Utah Bar Journal

by David L. Wilkinson

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

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

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

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

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

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

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

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

by Isaac D. Paxman

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

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

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

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

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

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

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

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

by Drew B. Quinn

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by Peg McEntee

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

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

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

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

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

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

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

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

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

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

by Michael S. Eldredge

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

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

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

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

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

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

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

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

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

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

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

by Elizabeth A. Wright

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• “I enjoyed being around enthusiastic young people.”

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

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

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

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

by Aaron B. Millar

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

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

by Troy L. Booher

Introduction
The Utah Supreme Court has had a tenuous relationship with originalism. Originalism is a collection of views unified by their treatment of events at the time constitutional text was drafted and ratified as determinative of how that text later should be interpreted. Although originalism is often associated with political Conservatism, it is worth keeping in mind that originalism produces decisions in line with other political viewpoints. Consider, for example, State v. Hernandez, 2011 UT 70, 268 P.3d 822, a recent case in which the Utah Supreme Court, in light of the history and original understanding of Article I, Section 13 of the Utah Constitution, held that a preliminary hearing is required not just in cases involving felonies but also in cases involving Class A misdemeanors. See id. 2011 UT 70, ¶ 29. While originalists look to the views of the founding generation, originalism does not require that those views track any particular political ideology.

The Utah Supreme Court has not settled on what information it will consider when interpreting the Utah Constitution. For instance, in 1993, the court described the relevant considerations as “historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials.” Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993). But in 2006, the court expressly removed “policy argument” from that list of relevant considerations and stated instead that it will consider “text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.” Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 12 n.3, 140 P.3d 1235. Then in 2007, the court declared that historical arguments “do not represent a sine qua non in constitutional analysis.” State v. Tiedeman, 2007 UT 49, ¶ 37, 162 P.3d 1106. It again stated that relevant considerations include “historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials.” Id.

The primary dispute emerging from those cases is not whether text and historical evidence are relevant to constitutional interpretation, but whether policy arguments also are relevant. See, e.g., State v. Walker, 2011 UT 53, ¶ 32 n.9, 267 P.3d 210 (Lee, J., concurring); Am. Bush, 2006 UT 40, ¶ 73 n.2 (Durrant, J., concurring). Viewed through the lens of originalism, that dispute can be understood in at least two ways: (i) whether originalism is the method by which the Utah Constitution should be interpreted or (ii) whether originalism authorizes courts to consider policy arguments in interpreting the Utah Constitution.

In addressing the relationship between originalism and policy, justices of the Utah Supreme Court in opinions and members of the Utah State Bar in various articles published in this Journal have assumed that originalism dictates the same analysis when applied to the Utah Constitution as when applied to the United States Constitution.1 That assumption is unwarranted. Utah originalism is different because Utah history and the Utah Constitution are different. And those differences make it far from obvious that policy arguments are irrelevant when interpreting the Utah Constitution, even for originalists.

Originalism and the United States Constitution
Nearly all discussions of originalism concern how to interpret the United States Constitution. Justice Scalia has framed national debates concerning originalism in a particularly useful way, i.e., as debates over whether the method of common law judging – by which judges “make” and improve the law in light of policy arguments – should be the method for interpreting constitutions and statutes.2 Justice Scalia argues that it is undemocratic and illegitimate for judges to employ the common law method when interpreting legal texts such as constitutions.

The relationship between democracy and constitutionalism is too complex to summarize here. It is possible, however, to mention some of the most common arguments advanced in support of originalism that involve appeals to democratic principles.

1. Judges are not authorized to employ the common law method when interpreting constitutional text because judges are not politically accountable. Under Article III, Section 1 of the United States Constitution, federal judges have life tenure and their compensation may not be diminished. As the famous anti-federalist Brutus complained, Article III made judges “independent of the people, of the legislature, and of every power under heaven.” Brutus Essay XV (Mar. 20, 1788). Because judges are not politically accountable, their decisions have democratic legitimacy only to the extent judges are merely interpreting laws enacted through appropriate democratic processes, such as ratified constitutional provisions. For that reason, judges should avoid policymaking and instead act, as Justice Roberts put it during his confirmation hearing, as umpires calling balls and strikes.3 Originalism ensures that judges frustrate the views of current majorities only by exercising authority derived from those past supermajorities who ratified the constitutional provision under which the state action is unconstitutional.

2. Judges are not authorized to employ the common law method when interpreting constitutional text because, at the founding, it was understood that judges would enforce statutes as long as those statutes were arguably constitutional. To the extent broad constitutional language was vague or ambiguous (e.g., “freedom of speech” or “due process”), the political branches were authorized to elaborate their meaning. In 1789, not only was judicial review controversial, but, to the extent it was accepted, it was confined to declaring statutes unconstitutional only when those statutes clearly violated the Constitution. As Professor James Thayer put it a century later in 1893, judicial review “was denied by several members of the Federal convention, and was referred to as unsettled by various judges in the last two decades of the last century.”4 And when judicial review became widely accepted, the judiciary could declare statutes unconstitutional only when “the violation of the constitution is so manifest as to leave no room for reasonable doubt.” Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811). Originalism, therefore, requires judges to defer to political branch interpretations of constitutional text as long as those interpretations fall within a range of reasonable meanings of that text. The political branches, not the judiciary, are authorized to elaborate the meaning of vague or ambiguous constitutional text. As Brutus would have put it, because the political branches are politically accountable, those branches elaborate meaning “at their peril.” Brutus Essay XV.

3. Judges are not authorized to employ the common law method when interpreting constitutional text because, unlike unpopular common law and unpopular interpretations of statutes, both of which can be altered by statute, unpopular interpretations of the constitution are extremely difficult to alter through constitutional amendment. Arguably, legislative bodies tacitly approve of common law by failing to enact legislation to alter it and tacitly approve of judicial interpretations of statutes by failing to amend those statutes. Depending upon the nature of the legislative process, such claims of tacit consent have some purchase. But given how difficult it is to amend the United States Constitution, it is pure fiction to consider citizens as tacitly consenting to a judicial interpretation of the Constitution by failing to amend the Constitution. Because judicial interpretations of the Constitution are nearly impossible to correct through amendment, judges must interpret the Constitution in accordance with its original meaning instead of employing a common law method. Otherwise, the common law method provides a license to unelected judges to change the meaning of constitutional provisions in a way no majority, let alone a supermajority, has authorized.

The combination of those familiar arguments makes a fairly powerful point concerning the relationship between democracy and judicial interpretations of the United States Constitution. Were federal judges authorized to employ common law methods when interpreting constitutional text, five citizens (justices) with no political accountability would have authority to change the Constitution to mean something that no other citizens had authorized and that a majority of citizen realistically could not alter through constitutional amendment.

There are several responses to those arguments, none of which can be explored in any depth here. Alexander Hamilton in Federalist 78 suggested that a political check would be the executive branch’s refusal to enforce the Court’s decisions. As Hamilton put it, the judiciary is the least dangerous branch because it has “no influence over either the sword or the purse.” The Federalist No. 78 (Alexander Hamilton). Instead, the executive branch has the sword, which it can decline to use to enforce the Court’s decisions “at its peril.”

Another response is that the Constitution, and especially the Bill of Rights, was designed to check future majorities as much as to enable future majorities to govern themselves, and, therefore, the anti-democratic implications should be embraced, not lamented. Arguably, even before the Bill of Rights it was understood that members of the federal judiciary would serve as a natural aristocracy, something James Madison recognized in Federalist 49. See The Federalist No. 49 (James Madison). In that essay, Madison articulates a number of arguments “against a frequent reference of constitutional questions to the decision of the whole society.” Id. The “permanency” of judicial appointments would allow judges to thwart the “passions” of current majorities and provide a more stable government based upon “reason.” Id. We created a republic with checks and balances, not a direct democracy, for that very reason.

I mention such responses only to acknowledge them, not to suggest they are decisive. And there are a number of other responses I will not mention because my point here is different. My point is that, even assuming the originalist arguments are compelling with respect to interpretation of the United States Constitution, those arguments cannot be transplanted mechanically into discussions of how to interpret the Utah Constitution. For originalists, any discussion of Utah originalism must rely upon the history surrounding the Utah Constitution.

Originalism and the Utah Constitution
To be clear, this article does not demonstrate that Utah judges are authorized to employ a common law method and consider policy arguments when interpreting the Utah Constitution. That requires much more discussion. Instead, this article suggests that it is a mistake to conclude that Utah judges are not authorized to employ the common law method when interpreting the Utah Constitution merely because federal judges are not authorized to employ the common law method when interpreting the United States Constitution.

Consider how the originalist arguments described above differ when the discussion changes to the Utah Supreme Court’s authority to interpret the Utah Constitution, ratified in 1896.

by Jason D. Rogers and Brad R. Jacobsen

Many people would believe that investment advisers are only those that give opinions on which stocks, bonds, or mutual funds to buy. However, under applicable securities laws “investment adviser” is much more broadly defined than commonly thought, potentially including those who simply give general financial counseling or planning or those who recommend the purchase of a particular asset.

The question of whether or not a person is an investment adviser frequently arises in a real estate, insurance, or other sales context. Such salespeople would not generally think they are subject to the securities laws, but, depending on their activities, they may be.

The following will be addressed:

• What makes an individual an “investment adviser”?

• What steps may be taken to avoid being deemed an investment adviser?

“Investment advisers” generally must be licensed by an applicable regulator. Investment advisers are regulated by both federal and state law.

Federal Regulation
At the federal level, investment advisers are governed by the Investment Advisers Act of 1940 (the “Act”). See 15 U.S.C. § 806-1 et seq. The Act defines an investment adviser as “any person who, for compensation, engages in the business of advising others…as to the value of securities or as to the advisability of investing in, purchasing, or selling securities….” Id. § 806-2(a)(11). “Securities” include a broad array of instruments and agreements, including much more than the commonly-used definition of the word.

Special rules apply to investment advisers, including specific prohibitions against fraudulent practices, undisclosed conflicts of interest, fee splitting with unregistered investment advisers, deceptive advertising, limitations on referral fees, and prohibitions of certain advisory fees. Additionally, investment advisers generally must be registered with federal or state regulators. Violations of these rules can subject investment advisers to civil and criminal penalties.

The U.S. Securities and Exchange Commission (SEC) has set out the following three requirements, all of which must be satisfied to be an investment adviser. A person is an investment adviser if the person:

(1) Provides advice, or issues reports or analyses, regarding securities (“investment advice”);

(2) Is in the business of providing such services; and

(3) Provides such services for compensation.

SEC Interpretive Release No. IA-1092, 1987 SEC No-Act. LEXIS 2555 (Oct. 8, 1987) (referred to as “IA-1092”).

Each requirement will be discussed.

Provides Investment Advice
There are few clear-cut rules to define investment advice. Most of the guidance has come through SEC no-action letters dealing with the following particular situations.

General Rules
Giving advice on specific securities is investment advice, such as providing market timing services. See Lee F. Richardson, 1990 SEC No-Act. LEXIS 32 (Jan. 9, 1990). A person who provides advice concerning securities, even if the advice does not reference specific securities, is generally an investment adviser. See IA-1092. This includes advising clients concerning the relative advantages and disadvantages of investing in securities in general as compared to other investments. See Richard K. May, 1979 SEC No-Act. LEXIS 3967 (Dec. 11, 1979). Encouraging people to liquidate securities to purchase real estate, insurance, or other assets could be considered investment advice.

Situations That May Be Investment Advice
A person could be providing investment advice if, in the course of developing a financial program, he recommends that clients allocate certain percentages of their assets to life insurance, high yielding bonds, and mutual funds. See IA-1092. Investment advice also may include analyzing information to give categories of investments that similar investors historically have been satisfied with. See Financial Psychology Corporation, 1988 SEC No.-Act. LEXIS 413 (Mar. 23, 1988). A person providing advice as to the selection or retention of an investment manager also may be giving investment advice. See IA-1092.

Situations That Are Not Investment Advice
Providing general, impersonal, and historical information does not constitute investment advice. Describing investment options available through an employee benefit plan, without including analysis or recommendation with respect to options, is not investment advice. See Pension & Welfare Benefits Administration, 1996 SEC No-Act. LEXIS 316 (Feb. 22, 1996). Providing merely administrative or ministerial functions does not constitute investment advice. See League Central Credit Union, 1987 SEC No-Act. LEXIS 2369 (Aug. 21, 1987).

In another example, a publisher of a financial bulletin that indicated prices at which it recommended buying or selling publicly-traded stocks gave seminars to promote its bulletin. See Laketon Corporation, 1993 SEC No-Act. 912 (Jul. 26, 1993). At the seminars it offered only general, impersonal advice, explaining the statistical basis for the bulletin’s recommendation, the methods it used to recommend investments and why investors should follow its approach. The seminars were not designed to require attendance for more than one session. The SEC declined to take action against the publisher based on the fact that (1) the seminars were only designed to solicit subscriptions;1 (2) the seminars offered only general, impersonal advice about the publisher’s investment strategy; and (3) each program was discrete and was not designed to attract or require attendance on more than one occasion.

The line between what constitutes giving “investment advice” (requiring a person to be licensed as an investment adviser) and what does not, unfortunately, is not a clear line. The determination of whether any person should be licensed as an investment adviser (or otherwise) will require a review of the facts and circumstances for each individual. See IA-1092. The SEC generally will not issue no-action letters regarding financial planning activities, so it is difficult to obtain further guidance. See George J. Dippold, 1990 SEC No-ACT. LEXIS 748 (May 7, 1990).

Providing general, impersonal, and historic information is not investment advice. However, personalizing the information, if it emphasizes that alternative investments are superior to securities, could become investment advice. Special care should be taken to avoid personalizing the information. Explaining options does not constitute investment advice, but recommending a particular option becomes investment advice.

by Richard E. Danley, Jr.

Background
In October of 2011 the Utah Supreme Court issued its opinion in Utah Department of Transportation v. Admiral Beverage Corporation, 2011 UT 62, 693 Utah Adv. Rep. 16. The opinion has not been released for publication. Admiral marks a sea-change in how Utah determines severance damages involving actual takings. It allows the claimant to recover the full diminution in fair-market value, without limiting recovery under the traditional severance damage rules, simplifies the determination of loss and, for the first time awards severance damages for loss of visibility from changes made to a public highway. However, the Utah Supreme Court limited the eligibility to recover under Admiral to four preconditions. First, an actual taking must occur; second, the property taken must be essential to the project; third, recovery must be limited to real estate; and fourth, the loss must be caused by the taking. See id. ¶ 29. If these four conditions are present the supreme court said the claimant only need prove the taking of a protected property interest to be entitled to full recovery for loss under the State Constitution. See id. ¶ 43.

Historically, recovery for severance damages was limited by a body of common-law rules developed to determine if the loss is constitutionally protected and recoverable. For ease of reference these are referred to as “severance damage rules.” The holding in Admiral appears to set aside some or all severance damage rules when there is a taking and permit the claimant full recovery when the lost value is caused by the taking. Under Admiral, portions of two lots were taken and the owner sought recovery for diminution in value from the lost view out to the east and the lost visibility from the freeway due to its elevation by twenty-eight feet. See id. ¶ 2. Under Utah’s severance damage rules, loss of visibility from a public highway is not a protected property interest. See State v. Harvey Real Estate, 2002 UT 107, ¶¶ 11-14, 57 P.3d 1088. Following the severance damage rules, the lower courts in the Admiral case rejected recovery for any loss in value for visibility from the freeway and also applied the so called “abutment rule” to prevent recovery for the blocked view. See Admiral, 2011 UT 62, ¶ 7. The abutment rule prevents recovery for lost view or other damage if the improvements causing the damage are not constructed, at least in part, on the land taken from the claimant. In Admiral the claimant’s property abutted the frontage road, not the freeway, and none of the elevated freeway was constructed on the land taken from the claimant. See id. ¶ 2. Taking a new direction, however, the supreme court permitted full recovery for all diminution in value for both the lost view out and the lost visibility from the elevated freeway. See id. ¶ 43. The Admiral court held no portion of the elevated freeway needed to be constructed on the property taken from the claimant for recovery to occur and revised the abutment rule so that it does not apply if the property taken is essential to the project for which the taking occurred. See id. ¶ 29. It also said that once a taking of a protected property interest is demonstrated (such as the taking of the owner’s land) recovery for all damages caused by the taking is required under Utah law. See id. ¶ 31. This includes recovery for a property interest that is not a recognized or protected interest under Utah law (i.e., the loss of visibility from the freeway). The supreme court said that the constitutional requirements for just compensation from a taking are only satisfied when the owner is made whole by placing the owner in the same position he or she would have occupied but for the taking. See id. ¶ 28. Quoting Stockdale v. Rio Grande Western Railway Co., 28 Utah 201, 77 P. 849 (Utah 1904), the court said once the landowner demonstrates an actual taking of a protected interest, the owner is entitled to just compensation to the extent of all damage suffered. See Admiral, 2011 UT 62, ¶ 28 (quoting Stockdale, 77 P. at 852).

Severance Damages Rules.
Severance damages occur when the the public takes or damages a portion of a private owner’s property, leaving the owner with some or all of the property. Traditionally the public entity with the power of eminent domain severs the owner’s land by taking the portion necessary for the project and the owner keeps the remainder. Under Utah law when the public takes private property for a public use the private property owner must be compensated for both the land taken and any diminution in value caused by the severance to the land not taken. See Harvey, 2002 UT 107, ¶ 11. The severance damage rules limit what is recoverable and therefore constitutionally protected setting the scope of recovery and the amount the public is required to pay for the damage inflicted by the severance. Utah courts tend to view any claimed recovery which is inconsistent with the severance damage rules as being outside the scope of what is constitutionally protected. To understand the impact of the Admiral holding on these rules it is necessary to understand some of the rules and the fine-line distinctions with which they control and limit recovery.

In reviewing many of the severance damage cases in Utah, most of them involve some aspect of one or more of the following rules. Many of these rules overlap and they are not always consistent. As noted above, the abutment rule, discussed in Admiral, requires that for recovery the improvements causing the damage must be constructed in part on the land taken from the claimant; also, a similar or related rule requires that for recovery to be permitted the improvements causing the damage or loss in value must be constructed, at least in part, on the “severed land taken” from the claimant. See generally Admiral, 2011 UT 62, ¶¶ 17-18; Harvey, 2002 UT 107, ¶ 11, Utah Dep’t of Transp. v. Ivers, 2005 UT App 519, ¶¶ 15-18, 128 P.3d 74, reversed in part by Ivers v. Utah Dep’t of Transp., 2007 UT 19, ¶¶ 19-26, 154 P.3d 802. Another related rule limiting recovery is the “but for” rule. But for the taking and the use of the land taken the project could not have been constructed and the damage to the severed property would not have occurred. See Harvey, 2002 UT 107, ¶ 11; Utah State Rd. Comm’n v. Miya, 526 P. 2d 926, 928-29 (Utah 1974). A separate rule requires that for there to be recovery the interest must be a “protected” or “recognized” property interest. Examples of damage held not to be a protected interest under Utah law include interests in public roads. The loss of a property’s visibility from a public road has been held not to be a protected property interest as noted above and discussed in Harvey, Ivers, and Admiral. The construction of public improvements entirely within the right-of-way of a public street limiting access to and use of both the street and the adjoining property by large trucks has been held to not be a protected property interest. See Bailey Serv. & Supply Corp. v. State Rd. Comm’n, 533 P.2d 882, 883 (Utah 1975). The relocation of a public road causing a substantial loss in traffic volume was held not to be a protected property interest. See Admiral, 2011 UT 62, ¶ 11; Weber Basin Water Conservancy Dist. v. Hislop, 12 Utah 2d 64, 362 P.2d 580, 581 (1961). Another rule prohibits recovery for “consequential damages”; it is said that all damages not caused by the taking are consequential and not within the protection of the constitution, such as the noise from a school or a road or the construction of a public road through an adjoining property in proximity to the claimant’s land. See generally Utah Dep’t of Transp. v. D’Ambrosio, 743 P. 2d 1220, 1221 (Utah 1987); Miya, 526 P.2d at 928; State Rd. Comm’n v. Williams, 22 Utah 2d 301, 452 P.2d 548 (1969); and Bd. of Educ. of Logan City Sch. Dist. v. Croft, 13 Utah 2d 310, 373 P.2d 697 (1962).

http://www.trelease-on-reading.comhttp://www.trelease-on-reading.comby Elaina M. Maragakis

It’s impossible to imagine my world without books. Not only am I surrounded by them in my office, but they are packed into walls of bookshelves at home. These days, our home is filled with children’s books, as well. I have crammed them into bookshelves, baskets, and bins. I have surrounded myself – and I suspect that you have, as well – in what researchers call a “print rich environment.” It’s little wonder that some of my earliest and fondest memories are of peeling open the pages of The Berenstain Bears or Dr. Seuss or Little Golden Books, and diving into those wonderful and classic stories.

Sadly, many children never have this experience, even though educational research is replete with evidence that reading has a powerful and direct impact on a child’s success. It is such an obvious way to connect children with lifelong skills, that we often overlook it in its simplicity. The harsh reality is that many children have no access to books of their own. In fact, one study found that in low income neighborhoods, the ratio of books to children is an astonishing one book to every 300 children.1 This unimaginable statistic is alarming and troubling, but fortunately, we have the ability to change this course one child at a time. In his book The Read-Aloud Handbook, author Jim Trelease explores and explains the critical nature of reading and the abundant benefits that flow from reading aloud to children. His research is a powerful testament to the transformative power of books. He writes “we have to find a way to get books into the lives of poor urban and rural children.”2

With this simple goal in mind, it’s my pleasure to introduce a new program of the Utah State Bar called “Books from Barristers.” The goal of Books from Barristers is to provide children in underserved communities with new books on the topics of law, government, American history, and civics. Our hope is that if children can own their own book, they will come to understand the value of reading, which will, in turn, help to solidify a lifelong love of learning. While we hope to eventually expand the program, in its inaugural year we are targeting our efforts to first grade children located in Salt Lake, Davis, and Utah Counties.

Statistics underscore the importance of a program like Books from Barristers. A U.S. Department of Education study showed a direct correlation between the number of books at home and average test scores. This study showed that students with more than 100 books in their homes had higher test scores in science, civics, and history than those who reported having fewer books. Not surprisingly, test scores declined steadily as the number of books in the home declined.3 Beyond success in school, frequent readers also fare better in society than their counterparts who read less. For example, proficient readers are significantly more likely to be employed than below-basic readers.4 Notably, the benefits go far beyond the individual, and have a concrete impact on society as a whole. In its groundbreaking 2007 report titled “To Read or Not to Read,” the National Endowment for the Arts reported that adults who read well are more likely to volunteer, vote, attend cultural and civic activities, and exercise.5

Armed with this educational research, Books from Barristers seeks to provide books to underserved children with three principles in mind: (1) value (the book must be new);

(2) ownership (the book must be given to the child); and

(3) investment (the child must choose the book). The first two concepts are based on the proposition explained by author Jim Trelease, namely, that “[o]wnership of a book is important, with the child’s name inscribed inside, a book that doesn’t have to be returned to the library or even shared with siblings.”6 Ownership of a new book conveys a sense of value, and toward that end, each book donated through the Books from Barristers program will not only be given to a child, but will also have a bookplate with a place for the child to write his or her name. The third principle, that the child will have the opportunity to choose from a selection of books, will cause the child to feel invested in the book because he or she has had a hand in selecting it. This year, we have tentatively selected five books for the program. They are:

Woodrow the White House Mouse, by Peter Barnes and Cheryl Barnes

House Mouse, Senate Mouse, by Peter Barnes and Cheryl Barnes

D is for Democracy, by Elissa Grodin

If I Ran for President, by Catherine Stier

If I Were President, by Catherine Stier

Young Living Essential Oils, LC v. Marin: Clarifying the Limited Scope and Content of the Implied Covenant of Good Faith and Fair Dealing

by Cory A. Talbot and J. Derek Kearl

“[S]hrouded in mystery.”1 “[F]rustratingly elusive.”2 “[I]nexact.”3 Each phrase has been used to describe the implied covenant of good faith and fair dealing. In general terms, this implied covenant imposes a duty on contracting parties to act consistently with the parties’ agreed upon common purpose and to not do anything to destroy or injure the other party’s right to receive the benefits of the contract. See Oakwood Vill. LLC v. Albertsons, Inc., 2004 UT 101, ¶ 43, 104 P.3d 1226; St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 200 (Utah 1991). The doctrine “is based on judicially recognized duties not found within the four corners of the contract,” Christiansen v. Farmers Ins. Exch., 2005 UT 21, ¶ 10, 116 P.3d 259, and, although it has long been a part of Utah law, continues to pose difficulties to contracting parties, practitioners, and judges alike.

by Barry Scholl and Kevin Timken

A new client makes an appointment to discuss an employment issue with you. When you talk, she tells you that she works in the warehouse for a widget distributor. Recently, right before the end of the prior fiscal year, her warehouse received an unusually large shipment of widgets from a public company. She heard her boss tell the public company’s auditor that he requested the shipment and that the widgets were not returnable – but she also heard the public company’s president thank her boss for accepting the unusual shipment and assure him that as soon as the audit was completed, he could return all of the widgets he had not sold. Her boss owns the company she works for, and when she mentioned the difference between what he told the auditor and what the agreement really was, he threatened to fire her.

The Civic-Minded Lawyer
by Keith A. Call

In the summer of 1988, the lawyers at Fabian & Clendenin were kind enough to give me a job as a court runner. I now grin to think about how genuinely exciting it was for me, a small-town son of a country lawyer, to deliver important documents – complaints, thick motions, and even interrogatory answers – around town to court and other law firms. A few years later, I experienced an even more exhilarating feeling when I first signed my name as a bona fide lawyer on an actual complaint that was about to be filed in the Maricopa County Superior Court.

by Keith A. Call

Like most people, I have a love-hate relationship with my e-mail. I love the convenience of communicating with groups of people at once, especially at irregular times. But I absolutely hate how e-mail tries to take over my law practice and my life.

A friend recently told me that he was on the verge of “e-mail bankruptcy.” He was so overloaded with e-mails that he was simply going to delete all of them – read and unread. Anyone who had a message they really wanted him to read was going to have to send him a new “claim.”

by Jeffrey D. Gooch & Megan J. Grant

Introduction
In 2005 the Utah Supreme Court reversed a widely held belief – that loss of chance was not a viable tort theory – with its holding in Medved v. Glenn, 2005 UT 77, 125 P.3d 913. While the court’s decision and language in dicta could be understood to mean that loss of chance always was a viable theory, the court nevertheless declared that its holding in Medved “should be applied only prospectively,” in order to “avoid the substantial injustice that may otherwise flow from [the decision].” Id. at ¶ 17.

by Vicki M. Baldwin & J. Robert Malko

Introduction
Within the framework of revenue requirement regulation, the principle of used and useful appears to have been somewhat forgotten in today’s world of least cost planning and future test periods. However, the used and useful principle has a relatively long history in the regulation of electric utilities and there is little, if anything, to suggest that it has been legally overruled in Utah.

The concept that capital assets must be physically used and useful to current ratepayers before those ratepayers can be asked to pay the costs associated with them is a fundamental principle of utility regulation. This means that the assets must be commercially in-service, title of ownership has to have passed to the utility,1 and the assets have to have become a productive source of value. This is what triggers capital recovery of the engineered, furnished, and installed cost of the asset. Failure to adhere to the principle of used and useful in the physical sense leads to a mismatch between the timing of capital cost recognition and the income effect that occurs when an asset is put into service. It also leads to a mismatch between the ratepayers who are paying for the service versus the ratepayers who are receiving the service.

by Andrew E. Draxton

The Exclusive Remedy Provision (“Provision”) of the Utah Workers’ Compensation Act (“WCA”) is not so exclusive. The Utah Supreme Court previously recognized the validity of a claim for an intentional tort notwithstanding the Provision. See Helf v. Chevron, 2009 UT 11, ¶ 18, 203 P.3d 962 (citing Bryan v. Utah Int’l, 533 P.2d 892, 894 (Utah 1975)). Despite the exception discussed in Bryan, prior to Helf, workplace injuries short of intentional torts seemed to remain the sole province of the WCA claims process. The longstanding litmus test for a Workers’ Compensation case required: (1) an employee, (2) injured, (3) in the “course of,” or because of, his or her employment. See Utah Code Ann. § 34A-2-105(1) (2011); see also Bryan 533 P.2d at 893. But then the court decided Helf.

by Judge Paul C. Farr

Justice Courts and the Public
For the majority of Utah residents, their contact with the court system, if any, will be with a justice court. In fiscal year 2010, the district courts throughout the state received 225,438 case filings. See Utah State Courts, http://www.utcourts.gov/stats/files/2010FY/district/0-Statewide.pdf . During the same time period the justice courts received 584,909. See id., http://www.utcourts.gov/stats/files/2010FY/justice/0-Statewide.pdf . Granted, the cases being filed in justice courts are not as complex as those in the district court, and certainly the stakes are not as high. However, by volume, Utah’s justice courts see over twice as many cases (i.e., individuals) as the district courts. A Utah resident that finds him or herself in court is more than twice as likely to appear before a justice court judge as he or she would before a district court judge.1

by Gabriel White

Practice in a Flash is designed to support lawyers moving into solo or small firm practice because of economic circumstances that block traditional avenues of legal employment. It is an electronic platform that will provide new lawyers with basic practice forms, entry level CLE, and other helpful information on how to start and manage a law firm. Once the electronic program is released in the spring of 2012, it will give new lawyers advice on topics such as how to rent and open an office, hire staff, and market themselves to public. Adapted from a similar program in Texas, Practice in a Flash will give young attorneys important resources that can bridge the gap between a law school education and advice from colleagues and mentors.

by Jared Hales

Editor’s Note: This article is the first in a series summarizing CLE presentations given as part of the YLD’s “Practice in a Flash” program, which is introduced in this edition of the Utah Bar Journal beginning on page 59.

Many young attorneys who are looking to establish their own clientele will find opportunities to represent a client in a divorce. Even if you do not have any desire to handle a divorce case, just having people know you are an attorney means you will likely be asked by a family member, friend, or stranger you meet a question about divorce. Each divorce case is very fact specific and how the statutes and case law are applied can vary from district to district. It is important for every young attorney representing a client in a divorce to be well versed in the applicable statutes and case law. The purpose of this article is to provide young attorneys with a basic overview of the most common divorce issues and applicable statutes.

by Rodney G. Snow

AUTHOR’S NOTE: I gratefully acknowledge the considerable assistance and input from Sarah L. Campbell, a Millennial at the Clyde Snow firm. The dialogue and events described in this article are based on personal experiences working with the under-30 demographic.

The Millennial generation,2 which has been defined broadly as those born between 1980 and 2000, has emerged in the legal workplace as our associates and employees. They will soon be taking on partnership and managerial roles. As a group, these Millennials are bright, optimistic, yearn for meaning and work-life balance, and have an unprecedented ability to use technology and multi-task. Technology is often thought to be the perfect replacement for the long hours to which Boomers are accustomed. Millennial traits often create conflict with other groups who currently make up the American workforce – Baby Boomers (1943-60) and Generation Xers (1961-81). The differences between generations become especially apparent in work and communication styles. Although the Millennials have been named the “toughest generation to work with,”3 my experience is they add a dimension to the workplace that is beneficial. I’ve found them to be productive and energetic. And working with them can produce excellent results for clients. I’m not implying there aren’t some downsides to the demographic. There are a few. Focusing on the positives seems to be the best approach for developing a good working environment and well-trained associates.

The stark reality of these generational differences hit home recently when I was looking for an associate at the office to help me with a project on a particular Friday. It was a Boomer “Red Alert.” Not one of the ten could be found. Was it possible they were all sick or all taking vacation on the same day? (Probably.) I couldn’t imagine, however, they all coincidentally left work early (it was only 1:30 p.m.). The following week I discovered the reason for the missing bodies. A “Training Day” at Willard Bay – better described as the associates skillfully maneuvering a Friday afternoon water ski trip on a partner’s open-bow Sea Ray boat. The primary conspirator in the activity was a fourth-year associate who has now designated herself the firm recreational director. If your firm doesn’t have one, watch out! Millennials value rest and recreation, better known as the “killer lifestyle,” first coined by Generation X. I bet you already knew that!

by Judge Kate A. Toomey

The current iteration of the Code of Judicial Conduct1 provides that “A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.” Utah Code of Jud. Conduct R. 2.15(B). And it exhorts judges who “receive[] information indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct” to “take appropriate action.” Id. R. 2.15(D). The Comment following the rule reminds us that “[i]gnoring or denying known misconduct among….members of the legal profession undermines a judge’s responsibility to participate in efforts to ensure public respect for the justice system.” Id. R. 2.15, comment [1]. On the other hand, if the judge merely has information indicating a substantial likelihood of misconduct, the appropriate action might include “communicating directly with the lawyer who may have committed the violation or reporting the suspected violation to the appropriate authority or other agency or body.” Id. R. 2.15, comment [2].

by Adam Alba

Introduction

Dozens of law enforcement groups in several states have recently outfitted police with handheld iris and face scanners to aid officers in quickly identifying a person. See Emily Steel & Julia Angwin, Device Raises Fear of Facial Profiling, The Wall St. J., July 13, 2011. The Mobile Offender Recognition and Information System (“MORIS”) is a device that attaches to an iPhone and allows an officer to snap a picture of a face from up to five feet away, or scan a person’s irises from up to six inches away. See id. The device performs “an immediate search to see if there is a match with a database of people with criminal records.” Id. Though the device isn’t yet in police hands in Utah, the manufacturer of the handheld scanner has already placed one of its less portable scanners in the Davis County Jail to prevent the mistaken release of inmates. See Melanie S. Welte, Iris Scans May Prevent Mistaken Release of Inmates, Deseret News, Feb. 28, 2010. Use of the handheld device in this state raises constitutional concerns related to search and seizure law that no court in Utah has addressed. Attorneys and judges in the state should be ready to confront these issues if and when they arise.

by D. Scott DeGraffenried

Utah’s Mechanics’ Lien Law comprises a technical area of the law involving many requirements and deadlines. The nuances of Utah’s Mechanics’ Lien Law have caused attorneys to wake up in the middle of the night hoping they complied with certain steps or did not miss one of the many imposed deadlines. Just when construction law attorneys thought we had the system mastered, the Utah Legislature made sweeping changes to Utah’s Mechanics’ Lien Law. See Utah Code Ann. §§ 38-1-1 to 38-1-37 (Supp. 2011). During the 2011 general session, the legislature passed two bills, House Bills 115 and 260, that created two types of mechanics’ liens. H.B. 115 created liens for preconstruction services, which are services provided before actual construction commences, such as design, architectural, engineering, and surveying work. H.B. 260 applies to liens for construction services, which are tasks performed in the physical construction of a project. Both bills are now in effect. This article is limited to H.B. 115. The purpose of this article is to explain some of the motivations behind the bill and introduce the mechanics (no pun intended) of the newly-created preconstruction service liens.

The Push for H.B. 115

Utah’s previous mechanics’ lien statutes gave lien rights to preconstruction service providers. The problem, however, has been defining the priority of their liens. Mechanics’ lien litigation often comes down to one issue: whether a mechanics’ lien has priority over other encumbrances on a particular piece of property. This dispute is often referred to as one of “broken priority.” The dispute usually involves the mechanics’ lien claimants and the bank that holds a trust deed on the property. Under Utah’s pre-2011 statutes, all mechanics’ liens related back to and took effect as of the date visible construction work commenced on a project. This triggering point is known as the relation back doctrine. If visible work commenced before another encumbrance was recorded, all the lien claimants had priority over the later encumbrance.

The problem for those performing preconstruction services was that they were always at the mercy of construction commencing. An architect could spend months designing a project, performing significant services. If actual construction never commenced, however, no date was established for the architect’s lien priority.

Similarly, if a preconstruction service provider performed services before a trust deed was recorded but construction began after the recording of the trust deed, the provider’s lien fell in with the rest of the lien claimants. The lien would be deemed inferior to the trust deed. Simply put, preconstruction service providers were often relegated to an inferior priority position even though they performed their services early in the project.

by David K. Isom

This paper examines the impact of location technology upon civil and criminal legal processes in the United States, in two parts: Part 1 summarized the location-based digital technology that has recently become ubiquitous and readily accessible. This Part 2 explores the important legal and ethical issues that location-based electronic discovery (LBED) raises for civil and criminal judicial proceedings.

Part 2: Location-Based Law, Ethics and Privacy

Why Location Matters in Civil Litigation and Law Enforcement

by Tanya N. Lewis

Bankruptcy Basics

The federal government retains exclusive jurisdiction to administer the United States Bankruptcy Code, which provides relief for financially distressed individuals or corporations to obtain relief from their creditors. Most personal bankruptcies in the United States are filed under Chapter 7 or Chapter 13 of the United States Bankruptcy Code. Bankruptcies filed and granted under Chapter 7 (usually called “no-asset bankruptcy”) typically provide debtors with a complete liquidation of their debts and complete relief from their creditors. When a federal bankruptcy court grants relief under Chapter 7, the debtor’s obligations are paid out of the bankruptcy estate’s existing assets, and most debts are usually wiped away. The case is then said to be “discharged.” Bankruptcies filed under Chapter 13 place debtors in a repayment program, where they are obligated to repay all or part of their debts, usually out of future income from employment or other sources. When a bankruptcy court approves a Chapter 13 debtor’s proposed repayment plan, the bankruptcy case is said to be “confirmed.” Repayment plans usually range from thirty-six to sixty months.

by Joe Stultz

The Utah Supreme Court has approved a number of substantial amendments to the Utah Rules of Civil Procedure. These amendments are effective for cases filed on or after November 1, 2011. The purpose of the amendments is to achieve the just, speedy, and inexpensive determination of every action by limiting parties to discovery that is proportional to the stakes of the litigation, curbing excessive expert discovery, and requiring the early disclosure of documents, witnesses, and evidence that a party intends to offer in its case-in-chief. What follows are some of the highlights of the changes.

by Joelle Taylor

Take a moment and ask yourself a very important career question, “Why have I not taken NALA’s Certified Paralegal exam?” NALA’s voluntary Certified Paralegal/Certified Legal Assistant exam is a nationally recognized exam that tests the skills and knowledge of paralegals through five sections for the federal system and laws including Communications, Ethics, Legal Research, Judgment & Analytical Ability, and Substantive Law. The Substantive Law section is further divided into five subsections. The examinee must take General Law and chooses four out of nine available legal subject. The available choices are Litigation, Criminal, Family, Estate Planning/Probate, Administrative, Bankruptcy, Contracts, Business Organization, and Real Estate. NALA reviews the test questions regularly and updates them to fit new laws.

by J. Frederic Voros, Jr.

After nearly two decades as an appellate lawyer, I was appointed to the Utah Court of Appeals. I now see the appellate process from the opposite point of view. I went from a producer of briefs and a consumer of opinions to a consumer of briefs and a producer of opinions; from a persuader to a target of others’ persuasion; from interrogatee to interrogator in oral argument. This shift in perspective has raised to my level of consciousness this thought: to persuade a judge, as to catch a thief, you must think like one.

by Editor-in-Exile, Learned Ham

Years ago, a friend explained to me his driftwood theory of life. It was his opinion that planning a life is a waste of valuable time that could be much better spent playing pool. I think there was more to it than that, but that was the bottom line. He has since drifted onto the bench and would probably appreciate it if I didn’t mention his name. I have recently drifted to Connecticut. In-house practice lends itself well to the driftwood theory.

by Robert S. Tippett

It is common for the settlor or the beneficiaries of a trust to ask a family member, a family friend, or a close family advisor, such as an accountant, to serve as trustee. The individual may have substantial experience serving as a fiduciary, or may have no such experience at all.

When counseling an individual fiduciary, the attorney should ensure that the client has a solid understanding of the powers and responsibilities associated with the job. In some cases, this may mean explaining to the client what a trust is and how it works. If the client has experience serving as a trustee, the attorney’s role may be one of impressing on the client the gravity of the client’s responsibilities. This article describes the basic points that an attorney should bring to the attention of an individual client who serves, or is considering serving, as a trustee.

by David K. Isom

2010 was the year that geolocation technologies such as mobile social networks and check-ins exploded into general use and awareness in the United States. In the final quarter of 2010, more mobile phones (approximately 100 million) were sold worldwide than PCs (approximately ninety-two million) for the first time. See Dylan McGrath, IDC: Smartphones Out Shipped PCs in Q4 (Feb. 9, 2011, 7:05 PM), http://www.eetimes.com/electronics-news/4213010/IDC--SmartPhones-out-shipped-PCs-in-Q4. This article examines the impact of location technology upon civil and criminal legal processes in the United States, in two successive parts: This Part I summarizes the location based digital technology that has recently become ubiquitous and readily accessible. Part II explores the important legal and ethical issues that this technology raises for civil and criminal judicial proceedings.

Client Communication

by Keith A. Call

George Bernard Shaw once said, “The greatest problem of communication is the illusion that it has been accomplished.”1 Communication, it is safe to say, is one of the most difficult life skills to master. Perhaps just as difficult as the act of communicating is the fact that the way we communicate exposes our character, for good or for bad. Relationship coach Matt Townsend teaches that “the real power of communication comes not from the words being spoken or the flare of their delivery. The real power is always found in the character and integrity of the author behind the message.”2

by Lorie D. Fowlke

The Utah State Legislature has been the focus of much attention for good and ill. Local newspapers and pundits frequently criticize the legislature for its conservative position on everything from gay marriage to private property rights. See Rosemary Winters, Anti-gay Bias Pervasive in Utah, Report Says, Salt Lake Tribune, June 19, 2011; Allen Greenblatt, Real Power (Utah Real Estate Lobby), Governing Magazine, June 2008. The national press also gives Utah’s legislature its share of attention, but more often it is for things like “best managed state,” see Susan Struglinski, Utah No. 1 for Governing, March 4, 2008, Deseret News, Mar. 4, 2008; or one of half a dozen states with a viable public employee pension plan. See Frank Keegan, Utah Wins Public Pension Reform Award, but Still at Risk (June 2, 2011), http://watchdog.org/9627/utah-wins-public-pension-reform-award-but-still-is-at-risk/.

by Brooke Ashton

“In fair weather prepare for foul.”– Thomas Fuller

When I was in my third year of law school at the University of Kentucky, Hurricane Katrina hit the gulf coast. I remember watching on TV thousands of people being evacuated from their homes; helicopters air lifting stranded citizens from their roofs; stadiums filled with cots to provide some shelter to now homeless individuals. Everyone wanted to help or provide some sort of aid, either money, time, or donations.

Imagine graduating from law school only to be offered a position as the typing pool supervisor. That is exactly what happened to Elaine Larsen in 1963. Or imagine you are riding up the elevator with opposing counsel who openly discusses the merits of his case because the fact that you are a female attorney is incomprehensible. After the elevator ride, Connie Holbrook had the upper hand during courtroom introductions when the embarrassed opposing counsel member blurted, “You can’t be an attorney.”

by Chris Glauser

In March 2011, the United States Supreme Court resolved a circuit split regarding employer liability for the discriminatory acts of a supervisor who influences, but does not make, a challenged employment decision. In Staub v. Proctor Hospital, 131ÊS.Ct. 1186 (2011), the Supreme Court held that an employer is liable for the discriminatory acts of a supervisor who does not make the final employment decision if the acts of the supervisor are intended to cause an adverse employment action and are a proximate cause, in the traditional tort-law sense, of the adverse action. See id. at 1191-94.

by Alan L. Edwards

It happens to almost all of us at some point. For you it may have been in law school, sitting long hours in the library instead of playing Frisbee on the quad. Or spending hour after billable hour at that high-powered law firm, wondering how to tell your spouse youd be home late again.

The thickening torso. The loss of muscle tone. As Paul Simon aptly put it, Why am I soft in the middle now? The rest of my life is so hard.

For some it was quick up twenty pounds by your first bonus check. For others it was more gradual. But for almost all of us the body demons came and stayed.

by Keith A. Call

What causes the hometeam advantage in sports? Some have suggested various factors, including lack of travel fatigue, the ability to stay at home rather than at a hotel, familiarity with the home field or home court, the actual or psychological advantage of friendly crowd noise, and environmental factors such as weather and altitude.

by Tanya N. Lewis

Introduction

In the course of a civil litigation case, parties are required by rule to disclose documents in their initial disclosures and, if served, in responses to requests for production. See Utah R. Civ. P. 26, 34. But what about obtaining documents from individuals and entities who are not parties to the case? The drafters of the Federal Rules of Civil Procedure, upon which the Utah Rules of Civil Procedure are based, anticipated a need on the part of civil litigants for documents within the scope and control of witnesses and other third parties. Utah Rule of Civil Procedure 45 was based on that need. See id. R. 45.

by Judge Monroe G. McKay

EDITORS NOTE: The following remarks were made by Judge McKay on April 29, 2011, at the annual Law Day luncheon, sponsored by the Young Lawyers Division. This years Law Day theme was The Legacy of John Adams, from Boston to Guantanamo.

The Tumbuka people of southeastern Africa advise us that even if we are so poor we are reduced to eating pumpkin seeds, we should always share some with a neighbor. What follows is a share of my pumpkin seeds.

by Angelina Tsu

Today I attended my three-year-old cousin, SophieÕs, dance recital at the Rose Wagner Performing Arts Center. When the stage lit up and it was SophieÕs turn to dance, she just stood there. At first, it seemed like Sophie was just confused by the lights; but soon Sophie began to cry and it quickly became apparent that it was more than a lighting issue. Before the routine ended, Sophie was a sobbing heap of three-year-old girl sitting on the floor. My heart went out to her and I started to laugh. I am embarrassed to say that I laughed so hard I cried.

by Judge Dale A. Kimball

Most litigators, particularly those handling civil cases, do not try many cases – at least I did not when I was in practice. I do not think that my experience was atypical. Some civil cases are dismissed on Motions to Dismiss. Some civil cases are ended by the granting of Motions for Summary Judgment. Many cases are settled. Still others are tried to the Court in a bench trial or to an arbitrator or arbitrators, which process is now in many respects akin to a bench trial. Occasionally, of course, lawyers try cases in front of juries. However, compare the frequency of lawyers trying jury cases with the experience of a trial judge. Judges have much more experience with juries and jurors than most lawyers. Looking back now over somewhere between 150-200 jury trials as a Judge, I can claim some expertise on the views of jurors.

by David C. Castleberry

The statute of limitations is a deadline no attorney wants to miss. Not only does missing the statute of limitations destroy a client’s ability to seek redress in a lawsuit, it also exposes an attorney to a claim for legal malpractice.

by Richard A. Kaplan

I often recall a business school (“B” school) class years ago when a visiting industrial psychologist spoke to us about taking Rorschach tests. The idea was to prepare us for interviews. That was when the then “Personnel” departments of major corporations had begun to rely heavily on psychological testing to evaluate job candidates, and we were almost certain to be asked to bloviate on ink blots and to take the Minnesota Multiphasic Personality Inventory (MMPI) and other standardized tests intended to predict job performance and personality.

by Keith A. Call

I’m an admitted Facebook sleuth. I have a Facebook profile, but you won’t learn much about me there. You won’t see a profile picture. You won’t find my high school graduation date. And you definitely won’t learn anything about my favorite movie, novel or junk food. I’m on Facebook for one reason and one reason only: to spy on my teenage daughter.

by Janise K. Macanas

It’s a good thing that Vivianne Elizabeth Api Mbaku was a track and field athlete at West High School, eight years ago here in Salt Lake City, Utah. Nowadays, Vivianne, a second year law student at the S. J. Quinney College of Law, is an energetic and enthusiastic volunteer in the migrant worker division of the Utah Legal Services, clerk at the law firm of Richards Brandt Miller Nelson, and currently serves as President of the S. J. Quinney Minority Law Caucus. Always searching for ways to broaden her involvement in programs that serve racial and ethnic communities, this twenty-three year-old law student from Layton travels to Panama, Costa Rica, and Oaxaca, Mexico to volunteer for organizations that help her stay connected to the Latin American community she has grown to love and passionately contribute to even while she is busy pursuing her higher education.

As the child of an African immigrant, Vivianne explains that she has always had a unique perspective of the world and sensitivity to the inequalities within. For that reason, Vivianne jumped at the unique opportunity this past summer to volunteer at Utah Legal Services, where Vivianne worked primarily on human trafficking cases. Vivianne, who has a dual Bachelor of Arts Degree in Politics and Latin American Studies from Scripps College, California and is fluent in Spanish, explains that she was in daily contact with recent immigrants and those that had been illegally trafficked into Utah, most of whom were from Latin America.

PUBLIC REPRIMAND

On January 27, 2011, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Ned P. Siegfried for violation of Rules 1.5(a) (Fees), 1.8(a) (Conflict of Interest: Current Clients: specific Rules), 1.15(d) (Safekeeping Property), 1.15(d) (Safekeeping Property), 5.1(c) (Responsibilities of Partners, Managers, and Supervisory Lawyers), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

by Mark W. Dykes

Background

If you negligently injure someone, your liability insurer, subject to policy terms and applicable law, will defend you against a lawsuit if you are sued, and indemnify you against any resulting judgment. The insurer will also decide whether to settle with the plaintiff.

by Tanya N. Lewis

Every attorney knows what it means to take the deposition of an individual, whether the deponent is a party to civil litigation or a non-party witness with knowledge pertaining to an issue in the case. But what about an organization? Information about how a company or organization conducts its operations, hires and trains its employees, handles its accounting and finances, or performs safety inspection may be crucial to proving either liability or damages, depending on the case. How can a party (whether a plaintiff or a defendant) obtain valuable, relevant testimony on these or other subjects from what may seem like a faceless entity?

by Keith A. Call

Have you ever experienced that sick, sinking feeling that comes from realizing you just blew an important deadline or hearing date? The kind where you felt like losing your lunch because you just messed up a case? Badly? If so, you are apparently not alone. The 2010 Annual Report of the Office of Professional Conduct reports that a surprisingly high percentage of OPC complaints are the result of attorneys missing court appearances. See Billy L. Walker, Utah State Bar, Office of Professional Conduct, Annual Report: August 2010, at 18, available at http://www.utahbar.org/opc/Assets/2009_2010_annualreport.pdf.

by Craig E. Hughes

This article explains how basic client engagement procedures will help you avoid giving away your time. The article emphasizes how engagement procedures can increase efficiency, profitability, and professional happiness.

I discuss these engagement procedures in the context of two strangely similar, time-wasting experiences I have encountered. The experiences were separated by a number of years, but both involved many of the elements that cause an attorney to deviate from basic engagement procedures.

by Blakely Neilson Denny

“The Clinic was the first time I had taken any steps to fight for my rights and my kids’ rights. The Clinic gave me courage, and I felt I could stand up for what was right. I’m glad the Clinic was there.” – Family Law Clinic Client

The Family Law Clinic has been serving low-income family law clients proceeding pro se for the past six years, and the demand for services continues to increase. For the month of March 2010, a record 124 clients attended the twice-monthly clinic at the Matheson Courthouse. The Clinic serves two critical needs in the community. First, it offers support and advice to litigants facing family law issues who are unable to afford an attorney. Second, it gives law students real-world experience in the legal field. A study being conducted by Professor Linda Smith of the University of Utah S. J. Quinney College of Law has found that not only does the Clinic offer valuable advice and a practical learning environment, but it is effective at doing so. Over 95% of pro se clients surveyed between September 2009 and June 2010 reported being satisfied with the services they received after their consultations at the Clinic.

by Judge Bruce S. Jenkins

EDITOR’S NOTE: The following remarks were made by Judge Jenkins at the Utah State Bar Ethics School at the Law and Justice Center on January 19, 2011.

by Angelina Tsu

From the very beginning of my legal career, I have been fascinated by, or perhaps even obsessed with, Rule 11 of the Federal Rules of Civil Procedure. As a first-year associate, I lived in constant fear of being sanctioned under Rule 11. Of course, the fear was completely irrational. As a junior associate at a large firm, my writing did not see the light of day until it had been carefully reviewed by my supervising attorney, the department chair, the firm’s management committee, my assistant, her assistant, and our firm’s runner. Having all of these people review my work however, did not save me from many sleepless nights spent worrying about being personally sanctioned for violating Rule 11.

by Norman H. Jackson and Lisa Broderick Thornton

Editor’s Note: This article is the fourth and final installment of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal. You can find Judge Jackson’s two prior Appellate Review articles, as well as the entire current article, at http://utahbar.org/barjournal/Utah_Standards_of_Appellate_Review.html.

by Matt Connors and Robert P.K. Mooney

This article is meant to convey the similarity of education, knowledge, skills, and training used in valuing a business with those needed for estimating lost profits a business may sustain. This skill set is held by a niche group of professionals, typically accountants, who have training and experience in matters related to business valuation and expert witness services. Qualified experts need to have a solid understanding of business valuation, accounting, finance, and other principles that are generally accepted in the expert community and need to use reliable principles and methods to ensure the highest level of client service and to have their work accepted by courts.

by Jeffrey D. Steed

In what has become a near-landmark publication, Julie K. Kwon and Daniel J. Loewy, two senior analysts from Bernstein Global Wealth Management, published their article, GRATs: On a Roll, in the June 2005 issue of Trust & Estates Magazine. See Julie K. Kwon & Daniel J. Loewy, GRATS: On a Roll, Trusts & Estates, June 2005, at 33. In their article, Kwon and Loewy analyze the “probabilities of success” when comparing a rolling grantor-retained annuity trust (“GRAT”) to other investment-driven gifting strategies for large estates, including a sale to a defective grantor trust (“DGT”). See id. Using a highly advanced wealth forecasting analysis model that simulated over 10,000 capital market scenarios across a wide spectrum of asset classes, Kwon and Loewy determined that, in almost all cases, a rolling GRAT strategy statistically outperforms other popular strategies for increasing the likelihood of successful wealth transfer. See id. According to Kwon and Loewy, the success of rolling GRATs is largely due to the ability to significantly decrease the inherent market risk associated with investment-driven estate planning strategies while, at the same time, capturing the upside of market volatility. See id. In other words, the ability to lock in wealth transfer gains from previous years in a rolling GRAT strategy has a greater probability to outweigh any advantage from lower interest-rate benefits and the avoidance of all mortality risk generally provided by a sale to a DGT.

by Patrick Tanner

Introduction

During the last session, the Utah Legislature made significant changes to the statutes governing medical malpractice claims in Utah. Senate Bill 145, the Medical Malpractice Amendments, has three major aspects: First, it replaces the escalating cap on non-economic damages with a fixed cap; second, it limits the circumstances in which an “ostensible agency” claim may be asserted; and third, it adds an affidavit of merit requirement to the prelitigation panel hearing process. While the full implications and practical effects of these changes will become clear only as new cases are litigated, practitioners will need to consider the changes in evaluating and preparing to bring and defend medical malpractice claims.

by Zachary W. Derr

After my swearing-in ceremony at the Salt Palace, I received congratulations from some of the older members of the Bar. We spoke about the difficult economic times and pro bono opportunities for new lawyers. The conversation then turned to thoughts on the New Lawyer Training Program (“NLTP”). Although I did not have much to say, I specifically remember their enthusiasm about the program; they were anxious to see it implemented. Initially, I was eager to finish the requirements and move on with being a lawyer. However, the NLTP has been a fantastic learning experience and aided me in setting up my own law practice.

by Angelina Tsu

In 2010, the Utah State Bar conducted a Member Survey. The survey asked members to, among other things, comment on the Bar’s pro bono projects. The comments ran the spectrum of extremes from mildly funny to truly disturbing. Some of the more colorful comments appear below.

by Norman H. Jackson and Lisa Broderick Thornton

Editor’s Note: This article is the third installment of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal.

D. Challenges in Specific Practice Areas

1. Challenges in Divorce Cases

a. Challenging Findings of Fact

(i) Clearly Erroneous Standard

Appellate courts give great deference to the trial court’s findings of fact in divorce cases and will not overturn them unless they are clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733; Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 9, 176 P.3d 476; Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171. A finding of fact will be adjudged clearly erroneous if it violates the standards set by the appellate court; is against the clear weight of the evidence; or the reviewing court is left with a definite and firm conviction that a mistake has been made, although there is evidence to support the finding. See Kimball, 2009 UT App 233, ¶ 14; Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 10 n.5, 19 P.3d 1005; Kelley, 2000 UT App 236, ¶ 18.

by Michael A. Worel and David G. Wirtes, Jr.

Introduction

Litigants are allowed to use peremptory strikes to control the composition of their juries, but the Equal Protection Clause of the Fourteenth Amendment prevents them from eliminating potential jurors based solely on race, and more recently gender. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); J.E.B. v. Alabama, 511 U.S. 127, 129 (1994) (holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality”). A party can raise a “Batson challenge” to contest a peremptory strike that it suspects is motivated solely on the basis of one of these characteristics. A Batson challenge is the product of the criminal context and was traditionally used by defendants to object to the prosecutor’s mode of jury selection. See, e.g., Powers v. Ohio, 499 U.S. 400 (1991). This changed in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), when the Supreme Court explained that private litigants are prohibited from making racially discriminatory strikes as well. See id. at 630. While Utah courts have yet to review a civil case involving a Batson challenge, plaintiffs commonly use them in federal court, and a few state courts have addressed them as well. See, e.g., Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1215 (10th Cir. 2002); accord Felder v. Physiotherapy Assoc., 158 P.3d 877, 891 (Ariz. Ct. App. 2007); Donelson v. Fritz, 70 P.3d 539, 541 (Colo. Ct. App. 2002); Jacox v. Pegler, 665 N.W.2d 607, 612-13 (Neb. 2003); Zakour v. UT Med. Grp., 215 S.W.3d 763, 767 (Tenn. 2007). Batson challenges are an effective means for parties to prevent improper manipulation of their juries and thereby ensure a level playing field. While the focus here is on the plaintiff, the following principles are equally applicable to civil defendants. This article describes the steps required to raise a Batson challenge and highlights the factual circumstances under which they have been most successful, both in civil cases and in Utah criminal cases.

by Michael L. Monson

Since as early as the 1930s, regulators and courts have struggled with how to protect individual investors in private offerings of securities while still allowing sufficient investment in private offerings to sustain the growth of start-up and other young companies – companies which have historically been responsible for much of the job growth in the United States. Eventually, the Securities and Exchange Commission (“SEC”) came up with the idea of “accredited investors.” Accredited investors are individuals or other entities that have sufficient wealth not to need the protection of federal and state securities laws to the same extent as non-accredited investors.

by Jeffrey D. Eisenberg

Unlike me, Bob did not waste any words. He once wrote me a response to a settlement demand that read:

Dear Jeff,

The answer is: No.

Best Regards,

For many years, Bob and I knew each other professionally, but we weren’t close friends. Then, about five years ago, Bob asked me to represent him in a legal dispute. Over the next month, Bob and I spent many hours sitting on my deck, talking about whether he should or shouldn’t file a lawsuit. There was a lot of money at stake, but over time it became clear to both of us that Bob did not really care about the money. He cared about how he’d been treated. He felt wronged, and Bob was not one to walk away from a fight.

by Keith A. Call

I was lucky enough to spend a warm evening last summer sitting next to one of the Giants of our Bar watching the Bees play baseball at Spring Mobile Ballpark. As we enjoyed the game, my mentor and friend told me about a large case involving several lawyers in town who retained a number of experts from various cities, some of which had Major League Baseball teams. The lawyers all agreed that, whenever practical, they would schedule the experts’ depositions so they could attend a baseball game together when they visited those cities. And that is exactly what they did. I marveled at this story. It seemed remarkable that these lawyers would battle it out in depositions during the day, and then spend the evening eating hot dogs and watching the Cubs together in a far-away city.

by Michael Melcher

Reviewed by Teresa L. Welch

If you are faced with the Godzilla of work, don’t battle it alone. Enlist Rodan to even out the contest.

Michael Melcher, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction, 30 (2007).

If you have ever asked yourself whatever possessed you to become an attorney, I recommend Michael Melcher’s book, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction. Whether you are just starting out, or you need to reenergize a lackluster career, this book, released in 2007, contains timely advice. Now that the limping economy has resulted in increased case loads and slashed salaries for attorneys, your personal and work satisfaction are more important than ever. Melcher’s book provides inspiring ideas and practical exercises for attorneys to help us achieve these goals. Melcher states that if we spend twenty minutes a day reflecting on our career, as opposed to in our career, we can achieve authentic professional satisfaction.

by Norman H. Jackson and Lisa Broderick Thornton

Editor’s Note: This article is a continuation of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal.

by Will Fontenot

Almost all criminal defendants are offered plea bargains, which present defendants with the choice of taking a case to trial or pleading guilty to a reduced charge and a lighter sentence. Defendants almost never consider the civil consequences of pleading guilty to a crime. Even without these civil considerations, the decision to accept or reject a guilty plea can be agonizing. When it is factored in that the guilty plea could also cause a defendant to lose all of his worldly possessions in a civil lawsuit, the decision to plead guilty can be excruciating.

by Steven Rinehart

As the number of cases on district court dockets swell, so too does the temptation of the legislature and the judiciary to vest increasing amounts of power in small claims judges, who are usually judges pro tempore (judges serving temporarily in lower courts). With the jurisdictional limit on damage awards recently increased to $10,000, exclusive of court costs and interest, Utah small claims courts have the fifth highest small claims jurisdictional limit in the United States. See FreeAdvice.com, Small Claims Court Information and Links, http://law.freeadvice.com/resources/smallclaimscourts.htm (last visited Aug. 19, 2010). The overloaded district court docket, however, is only the most obvious of many reasons for attorneys to consider using small claims courts, even in cases involving controversies much higher than $10,000.

by Keith A. Call

Whenever you consult with a prospective client and decline the representation (or are not hired), there are several things you should consider and do. Here is a list of three of the most important things you should remember.

by Heather Finch

As the new Chair of the Paralegal Division, I am pleased to introduce to you the new officers and directors of the Paralegal Division for 2010-2011. I am honored to be working with such a wonderful group of professionals and am looking forward to the coming year. The Paralegal Division works hard to provide affordable and free Continuing Legal Education seminars, professional networking, job postings, community service opportunities, Bar Journal articles relevant to the Paralegal profession, Paralegal Day events, and many other benefits. I would like to encourage all of you to get involved with the Paralegal Division. There are leadership opportunities and many committees that could always use your help.

by Norman H. Jackson and Lisa Broderick Thornton

PREFACE TO THE THIRD EDITION: 2010/2011

This new edition of Judge Jackson’s Utah Standards of Appellate Review revises and updates two prior Utah Bar Journal articles. The first was designated as a Collector’s Issue, Vol. 7, No. 8, October 1994. The second was published as a Revised edition, Vol. 12, No. 8, October 1999. Judge Jackson discovered early in his appellate practice that there was no ready reference where the standard of review for a particular issue could be located. Thus, one of his initial acts as an appellate judge was to ask his first law clerk, Annina Mitchell, to begin compiling a summary of standards of review. In due course, that summary grew and was circulated at the appellate courts, the attorney general’s office, and appellate practice seminars. Finally, it was cited by an attorney as legal authority in an appellant’s brief at the Utah Court of Appeals. Accordingly, the first edition was compiled and published in 1994, seven years after Utah became the 37th state to have a two court appellate system. The second edition was published in 1999 and this third edition arrives over a decade later. To access the two prior articles, go to: http:// www.utahbar.org/barjournal/frequently_requested_articles.html. Lisa Thornton, Christensen Thornton, PLLC, has joined Judge Jackson as co-author of this series. Previously, she was the editor of the final draft of the first edition. The current edition will be published in a series of successive articles. However, the Outline of Contents below is the outline for the series. Thus, you should keep each article so your set will be complete. This first article provides an overview, commentary, analysis, and proceeds with text for the Outline to the end of Challenging Findings of Fact under Appeals from Trial Courts.

by Mark Glick and Cory Sinclair

The issue of how to calculate the damages from a lost opportunity often arises in contract and tort cases. For example, suppose a plaintiff is involved in a business venture that is impacted by a tort. The plaintiff contends that had the tort not occurred, plaintiff would have received substantial profits at some future date. Or, suppose a business enters into a contract to receive a crucial spare part used to operate its production facility. The part is not delivered on time and the business loses an opportunity to work with a large and important customer. In these types of cases, the plaintiff will normally contend that if the contract had not been breached, plaintiff would have made a windfall at some future time. In both of these situations, a damage expert will be asked to calculate the value of the predicted lost profits at the time of trial.

by Gary L. Johnson

As the managing attorney at a law firm, I have the enviable prerogative of requiring a captive audience for my ruminations and pontifications every so often during the year. This is otherwise known as “Associate Training.” Recently, I talked to our associates about what Harry Truman could teach them concerning their practice of the law. I thought that our discussion would be of some interest to you, my colleagues.

by Paul M. Warner

Where you stand on an issue depends on where you sit. I practiced law for over thirty years before I joined the federal bench. I was always a trial lawyer. I thought I knew how to persuade judges and juries. Now that I have been on the bench for a few years, I have a little different perspective. I will not guarantee that what I am going to share with you will work with every judge, but I suspect that it will help you with most of them.

A Review of: Utah Administrative Procedures Act – a 20 Year Perspective

by Alvin Robert Thorup and Stephen G. Wood

Reviewed by J. Craig Smith

Who would ever expect that a book chronicling the Utah Administrative Procedures Act, from its gestation over 20 years ago to the present, would ever be written? This is exactly what Alvin Robert Thorup, a local attorney, and Stephen G. Wood, a law professor at the J. Reuben Clark Law School, have done. Their book, “Utah’s Administrative Procedures Act, a Twenty Year Perspective” was recently published by Xlibris and is available at local book stores and online.

by David S. Dolowitz

In the 1998 article, The Conundrum of Gifted, Inherited and Premarital Property in Divorce, Utah Bar Journal, Volume XI, No. 3, April 1998, the question of how courts treat gifted, inherited, and premarital property was explored. The inconsistency of the decisions of the appellate courts rotating between the fairly definitive language of Mortensen v. Mortensen, 760 P.2d 304 (Utah 1988), and the equitable approach actually effected in the Mortensen case and utilized in Burke v. Burke, 733 P.2d 133 (Utah 1987), was addressed and analyzed. A series of decisions from the Utah Appellate Courts was examined. These decisions traced the evolution of utilization of the Burke approach, that is, equitably deciding how to treat this property; sometimes returning it to the person to whom it had been gifted or who owned it before the marriage or by whom it was inherited during the marriage, other times treating it as though it was marital, utilizing equitable division principles.

by Randy L. Dryer

By March of 2010, there were 200 million blogs worldwide, 450 million people on Facebook, 27 million tweets every 24 hours, and 1.2 billion YouTube views each day. These staggering statistics reflect the explosive growth social media has experienced over the past three years, which growth is expected to continue unabated in the future.

by Mark Baer & Alex Goble

Benjamin Franklin, in a letter to Jean-Baptiste Le Roy in 1789, is credited with saying that “in this world nothing can be said to be certain, except death and taxes.” For this, Mr. Franklin is well known and credited. But another aphorism accredited to this great man is as follows: “There is no kind of dishonesty into which otherwise good people more easily and frequently fall than that of defrauding the government.”

by Stephanie Wilkins Pugsley

On May 15, 2010, a chapter in Utah’s judiciary closes. With the departure of Justice Michael J. Wilkins from the Utah Supreme Court, Utah’s first and only husband/wife judge team will have fully retired. Judge Diane W. Wilkins retired in November 2008, after 19 years on the Second District Juvenile Court. Between them, they served for more than 35 years. Their service is noteworthy for their example of a true partnership and the path they forged for couples who may follow.

by Mary Jane E. Wagg

A certain amount of stress is to be expected in any lawyer’s life. But, have you ever asked yourself why or wondered about the long-term effects of constant stress? Google “lawyer” and “suicide” and you will get 5,730,000 results. Replace “suicide” with “stress” and it is a sobering 7,980,000. Our profession demands empathy and aggression in equal measure. Our clients expect around-the-clock accessibility and accountability. Our bottom lines require a constant stream of billable hours and positive cash flow. Over the last several decades, the work day has expanded and it is harder than ever to get your mind out of the office, even when your body is out of the office. So it is no wonder lawyers feel stressed out and suffer from depression and struggle with addiction at greater rates than the general public.

by Gary G. Sackett

Two Hypotheticals

As a preliminary exercise, consider medical patient P, who is currently under the care of physician D1. D1 has advised P that P should undergo spinal surgery to relieve major back pain. P decides that, before going under the knife, P would like a second opinion on the matter and consults privately with D2, who examines and diagnoses P and suggests a period of therapeutic treatment before making a final decision on surgery. Is D2 out of line for talking to D1’s patient? No, of course not. No one would question the prudence of P’s action, or the propriety of D2’s responding to P’s request for a second opinion before making such a life-affecting decision.

by Steven A. Morley

Have you ever heard an attorney comment on how indispensible his or her paralegal is? Maybe you have overheard an attorney say something like, “My paralegal runs things so well at my firm that all I am good for is my signature.” When paralegals get to the point in their careers that they are literally doing everything an attorney does except establish the attorney-client relationship, set legal fees, or give legal advice; i.e., the things paralegals are prohibited from doing, see Guideline 3 of the ABA Model Guidelines for the Utilization of Paralegal Services (2004), it is conceivable that such paralegals might have thoughts like, “Why am I doing all the attorney’s work and not getting paid the attorney’s salary?”

by Peyton H. Robinson

The IRS has a formal, administrative process available to taxpayers for resolving proposed adjustments resulting from audits. In the Appeals Office, taxpayers are able to meet with an officer who is required by his or her position to be independent from any other IRS function, in order to try to resolve a dispute without litigation. See 26 C.F.R. § 601.106 (2009). The Appeals program has been moderately successful, but the IRS would like to make it more so by broadening its alternative dispute resolution (“ADR”) functions into mediation and arbitration, and allowing these processes for a variety of different types of taxpayers. These efforts have been in conformity with the IRS Restructuring and Reform Act of 1998, P.L. 105-106, see 26 U.S.C. § 7123 (2000), which directed the IRS to implement procedures to allow a broader use of early appeals programs and to establish procedures that allow for ADR processes such as mediation and arbitration.

by Nicole Farrell

The Litigation Section of the Utah State Bar and the Administrative Office of the Courts are launching a new program that they hope will help remedy two problems – underemployed attorneys and a heavily burdened state court system – that have worsened as a result of difficult economic times.

by Mari Cheney

A variety of free and low-cost services are available at the Utah State Law Library. Even though the law library is physically located in Salt Lake City, many of the library’s services are available to attorneys throughout Utah via our document delivery service and the Utah State Courts’ website.

by Timothy R. Pack

I must make a confession: Sometimes I am dead wrong. I have misstated a rule or legal principle to a client before, insisted to my wife that pizza is best eaten cold, and lectured friends that this year was Greg Ostertag’s year. And sometimes, just sometimes, after I realize my mistake and the bone-headedness of my statements, I admit that I was wrong and see the good sense and reasonableness in the right answer. Although I have not been practicing law for very long, I have found, surprisingly, that it is hard to get lawyers to admit that they were wrong. So when the Utah Supreme Court admits that it was wrong, and goes so far as to publicly state it, and in writing no less, I take notice and commend the court.

by Jason D. Rogers, Christopher A. Scharman, and Brad R. Jacobsen

Other than the most mature and profitable businesses, all businesses need to raise capital. Due to the broad definition of the term “security,” capital investments other than bank loans will generally be deemed a security. All sales of securities generally must either be registered with the Securities & Exchange Commission (the “SEC”), or be exempt from registration. Since few Utah businesses have registered an offering of securities with the SEC, most Utah businesses seeking non-bank funding must find an exemption from registration.

by Heather Finch

The Role of the Paralegal
While most attorneys are becoming more accustomed to including a paralegal in their litigation teams, they do not always know how to make maximum use of a paralegal’s skills and talents. You can increase your involvement and responsibility in a case by developing a strong and open line of communication with the attorneys and then by doing good work.

by David S. Kottler

This article marks the thirtieth anniversary of the Utah Legislature’s 1979 enactment of Utah’s Inherent Risks of Skiing Act. See Utah Code Ann. §§ 78B-4-401 to -404 (2009). Since then, national statistical studies tell us that there have been approximately 900 ski/snowboard related fatalities and over five million ski/snowboard related injuries. Each year, Utah’s slopes can expect to see about three fatalities and over 10,000 injuries. While the vast majority of these accidents are not actionable, it is nonetheless surprising that the entire body of Utah ski law consists of only a handful of reported cases – in a state which boasts “The Greatest Snow on Earth” and around four million skier visits annually. Despite the scant volume of ski-injury litigation in Utah, the statistics above suggest that many Utah attorneys will confront the issue at some time in their career. This article attempts to provide a general framework in which to understand, evaluate, and advise clients about the slope of Utah ski law.

by Scott M. Matheson, Jr.

EDITOR’S NOTE: Scott M. Matheson, Jr. addressed the attendees of the Utah Minority Bar Association’s annual scholarship banquet on October 23, 2009. We are pleased that he has given his permission to have his remarks published in the Bar Journal.

by Roger A. Kraft

In early July 2008, the family of David James Bell (D.J.) walked into my office and hired me to represent D.J. on two counts of first degree felony child kidnapping and one count of second degree felony burglary. The family informed me that two neighbor children ended up in D.J.’s house, which resulted in the brutal beating of D.J. and his partner, Dan Fair, by the family of the two children. D.J.’s family paid a fairly handsome retainer expecting the best defense possible, and I promised them everything short of guaranteeing them an acquittal. I wanted this case and I was ready to do whatever was necessary to get a positive result. However, there was a problem. I had a guy who had just been arrested for kidnapping two children and, in a recorded police interview, said, “I took the children, I know I shouldn’t have.” Additionally, D.J. was gay, and I was going to have to deal with the social and political issues that went along with this case. The media latched onto the case immediately, adding another element to deal with.

by Brent Gordon

In Sorenson v. Barbuto, 2008 UT 8, 177 P.3d 614, the Utah Supreme Court prohibited informal ex parte contacts between insurance defense attorneys and plaintiffs’ treating physicians. The supreme court directed insurance defense attorneys to “confine their contact and communications with a physician who treated their adversary to formal discovery methods.” Id. ¶ 27. The court explained that formal discovery is necessary, because physicians and insurance attorneys are not reliable sources to ensure that privileged medical communications are not disclosed during ex parte conversations. See id. ¶ 23.

A Response to Smith/Atwater

by Brent R. Armstrong

Stop Forming LLCs in Utah – Form them in Delaware! That’s the recommendation of two Utah lawyers, Russell K. Smith and Justin J. Atwater, in their article published in the Sep/Oct 2009 issue of the Utah Bar Journal.

Introduction

by Karen Wikstrom

Introduction – Survey is going online

In 2008, the legislature changed the way Utah judges are evaluated as part of the judicial retention process. In the past, the Administrative Office of the Courts, through an independent contractor, administered a survey to attorneys and jurors that requested information about the judge’s performance, demeanor, legal knowledge, and temperament. This information was then reported to voters as part of the official voter information packet prepared by the Lieutenant Governor to help inform the public about the judges standing for a retention vote.

by J. Robert Nelson

Judging by the popularity of some recent novels, there seems to be a deep-rooted fascination with the mysterious world of codes, secret symbols, and rituals. For some, my topic is equally arcane – the implications of a bankruptcy filing for the dealings, transfers, and transactions that precede it.

by M. Michelle Allred

The Young Lawyers Division (“YLD”) is dedicated not only to assisting young lawyers in the practice of law, but also to improving the availability of legal services to the public. Each year, the YLD offers an array of programs and services to the community, providing young lawyers with the opportunity to volunteer for several hours or several days.

by Aaron Bartholomew and Carolyn E. Howard

Lawyers in a general practice setting regularly deal with clients who are experiencing some of the most challenging times in their lives. Clients in these circumstances not only demand competent legal practice from their lawyers, but also effective and regular communication. From a client's point of view, no amount of expertise and legal acumen trumps the client's need to be kept in the loop. Effective communication with clients may be the most important factor in promoting the stability and success of a law practice.

by Rev. Learned Ham

It's funny how life-changing events can start out so innocently. A blind date. Taking the LSAT on a dare. Ordering chicken sushi because you're bored with the same old squishy tuna. My daughter called and we were talking about her upcoming wedding.

Me: Who's going to perform the marriage?

by Joanne C. Slotnik

In response to my whining about how few people read my article Judging the Judges published in the spring Bar Journal, a colleague recently suggested that if I really wanted attorneys to learn about the work of the Judicial Performance Evaluation Commission (JPEC as the commission is known by those closest to it), I should embed the article in the attorney discipline section. In lieu of that, I hope the misleading title of this article has garnered enough of your attention to keep you reading.

Editor’s Note: Justice Sandra Day O’Connor addressed the Utah State Bar on July 18, 2009 at the Bar’s Summer Convention in Sun Valley, Idaho. Her speech was met with great enthusiasm and we are grateful that she has given her permission to have her remarks published here.

It’s too early to stand up. And I like those introductions from your chairman’s two daughters, whom I’ve met, they’re great. What he could have told you is much shorter, he could have told
you I’m just an unemployed cowgirl now.

It’s early in the day. I’m very impressed to see so many of you out at this early hour, very impressive indeed. I’m so glad to be invited to come to Sun Valley. Through the years my family and I have visited Sun Valley a number of times, most often in winter to have a little skiing, but other times too. And it’s just a great spot for any gathering.

by Spencer Macdonald

A few years ago I inherited a case in which I was defending my client against a mechanics’ lien. Shortly into the case I realized that the plaintiff had filed the lawsuit thirteen months after recording the lien, far outside the statutory requirement of 180 days. I called opposing counsel and explained that the untimely filing of the suit was fatal to his client’s lien claim. Plaintiff’s counsel (who, by this point, had run up tens of thousands of dollars in fees) reluctantly conceded the point and agreed to dismiss the lien claim. And because the lien statute was the sole basis for the plaintiff’s right to recoup its fees, the plaintiff decided to cut its losses and settle the case for pennies on the dollar.

by Justin J. Atwater and Russell K. Smith

Since Wyoming’s passage of the first limited liability company (“LLC”) statute in 1977, the LLC has grown to be a favored form of business entity, not only in Utah, but throughout the nation. This is largely because of the flexibility of an LLC and its hybrid feature of corporate protection coupled with partnership taxation.

All states and the District of Columbia have adopted LLC statutes, and many of these statutes have been substantially amended several times. These statutes vary considerably in both form and substance. Many of the early statutes were based on the first version of the ABA Model Prototype Limited Liability Company Act (the “Prototype Act”) while a few of the later statutes were based on the Uniform Limited Liability Company Act (“ULLCA”). Because of important differences between the various statutes, attorneys have the opportunity to forum shop and choose the LLC statute which best fits a particular client’s needs.

by Mari Cheney

The Utah Bar Journal has existed in its present form since 1988. Before that, a variety of publications acted as a state bar journal to provide information to members. Because there
have been so many incarnations of publications acting as the official journal of the state bar, it is sometimes difficult to locate specific articles because many of these publications are often
casually referred to as the bar journal. To make things even more confusing, during the 1970s and 1980s, multiple bar publications overlapped to provide information to attorneys.

Valuable information can be found in these publications, including old court rules and commentary on newly enacted laws.

by Scott M. McCullough and David W. Macbeth

A trustee is a trusted fiduciary who holds the utmost responsibility and duty in caring for another’s assets. This is not just a duty of care and loyalty, not just the morals of the marketplace and not just honesty alone, but the “punctilio of an honor the most sensitive.” Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (N.Y. 1928). This statement from Judge Cardozo has long been recognized and repeated as the classic statement for describing fiduciary duties, duties held by every trustee.

by Judge Carolyn B. McHugh

Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of last year’s important Utah appellate decisions at an Appellate Practice Section luncheon on April 20, 2009. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, Judge McHugh’s handout is reprinted here, with her permission. (Justice Nehring’s handout will be published in a future issue of the Bar Journal.) Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

by Jeffrey J. Hunt

With the recent passing of United States District Judge David K. Winder, members of the bar have been celebrating his life and legacy with countless courtroom stories, memories, and reflections of our interactions with this extraordinary judge and man.

As his friend and former law clerk, I mourn the loss of this humble, decent man while cherishing my memories of him and the valuable lessons he taught me and so many others about life and the law. As the Utah bar moves this year to mentor-based training for new lawyers, I can think of few better examples of a model mentor than Judge Winder.

by Jon Schofield

Last summer, I got a speeding ticket for going 37 mph in a 25-mph zone. So what? Speeding tickets are given out all the time. Right? But I was on my bike. I mean, who gets a speeding ticket on a bicycle? After thinking about it, I began to question whether I was really going that fast, and even if I was, I had a legal argument that the speed limit should not apply to a cyclist. So, I decided to fight my ticket, and, after some time, my case finally went to trial (yes, the wheels of justice seem to turn about as fast as my cadence pedaling up Little Cottonwood Canyon). Here is how it all went down.

by Lawrence R. Peterson

I was recently in a meeting of collection lawyers who were telling stories about their recent experiences with bar commissioners, court administrators, judges, and other attorneys where collection lawyers as a class were referred to with ridicule or contempt. I guess it is not surprising that these supposedly knowledgeable officers of the court should be prejudiced, since they are people first and professionals only second. Times are hard. But legal professionals should know better than the average Joe that the villain is not the lawyer. Properly viewed, the collection lawyer is an important force for creating that prosperity and commerce that everyone now longs for – not to mention being an agent for fairness and justice.

by Brent N. Bateman

The bottom fell out of the real estate market in 2007. By all accounts, Utah land development was a conflagration for several years. Steady, almost exponential growth of home sales, home
building, and real property values led to a tremendously opportune atmosphere for real property development. See, e.g., Diane S. Gillam & Francis X. Lilly, Construction in Utah Shatters Records in 2005, Utah Construction Report, University of Utah Bureau of Economic and Business Research, Vol. 48, No.4 (October, November, December 2005). Landowners and developers benefited by generously feeding the nearly insatiable market demand. Builders benefited by plentiful work and hardy sales. Communities benefited by a steady and healthy inflow of population, infrastructure, and development application fees.

by Michael Goldsmith

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

by Joanne C. Slotnik

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

by Gary L. Johnson

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

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

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

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

by S. Grace Acosta

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

by Mark Dykes

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

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

by Dale H. Boam

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

by Stephen Kelson

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

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

by Mari Cheney

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

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

by Donald J. Winder and Jerald V. Hale

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

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

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

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

Examining the ADA Amendments and New FMLA Regulations

by Christopher Snow and Sarah Campbell

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

by John H. Bogart

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

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

by Mike Martinez

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

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

by Thomas D. Boyle

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

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

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

by Michael P. Barry

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

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

by Jessica Van Buren and Mari Cheney

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Spider to the Fly
by Just Learned Ham

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

Utah Legislative History Research Tips
by Mari Cheney

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

President-Elect and Bar Commission Candidates

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

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

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

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

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

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

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

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

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

by Michael H. Rubin

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

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

Bankruptcy Exemption Planning: Counseling in Shades of Gray

by Joel Marker

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

Dealing with Metadata in the Non-Discovery Context

by H. Craig Hall, Jr.

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

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

Interpreting Rules and Constitutional Provisions

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

Edited by John Bogart

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

A Friend in Need
by David Bernstein

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

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

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

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

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

Why Are So Many Lawyers Depressed?
by Brent Hale

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

“Ain’t Stress Grand?”
by Herm Olsen

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

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

A Sober Look Back
by Anonymous

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

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

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

Lessons from Recent Utah Legal Malpractice Cases
by Michael Skolnick

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

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

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

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

My Mentors
by Stephen W. Owens

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

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

Reducing Stress
by Robert H. Henderson

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

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

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

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

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

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

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

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

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

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

Utah Control Shares Acquisitions Act
by Brad R. Jacobsen

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Juvenile Defense in Utah
by Paul Wake

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

Arbitration – In Trouble Again?
by Kent Scott

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

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

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

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

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

Thrown Into the Deep End
by Judge Gregory K. Orme

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

In the Beginning
by Judge Judith M. Billings

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

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

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

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

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

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

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

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

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

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

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

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

Laying the Foundation
by Learned Ham

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

How to Advise Employers on Immigration Issues
by Roger Tsai

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

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

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

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

The Strength is in the Research
by Duane L. Ostler

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

Update: The Utah State Law Library
by Jessica Van Buren

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

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

by Blake Miller and Mary Mark

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

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

by Scott R. Carpenter

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

When Lawyers Become Pre-law Advisors

by Eileen Crane

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

The Rapid Evolution of Climate Change Law

by Gary Bryner

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

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

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

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

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

Practicing to Practice: Scholastic Debate as Law-Related Education

by Chad R. Derum

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

Blind Guides: The Difficult Task of Comprehending the Law

by D. David Lambert

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

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

Going Dark – An Alternative to Sarbanes-Oxley Compliance

by Brad Jacobsen and Chris Scharman

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

Keep Dreaming

by Learned Ham

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

Attorney Fee Discrimination for Solo Practitioners?

by Michael A. Jensen

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

Going to Court in Babylon

by Major Darrin K. Johns

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

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

by Paul Wake

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

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

by H. Craig Hall, Jr.

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

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

My, how far we’ve come.

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

The Paperless Deposition

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

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

Judge Disqualification Rules in Action

by Judge Robert K. Hilder

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

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

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

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

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

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

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

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

Civility and Chivalry
by William C. Duncan

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

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

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

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

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

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

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

by Gus Chin

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

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

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

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

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

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

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

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

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

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

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

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

The Honorable Christine M. Durham

by The Honorable Christine M. Durham

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

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

by John Baldwin

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

by Gretchen C. Lee

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

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

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

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

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

by Katherine Fox

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

by Kate A. Toomey

Does this sound familiar?

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

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

by Cheryl Miyuki Mori

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

by Jan Graham

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

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

by Scott Sabey and Tim Shea

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

by Randall L. Romrell

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

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

by John A. Adams

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

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

Mr. Gray Goes to Washington

by Brett J. DelPorto and Jeffrey S. Gray

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

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

MR. GRAY: Yes.

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

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

JUSTICE STEVENS: And what's your response?

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

Why Lawyers Matter

by R. Clayton Huntsman

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

Tax Matters: Statutes of Limitation

by Paul K. Savage

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

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

by J. Robert Nelson

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

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

by Steven J. Christiansen

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

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

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

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

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

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

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

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

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

Separation of Powers
by Judge Carolyn B. McHugh

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

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

Constitutional Adjudication1
by Benjamin Toronto Davis

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

Fee Arbitration
by G. Steven Sullivan

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

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

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

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

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

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

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

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

Preserving State Constitutional Issues in the Trial Court
by Ralph Dellapiana

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

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

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

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

Henriod, Dissenting
by Bryan J. Pattison

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

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

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

Utah State Bar Unveils the Lawyers Assistance Program (LAP)

by Brent Hale

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

ABA Journal, June 2005

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

The First 50: "Celebrating Diversity in the Law"

by Professor Robert L. Flores & Karthik Nadesan

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

Phishing and Pharming and Trojans - Oh My!

by Polly Samuels McLean and Michelle M. Young

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

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

SPYWARE: Living in a Cyber-Fishbowl

by Polly Samuels McLean and Michelle M. Young

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

Finding a Solution to the Problem With Finders in Utah

by Brad R. Jacobsen and Olympia Z. Fay

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

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

by Michael P. Barry

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

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

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

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

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

by Scott M. McCullough

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

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

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

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

Why a Private Conservator?
by Becky Allred

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

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

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

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

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

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

The Bible of Elder Law
by Just Learned Ham

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

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

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

The Tyranny of the Courts
by David R. McKinney

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

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

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

Reflections on Poverty, Bankruptcy, and Heresy
by Paul Toscano

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

* How poverty is measured;

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

* How much credit card debt Utahns carry;

* How much credit card companies earn annually in Utah;

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

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

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

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

Considerations in Purchasing and Using Malpractice Insurance
by Michael Skolnick

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

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

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

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

VoIP Who?

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

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

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

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

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

New Rules governing IOLTA program adopted by the Utah Supreme Court

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

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

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

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

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

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

¥ Assist in providing legal services to the disadvantaged.

¥ Improve the administration of justice.

¥ Serve other worthwhile law-related public purposes.

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

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

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

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

Why Paralegal Certification Counts
by Debra J. Monke

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

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

Antitrust & Unfair Competition Law Section: An Introduction

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

Pro Bono Honor Roll

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

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

Standard 8

by Linda Jones

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

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

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

Federal Appeals: The Scoop on Electronic Submission and Filing

by Douglas E. Cressler

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

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

A near-future law firm conversation.

A Guide to The Foreign Corrupt Practices Act

by Robert A. Youngberg

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

Bankruptcy Litigation: Some Practical Pointers

by J. Robert Nelson

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

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

by John J. Flynn

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

Get Ready for the Bankruptcy Amendments of 2005

by Joel Marker

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

Why Don't They Like Us?

by Keith E. Taylor

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

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

Standards for Standards' Sake:

by Eric K. Johnson

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

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

* * * * * *

Outsourcing - for Easy, Effective Data Protection

by David Saperstein

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

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

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

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

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

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

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

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

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

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

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.

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.

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.

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

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.)

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.

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.

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.

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?

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.

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).

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.

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.

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).

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.

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.

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.

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.

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.

by David Nuffer

Judge Thurman's bench at the bankruptcy court, shown in the photo at right, looks more like the control deck of the Starship Enterprise than a traditional judge's bench. Two computer monitors are embedded in his bench, and a keyboard and mouse are his controls. No papers in sight! Similarly, my office desk has a two-headed computer, with one screen for documents I am creating and one screen for documents I am reviewing, retrieved from Westlaw or the court file. This will be the look of more and more judicial workspaces. Courts are following the business trend of moving from paper to electronic files which means the judge's file will be a computer file, not a paper file.

by David E. Leta

I began practicing law in 1976. At that time, I was fortunate to work in an office that prided itself on having state of the art technology. Every secretary had an IBM Selectric Typewriter. We soon updated these typewriters to the amazing "Correcting Selectric," which could type backwards and lift the letters off the page to correct mistakes. It was a miracle, and certainly a vast improvement over carbon paper, onion skin, and white-out.

by Cass C. Butler

Introduction

Conversion to the Federal District Court's Case Management/ Electronic Case Filing ("CM/ECF") system is a big step which will require significant adjustments and training. With CM/ECF looming on the horizon, many practitioners find themselves anxious about how they are going to adjust once CM/ECF becomes a reality or they are simply in denial, hoping that the Court will reconsider its decision. Instead of welcoming a new era of saving space and time by eliminating or reducing paper files, many are trying to see if the new system can still deliver reams of paper. Attorneys often think that we must hold and see real paper to do our jobs. Refusing to embrace the possibilities of being more efficient, mobile and effective, some attorneys have complained about what they perceive as a forced march. This article offers 10 reasons why CM/ECF might actually benefit your law practice after unfamiliarity, costs and challenges are overcome.

by John E. Laherty

In April of 2003, the Tenth Circuit Court of Appeals decision Roska ex rel. Roska v. Peterson, et al. bestowed upon Utah parents unprecedented legal protection against the removal of their children by state social workers.1 Prior to the decision, Utah's child welfare laws authorized DCFS to remove a child from his or her home without a warrant, and without providing the parent with any pre-removal due process, whenever there was "a substantial danger to the physical health or safety of the minor" justifying removal. When an employee of the Utah Division of Child and Family Services ("DCFS") felt this standard was met, the removal process was a relatively simple one. The worker staffed the case with other DCFS personnel, ran the facts by the Division's legal counsel at the Attorney General's office, and, if the general consensus supported removal, the worker removed the child from the home. The State was not required to obtain prior judicial approval, nor were parents provided an opportunity to contest the removal beforehand. Instead, Utah law only afforded judicial review of the agency's decision - a "shelter hearing" in juvenile court - within seventy-two hours after the child had been taken into the State's custody. Roska put an end to this process in the vast majority of child welfare cases, on two separate constitutional grounds.

by Russell C. Fericks

On January 27, 2004 I was summoned, along with a number of other managing attorneys from Utah law firms, to attend a luncheon at the Panini restaurant in Salt Lake City. The summons was issued jointly by Chief Justice Christine Durham of the Utah Supreme Court and President Deborah Moore of the Utah State Bar.

by Waine Riches

This may go down as the single most exciting year of my twenty years in practice, the year in which we all decided once and for all to seriously tackle the most glaring problem faced by our profession, the lack of access to Utah's legal system by the vast majority of low and middle income Utahns. I want to praise Professor Linda Smith and Bar President Debra Moore, as well as the the S.J. Quinney College of Law and the Utah State Bar for their efforts in this year's Fordham Debates calling for a state plan to achieve access to justice. I would also like to praise Chief Justice Durham who furthered the concept of a state planning process in her State of the Judiciary speech. And I would like to say a word of thanks to the Utah State Legislature who put a bur under everyone's saddle with the threat of implementing the amended unauthorized practice of law statute unless we attorneys showed some serious progress towards fixing the access to justice problem. Now that the notion of a state plan is out in the open, let's go after it with a vengeance. Let's look at all of the possibilities, pick the ones that seem the most likely to lead to success and get to work implementing them.

by Charles R. B. Stewart

The Utah State Bar Pro Bono Program was created in 1996 pursuant to the recommendation of the Bar's Delivery of Legal Services Committee. The program conducts a number of projects to enhance pro bono work within the state of Utah. The Pro Bono Program also coordinates with other organizations to further their pro bono goals.

by Mary Boudreau

Whether nationally or in Utah, attorneys generously serve the indigent in many settings, by adding pro bono work to their regular law practices or by committing their entire careers to that service. Opportunities to serve are practically unlimited, so long as you have the generosity to volunteer for even short periods of time. Lack of specialized legal experience is almost never a bar to pro bono work. In one state, a corporation's in-house legal department initiated a public immigration law clinic, supporting it both financially and with volunteers from its own staff, tutored in the law they needed to learn. A large civil law firm on the East Coast committed extensive attorney time to death row representation of a Texas inmate.

by Dan Hindert

Typically, we get to choose our pro bono projects. Other times, pro bono projects have a way of finding us (like that call from federal court assigning a prisoner's case). At Parsons Behle & Latimer, we recently helped a Tibetan family by doing an unusual pro bono project that didn't come about in either of these ways. Here's what happened.

by Su Chon

EDITOR'S NOTE: There are so many laudable pro bono legal services groups in Utah. The Journal wishes it could profile them all. Here is only one fine example. If we could profile each one, we would end each with the subheading "Pro Bono Opportunities."

The Multi-Cultural Legal Center ("MLC") is a unique and innovative 501(c)(3) nonprofit organization whose mission is to use and strengthen Utah's system of justice to ensure that racial and ethnic communities receive equal treatment and access to legal representation.

by Gary L. Johnson

Who let the greedy in And who left the needy out Who made this salty soup1

For a number of years I had the privilege of serving on the Leadership Committee of And Justice For All. While I am not sure my fellow committee members were all that sorry to see me move on to new challenges, I will miss my participation in this endeavor because it is an unrecognized, but integral, component of our profession and of the society in which we live.

by David Dominguez

“Lawyers have killed off more groups than ever would have died if the lawyers had never showed up. . .The lawyers want to advocate for others and do not understand the goal of giving a people a sense of their own power. Traditional lawyer advocacy creates dependency and not interdependency. With most lawyers there is no leadership development. . .They don't understand community, they don't understand organizing, they don't understand leadership development.”1

by TantaLisa Clayton

For over ten years, the Needs of the Elderly Committee has sponsored a very successful pro bono project. This project provides legal assistance to the patrons of Salt Lake County senior centers. Volunteer attorneys have scheduled appointments to meet with elderly individuals at the senior centers to assess the individuals need for legal and/or community services. The volunteer attorneys may make referrals to other attorneys or to relevant community resources. They may decide to take a case. However, the volunteer attorneys cannot represent the individual unless it is done on a pro bono basis.

If you are thinking that you might like to render pro bono assistance, you might want to consider two legal clinics that currently need help: The Clinic for the Deaf and Hard of Hearing and the Clinic for Spanish Speakers.

Author; The Needs of Children Committee of the Young Lawyer Division

Recently the Needs of Children Committee of the Young Lawyers Division worked with the Child Abuse Prevention Center of Utah to update their informational pamphlets. These pamphlets describe the legal definition of child abuse, how to spot possible abuse, and when and how to report suspected abuse. The pamphlets, one produced for the general public and three others produced for educators, child care providers and clergy, may be obtained from the Child Abuse Prevention Center of Utah's Salt Lake City office.

Author; Martha Pierce

"Once the termination hearing is over and the record closed, both parents and children would benefit from a more timely appellate decision."
- Judge Gayle Nelson Vogel, Iowa Court of Appeals.

Chrissie's Story
Three year-old Chrissie was found dirty, disheveled and hungry, wandering near the downtown liquor store in Salt Lake City. The police scoured the neighborhood trying unsuccessfully to find the child's family. Police located her parents the next day when they raided a meth house. The juvenile court, after establishing jurisdiction over the family, ordered the child into foster care and the parents into treatment programs. The court conditioned the parents' visits with