Utah Bar Journal tag:webster.utahbar.org,2008:/barjournal//2 2008-04-16T12:44:10Z Movable Type 3.33 Vol. 21 No. 2 March / April 2008 tag:webster.utahbar.org,2008:/barjournal//2.1142 2008-03-31T16:27:32Z 2008-04-16T12:44:10Z Vol. 21 No. 2 March / April 2008 PDF Version COVER: Escalante Canyon at Lake Powell, Utah, by Steven Black of Alpine, Utah. * Letters to the Editor * The Ethical Utah Lawyer: What Are the Limits in Negotiation? *... BlogStaff www.utahbar.org Vol. 21 No. 2 March / April 2008 v21_no2_mar_april_2008.jpg PDF Version COVER: Escalante Canyon at Lake Powell, Utah, by Steven Black of Alpine, Utah. * Letters to the Editor * The Ethical Utah Lawyer: What Are the Limits in Negotiation? * Bankruptcy Exemption Planning: Counseling in Shades of Gray * Dealing with Metadata in the Non-Discovery Context * Interpreting Rules and Constitutional Provisions * Utah Law Developments: Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah * Views from the Bench: Senior Attorneys for Low-Income Litigants * Book Review: Blind Justice? A Review of Missing Witness by Gordon Campbell * Book Review: Business and Commercial Litigation in Federal Courts, Second Edition Edited by Robert L. Haig ]]> Letter to the Editor tag:webster.utahbar.org,2008:/barjournal//2.1141 2008-03-31T16:26:28Z 2008-03-31T16:37:14Z Dear Editor: I chime in re colleague Vetter’s excellent suggestions to improve our bar, particularly regarding bar finances and lawyer referral.... BlogStaff www.utahbar.org Dear Editor: I chime in re colleague Vetter’s excellent suggestions to improve our bar, particularly regarding bar finances and lawyer referral. 1. In 1973, bar dues were a fraction of today’s. The Justice Center made them jump many fold. Mandatory CLE added thousands to remain active. The Law Center is now paid. Bar dues should reduce. Isn’t the bar’s ideal to benefit the bar members as well as the public? Do not fall for the trap. The monster of bureaucracy has an insatiable appetite. However, please remember the little guy – the sole practitioner and foreign aliens with little English ability. 2. Utah Lawyer Referral died several years ago for a certain bar segment and certain society segment. For a few hundred dollars a year I received many immigrant inquiries in my solo international practice. Then in the guise of making lawyer referral “self sufficient,” the human element was removed and a California computer service replaced it. Now attorneys pay many hundreds for one category listing, and computer illiterate and English illiterate are effectively excluded. It was a bad idea. I am glad to hear we are rethinking lawyer referral. 3. No service of the bar should be “self sufficient.” Bar income should be divided by the commission between all services, lawyer referral included. Cannot the bar afford at least one receptionist to field referral inquiries? Nevada can. They not only have one receptionist – but three. And they receive on average 10 inquiries per month asking not for Nevada attorney referrals – but for lawyers in Utah! Does that tell you something about how lawyer referral in Utah has gone amiss? It sure does to me. There is a need not being met. George M. McCune Letter to the Editor tag:webster.utahbar.org,2008:/barjournal//2.1140 2008-03-31T16:25:25Z 2008-03-31T16:37:14Z Dear Editor: Judge Reva Beck Bosone has served as a role model and inspiration to many Utah women who have desired to become lawyers. I was reminded of this recently and decided to write concerning my limited experience with Judge... BlogStaff www.utahbar.org Dear Editor: Judge Reva Beck Bosone has served as a role model and inspiration to many Utah women who have desired to become lawyers. I was reminded of this recently and decided to write concerning my limited experience with Judge Bosone. Judge Bosone became the first Judicial Officer in what was then the Post Office. Since that time the Postal Service became a semi-independent agency in the Federal Government. I graduated from Stanford Law School in 1959, a time when it was extremely difficult for women to get employment in law firms or private business. Thanks to the Utah State Bar in 1998, I found out I was the 40th woman admitted to the Utah Bar. I was also admitted to the California Bar. To find employment I moved to the Washington, D.C. area and obtained positions with the Federal Government, including eight years on the Department of Interior’s Board of Land Appeals and then in 1980 I moved to the Postal Service’s Board of Contract Appeals within the Judicial Department. I learned then that I was only the second woman employed as an Administrative Judge in that Department – Judge Bosone and myself. We were both from Utah. Some of our support staff had worked with Judge Bosone. They had very favorable comments about her work and about her as a boss. I had the privilege of meeting Judge Bosone at a luncheon for graduates of the University of Utah’s Law School to which I had been invited. Though Judge Bosone was very old then and quite frail she still had that indomitable spirit which marked her legal and legislative career. I feel privileged to have followed somewhat in her footsteps. Joan Bear Thompson The Ethical Utah Lawyer: What Are the Limits in Negotiation? tag:webster.utahbar.org,2008:/barjournal//2.1139 2008-03-31T16:11:55Z 2008-03-31T16:37:15Z The Ethical Utah Lawyer: What Are the Limits in Negotiation? by Michael H. Rubin Editor’s Note: Mr. Rubin was the keynote speaker at the Utah State Bar’s 2007 Annual Convention. His engaging presentation included a turn at the “baby grand,”... BlogStaff www.utahbar.org The Ethical Utah Lawyer: What Are the Limits in Negotiation? by Michael H. Rubin Editor’s Note: Mr. Rubin was the keynote speaker at the Utah State Bar’s 2007 Annual Convention. His engaging presentation included a turn at the “baby grand,” which unfortunately cannot be replicated here. This article otherwise draws heavily on his remarks in Sun Valley as well as on his prior publications.1 The Lawyer as a “Zealous Advocate” For over two hundred years, lawyers have been encouraged to be “zealous advocates” of their clients’ interests.]]> State v. Clark, 2005 UT 75, 124 P. 3d 235; State v. Harmon, 956 P.2d 262, 276 (Utah 1998); State v. Price, 909 P.2d 256, 259 (Utah 1995); State v. Holland, 876 P.2d 357 (Utah 1994); Error v. Western Home Ins. Co., 762 P.2d 1077, 1083 (Utah 1988) (concurring opinion). Some believe that zealous advocacy has become too “zealous” and has resulted in an ill-mannered, overbearing, and unpleasant style of advocacy. The American Law Institute’s Restatement of the Law Governing Lawyers warns that zealous advocacy is not a synonym for hardball tactics in litigating or negotiating. Underlying the concept of a zealous advocate is the ideal of a lawyer who asserts the client’s position to the extent permissible by the law, even if the client’s views and goals do not coincide with the lawyer’s personal, political, or social views. Some say that even the zealous advocate who is polite and courteous while protecting the client is merely a “neutral partisan” – a fighter who engages in a legal battle to protect the client regardless of the underlying moral principles that might otherwise influence the outcome. Others say that such roles allow lawyers to be “amoral technicians” – those who use the system for the client’s benefit without concern for whether the client’s moral views and the lawyer’s moral views are aligned. But isn’t this too harsh a view of most lawyers? Aren’t most lawyers merely trying to achieve worthwhile goals for their clients? Of course they are. This does not mean, however, that the pursuit of a client’s interests frees a lawyer from moral tensions. The tension that most lawyers face is not balancing their personal view of morality and justice with their clients’ goals; rather, the tension is between protecting client confidences and revealing the “truth.” The Tension Between Client Confidences and the “Truth” Client confidences are protected by the Utah Rules of Professional Conduct as well as applicable civil statutes, and for good reason. Lawyers cannot fully advise clients unless they know all the facts, and clients would be reluctant to reveal all the facts to their attorney unless they know that their confidences are protected. Yet, the protection of client confidences sometimes means that lawyers often cannot reveal the “truth” (assuming that there is an absolute, omniscient “truth”) and often cannot correct misapprehensions that others may have and erroneous conclusions that others may draw. The more the public, the press, federal regulators, and others demand that lawyers have some type of professional obligation to reveal matters that can cause losses to others, the less client confidences can be protected. Conversely, the more protection we give to client confidences, the greater the chance that results perceived as “unjust” may occur because of the muzzle placed on lawyers by the client confidentiality rules. One cannot fully protect both “truth” and “client confidences”; absolutely favoring one eviscerates the other. The greater the protection one gives to client confidences, the less “truth” lawyers are able to reveal, for any revelation of a client confidence is a breach of that protection. On the other hand, the more one seeks to have lawyers disclose information that may prevent losses to non-clients, the less likely it is that clients will fully provide all pertinent information to their lawyers. A situation in which clients may not completely confide their secrets to their lawyers may lead to lawyers taking positions at odds with what their clients know to be the facts. What Can a Lawyer Do in Negotiations? What are the primary issues in any negotiation? Key are (a) the value of the property or settlement or damages at issue, and (b) the extent of the lawyer’s authority. Yet, the comments to both the ABA Model Rule and Utah RPC 4.1 seem to define both of these issues as not “material” and thus not worthy of truthful disclosure. Rule 4.1, relating to negotiations, differs from the rules regulating conduct before a tribunal. Utah RPC 4.1(a) prohibits a lawyer from making a “false statement of material fact.” The comments to Utah RPC 4.1, however, note that under “generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category .…” In other words, two of the most critical issues are defined away as being not “material,” and under the Rule there is no obligation to be truthful in statements about a fact that is not “material.” Contrast Utah RPC 4.1 with Utah RPC 3.3(a) dealing with a lawyer’s obligation to a court: the latter mandates that a lawyer not make a “false statement of fact or law to a tribunal.” Note the absence of the word “material” in section 3.3(a). In other words, before a tribunal, a lawyer is cautioned against making a misstatement of fact, regardless of whether it is material, while in non-tribunal negotiations only “material facts” cannot be stated falsely. Further, before a tribunal, Utah RPC 3.3(a) prohibits a lawyer from making a false statement about the law, while RPC 4.1(a) says nothing about statements of law. Why Disclose Anything You’re Not Compelled to Disclose? The limited rules relating to negotiations, as opposed to the broader and more detailed rules relating to litigation, have been the subject of much commentary. Arguments have ranged from a defense of “puffing” as an effective and useful negotiation tactic to charges that even something as mild as “puffing” is, in essence, not merely a deflection of the truth but is, rather, a lie. There are those who contend that no law or code of conduct requires “fairness” in negotiations. The development of the common law has been one of allowing enforcement of bargains made between experienced parties, even though one side has operated from a position of superior knowledge. Chief Justice Marshall, in Laidlaw v. Organ, 15 U.S. (2 Wheaton) 178, 179 (1817), held that there was no obligation to disclose facts that were “equally accessible to both parties.” In Laidlaw, the issue was that one party knew a key fact while the other did not. In those pre-telegraph times, the fact was that the Treaty of Ghent had been signed, meaning that the price of the tobacco over which the parties were bargaining was about to dramatically rise. Chief Justice Marshall enforced the deal that the parties had reached, endorsing the view that a negotiator may remain silent about a key fact in negotiations. Since the issue in Laidlaw related to something that would affect the price of the item being sold, arguably even RPC 4.1 would treat this as a fact that was not “material.” Perhaps the UCC rules of good faith and fair dealing arose as a reaction to and a partial restriction upon the common law’s enforcement of the “tough bargaining” approach; yet, it seems that the comments to the Rules of Professional Conduct acquiesce to misstatements, silence, and even incorrect statements about facts that are deemed not “material” as long as no fraud is being committed and no law is being broken. Laidlaw further shows the common law’s acceptance of misdirection. If one is not affirmatively asked a question, then remaining silent about a key (but not “material”) fact is apparently acceptable. Misdirection, after all, involves hiding your bottom line from the other side. It can include either silence or a true but incomplete statement of facts. No matter how it occurs, however, misdirection is always designed to lead the other party to an erroneous conclusion about the facts, about your true position, or both. If misdirection is not illegal and is not prohibited by the Rules of Professional Conduct, then why shouldn’t we all do it? That is a moral and ethical question. Not “ethics,” as in what is permitted by the Rules of Professional Conduct, but ethics in the broadest sense. In fact, the words “ethics” and “ethical” do not appear in the black letter text of the Rules; rather, they are in the Preamble and comments. If the Rules permit lawyers in negotiations to puff, mislead, and make misstatements about facts that the public at large might consider both pertinent and critical (such as the value of the item over which the parties are negotiating), then some might argue it is a misnomer to refer to the Rules as a code of “ethics.” The moral and ethical question that “misdirection” poses is whether, if you know that the other side is under a misapprehension or misunderstanding of what you have said (even if that misunderstanding accrues to your client’s benefit), you have a moral or ethical obligation to correct the other side’s misunderstanding, or whether you instead have a moral and ethical obligation to your client to obtain the best deal possible? More than 2100 years ago, Cicero wrote about this very issue in his letters to his son, arguing that holding things back does not always amount to concealment; but it does when you want people, for your own profit, to be kept in the dark about something which you know would be useful for them to know. Anyone can see the sort of concealment that this amounts to – and the sort of person who practices it. He is the reverse of open, straight forward, fair and honest: he is a shifty, deep, artful, treacherous, malevolent, underhanded, sly, habitual rogue. Cicero, Selected Works, Translated by Michael Grant, Penguin Books, Copyright (1960), pp. 178-79. It is this type of outcome, where sharp bargaining on behalf of one party obtains an advantage that would not otherwise be achieved without misdirection or silence on key issues, that can lead to a sense of injustice, no matter how “legal” the resulting agreement may be. So, What Should a Lawyer Do? There is no easy answer to the dilemma between (a) legally promoting the interests of our clients to the fullest extent permissible by law and (b) behaving in a manner that may be legal and that may not violate the Rules of Professional Conduct but which nevertheless raises difficult moral and ethical issues. What is clear, however, is that we should not be surprised if the public looks askance at lawyers and questions their “ethics” when even the ABA Model Rules seem to permit, in non-tribunal negotiations, misdirection, bluffing, and perhaps even lying (on “non-material” factual issues) in furtherance of the client’s interest. There is a constant tension between our duty to represent our clients and our duty to the profession. There is a practical tension between our wanting to get the best deal possible for our side and the aspirational duty of ethical fair dealing. There is a discernible difference between conduct that is permitted outside of litigation and conduct that can lead to sanctions against lawyers during litigation. I submit that, as difficult as these issues are, we as lawyers should strive to equate professionalism with ethics and to aspire, as the goal of the honorable legal profession, to have an even higher standard than the one under which our clients may operate. This view is reflected in Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F.Supp. 507, 512 (E.D. Michigan 1983), where the court noted that “[o]pposing counsel does not have to deal with his adversary as he would deal in the marketplace. Standards of ethics require greater honesty, greater candor, and greater disclosure, even though it might not be in the interest of the client or his estate.” This same view was espoused by Judge Alvin B. Rubin in his famous article, “A Causerie on Lawyer’s Ethics in Negotiations,” 35 La.L.Rev. 577, 589 (1975). While the ABA has rejected the Virzi dictum that a duty of candor exists in negotiations, see ABA Formal Op. 94-387, Sept. 26, 1994, the moral question is whether Virzi and other commentators have the ethical high ground. One may not agree with those who contend that the ethical basis of negotiations (in all non-tribunal actions) should be one of truth and fair dealing. One may not agree that lawyers should refuse to participate in or accept a result that is unconscionably unfair to the other side. Yet, if one considers the differences in the Rules requiring higher standards of conduct before a court than in non-tribunal negotiations, and if one considers the lawyer’s role as being more than a mere “neutral partisan” or “amoral technician,” then another approach may be possible. Perhaps a more practical formulation is needed to guide us in ethical negotiations, and I suggest the following for your consideration: If we wouldn’t do something in a courtroom context, if we wouldn’t make a misleading statement in a settlement conference with a judge, and if we wouldn’t remain silent about a misstatement made by our client or partner during discussions in court chambers or in open court, then we shouldn’t do any of these things in non-litigation negotiations of any kind. 1. A portion of this paper consists of adaptations of the author’s prior publications, including: “The Ethics of Negotiations: Are There Any?” 56 Louisiana Law Review 447 (1995); “From Screens and Walls to Screams and Wails: A Selective Look at Screening Among the Various Ethics Rules and Cases and A Consideration of Some Unanswered Questions,” The ACREL Papers, Fall, 2001 (ALI-ABA); “Breaching the Protective Privity Wall: Expanding Notions of Real Estate Lawyers’ Liability to Non-Clients,” The ACREL Papers, Fall 2002 (ALI-ABA); “The Ethical Negotiator: Ethical Dilemmas, Unhappy Clients, and Angry Third Parties,” 26 The Construction Lawyer 12 (2006); “Labor Negotiations: Do Any Rules of Ethics or Professionalism Really Apply?” ALI-ABA Labor Seminar, Spring 2003, and “Ethics,” The Construction Lawyer, Fall 2006.]]> Bankruptcy Exemption Planning: Counseling in Shades of Gray tag:webster.utahbar.org,2008:/barjournal//2.1138 2008-03-31T15:57:32Z 2008-03-31T16:37:15Z Bankruptcy Exemption Planning: Counseling in Shades of Gray by Joel Marker For a debtor’s counsel, the easiest bankruptcy case involves a client with little or no non-exempt property. To quote Kris Kristofferson from his ballad “Me and Bobby McGee,” “freedom’s... BlogStaff www.utahbar.org Bankruptcy Exemption Planning: Counseling in Shades of Gray by Joel Marker For a debtor’s counsel, the easiest bankruptcy case involves a client with little or no non-exempt property. To quote Kris Kristofferson from his ballad “Me and Bobby McGee,” “freedom’s just another word for nothin’ left to lose.” But for many individuals who qualify for Chapter 7 relief in spite of the substantial hurdles imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005 (those with incomes below the state median or whose debts are primarily business related), the issue of exemption planning remains important. Attorneys representing clients contemplating bankruptcy must be familiar both with state and federal exemption statutes, and with inconsistent case law, that may limit a debtor’s ability to take full advantage of the protections to which the debtor is entitled.]]> Understanding the Exemptions Available under State and Federal Law Under section 522(b), a debtor domiciled in Utah for the preceding two years may exempt individual retirement accounts, 401(k) accounts, and similar retirement funds, see 11 U.S.C. § 522(b)(3)(C), along with the property described in the Utah Exemptions Act, see Utah Code Ann. § 78-23-1 et seq. For example, in Utah a couple may exempt as their homestead, under section 78-23-3, up to $40,000 in equity of their jointly owned primary personal residence or (notice the disjunctive) $10,000 in value of jointly owned real property that is not their primary personal residence. Similarly, section 78-23-5 allows a debtor to exempt his interest in a laundry list of personal property, including: a) a burial plot; b) disability, unemployment, and medical and veterans benefits; c) alimony, child support, and qualified domestic relation order assets; d) household appliances, carpets, wearing apparel, and beds and bedding; e) provisions sufficient for 12 months (this “food storage” allowance is apparently unique to Utah); and f) life insurance benefits (not pledged as collateral) paid or payable to the debtor or his family. Section 78-23-8 also protects, subject to dollar limitations, furniture, animals, books, musical instruments, heirlooms, tools of trade ($3,500), and one motor vehicle ($2,500). From a planning standpoint, surely the most interesting and flexible exemption arises from the Utah Legislature’s 2005 amendment to the Exemption Act, which repealed former section 78-23-7 and inserted in section 78-23-5(1)(a)(xiii) an exemption for “proceeds and avails of any unmatured life insurance contracts owned by the debtor, excluding any payments made on the contract during the one year preceding a creditor’s levy or execution.” This exemption for the cash value of a life insurance contract is unlimited in amount and, within the confines of the one-year lookback, should provide a remarkable opportunity for the prudent individual to shield assets from the reach of creditors, both in and out of bankruptcy. A careful review of the statutes will help debtor’s counsel to describe assets that are exempt, but only experience will enable an attorney to focus his client’s attention on assets that are not exempt, and thus subject to administration by the trustee. Early in the planning process counsel should advise his client that the following are not protected and may be liquidated by the trustee: subject to the tracing provisions of section 78-23-9, cash; non-retirement financial accounts such as checking, savings, or brokerage accounts; contract claims; certain lawsuit claims; and the non-exempt value of otherwise exempt assets. Unlike the wildcard provision in the federal exemption scheme, section 522(d)(5), the Exemption Act does not protect cash in a debtor’s checking or savings account on the petition date. Likewise, a trustee may sell a car or house, notwithstanding a proper claim of exemption, if the net sale proceeds after paying consensual liens, costs of sale, and the allowed exemption (returned in cash to the debtor) will provide a benefit to creditors. Advising the Client of His Duties and All Available Exemption Claims An effective exemption plan begins with the client’s full, complete, and candid disclosure of all of his property, whether real, personal, or intangible. The attorney must advise the client of the client’s duty under section 521 to disclose all assets and of the sanctions that may be imposed for failure to do so, including: 1) loss of an otherwise allowable exemption, see section 522(g); 2) loss of the right to a discharge, see section 727(a)(2); and 3) loss of liberty, see section 18 U.S.C. § 152. Once the client has provided a complete list of assets, the attorney can begin to advise the client of strategies to use in obtaining an allowable exemption for as much property as possible. For example, since cash is not exempt, the attorney should counsel his client on the prudent purchase of exempt provisions to carry his family through the period following the filing of the petition. Assets with significant values above allowable exemption limits may be sold, with the net proceeds used to purchase needed exempt assets (to replace a worn-out refrigerator or stove, for example), or to pay down an otherwise nondischargeable obligation such as a tax debt, student loan, or child support arrearage. Keeping in mind that prebankruptcy sales and transfers must be disclosed, and that some transfers may be avoidable under section 547 (preferences) or section 548 (fraudulent conveyances), low-dollar exemption planning rarely results in the kind of scrutiny that leads to litigation. Nor should it. Providing the Client with an Informed Understanding of Pre-Bankruptcy Planning Under Current Law The real challenge arises with converting large amounts of non-exempt assets to exempt property. For example, a client with $200,000 of non-exempt equity in his homestead might ask if he can sell his house and purchase with the proceeds a single premium whole life insurance policy, claiming the policy as exempt under section 78-23-5(1)(a)(xiii). Although the attorney’s response should be in the affirmative, case law addressing aggressive exemption planning requires a more deliberate approach because courts have been inconsistent in their attempts to describe the boundaries of permissible bankruptcy planning. The analysis begins with the premise that “the conversion of non-exempt to exempt property for the purpose of placing the property out of the reach of creditors, without more, will not deprive the debtor of the exemption to which he would otherwise be entitled.” Marine Midland Bus. Loans, Inc. v. Carey, 938 F.2d 1073, 1076 (10th Cir. 1991). Carey first cites the legislative history for the proposition that exemption planning permits the debtor to make full use of the exemptions to which he is entitled under the law. However, the Tenth Circuit then states that simple exemption planning can be found fraudulent when tested against the classic badges of fraud, such as whether the conversion was concealed or disclosed, whether the conversion took place “immediately before the filing of the bankruptcy petition,” and the monetary value of the assets converted. The Tenth Circuit ultimately affirmed the lower court’s determination that the debtor’s systematic liquidation of non-exempt assets to pay down the mortgage on her homestead did not rise to the level of fraud necessary to deny her discharge or her exemption. It is interesting to note that Congress addressed the conduct complained of in Carey when it enacted new section 522(o), which imposes a 10-year lookback to recover increases in homestead value relating to transfers of non-exempt assets “with the intent to hinder, delay or defraud a creditor.” In Bank of Oklahoma, N.A. v. Boudrot, 287 B.R. 582 (Bankr. W.D. Okla. 2002), the bankruptcy court held that the debtors’ liquidation of their non-exempt savings accounts, in the amount of $54,000, and use of the proceeds to pay down the mortgage on their exempt homestead was such as to warrant denial of their discharge. Noting the lack of a coherent body of law on the subject, the court cited another source for the proposition that “fraud in bankruptcy planning appears to enjoy the same precise definition as pornography – the federal courts know it when they see it.” Id. at 585. And in Mathai v. Warren (in re Warren), Adv. No. 04-2671 (Bankr. D. Utah March 28, 2005) (unpublished memorandum decision, Boulden, J.), aff’d, 350 B.R. 628 (Table), 2006 WL 2882816 (10th Cir. B.A.P. 2006), the court noted the debtor’s pattern of sharp dealing, consistent with “a scheme to liquidate each and every asset, no matter the loss, to prevent payment to his creditors.” The court stated that although “some pre-bankruptcy planning is appropriate,” there exists a “precarious balance” between the competing interests of debtors and creditors in pre-bankruptcy planning. The court was struck by the debtor’s animosity toward the creditor and found the debtor abused pre-bankruptcy planning because his purpose was to place assets out of the reach of the creditors. A different approach is suggested in Murphey v. Crater, 286 B.R. 756 (Bankr. D. Ariz. 2002), which draws a rational distinction between transfers of assets that are truly fraudulent and those conversions of non-exempt assets to exempt assets that do not support a finding of fraudulent intent. The court held that unless the creditor that seeks to deny a debtor’s discharge based upon his pre-bankruptcy exemption planning shows some deception or concealment, an insider transaction, a fraudulent conveyance, a secretly retained possession or benefit, or debtor explanations that lack credibility, the presence of other badges of fraud that are not themselves intricately indicative of fraud (such as the timing of the transmutation or the amount at issue) are insufficient to shift to the debtor the burden of going forward, even if all of the debtor’s non-exempt assets are converted into exempt assets just after the debtor is sued and just before the debtor files for bankruptcy. Given the express Congressional statement that conversion of “nonexempt property into exempt property before filing a bankruptcy petition…is not fraudulent as to creditors, and permits the debtor to make full use of the exemptions to which he is entitled under the law,” ¹ one could easily argue that factors relating to timing or the amount converted from non-exempt to exempt assets are policy matters that should be left to the legislature. For example, under BAPCPA, Congress constrained the “Florida option” by imposing a 730-day residency requirement before allowing a debtor to claim the homestead of his new domicile, see section 522(b)(3)(A), and directly limited efforts to convert non-exempt assets into exempt homestead assets if made with the intent to hinder, delay, or defraud a creditor within ten years of the petition date, see section 522(o). The Utah Legislature has made similar policy determinations by providing for unlimited exemptions for individual retirement accounts, see Utah Code Ann. § 78-23-5(1)(a)(xiv) and unmatured life insurance contracts, see id. § 78-23-5(1)(a)(xiii), while at the same time limiting the protection to amounts contributed to such plans or contracts one year or more prior to bankruptcy or execution. Unfortunately, a rational policy argument is of small comfort to a client deciding whether to engage in otherwise lawful exemption planning, knowing that one risks offending a trustee or judge because one took advantage of an unlimited exemption shortly before filing a bankruptcy petition. Incorporating Ethical Responsibilities In light of the case law surrounding the issue of bankruptcy planning, how should attorneys advise their client? A review of an attorney’s ethical duties provides some guidance. The preamble to the Utah Rules of Professional Conduct provides that “as advisor, a lawyer provides a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” Rule 1.1 requires that an attorney must provide competent representation to a client, and Rule 1.4(b) provides that a lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Further, Rule 1.2(d) provides that while a lawyer may not counsel a client to engage in fraudulent conduct, the lawyer “may discuss the legal consequences of any proposed course of conduct…and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” An attorney representing a debtor in bankruptcy thus has the following duties: 1. To understand the exemptions available under state and federal law; 2. To advise the client of the client’s duty to fully disclose all property and prepetition transfers; 3. To assert for the client all available good faith exemption claims; and 4. To provide the client with an informed understanding of the client’s ability to engage in exemption planning and to explain the practical implications given the current state of the case law. Bankruptcy exemption planning is an area of law demarked by shades of gray rather than bright lines. A working knowledge of the exemption statutes and relevant case law will assist attorneys in leading their client to an informed decision of how to make best use of the exemptions to which the client is entitled. The Mathai v. Warren decision was recently affirmed by the Tenth Circuit. 2008 WL 62557. 1. H.R. Rep. No. 595, at 361 (1977), as reprinted in 1978 U.S.C.C.A.N. 5963, 6317; S. Rep. No. 989, at 76 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5862.]]> Dealing with Metadata in the Non-Discovery Context tag:webster.utahbar.org,2008:/barjournal//2.1137 2008-03-31T15:35:53Z 2008-03-31T16:37:15Z Dealing with Metadata in the Non-Discovery Context by H. Craig Hall, Jr. I’m not exactly sure how this was done, but rumor has it that lawyers used to practice law without computers. Word processing software, e-mail, spreadsheets, PowerPoint, and the... BlogStaff www.utahbar.org Dealing with Metadata in the Non-Discovery Context by H. Craig Hall, Jr. I’m not exactly sure how this was done, but rumor has it that lawyers used to practice law without computers. Word processing software, e-mail, spreadsheets, PowerPoint, and the like have become an almost essential part of the professional and personal lives of lawyers and their clients. Such technology can significantly enhance our communication capabilities and efficiency as lawyers. However, potential dangers abound for lawyers. Perhaps one of the most dangerous issues to be aware of is the existence of metadata in electronic documents.]]> The Sending Lawyer Utah Rule of Professional Conduct 1.6 requires that “[a] lawyer shall not reveal information relating to the representation of a client” unless a specific exception applies or the client gives consent. Comments 16 and 17 to Rule 1.6 caution lawyers to “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure” and to “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” In 2004, the New York State Bar Association issued an ethics opinion which concluded that “lawyers have a duty under [New York’s Rule 1.6 equivalent] to use reasonable care when transmitting documents by e-mail to prevent the disclosure of metadata containing client confidences or secrets.”8 Likewise, a 2006 Florida ethics opinion advised: “It is the sending lawyer’s obligation to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications.”9 It is relatively simple to remove or “scrub” metadata from electronic documents. Perhaps the easiest method is to convert the document into a portable document file (PDF). This conversion essentially turns the electronic document into a photocopy that is viewable and printable by the recipient. The newly created PDF document no longer contains any metadata from the original document.10 Third-party commercial products are also available for the removal of metadata. Further, Microsoft provides information to prevent metadata from being shared.11 Considering the relative ease with which most metadata can be removed, lawyers should take all reasonable steps to remove metadata from all types of electronic documents when communicating with other lawyers, clients, and third-parties. To date, it appears that no court has issued a ruling regarding the consequences of disclosing confidential client information solely through metadata. However, it certainly would not be a stretch for a court to rule that disclosure of such information (1) is a violation of Rule of Professional Conduct 1.6, and/or (2) operates as a waiver of one or more legal privileges, including the attorney-client privilege. The Receiving Lawyer It also appears that no court has ruled on what a lawyer may or may not do when one receives an electronic document that contains metadata. At least two rules of professional conduct arguably apply when a lawyer receives an electronic document containing metadata. On one hand, a lawyer may justify metadata examination under Utah Rule of Professional Conduct 1.3 and its comments, which mandate that the lawyer “shall act with reasonable diligence…in representing a client” and “must act…with zeal in advocacy upon the client’s behalf.” Indeed, one could argue that “reasonable diligence” and “zeal” would require the lawyer to search metadata for any relevant information. On the other hand, Utah Rule of Professional Conduct 4.4(b) states: “A lawyer who receives a document relating to the representation of the [opposing] lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” Comment 2 under Rule 4.4 makes clear that “document” includes e-mail or any other electronic modes of transmission subject to being read or put into readable form.12 Thus, Rule 4.4 may be used to assert that metadata examination should never occur. Unfortunately, the ethics opinions from other jurisdictions offer no clear guidance on this issue, as they vary greatly in their conclusions. Remember that these opinions apply only to metadata examination in the non-discovery context. Opinions concluding that metadata inspection is never permitted New York In 2001, the New York State Bar Association issued an opinion examining the question of whether “a lawyer ethically may use available technology to surreptitiously examine and trace e-mail and other electronic documents.”13 The opinion discussed not only metadata, but also situations where someone deliberately and secretly plants a “bug” in an e-mail sent to another lawyer which enables the user planting the bug to learn the identity of recipients and senders, and to view the comments these persons make regarding the document, as long as they have not “bug proofed” their systems. It certainly is not surprising that the opinion concludes that such “bugging” technologies are unethical and probably illegal. But the opinion failed to distinguish between this so-called bug-placing behavior and the simple inspection of ordinary metadata when it concluded that “a lawyer may not make use of computer software applications to surreptitiously ‘get behind’ visible documents [to view metadata] or to trace e-mail.” Alabama The Alabama State Bar’s March 2007 opinion relies heavily on the New York opinion and states: “the use of computer technology [for purposes of metadata examination] constitutes an impermissible intrusion on the attorney-client relationship in violation of the Alabama Rules of Professional Conduct.”14 The Alabama opinion also concludes that metadata examination violates Alabama Rules of Professional Conduct 8.4(c) and (d) which prohibit “dishonesty, fraud, deceit or misrepresentation” and “conduct that is prejudicial to the administration of justice.” Opinions concluding that metadata inspection may be permitted in some situations Florida The Florida State Bar counseled against metadata examination in its 2006 ethics opinion, which advises: “A lawyer receiving an electronic document should not try to obtain information from metadata that the lawyer knows or should know is not intended for the receiving lawyer. A lawyer who inadvertently receives information via metadata…should notify the sender of the information’s receipt.”15 There is difficulty with practical application of this opinion. Apparently, the receiving lawyer may review metadata if one knows the metadata is intended for the receiving lawyer. But how does the receiving lawyer know if the metadata is intended for the lawyer without first viewing it? Of course, the sending attorney could specifically inform the receiving lawyer that such communication is intended. But short of this specific disclosure, receiving lawyers in Florida are effectively prohibited from even attempting to obtain information from metadata. District of Columbia In September 2007, the District of Columbia Bar Association advised: “A receiving lawyer is prohibited from reviewing metadata sent by an adversary only where he has actual knowledge that the metadata was inadvertently sent.” 16 In all other circumstances, the receiving lawyer is free to examine the metadata. The opinion cautioned, however, that actual knowledge may exist, not only when a receiving lawyer is told of the inadvertent disclosure before review of the document, but also when a lawyer immediately notices upon review of the metadata that the information was obviously sent inadvertently. In footnote three to the opinion, the Ethics Committee warned that they “do not condone a situation in which a lawyer employs a system to mine all incoming electronic documents in the hope of uncovering a confidence or secret, the disclosure of which was unintended by some hapless sender.” Opinion concluding that metadata examination is always allowed American Bar Association The ABA appears to stand alone in its conclusion that metadata may always be reviewed by the receiving lawyer (assuming the receiving lawyer does not obtain the electronic document in a manner that was criminal, fraudulent, deceitful, or otherwise improper).17 In support, the opinion states: “Even if transmission of ‘metadata’ were to be regarded as inadvertent, [Model] Rule 4.4(b) is silent as to the ethical propriety of a lawyer’s review or use of such information.” Model Rule 4.4(b), which is identical to Utah Rule of Professional Conduct 4.4(b), advises that when a receiving lawyer inadvertently receives a document, the only obligation created by Rule 4.4(b) is to notify the sender that the document was received. The Rule does not prohibit the receiving lawyer from reviewing the document. Indeed, Comment three of Rule 4.4 indicates that the receiving lawyer may, but is not required to, return the document unread. Further, the ABA opinion specifically rejected the argument that a lawyer’s search for, or use of, metadata violates Model Rule 8.4 (also identical to Utah’s Rule 8.4), which prohibits lawyers from engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation” or conduct “that is prejudicial to the administration of justice.” In short, the ABA concludes that metadata may be reviewed by a receiving lawyer and that such review is not dishonest, fraudulent or deceitful. Conclusion It seems fairly apparent that a sending lawyer, in the non-discovery context, must take all reasonable precautions to either: (1) scrub all metadata from an electronic document before it is sent to an adversary, co-counsel, or some other third-party; or (2) be certain what metadata the document contains and that such metadata is intended to be sent to the recipient. It is less clear what a receiving lawyer should do when one receives an electronic document that contains confidential information within the metadata. To date, there is no published court ruling regarding the issue. Ethics opinions vary widely in their conclusions from: “it is never acceptable to review metadata;” to “it is sometimes acceptable to review metadata;” to “reviewing metadata is always permissible.” Further, the Utah State Bar has not yet issued an ethics opinion to give Utah lawyers specific guidance on this issue. It is the author’s opinion that unless Utah amends its Rules of Professional Conduct, the Utah Bar should adopt the ABA Opinion and advise that receiving lawyers may review metadata in electronic documents, even if such metadata is sent inadvertently. Although the Utah Rules regarding document disclosure require a receiving lawyer to “promptly notify” a sender of an inadvertently disclosed document, the Rules allow the receiving lawyer to fully review such a document. Inadvertently disclosed metadata should similarly be fully reviewable by the receiving attorney, especially since it is relatively simple to share electronic documents free of compromising metadata. 1. Fed. R. Civ. P. 26(f), 2006 Advisory Committee Note ¶ 26. 2. http://www.m-w.com/dictionary/metadata (last visited January 29, 2008). 3. D.C. Legal Ethics Comm., Op. No. 341, September 2007. 4. See examples of metadata and ways to control it at http://office.microsoft.com/en-us/help/HA011400341033.aspx (last visited January 29, 2008). One federal court opinion which is especially helpful in understanding metadata is Williams v. Sprint/United Mgmt. Co., 230 F.R.D. 640, 646-47 (D. Kan. 2005). 5. See Jembaa Cole, When Invisible Electronic Ink Leaves Red Faces: Tactical, Legal and Ethical Consequences of the Failure to Remove Metadata, 1 Shidler J. L. Com. & Tech. 8 (Feb. 2, 2005), http://www.lctjournal.washington.edu/Vol1/a008Cole.html. 6. See id. 7. See Fed. R. Civ. P. 16, 26, 33, 34 and 45 (effective December 1, 2006); Utah R. Civ. P. 16, 26, 33, 34 and 45 (effective November 1, 2007). 8. N.Y. State Bar Ass’n Comm. on Prof’l Ethics, Op. No. 782 (Dec. 8, 2004). 9. Prof’l Ethics of the Florida Bar, Op. No. 06-2 (September 15, 2006). 10. One must be aware that PDF documents contain their own metadata, such as the name of the original file from which the PDF was created, the network and computer identification of the person who created the PDF, and when the PDF was created. See http://www.llrx.com/columns/fios6.htm (last visited January 29, 2008). 11. Third-party commercial products include iScrub, Metadata Sweeper, Workshare, and others. Information from Microsoft is available at http://www.microsoft.com/downloads/details.aspx?FamilyId=144E54ED-D43E-42CA-BC7B-5446D34E5360&displaylang=en and http://office.microsoft.com/en-us/help/HA100375931033.aspx (last visited January 29, 2008). 12. Utah Rule of Prof’l Conduct 4.4(b) and Comment 2. 13. N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. No. 749 (December 14, 2001). 14. Ala. State Bar, Office of Gen. Counsel, Op. No. R0-2007-02 (March 14, 2007). 15. Fla. Bar Prof’l Ethics Comm., Advisory Op. No. 06-2 (September 15, 2006). 16. D.C. Legal Ethics Comm., Op. No. 341, September 2007. It should be noted that this Opinion is based, at least in part, on District of Columbia Rule of Professional Conduct 4.4(b), which differs from the Model Rule of Professional Conduct in that the D.C. Rule specifically prohibits examination of inadvertently sent documents. See D.C. Rule of Prof’l Conduct 4.4(b), and Comments [2] and [3]. 17. American Bar Association, Comm. on Ethics and Prof’l Responsibility, Formal Op. No. 06-442 (August 5, 2006). ]]> Interpreting Rules and Constitutional Provisions tag:webster.utahbar.org,2008:/barjournal//2.1136 2008-03-31T14:20:59Z 2008-03-31T16:37:16Z Interpreting Rules and Constitutional Provisions Remarks by Laura Dupaix, Linda Jones, and Christina Jepson Schmutz Edited by John Bogart Editor’s Note: At the July 2007 Convention of the Utah State Bar, the Appellate Practice Section sponsored a panel discussion on... BlogStaff www.utahbar.org Interpreting Rules and Constitutional Provisions Remarks by Laura Dupaix, Linda Jones, and Christina Jepson Schmutz Edited by John Bogart Editor’s Note: At the July 2007 Convention of the Utah State Bar, the Appellate Practice Section sponsored a panel discussion on some recent developments and trends in decisions of the Utah appellate courts. The discussion focused on expert testimony and constitutional interpretation. What follows is a summary of the remarks by the panelists.]]> I. Expert Testimony: Rimmasch and 702 Revisions. A revised Rule of Evidence 7021 came into effect November 2007, which makes this an opportune moment to consider the state of Utah law on expert testimony. The key case interpreting the old Rule is, of course, State v. Rimmasch, 775 P.2d 388 (Utah 1989). In Rimmasch, the Utah Supreme Court set out a three-part test for the admissibility of “novel scientific evidence.” First Rimmasch requires a threshold showing that the scientific principles and techniques are ‘inherently reliable.’ … Rimmasch’s second requirement is a determination that there is an adequate foundation for the proposed testimony, i.e., that the scientific principles or techniques have been properly applied to the facts of the particular case by qualified persons and that the testimony is founded on that work…. Finally, Rimmasch’s third requirement is a determination that the scientific evidence will be more probative than prejudicial as required by rule 403 of the Utah Rules of Evidence. State v. Butterfield, 2001 UT 50, ¶¶ 29-30, 27 P.3d 1133 (internal quotation marks and citations omitted). Accordingly, “the Rimmasch test was not intended to apply to all expert testimony. Rather, Rimmasch is implicated only when the expert testimony is ‘based on newly discovered principles.’” State v. Adams, 2000 UT 42, ¶ 16, 5 P.3d 642 (emphasis omitted). Consequently, if the principles or techniques at issue did not involve novel science, but instead involve techniques or principles generally accepted by experts in the field, the proponent of the testimony is not required to make a particular reliability showing for admissibility.2 Indeed, under the old Utah model, it appeared that if an expert relied on techniques or principles that are of the type reasonably relied upon in the field, that was sufficient for admissibility.3 Haupt v. Heaps, 2005 UT App 436, 131 P.3d 252 demonstrates the difficulty of determining whether testimony is “scientific” and thus triggers the inherent reliability test. In Haupt the Utah Court of Appeals affirmed the trial court’s decision to exclude three expert witnesses. The plaintiff argued that the trial court erred in excluding three expert witnesses, two of whom planned to testify about the value of the stock on the date the former employee sold his stock back to the company. See id. ¶¶ 15-16, 28. Dr. Paul Randle, an economist, planned to testify about the value of the stock using the “SLR Method,” which plots the known value of the stock on two different dates, and “draws a line between those two points and assumes that the value of the stock changed at a consistent rate between those two data points.” Id. ¶ 16. Dr. Randle admitted that he had never seen the SLR Method prior to his review of the company’s financial statements. In addition, he did not consider it to be a “valuation method,” id. ¶ 17, and he did not perform his own valuation of the stock. The trial court had ruled that under Rimmasch, Dr. Randle’s testimony was “novel scientific evidence” and must be shown to be inherently reliable. The trial court then found that the plaintiff could not meet this burden. The appellate court agreed that Dr. Randle’s testimony was “novel” but decided to “not resolve whether economic testimony is ‘scientific’ for purposes of Rimmasch.” Id. ¶ 24. Instead, the court affirmed on an alternative basis that the testimony would not assist the trier under Rule 702 because it was more prejudicial than probative. Likewise, the court of appeals affirmed the exclusion of Curtis Bramble, a certified public accountant, who was to testify about the SLR Method as well as a valuation technique using the stock price at a later date. The court again sidestepped Rimmasch and excluded the testimony under Rule 702 as not helpful to the jury. See id. ¶ 28. The trial court had also excluded the proposed testimony of Professor William Albrecht who was to testify that “the facts of this case are consistent with typical elements of fraud” based on his theory of fraud triangles. Id. ¶ 31. The trial court had noted that no previous court had found Professor Albrecht qualified to testify about his theory and counsel could not locate a single case in which the “fraud triangles” theory had been accepted as a reliable scientific method. The trial court excluded the testimony under Rimmasch and Rule 702. The court of appeals was reluctant to decide whether the economic testimony was “scientific.” Instead, the court affirmed under Rule 702 because the testimony was not helpful and simply noted that it “was not an abuse of discretion to exclude that testimony.” Id. ¶ 33. In contrast, in Balderas v. Starks, 2006 UT App 218, 138 P.3d 75, the Utah Court of Appeals affirmed the trial court’s decision to allow an expert witness on accident reconstruction. The defendant offered the testimony of an accident reconstructionist regarding “whether the forces generated in the accident could have caused the injuries claimed by Balderas.” Id. ¶ 5. The expert did not personally examine the cars, but instead relied on interviews with both parties about the accident, damage to the vehicles, a repair estimate for plaintiff’s vehicle, photographs of the vehicles, and literature about the vehicles. The expert then used a computer program called “PC Crash” to calculate momentum. Based on his analysis, the expert testified that there was “a low probability that anyone in the general population could have been injured in the accident.” Id. ¶ 9. On appeal, the plaintiff argued that the expert should not have been allowed to testify about impact speed, change in velocity, or the likelihood of injury because the testimony was inherently unreliable under Rimmasch since he had not personally examined the vehicles. The court of appeals held that Rimmasch did not apply because computer-modeled accident reconstruction did not involve novel scientific principles. Accordingly, the court found that the expert need only rely on materials reasonably relied upon by other experts in the field. The amendments to Rule 702 eliminate this problem by generally adopting the Rimmasch standards, but eliminating a distinction between scientific and non-scientific testimony. Obviously, there are not yet cases interpreting the new Rule 702, only the Committee Notes. The notes suggest that Rimmasch is no longer good authority, and that the Utah Rule now more closely resembles the Federal Rule. It would be a mistake, however, to treat all of the cases under the old Rule 702 as vitiated. In addition to Balderas, which likely remains good law, in Pete v. Youngblood, 2006 UT App 303, 141 P.3d 629, the Utah Court of Appeals affirmed the trial court’s decision to exclude a treating physician from giving expert testimony because he was not specifically identified as an expert by the plaintiff. See id. ¶ 36. The plaintiff identified a treating physician as a potential witness, but did not identify him as an expert. In response to the defendants’ motion for summary judgment, plaintiff offered an affidavit from the treating physician in which the physician opined about the standard of care. The trial court struck the affidavit and granted the defendants’ motion for summary judgment. The court of appeals held that the plaintiff was required to specifically identify the treating physician as an expert witness even if no report was required because the physician was not specially retained. The court rejected plaintiff’s argument that she had “substantially complied” with Rule 26(a)(3)(A) of the Utah Rules of Civil Procedure because the physician was named as a fact witness and his records had been provided to the defendants. The court noted that formally identifying an expert witness was necessary in order to allow the opposing party to properly conduct discovery and prepare for trial.4 See id. ¶ 17. The timely identification requirement has long been part of federal practice, and so Pete v. Youngblood is certainly still good law in Utah. Similarly, the guidance of State v. Rothlisberger, 2004 UT App 226, 95 P.3d 1193, will remain vital. In Rothlisberger a police officer involved in arresting the defendant and investigating drugs in the car testified at trial to the amount of methamphetamine that would typify personal use for a charge of possession with intent to distribute. The defense objected to the officer’s testimony on the grounds that it constituted expert evidence and the state failed to give pretrial notice of its intent to present the officer as an expert at trial. The Utah Court of Appeals and the Utah Supreme Court both ruled that while the officer in Rothlisberger was a fact witness, he presented expert evidence when he testified to the amount of methamphetamine that would typify personal use. That testimony was based on specialized knowledge implicating Rule 702. Consequently, the state was required to qualify the officer as an expert witness, and it was required to give expert notice under the Utah rules. Finally, we should note an area the courts are just beginning to come to grips with, and it is a puzzle common to both the Utah and Federal Rules. The problem of how to deal with changes in the relevant scientific standards, raised in State v. Hales, 2007 UT 14, 152 P.3d 321, is perplexing. In Hales the defendant was charged with the murder of a boy named Luther. In December 1985, Luther’s mother left the 5-month-old infant in Mr. Hales’s care while she went to the grocery store for half an hour. During that time, Mr. Hales “noticed that Luther was gasping for air and that his eyes had rolled back in his head.” Id. ¶ 7. Mr. Hales tried to revive Luther, and when his efforts failed, he ran for help and called 911. Luther was taken to a hospital where technicians performed CT scans. “ Doctors determined that Luther had brain swelling and retinal hemorrhaging and that his injuries were likely nonaccidental and caused by shaken baby syndrome.” Id. ¶ 10. Luther remained in a vegetative state until he died in 1997. At that point, the Utah Attorney General’s Office investigated the matter and in 2000 charged Mr. Hales with murder. The case went to trial in 2003. The State’s case relied in large part on an expert’s interpretation of the CT scans that were performed in 1985 and thereafter. The state’s expert, Dr. Walker, testified that the scans and retinal hemorrhaging supported nonaccidental, violent force, shaken baby syndrome. According to Dr. Walker, the injuries “would have caused immediate unconsciousness with no possibility of a ‘lucid interval.’” Id. ¶ 28. The defense, on the other hand, relied on Mr. Hales’s testimony of the events, and an expert qualified in shaken baby syndrome. Notably, the defense did not review the CT scans before trial, and the defense expert was not qualified to interpret CT scans. Thus, Dr. Walker’s testimony for the state went largely un-rebutted. At the conclusion of the evidence, the jury convicted Mr. Hales of murder. Mr. Hales then acquired new counsel, filed a motion for a new trial, hired an expert to interpret the CT scans, and appealed. According to Mr. Hales’s new defense team, the original trial attorneys were deficient because they failed to properly investigate the CT scans. In addition, the new expert claimed that Dr. Walker’s testimony was flawed and unfounded: nothing in the scans revealed the cause or the timing of Luther’s injuries. In fact, the scans showed a change in brain cell structure that may have been initiated some six to twelve hours earlier. Based on that post-trial testimony and the timing of the scans, the evidence supported that Luther had a lucid period between the initiating event causing injury to the brain and unconsciousness. If believed, the evidence would establish that the insult to Luther’s brain “most likely happened” several hours “prior to the time” that Luther was in Mr. Hales’s care on the evening of December 5, 1985. Id. ¶ 31 (emphasis added). The Utah Supreme Court agreed that the original trial attorneys were deficient in their investigation of the CT scans. It reversed Mr. Hales’s conviction and remanded the case for a new trial. According to newspaper reports, the state has since taken a fresh look at the evidence and has decided “there [is] not enough there to successfully prosecute” Mr. Hales in a new trial. Linda Thomson, Judge Dismisses ‘Shaken-baby’ Case, Deseret Morning News, June 16, 2007, at B01. The evidence is “insufficient” to proceed. Stephen Hunt, New Evidence Frees Inmate in Murder Case, The Salt Lake Tribune, June 16, 2007. That assessment appears to coincide with updated information now available on shaken baby syndrome. While Dr. Walker relied on a constellation of symptoms that experts have looked to for decades to support nonaccidental, violent force injury and abuse,5 there are new reports on the issue. Within the past couple of years, studies have demonstrated that the symptoms Dr. Walker identified for shaken baby syndrome are indicative of other nonviolent events. The symptoms may be the residual effects of trauma during birth in a newborn infant, a reaction to a vaccine, or the result of an infection, a respiratory paralysis, trauma to the head hours earlier with a lucid period of up to 24 hours, or other diseases or disorders. See id. In Hales the Utah Supreme Court declined to address whether Dr. Walker’s expert testimony was unfounded and improperly admitted at trial. Indeed, according to the literature, the theories that Dr. Walker relied on for his testimony had been generally accepted as reliable in the medical field for many years. But what we may have here is a paradigm shift in the field. Courts in other states are dealing with the issue and applying a reliability assessment to reject expert evidence concerning the “classic signs” for shaken baby syndrome.6 What happens if traditional, generally accepted methods and principles are later questioned as unreliable in a particular expert field? Should we expect the jury to sort through the evidence in a battle of the experts in a murder trial? Or should the courts require the proponent of the evidence to establish that the traditional methods are reliable as a threshold for admissibility? Under Rimmasch, the problem could not arise as a question of law. Because the old science could not, by definition, be “novel,” the expert testimony would be admissible under the old Rule 702, at least presumptively. Whether the Hales scenario remains problematic under the new Rule 702 is unclear. The new Rule directs attention to factors which might give some guidance, assuming Rimmasch really has suffered a mortal wound. But notice that, to the extent that the new Rule 702 provides guidance, it is limited. It does not dispose of the Hales scenario. The problem perhaps lies outside the Rules of Evidence. Rimmasch yielded absurd answers to the Hales scenario, while the new Rule provides tools to at least manage the problem. II. Utah Constitutional Interpretation: Which Way Forward? The preceding remarks presume a stable interpretive structure. That seems a reasonably safe bet for interpretation of the Rules, although not a certainty. To see why it is not a certainty, consider the recent history of the Utah Supreme Court’s directions on interpretation of the state constitution. For over twenty years, the Utah Supreme Court has pressed litigants to raise constitutional issues under our state constitution, particularly in criminal cases, encouraging parties briefing state constitutional issues to use a variety of sources, including historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials. See, e.g., Soc’y of Separationists v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993). But two years ago, the supreme court expressly adopted an originalist approach to state constitutional interpretation in American Bush v. South Salt Lake, 2006 UT 40, 140 P.3d 1235. Then, last year, without acknowledging or citing American Bush, the court issued an opinion applying an entirely different approach to state constitutional analysis in State v. Tiedemann, 2007 UT 49, 162 P.3d 1106. At issue in Society of Separationists was whether permitting prayer before city council meetings violated article I, section 4, of the Utah Constitution, which prohibited “public money or property” from being “appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Society of Separationists, 870 P.2 at 919 (quoting Utah Const. art. I, § 4. The Court held that it did not. The result reached in Society of Separationists was not as important as what the Court said about how article I, section 4 should be interpreted. The city argued that the article’s language had to be examined in light of its history and textual context. See id. at 920. The Society of Separationists, on the other hand, advanced a purely textual analysis, arguing that “any resort to history is inappropriate” and that “it is entirely proper to examine the constitutional language alone.” Id. The court rejected the city’s “apparent contention that the language of the Utah Constitution is not the proper starting place for analysis and can be ignored.” Id. It also rejected the Society’s claim that the provision “should be limited to [its] literal meaning.” Id. at 921. Rather, the court held, the language of article I, section 4 must be read in its entirety in light of “other [constitutional] provisions dealing with the general topic of freedom of religion and conscience” and “the unique history of church-state relations in Utah – relations that occupied center stage in our state’s social and political history for the almost fifty years preceding adoption of the 1896 constitution.” Id. The opinion suggested that historical evidence of the framer’s intent was critical to interpreting the state constitution. The court, however, stopped short of saying that this was the only source for determining the meaning of a constitutional provision. Rather, it suggested that sister state law and policy arguments would also be appropriate considerations: We have encouraged parties briefing state constitutional issues to use historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist us in arriving at a proper interpretation of the provision in question. Each of these types of evidence can help in divining the intent and purpose of the framers, a critical aspect of any constitutional interpretation. Id. at 921 n.6. (citations omitted). Thus, Society of Separationists stands for the proposition that the aim of state constitutional analysis is to divine “the intent and purpose of the framers,” and that this is best done by reading the constitutional text in light of its history. Issued thirteen years later, American Bush7 stated expressly what Society of Separationists only implied – that sister state law and policy arguments are relevant in state constitutional analysis only to the extent that they assist in discerning the framers’ intent. Justice Parrish, writing for a three-justice majority, adopted an interpretative framework for the Utah Constitution that can only be described as originalist in its approach. She wrote that interpreting Utah’s constitution requires an analysis of “its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.” Am. Bush v. S. Salt Lake, 2006 UT 40, ¶ 12, 140 P.3d 1235. This much is largely consistent with Society of Separationists, 870 P.2d at 921 n.6, and other prior caselaw interpreting the state constitution. The American Bush court explained, however, that the goal of construing a state constitutional provision is “to discern [not only] the intent and purpose of…the drafters of our constitution,” but “more importantly,” to discern the intent and purpose of “the citizens who voted it into effect.” American Bush, 2006 UT 40, ¶ 12. American Bush expressly and “intentionally excluded the consideration of policy arguments suggested by Society of Separationists v. Whitehead….” Id. ¶ 12 n.3. The supreme court elaborated: “As is the case with statutory interpretation, [the court’s] duty is not to judge the wisdom of the people of Utah in granting or withholding constitutional protections but, rather, is confined to accurately discerning their intent.” Id. Thus, “[p]olicy arguments are relevant only to the extent they bear upon the discernment of that intent.” Id. In other words, under American Bush, our state constitutional guarantees are those which the framers and citizenry intended them to be in 1895, unless the provision has been amended. Constitutional textual interpretation must therefore be informed “with historical evidence of the framers’ intent,” id. ¶10, which may include “the common law, our state’s particular…traditions, and the intent of our constitution’s drafters.” Id. ¶ 11 (omission in original) (citation omitted). It may also include “court decisions made contemporaneously to the framing of Utah’s constitution in sister states with similar…constitutional provisions.” Id. (emphasis added). Finally, because the Utah Constitution was “adopted…against the background of over a century of experience under the United States Constitution,” it is also appropriate to consider the history of the adoption of a corresponding federal provision. Id. (omission in original) (citation omitted). The majority opinion leaves no doubt that it intended to adopt a constitutional interpretative framework that aimed to divine the intent of the framers and ratifiers by looking primarily, if not exclusively, at historical evidence. Justice Durrant wrote a concurring opinion explaining why the originalist approach adopted by the majority was, in his view, the best approach. The question, according to Justice Durrant, was where judges “should look for guidance when assessing the meaning of that text.” Id. ¶ 73 (Durrant, J., concurring). Justice Durrant saw three possible approaches for interpreting constitutional text: (1) we can assign meaning to the text based on the attitudes and views of contemporary society (the “contemporary-context approach”); (2) we can assign meaning to the text based on our own individual attitudes and views (the “subjective approach”); or (3) we can assess the meaning of the text based on the understanding and intent of those who drafted and ratified the constitution (the “historical approach”). Id. ¶ 73 (Durrant, J., concurring). Justice Durrant noted that all three approaches ask the same question – “what does the provision mean?” – but that they did so from very different perspectives. Id. ¶ 74. The contemporary-context approach asks “what should the provision mean in the context of our modern values and attitudes?” Id. The subjective approach asks “what should the provision mean according to the interpreting judge’s own personal values and attitudes?” Id. The historical approach asks “what did this provision mean to those who drafted and ratified it?” Id. Under the latter approach, “the judicial enterprise is anchored to the text of the constitution as understood and intended by its framers and the voters who ratified it.” Id. ¶ 83. He advocated for the historical approach, as adopted by the majority, because, under it, “judges are more referees than players in the grand political game.” Id. ¶ 84. This, Justice Durrant believed, would provide “stability to state government while remaining true to the principle that it is the people of this state who should ultimately determine how our society should be structured.” Id. Chief Justice Durham dissented. She saw the issue as interpreting the “plain language” of the state constitution of article I, section 1, which gives Utah citizens the “inherent and inalienable right…to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Id. ¶ 114 (Durham, C.J., dissenting). Thus, in Chief Justice Durham’s view, the issue was simply whether nude dancing falls within the meaning of “communicate.” In concluding that nude dancing is “communicative in nature,” id. ¶ 117, the chief justice relied primarily on a modern understanding of the term “communicate” and on the history of dancing as traced back to its ancient roots. Id. ¶¶ 117-18. While the chief justice did rely on some history, she faulted the majority for relying too much on it: “I believe that the point of relying on history and the common law in interpreting our constitution is to inform our result, not dictate it.” Id. ¶ 133. Although American Bush does not expressly state that parties must brief state constitutional issues using the historical approach, its express adoption of that interpretative framework suggests that parties wishing to be successful should use that formula. Certainly, under American Bush’s holding, parties should, at a minimum, address the state constitutional text in light of its history, so as to show the framers’ and ratifiers’ intent. About eleven months after American Bush, the Utah Supreme Court decided State v. Worwood, 2007 UT 47, 164 P.3d 397, a Fourth Amendment appeal brought by a party who did not properly preserve a separate state constitutional claim under our state search provision. The supreme court did not address the merits of the state constitutional claim, but pointedly instructed counsel on how to raise and brief state constitutional claims in search and seizure cases. “As with most legal arguments,” the court stated, “there is no magic formula for an adequate state constitutional analysis. Arguments based, for example, on historical context, the constitution’s text, public policy, or persuasive authority would all meet our briefing requirements.” Id. ¶ 18. Worwood’s suggestion that “there is no magic formula” for adequately briefing state constitutional claims does not fit comfortably into American Bush’s originalist interpretive model. For example, Worwood’s invitation to brief “public policy or persuasive authority,” id. seems at odds with American Bush’s rejection of “policy arguments,” except as they may “bear upon the discernment of [the ratifiers’ intent].” Am. Bush v. S. Salt Lake, 2006 UT 40, ¶ 12 n.3, 140 P.3d 1235. The court did not address this apparent contradiction; and Worwood does not cite to American Bush, even though Justice Parrish authored both opinions. Worwood’s apparent abandonment of American Bush’s originalist model might have been explained away as mere dicta, but for the issuance of State v. Tiedemann, 2007 UT 49, 162 P.3d 1106, a week later. Tiedemann, charged with three counts of aggravated murder, argued that the destruction of physical evidence by the police violated the due process clauses of both the federal and state constitutions. To prevail under federal law, Tiedemann had to show that the police acted in bad faith in destroying the evidence. Tiedemann argued that the supreme court should adopt a different test under the state constitution. The state responded that Tiedemann had not adequately developed his state constitutional argument using “historical and textual evidence, sister state law, and policy arguments in the form of economic and sociological materials to assist [the court] in arriving at a proper interpretation of the provision in question” Id. ¶ 32 (alteration in original) (citation omitted). The state noted that while Tiedemann had cited to sister state law, he had not analyzed his claim within “the unique context in which Utah’s constitution developed.” Id. (citation omitted). Consistent with her dissent in American Bush, Chief Justice Durham, now writing for the majority, rejected any suggestion that “there is a formula of some kind for adequate framing and briefing of state constitutional issues before district courts and this court.” Id. ¶ 37. The court noted that it had “on numerous occasions cited with favor the traditional methods of constitutional analysis.” Id. It also noted that while “[h]istorical arguments may be persuasive in some cases,…they do not represent a sine qua non in constitutional analysis.” Id. “In theory,” the court continued, “a claimant could rely on nothing more than plain language to make an argument for a construction of a Utah provision that would be different from the interpretation the federal courts have given similar language.” Id. The court concluded that independent state analysis “must begin with the constitutional text and rely on whatever assistance legitimate sources may provide in the interpretive process.” Id. Yet, Justices Parrish and Durrant concur in this portion of the Chief Justice’s opinion. Tiedemann’s language on this point does not appear to be dicta. After explaining the appropriate approach to state constitutional analysis, Tiedemann adopts a new state constitutional due process rule for when evidence has been destroyed in a criminal case. In so doing, Tiedemann neither begins with the text nor cites any historical evidence on what the framers or ratifiers intended. Indeed, Tiedemann does not quote the constitutional text. The Tiedemann majority instead informs its constitutional analysis by reference to a rule of criminal procedure, and by noting that several states have adopted different rules under their own state constitutions. Thus, Chief Justice Durham’s opinion appears to dismantle the originalist analytical framework erected by Justices Parrish and Durrant in American Bush. The approaches used by American Bush and Tiedemann appear to be irreconcilable. Both Worwood and Tiedemann suggest that practitioners need not follow American Bush’s interpretative framework in briefing state constitutional issues. But since neither case cites American Bush, that may be a risky proposition. Until the Utah Supreme Court adopts a single interpretive model, the safest course for practitioners would be to begin with the constitutional text and to use and rely on historical evidence as much as possible in interpreting the text. While Tiedemann suggests that historical evidence is not the “sine qua non” of state constitutional analysis, it does not reject historical evidence as a legitimate source for interpreting constitutional text. Practitioners may then bolster their historical analysis with reference to policy arguments, economic and social studies, and the law of other states. 1. The pre-November Rule 702 read: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Utah R. Evid. 702 (2005). The post-November Rule 702 reads: (a) Subject to the limitations in subsection (b), if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. (b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case. (c) The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community. Utah R. Evid. 702 (amended effective November 1, 2007). 2. In State v. Kelley, 2000 UT 41, 1 P.3d 546, the Utah Supreme Court stated that if expert testimony is not based on novel scientific principles or techniques, “[t]he appropriate standard [for admissibility] is set forth in State v. Clayton, 646 P.2d 723 (Utah 1982).” Kelley, 2000 UT 41, ¶20. Under the Clayton standard, an expert must be qualified. Thereafter, the qualified expert may base an opinion on “reports or writings or observations not in evidence which were made or compiled by others, so long as they are of a type reasonably relied upon by experts in that particular field.” Clayton, 646 P.2d at 726. 3. In Kofford v. Flora, 744 P.2d 1343 (Utah 1987), the Utah Supreme Court ruled that once the reliability of a scientific principle has been demonstrated, “judicial notice of that fact may be taken, and hereafter foundational evidence as to the validity of the basic principles may be dispensed with in this jurisdiction in the future. As we wrote in [Phillips v. Jackson, 615 P.2d 1228 (Utah 1980)], ‘General acceptance in the scientific community…assures the validity of the basic principle.” Kofford, 744 P.2d at 1348 (omission in original) (quoting Phillips, 615 P.2d at 1233). Also, the Utah Supreme Court has stated that once a technique has reached general acceptance, the party opposing the evidence may challenge its reliability on cross-examination, “but such challenge goes to the weight to be given the testimony, not to its admissibility.” Clayton, 646 P.2d at 726. 4. It is important to note that the court of appeals reversed the summary judgment on the basis that the doctrine of res ipsa loquitur applied and no expert testimony was necessary. Pete v. Youngblood, 2006 UT App 303, ¶ 36, 141 P.3d 629. 5. See Harold E. Buttram, M.D., Shaken Baby/Impact Syndrome: Flawed Concepts and Misdiagnoses (Based on a Review of Twenty-Two Cases), (2002), http://www.woodmed.com/Shaken%20Baby%20Web%202002.htm (stating that for 30 years, a diagnosis for shaken baby syndrome has relied on a combination of subdural hematoma, retinal hemorrhage, and diffuse axonal injury). 6. More than ten years ago, a forensic pathologist in Wisconsin presented expert testimony of shaken baby syndrome to support a murder conviction against Audrey Edmunds. Edmunds was the last person with the child before the onset of the symptoms, and at the time of trial, “[t]he common wisdom in such ‘shaken-baby’ cases was that the last person with the child…was the guilty party.” Allen G. Breed, Sitter Hoping Latest Research Will Get Her a New Trial, The Salt Lake Tribune, April 29, 2007. Edmunds is now serving an 18-year prison sentence. Today, that same forensic pathologist states he does not know what caused the child’s head injury: “I’d say she died of a head injury, and I don’t know when it happened. There’s room for reasonable doubt.” Id. In other states, courts are rejecting expert testimony founded on the “common wisdom” that has prevailed for years in shaken-baby cases. Id. 7. The American Bush v. South Salt Lake, 2006 UT 40, 140 P.3d 135, case grew out of a South Salt Lake City ordinance banning nude dancing in sexually oriented businesses. American Bush and other such businesses challenged the ordinance as violating article I, section 15 – Utah’s freedom of speech provision. A majority of the court held that the provision did not protect nude dancing.]]> Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah tag:webster.utahbar.org,2008:/barjournal//2.1135 2008-03-31T11:37:27Z 2008-03-31T16:37:16Z Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah by Stephen D. Kelson On January 2, 2001, newlyweds Steven and Aimee Ellis were traveling by car on their honeymoon. Near Shelley, Idaho, Mr. Ellis lost control... BlogStaff www.utahbar.org Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah by Stephen D. Kelson On January 2, 2001, newlyweds Steven and Aimee Ellis were traveling by car on their honeymoon. Near Shelley, Idaho, Mr. Ellis lost control of the vehicle and crossed the center median into oncoming traffic, resulting in a collision with a two-ton Mitsubishi truck. Mr. Ellis died as a result of the accident. Mrs. Ellis was hospitalized with serious injuries, including a severe head injury, numerous broken bones, internal injuries, and emotional trauma. Four years later Mrs. Ellis filed a personal injury action against her husband’s estate for negligence, in the Third District Court, Salt Lake County, State of Utah.1 The Estate brought a motion to dismiss Mrs. Ellis’s claim, in part, asserting that it was barred by the doctrine of interspousal immunity.2 The district court granted the Estate’s motion in part, dismissing Mrs. Ellis’s claim of negligence and concluding with reluctance that interspousal immunity is abrogated in Utah only with respect to intentional torts. Mrs. Ellis appealed the decision.]]> Ellis v. Estate of Ellis,5 ending any dispute as to whether the doctrine of interspousal immunity still exists in Utah. In a unanimous decision, drafted by Justice J. Durrant, the court held that interspousal immunity has been abrogated in Utah with respect to all claims. This article briefly examines the Utah Supreme Court’s decision in Ellis v. Estate of Ellis. First it reviews the history of the doctrine of interspousal immunity. Second, it examines the “tortuous path” of the doctrine under Utah law and the arguable uncertainty and misunderstanding regarding its application. Finally, it examines the supreme court’s grounds for its reaffirmation of the abrogation of interspousal immunity, effectively slamming the coffin lid on the doctrine of interspousal immunity in Utah. The History of Interspousal Immunity The doctrine of interspousal immunity is a creation of English common law, arguably based upon early Roman law and subsequent Biblical interpretation of marriage, where a husband and wife became “one flesh,” united in purpose and spirit, making it illogical to place the spouse of an injured party in an adversarial position.6 As stated in Blackstone’s Commentaries on the Laws of England: By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing;…and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.7 This “coverture” or “spousal unity” theory placed a married couple’s legal identity in the husband, and prohibited one spouse from seeking a tort against the other for harm or injury, as the husband would legally have been both the plaintiff and the defendant in such litigation.8 This concept of common law coverture was adopted in the American colonies and continued well into the nineteenth century. In the United States, during the latter half of the nineteenth century, states began to pass Married Women’s Property Acts (or “Married Women’s Acts”) which terminated the common law unity of husband and wife, and established by statute that married women could “sue and be sued in the same manner as if she were unmarried.”9 These Acts significantly increased the legal rights of women, allowing them to sue their husbands, defend their property interests, and make claims for fraud, trespass, conversion, and negligent injury to property.10 However, state courts faced with legislative Married Women’s Acts often turned to public policy-based argument in order to justify the continued affirmation of the interspousal immunity doctrine. These public policy considerations generally included a mixture of the following arguments: 1) immunity preserves marital harmony, and interspousal tort suits will disrupt marital tranquility; 2) husbands and wives will engage in fraud and collusion in order to recover from liability insurance policies; 3) doing away with interspousal immunity will create excessive and frivolous claims; and/or 4) injured parties should pursue alternative remedies such as divorce or criminal charges.11 Although originally supported by many jurisdictions, courts throughout the twentieth century have abandoned these policy arguments. From 1920 to 1940, courts increasingly read Married Women’s Acts broadly, and the partial abrogation of interspousal immunity was a national trend. However, by the 1940s, a majority of jurisdictions still continued to recognize interspousal immunity.12 The doctrine continued to erode nationwide so that by 1970, a majority of states allowed intentional tort actions between spouses. By 1989, only one-sixth of the states retained immunity in some form, stressing the public policy arguments of marital tranquility, fraud, and judicial deference concepts. However, these arguments continued to erode, so that by the end of 1993, thirty-nine states had completely abolished interspoual immunity in its entirety,13 and by 1997, another six states joined the list.14 As of 2008, Louisiana remains the only state that retains interspousal tort immunity in relation to any tort action between spouses.15 Where the Utah Supreme Court case of Stoker v. Stoker 16 in 1980, appeared to abrogate interspousal immunity in its entirety, subsequent case law dicta left it arguably unclear as to whether only intentional torts or the entire doctrine had been abrogated, leaving both practitioners and commentators unsure as to the precise status of interspousal immunity in Utah. The “Tortuous Path” of Interspousal Immunity in Utah In Ellis, The Utah Supreme Court recently acknowledged that the common-law doctrine of interspousal immunity has traveled a “tortuous path” in Utah case law.17 Examining the history of Utah’s case law on the doctrine, the Arizona Court of Appeals found that: “[b]etween 1954 and 1980, the Utah Supreme Court twice reversed its interpretation of the governing statutes on the subject, each time by a divided court; and since 1980 the court has three times avoided deciding how its previous cases should be read.”18 Each time the doctrine has been addressed by the court, it has been required to weigh the significance of Utah’s Married Women’s Act and its interpretation, against arguable public policies. A. Utah’s Married Women’s Act of 1898. In the revised statutes of 1898, the Utah Legislature joined other states in enacting the Married Women’s Act (“the Act”).19 These statutes, in pertinent part, have remained unchanged since enactment, and can be found in principle part in Utah Code sections 30-2-2 and 30-2-4. Section 30-2-2 states: Contracts may be made by a wife, and liabilities incurred and enforced by or against her, to the same extent and in the same manner as if she were unmarried.20 Section 30-2-4 states: A wife may receive the wages for her personal labor, maintain an action therefore in her own name and hold the same in her own right, and may prosecute and defend all actions for the preservation and protection of her rights and property as if unmarried. There shall be no right of recovery by the husband on account of personal injury or wrong to his wife, or for expenses connected therewith, but the wife may recover against a third person for such injury or wrong as if unmarried, and such recovery shall include expenses of medical treatment and other expenses paid or assumed by the husband.21 Pursuant to the Act, the legal rights of wives were substantially expanded, permitting them to sue and be sued, enforce liabilities, and take action to protect their rights. B. The Married Women’s Act Versus Interspousal Immunity. The first case to address interspousal immunity pursuant to the Act occurred in 1954, in the case of Taylor v. Patten,22 where a wife sued her husband for injuries arising from an intentional tort. By a 3-2 decision, the Utah Supreme Court reinstated the wife’s intentional tort claim against her husband as a “sound public policy.” In deciding that a wife could recover from her husband for intentionally inflicted injuries, the court noted that although Utah statutes did not expressly authorize such recovery, “a liberal construction with a view to effect their objects and promote justice indicates that such was the legislative intention.”23 Two members of the majority stated: Under modern Husband and Wife statutes, such as ours, [the] fiction [of coverture] has been completely eliminated and the wife has been completely emancipated from this inability to own, control and manage her property, and from her inability to sue and be sued for the protection of her property and personal rights.24 Although joining to form the majority, Justice Crockett limited his concurrence to claims arising during the interlocutory period of a divorce action, and expressed his support of the doctrine of interspousal immunity and misgivings of permitting spouses to sue one another, on the grounds that such suits created marital discord and would lead to collusive lawsuits. Nine years later, the Utah Supreme Court overruled Taylor in the case of Rubalcava v. Gisseman,25 by a 4-1 decision, holding that a wife could not sue her husband for a negligent tort arising during their marriage.26 Drafting the majority opinion, Justice Crockett conceded that although “as a generality, the idea that the husband is master of the house exists more in theory than in fact,” public policy continued to favor interspousal immunity. The court asserted “to allow interspousal actions ‘encourages raids on insurance companies through unmeritorious claims which never would be instituted where the husband did not carry liability insurance,’”27 and that the prospect of liability insurance acted as a temptation for collusion, which would subvert marital accord.28 The court further asserted that if the legislature had intended to abolish interspousal immunity in tort cases it would have explicitly done so, and therefore reinterpreted Utah’s Married Women’s Act strictly, abolishing interspousal immunity only as it applied to contract and property cases. This interpretation applied whether or not a spouse was alive or deceased, and whether or not the conduct was intentional or unintentional. In 1980, the Utah Supreme Court revisited the issue of interspousal immunity in the case of Stoker v. Stoker,29 a case that involved an intentional tort claim by a wife against her husband. This time, a three member majority of the court rejected and reversed its decision in Rubalcava in its entirety, and reaffirmed the prior lead decision in Taylor, stating: The [Married Women’s Act] authorizes [a wife] to prosecute and defend all actions for the preservation and protection of her rights and property, as if unmarried. It speaks of rights and of property in the disjunctive, and, all actions for the preservation and protection of her rights would certainly include a right to be free from an intentional tort of her husband.30 The court further acknowledged that the Married Women’s Act was enacted pursuant to article IV, section I, of the Utah Constitution, which states that “Both male and female citizens of this State shall enjoy equally all civil, political, and religious rights and privileges.” The court also reiterated that the Utah Married Women’s Act should be liberally construed so as to promote justice. The court concluded that: The old common law fiction [of coverture] is not consonant with the realities of today. One of the strengths of the common law was its ability to change to meet changed conditions. Here, the Legislature did not wait for the common law to change, it made the change for it; and did so at a time when a great many of Utah’s sister states were enacting, or had previously enacted, Married Women’s Acts. Our holding today reaffirms the Legislative abrogation of Interspousal Immunity.31 However, the Utah Supreme Court’s flip-flopping from Taylor to Rubalcava and then to Stoker didn’t settle the issue in the minds of Utah attorneys and commentators. Although Stoker did “reaffirm” the abrogation of interspousal immunity in Utah, it was an intentional tort case, and did not specifically address unintentional tort actions between spouses. Furthermore, after the Stoker decision, the Utah Supreme Court marginally commented on the issue of interspousal immunity in the unintentional tort context on three separate occasions, and appeared to identify that the issue was still unresolved. In State Farm Mutual Automobile Insurance Co. v. Mastbaum,32 the Utah Supreme Court found that a household exclusion clause absolved a liability insurer of the duty to defend a husband in his wife’s personal injury suit. In his concurring opinion, Justice Zimmerman stated: Inasmuch as there are no grounds for reversing the instant case, I think it unnecessary for us to decide at this juncture whether Stoker v. Stoker, 616 P.2d 590 (Utah 1980), abrogated interspousal immunity with respect to actions grounded in negligence as well as those grounded in intentional torts.33 In Noble v. Noble,34 the Utah Supreme Court opined in a footnote that: In Stoker, this Court held that the doctrine [of interspousal immunity] had been abrogated with respect to intentional torts. Id. at 590, 592. We have never had occasion to decide whether this abrogation extended to negligence claims, and we do not do so in this case. It is unnecessary for us to reach that question because our disposition of [the plaintiff’s] intentional tort action makes it a certainty that she will have a remedy for her injuries.35 These comments by the court in Mastbaum and Noble suggested that Stoker did not fully abrogate interspousal immunity. In the subsequent case of Forsman v. Forsman,36 a plaintiff sued her husband and another individual in Utah for damages sustained as a result of an unintentional automobile collision. However, on appeal, the Utah Supreme Court found it necessary to apply the law of the domicile state (California), and did not discuss or comment on the issue of interspousal immunity under Utah law. The decisions in these three cases provided limited credence to arguments made by defendant insurance companies at the district court level that interspousal immunity still applied to unintentional torts in Utah. Fifteen years after Stoker, in 1994, the Arizona Court of Appeals found it necessary to examine Utah law regarding interspousal immunity in a negligence case. In Lucero v. Valdez,37 a wife brought suit against her husband for damages sustained in a vehicle accident that occurred while the couple was traveling through Arizona from their home in Utah. The court examined “whether the Stoker majority intended to limit its decision to the facts, rejecting interspousal tort immunity for intentional tort claims only, or whether it intended a wholesale rejection, not only in intentional tort claims but in negligence claims as well.” The court concluded that the decision of Mastbaum and Noble held that the issue remained open in Utah. However, the court determined that the rationale set forth in Stoker articulated the rejection of interspousal immunity in all cases. However, noting that the Utah Supreme Court might again reverse its decision, the court held that Arizona law should apply and permitted the plaintiff’s negligence claim. In 2007, more than a quarter century after its decision in Stoker, the Utah Supreme Court was presented a case requiring it to address whether or not interspousal immunity applied to unintentional torts in Utah. The Reaffirmed Death of Interspousal Immunity. The Utah Supreme Court’s decision in Ellis v. Ellis specifically addresses whether or not Utah joined the list of states abolishing interspousal immunity in the 1980 case of Stoker, and if not, whether the doctrine should be upheld. The court concluded: “We now reiterate our Stoker analysis and hold that the common-law doctrine of interspousal immunity has been abrogated with respect to all claims.”38 Where the court acknowledged the tortuous path of the doctrine of interspousal immunity in Utah case law, it identifies that both majority opinions in Rubalcava and Stoker found no basis to distinguish negligence from intentional tort claims, stating: [I]n Stoker, after reversing course from Rubalcava and reaffirming Taylor, we made this broad, clear statement: “Our holding today reaffirms the Legislative abrogation of Interspousal Immunity.” Stoker was meant to be our final pronouncement on the subject – interspousal immunity was now dead in Utah as to all claims. . . . . In sum, because we rejected in Rubalcava and Stoker any distinction, for the purposes of interspousal immunity, between negligent and intentional torts, and because in Stoker we rejected interspousal immunity for reasons that apply equally to negligent and intentional torts, we conclude that interspousal immunity has been abrogated in Utah with respect to all claims.39 The court’s decision to reaffirm Stoker’s abrogation of interspousal immunity is based on its conclusion that the two primary policy rationales previously used to justify the doctrine in its Rubalcava decision – marital discord and collusion – are without merit. Doing so, the court found that it had no “penetrating insight” to determine the doctrine’s effect upon a marriage, and that barring actions between spouses may cause as much marital discord as allowing them, and that it is doubtful that marital harmony can be “preserved or restored by refusing to redress a palpable wrong or compensate a genuine injury.”40 The court also rejected that the abrogation of the doctrine would create collusion, finding that the argument had previously been rejected in regards to household exclusion clauses in automobile insurance policies, and has never been accepted in Utah as grounds for endorsing the parent-child immunity doctrine.41 Furthermore, as trial judges and juries examine evidence in order to arrive at proper verdicts, they “would naturally be mindful of the relationship and would be even more on the alert for improper conduct.”42 Refuting the public policy arguments long used to support interspousal immunity in Utah, the Utah Supreme Court’s decision in Ellis ends any argument that the doctrine continues to exist in any form. Conclusion The doctrine of interspousal immunity has been dying across the United States throughout the twentieth century. For over a quarter century, legal practitioners have been waiting to learn its ultimate fate in Utah. The Utah Supreme Court’s decision in Ellis has definitively set the issue to rest – the doctrine is entirely dead in Utah. 1. Due to a failure to file her claim within a year of Mr. Ellis’s death, the Estate’s liability was limited to Mr. Ellis’s insurance coverage. See Utah Code Ann. §75-3-803(1)(a), (4)(b) (1993). 2. The Estate’s motion also argued that the statute of limitations had run on Mrs. Ellis’s negligence claim. The district court denied this argument and determined that lay affidavits were sufficient to establish a genuine issue of material fact as to Mrs. Ellis’s mental incompetence for a time sufficient to toll the four-year statue of limitations, pursuant to section 78-12-36. See Utah Code Ann. §78-12-36 (2002). 3. Utah Married Women’s Act, Utah Code Ann. §78-11-1, 30-2-2, 30-2-4 (1953, as amended). 4. Stoker v. Stoker, 616 P.2d 590, 590 (Utah 1980). 5. Ellis v. Estate of Ellis, 2007 UT 77 169 P.3d 441. 6. Laura H. Wanamaker, Note, Waite v. Waite; The Florida Supreme Court Abrogates the Doctrine of Interspousal Immunity, 45 Mercer L. Rev. 903. See also Hatch v. Hatch, 46 Utah 116, 148 P. 1096, 1099 (1915). 7. Stoker, 616 P.2d at 590-91 (quoting Colley’s Blackstone, Volume 1, Book 1, Chapter 15, page 290 (1879)). 8. Carl Tobias, Interspousal Tort Immunity in America, 23 Ga. L. Rev. 359, 361-62. 9. See Utah Code Ann. § 78-11-1 (1953, as amended). 10. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 122 (5th ed. 1984). 11. Wanamaker, supra note 6, at 906. 12. Tobias, supra note 8, at 423-25. 13. Wanamaker, supra note 6, at 907. 14. See Interspousal Torts: A Procedural Framework for Hawi’i, 19 U. Haw. L. Rev. 377, 381 (1997). 15. See La Rev. Stat. § 9:291. 16. Stoker, 616 P.2d at 592. 17. Ellis, 2007 UT 77, ¶ 99. 18. Id. (quoting Lucero v. Valdez, 180 Ariz. 313, 884 P.2d 199, 205 (Ct.App.1994)). 19. See Utah Revised Statutes § 1201 (1898). 20. Utah Code Ann. § 30-2-2 (1953, as amended). 21. Id. § 30-2-4 (1998). 22. See Taylor v. Patten, 275 P.2d 696, 698 (Utah 1954). 23. Id. at 696. 24. Id. at 697-98. 25. See Rubalcava v. Gisseman, 384 P.2d 389 (Utah 1963). 26. See id. at 393. 27. Id. at 391-92 (quoting Brown v. Gosser, 262 S.W.2d 480, 485 (1953)(Sims, C.J., dissenting)). 28. Id. at 391. 29. Stoker v. Stoker, 616 P.2d 590 (Utah 1980). 30. Id. at 591. 31. Id. at 592. 32. State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d 1042 (Utah 1987). 33. Id. at 1044-45 (Zimmerman, J., concurring). 34. Noble v. Noble, 761 P.2d 1369 (Utah 1988). 35. Id. at 1375 n.7 (citations omitted). 36. Forsman v. Forsman, 779 P.2d 218 (Utah 1989). 37. Lucero v. Valdez, 884 P.2d 199 (Ariz. App. Div. 1 1994). 38. Ellis, 2007 UT 77, ¶ 21. 39. Id. ¶¶ 23-24 (citations omitted). 40. Id. ¶ 27 (quoting Keeton § 122, at 903 (5th ed. 1984)). 41. See id. ¶¶ 28-29. 42. Id. ¶ 29 (quoting Farmers Ins. Exch. v. Call, 712 P.2d 231 (Utah 1985)(internal quotation marks and citations omitted)).]]> Senior Attorneys for Low-Income Litigants tag:webster.utahbar.org,2008:/barjournal//2.1134 2008-03-31T11:32:25Z 2008-03-31T16:37:16Z Senior Attorneys for Low-Income Litigants by Judge Sam McVey I hope to generate a discussion in the Bar Journal and elsewhere of new ideas addressing an old problem – providing legal representation to litigants who can’t afford attorneys and aren’t... BlogStaff www.utahbar.org Senior Attorneys for Low-Income Litigants by Judge Sam McVey I hope to generate a discussion in the Bar Journal and elsewhere of new ideas addressing an old problem – providing legal representation to litigants who can’t afford attorneys and aren’t among the few who get help from Legal Services, Legal Aid, or attorneys who do pro bono work.]]> Professor Richard Zorza recently presented a CLE entitled “Self-Represented Litigation.” Professor Zorza called for judges to in essence remove the need for legal representation for poor litigants by operating in a mode of “engaged neutrality.” “Engaged neutrality,” as defined by Professor Zorza, means judges should be responsible to ensure all relevant facts are brought out in a case. The court would “engage the parties, as needed, to bring out these facts and their foundation.” The court would thus advise and remind pro se litigants regarding how to fill in the holes left by their presentation of their case, and even go so far as to engage in extensive examination of witnesses, laying foundations, and authenticating documents. To me and most people I talked to after the presentation, it appeared “engaged neutrality” was simply another name for advocacy by the court. I did not think most Utah attorneys and other citizens would appreciate having to try their case not only against an unrepresented party but against the judge as well. While I can see directing pro se parties to the jury instruction web site, to the Tuesday Night Bar or to a court calendar where they might watch a trial, I can hardly see reminding them to offer testimony on a cause of action’s missing element they forgot to present during their case in chief. I suppose the odds might be evened by doing the same for the party represented by counsel, but doing so seems to move the court from a neutral fact finder role to an advocate and interferes with counsel’s tactics in presenting her or his case. Rather than solving the unrepresented party problem by turning the court into a European inquisitor, I suggest another possible solution that assures these people have counsel using resources presently available. I am not proposing we provide representation to parties who do not trust attorneys and would not hire one regardless of their income, although they would benefit from “engaged neutrality.” Nor would my suggestion cover pro bono help for the ballet or symphony. I’m also not suggesting we go back to some of the mandatory pro bono models discussed in the last 25 or so years which carried a stigma of violating the 13th Amendment. Instead, I believe we have a resource not only here in our state but throughout the United States available to be tapped to provide low- and no-income deprived parties with top-notch representation. The president of the American Bar Association pointed out last year that something on the order of 200,000 attorneys will reach retirement age in the next five years. I’m sure that figure includes several hundred Utah attorneys and this is just the front of the baby-boomer retirement phenomenon. Many of these attorneys will retire and, of course, many will continue working full or part time but not necessarily for economic reasons. Rather, like some senior private practitioners, public servants and law professors, they either simply want to keep busy and love the practice or some of their clients beg them to stay around for the security they provide. These men and women because of their experience are some of the best attorneys in the State. They are public-minded and many would be willing to devote a morning or two per week to service. Most would probably be willing to step up, go to their office or some local equipped office space staffed by a secretary, and take pro bono cases. I understand there are IOLTA funds that could provide regional office space at a few locations around the state, staff help, and possibly professional liability premiums for pro bono work. Some protective professional liability legislation may also be enacted as a reward for their good deeds. Senior counsel may know retired legal assistants and secretaries willing to help on occasion. It may not be necessary for the Bar to hire a pro bono coordinator for them because they would enjoy forming a committee to handle administration themselves. These attorneys know how to resolve disputes and could negotiate a number of resolutions short of trial. A substantial number may also be willing to appear in court with or file appeals for pro bono clients. My impression is most court cases encountered would not be lengthy affairs or involve deposition fees, transcripts and other high costs. Courts will grant in forma pauperis petitions and participating counsel could refer out fee-generating cases or keep them for their private practice. Implementation, publicity, and invitations to help with such a program would rest with our bar organizations as do current pro bono efforts. Our senior attorneys are developing in numbers that provide an opportunity, finally, to solve the issue of people who cannot afford counsel. I hope to engage in such representation when I retire. Blind Justice? A Review of Missing Witness tag:webster.utahbar.org,2008:/barjournal//2.1133 2008-03-31T11:29:02Z 2008-03-31T16:37:16Z Blind Justice? A Review of Missing Witness by Gordon Campbell Reviewed by Betsy Burton In theory, justice must be blind if it is to be fair; the same may be said of book reviews. If a critic is for some... BlogStaff www.utahbar.org Blind Justice? A Review of Missing Witness by Gordon Campbell Reviewed by Betsy B