calls placed to numbers outside the office are routed over the Internet or a service provider's private network. The calls can link up with traditional phone systems, so someone on a regular landline or cellular service and another using VoIP can talk to each other.

Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution
by Michele Mattsson and Kent B. Scott

Anyone who has ever experienced the joy of skiing through Utah's dry, untracked powder has felt euphoria, the bliss of floating, effortlessly. But like mediation, getting there takes lots of work and creativity. Do you hike up to your favorite backcountry spot before anyone else does? Do you hire a helicopter? Do you dash up to the nearest resort and try to be the first person on the lift? How do you avoid the dangers? In this article, we'll discuss the tricks, twists, and turns of getting to the untracked powder Ð getting to a settlement.

Standard 6 - Adherence to Promises & Commitments
by V. Lowry Snow

It is late Friday afternoon after a harried week of work. You are tired and want to get out of the office early. Just as you think you are finally free to leave the demands of your clients and enjoy your weekend, a return telephone call comes in from opposing counsel on one of your cases, dealing with an important issue. The attorney on the other end of the line makes one or more of the following representations to you:

New Rules governing IOLTA program adopted by the Utah Supreme Court

by Steve Sullivan, Utah Bar Foundation President and Kim Paulding, Utah Bar Foundation Executive Director

On June 27, 2005, the Utah Supreme Court executed an Order setting out new rules to govern the IOLTA (Interest on LawyersÕ Trust Accounts) Program. The Order is effective upon signing and the new set of rules clarifies many of the questions that have arisen during the 22-year history of the program.

The new IOLTA rule no longer allows attorneys to opt-out of the IOLTA program and still maintain a non-interest bearing trust account. It now states that all client trust accounts must be interest bearing with the attorney making one of two choices of where the interest should be directed. The first option is that the interest be generated for the benefit of the client if it is a large enough sum of funds or is being held for a long enough period of time to generate net interest on behalf of the client. (Net interest would be the remaining funds left after the bank has taken their service fees and other charges associated with administering the account). If the first option is not viable, the second option is to direct the interest to the IOLTA program. The Utah Bar Foundation enjoys a good relationship with the Utah Banker's Association and at this time, most of the participating banks in the IOLTA program waive all services fees associated with the IOLTA accounts helping to generate even more funds for legal services for the poor and law related education.

The IOLTA program was created in 1983 by the Utah Supreme Court Opinion In The Matter of Interest on LawyersÕ Trust Accounts, 672 P.2d 406 (Utah 1983). It allowed attorneys to pool client funds that were to be held for a minimal amount of time or were of small amount in an interest-bearing client trust account. The interest from this account is directed to the IOLTA Program.

Over the past 22 years, the Utah Bar Foundation has donated more than $4.1 million dollars for charitable purposes that:

¥ Promote legal education and increase the knowledge and awareness of the law in the community.

¥ Assist in providing legal services to the disadvantaged.

¥ Improve the administration of justice.

¥ Serve other worthwhile law-related public purposes.

Past recipients of funds have included agencies such as Utah Law Related Education Center, Legal Aid Society of Salt Lake, Utah Legal Services, Disability Law Center, DNA People's Legal Services, International Rescue Committee, Community Mediation Center, Multi Cultural Legal Center, as well as many others.

It is worth noting that the Utah Bar Foundation is a completely separate non-profit organization from the Utah State Bar. While there is a long-standing good relationship between the two organizations, they are completely separate from one another.

The Foundation has been organized as a member organization in which every licensed attorney in Utah in good standing is a member. The general membership elects seven members from the membership to serve on the Board of Directors to govern the operations of the Foundation. If you are interested in serving on the Board or becoming more involved, please contact the Foundation offices.

To see a complete copy of the petition, new rule or Order from the Court, please visit our website at http://www.utahbarfoundation.org/ html/downloadable_forms.html. For questions about the IOLTA program or help with bringing your account in to compliance with the new rule, please contact the Foundation offices at (801)297-7046.

Why Paralegal Certification Counts
by Debra J. Monke

Designation as a Certified Legal Assistant (CLA), or Certified Paralegal (CP) is more than the pinnacle of professional achievement for individual paralegals. It is also a sound indication of proficiency to the attorneys, firms, and organizations that hire them.

Since the CLA program was launched by the National Association of Legal Assistants (NALA) in 1976, it has become widely recognized as the definitive credential for paralegals. More than 25,000 individuals have participated in the program, and some 12,500 paralegals are on the certification rolls today.

Antitrust & Unfair Competition Law Section: An Introduction

The Antitrust & Unfair Competition Law Section of the Utah State Bar was established in January 2005. Our membership currently includes lawyers on both the plaintiff and defense sides of the Bar, academics, government prosecutors and economists. In that regard, we would like to invite all Utah lawyers whose practices involve antitrust and unfair competition matters to join our Section and add their expertise to our group. We believe we will form an effective network of lawyers in Utah whose knowledge and expertise allow us to support each others' practices.

Pro Bono Honor Roll

Kent Alderman
Reha Deal
Michael Deamer
Kevin Fife
Richard Gallegos
Richard Grealish
D. Rand Henderson
Brent Johns
Alejandro Maynez
Perry, Malmberg, & Perry
Walter Merrill
William Morrison
William Ormond
Ralph Petty
Kristine Rogers
Gregory Simonsen
Linda Smith
Mary Woodhead
Donald Winters
Dorsey & Whitney

Utah Legal Services and the Utah State Bar wish to thank these attorneys for their time and willingness to help those in need. Call Brenda Teig at (801) 924-3376 to volunteer.

Standard 8

by Linda Jones

Editors' Note: A member of the Supreme Court's Advisory Committee on Professionalism will discuss one of the new Standards of Professionalism and Civility with each issue of the Bar Journal. The opinions expressed are those of the member and not necessarily those of the Advisory Committee.

Standard 8 of the Utah Standards of Professionalism & Civility states:

When permitted or required by court rule or otherwise, lawyers shall draft orders that accurately and completely reflect the court's ruling. Lawyers shall promptly prepare and submit proposed orders to other counsel and attempt to reconcile any differences before the proposed orders and any objections are presented to the court.

Federal Appeals: The Scoop on Electronic Submission and Filing

by Douglas E. Cressler

Senior partner: "There was a time when we had to print everything that was to be filed with the court on paper, along with several copies as required by the rules, then physically mail or deliver the whole stack of stuff to the court and send additional paper copies of everything to all the parties in the case."

New associate: "Wow. And were the deliveries made on dinosaurs?"

A near-future law firm conversation.

A Guide to The Foreign Corrupt Practices Act

by Robert A. Youngberg

Utah companies do business in foreign markets now more than ever before. Among the 50 states, Utah has the seventh fastest growth rate in export shipments of goods. 2,141 companies exported goods from Utah in 2002, and most (83 percent) were not large companies. In 2003, the value of exported goods shipped from Utah topped $4 billion.1 Compliance with foreign trade laws is, therefore, increasingly vital to the success of Utah businesses.

Bankruptcy Litigation: Some Practical Pointers

by J. Robert Nelson

Introduction
The premise of this article, that litigation frequently spawns bankruptcy, is not a novel insight. The recent spate of mass tort suits involving asbestos and dangerous drugs have pushed numerous companies to respond with Chapter 11 filings. Mass tort situations aside, the substantial costs of litigating even one complex case have driven some defendants to seek bankruptcy protection. The mere possibility of a large adverse judgment leads others to bankruptcy. Even the inability to post an undertaking in connection with appeal of an adverse judgment has resulted in bankruptcy filings. Although the circumstances vary, bankruptcy has become a frequently used response to litigation.

"Making Law" and "Finding Facts" - Unavoidable Duties of an Independent Judiciary

by John J. Flynn

The role of judges and the duties they are called upon to perform are not well understood by the public generally and many politicians in particular. Recent physical and political attacks on particular judges and the judiciary in general and the politicization of the nomination and appointment processes for judges require a campaign to educate the public about the role of the judiciary in our society.

Get Ready for the Bankruptcy Amendments of 2005

by Joel Marker

On April 20, 2005, President Bush signed S.256, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (the "Act"). While critics have noted that the Act is long on attacking perceived abuses of the bankruptcy laws by consumer debtors and short on protecting individuals from their creditors,1 the Act is now law and members of the bar need to determine how the changes will affect their clients and practices. The following survey of changes imposed by the Act is not complete and readers are encouraged to educate themselves on the Act's provisions prior to its implementation. Two internet resources are helpful in digesting the changes brought by the Act. First, the law firm of Davis Polk & Wardwell has a blackline version of the entire Bankruptcy Code marked to show the amendments from current law at http://dpw.com/practice/code.blackline.pdf. Second, the American Bankruptcy Institute offers a wealth of summaries and articles explaining the Act at http://www.abiworld.net/bankbill.

Why Don't They Like Us?

by Keith E. Taylor

In the January 2000 issue of the Utah Bar Journal, I bid my fond farewell to a noble profession. Since then I have given some serious thought to why the general public does not recognize lawyers as being trusted representatives of a noble profession. After all, lawyers are responsible for our unprecedented freedom in this wonderful country. The difference between our society and those of such totalitarian states as the late USSR is not in the words of our respective constitutions but in the vigorous implementation, application and enforcement of those words, almost exclusively done by lawyers. Well then, why don't they like and respect us?

With some justification, some think that a major cause are those few self-aggrandizing buffoons frequently foisted upon us by the mass media. Others blame the media itself for creating circus - like trials such as the O. J. Simpson trial. However, I suggest that these are aberrations and simply can't be the sole cause of widespread disdain of the legal profession among members of the general public.

Standards for Standards' Sake:

by Eric K. Johnson

On October 16, 2003, the Utah Supreme Court approved Rule 23 of the Utah Supreme Court Rules of Judicial Administration (itself comprised of twenty new rules), entitled "Standards of Professionalism and Civility" "[t]o enhance the daily experience of lawyers and the reputation of the Bar as a whole." I am all for satisfying daily experiences and for burnishing the Bar's reputation, but I submit that the passage of twenty new rules over and above those that already apply to the profession do little to achieve either goal. This is not to state that the motives for Standards are somehow wrongheaded. The Preamble to the Standards of Professionalism and Civility, which has no normative force, is, for the most part, as sensible as it is aspirational. It reads, in part:

In fulfilling a duty to represent a client vigorously as lawyers, we must be mindful of our obligations to the administration of justice, which is a truth-seeking process designed to resolve human and societal problems in a rational, peaceful, and efficient manner. We must remain committed to the rule of law as the foundation for a just and peaceful society.

* * * * * *

Outsourcing - for Easy, Effective Data Protection

by David Saperstein

Attorneys' Data - and Practices - Are Vulnerable
Attorneys, whether solo practitioners, members of a small or large firms, or in-house counsel for corporations, need to consider these statistics:

¥ 40% of data loss arises from hardware failure and 29% from human error.1

¥ About 7 million laptops are lost, badly damaged, or stolen each year.2

¥ 47% of organizations surveyed by the Computer Security Institute experienced between 1 and 5 computer security breaches in the last 12 months.3 56% of disaster recovery professionals identified such issues (e.g., unauthorized access, viruses) as an extreme threat to business continuity.4

¥ The amount of stored data is growing at 125% per year.5 This growth increases the data security, long-term recordkeeping, and/or auditing challenges of compliance with such laws as Gramm-Leach Bliley, the Health Insurance Portability and Accountability Act (HIPAA), Sec. Rule 17a-4, and Sarbanes-Oxley.

¥ Companies that cannot resume operations - including recovering key data - within 10 days of a disaster are not likely to survive.6

What do these statistics have to do with the practice of law? Answer these questions:

¥ Who performs data backup in the office (or branch offices) and how often? Is the backup reliable?

¥ Does the office maintain a copy of its data off-line - and off-site in a secure location - so that it is safe from natural disasters, technical malfunctions, and accidents at your site (as well as from a range of human risks such as deletion errors, viruses and hacking)?

¥ How fast can the office recover its data? How much of it can be recovered?