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"II UTAH BAR JOURNAL .. Vol. 10 NO.9 November 1997

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Use Immunity: A Major Change in Utah Criminal Law 8 I Disclosure Rules and Remedies Under the Truth in Lending Act 1\ No More Hazing: Eradication Through Law and Education 18 \" Te'i Tips for New Attorneys '\ tP 34

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* Some restrictions opply. KeyCite is 0 service mork of West Publishing Company. (S 1997 West Group 8.9671.6/9.97 17670971 1.519.397.2 Utah mJ - UTAH BAR JOURNAL- Published by The Utah State Bar 645 South 200 East Salt Lake City, Utah 84111 Vol. 10 NO.9 November 1997 Telephone (801) 531.9077 www.utahbar.org VISION OF THE BAR: To lead society in the creation of a justice system Bar Journal Committee and Editorial Board that is understood, valued, respected and accessible to alL. Editor MISSION OF THE BAR: To represent lawyers in the State of Utah and Calvin E. Thorpe to serve the public and the legal profession by promoting justice, profes-

Associate Editors sional excellence, civility, ethics, respect for and understanding of, the law. Wiliam D. Holyoak Randall L. Romrell Articles Editors Letters To The Editor ...... 4 Christopher J. Burke Blain H. Johnson President's Message Lee S. McCullough Wil the Real LawyerPlease Stand Up...... 5 Letters Editor by Charlotte L. Miller Victoria Kidman

Views from the Bench Editors Commissioner's Report Judge Michael L. Hutchings G. Kevin Jones Looking Into the CrystaI Ball ...... 6 Lorena P. Riffo by Debra J. Moore Legislative Report Editors Lisa Watts Baskin Use Immunity: A Major Change in Utah Criminal Law ...... 8 Heather Miler by Creighton C. Horton II Case Summaries Editors GlenA. Cook Disclosure RuIes and Remedies J. Craig Smith Daniel M. Torrence Under the Truth in Lending Act...... 12 by Brian iv Jones Book Review Editors Betsy L. Ross Penni ann J. Schumann No More Hazing: Eradication Through Law and Education...... 18 "How to . . ." Editors by David S. Doty David Hartvigsen Lisa M. Rischer State Bar News ...... 23 Annalisa A. Steggell

Judicial Prolies Editors The Barrister Brett J. DelPorto Angelle H. Frehner Opportunities to Serve...... 31 Derek P. Pullan Jennifer L. Ross Views from the Bench: ADREditor Ten Tips for New Attorneys ...... 34 Cherie P. Shanteau by Judge G. Rand Beacham Law and Technology Editors Bruce R. Findlay Case Summaries...... 37 Mark 1. Gregersen by Daniel Torrence and Glen A. Cook Young Lawyer Representatives Mark C. Quinn Cathy E. Roberts Utah Bar Foundation ...... 38 Peggy E. Stone CLE CaIendar ...... 40 Suchada P. Bazzelle David W. Brown David B. Erickson Classified Ads...... 43 Andrea J. Garland H. Craig Hall COVER: Autumn Colors in Logan Canyon, by Bret B. Hicken, Spanish Fork, Utah. Sandra K. McDonald Laurie J. Sartorio Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published on Kimberly J. Smith the cover ofthe Utah Bar Journal should contact Randall L. Romrell, Randle, Deamer, Zarr, Romrell & Lee, P.c., " Denver Snuffer 139 East South Temple, Suite 330, Salt Lake City, UT. 84111.1169, 531.0441. Send a slide, transparency or print David R. Ward of each scene you want to be considered. Judge Homer F. Wilkinson John C. Ynchausti The Utah Bar Journal is published monthly, by the Utah State Bar. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptiou price to others, $40; single copies, $4.00. For information on Bar Commission Liaison advertising rates and space reservation, call or write Utah State Bar offices. D. Frank Wilkins Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publica- Bar Staff Liaison tion of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright (\ 1997 by the Utah State Bar. All rights reserved.

November 1997 3 D .~ --LETTERS-- Editor: recent years. Indeed, as reported at the r------, I appreciated your September issue Crime Summit, more of these cases are Interested in highlighting the Crime Summit. However, being charged in Utah than in Nevada, several aspects of Judge Hutchings' and Idaho, Wyoming, and Colorado combined. Professor Smith's article ("The Good, the . The authors did not ask my offce about fed- Writing an Bad, and the Ugly: Crime and Punishment eral drug prosecutions. Rather, one of Judge in Utah") need correction. Hutchings' law clerks asked about immgra- Article for the . Under the heading "Ilegal Alien Drug tion law and aggravated ilegal re-entry Dealers," they write that "(aJll illegal prosecutions. As is the case throughout Bar Journal? aliens who commit drug felonies can be the United States, most drug offenses are subject to federal prosecution, with stiff prosecuted in state rather than federal The editor of the minimum mandatory punishment court because they often involve small imposed." In fact, the overwhelming amounts of narcotics. Federal resources Utah Bar Journal majority of felony drug arrests do not are appropriately focused on the large wants to hear about involve amounts of drugs that would amount, complex drug cases that produce make a defendant eligible for a federal "stiff minimum mandatory punishment." the topics and issues minimum mandatory sentence. For example my office recently prose- readers think should . The authors then write, "However, the cuted an international drug smuggler for the policy of the U.S. Attorney's Office is to importation of thousands of pounds of mari- be covered in the decline prosecutions on all but a handful juana to the United States. He was sentenced magazine. of these offenders." In fact, when a drug to 20 years imprisonment. This complex defendant is eligible for a minimum investigation and prosecution also produced mandatory sentence and the evidence about $ i.s million in forfeited assets con- If you have an arti- presents a prosecutable case, the U.S. nected to the illegal drug activity. Attorney's Office rarely if ever declines Finally, I would like to comment on the cle idea or would be such a case. report that my offce will receive three new interested in writing . Next, the authors assert that "(iJn i 996, prosecutors. We welcome this additional the U.S. Attorney prosecuted less than resource and wil put these attorneys to work on a particular topic, 5% of the ilegal aliens booked into the prosecuting immigration, drug, and violent contact the editor at Salt Lake County Jail for drug distribu- crime offenses. Naturally, we will focus tion." This compares apples and these resources on criminal conduct that can 566-6633 or write, oranges. The authors cite to information best be prosecuted in federal court. We also Utah Bar Journal, from my office having nothing to do wil continue to 'do our best to help address with prosecutions for drug distribution; the crime problem in Utah to the full extent 645 South 200 East, that information reported aggravated that our jurisdiction and resources allow. Salt Lake City, Utah ilegal re-entry immigration cases and Sincerely, showed that such federal prosecutions Scott M. Matheson, Jr. 84111. in Utah have increased significantly in United States Attorney L______.. Letters Submission Guidelines:

1. Letters shall be typewritten, double given to the publication of letters which for a political or judicial office or which spaced, signed by the author and shall not reflect contrasting or opposing viewpoints contains a solicitation or advertisement for exceed 300 words in length. on the same subject. a commercial or business purpose. 2. No one person shall have more than 5. No letter shall be published which (a) 7. Except as otherwise expressly set one letter to the editor published every six contains defamatory or obscene material, (b) forth herein, the acceptance for publication months. violates the Code of Professional Conduct, of letters to the editor shall be made with- 3. All letters submitted for publication (c) is deemed execrable, calumnious, obliq- out regard to the identity of the author. shall be addressed to Editor, Utah Bar uitous or lacking in good taste, or (d) Letters accepted for publication shall not Journal and shall be delivered to the office otherwise may subject the Utah State Bar, be edited or condensed by the Utah State of the Utah State Bar at least six weeks the Board of Commissioners or any Bar, other than as may be necessary to prior to publication. employee of the Utah State Bar to civil or meet these guidelines. 4. Letters shall be published in the order criminal liability. 8. The Editor, or his or her designee, in which they are received for each publi- 6. No letter shall be published which shall promptly notify the author of each cation period, except that priority shall be advocates or opposes a particular candidacy letter if and when a letter is i:ejected.

4 Vol. 10 No.9 Will the Real Lawyer Please Stand Up

By Charlotte L. Miller

or ability to negotiate. Or, I hear how busi- criminal defense lawyers that you've told Litigator,lawyer, tax criminallawyer, personaldefense lawyer,injury ness lawyers have no personality, or criminal your client are flaky and unstable. We merger and acquisition lawyer, divorce defense lawyers have no morals, or collec- often say that the public hates lawyers until lawyer, insurance defense lawyer, environ- tions lawyers are greedy. I don't usually they need one. Maybe that applies to a lot mental lawyer. As you read each of these have to go outside of talking to members of of lawyers too. lawyer types, certain images, preconceived the Bar to hear these comments. Law is a profession. As professionals, ideas, and generalizations come to mind. Sometimes these over-generalization are we should be appreciative of one another's Think about government lawyer, big firm meant as humor (and I'm not opposed to talents, strengths, and successes, without lawyer, solo practitioner, in-house lawyer. fun) but occasionally we should consider the need to also be demeaning. The securi- Which of these are "real" lawyers? Public what drives us to be so critical of those in ties lawyer who understands the value of a defense lawyers can tell you about their our own profession. Next time you or some good litigator, and the divorce lawyer who clients who wished they had a "real" lawyer with you starts down the path of crit- appreciates a good estate planning lawyer lawyer from a big law firm. (Ironically, icism, remember that big firm lawyers have can provide much better customer service these clients do not realize the outstanding to pay for their copy machines the same way to a client. I encourage all of us to not only representation they receive from the Salt as solo practitioners (and I've been in more be more tolerant, but to have pride in our Lake Legal Defender's Office). And, I've than one meeting where the answer to rais- colleagues. heard associates in big law firms who don't ing money was "ask the big law firms"), that As a consumer of legal services, I have feel they are getting enough litigation government lawyers have the stress of a used solo practitioners, big firm lawyers, experience refer longingly to a prosecutor demanding client the same as divorce lawyers, business lawyers, and I have worked with who goes to court everyday as a "real" and that a good litigator knows how to man- government and in-house lawyers. None lawyer. Since 1 work in corporation, I'm age a case and the people involved in it. are inherently bad, and I have found all of not even close to being a "real" lawyer. A few years ago I wrote an article in the those areas to contain bright, hard-working Some of us lawyers are concerned about Bar Journal outlining what I believe is good individuals. (I apologize for never having the public image of lawyers, lawyer bash- customer service by lawyers. One of the hired a criminal defense lawyer, but I ing and lawyer jokes. However, we may points I raised is that as a client I never like have other connections to them that allow spend as much time bashing one another as for attorneys in a firm to criticize other attor- me to aver that they aioe not inherently evil any member of the public who is not a neys in the firm. A litigator's client may either). I propose we are all "real" lawyers lawyer. I have heard solo practitioners need a tax lawyer, and the litigator's criti- - whatever that means - and that the best complain how much easier big firm cism may result in the client finding a tax way to improve the public image of lawyers have it than solo practitioners, or lawyer in another firm. Or, your real estate lawyers is to start with looking at the business lawyers complain that litigators client's daughter may get arrested one night, image we project of ourselves and our have no business or management acumen, and you'll need the help of one of those colleagues.

Noi'embel' /997 5 Looking Into the Crystal Ball

By Debra 1. Moore

attempted to project even further ahead. conducted by the Bar over the last ten Perhapsthe fewBar BarCommission members has realize a standing that Once a complete Plan is in place, the Com- years, as well as current statistical informa- committee whose purpose is to forecast the mittee will continue to meet on a quarterly tion from Bar records, the Committee future and recommend action on issues the basis to review each area of the Plan in turn, gleaned an impression of the makeup, atti- Bar will confront in the years ahead. The so that a complete review occurs over a tudes and needs of Bar members. On a Long Range Planning Committee currently period of ten years. Every ten years, the national scale, the Utah State Bar has consists of its Commissioner Dave Nuffer Committee will conduct a zero-based over- grown from a small to a medium sized bar (Chair), Bar Executive Director John Bald- haul of the entire Plan. in recent years, and that growth is expected win, State Court Administrator Dan to continue. The race and gender diversity Becker, Commissioner Scott Daniels, CONTEXT INFORMATION of the Bar is increasing, albeit slowly. Young Lawyers Division President-Elect To provide a context for drafting the Plan, 3. Financial and Administrative His- Brian W. Jones, Minority Bar Association the Committee reviewed a large volume of tory of the Bar. The Committee reviewed Ex Officio Dane Nolan, Commissioner materials. Those context materials, sum- and analyzed the history of Bar finances Ray Westergard, and me. The Committee is mariès of which will be appended to the and administration. The Committee closely now putting finishing touches on an ambi- Plan, fell into several categories: examined the current allocation of rev- tious set of recommendations, and wil soon 1. Framework for Administration of enues among the regulatory, member present its proposed Long Range Plan to Justice and the Practice of Law. The Com- service, and public service functions of the the Bar Commission for consideration. mittee reviewed the structural framework of Bar. The Committee also identified areas t I Watch for distribution of the proposed Plan Utah's system for the administration of justice of growth in expenditures, the most signifi- I in the coming months. The Commission and the practice of law, identifying each of the cant of which is attorney discipline, which will welcome your comments as it consid- numerous standing committees of the Judicial has grown out of proportion to Bar rev- ers the Committee's recommendations and Council, of the Bar, and other committees enues and is sure to receive the close determines the Long Range Plan of the Bar. supervised by the Supreme Court, that playa attention of the Bar Commission in both role in the administration of the state's justice the short and long term. THE ON-GOING system. Although somewhat labyrinthine at In the short run, for example, a program PLANNING PROCESS first blush, Utah's framework for the admin- recently implemented at the initiative of The Committee envisions that the Long istration of justice follows a highly Bar President Charlotte Miller, the Con- Range Plan wil be a living document, sub- participatory model, providing Bar members sumer Assistance Hotline, may significantly ject to continual revision to meet the abundant opportunity for input. As D. Frank reduce the Bar's discipline caseload. The changing landscape (or should I say cyber- Wilkins has said, "Democracy is messy." Hotline, staffed on a part-time basis by scape?) of the future. The planning term is 2. Demographics and Needs of Mem- attorney Jeannine Timothy, is essentially a at least five years, and the Committee has bers. From various surveys of Bar members Better Business Bureau for the legal pro-

6 Vol. 10 No. 9 ¡ fession. The Hotline is expected to divert licensing to accommodate greater globaliza- PRIVATE CAR MAAGEMENT from the formal discipline system minor tion oflawyering. client relations problems that do not impli- . The definition of practicing law wil i & CONSULTATION SERVICES cate serious ethical violations, but that change. Traditional practice wil experience historically have been the subject of disci- encroachments from increased pro se legal for older, demented, and disabled adults pline complaints. work, increased access to forms and transac- in Salt Lake City, Provo & surrounding areas 4. Forecast of the future of the justice tional assistance through computer programs system, the delivery of legal services and and internet services, performance of work We Specialize in ElderCAR . . . the practice of law. Rather than generating by other professionals, including legal pro- · Assess/manage any/al aspects of eldercare its own forecast, the Committee relied on a fessionals other than lawyers. wealth of futures studies and other infor- (healthlpersonaVsociaVsafety issues) mation from a variety of sources to identify THE NEED FOR CONTINUITY · Assess abilty to live independently trends and project the future of the practice AND BROAD PARTICIPATION · Evaluation mentaphysical capacity of law in Utah. A few highlights from The number, scope and velocity of the · Guardianship Services those materials include: changes influencing the legal profession are . The lawyer work force has grown astonishing. The Long Range Plan wil help . . . so you can Focus on ElderLAW younger and receives less men to ring by to place the Bar in the advantageous position large firms; more new lawyers are entering of anticipating and accommodating or buf- Lois M. Brandriet, PhD, RN, CS solo and small firm practice. feting, rather than merely reacting to these Nurse Gerontologist · Utah's population, which wil reach 2.8 changes. To have any meaningful impact, millon in the year 2020, is aging, creating however, the Bar must develop its compe- (801) 756-2800 more elder law issues. tence as an institution to maintain a (800) 600-1385 · Clients have and will continue to sustained effort. The Bar wil also need to become increasingly sophisticated, build and maintain a strong consensus (801) 756-6262 (fax) demanding, and wiling to consider alter- among Bar leaders and members about its eldercare (gitsnet. com natives to the adversaria1 system, including vision and priorities. The proposed Long ADR; competition in the legal workplace Range Plan wil address these issues, among http://ww.itsnet.com/~eldercare wil continue to increase. others. I look forward to hearing your com- . The ratio of lawyers to Utah citizens ments on the proposed Plan when it is CR~ was 1 to 336 in 1992 and wil decrease to 1 released after the Commission finishes its to 290 in 2002. preliminary review. ((~;ult . The need wil increase for reciprocity in T. .,

Rocky Mountain Mineral Law Foundation GRANTS PROGRAM The Grants Program was established by the Rocky Mountain Mineral Law Foundation in 1976 to promote scholarship, research, writing, teaching, and the study of natural resources at law schools around the country. Up to $20,000 per year has been authorized for this program. Grants, based on expenses incurred by the Applicant, may be made for the types of projects set forth below in accordance with standards set by the Foundation's Grants Committee. Personal remuneration or honoraria are not within the scope of RMMLF grants. 1. The preparation of teaching materials in areas such as mining, oil and gas, water, public land law, and related areas. 2. Research expenses incurred by faculty and supeNised law students in natural resources law and related fields. 3. Law school seminars, short courses, symposiums, or publications in specialized areas of natural resources law. 4. Visiting lectureships for specialized natural resources law programs or symposiums. 5. Preparation of substantive articles related to natural resources law for publication by faculty and law students. Applications should be submitted to the Rocky Mountain Mineral Law Foundation, 7039 East 18th Avenue, Denver, CO 80220, (303) 321-8100. No special application form is required; please submit a letter and supporting data including: * your qualifications to undertake the project, * a detailed explanation of your proposal, * a budget of your total anticipated expenses, exclusive of project salary remuneration for applicant, and * the amount of support you are requesting from the Foundation. Once a grant is approved, a detailed expense statement must be provided for grant money to be disbursed.

November 1997 7 - I

Use Immunity: A Major Change in Utah Criminal Law

By Creighton C. Horton II

granting immunity and for notifying the The 199778, WitnessLegislature Immunity enacted Amend- H.B. witness of the grant, which includes advis- ments, sponsored by Representative David ing the witness that he or she may not GladwelL. It is a major change in the law, refuse to testify or produce evidence or bringing to Utah the concept of "use information on the basis of the privilege immunity," which authorizes a prosecutor against self-incrimination, but that such to compel a witness to provide testimony evidence cannot be used directly or indi- or evidence so long as the information can- rectly against the witness. The notice must not be used against the witness. No longer be in writing (unless it occurs during a pre- wil prosecutors have to give witnesses liminary hearing, grand jury proceeding, or "transactional immunity," barring any pos- trial, and is on the record). The grant is sibility of prosecuting them for anything then effective and requires no judicial they disclose, in order to compel them to involvement. In the event the witness testify or give evidence against others. refuses to cooperate after receiving the In this article, I will briefly touch on the grant, the prosecutor may notice up a hear- history of use immunity, discuss provisions ing before the district court and request the of the new law, and then cover some of the court to compel the witness to comply. If strategic considerations, particularly when CREIGHTON C. HORTON II is a 1976 the witness is ordered by the court to com- a witness may later be prosecuted after tes- graduate of the UCLA School of Law. He ply and refuses, he or she may be held in tifying under a grant of use immunity. worked as a Deputy Salt Lake County contempt of court. Attorney from 1978 until 1987, at which 4. The protections given a witness who HISTORY time he became an Assistant Attorney is compelled under a grant of use immunity In 1972, in Kastigar v. United States, General. He is presently Division Chief are found in subparagraph (2) of § 77-22b-l, 406 U.S. 441 (1972), the United States of the Criminal Division of the Attorney which provides that testimony, evidence or Supreme Court established the principle General's Offce. information compelled under use immunity that use immunity is sufficient to protect may not be used against a witness in any the Fifth Amendment privilege against criminal or quasi-criminal case, nor may self-incrimination, so long as the statement WHAT THE BILL DOES any information be used that is directly or of the defendant and evidence produced by Here are some of the main features of the indirectly derived IÌom the compelled infor- him cannot be used against him, either new law: mation (unless volunteered by the witness directly or indirectly, in a criminal case. 1. Up until now, the transactional immunity or otherwise not responsive to a question). Previously, in Counselman v. Hitchcock, provisions have been within Chapter 22 of Subparagraph (3) provides that if a witness 142 U.S. 547 (1892), the Court had held Title 77, which deal with the Subpoena Pow- is later prosecuted - something which that "straight" use immunity (not including ers Act. The new immunity provisions are in was not possible under transactional derivative use) was not constitutionally a new chapter, Chapter 22b, to make clear immunity - the burden is on the prosecu- sufficient, and that only transactional that they apply across-the-board and not just tion to show "that no use or derivative use immunity would suffice to protect Fifth in the investigative subpoena context.! was made of the compelled testimony, evi- Amendment interests. 2. The new use immunity provisions allow dence or information, and to show that any Use immunity recognizes the principle a county attorney, district attorney, attorney proffered evidence was derived from sources that the self-incrimination clause protects a general, or a deputy or assistant authorized totally independent of the compelled infor- person from being compelled to be a witness by the elected offcial, to grant use immunity mation. (As I wil mention in the next against himself, not against others. Following to a witness. This is different from the previ- section, this is a high standard, even though the Kastigar decision, a number of states ous law, which required that the elected the statute provides that the prosecution enacted use immunity statutes similar to official personally grant immunity.2 need only establish no use or derivative use the federal statute (18 U.S.c. § 6002). 3. The new law provides a mechanism for by a preponderance of evidence.)

Vol. 10 Nu. 9 8 2 5. The remedy for failing to establish attorneys within prosecution districts do people who might otherwise be prosecuted that any evidence was derived from retain the same authority they had prior to for crimes, including serious felonies, sources totally independent of the witness' the change in the law - to grant transac- without even consulting a prosecutor. testimony is suppression of that particular tional immunity for misdemeanor violations Sprinkled throughout the code were sec- piece of evidence only. It does not neces- within their jurisdictions. (In instances tions requiring witnesses subpoenaed sarily require dismissal of the case, where witnesses are only concerned about before certain administrative bodies to give depending on the strength of the untainted potential exposure to misdemeanor viola- testimony and evidence which could be evidence. tions, they may be satisfied with a city incriminating, but then immunizing the 6. Subparagraph (4) establishes that prosecutor's grant of transactional immunity witnesses from ever being prosecuted for the new law does not in any way limit and be wiling to testify without a grant of anything they disclosed. prosecutoria1 authority to enter into agree- use immunity.) The reason for the distinction Under the new statutory scheme, admin- ments with cooperative witnesses under in who may grant use immunity is that a istrative agencies and offcials who want to § 77-22-4.5. grant of use immunity, in order to be consti- compel testimony no longer have authority 7. Use immunity can only be granted by tutionally sufficient, must apply to all to grant immunity to witnesses. Instead, prosecutors who have authority to prose- criminal cases and cannot be limited to mis- they must go to the appropriate prosecutor cute felonies. This means that city demeanors. The new law is structured so that and ask that a witness be granted use prosecutors cannot grant use immunity. the prosecutor whose felony case may be immunity in connection with their adminis- Instead, they must go to a felony prosecu- impacted by the decision to grant use immu- trative hearngs. tor if they need a grant of use immunity to nity wil be the one making the decision to 9. Finally, the statute prohibits use of compel a witness to testify. The same grant it.' compelled information against a witness in applies to county attorneys within prosecu- 8. Administrative Agency Authority: a criminal or "quasi-criminal" case. Case tion districts, since their jurisdiction is Prior to this change in the law, many admin- law establishes that certain proceedings limited to misdemeanor ordinance viola- istrative agencies and officials (from the which are not strictly criminal are so far tions. (Currently, Salt Lake County is the Meat and Poultry Inspector to the Depart- punitive in their purpose and effect that the only county that has opted to create a pros- ment of Commerce to the Industrial right against self-incrimination attaches. ecution district.) Commission) could (wittingly or unwit- These may include juvenile adjudications, However, city prosecutors and county tingly) give transactional immunity to as well as proceedings for civil penalties

November 1997 9 --

and forfeitures that are perceived by a nesses and documenting all the evidence that 2. Motivate other witnesses to come for- court to be so far criminal in nature that a links the witness to criminal activity before a ward and/or cooperate; defendant has a constitutional right against statement is taken under a grant of use 3. Cause the prosecutor to focus the self-incrimination. See United States v. immunity. This may include filing a docu- investigation on the witness; Ward, 100 S.Ct. 2636 (1980). Note also ment with the court, before any information 4. Give the prosecutor an advantage in that the Utah Supreme Court has found the is taken from the witness, to establish what planning trial strategy against the witness; Utah Drug Stamp Tax Act to be quasi- the State already knew. (One mechanism for 5. Increase the prosecutor's motivation criminal for purposes of the exclusionary doing this would be in the context of the to prosecute the witness; rule. Sims v. State Tax Com'n, 841 P.2d 6 record-keeping requirements imposed upon 6. Cause the prosecutor to refuse to plea (Utah 1992). The Court might (but need the prosecutor for investigations conducted bargain with the witness; and not necessarily) determine the Act to be pursuant to the Subpoena Powers Act. See 7. Provide material which helps the quasi-criminal for purposes of use immu- Utah Code Ann. § 77-22-4.) prosecutor cross-examine the witness at triaL. nity as well. 3. Carefully staffing any proposed immu- As is evident, it is important to have a nity grant to be sure it ought to be given and prosecutor and investigators who are not STRATEGIC CONSIDERATIONS that the investigation has reached the best familiar with the witness' immunized testi- Once a prosecutor grants use immunity strategic point to grant it. mony handle the criminal case against the to a witness and takes testimony or evi- witness. The underlying concept is that a dence, it becomes much more difficult to defendant cannot be disadvantaged in any prosecute the witness afterwards. While way by what he or she has been compelled most courts interpreting Kastigar have "Once a prosecutor grants use to disclose. To be constitutional, the pro- apparently adopted a preponderance of evi- tection afforded by any grant of immunity dence standard, prosecutors are still immunity to a witness and takes must be "coextensive with the scope of the constitutionally required to establish that testimony or evidence, it becomes privilege" and "afford protection commen- any evidence used against a witness who much more difcult to prosecute surate with that afforded by the privilege." becomes a defendant was derived from the witness afterwards." Kastigar, 406 U.S. at 453. sources totaIly independent of the com- Given the inherent risks of granting use pelled information. immunity to a witness who may later be In U.S. v. North, 910 F.2d 843, 873 prosecuted, elected public prosecutors (D.C. Cir i 990) (North I), the court said: should be very cautious about the circum- "We remind the prosecution that the Kasti- An example of the diffculties prosecutors stances under which immunity is granted, gar burden is 'heavy' not because of the may encounter is the Oliver North case. The as well as ensuring that those persons evidentiary standard, but because of the federal prosecutors went to some length in whom they specificaIly designate within constitutional standard: the government that case to segregate themselves from any their offices to grant use immunity be well has to meet its proof only by a preponder- evidence produced through the congres- informed about the principles and hazards ance of the evidence, but any failure to sional hearings at which North was required associated with such grants. meet that standard must result in exclusion to testify under a grant of use immunity. The A final issue: a handful of state supreme of the testimony. " D.C. Circuit Court of Appeals in U.S. v. courts have ruled that only transactional This is often a very difficult thing to do, North, 920 F.2d 940 (D.C. Cir. 1990) (North immunity is sufficient under their state especially if the prosecutor has not docu- II) reversed North's conviction because wit- constitutions, raising the possibility that mented what evidence he or she already nesses who testified at North's trial might our court might do the same. While the had implicating the defendant before the have been exposed to his immunized testi- Utah Supreme Court did at one time inter- compeIled testimony occurred. (The easiest mony, which could have influenced their pret our state constitutional provision case for the prosecution is where the testi- testimony. The court essentiaIly required broader than the Fifth Amendment in fying defendant has already been tried and that prosecutors not only prove that they had Hansen v. Owens, 619 P.2d 315 (Utah 1980), convicted before being compelled to testify.) no knowledge or exposure to North's immu- by seizing on the state constitutional lan- Various mechanisms have been used by nized testimony, but that the witnesses who guage "compelled to give evidence against prosecutors to help them meet the heavy testified against North did not draw upon his himself," it was a short-lived departure. In testimony in any fashion. burden of establishing that the evidence American Fork v. Crosgrove, 701 P.2d :l used against the witness/defendant at trial The bottom line is that courts interpret 1069, 1073 (Utah 1985), Hansen v. Owens i is whoIly independent of information the "derivative use" quite broadly. While each was overruled, and Justice Durham, writ- witness/defendant was compeIled to pro- case turns on its unique facts, examples of ing for the majority, stated: "If any intent vide. Some include: what some courts in other jurisdictions have can be derived from the proceedings of 1. Constructing a "Chinese Wall" found to be "derivative use" include evi- Utah's constitutional convention, it is that between those who are involved in taking dence obtained from the witness/defendant framers intended to have the privilege to the statement under use immunity (or have that enhances the prosecutor's case against have the same scope that it had under simi- been exposed to the statement) and those that person by tending to: lar constitutional provisions, which was the who may be involved in a later prosecution; i. Assist in identifying witnesses or evi- scope it had at common law." See also 2. "Canning" the testimony of all wit- dence which can be used against the witness; State v. Herrera, 895 P.2d 359, 371 (Utah

10 Vol. 10 No.9 2 1995) ( ". . . Utah's privilege against se1f- incrimination does not exceed that of the federal constitution.").

CONCLUSION Twenty-five years after Kastigar, use immunity has finally come to Utah, providing prosecutors with a mechanism for getting information without giving witnesses total legal absolution for their crimes. There are, however, serious strategic concerns which prosecutors need to take into account when they are consider- ing granting immunity. If the goal is to preserve the possibility of later successfully prosecuting the witness, prosecutors must proceed cautiously. They must follow procedures that minimize the risk of having the evidence they wish to use against the witness suppressed due to their inabil- ity to prove that the evidence came from sources totally independent of what was obtained through the immunity grant. Use immunity, if skillully and wisely used, can be invaluable in penetrating criminal activity that might otherwise remain unsolved or unprosecutab1e. If prosecutors are well-versed in the pitfalls and take them into account, use immunity can be an effective tool for bringing the guilty to justice without necessarily having to give up one guilty party in order to con- vict another.

I It is important to note that the procedures relating to grant. ing use immunity only apply in circumstances in which the prosecutor affirmatively grants immunity to compel testi. many. usually after a witness invokes the privilege against self-incrimination. Often, witnesses and defendants enter into "deals" with the prosecutor which do not involve forcing them to provide iíÍformation. Some also involve proffers by defense counsel as to what a witness will say or be able to provide. Generally, those situations wil be handled through written contractual agreements under §77.22A.5, Prosecutor. ial Authority to Compromise an Offense Regarding a Witness, rather than through granting use immunity (although nothing would prevent the parties from incorporating the concept of use immunity into their agreement). 2See State v. Ward, 571 P.2d 1343 (Utah 1977). 3The distinction in immunity authority is not due to any notion that a city prosecutor would be any less capable of making a good judgment. I wil discuss in the next section some of the strategic concerns whenever a grant of use immu- Medical Insurance nity is given to a witness who may later be prosecuted. Sponsored by The Utah State Bar Blue Cross & Blue Shield or IRC The Insurance Exchange Utah State Bar Managing Agency 355..5900 SLC or (800) 654..9032

November 1997 11 ~

Disclosure Rules and Remedies Under the Truth in Lending Act

By Brian w: Jones

required by the TILA. The FRB has also The amountdebt has of exploded outstanding since consumer1990. Con- issued official commentary on Reg. Z.5 The sumer loans made just by the banking requirements of the regulation are deemed industry increased 37% from early 1990 requirements of the Act6 and creditors act- through 1995.1 Credit card lending to the ing in good faith may rely on the FRB's consumer by banks increased 77% during official commentary and official interpreta- the same period.2 Given the increasing use tions to avoid civil and criminal penalties (some would argue abuse) of consumer under the Act.7 In response to the 1995 credit, Congress and the various banking amendments to the TILA, the FRB adopted regulators have recently given increased revisions to Reg. Z in September 19968 and attention to the laws governing the extension issued additional official commentary per- of consumer credit. The primary vehicle taining to the revisions in March 1997.9 through which Congress has regulated the consumer lending business has been the SCOPE Truth in Lending Act (TILA or Act) (15 The TILA requires creditors, as defined U.S.C.A. § 1601 et. seq.) This article in the Act,IO to disclose the cost of credit as examines disclosure of the 'finance charge a dollar amount (referred to in the Act as as required by the TILA and the remedies BRIAN W JONES graduated in 1993 from the the "finance charge"ll) and as an annual offered by the TILA for improper disclosure. University of Utah College of Law. In 1990, percentage rate (APR).12 Although TILA he received a bachelor's degree in finance applies to virtually all creditors, it does not THE ACT from University of Utah College of Business. apply to all credit transactions. The TILA The TILA consists of the first five chap- Jones is currently an in-house attorney at Zions Bank where he used to perform com- only applies to consumer credit transac- ters of the Consumer Credit Protection Act mercial loan workouts but now oversees and tions. A consumer credit transaction is one and was first enacted by Congress in 1968 manages the bank's implementation of new in which a creditor extends credit to a nat- but has been amended several times since; and existing bank laws and assists the bank's ural person and the loan proceeds are to be most recently in September 1995. In board of directors with establishing bank poli- used by the consumer primarily for per- cies consistent with those laws. During law Mourning v. Family Publications Service, sonal, family, or household purposes.13 school, Jones clerked for the Tax and Revenue 411 U.S. 356 (1973), the Supreme Court Section of the Utah Attorney General's offce Loans to be used primarily for business noted that the TILA was initially proposed and completed an internship with Chief Judge purposes are exempt from the provisions of because Congress perceived that con- Glen E. Clark of the U.S. Bankruptcy Court. the T1LA.14 sumers were "ignorant of the nature of Jones is the President-elect of the Young The Act covers only creditors who offer Lawyer's Division and serves on the Bar's their credit obligation and of the costs of or extend credit regularli5 and it covers Long Range Planning Committee. deferring payment." (Footnote omitted). only transactions subject to a finance Congress enacted the TILA and stated that charge or payable in more than four install- its purpose was "to assure a meaningful ments.16 Loans greater than $25,000 are disclosure of credit terms so that the con- provides consumers with specific remedies exempt from the provisions of the Act sumer will be able to compare more against creditors that fail to meet the disclo- unless the loan is secured by real property readily the various credit terms available to or a dwelling.17 Credit that involves public sure standards prescribed by the TILA. II him and avoid the uninformed use of utilities is exempt,18 as is credit extended credit, and to protect the consumer against THE REGULATION for securities or commodities accounts,19 inaccurate and unfair credit biling and Congress granted authority to the Federal for home fuel budget plans,'o and for cer- credit card practices." (15 U.S.C.A. Reserve Board (FRB) to issue regulations tain student loan programs.21 Both the §1601(a)). To accomplish this purpose, the implementing the TILA.3 The result is Regu- TILA and Reg. Z contain provisions gov- TILA requires that creditors provide uni- lation Z.4 Regulation Z prescribes the form, erning disclosure, advertising,22 billing,23 form disclosure of credit terms and timing, and content of the disclosures and remedies.24 Only the disclosure rules

12 voi. JONo. 9

7 1

ii rl r and remedies wil be discussed here. of all charges, payable directly or indirectly unless certain conditions are met by the by the person to whom the credit is creditor. Premiums and fees for credit life, DISCLOSURE RULES extended, and imposed directly or indirectly accident, debt cancellation39 and other Congress instructed the FRB to publish by the creditor as an incident to or a condi- types of insurance must be included in the model disclosure forms that creditors may tion of the extension of credit. 30 It does not finance charge unless the coverage is use for common transactions.25 A creditor include charges of the type that would be optional to the consumer, the creditor dis- that properly uses these forms is deemed in payable in a comparable cash transaction." closes that fact in writing, the fee and compliance with the disclosure require- The 1995 amendments to the TILA and sub- terms of the coverage are disclosed, and ments of the Act,6 except with respect to sequent amendments to Reg. Z clarified the the consumer signs or initials an affirma- numerical disclosures.27 Creditors may finance charge rules by specifying whether tive request for coverage after receiving the alter the forms to suit their own needs, so certain items should or should not be disclosure.4o Property and liability insur- long as the changes do not alter the sub- included in the finance charge. ance premiums, including those for stance or clarity of the disclosures.28 collateral protection (also known as vehicle Although not required to do so, most credi- ITEMS INCLUDED IN single interest) insurance4l must be tors use the model forms and make few, if THE FINANCE CHARGE included in the finance charge unless the any, modifications. Therefore, issues most Regulation Z includes a list of certain creditor discloses to the consumer that the commonly arise with respect to how credi- types of charges that, if imposed, are always consumer may obtain this type of insur- tors calculate and disclose the numerical included in the finance charge calculation. ance from a person of the consumer's portions of the model forms. Properly dis- These are interest charges,32 transaction choice:2 and, if the insurance is obtained closing the numerical disclosures depends fees,33 points and origination fees paid by the from or through the creditor, the premium almost entirely on how a creditor calcu- consumer,34 credit guarantee insurance pre- for the initial term of the insurance is dis- lates the finance charge. miums,35 loan purchase charges,36 cash closed to the consumer.43 Fees and taxes discounts for the purpose of inducing pay- paid for perfection of security interest or FINANCE CHARGE ment by a means other than via credit,37 and insurance in lieu of perfection must be A creditor must disclose the finance fees related to the preparation of the Truth in included in the finance charge unless these charge in any credit transaction subject to Lending disclosure.38 charges are disclosed and itemized for the the TILA. 29 The finance charge is the sum Other charges must always be included consumer.44

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November 1997 13 Recent amendments to Reg. Z clarified be excluded by the creditor may be excluded inated after September 30, 1995, the the proper treatment of certain fees from the mortgage broker fee disclosed to finance charge is deemed accurate so long charged by third parties. Appraisal and the consumer.57 For example, an application as it is not understated by more than $ 1 00. An overstated finance charge is not consid- credit report fees must be included in the fee charged by the mortgage broker that finance charge unless they are charged to would be excludable by the creditor need not ered a vio1ation.65 The 1995 TILA amendments added a new section titled all applicants as non-refundable applica- be included in the finance charge when "Certain limitations on 1iability."66 This tion fees45 or are charged as part of a loan imposed as part of a mortgage broker fee. new section prescribes tolerances allowed secured by real estate"6 Fees such as those on loans originated before September 30, charged for mortgage insurance premiums CHARGES THAT ARE must be included in the finance charge if ALWAYS EXCLUDED FROM 1995 and is effective retroactively. Under this new section, any understatement of the the creditor requires use of the third party THE FINANCE CHARGE finance charge by $200 or less is deemed as a condition of, or incident to, the exten- Charges that the creditor imposes that accurate as is an overstatement of the sion of credit. If the services are required, would be payable by the consumer in a com- the fees should be included whether or not parable cash transaction should not be finance charge.67 Under the 1995 amendments to the the consumer may choose the party who included in the finance charge.58 These will render the service. They should also charges typically occur on auto loans. The TILA, special tolerances apply if the bor- be included if the creditor retains a portion FRB considers charges such as tax, title, and rower is attempting to exercise the right of rescission. The rescission remedy is dis- of the third-party charge.47 Fees charged by registration fees, auto club membership fees, third party closing agents (including attor- and quantity discounts as the type to be cussed in more detail below but is generally available on loans that aren't pur- neys) must also be included in the finance excluded under the comparable cash transac- chase money mortgages but are secured by charge when the creditor requires the par- tion exemption.59 Late payment or overdraft ticular services, requires imposition of the fees are excludable.60 Seller-paid charges the borrower's principal dwelling.68 Basi- charge, or retains any portion of the such as points and mortgage insurance pre- cally, this definition includes home refinance loans and home equity loans. If charge.48 The revised FRB official com- miums are also excludab1e.6! mentary explains that the third party the borrower is asserting rescission rights on a home refinance loan that isn't a con- closing agent fees may be excluded from solidation or new advance on an existing the finance charge if those services are of loan, the finance charge tolerance is 1 % of the type otherwise excludable.49 Charges "Fees such as those charged for the loan amount or $100, whichever is such as those that would be paid in a com- mortgage insurance premiums must greater.69 If the borrower is asserting rescis- parable cash transaction (excludable under 12 C.P.R. §226.4(a)), or a lump-sum fee be included in the finance charge ~f sion rights on a home equity loan or a charged for real estate closing costs the creditor requires use of the third "high cost" mortgage loan,7o the finance charge tolerance is one half of 1 % of the (excludable under 12 C.P.R. §226.4(c)(7)), party as a condition of, or incident loan amount or $100, whichever is greater.7! are examples of charges that may other- to, the extension of credit." If the borrower asserts rescission rights as wise be excludable.5o a defense to a foreclosure action initiated SPECIAL RULES FOR by the creditor, the finance charge tolerance RESIDENTIAL MORTGAGE is $35 regardless of the character of the AND REAL PROPERTY LOANS FINANCE CHARGE TOLERANCE 10an.72 In any of the above circumstances If the loan is to be secured by an interest The TILA and Reg. Z allow creditors cer- involving a loan secured by a dwellng, an in real property, certain charges may be tain amounts of leeway when calculating the overstatement of the finance charge is not excluded from the finance charge if various . finance charge. Disclosures made by the deemed a violation of the TILA. conditions are met by the creditor. If the creditor are deemed accurate under the REMEDIES. charges are bona fide and reasonable in T1LA if they fall within the tolerances pre- amount, the creditor can exclude fees for scribed by the TILA and Reg. Z. The 1995 The TILA provides civil, criminal, and title examinations and insurance, surveys, amendments made some important changes for certain types of loans, rescission reme- and similar services,5! fees charged for to the finance charge tolerances allowed dies. The TILA allows up to a $5,000 fine preparing loan-related documents,52 notary under the TILA. and a year in prison for whoever wilfully and credit report fees,53 appraisal and For most closed-end loans that aren't and knowingly violates the disclosure inspection fees (including fees charged for secured by real estate, the disclosed finance requirements of the TILA.73 However, the pest inspections and flood hazard determi- charge wil be deemed accurate so long as it TILA is typically enforced civily by con- nations),54 and amounts to be paid into is not more than $5 above or below the sumers seeking damages from creditors or escrow so long as those amounts would not actual finance charge for transactions involv- by seeking to rescind the transaction or both. otherwise be included in the finance ing an amount financed62 of $1,000 or 1ess.63 charge.55 Mortgage broker fees must The tolerance is increased to $10 above or RESCISSION always be disclosed and included in the below the actual finance charge for transac- When a creditor74 takes a security interest in the consumer's principal dwelling finance charge.56 However, certain charges tions greater than $1,000.64 If the loan is imposed by the mortgage broker that could secured by real estate or a dwelling and orig- (except via a purchase money mortgage),

Vol. lONo. 9 14 '8 ,,

the transaction is subject to the consumer's charge, the consumer may rescind regardless creditor until the creditor has satisfied its right to rescind the transaction until mid- of whether or not the disclosures are within obligation to terminate its security interest night of the third business day following allowable tolerances.83 Therefore, if a credi- in the consumer's property and returned consummation of the transaction or the tor attempts to foreclose on a loan that is any money the consumer paid to the credi- delivery of the disclosures and rescission less than three years old having deficient tor. 88 This rescission scheme leaves the notices required by the TILA, whichever is material TILA disclosures, it is likely the creditor in an extremely vulnerable unse- later.75 This three-day rescission right is consumer will elect to rescind the transac- cured position. However, the statutory often referred to as a "cooling-off' period. tion and terminate the creditor's interest in rescission scheme may be modified by During this time, the creditor is prohibited the security to thwart the creditor's foreclo- court order."9 Prior to 1982 when the 1980 from disbursing money other than into sure effort. amendments to the TILA took effect, the escrow, performing services for the con- Rescission is intended to be an equitable statute granted no explicit right to the sumer, or delivering materials to the remedy designed to return the parties to the courts to modify the statutory rescission consumer.?6 status quo that existed prior to consumma- scheme. However, several courts implied a The consumer may only waive the tion of the rescinded transaction. However, right to modify the statutory rescission three-day rescission right in order to meet the TILA and Reg. Z specify a sequence of process in order to meet the TILA's equi- bona fide personal financial emergencies.77 rescission different than that established table goal,° Exactly what constitutes a "bona fide" under common law. The statutory sequence Even though the TILA and Reg. Z were emergency depends on the facts of each of tender and rescission under Reg. Z places amended to explicitly allow court modifi- case. However, creditors would probably the consumer in a stronger bargaining posi- cation, there remains some question as to be safe accepting a waiver from a con- tion than does the common law. Therefore, the scope of a court's ability to modify the sumer affected by a natural disaster such as the statutory rescission sequence can be statutory rescission scheme. The statutory a flood.78 The FRB has also stated that the quite harsh on creditors who may be forced scheme as prescribed by Reg. Z does three consumer's need for credit to avoid fore- to rescind because of what one court has things. First, 12 C.ER. §226.23(d)(l) pro- closure constitutes a bona fide financial called "hypertechnical" violations.84 vides that the creditor's security interest emergency.79 The mere existence of the becomes void when the consumer rescinds consumer's waiver wil not, by itself, insu- the transaction. Second, §226.23(d)(2) and late the creditor from liability for failure to (3) establish a time frame and sequence provide the rescission notice.so Therefore, "Rescission is intended to be an governing the exchange of property. Third, if the consumer offers to waive the right to §226.23(d)(4) states that "(tJhe procedures rescind, the creditor should nevertheless equitable remedy designed to return outlined in paragraphs (d)(2) and (d)(3) of provide the necessary rescission disclo- the parties to the status quo that this section can be modified by court sures to the consumer and verify the existed prior to consummation order." It is noteworthy that §226.23(d)(4) claimed emergency. of the rescinded transaction." allowing judicial modification omits para- The rescission remedy provided by the graph (d)(l) from the list of those allowed TILA has a longer reach than the three day to be modified. Section 226.23(d)(I) acts i I cooling-off period. If a creditor neglects to to render a creditor's security interest void " provide the consumer with the notice of the when the consumer exercises his or her right to rescind in its proper form, or fails STATUTORY RESCISSION SCHEME right of rescission. Therefore, under the to deliver material disclosures, the con- Regulation Z requires that if the con- provisions of Reg. Z, a creditor technically SUlner may rescind the transaction any time sumer elects to rescind, the consumer must becomes unsecured if the consumer merely within three years after consummation of notify the creditor in writing.8s The security exercises the right to rescind. However, the transaction.81 "Material disclosures" interest in the property becomes void when one federal court of appeals has declined to include the annual percentage rate, the the consumer exercises the right of rescis- allow this result despite the language of finance charge, the amount financed, the sion regardless of whether the security Reg. Z, and has required that the consumer total payments, and the payment schedule.s2 interest was recorded or perfected prior to tender back money or property to the credi- The finance charge tolerances apply rescission.s6 Within 20 calendar days after tor prior to the creditor's security interest when determining the availability of rescis- receipt of the consumer's notice of rescis- being voided.91 sion. However, creditors should be sion, the creditor must return any money or reminded of the smaller finance charges property, including any finance charge, MONEY DAMAGES tolerance ($35) that applies in the event the application fees, and appraisal fees to the AND ATTORNEY'S FEES creditor attempts to foreclose on the real consumer and take whatever steps necessary In addition to (or instead of) rescis- property securing a rescindable loan. If the to reflect the termination of the security sion,92 the TILA allows consumers to claim finance charge is understated by more than interest in the property.S? If the creditor has money damages against creditors for twice $35 or if some other material deficiency is delivered any money or property to the con- the finance charge imposed on the transac- present in the form or content of the disclo- sumer (which wil always be the case unless tion, with a minimum of $200 and a sures, the consumer may rescind the loan the consumer is rescinding under the three maximum of $2,000.93 These amounts are transaction. Also, if a mortgage broker fee day "cooling-off" period), the consumer available when a creditor fails to comply is improperly excluded from the finance need not return this money or property to the with any TILA requirement regardless of

November /997 is whether the plaintiff suffered any actual dies designed to enforce creditor compliance 1415 U.S.CA. § 1603(1); 12 CP.R. §226.3(a). damage. Civil money damages are avail- by allowing consumers to recover attorneys 1512 CP.R. §226.I(c)(I)(ii). able to plaintiffs for any violation of the fees and some limited damages. This article 1612 CP.R. §226.1(c)(I)(iii). 1715 U.S.CA. §1603(3); 12 CP.R. §226.3(b). TILA by the creditor, no matter how minor has discussed only certain portions of the 1815 U.S.CA. §1603(4); 12 C.P.R. §226.3(c). and the violation need not be related to a TILA. Counsel for creditors and debtors 1915 U.S.C.A §1603(2); 12 C.P.R. §226.3(d). "material" disclosure item. However, in the should refer to the statute and the recent 2012 CP.R. §226.3(e). case where multiple violations are present, amendments when actual issues arise re1a- 2115 U.S.CA. § 1603(7); 12 CP.R. §226.3(f). the plaintiff is only entitled to a single tive to a consumer lending transaction. 2215 U.S.CA. §§1661.1665b; 12 C.P.R. §226.16 (governing recovery.94 The TILA also specifies statu- advertising for open.end credit), 12 C.P.R. §226.24 (govern. l i Has Consumer Credit Growth JeojJmdized Bank Profits?, Fed. ing advertising for closed.end credit). tory damages for class actions. The TILA eral Reserve Bank of Dallas, Financial Industry Issues, First 2315 U.S.C.A §§1666-1666j. limits total recovery in a class action to the Quarter 1996. Accessed via the Dallas Federal Reserve Bank's 2415 U.S.CA. §§1635, 1640; 12 CP.R. §226.23 Home Page (visited May 11,1997). lesser of $500,000 or 1 percent of the cred- -chttp://www.dallasfed.org/publications/fi/txtlfi_96_1q.htmb 2515 U.S.C.A. §1604(b). itor's net worth.9s The TlLA also provides 2Id. 26For example, Reg. Z requires that certain terms be dis. for the award of reasonable attorney's fees 3)5 U.S.C.A §1607(d). closed more prominently than others, that the disclosures be made clearly and conspicuously in writing and in a form the 412 CP.R. §226. All FRB regulations are assigned a position in and costs in successful actions to enforce consumer may keep. (12 CP.R. §226.5(a)(I), (2); 12 CP.R. the TILA.96 the 200 series of 12 CP.R. tbat corresponds to the letter of the §226.17(a)(I), (2)). Closed.end credit transactions requires alphabet used to refer to the paiticular regulation. For example, disclosures that are segmented and grouped together and may Reg. B can be found at 12 CP.R. §202, Reg. C at 12 CP.R. not contain any information not directly related to the disclo. CONCLUSION §203. Reg. D at 12 CP.R. §204 and so on. sures. (12 C.P.R. §226.17(a)(I)). 512 CP.R. §226, Supp. 1. The broad range and increasing amount 2715 U.S.CA. §1604(b). 615 U.S.CA. §1602(y). of consumer loan transactions has required 28Id. 715 U.S.CA. §1640(f). 29Both the TILA and Reg. Z make a distinction, and impose the creation of a detailed and complex dis- 861 Fed. Reg. 49237 (September 19, 1996). somewhat different disclosure requirements, based on closure scheme which requires accurate 962 Fed. Reg. 10193 (March 6, 1997). whether the character of the transaction is open. or closed. end. An open. end credit transaction is one in which the calculation and disclosure of the finance 1015 U.S.CA. §1602(f); 12 CP.R. §226.2(a)(17). A creditor is creditor reasonably expects repeated transactions under the charge imposed on consumers. Given the one who "regularly extends consumer credit." Reg. Z clarifies same plan and may impose a finance charge periodically on that one regularly extends consumer credit if one does so more the unpaid balance (12 C.P.R. §226.3(a)(20)). An overdraft Act's complexity, creditors must, and gen- than 25 times a year or more than 5 times a year for transactions protection account or an in-store account would be examples erally do, take great care and expend secured by a dwelling, or when one extends a single credit that of open.end plans. A credit card is also a type of open.end would be classified as a "high cost" mortgage transaction by credit plan but Reg. Z imposes unique disclosure require. substantial resources to assure that the Reg. Z. (12 CP.R. §226.2(a)(l7), n. 3). ments on issuers of credit cards (12 C.P.R. §226.5a). A finance charge is properly calculated and 11 I 5 U.S.C.A. §) 605(a). closed.end credit plan is any credit transaction not under an 1215 U.S.C.A §1606(a). open.end plan (12 C.P.R. §226.3(a)(l0)). A finance charge disclosed to the consumer. However, when must be calculated and disclosed for both open.end plans (IS violations occur, the TILA provides reme- 1312 CP.R. §226.1(c)(I)(iv). U.S.CA. §1637(b)(4)) and closed.end plans (15 U.S.C.A

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16 Vot. 10 No.9 § 1638(a)(3)). 6612 U.S.C.A. *1649. 3015 U.S.C.A. §1604(a); 12 C.P.R. §226.4(a). 6715 U.S.C.A. §1640(a)(3). 3115 U.S.C.A. §1604(a); 12 C.P.R. §226.4(a); 12 C.P.R. 68Note that a consumer's principal dwelling need not be §226. Supp. i. 4(a).I. attached to real property. A mobilc home, trailer, RV, or boat CORPORATION KITS 3212 C.P.R. §226.4(b)(I). may qualify as a consumer's principal dwelling. (12 C.P.R. FOR 3312 C.P.R. §226.4(b)(2). §226.2(a)( 19), Supp. r, 2(a)( 19)). 3412 C.P.R. §226.4(b)(3). 6915 U.S.C.A. §1605(f)(2)(B); 61 FeeL. Reg. 49237. 49247 (to UTAH be codified at 12 C.P.R. §226.23(g)(2)). 3512 C.P.R. §226.4(b)(5). COMPLETE OUTIT 70 A "high cost" mortgage loan is detined at 12 C.P.R. §226.32 3612 C.P.R. §226.4(b)(6). as a loan where thc annual percentage rate wil exceed yields on $56.95 3712 C.P.R. §226.4(b)(9). These cbarges may be excluded if Trcasury securities of similar maturity by more than 10 perccnt- Preprited By-Laws, Minutes & Resolutions. prited stock part of a transaction involving an open~encl plan or a credit age points or where the total points and fees payable are greater certficates & full page stubs. transfer ledger. embossing seal card so long as the merchant offers the discount to all cus- than 8 percent of the total loan amount. w/pouch, binder & slipcase, index tabs & ta forms for ElN & S Corporation. tomers whether or not they are card holders or members of 7115 U.S.C.A. §1604(f)(2)(A); 61 Fed. Reg. 49237, 49247 (to Comlete kit w/o prqlrinted By-Laws, etc. 50 shts bond paper. the open-end plan. (12 C.P.R. §226. Supp. I, 4(h)(9).2). be codified at 12 C.P.R. §226.23(g)(I)). 553.95 3812 C.P.R. §226, Supp. I, 4(a).1 (ii)(A). Note that if the pro. 7215 U.S.C.A. §1635(i)(2); 61 FccL Reg. 49237. 49247 (to be Kit w/o seal $44.95 posed loan is subject to the Rcal Estate Settlement Procedures $4.00 additional S & H per kit (UPS ground). coditied at 12 C.P.R. §226.23(h)(2)). Next day delivery avaiable on request. Act (RESPA), the creditor may not charge a fcc for the prepa- 7315 U.S.C.A. *161 i. ration of disclosures required by the Truth in Lending Act. 74 A consumer may also rescind. thc transaction against an (24 C.P.R. §3500.12). 39Dcbt cancellation insurance provides for the cancellation of assignee if the violation is apparent on the face of the disclosure all or part of the debtor's liability for amounts exceeding the statement and the assignment was voluntary. (i 5 V.S.C.A. value of tbe collateral securing the obligation. (61 FeeL. Reg. § 1641(e)). 49237.49245 (to be codified at 12 C.P.R. §226.4(d)(3)(ii)). 7515 U.S.C.A. § I635(a). 4015 U.S.C.A. §I605(b); 61 Fed Reg. 49237. 49245 (to be 7612 C.P.R. §226.23(c) and Supp.l, 23(c).1. codified at 12 C.P.R. §226.4(d)(I) and (d)(3)). 7715 U.S.C.A. §1635(d). 4112 C.P.R. §226.4(d). n. 5. In the case of collateral protec. 78See e.g. 12 C.P.R. §226.23(e)(2).4). iion insurance, in addition to the other conditions required for 7960 Fed. Reg. 15463, 15464 (March 24. 1995). property insurance charges, the insurer must also waive all right of subrogation against the consumer in order to exclude 8012 C.P.R. *226. Supp. r, 23(e).i. the premiums from the finance charge. 8115 U.S.C.A. §1635(f); 12 C.P.R. §226.23(a)(3). 4212 C.P.R. §226A(d)(2)(i). 8212 C.P.R. §226.23(a)(3), n. 48. 4315 U.S.C.A. § 1605(c); 12 C.P.R. §226.4(d)(2)(ii). 8315 U.S.C.A. §1635(i)(I)(A); 61 FeeL. Reg. 49237. 49247 (to OTHER PRODUCTS 4412 C.P.R. §226.4(c) (for fees); 61 Fed. Reg. 49237, 49245. be codified at 12 C.P.R. §226.23(h)(I))i)). 'NON-PROFIT OlIFIT $5995 46 (to be codified at 12 C.P.R. §226.4(e)(3)) (for taxes). 84Coiven v. Bank United oj Texas. FSB, 70 P.3d 937 (7th Cir. 'L TD LIABILITY CO. OlIlT $59.95 4512 C.P.R. §226. Supp. i. 4(c)(IH; 61 FeeL. Reg. 49237. 1995) ("Outside of (a) narrow exception. . . hypertechnicality 'LTD PARTNERSHIP OUTFIT $59.95 49245 (to be codified at 12 C.P.R. §226.4(c)(7)(iii)). reigns (with Truth in Lending violations I.") 'FAMILY LTD PART OlIlT $59.95 4661 Fed. Reg. 49237, 49245 (to be codified at 12 C.P.R. 8512 C.P.R. §226.23(a)(2). 'SEAL WIPOUCH(CORP., NOT.) $25.00 'STOCK CERTS & STUS (20) $25.00 §226.4(c)(7)(iv)). 8612 C.P.R. §226.23(d)( I) and Supp. r. 23(d)(I). i. 4761 FeeL. Reg. 49237, 49245 (to be codified at 12 C.P.R. 8712 C.P.R. §226.23(d)(2). AVAILABLE ON DISC $29.95 §226.4(a)( I)). 8812 C.P.R. §226.23(d)(3). FOR PC WORD PERFECTC 5, 6 & 7 4861 FeeL. Reg. 49237. 49245 (to be codified at 12 C.P.R. (SI.QOS&H) 8915 U.S.C.A. §1635(b); 12 C.P.R. §226.23(d)(4). §226.4(a)(2)). BY.LAWS. MINlJES & RESOLlJlONS PACKAGE 4962 Fed. Rcg. 10193, 10196 (to be codified at 12 C.P.R. 90See, e.g., Rndisell v. Fijih 7ïiinl Bank, 622 P.2d 243 (6th Cir. FOR CORPORATIONS; OPERATING AGREEMENTS FOR LIMITD §226, Supp. 1,4('1)(2).2). 1980) ("Since rescission is an equitable remedy, the court may condition the return of moneys to the debtor upon the return of LlAßlLlTY COMPANYS (BOTH MEMBER & 50Id MANAGER MANAGED); SIMPLE WILL & FAX property to the creditor." (Citations omitted)); POWeJ' v. Siiis & ORDER FORM. 5115 U.S.C.A. §1605(e)(I); 12 C.P.R. §226.4(c)(7)(i). Levin. 542 P.2d 1216 (4th Cir. 1976) ("(NJothing in the statu. 5215 U.S.C.A. §1605(e)(2); 61 Fed. Reg. 49237, 49245 (to tory provision. . . limits the power of a court of equity to be codified at 12 C.P.R. §226.4(c)(7)(ii)). circumscribe the right of rescission to avoid the perpetration of ASK ABOUT 5315 U.S.C.A. §1605(e)(4), (6); 61 Fed. Reg. 49237. 49245 stark inequity. . ."); LaGlVne v. Johnson, 534 P.2d 1360 (9th Cir. 1976) ("(TJhe district court erred in not conditioning rescis- WIL & TRUST STATIONERY (to be codificd at 12 C.P.R. §226.4(c)(7)(iii)). sion on the tender of the net amounts advanced by the 5415 U.S.C.A. §1605(e)(5); 61 Fed. Reg. 49237, 49245 (to *** (creditor I." (Citations omitted)). Although the I Otb Circuit be codified at 12 C.P.R. §226.4(c)(7)(iv)). seemed to imply a right to modify the statutory rescission INEX TABS & CLOSING SETS 5515 U.S.C.A. §1605(e)(3); 61 Fed. Reg. 49237, 49245 (to scheme in Rachbach v. Cogswell, 547 P.2d 502 (10th Cir 1976). *** be codificd at 12 C.P.R. §226.4(c)(7)(v)). it refused to do so citing an inadequate record. Howevcr, the Rachbach court followed the statutory rescission scheme and REGISTERED AGENCY 5615 U.S.C.A. §1605(a)(6); 61 Fed. Reg. 49237, 49245 (to acknowledged that "(uJnder the Truth in Lending Act the tender SERVICES FOR MONTANA be codified at 12 C.P.R. §226.4(a)(3)). back of consideration received (by the debtorJ is not a prcrequi. 5762 Fed. Reg. 10193, 10196 (to be codified at 12 C.P.R. site to rescission." Rachboch, id. at 505. §226, Supp. I, 4(a)(3)(iH). 91 Willioiis v. Hoiieslcke Mortgage Co., 968 P.2d 1137, 1142 ORDER TOLL FREE! 5812 C.P.R. §226.4(a). (i i th Cir. 1992) ("Thus, we hold that a court may impose con- PHONE 1800-874-6570 5912 C.P.R. §226, Supp. I, 4(aH(i). ditions that run with the voiding of creditor's security interest upon terms that would be equitable and just to tbe parties in FAX 1-800-874-6568 6012 C.P.R. §226A(c)(2). view of all surrounding circumstances." Footnote omitted.) E-MAIL corpkit~digisys.net 6112 C.P.R. §226.4(c)(5); 62 Fed. Rcg. 10193, 10196 (to be 9215 U.S.C.A. § 1635(g). codified at 12 C.P.R. §226, Supp. 1, 4(c)(5).2). 9315 U.S.C.A. § i640(a)(2)(A)(i). ORDERS IN BY 2:00 PM ~IT SHIPPED SAME DAY. 62The "amount financed" is another term defined in detail by LAW FIRMS: WE WILL BILL YOU WITH YOUR ORDER. 9415 U.S.C.A. § i Reg. Z. When disclosing the amount financed, the creditor 640(g). SATISFACTION GUARANTEED!!! must use the term as "the amount of crcdit provided to you or 9515 U.S.C.A. § 1640(a)(2)(b). on your behalf." (12 C.P.R. §226.18(b)). Reg. Z also instructs 9615 U.S.C.A. §1640(a)(3). CORP-KIT NORTHWEST, creditors how to properly calculate the amount financed. (12 C.P.R. §226.18(b)). INC. 6361 Fed. Reg. 49237. 49246 (to be codified at 12 C.P.R. 413 EAST SECOND SOUTH §226.I 8(d)(2)). 64/d. BRIGHAM CITY, UT 84302 65 i 5 U.S.C.A. § 1605(t)( i).

17 .. U*¥k\~I~~tNm'l No More Hazing:

Eradication Through Law and Education l

I By David S. Doty

sisted in Utah. In August 1996, two Roy One of the United most disturbingStates is the trends repeated in High School senior football players were occurrence of brutal nazings in American removed from the team for their participa- schools, colleges, and other public institution in a summer football camp incident in tions. Despite the fact that hazings often Carbon County. Several sophomore players result in injury or death, and almost always accused the seniors of holding them down provoke acrimonious litigation, they con- while one of the seniors sat naked on their tinue unabated as some form of twisted faces or the back of their heads.s social rite. Shortly thereafter, five Hilcrest High Over the past couple of years, several School football players, including a student hazing incidents have been reported in body officer and the team captains, were locations from Washington State to Wash- expelled for their role in a locker room ington, D.C.! For example, on August 14, hazing on August 21, 1996.6 Although full 1996, the first day of classes at Lamar details of the incident were never released High School in Arlington, Texas, eleven to the public, the Jordan School District's junior and senior students took six sopho- response to a lawsuit filed by the expelled mores to a field away from school grounds boys provides some information. and hazed the sophomores by paddling, DAVID S. DOTY is the Assistant to the According to the district's answer, five painting, and urinating on them.2 The Superintendent for Policy & School Law students taped two other students to locker eleven students were transferred for an with the Davis County School District, room benches and then proceeded to entire year to another schooL. Then in Farmington, Utah. In his work with the "mummy tape" the faces and bodies of the December 1996, two first-year women Davis County Schools, Mr. Doty is two victims. Subsequently, "some of the cadets, Kim Messer and Jeanie Mentavlos, responsible for investigating and resolv- perpetrators forcefully exposed their but- left the Citadel after filing complaints that ing civil rights complaints, conducting tocks and genitals" to the victims and upper-class male cadets hazed them by due process hearings, mediations, and flatu1ated in their faces. Football helmets shoving them with rifles, washing their other forms of alternative dispute resolu- were also placed on the victims, and they mouths with cleaning fluid, dabbing nail- tion, and developing district policy. He were flipped and struck with towels. Most polish remover on their clothes, and setting received his J.D. degree in 1993 from the seriously, "(aJs the incident progressed, their clothes on fire.3 J. Reuben Clark Law School, Brigham one of the boys panicked and began to cry More recently, the Associated Press Young University, where he graduated and begged to be released." The other vic- reported on a July 1997 trial that resulted cum laude, and was a Senior Editor of tim also repeatedly requested to be in a Prince George's County, Maryland the B. Y. U. Law Review. Prior to attending released. Yet all of the perpetrators walked jury award of $375,000 to a former Univer- law school, Mr. Doty obtained an M.A. away and left the victims helplessly taped sity of Maryland student who was severely degree in Education from the Stanford to the benches.? beaten as part of a fraternity hazing ritual.4 It should be troublesome to all Utahns Ii University Graduate School of Educa- Ii Joseph Snell sued the black fraternity tion, and he is currently a Ph.D. that the Hilcrest hazing appeared to be a Omega Psi Phi for injuries he suffered in candidate in Education Leadership at reprise of a vicious hazing four years ago, 1993 when fraternity members beat him Brigham Young University. Mr. Doty is a in which several football players at Sky with a hammer, horsehair whip, broken member of the Education Law Associa- View High School taped Brian Seamons, chair leg, and a brush. Snell also testified tion, National School Boards Association the junior quarterback, to a towel rack, and that his fraternity brothers put a space Council of School Attorneys, and the humiliated him by pushing a girl into the heater next to his face to darken his skin Utah State Bar's Education Law Section. locker room to view him naked.8 Appar- because they believed he was not "black ently the more things change, the more enough" to become part of the fraternity. they stay the same in some high school Unfortunately, hazings have also per- football locker rooms.

18 Vol. 10 No. 9 a NEW UTAH LEGISLATION Several of the amendments to the Crimi- certed effort is made to eradicate hazing. In response to the continued rash of nal Code section are also significant. For 1. County and city attorneys need to hazings in Utah, the Utah Legislature example, the law now makes it clear that a prosecute hazing crimes vigorously, and passed, and Governor Leavitt signed into person does not have to engage in inten- with a willingness to withstand potential law, Senate Bil 150 during the 1997 leg- tional conduct in order to be prosecuted for civil challenges to the law filed by defen- islative session. This bill, somewhat hazing; a person is guilty of hazing if that dants. Despite the fact that hazing misleadingly titled "Conduct Related person "intentionally, knowingly, or reck- defendants have fought hazing laws in sev- to School Activities," became a new sec- lessly commits an act or causes another to eral other states, courts in those states have tion of Utah's Education Code, Utah Code commit an act" defined under the law as upheld the state hazing statutes against Ann. §53A- 11 -908, and an amended sec- hazing (emphasis added).13 challenges based on vagueness, overbreadth, tion of the Criminal Code, Utah Code Ann. In addition, the amendments eliminate and violation of state constitutional provi- §76-5-107.5. the narrow scope of the old hazing law, sions regarding equal protection and 16 The new section of the Education Code which defined hazing as a variety of activi- special legislation. contains three important provisions. First, ties required for the "initiation or admission 2. Lawyers could participate in the Bar- the law codifies existing Tenth Circuit case into" a group or organization. Because sev- sponsored Law-Related Education Project law, most recently articulated in Seamons eral of the Utah hazings have been or volunteer in their childrens' neighbor- v. Snow, 84 F.3d 1226 (lOth Cir. 1996), perpetrated on athletes already on the team, hood school to help educate students, holding that public school students do not county attorneys have been reluctant to bring parents, and school staff about hazing and have a constitutional right to participate in charges against the offenders. The amend- the serious legal consequences that can extracurricular activities. At the same time, ments attempt to remedy this problem by come to those who participate, or acqui- however, the law formally recognizes the prohibiting a number of acts, if they are "for esce, in a hazing. importance of extracurricular activities to the purpose of initiation, admission into, 3. School (as well as university and the overall school experience of young affïliation with, holding office in, or as a Greek) officials must, by means of care- people. The Legislature finds that "partici- condition for continued membership in any fully drafted and well-communicated pation in student government and organization" (emphasis added).14 policy, unequivocally prohibit hazing and extracurricular activities may confer firmly discipline students who participate important educational and lifetime benefits in hazing. Moreover, school officials must upon students, and encourages school dis- recognize that acts of hazing that involve tricts to provide a variety of opportunities "Perhaps most importantly, the nudity, lewdness, or sexual aggression, in for all students to participate in such activi- addition to being criminal, may also be ties in meaningful ways."9 amended law precludes hazing considered acts of sexual harassment, that Second, the law permits the State Board perpetrators from making the if not corrected in a timely manner, could of Education, and requires local boards of argument that they were just subject the educational institution to fed- education, to adopt rules and policies pro- eral civil rights liability under Title IX.17 As 'playing around,' or that the victims hibiting hazing, as well as "demeaning or Judge Monroe McKay noted in his concur- assaultive behavior, whether consensual or 'volunteered'for the activity." ring opinion in Seamons: not, including behavior involving physical I write separately to express my dis- violence, restraint, improper touching, or agreement with the court's analysis inappropriate exposure of body parts not of Plaintiff's Title ix claim. i cannot normally exposed in public settings, forced Perhaps most importantly, the amended agree that the alleged harassment in ingestion of any substance, or any act law precludes hazing perpetrators from this case was not based on sex within which would constitute a crime against a making the argument that they were just the meaning of Title iX. The major- person or public order under Utah law."IO "playing around," or that the victims "volun- ity writes that statements such as Third, the law establishes a reporting teered" for the activity. In very plain "boys will be boys" and "take it like obligation for school employees. All language, the law states: "It is not a defense a man" are not sufficiently sex school employees who become aware of a to prosecution of hazing that a person related to state a claim. I believe, hazing must immediately report it to the under 21, against whom the hazing was however, that these statements can school principal or district superintendent, directed, consented to or acquiesced in the only be understood as a response to and principals who receive reports of haz- hazing activity."15 the original hazing incident. In my ing from school employees are required to view, this incident was clearly sexual submit a written report of the incident, and A PROPOSED PLAN OF ACTION in nature. Members of the football actions taken in response, to the superin- The new Utah legislation is certainly a team taped Plaintiff to a towel rack tendent within ten working days after step in the right direction toward eliminating while he was naked, taped his geni- I receipt of the report. I School employees the scourge of hazing in our society. How- tals, and then displayed their captive who fail to report a hazing as required by ever, a statute alone will not completely to a girl Plaintiff had dated. These the law may be charged with an unprofes- solve the problem. Therefore, lawyers, actions clearly derive their power to sional practice and subject to discipline by school offcials, and parents could engage in embarrass and to intimidate from 12 state licensing boards. a number of measures to ensure that a con- their sexual and sex-based nature. It

November 1997 19

. :ia \ s¡ii\w\1\¿¡WAàt! T

is hard for me to believe that the dis- activities, become role models for oth- ISee, e.g., Lucinda Dillon. "Ugly, Bewildering Hazing Phase i play of the male genitalia to a female Persists in Utah Schools", Deserei News. Sept. I. 1996, atAI. ers in the school and community; AS (reporting on the suspension of eight members of the for other than medical or educational (TJhese individuals often play Walla Walla High School football team for hazing freshmen reasons has a non-sexual connota- players at football camp); "One Fraternity Suspended and major roles in establishing standards One Placed on Probation", Universily of Kansas Offce of Uni. tion. The coach's statement that of acceptable behavior in the school versify Relations News/ello; http://www.urc.ukans.cdu/Ncws/ "boys wil be boys" clearly relates to Oread96/0readOctl8/, Oct. 18, 1996 (describing discipline and community, and establishing and imposed on two fraternities for depriving pledges of sleep and and flows out of the original sexual maintaining the reputation of the forcing them to drink, be paddled. and be head-butted); "State harassment. As such, it may be con- to Pay Ex.lnmate $S,OOO in Hazing". Deserei News, Nov. 21, school and the level of community 1996 (reporting that the State of Utah agreed to setlle a law- sidered to be a continuation by the confidence and support afforded the suit by a Utah State Prison inmate who claimed to have been ) hazed by fellow inmates and prison guards); "Marine Hazing school offcial of the student-initiated I school; and Disgusts Pentagon". Deserel News, Feb. 1. 1997, at A3 harassment, even if the statement by (IJt is of the utmost importance that (reporting on a North Carolina Marine Corps airborne unit's initiation ritual called "gold wiuging"); "College Students and itself is not sexual in nature. 18 those involved in student government, Alumni Accused in Hazing 4 in Creek". Deserei News, Feb. 4. Parents, including those who are whether as officers or advisors, and 27, 1997, at A 1 i (noting that police in Salem, Virginia lawyers, should take an active role in teach- those involved in competitive athletics arrested a group of i 8 Roanoke College students and alumni after they were discovered holding down four shivering, ing their children values of civility and and related activities, whether students blindfolded. and drunk classmates in an icy creek); "Fonner kindness in connection with their behavior Pledge Tells of Abuse at Fraternity", Deserel News. Aug. 3 I, or staff, comply with all applicable 1997. at A9 (describing allegations of Sigma Alpha Epsilon toward peers and school officials. Such laws and rules of behavior and con- plcdge at Louisiana State University that he had to endure parental education might include helping hazing, forced drinking, and beatings at the fraternity chap- duct themselves at all times in a ter); "Fanner Finds Garbage Pit Where Teens are Hazed". adolescents understand a non"legal test of manner befitting their positions and Boslan Globe, Sept. iS. 1997 (describing Berlin High School contemplated group activity; getting young responsibilities.21 hazing tradition where seniors throw manure and motor oil on freshmen in a nearby field); Debra Rosenberg & Matt Bai, people to ask themselves the following "Drinking and Dying". Newsweek, Oct. 13. i 997. at 69 questions might be a starting place: 1) Is (reporting that fraternity brothers at the MIT chapter to Phi Gamma Delta could be tried for manslaughter if they are the activity an educational experience? 2) found to have coerced a freshmen pledge. who died from Does the activity promote or conform to the binge drinking, to consume alcohol). "Bruce Chadwick, a professor of 2"Hazing Scandal in Tex. District". Educalian Week, Sept. 4. values of the school (or organization)? 3) 1996, at 4. Wil the activity increase the respect for the sociology at Brigham Young 3"2nd Cadet at Citadel Suspended in Harassment". Deserei school (or institution) and individuals? 4) University, states that in order to News, Dec. 17, 1996, at A 11; Bonnie Erbe & Josette Shiner. "Is Hazing Inherent in Maleness", Deseret News, Jan. 20, Do new and already-initiated members par- turn the tide back on the willngness 1997, at A13. ticipate equally in the activity? 5) Would I of people to intentionally harm one 4"Former Student Awarded $37S.000 in Hazing", Eallimore be willing to allow my parents or school Sun, July 13, 1997. atAI 1. officials to witness the activity? 6) Does another, we must constantly S"2 Roy Football Players Dismissed After Hazing", Deserel News, Aug. 22, i 996. at B 1. the activity have value in and of itse1f?'9 emphasize the importance of 6Lucinda Dilon, "S Students Expelled for Role in Hazing". Bruce Chadwick, a professor of sociol- Deserel News, Sept. 6.1996, atAI. forbearance and respect: 'We have ogy at Brigham Young University, states 7Lucinda Dillon, "Court Fight Shapes Up Over Hazing at to reach a consensus as people that Hillcrest", Deserel News, Oct. 9,1996, at AI. that in order to turn the tide back on the 8Brad Rock. "Memo to Hazers: Read the Handbook". willingness of people to intentionally harm enough is enough. L?fe is so much Deserei News, Sept. 12. 1996, at Dl. one another, we must constantly emphasize more enjoyable when civility rules.'" 9Utah Code Ann. §S3A.ll.908(1)(a) (1997). the importance of forbearance and respect: i 0Utah Code Ann. §S3A. I 1.908(2)(b)(iii). "We have to reach a consensus as people llUtah Code Ann. §S3A.I 1.908(3)(aJ.b). that enough is enough. Life is so much 12Utah Code Ann. §S3A-l 1.908(3)(c). more enjoyable when civility rules. When 13Utah Code Ann. §76.S.107.S(l) (1997). Commenting on the Hilcrest High haz- 14Utah Code people are forgiving, understanding, kind Ann. §76.S.107.S(I)(b)(I). ing last September, sports columnist Brad i SUtah Code Ann. §76.S.107.S(2). and gentie, it makes life better for all of us. Rock astutely noted: 16See generally, Frank J. Wozniak. Annalaiion, Validily, COIl. Life is just more enjoyable when we do (SJplitting hairs over the seriousness slruelion, and Appliealion of "Hazing" Slaluies. 30 A.L.R. extend common courtesies to each other."20 of the incident is a bad idea when Sth 683 (i 99S). 5. All adults must work together to 17See John Sedgwick, "Guess Who's Coming to VMI?". you're dealing with high school stu- Genileman's Q.. July 1997, at 124 (noting that "between old. teach youth that participation in extracur- dents; when it comes to teenagers, they fashioned hazing and 1990s-style sexual harassment. there is ricular activities is a privilege, not a right, only a thin gray line"); U.S. Depi. of Edue., Offce for Civil often don't know when to quit. Allow- Rights, Sexual Harassment Guidance; Harassment of Stu- but that with privileges, as with rights, ing room for conjecture as to what is del/s by School Employees. Oiher Siudenls, or Thin! Parlies come responsibilities. In the setting of pub- (1997). and what isn't acceptable in hazing is 18 Seamans v. Snow, 84 F.3d 1226, 1239 (lOth Cir. 1996). lic schools, the responsibility may be that an invitation to more disaster. Better 19See Davis County School District Policy No. i lIR.106 §6 I of being a positive example for others. The they understand that they should never (adopted Oct. 22, 1996). ¡ 20Lois M. Collins. "Reviving Civility". Deserei News, Aug. legislation states: get started in the first place. 22 (SJtudents who participate in stu- 2.1997, at EI. I With that though, let us all work together 21 Utah Code Ann. §S3A.ll.908(l)(cJ.e) (1997). dent government and extracurricular I to rid our schools, colleges, fraternities, and 22Rock. supra note 8, at 01 (emphasis added). i activities, particularly competitive other institutions of this pernicious i athletics, and the adult coaches, advi- practice. sors, and assistants who direct those

20 Vol. IONa. 9 Annual Lawyers, Employees & Court Personnel Food & Winter Clothing Drive for the Homeless

Please mark your calendars for this annual drive to assist the South Valley Sanctuary homeless. Once again, local shelters have indicated shortages in Women & Children in Jeopardy Program many food and clothing items. Your donations wil be very much Volunteers are needed who would be wiling to donate a few appreciated in alleviating these conditions. Even a small donation hours of their time to take the responsibility of reminding members of $5 can provide a crate of oranges or a bushel of apples. of their firms of the drop date and to pass out literature at their Drop Date: December 19, 1997 firms regarding the drive. 7:30 a.m. to 5:30 p.m. For more information and details on this drive, watch for the Place: Utah Law & Justice Center flyer or you can call Leonard Burningham or Sheryl Ross at 363- Rear Dock 7411 or Toby Brown at 297 -7027. 645 South 200 East. Salt Lake City, Utah When you feel you are having a tough time, just look around Selected Traveler's Aid Shelter School you; we have it pretty good when compared with so many others, Shelters: (Treshow School) especially the children. The Rescue Mission Please share your good fortune with those who are less fortunate!

Christopher H. Cunningham Jessica L. Harshbarger Harry B. Hollnes Tonya F. Lark Kent A. Lembke Lisa K. McKee Lori S. Montry J. Bryan Myers Vyacheslav Petrashenko Blaine E. Rawson Norman W. White Heather M. WifYer Philip C. Zimmerman

ILL East Broadway, Suite 1100 . Salt Lake City, Dr 84111 801-521-5800 . htt://ww.hro.com Contat McKay Marsden Salt Lake City · Denver · Boulder · Colorado Springs · London · Moscow · Kiev

November 1997 21 ~ ¡

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Name

Address

Work Phone Date

I have enclosed a check to Utah Legal Services in the amount of $ for _copies of The Utah Landlordflenant Manual. $175 each, includig shipping (discounts for 10 or more copies)

Mail to: Publications Offce, Utah Legal Servces, 254 W. 400 South, Suite 200, Salt Lake City, UT 84101. For additional inormation, contact Mar Lyman at 800/ 662-4245 ext. 304. Vol. 10 No. 9 22 1 i STATE BAR NEWS -- Commission During its regular meeting on July 28, 1997, Chapter 7 Filing Fee held in Salt Lake City, Utah, the Board of Highlights Bar Commissioners received the following Waiver Program reports and took the actions indicated. Discontinued at During its Annual Meeting of July 2, 1. Miller distributed a letter drafted by .I 1997, held in Sun Valley, Idaho, the Board Wikstrom to Chief Justice Zimmerman the Close of of Bar Commissioners received the follow- \ regarding the Bar Commission's posi- ing reports and took the actions indicated. Business on i tion on amendments to Rule 3-414 of i 1. Steve Kaufman welcomed and i the Cod of Judicial Administration relat- September 30, 1997 reviewed the schedule of events for the ing to security in the court house. 1997 Annual Meeting and Convention. Jenkins noted that the Judicial Council On October 27, 1993, the Congress 2. Steve Kaufman reported on the results has already adopted the rule and that enacted legislation requiring the Judicial, of the president-elect retention elec- there wil be a 60-day public comment Conference of the United States to imple- tion noting that James C. Jenkins has period. The Board voted to send the let- ment a three-year pilot program to study been retained as president-elect for the ter as drafted to Chief Justice the effect of waiving the filing fee for eligi- 1997-98 year. Zimmerman. ble chapter 7 debtors. The six districts 3. John Baldwin reviewed the petition 2. Miller reported that the October 24 selected to participate in the program were filed with the Supreme Court object- meeting will be held in Cedar City, The the Southern District of Ilinois, the Dis- ing to the proposed courts complex April 24 meeting in Vernal, and the May trict of Montana, the Eastern District of contribution. 29 meeting in Park City. New York, The Eastern District of Pennsyl- 4. The Board approved the minutes of 3. The Board approved Ethics Advisory vania, the Western District of Tennessee, the May 30, 1997 meeting. Opinion No. 97-09. and the District of Utah. 5. The Board approved Ethics Opinion 4. Fee Arbitration Chair G. Steven Sulli- The pilot filing fee waiver program No. 97-08 as proposed by the Ethics van appeared to review proposed commenced on October 1, 1994 and will Advisory Opinion Committee. modifications to the Fee Arbitration be discontinued at the close of business of 6. Dennis Haslam reported on the Access rules. He indicated that most of the September 30, 1997. During the pilot to Justice Task Force. committee's recommendations are period, individuals who were unable to pay 7. James B. Lee discussed three ABA- based on the ABA rules, and he the chapter 7 filing fee either in full when related items. reviewed and explained all the changes, filing the petition or in installments could 8. The Board approved the July 1997 bar paragraph by paragraph. apply to the court for waiver of the fee. examination applicants. 5. John Baldwin summarized the back- After September 30, 1997, all individuals 9. Charlotte Miller reviewed the pro- ground and recommendations regarding fiing chapter 7 bankruptcy must either pay posed list of Committee Chairs. appointments to the Ethics & Discipline the $175 filing fee in full when filing the 10. Craig Snyder gave an introduction to Hearing Panels. The Board approved petition or fie an application to pay the fee the newly elected Fourth Division the recommendations and approved for- in installments. Commissioner, Randy Kester. Kaufman warding the names to the Supreme The Judicial Conference of the United indicated that Randy Kester along Court. States is to submit a report describing the with Dave Nuffer, Fran Wikstrom and 6. The Board reviewed the applicants to costs and benefits of the program to Con- Charles R. Brown, who were re- the State Sentencing Commission and gress no later than March 31, 1998. This elected, would be sworn in during the voted to appoint Fred Metos to fill the information wil allow the Congress to General Session at the Annual Meeting. unexpired term of Rod Snow. consider whether the program should be 11. The Board approved the appointment 7. Dave Nuffer gave a presentation on implemented nationwide. of the following representatives as ex ideas and goals for the future of the officio members of the Bar Commis- Bar's Web site and indicated he would sion for the 1997-98 year: The ABA be giving a similar report at the ABA Delegate, the State Bar Delegate to the annual meeting next month. ABA, the Dean of the University of A full text of minutes of these and other Utah College of Law, the Dean of the meetings of the Bar Commission is available J. Reuben Clark Law School at BYU, for inspection at the office of the Executive the president of the Young Lawyers Director. Division, the Minority Bar Association representative, the Women Lawyers of Utah representative, the Judicial Coun- cil Liaison, and the Legal Assistants Division representative.

November 1997 23

..\'.. ..'"" Discipline Corner in the District Court, then Musselman wil on the amount of recovery, if any. In Sep- serve the entire two year suspension, and he tember 1994, the attorney contacted the SUSPENSION wil be removed from the practice of law for client to secure a power of attorney so that On October 2, 1997, the Honorable Boyd that two year period. he could obtain records from the client's Bunnell, specially assigned and sitting in the former employer. This. was the first work Fourth District Court, entered an Order of INTERIM SUSPENSION performed by the attorney on the Workers' Suspension suspending D. John Musselman On September 16, 1997, the Honorable Compensation claim. The attorney ulti- from the practice of law. The Order was Frank G. Noel, Third District Court, exe- mately did not secure any records from based on a stipulation between Musselman cuted an Order of Interim Suspension the client's ex-employer, and returned the ,l II and the Offce of Attorney Discipline. suspending Robert A. Bentley from the prac- file to the client in March 1995, informing Musselman stipulated to violations of tice of law pending the outcome of an the client that he could no longer pursue Rules 1. (Diligence), 1.4 (Communication), attorney discipline action arising out of Mr. the matter. and 8.4(c) (Misconduct) in his representation Bentley's failure to obey a court order, his On December 14, 1995, a Screening of three clients. Mussleman also stipulated failure to diligently represent and communi- Panel of the Ethics and Discipline Com- to violations of Rules 1.1 (Competence), cate with his clients, and his failure to mittee found that the attorney's conduct 1.2 (Scope of Representation), 1.3 (Dili- cooperate with the Bar. violated Rules 1.2(a) (Scope of Represen- gence), 1.4 (Communication), and 1.5 (Fees) tation), 1. (Diligence), l.4(a) and1.4(b) in the representation of other clients. ADMONITION (Communication) and 1.5(a) (Fees) of the Musselman stipulated to the existence On September 18, 1997, an attorney was Utah Rules of Professional Conduct by of the following aggravating factors: admonished by the Chair of the Ethics and failing to provide the client with any mean- (a) prior record of discipline; Discipline Committee of the Utah State Bar ingful legal services, failing to maintain (b) a pattern of misconduct; for violating Rules 1.3 (Diligence) and 1.4 adequate contact with the client, and charg- (c) multiple offenses; (Communication) of the Rules of Profes- ing a prohibited fee. (d) obstruction of the disciplinary pro- sional Conduct. The Order was entered ceeding by intentionally failing to pursuant to a Discipline by Consent. ADMONITION/ comply with rules or orders of the The two complaints filed against the RECIPROCAL DISCIPLINE disciplinary authority; attorney alleged that the attorney was not On September 26, 1997, an attorney, (e) refusal to acknowledge the wrong- diligent in the representation of two different admitted to practice in Utah and Califor- ful nature of the misconduct clients in family law matters concerning nia, was admonished by the Chair of the involved, either to the client or to child custody. The complaints further Ethics and Discipline Committee of the the disciplinary authority; alleged that the attorney failed to communi- Utah State Bar for violating Rule 1.7 (Con- (f) vulnerability of victim; cate with the clients regarding the status of flict of Interest) of the Rules of (g) substantial experience in the prac- their cases. Professional Conduct. tice of law; The attorney agreed to stipulate to an In September 1986, the attorney's client (h) lack of good faith effort to make admonition for the violation of Rules 1.3 was injured at work. His employer refelTed restitution or to rectify the conse- and 1.4 and agreed to attend ethics schooL. him to the attorney, who had previously quences of the misconduct involved. The attorney further established that the handled legal work for the employer. The The Court ordered that Musselman be attorney refunded fees to the clients. client unsuccessfully sued the manufac- suspended from the practice of law for two turer of the defective equipment that was years, with the suspension stayed to four ADMONITION responsible for the employee's injury. No months. After the initial four months of On September 29, 1997, an attorney was suit was pursued against the client's suspension, Musselman wil be allowed to admonished by the Chair of the Ethics and employer. The attorney alleges he orally practice law once again, but wil be on pro- Discipline Committee of the Utah State Bar informed the client that the attorney had a bation for the remaining twenty months of for violating Rules 1.2(a) (Scope of Repre- conflct of interest. Nevertheless, the attor- the stayed suspension. During that time, sentation), 1.3 (Diligence), l.4(a) and (b) ney failed to obtain a written waiver, Musselman's law practice will be super- (Communication), and 1.5(a) (Fees) of the required in the State of California. vised by a supervising attorney to whom Rules of Professional Conduct. On November 12, 1996, the attorney Musselman wil report periodically regard- During 1993, the attorney was retained to was privately reproved by the State Bar of ing the status of his cases. Musselman was represent a client in a Workers' Compensa- California for failing to obtain a written i further ordered to attend ethics school for tion claim. The attorney received $200 from waiver of a conflct of interest stemming two years and to take, in addition to his the client in February 1994. The attorney from the attorney's previous relationship standard CLE requirements, eighteen hours intended to charge the client an additional with the client's employer. of office management. 1/3 contingency fee. The contingency fee If during the two years suspension/pro- violated Industrial Commission Rule R568- bationary period a complaint is filed 1- 7, which sets attorney's fees to a against Musselman and a Screening Panel maximum of 30% if litigated before the determines that the allegations in the com- Supreme Court. The normal contingency fee plaint warrant a vote to take formal action allowed is approximately 15%, depending

24 Vol. JONo. 9 Central Bank CLE Benefits Utah Legal Services MARK YOUR CALENDARS NOW!

The Utah State Bar Presents: A Tribute: The First One Hundred Women Members

of the Utah Bar Central Bank President Brent Packard tive, "This is a non-random act of thought- presented Anne Milne, Executive Director ful generosity. It is impressive to see how Reception and Dinner of Utah Legal Services, with a contribution the legal and business community come Wednesday, January 14, 1998 of $2,440, proceeds of an estate planning together to insure access tò justice for all Little America Hotel and retirement seminar held at the Provo Utahns." Grand Ballroom Park Hotel on October 1. The seminar for Personal Trust Administrator Jennifer attorneys and certified public accountants Dracoulis reported that many of those was organized by Central Bank Trust Ser- attending the day long seminar came from For information, please contact vices and the Utah State Bar. outside of Utah County and attributed the the Utah State Bar, 531-9077. David Macbeth, manager of Trust Ser- success of the event to a cadre of presti- vices, contacted ULS to be the recipient of gious faculty. the funds. Milne was touched by the initia-

Ethics Opinions Available The Ethics Advisory Opinion Committee of the Utah State Bar has compiled a com- pendium of Utah ethics opinions that are now available to members of the Bar for the cost of $10.00. Sixty one opinions were approved by the Board of Bar Commissioners between January 1, 1988 and July 31,1997. For an additional $5.00 ($15.00 total) members wil be placed on a subscription list to receive new opinions as they become available during 1997. "Service With Integrity" ETHICS OPINIONS ORDER FORM Purchaser of Structured Cash Quantity Amount Remitted Flows Utah State Bar 'Real Estate Contracts & Notes with Deeds Ethics Opinions only of Trust ($10.00 each set) 'Business Notes *Structured Settlements * Lottery Winnings Ethics Opinions and We lend our expertise to facilitate various Subscription list transactions, including the provision of funding ($15.00) for Section 1031 Exchanges, Liquidation of Es- tate Assets, etc. Please make all checks payable to the Utah State Bar Please contact us for a free, no obligation quote Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman regarding the current cash value of your 645 South 200 East #310, Salt Lake City, Utah 84111. receivable. Written Opinions regarding the value of Struc- Name tured Cash Flows available for a nominalfee. Sam E. Barker, Esq. Address Presidenl

Phone: 1-800-929-1108 City State Zip Fax: (253) 472-8391 Please allow 2-3 weeks for delivery.

November 1997 25 Utah Lawyers Needed to Help Disabled Children Retain Benefits

By Lauren Scholnick

Under cost-cutting federal welfare nation, lawyers are extending a hand to dis- that SSA uses, they could win." reform legislation in i 996, benefits are abled children and their families - those The SSI Project in Utah is a collabora- being cut to children who are blind or dis- least able to help themselves. In conjunction tive effort. Funding is provided by the abled. In Utah, almost 60% of the 1,200 with Utah Legal Services (ULS) and the Corporate Counsel Section of the USB, the disabled, low-income children may lose Disability Law Center (DLC), the Utah State Salt Lake County Commission, and the Supplemental Security Income (SSI) Bar (USB) is recruiting and training pro United Way of the Great Salt Lake. ULS ~ monthly payments which average $440. bono attorneys to handle administrative will perform the intake services for these ~ By the end of August 1997, 340 chil- appeals of these SSI terminations. The goal children, gathering initial information , dren in Utah had been terminated from SSI is to provide an attorney for every family about the cases and the relevant dates. Both and 400 more await review by the Social with a meritorious appeaL. There may be as ULS and the DLC attorneys will train vol- Security Ad~inistration (SSA). To receive many as 500 disabled children in Utah who unteers statewide in addition to handling SSI benefits, the children and their parents need attorneys; the flood of cases cannot be cases. The first free training seminar wil must prove they are economically at handled by public interest lawyers alone. be held on November 10, 1997, at the Utah poverty level or lower. SSI benefits supple- "One child at risk is a compelling need; Law and Justice Center in Salt Lake, from ment family income so a single parent can 500 children at risk is a state of emergency," 8 a.m. to 12 p.m. Attendees will receive only work part-time or, in two parent fami- said Charlotte Miler, USB president. "I four CLE/NLCLE credits. The USB's pro lies, one parent can stay home with the know the lawyers in Utah will come forward bono coordinator will assign cases to disabled child and tend to that child's med- to help these children." trained volunteer attorneys. Pro bono attor- ical and emotional needs - attention that is Tom Yates, of the American Bar Associa- neys will then have three to four months to critical to the child's progress and tion's SSI Coalition, has been training prepare for an administrative hearing on improvement. Children's advocates believe lawyers around the country to handle these the child's case. If you would like to that families eliminated from SSI funding cases. He recognized why this project appeals become a pro bono attorney in the SSI will no longer be able to care for their dis- to lawyers, 'These are kids. They haven't made Project in Utah, please call Lorrie Lima abled children at home. Instead, the the situation they are in. The key is that a lot at the USB, 801-531-9077. children wil have to be placed in foster of kids are at risk of being denied benefits care, nursing homes, or institutions. improperly. If they can have effective repre- Lauren Scholnick is an attorney and Director In an effort throughout Utah and the sentation to negotiate the Byzantine system of Development for Utah Legal Services. . MEMBERSHIP CORNER CHANGE OF ADDRESS FORM Please change my name, address, and/or telephone and fax number on the membership records:

Name (pIease print) Bar No.

Firm

Address ~' i~ i City/State/Zip

Phone Fax E-mail All changes of address must be made in writing and NAME changes must be verified by a legal document. Please return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 8411 1 -3834; Attention: Arnold BirrelL. Fax t Number (801) 531-0660. I L______I i 26 Vol. 10 No. 9 al ¥f

Change in Process for Requesting Transcripts

By Timothy M. Shea, Administrative Offce of the Courts

If you try cases in Utah's District Court, Because court reporters wil be transcrib- officials are. The court executives, the you have probably noticed an increasing ing audio and video taped hearings, it wil managing court reporters and the districts number of trials and other hearings be necessary to modify the method in which they serve are provided below. The court recorded on video tape rather than by tradi- transcripts are requested. Lawyers and parties executive is responsible for the district tional court reporter or audio tape. Also, in wil no longer request a transcript from the court and juvenile court in all districts i more and more of the hearings in which a court reporter directly, but rather wil submit except Districts 2, 3, and 4. court reporter is present, that reporter is the request to the court executive for that ~ using a computerized stenograph machine district and level of court. The cour executive COURT EXECUTIVES that produces a real time transcript. These wil assign the transcript to a court reporter. Sharon Hancey effects are the visible tip of much more For the most part, hearings recorded by a First District Court Executive fundamental changes in the manner in court reporter wil be transcribed by that P.O. Box 873 which trial courts record their hearings. same reporter. In theory, because of stan- Brigham City, UT 84302-0873 A further change, effective January 1, dardized computer systems, but rarely in Phone: 734-4600. Fax: 734-4610 1998, wil affect the manner in which practice, the transcript could be assigned to Email: sharonh (gcourtlink.utcourts.gov lawyers and parties obtain transcripts of some other reporter. In any hearing recorded Margaret Satterthwaite those hearings. by audio or video tape, the court reporter to Second District Court Executive Historically in Utah court reporters have be assigned the transcript wil be selected 2525 Grant Ave · Ogden, UT 84401 been, in part, employees of the state earn- from the pool, takng into consideration the Phone: 395-1050. Fax: 395-1182 ing a salary for the time spent in court reporters' in-court obligations and other Email: margares (gcourtlink.utcourts.gov maintaining a verbatim record of hearings. transcripts being prepared. The court execu- Court reporters have also been, in part, tive wil notify the lawyer or party of the Mike Strebel independent contractors earning a fee paid court reporter to whom the assignment has Second District Juvenile Court Executive by a party for preparing the transcripts nec- been made. Thereafter, the lawyer or party is 444 26th Street. Ogden, UT 84401 essary for an appeal or for some other free to contact the court reporter directly Phone: 626-3800. Fax: 626-3827 review of a hearing. After many years of with any questions, comments or concerns. Email: mikes (g courtlink. utcourts. gov planning, court reporters wil, effective The transcript fee amounts are not chang- Larry Gobe1man January 1, shed their status as independent ing, but payment of the fee also wil be Third District Court Executive contractors. Transcript fees, currently paid made to the court executive rather than 451 S 200 E. Salt Lake City, UT 84111 to the court reporter preparing the tran- directly to the court reporter. Just as is now Phone: 238-7315. Fax: 238-7397 script, will on that date be paid to the state. the case with the court reporter, the lawyer Email: laryg (gcourtlink. utcourts.gov Court reporters, historically responsible for or party first wil have to obtain from the their own time, wil on that date become court executive an estimate of the length, Roy Whitehouse merit employees earning additional pay for and thus the cost, of the transcript. The Third District Juvenile Cour Executive transcript preparation time required beyond lawyer or party wil pay that fee with the 3522 South 700 West the traditiona140 hour work week. In addi- request for transcript. If the actual fee for the Salt Lake City, UT 84119 tion to transcribing the stenographic notes transcript is less than the estimate, the differ- Phone: 265-5910 . Fax: 265-5936 of their own hearings, court reporters also ence wil be refunded upon completion of Email: royw(gcourtlink.utcourts.gov wil have the primary responsibility for the transcript. If the actual fee is greater than Paul Sheffield transcribing video and audio tapes for the estimate, the difference wil have to be Fourth District Court Executive appeals. Private transcribers for these tapes paid prior to delivery of the transcript. P.O. Box 1847 · Provo, UT 84603 wil be used only when the volume of work The flow of fees and of requests for tran- Phone: 429-1038 · Fax: 429-1020 exceeds the capacity of the court reporters. . scripts wil be through the court executive, Email: pauls (gcourtlink.utcourts.gov To better enable court reporters to perform and the court executive is responsible for these important tasks, part of the transcript supervising court reporters and ensuring John Day

~ fees wil be used to purchase computerized timely preparation of transcripts. Court Fourth District Juvenile Court Executive stenograph systems and to train court executives wil be assisted by three manag- 2021 South State Street. Provo, UT 84606

~ reporters in the use of these systems. To ing court reporters, who wil be responsible Phone 373-3613 ext. 1213 . Fax: 373-6579 better manage the tasks of court reporters, for the day-to-day management of the sys- Email: johnd (g courtlink. utcourts.gov the district courts have begun to "pool" tem and the scheduling and assignment of James Nelson court reporters, who wil be supervised by in-court and transcript work. Fifth District Court Executive a managing court reporter and the district Because of the important role court exec- 40 N 100 E. Cedar City, UT 84720 court executive. Computer hardware, soft- utives and managing court reporters wil Phone: 586-4907 . Fax: 586-4801 ware and stenographic dictionaries are all play in the new procedures, it is important Email: jimn(gcourtlink.utcourts.gov being standardized to assist in the pooling. that lawyers and parties know who these

November 1997 27 Brent Bowcutt MANAGING COURT REPORTERS Progressing toward a more automated Sixth District Court Executive J)istricts 1 ~ 2 system of recording court proceedings has 895 E 300 N. Richfield, UT 84701 Dean Olsen already begun to accrue savings of public Phone: 896-2710. Fax: 896-8047 Second District Court expenditures, and those savings wil do Email: brentb 0J court1ink.utcourts.gov 2525 Grant Ave · Ogden, UT 84401 nothing but increase with time. As with Phone: 395-1056. Fax 395-1182 any modification of policy or procedure of Tim Simmons Email: deano0Jcourt1ink.utcourts.gov this magnitude, there inevitably wil be Seventh District Court Executive some confusion at the start. Judges, court 149 E 100 S. Price, UT 84501 J)strict 3 personnel and lawyers have been studying Phone: 637-7753. Fax 637-7349 Bunny Neuenschwander the changes to our method of recording Email: tims 0J court1ink. utcourts .gov Third District Court court hearings generally and the further 240 E 400 S .. Salt Lake City, UT 84111 John Greene changes to the transcript process necessi- Phone: 535-5813 · Fax 535-5957 Eighth District Court Executive tated by the changes in policy. They have Email: bunnyn 0Jcourtlink.utcourts.gov 147 E Main. Vernal, UT 84078 p1ánned for as many of the contingencies Phone: 789-2882 · Fax 789-0564 J)strict 4, 5, 6, 7 ~ 8 as can be anticipated. The judiciary wil Email: johng0Jcourt1ink.utcourts.gov Vonda Bassett closely monitor this new system and Fourth District Court respond quickly to complaints to ensure P.O. Box 1847 . Provo, UT 84603 the timely preparation of transcripts. Phone: 429- 1080 . Fax 429-1020 Email: vondab 0J court1ink. utcourts. gov

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28 Vol. 10 No.9 United States District Court for the District of Utah Office of the Clerk ~EDICAL 150 u.s. Courthouse XPERT 350 South Main Street ESTIMONY Salt Lake City, Utah 84101.2180

· Credible Experts Position Vacancy Announcement All physicians are board-certified. Most are medical school faculty Intake Deputy members. The Offce of the Clerk is now accepting given to applicants who have experience in * Selection of Experts applications for the position of Intake data entry in complex information process- Within 90 minutes of talking with Dr. Lerner we will fax the Deputy. The position is a Judicial Salary ing systems. A bachelor's degree may be proposed specialist's curriculum Plan Classification Level 24, Step 1, with an substituted for clerical experience. The vitae and retainer agreement for annual starting salary of $22,430. Incumbent position requires the ability to type at the review. may convert to full-time permanent status rate of 60 net words per minute and to work · Plaintiff or Defense after successful completion of six-month independently and accurately within time Since 1975 our multidisciplinary probationary period and performance limits specified for completion. Applicants group of medical specialists (MD, review. This is a federal government posi- should have working knowledge of Word- DDS, DPM, OD, OTR, PharmD, tion with potential for upward mobility. Perfect for Windows, and Windows 95. PhD, RN and RP) have provided services to legal professionals. INITIAL ASSIGNMENT: Serve as Applicants should have good communica- intake clerk, reviewing and accepting new tion and interpersonal skils. DR. STEVEN E. LERNER case filings and pleadings; receipting fil- QUALIFICATIONS: Prior court- or & ASSOCIATES ing fees; copying court documents; and law-related experience in an automated responding to inquiries concerning legal environment highly desirable. 1..800..952..7563 process and case-file information. Act as APPLICATION PROCEDURE: Inter- Visit our web site at http://www.drlerner.com liaison between the court, counsel, liti- ested applicants who meet the qualifications gants, the public, and court-related should prepare a cover letter and Application agencies. The position requires basic for Federal Employment (OF-612) and submit understanding of and familiarity with them with relevant supporting documenta- computers/data entry, the ability to type at tion and references to the address listed below. RESOURCE the rate of 60 corrected words per minute, OF-612 Forms are available for pickup at and the initiative to accomplish assigned the address listed below from 8:30 a.m. to MANUAL work independently and accurately within 5:00 p.m. Monday-Friday. Position open AVAILABLE time limits for completion. Applicants until filled. Submit application packets to: should be well groomed. United States District Court A source manual for locating MINIMUM REQUIREMENTS: for the District of Utah companies, individuals Applicants must have a minimum of three Offce of the Clerk of Court and their assets in all 50 states years administrative experience in Gov- Attn: KJPS - over 450 counties ernment or private sector which provided Room 150, Frank E. Moss U.S. Courthouse a thorough understanding of office admin- 350 South Main Street Compiled by a professional istrative procedures and organization of Salt Lake City, Utah 84101-2180 investigator with thirteen years high-volume paperflow. Preference wil be EQUAL OPPORTUNITY EMPLOYER experience in Asset Investigations and locates for FDIC and over 600 attorneys nationwide lJot O".t ot tAo S'fôW The most complete "How To" aHd IHtO tAo S".H ~ at tAo friO...... ,.....)..&;',\ manual available! 1998 Mld-yoar MootlHfJ IH To order ~.\:...... :.....::-:-:. St. lJoorfJo, UtaI'I ...c¿ SOURCES and STRATEGIES Send $34.95 + $4.00 S&H Marti yo".r caeoHdars HOW payable to: Transition Ventures, Inc. tor MareI' 6-1, 1998. Hopo 880 East 9400 South - Suite 103 Sandy, UT 84094 to SOO yo". tAorol (801) 572-1464

Nov'enber 1997 29 Utah Lawyers Honored

The Energy, Natural Resources and He concentrates on environmental and min- ning in Warsaw, Poland, in 1980 where he I Environmental Law Section of the Utah ing matters. Mr. Pos also represents clients studied international finance and trade. ii State Bar honored Hal J. Pos as the Sec- in environmental criminal enforcement Mr. Joseph Novak serves "Of Counsel" tion's Lawyer of the Year, and honored actions and environmental toxic tort actions. to Snow, Christensen & Martineau. His Joseph Novak with the Section's Edward He is currently the Chair of the Environmen- practice concentrates on water law. Mr. I W. Clyde Distinguished Service Award. tal Law Committee of the Energy, Natural Novak h-as served the Utah State Bar as ,i The awards were presented by the new Resources and Environmental Law Section president, Chairman of the Water Law Sec- f) Section Chairman, Frederick A. MacDon- of the Utah State Bar. Mr. Pos is a graduate tion and Chaiman of the Eminent Domain ald. Mr. MacDonald also recognized Craig of Carleton College (A.B., magna cum laude Section. He has been recognized on W. Anderson for his service as Chairman 1981) and Washington University Law numerous occasions for service to the Utah of the Section this past year. School (J.D. 1984). He also attended the State Bar including receiving the Distin- Mr. Pos is a shareholder in the Environ- University of Copenhagen School of Inter- guished Lawyer of the year Award and the mental and Natural Resources Department national Business in Copenhagen, Denmark, Amicus Curiae Award from the Utah Judi- with the law firm Parsons Behle & Latimer. and the Warsaw School of Economic P1an- cial CounciL.

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30 Vol. IONo. 9 THE BARRISTER --

Opportunities to Serve

By Michael Mower

536-6719 and Brianna Lavelle at 262-0669 COMMUNITY SERVICE As a neware automaticallymember of athe member Bar, of you the are working to provide more bang for YLD Are you a little tired of giving out legal Young Lawyers Division, "YLD". For members bar dues bucks. They are planning advice to neighbors, friends and family three years after admission to the Bar, or many great, free CLE classes, a new lawyer members but still want to be of service to until you reach age 35, you belong to one lunch, and are hoping to expand the benefits the community? Well, continue to do that of the most active Divisions of your state YLD members receive from the Bar. pro bono work because there is a real need bar. As President of the Young Lawyers for it. Along with it, realize that the Com- Division, I invite you to read more about NEEDS OF CHILDREN munity Service committee of the YLD can the various, worthwhile committees of the Members of this committee work to assist provide you with opportunities to give a Bar. "YLD" involvement is a terrific way Utah children in need. Past projects have little sweat to help out others. Past Young to serve others, serve your profession, and included Big Brother/Big Sister activities, Lawyers projects have included painting a meet many other young Utah attorneys. Sub-for-Santa projects and sponsoring vol- If you have any questions, please feel unteer Guardian Ad Litem training. floor at the YWCA, helping to remodel and furnish a county youth shelter, and painting free to call me at 397-2505. Also, you're Chairpersons this year are Lisa Rischer at welcome to contact any of the committee 531-3000 and Charlie Friedman at 582-7599. homes for local low-income residents. chairpersons listed below. Chairpersons Renee Spooner and John NEW LAWYER CLE Bowman at 568-4660 are committed to continuing YLD projects that help people PRO BONO "Oh my word. I though I was through The only people in town who can vol- with law school!" is an expression often in need. unteer legal advice are attorneys, and the heard from new bar admits upon learning Young Lawyers have played an integral about mandatory continuing legal education. LAW DAY role in providing legal help in Utah. The The good news is CLE courses don't grade This is no ordinary rubber chicken lun- Pro Bono Committee of the YLD, headed on the curve. The other good news is that cheon. The food is good; the talks are by Rob Rice at 532-1500 and Jensie Julie Thomas at 237-1982 and Jeff Hagen . enlightening and the company is terrific. Andersen at 485-7343 lead YLD efforts to at 328-3560, Chairs of the New Lawyer Each year on May 1st, Utah Young staff the Tuesday Nigh Bar as well as the CLE committee, work hard with members of Lawyers host a luncheon to remind us annual Call-A-Lawyers project. the Senior Bar to provide classes that are about the importance of the law in our informative and relevant to new lawyers. society. Last year Senator Orrin Hatch out- MEMBERSHIP SUPPORT NETWORK Julie and Jeff welcome your comments on lined his views on the rule of law. A few The goal of the Membership Support what new lawyers wish they had learned in years ago, noted defense attorney Gerry Network is to help Young Lawyers in Utah. law school but didn't. They wil work hard Spence expounded on his concerns that Committee chairs Eric Christiansen at to provide such courses. justice often isn't served. Awards to the

I . November 1997 ..s~~t~ 31 gl Young Lawyer of the Year and those in the cation committee works to educate people in bar licenses for new admittees to the Bar. community who have been active in pro- the community about their legal rights. moting justice are presented at this While lacking the drama and intensity of the REGIONAL OFFICERS luncheon. Dan Garrison at 237-1900 and People's Court, the free classes this commit- The YLD works to make certain that its Rob Latham at 567-3284 are chairing the tee hosts are informative and appreciated by activities and assistance reach beyond Salt luncheon and are coordinating other Law those who attend them. Attorney volunteers Lake County. Coordinating Young Lawyer Day activities. are always needed to teach these classes, projects in northern Utah is Randall which are usually held in public libraries, Philps at 621-6546. Randall also spear-

BAR JOURNAL schools and senior citizens centers. Any heads the Thursday Night Bar pro bono A few years ago Peggy Stone at 538- interested parties are invited to call commit- program in Weber County. Brock Belnap 4660 was an editor of the University of tee leaders Frank Call at 532-9909 and at 634-5723, a Washington County Prose- Utah Law Review. Today, she is putting Charlie Veverka at 533-9800. cutor, is the YLD director for Southern those editing skills to good use as she and Utah. Both attorneys welcome comments commttee Co-chair Mark Quinn at 569- LONG TERM PLANNING from attorneys who practice outside of Salt 3131 and Catherine Roberts at 583-0257 Steve Shapiro at 532-5444 and Steve Lake on what programs the Young Lawyers cover young lawyers and their activities Owens at 363-7611 are the Chairs of this Division can provide. throughout the state. They are anxious to newly formed committee. Their goal is to lear and report on what young lawyers are project several years ahead to see what the doing in their practices, their communities needs of Young Lawyers in Utah wil be and and their pro bono activities. to star planning for it. Their work is mod- eled on the long term planning project LAW RELATED EDUCATION currently being undertaken by the Senior Want to know how to divorce your hus- Bar. Steve and Steve wil also be assisting band? Curious about who gets your stuff if with YLD projects at the mid-year and you die without a wil? Concerned about annual meetings of the Utah State Bar. Cur- what rights you have as a tenant to get that rently they are seeking young lawyers leaking toilet fixed? The Law Related Edu- responses to proposals such as provisionary

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z¿ ._,~w;m Ten Tips for New Attorneys

By Judge G. Rand Beacham

G. RAND BEACHAM was appointed to the firm or office with experienced attorneys, This articlethe time will that be the published Utah State near Bar Fifth District Court in August 1995 by Gov- do not blithely assume that you will give announces the names of those who have ernor Michael O. Leavitt. He sits primarily the help you need; some law firms provide successfully run the gauntlet of the 1997 in Washington County. He is a graduate of good mentoring, while others may give Bar Examination. Scores of new law Snow College and Utah State University, you the proverbial Viking swimming les- school graduates will then take the formal and graduated from the University of Utah son - they will throw you out of the boat to College of Law in 1980, after serving two oath and be added to the ranks of practic- see whether you can swim to shore on your years on the Utah Law Review. He was in ing attorneys. This article is addressed to private legal practice until his appointment own. If you are starting a practice and those new attorneys. to the bench. He was a member of the Plan- hanging out a shingle, you especially need As a relatively new judge, I sincerely ning Committee for the 1997 District Court a good mentor. In any event, you must find sympathize with you and anyone else who Judges Conference. He is married to Diane an experienced attorney who will commit is faced with new responsibilities and risks. Beacham, who teaches in the Washington to being your mentor. Take advantage of Your immediate future may be difficult. County School District, and they are the mentoring programs if they are available, Many of you have acquired or perfected a parents of three sons and one daughter. or take it upon yourself to find someone. considerable ego during law school but, Even an attorney with whom you will be unless your ego has entirely overcome your competing may appropriately feel flattered senses, you wil begin practicing law with typical mistakes of the inexpeiienced litigator. i by your request for his or her advice, direc- a genuine feeling of insecurity. No one can 1. FIND A MENTOR. Law school has tion and form documents. give you any immediate comfort; you taught you much of the subject matter that 2. LEARN THE RULES. If you intend should fee insecure, because you now have you need to know, and some subject matter to litigate, you must learn to apply the demanding professional responsibilities, that you may never need to know. Law rules of procedures, evidence and appeal to but virtually no experience in real-woad school has taught you little about the actual real-life situations. Do not expect judges legal practice. Some of you will become daily practice of law, however, in spite of and other attorneys to waive the rules just litigators and wil soon find your way to more progressive curricula adopted in the because you are new. Regardless of the the courthouse door, even without having twenty years since I began law schooL. You extent of his or her experience, the attorney been taught to do so. Until you have more should not try to invent every wheel by who knows and follows the rules always experience, your litigation and courtroom yourself. You need to learn from the experi- has a great advantage over the attorney who work will be fraught with potential for ence of some trustworthy practitioner who tries to work from vague memory or on the embarrassment or humiliation. Conse- has successfully done the things you are basis of perceived practices (i.e., "We've quently, I offer the following tips for new learning to do. always done it this way."). Do not file any attorneys who want to avoid some of the If you are lucky enough to have a job in a pleading or motion without first reviewing

34 Vol. JONo. 9 the applicable rules, and at least, reading or make notes near the text, you have put 7. USE NORMAL ENGLISH. Young the relevant annotations to the rules. yourself at a serious disadvantage. Rule 4- attorneys sometimes try to sound more 3. TALK is CHEAP. IneXperienced 501 of the Code of Judicial Administration experienced by adopting stilted and formal lawyers may not appreciate the value of already requires the moving party to deliver language. Some terms used in legal matters simply discussing a dispute candidly with courtesy copies of motions, memoranda and have precise and technical meanings, of opposing counseL. You may file unneces- other papers to the judge (not the clerk) at course, and are used by any competent sary motions because you are too least two working days before a hearing; do lawyers. The problem occurs when an intimidated by experienced opponents to not send them before you have a hearing attorney stumbles into using awkward or talk to them, or because drafting motions date, and then always include a cover letter verbose language which communicates and memos is what you know best. You or other paper showing the judge when the nothing more than normal speech. should adopt a firm practice of making a hearing is scheduled. This may happen more in hearings and good faith effort to discuss a problem' with I think it is a good practice for the mov- trials than in written materials, and it often opposing counsel on a professional level ing party to provide courtesy copies of all happens in direct examination of a witness before spending your time and your papers filed by all parties; a partial set of by an inexperienced and nervous lawyer. client's money to file a motion and ask the papers just creates the task of finding the For example, the questions "Upon your ini- court to resolve the problem. Doing this others. 1 also recommend that you provide tial gaining of access to the defendant's will help develop the respect of good attor- courtesy copies for motions submitted with- dwelling place, what, if anything, were you neys. It will also allow you to appear in out hearing, even though Rule 4-501 does able to observe of the interior of the court and tell the judge that you have tried not require it. If you send a complete set of dwelling?" is actually a less effective ques- to solve your own problems. If the judge courtesy copies to the judge with a copy of tion than "What did you see when the door learns that you do not simply run to the your Notice to Submit for Decision, you opened?" Similarly, asking "Did you come courthouse to resolve every problem that help the judge avoid spending time just try- into contact with her?" in place if "Did you you encounter, you wil be more welcome ing to locate what has been filed. All judges talk to her?", and "Did she indicate any- there when it is truly necessary.2 appreciate being able to get to the task of the thing to you in response to that contact?" 4. READ IT BEFORE YOU SIGN IT. actual decision without having to waste time in place of "Did she say anything?", may Your first impression to a judge may be sorting through a file. make you sound more like a television made through your written work. Before lawyer, but it communicates less substance you get to a hearing and have the opportu- to your listeners. Using unnecessarily for- nity to demonstrate your true brilliance, mal language in questioning also prompts you may have already portrayed yourself some witnesses to try to answer in similar as a careless dolt by submitting sloppy, "If you want a judge to be language, leaving the fact-finder to wonder mistake laden motions and memoranda. I persuaded by your argument, make what you were talking about. recently received a memorandum in sup- it easy for him or her to locate Remember that your goal is to have the port of a motion for sanctions which your argument and study it." witness understand your questions and to argued that the opposing party's argument have the judge or jury understand both was neither "well-rounded (sic) in fact" your question and the witness's answer. nor "warranted by existing law or a good You wil do that best when you use accu- fake (sic) argument" for a change in the rate language that he or she will readily 6. SAVE SANCTIONS FOR SEVERE law. The attorney probably dictated the understand. SITUATIONS. A Rule 1 1 motion for sanc- memo and failed to proof-read it.3 Regard- S. AVOID MULTIPLE NEGATIVES tions against an opposing party or attorney is less of the merits of your argument, you IN CROSS-EXAMINATION. Most attor- a serious matter, and such motions should wil severely weaken your persuasiveness neys like to cross-examine witnesses, not be thrown around indiscriminately, like by submitting written work which contains because the ability to use leading questions Dikembe Mutumbo's elbows. Unsupportable obvious mistakes. If you don't care about it makes it much easier to get the desired motions for sanctions are often filed by enough to correct it, a judge may hesitate answer. Even inexperienced attorneys can attorneys who are too emotional and unpro- to rely on it. Learn to edit what you draft, do well on cross-examination if they are fessional, or are simply "blowing smoke" to and proof-read everything that you sign or reasonably well prepared. There are nega- pad a weak argument. Do not add a Rule 11 submit. tive forms of leading questions, however, 5. COURTESY COPIES. If you want motion to every routine dispute in which the that make the answers sound at least problem is simply that you really, really a judge to be persuaded by your argument, ambiguous. For example, if the question is don't like your opponent and his or her argu- make it easy for him or her to locate your "It is true, is it not, that you did not see the argument and study it. If the judge has to ment. Remember the boy who cried wolf: If other car before the impact?", and the you ask for sanctions too often, perhaps no dig through the entire court file on the answer is "No," does the witness meant one will take you seriously when sanctions night before your hearing in order to locate that he did or did not see the other car? On are actually warranted. Furthermore, filing your motion and the supporting and oppos- the other hand, if you ask "You did not see an unsupportable Rule 11 motion may, ironi- ing papers, and then the judge has to try to the other car before the impact, did you?", cally, give your opponent a valid Rule 11 understand and remember your arguments the answer wil be clearer. Do not be lured without being able to highlight sentences motion against you. into using old fashioned forms like "It is '- - November 1997 35 true, is it not" by some misguided desire to 10. QUALITY AND INTEGRITY; integrity is not credible. If you become demonstrate how esoteric and scholarly you CREDIBILITY AND RESPECT. I believe known for quality work and personal can sound. If you ask a question such as "It that the only really lasting assets of a good integrity, you will have the confidence of is true, is it not, that you did not fail to attorney are quality of work and personal knowing that attorneys, clients and judges deny that you are a liar?", who wil under- integrity. Do not be seduced into doing poor are inclined to believe you and trust you. stand the answer, regardless of what it is? quality work by the pressure of bilable Maintaining that credibility over time 9. STAY ABOVE THE FRAY. The hours and heavy financial expectations; do wil result in genuine respect within your native combativeness and the developed whatever it takes to do good quality work legal community. By the time that you con- verbal skils of 1itigators occasionally lead and to avoid being known for sloppy, sha1- clude your legal practice, the strength of to curt and caustic verbal exchanges. The low or careless work. Do not trade your your credibility and the satisfaction of the president of the American Bar Association personal integrity for anyone's money, respect shown to you wil be far more va1u- recently reported the results of his nation- power or security; you may not always be a able to you than money, letterhead position widè survey of presidents-elect of state and lawyer, but you wil always be yourself if or popular notoriety. local bar associations on the subject of you maintain your integrity. GOOD LUCK! "civility." Ninety percent of the survey If that sounds a bit corny or sentimental, ISome of this may seem painfully obvious to you. but you respondents believed civility was a prob- consider this: Among your knowledgeable will soon find that it is not obvious to all practicing attorneys. 1em in their jurisdiction, and that the clients and competitors in the legal market- 2 A friend and former colleague once told me about a solo place, your effectiveness and worth as an practitioner who had forgotten to respond to an opponent's problem was defined by diminished respect written discovery requests, and was reminded by being served among lawyers. Disrespectful conduct out- attorney wil be measured by your ability to with a Motion to Compel Discovery, a demand for sanctions get the results that you want. Your actual and a weighty supporting memorandum on the terrors of Rule side the courtroom is one problem, but 37. He responded with a one-sentence Memorandum in inside the courtroom it is even more point- effectiveness, both in court and out of court, Opposition: "Why didn't they just call me?" When the COUlt wil depend in large part upon your personal called the case for hearing on the motion. the judge began by less and destructive. You will never find a addressing counsel for the moving party with a question: judge who is favorably impressed or per- credibility with attorneys, clients and judges. "Why didn't you just call him?" The motion was denied. suaded by histrionics or snide carping Judges wil always base their decisions on 3Several years ago, while proof. reading a promissory note which I had dictated and given to a substitute secretary. I between attorneys. It always hurts your the legal merits of the opposing cases, but found that, without correction, it would have required the argument, which hurts your client. No mat- even a great argument may be tainted by an maker to repay the principal together with "a crude" interest. attorney's known lack of credibility. Fortunately. I found and corrected the mistake before my ter how little experience you have, or how client had to determine how to calculate and collect crude much experience your opponent has, you In my opinion, credibility as an attorney interest. wil have a great advantage, if you remain results entirely from quality work and per- 4Th ere are some judges who prefer not to receive courtesy copies. If you have any questions about your judge, ask the dignified and professional, especially when sonal integrity. An honest attorney with a judge's clerIc. your opponent descends into unprofes- reputation for shoddy work is not credible. A siona1 personal attacks. highly skilled attorney who is known to lack

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Vol. 10 No. 9 36 --CASÈ SUMMARIES~ By Daniel Torrence & Glen A. Cook

ZIONS FIRST NATIONAL BANK V. do so, Zions won't be allowed to ask a court The Court also reaffirmed its prior hold- FOX CO., FOOTE, ET AL., 320 Utah to perform an "autopsy" on its settement ing that a waiver of Miranda rights may be Adv. Rep. 30 (Utah 1997). with the beneficiaries. inferred from a suspect's understanding of Zions, as personal representative of the his rights and his subsequent course of Pepper estate, was sued by the Pepper ben- STATE V. LEYVA, 324 Utah Adv. Rep. 5 conduct (which may include silence) based eficiaries for five claims for relief, (Utah 1997). on a "totality of the circumstances." including fraud, mismanagement, and neg- "Hey, man, I'll admit to everything else, ligence. Zions named Fox Company and but the cocaine isn't mine." This and other McNAIR V. FARRIS, 324 Utah Adv. Rep. Foote (accounting firm and accountant) as equally incriminating statements are at the 9 (Utah App. 1997). third-party defendants, alleging they negli- heart of State v. Leyva. After reading Mr. Daniel Farris drove his car over Leslie gently prepared audits of certain businesses Leyva his Miranda rights, the policeman McNair's foot, breaking two of McNair's owned by the estate. Later, Zions agreed to asked, "Having these rights in mind, do you toes. McNair sued Farris. dismiss its third-party claims against Fox want to talk to us now?" Leyva responded, Farris brought a motion for summary and Foote with provisions for potential "I. don't know," then shortly thereafter pro- judgment, arguing that (1) McNair's med- future reinstatement. ceeded to answer the officer's other ical bills totalled only $ i ,200.00, less that Zions settled with the Pepper beneficia- questions, making incriminating statements. the $3,000.00 threshold required by Utah's ries for $2.8 millon and later sued Fox and The trial court denied Leyva's motion to No-Fault Act and, (2) the injury wasn't a Foote, in a separate action, for that portion suppress and Leyva was convicted. "serious impaiiment" as required by the Act. of the $2.8 million caused by the account- The Court of Appeals reversed Leyva's McNair's attorney couldn't locate ing negligence of Fox and Foote. conviction on the ground that the officer McNair to assist in opposing the summary The trial court granted summary judg- should have limited his questioning to clari- judgment motion, and it was granted three ment in favor of Fax and Foote. fying Leyva's initial ambiguous response of days before triaL. On review, the Supreme Court noted "I don't know." The Court of Appeals noted that the No- that a trier of fact has no practical way to The Supreme Court reversed, and held Fault Act requires "objective findings" to distinguish, in retrospect, what portion of that the requirement that an officer limit his establish the permanency of injury, and the settlement payment was attributable to questioning to clarifying a suspect's ambigu- ruled that McNair "had the burden of Zions' independent liability and what por- ous or equivocal statement only applies to demonstrating the permanency of his injury tion, if any, was caused by the conduct of pre-waiver scenarios as opposed to situa- with something more than his say so." Fox and Foote. By forgoing its right to tions in which a suspect has waived his Because McNair's complaint and deposition have a trier of fact decide causation, Zions Miranda rights and then later seeks to testimony failed to allege any permanent lost the ability to seek an allocation of a reassert them. injury based on objective findings, summary portion of those damages to Fox and Foote. Once a suspect waives his Miranda judgment against him was appropriate. To preserve its rights against Foote and rights, the requirement of clarity with The Court also reiterated its long-stand- Fox, Zions could have proceeded to litiga- respect to post-waiver invocation of those ing rule that a dismissal based upon a tion or brought Fox and Foote into the rights is on the suspect. The Court found motion for summary judgment is properly settlement negotiations. Having failed to Leyva waived his rights. granted "with prejudice."

November 1997 - i§_'~~ 37 UTAH BAR FOUNDATION

Utah Bar Foundation's Newest Grant Recipient Utah Dispute Resolution

By Jane Semmel

Utah Dispute Resolution (UDR) provides residents of Utah with quality mediation and concilation services, including information and training in alternative dispute resolution, as well as the means to successfully, informally, and cooperatively resolve their disputes.

and in West High School's peace center. The above mission statement might UDR is also present in Murray small strike some attorneys as mission impossi- claims court as on on-site alternative; par- ble. However, not all disputes must remain ties can elect to participate in an immediate fixed in an adversaria1 mode that inevitably mediation prior to presenting their case leads to court. Many conflicts are appropriate for other means of resolution. before a judge. Many community agencies are currently Mediation, a voluntary process in which referring cases to UDR. For instance, the mediator remains neutral and does not UDR meets weekly with Utah Legal Ser- decide who is right or wrong, can often vices to identify those conflicts that might assist antagonists in settling their differ- be defused by having the disputers sit ences. The goal is a signed agreement that down face to face with a neutral mediator. is satisfactory to the parties and enforce- The parties are subsequently contacted and able as a contract. presented with the option. Referrals also Utah Dispute Resolution, housed in the come from the Consumer Protection Law and Justice Center, has been offering Agency, the Better Business Bureau, free mediation and conciliation services as Department of Commerce, Legal Aid, an alternative to litigation since its estab- Community Action Program and various lishment in 1991. With continuing support SUSAN BRADSHAW, the new executive law enforcement agencies, such as the Dis- director, brings to UDR a JD degree from from private foundations and the Utah trict Attorney's office, the Salt Lake State Bar, UDR has evolved into a signifi- the J. Reuben Clark School of Law at County Sheriff's office and the West Valley cant and legitimate community resource. BYU and a Master's Degree from the Straus Institute for Dispute Resolution at Police Department. In addition, UDR is Now, as a new recipient of an IOLTA grant developing referral mechanisms for the and with fresh leadership from a board of the Pepperdine University School of Law. Bradshaw envisions making mediation Salt Lake City Prosecutor's offce. directors and a recently-hired executive services available throughout the Salt In response to an overwhelming need, director, UDR is hoping to expand its ser- Lake Valley via widely §cattered, satellte UDR hopes to begin taking referrals in vices, its panel of mediators, its funding neighborhood mediation centers adminis- divorce and child custody cases in coopera- base and its profile. tratively supported by the UDR hub at the tion with outside agencies and the private While the primary target of UDR is Law and Justice Center. bar, which will assist with pre-mediation Utah's poor population, whose legal needs counseling and prepare the final court doc- are generally unmet, UDR also contributes uments once agreement is attained. a forum for those individuals who cannot UDR's mediators, who come from all afford a lawyer, yet do not qualify for free Center, an alternative public high schooL. legal services. With a roster of some 60 "People like to stay in their own neighbor- walks of life, have each completed at least 32 hours of training. A very modest fee is mediators (less than half are attorneys), UDR hoods," says Susan Bradshaw, explaining the charged for the training in exchange for a is able to facilitate agreements that generally success of Horizonte, where not only are commitment to conduct at least three medi- result in preserving relationships and leave local disputes mediated on the spot, but con- ations a year. Those volunteer mediators participants with a sense of satisfaction. flct resolution skills are taught to teens in Already operational is a UDR office, the classrooms. Talks are underway for cre- who are not attorneys must also lend a aptly called the Solution Center, located at ating similar facilities in the Sorensen hand in the UDR office for six months in the Horizonte Instruction and Training Multi-Cultural Center (formerly Glendale) order to become familiar with the overall

Vol. 10 No.9 38 .. Ii mediation process. Many disputes can be Bradshaw estimates that by the end of to fulfil their obligations (remember the efficiently resolved through telephone con- 1997 approximately 335 of the projected proposed Bar reporting requirement!), help ciliations, in which a mediator converses 589 referrals to UDR this year will have alleviate the heavy backlog of cases in the over the phone with the involved parties been successfully resolved. In order to han- courts and gain valuable skills in an area and facilitates an agreement. New trainees dle the anticipated future case10ad, UDR that is of increasing necessity and value to are encouraged to paricipate in these forus. needs to enlarge its panel of mediators. To the community." While not all disputes are suitable for that end, Bradshaw is scheduling a training mediation, certain situations in particular in early spring and encourages interested can benefit from the process. If the feuding persons to call the UDR offce at 532-4841 parties will inevitably have a relationship for details. beyond the life of the strife (for instance, Sums up Bradshaw, "Participation in landlord/tenant, neighbor/neighbor and UDR can be a rewarding way for attorneys family or friend disputes), arriving at an agreement to which each has contributed and subscribed is much more likely to lead to future harmony than is a decision ren- dered in one party's favor by a court. The following scenarios are examples of recent, successful mediations; they are BURGUNDY CLASSIC ilustrative of the broad range of disagree- ments that can often be amcably resolved: CORPORATION KITS Landlord/tenant: The parties were headed to court over a disagreement about the tenant's deposit. Mediation resulted in a compromise splitting the money. The relationship remained intact and court costs were avoided. Agency: Two agencies that work together to provide community services could not agree on the appropriate service and implementation. Three days of discussion under the guidance of a UDR mediator resulted in an agreement about basic service. Additionally, a strcture was set up to manage future grievances. At-risk children: A teen who was court-ordered to foster care threatened to . Binder in classic, marbled burgundy, leather-look vinyl; D-shaped rings; with matchig slipcase and index tabs run away from the placement. At the One of the most complete on the market! . Corporate engraved seal with pouch request of a social worker, a UDR mediator . Binder in classic, marbled burgundy, leather.look . FREE Easy Way corporate kit software met with the teen, the foster parents and vinyl; D.shaped rings; with matching slipcase . Conveniently tailored corporate by-laws . 6 index tabs - mylar reinforced the social worker in several sessions where . Customized minutes . LLC engraved seal w ¡pouch grievances were aired. The face-to-face . Computerized stock transfer ledger sheet . 25 custom printed membership certificates . 25 custom.printed stock certificates confrontation, the first the parties had ever . FREE Easy Way LLC software . 6 index tabs . mylar reinforced had, resulted in an agreement to continue . LLC name in gold on binder . Stock transfer ledger the placement. . Articles, operation agreement, minutes . By.laws and minutes and resolutions pre-printed . and much, much more.. . Neighbor/neighbor: When a neighbor- . Tax forms - latest requirements hood was becoming increasingly terrorized

by a local gang, UDR was contacted by a $ 57.95 plus $4.00 shipping & handling $ 57.95 plus $4.00 shipping & ha~dling resident and a meeting was held at the home of the family accused of harboring 24.HOUR IN HOUSE COMPLETION ON ALL KITS gang members. An agreement was reached Quality Guaranteed Workmanship on an agenda and key issues, and an action plan was developed to deal with specific PHONE TOLL FREE 1.800.586.2675 or FAX 1.800-586.2685 problems as they arise. At the end of the CORP~'NC process, neighbors swapped phone num- CORPORATE KITS & MORE Phone 1.801.292.5537 or FAX 1-801-292.5688 bers, opened up lines of communication 640 No. Main, Suite 2167 . North Salt Lake, UT 84054 and celebrated their new-found sense of community with a potluck dinner. ,. November 1997 39 ~ -CLE CALENDAR- ANNUAL CORPORATE COUNSEL WIN YOUR CASE BEFORE TRIAL: ALI-ABA SATELLITE SEMINAR: SECTION SEMINAR EFFECTIVE PRETRIAL EEO BASICS - PRACTICE Date: Thursday, November 6, 1997 TECHNIQUES & STRATEGIES FUNDAMENTALS OF EMPLOYMENT Time: 9:00 a.m. to 1:00 p.m. Date: Friday, November 14, 1997 DISCRIMINATION LAW Place: Utah Law & Justice Center Time: 9:00 a.m. to 4:30 p.m. Date: Tuesday, November 18, 1997 Fee: $45.00 for section members (Registration beings at Time: 10:00 a.m. to 2:00 p.m. $60.00 for non-section 8.30 a.m.) Place: Utah Law & Justice Center members Place: Utah Law & Justice Center Fee: $160.00 (To register, please CLE Credit: 4 HOURS which includes Fee: $140.00; $160.00 at the door call1-800-CLE-NEWS) 2 HOURS in ETHICS CLE Credit: 7 HOURS CLE Credit: 4 HOURS ALI-ABA SATELLITE SEMINAR: EMPLOYEE BENEFITS LAW AND PRACTICE UPDATE Date: Thursday, November 6, 1997 Time: 10:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Fee: $160.00 (To register, please call1-800-CLE:tEWS) CLE Credit: 4 HOURS Those attorneys who need to comply with the New Lawyer CLE requirements, and who live outside the Wasatch Front, may satisfy their NLCLE requirements by videotape. NLCLE MANDATORY SEMINAR- Please contact the CLE Department (801) 531-9095, for further details. FOR 1997 ADMITTEES Seminar fees and times are subject to change. Please watch your mail for brochures and Date: Friday, November 7, 1997 mailngs on these and other upcoming seminars for final information. Questions regarding Time: 8:30 a.m. to 4:15 p.m. any Utah State Bar CLE seminar should be directed to Monica Jergensen, CLE Adminis- (Registration begins at trator, at (801) 531-9095. 8.00 a.m.) Place: Utah Law & Justice Center Fee: $35.00 CLE REGISTRATION FORM CLE Credit: This program counts as the ETHICS requirement for TITLE OF PROGRAM FEE New Lawyers, and is mandatory for those attorneys who 1. sat for the Bar Exam as "students" and were admitted in 2. 1997. If you have a question about whether or not you need to attend this program, Make all checks payable to the Utah State Bar/CLE Total Due please call Monica Jergensen at (801) 297-7024. Name Phone CHILDREN'S SSI PRO BONO PROJECT TRAINING Address City, State, Zip Date: Monday, November 10, 1997

Time:' 8:15 a.m. to 12 noon Bar Number American ExpresslMasterCardlVISA Exp. Date Place: Utah Law & Justice Center Fee: Free to those wiling tò Credit Card Billing Address City, State, ZIP accept a pro bono case $40.00 for all others CLE Credit: 4 HOURS NLCLE or CLE, Signature which includes 1 HOUR Please send in your registration with payment to; Utah State Bar, CLE Dept., 645 S. 200 Eo, S.L.C., Utah 84111. The Bar and the Continuing Legal Education Department are working with Sections to provide a full complement of live semi. in ETHICS nars. Please watch for brochure mailings on these. Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. Cancellation Policy: Cancellations must be confirmed by letter at least 48 hours prior to the seminar date. Registration fees, minus a $20 nonrefundable fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar date. No refunds wil be given for canccllations made after that time. NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the 2 year CLE reporting period required by the Utah Mandatory CLE Board. L.______

40 Vol. 10 No. 9 -- AN EVENING WITH THE Fee: $249.00 (To register, please ETHICS - ESTABLISHING THIRD DISTRICT COURT call1-800-CLE-NEWS) SUCCESSFUL & PROFITABLE Date: Tuesday, November 18,1997 CLE Credit: 6 HOURS CLIENT RELATIONSHIPS Time: 5:30 p.m. to 8:30 p.m. Date: Friday, December 19, 1997 Place: Utah Law & Justice Center LAWYERS ON THE INTERNET: Time: 9:00 a.m. to 12:00 p.m. RESEARCH AND Fee: $15.00 for Young Lawyers (time subject to change) and attorneys in practice 5 ELECTRONIC PRACTICE Place: Utah Law & Justice Center years or less; $35.00 for Date: Friday, November 21,1997 Fee: $70.00 pre-registration members of the Litigation Time: 8:30 a.m. to 12:00 p.m. $60.00 for three or more Section; $50.00 for all others (Registration beings at registrations from the CLE Credit: 3 HOURS CLE & NLCLE 8:00a.m.) same office Place: Utah Law & Justice Center $80.00 at the door NLCLE WORKSHOP: Fee: To be determined CLE Credit: 3 HOURS ETHICS ESTATE PLANNING & PROBATE CLE Credit: 4 HOURS Date: Thursday, November 20,1997 ETHICS - THE BOTTOM LINE: Time: 5:30 p.m. to 8:30 p.m. ALI-ABA SATELLITE SEMINAR: SETTING & COLLECTING FEES Place: Utah Law & Justice Center THE CONVERGENCE OF Date: Friday, December 19, 1997 Fee: $30.00 for Young Lawyer ELECTRICITY, GAS & Time: 1 :00 p.m. to 4:00 p.m. Division Members; $60.00 TELECOMMUNICATIONS - (time subject to change) for all others NEW OPPORTUNITIES FOR Place: Utah Law & Justice Center CLE Credit: 3 HOURS THE PRACTICING LAWYER Fee: $70.00 pre-registration Date: Thursday, December 4, 1997 $60.00 for three or more ALI-ABA SATELLITE SEMINAR: Time: 10:00 a.m. to 2:00 p.m. EVIDENCE FOR THE registrations from the Place: Utah Law & Justice Center same office TRIAL ADVOCATE Fee: $160.00 (To register, please Date: Thursday, November 20,1997 $80.00 at the door call1-800-CLE-NEWS CLE Credit: 3 HOURS ETHICS Time: 9:00 a.m. to 4:00 p.m. CLE Credit: 4 HOURS Place: Utah Law & Justice Center

Mandatory Continuing Just a reminder to those on the 1997 CLE Cycle: legal Education CLE Reporting Deadline Reminder December 31, 1997 Attorneys who are required to comply with the New Lawyer CLE Requirement: odd year compliance cycle will be required to submit Mandatory Seminar (Ethics) a "Certificate of Compliance" with the Utah.5tate 12 NLCLE hours + 12 regular hours Board of Continuing Legal Education by December 31,1997. CLE Requirement: · The Mandatory CLE requirement is: 27 hours of 27 total hours with 3 hours in Ethics total credit with at least 3 hours of ethics. If you have any questions regarding your CLE · The New Lawyer CLE Requirement is: A one day requirements, please contact Sydnie Kuhre, Mandatory Seminar (ethics), 12 New Lawyer CLE hours and 12 regular hours. Mandatory CLE Administrator, at 297-7035.

Please be advised that attorneys are required to If you need a listing of Utah State Bar courses, maintain their own records as to the number of hours please contact Monica Jergensen, accumulated. Your "Certificate of Compliance" CLE Administrator, at 297-7024. i should list all programs that you have attended that î-l satisfy the CLE requirements, unless you are exempt. In an effort to assist those who fall short of their If you have any questions concerning your hours, requirements, the Utah State Bar will provide its please contact Sydnie Kuhre, MCLE Administrator at annual "LAST MINUTE CLE VIDEO" program on 297-7035. Monday, December 29, 1997. . . November 1997 41 CHILDREN'S SSI PRO BONO PROJECT TRAINING 400 disabled Utah children recently had their supplemental security income (SSI) disability benefits terminated. They need your help to appeal the termination of their benefits. This seminar is designed to prepare advo- cated representing these children in the administrative appeals process which includes how appeals are filed, filing deadlines, and the circumstances under which SSI benefits may be paid for children whose SSI eligibility is redetermined. Attorneys interested in becoming involved, or who are already involved, in the Children's SSI Project are encouraged to attend.

Instructors: Mike Bulson - Utah Legal Services, Inc. Rob Denton - Disability Law Center

DATE: Monday, November 10, 1997 TIME: 8: 15 a.m. - 12:00 p.m. PLACE: Utah Law & Justice Center 645 South 200 East, Salt Lake City, Utah CLE CREDIT: 4 hours NLCLE or CLE, which includes 1 hour in ETHICS COST: FREE for those attorneys willing to accept a Pro Bono case; $40.00 for all others RSVP: Kidly respond by Wednesday, November 10, 1997 to Amy Jacobs, 297-7033, at the Utah State Bar.

Thank You.

Sponsored by: UTAH STATE BAR, UTAH LEGAL SERVICES, INC., DISABILITY LAW CENTER, WOMEN LAWYERS OF UTAH, NEW LAWYER CLE COMMITTEE, NEEDS OF CHILDREN COMMITTEE, & DELIVERY OF LEGAL SERVICES COMMITTEE CLASSIFIED ADS

RATES & DEADLINES compensation includes a generous benefits Disability Law Center, 455 East 400 South package of paid leave (personal leave, vaca- #410, Salt Lake City, Utah 8411 i. Equal Bar Member Rates: I -50 words - $20.00 / tion, holidays), retirement and insurance Opportunity Employer. 51-100 words - $35.00. Confidential box is programs (medical, dental, life). Apply at $10.00 extra. Cancellations must be in writing. the Salt Lake City Department of Human Large Salt Lake City law firm seeks corpo- For information regarding classified advertising, please call (801) 297 -7022. Resource Management, 451 South State rate/ sec uri ties/bu siness trans actions Classifed Advertising Policy: No commer- Street, Suite 115 or FAX resume, including attorney with 3-5 years quality experience cial advertising is allowed in the classified title of desired position, to 801-535-6614. for an associate position. Strong creden- advertising section of the Journal. For display Applications shall be accepted until Decem- tials, writing skills and references required. advertising rates and information, please call ber 1, 1997. EOE Inquiries will be kept confidentiaL. Send (801) 486-9095. It shall be the policy of the resumes to Confidential Box #40, Atten- Utah State Bar that no advertisement should HAWLEY TROXELL ENNIS & HAW- tion: Maud Thurman, Utah State Bar, 645 indicate any preference, limitation, specification LEY LLP seeks two attorneys for its Boise, South 200 East, Salt Lake City, Utah 84111. or discrimination based on color, handicap, reli- Idaho office. Real Estate Associate - must gion, sex, national origin or age. have 2-5 years transaction real estate experi- WINDER & HASLAM, P.C. a mid-sized Utah Bar Journal and the Utah State Bar ence. Commercial Litigation Associate - downtown law firm is seeking an associate Association do not assume any responsibility for an ad, including errors or omissions, beyond must have 2-5 years litigation experience. with 2 to 3 years experience. The firm's the cost of the ad itself. Claims for error adjust- Strong academic credentials required. All areas of practice include business transac- ment must be made within a reasonable time replies are confidentiaL. Please send resume tions, litigation, entertainment and sports after the ad is published. to: Hiring Partner P.O. Box 1617, Boise, law. Please send your resume to Suzy M. CAVEAT - The deadline for classified ID 83701. Edwards, Winder & Haslam, P.e., 175 West advertisements is the first day of each month prior 200 South, Suite 4000, Salt Lake City, Utah to the month of publication. (Example: May i ATTORNEY NEEDED IMMEDIATELY. 84101. deadline for June publication). If advertisements Richer, Swan & Overholt, P.e. a six attorney are received later than the first, they wil be law firm, located in the South part of the Large Salt Lake City law firms seeks trust published in the next available issue. In addition, Salt Lake Valley seeks an associate with two and estate/closely-held business planning payment must be received with the advertisement. to four years experience in either the creditors' attorney with 3-5 years quality experience rights (collection), real estate, bankruptcy or ." POSITIONS AVAILABLE for an associate position. Strong creden- litigation areas. Send resume and salary tials, writing skills and references required. Salt Lake City Attorney's Offce. Senior requirement to Tim at 6925 South Union Park Inquiries will be kept confidentiaL. Send City Attorney (Pay Level 613, $4092 - Center, Suite 450, Midvale, Utah 84047. resume to Confidential Box #41, Attention: $6466) or Assistant City Attorney (Pay Maud Thurman, Utah State Bar, 645 South Level 609, $3256 - $5145). Depending on Small medical-related non profit corporation 200 East, Salt Lake City, Utah 84111. Qualifications and Experience. Starting is interested in an attorney with 3 years gen- salary is usually below midpoint of range. eral experience to establish new POSITIONS SOUGHT The Salt Lake City Attorney's Office is v.P./Corporate Counsel position and handle ENTERTAINMENT LAW: Denver-based seeking an attorney to perform the follow- varied legal and managerial matters. Prefer ing duties and responsibilities: (1) attorney licensed in Colorado and Califor- research and litigation background with a nia available for consultant or of-counsel represent the City in Federal and Utah strong work ethic. Ability to analyze prob- State courts on civil matters with emphasis services. All aspects of entertainment law, lems, make decisions and act. Involves some including contracts, copyright and trade- on matters involving the City's Airport; travel and capability to understand financial and (2) prepare and review complex con- mark law. Call Ira e. Selkowitz (g (800) reports. Computer literate with Microsoft 550-0058. struction contracts and other agreements Office software familiarity. No Law with emphasis on matters related to the Review/Coif/or high academic applicants CIty's Airport. Senior City Attorney level ATTORNEY: Former Assistant Bar Coun- please. All inquiries kept confidentiaL. Send seL. Experienced in attorney discipline requires a JD or LL.B. degree and six years resume and cover letter stating minimum full-time paid employment in the practice matters. Familiar with the disciplinary pro- salary expectations to MHS; P.O. Box 1054; ceedings of the Utah State Bar. Reasonable of law including litigation experience. The Layton, Utah 84041-1054. Assistant City Attorney level requires a JD rates. Call Nayer H. Honarvar, 39 or LL.B. degree and four years of full-time Exchange Place, Suite #100, Salt Lake Civil Rights Attorney: Public interest law City, UT 8411 i. Call (801) 583-0206 or paid employment in the practice of law firm seeks experienced litigation attorney including litigation experience. The attor- (801) 534-0909. with a commitment to the rights of citizens ney must be a member in good standing with disabilities. Persons of color, women with the Utah State Bar. Preference wil be CALIFORNIA LAWYER... also admit- and persons with disabilities encouraged to given to candidates who have construction ted in Utah! I will make appearances apply. Submit resume and letter of applica- litigation and contract experience. Total anywhere in California, research and report tion to Ronald J. Gardner, Legal Director,

November 1997 43 on California law; and in general, help in work. Excellent research and writing skils tionist, fax, copier and telephone. Centrally any other way I can. $75 per hour + travel combined with very reasonable rates. located in Ogden. Excellent space for DUI expenses. Contact John Palley (l (916) She1eigh A. Chalkley (l (801) 532-7282. attorney or attorney looking to get on own.

455-6785 or john (l palley.com. Contact Paul D. Greiner (l (801) 627-1455. OFFICE SPACE / SHARING Experienced litigator seeking contract Deluxe office space for two or three attor- Deluxe office space for two attorneys, work. Areas of practice: civil, tax ERISA, neys. Avoid the downtown/freeway 7321 South State, Midvale, Utah. Avoid bankruptcy (including Chapter 11), crimi- congestion. 7821 South 700 East, Sandy. freeway congestion. Conference room, nal, domestic relations, worker's compo I Includes three spacious offces, large recep- reception area, two secretarial spaces, wet have gone to trial 32 times, and have liti- tion area, conference room, space for library, bar, and refrigerator. Large parking lot, gated 1 case through the American file storage, wet bar and refrigerator, conve- copy machine, fax, etc. (801) 562-5050. Arbitration Assocîation. Call Ted Wecke1 nient parking adjacent to building. Call Historic building on Exchange Place, leas- (l: (801)699-2005. (801) 272-1013. ing 1600 Square foot office space with five MD and DC attorney seeking to relocate to Deluxe office space for one attorney. Avoid individuals offices, reception/secretarial a smaller community. Experienced in fam- the rush hour traffc. Share with three other area, storage room and separate outside ily law and related areas; taxes; real estate; attorney's. Facî1ities include large private entrance. Located half block from new probate; military; education and govern- offce, large reception area, parking immedi- courts complex and Federal Court. Great ment. John V. Kavanagh - TelIFax - (301) ately adjacent to building, lited librar, fax, for small firm requiring court access. 4 to 5 652-8629. copier, telephone system, & kitchen facilities. Parking stalls. Available Dec. 1st, $1600 4212 Highland Drive. Call (801) 272-1013. monthly. Contact Joanne Brooks (l (801) CONTRACT WORK. Uncertain about 534-0909. the appellate process? Need assistance with Offce space available for attorney. Secretar- a complex or lengthy motion? Attorney with ial space available. Space includes office Downtown - Kearns Building. Offce for extensive experience clerking for the Utah (l0' x 13 '), shared reception area and one attorney. Four attorneys presently in Court of Appeals and the Utah Federal Dis- kitchen. Possible sharing of secretary, recep- suite. Beautiful furnished conference room, trict Court seeks contract appellate/motion reception area. Fax, printer, copier, te1e-

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44 Vol. IONo. 9 i

phones, postage meter, computer network (801) 281-9723, pager (801) 460-9500. SKIP TRACING/LOCATOR: Need to provided. Library: Westlaw, Utah Reporter, find someone? Wil find the person or no Federal Reporter, USCA/Regs. Pleasant, SEXUAL ABUSEIDEFENSE: Children's charge I no minimum fee for basic professional atmosphere. Parking next to Statements are often manipulated, fabri- search. 87% success rate. Nationwide building. Call (801) 364-5600. cated, or poorly investigated. Objective ConfidentiaL. Other attorney needed criteria can identify valid testimony. Com- Searches / records / reports in many areas Solo practitioner in Kearns Building has monly, allegations lack validity and place from our extensive data bases. Tell us what available offce for another attorney who is serious doubt on children's statements as you need. Verify USA Call toll free (888) wiling to share secretarial services. Office evidence. Current research supports STATE- 2-verify. suite includes rec'eption area, conference MENT ANALYSIS, specific juror selection room and equipment room with fax and instructions. B. Giffen, M.Sc. Evidence TOXICOLOGY AND CHEMISTRY: and copier. Reasonable rent of $500 Specialist American College Forensic Exam- Technical, education, and expert witness plus expenses. Call Mike Jensen (i (801) iners. (801) 485-4011. services for legal alcohol (DUI), ilicit 266-2009. drugs, priority pollutants, and chemical LUMP SUMS CASH PAID For Remain- products. Court-tested expertise in metabo- SERVICES ing Payments on Seller-Financed Real lism, biological effects and forensic UTAH VALLEY LEGAL ASSISTANT Estate Contracts, Notes & Deeds of Trust, analyses (e.g., breathalyzers, gas chro- JOB BANK: Resumes of legal assistants Notes & Mortgages, Business Notes, Insur- matoghraps, and mass spectrometers). for full, part-time, or intern work from our ance Settlements, Lottery Winnings. Contact: Joseph Stewart, Consulting Toxi- graduating classes are available upon CASCADE FUNDING, INC. 1(800) cologist/Chemist, Regional Toxicology and request. Contact: Mikki 0' connor, UVSC 476-9644. Chemistry Services, Tel/Fax: (406) 443- Legal Studies Department, 800 West 1200 4546, e-mail: rtacs(imt.net South, Orem, UT 84058 or call (801) 222- APPRAISALS: CERTIFIED PERSONAL 8850. Fax (801) 764-7327. PROPERTY APPRAISALS/COURT REC- SHOOTING SPORTS LAWYERS! Join OGNIZED - Estate Work, Divorce, us for networking, shared interests in pro- Help Clients Raise Cash on secured pay- Antiques, Insurance, Fine Furniture, Bank- gun, hunting, and other shooting issues and ment streams: Real Estate Notes, Business ruptcy, Expert Witness, National Instructor recreation opportunities. Send name, Notes, Structured Settlements, Annuities, for the Certified Appraisers Guild of Amer- address, phone/fax number and interests to: etc. Purchase can be all payments, splits, ica. Twenty years experience. Immediate Utah Lawyers for Shooting Sports Associa- partial, Multi-stage. Call about advances service available, Robert Olson C.A.G.A. tion, PO. Box 112382, Salt Lake City, UT on Estates in Probate. Abram Miller, Ph.D., (801) 580-0418. 84147.

Rocky Mountain Mineral Law Foundation Special Institute on Public Land Law co-sponsored with the Public Land and Land Use Commttee Section of Natural Resources, Energy, and Environmental Law, American Bar Association Denver, Colorado · November 13-14,1997

The Rocky Mountai Mieral Law Foundation is presenting a two-day gram is a panel discussion among speakers with diverse interest addressing Special Institute on Public Land Law at the Hyatt Regency Hotel in downtown "hot" issues arsing on the public lands. The facilty for ths institute in comprised Denver. This institute is presented during the 21st anniversary year of the of experts from diverse backgrounds. The goal of the program is to present a Federal Land Policy and Management Act, and is co-sponsored with the comprehensive, scholarly, and practical overview of the laws governg the use American Bar Association, Section of Natural Resources, Energy, and and management of the public lands and, at the same time, provide regis- Environmental Law - Public Lands and Land Use Committee. trants with a diversity of views as to how the public lands should be managed. This institute is designed to provide a comprehensive overvew of the The institute is directed towards attorneys, landmen, mineral developers, statutory and reguatory framework governing the management and use of oil and gas operators, tiber and real estate interests, recreation users, con- the public lands, which comprise one-third of the nation's lands. This frame- servation and preservation organzations, federal and state agencies, and work includes constitutional underpinnings, organic statutes for federal land other groups interested in the management of the public lands. management agencies, and a broad variety of laws and regulatory schemes The registration fee for this program includes an extensive course manu- governing the management and use of public lands, the protection of public al containing scholarly and practical Institute papers, two hosted luncheons, resources, and historic and cultural resource preservation. coffee breaks, and hosted reception. This program starts late on Thursday The program includes papers on the Endangered Species Act, the National morning, alowing registrants to fly into Denver that day and save the cost of Environmental Policy Act, water rights and public lands development, recre- an extra hotel night. ational development issues, management and protection of sacred sites, access Audiotapes and the course manual are available if you are issues, and environmental reguation. Among the many highlghts of the pro- unable to attend.

November 1997 45 DIRECTORY OF BAR COMMISSIONERS AND STAFF BAR COMMISSIONERS *Lee E. Teitelbaum Law & Justice Center Dean, College of Law, University of Utah Lisa Farr Charlotte L. Miler Tel: 581-6571 Law & Justice Center Coordinator President Tel: 297-7030 Tel: 463-5553 UTAH STATE BAR STAFF Tel: 531-9077 . Fax: 531-0660 Consumer Assistance Coordinator James C. Jenkins E-mail: infoêutahbar.org President-Elect Jeannine Timothy Tel: 752-1551 Executive Offces Tel: 297-7056 Charles R. Brown John C. Baldwin Receptionist Tel: 532-3000 Executive Director Tel: 297-7028 Summer Shumway (a.m.) Scott Daniels Kim L. Wiliams (p.m.) Tel: 359-5400 Richard M. Dibblee Tel: 531-9077 Assistant Executive Director Denise A. Dragoo Tel: 297-7029 Other Telephone Numbers & Tel: 532-3333 E-mail Addresses Not Listed Above Mary A. Munzert John Florez Executive Secretary Bar Information Line: Public Member Tel: 297-7031 297-7055 Tel: 532-5514 Katherine A. Fox Mandatory CLE Board: Steven M. Kaufman General Counsel Sudnie W. Kuhre Tel: 394-5526 Tel: 297-7047 MCLE Administrator 297-7035 Randy S. Kester Access to Justice Program Tel: 489-3294 Member Benefits: Tobin J. Brown 297-7025 Debra J. Moore Access to Justice Coordinator E-mail: benêutahbar.org Tel: 366-0132 & Programs Administrator Tel: 297-7027 Offce of Attorney Discipline David O. Nuffer Tel: 531-9110. Fax: 531-9912 Tel: 674-0400 Pro Bono Project E-mail: oadêutahbar.org Ray O. Westergard Lorrie M. Lima Carol A. Stewart Public Member Tel: 297-7049 Deputy Chief Disciplinary Counsel Tel: 531-6888 Admissions Department Tel: 297-7038 Francis M. Wikstrom Charles A. Gruber Tel: 532-1234 Darla C. Murphy Admissions Administrator Assistant Disciplinary Counsel D. Frank Wilkins Tel: 297-7026 Tel: 297-7040 Tel: 328-2200 Lynette C. Limb David A. Peña Assistant Disciplinary Counsel *Ex Officio Admissions Assistant Tel: 297-7025 Tel: 297-7053 (non-voting commissioner) Bar Programs & Services Kate A. Toomey *Michael L. Mower Assistant Disciplinary Counsel President, Young Lawyers Division Maud C. Thurman Tel: 297-7041 Tel: 379-2505 Bar Programs Coordinator Tel: 297-7022 Melissa Bennett *H. Reese Hansen Receptionist Dean, College of Law, Continuing Legal Tel: 297-7045 Brigham Young University Education Department Tel: 378-4276 Gina Guymon Monica N. Jergensen Secretary to Disciplinary Counsel *Sanda Kirkham CLE Administrator Tel: 297-7054 Legal Assistant Division Representative Tel: 297-7024 Tel: 263-2900 Dana M. Kapinos Amy Jacobs Secretary to Disciplinary Counsel *James B. Lee CLE Assistant Tel: 297-7044 ABA Delegate Tel: 297-7033 Tel: 532-1234 Stacey A. Kartchner Finance Department Secretary to Disciplinary Counsel *Paul T. Moxley J. Arold Birrell Tel: 297-7043 State Bar Delegate to ABA Financial Administrator Tel: 363-7500 Robbin D. Schroeder Tel: 297-7020 Administrative Support Clerk *Christopher D. Nolan Joyce N. Seeley Tel: 531-9110 Minority Bar Association Financial Assistant Tel: 531-4132 Shelly A. Sisam Tel: 297-7021 Paralegal *Carolyn B. McHugh Tel: 297-7037 Women Lawyers Representative Lawyer Referral Services Tel: 532-7840 Diané J. Clark Connie C. Howard LRS Administrator Assistant Paralegal Tel: 531-9075 Tel: 297-7058

46 Vol. lONo. 9 I Get to Know Your Bar Staff

TOBIN J. BROWN which includes wife Michele, 2 sons & 1 Utah. Apparently Ephraim is the epicenter Toby (as he is daughter. His mother is Director of the Bar of the Universe, since, as Maud states, "You known) serves the Foundation. The name plate on her desk can't go anywhere without running into Utah State Bar as reads "Toby's Mother". Among Toby's someone from Ephraim." Maud attended the Access to Justice prized possessions is a solo wood water ski, only available high school (Snow High) and and Programs designed and made by his father. went on to Snow Junior College and Utah Administrator. His Toby was a former Legal Administrator, State University. On her darker side, prior to duties include: Pro and the former CLE Administrator for the working for the Bar, Maud worked at BYU. Bono projects, Bar. He is President of the Board at Legal In her leisure-time, Maud enjoys time Access to Justice initiatives, the Bar's net- Aid Society. When all of this is said and with her fourteen grandchildren, doing work activities, Bar's web page, the Utah done, Toby is the computer expert. His crafts and power-walking. Daredevil that Electronic Law Project, and staff liaison to knowledge is far and wide on this subject she is, Maud recently rode the Piaute trail the Legal Assistant Division. WOW!!! and he is ever ready, wiling and able to on an ATV four-wheeler. She likes reading Toby was born and raised in Salt Lake share his knowledge with others. We all as well, especially biographies. Among her City. He attended Cottonwood Heights salute you Toby in this endeavor. favorite books is Avenue of the Righteous. Elementary School, Butler Jr. High School, Finally, Toby's claim to fame is the fact This book details people who assisted and Brighton High SchooL. He has B.S. that he has never been arrested (or so he says). holocaust victims in their escape from Ger- and M.S. degrees in Economics from the many. Maud enjoys traveling, and seeing University of Utah and be bleeds red. MAUD THURMAN new places and people. She has lived in After hours, you can find Toby water Maud serves the Utah, Denver, Colorado; Phoenix, Arizona; skiing, bare foot water skiing, wake board- Bar as the Bar Pro- Southfield, Michigan; and Albuquerque, ing, and more water skiing. He has been grams Coordinator. In New Mexico. Which is her favorite place? known to put on the dry suit and water ski this position she pro- A toss up, all have great attributes with at Pineview Reservoir in December. For a vides many services super people. change of pace, Toby loves soccer. He plays to Bar members. These Three things Maud is famous for doing: and also coaches soccer, and is a member services include: coor- First, she has been snorkeling in the of a co-ed soccer team. With soccer season dinating publication Caribbean and would go back and do it almost over, you wil find Toby on the slopes, of the Bar Journal, handling fee arbitration again, in a minute. Next, she makes a to- doing snow skiing. He loves mountain bik- requests, coordinating client security fund die-for New York Style Cheesecake. Lastly, ing, camping, and has been known to sky business, scheduling pro bono attorneys for Maud won the "Employee of the Quarter dive. With all if this activity, Toby loves to the Domestic Violence Clinic in Salt Lake, Award" so many times at the Bar, we read and he claims his favorite book is Zen and fielding Speakers Bureau requests. She retired the award and gave it to her perma- and The Art of Motorcycle Maintenance. does all of these things very well. nently. Let's just say Maud is a wonderful Toby keeps busy with family affairs Maud was born and raised in Ephraim, person and a great par of the Bar team!

Invitation for Bids Legal Defender Contract

Uintah County is soliciting bids to pro- abuse, neglect, dependency, and termi- the services. You may submit the bid indi- vide legal defense services in Uintah nation of parental rights. vidually or with other attorneys. County. The position(s) wil commence 4. Legal representation in criminal appeals If you require more information please January 1, 1998, and wil be for one year. for adults and juveniles when Uintah contact JoAnn B. Stringham, at 152 East The services to be provided are as follows: County is obligated to provide such 100 North, Vernal, Utah 84078 or call services. 781-5436. 1. Legal defense representation of all Please submit your bids to Uintah adult defendants who qualify for such It is anticipated that the work load wil County Clerk-Auditor's Office, 152 East services and who are accused of com- require the services of at least three attor- 100 North, Vernal, Utah, 84708 no later mitting crimes in Uintah County. neys: two attorneys to handle the majority than November 15, 1997. Pursuant to the 2. Legal representation of all juveniles of the adult criminal defense work and Uintah County Purchasing Policy, after who qualify for such services and who another attorney to handle the conflict bid opening further discussions may be are accused of violations of the crimi- cases for adult defendants and all of the conducted and revisions of proposals na1law. juvenile cases. allowed. Final award of the contracts shall 3. Legal representation of juveniles and Your bid may be submitted to cover all be made no later than December 15, 1997. their families in proceedings involving of the services required or only a portion of

November 1997 47 Notice to Utah State Bar Members Licensed in Idaho, Oregon & Washington Upon the recommendation of the Utah State Board of Continuing Legal Education, the Utah Supreme Court has approved and adopted the "Boise Protocol". The "Boise Protocol" was prepared by a Regionalization Study Group consisting of members from the states of Idaho, Oregon, Utah and Washington. The Boise Protocol is as follows: A record of the points for establishing an agreement of comity which wil allow individual lawyers licensed to practice in more than one of the participating states to fulfill their mandatory continuing legal education (MCLE) requirements in any participating state by fulfilling the MCLE requirements in the state where they maintain their principal offces for the practice of law, agreed to by participating representatives of the Idaho State Bar, the Oregon State Bar, the Utah State Bar, and the Washington State Bar.

The program was implemented January 1, 1997 Ultimately, the Utah State Board of Continuing Legal Education believes that by approving the "Boise Protocol", and by adopting the comity rule this wil allow lawyers admitted in more than one of the four states to simplify their MCLE compliance, while preserving mutual commitment to a well educated bar membership through the mandatory continuing legal education program. If you would like further information, or have questions regarding the implementation of the program, please contact Sydnie W. Kuhre, MCLE Board Administrator at 297.7035.

Utah State Bar Divorce and Child Custody Litigation Section Mediator Training Sponsored by the Court Annexed ADR Program Presents November 12-14, 1997 An Evening with the Trainers: Diane Hamilton, M.A. Wiliam W. Downes, Jr., J.D. Third District Court Marcella L. Keck, J.D. Location: Law & Justice Center Mark your calendars for Tuesday, 645 South 200 East, Salt Lake City, Utah Dates: November 12-14, 1997,8:00 a.m.-5:00 p.m. daily November 18, 1997 to spend "An Fees: $450.00 ($50.00 discount for registration Evening with the Third District Court" prior to October 15, 1997) to be held from 5:30 p.m. to 8:30 p.m. at Focus of Training: the Utah Law & Justice Center in Salt This training is designed for persons interested in mediating divorce and post-divorce conflcts including parenting, prop- Lake City. This program will be worth erty, and support issues. The focus includes basic aspects of THREE hours of CLE/NLCLE credit Utah law, the psychological factors important to divorce mat- and more details will be available later. ters, and conflct resolution strategies for mediators. The training is structured for participants who have Watch your mail for a more detailed received basic mediator training, but who have not received notice regarding topics and fees. If you specialized divorce and child custody training. have questions, please contact Monica The 24 hour course satisfies the domestic training required for participation on the Court Annexed ADR pro- Jergensen,CLE Administrator, at (801) gram roster for divorce and child custody matters. ..297-7024. For more information contact Tonia Torrence 486-5953

48 Vol. IONo. 9 CERTIFICATE OF COMPLIANCE ForYears 19_and 19_ Utah State Board of Continuing Legal Education Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX (801) 531-0660 Name: Utah State Bar Number:

Address: TeIephone Number:

* * CLEHours Type of Activity

* * CLE Hours Type of Activity

* * CLEHours Type of Activity

IF YOP HAVE MORE PROGRAM ENTRIES, COPY THIS FORM AND ATTACH AN EXTRA PAGE **EXPLANATION OF TYPE OF ACTIVITY

A. AudiolVideo Tapes. No more than one haIf of the credit hour requirement may be obtained through study with audio and video tapes. See Regulation 4(d)-101(a).

B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a Board approved article pubIished in a legaI periodicaL. An application for accreditation of the article must be submitted at least sixty days prior to reporting the activity for credit. No more than one-haIf of the credit hour requirement may be obtained through the writing and publication of an article or articles. See Regulation 4(d)-101(b).

C. Lecturing. Lecturers in an accredited continuing legaI education program and part-time teach- ers who are practitioners in an ABA approved Iaw schoQI may receive three hours of credit for each hour spent in Iecturing or teaching. No more than one-half of the credit hour requirement may be obtained through Iecturing and part-time teaching. No Iecturing or teaching credit is avaiIable for participation in a paneI discussion. See Regulation 4( d)-l0 1 (c).

D. CLE Program. There is no restriction on the percentage of the credit hour requirement which may be obtained through attendance at an accredited legal education program. However, a minimum of one-third of the credit hour requirement must be obtained through attendance at live continuing legal education programs.

THE ABOVE is ONLY A SUMMARY. FORA FULL EXPLANATION SEE REGULATION 4(d)-101 OF THE RULES GOVERNING MANDATORY CONTINUING LEGAL EDUCATION FOR THE STATE OF UTAH.

Regulation 5-102 - In accordance with RuIe 8, each attorney shall pay a fiing fee of $5.00 at the time of filing the statement of compIiance. Any attorney who fails to fiIe the statement or pay the fee by r December 31 of the year in which the reports are due shall be assessed a $50.00 late fee.

I hereby certify that the information contained herein is complete and accurate. I 11i

further certify that I am familiar with the Rules and Regulations governing Mandatory II Continuing Legal Education for the State of Utah including Regulations 5-103(1). t

DATE: SIGNATURE:

Regulation 5-103(1) - Each attorney shall keep and maintain proof to substantiate the claims made on any statement of compliance filed with the board. The proof may contain, but is not limited to, certificates of completion or attendance from sponsors, certificates from course Ieaders or materiaIs claimed to provide credit. This proof shall be retained by the attorney for a period of four years from the end of the period of which the statement of compliance is fied, and shall be submitted to the board upon written request. l

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