Utah Bar Journal

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.