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September 30, 2004

Objectives of Revocable Trusts

Objectives of Revocable Trusts
by Langdon T. Owen, Jr.

Why use a revocable trust? Revocable trusts can be a good tool to help clients achieve their objectives; but they are only a tool. Let's review some key objectives:

Tax Savings
Clients sometimes ask how trusts can save them transfer taxes. Let's look at the long and the short of the matter, starting with the short. The short answer is that trusts have no magic to reduce taxes. The long answer, however, is more interesting: certain transaction structures can reduce taxes, and trusts are marvelous tools for creating such structures.

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The Utah Marshaling Requirement: An Overview

The Utah Marshaling Requirement: An Overview
by Ryan D. Tenney1

Rule 24(a)(9) of the Utah Rules of Appellate Procedure states that "[a] party challenging a fact finding must first marshal all record evidence that supports the challenged finding." At first glance, this rule may appear misguided. After all, ours is a profession that stresses zealous advocacy on behalf of a client. It may sometimes be difficult for an appellate litigator to imagine why he or she should have to make the opponent's case for them; it may be even more difficult for the attorney to then imagine having to explain that particular portion of the brief to their client. As the reported cases suggest, however, the appellate courts can and do regard a failure to marshal as a fatal defect.

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Facsimile Advertising and the Requirement to Get Signed, Written Consents

Facsimile Advertising and the Requirement to Get Signed, Written Consents
by Berk W. Washburn

Recently, much attention has been focused in the media on new rules and regulations issued by the Federal Communications Commission (the "FCC") and the Federal Trade Commission (the "FTC") in connection with a national Do-Not-Call Registry. For the most part, the media has not noticed that there are included within the same new FCC rules substantial changes in the statutory guidelines for the legal requirements in facsimile advertising. These new facsimile advertising rules apply to both residential phone lines (consumer transactions) and business phone lines (commercial transactions). In the last decade, facsimile advertisements have become a cheap and pervasive form of advertising. Many businesses quickly embraced facsimile advertising in order to capitalize on the minimal cost and time required to reach a very large audience. On the other hand, because much of the cost and wasted time is shifted to the recipient, "fax ads" have become the bane of many dedicated facsimile lines, both for business and residential users. In Utah, many businesses have been at different times both a sender and a receiver of fax ads. Since the FCC has now substantially reversed its position on the legal rules for fax ads, both senders and receivers of fax ads in Utah will be interested in the new rules.

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Mental Illness, Addiction and Attorneys

Mental Illness, Addiction and Attorneys
by Jack M. Morgan, Jr.

Mental illness and addiction are devastating to lives, careers, relationships, families, and communities. In any given year, 9.5% of the population, approximately 18 million Americans, suffers from a depressive illness, generally defined to include major depression, dysthymia and bipolar disorder.1 Nearly 1 in 13 adults abuse alcohol or are alcoholic.2 A 1999 study by the Substance Abuse and Mental Health Services Administration concluded that an estimated 4 million people - about 2% of the population - were using prescription medication non-medically,3 and the same study a year earlier found that 1.7 million - about 0.8% - were using cocaine.

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Possible Defense Responses to Plaintiff's "Experts"

Possible Defense Responses to Plaintiff's "Experts"
by Gordon Strachan

This article clarifies differences between the testimonial latitude permitted for defendants' and plaintiffs' expert witnesses in negligence-based personal injury litigation and clarifies Utah law regarding granting increased discretion to defense experts. This should help curtail the proliferation of plaintiffs' motions in limine designed to reallocate - impermissibly - the burden of proof.

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Practice Pointer: When Can a Lawyer End an Attorney-Client Relationship?

Practice Pointer: When Can a Lawyer End an Attorney-Client Relationship?
by Kate A. Toomey

Attorneys sometimes ask about the circumstances under which they must withdraw from a representation, and those under which they are permitted to end it. The answers vary with the situations: some are essentially no-brainers (for example, you must withdraw from the representation if the client fires you) while others are far more ambiguous (for example, you want to withdraw because it has become clear the lawyer-client relationship requires high maintenance).

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October 24, 2004

Casemaker Coming Soon

Casemaker Coming Soon
by Toby Brown

Imagine a Bar benefit that provides online legal research of Utah law for free. That's Casemaker and it's coming soon to Utah State Bar members.

What is Casemaker?
Casemaker is an online legal research service provided through state bar associations. It is easily accessed via the Internet and requires no special software. The content of each state bar library focuses on primary law for that jurisdiction. This normally includes applicable state case law, codes, court rules and some administrative law. There is a federal law library, as well, consisting of case law for the US Supreme Court back to 1935 and all Federal Circuits, at least back to 1995.

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An Overview of State Sovereign Immunity

An Overview of State Sovereign Immunity
by Bless Young and Kurt Gurka

I. State Sovereign Immunity and the Eleventh Amendment

A. Historical Perspective
Sovereign immunity shields states from having to defend themselves against suits in law or at equity in the federal system. Although not explicitly incorporated into the constitutional text, it seemed apparent that sovereign immunity, as it had existed up to ratification, would remain in place. However, this assumption was destroyed by the 1793 case of Chisholm v. Georgia, 2 Dall. 419 (1793), where the Supreme Court, in a 4-1 vote, upheld its jurisdiction over an action in assumpsit brought by a South Carolina citizen against the State of Georgia.

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October 26, 2004

Judicial Disqualification in Utah

Judicial Disqualification in Utah
by Steve Averett

The purpose of this article is to summarize Utah law regarding disqualification of judges.

Judges are generally not allowed to hear cases in which they: (1) are interested parties, (2) are closely related to a party, or (3) have served as an attorney for one of the parties. Utah Code Ann. ¤ 78-7-1 (2002).

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Cracking the Computer Forensics Mystery

Cracking the Computer Forensics Mystery
by Christopher Wall and Jason Paroff1

Only a few short years ago, the term "computer forensics" was a mystery to most attorneys. In the digital age, however, attorneys are discovering that a basic understanding of "computer forensics" and computer forensic protocol is crucial in both civil and criminal lawsuits. Without a doubt, most information generated today is stored electronically. In 2002, approximately 5 exabytes of new information was stored in print, film, magnetic, and optical storage media. 92% of that information was stored on magnetic media, mostly in hard disk drives.2 Because of the increasing trend toward creating and using electronic documents, the computer is becoming a vital point of investigation in almost every case. Computer forensics can be essential in uncovering twenty-first century evidence.

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Practice Pointer: Neither a Borrower Nor a Lender Be

Practice Pointer: Neither a Borrower Nor a Lender Be
by Kate A. Toomey

You've known her for years, and in many respects the two of you have a great deal in common; she regards you as a friend. You've been around her young children a few times, and you like them a lot. She's a wonderful mother and she works hard, but she struggles to provide for the kids because she's been on her own since her husband died overseas. You've been helping her with a wrongful death action, but it's going to be awhile before the money comes through, and she may have to file a lawsuit to get everything she's entitled to. She hits a financial rough patch but doesn't qualify for a loan and can't borrow money from her extended family. Meantime, she's so behind on paying her bills that she could lose her house, and if she loses her car, too, she could lose her job as well. Then one of the boys gets sick. She can't stay at home to care for him, but she can't afford a babysitter, either. Finally, she asks you for a small loan, just until her money comes through. You're a generous person who cares about others, and besides, you know she'll do anything she can to pay you back. What can you do to help her?

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December 19, 2004

The Construction Attorney's Toolbox - Building Solutions

The Construction Attorney's Toolbox - Building Solutions
by Kent B. Scott

Introduction
Today's current economic climate presses owners and contractors to complete projects in less time for less money. These pressures have created more demanding time schedules and monetary budgets that, in turn, have created an increased number of disputes. Another developing trend is the increased costs in time, money, efficiencies and lost opportunities taken up by these disputes. Rather than solving the technical problems experienced on the project, the parties get mired down into bolstering opposing positions. The fees incurred in resolving disputes become a major component of the dispute. The dollars that should go into the project are now going into the project dispute.

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I Will Not Take The Oath (Unless I Really Have To)

I Will Not Take The Oath (Unless I Really Have To)
by Robert H. Henderson

Sometime I hope to write an article on mediation, or arbitration, or cross examination, or trial tactics, or getting along with difficult lawyers (is there any other kind?), etc. For some time, however, I have been preoccupied with our Bar's "Pledge To Racial And Ethnic Diversity." You know it - you can't miss it. It is so prominently displayed on our Bar's web site that even a computer idiot like me can pull it up. I went to the Utah Trial Lawyer's annual CLE seminar and at lunch I heard my friend and its President, Doug Mortensen, proudly announce that that organization had adopted it.

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Practice Pointer: Managing Your Trust Account

Practice Pointer: Managing Your Trust Account
by Kate A. Toomey

Every attorney knows that lawyers in private practice who handle client money must do so in a manner prescribed by the Rules of Professional Conduct. But the nuances of the requirements often prompt calls to the Office of Professional Conduct's Ethics Hotline. I've discovered that many attorneys share a near-phobic aversion to the whole concept of trust accounts and handling other people's money. Here are some answers to the most common questions.

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June 11, 2005

Paperless? Hah! Less Paper - Absolutely

Paperless? Hah! Less Paper - Absolutely

by Heather Holland

If you have not considered records management as part of your business or firm plan, it can be time consuming and if done in-house it can be overwhelming, however it is absolutely necessary. Good recordkeeping and a good recordkeeping system are essential components and healthy for every business: ensuring compliance with state and federal employment laws, it can also play a defining role in litigation, arbitration or mediation or when the auditor comes knocking at your door. (See Arias v. United States Service Industries, Inc., D.C. CA, No. 95-7158, 1996.)

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Message from ABA President

Message from ABA President

As members of the legal profession, I know you share my concern over the public's misunderstanding of the judiciary's role and the politically motivated criticism of the judiciary stemming from the Terri Schiavo case, and are equally alarmed about the murders of Judge Lefkow's family members in Chicago and the attacks at the Fulton County Courthouse in Georgia. The circumstances of these tragic events require careful analysis, thoughtful leadership, and measured response. The American Bar Association has long held the preservation of judicial independence as one of the most important Association goals. These recent events have elevated the urgency of that commitment among the ABA's leadership. In the past several days, I have issued public statements condemning the violence against our judiciary and the gratuitous and vicious public attacks on the dedicated men and women who are our country's judges. During my speaking engagements, I have taken the opportunity to call for a change in tenor when the national discussion turns to our justice system.

Regardless of how one feels about the specific circumstances of the Schiavo - or any - situation, the role of the judiciary is clear. Federal and state judges are charged with weighing the facts of a case and following the remedies set forth in the law, responsibilities they carry out valiantly and with great dignity and sensitivity.

It is vital that the legal community address the current atmosphere in which our legal system operates, in what can only be called a decline in civility and respect toward our justice system. Too often judges are characterized as political tools and the justice system merely an offshoot of politics, and not the independent leg of our democracy that they are. Efforts to address the problems of courthouse security have been initiated by the Judicial Conference of the United States and the National Center for State Courts, and I have approached these organizations as well as a number of entities within the ABA to determine where and how we can best contribute to resolving problems faced by the nation's courts and judges.

The Association is committed to promoting the importance of judicial independence. The four entities that comprise the ABA Justice Center: the Judicial Division, the Standing Committee on Judicial Independence, the Standing Committee on Federal Judicial Improvements, and the Coalition for Justice work tirelessly to develop resources, initiatives, policies, and programs that support our justice system, our judges, and our courts. Information on each of these entities' initiatives can be accessed through the Justice Center's Web site at http://www.abanet.org/justicecenter/home.html

Thank you for your continued support of the ABA, the legal profession, and the judiciary. As the voice of the legal profession, we must not allow those among us who would do harm, in any form, to destroy the very freedoms our legal system is entrusted to protect.

Sincerely,

Robert J. Grey, Jr.
President, American Bar Association

Standard 11 - Ex Parte Communications

Standard 11 - Ex Parte Communications

by Judge Gregory K. Orme

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.

"Lawyers shall avoid impermissible ex parte communications." There's nothing novel about this idea: Don't talk to a judge (or other adjudicator) about a case unless opposing counsel is in on the conversation. The same precept holds for conversations with the judge's law clerk or other members of the judge's staff. There are a few exceptions, mostly having to do with procedural things, like scheduling, but always err on the side of avoiding one-sided conversations about cases.

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New Laws Every Lawyer Should Know

New Laws Every Lawyer Should Know

by Brent N. Bateman

This article highlights some important bills passed in the recently concluded 2005 Utah legislative session. The new laws discussed here are important to members of the State Bar, not because they are interesting or controversial, but because they include changes that attorneys should be aware of in practice. For example, some legislative changes may affect the advice an attorney gives to a client. Naturally, this article will not provide an exhaustive review of new legislation impacting the bar. Rather, it will briefly discuss a few selected laws, hoping to inspire members of the bar to undertake a more detailed review.

The newly enacted statutes are organized here into very general practice areas. Note, however, that a bill often impacts more than one practice area. For example S.B. 47, Wrongful Lien Offenses, discussed below in the criminal section, also raises issues of real property law, tort law, and estate planning.

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Some Thoughts Concerning Trustee Selection

Some Thoughts Concerning Trustee Selection

by Langdon T. Owen, Jr.

The selection of an appropriate trustee is of concern for anyone establishing a trust. A good trustee will provide real tangible benefits, and a bad trustee will provide nothing but nightmares. This article contains thoughts on the subject of trustee selection that counsel drafting trust instruments may find useful in dealing with clients.

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Outsourcing - for Easy, Effective Data Protection

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?

Continue reading "Outsourcing - for Easy, Effective Data Protection" »

Standards for Standards' Sake

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.

* * * * * *

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Why Don't They Like Us?

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.

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August 6, 2005

Get Ready for the Bankruptcy Amendments of 2005

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.

Continue reading "Get Ready for the Bankruptcy Amendments of 2005" »

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

"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.

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Bankruptcy Litigation: Some Practical Pointers

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.

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A Guide to The Foreign Corrupt Practices Act

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.

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Federal Appeals: The Scoop on Electronic Submission and Filing

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.

Continue reading "Federal Appeals: The Scoop on Electronic Submission and Filing" »

Standard 8

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.

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Pro Bono Honor Roll

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.

October 16, 2005

Antitrust & Unfair Competition Law Section: An Introduction

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.

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Why Paralegal Certification Counts

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.

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New Rules governing IOLTA program adopted by the Utah Supreme Court

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.

Standard 6 - Adherence to Promises & Commitments

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:

Continue reading "Standard 6 - Adherence to Promises & Commitments" »

Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution

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.

Continue reading "Maneuvering Through Mediation: The Tricks, Twists and Turns of Finding Untracked Powder Resolution" »

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

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.

Continue reading "Migrating the Utah State Bar to VoIP: Motivations and Lessons Learned" »

ERISA Standards of Review and the Administrator's Conflict of Interest

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.

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Considerations in Purchasing and Using Malpractice Insurance

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.

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January 20, 2006

Applying the Standards of Professionalism and Civility to the Practice of Criminal Law

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.

Continue reading "Applying the Standards of Professionalism and Civility to the Practice of Criminal Law" »

Reflections on Poverty, Bankruptcy, and Heresy

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.

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An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition

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?

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The Tyranny of the Courts

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.

Continue reading "The Tyranny of the Courts" »

January 31, 2006

A Conservative View of the Originalist View of the Bill of Rights

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.

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February 7, 2006

The Bible of Elder Law

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.

Continue reading "The Bible of Elder Law" »

Assisted Living in Utah: A Brief Overview for Consumers

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.

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February 14, 2006

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

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.

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Why a Private Conservator?

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.

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The Road Ahead for the Practice of Elder Law1

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.

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

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?

Continue reading "The Estate Planner / Insurance Salesman and the Fiduciary Duty of Loyalty:" »

Update on End-of-Life Issues in Utah

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.

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April 17, 2006

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

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.

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April 24, 2006

Finding a Solution to the Problem With Finders in Utah

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%).

Continue reading "Finding a Solution to the Problem With Finders in Utah" »

SPYWARE: Living in a Cyber-Fishbowl

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.

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Phishing and Pharming and Trojans - Oh My!

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."

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April 25, 2006

The First 50: "Celebrating Diversity in the Law"

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.

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Utah State Bar Unveils the Lawyers Assistance Program (LAP)

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.

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May 30, 2006

Geologic Hazard Disclosure Laws: Why They Make Sense

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.

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Henriod, Dissenting

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.

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Special Masters, Receivers, and the Duty to Marshal Evidence

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.

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May 31, 2006

Preserving State Constitutional Issues in the Trial Court

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.

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June 1, 2006

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

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.

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August 7, 2006

"A Relatively Simple Matter"1 - Navigating the Utah Discovery Rule

"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.

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August 8, 2006

"Max 25" is Retiring - the End of an Era in Utah Law Enforcement

"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.

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Fee Arbitration

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.

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Constitutional Adjudication1

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.

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August 9, 2006

Separation of Powers

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.

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Separating Powers: the Judiciary's Constitutional Claim on Procedural and Evidentiary Matters

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...

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Violence Against the Utah Legal Profession - a Statewide Survey

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.

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October 30, 2006

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

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.

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November 3, 2006

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

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.

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November 6, 2006

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

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.

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Tax Matters: Statutes of Limitation

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.

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Why Lawyers Matter

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.

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November 8, 2006

Mr. Gray Goes to Washington

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

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January 8, 2007

The Young Lawyers 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.

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The Utah State Bar Presents Lifetime Achievement Awards at 75th Anniversary Celebration Dinner

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.

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Questions You Might Ask About the History of the Utah Bar Journal

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.

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Small Claims Court: A Conversation with Scott Sabey and Tim Shea

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.

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Women Lawyers of Utah: How it All Started

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.

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Utah Minority Bar Association Receives Prestigious Honors - Thanks Utah State Bar and Bar Members for Support

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.

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The More Things Change, the More They Stay the Same: Investigating and Prosecuting Allegations of Attorney Misconduct

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.

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From the Desk of the General Counsel

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.

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Richard L. Bird, Jr. - Utah's Most Senior Practicing Attorney

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.

Seventy Five Years and Four EDs Later

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.

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Separate Branches, Balanced Powers: Governing the Judicial Branch

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.

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Best Wishes and Many Thanks from the Chief Justice

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

The Past, the Present, and the Future of our Bar

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."

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March 7, 2007

A Professionalism Quiz: How Does Your Conduct Measure Up?

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

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Civility in the Practice of Law: A Young Lawyer's Perspective

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.

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

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.

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Civility and Chivalry

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.

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Enforcing the Standards of Professionalism and Civility

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.

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Honest Lawyers Make Good Lawyers

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.

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Promoting the Standards of Professionalism and Civility

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.

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April 25, 2007

Judge Disqualification Rules in Action

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.

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The Paperless Deposition

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.

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April 26, 2007

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

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

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

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.

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Going to Court in Babylon

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!

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Attorney Fee Discrimination for Solo Practitioners?

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.

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Keep Dreaming

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.

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Going Dark – An Alternative to Sarbanes-Oxley Compliance

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.

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Blind Guides: The Difficult Task of Comprehending the Law

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.

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April 27, 2007

Practicing to Practice: Scholastic Debate as Law-Related Education

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.

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

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

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April 30, 2007

The Rapid Evolution of Climate Change Law

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.

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When Lawyers Become Pre-law Advisors

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.

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

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.

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

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.

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May 25, 2007

Update: The Utah State Law Library

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.

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The Strength is in the Research

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.

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May 27, 2007

Mediation Confidentiality and Enforceable Settlements: Deal or No Deal?

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?

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How to Advise Employers on Immigration Issues

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.

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Laying the Foundation

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.

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Utah’s Parental Involvement Law: Minors’ Access to Abortion

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.

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May 28, 2007

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

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.

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May 29, 2007

The Utah Court of Appeals – Twenty Years Later

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.

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Memorable “Firsts” of the Court

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.

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Pioneers in the Utah Judiciary

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.

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In the Beginning

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.

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Thrown Into the Deep End

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.

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