Utah Bar Journal

In the Jan/Feb 2012 Bar Journal the Bar Commission announced a newly adopted “Diversity and Inclusion” policy. The policy broadens the term diversity to be inclusive of almost every personal, cultural, and economic characteristic imaginable. But, the policy is not new, it merely elucidates the Mission and Vision of the Bar; to create a just system, respected, and accessible to all. Why the new expansive definition of diversity?

The globalization of the term diversity implies that integration of racial and ethnic minorities into the legal profession is, Mission Accomplished. As the Bar President states in his message, “[Diversity] is No Longer Black and White.” Really? Attorneys racially or ethnically different than the majority of Bar members are treated as equals? Then how do you explain that soon there will only be 3/71 District Court Judges and 3/108 City Court Judges that are racially or ethnically diverse? The minority community representative on the Bar Commission has no vote. Can readers name a medium/large firm with a minority partner?

The policy acknowledges identifiable groups are treated differently. Rather than identify practices that inhibit equality the Commission passively expands the definition of “diverse” groups, encourages diversity training, and prints articles. Rather a timid response to acknowledged disparate treatment.

The article’s account of how aristocrat Robert Shaw led a Negro regiment to “Glory,” 150 years ago, echoes the myth that discrimination is a historical footnote. Discrimination doesn’t vaporize because we admire historical figures, celebrate a holiday, or pass superfluous policy. We must remain vigilant and cognizant of barriers to equal treatment. Is the Commission reluctant to identify obstacles?

I write not to offend, but to remind fellow lawyers that, theoretically, we seek justice for all, even our own. Is there no Robert Shaw among us to lead the diverse charge?

Michael N. Martinez

My friend, Richard J. Leedy, Esq., died on November 10, 2011. He was one of the “Lions” of the legal profession, an exceptional lawyer who revolutionized the practice of securities law through his vigorous and innovative tactics beginning in the late 1960s and early 1970s from his white carpeted suite of offices he shared with his partner, Joseph H. Bottum, III, Esq. (deceased) in the Newhouse Building in Salt Lake City, Utah. “Dapper” would have been an understatement for Dick’s daily apparel, while “rumpled” clearly fit the deep base toned voice of Joe bellowing “Bottum here!,” whenever he answered the telephone. They were quite a pair!

Dear Editor:

We just opened our July/August issue of the Journal and saw the letter from Michael Deamer regarding mandatory CLE. We agree with his concerns. Mandatory CLE should only be imposed if an attorney demonstrates incompetence and needs a remedial course. Otherwise, CLE should be voluntary. By the way, in our experience the least useful CLE courses are generally the ethics courses.

Chris L. Schmutz
Jay R. Mohlman

Im just completing my cycle for continuing education. Someone in authority ought to re-examine this entire process. It needs to be more reasonable. When I teach a seminar to attorneys (which requires usually about 15 hours of preparation of a written outline and to teach), or when I write an article for publication (which takes a minimum of 12 hours) or teleconference with attorneys throughout the nation for sophisticated discussion of legal topics, I find I can only count a total of 9 hours for all this activity. (12 hours in a normal cycle). Half of my CLE must be in actual attendance in a meeting with attorneys listening to a lecture on some remote case law. The least effective way of learning is attending a lecture. The best is studying and teaching or writing on a topic. Why are we required to spend half of our time in the least effective learning process?

Secondly, why do we have mandatory CLE in the first place? Most attorneys who are a problem to the Bar and the public (according to the disciplinary section of the Bar Journal) have character defects not knowledge defects. Character defects such as stealing client funds, lying, criminal convictions, fraud, neglecting cases, failure to communicate with clients, etc. These are not knowledge issues. When was anyone disciplined for not knowing how to take a deposition, or how to cross examine an expert or how to file a probate petition? Yet our mandatory (in the classroom) CLE mainly focuses on knowledge issues not character defects. Why dont we have some reasonableness and more liberal interpretations and applications, if we have to have mandatory CLE at all?

Michael L. Deamer

Dear Editor:

There is a prominent billboard currently located in Payson along I-15 that advertises for a law firm with the tagline “Just sue ‘em!” I am repeatedly disgusted whenever I must pass that sign and cannot believe that members of my own profession, a profession which since time immemorial has been fighting to rid itself of the negative stigma that the public places on the majority of its practitioners, continue to perpetuate the stereotype of the ruthless, court-loving, money-hungry lawyer.

Dear Editor,

I was looking through the July/August 2010 edition of the Utah Bar Journal and noticed on page 54 that Aaron Thompson is described as a “paralegal specializing in diverse commercial insurance exposures...” Whenever I see a word like “specializing” or “specialist” in relation to the practice of law in Utah, a flag goes up, since Utah does not have a board of legal specialization, resulting in relatively few attorneys that can hold themselves out as specialists. So I have to ask: Is it okay for a paralegal in Utah to hold himself out as a specialist while the attorney for whom he works cannot? Whatever the answer may be, thanks for your good work on the Journal.

Glenn Halterman

Dear Editor:

After reading Brent Armstrong’s article, “Should Utah Lawyers Stop Forming Utah LLCs? A Response to Smith/Atwater,” published in the Jan/Feb 2010 issue of the Utah Bar Journal, we write to clarify the premise of the article we wrote and to which he is supposedly responding. Our article highlights only three factors (and there are many, including costs, ease of filing, body of case-law interpreting the applicable LLC statute, etc.) that attorneys should consider when forming an LLC – whether that LLC be formed in Utah or elsewhere. Our article focuses on the client – how are the clients’ interests best served? As attorneys, we have an obligation to zealously represent the interests of our clients (not their creditors or other third parties). The decision to form an LLC in Utah or in some other jurisdiction needs to be made based on what best accomplishes the clients’ goals. Choosing a specific jurisdiction of formation is just one of many options available to attorneys to advance their clients’ interests. If, for example, a client is interested in protection from creditors, then a Utah LLC may be inappropriate for that client regardless of the policy reasons for including a foreclosure provision in the Utah LLC statute. Mr. Armstrong’s assertion that we recommend never forming Utah LLCs is entirely FALSE. In certain circumstances, a Utah LLC may best suit a client’s interests. However, so long as Utah keeps its existing LLC statute (which national commentators have described as “hostile to businesses,” a “Frankenstein statute” – due to its piece meal structure, and “one of the worst drafted LLC statutes”) and there are business-friendly alternatives, we as attorneys will have an opportunity, if not an obligation, to choose which alternative LLC statutes best meet our clients’ needs.

Russell K. Smith

The Utah Bar Journal has been receiving and publishing word of lawyers who do pro bono work at various clinics, and that work is commendable indeed. Not published in these lists, however, are the names of those who do their alms in secret. Recently I was blessed by someone from the latter group.

Dear Editor,

Recently, there was a Bar Journal article critical of the legislative process arising out of the appeal of a justice court traffic case: West Jordan City v. Goodman, 2006 UT 27, 135 P.3d 874. The appeal failed primarily because the “briefing on the constitutional claim was inadequate,” id. ¶1, and the defendant “failed to offer any probative evidence in support of his conflict of interest claim.” Id.

Dear Editor,

A book review in the September/October 2008 edition began with the assertion that prosecutors are the cause of many of the problems in the criminal justice system, and that prosecutors intentionally disregard evidence of a defendant’s innocence or police misconduct. I personally know the author of the book review, and have had a favorable opinion of our working relationship, but I was disappointed by the author’s decision to malign the very individuals he works with on a daily basis. The author’s generalized allegations immediately cast aspersion on any prosecutor who has ever worked with him, including myself. I was perplexed that the author chose to impugn an entire group of fellow professionals rather than take the more responsible and, in our self-regulating profession, ethically required step of reporting the specific individuals who engaged in the conduct he complains of to the appropriate disciplinary body. I was also disappointed to find such commentary printed in the publication of the very organization that strongly advocates for increased civility and professionalism among the members of the Utah Bar.

Dear Editor,

Thank you, UBJ, for publishing Eric K. Johnson’s “Open letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board” (Sept/Oct.2008). This piece is a refreshing alternative voice for those of us who are already regulated to death and don’t feel the need for still another layer of micromanagement and regulation of our practices. Eric’s counterpoint, like Alexander Pope’s “wit,” contains views “oft thought, but ne’er so well expressed.”

Dear Editor,

In the most recent Utah Bar Journal, Eric K. Johnson wrote a letter to the newly-established Utah Supreme Court Professionalism Counseling Program Board. The law firm Smart, Schofield, Shorter & Lunceford wishes to make it known that the opinions expressed in the letter are not a reflection of the attitude and position of our firm. This letter was published without the knowledge or consent of the shareholders. Our firm supports the efforts to improve the civility and professionalism of attorneys toward each other.

Very truly yours,
Smart, Schofield, Shorter & Lunceford Shareholders

Dear Editor,

I would be grateful if you would inform your readers that in my article that appeared on page 14 of the July/August 2008 edition, entitled The Commercial Loan Guaranty – Types and Techniques, I misstated the holding in Machock v. Fink, 137 P.3d 779 (Utah 2006). There, although the Supreme Court ruled that a guarantor is protected by the anti-deficiency statute (Section 57-1-32), it affirmed that the single-action rule does not apply to guarantees. I apologize to all and sundry for any inconvenience my error may have caused.

Dear Editor,

Two years ago, the Appellate Practice Section sponsored an appellate haiku and limerick contest. Fully expecting our efforts to be met with gales of laughter and no submissions of actual poetry, we billed it as the “first (and maybe last)” poetry contest. As it turned out, we received quite a few submissions and the contest was great fun.

Dear Editor:

I chime in re colleague Vetter’s excellent suggestions to improve our bar, particularly regarding bar finances and lawyer referral.

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.

Dear Editor,
I enjoyed reading both the letter about “the snoozing judge” from the “Anonymous” attorney and the responsive advice of Judge Orme. I do have reason, however, to doubt that the anonymous attorney’s observations are broadly accurate – it’s a curse of our time that the anecdote becomes the generality. I was also surprised that you did not consult any trial court judges, since it is obvious that the letter is aimed at us. Furthermore, each one of us spends more time listening to lawyers and litigants than a dozen appellate court judges, so we have more “opportunity” to doze in court. As one member of the trial bench, I suggest that attorneys who encounter sleepy judges ask themselves a couple of questions.

Dear Editor,

A paragraph in the article entitled ‘Enforcing the Standards of Professionalism and Civility,’ found on page 17 of the Utah Bar Journal for November/December 2006, regarding the case of Advanced Restoration, L.L.C. v. Priskos, may have caused some confusion. The cited derogatory language the Court of Appeals found inappropriate was language neither from the Landlord nor the Tenant in the case, but language found within the brief submitted by the plaintiff/appellee.

Sincerely,
Dennis Flynn
Donald J. Winder

Dear Editor,

I would like suggestions on how to wake the snoozing judge. I’d like to think I’m not the only boring attorney in Utah. I understand why judges snooze. But each case is important to the litigant and it’s frustrating to make an important point I know will not be heard. I’d be interested to hear from attorneys and from judges. I’ve seen the problem in more than one county, but since my practice is pretty geographically limited, I’d rather not be identified.

Anonymous

Dear Editor:

I enjoyed Bryan Pattison's article, "Henriod, Dissenting" in the May/June 2006 issue, on the flamboyant and humorous dissents by Justice F. Henri Henriod.

When I clerked for Justice Henriod part-time as a law student in 1974-75, I found him always decent, courteous, and sensitive to the rights of litigants and their attorneys. He believed that legal precepts often could be conveyed best through a unique phrase.

My own favorite Henriodism was not a dissent but a concurrence. In a divorce appeal, he joined the majority opinion which disallowed testimony from a mother who attempted to show that a child born during the marriage was not the legitimate offspring of the husband. The husband acknowledged paternity but the wife disputed it. The majority was critical of the attempt by a parent to subvert the interests and welfare of the child. Justice Henriod added: "[I]n cases like this the children are not the bastards, but you know who." 518 P.2d at 690.

Roger Bullock

Dear Editor:

In May/June volume of the Utah Bar Journal, Jessica Peterson published her analysis of the Utah Supreme Court's opinion in Chen v. Stewart, 2004 UT 82, 100 P.3d 1177. While Ms. Peterson acknowledged her affiliation during law school with the law firm that lost the appeal, she nonetheless presented her analysis as objective. We also served as counsel in Chen v. Stewart and have a rather different view of the Court's opinion. However, instead of publishing our own lengthy analysis exposing each of Ms. Peterson's mistakes, we simply urge those interested in what the case stands for to read the opinion for themselves. In our view, Chen v. Stewart does not represent the furtive, radical shift in Utah law that Ms. Peterson suggests.

Todd M. Shaughnessy
James D. Gardner

Dear Editor:

I read the recent article entitled, "Along for the Ride?: Warrant Checks and the Status of Passengers During Traffic Stops in Utah" in the last issue of the Utah Bar Journal with interest. While I join with Mr. Starr in urging Utah appellate courts to place more reasonable restrictions on law enforcement officers in traffic stop circumstances, I cannot agree with Mr. Starr's premise that present law can be interpreted to allow Utah law enforcement officers to conduct a more expansive investigation with respect to passengers than can be conducted with the driver on the basis that the passenger is not justifiably seized. Utah law holds that a traffic officer exceeds the permissible scope of a traffic stop when he unlawfully seizes a passenger by taking her name and birth date, while expecting her to await the completion of a warrants check. To date, Utah cases continue to reason that if the officer is restrained from exceeding the scope of investigation permitted incident to a traffic stop with respect to a driver, then the officer is even further restrained with respect to the innocent passenger - not less as Mr. Starr suggests. Although there is room to refine Utah's passenger-warrants cases in light of recent U.S. Supreme Court opinions holding that questioning is not a seizure, it is unlikely that Utah appellate courts will abandon their previous acquiescence in defendants' arguments claiming that the passenger is seized concurrently with the driver by the initial stop of the car. It is difficult for me to imagine a traffic officer permitting passengers to run about or flee while a citation is being issued. Nevertheless, I applaud Mr. Starr's efforts in raising several of the many thorny issues involved in the law regarding traffic stops.

B. Kent Morgan

Dear Editor:

Maureen Henry ("Update on End-of-Life Issues in Utah", Utah Bar Journal January/February, 2006) discusses the expression "unnaturally prolong the dying process" as used in the Utah Personal Choice and Living Will Act (Utah Code ¤¤75-2-1101 et seq.), in the wake of the Terry Schiavo matter.

Dear Editor,

The ethical rules do not allow attorneys to collect interest on trust accounts because the property held in trust does not belong to the attorney. We should not take something that does not belong to us.

In 1983 the Supreme Court approved the IOLTA program. Endemic in the decision was the cankered logic that although the means to get the money was corrupt, the ends justified those means. After all, giving to charity is a noble virtue.

Dear Editor:

It seems that with numbing regularity your Journal addresses the issue of lawyer civility and such a constant theme in the publication suggests that the Bar there has simply never learned good manners from any source. However, the article by Mr. Johnson I read with particular amusement. Were I in court trying the issue of whether new standards promulgated by the Utah Supreme Court for civility among lawyers should be adopted and Mr. Johnson were the witness for the proposition that such standards are unnecessary, and assuming that he testified in the same vein as his article, the court's offer of cross-examination would be met by the following heartfelt response: 'No questions, your Honor. The witness has adequately proved our point.'

Michael T. Lowe,
Orange, California

Dear Editor:

I agree completely with the sentiments expressed by Gus Chin regarding the decline of professionalism, having been an involved observer for nearly three decades. The pit bull disposition he describes had its genesis in the "you only eat what you kill" mentality that was pervasive in the 1980s and was not limited to lawyers. Investment bankers contributed their fair share. Unfortunately, we seem not to have evolved much in the last twenty years. I won't speak for the investment bankers.

It would be nice if the Utah Bar Journal would contribute to professionalism by rejecting paid advertisements that perpetuate the image of lawyers as snarling dogs. How can we expect the public, TV and movie producers, or the news media to view us any differently than we portray ourselves?

R. Steven Chambers

Editor's Note: Point taken, but (without having made an extensive analysis) the editorial board expects that such advertising likely falls within the precedents protecting commercial speech by lawyers. In addition, in our experience these advertisements are usually somewhat tongue in rabid cheek. Alas, sincere civility and professionalism must ultimately come from the hearts of our members, as should expressions of approval or disapproval. Your letter sets an example of speaking up, civilly and professionally.

Dear Editor:

Your most recent edition of the Utah Bar Journal was excellent! Hopefully, practicing attorneys will learn to switch bad moods to good, to recognize and reduce stress and will be willing to help other attorneys in trouble.

Manny Garcia's Accidental Soldier: Memoirs of a Mestizo in Vietnam (reviewed by Betsy Ross in your June/July 2003 issue) is an extraordinary book. I, too, fought in combat in Vietnam and helped kill dozens of people. A third of a century later, I am still haunted by that experience. We commit young men and women to death in battle without disclosing the cost-benefit calculus of sacrifice. Each soldier who dies - friend and foe alike - is a child, sibling, cousin, spouse, or parent whose death will devastate scores of others, now and for generations. And those who kill struggle to survive the enormity of their acts. In just the first five years after the end of the war, more than 58,000 Vietnam veterans committed suicide - more than the soldiers killed in combat. As Garcia says, "Some men know numbers. Others know words. But none knows more than a man who knows war." What Manny experienced is unthinkable; what he knows unbearable. His book is a gift of truth and great courage.

Dear Editor,
I have spent a good deal of my 19 years in legal practice training and advising mostly white male managers about what is legally permissible to ask in an employment interview. Therefore, I was shocked and disappointed at the recent treatment of Utah Supreme Court Justice nominees Jill Parrish and Ron Nehring at the hands of the Utah legislature during confirmation hearings. The central inquiry made of Ms. Parrish was whether or not she could balance her family responsibilities with serving on the court. The central inquiry made of Mr. Nehring (who presumably has a family as well) was what effect his health condition would have on his performance. Neither inquiry is permissible under federal law. The Utah legislature is sending a clear message that they are above the law. When two long-time attorneys, who have reached the pinnacle of being appointed to the State Supreme Court and obviously know their rights, are unable to receive the law's protection, how does the average employee fare?

Dear Editor,

As a member of the general public, I fail to see the non-technical cogency of Leslie Randolph"s article entitled "Practice Pointer: Using "& Associates" in a Firm Name" in the April 2003 Utah Bar Journal.

I thank the Utah Bar Journal for publishing the recent article "enlightening" us on the need for racial and gender equity. It was good to overcome my "ignorance" and "limited vision" and learn that "ability instead of DNA predisposition and skin color" should determine one's place in the profession.

I was out of town when the comments concerning reciprocity terminated. I think the idea is great except that one must have graduated from a law school which was ABA approved at the time of graduation. President of the Church of Jesus Christ of Latter Day Saints, President Hunter (now deceased) and I both graduated from Southwestern Night Law School long before it was an ABA accredited school. Therefore we would both be denied the reciprocity. Yet President Hunter had a very, very distinguished career representing some very, very important clients in the California scene and I have been a senior partner in a successful law firm in L.A. from 52 till 72 which consisted of eleven lawyers and 23 secretaries and bookkeeper when I retired. After sailing for six years I got bored and started a law firm in Hawaii which in 3 years consisted of 4 lawyers and ten ladies as secretaries and a bookkeeper. In the 50 years I have been a licensed attorney I have not had one reprimand from any bar. Yet under the proposed rules, the fact that the school I graduated from 50 years ago was not ABA approved, denies me reciprocity. Doesn't make sense. The experience and clean record ought to count for something.

As I have a service calling with the Church of Jesus Christ of Latter Day Saints and do legal work for them in Washington, Oregon, Utah and California, the reciprocity would be nice. Some provision ought to be made for such situations. I am sure there are many.

Richard L. Tretheway

I could hardly disagree more with Stephen Kelson's premises, perceptions, fears, and recommendations in "Judicial Independence and the Blame Game," Utah Bar Journal (Jan/Feb 2002). It is not the role of the Bar to defend individual judges. We do not need a new committee to evaluate or censor criticisms of Utah judges. As a member of the Utah Bar since 1979, I have seen no flood - indeed, hardly a trickle - of "baseless and vindictive attacks" on Utah judges. Not every item of judicial criticism results from a misunderstanding of the legal system or simple displeasure with a judge's ruling. Not every criticism of a judge is an "attack."

Dear Editor:

Assuming Neil Sabin's article "Justice Court, Fairness and the Law"is factually accurate, and I presume the Bar Journal was not engaged in an effort to encourage Mr. Sabin in a failed attempt at fictional humor, then the circumstances described in the article are an outrage. However, the behavior of Mr. Sabin and the Journal in not naming the responsible court, judge, and prosecutors is also outrageous. If the justice court system is broken, it is worthless to detail the problem without identifying the responsible parties. Nothing will be fixed by Mr. Sabin going home and taking a long shower.