UTAH BAR JOURNAL Ll Vol

-1 r i l~ q UTAH BAR JOURNAL ll Vol. 5 No.1 January 1992

f~ 9

r ~

II II

!J a

~ ii

U m .. ii a il

n Ull

,l , ,i il ~ ~ ~~ i i Compliance with the "Lobbyist Disclosure and ~ Regulations Act" 10 I l Judicial Profiles 13 ¡ State Trial Court Consolidation 16

~ Ii Twenty Tips for Successful Courtroom Advocacy 23

~ II

,~ n '~ .. .,. IM"'~____ -- _m_ _ ----J .0 do you call when you need confidential. i d ? files capie ....

SPECIALIZING in overnight $ alphUgraphiGIl confidential litigation copying. Legal Reproduction Division We know your business and return onlyexad duplicate copies. Available 24 Hrs a day! Staple for staple, fie by fie.

For fast, FREE Pick-up and Delivery call our Specialized Legal Reproduction Centers directly at . . .

122 South Main Street For more Information Call 364-8451 '"

UTAH BAR JOURNAL -

Vol. 5 NO.1 January 1992

President's Message by James Z. Davis ...... 4

Commissioner's Report by Craig M. Snyder ...... 6

Compliance with the "Lobbyist Disclosure and Regulations Act" by Gary R. Thorup...... 10

Judicial Profiles Judge Robert T. Braithwaite by Elizabeth Dolan Winter ...... 13 Judge George E. Ballf by Terry Welch ...... 14

Court Consolidation in Perspective by Harold Christensen ...... 16

State Trial Court Reorganization: What's Happening in the Third District by James B. Lee and Judge Michael R. Murphy...... 18

State Bar News ...... 20

Views from the Bench: "Twenty Tips for Successful Courtroom Advocacy" by Judge Michael L. Hutchings ...... 23

The Barrster ...... 25

Utah Bar Foundation ...... 28

CLE Calendar ...... 32

Classified Ads ...... 34

COVER: Horse in Winter Setting, Alpine, Utah, by A. Dennis Norton, Shareholder in Snow, Christensen & Martineau. . Members of the Utah Bar who are interested in having their photographs on the cover of the Utah Bar Journal should contact Randall L. Romrell. Associate General Counsel, Huntsman Chemical Corporation, 2000 Eagle Gate Tower, Salt Lake City, UT 841 i i, 532-5200. Send both the transparency and a print of each photograph you want to be considered. Artists who are interested in doing ilustrations are also invited to make themselves known. The Utah Bar Joiirnal is published monthly, except July and August, by the Utah State Bar. One copy of each issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single copies, $2.50; second-class postage paid at Salt Lake City, Utah. For information on advertising rates and space reservation, call or write Utah State Bar offices.

Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publication of advertisements is not to be considered an endorsement of the product or service advertised.

January 1992 3 ""

What is ADR

By James Z. Davis

Judge Jenkins also observed that in the has not been utilized as of this writing, but Uniessreduce you havestress beenby seeking attempting your inner to District of Utah only 3 percent or 4 per- it nonetheless serves as an indication of self at the top of a peak in Nepal, you are cent of civil cases actually go to trial and the legislature's attitude toward ADR. Of probably aware that the letters ADR stand that the entire cost of the federal court sys- course, while the civil justice system is for Alternative Dispute Resolution. tem is less than one tenth of 1 percent of funded primarily by tax dollars,other Unfortunately, the word "alternative" the federal budget. methods of dispute resolution are funded in Alternative Dispute Resolution has Over the past several years, however, by the parties to the dispute. come to mean an alternative to the resolu- it has been a generally accepted premise Notwithstanding the foregoing, in that tion of disputes by the civil justice system that the civil justice system is not doing its same edition of the Utah Trial Journal, administered by local, state and federal the editors asked the' following people job, and other methods of dispute resolu- Iii courts in one permutation or another since tion such as mediation, conciliation, and whether the right to a trial by jury was "as ~ the advent of common law as we know it. arbitration are necessary, more cost effec- important today as it was in 1791 when l In the fall 1991 edition of the Utah tive and less time consuming than utiliza- the Bil óf Rights was finally ratified by Trial Journal published by the Utah Trial tion of the courts. Indeed, the growth of the state of Virginia? Or have times so Lawyers Association, substantial portions "non-judicial" ADR and the desire to pro- changed that the right to a trial by jury of Judge Bruce S. Jenkins' September 26, vide ADR service and facilities were ma- should be abolished and a more effcient l' 1991 address at the Aldon 1. Anderson jor objectives in obtaining funding for and form of dispute resolution mandated in its American Inn of Court were printed. construction of the Law and Justice Cen- place?" The respondents were Gordon R. According to Judge Jenkins, our civil ter; and the Utah State Bar has not Hall, Dennis L. Draney, Momoe G. justice system, aided by the significant ef- waivered in its commitment to the notion McKay, Norman Bangerter, Don V. 1 forts of the majority of lawyers who prac- that all of our citizens should have access Tibbs, Dee Benson, James Z. Davis, tice preventative law, is alternative dispute to a methodology of effective dispute res- David K. Winder, Eleanor VanSciver, resolution. olution. Every year, more and more con- Scott Daniels, Wayne McCormick, i' tracts provide for arbitration of disputes Michael L. Hutchings, Boyd Bunnell, H. "The alternative provided by the thereunder and limit access to the courts Reese Hansen, J. Thomas Greene, I: courts is an alternative to bloodshed. for that purpose. In 1985, Utah adopted Michael D. Zimmerman, Culln Y. Chrs- B; Court resolution has had a novel, suc- the "Utah Arbitration Act" (78-31a-1 et tensen, David Sam and Richard C. Howe. cessful and largely untold history, and seq. Utah Code Ann.); and in 1991, Utah With the exception of Judge Bunnell and even now it has not just a promising adopted an act entitled "Alternative Dis- Dean Hansen, all of the respondents favor but also an essential future. Imagine pute Resolution" (78-31b-1 et seq., Utah the right to a trial by jury. Since submis- this country without easily accessible Code Ann.) giving the courts power to re- sion of a dispute to arbitration outside the courts, and self help becomes a horri- fer a pending dispute for resolution by an civil justice system constitutes a de facto ble and horrifying alternative." ADR provider and granting immunity to waiver of the right to a jury trial, it ap- the provider. I understand 78-31 b-1 et seq. pears to me that we are, perhaps, some-

Vol. 5 No.1 what schizophrenic about our views of the bar relative to the appropriate involve- tem as one of the alternatives? these issues. ment of its members. Wisely, Din Whit- 3. Should the civil justice courts have A survey conducted by a subcommit- ney has appointed a subcommittee chaired the authority to send pending matters to tee of the Civil Justice Reform Act Advi- by Marcella Keck to survey the availabil- another forum? sory Committee of the United States Dis- ity of ADR services in the state of Utah, 4. Do litigants who utilize the services trict Court for the District of Utah reveals identify providers, identify users, deter- of counsel in dispute resolution proceed- some interesting information, however. mine costs and identify funding sources. ings outside the civil justice system save Although far from "scientific," the survey As of this writing, it is anticipated that the time or money? attempted to determine the general satis- subcommittee wil complete its work by 5. To what extent is free access to the faction levels of lawyers and litigants us- January 31, 1992. In the meantime, I civil justice system the "right" of a citi- ing the United States District Court for the zen? District of Utah. The results of the survey 6. What level of resources are being suggested that pre-trial discovery had little . . . it has been a generally expended on dispute resolution outside the impact on the cost of litigation, and in accepted premise that the civil civil justice system? many cases was barely utilized. The sur- justice system is not doing its job. . 7. Do alternatives to the civil justice vey also revealed that, by and large, both system provide the same level of funda- the litigants and their attorneys were satis- mental due process as does the civil justice fied with the "services" provided by the would urge all lawyers who have an inter- system? District Court. As one might imagine, the est in or information about ADR to com- 8. Who are the primary beneficiaries major cost of litigation was attorney's municate directly with Din Whitney or of dispute resolution outside the civil jus- fees-presumably a factor in other types Marcie Keck. tice system? of dispute resolution where representation Hopefully, through the efforts of Din's 9, Are those who agree to submit dis- by counsel is desired. committee together with those of other putes to resolution outside the civil justice Many of you are aware that the Bar groups, organizations and bar members, system aware that they are thereby waiv- has a very active ADR committee ably we wil be able to develop a better grasp ing their right to a jury? chaired by Hardin A. Whitney Jr. That of "What is ADR?" For example: 10. Wil the Third Branch of Govern- committee is charged with the responsibil- 1. Should ADR, by definition, mean ment eventually lose its effectiveness as a ity of coordinating the involvement of an alternate to the civil justice system? stabilizing and moderating influence on lawyers in alternative forms of dispute res- 2. Should the definition of ADR be executive and legislative power if its role olution and making recommendations to expanded to include the civil justice sys- in dispute resolution is diminished?

The firm of Jackson, Hamilton, Lincoln, and Washington has a health plan worth a million bucks.

For about thirty-six dollars a month,* you can enroll in the Bar's Medical Plan and get a lifetime of health coverage worth up to one milion dollars. That's about the ~)~i\IZEO"Cb lowest group rate you'll find anywhere. For the best coverage you can get anywhere - from Blue Cross and .& , Blue Cross Blue Shield. Learn about how much you can save. Call Richard D. West at 481-6788. V . ~~; Shield .. Applies to individual policyholder under 30 years of age. Other attractive rates are available for all ages. For Fifty Years, Utah's Favorite Color Of Insurance.

January 1992 5 Court Consolidation- A Discussion of Its Implications

By Craig M. Snyder

Anytime legislation is proposed which of single judge courthouses under the then On Januarysignificant 1, 1992, pieces one of legislationof the most in changes institutional governmental struc- existing law which required a courthouse recent memory affecting the court system tures and functions it is always subject to in each city served by the circuit court. and the practice of law wil take effect criticism and opposition to change. The Apparently one prominent member of the here in Utah. Court reorganization legisla- original legislation, in this case House Bil legislature discovered that in his district tion originally passed in the 1991 general 436, was the result of a study directed by within a five-mile radius there were three session of the legislature begins its imple- the legislature. That study reflected the separate new courthouses under construc- ,'I. mentation in the fifth, sixth, seventh and following concerns: tion at the same time. He quite naturally eighth districts. Some of the enabling leg- 1. A projection which was done by a raised questions concerning the fiscal islation dealing with the mechanics of im- legislative analyst that the state of Utah management of the court construction and plementation has already been passed by wil need an additional 26 trial court that concern mushroomed into the impetus the legislature in the October 1991, special judges between 1987 and 1996 at a cost of for the present court consolidation legisla- H' session. A more comprehensive bil deal- approximately $5.5 milion in 1991 dol- tion. ing specifically with the functions and du- lars. If the proliferation of single judge .1 ties of court commissioners has been pre- 2. A concern about the proliferation of courthouses in cities served by the circuit I( pared and wil be presented to the 1992 fees which were being added to fines. courts and the construction of three new general session of the legislature. 3. A concern that the distribution of courthouses within a five-mile radius in At the outset let me indicate that the fines and fees influences decisions on Davis County draws the concern of the opinions expressed in this article concern- whether to establish a circuit court and de- legislature, then the problem is not with ing the court consolidation are my own. cisions about how criminal cases are the court system itself, but rather with the The Board of Bar Commissioners have, at charged by prosecutors. management of the construction of facili- the time of this writing have not yet taken Concerns two and three are only parties. An amendment could have been pro- a position on the legislation pending be- tially addressed by the consolidation of the posed to the existing statute to permit con- fore the 1992 legislature. The Bar Com- court legislation and there is a separate bil solidation of courthouse facilties and their mission did take a position on the 1991 which is stil in the process of being use by different courts. Furthermore, the general session legislation and did express drafted which wil purport to address other 1992 Utah State Court's Report to the Leg- an informal opinion with regard to the leg- issues relating to court fees. islature prepared by the Court Administra- islation that was presented to the 1991 The major issue reflected in the legis- tor's Office indicates that Utah is already special session. lative study has very little to do with is- well ahead of most of the rest of the coun- Court consolidation is not a new idea, sues one, two and three. The real focus of try in its civil and felony case processing nor is it one without some controversy. the legislature's study was the proliferation times. An argument can be made that "the

6 Vol. 5 No.1 proposed cure is not directed to the dis- fairs Committee prior to being asked to one and the provisions of the proposed bil ease." give its stamp of approval to the legisla- are constantly changing even as I write Nonetheless, at the direction of the tion. Accordingly the Bar Commission de- this article. legislature the State Court Administrator's clined to give its approval to the legisla- The original legislation passed in the Office and the Judicial Council prepared tion as it applied to the functions and du- 1991 general session of the legislature the reorganization legislation which. was ties of court commissioners although it did (HB436) provides, among other things, the adopted by the 1991 general session of the not object to other portions of the imple- following: legislature. Originally it was proposed to menting legislation relating to retirement 1. It consolidates all of the district and include the juvenile courts in the court re- and other mechanical provisions. circuit courts no sooner than January 1, organization. But for reasons which are Thereafter, I was appointed by Chief 1996, and no later than July 1, 1998. somewhat vague the juvenile courts opted Justice Gordon R. Hall to serve on an Ad 2. It consolidates the district and cir- not to be included in the consolidation leg- Hoc Legislation Committee. The purpose cuit courts in districts five, six, seven and islation and the proposal that was ulti- of this committee was to refine the draft eight beginning January 1, 1992. mately passed by the 1991 legislature in- legislation for the 1992 general session of 3. It permits the Judicial Council to cluded the consolidation of only the circuit the legislature. The initial piece of legisla- designate one city as a court location and courts into the district courts. The legislation that we have dealt with deals with the requires at least one court site in each tion was to be phased in gradually with an title, authority and review of court com- county. effective date of January 1, 1992, in the 4. It requires the Judicial Council to rural districts (fifth, sixth, seventh and recommend allocations of judicial vacan- eighth) and a more gradual phase-in for cies and allows the Judicial Council to de- the urban districts (first, second, third and termine whether district and circuit court fourth) based upon an implied review of vacancies should be filed by the appoint- how the system was working in the rural The real focus of the ment of another judge, reallocated to an- districts. The urban district courts were to other court in the same geographic divi- come on line on a gradual basis between legislature's study was the sion, reallocated to another geographic di- 1996 and 1998 subject to the review. proliferation of single judge vision of the same court, replaced with a The initial legislation, House Bil 436, court commissioner or be eliminated com- was presented to the Board of Bar Com- courthouses under the then pletely. missioners by the Judicial Council and the existing law which required 5. It establishes a temporary retirement Court Administrators Offce prior to being option providing a window which encour- passed by the legislature. The Bar Com- a courthouse in each city ages sitting judges with a certain number mission directed its Legislative Affairs served by the circuit court. of years of service to take an early retire- Committee to submit a report on the pro- ment between October and December posed legislation and after receiving that 1992. report gave its approval to HB436. 6. It raises certain civil jurisdictional On October 18, 1991, I first became limits in the circuit courts. aware that the State Court Administrator's 7. It permits the cities to establish local Office and the Judicial Council intended responsibility for justice courts or to con- to present additional legislation regarding missioners. The Ad Hoc Committee was tinue to use the circuit courts. the implementation of the Court Reorgani- initially comprised of six sitting judges, 8. It grants a City Attorney authority to zation Bil to the October 28, 1991, special one sitting court commissioner, one court prosecute state misdemeanors. session of the legislature. Most individuals executive (administrator), one city attor- 9. It provides certain reallocations of with whom I discussed the matter were ney, one member of the Salt Lake County existing fines and eliminates most of the unaware that the October 1991 special ses- Legal Defender's Association, one mem- existing fees. sion was dealing with anything other than ber of the Bar's Legislative Affair's Com- 10. It permits electronic recording as a redistricting and reapportionment. The mittee, who also practices privately, and substitute for court reporting in the district proposed legislation dealt with several me- myself. After two meetings of our Ad Hoc court. The Court Reorganization Bil chanical provisions including judicial re- Committee two other privately practicing (HB436) also contemplates the gradual tirement and other factors, but also con- attorneys were added to the Ad Hoc Com- phasing out of individual court reporters. tained some broad provisions with regard mittee at the request of the Utah State Bar No new court reporters wil be hired for to the scope and authority of court com- president, James Z. Davis. existing district court judges and the cir- missioners. This proposed legislation was This committee has now completed its cuit court judges that are elevated to a dis- presented to the Bar Commission just four review of the proposed legislation and has trict court judge position wil have all of days prior to the start of the special ses- made several recommendations to the their reporting done by electronic equip- sion. The Bar Commission expressed its State Court Administrator's Office and the ment. The existing court reporters wil be concerns that the provisions dealing with Judicial Cõuncil regarding the scope, au- able to maintain their positions until all are court commissioners as then drafted could thority, duties and review of the court eliminated by a process of retirement or actually conflct with provisions of other commissioners. The Judicial Council and natural attrition. In any event it wil be statutes applicable to the Justices of the the State Court Administrator's Office wil necessar to upgrade and update the exist- Peace, who had some of the same duties. review those recommendations and pre- ing electronic equipment from the circuit The Bar Commission also expressed its pare a final draft of the legislation to be courts and to buy additional electronic concem that it had had no opportunity for presented to the 1992 general session of equipment for all of the other court rooms. any input or review by its Legislative Af- the legislature. That process is an ongoing Existing electronic equipment in most of

7 January 1992 the courts is as much as 10 years behind They will have authority in civil mat- ferred to wil be meeting in February 1992 state of the art. ters to hear all cases up to a jurisdictional to recommend certain rules that may or II. It grants to the court commission- limit of $10,000. In addition they wil be may not be implemented by the Judicial ers the authority of a magistrate and pur- able to hear all forcible entry and unlawful CounciL. The Judicial Council may reject ports to define their authority including detainer cases and wil also be granted or adopt any or all of those recommenda- the following: authority to hear matters involving cer- tions. There are certain other things that A. Court commissioners may accept tain planning and zoning ordinances for are clear about the role of court commis- pleas of guilty or no contest, impose sen- municipalities. sioners. tence and enter final judgment in misde- They wil continue to retain their Each court commissioner is an em- meanor cases. present jurisdiction and responsibilities in ployee at the wil of the Judicial Council B. Court commissioners may conduct divorce, child custody, domestic relations, and the presiding judge of the district jury or non-jury misdemeanor trials in ac- and sanity matters. They wil also be cordance with the law provided that the where he/she is primarily employed. None granted other authority which is unspeci- of the court commissioners wil be subject defendant gives his informed consent. fied, but which wil be granted to them by to the present judicial nominating process Upon any conviction a court commis- rule of the Judicial CounciL. This could in- sioner may impose sentence and enter fi- which consists of all applicants being include the authority to serve as a special terviewed by the existing judicial nominat- nal judgment. The judgment entered by a master or mediator or to handle matters in court commissioner wil be the final judg- ing commissions with three names being arbitration. The exact scope and nature of recommended to the governor for his ap- ment for all purposes including appeaL. C. Court commissioners shall continue pointment, subject to the advice and con- to do those things which they are already sent of the Utah State Senate and to the allowed to do particularly in the domestic periodic review and approval of the elec- relations and sanity area by'ruie of the Ju- torate. District court judges wil interview dicial CounciL. and select the top three candidates from ,the applicants for each court commissioner D. In addition, court commissioners There are many general shall have the authority to set bail, issue position. The top three candidates names warrants of search and arrest, conduct ini- housekeeping provisions wil be given to the Judicial Council who wil hire the court commissioner from the tial felony appearances, conduct arraign- which change terminology ments, conduct preliminary hearings to de- three names submitted. There wil appar- termine probable cause and issue other and eliminate confusing ently be no input from members of the Bar or from the public. temporary orders as provided by rule of provisions defining the the Judicial CounciL. It remains somewhat uncertain as to The present legislation which wil be authority of justices of the what salaries are going to be given to the presented to the 1992, general session of court commissioners and whether their the legislature deals primarily with the du- peace who are referred to salaries wil be tied on a percentage basis ties, functions and authority of court com- in statutory language as to the district court judges. The court còm- missioners. There are many general house- missioners wil not participate in the State keeping provisions which change termi- magistrates. retirement in the same manner that the ju- nology and eliminate confusing provisions diciary presently participates. However, some of the sitting court commissioners defining the authority of justices of the peace who are referred to in statutory lan- believe that they should receive retirement guage as magistrates. The substantive pro- and other benefits on a basis similar to that visions regarding the court commissioner's which is available to judges. One of the questions that I raised dur- authority are similar to those which were additional duties which wil be granted un- enacted in House Bil 436, but expand ing our meetings is whether we wil attract der the authority of the Judicial Council quality applicants to the court commis- even further the court commissioner's ju- has yet to be fully defined. risdiction. sioner positions, particularly if commis- As I reviewed both the existing and the sioners serve at the wil of the Judicial The present proposed legislation í proposed legislation it occurred to me that Council and the presiding judge and par- which is subject to the continuing modifi- T the term "consolidation of the courts" or ticularly if their salary is less than that cation and review of the Judicial Council "court reorganization" is really something and the Court Administrator's Office pur- which is paid to the existing court com- of a misnomer. What the legislation, in- missioners. Furthermore, while our exist- ports to grant court commissioners the cluding House Bil 436, actually does is to same general authority as that which is ing court commissioners are generally replace the circuit court and elevate those highly qualified professionals, many have granted to justices of the peace in criminal circuit court judges to the status of district matters. In other words, court commis- chosen that position because of their inter- court judges, It then creates a tier of court est in divorce, child custody and domestic sioners wil be able to try all Class Band commissioners who essentially have the C misdemeanor cases and infractions relations. Many have not previously ex- same authority as the eliminated circuit pressed any overwhelming desire to par- whether to a jury or not to a jury with or court judges and in fact wil have addi- without the consent of the parties. They ticipate in matters dealing with other civil tional authority in some areas. cases and misdemeanor criminal offenses. also wil have authority to hear and con- These commissioners are subject to a duct trials in Class A misdemeanors with It remains to be seen whether the appli- variety of rules, many of which are stil in cants that may apply for the new court or without a jury subject to the consent of the process of being formulated. The Ad the defendant. commissioner positions may either be very Hoc Committee that I have previously re- new and inexperienced lawyers or may be

8 Vol. 5 No.1 practitioners who have had diffculty in consolidation it could most effectively be CORPORATION KITS maintaining the practical economics of a accomplished by the adoption of a system FOR private law practice. similar to that which is presently in effect The qualifications and background of in the state of Minnesota. Under such a UTAH court commissioners should also be men- proposal we could achieve tre court reor- tioned. Certainly all court commissioners ganization on the following basis: COMPLETE OUTFIT wil be required to be members of the Utah 1. The distrct, circuit and juvenile State Bar but other qualifications seem to courts should be consolidated into one distrct court. All judges would have the title $49.95 be less strctured. It is my understanding, PRE-PRINTED BY-LAWS & MINUTES for example, that the present par-time of distrct court judge. Neither the juvenile courts nor any other court should have the STOCK CERTIFICATES, PRINTED court commissioner in the Fifth District is CORPORATE SEAL WITH POUCH actually a resident of Mesquite, Nevada choice of whether to opt in or out of the BINDER W/SLIP CASE & INDEX TABS and is not even required to maintain a Utah system. There should be three branches of SS-4 FORM FOR EIN residence. each distrct court: criminal, civil and do- S CORPORATION FORMS (2553) mestic, which would include divorce, child I have expressed my concern that al- $ 3.00 ADDITONAL FOR SHIPPING & HANDLING custody, adoption, and juvenile court mat- (UPS GROUND). NEX DAY DELIVERY AVAILABLE though court commissioners are all subject ON REQUEST AT SLIGHTLY HIGHER CHARGE. to the same rules that are promulgated by ters. Complete kit wlo pre-printed the Judicial Council those rules have a way 2. Each district court judge would sit primarily in one division of the court; crim- By-Laws & Minutes, includes of being applied in different fashions by 50 shts. blank bond paper: individual districts. Undoubtedly, some inal, civil or domestic for a period of two $46.95 plus $3.00 S & H court commissioners wil be assigned dif- years. Each judge would rotate into and ferent duties in some distrcts than they then out of these divisions of the court ev- wil be assigned in others. Such a practice, ery two years. in my opinion, is not conducive to provid- 3. All minor misdemeanor charges ing uniformity or clarty in the practice of should be decriminalized. These should in- law. The manner in which an individual clude all traffic offenses except for reckless distrct uses its court commissioners can driving, drunk driving and fleeing or elud- create certain problems with the length of ing. Most minor misdemeanor violations of time required to obtain the delivery of le- city ordinances should similarly be decrimi- gal services and can significantly increase nalized. These would include zoning viola- the cost of litigation to the public. By tions, animal violations and other similar granting the individual distrct courts au- offenses. All of these decriminalized of- thority to decide how they wil use their fenses would be handled by a hearg ex- court commissioners, the Judicial Council aminer or administrative law judge. They WE SERVE ONLY THE may risk further compounding that prob- would conduct trals and have the authority NORTHWEST! lem. to impose appropriate fines. To assist in The issue of the constitutionality of fine collection, jail sentences could be im- ORDER TOLL FREE! legislation delegating to court commis- posed for failure to appear and failure to sioners the authority to hear and dispose of pay fines in a timely fashion. PHONE 1-800-874-6570 cases without the consent of the parties 4. The justice of the peace courts, which should be mentioned. Both separation of are a constitutional court and often a subject FAX 1-800-874-6568 powers and due process arguments need to of criticism would not be consolidated but ORDERS IN BY 3:00 PM MT be considered. The research done by the would have much of their importance re- ARE SHIPPED THE SAME DAY. Court Administrator's Office into that duced by the above provisions. WE WILL BILL YOU WITH YOUR question stil has not provided a satisfac- 5. Existing court commissioners would ORDER. tory answer to these important issues. be given first priority to apply for distrct In summary, consolidation of the court positions that open up as a result of SATISFACTION GUARANTEED! courts is probably an excellent idea. True the retirement window. The govemor could consolidation would also achieve cost sav- be urged to consider appointing qualified BUY TEN (10) KIT-S - GET ONE existing court commissioners to the first FREE! NO TIME LIMIT, NO ings and provide for a more effective util- STRINGS! zation of our court system. It would also available positions. No new magistrates or provide the public with access to a fair and court commissioners would be hired. PLEASE I WE MUST HAVE THE FOllOWING INFORMATION TO PROCESS YOUR ORDER: imparial judiciary as a method of resolv- While this is only a basic outline it would have the affect of achieving true Exact name of the corporation. ing disputes and enforcing the law. The State of incorporation and year, average citizen's day-to-day contact with court consolidation and would eliminate the Number of shares authorized. the court system comes in the misde- fragmentation that exists and which wil Par Value or No Par Value & any meanor and traffic enforcement area and in only be perpetuated by the substitution of preferred shares. the area of domestic relations, primarily court commissioners for circuit court judg- NO EXRA CHARGE FOR SPECIAL CLAUSES divorce and child custody. It is those areas es. It wil also allow us to have an opportu- OR TWO CLASSES OF STOCK that provide the public with its most vivid nity to participate in a selection process that impressions of how our court system continues to ensure that we get competent, CORP-KIT NORTHWEST, INC. works and, indeed, whether or not it is qualified, and dedicated people serving the 413 E. SECOND SOUTH working. If we are to achieve true court public in our judiciary. BRIGHAM CITY, UTAH 84302 9 January 1992 Compliance with the "Lobbyist Disclosure and Regulations Act"

By Gary R. Thorup

I. BACKGROUND III. DESCRIPTION AND The provisions of House Bil No. 94 ANALYSIS (1991), the "Lobbyist Disclosure and Reg- ulations Act" ("Act"), became effective on The main portion of the Act enacts April 29, 1991. Because the upcoming Utah Code Ann. Sections 36-11-101 session of the Utah Legislature commenc- through 36-11-405 concerning "lobbyist" ing in January 1992 wil be the first gen- registration and disclosure. These provi- eral session to which the Act wil apply, it sions can be categorized into four major is appropriate to review the basic provi- discussion areas. sions of the Act and its application to A. Definitions and Registration. The attorney /lobbyists. Act requires al1 "lobbyists" to register with the Lt. Governor before commencing any II. SCOPE OF THE ACT lobbying activities. For purposes of the Proponents of the Act intended to reg- Act, a "lobbyist" is "an individual who is ulate the conduct of "lobbyists" in all their employed by a principal or who contracts dealings with government. To accomplish for economic consideration . . . with a this purpose, they enacted House Bil 94 principal to communicate with public offi- which broadly defines the term "lobbying" cials." The Act also defines a "principal" to include essential1y all communications as a "person who pays or directs an indi- "with a public official for the purchase of vidual to serve as a lobbyist either as an influencing the passage, defeat, amend- GARY R. THORUP received his Juris Doctor employee or as an independent contrac- ment, or postponement of legislative or in 1980 from the University of Utah and later tor." The term "public official" includes executive actions." The term "legislative received his LL.M. (Taxation) from the New legislators, elected members of the execu- York University School of Law. He practices tive branch, and any person appointed to actions" was defined as "(a) bils, resolu- in the Salt Lake office of Holme Roberts & tions, amendments, nominations, and other Owen where he concentrates his practice in or employed by the executive or legisla- matters pending or proposed in . . . the state and local taxation and legislative mat- tive branches who (1) occupies a policy- Legislature or its committees or requested ters. Mr. Thorup previously co-authored an making position, (2) drafts policies, legis- by a legislator; and (b) the action of the article in the Utah Bar Journal concerning lation or rules, or (3) makes adjudicative governor in approving or vetoing legisla- Utah's "Political Action Disclosure Act" of decisions. As a result of the special ses- tion." "Executive actions" were defined as 1988. sion amendments, the Act is only intended (a) nominations and appointments by the to regulate communications with a "public ~ . governor; (b) the proposal, draftng, offcial" concerning "legislative actions," amendment, enactment, or defeat by a however, the Act is not a model of clarity unduly impaired that Gov. Bangerter state agency of any rule made in accor- placed the item on the Legislature's April and an argument can be made that it continues to govern communications concern- dance with Chapter 46a, Title 63, Utah 1992, special session agenda, during Administrative Rulemaking Act; and (c) which the Legislature enacted House Bil ing "legislative actions" with al1 "public any policy, action, or matter pending be- 6 (1991, 1st Spec. Sess.) which delays the officials," not just with legislators and fore any state agency." Application of the effective date of the portions of the Act their appointed staff. Although the Act does contain some Act to "executive actions" caused enough relating to "executive actions" until April concern and uncertainty that the public's 27, 1992, to al10w the legislature further specific exemptions, only one is directly applicable to attorneys. Utah Code Ann. right to interact with government would be time to study its ramifications. Section 36-11-102(7)(b) (ii) provides that io Vol. 5 NO.1 the term "lobbyist" does not include "an Although compliance with the Act's food and lodging if directly related to the attorney representing a client before a registration requirements is relatively sim- official's attendance and participation at a court or quasi-judicial body." Any other ple, attorneys may find compliance con- regularly scheduled meeting, when paid compensated communication between an flicts with their ethical duty to a client. for by the organization sponsoring the attorney and a "public offcial" is presum- Rule 1.6(a), Rules of Professional Con- meeting. ably subject to the Act's "lobbyists" regis- duct, provides that "a lawyer shall not re- The Act requires "expenditures" to be tration and disclosure provisions. Some veal information relating to representation reported as follows. First, "expenditures" exemptions, however, may indirectly ap- of a client . . . unless the client consents of $100 or more expended on "public offi- ply to attorneys. For instance, volunteers after disclosure. " Certin exceptions to cials" in any calendar quarter of the pre- are not compensated for their activities this general rule are set forth in Rule ceding calendar year must be cumulatively and, therefore, are not deemed to be lob- 1.6(b) and in the Comment to Rule 1.6 reported on an annual report. This report is byists. Similarly, persons testifying on which recognizes that, "a lawyer may be due on Januar 10 following the year in their own behalf before a legislative com- obligated or permitted by other provisions which the "expenditure" is made, and must mittee are exempted from registering as of law to give information about a client." be supplemented (1) within ten days after lobbyists. Therefore, an attorney appear- Nevertheless, the Comment concludes the last day of a general session, listing all ing before a legislative committee either that, "whether another provision of law su- "expenditures" incurred from Januar 1 as a volunteer for an organization e.g., the persedes Rule 1.6 is a matter of interpreta- through the last day of the session, (2) Utah State Bar, or on his/her on behalf, tion beyond the scope of these Rules, but a within seven days before a general elec- need not register as a lobbyist unless also presumption should exist against such a tion, listing all "expenditures" from the compensated by a client for such appear- supersession." Should an attorney deter- last day of a general session to five days ance. mine that disclosure conflcts with a cli- before the general election, and (3) seven Attorneys should not only analyze ent's interests, it is unclear whether an at- days after the end of a special or veto whether their activities and relationships torney could refuse to identify a client pur- overrde session, listing all "expenditures" require registration, they should also be suant to Rule 1.6 and stil obtain a lobby made during that session. No report is re- mindful when those with whom they asso- license. In such circumstances, an attorney quired, however, if less than $100 of re- ciate on a particular matter should register. may be caught in a "Catch-22" situation, portable "expenditures" are made during For instace, an attorney may require the forced to weigh the ethical duty to a client each quarer of the preceding calendar technical support of a client's employee or against the civil and criminal penalties im- year. the testimony of an expert witness. To the posed for non-compliance with the Act. Second, in addition to reporting cumu- extent an employee or an expert is com- The number of attorney's caught in this di- lative totals, any "expenditure" of $100 or pensated for communicating with "public lemma may increase if the Legislature al- more for the benefit of any paricular offcials" concerning "legislative actions," lows the provisions applicable to "execu- "public offcial" must be itemized. If such prudence may suggest they register as tive actions," an area which comprises an "expenditure" is made to benefit a "lobbyists. " more traditional aspects of the practice of group of "public officials," such as at a Registration as a lobbyist is a rela- law, to go into effect. caucus lunch, the disclosure need only tively simple exercise accomplished by B. Disclosure of Expenditures. One of provide the date, amount and purpose of paying a $25 registration fee and filng a the proponents' main purposes in propos- the "expenditure." If, however, a single written statement with the Lt. Governor, ing House Bil 94 was to prevent "legisla- "expenditure" of $100 or more is made to setting forth (1) the lobbyists's name and tive actions" from being influenced by benefit a paricular "public offcial," the business address, (2) the name and busi- moneta considerations. The Act accom- disclosure must also itemize the location ness address of the lobbyist's principal, (3) plishes that purpose by requiring "lobby- of the "expenditure" and the identity of the name and address of the person paying ists," "principals," and "government offi- other "public official" benefited. The con- the fiing fee, if paid by someone other cials" to fie periodic reports with the Lt. cept of a single expenditure is not defined than the lobbyist, (4) a list of any elected Governor identifying "expenditures" made in the Act and has been the subject of or appointed positions held by the lobbyist to benefit a "public official" or members much post-enactment discussion. For in- in state or local government, (5) the types of the official's "immediate family" (here- stance, the proponents of House Bil 94 of expenditures for which the lobbyist wil after collectively referred to as a "public would suggest that tickets provided to a be reimbursed, and (6) a certification that official"). The extent to which a report is "public offcial" to attend the ballet, pre- the registration information is tre, accu- required depends entirely upon the amount ceded by dinner, would constitute one sin- rate, and complete. Registration forms are and nature of the "expenditures" made. gle expenditure. On the other hand, critics available at the Lt. Governor's Office. An For purposes of the Act, an "expendi- of the legislation would argue that the din- attorney's client, referred to in the Act as a ture" means "a purchase, payment, distr- ner and the tickets would each be a sepa- "principaL," need not register as a "lobby- bution, loan, gift, advance, deposit, sub- rate "expenditure." This difference of ist," although they may be required to file scription, advance, forbearance,' services, opinion has, at least temporarily, been re- an annual report if they make reportable or goods, unless consideration of equal or solved by Lt. Governor Oveson who has "expenditures" other than through their greater value is received . . . and a con- indicated his office wil not require "lob- "lobbyist." Completion of the registration tract, promise, or agreement, whether or byists" to combine related activities for process entitles a lobbyist to a lobby license not legally enforceable," to provide any of purposes of the itemization requirements which remains valid until December 31 of such items. The following, however, are of the Act. Although the Lt. Governor is the next even-numbered year. Lobbyists li- not considered reportable "expenditures" charged with enforcement of the Act, the censed under prior law need not re-register (1) commercially reasonable loans, (2) Act grants the Lt. Governor no rulemaking until December 31, 1992, but are required campaign contributions, and (3) a "public authority in this area, consequently, "lob- to update their registration statements. official's" reasonable travel expenses for byists" are cautioned that the opinion ex-

January 1992 11 pressed by Lt. Governor Oveson may not ,agreeing to make a "campaign contribu- iv. CONCLUSION. be dispositive. Therefore, prior to making tion" to a legislator or to a legislator's Although it is too early to predict how an "expenditure" that would exceed $100 "personal campaign committee" during the the Act wil affect the legislative process, when combined with a related "expendi- time the Legislature is convened in gener- it wil clearly affect the practice of lobby- ture," an attorney/lobbyist may want to al, veto override, or in any special session ing. The heightened awareness brought carefully consider whether the potential commenced prior to July 1. In addition, about by the debate surrounding House benefit derived from making the "expendi- "lobbyists" are prohibited from entering Bil 94 wil certainly be followed by in- ture" outweighs the potential adverse im- into contingent fee arrangements concern- creased scrutiny of lobbying practices. pact upon the client or the attorney if pub- ing "legislative actions." This provision Consequently, lobbyists should carefully lic disclosure were made of the related originally applied to "executive" as well as review the Act before the commencement "expenditures" or of the fact such "expen- "legislative" actions, however, application of the 1992 general session and comply ditures" were not itemized on an annual of this provision to "executive actions" has with its provisions. In addition, report. Another controversial and ambigu- been delayed until April 27, 1992. Finally, attorney/lobbyists should advise their cli- ous portion of the Act concerns whether a lobbyist may not attempt to influence a ents who may be classified as lobbyists or an "expenditure" is to be reported at its legislator's vote by communicating with principals concerning potential compli- cost or its value. Lt. Governor Oveson has the legislator's employer and is expressly ance traps for the unwary. indicated that his offce wil consider an prohibited from intentionally communicat- Finally, the Act may currently impact "expenditure" in light of its value to the ing false information materially related to an attorney's abilty to practice law or cre- "public offciaL" Under this view, a "lob- ate tension between an attorney's ethical byist" inviting a "public official" to partic- duty to a client and full compliance with ipate as a member of a golf team at a fund- the Act. This impact, however, is de raiser golf tournament would report the minimis in comparison to the impact the regular cost of the green fee, e.g., $30, not Attorneys should not only Act wil have on the practice of adminis- the $1,500 contribution nor some pro-rata analyze whether their trative law if the Legislature allows the share of the contribution. Act to become applicable to "executive ac- Finally, travel "expenditures" incurred activities and relationships tions." Attorneys who practice before state for the benefit of a "public official" must agencies or other public offcials should require registration, they be reported by disclosing (1) the amount consider actively paricipating in the de- expended for each trip taken by any "pub- should also be mindful when bate that wil undoubtedly take place dur- lic official," (2) the destination of the ing the 1992 general session. travel and its purpose, (3) the names of all those with whom they persons taking the trip, (4) the name and associate on a particular address of the organization taking the trip, and (5) an itemization of the amount spent matter should register. on food, lodging, gifts and side trips. In addition to disclosing "expendi- êê tures," lobbyists, principals and government officials are required to (1) list each a matter within a "public official's" re- A Lawyers "public official" they employ including sponsibilty. those engaged as independent contractors, D. Miscellaneous Provisions. The Act Professional (2) list "legislative actions" by number and provides the Lt. Governor certain enforce- i short title for which an "expenditure" to a ment authority, including the imposition Liability program 1,1 "public official" was made, and (3) set of civil and criminal penalties for non- i forth the general interests and nature of the compliance, and specifies reinstatement . . . sponsored by organization represented by the lobbyist, procedures for any "lobbyist" who has a 'i principal, or government offciaL. Annual lobby license suspended or revoked. The the Utah State Bar reporting forms are available at the Lt. penalties provided under the Act include Governor's office. potential conviction of a Class B misde- As previously suggested in connection meanor, suspension of a lobbyist's lobby II with registration requirements, some of license for one to three years and a penalty 1 i the information required on the annual re- ranging from $1,000 to $25,000, depend- I port may place an attorney in conflct with ing upon the nature of the violation. Final- ,7 Rule 1.6(a). Prior to incurrng reportable ly, although the Act is intended to regulate II lobbying practices, the Legislature was "expenditures" or disclosing other client i

information, a prudent attorney may want careful not to intrude upon constitutional I\WNS ßUBPICI I to discuss the Act's disclosure require- rights by providing that the Act "may not HUf\T~ I ments with the client and obtain its con- be construed, interpreted, or enforced so i sent. as to limit, impair, abridge, or destroy any ~ ,.',1 C. Regulation of Lobbyist Conduct. person's right of freedom of expression ~ 'I The Act also proscribes lobbyist activities. and participation in government processes I! For instance, the Act specifically prohibits or freedom of the press." "lobbyists" and their "principals" from 2180 South 1300 East, Suite 500 \ ! making or contracting, promising, or I Salt Lake City, Utah 841061 (801) 488-2550 I iU Vol. 5 No.1 u JUDICIAL PROFILES

Profile of Judge Robert T. Braithwaite By Elizabeth Dolan Winter

BACKGROUND claims and traffc/misdemeanor cases, he Judge Braithwaite was born in New says, parties do not have the resources to York, and grew up in the similarly cosmo- hire attorneys. The effect is that the pro- politan community of Cedar City, Utah. ceedings are "more people-oriented than Braithwaite majored in political science as lawyer-oriented"-he often deals directly an undergraduate at Southern Utah State with non-lawyer citizens speaking on their College and the University of Utah. Judge own behalf. Although he is quick to point Braithwaite claims he attended law school out that he is not suggesting that lawyers because he was interested in law and gov- are not people or that he doesn't also enjoy ernment, and hesitates before he admits working with lawyers, Braithwaite simply that he "didn't really like law schooL." likes the intimacy of working directly with Braithwaite enjoyed private practice, in- the public. cluding the municipal work he did for Ce- One issue that concerns Judge Braith- dar City, Parowan and Springdale. When waite is the frequency of perjured testimo- asked his opinion of the recent contro- ny, even in smaller cases. Often the testi- versy involving the proposed theater in the mony relates to whether the person was small town of Springdale, Judge Braith- there or was not there--r whether the per- waite reports that "Springdale has always son involved committed or did not commit had its share of political controversy." the act at issue. Braithwaite notes the recent high profile case regarding the Hil and Thomas testimony where the differ- VIEWS ON LEGAL SYSTEM Judge Robert T. Braithwaite Talking to Judge Braithwaite you get Fifth District Circuit Court ence in testimony amounted to more than a the distinct impression that either he is mere difference in the way the individuals very politically correct in interviews, or he interpreted the facts. This troubling situa- Appointed: 1987 by Gov. Norman H. Bangerter is one of those rare individuals who is sin- Law Degree: 1976, University of Utah tion "plays out more quietly in a range of cerely content with their lot in life and the Practice: Private practice and served as Deputy cases from felonies to small claims," re- way life is going on around them. I choose Iron County Attorney; City Attorney ports Braithwaite. The judge must weigh the latter. of Cedar City, Parowan and the testimony and determine who to be- Springdale. lieve in deciding the case, the court must Braithwaite is currently a circuit court Law-Related judge, and as of January 1, 1992, he and Activities: Past member of the Utah Air review these difficult issues again if they the other circuit court judges in the rural Conservation Committee, appointed come up as part of a separate prosecution areas, judicial districts five through eight, by Gov. Scott M. Matheson; Member, for perjúry. wil become district court judges under Board of Circuit Court Judges. House Bil 436. Eventually, in most of the STRA TEGY FOR SUCCESS state, unelected commissioners wil handle BEFORE JUDGE BRAITHWAITE a portion of the cases previously assigned a family transition must endure. One "un- Judge Braithwaite reports that he re- to circuit courts, such as criminal arraign- pleasant but unavoidable" aspect of our spects the level of competence from law- l' ments, preliminary hearings and misde- current system of justice, according to yers appearing before him. He notes that meanor trials. Judge Braithwaite is ambiv- Braithwaite, is that individuals are forced on occasion, however, lawyers are simply alent about the change-although he en- to relive their trauma in court. This aspect not adequately prepared to present their joys the kinds of sases he presently han- of the process, says Braithwaite, is difficult case. According to Braithwaite, the key to dles, he sees the advantages to a more gen- to witness even as a judge. arguing in his court is to "talk to your wit- eral jurisdiction trial court in rural areas There are other parts of his job that nesses, know what laws affect your case, and is prepared for the new caseload. Judge Braithwaite really enjoys. He says and know what your case is about," before The hardest aspect of his job, says there is a real sense of camaraderie among trial or argument. Although Braithwaite Judge Braithwaite, is seeing the suffering the judges in the fifth district that makes winces at the thought of lawyers callng of victims who are involved in the crimi- the role of a judge in a rural setting less for a "forecast" or future prediction regard- nal justice system. He also notes that there isolating. Braithwaite says he enjoys hearing how he wil rule on a substantive issue is a lot more crime than he realized in ing cases and helping individuals settle dis- of a case, he says that lawyers can call to southern Utah. Braithwaite says that do- putes. As a circuit judge, Braithwaite cur- ask technical questions about the proce- mestic cases are also "painful," because of rently handles a fair number of arraign- dure in his court. the raw emotion that people going through ments and preliminary hearings. In small continued on page 14

January 1992 13 i

i 11 Profile of Judge George E. Ballif i i¡ By Terry E. Welch I r l

as a nation we must either eliminate the GENERAL BACKGROUND death penalty completely or realign the Judge Ballf grew up among several state and federal systems to uniformly and lawyers, including his father, his uncle and more efficiently determine the appropri- a cousin. He, therefore, attributes his desire ateness and constitutionality of the death to become a lawyer to his family, and par- penalty in paricular cases. While he ac- ticularly his father. Because his father was knowledges that creating a national stan- a judge, as well as a practicing attorney, dard may perhaps require significant Ballif had a realistic view both of the prac- changes to state constitutions, Ballf be- tice ,of law and of life on the bench before lieves that the problem of endless appeals going to law schooL. Ballf attended Stan- in death penalty cases must be addressed. ford Law School for two years and completed his legal education at the University LIFE IN of Utah after taking some time off to determine whether he did, in fact, want to make JUDGE BALLIF'S COURTROOM a career in the legal profession. While he commands order in the As a lawyer, Judge Ballf maintained a courtoom, Judge Ballf does not require general practice with his father in addition formality for formality's sake. He stresses to holding varous prosecutorial and other that humor in the courtroom is acceptable public legal positions. Since becoming a in appropriate situations. His main point of judge, Ballf finds . that his expectations advice to lawyers who practice before about the bench were not far from reality, him--r anyone-is to never misrepresent and he has thoroughly enjoyed his time on Judge George E. Ballif anything to the court or opposing counseL. the bench. Unfortunately, Ballf states, such misrep- One of the aspects of life on the bench resentations are made quite often. that Ballf enjoys most as compared with Appointed: 1971 by Gov. Rampton. At the time of private practice is his abilty to maintain appointment, Balli was the youngest OUTSIDE INTERESTS some degree of order in his personal distrct judge in the state. Judge Ballf is planning on retiring schedule. Most evenings Ballf is able to Law Degree: 1954, University of Utah. within a few months and looks forward to Practice: Assistant City Attorney, Provo; Corporate traveling and enjoying a more relaxed life- leave for home at approximately 5:00 p.m., Counsel for Provo; Assistat Distrct and finds that he is more able to relax after Attorney; Deputy County Attorney; style. He enjoys golf, pool and reading- work, without worring about the next General Prvate Practice including paricularly novels. His favorite authors day's schedule or receiving an unexpected personal injury, domestic law and state include Tom Clancy and Charles Dickens. condemnation proceedings. phone calL. continued from page 13 OUTSIDE INTERESTS i VIEWS ON THE LEGAL SYSTEM I Judge Braithwaite lives in Cedar City 'l" Judge Ballf sees the adversar nature longer possible to practice law for any sig- ,l:,~I of our present system as one of its greatest nificant amount of time without a substan- with his four children and his wife Arlene, strengths. The orderly process of putting tial capital investment. Attorneys simply who is an ar professor at Southern Utah 1 evidence before the jury or judge~ach must continue to bring in money or they University. Judge Braithwaite says he plays j side, in tum, building acase-and the abil- canot continue to practice law. Along basketball "for relaxation." The brace on his hand supporting bones broken during it ity of each side to present persuasive argu- with the need to change the image of the l ments in its favor increases the likelihood legal system and those who practice his last "basketball meditation" session undoubtedly helps to take his mind off of the 1 of. determining the. trth in any particular within it, Judge Ballf emphasizes the need ftl case. Ballf believes that the image of the for more pro bono work. He believes that pressing demands of his courtoom. He r current legal system is perhaps its greatest mandating a certin amount of pro bono didn't really specify whether it is the sport weakess. Lawyers and the system in gen- work and administering a pro bono pro- or the pain resulting from the sport that acts eral are no longer held in great esteem as gram on the same basis as the current con- as the escape. Interesting way to relax. Braithwaite said he also plays the piano to i,I they once were. Rather, the public's per- tinuing legal education program is one \' ception of the legal system is one of greed, possible solution. unwind. He says he paricularly likes "re- distortion of truth and technicality over Judge Ballf also perceives a need to ally loud songs," including songs from the Ii substance. Ballf believes that much of this substantially revamp the current criminal operas of "Les Mis" and "Phantom of the image came with a shift in the focus of law system to avoid the often unnecessary and Opera." In his present condition it looks practice toward a more capital intensive repetitive appeals processes, particularly like the two hobbies he undertakes for re- pursuit. Unfortunately, he explains, it is no in death penalty cases. Ballf believes that laxation are mutually incompatible. Maybe he should take up painting.

14 Vol. 5 No.1 We put our entire corporation behind your clients personal tnist

When your client names First We offer a complete range of trust Security's Trust Divsion, they invest in the services including personal, corporate, strength and stability of the First Security and testamentary trustee, custodian or Corporation. Their trust is in the hands agent and personal representative. For of experienced adminis trators, backed professional trust services of the largest by First Security's resources and trust department in Utah, Fi- t experience in serving customers we're right where ,rs throughout the Intermountain West. you want us toTrust be. !iecurity Division \\e re right where you want us to be

Salt Lake Provo Ogden Trust Department Trust Department Trust Department David Halladay Jeff Kahn Charles B. Hewlett 350-5859 379-2105 626-9523 STATE TRIAL COURT CONSOLIDATION

Court Consolidation in Perspective

By Harold Christensen, Chair, Statewide Transition Team

Severalbench of andmy the friends bar who from have beenthe STATEWIDE TRANSITION TEAM working on the court consolidation project H.B. 436 have commented to me about how many "blanks" the legislature left for them to fil Hon. Michael Zimmerman, Supreme Court Justice in. Turning a broad legislative mandate Hon. Dennis L. Draney, Eighth District Court into detailed plans for combined calendars, staffs, and information dissemination Hon. David L. Mower, Sixth Circuit Court is no easy task. Some have expressed the Hon. Stanton M. Taylor, Second District Court wish that the legislature had not left so Hon. David S. Young, Third District Court much of the work for them to complete. Hon. Ray M. Harding, Fourth District Court My view is to the contrary. I believe Hon. Tyrone Medley, Third Circuit Court that the legislature has granted the court Hon. W. Brent West, Second Circuit Court system and the bar (and members of the Hon. Joseph 1. Dimick, Fourth Circuit Court wider justice community) a most valuable Commissioner Michael G. Allphin, Second opportunity. We would be foolish indeed District Court not to seize it. In effect, the lawmakers Hon. Paul C. Keller, Senior Judge Hon. Sterling Gardner, Justice Court Judge have said to us: "We wil establish the Harold Christensen goals and broad guidelines. We trust to Timothy M. Shea, Court Executive Third your knowledge and experience to do the District James M. Nelson, Court Executive Fifth rest. " Most of us would agree that court per- well as Local Transition Teams for each of District sonnel and attorneys are better qualified to the judicial districts. The role of the State- Harold G. Christensen, Snow, Christensen & Martineau organize court operations than a legislative wide Team is coordination, communica- I committee. The lawmakers have given us tion and oversight. The local transition Sen. Lyle W. Hilyard, Utah State Senate Ronald W. Gibson, Deputy State Court I! an impressive vote of confidence. We now teams wil be developing plans for imple- I must show them that this confidence in mentation which reflect issues peculiar to Administrator our ability to make the system meet their each judicial district. goals is well placed. I have asked the Bar Journal editors to LOCAL TRANSITION TEAMS Î The "initial launch phase" of the tran- publish the names of all the local teams FIRST JUDICIAL DISTRICT I siton process has been successfuL. To con- and the state team so that everyone wil Hon. Gordon Low, District Court Judge " tinue this success, we need suggestions have the list of people to contact at their Hon. Franklin Gunnell, District Court Judge and feedback from those involved in the fingertips. Each month there wil be an up- Hon. David Sorenson, Juvenile Court Judge process on a day-to-day basis, and from date on activities from the Statewide Tran- Hon. Robert Daines, Circuit Court Judge the state and local transition teams. We sition Team and a report from a Local Hon. Burton Harris, Circuit Court Judge need to hear from court personnel, the bar, Transition Team. This month's issue con- Hon. Clint Judkins, Circuit Court Judge and all other interested people about what tains a report from the Third District Nelda Hollngsworth, Court Executive is working, and what is not. Team. Next month I wil provide a report Ben Hadfield, Utah State Bar Association For the purpose of facilitating the im- on the role of the Statewide Transition Pam Shaw, Rich County Clerk plementation of H.B. 436 and consolida- Team and an update on upcoming issues tion of the courts, the Judicial Council cre- which wil be of interest to you. We are SECOND JUDICIAL DISTRICT ated the Statewide Transition Team as eager to hear from you. Hon. Rodney S. Page, District Court Judge

16 Vol. 5 NO.1 Hon. David Roth, Distrct Court Judge Brent Young, Utah State Bar Association Hon. Bruce K. Hallday, Circuit Court Judge Hon. Stanton Taylor, Distrct Court Judge Marlene Whicker, Utah County Clerk Hon. Paul C. Keller, Juvenile Court Judge Hon. Alfred VanWagenen, Circuit Court Judge Cara Smith, Clerk of Court Tim Simmons, Court Executive Hon. Parley Baldwin, Circuit Cour Judge Hermine Harey, Clerk of Court Michael R. Jensen, Utah State Bar Association Hon. Kent Bachman, Juvenile Court Judge Bruce C. Funk, Emery County Clerk Maurice Richards, Commissioner FlFlH JUDICIAL DISTRICT Barbara Procarione, Clerk of Court Margaret Satterthwaite, Court Executive Hon. J. Philp Eves, District Court Judge Kim Walpole, Weber County Bar Association Hon. James L. Shumate, Circuit Court Judge EIGHTH JUDICIAL DISTRICT Terr Cathcart, Davis County Bar Association Hon. Robert Braithwaite, Circuit Court Judge Hon. Dennis L. Draney, District Court Judge Penny Taylor, Morgan County Clerk Hon. Joseph Jackson, Juvenile Court Judge Hon. A. Lynn Payne, Circuit Court Judge Marlynn B. Lema, Commissioner Hon. Merrll L. Hermansen, Juvenile Court THIRD JUDICIA DISTRCT James M. Nelson, Court Executive Judge Hon. Michael Murphy, District Court Judge Keith F. Oehler, Utah State Bar Association Val Haris, Court Executive Hon, Timothy Hanson, Distrct Cour Judge Paul Baron, Beaver County Clerk Gayle McKeachnie, Utah State Bar Association Hon. Richard Moffat, Distrct Cour Judge Linda Wiliamson, Clerk of Court Gene Briggs, Daggett County Clerk Hon. Wiliam Thome, Circuit Court Judge Shanna Witbeck, Clerk of Court Hon. Robin Reese, Circuit Court Judge SIXTH JUDICIAL DISTRICT Tim Shea, Court Executive Hon. Don V. Tibbs, District Court Judge Sandra Peuler, Commissioner Hon. David L. Mower, Circuit Court Judge Editors Note: See related articles: Doug Gear, Summit County Clerk Hon. Louis G. Tervort, Juvenile Court Judge Utah's Trial Court Organization and Brent Bowcutt, Court Executive Jurisdiction Act by Chief Justice Gordon R. FOURTH JUDICIA DISTRICT Kay L. Melff, Utah State Bar Association Hall and John L. Valentine, Volume 4, Utah Bar Hon. Ray Harding, Distrct Court Judge Krstine Christiansen, Sanpete County Clerk Journal, April '91. Hon. George Ballif, District Court Judge Marie Hintze, Clerk of Court Unification of Utah's Judiciary by Randy L. Hon. Boyd Park, Distrct Court Judge Carole Mellor, Court Coordinator Dryer, Volume 4, Utah Bar Journal, JunelJuly Hon. Lynn Davis, Circuit Court Judge '91. Hon. Patrick McGuire, Circuit Court Judge SEVENTH JUDICIAL DISTRICT Howard H. Maetani, Commissioner Hon. Boyd Bunnell, District Cour Judge Hon. Bryce K. Bryner, Circuit Court Judge Mike Haveman, Court Executive .

"Loan Collection Litigation in Utah" Salt Lake City .. March 10 Marriott Salt Lake - 75 South West Temple 9:00 a.m. - 4:30 .m.

To register, send in the form below or call Lynnda or Shannon at (715) 835-7909. -=.IlTIONAL BUSIN INmUT IN . r ------, I MarchLoan Collection10 . Salt LakeLitigation City M03J04002 in Uta I I Tuition:$ 108 $118 per per single person registrant for Mail three to: National P.O. Business Box Institute, 3067 Inc. II IIAddressIName or more from Title the sameCity Phone firm EauState Fir Claie, Name WIZip 54702 I II I Check or charge card authorizatin must be includd with regitratin. I : ~Signature Check enclosed payable toCard National BusnesExpires Insttute, Inc. _ MasterCard VIA No. :

17 January 1992 1i i

State Trial Court Reorganization: ~ What's Happening in the Third District ~ l By James B. Lee, Esq. and Michael R. Murphy, Third District Judge

Sandra N. Peuler, Commissioner The 1991sweeping Legislature structural changes enacted in James B. Lee, Bar Representative state trial courts. The legislation, H.B. Timothy Shea, Court Executive 436, seeks to more efficiently use and al- Doug Geary, Summit County Clerk locate judicial resources and court facilities through various means, including con- This transition group began monthly solidation of the district and circuit courts. meetings in November. As the group pro- Consolidation in the Fifth, Sixth, Seventh ceeds, it wil face many significant deci- and Eighth Districts wil occur as of Janu- sions such as timing of the consolidation; ary 1, 1992. The remaining districts, in- proper use of the Sandy, Murray, West cluding the Third District, wil be consoli- Valley and Salt Lake City courthouses; the dated between January 1, 1996 and Janu- appropriate number of commissioners and ary 1, 1998. The actual time when consoli- the typ~s, quantities and manner of their dation in the Third District wil occur is case assignments. The proper resolution of primarily dependent on district court case- these matters wil lead to greater and more load needs. In the interim, district court economic, speedy and convenient access vacancies wil be filed as in the past; cir- to courts for parties and their counsel in all cuit court vacancies wil not be filed. cases whether they be civil or criminaL. Commissioners wil be appointed as The first order of business has been to needed to fulfil some of the duties per- address two pressing issues: (1) the assim- formed by circuit judges. ilation of circuit judges into the workings Quite obviously there is a need to pro- of the district court and (2) the proper use vide logical and smooth transition from of commissioners. It is to the first of these the existing organization of trial courts to two issues that this article is directed. that contemplated by H.B. 436. The transi- The Third District transition group has tion in the Third District is being overseen been considering a proposal to rotate cir- by a group of judges, a bar representative cuit judges on the district and circuit court and court administrators. The following calendars in Summit and Tooele counties. people are on the Third District transition The benefits of such a proposal are the ~ group: following: Michael R. Murphy, District Court 1. Assimilation of circuit judges into Judge , the workings and case load of the district Timothy R. Hanson, District Court court by means which wil have the least Judge disruption to the expectations of counsel Richard H. Moffat, District Court and the parties. Summit and Tooele coun- Judge ties presently operate on a master calen- Wiliam A. Thome Jr., Circuit Court dar. As a result, counsel and parties do not Judge have an expectation that a particular judge Robin W. Reese, Circuit Court Judge will be assigned to their cases. Ex Offcio members: 2. Allocation of judicial resources Sharon P. McCully, Juvenile Court Judge Michael R. Murphy from areas where there is excess capacity Third District Judge to areas where there C is a need for 18 Vol. 5 NO.1 additional judges. In January 1992, Sandy . City and Tooele County wil begin operat- ' ing justice courts which wil handle many WHT is ATTORNEYS' TITLE matters previously adjudicated by circuit court judges. As a result, there wil be ad- GUAR FUN, INC_ ditional capacity at the circuit court leveL. at-tor-ney' U-tle Correspondingly, distrct cour caseloads n. 1. a. A tle copa crted by the membe of the Ut Ba continue to increase and in some circum- AslaUon (Ba-RelatedQl) to asist real estate attorney b. A Utle company that alow attorney to ear money from title stances distrct judges have been unable to Inurance (up to 70% of the title preum) 2. A Utle company resolve pending motions and cases with owned by attorneys. and opeted for attorneys 3. A Utle company wh1ch provdes attorey: a. Rearh and Ut.iaUon the care and speed to which they have be- tnormaUon b. Foreclosure tnormaUon c. Banptcy ~. come accustomed. Additionally, there ap- tnornUon d. Mechancs LIen tnornUon e. Judgement pears to be a need to bring the Summit lnormaUon and f. ntle tnormation 4. A title company dedicated to presrvg and promoti the attorney's role In ) County case10ad current and resolve cases re este wi a Re b. Leer c. Co which have been pending too long. d Attorney. At the outset, it should be understood that there is no linkage between this pro- FOR MORE INFORMTION posal and the appropriate time for com- CÆ I~I 328-8229 plete consolidation of district and circuit courts in the Third District. The. greatest impediment to proceeding with this pro- Ats'1T Moi-e thjut a t1 ro I posal is the need to properly maintain a record in Tooele and Summit County pro- . ceedings. Varous alternátives wil have to be considered if the proposal for the use of circuit judges proceeds. The alternatives are these: (1) to use a court reporter to cover some of the proceedings; (2) to install a video recording system in the Tooele courtoom; (3) to install a high- quality audio-recording system in the you can help make your Summit courtoom. A further but not insu- town a Tree City USA, perable impediment is the perceived need make your neighborhood to assure that the judge in a criminal pre- more beautiful, and make liminar hearing is not the judge before your home more valuable whom the case wil be tried. when you prune and care for The proposal to assign circuit judges your trees. to the distrct court calendars in Summit A free, easy-to-follow "How and Tooele counties is just that, a propos- To Prune" guide has been pre- aL. It wil not proceed beyond a proposal pared by The National Arbor Day until practitioners in Summit, Tooele, and Foundation to show you how. Salt Lake counties have had an opportu- You'll learn how to shape nity to paricipate by criticism, comments and guide a shade tree when and suggestions. The solicitation of such it's young so that it wil grow input is the primar purpose of this article. straight, strong and healthy. Practitioners who wish to have their views Keep a great thing growing. considered should call or write to any Keep A Great Thig Write for your free booklet member of the Third District transition today. Send your name and group. Only by such input can the transi- ~ Growig America, address to: How To Prune, tion group determine whether the proposal National Arbor Day Founda- should proceed and, if so, the maner in Tree City USA tion, Nebraska City, NE 68410. l which it should proceed in order to assure that Summit and Tooele counties wil continue to receive quality judicial service. The Third District transition group wil attempt to keep practitioners apprised of its proceedings and proposals with peri- "- odic aricles such as this in the Utah Bar TRE em USA Journal and Bar and Bench Bulletin of the ~ 11 Natial Salt Lake County Bar Association. ~Arbo~Fouti

January 1992 19 ,.t" 'l"AA'~1:~"''''i,'''.''iHf.li'~",,,\,,.. .,~, ~~~~h~tz," ,~ ~'t"1,o'-"''1r..r",,~..~vn,''r~r':'';''''rr,:(''li~'¡.n-~~~.~''~I'~''_~~~~~~ ",. -" ~." ~ ,. , , i tl;':,,SæAr¡E J!~' 'BAD~,.N~l~ l\ \VLVjTEX'17:S -~ ~'., '~" ',~;¡:' ::',.~" (,' , .'r,,'" " ':: l,;,r, ~~ß~¿:~;:~f,.:,l(.d~t11t;&~~,~'l!lfi;~~'l~,t!¡

tion for building use and alternative pro- 12. The Board also requested that in- Commission posals. put be obtained from members outside Highlights 5. L. Robert Anderson was appointed LAAU as well as from legal administra- to the 7th District Trial Court Judicial tors in the state. 13. Budget & Finance Committee During its regularly scheduled meeting Nominating Commission. 6. Herm Olsen was appointed to the Chair, Dennis Haslam, reported that the of October 24, 1991, the Board of Bar Committee had met and reviewed the fi- Commissioners received the following re- 1st District Trial Court Judicial Nominat- ing Commission. nancial reports. ports and took the actions indicated. 14. Accounting definitions and guide- 1. The minutes of the Commission 7. The 1991-92 Bar Committee Charges were adopted with some revi- lines were distributed. Birrell reported that meeting of September 26, 1991, were ap- the accounting system is up and running proved with minor revisions. sions. and checks can now be cut in-house. 2. Chief Justice Gordon R. Hall, Court 8. The Board voted that the President appoint an appropriate committee to study 15. The Board voted to authorize Bar Administrator Bil Vickrey, David Bird, Counsel to proceed with structuring the Tim Shea, James B. Lee and Harold Chrs- the issue of allowing non-members to join rules for turning over of public discipline tensen appeared to discuss the Court Reor- sections and to solicit suggestions from section chairs as to how this move would hearings to the District Court and retaining ganization bil amendments. Mr. Davis re- the Board to continue to be involved in minded the Board that under Supreme affect their section, and what rules they private discipline. Court and Bar rules the Board cannot take would propose. 9. Mr. Davis reported that he, Randy 16. The Board voted to have Bar a position on the bil uriless it had been Counsel amend the Fee Arbitration agree- reviewed by the Legislative Affairs Com- Dryer and John Baldwin met with the Edi- torial Board of KSL, and would be meet- ment so that an attorney cannot collect at- mittee. Following the taking of a straw torney fees for paricipating. vote, Davis concluded that it was the sense ing with Ogden Standard Examiner, De- seret News and The Salt Lake Tribune. 17. The Board voted to authorize Bar of the Board at the moment to support the Counsel to draft a rule to allow a candi- bill's retirement and housekeeping modifi- 10. Baldwin was authorized to tell the Ethics Advisory Committee to hire re- date to resign with discipline pending. cations and to oppose the remaining sub- 18. Chairman of thw MCLE Board, stantive portions. search help through the Office of Bar CounseL. Robert Merrll, and MCLE staff, Sydnie 3. Chief Justice Hall reported that the Kuhre, gave a brief status report on petition to subsidize the Lawyer Referral 11. The Board voted to explore a proposal for affiliate status in the Bar for le- MCLE. Service was approved. A full text of the minutes of these and 4. Davis reported that the Executive gal assistants by the Legal Assistants As- sociation of Utah and to have the Bar ap- other meetings of the Bar Commission are Committee determined, subject to Com- available for inspection at the office of'the mission disapproval, that they would like prove a liaison committee to work through Executive Director. to explore further the triple-net lease op- the policies and rules with the LAAU.

United States Court of Appeals for the Tenth Circuit

NOTICE OF PROPOSED RULES AMENDMENTS OPPORTUNITY FOR COMMENT In accordance with the provisions of 28 U.S.C. §2071(b), the Copies of the Court's rules, together with all proposed amend- United States Court of Appeals for the Tenth Circuit hereby gives ments may be viewed at the office of the ch~rk of court in Denver, notice of proposed amendments to its local rules of practice. Colorado, or at the clerks' offices of the United States District One purpose of the proposed rules amendments is to elimi- Courts within the Tenth Circuit. nate provisions in the Court's rules that were found by the Local Written comments on the proposed amendments may be sub- Rules Project (a project formed by the Judicial Conference's mitted on or before January 31, 1992, to: Committee on Rules of Practice and Procedure) either to repeat or to be inconsistent with provisions in the Federal Rules of Ap- Robert L. Hoecker, Clerk pellate Procedure. Other purposes of the amendments are to in- United States Court of Appeals for the Tenth Circuit corporate into the rules provisions of the Court's General Order of C-404 United States Courthouse October 15, 1990, and to make more clear the procedures to be Denver, CO 80294 followed in cases fied in the Court. In order to facilitate cross referencing, every rule in the The Court wil consider all comments timely submitted be- amended rules wil be preceded by the federal rule dealing with fore final adoption of amended rules. the same subject matter.

20 Vol. 5 No.1 Discipline Corner pared by his client and failed to include a pertinent data causing further delay in the counterclaim. On January 2, 1989, Mr. prosecution of the case the effect of which ADMONITIONS Fox fied a Motion to Set Aside the De- was compounded due to the client's age. 1. An attomey was admonished pursu- fault Judgment. No action has been taen 3. On November 20, 1991, Allen S. ant to Rule 4,4 (Respect for Rights of on the motion. Further, Mr. Fox failed to Thorpe was publicly reprimanded for vio- Third Persons) for having sent two letters respond to his client's repeated requests lating Rule 1. (Competence), Rule 1.3 to the opposing counsel in March of 1991 for information regarding the status of the (Dilgence), Rule 1.4(a) and (b) (Commu- disclosing information unrelated to the is- case. In addition to the public reprimand, nication), and Rule 8,4(c) (Misrepresenta- sues in the lawsuit the purpose of which Mr. Fox was ordered to make $1,000.00 tion). Mr. Thorpe represented his client in was to embarrass the opposing pary. restitution to his client and reimburse the a criminal trial on May 5, 1989. Subse- 2. An attorney was admonished pursu- Utah State Bar for the costs incurred in the quent to conviction and pursuant to the cli- ant to Rule 1.2(a) (Scope of Representa- prosecution of this matter. ent's request, Mr. Thorpe fied a Notice of tion) for failure to exercise reasonable dil- 2. On November 14, 1991, Dale E. Strat- Appeal on June 5, 1989. Thereafter, Mr. gence in pursuing his client's interest in a ford was publicly reprimanded for violat- Thorpe failed to perfect the appeal and the I' divorce modification action to obtain in- ing Rule 1. (Dilgence) and Rule 1,4 same was dismissed on August 1, 1989. In crease visitation and for violation of Rule (Communication). Mr. Stratford was re- July of 1989, Mr. Thorpe misrepresented 1. (Competency) for failure to properly tained in March of 1987 to represent a cli- to his client that the appeal was progress- plead his client's cause of action. ent in a personal injury action. From May ing satisfactorily. 3. An attorney was admonished pursu- 1987 until August 1989, Mr. Stratford re- ant to Rule 1.4(d) (Declining or Termi- peatedly reassured his seventy-nine (79) SUSPENSION nating Representation) for having precipi- year old client that the lawsuit had been 1. On November 22, 1991, Royal K. tously terminated his representation in a fied. From October 1989 until Januar Hunt was indefinitely suspended from the divorce action to the client's detriment. 1990, the client telephoned Mr. Stratford practice of law for medical reasons. Any The attorney fied the Notice of With- repeatedly and Mr. Stratford either refused attempt to return to the practice of law drawal on September 18, 1991 with a pre- . to take the calls or would state that he was shall be conditioned upon his making res- trial settlement conference scheduled for in the process of obtaining a tral date. Mr. titution to all his clients, and a sufficient September 23, 1991. Subsequent to termi- Stratford fied the complaint January 23, showing his health is restored, and his full nation, the attorney failed to take steps to 1990. In March 1990, the client retained compliance with Rule XVII, Procedures the extent reasonably practicable to protect new counsel to pursue the matter. of Discipline. the client's interest. In mitigation, the Supreme Court consid- 2. On November 13, 1991, Harold R. ered the fact that Mr. Stratford had suf- Stephens was suspended for one (1) month PRIVATE REPRIMAND fered a major hear attack in August of for violation of Rules 1.2(a) (Scope of 1. An attomey was privately repri- 1987 and was hospitalized for three and Representation), l,4(a) (Communication) manded for violating Rule 1.3 (Diligence) one half months and for a period of time and 8,4(c) (Deceit). Mr. Stephens was re- for failure to exercise reasonable dilgence thereafter was restricted to limited work tained in June of 1989 to defend against a in representing a client in a personal injury hours. Also as a mitigating factor, the petition to modify a decree of divorce. At action resulting from an automobile acci- Court considered the fact that Mr. Strat- the June 23, 1989 hearing Mr. Stephens dent on March 29, 1985. Client retained ford had in fact prepared a complaint in appeared without his client and judgment the attorney in December 1987. Attorney August of 1989 but had failed to fie it in the amount of $1,500.00 was entered failed to fie the complaint until March 29, with the tral court. against the client. Immediately thereafter, 1989 and effectuated service on March 23, In aggravation, the Court considered Mr. Mr. Stephens, misrepresented to the client 1990. The attorney was also reprimanded Stratford's' failure to promptly forward to that the Court had taken the matter under for violating Rule 1.4(a) (Communication) the client's new attorney reports and other advisement. During the subsequent weeks, for failure to keep the client informed as to the status of the case. In mitigation, the Board of C~mmissioners of the Utah State Bar considered the attorney's expeditious settlement of the case after the Bar complaint was filed.

PUBLIC REPRIMAND 1. On November 13, 1991, Joseph R. Fox was publicly reprimanded for violating Rule 1. (Diligence), and Rule 1.4(a) (Communication). Mr. Fox was retained to fie an answer and counterclaim to a civil complaint fied on April 2, 1988. Mr. Fox failed to file the answer until May 10, 1988. Also on May 10, 1988 a certificate of default was entered against his client and the default judgment was signed on May 11, 1988. The answer that Mr. Fox fied was essentially the same as one pre-

January 1992 21

" I the client made numerous unsuccessful at- giving grounds for his discipline. Any at- tempts to contact Mr. Stephens. On Sep- tempt to be readmitted shall be condi- tember 1, 1989, the client was informed by tioned upon his full compliance with Rule XVII, of the Procedures of Discipline. his former wife that a hearing was sched- , LITIGATION SUPPORT uled for September 13, 1989. Mr. Stephens had not notified his client of the RULE CHANGE ALERT September hearing. Upon contacting the The following revisions to Rule 65A of "LITIGATION Court directly, the client, for the first time, the Utah Rules of Civil Procedure went into leared of the June 23, 1989 judgment effect on September 1, 1991. SERVICES WHERE against him. The client terminated Mr. (b) Temporary restraining orders. Stephens' services and retained new coun- (1) Notice. No temporary restraining or- AND WHEN YOU sel who discovered that a second judgment der shall be granted without notice to the had also been entered against the client in adverse party or that pary's attorney unless: NEED THEM" August of 1989. Upon termination, the cli- (B) the applicant or the applicant's ent requested a refund of his retainer fee attorney certifes to the Court in writing Mary H. Mark & Associates and that his fie be given to the new coun- as to the efforts, if any, that have been is a local firm with the exper- seL. Mr. Stephens failed to respond to made to give notice and the reasons sup- tise and 15 years experience these requests. porting the claim that notice should not be required. (emphasis added.) , to back you up at any stage DISBARMENT (d) Form and scope. This paragraph has of the litigation process. On November 13, 1991, Gerald Turner been expanded to include: Mark & Associates can pro- was disbarred for his conviction of Bank- ...If a restraining order is granted without vide full litigation support ruptcy Fraud pursuant to 18 U.S.C. Sec. notice to the party restrained, it shall state services or simply augment 152 in the United State District Court for the reasons justifying the Court's decision to proceed without notice. your existing in-house litiga- the District of Utah. The Court found Mr. , Turner's conviction was for a crime in- (f) Domestic relations cases. This para- II' tion team: volving moral turpitude and therefore, graph is new and is added to ensure that nothing in this rule shall be construed to pursuant to Rule I1(a) of the Procedures of I: Discipline, the record of his conviction limit the equitable powers of the Court in "I . Computerized litigation was conclusive evidence of his conviction domestic relations cases. , support and data base design . Document management and processing . Free-lance paralegal support . Custom litigation soft- ware

Whether you have an ongoing case that needs a little ex- tra document work or a large complex matter on the hori- zon, Mark & Associates can provide accurate, economical and timely service when you CLERKS PRO TEM need it! 278-4574 Call for research, drafting, cite-checking and more I . WHY Clerks Pro Temo? Mary H. Mark & Associates SIMPLEI We do the work you don't havé time for. Leaving you Computerized Litigation Consultants more time for essentialtasks.-SO, your clients save money, & you avoid P.Q, Box 58687 the hassles of employing a clerk. Salt Lake City, Utah 84158 No overhead to you-simply call when you have a job to be done! (801) 531-1723 Call Clerks Pro Temo, 278-4574 ,.

22 Vol. 5Wn.D No.1

,,'I ~~1l,im;, '0S~': ~, - "; ,!"~ !,- ~~; ,

Twenty Tips for Successful Courtroom Advocacy

By Judge Michael L. Hutchings

MICHAEL L. HUTCHINGS was appointed 5. Novel Issues at TriaL. Please alert It hasbegan been mynearly tenure nine asfull a yearscircuit since court I to the Third Circuit Court Bench in 1983 by the judge in advance about any novel is- judge. During those years, I have seen sues that may be raised during the triaL. I Gov. Scott M. Matheson. He graduated from hundreds of lawyers and presided at thou- the J. Reuben Clark Law School in 1979 af- personally appreciate these warnings be- sands of hearings and trials. Over those ter serving two years as a member of the cause I have some additional time to con- years, I have formed some opinions about BYU Law Review. He is currently president sider how I'll rule before the issue be- effective courtroom advocacy. I have com- of the BYU Law School Alumni Association. comes ripe for decision. A short trial brief, piled 20 tips for courtroom success. I speak In 1989, he was named Law School Alumnus setting out your position on the matter, with copies of relevant cases, statutes and only for myself althòugh I know that many of the Year. of my views are shared by many of my Judge Hutchings was named Circuit Court rules is most helpfuL. colleagues on the trial court benches of this Judge of the Year in 1988 by the Utah State 6. Plea Bargains. Avoid involving state. I hope these suggestions may assist Bar Association. He currently serves on the judges in the process of plea bargaining. you in your courtroom advocacy. Utah Judicial Council, the Editorial Board Most judges are not comfortable with con- 1. Preparation. The virtues of prepa- of the Bar Journal and on the Bar's Fee ditional pleas. I am very hesitant to get ration are obvious and there simply is no Arbitration Committee. involved in conditional plea arrangements. substitute for preparation. It usually be- 7. Marked Exhibits. All trial exhibits comes apparent early in the trial about should be marked before triaL. This saves who has the case organized and prepared. time during the trial and shows that you Sometimes an attorney wil make an argu- all witnesses before triaL. Sometimes a are prepared and organized. ment on an important legal issue and not witness you have not interviewed may 8. Objections. State your objections even be able to cite an applicable case, show up right before triaL. Take a few and a specific reason for the objection. Do statute or rule in favor of his or her articu- minutes and interview the witness. The not assume the judge knows why you are lated position. When this happens, the at- new witness' testimony may have a signif- objecting. For example, an attorney can torney's credibility is diminished. icant impact on the result of the case. I state "objection-hearsay" or "objection- 2. Settlements. There is no better time have often seen attorneys surprised by the foundation" which clearly and quickly than now to try to settle the case. Vigorous testimony of a witness who has not been communicates the objection and the rea- settement efforts, even on the day of trial, interviewed before triaL. son for it. When opposing counsel makes should be employed. I have been surprised 4. Copies of Cases Cited. I appreciate an objection, quickly state a reply to the when I have asked the attorneys if they attorneys who provide a copy of each case judge and wait for a ruling. If the judge had made any effort to settle the case and cited in support of their position. I am per- sustains the objection, go on to another the answer has been in the negative. Rea- sonally not offended if the attorney high- question. When an objection is overruled, sonable settlement efforts should be made lights relevant passages of each case. Cop- please restate the question for the benefit in every case. ies of cases should also be provided to op- of the witness. Also, save your objections 3. Interview All Witnesses. Interview posing counseL. for the evidence that really wil have an

.Iaiil/ary 1992 23 impact on the case. Judges lose patience judges prefer that attorneys fees affidavits necessary. Too many lawyers take too with attorneys who make every allowable be submitted after the merits of the under- long to get to the point. Judges and juries yet unnecessary objection at triaL. lying case are resolved. Be prepared to lose patience with attorneys who appear 9. Identify Yourself and Your Client present detailed testimony about your cli- only interested II hearing themselves First. When the judge first calls the case, ent's claim for attorneys fees. speak and who continue to re-emphasize please state your name and who you repre- 14. Jury Instructions. Have your pro- the same facts. On the other hand, those sent. This helps preserve an accurate posed jury instructions submitted to the attorneys who quickly and competently record of the proceedings. Also, this bene- judge before triaL. You should identify get to the point are universally appreciated fits the judge who may not know the attor- those instructions which are the most im- by the judges. ney by name. It also helps the court clerk portant instructions to your case and those 18. Stipulations. Make a genuine ef- who must write down the names of coun- instructions which we would deem to be fort to reach reasonable stipulations re- sel in docket entries for the case. "stock instructions." Avoid proposing vo- garding uncontested and minor issues be- 10. Reactions to Rulings. The court- luminous instructions which may, by their fore triaL. I am surprised how often attor- room is an environment where a pary sheer number, confuse the jury. neys fail to even attempt to make reason- Ji wins and a party loses. Judges know that 15. Courtesy Copies. Too often attor- able stipulations before triaL. Once two II I attorneys wil not always be pleased with neys neglect to provide courtesy copies of seasoned attorneys appeared before me i their rulings. However, the rulings must be exhibits to opposing counsel, the judge and said, "Judge, this case could take two made. Please react professionally when a and the jury. Once the foundation is laid days of triaL. We have reached stipulations ruling is announced. Some attorneys throw and the document is admitted, you can to all but two of the issues." They stated up their hands in disbelief; some exhibit delve into the merits of the document in their stipulations for the record and derogatory facial expressions or begin to pointed out that they could stipulate to al- reargue the case with the judge. A few at- most all of the documentary evidence in torneys make derogatory comments about the case. They identified a few documents the judge and the ruling. All of this is un- with which they could not agree. The case professional and may mar your effective- took only two hours to try. The attorneys ness before the judge on the next case. It is were ariculate and well prepared. The not worth risking your reputation and your An attorney can state case really was ajoy to try. This procedure relationship with the judge by reacting of reaching reasonable stipulations and( "objection-hearsay" or negatively to any ruling. then focusing on the few remaining con- 11. Proposed Orders. Orders should "ob jection-oundation" tested issues should be followed with be proposed with an "approved as to form" which clearly and much more regularity by trial lawyers. line signed by opposing counseL. This 19. Continuances. This must be the saves the judge and the clerk time in com- quickly communicates first word learned by some attorneys after parng the language of the order with the the objection and the passing the bar examination. A few attor- file. If opposing counsel wil not sign the neys have a cavalier attitude about contin- proposed order, be sure to mail copies of reason for it. uances and ask for them often. I encourage the proposed orders to opposing counsel you to avoid asking for a continuance un- and allow sufficient time for response be- less absolutely necessary. If you must seek fore submitting the matter to the judge for a continuance, do it early in the case. A, signature. last minute continuance wastes the time of 12. Attorneys Fees Affdavits. Rule 4- the judge who has spent time preparng for 505 of the Code of Judicial Administration your case. It can also disrupt the judge's sets out the requirements for submission trial schedule and the schedules of wit- of attorneys fees affdavits. The require- detaiL. When this is done, a copy of the nesses and opposing counseL. ments are specific. Be sure to list the spe- document should be provided to the judge, 20. Bring Your Calendar to Court. ie I' cificnature of the work performed and the the jury and opposing counseL. It is obvi- am amazed about how many attorneys fail time spent. Also state with paricularity ously much easier for everyone to under- to bring their calendars to court. This the legal basis for the award and affrm the stand a witness' testimony about the spe- makes setting a future hearng date nearly reasonableness of the requested award. cifics of the document with a copy of the impossible. Such an attorney can annoy Often, attorneys fees affdavits do not document in hand. I am surprised how of- even the most understanding judge. comply with the rule and are returned. ten attorneys fail to provide copies of ex- 13. Attorneys Fees at TriaL. If your hibits at triaL. This lapse in preparation CONCLUSION client is seeking an award of attorneys fees and judgment can annoy even the most I have identified 20 ways an attorney ii as a prevailing party, you must present ev- patient judge, jury, and attorney for the can improve courtroom practice. Many of idence during your client's case in chief opposing party. these suggestions may seem basic and yet 1': regarding attorneys fees. Do not assume 16. Avoid Ex Parte Communication it is surprising how often they are not fol- II that you can just submit an affdavit after with the Judge. There are rules against lowed by even seasoned trial lawyers. It is d'i speaking with the judge about pending triaL. Often attorneys neglect to address my hope that you wil follow them and I~I this issue when presenting the ca~e in cases. Avoid approaching a judge without that they may be of benefit to you in your r' chief. Broach the issue with the.judgè and opposing counsel involved. Please be sen- practice. I'll see you in court! opposing counsel during your èlient's case sitive to this concern. in chief. Some judges require that attor- 17. Get to the Point. Do not take up neys fees be proven during trial and other all the allotted time unless it is absolutely

24 Vol. 5 No.1 YLS, YLD, ABA, AOP, MSN, BLDC: A Young Lawyer Code?

By Charlotte Miler Young Lawyers Section President

to their own local areas. The most recent carpentry, sort clothes and perform any When I Youngfirst became Lawyers, Iinvolved often felt as in if seminar was held in Richmond, Virginia. other tasks useful to the Dallas Life Foun- everyone else was speaking in code when A few of the projects presented were: dation which services Dallas' poor and talking about the organizational structure . A Divorce Video for Children homeless. of the Young Lawyers. Now that I have . Death Penalty Representation The Utah YLS is proud that Jerr Fenn unraveled the code, I want to let other . Shaken Baby Syndrome Awareness of Snow, Christensen & Martineau is one Utah Young Lawyers know what it means . Surviving as a Lawyer in the '90s of the coordinators of the Dallas BLDC. and why the organization behind the code · Substance Abuse in the Legal Profession In addition to getting ideas from other is important. . Service to Modest Means Clients young lawyers, the national seminars pro- The Young Lawyers Section (YLS) of . Minorities in the Profession vide a forum for young lawyers to meet the Utah State Bar is an affiliate of the The Spring 1992 AOP wil be held in other lawyers at social and tourist Young Lawyers Division (YLD) of the Marco Island, Florida in May. activities. American Bar Association (ABA). The The third annual seminar is a Bar The Utah YLS helps two to three Utah YLD provides several services to local af- Leadership Development Conference young lawyers attend each of the national filates such as the Utah YLS: grant funds (BLDC) held in conjunction with the ABA seminars by paying airfare and a portion of for programs; model projects; resource mid-year meeting. This year the meeting other out-of-pocket expenses. The Utah materials such as video tapes and bro- wil be held in Dallas, Texas January 30- YLS has been honored to make presenta- chures; liaisons with other ABA groups; February 2. The Conference focuses on tions at several of the past seminars. When liaisons with other young lawyer organiza- helping young lawyers gain leadership the ABA/YLD chooses a Utah program for tions; national and regional seminars. skils. Some of the scheduled programs in- a presentation the ABA pays a portion of Three times a year the YLD/ABA clude: the costs to send the presenter from Utah to sponsors a national seminar. In the fall and . Effective Communications the seminar. spring of each year young lawyers from all . Public Relations Regional mini-conferences are also over the country attend the Affiliate Out- · Diversifying Bar Membership held in the Spring to provide regional con- reach Project (AOP) and Membership · Short and Long Range Planning tact among young lawyers. Utah wil be Support Network (MSN) seminars. At . Fund Raising and Budgeting sponsoring the Rocky Mountain regional those seminars young lawyers present The, YLD has planned a public service conference this year in Park City, April 3-5. projects from their own affiliates so that project in Dallas during the week of the Over the past few years, I have had the other affiiates may transplant the projects seminar. Volunteers wil paint, do light opportunity to attend three national confer-

January 1992 25 ences and one regional conference. The substantive programs and the camaraderie Young Lawyer's Victory Clarifies at the conferences increased my enthusi- asm about public service by lawyers and Review of Administrative Findings about the legal profession itself. At a time when the legal profession is criticized by Linda Barclay,Ä Young Lawyer prac- case establishes that the applicant's varous non-lawyers and lawyers, it is refreshing ticing in Provo at Howard, Lewis and P~- listed symptoms are not related to her tersen recently won a significant victory II to tal to people who enjoy practicing law. work as a te1emarketer at Unicorp." The a pro bono workers' compensation case In Richmond, I met two attomeys from Court of Appeals found that the Commis- Arkansas, one who represents death-row before the Utah Court of Appeals. The sion failed to make any finding about the case, Adams v. Board of R~view, 173 inmates and one who practices domestic nature of Adam's medical condition and Utah Adv. Rep. 18 gives administrative relations law; a prosecutor from Detroit that without that finding the court had no agencies explicit guidance on the appro- basis upon which to make a determination whose hobby is trains; an entertainment priate scope with which findings of fact lawyer from New Jersey. The groups at of causation. and conclusions of law must be prepared each conference have been extremely di- The Cour vacated the Industral Com- verse: governent lawyers, sole practitio- in order to withstand appeaL. mission's decision rather than remanding The case focused on the existence and ners, corporate attorneys, plaintiffs and de- and directed the Commission to make ade- fense attorneys. One of the greatest per- cause of injuries to Roberta N. Adams. quate findings. The Court noted that ab- Barclay argued that Adams, who had been sonal benefits for me has been getting to sent adequate findings "there is no pre- employed as a te1emarketer, was a victim know and becoming friends with attorneys sumption that the Commission's decision of "repetitive motion syndrome" and that from Utah who attend the seminars. is correct." Young lawyers who are interested in as a result, she was subject to pain, stiff- Barclay says she took the appeal on a attending any of the seminars should con- ness and numbness in her neck, ars and pro bono basis because her client's treat- shoulders. The Workers' Compensation tact me. I can provide you with more in- ment by the system "made me mad." She formation about fûture seminars and, de- Fund argued that Adam's problems were acknowledges that the process has not yet psychological and unrelated to her pending on the funds available, the Utah resulted in an award of benefits for her YLS may be able to help defray some of employment. client but hopes that Court of Appeals de- Rather than making specific findings , cision wil encourage administrative agen- the cost. about the nature of Adam's injuries, the cies to be more thorough in their consider- Industrial Commission found that "The ation of all the facts in a given dispute. preponderance of medical evidence in this

Rape Project

Seeks Donations

T he Rape Project of the Young Law- yers Section of the Bar is looking for support in the form of clothing or donations. Kim Hornak, chairperson of the Rape Project has organized a program to provide sweatsuits for rape victims whose clothing is often held by the police as evidence. The availabilty of the sweatsuits assures that victims wil have clean clothing to wear home. To support the program, the committee is asking young lawyers to donate either an adult-size sweat- suit or $10.00 toward the purchase of a suit. For furher information, contact Kim Hornak at 363-7900 or Lisa Jones at 521- 3200. to we yo tIll.

26 Vol. 5 No.1 And the Bet.

A Public Service of the u.s D.A Forest Service and your State Foresters. r! T

l ~ "~- "-""1 _,;,'\UTAH BAR""f,'"",'cI'~"i"H"":'~''i'l''_,__ FOUNDA' ,h~:fri't:;1Í,¡ií';;:!~iJ~ìt~ TI'O" 'N'" , ':"''!:'''::~~~;'ir~;::~'.'" ,¡; ,,,,'.,,~ôI~lI~i¡~

Annual Founders' Day Luncheon

Ii iii

Rex Olsen (left), Executive Director of the Legal Aid Socity, and Judge Norman H, Jackson, Pres-

ident of the Utah Bar Foundation, discuss ways IOLTAfunds have been used to protect children and spouses from abuse through the LAS Domestic Violence Program,

"Funding from the Utah Bar Founda- Utah were recognized for having won the The Utahvided Bar $881,318 Foundation in grants has for legalpro- tion adds materially to our abilty to pro- Foundation's Ethics Award, and scholar- aid, legal education and other law-related vide legal assistance annually to more than ship recipients Rosemond V. B1akelock services since 1984, when the Utah Bar 3,000 people in need," said Rex Olsen, (BYU) and Hong Thi Tran (U of U) were Foundation initiated the Interest on Law- Executive Director of the Legal Aid Soci- recognized as having been selected to re- yer's Trust Accounts (IOLTA) program. ety. "Without this support, we would need ceive the Foundation's law school scholar- At its 1991 Founders' Day Meeting on to significantly reduce the number of cli- ships for 1991-92. Tuesday, December 17, individuals and ents we serve at a time when the demand The Utah Bar Foundation was orga- organizations, which had directly benefit- for our services is growing," he said. nized nearly 30 years ago as a non-profit ted from the Bar Foundation's $182,775 in Phylls Geldzahler, Executive Director charitable Utah corporation. All active grants this year, told how the funds had of the Legal Center for People with Dis- members of the Utah Bar are members and provided critical services for Utahns in abilities, said the Bar Foundation grants may voluntarily participate in the IOLTA need. help provide informed advocates to assist program which generates the funds for III disabled people in their quest for equal grants. The Foundation Trustees consider Utah Legal Services, Legal Aid Soci- i ety, and the Legal Center for People with treatment under the law. grant applications annually for worthwhile Disabilties are among the organizations Foundation President Hon. Norman H. law-related public purposes. Trustees are which received funding and participated in Jackson said the grants are made possible Hon. Norman H. Jackson, president, Ellen the program. Anne Milne, Director of through the cooperation of participating M. Maycock, vice president, James B. Utah Legal Services said that Bar Founda- lawyers, law firms and Utah banks. Lee, secretary-treasurer, Richard C. Ca- tion funds have allowed the organization Following the luncheon, former hoon, Stephen B. Nebeker, B. L. Dart, and to open and maintain an office in Price to Trustee David S. Kunz was recognized for Carman E. Kipp. serve low-income, laid-off, aged and dis- his many years of service to the Utah Bar abled Utahns seeking help with unemploy- Foundation. Brigham Young University's ment, Social Security, and access to health graduating law student Mark T. Urban and care. Kerry Lee Chlarson from the University of

28 Vol, 5 No,) Do the Judge and Jury Really Understand?

Make a point they wil remember with: Professionally Prepared Courtroom Exhibits and Displays. THE LAW FIRM OF HANSEN JONES & LETA

is PLEASED TO ANNOUNCE THAT

. Mult-layered exhibits for presenting consecutive points LYNNH.PACE in an argument . Precisely executed graphs, charts and statistical exhibits - also available with color for added emphasis FORMERLY AN ASSOCIATE WITH . Mounted photographs with interchangeable velcro attachments RAY, QUINNEY & NEBEKER . Custom designed exhibits of all kinds - consultation available HAS JOINED THE FIRM AS AN . Giant photographic enlargements . VHS video editing

Rapidandaccurale, ASSOCIATE Protesslonal0raptiicArls For further information call: Services... Oesign lIuslraljon AND TypeseUing 533.0435 Layout . 662 South State Street. Salt Lake City OVelllllí1líl :::::;,:"" 11 , ~ ~ ~I ,I~' ,,;"""' ".... , TIMELY DELIVERY " wt"l"'""'''''':ii "'J VHS VideoSe,vices CONFIDENTIALITY WILLIAM R. GRAY AND ANNOUNCING JEFFREY T. SIVERTSEN

HAVE JOINED THE FIRM AS RELOCATION OF THE LAW OFFICE ASSOCIATES OF

BRYCE E. ROE VALLEY TOWER BUILDING TO 50 WEST BROADWAY, SIXTH FLOOR SALT LAKE CITY, UTAH 84101 BENEFICIAL LIFE TOWER 36 SOUTH STATE STREET, SUITE TELEPHONE: (80l) 532-7520 1200 TELECOPIER: (801) 364-7699 SALT LAKE CITY, UTAH 84111

Telephone: (801) 538-0202 NOVEMBER 1991 Facsimile: (801) 328-3629 ; ~ ~i OOTACLE COURE.

Unfortunately. many employers just don't realze how vita the National Guard and Reserve is to our armed forces, The fact is, they make up over 44% ofcqur national defense, So the next time someone who works for you needs time off for Guard and Reserve duty please give your full support. And let the obstacle course begin at annual training.

I:u~EMPLOYER SUPPORT OF "' THE GUARD AND RESERVE ~~ UTAH STATE BAR 1992 MID-YEAR MEETING March 12 to 14, 1992. Holiday Inn, St. George, Utah APPROVED FOR 8 HOURS CLE CREDIT WHICH INCLUDES 2 HOURS IN ETHICS

Thursday, March 12, 1992 10:40 a.m. PROGRAM A: 9:00a.m. Tennis Clinic-Vic Braden 6:00 to Registration-Hotel Lobby Part I-Federal Employment Tennis College 8:00 p.m. Opening Reception-Hotel Law and the Civil Rights Act 9:10 a.m. Demonstrative Evidence: From Lobby /Sabra Rooms of 1991 High-Tech to the 'Shoestring' SPONSORED BY: JONES, WALDO, HOLBROOK Chris P. Wangsgard, Budget AN McDONOUGH Shareholder, Parsons Behle Gail A. Jacquish, & Latimer Ph.D. Juris Graphics & Consulting, Inc.; Friday, March 13, 1992 Part ll-Employment Law in G. Fred Metos, 8:00 a.m. Registration! Utah After Berube: Plan tiff's & McCaughey and Metos; Continental Breakfast-Hotel Defendant's Perspectives David J. Schwendiman, Lobby Janet Hugie Smith, Assistant U.S. Attorney SPONSORED BY: SNOW, CHRSTENSEN AND Shareholder, Ray, Quinney SPONSORED BY: THE LITIGATION SECTION MARTINEAU & Nebeker 10:50 a.m. Break-Hotel Lobby 8:30a.m. Opening General Robert H. Wilde, SPONSORED BY: FIST INRSTATE TRUST Session-Sabra Rooms Attorney at Law, P.e. DIVISION Welcome and Opening PROGRAM B-1: 11:10 a.m. PROGRAM A-1: Remarks Preserving Arguments for 1992 Utah Legislative Review James Z. Davis, Appeal John T. Nielsen, Shareholder, President, Utah State Bar Hon. Gregory K. Orme, Van Cott, Bagley, Cornwall Michael L. Larsen, Utah Court of :Appeals & McCarthy Chair, 1992 Mid-Year PROGRAM B-2: PROGRAM A-2: Meeting Primer-Wils & Trusts Primer-CERCLA: Know Your 8:40a.m. KEYNOTE SPEAKER Ethics Steven J. Dixon, Clients' Liabilty and Your First Amendment Shareholder, Nielsen and Richard J. Scott, Partner, Rights Dixon Chapman and Cutler Dominic P. Gentile, 11 :00 a.m. to Spouse Golf Clinic PROGRAMB: Gentile, Porter & Kelesis; 12:00 noon -Sunbrook Golf Course Blood Money and Busted: A and Nevada State Bar 12:20 p.m. Meetings Adjourn Sobering Discussion on the Commissioner 1:15 p.m. Golf Tournament-Sunbrook Issues of Alimony and SPONSORED BY: UTAH ASSOIATION OF Golf Course Bankrptcy in Divorce CRIINAL DEFENSE LAWYRS 2:00 p.m. Tennis Tournament-Green Actions 9:30 a.m. Conflcts: The First Valley Tennis Courts Bert L. Dart, Senior Partner, Amendment, Effective Trapshoot Dart, Adamson and Representation on the Rules of Tournament-Green Valley Kasting; Professional Responsibilty Shooting Range George H. Speciale, Jo Carol Nesset-Sa1e, 6:30 p.m. Social Reception-Holiday Inn Sole Practitioner; Moderator, Associate, SPONSORED BY: PARSONS BEHLE AND Marco B. Kunz, Haley and Sto1ebarger; LATIER Cohne, Rappaport and Wiliam B. Bohling, 7:30 p.m. Mexican Fiesta-Holiday Inn Segal Shareholder, Jones, Waldo, Julie A. Bryan, Holbrook and McDonough; Cohne, Rappaport and Gregory G. Skordas, Saturday, March 14, 1992 Segal Deputy County Attorney, 7:30 a.m. Fun Run-Red Hil/Sugar Loaf SPONSORED BY: THE FAMILY LAW SECTION Salt Lake County Attorneys 8:30 a.m. Registration! 1:00 p.m. Meetings Adjourn Office; Continental Breakfast-Hotel 2:00 p.m. Mountain Biking Tour-Snow Andrew A. Valdez, Lobby Canyon Salt Lake Legal Defenders SPONSORED BY: MICHIE COMPAN SPONSORED BY: SWEN'S SCHWIN CYCLING AND FIESS Association 9:00 a.m. General Session 10:20 a.m. Break-Hotel Lobby Announcements- SPONSORED BY: ROLLINS BURDICK HUR Sabra Rooms OF UTAH, INC. AND CHARTER SUMIT HOSPITAL

31 CLE CALENDAR

BIOREMEDIATION: THE STATE will be of special interest to firm managing well as the opportunity for creditors to chal- OF PRACTICE IN HAZARDOUS parners, executive and management commit- lenge or have an effect on the debtor's choice tee members, deparment and office heads, of chapters, wil be fully explored by the fac- WASTE REMEDIATION executive directors, chief financial officers, ulty. OPERATIONS and all partners concerned with how their CLE Credit: 13 hours A live via satellte seminar. This seminar is firms can be managed more effectively. DATE: Februar 13-14, 1992 being presented by the American Waste CLE Credit: 6.5 hours PLACE: Olympià Hotel, Park City Management Association. DATE: Januar 28,1992 FEE: $495 CLE Credit: 4 hours PLACE: Utah Law & Justice Center TIME: 9:00 a.m. to 5:00 p.m. DATE: Januar 9,1992 FEE: $185 (plus $9.75 MCLE fee) PLACE: Utah Law & Justice Center TIME: 8:00 a.m. to 3:00 p.m. UPDATE: IMPLEMENTATION FEE: $150 (plus $6 MCLE fee) TIME: 10:00 a.m. to 2:00 p.m. OF THE 1990 CLEAN AIR ACT BANKRUPTCY LAW & AMENDEMENTS PRACTICE: THE YEAR 1991 IN BANKRUPTCY WORKSHOP A live via satellte seminar. This is a New Lawyer CLE workshop and REVIEW CLE Credit: 4 hours is open to general registrations on a space A live via satellte seminar. DATE: Februar 27, 1992 available basis. Carolyn Montgomery, the CLE Credit: 4 hours PLACE: Utah Law & Justice Center former Chair of the Bankuptcy Section, wil DATE: Januar 30,1992 FEE: $150 (plus $6 MCLE fee) be making this presentation on basic practice PLACE: Utah Law & Justice Center TIME: 10:00 a,m. to 2:00 p.m. in banptcy. FEE: $150 (plus $6 MCLE fee) CLE Credit: 3 hours TIME: 10:00 a.m. to 2:00 p.m. CORPORATE MERGERS & DATE: January 15, 1992 ACQUISITIONS PLACE: Utah Law & Justice Center HOW TO DIAGNOSE AND Co-sponsored with ALI-ABA FEE: $30 TREAT YOUR BANK OR CLE Credit: Approx. 12 hours TIME: 5:30 to 8:30 p.m, THRIFT CLIENT DATE: March 5-6, 1992 A live via satellite seminar. This program PLACE: Olympia Hotel, Park City FUNDAMENTALS OF THE wil detail proven methods on how to per- FEE: $495 PERSONAL INJURY TRIAL form a due diligence assessment of your cli- TIME: 8:00 a.m. to 5:00 p.m. This seminar wil cover the basics involved ent and how to design an action plan to ad- in a personal injury case. An automobile ac- dress specific problems. The program is de- NON-DISCHARGEABLE DEBTS cident case wil serve as a demonstration case signed for attorneys, accountants, and other A live via satellite seminar. to highlight the elements of the personal in- consultants to financial institutions, bank di- CLE Credit: 6.5 hours jury case. Experts with experience in present- rectors and offcers, as well as the regulators. DATE: March 10, 1992 ing these cases wil bring their experience The issues explored are important for all fi- PLACE: Utah Law & Justice Center and techniques to you in this basic level and nancial institutions, large or small, public or FEE: $185 (plus $9.75 MCLE fee) review course. closely held. TIME: 1000 a.m. to 2:00 p.m. CLE Credit: 4 hours CLE Credit: 6.5 hours DATE: January 17, 1992 DATE: Februar 11, 1992 UTAH STATE BAR 1992 PLACE: Utah Law & Justice Center PLACE: Utah Law & Justice Center MID- YEAR MEETING FEE: $50.00 FEE: $185 (plus $9.75 MCLE fee) Come down to St. George for this excellent TIME: 8:00 a.m. to 12:30 p.m. TIME: 8:00 a.m. to 3:00 p.m. CLE convention: Enjoy the warth of southern Utah while getting a jump on your CLE WINNING STRATEGIES IN THE CIVIL RIGHTS ACT requirements for the next reporting period. PRODUCT LIABILITY CASES OF 1991 Watch for mailings on this program and sign A live via satellite seminar. Here's an op- A live via satellte seminar. up early to ensure your registration. portunity to hear from some of the most ex- CLE Credit: 4 hours CLE Credit: 8 hours (2 in ETHICS) perienced trial lawyers in the countr on han- DATE: February 13, 1992 DATE: March 12-15, 1992 dling product liabilty litigation. This seminar PLACE: Utah Law & Justice Center PLACE: Holiday Inn, St. George II .',1 wil take you from an evaluation of the case FEE: $150 (plus $6 MCLE fee) I all the way through examination of the ex- TIME: 10:00 a.m. to 2:00 p.m. SUCCESSFUL TEAMWORK IN A pert. PRODUCTS LIABILITY CASE CLE Credit: 6.5 hours CONSUMER BANKRUPTCY USING SUPPORT STAFF DATE: January 21, 1992 This course, co-sponsored with ALI-ABA, A live via satellite seminar. PLACE: Utah Law & Justice Center is designed to assist counsel who are not spe- CLE Credit: 6.5 hours FEE: $185 (plus $9.75 MCLE fee) cialists in representing consumer debtors or DATE: March 17, 1992 TIME: 8:00 a.m. to 3:00 p.m. their creditors. The course is structured PLACE: Utah Law & Justice Center around the question of whether a client wil FEE: $185 (plus $9.75 MCLE fee) be better served by filing a chapter 7 liquida- LAW FIRM TIME: 10:00 a.m. to 2:00 p.m. BUSINESS MANAGEMENT tion case or a 13 case and plan. The advan- A live via satellite seminar. This seminar tages and disadvantages of each chapter, as ii I 32 Vol. 5 No.1 PLACE: Utah Law & Justice Center L COUNSELING COMPANIES ONEEO FEE: $185 (plus $9.75 MCLE fee) i A live via satellite seminar. TIME: 10:00 a.m. to 2:00 p.m. CLE Credit: 6.5 hours The DATE: March 24,1992 UNDERSTANDING FINANCIAL PLACE: Utah Law & Justice Center STATEMENTS: ACCOUNTING

FEE: $185 (plus $9.75 MCLE fee) FOR LAWYERS TIME: 10:00 a.m. to 2:00 p.m. A live via satellite seminar. CLE Credit: 4 hours A LAWYER'S GUIDE TO DATE: April 30, 1992 power WHAT'S HAPPENING IN PLACE: Utah Law & Justice Center FRANCHISING FEE: $150 (plus $6 MCLE fee) A live via satellte seminar. TIME: 10:00 a.m. to 2:00 p.m. CLECredit: 6.5 hours DATE: April 7,1992 to PLACE: Utah Law & Justice Center FEE: $185 (plus $9.75 MCLE fee) TIME: 10:00 a.m. to 2:00 p.m. EVIDENTIARY FOUNDATIONS A live via satellite seminar. overcome. CLE Credit: 6.5 hours DATE: Apri18, 1992 PLACE: Utah Law & Justice Center FEE: $185 (plus $9.75 MCLE fee) TIME: 10:00 a.m. to 2:00 p.m. COMPUTER LAW UPDATE ttU~ A live via satellite seminar. CLECredit: 6.5 hours DATE: Apri128, 1992 1------I CLE REGISTRATION FORM

TITLE OF PROGRAM FEE 1. 2.

Make all checks payable to the Utah State Bar/CLE Total Due

Name Phone

Address City, State, ZIP

Bar Number American Express/MasterCardNISA Exp. Date

Signature

Please send in your registration with payment to: Utah State Bar, CLE Deparment, 645 S. 200 E., Salt Lake City, UT 84llL. The Bar and the Continuing Legal Education Deparment are workig with Sections to provide a full complement of live seminars. Watch for future mailngs. Registration and Cancellation Policies: Please register in advance, as registrations are taen on a space-available basis. Those who register at the door are welcome but canot always be guaranteed entrance or materials on the seminar day. If you canot attend a seminar for which you have registered. please contact the Bar as far in advance as possible. No refunds wil be made for live programs unless notification of cancellation is received at least 48 hours in advance. NOTE: It is the responsibilty of each attorney to maintain records of his or her attendance at seminars for purposes of the two-year CLE reporting period required by the Uta Mandatory CLE Board. JanuaryL ______1992______33 ______~ CLASSIFIED, ADS

For information regarding classified ad- reception services, photocopies, - vertising, please contact Leslee Ron at conference-room use and parking. Secre- MISCELLANEOUS 531-9077. tarial, FAX and telex services are avail- TIRED OF LAW? Are you seriously - able, if desired. Call us at (801) 487-7834. interested in an alternative that pays much BOOKS FOR SALE New office space, located in the Moun- more and doesn't have the headaches and LAW BOOKS FOR SALE at greatly tain America Credit Union Building on hassles? Would you like to know of a way reduced price: ALR, 1 st through 4th; 660 South 200 East, Suite 301. Free cov- within the next 3 to 9 months to at least United States Code Annotated; c.J.S. ered parking. Within walking distance of replace and probably exceed your current Contact: Chou Chou Collins 532-1234. the courts. All equipment and staff avail- income and earn money while you sleep? - able as well as possible overfow work Please call RANDY KLIMT (801) 582- OFFICE SHARING/ from the five existing attorneys. For infor- 1728. SPACE AVAILABLE mation, call 532-6200. EXPERT WITNESS: WILLIAM H. Choice office sharing space for rent in ATTRACTIVE OFFICE SPACE DAY, Ph.D., Phone 466-1221. Business ~ AVAILABLE in Union Park area (1200 beautiful, historic building in Ogden, potential, profitability, valuation, competi- East 7000 South) next to the Holiday Spa. Utah. Several offices available. For infor- tion, location, market position-projection, mation, please contact (801) 621-1384. Office sharing with five other attorneys. customer-store patronage profiles, product- ¡ Window and/or interior office is complete KEARNS BUILDING 4-room suite with promotion testing, price evaluation, trade with secretarial and word processing ser- walk-in safes, security system, running opinions, organization. CONSULTING vices or space for your own secretary, re- water. Assume existing lease. This choice EXPERIENCE: aero-space, boats, build- r ception area, copier, telephone. FAX ma- Salt Lake City space is available immedi- ing, clothing, dairy drugs, electronic data, ately. Call 483-5572 or 486-3175. . chine and conference room. Close freeway paint, plastics, petroleum, real estate, sav- \;1 access to all parts of the valley. Please ings & loan, shopping centers, supermar- ~I contact Wynn at (801) 566-3688 or David - kets, et al. ~ at (801) 268-9868. POSITIONS A V AILABLE FREE half-hour of research done for Deluxe office space for one attorney and Small, well-established Salt Lake City you! CLERKS PRO TEM does the ser- ~ secretary. 4212 Highland Drive. Office law firm seeks a lawyer with one to three vices of a law clerk, on your demand, at share with two other attorneys. Space in- years litigation experience. Some bank- your convenience. Research, drafting, cite- ruptcy knowledge would be helpfuL. Sal- cludes two private offces, reception area, checking, Shepardizing, etc.; we take the ~" conference room/library, file storage, and ary negotiable based on background and hassles out of having it done! If you have 'll much more. Convenient parking immedi- experience. Include one writing sample a clerk, call for quick attention to over- ately adjacent to building for both clients with resume. Reply to Utah State Bar, Box load. If you don't have a clerk, we'll do iii~,,: and staff. Call K, 645 South 200 East, Salt Lake City, UT jobs your clients shouldn't have to pay 272-1013. I, Newly finished, deluxe, professional of- 8411 1. your full rates for. We come to your office l~ fice space for two attorneys and staff. Ap- Major southwestern law firm headquar- to get assignments! Call today for FREE proximately 1,300 square feet, 7821 South tered in Phoenix, Arizona seeks 2 to 4 year HALF-HOUR! More time for you, money J 700 East. Space includes two private offic- lawyer with experience in mining, water, savings for your clients! WORK íI es, reception area, conference room, li- and public lands law. General transac- SMART-DELEGATE TO CLERKS brary, file storage, and much more. Con- tional experience helpfuL. Superior aca- PRO TEM, 278-4574! venient parking immediately adjacent to demic credentials required. Candidates INTERNATIONAL CULTURAL EN- ,; building for both clients and staff. Call must be in good standing with their RICHMENT OPPORTUNITY for your 272-1013. present employer. Salary and benefits are child and family. Students with two years Attractive office space is available at competitive with major, regional law study in French, German or Spanish can prime downtown location, in the McIntyre firms. Excellent opportunity for advance- live for 3 to 4 weeks during the summer Building at 68 South Main Street. Single ment. Please contact Nancy Philippi, Stre- with a family in France, the Ivory Coast, t offices complete with reception service, ich Lang, 2100 First Interstate Bank Plaza, Germany or Spain. Excellent opportunity conference room, telephone, FAX ma- Phoenix, AZ 84003. to really learn a foreign language and ex- chine, copier, library and work processing - perience a foreign culture. Total cost, ex- u available. For more information, please POSITION SOUGHT clusive of spending money, is $1600- call (801) 531-8300. Ex-Utah resident practicing in Denver $1800. Program to Russia also available. Conveniently located next door to Bar seeks position in Salt Lake City. Seven- No study of Russian required. AND/OR Office. Ground floor includes 2 private of- and-a-half years commercial litigation ex- be a host family to a foreign student for 3 fices and reception area. Parking and utili- perience, including securities, commodi- to 4 weeks during the summer for a great ties furnished; some furniture optionaL. ties, broker/dealer. Licensed in Utah and experience. Arrangements through 655 South 200 East, 532-1150. Reason- Colorado. Inquiries must be confidentiaL. NACEL, a non-profit foreign exchange or- ably priced. For copy of resume or interview: (303) ganization. Contact David at 268-9868 or Attractive offce and location in Salt 866-9412 work or (303) 423-2518 home. Karma at 261-4121. Lake City with two well-established prac- ,. titioners. $440 per month includes phones,

34 Vol. 5 No,l

1 --- -I

Search 300,000 pages of legal text, save your client money and boost your bottom line in the time it takes to read this sentence.

LegaSearch. The most comprehensive repository

of combined Utah/Federal law available. Anywhere. A fingertip tool designed to A if' H" research volumes of jurisprudence in seconds, using an up-to-date, easy-to-use compact disc. " A traditional "on-line" reference service can cost hundreds of dollars per hour. But LegaSearch is not an on-line system. Rather, it allows you to bill real research time, from your desk, , . I: , at substantially lower rates. Your clients save money as the system pays for itself; then, it goes beyond simply paying for itself, and rapidly becomes a profit center for your firm. LegaSearch. No other research tool can match its breadth, its speed, its savings, or its contribution to your firm's bottom line.

LegaSearch

774 SOUTH 400 EAST' OREM liT 84058 TEL: 801.225.2111 FAX: 801.222.0767 u , li(i I ~ i

I TH n fI I i i CHOiæFoR I i I SUCC i BI I ~ Of the may choice you must

~ ma in your caer, the tols you ii choose to work with are among the II most importt. ~ '. Tht's why more lawyers' II i choose USC tha any other

aIotated fedeialaw sourc.

USC provide the entir u.s.

Coe complete with editorial aids, cunt indexig, legilative hisry and prompt updating. ~ Ma the choiæ for suæs. lE

The United State Co II Anotated". With a tiadition of editorial intety sinæ 1927.

For your fre copy of the ~ "Buyer's Guide to USC', contact

your\\ Saes Represntative, or phone 1-800328-352. ~

/ USCÄ ,j ,'~~,...~. ~,,,,".;0' C-~~...... ::~o: ~~ WEST .,~\I'~\"ic PuBLISHING".' I;.~ I~ ,

:i~r~~Z~f.~i~;;~;¡,~~;.. ,~~:.,~ ",:;",.:,...~.,.., c' '\,~':1991¥(ŠtPu ~'lg~&~ Utah State Bar BULK RATE u.s. POSTAGE 645 South 200 East ~Ji I I i.am Ho I yoak Salt Lake City, Utah 84111 201 South Main Street #1800 Paid ! SALT LAKE CITY, UT P.O. )30:': 1189B .I PERMIT NO. 844 Salt Lake City, UT 841470898 ..