tag:webster.utahbar.org,2009:/barjournal//2 2009-05-21T16:29:04Z Movable Type 3.33 tag:webster.utahbar.org,2009:/barjournal//2.1928 2009-05-18T10:31:49Z 2009-05-21T16:29:04Z

Volume 22 No. 3 May/June 2009 PDF Version COVER: Golden Cathedral, Neon Canyon, Grand Staircase, Escalante National Monument, taken by first-time contributor, Ryan Harris of Salt Lake City, Utah. Letters to the Editor President's Message: Engage in Mentoring Judging the...

BlogStaff www.utahbar.org PDF Version COVER: Golden Cathedral, Neon Canyon, Grand Staircase, Escalante National Monument, taken by first-time contributor, Ryan Harris of Salt Lake City, Utah.

Letters to the Editor

President's Message: Engage in Mentoring

Judging the Judges

Looking at the Stars: Why Being a Lawyer Matters

Are Medical Records Now Off Limits? An Examination of Sorenson v. Barbuto

Do Insurance Companies Buy Insurance?

Serving the Client Who Is Deaf

Small Claims Mediation: Thoughts for Practitioners

Web 2.0 Tools for Utah Attorneys

Enforcing Civility in an Uncivilized World

State Bar News: Attorney Discipline

Paralegal Division: Pay It Forward: Community Service Opportunities in the Paralegal Division]]> tag:webster.utahbar.org,2009:/barjournal//2.1927 2009-05-18T09:51:22Z 2009-05-18T09:53:46Z

Dear Editor, Recently, there was a Bar Journal article critical of the legislative process arising out of the appeal of a justice court traffic case: West Jordan City v. Goodman, 2006 UT 27, 135 P.3d 874. The appeal failed primarily...

BlogStaff www.utahbar.org Dear Editor, Recently, there was a Bar Journal article critical of the legislative process arising out of the appeal of a justice court traffic case: West Jordan City v. Goodman, 2006 UT 27, 135 P.3d 874. The appeal failed primarily because the “briefing on the constitutional claim was inadequate,” id. ¶1, and the defendant “failed to offer any probative evidence in support of his conflict of interest claim.” Id. The perceptions raised in Goodman resulted in SB 72 in the 2008 Legislative session. Two significant and material changes came from SB 72. First, justice court judges are no longer subject to termination by their sponsoring entity (city or county), but are now subject to retention elections every six years. Justice court judges are now appointed in a manner very similar to district, juvenile, and appellate court judges. Second, there was a compromise reached regarding a formula for a justice court judge’s salary based on a weighted caseload. With regard to the criticism that justice court judges don’t have to have a college degree, there are quite a few absolutely brilliant people who have only a high school diploma. Conversely, there are quite a few not-so-brilliant people with college degrees. With regard to the conviction rates in justice courts, ninety percent or more of the defendants are self represented and make the determination of their guilt on their own, at the arraignment. With regard to the fact that citations generate revenue, judges don’t write citations, police officers do. Traffic laws are going to be enforced and revenue collected no matter what form justice courts take. The bottom line is that justice courts continue to perform exemplary service to the State of Utah. Joseph M. Bean Syracuse City Justice Court Judge Dear Editor, Alicia Cook’s letter in the January/February Bar Journal is a good object lesson in the distinction between ethics and civility. Although in Salt Lake County the criminal bar enjoys a high degree of professionalism on both sides of the podium, no one who has practiced for long can deny that over the years there have been occasional ethical indiscretions by cops, prosecutors, and yes, even defense attorneys, which have prejudiced the opposition. Based on Ms. Cook’s letter, however, complaining about unethical conduct by your opponent after the fact appears to be considered a violation of the rules of civility. In addition, it is important to note that Ms. Cook makes a significant logical error. She takes Mr. Dellapiana’s comment that “more than one” prosecutor has acted in a less than ethical manner, and then unjustifiably asserts that Mr. Dellapiana “chose to impugn an entire group” and “maligned” them all, including herself, and that they “did not deserve the treatment they received” in the book review. Ms. Cook’s glittering overgeneralization constitutes an unfair attack on a man who is as dedicated and professional as any attorney I know, and seems itself to violate the rules of civility. And, Ms. Cook’s suggestion that Mr. Dellapiana report those unnamed individuals to the bar for discipline will fall on deaf ears. Defense attorneys aren’t inclined to snitch, not even on prosecutors. Finally, those who read Mr. Dellapiana’s book review will understand that his introductory commentary actually related to the content of the book. The book’s author is a former federal prosecutor, who admitted that he used threats and tricks to get convictions, but eventually grew disgusted about what he saw, and what he did, and so became a law professor who teaches his students about the importance of ethics and justice. David Mack Trial Attorney, Salt Lake Legal Defender Association tag:webster.utahbar.org,2009:/barjournal//2.1926 2009-05-18T09:28:44Z 2009-05-18T09:42:04Z

by Nathan D. Alder I recently attended a Litigation Section CLE luncheon where moderator Jon Hafen asked veteran members of the Bench and Bar to describe the influence of mentors on their early careers. It was a very nice discussion....

BlogStaff www.utahbar.org by Nathan D. Alder I recently attended a Litigation Section CLE luncheon where moderator Jon Hafen asked veteran members of the Bench and Bar to describe the influence of mentors on their early careers. It was a very nice discussion. Then he asked panelists to consider how their legal careers would have turned out had they not had mentors available to them. It was a hypothetical, of course. Given how panelists responded to the first question, the answers to the second question became readily apparent – mentors are invaluable. www.utahbar.org/nltp. At that page of the Bar’s website you will find resources and materials, including a video highlighting members of our Bar, about the program. I encourage you to call me if you have any questions or concerns. You may also contact Matty Branch, Appellate Court Administrator; John Baldwin, Bar Executive Director; any NLTP Committee member, including Co-Chairs Rod Snow and Margaret Plane; any Mentor Training Resource Committee member, including Co-Chairs Annette Jarvis and Jeff Hunt; or any Bar Commissioner, for the same purpose. We are here to assist you as you become a mentor. Utah’s program is modeled after Georgia’s highly successful program that was started ten years ago; Georgia’s program receives excellent reviews every year from both mentors and new lawyers. I recently spoke with the former president of the Georgia Bar who implemented the program. She is excited for us that we, too, will have this tremendous program to benefit Utah lawyers. The Utah Supreme Court will appoint those who are qualified and willing to serve as mentors. The program requires over 500 mentors. If you are reading this and saying “I should do that,” then do it. Join us. I know you will enjoy it. Judge Tacha of the Tenth Circuit has just trained the first group of court-approved mentors. There will be additional training in the months ahead. Truly, I am honored to be president at this time and to ask you to serve with me and our colleagues in this important endeavor. And now in my own way, I want to attempt to answer the questions Jon Hafen posed in that luncheon. I will answer without identifying my mentors. I believe they know who they are, and frankly there are too many to properly highlight in the space remaining here. I hope they know how much I truly appreciate them. For those of you who know me, and have heard me speak about mentor relationships in my career, you know how personal my feelings are about these good people. I have collected mentors in a variety of settings – at my firm, outside my firm, from the bench, as well as from opposing counsel in hotly contested cases, and from committees and boards where we are able to work closely together. In particular, I benefited from mentoring relationships right out of law school when I was most impressionable, scared to death, didn’t really know any lawyers in Utah, and had a lot of questions. My very first mentor is one of Utah’s greatest advocates for the mentoring concept and has taught mentoring to others and has served as a mentor most of his career. Indeed, he designed much of his career around training new lawyers. Hundreds of lawyers credit him for their success, as I do. How fortunate for me to have found him. I have also chosen to keenly observe many lawyers in action, take note of their skills, talk with them, take them to lunch, and try to emulate their good work while finding my own path. Some of my mentors are quite patient, as they listen to me with some regularity. Others send an email, stop me on the street, call for a moment or two, or offer an encouraging word or a piece of advice. I cannot adequately thank my mentors, nor can I properly highlight here all of their goodness and generosity. To me, the most important part of these mentoring relationships is the relationship itself. That I have gained insight, practical knowledge and even life-enhancing wisdom from them, as well as enjoyed stories, humor and good times, yes, these are certainly great parts of these wonderful relationships. For me, just knowing that there is a group of individuals who care about me and want me to succeed is a truly empowering feeling. Climbing onto their shoulders, I have gained confidence, captured a vision of my own worth in the profession, and been able to launch. In their honor, I wanted to share some of their imparted wisdom.

When you first learn of another attorney’s involvement in a case, call and say hello, make a personal connection; tell them you look forward to working with them.

Treat others’ staff well; treat your own staff well.

Show interest in all parties, not just your own client.

Personal grudge matches are not productive.

Remember we are all human. Mistakes happen.

Always consider opposing counsel to be an important asset in the case.

It is not polite to literally point fingers, particularly in mediation.

Elitism breeds problems.

Don’t go home and be a lawyer with your family; they want you, not the lawyer.

Your stress should not automatically be others’ stress, too.

Reduce drama; focus on the cold, hard facts.

It may be personal for some involved, but it does not have to be personal for you.

Realize that the worst day you’ve had as a lawyer is 100% better than what most of the world experiences.

Be grateful to be engaged in service.

Find your calling and follow it.

Avoid embarrassing another lawyer.

Lawyers lead and maintain order in society.

Understand what Shakespeare really was trying to say about lawyers.

Don’t embarrass the Bench or Bar by falling below standard.

Address the judge and seek leave at all times when in his or her courtroom, for, as one judge told me, “I am not a potted plant.”

Along those lines, always provide the judge copies of what you are referencing.

Offering to mediate is not a sign of weakness.

Work on issues as a team, despite differences, and find unifying concerns.

Offer second chances.

Forgive.

Be the first to re-establish communications.

Have fun.

Don’t take yourself too seriously.

Realize that someone may have a personal crisis; we all will at some point in time.

Travel together for out of town work; arrange itineraries together.

Find ways to communicate off the case.

If you find a good airfare, share it early with others.

Offer to buy lunch; opposing counsel will reciprocate down the road.

Your career experiences in the law are more of a fellowship than a fight.

What goes around comes around.

Courtesy and civility are far superior to the alternatives.

Lawyers may think they know it all, but they don’t.

Serve in the Bar.

There is no substitute for hard work and preparation.

Non-lawyers want and need to know that lawyers are real people, too. Don’t be condescending; be real.

Lawyers need to earn trust just like any other person on the street.

Intimidation is not appreciated nor is it likely to be productive.

In trial, never pass up an opportunity to visit the restroom.

Eat a small, manageable lunch during trial.

If you think you’ve got a final version of a brief or memorandum, try to take out another 10%.

Seek out others to read your final version before submitting it.

Find a way to improve an aspect of our profession; volunteers are needed.

Avoid criticizing one who volunteers to help.

Concede your weakest argument; focus on your best.

Start negotiating early, whether your opponent knows it or not. Don’t close off negotiations.

Abraham Lincoln was right about who the true winners are in litigation.

If you mediate, put the case in the mediator’s hands.

Avoid the nasty-gram.

Re-read your email before you push send.

Get with the times, buy a Blackberry (told to me by a 60-year-old mentor).

You actually can control your Blackberry; it does not control you. Blackberries can and should be turned off from time to time.

Don’t be afraid to tell someone you’ll get back to them after you’ve thought it over.

Apologize if you’ve made a mistake.

Don’t just blame your secretary if something goes wrong.

Your personal life is the most important part of your life.

Stress can and should be managed. I’m still taking the advice of those closest to me. I’m still learning. Yes, I’m still making mistakes, too. But know that I have truly benefited from wonderful mentor relationships. I very much look forward to serving the Bench and Bar by becoming a court-appointed mentor to a new lawyer in the NLTP. I encourage you to join me in this great endeavor. ]]> tag:webster.utahbar.org,2009:/barjournal//2.1925 2009-05-18T09:23:49Z 2009-05-18T09:26:28Z

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...

BlogStaff www.utahbar.org 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. Mediation does not necessarily signal weakness; to the contrary, it may allow results that victory at trial could not have produced. Like most epiphanies, this one did not come easily. I represented a family whose elderly father had been wrongfully prosecuted for murdering his wife. Despite acquittal at trial in 1996, the ordeal exhausted his savings, wreaked havoc on his family, and probably hastened his death. When he and his family learned that a highly questionable autopsy report and false statements had led to the charges against him, they filed a civil rights action. After the family retained me in 2000, we became consumed in expensive discovery and extended motion practice. Eight years later – after two successful appeals to the Ninth Circuit – we still had not gone to trial when opposing counsel asked me to advance by six months the previously scheduled court-ordered mediation session. Despite their expenses, my clients by now had begun to enjoy the prospect of prevailing through a scorched-earth trial strategy that would have revealed that the defendants had engaged in a pattern of civil rights violations. Of course, I was acutely aware that our case also had weaknesses; surviving summary judgment, I explained, did not guarantee success at trial – far from it. Moreover, given the parties’ adversarial postures, the case would likely consume many years of appeals regardless of who won at trial. My clients agreed to mediate after we conducted a mock trial in which the jury awarded them far less than the seven figure sum our complaint requested. Surprisingly, the mediation succeeded beyond our expectations. In part, this occurred because the mediation process defused tensions between parties who had been demonizing each other for more than a decade. But it also occurred because our experienced mediator gave both sides a serious reality check. In meticulous fashion, he identified evidentiary and other obstacles we would have to overcome at trial. He never pushed, preferring instead to highlight objective factors that realistically could not be ignored. And he was politely persistent, following up regularly (at the parties’ request) after the initial mediation session produced a stalemate. Ultimately, however, this supposedly holistic process produced ballistic results. My clients certainly compromised, but we obtained more compensation than our mock jury awarded and received non-monetary relief no court would have imposed. For example, the county defendant issued a formal apology, committed to establishing training programs to reduce the risk of future violations, and formally changed the public record to delete homicide as the cause of death. This actually was my clients’ single most important concern: to vindicate their dad by removing all doubt about his innocence. Of course, not all mediations will produce such outcomes. Indeed, this case was unique among the mediations in which I have participated as counsel. But all of those in which I participated produced results the parties could live with, saved years of expensive litigation, and allowed the parties to achieve closure. MICHAEL GOLDSMITH holds the J. Woodruff Deem professorship at J. Reuben Clark Law School. He consults nationwide in a variety of criminal defense and civil litigation matters. He now serves as a Special Master for district of Utah federal court, and has recently started a mediation practice.]]> tag:webster.utahbar.org,2009:/barjournal//2.1924 2009-05-18T09:16:38Z 2009-05-18T09:22:29Z

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...

BlogStaff www.utahbar.org 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). JOANNE C. SLOTNIK serves as the Executive Director of the Judicial Performance Evaluation Commission.]]> tag:webster.utahbar.org,2009:/barjournal//2.1923 2009-05-18T09:02:00Z 2009-05-18T09:12:07Z

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...

BlogStaff www.utahbar.org “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.]]> I will forever, at all hazards, assert the dignity, independence, and integrity of the English bar, without which, impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the Court where he daily sits to practice, from that moment the liberties of England are at an end. If the advocate refuses to defend, what he may think of the charge or of the defense, he assumes the character of the judge; nay, he assumes it before the hour of judgment; and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused, in whose favor the benevolent principle of English law makes all presumptions, and which commands the very judge to be his counsel. Erskine goes on to passionately defend Paine and set forth a principled basis for the liberty of the press and, indeed, for the liberty of an individual to seek “to change the public mind by the conviction which flows from reasonings dictated by conscience.” At the end of Erskine’s closing, however, the jury foreman indicated to the prosecuting attorney general that a reply was not necessary for them, the attorney general sat down, and the jury gave their verdict on the spot: guilty. Erskine’s explanations to the jury for why he felt compelled to defend Paine are as important today – if not more important – than they were in the time of Erskine. Large corporations and local, state, and federal governments are more powerful now than ever. The independence of the judiciary is under attack from all quarters. The independence and integrity of the bar, and the willingness of lawyers to step forward to provide representation to unpopular defendants, and for unpopular causes, still serves as one of the cornerstones for the maintenance of freedom in this country. As a group, we lawyers have become conditioned to hear public entertainers – even our own friends and neighbors – vilify us in jokes and anecdotes. Question: “What is a hundred lawyers at the bottom of the ocean?” Answer: “A good start.” No one, not the doctors, not the accountants, and not our friends and neighbors, is going to stand up for us. We have to start doing it for ourselves. This nation was founded upon the principle of the rule of law. My personal statement of the rule of law is that the protections and prohibitions of our judicial system should apply with equal force to all citizens regardless of their economic status, religious beliefs, gender status, gender preference, or racial identity. As our society has grown more complex, so has the plethora of statutes and laws that regulate it. It is lawyers who are the guides for the maze that is the American legal system. For our service as guides, we are well compensated. We have access to the courts, to judges, to politicians, and to business leaders. With this wealth and influence, however, our profession must also recognize that certain responsibilities are imposed upon it. One of those responsibilities is the promotion of the rule of law. There used to be a variety of different social institutions to which our fellow citizens could turn to help them resolve disputes. There were any number of different ethnic, economic, religious and political institutions within which members could work out solutions to conflicts in their everyday lives. For better or for worse, the evolution of modern commercial society has led us to the 21st Century in which such alternative dispute mechanisms are diminished, even if non-existent. More and more people turn to the civil justice system as the only method by which they decide their differences. Because of this societal transition, lawyers have played, and will continue to play, a central role in the functioning of modern commercial life. It is the actions of individual lawyers, in drafting equitable contract terms or in bringing lawsuits, that protect our citizens from abusive commercial practices. It is lawyers who stand between the small business owner and the exercise of raw power by the abusive government bureaucrat. It is lawyers, in honoring their oaths and in paying homage to the history of our noble profession, who represent those among us whom the majority disdain and whom we would just as soon have silenced. I know we hear more and more that the practice of law is a business. I know we hear that, because I have been among those in my own firm who have preached the liturgy of profitability and productivity. But we must not confuse the means of a successful practice with the ends of our professional goals and aspirations. We must remember that as lawyers, our activities are circumscribed by an ethical code of conduct not imposed on the ordinary business person. When each of us made the decision to become a practicing attorney, we expressly embraced the notion that a certain moral framework would both serve as an inspiration for our impulses and constrain our appetites. We are one of the last of the great professions. We are self-regulating. We are well compensated. This autonomy and wealth comes at the price of some service to the society in which we live. Benjamin Cardozo told us that “[t]he final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence.” The Nature of the Judicial Process 66 (1921). One of the founding members of my law firm, William S. Richards, used to have a business card that had beneath his name the phrase: “Attorney and Counselor at Law.” Bill didn’t think much of our new business cards, which had dropped from our description the adjective “Counselor.” He advised me that it was not simply my job to help my clients accomplish their goals, but – and of equal importance – it was my job to tell my clients when I thought they were making mistakes or were just plain wrong. Lawyers, Bill would tell me, are not just technicians or servants, but are professionals whose job it is to provide an independent evaluation to their clients. When was the last time you sat around with your partners or other attorney friends and discussed what it means to be a “good lawyer?” I know how to measure dollars-in-the-door. I know how to measure work origination and work distribution. Those factors, however, cannot become the sole criteria for our success, or the legal profession will surrender any claim as a force for good in our society. We must begin, as a profession, an internal dialogue among ourselves about all of the attributes that lawyers should demonstrate in our practice of the law. I acknowledge that the competitive nature of the present legal marketplace has made it an imperative for all law firms to watch the bottom line. We have to be profitable or risk losing our star performers. Law firms have business plans and lawyers have personal marketing plans. We advertise and participate in beauty contests. None of us is exempt from this; we are all of us in the gutter. We can all, however, still look to the stars. If, as a profession, we fail to do so, then we will become irrelevant. If we fail to honor the great traditions of our profession, if we forget lawyers like Erskine, then we will continue to suffer disdain and disrespect. If we forget that being a lawyer matters, then we relegate ourselves to an ignominious corner on the back porch of history. GARY L. JOHNSON is the managing attorney in the Salt Lake City, Utah law firm, Richards Brandt Miller Nelson. The views expressed in this article are solely those of the author.]]> tag:webster.utahbar.org,2009:/barjournal//2.1922 2009-05-18T08:42:33Z 2009-05-18T08:54:15Z

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,...

BlogStaff www.utahbar.org 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. A Summary of Sorensen v. Barbuto In July 1999, Sorensen suffered brain and back injuries in a car accident and was treated by Dr. Barbuto for approximately eighteen months afterwards. When Sorensen ultimately filed suit regarding the accident, the insurance defense team contacted Dr. Barbuto and had ex parte communications with the doctor. Ultimately, the defense hired Dr. Barbuto to act as its expert. Once Sorensen learned that the defense had made contact with one of his treating physicians, Sorensen successfully moved to exclude Dr. Barbuto’s testimony from evidence. After that litigation was completed, Sorensen filed suit against his former doctor alleging that the doctor had breached his duty of confidentiality by discussing the case with the defense attorney. In defense of his actions, Dr. Barbuto argued that Utah Code section 78-24-8(4) permitted him to “’provide information, interviews, reports, records, statements, memoranda, or other data relating to the patient’s medical condition.’” Id. ¶ 7 (quoting Utah Code Ann. § 78-24-8(4) (2002)). However, the Utah Supreme Court concluded that Rule 506 of the Utah Rules of Evidence controlled, not section 78-24-8(4). See id. ¶ 8. Rule 506(b) sets forth a general rule of privilege and Rule 506(d) provides exceptions to that privilege for “communication relevant to an issue of physical, mental, or emotional condition,” Utah R. Evid. 506(d)(1), that is an “element of any claim or defense,” id. The court has clearly stated that “[R]ule 506(d)(1) is a limited waiver of privilege, confined to court proceedings, and restricted to the treatment related to the condition at issue.” Barbuto, 2008 UT 8, ¶ 10 (emphasis omitted). The court also determined that a physician’s duty of confidentiality applies even in circumstances where there has been a waiver of privilege pursuant to Rule 506(d)(1). See id. ¶ 17. The court clarified that even if a Rule 506(d)(1) waiver has been given, the physician’s duty of confidentiality is still in place and prevents that physician from disclosing information to a patient’s friends, family, employers, or any other third party. The waiver only applies to the litigation itself, and there is no universal waiver of confidentiality simply because a patient decided to litigate a dispute. The court clarified that a physician’s duty of confidentiality requires that the physician “notify[] the patient prior to disclosure.” Id. ¶ 16. The court stated, “‘[b]efore disclosing confidential records or communication in a subsequent litigation, a physician or therapist should notify the patient. Even if the communications may fall into [Rule 506(d)(1)’s] exception to privilege, the patient has the right to be notified of the potential disclosure of confidential records.’” Id. (second alteration in original) (quoting Debry v. Goates, 2000 UT App 58, ¶ 28, 999 P.2d 582). Thus, a physician may disclose privileged information to third parties, but may only do so if there has been a waiver of the privilege pursuant to Rule 506(b)(1) and must notify the patient prior to the disclosure. None of these pronouncements were novel or new and were, instead, a reaffirmation of existing Utah law. However, Barbuto did rule for the first time that it violated a physician’s duty of confidentiality for a treating physician to have ex parte communication with defense counsel during litigation. Barbuto was careful to only prohibit ex parte communication between the attorney and the physician.1 The court did, however, direct that lawyers must confine their communication with a physician or therapist who has treated the adverse party to formal discovery methods. See Sorensen v. Barbuto, 2008 UT 8, ¶ 27, 177 P.3d 614. Thus, despite claims otherwise, formal discovery methods are still available in cases involving doctor-patient communications. The court was careful to point out that the opposing counsel could obtain information from treating doctors via traditional discovery methods, stating as follows: Given our analysis and holding above, it is important to emphasize the fact that opposing counsel is not foreclosed from obtaining relevant medical information from a treating physician. Such information may still be obtained through traditional forms of formal discovery. Our holding should not be construed as putting the patient in control of what medical information is made available to opposing counsel and what is kept private. Making this information available through formal methods of discovery strikes a balance between enabling the patient to protect confidential medical information that has no relevance to the civil action and providing the patient’s adversary access to information that is relevant to a condition placed at issue in the case. Id. ¶ 24. Accordingly, the adverse party is allowed to subpoena medical records from treating physicians and is allowed to ask that treating physicians bring copies of their file with them to depositions. If the subpoenaing party complies with Rule 45(b)(3) of the Utah Rules of Civil Procedure and advises opposing counsel of their intent to obtain such records via subpoena, then the patient should have sufficient time and opportunity to voice an objection to the production of medical records. See Utah R. Civ. P. 45(b)(3).2 However, in an abundance of caution, medical providers may also want to notify the patient that medical records have been requested and advise them that such records will be produced. In reality, Barbuto modified Utah law minimally. The only new law is that the court clarified that attorneys are not allowed to communicate directly with an adversary’s treating physician without either the court or opposing counsel being present (or with their consent). Despite the limited holding of Barbuto, it has been greatly exaggerated and broadened by some members of the bar. How Barbuto has been Distorted Myth #1: Defense Attorneys Are not Entitled to Collect Their Own Medical Records. Some have argued that defense attorneys are not allowed to collect their own set of plaintiff’s medical records and that “defense attorneys are only entitled to examine the medical records provided to them by the plaintiff’s attorney.” Brent Gordon, Extending Barbuto: No More Medical Releases or Subpoenas, Utah Trial Journal (Spring 2008). This is simply not true and is rebutted by the plain language of the Barbuto opinion itself, which states that “[o]ur holding should not be construed as putting the patient in control of what medical information is made available to opposing counsel and what is kept private.” Barbuto, 2008 UT 8, ¶ 24. Although it is true that irrelevant medical records are protected from disclosure, it is a mistake to claim that the plaintiff gets to determine unilaterally what is relevant and what is not relevant. If a plaintiff objects to medical records being produced, then the plaintiff must rely upon normal discovery procedures to prevent disclosure of such records. A blanket objection to the defense obtaining its own copy of the patient’s medical records will needlessly increase the cost of litigation and make the discovery process more contentious. Also, it should be remembered that there is a distinction between what is discoverable and what is admissible. If inadmissible information is discovered during litigation, a party may simply seek to have the information excluded at trial. This does not, however, entitle the party to prevent discovery of medical records. Myth #2: A Narrow Medical Release or Medical Subpoena is More Effective. Plaintiffs’ counsel often criticize subpoenas and medical releases proposed by defense attorneys as being too broad. However, it is naïve to think that the staff at medical facilities will take the time to analyze and evaluate a more specific medical release or subpoenas. Anyone who has subpoenaed medical records has no doubt encountered the problem of having subpoenas honored. A large percent of the time, records that are produced in response to even the broadest subpoena are incomplete. Limiting the request for medical records to a certain body part or time period creates its own complications. Sending such limited subpoena or medical releases may require repeated telephone calls and disputes with the medical provider’s staff who are unwilling to evaluate their own files so as to determine whether they are complying with the subpoena. In some instances, the restriction set forth in the more specific subpoena or medical release is either simply ignored or the medical provider responds that they cannot comply with the request at all. This may force subpoena of the medical provider’s custodian of record and a page-by-page analysis of all the medical records before a court reporter at a dramatic increase in cost and time. In short, relying upon the medical provider’s staff to accurately interpret and comply with a limited medical release or limited subpoena does not work.3 Another problem with requiring specific medical releases or subpoenas is that it is impossible for a defense attorney to know what records to request without first seeing the medical provider’s file. Plaintiff’s attorneys often demand that defense counsel identify “with specificity” the records sought from a certain medical provider and claim that any other request is little more than a “fishing expedition.” This demand is unrealistic and ignores the purpose of discovery. Rule 26 of the Utah Rules of Civil Procedure permits discovery that is relevant and appears reasonably calculated to lead to the discovery of admissible evidence. I would argue that a request to a known medical provider for all medical records from five years prior to the date of an accident is permissible as it may lead to discoverable information. For example, a patient claims a neck injury in a car accident and, responding to written discovery or at his deposition, discloses he was treated by Dr. Jones at a local clinic for all routine medical matters. Defense counsel should be able to subpoena Dr. Jones’s medical records to determine whether the patient has ever complained of similar neck problems prior to the date of the accident. Also relevant is whether the patient advised this doctor of his injury, whether the neck injury interfered with other medical treatment he was receiving and the duration of the patient’s complaints. A plaintiff may also claim that a neck injury prevented him from engaging in certain activities. A review of the plaintiff’s medical records may reveal whether another injury to a completely separate part of his body was the actual cause of his limited activity. Defendant’s counsel may not have any evidence regarding this injury unless counsel can review the entire medical record. It has been my experience that plaintiffs are often inaccurate medical historians for a number of reasons. Allowing only a limited medical release makes for an uneven playing field and affords defense counsel no opportunity to assess the veracity of a plaintiff’s deposition testimony. Solutions to the Problem If Barbuto were interpreted as broadly as some believe, the cost of personal injury lawsuits would increase exponentially. In cases where the plaintiff’s damages justify a fight at every turn, the tactic of resisting any and all medical releases or medical subpoenas may make sense. However, in the average personal injury case where the stakes are $100,000 or less, the tactics suggested by some may not be cost effective or realistic. There are several solutions to the “stalemate” that may arise between plaintiff and defense attorneys in regard to the production of medical records. They are as follows: Produce Everything And Then Seek Motions In Limine Discovery is intentionally broad and is designed to cast a wide net. A party to litigation is not only entitled to discover admissible evidence, but is entitled to discover evidence that is reasonably calculated to lead to the discovery of admissible evidence. It is presumed that much of what is collected during discovery will not be used at trial. If the parties cannot agree regarding a specific piece of information, then the party wishing to exclude the information from trial may file a motion in limine to exclude the information. This approach is more cost effective in that the parties can narrowly focus their disputes to specific pieces of information rather than blindly fight about records that one side has never seen. Have the Parties Stipulate that Certain Topics Will Not Be Used at Trial If a plaintiff is concerned that a specific aspect of the plaintiff’s medical history may become public knowledge, e.g., diagnosis with AIDS, a genetic disease, or sexually transmitted disease, the plaintiff’s counsel may simply approach opposing counsel and ask for a stipulation that evidence relating to this specific treatment or illness not be addressed during the case. The stipulation could be as narrow as the matter will not be raised before the jury or as broad as all records relating to the diagnosis will not be discussed during depositions or possibly even at the independent medical examination. If the diagnosis or treatment is truly not relevant to the injuries in dispute, I cannot imagine a defense attorney who would not entertain such a stipulation. Moreover, this is precisely the type of specific, narrow request that a court is equipped to address. This approach would be more cost effective and direct than simply objecting to medical releases or subpoenas from each and every medical provider who might mention this diagnosis or treatment. Have the Records Produced to the Plaintiff Who Creates a Privilege Log One resolution of this dispute is to have all subpoenaed documents produced directly to the plaintiff at plaintiff’s own expense. Within a reasonable time (usually ten to fourteen days), the plaintiff then produces all the records to the defense (at a reasonable cost to the defendant) and also provides a list of the records that the plaintiff finds objectionable in the form of a privilege log. The privilege log must provide sufficient specificity to allow the defense to meet and confer about why the document should or should not be produced and to file a motion to compel the document if the defense believes that doing so is worthwhile. This process will no doubt dramatically slow down the process of record collection and the discovery phase of any case will have to be expanded accordingly. The process is also time consuming for plaintiff, since it would require the plaintiff’s counsel to evaluate hundreds of medical records that the plaintiff may not have reviewed otherwise. The feasibility of this suggestion rests entirely upon the professionalism of the parties involved, and plaintiff’s counsel must take this task seriously and provide a reasonable privilege log. Have Records Produced to a Third Party Who Creates a Privilege Log Another possible solution to the problem is to select a neutral third party to review and analyze the medical records. Although this suggestion suffers from the same time delays and costs as the plaintiff reviewing the records it does provide the defense counsel with some sort of protection that the privilege log will be done properly. In smaller personal injury cases, hiring a third party to perform such tasks could be quite costly and may eat away at any recovery the plaintiff hopes to obtain. The parties will have to share the cost of this third party, decide upon the third party, and jointly define “relevance.” The neutral third party can be a mediator, arbitrator, retired judge, or any other person that the parties believe can be fair and impartial. Have Records Reviewed By the Court Finally, the parties could have the court review the various medical records and determine whether the documents should be produced. This is the least workable of the alternatives because the courts are not willing to take on this task in each and every case. It would be permissible for the court to make rulings on specific sets of records in dispute, but it would be unrealistic for the parties to expect the court to resolve all medical record disputes. The parties would have to narrow these requests and would have to file briefs, etc. in support of their respective positions. This too would delay the discovery process and increase litigation costs. BE CAREFUL WHAT YOU WISH FOR Oftentimes plaintiffs’ attorneys become so overly focused on protecting the rights of their clients and shielding them from perceived overreaching and abusive discovery techniques, that they fail to assess whether any such abuses are actually occurring. Most attorneys are simply trying to do their jobs. The purpose of discovery is not to harass, intimidate, or embarrass plaintiffs. Defense attorneys conduct discovery so that they can properly assess liability and value the damages (if any) that the plaintiff sustained. That is not to say that there are not the occasional “bad actors” who warrant hyper vigilance to keep them from harming your client. I am simply saying that the bad actor is more the exception than the rule. Another detriment to fighting discovery and the free flow of information is that defense counsel, and perhaps most importantly, the claims adjuster will assume, perhaps incorrectly, that the plaintiff is hiding something. At some point plaintiff’s counsel will ask the defense to write a check to compensate the plaintiff. Before an insurance company is willing to compensate a plaintiff for his damages, it will need to be satisfied that it was provided a fair opportunity to conduct necessary discovery. Frustrating discovery efforts by objecting to all medical releases does not further this goal and will delay, if not eliminate, settlement. Those who believe that Barbuto is the end of medical releases and subpoenas should reconsider this position. After all, plaintiffs have the burden to prove their damages. Plaintiffs’ attorneys should want opposing counsel to see and understand the injuries that their clients have suffered. Without the open exchange of such information, the adversarial process does not work and litigation will become more costly than it already is.

(1)Communication between a lawyer’s office staff and a physician’s office staff for the purposes of checking on the status of responses to discovery, scheduling depositions, clarifying identification information, and other routine or procedural communication was not directly addressed, and it is the opinion of the author that such is not prohibited by Barbuto. Such communication is often necessary in order to effectuate responses to subpoenas or collect medical records with medical releases. In circumstances where an attorney does not have staff, it might be best if the attorney communicated in writing with the physician’s staff or included opposing counsel in any discussions with the physician’s staff regarding routine matters. Most counsel would understand that some form of communication with a physician’s staff may be necessary in order to effectively move discovery along and would not object, but I would have a frank discussion with opposing counsel about this prior to taking any unilateral action.

(2)Rule 45(b)(3) of the Utah Rules of Civil Procedure provides that the party who issues a subpoena directing a person to copy and mail or deliver documents or electronically stored information, “shall serve each party with notice of the subpoena by delivery or other method of action notice before serving the subpoena.” In other words, prior to sending out any subpoenas, counsel needs to notify his or her adversary of the intent to send out the subpoena.

(3)This is especially true in disputes regarding collection of records from a pharmacy. A pharmacy is not equipped to know the reason why a drug was prescribed. Thus, asking the pharmacy to produce only records related to a specific injury, disease, or body part is unworkable. The pharmacy has no way to make this determination.

S. Grace Acosta has been with the law firm of Dunn & Dunn P.C. since 2005. She practices primarily in the area of insurance defense but does some domestic and plaintiff work as well. Ms. Acosta is the Utah Minority Bar Association’s president-elect.]]> tag:webster.utahbar.org,2009:/barjournal//2.1920 2009-05-15T16:58:52Z 2009-05-15T17:06:11Z

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...

BlogStaff www.utahbar.org 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.]]> Types of Reinsurance The main types of reinsurance are “treaty” and “facultative.” In either case, the reinsurance agreement is a contract, to be construed as such. See Excess Ins. Co. v. Factory Mut. Ins. Co., 3 N.Y.3d 577, 582, 822 N.E.2d 768, 789 N.Y.S.2d 461 (2004) (“[I]nterpreting reinsurance agreements, as with all contracts, the intention of the parties should control.”). A. Treaty A treaty is a detailed, normally long-term reinsurance contract. Under the treaty, the reinsurer agrees to indemnify the ceding insurer on a specified portion of the cedent’s business. See John Hancock Prop. & Cas. Ins. Co. v. Universale Ins. Co., LTD, 147 F.R.D. 40, 40-42 n.2 (S.D.N.Y. 1993). Thus, the treaty may reinsure all comprehensive general liability policies issued by the ceding insurer to construction companies, or all professional liability insurance issued to physicians. If it falls within the business covered by the treaty, the reinsurer has no discretion to turn the business down. Treaties can be proportional (quota share) treaties or excess-of-loss. B. Facultative Unlike treaty reinsurance, which covers a broad swath of the cedent’s business, “‘[f]acultative’ reinsurance involves the reinsurer assuming some or all of the reinsured’s risk on a specific underlying insurance policy[,]” Okla. Ex rel. Holland v. Employers Reinsurance Corp., 2007 U.S. Dist. LEXIS 68069, at *2 n.3 (W.D. Okla. Sept. 13, 2007), and is thus limited to policies specifically identified. Instead of a treaty, facultative reinsurance is governed by a certificate of facultative reinsurance or “fac cert” for short, which is normally a single piece of paper with a declarations page on the front and abbreviated terms and conditions on the back. There are several varieties of facultative insurance. The Cedent’s Duty of Good Faith and Disclosure Why can reinsurers charge less in premiums? Reinsurers…generally do not duplicate the functions of the ceding insurers, such as evaluating risks and processing claims.… Instead, they rely on their common interests with the ceding insurers and on an industry custom of utmost good faith, including the sharing of information. Reinsurers depend on ceding insurers to provide information concerning potential liability on the underlying policies. Travelers Indem. Co. v. SCOR Reinsurance Co., 62 F.3d 74, 76 (2d Cir. 1995) (citations omitted). Especially in the case of treaty reinsurance, where the reinsurer is obligated to accept broad risks over time, see Mich. Nat’l Bank-Oakland v. Am. Centennial Ins Co., 89 N.Y.2d 94, 106, 974 N.E.2d 313, 651 N.Y.S.2d 383 (1996) (stating that the duty to disclose is broader for treaty reinsurance because of the nature of the risk involved), the reinsurer must rely heavily on the cedent’s disclosures of material facts, that is, those facts that are likely to influence the reinsurer’s decision to assume the risk. See Christiana Gen. Ins. Corp. v. Great Am. Ins. Co., 979 F.2d 268, 278 (2d Cir. 1992). A party who has been materially misled into signing a contract is entitled to rescission. See Coalville City v. Lundgren, 930 P.2d 1206, 1210 (Utah Ct. App. 1997) (stating that recission is only allowed for a material breach that defeats the agreement’s purpose, or that “[is] of such prime importance that the contract would not have been made if default in that particular had been comtemplated” (alteration in original) (quoting Polyglycoat Corp. v. Holcomb, 951 P.2d 449, 451 (Utah 1979)). Reinsurance agreements are no different. See, e.g., Allendale Mut. Ins. Co. v. Excess Ins. Co., 992 F. Supp. 278, 282 (S.D.N.Y. 1998) (discussing duty of good faith wherein ceding insurer failed to inform the reinsurers of recommendations in engineer’s survey report for insured warehouse and insured’s failure to implement the recommendations), vacated and remanded on other grounds, 1999 U.S. App. LEXIS 1735 (2d Cir. Feb. 5, 1999). Cf. Sumitomo Marine & Fire Ins. Co. v. Cologne Reinsurance Co., 75 N.Y.2d 295, 304, 552 N.E.2d 139, 552 N.Y.S.2d 891 (1990) (denying rescission when reinsurer was “fully aware” of the facts before issuing the reinsurance agreements). As is usually the case with rescission, where the party seeking the remedy must return the consideration it received in the transaction, the reinsurer must return any premiums received, less claims paid. If on notice of facts warranting rescission, the reinsurer, like any contracting party, must timely seek relief. See Coalville City, 930 P.2d at 1209-11 (affirming trial court’s judgment when “defendant was determined not to be entitled to rescission because he failed to give timely notice thereof and tender return of consideration received”). Involvement of the Insured in the Reinsurance Transaction The reinsurer’s obligation to indemnify runs only to the ceding insurer. See Unigard Sec. Ins. Co. v. N. River Ins. Co., 79 N.Y.2d 576, 582, 594 N.E.2d 571, 584 N.Y.S.2d 290 (1992). “The reinsurer has no privity with, and is generally not liable to, the original purchaser of the underlying policy.” Travelers Indem. Co., 62 F.3d at 76. Unless the reinsurance agreement has a “cut-through” clause, which permits a policyholder to bring a direct action against the reinsurer, see J. Tiller, D. Tiller, Life Health & Annuity Reinsurance, ACTEX 215 (2d ed. 2005), the policyholder has no rights against the reinsurer. The cedent, not the reinsurer, is responsible for defending, investigating, and settling the underlying claim. See Unigard Sec. Ins. Co., 79 N.Y.2d at 583. As noted next, the reinsurer is, however, bound by the ceding insurer’s good faith handling and payment of the underlying claim. The “Follow the Fortunes” Doctrine Reinsurers are obligated to indemnify the cedent for good faith payment of claims, that is, to “follow the fortunes” of the cedent. Where disputes do arise, they are often connected to how the cedent settled a claim, and how, in large coverage blocks with multiple layers of coverage, or both, the cedent allocated liability for the settlement, which in turn can affect whether reinsurance is triggered. Okla. Ex rel. Holland v. Employers Reinsurance Corp., 2007 U.S. Dist. LEXIS 68069 (W.D. Okla. Sept. 13, 2007), provides a summary of the applicable doctrines: The “follow the settlements” doctrine is the application, in the settlement context, of the broader concept or doctrine of “follow the fortunes.” These doctrines are concepts unique to the reinsurance relationship and are designed to prevent the reinsurer from second-guessing the good faith, reasonable decisions of the reinsured entity. In general, the “follow the fortunes” doctrine binds the reinsurer to accept the cedent’s (reinsured’s) decisions on all things concerning the underlying insurance terms and on claims against the underlying insured, so long as the decisions are in good faith, reasonable, and within the applicable policies. North River Ins. Co. v. ACE American Reinsurance Co., 361 F.3d 134, 139-140 (2nd Cir. 2004). There is substantial authority for the view that, in applying the doctrine, it applies not only to settlement decisions by the cedent, but also to post-settlement allocation decisions by the cedent. Id.; Travelers Cas. & Surety Co. v. Gerling Global Reins. Corp. of America, 419 F.3d 181 (2nd Cir.2005). Okla. Ex rel. Holland, 2007 U.S. Dist. LEXIS 68069, at *16-17. Dispute Resolution For years, cedents and reinsurers have resolved their disputes by arbitration using insurance industry experts. Moreover, a typical arbitration clause will provide that the arbitrators are relieved from following judicial formalities and shall consider customary and standard practices in the reinsurance business and not be bound by the strict rules of law. This can lead to some odd results, however, because reinsurance contracts (or treaties, anyway) often contain a choice-of-law clause. Substantively, this makes little sense, given that the arbitrators are free to vote their conscience. Procedurally, the clause can cause real trouble, because if broad enough, it may be read to require adherence to the arbitration procedures of the identified state, even if one party anticipated something much simpler. Thus, in Security Ins. Co. v. TIG Ins. Co., 360 F.2d 322 (2d Cir. 2004), the court held that a broad California choice-of-law clause meant that California rules applied, one of which stayed arbitration pending the outcome of any litigation arising out of the same set of facts. See id. at 323 (“This case presents a recurring and troubling theme in many commercial contracts: to what extent must a court – confronted with a choice-of-law provision in a a contract – incorporate the designated state’s statutory and common law governing arbitrations even when doing so seems contrary to the Federal Arbitration Act… ?”). The ability, discussed later in this article, to take a credit for reinsurance on its financial statements is often critical to a cedent. If the reinsurer would otherwise be beyond the jurisdiction of a United States court, and the cedent desires, as it surely will, to take the credit, Utah law requires that if “the assuming insurer [fails] to perform its obligations under the terms of the reinsurance agreement, the assuming insurer, at the request of the ceding insurer, shall submit to the jurisdiction of any court of competent jurisdiction in any state of the United States, .…” Utah Code Ann. § 31A-17-404(7)(c)(i) (2005). Much ink has been spilled over whether a “submit to suit” clause is inconsistent with the duty to arbitrate. Careful drafting of the reinsurance contract should take care of this. Regardless, “[s]ubmitting to the jurisdiction of Utah courts under Subsection (7) does not override the duties or rights of the parties under a provision in the reinsurance agreement, including any requirement that the parties arbitrate their disputes.” Id. § 31A-17-404(8). Utah Law Governing Credits and Reductions in Liabilities for Reinsurance The title of Utah Code section 31A‑17‑404, “Credit against reserves for reinsurance ceded,” is self-explanatory: If certain requirements are met, Utah insurers may satisfy financial requirements in part through reinsurance. Utah Administrative Code R590-173 governs this process. Thereunder, credit will be given if the reinsurer is authorized to do business in Utah, see Utah Admin. Code R590-173-4, or if the reinsurer has been granted either “accredited status” (not authorized in Utah, but meets certain financial tests and is authorized in at least one other state) or “trusteed status” (neither authorized nor accredited, but sets up a certain type of trust), see id. R590-173-5, if the reinsurer is domiciled/licensed in other states, with some financial strictures, see id. R590-173-6, or if the reinsurer maintains certain kinds of trust accounts, see id. R590-173-7. Finally, as its title implies, Utah Administrative Code R590-173-8, “Asset or Reduction from Liability for Reinsurance Ceded to an Unauthorized Assuming Insurer not Meeting the Requirements of Sections 4 Through 7,” states what happens when the reinsurer does not otherwise qualify under the rule. Many such reinsurers are located offshore, for example, in Bermuda. Here, the cedent is allowed to reduce its liabilities by an “amount of funds held by or on behalf of the ceding insurer, including funds held in trust for the exclusive benefit of the ceding insurer, under a reinsurance contract with such assuming insurer as security for the payment of obligations under the reinsurance contract.” Id. R590-173-8(A). The security must be held in the United States either under the sole control of the cedent or, as is far more common, in a trust with the cedent as beneficiary, and may be cash, securities approved by the National Association of Insurance Commissioners, or clean, unconditional evergreen letters of credit. Utah Administrative Code R590-173-9, “Trust Agreements Qualified under Section 8,” states the requirements for the trust itself. Often New York financial institutions serve as trustee, and the trust is referred to as a “Reg 144 Trust” after the New York insurance regulation governing such trusts. See id. R590-173-9(A)(8) (“The trust agreement shall be made subject to and governed by the laws of the state in which the trust is domiciled.”) The Insolvency Issue In Fidelity & Deposit Co. v. Pink, 302 U.S. 224 (1937), the United States Supreme Court ruled that the reinsurer was not obligated to pay a claim presented to it by the receiver of the insolvent cedent, because the cedent itself, being insolvent, had not actually paid the underlying claim (recall that reinsurance is a contract of indemnity, not liability). The response to Pink was now universal legislation, pursuant to which, if the cedent desires credit for reinsurance, the reinsurance agreement must require the reinsurer to pay claims notwithstanding the cedent’s (in)solvency. See Utah Code Ann. § 31A-22-1201 (2005). Utah Rules Governing Reinsurance Agreements In addition to rules governing trusts, in Utah Administrative Code R590-143, “Life And Health Reinsurance Agreements,” Utah has established rules governing the reinsurance treaty itself for life and health reinsurance. The gist of this rule is to ensure that the reinsurance is a true, durable, transfer of risk. Thus, credit will not be granted if the treaty requires the cedent automatically to recapture a portion of the reinsurance, see Utah Admin. Code R590-143-3(4), (because then the promise of reinsurance is illusory), if “[t]he treaty does not transfer all of the significant risk inherent in the business being reinsured,” id. R590-143-3(6), (because then the risk really remains on the cedent), if [t]he ceding insurer is required to make representations or warranties not reasonably related to the business being reinsured,” id. R590-143-3(9), or “is required to make representations or warranties about future performance of the business being reinsured,” id. R590-143-3(10), (the reinsurer cannot escape if the insured violates an unrelated warranty or guesses wrong about the future; again, the transfer of risk must be inviolate), or if “[t]he reinsurance agreement is entered into for the principal purpose of producing significant surplus aid for the ceding insurer, typically on a temporary basis, while not transferring all of the significant risks inherent in the business reinsured and, in substance or effect, the expected potential liability to the ceding insurer remains basically unchanged.” Id. R590-143-3(11). It is often said that in days gone by, reinsurance agreements were scribbled out on the back of napkins. Although that has changed, it is still the norm for the deal to be agreed upon first, and documented later. Utah has codified this practice, whereby the cocktail napkin has been replaced by a binding letter of intent, which on its own will suffice to permit the cedent to take credit or reduce its liability, see id. R590-143-4(A), provided, however, that the actual treaty “must be executed within a reasonable period of time, not exceeding 90 days from the execution date of the letter of intent, in order for credit to be granted for the reinsurance ceded.” Id. R590-143-4(B). Finally, the treaty must have an integration clause, see id. R590-143-4(C)(1), and must require that modifications be in writing signed by both parties, see id. R590-143-4(C)(2). Conclusion In sum, the law of reinsurance presents the enjoyable coalescence of complicated state regulations, extensive private contracting, and often complex fact patterns concerning the underlying claims. Mark Dykes is a shareholder at Parsons, Behle & Latimer, in the firm’s litigation and natural resources departments. He has been an adjunct Professor of Law at the University of Utah College of Law, teaching insurance law.]]> tag:webster.utahbar.org,2009:/barjournal//2.1919 2009-05-15T16:31:22Z 2009-05-15T16:39:08Z

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...

BlogStaff www.utahbar.org 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. Frequently Asked Questions The following is a list of questions I have received from attorneys since 2004 concerning representation of Deaf clients: 1. As I understand it, the ADA does not apply to my office because I only have 12 employees. Right? Many attorneys with whom I speak believe that the ADA does not apply to them because their firm or office does not employ 15 persons or more. This is a common error and one born of the way the ADA is written. The law is written in five Titles; the first covering only employment of persons with disabilities. Title I waives compliance with the employment portions of the law for any company with 14 or fewer employees. This exception is found only under Title I and has no bearing on access to an attorney’s office by clients who are Deaf and who are seeking legal counsel, but not employment, with that office. 2. Who pays for an interpreter? The short answer is that the entity providing the service pays for the accommodation. The cost of auxiliary aids and services or other ADA mandated measures cannot be charged to the client. See 28 C.F.R. §36.301. Attorneys must ensure their services are accessible to the public and that effective communication is provided to clients or potential clients. An attorney may not impose a surcharge on a person or a group of persons with disabilities to cover the costs of measures, such as the provision of auxiliary aids, barrier removal, alternatives to barrier removal, and reasonable modifications in policies, practices, or procedures, that are required to provide that individual or group with the nondiscriminatory treatment required by the ADA. See 28 C.F.R. § 36.301(c). This includes potential clients as well as current clients. Think of it this way: You would not require a client in wheelchair to pay for a ramp to enter your office. A ramp is an ADA mandated physical modification; an interpreter is an effective communication requirement mandated by the ADA. The cost of an interpreter is a cost of doing business, like paying for a research service or keeping your lights on. However, the ADA does include tax incentives to encourage compliance.3 3. Can’t the client who is Deaf just bring his mother (father, brother, wife, girlfriend, etc.) to interpret for him? Using family members, friends, or other lay persons as interpreters is problematic on many levels. When an interpreter is deemed necessary, the ADA requires that the interpreter is “qualified.” The ADA defines a qualified interpreter as “an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.” 28 C.F.R. § 36.104. The ability to sign does not equal the ability to interpret. Family members and companions may not satisfy the law’s requirement that an interpreter is “qualified;” family members and friends may not remain impartial, and may have had no legal training to properly interpret specialized legal vocabulary effectively. Furthermore, the state of Utah requires that persons providing interpreting services hold a state or national certification. See Utah Code § 53A-26a-301 (2006). In essence, Utah law interprets the ADA’s standard of qualified to mean certified. Persons providing interpreting services without such certification are subject to fines and possible jail time. See id. § 53A-26a-501. More important for the attorney, facilitating an uncertified person in the provision of interpreting services can subject the attorney to the same legal sanctions. See id. On an ethical level there is no guarantee that a family member or friend will respect the requirements of privilege, and the use of untrained and possibly interested parties may, in fact, waive the client’s right to confidentiality. Certified interpreters are bound by an ethical duty of confidentiality.4 The Department of Justice warns that family members and friends may not be able to provide impartial or confidential interpreting, even if they are skilled sign users: In certain circumstances, notwithstanding that the family member or friend is able to interpret or is a certified interpreter, the family member or friend may not be qualified to render the necessary interpretation because of factors such as emotional or personal involvement or considerations of confidentiality that may adversely affect the ability to interpret “effectively, accurately, and impartially.” 56 Fed. Reg. 33553 (July 26, 1991). By reason of a family member or friend’s limited knowledge of legal terminology, dangerous misinterpretations or omissions of advice may occur. The attorney, client, or both could seek redress from the professional, i.e., certified interpreter, but not a lay person should misinterpretations or omissions occur. A quick cost benefit analysis shows that saving a few dollars up front is not worth the potential problems later on. 4. If I have to pay for an interpreter I will lose money on this case, and isn’t that an undue burden? Undue burden is not measured by the amount of income the attorney receives from that one Deaf client, but by the financial impact on the firm as a whole. It is generally accepted that the comparison is cost versus revenues over the course of a year. Undue burden is defined as significant difficulty or expense when considered against the nature and cost of the auxiliary aid or service and the overall financial and other resources of the business. The undue burden standard is applied on a case-by-case basis. Imagine it this way: The approximate cost of a qualified interpreter for a one-hour attorney-client meeting in Utah ranges from $40 – $50 per hour, at a two hour minimum (plus possible incidental costs). Therefore to successfully establish a defense of undue burden an attorney must demonstrate that spending $80 – $100 is an undue burden relative to the overall operational revenues of the firm or office. I have never seen this argument succeed even with respect to a pro-bono client. 5. Isn’t the court responsible to provide an interpreter for my client who is Deaf? State and local courts are governed by Title II of the ADA and have an obligation to give primary consideration to the aid or service requested by the person who is Deaf when providing effective communication. See 28 C.F.R. § 35.160(b)(2). Furthermore, Utah law gives the responsibility for providing an interpreter for any particular judicial or quasi-judicial function to the presiding officer overseeing the specific function. See Utah Code Ann. § 78B-1-2002 (2008). Judicial and quasi-judicial functions include, but are not limited to, “civil and criminal court proceedings, grand jury proceedings, proceedings before a magistrate, juvenile proceedings, adoption proceedings, mental health commitment proceedings, and any proceeding in which a hearing-impaired person may be subjected to confinement or criminal sanction.” Id. §§ 78B-1-202(1), –208. Note that the court’s obligation to provide interpreters, under both federal and state law, does not extend to out-of-court meetings between an attorney and a client who is Deaf, or in court “counsel table” communications. However, if the court appoints counsel for a defendant who is indigent it is also responsible to appoint and pay for an interpreter for all parts of the proceeding, including preparation. See id. 78B-1-202(5). Interpreters must be certified by the State of Utah, and may be subjected to further voir dire by the court and the person who is Deaf before being approved to interpret for any specific function. See id. § 78-24a-3. As a point of interest, the Utah Administrative Office of the Courts recently added a representative for American Sign Language interpreters to its Court Interpreters Committee. See http://www.utcourts.gov/committees/CourtInterpreter. 6. Doesn’t the Deaf community understand that by demanding interpreters it will force the firm into a position where it can’t (won’t?) accept Deaf clients? As I have stated, it has been my experience that most attorneys are “do right” people. That being said, when I have explained the requirements of the law to some attorneys, I have been accused of trying to extort money, or the attorneys have threatened to withdraw from the case, yelled at the client or referred to them as stubborn and uncooperative. I have been told that clients who are Deaf are too demanding and should be grateful for anything they get, and that it is my obligation to service the legal needs of ALL persons who are Deaf. Retaliation for invoking one’s rights under the ADA is in itself a violation of the ADA. Refusing to accept a client because of his or her Deafness or in order to avoid the costs of compliance is per se retaliation. See 28 C.F.R. § 36.206. 7. How do I find a qualified (certified) interpreter? There are several interpreting agencies in Utah. Most can be located on the web at www.uad.org. A list of certified interpreters is also maintained by the State of Utah on the website for Utah Interpreter Programs (the agency responsible for certifying interpreters) at www.aslterpsutah.org. A list of nationally certified interpreters can be found on the website of the National Registry of Interpreters for the Deaf at www.rid.org. As a general rule for legal appointments, the interpreter should hold national certification or at least a Level II certification from the State of Utah in order to satisfy the ADA’s standard of “qualified.” Conclusion Attorneys must see things from the client’s perspective while understanding the requirements of the law. Deaf clients, like hearing clients, want to understand their legal issues, participate in their cases and develop trust, communication, and an honest dialogue with their attorneys. When clients can’t effectively communicate with their attorneys, those goals quickly erode, and such erosion can only lead to deficient representation. The Department of Justice actively enforces the ADA on behalf of clients who are Deaf and are in need of access to legal counsel. For examples of such enforcement see: DOJ Settlement with Joseph David Camacho, Esq. http:/www./ada.gov/albuquerue.htm DOJ Settlement with the Law Office of Cohen and Jaffee LLC http://www.ada.gov/cohenjaffe.htm DOJ Settlement with Gregg Tirone, Esq http://www.ada.gov/tirone.htm. DOJ Settlement with Clifford B. Hearn & Clifford B. Hearn, Jr, P.A. http://www.ada.gov/hearn.htm 1. The use of a capital D refers to Deafness as a cultural identity, a small d refers to absence of hearing as a medical condition. 2. Many persons who are Deaf have direct VRS numbers, meaning the call will automatically include the VRS provider with no extra steps. If not VRS services can be reached at: Sorenson VRS – 1-866-FAST-VRS; HOVRS (Now called PURPLE) – 1- 877-467-4877; or Locally at Interwest VRS – 1-866-258-1163 3. Section 44 of the Internal Revenue Code establishes a credit for small businesses, and section 190 establishes tax deduction for businesses generally respecting expenses for such accommodations. The tax credit is for businesses with total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of providing sign language interpreters. The deduction is available to all businesses in an amount not to exceed $15,000 per year. 4. Attorney/client privilege can extend to interpreters when the communication being interpreted would be otherwise privileged. DALE H. BOAM divides his time among his positions as an Associate Professor of Deaf Studies Utah Valley University, his small Salt Lake City solo practice – The Law Offices of Dale H Boam P.C., and consulting nationally on the rights of persons who are Deaf.]]> tag:webster.utahbar.org,2009:/barjournal//2.1918 2009-05-15T16:19:35Z 2009-05-15T16:27:05Z

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...

BlogStaff www.utahbar.org 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. Know your client’s options When parties choose mediation as an option to resolve their small claims dispute, there is a greater likelihood that the dispute will be resolved, because the parties themselves create their own agreement. A client may actually be seeking the resolution to a problem or underlying issue the small claims court cannot resolve through a judgment. Mediated agreements may include provisions a small claims judge does not have jurisdiction to award, such as an exchange of property, services, or a defined payment plan. (A small claims judge may only award a monetary judgment up to $7500.) Small claims mediation is free of charge, and the parties lose nothing by attempting to resolve their case through mediation. What is discussed in mediation is confidential and private, whereas court proceedings are public for all to hear. If the case is not resolved in mediation, the case can be heard and decided by a judge immediately after mediation. If a mediated agreement is reached, it is written out as a binding agreement reviewed and signed by the small claims judge. Zealous advocacy includes mediation Zealous advocacy requires exploring all opportunities to resolve a client’s dispute. Mediation may provide attorneys an opportunity for their clients to obtain a better outcome than they might otherwise in court. Mediation is not weakness Some attorneys cling to the misperception that agreeing to mediate in any case, small claims or otherwise, somehow shows a sign of weakness on their part. To the contrary, agreeing to mediate gives each party the opportunity to explain the strengths of its case and the reasons why it is to the other side’s benefit to resolve the matter out of court. All the parties to a given dispute have complete control over the outcome of their mediation. However, in a small claims court trial, the parties lose control of the outcome and are left with the judge’s final decision. Prevailing is not the same as getting paid Parties often confuse winning at court with collecting a judgment. After obtaining a judgment, the prevailing party may leave the courtroom and suddenly realize that the judgment received didn’t put any money in that party’s pocket. On numerous occasions, I’ve been approached after small claims court hearings, where the prevailing party wanted to know when that party will be paid. The small claims court cannot order a party to make payments at a specific time and place; in mediation, the parties can design their own payment plans. When payment plans are made in mediation, there is a much greater likelihood the payments will be made than if a party is awarded a judgment by the small claims court. There can be substantial economic and other benefits to mediation Even in the small claims process, a case can involve a substantial amount of time, effort, and expense. Represented parties often fail to consider the cost of paying legal counsel compared with the potential outcomes from the small claims court, as well as what, if any, amount they will eventually be able to collect. Additionally, any party has a right to appeal a small claims court judgment to the district court within thirty days of its entry. If an appeal is taken, the parties will have to return again to court to reargue their case, resulting in more court time, aggravation, and potential attorneys fees. On the other hand, small claims mediation is free of charge. Discuss authority to mediate before coming to court Too many attorneys fail to discuss the mediation process with their small claims clients before coming to court. During court proceedings, the judge often explains and offers mediation, but the parties may assume that mediation won’t be beneficial to them; if it were, their attorney would have discussed it with them before going to court. In reality, the attorney may have simply been unaware that mediation is available, offered, or just forgot to discuss it. In cases where counsel is hired by insurance companies to provide representation for an insured, attorneys often go to small claims court without having discussed the option of mediation with the insurance representatives, and thus they have no authority to resolve the case in this way. This often leaves the insured in a dilemma. If the insured chooses to come to a mediated resolution without authority from the insurer, it may be contrary to the terms of the insurance policy, and coverage may be denied. On the other hand, it is generally an insured’s understanding that if a judgment is awarded, the insurance company will pay the bill. Attorneys should avoid this predicament by discussing the option of mediation with the insurance representative, and if authority is or is not given to mediate, the client should be made aware of the fact before showing up at trial. Judgments become public records All judgments become public records, and available to credit services. Judgments, small and large, whether or not they are paid by insurance coverage, will show up on credit records and can affect credit ratings. Insured defendants represented by counsel may be unaware that judgments will appear on their credit reports, even if they are paid by insurance coverage. However, if a mediated agreement is reached and fulfilled, no judgment is entered, and the defendant’s credit rating will not be affected by the case. The more informed counsel and their clients are about mediation, the more beneficial the opportunity to mediate will be. Make the most of small claims mediation service by actively presenting it as a viable option to your clients. It is a free service. It can resolve cases. It consistently provides a better outcome than may otherwise be achieved through a small claims trial. Use small claims mediation when the opportunity is presented. Stephen Kelson is an attorney in the office of Kipp and Christian P.C. in Salt Lake City, Utah, where his practice focuses on commercial litigation and insurance defense. Mr. Kelson is also a volunteer mediator and mediation coordinator for Utah Dispute Resolution, which provides alternative dispute resolution services for the community.]]> tag:webster.utahbar.org,2009:/barjournal//2.1917 2009-05-15T15:35:03Z 2009-05-15T16:13:49Z

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...

BlogStaff www.utahbar.org 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. Online Social Networks You’ve probably heard of Facebook and MySpace (known generically as social networking sites) and figured they’re just for teenagers and college students. Think again! Specialized social networking sites for professionals are now becoming popular. You can use these sites to market your legal services by posting contact information, areas of practice, and links to your website and blog, if you have either. It’s all about networking. Traditional networking meant you went to bar section meetings, joined the local Chamber of Commerce, and became a member of a civic organization like the Lions or Kiwanis. The goal was to get your name out there so that people thought of you when they needed an attorney. Online professional social networks perform a similar function, except you don’t have to sit through dry meetings or choke down the rubber chicken meals. With over 36 million members, one of the most popular social networking sites for professionals is LinkedIn. You can search for colleagues and classmates by name, company, or school, and import contacts from your email address book. You can affiliate yourself with a variety of networks, including your city, the schools you attended, your employer, the Utah State Bar, and some of the Utah State Bar’s practice sections. The more networks you are a part of, the broader your potential for making connections. Plaxo is similar to LinkedIn, and many professionals have profiles on both sites. Update your profile when you move, and your connections on Plaxo are notified that your information has been updated. Other online networking sites geared toward lawyers and other legal professionals include LawLink, ESQChat, and LegallyMinded, which was created by the American Bar Association. LegalOnRamp is also an online networking source, but the emphasis is on collaboration rather than the social aspect. Share information with other attorneys, particularly in-house counsel, including forms, answers to Frequently Asked Questions, and information on wikis. (A wiki is a collaborative website, where all users can edit and contribute information.) Setting up your profile on these sites only takes a few minutes. If you continue to make additional connections, update employment information, and interact with your connections online, your status will often be updated and your connections will constantly be reminded of your name and online presence. Blogs When you think of a blog (short for weblog), you may think of a personal online diary. However, blogs also refer to websites that are updated frequently, appear in reverse chronological order, and are often topical. Legal blogs, sometimes referred to as “blawgs,” range in content from a specialized topic of law, such as employment, health, or bankruptcy, to law and technology, and gossip about firm mergers or layoffs. Some law firms use both internal and external blogs to communicate information, while other attorneys blog anonymously about their daily lives. Some Utah law firms and solo attorneys are marketing their services through blogs. Other Utah attorneys post about Utah law and appellate cases, providing current awareness services on a variety of topics. Don’t believe everything you read just because it’s online! As with any other information you’ll find on the Web, be a cautious consumer. Blogs can provide useful information, but they can also be biased or present inaccurate information. Assess the authority of the author and the accuracy and currency of the information. The following is a selection of Utah-based topical blogs: Construction & Collection Lawyer, http://utahconstruction.blogspot.com/ Lawyers of St. George (Business Law), www.sglawblog.com/ LexUtah (Utah’s Legal Scene), www.lexutah.com/ Utah District Court CMECF Updates, http://utd-cmecf.blogspot.com/ Utah DUI Trial Lawyer, www.utahduilawblog.com/ Utah Family Law Blog, www.longokura.com/blog/ Utah Insurance Law Blog, http://insurance.strongandhanni.com/ Utah Law Talk (Personal Injury), www.utahlawtalk.com/ Utah Personal Injury Law Firm Blog, www.utahpersonalinjurylawfirmblog.com/ Utah State Law Library, www.utcourts.gov/lawlibrary/blog Many large law firms with offices in Utah also have firm-sponsored blogs, but are not Utah specific. Other blogs that might interest Utah attorneys are official and unofficial political and government blogs: The Senate Site, http://senatesite.com/blog Utah Amicus, http://utahamicus.com/ Utah Attorney General, http://utahag.blogspot.com/ Utah Bloghive, http://utahbloghive.org Utah Democratic Party, www.utdemocrats.org Utah House Democrats, http://utahhousedemocrats.org/ Utah Policy Daily, http://utahpolicy.com Utah Republican Party, http://leadershipthatdelivers.com Utah Senate Democrats, www.utahsenatedemocrats.org Finally, a few lawyers throughout the country have started blogs that discuss the law and technology, both from a policy perspective, as well as technologies attorneys can use in their practice. Technology and Law Blogs: Dennis Kennedy, www.denniskennedy.com/ Ernie the Attorney, www.ernietheattorney.net/ Future Lawyer, http://futurelawyer.typepad.com/futurelawyer/ The Mac Lawyer, www.themaclawyer.com/ Technola, www.techno.la/ If you’re interested in starting your own blog, there are numerous free sites that can help you get started. Check out Blogger, WordPress, or LiveJournal for blog templates and to set up free accounts. Blog Reader A blog reader like Google Reader or Bloglines helps you to keep current with blogs without having to visit each blog individually to see if they’ve posted anything new. A blog reader collects information about each of the blogs you want to monitor and lists the updates in one place. Blog readers do this by using a technology called Really Simple Syndication (RSS). Most blogs offer this option, which is indicated by an orange icon with an image of radio waves in it or the acronym RSS on the blog page. To sign up for a blog reader, select the service you want to use. For instance, if you already have a Google account, sign in with your account name and password and then select “Reader” from the list of available services. Once you’ve signed up for a blog reader, just click on the RSS icon that appears on the blog you want to follow and then add the blog to your reader. Or, if you know the URL of the blog, you can add a subscription to blog updates directly from the blog reader. Microblogging Microblogging is blogging on a miniature scale. A user can create short posts up to 140 characters, including web links. The most common microblogging tool today is Twitter. Posts can range from a comment about a news item, the best restaurant in town, or an alert about a new supreme court decision. Some journalists have persuaded judges to allow Twittering (or tweeting) from the courtroom so they can report on cases in real time. Example of a tweet from Utah Government on Twitter (http://twitter.com/UtahGov): RT @utahsenate: Utah Public Notice Website: Senator Urquhart’s SB 208 passed the second reading on the Senate f.. http://tinyurl.com/9g3m3d In the above message, UtahGov was retweeting (RT) a message posted by UtahSenate. The “tinyurl” is a shortened version of the URL where you can go to read more information. Twitter posts are very brief and are immediate. Many people choose to post and receive twitter messages via their cell phone. You can use Twitter to post links to law firm press releases and news articles, and direct readers to your blog for more information. You can also read what people are saying about your law firm or vet potential clients. Search Twitter posts at http://search.twitter.com/. A solo attorney can follow other solo practitioners or law firms on Twitter, see what issues they’re discussing and ask and answer questions. It’s a great feedback tool, especially if you don’t have anyone else to brainstorm with at the office. Even if you aren’t convinced that Twitter is the right tool for you, consider signing up for an account to get the user name of your choice. Then, if you feel it’s a tool you could use in the future, you’ll have your name reserved. Podcasts A podcast is an audio and/or video recording you can listen to online or download to an mp3 player. What distinguishes a podcast from a regular download is that your computer notifies you when new content has been added. Also, if you have set up regular downloads, the computer will automatically download the content. Just as blogs often focus on specific topics, podcasts generally have a theme, such as legal research or intellectual property. Many law schools that host CLE programs upload the audio from these programs to the law school’s website and offer syndication so you are automatically notified when new programs are added. For example, the Intellectual Property Colloquium hosts IP experts to discuss topics every month. The Legal Talk Network specializes in legal podcasts and produces shows including “Lawyer 2 Lawyer” and “Workers Comp Matters.” You can find other law-related podcasts through the iTunes podcast library, as well as through iTunes U, where law schools often upload their podcasts. Also, visit individual law school and law firms’ websites to determine if they are podcasting. If they are, you can stream the podcast from those individual websites if you don’t want to download them to your computer or mp3 player. To search for Utah-specific podcasts, just use a search engine to find them. Specialized Search Engines If you don’t want to search the entire Internet for information about law firms, check out Fee Fie Foe Firm (www.feefiefoefirm.com/), a specialized search engine that returns results from law firm pages only. Websites to check out: Blogger (www.blogger.com) Bloglines (www.bloglines.com) ESQChat (www.esqchat.com) Flickr (www.flickr.com) Google Reader (www.google.com/reader) Intellectual Property Colloquium (http://www.ipcolloquium.com/current.html) LawLink (http://www.lawlink.com/) LegallyMinded (http://legallyminded.com) LegalOnRamp (www.legalonramp.com) LegalTalkNetwork (http://www.legaltalknetwork.com/index.php) LinkedIn (www.linkedin.com) LiveJournal (www.livejournal.com/) Plaxo (www.plaxo.com) Twitter (www.twitter.com) WordPress (http://wordpress.org/) Mari Cheney is the reference librarian at the Utah State Law Library. She has a JD from American University, Washington College of Law, and an MLIS from the University of Washington. She welcomes questions and comments about this article at maric@email.utcourts.gov.]]> tag:webster.utahbar.org,2009:/barjournal//2.1916 2009-05-15T14:44:24Z 2009-05-15T15:23:36Z

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!” “Mr. Kirkland, you’re...

BlogStaff www.utahbar.org “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!” “Mr. Kirkland, you’re out of order.” “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.]]> http://www.utcourts.gov/resources/rules/ucja/ch13/intro.htm. It is believed that Utah is only the second state to follow the South Carolina model. The next inevitable step in the progression toward more civility in our profession – namely, how to enforce the civility provisions that have been enacted and which lawyers are urged to follow. While there have always been professional sanctions available for violating rules of professional conduct, is there more that should or could be done to enforce civility in the profession? Courts around the country have entered the fray to find a way to enforce what are generally seen as non-binding suggestions on civility. For example, in the Fifth Circuit case, In re First City Bankcorp. of Texas, Inc. 282 F.3d 864 (5th Cir. 2002), a “zealous” lawyer referred to opposing counsel as a “stooge,” a “puppet,” a “deadhead,” and an “underling who graduated from a 29th tier law school.” The bankruptcy court in which the case was originally heard did not agree with the lawyer’s tactics and slapped him with a $25,000 sanction. When the lawyer appealed to the Fifth Circuit, he argued that his behavior was an appropriate trial tactic, allowing him to recover more money for his clients and giving him the upper hand in settlement negotiations. The Fifth Circuit disagreed, and found the lawyer’s conduct to be “egregious, obnoxious, and insulting.” The $25,000 sanction was deemed appropriate and upheld by the court. A quick search of recent case law will reveal numerous examples where courts around the country have begun to draw lines in the sand regarding incivility in the practice of law. See, e.g., GMAC Bank v. HTFC Corp, No. 06-5291 (E.D. Penn. Filed February 29, 2008) (sanctioning attorney $13,026 for actions during deposition described as hostile, uncivil and vulgar); Steven Kreytak, Lewd Gesture Gets Lawyer 90 Days in Jail, Austin American Statesman, April 17, 2008; Hagen v. Faherty, 66 P.3d 974, 979-80, (NM Ct. App. 2003) (admonishing attorneys for uncivil behavior in briefs, bemoaning “culture of belligerence” that has taken root in legal system). In the Utah Supreme Court case Peters v. Pine Meadow Ranch Home Ass’n., 2007 UT 2, 151 P.3d 962 (Utah 2007), the petitioner was appealing an appellate court affirmation of a trial court’s grant of summary judgment to a homeowners’ association regarding the enforceability of its covenants, conditions, and restrictions. Rather than reach the issues raised in the appeal, the Utah Supreme Court focused on the petitioners’ briefs and the uncivil language and tone of the briefs to affirm the holding of the lower court. See id.¶1. Specifically, the court noted: [P]etitioners’ briefs…are replete with unfounded accusations impugning the integrity of the [court] below. These accusations include allegations, both direct and indirect, that the [Court of Appeals] panel intentionally fabricated evidence, intentionally misstated the holding of a case, and acted with improper motives. Further, petitioners’ briefs are otherwise disrespectful of the judiciary. Id. Rather than rule on the merits of the petition, the court dismissed the petition and ordered the offending attorney to pay the other side’s attorney fees, which at the time had amounted to approximately $17,000. In sum, the court noted if attorneys continue to adopt the “scorched earth” approach to advocacy, they do so at their own peril. In choosing to disregard the petitioners’ briefs, the Peters court relied on Rule 24(k) of the Utah Rules of Appellate procedure which provides that “[a]ll briefs under this rule must be…free from burdensome, irrelevant, immaterial or scandalous matters. Briefs which are not in compliance may be disregarded or stricken,…and the court may assess attorney fees against the offending lawyer.” Id. ¶9 (alteration and omissions in original) (quoting Utah R. App. P. 24 (k)). Further, in arriving at its decision the court noted the Utah Standards of Professionalism and Civility,3 as well as Rule 8.2 of the Utah Rules of Professional Conduct which provides “[a] lawyer shall not make a public statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications…of a judge.” Id. ¶11 (alteration in original) (quoting Utah R. Prof’l Conduct 8.2(a)). Following up on the issue of enforcement of civility, the Utah Supreme Court has created what is believed to be the first program in the country of professionalism counseling for members of the Utah Bar. See Utah Supreme Court Standing Order No. 7, issued January 9, 2008, effective April 1, 2008, http://www.utcourts.gov/resources/rules/urap/Supctso.htm#7. Specifically, the program functions through a board of five counselors, appointed by the Utah Supreme Court, who generally counsel and educate members of the Bar concerning the Standards of Professionalism and Civility (Standards). The court recommended the counselors serve a four-fold purpose: (1) to counsel members of the Bar in response to complaints by other lawyers or referrals from judges; (2) to provide counseling to members of the Bar who request advice on their own obligations under the Standards of Professionalism and Civility; (3) to provide CLE on the Standards; and (4) to publish advice and information relating to the work of the counselors. Of these functions, it is the counseling function which is most critical to the notion of enforcing civility in the profession. The goal is to provide a method by which incidents of incivility or unprofessional conduct could be reported and addressed. The focus, however, would not be punitive in nature, but rather, educational. In responding to a complaint from a fellow attorney or judge, the counselors may issue a written advisory to the offending lawyer, or may simply counsel with the lawyer in a personal meeting, with the goal of educating the offending lawyer as to alternative modes of practice in harmony with the Standards. In conjunction with this direct contact with the offending attorney, the counselors would publish an annual report concerning the Standards it has interpreted, as well as periodically publishing selected portions of its advisories in the Utah Bar Journal for the benefit of practicing lawyers. As recognized by the Utah Supreme Court, education is the key component to any successful effort to enforce civility. As attorneys learn what is expected in the practice of law, the “culture of belligerence,” see Hagen v. Faherty, 66 P.3d at 979-80, like the typewriter and carbon paper, will become a relic of a bygone era in our profession. Footnotes: 1. Some, but certainly not all, of these jurisdictions include Arizona, California, Florida, Georgia, Texas, Utah, and even the San Diego County Bar Association. The Utah Standards of Professionalism and Civility may be found at http://www.utcourts.gov/resources/rules/ucja/ch14/03%20Civility/USB14-301.html. 2. See Indiana Rules of Professional Conduct, www.in.gov.judiciary/rules/prof_conduct/index.html; Louisiana Rules of Professional Conduct, www.lsba.org/2007/memberservices/codeofprofessionalism.asp; Montana Rules of Professional Conduct, www.montanabar.org/associations/7121/files/ethicsrulecomparison.pdf; Nevada Rules of Professional Conduct, www.leg.stat.nv.us/courtrules/rpc.html; New Jersey Rules of Professional Conduct, www.judiciary.state.nj.us/rpc97.htm; Oregon Rules of Professional Conduct, www.osbar.org/_docs/rulesregs/orpc.pdf; Washington Rules of Professional Conduct, www.courts.wa.gov/rules/fa=court_rules.list&group=ga&set=rpc. 3. Standard 3 of the Utah Standards of Professionalism and Civility (USPC) provides, “[l]awyers shall not, without an appropriate factual basis, attribute to . . . the court improper motives, purpose or conduct.” Standard 1 of the USPC provides, “lawyers shall treat all other counsel, parties, judges, witnesses, and other participants in all proceedings in a courteous and dignified manner.” www.utcourts.gov/courts/sup/civility.html. Don Winder is managing partner in the firm Winder & Counsel, PC, Salt Lake City, Utah. Mr. Winder has served on the Utah Supreme Court Committee on Professionalism, tasked with developing Utah Standards of Professionalism and Civility, modifying the Attorney’s Oath and recommending the establishment of a program of professionalism counseling for members of the Utah Bar. Jerry Hale is an associate with Winder & Counsel, PC. ]]> tag:webster.utahbar.org,2009:/barjournal//2.1915 2009-05-15T09:41:08Z 2009-05-15T15:06:26Z

ADMONITION On February 25, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 1.9(a) (Conflict of Interest: Former Clients) and 8.4(a) (Misconduct)...

BlogStaff www.utahbar.org ADMONITION On February 25, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 1.9(a) (Conflict of Interest: Former Clients) and 8.4(a) (Misconduct) of the Rules of Professional Conduct. In summary: An attorney was hired to represent a client in a divorce matter. The attorney’s office sharing arrangement was the functional equivalent of being in the same firm as a family member. The attorney took a case against a former client of his family member.]]> RESIGNATION WITH DISCIPLINE PENDING On February 11, 2009, the Honorable Matthew B. Durrant, Associate Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning David W. Snow for violation of Rules 1.3 (Diligence), 1.4(a) (Communication), 1.4(b) (Communication), 1.15(a) (Safekeeping Property), 1.15(d) (Safekeeping Property), 1.16(d) (Declining or Terminating Representation), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. In summary there are three cases: Mr. Snow was hired to help his client resolve various debt issues. Mr. Snow was given a large sum of money to resolve the client’s outstanding debt. Mr. Snow was to receive 15% of the amount he was able to reduce his client’s debt. Mr. Snow failed to pursue the work he was hired for in a timely matter. Mr. Snow failed to communicate with his client and failed to return the unused funds that should have remained in his trust account. Mr. Snow commingled his client’s funds with his own funds and used his client’s funds to pay his own expenses. In another matter, Mr. Snow was given a large sum of money to assist a client in resolving various debts. Mr. Snow was to receive 15% of the amount he was able to reduce his client’s debt. Mr. Snow negotiated with a creditor and the client approved payment to settle the debt. Mr. Snow did not mail the check to the creditor until after the settlement offer had expired. Mr. Snow’s client expressed frustration communicating with Mr. Snow. Many of the client’s creditors had not had contact with Mr. Snow. A new fee arrangement was negotiated with Mr. Snow and his client. After some time had passed, and Mr. Snow had only settled one more account, the client indicated he would handle the remaining accounts himself. Mr. Snow has yet to return the unused portion of his client’s money. Mr. Snow failed to keep his client’s money in his trust account and used the client’s money to pay his own debts. In the last matter, Mr. Snow was hired to represent a client in a bankruptcy proceeding. Mr. Snow filed the bankruptcy petition and then had no contact with his client for several months. Mr. Snow filed an objection to the trustee’s Motion to Dismiss and stated the failure to file the declaration was because of his delay. Mr. Snow failed to timely file notices of two creditors, causing his clients to be unable to include the two creditors in their bankruptcy, and failed to respond to his client’s inquiries. DISBARMENT On January 14, 2009, the Honorable David N. Mortensen, Fourth Judicial District Court, entered an Order of Disbarment disbarring Paul J. Young from the practice of law for violations of Rules 8.4(b) and 8.4(a) (Misconduct) of the Rules of Professional Conduct. In summary: On December 27, 2005, Mr. Young was found guilty of one count of Conspiracy to Defraud the United States in violation of 18 United States Code, section 371. Mr. Young was sentenced to incarceration for a period of 45 months, followed by supervised release for a period of three years. PUBLIC REPRIMAND On January 28, 2009, the Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Public Reprimand against Daniel V. Irvin for violation of Rules 1.3 (Diligence), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct. In summary: Mr. Irvin failed to appear at a previously scheduled trial in a client’s case. Mr. Irvin failed to appear at a previously scheduled pretrial hearing in another client’s case. Mr. Irvin failed to take necessary steps to follow-up on client matters after his computer crashed and he lost computer data regarding upcoming hearing dates.]]> tag:webster.utahbar.org,2009:/barjournal//2.1914 2009-05-15T09:24:26Z 2009-05-15T15:01:50Z

by Carma Harper When I was appointed as Chair of the Paralegal Division’s Community Service Committee, I thought of it as a great opportunity to find a project where we could make a difference. I soon discovered that there is...

BlogStaff www.utahbar.org by Carma Harper When I was appointed as Chair of the Paralegal Division’s Community Service Committee, I thought of it as a great opportunity to find a project where we could make a difference. I soon discovered that there is no shortage of programs and services in need of assistance from the public year round. With so many projects to choose from, allocating our time and resources became a larger challenge. I am proud to report that in the past year, we have taken part in many very worthwhile activities and causes to benefit our community. Here are some highlights: We’ve had the pleasure of assisting the Young Lawyers Division in the Wills for Heroes Program, in which estate planning documents are prepared free of charge for first responders such as police officers and firefighters. Wills for Heroes events have been and continue to be held all over Utah. I would like to thank the members of our Division’s Wills for Heroes Committee, J. Robyn Dotterer, JoAnna Shiflett, and Lindsey Bodily, as well as each volunteer who has donated time to notarize and witness documents.

Last spring, our committee conducted a Professional Clothing Drive and collected over seven SUVs full of clothing to benefit the Women Helping Women Program. We are very grateful to Henrie’s Dry Cleaners for not only donating clothes, but also for cleaning all of the donated items prior to delivery. A special “thank you” to Shawna Powers, Cheryl Jeffs, Mary Stephens, and JoAnna Shiflett for collecting and sorting all of the clothing.

We joined Mervyn’s Department Store and the Davis School District in May 2008 for a project providing clothing and school supplies for underprivileged children. Funds for Mervyn’s gift cards were donated by the Davis School District, and each child was paired with an adult volunteer to spend their gift card money on school clothes. Mervyn’s also donated a backpack full of additional items, such as books and toiletries, to each child. The program was a huge success, as well as a lot of fun.

In December 2008, we made over 100 fleece hats and scarves for donation to the Youth Center, as part of a service project being conducted by the Legal Assistants Association of Utah. We appreciate being able to participate in this very worthy effort.

I am humbled by the amount of good work our Community Service Committee has been able to accomplish thus far. I want to take this opportunity to encourage all of us to find ways to “pay it forward” in our communities throughout the year. We are always looking for new projects and volunteers. Please contact either myself, charper@strongandhanni.com, or J. Robyn Dotterer, rdotterer@strongandhanni.com, with ideas on where we can be of assistance. Thank you for your continued support. Notice: Change in Paralegal Division Membership Application & Renewal Policy Please be aware that we are changing our policy on membership applications and renewals. Starting with the 2009-2010 membership year, there will be two open application and renewal periods, one from May 1st – 31st and a second from January 1st – 31st. Membership applications and renewals submitted outside of these dates will be held until the next open application period. There will be no exceptions and no discounts on membership regardless of when the application or renewal is submitted. Our membership year continues to run from July 1st – June 30th. Thank you for your support. Carma Harper is the Region 1 Directior for the Paralegal Division, Chair of the Community Service Committee and Liaison to the Young Lawyers Division. She is a paralegal with Strong & Hanni.]]> tag:webster.utahbar.org,2009:/barjournal//2.1808 2009-03-06T10:27:44Z 2009-03-06T11:16:16Z

Volume 22 No. 2 March/April 2009 PDF Version COVER: Lake Blanch, Sundial Peak, Big Cottonwood Canyon, by Heather Finch, Provo, Utah President-Elect & Bar Commission Candidates President's Message: Change President Elect's Message: Group Health Insurance Options Recent Changes to Federal...

BlogStaff www.utahbar.org PDF Version COVER: Lake Blanch, Sundial Peak, Big Cottonwood Canyon, by Heather Finch, Provo, Utah

President-Elect & Bar Commission Candidates

President's Message: Change

President Elect's Message: Group Health Insurance Options

Recent Changes to Federal Employment Laws Will Affect Utah Companies: Examining the ADA Amendments and New FMLA Regulations

Living With Twombly

Utah's Justice Court System, a Legal Charade

Got Trade Secrets? No? Guess Again

ERISA and Plan Administrator Conflicts - Analysis and Best Practices of the U.S. Supreme Court's Decision in Glenn

Researching Utah Administrative Law

UPDATE: Workers' Compensation & Liability Lawyers Beware: Section 111 of the MMSEA Imposes Signigicant New Penalties for Failing to Protect Medicare's Interests

State Bar News (Attorney Discipline)

]]>