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UtaJii: - UTAH BAR JOURNAL - Published by The Utah State Bar 645 South 200 East Vol. 5 NO.4 April 1992 , Utah 84111 Telephone (80l) 531-9077 Letters ...... 4 President James Z. Davis Commissioner's Report ...... 5 President. Elect by J. Michael Hansen Randy L. Dryer

Executive Director Alternative Dispute Resolution John C. Baldwin Developments in Utah...... 7 by Peter W Bilings, Sr. Board of Bar Commissioners H. James Clegg Denise A. Dragoo Should Utah Consider of Jan Graham Community Property Law? ...... 11 J. Michael Hansen by Timothy Lewis Dennis V. Haslam Gayle F. McKeachnie Paul T. Moxley Judicial Profies Craig M. Snyder Judge Regnal W. Garff...... 15 Jeff R. Thorne by Terry E. Welch Young Lawyers Section President Judge Anne M. Stirba ...... 16 Charlotte L. Miler by Elizabeth Dolan Winter Bar Journal Committee and Editorial Board Views from the Bench

EditOl' The Fifth Anniversary of the Calvin E. Thorpe Utah Court of Appeals ...... 18 by Judge Norman H. Jackson Associate Editors Randall L. Romrell Wiliam D. Holyoak State Bar News...... 22 M. Karlynn Hinman

Articles Editors Case Summaries...... 30 Leland S. McCullough Jr. Glen W. Roberts Legislative Report...... 32 Letters Editor Victoria Kidman The Barrister...... 34

Views from the Bench Classified Ads ...... 35 Judge Michael L. Hutchings Legislative Report Editor Utah Bar Foundation...... 36 John T. Nielsen

Case Summaries Editor CLE Calendar...... 37 Clark R. Nielsen

The Barrister Editors Glinda Ware Langston Mary Jane Woodhead COVER: Mount Timpanogos in Springtime, by Harry Caston, Esq., Shareholder, McKay, Burton & Thurman, P.e. Brad Betebenner Glen A. Cook Members of the Utah Bar who are interested in having their photographs published on the cover of the Utah David Erickson Bar 10umal should Randall L. Romrell, Associate General Counsel, Huntsman Chemical Corporation, 2000 Eagle Gate Tower, Salt Lake City, Utah 841 i 1,532-5200. Send both the slide (or the transparency) and David B. Hartvigsen a print of cach photograph you want to be considered. Artists who are interested in doing ilustrations are also Margaret R. Nelson invited to make themselves known. J. Craig Smith Denver C. Snuffer The Utah Bar 101lmal is published monthly, except July and August, by the Utah State Bar. Oue copy of each Hon. Homer F. Wilkinson issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single copies, $2.50. For information on advertising rates and space reservation, call or write Utah State Bar offices. Staff Leslee A. Ron 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.

April/992 3 b aq ~LETTERS Dear Editor: that time. The many officials involved in addition, I have met all of the necessary I would like to correct some misinfor- the hiring process were aware of my inten- req uirements of residency. A Ii ttle mation which led Bar Commissioner tion to live in Nevada. It should be noted research, or at the least a phone call, could Snyder, in his report published in the Bar that even as a resident of Nevada I was have avoided the dissemination of false Journal, (January, 1992) to question the physically closer to the St. George Court information to my colleagues. qualifications and background of the Court than was either the District Court or the I would like to invite anyone interested Commissioner from the Fifth District. Juvenile Court Judges whom I served. In in observing a fully consolidated court, First, let me address the issue of back- addition, I paid Utah State taxes while a res- which includes a court commissioner, to ground. I am a native of Utah with roots ident of Nevada. visit the Fifth District. We welcome which reach past the pioneers. My degrees In 1990, U.C.A. § 78-3-21 was passed informed constructive criticism. in Sociology and Law were earned with which added a residency requirement to the some distinction at the University of Utah. commissioner rule and allowed two years to Sincerely, My children were raised in Utah where I comply. practiced law for fourteen years. In November, 1991, in anticipation of Marlynn B. Lema In 1988, I was hired and met all of the full-time employment, I moved to St. Fifth District Court Commissioner qualifications of RJ.A. 3-201 in effect at George at considerable personal expense. In

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4 Vol. 5 No.4 í

Too Many Lawyers?

By J. Michael Hansen

Lawyers Becoming Utah's Law of the In contrast to the Salt Lake Tribune In earlyyear winterof law ofschool, 1976, induring the midstmy first of Land." The Tribune, noted that "last year article, on February 4, 1992, The Wall putting in eighteen hour days, TIME mag- the University of Utah cranked out 130 new Street Journal published a chart showing azine ran a cover story the substance of graduates. The 1. Reuben Clark Law School the ratios of attorneys in private practice to which was that America was drowning in at Brigham Law University unleashed 152 the potential "client base." The Wall Street a sea of lawyers and taking American graduates" (emphasis added). The Tribune Journal ranked Utah 37th out of 50 states business down with it. That was just what quoted "statistics", source unknown, which in the number of lawyers in private prac- I needed on the eve of my civil procedure stated that "in 1980 there were 2,938 prac- tice in relation to the potential client base, finaL. The TIME magazine story was not ticing attorneys in Utah - one for every basing that calculation on an American the first, nor was it the last, criticism of the 502 Utahns. Now there are about 5,600 - Bar Foundation report showing 1 Utah number of lawyers. From Shakespeare's one for every 299 Utah residents." lawyer for every 621 "potential clients." comment in Richard III to the effect that John Baldwin, our ever "Johnny-on-the- The national average was 1 lawyer for "first, let's kill all the lawyers," through Spot" Executive Director, after reading the every 473 people. While some undoubt- Brigham Young counseling members of Tribune article, reviewed the records of the edly think that even one lawyer is one too the L.D.S. Church to avoid lawyers and Bar and compiled the following statistics: many, the statistics do not support a con- the legal profession, through TIME maga- clusion that Utah has more than its share Active Licensed Resident Lawyers 3,857 zine and other popular mass media, the of lawyers. Active Licensed Non-Resident There is, however, no doubt that the legal profession has taken its hits. It is Lawyers 371 legal community in Utah is growing. The popular to lambaste lawyers. Politicians of Total Active Licensed Lawyers 4,228 all stripes have intermittently taken a increase in the number of attorneys puts swipe at the legal profession, including the Inactive Licensed Lawyers 345 added pressure on the Bar with respect to recent jabs from "great house, nobody Inactive Licensed Non-Resident both admissions and discipline. While no Lawyers 780 home" Quayle. Like the rising and falling formal study has been undertaken by the Total Inactive Licensed Lawyers 1,125 of the tides, or as surely as day follows Bar, it is the general consensus that the night, we can expect lawyer jokes and Total Active and Inactive Lawyers 5,353 "hungry" lawyer is more prone to skirt the periodic attacks on the legal profession. In short, there were 3,857 active licensed edge when it comes to complying with the On February 6, 1992, on what must resident lawyers in the State of Utah for a profession's ethical standards. have been a very slow news day or an population of approximately 1,750,000 Are there too many lawyers in Utah? attempt to boost circulation, the Salt Lake people, .or 1 attorney for every 454 resi- To the' recent law school graduate who is Tribune ran a front page story (which dents. In 1989 the national average was 360 finding it difficult to be hired by a large would have been more appropriate on the residents per attorney. law firm, the answer may well be "Yes." editorial page), under the headline "More The lawyer who finds himself without a

April 1992 5 job in one of the intermittent law firm shàke-ups may well answer "Yes." Undoubtedly, the unsuccessful litigant in civil action would resoundingly answer The Law-Related Education and Law Day "Yes." On the other hand, the average Committee of the Utah State Bar extends to you a wage earner seeking a lawyer and can find special invitation to attend the second annual Law no one to take his case for less than $50.00 Day Awards Ceremony. This year's theme is "Struggle to $60.00 an hour may feel that if there for Justice" in celebration of the Bicentennial of the were more lawyers in the marketplace, Bil of Rights. There wil be various presentations, there would be more price competition displays, and awards recognizing participants and resulting in more readily affordable legal winners in the various Law Day activities. Please join services. Furthermore, not every law us in celebrating Law Day 1992. school graduate must land a job in private practice. Historically, a law degree has proven invaluable to individuals who, rather than wishing to practice law, desire LAW DAY AWARDS CEREMONY to go into business. Even if it were determined that there were too many lawyers, what could the May 1,1992 Bar do about it? Artificially limit the num- 12:00 Noon ber of applicants able to take the Bar examination? Put pressure on the Univer- Capitol Rotunda sity of Utah or Brigham Young University to close down their law schools? Tell the young people of the State of Utah that if Distinguished Guest: James Madison they desire to go into the legal profession, they need not apply? Clearly none of these alternatives is acceptable. The marketplace itself must regulate the number of attor- neys who practice. All that the Bar can do is to insure that attorneys who practice in Utah have a certain minimal competency and, if ethical violations are found, vigor- ously prosecute the unethical lawyer. The canard that there are too many Jathan W. Janove lawyers wil, from time to time, reappear. When it does, I remember what my torts and professor, Wayne Thode, said in response to the TIME magazine article. He told of a Charlotte 1. Miller meeting he had attended in which the par- ticipants were doctors and lawyers. After listening to one physician speaker bemoan are pleased to announce the legal profession, Professor Thode stood and reminded those in attendance the formation of that at the same time a collection of people had gathered, the great majority of whom were lawyers, to draft the Constitution of the United States, one of the greatest and most enlightened documents in the history JANOVE & MILLER of man, the medical profession was curing disease by the methodical and conscien- 1350 Walker Center tious application of leeches. Enough said. 175 South Main Salt Lake City, Utah 84111 Telephone: (801) 530-0404 Facsimile: (801) 530-0428

6 Vol. 5 NO.4 Alternative Dispute Resolution Developments in Utah

By Peter W. Billings, Sr.

instructs the jury, which then returns a Alternative("ADR") dispute includes resolution a myriad of consensus verdict. The lawyers may ques- ways to resolve disputes as alternatives to tion the jurors about their deliberations litigation, and even some as an adjunct to and verdict. The parties then attempt to litigation. Perhaps the best known is arbi- negotiate a settlement. tration. Arbitration is a dispute resolution Some federal courts have adopted a process that may be ordered by a Court or new ADR phrase - "early neutral evalua- conducted pursuant to the agreement of tion." Under this procedure, a neutral the parties. The arbitrator is a neutral third party, sometimes a specialist in the factual party, who hears both sides of the case, issues, conducts a summary arbitration usually with relaxed rules of evidence and hearing with relaxed rules of evidence and renders a written decision known as an renders an award as in arbitration, which "award." Agreements to arbitrate present award is non-binding but encourages the or future disputes may include such provi- parties to settle or resort to mediation. sions as the locale, the applicable law, the Agreements to resolve disputes by arbi- number and source of arbitrators, such tration, whether existing or future, met procedural rules as the parties may agree with hostile reception in 17th Century English courts. They refused to enforce on, such as the American Arbitration PETER W. BILLINGS, SR., the author such agreements as against public policy. Association Construction Industry Rules of this article, is a 1941 graduate of or the American Arbitration Association Harvard Law School and has been a That doctrine had its origin in the system Commercial Arbitration Rules, and the member of the Salt Lake City law firm of of payment of the English judges. Those binding effect of the award. Fabian & Clendenin since 1946. He is judges did not receive a salary, but only Mediation is a process where an impar- Chairman of the Utah Advisory Council earned fees for cases tried. Thus, those tial third party assists the parties in for the American Arbitration Association judges held that the courts should not be reaching a mutually agreeable resolution and served in 1990-91 as Chairman of ousted of their by an agree- the Access to the Courts Subcommittee of ment between the disputants. to the dispute. Mediators do not make the Utah Commission on Justice for the decisions and have no binding authority. That common law doctrine was carried Twenty-first Century and as Chairman of over to the American courts in the 19th Like arbitration, mediation may come the Supreme Court's special Task Force from an agreement of the parties or as an on the Governance of the Practice of Century and was explained as "any con- adjunct to litigation by Court rule or statu- Law. He is also a member of the United tract tending to wholly oust the court's tory requirement. States District Court for Utah jurisdiction violates the spirit of the laws ADR has also developed other proce- Subcommittee on ADR. The views creating the courts in that it is not compe- dures to promote settlement of disputes expressed in this article, while derived tent for private persons either to increase already in litigation. One is mini-trials. A from those experiences, are his own. or diminish the statutory juridical power." mini-trial is a non-binding process that In a case decided after Congress enacted combines elements of negotiation, media- the Federal Arbitration Act ("FAA") in tion and adjudication. The parties case has been assigned. The neutral advisor, 1925, the Court of Appeals for the Second voluntarily agree to trial their case in sum- in such cases, is usually a judge other than Circuit refelTed to that justification of the mary fashion before a neutral advisor. At the one to whom the case has been assigned hostility to agreements to arbitrate as "quaint" and concluded that by reason of the conclusion of the trial, the advisor for triaL. presents his or her views on the likely out- Another procedure is "summary jury the enactment of the FAA "it is our obli- come of trial and, based upon this proceedings." A summary jury proceeding gation to shake off the old judicial assessment, the parties attempt to negotiate is a non-binding process where counsel hostility to arbitration." a settlement. Mini-trials are frequently make summary presentations of their case The public policy issues had not used in complex litigation matters pur- to a mock jury selected from a regular jury reached the Utah Supreme Court when the suant to an order of the judge to whom the pooL. The trial is conducted by a judge who Utah legislature, in 1927, adopted the then

Apl'ill992 7 -

model arbitration act. It was codified in With the constitutional issues resolved, judicial review, lump sum awards and the 1943 as Sections 104-36-1 et seq. and in the Utah legislature, in 1985, adopted a new inherent privacy of arbitration proceedings 1953 as Sections 78-31- i et seq. That Act model Arbitration Act as Chapter 31a of "rest on suspicion of arbitration as a made agreements to arbitrate existing dis- Title 78. Section 31a-3 of that new statute method of weakening the protections putes "valid and enforceable." The Act reads as follows: afforded in the substantive law would-be made no reference to agreements to arbitrate A written agreement to submit any exist- complainants, and as such, they are far out future disputes. ing or future controversy to arbitration is of step with our current strong endorse- In Johnson v. Brinkerhoff, the Utah valid, enforceable and in-evocable, except ment of the federal statute favoring this Supreme Court in 1936 recognized the upon grounds existing at lawaI' equity to method of resolving disputes." Utah 1927 statute with respect to existing set aside the agreement, or when fraud is The 1985 Utah statute (§§ 78-31a-14 j disputes, but adopted the rule that an alleged as provided in the Utah Rules of and 15) and the Federal Arbitration Act (9 agreement to arbitrate future disputes wil Civil Procedure. U.S.c. §§ 10 and 11) have similar provi- not be enforced by the courts on public In 1986, the legislature repealed the old sions for limited judicial review of an policy and statutory interpretation Chapter 31. arbitrator's award. Under those statutory grounds. Relying on that case, the Utah In 1925 Congress enacted the Federal provisions, a court may only modify or Supreme Court in 1945 declined to Arbitration Act ("FAA") now codified as vacate an award on the limited grounds enforce a labor contract for arbitration of Title 9 of the U.S. Code. Its provisions are specified in the statute. future disputes. Latter v. Holsum Bread similar to the 1927 Act adopted in Utah and In 1983, the United States Supreme Co. In 1965, in Barnhart v. Civil Service amended in 1977, but limit its application Court held the FAA to manifest "a liberal Employees Insurance Co., the court to "a contract evidencing a transaction federal policy favoring arbitration agree- applied the same rule to an insurance con- involving commerce." ments" and that "as a matter of federal tract. The court rejected the argument that law, any doubts concerning the scope of public policy had changed since 1936 and arbitrable issues should be resolved in the statute should be interpreted to include favor of arbitration." agreements to arbitrate future disputes. Following that mandate and the Relying on Article I, Section 11 of the Supreme Court's earlier pronouncement Utah Constitution, the majority opinion "lT)he Federal Arbitration that "arbitrators have no obligation to the stated: Act. . . ha a rocky road as Court to give their reasons for the award," It is thus to be seen that covenants which to what claims were subject the federal courts have generally refused prevent a party from having access to to arbitration. . . " to modify or vacate an award of a lump court runs counter to both the express sum made without any findings or other purpose and the spirit of our system expression of the reasoning behind it. The of justice. basis for such decisions is that requiring The court also stated that binding arbi- such an explication would unjustifiably tration cuts into procedural safeguards For many years the FAA has been undermine the purposes of arbitration - a such as the right to a trial by jury and the applied to contracts in the securities indus- speedy, efficient and low-cost resolution right of review on appeaL. Chief Justice try and more recently has been used in of claims. The Courts have also held, on Henriod and Justice McDonough con- California in contracts between California the same reasoning, that the limited statu- curred in the result, but suggested as had banks and their suppliers, borrowers tory grounds for review do not allow a Justices Wolfe and McDonough in the court to substitute its own judgment for (including guarantors) and other customers. Holsum Bread case that the Utah legisla- The FAA early had a rocky road as to that of the arbitrator and that a party seek- ture, described as "the legislative fountain what claims were subject to arbitration ing to vacate or modify an award may not of wisdom," "take another look at 78-31." under the Act. However, the United States proceed by merely objecting to the result Thirty-two years after the suggestion Supreme Court, beginning the 1980s, of an unexplained lump sum award. was first made in the Holsum Bread case, adopted the concept that the Act manifests a In reaching such results, some courts the Utah legislature, in 1977, amended liberal federal policy favoring arbitration. have reflected the old hostility to arbitra- Section 78-31- 1 to include "any contro- This approach culminated in a 1991 deci- tion by stating that the parties, having versy which may arise in the future." sian in Gilmer v. Interstate/Johnson Lane, agreed to arbitration, should have known In 1981, in Lindon City v. Engineers concluding that most statutory claims are that there was less opportunity for judicial Construction Co., the constitutional attack review of the result than if they had stuck subject to arbitration under an appropriate c Ii on Section 78-31- 1, suggested in the Barn- contract on the basis that "having made the with the old style litigation. In effect, the hart majority opinion of Justice Crockett, bargain to arbitrate, the parties should be price for a low cost, speedy and private came before the court. In a unanimous held to it unless Congress itself has evinced resolution of a dispute is the minimal decision, written by Chief Justice Hall, the an intention to preclude a waiver of judicial opportunity for judicial review of the court held Section 78-31- 1, as amended in remedies for the statutory rights at issue." award. Unless required by the arbitration 1977, to be constitutional under both Sec- In Gilmer the Court noted that such chal- agreement, or applicable statute, experi- tions 7, and 11, of Article I of the Utah lenges to the adequacy of arbitration enced arbitrators do not give any Constitution. procedures are limited discovery, limited explanation for their award, as to do so 8 Vol. 5 No.4 ~ ..

would merely open the award to some sort insurance, real estate and banking busi- the process of final determination of the of attack by the losing party. nesses in Utah. ADR agreements have long dispute, but also promote opportunities for That rationale was expressed in a recent been used in the construction industry and settlement or mediation conferences. decision of the Eleventh Circuit, where the in labor-management collective bargaining Because of the very nature of ADR Court stated that recommitting cases to the contracts. Use of arbitration in commercial programs, the legal profession has been arbitration panel for explanations would disputes in Utah has nearly tripled since the actively involved in Utah. The current "defeat the policy in favor or expeditious American Arbitration Association Salt Lake President of the Utah State Bar, James Z. arbitration. When the parties agree to sub- City office was opened. Davis, has rejuvenated the Bar's ADR mit to arbitration, they also agree to accept There has been an increased interest in committee. Chaired by Hardin A. Whit- whatever reasonable uncertainties might the use of ADR to resolve disputes involv- ney, the committee has established two arise from the process." ing complex factual and legal issues. That subcommittees, one to study and make To date, efforts in the Utah courts by interest has been based, in part, on the pri- recommendations as to the certification or losing parties to an unexplained lump sum vacy aspects of ADR proceedings and the qualification of ADR providers and the award to require the arbitrator to testify more expeditious resolution afforded under other to make recommendations as to about his reasoning for the award or sup- ADR procedures. To meet his need, the Salt ADR referrals by the courts and its imple- plement the award by filing Findings of Lake City Regional Office of the American mentation by appropriate rules of court. Fact and Conclusions of Law or otherwise Arbitration Association has initiated a judi- Active interest of the Utah State Bar in explain to the Court the reasons for the cial arbiter panel to handle such cases ADR was part of the program to construct decision have not gone beyond the district through mediation, settlement conferences the Law and Justice Center in Salt Lake court leveL. In such cases, the American or arbitration procedures. The panel is com- City. Under the leadership of its then Pres- Arbitration Association has sought to pre- posed of former or retired Utah judges and a ident, Stephen H. Anderson, now a judge serve the integrity of the ADR process by former United States bankruptcy judge. The in the United States Court of Appeals for opposing such efforts. program has been developed with the the Tenth Circuit, funds were raised by In 1980, Judge David K. Winder of the advice and assistance of former Utah donations from various charitable founda- United States District Court for Utah Supreme Court Justice D. Frank Wilkins, tions and members of the Bar to finance found that the statutory grounds for vacat- who also serves as a panel member. the construction of the building, which ing an arbitrator's award were basically was designed not only to house offices for the same as a common law, that "a mis- the Bar, but also to provide facilities for take of law or fact is not a basis for ADR proceedings. disturbing an arbitrator's award" and In 1990, the Utah Commission on Justice affirmed an award which read only "There has been an for the Twenty-first Century appointed a "DECISION - this grievance is denied." subcommittee to study ways of improving In 1988, recognizing the increased increased interest in the "access to the courts." That committee interest in alternatives to litigation as a use of ADR to resolve construed its charge to include use of means of resolving disputes, the American I complex) disputes. . . " ADR. The committee's recommendations, Arbitration Association opened an office adopted by the Commission in 1991, in the Law and Justice Center in Salt Lake include: City as a branch of its Denver Regional 1. An experimental program for manda- Office. The American Arbitration Associ- tory court annexed arbitration or ation is a national non-profit organization, One aspect of the delays incident to liti- mediation in health care professional mal- founded in 1926, that provides a variety of gation in court is the discovery efforts of practice actions and malpractice actions alternative dispute resolution ("ADR") both sides. These discovery efforts include involving other professions such as services, including not only arbitration, written interrogatories, requests for produc- lawyers, accountants, architects, engineers but mediation, mini-trials and settlement tion of documents and taking the oral and appraisers. With respect to health care conferences. It conducts educational pro- testimony of potential witnesses. The criti- professionals, that recommendation ante- grams for industry and commerce, cized delays result from the efforts of one dated a similar proposal by the Bush employers and labor, legislators and com- side to overwhelm the other with those administration seeking to reduce the cost munity leaders, and the legal profession. It procedures and the efforts of the other side of medical care. also trains lawyers and the general public to produce as little information as possible. 2. Use of mediation in family law mat- to act as qualified arbitrators or mediators. As a remedy for such delays in arbitra- ters such as custody, , The increase in the use of ADR in Utah tion cases, the American Arbitration alimony and division of marital property. since 1988 has been such that the Salt Association is experimenting with a process 3. Promotion of neighborhood media- Lake City branch has been made a of "mandatory disclosure" whereby each tion programs to resolve-landlord/tenant regional office and its head, Kimberly L. side, under the supervision of the arbitrator, disputes, barking dog complaints, minor Curtis, is now a Regional Vice President discloses to the other the evidence it has. traffic violations and similar controversies of the American Arbitration Association. The sanctions for failure to disclose include rather than resort to litigation. Her educational efforts have promoted use prohibition of using any evidence not dis- In 1988 a special Task Force created by of ADR provisions in contracts in the closed. Such procedures not only speed up the State Judicial Council to study and

April 1992 9 CORPORATION KITS make recommendations as to the use of under court referraL. ADR in the state courts made a similar rec- The Utah plan wil apply to civil cases FOR ommendation with respect to the use of where fact issues predominate over legal UTAH court annexed mediation in domestic issues and do not involve alleged viola- relations matters and the promotion of tions of United States constitutional rights. COMPLETE OUTFIT neighborhood mediation programs. That It would include such government cases as report also recommended that Utah trial suits under the Federal Tort Claims Act. courts implement the use of such ADR pro- Encouraged by the successful use of $49.95 cedures as summary jury proceedings and PRE-PRINTED BY-LAWS & MINUTES ADR provisions in their contracts by the STOCK CERTIFICATES, PRINTED mini-trials to encourage the parties to reach Bank of America and other major Califor- CORPORATE SEAL WITH POUCH a settlement of their dispute at the earliest nia banks, Zions First National Bank in BINDER W/SLIP CASE & INDEX TABS practical stage and not on the eve of triaL. Salt Lake City has recently instituted a SS.4 FORM FOR EIN The Supreme Court's special Task Force similar program. To ensure the favorable S CORPORATION FORMS (2553) on the Governance of the Practice of Law, treatment of ADR agreements under the $ 3.00 ADDITONAL FOR SHIPPING & HANDLING (UPS GROUND). NEX DAY DELIVERY AVAILABLE in its 1991 report to the Court, has recom- FAA, Zions' contractual provisions, like ÖN REQUEST AT SLIGHTLY HIGHER CHARGE. mended that the governing body of the Bar those used in California, provide that the Complete kit wlo pre-printed be charged with the education of its mem- arbitration shall be conducted in accor- By-Laws & Minutes, includes bers on ADR procedures and to promote the dance with the FAA and under the 50 shts. blank bond paper: use of the Law and Justice Center for ADR Commercial Arbitration Rules of the $46.95 plus $3.00 S & H hearings. It has suggested that the use of American Arbitration Association. mandatory dues of Bar members to promote It must be concluded that what was public service programs, such as informa- against public policy in the eyes of the tion about ADR, should be approved by the courts in Utah from 1936 to 1981 is now Supreme Court. an accepted part of our system of justice. The divided views of Utah lawyers with ADR's virtues of expedition, fairness, jus- respect to ADR were disclosed in a 1990 tice, independence and low cost meet the poll of members of the Bar taken by Dan "just, speedy and inexpensive" criteria of Jones & Associates for the Commission on Rule 1 of the Utah Rules of Civil Proce- Justice. That poll showed 41 % favored dure. What must be added are the private mandatory arbitration in certain classes of nature of its procedures and its aim of cases, but 54% opposed such a proposaL. amicable as well as just results. WE SERVE ONLY THE Yet the same group listed cost and delays NORTHWESTI as a major criticism of the judicial system. A contemporaneous Dan Jones poll of ORDER TOLL FREE! "decision-makers" showed 99% favored increased use of ADR and 89% approved PHONE 1-800-874-6570 mandatory arbitration. A similar poll of the FAX 1-800-874-6568 general public taken by Dan Jones showed UTAH STATE BAR ORDERS IN BY 3:00 PM MT 87% in favor of increased use of ADR and 78% favored mandatory arbitration. Eighty- ARE SHIPPED THE SAME DAY. 1992 Annual Meeting ì i WE WILL BILL YOU WITH YOUR six percent (86%) of that group also listed í ORDER. cost and delays as major problems with the f judicial system. l SATISFACTION GUARANTEED! Those polls would indicate that education BUY TEN (10) KITS - GET ONE about use of ADR should be directed to the FREE! NO TIME LIMIT, NO legal profession and that community leaders I STRINGS! and the general public are already con- l t, vinced of the benefit of ADR procedures. '.1 PLEASE I WE MUST HAVE THE FOLLOWING :~ I INFORMATION TO PROCESS YOUR ORDER: The increased interest in ADR is not Exact name of the corporation. ¡ confined to its use in the state judicial f State of incorporation and year. system. Congress, in the Civil Justice Number of shares authorized. ti Par Value or No Par Value & any Reform Act of 1990, directed each U,S. preferred shares. District Court to formulate a plan for guide-

NO EXRA CHARGE FOR SPECIAL CLAUSES lines for litigation management and cost and OR TWO CLASSES OF STOCK delay reduction. In addition, the District of II Utah Federal Court was designated as one SUN VALLEY, IDAHO CORP-KIT NORTHWEST, INC. of ten federal district courts to establish a July, 1-4 Ii 413 E. SECOND SOUTH i i BRIGHAM CITY, UTAH 84302 program for use of voluntary arbitration ,I

10 Vol. 5 No.4 I Should Utah Consider Adoption of Community Property Law?

By Timothy Lewis

except the marital deduction. Currentlycommunity there property are onlystates.1 nine Com- In these circumstances, the order of munity property law has its origins in death would become critical in determin- Spanish law.' This explains why most of ing the estate tax bill for the family. In the states that have adopted it are in the order to understand why this is so, one has west where the Spanish influence was to understand something about the estate most pronounced. tax format. Recently Wisconsin adopted the com- Under current federal estate tax law, munity property form of property law.J every individual is given what is called the Why would a state without Spanish influ- "unified credit" when he or she dies. In ence like Wisconsin make such a change? effect, this credit allows up to $600,000 This article will highlight some of the main worth of property to pass from one's estate advantages of community property law to any heir without incllring federal estate over Utah's current common law approach tax.' In addition to this credit, one is to property law. Perhaps Utah should fol- allowed to transfer on death unlimited low Wisconsin's lead and join neighboring amounts of property to one's spouse with- states Nevada, Idaho, Arizona and New out incllring estate tax. This latter benefit Mexico as a community property state. TIMOTHY B. LEWIS, B.S. Degree in is implemented through the "marital Accounting, cum laude, BYU, 1976 J.D. deduction".6 Since the unified credit can FEDERAL TAXATION Degree, cum laude, BYU, 1979 Bar be used to protect the transfer of property Under the community property con- Memberships: California and 1daho to any heir whereas the marital deduction cept, each spouse is considered the owner Current Position: Associate Professor of can only be used to protect the transfer of Business Southern Utah University of one-half of all income earned by both property to a sllviving spouse, it is com- spouses. Prior to the advent of the joint tax mon estate planning practice to first return filing status, this treatment allowed maximize the use of the unified credit and an obvious benefit to families in commu- community property that should be consid- then use the marital deduction as needed nity property states over those in common ered. To illustrate these benefits, assume the to protect the passage of property that law states. Since families at that time usu- Smiths are a ranching family in Utah with a could not be protected by the unified ally only had one wage earner and tax net worth of $1,200,000. Assume their only credit (i.e. net property values in excess of rates were heavily graduated in natlle, the asset is the ranch itself and the Smiths are a $600,000.) common law family making $30,000 "traditional" family where the husband If Mr. Smith's will incorporates the using just one rate table (if the wife did works the ranch and the wife manages the above-described estate planning strategy, not earn any income. she did not file a home. All of the property is in Mr. Smith's and he dies first, the family should not return) was in a higher marginal tax name and has been accumulated as the fruits incur any estate taxes. Of the estate, bracket than the community property fam- of his individual labors. His income tax $600,000, would probably go into some ily making a similar $30,000 but by filing basis (cost basis plus and/or minus adjust- sort of unified credit shelter trust provid- two separate tax returns, each spouse ments for improvements, depreciation, etc.) ing Mrs. Smith some limited benefits declared only $15,000. in his property is only $100,000. For sim- during her life, and the unconsumed por- Because of this disparity, some states plicity of comparison, assume (I) there is tion thereof would then pass to their converted to community property, but then no difference between the value of his prop- children upon her death. The property in reverted to their original common law erty as a ranch and its best alternative use; this trust would not be included in Mrs. approach after congress changed the tax (2) the Smiths have made no prior taxable Smith's estate when she dies. The balance code to allow the joint filing status." gifts, (3) there are no valuation changes in of Mr. Smith's estate would pass to Mrs. Although the above described tax bene- the assets until some time after the last to Smith estate tax-free through the marital fits were nullified, there remain some die of Mr. and Mrs. Smith, and (4) ignore deduction. On Mrs. Smith's death, the substantial tax benefits associated with all other deductions available on death unconsumed portion of the property pass-

April 1992 11 ..

ing to her from her husband under the adjusted basis in the ranch would be the provides that both halves of the commu- marital deduction will now be included in same as in the first case, namely, nity property get a step-up in basis upon her estate, but there will be no estate taxes $1,200,000. the first death. So regardless of who dies because her own unified credit will protect In contrast to the tax sensitivity associ- first, the surviving spouse's one half com- the transfer from estate taxation. ated with the order of deaths in the common munity property interest gets a step-up in Under Section 1014 of the Internal law states, had the ranch been community basis as does the descendent's one-half Revenue Code, at Mrs. Smith's death, the property, the Smiths' order of deaths would community property interest that passed children would own the ranch at an be inconsequential. Community property into the bypass trust. Thus, in our case, the income tax basis of $1,200,000. This code states also recognize "separate property" ranch's income tax basis would be section generally provides for a step-up in consisting mainly of property acquired prior $ 1 ,200,000 upon the first death allowing basis to fair market value at time of death. to marriage or through gift or inheritance.t the surviving spouse to sell the ranch with- Thus, the children could sell the ranch Separate property would also be tax sensi- out any taxable gain. for $1,200,000 and incur no income tax tive to the order of deaths. What if the Smiths' ranch was only obligation. Were the ranch community property, Mr. worth $200,000, would there still be any So if Mr. Smith dies first, at least from Smith's one-half community property tax advantages to living in a commynity an estate planning standpoint, everything interest would be worth $600,000 and Mrs. property state? Although under this is fine. But if Mrs. Smith dies first, the Smith's one-half community property inter- assumption it would not matter which ending is not so happy. Since she would est would likewise be $600,000. Under this state one lived concerning the ability to not be the recognized owner of any prop- situation, Mr. Smith's will would probably avoid estate taxes (either spouse's unified erty, her estate would be empty and thus avoid giving his interest outright to his wife credit would protect the entire amount), unable to utilize any of her unified credit. on his death but instead place his entire there is stil the potential difference in Although this would not result in any interest in the ranch into a unified credit income tax basis between the first and sec- estate tax at her death, it would cause a shelter bypass trust as described earlier, thus ond deaths. In a community property state, substantial tax bil on Mr. Smith's death. avoiding its inclusion into Mrs. Smith's the surviving spouse would have an On Mr. Smith's death his estate would be estate on her death. He would use his uni- income tax basis of $200,000 in the ranch $1,200,000, but he would be able to use fied credit to protect the transfer from estate regardless of who died first. In a common the unified credit to protect the passage of taxation. Then on Mrs. Smith's death, her law state, only if Mr. Smith died first only $600,000 worth of property free of estate would include only her original one- would we have a similar result. If Mrs. estate tax. Since he has no surviving half community property interest which Smith died first, Mr. Smith's basis in the spouse, he cannot use the marital deduc- would pass estate tax-free to the children by ranch would stil be the original $100,000 tion to protect the rest. This resulting using her own unified credit. basis resulting in a $100,000 taxable gain $600,000 taxable estate would prompt a ($200,000 sales price minus his $100,000 $192,800 federal estate tax bill for the basis) in the event he sold the ranch during children.7 his lifetime. The income tax picture between the What about the modern trend of both first and second deaths would differ sub- ". . . the community propert spouses being in the workforce - would stantially. Under the first case where Mr. these families be on an equivalent estate Smith died first, the portion passing under formt automatically planning level as that provided by commu- the unified credit would get a step-up in basis provides for the maimization nity property states? Assume the Smiths equal to its fair market value (i.e. $600,000).8 of benefit. . . " have always been in the workforce earning The part passing under the marital deduc- about the same amounts from year to year tion would also get a stepped-up basis (i.e. with each owning $250,000 worth of prop- $600,000).9 So Mrs. Smith's adjusted basis erty with income tax bases of $60,000 for the ranch would be $1,200,000. Were each. Although the order of deaths will not she to sell the ranch during this interim Since each spouse would own a one-half make any difference in being able to avoid period she would report to taxable gain vested interest in the ranch and Mrs. all estate taxes (either spouse's unified ($ 1 ,200,000 minus the $ 1,200,000 Smith's wil would contain dispositive pro- credit could protect the combined estates), adjusted basis equals zero gain). visions identical to Mr. Smith's, the order community property states still provide In contrast to this, under the second i of deaths would be irrelevant in determining their residents an advantage over common case where Mrs. Smith dies first, since she estate taxation. Despite who dies first, no law states when it comes to the income tax I I owned no propertylO at her death, no step- estate taxes would result (again assuming basis between the first and second deaths. rl i up in basis occurs at that point. Were Mr. no combined appreciation above the Had the Smiths owned their properties Smith to sell the ranch before his death, he $1,200,000 value). as community property, regardless of would have a $1,100,000 ($1,200,000 Concerning the income tax basis of the which spouse died first, the income tax minus the $100,000 adjusted basis) tax- property after the first death, the community basis in the property between the first and able gain to deal with. In this latter case property format automatically provides for second death would be $500,000 allowing however, were Mr. Smith to hold the the maximization of benefit regardless of sales without any income tax gain between ranch until hi s death, the chi Idren' s the order of deaths. Section 1014 ((b) (6) the first and second deaths. In a common

12 Vol. 5 No.4 law state like ours, regardless of the order death.12 In the setting she would CONCLUSION of deaths, the income tax basis in the prop- have a right to an equitable property settle- It is hoped that this article wil generate erty between the first and second deaths mentl3 (probably around one-half) which in discussion within the legal community would be only $310,000 resulting in a effect puts an economic price tag on her concerning the desirability of making a $190,000 taxable gain were the properties past contributions to the marriage. When substantive change in our property law. I to be sold between the first and second her husband dies, even if he tried to disin- have only considered the fairness issue deaths. This $310,000 basis would result herit her, she would have a statutorily and a few tax issues. There may be other from the fact that the decedent's property protected elective share against his estate important considerations that I have not ($250,000) would get a step-up in basis amounting to at least one-half of the discussed. I am in favor of Utah joining its while the surviving spouse's basis in his or whole.14 Again this implicitly recognizes the neighbors to the North, West and South as her own property would remain the same value of her non-economic contributions to a community property state, but would ($60,000). the mariage. like to hear the opinions of other interested So even relatively small estates and So in the divorce and survival settings, parties. Members of the Bar should always families with two earng spouses could ben- her interests are protected, but there may be be seeking to examine our laws and ways efit taxwise from community property law. other settings where she has legitimate to make them better serve the needs of the interests to protect but no legal means of people, ADVANTAGE OF FAIRNESS doing so. Take for example the situation I believe the community property law is where the wife brings step-children into the BIBLIOGRAPHY fundamentally more fair than the common current marriage. If she went through life 1 Arizona, California, Idaho, Louisiana, Nevada, New Mex- law approach to property rights. Husbands never divorcing her current husband and ico, Texas, Washington and Wisconsin. WARDLE ET AL., CONTEMPORARY FAMILY LAW SEC. 30.01 (1988). and wives have common family goals the was unlucky enough to be the first one to 2Id. at Sec. 31.01; Scott Greene, Comparison ofthe Property realization of which usually requires the die, there is no way she could guarantee the Aspects of the Community Property and Common-Law Mari- assumption of differing roles and duties. continued economic well-being of her chil- tal Property Systems and Their Relative Compatibilty with In the traditional family setting, the hus- dren from the prior marriage. Her former the Current View of the Marriage Relationship and the band worked outside the home to provide Rights of Women, 13 Creighton L. Rev. 71, 74. husband may have some residual child sup- 3Wisconsin Marital Property Act, Wis. Stat. Sec. 766.31. the funds needed to support the family port obligations but beyond that is free to 4These included Hawaii, Michigan. Nebraska, Oklahoma, while the wife stayed home and managed totally disinherit his children. Maybe she Oregon and Pennsylvania. Greene, supra note 2, at 71. it and the children. Although a modern stil has something left from any property 5I.R.C. Sections 2001 and 2010 (1988). trend has developed where both spouses settlement she obtained from that divorce 6I.R.C. Sections 2056 and 2523 (1988). work outside the home, whatever the which she can direct toward these children 7I.R.C. Sec. 2001 (1988). respective roles of the spouses are, each but on the other hand maybe her former 8I.R.C. Sec.IOI4 (1988); BORIS BITKER, FEDERAL spouse's efforts on behalf of the family are husband never accumulated enough prop- TAXATION OF INCOME, ESTATES AND GIFTS, PARA. considered necessary and basically co- erty during their marriage to produce a 41.4.4 (1981). 9I.R.C. Sec. 1014 (b) (9) (1988); BORIS, supra note 7. equal in importance. meaningful property settlement. Her current IOWARDLE, supra note 1; Greene, supra note 2, at 87, 111. The advantage of the community prop- husband is likewise free to totally disinherit II WARDLE, supra note i; Greene, supra note 2, at 72. erty form of property ownership is that it his step-children. In fact, unless he specifi- 12Greene, supra note 2, at 111. implicitly recognizes the co-equivalency cally provides for them in his wil or 13Mortensen v:Mortensen, 760 P.2d 304, 308 (1988). of the differing famly roles by automati- otherwise, our state intestacy laws automati- cally granting each spouse a vested cally disinherit step-children.I5 Since she 14U.C.A. Sec. 75-2-102 ( ). 16 any attempt to 15u.C.A Sec. 75-2-103 ( ). one-half interest in the wealth accumula- owns no property herself tions resulting from the spousal team provide for these children through her own 16W ARDLE, supra note 1; Greene, supra note 2, at 87, 111. efforts during marriage. Even if a wife for wil would be useless. 17 Greene, supra note 2, at 73. example does not earn a dime outside the In contrast to this situation, were she and home, she owns one-half of her husband's her current husband are continual residents earnings and property acquisitions after of a community property state, she would marriage in recognition of her non- have a vested one-half interest in all of her economic contributions to the family's current husband's earnings during marriage welfare. and all property acquisitions related Assume again the "traditional" family thereto.17 This would give her dispositive where the husband earns all of the income power over this one-half interest which she and owns all of the property. Do our cur- could effectively direct through her will to rent divorce and inheritance laws provide for these children without having to adequately protect the non-owner wife's rely upon the good graces of husbands past rights? I do not think so. and present. Under our current body of law, the non- owner wife would only have power to control some of her husband's property by either divorcing him or surviving his

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Profile of Honorable Regnal W. Garff

By Terry E. Welch BACKGROUND VIEWS OF LEGAL SYSTEM Judge Garff graduated from the Univer- Judge Garff believes that Utah's juve- sity of Utah with a degree in psychology. nile court system currently is among the He then served a mission to Holland for finest in the country in terms of reputation, the L.D.S. Church. Upon his return he philosophy, and its treatment and rehabili- deliberated on possible career directions tation of juveniles. When Garff left the and concluded that there was a need for juvenile court in 1987, the recidivism rate juvenile court judges with a background in for juveniles who had been through the behavioral sciences. Thus, rather than system in Utah was 30%, as compared deciding he wanted to go to law school to with a 70% recidivism rate nationally. practice law, and later become a judge As for the Utah Court of Appeals, when and if the opportunity arose, Garff Judge Garff is quite proud of its accom- determined that he wanted to become a plishments since its inception in 1987. His juvenile court judge and therefore that he pride is both understandable and war- . should go to law schooL. "The system ranted. When it was created, the Court of simply needed some change," Garff states. Appeals was given 500 cases immediately. Change has always followed Judge At that time, the expected period for a Garff. After law school, Garff obtained a decision from the Utah Supreme Court graduate certificate in social work and Honorable Regnal W. Gwff was 3-5 years. The new judges on the practiced law with Frank Matheson, cur- Utah Court of Appeals Court of Appeals set a goal to have a one- rently a juvenile court judge in the Third year turnaround average within four years. Appointed: 1987, after more than 27 years on the District, under the firm name of Matheson juvenile court bench. Presiding judge of Within 3 1/2 years of its creation, the aver- and Garff. He also served as an intern to Utah Court of Appeals from its incep- age wait for a decision from the Court of Judge Rulon Clark at the juvenile court in tion in 1987until January 1, 1989. Appeals - from filing to final decision - Law Degree: University of Utah, 1955. Salt Lake City. Four years later, at age 31, Law Related Private practice in Salt Lake City for was a mere nine months for criminal Judge Clark retired and Judge Garff was Activities: four years: Adjunct Professor, Univer- cases, and eleven months for civil cases. appointed as his replacement in 1959. At sity of Utah, College of Law. Appellate Last year, the turnaround had improved to Court Judge of Year 1989; Outstanding that time, the juvenile court was adminis- Judge of Year, July 1976; Honorary eight months for criminal, and nine tered by the State Welfare Commission Member, Order of the Coif, 1978; months for civil cases. Garff attributes under the control of the Executive Branch. Member, National Council of Juvenile much of the court's success to the dedica- and Family Court Judges; Faculty, It was obvious that the system was drasti- Institute for Court Management, tion and hard work of its seven judges and cally wrong and needed change. Garff Denver, Colorado; Judicial Article staff members. Each judge on the court, he resolved to assist in bringing about such Revision Task Force. states assuredly, is professional and dedi- change. After much work and active cam- cated. In addition, while they often paigning by the Utah State Bar, the disagree - all of the judges get along. College of Law and others, the juvenile treatment programs. In addition, there has Most, if not all, disagreements concerning court eventually was "emancipated" from been a dramatic change in the development particular cases are discussed openly in the Welfare Commission with the passage of constitutional safeguards for children in each judge's office long before written of the 1965 Juvenile Court Act, and the the juvenile court. dissents are circulated. Such an "open- court became a part of the Judicial Branch. Judge Garff was a member of the Task door" policy among all of the judges I Garff spent nearly 28 years as a juvenile Force in the Revision of Utah's Judicial faci i i tates the court's efficient track court judge. He found the opportunity to Article that recommended creation of the record. Garff states that "communica- work with the community in developing Utah Court of Appeals. Gartf - once again tion is great, but the judges are totally beckoning change - was appointed from treatment resources for juvenile offenders independent." i among the most rewarding aspects of that the juvenile court directly to the newly cre- Judge Garff thoroughly enjoys interac- job. Judge Garff particularly is proud of ated appellate court in 1987, and served as tion with his clerks and other judges. the direction the juvenile justice system its presiding judge from inception until Discussing the issues and theories of a has followed, moving away from institu- January, 1989. tionalization and toward community based continued on page 17

April 1992 15 Profile of Judge Anne M. Stirba

By Elizabeth Dolan Winter

BACKGROUND ages people to focus on the issues that wil Judge Stirba was a philosophy major at lead to resolving their problem. Particu- the College of Wooster in Wooster, Ohio, larly in cases, Stirba when she heard the law calling her name. thinks there is often better compliance if Actually, she and her husband graduated people feel like they have participated in from college during the Watergate hear- the decision affecting their case. ings, and real life in the working world did not look so great. Judge Stirba decided to STRA TEGY FOR SUCCESS go to law school parly, she says, "to put BEFORE JUDGE STIRBA off deciding what I wanted to be when I If you think it takes a few years before grew up." Sounds familiar. judges decide what they like and what Judge Stirba did join the "real world" they don't like in the way lawyers practice of law by clerking for the Utah Supreme before them, you're wrong. Judge Stirba is Court with Justice Stewart. She says she very specific about some issues, so pay learned from that experience to appreciate attention. good written work and effective advocacy, Judge Stirba places great importance on and saw what a difference those strengths starting on time. Because of the sheer make to the court. number of cases before her, if a lawyer is Stirba's legal practice before coming Judge Anne M. Stirba late, it impacts every other item scheduled on the bench was very diverse. She prac- Third District Court for that day. ticed natural resources law as an Assistant Next, never file a notice of withdrawal Appointed: March 1991, Governor Norman Attorney General working with Richard Bangerter if there is a motion pending or certification Dewsnup and Dalln Jensen, Utah's first Law Degree: University of Utah, 1978 of readiness for trial filed. Judge Stirba is and second Solicitor Generals, respec- Experience: Assistant Attorney General, 1980-86; sensitive to the fact that once attorneys get Judge, 1986-87; tively. Later on at the Attorney General's Assistant U.S. Attorney, 1986-91. involved in a case they may want to with- Office Judge Stirba represented the Utah Law Related Member of Masters Bench, American draw for a variety of reasons, including Energy Office in extensive "co-genera- Activities: Inns of Court, 1991 to present; Council because of a non-paying client. The prob- on U.s. Constitution and Bil of Rights, tion" hearings involving predicting 1988-91; Outstanding Yonng Lawyer lem, she says, is that Rule 4-506 capacity needs for the generation of power ofthe Year, 1987; First woman elected specifically precludes attorneys from with- to supply future power demand needs, and to the Utah State Bar Commission, drawing when "(a) a motion has been filed then determining how much public utili- 1984-90. and is pending before the Court, or (b) a ties should pay non-traditional energy certificate of readiness for trial has been producers for services they could provide VIEWS OF THE filed" except upon motion and order of the at some future date. She enjoyed this, LEGAL PROFESSION court. If attorneys do not follow Rule 4- Really. At the conclusion of these hearings Judge Stirba believes that while our 506, considerable confusion, delay and the Public Service Commission invited judicial system works well, problems in it unnecessary expense can result. Stirba to become an Administrative Law exist that need to be handled better. She Judge Stirba says that attorneys also Judge for the PSC, where she had the emphasizes that at least with our current need to be aware of the substantial opportunity, again, of seeing legal practice court system, "people can settle disputes changes to Rule 65A of the Utah Rules of with a view from the bench. in a civilized manner without resorting to Civil Procedure, the rule dealing with tem- Four years prior to her appointment to fighting in the streets." She places some porary restraining orders. This rule was the District Court, Judge Stirba worked as responsibility of the staggering costs of lit- substantially changed effective September an Assistant United States Attorney in the igation on modern discovery practices 1, 1991. She says tral judges receive fre- Department of Justice where she defended which generate tremendous paperwork but quent requests for TRO's, and many of medical malpractice cases; tried cases do not focus on the issues that are truly in those requests are denied because the involving the Federal Tort Claims Act; dispute. She favors, for example, more lawyer fails to follow the requirements of and prosecuted civil forfeitures of ilegally specific limits on discovery, i.e., a limit on the rule. gained assets, criminal matters, among the number of interrogatories paries may Judge Stirba enjoys motion hearings other things. She says she loved being in send and the number of documents and reads all memoranda before each the courtroom - she knew she wanted to requests in our civil rules of procedure. hearing. She says she tends to select areas be a trial judge so she could be involved in Stirba strongly supports mediation. that most concern her about the motion the "most exciting part of the case," which Supervised mediation, she notes, encour- is the litigation in court. continued on page 17

16 Vol. 5 No.4 continued from page 15 TIPS FOR SUCCESS OUTSIDE INTERESTS BEFORE JUDGE GARFF- Judge Garff normally begins each day

particular case can be stimulating and COURT OF APPEALS with 30 minutes of aerobic exercise at enjoyable. He states that had anyone told . BE PREPARD. Know the rules, includ- approximately 6:00 a.m. During oral argu- him prior to becoming an appellate judge ing procedural, evidence and appellate. ments, he often reads briefs late into the that he would enjoy doing the requisite . FOCUS on principal issues, simplify night and early in the morning - leaving homework as much as he does, he would others where possible. Don't create a little time for other activities. When he not have believed it. "smoke screen" by snowing the other finds time, Garff enjoys tennis and golf. While Judge Garff believes our adver- side, or the court, with paper. He enjoys gardening, as he states, "Mostly sary system is a good one, he notes that . Don't spend too much time reviewing when it's done and I can see the end many issues could be resolved more effi- facts. Argue law and legal theories. result." Garff also enjoys doing construc- ciently - and just as effectively - Argue policy when there is no clear law tion or remodeling work with its through other methods. He believes we in Utah. accompanying sense of accomplishment. must continue to think creatively about . RESPOND to questions. Garff reads a lot, both for enjoyment and alternative dispute resolution options and . Concede weak arguments and move on. to get his mind off work. He often reads utilize them where feasible. Whatever . NEVER MISREPRESENT facts, law, during lunch, and likes such authors as means are available to allow the parties to or proceedings below. Robert Ludlum, Tony Hilerman, and resolve the problem in an acceptable man- . KNOW TH STANAR OF REVIW. James Mitchener. ner up front - and then move on - It is usually more complex than simply should be pursued. "a question oflaw" (no deference) or a "question of fact" (limited review).

continued from page 16 OUTSIDE INTERESTS against you in a court of law, and you Judge Stirba likes to ski, play tennis and have the right to have your mother present and directs the parties to focus on those ride horses. Judge Stirba is maried to Peter at all stages of the proceeding . . ." concerns. When she does that, lawyers can Stirba, who is himself a litigator with Stirba Judge Stirba sees the strains of lawyers save time by not having to start from the & Hathaway. They have two daughters, 6 overworking themselves. She says that very beginning and go through a full fac- and 10 years old, respectively. Judge Stirba while it is difficult for lawyers to get off tual recitation. recently wondered whether there might be a the daily treadmill, it is essential to health Stirba appreciates lawyers who are tad too much dinner table discussion about that lawyers take care of their physical and "resolution oriented." From time to time legal matters when her 6 year old put Judge emotional well-being. She encourages she discourages continuances by requiring Stirba "under arest," and proceeded to read lawyers to achieve a healthy balance in clients themselves to sign a request for a Stirba her Miranda rights. "You have the their lives. continuance, right to remain silent," her daughter said, Judge Stirba's dedication to public "anything you say can and may be used service is obvious.

Mark Your Calendars Now for the UTAH STATE BAR ~ 1992 Annual Meeting

SUN VALLEY, IDAHO July 1-4 Hope to see you in Sun Valley!

April 1992 17 11

II

., II

Ii II

Î

The Fifth Anniversary of the Utah Court of Appeals

By Norman H. Jackson

NORMAN H. JACKSON was appointed jurisdictional model because the Supreme In 1984,a revision the citizensof the judicial of Utah article approved of the to the Utah Court of Appeals in 1987 by Court has discretion to transfer cases to Utah Constitution, taking the first step Gov. Norman H. Bangerter. He graduated the Court of Appeals and to issue writs of from the University of Utah School of Law certiorari to review Court of Appeals deci- toward initiating a State Court of Appeals. and was a practicing attorney for twenty- Governor Norman H. Bangerter then sions. In addition, the Court of Appeals can five years. He has Masters and Bachelors transfer cases to the Supreme Court on its appointed a task force on the judicial arti- Degrees in Economics from BYU. cle to identify major problems facing the Formerly, he served on the Utah State own motion by a majority vote of the judges. judiciary and to recommend solutions. The Bar Commission, Utah Legal Services The seven judges of the Court of task force identified three major areas Board, Board of Visitors J. Reuben Clark Appeals hear cases in panels of three demanding action: 1) burden of appellate School of Law, and the Utah Air Travel judges. One judge is assigned to chair delay; 2) lack of multi-judge review of cir- Commission. Presently, he serves on the each panel and one is assigned to author Board of Appellate Judges, as President of the opinion. A total of thirty-five different , i cuit court decisions; and 3) organization I ~ and operation of judicial administration. In American 1nn of Court 1 and as President of panel configurations is possible. At three- response to the first two problems above, the Utah Bar Foundation. month intervals, panels are reconfigured the task force decided to create a Court of by random computer assignment. The Appeals. They considered three alterna- judges cannot hear any cases en banco tives to a Court of Appeals: 1) expanding studies suggest that appellate courts are When inconsistent panel decisions occur, the Utah Supreme Court; 2) expanding the only a "temporary solution" to appellate the Supreme Couit may resolve the inconsis- -.~ Supreme Court to sit in panels; or 3) creat- backlog. But, wisely, the task force recom- tencies. Judges also take turns sitting on the ,I! ing an "appellate" division of district mended creation of a hybrid model which law and motion panel in six-month intervals. ii has proved to be successful in managing the courts comprised of panels of district Governor Bangerter was required to ii judges. After considering the alternatives, appellate case load of the state. appoint the seven members of the new I~ I the task force favored creation of the As a hybrid, the Utah Court of Appeals Court of Appeals simultaneously. Accord- Court of Appeals. Utah thus became the is neither a pure pour-over jurisdictional ingly, the nominating commission was thirty-seventh state to create an intermedi- model nor a pure specified jurisdiction required to send the names of twenty-one ate appellate court. modeL. It is not a pure pour-over jurisdiction nominees to the Governor (three for each The growing popularity of appellate model because the Supreme Court and vacancy). In the final months of 1986, courts does not mean that they are a Court of Appeals each has specified juris- Governor Bangerter appointed Russell W. panacea for all appellate ils. In fact, some diction. Nor is it a pure specified Bench, Supreme Court staff attorney;

18 Vol. 5 No.4 Judith J. Bilings, Third District Judge; all the justices of the Utah Supreme Court Writs of Certiorari from the Court of Richard C. Davidson, Seventh District and all the judges of the Court of Appeals. Appeals as follows: Judge; Regnal W. Garff, Third District The Board meets four times annually to Writs fied: 32 46 68 96 62 Juvenile Judge; Pamela T. Greenwood, administer the appellate case load of the Writs granted: 5 8 19 20 5 General Counsel First Interstate Bank; state, maintain a proper balance of cases The Court of Appeals has decided a num- Norman H. Jackson, senior partner, Jack- handled at each court, and consider legisla- ber of issues of first impression in Utah, son, Mclff & Mower; and Gregory K. tive initiatives, budgeting matters, and other including: + Orme, partner, VanCott, Bagley, Cornwall issues of common concern, At the present Whether a professional degree is & McCarthy, to be the founding judges of time, through appellate court direct jurisdic- marital property;5 the new Court. The judges met early in tion and Supreme Court pour-over Whether a pretext vehicle stop is December and elected Regnal W. Garff as jurisdiction, the Utah Court of Appeals can unconstitutional;6 the first Presiding Judge, Richard C. receive and dispose of virtually all types of Whether conditional pleas are available Davidson as the Associate Presiding cases except those involving capital murder. in criminal cases;? Judge, and Gregory K. Orme as the Additionally, as recusals occur on cases at Whether a roadblock stop is an uncon- Court's representative on the Utah Judicial the Supreme Court, judges from the Court stitutional seizure;8 CounciL. At ceremonies in the capitol of Appeals take turns sitting as replace- Whether a nude painting on a sheet vio- building rotunda on January 17, 1987, ments. On one occasion, all five Supreme lates an obscenity ordinance;9 each of the judges took the Oath of Office Court justices recused and five judges from Whether due process requires a local and responded with brief remarks. the Court of Appeals heard the case" In administrative body to consider legal On January 28, 1987, Judges Norman 1990, the Board appointed an executive issues raised by a party in a fact-finding H. Jackson and Russell W. Bench con- committee to provide an ongoing liaison hearing;lO and ducted the Court's first hearing, which between the appellate courts, to provide Whether the Utah Dramshop Act involved a stay of imprisonment while a interim direction between meetings, and to applies in a noncommercial social setting. ii criminal defendant pursued an appeaL. i On prepare meeting agendas. The present mem- When the Court of Appeals was cre- February 3, 1987, the Court officially bers of the Executive Committee of the ated, the Utah Supreme Court had a opened its doors on the fourth floor of the Board are: Justices Christine M. Durham, backlog of about 1,000 cases, of which Midtown Office Plaza at 230 South 500 Richard C. Howe, 1. Daniel Stewart, and about 500 were poured over to the Court East in Salt Lake City. Tim Shea served as Judges Russell W. Bench, Judith M. of Appeals during 1987. The initial goal the first Clerk of the Court and was suc- Bilings, and Regnal W. Garff. for the Court of Appeals was to dispose of ceeded by Mary T. Noonan on July 4, Presiding Judge Richard C. Davidson those cases in two years. The Court was 1988. The staff consisted of two staff resigned from the Court in August of 1990, able to work through them in eighteen attorneys, three deputy clerks, three secre- creating a vacancy that was not filed for months. In 1986, before the Court of tares, and seven law clerks. The first oral four months. Thus, during the last one-third Appeals was created, cases could have argument calendar of the Court was heard of 1990, the Court functioned with only six remained pending at the Supreme Court in March of 1987. A dedication ceremony judges. Governor Bangerter appointed Third for up to seven years. Currently, the aver- was held in the new Court of Appeals District Judge Leonard H. Russon to fil the age time for dispositions at the Supreme courtroom on May 1, 1987, followed by vacancy. He assumed his position on Court is fourteen months, At the Court of an open house with Court tours and December 26, 1990. Presently, Russell W. Appeals, civil cases are being handled in refreshments. Bench is serving as Presiding Judge with eleven months and criminal cases in nine Although the Court of Appeals is head- Judith M. Bilings as Associate Presiding months. Since the initial goal of the Court quartered in Salt Lake City, it has Judge. The Court has received outside assis- of Appeals was to dispose of appeals statutory authorization to hear cases on tance from numerous sources. Several within one year, the judges are pleased to circuit throughout Utah. The Court's pol- senior state judges have served on panels of have exceeded that goal. icy is to schedule four circuit court the Court. In addition, third-year law stu- hearings annually in four geographic areas dents from the University of Utah School of 1City of Wesl Jordan v. Robert Newton, No. 870031 (Utah App. Jan. 28, 1987). of Utah.2 The first circuit was held in Law and first-year law students from the J. 2See generally State v. Hagen, 802 P.2d 745, 746 n.1 (Utah Richfield on June 26, 1987. The panel was Reuben Clark School of Law have provided App. 1990), cert. granied, 815 P.2d 241 (Utah 1991). f composed of Judges Norman H. Jackson intern and extern service. In 1991, the Utah 3Utah Code Ann. §§ 78-2a-1 to 78-2a-5 (1986). as chair, Russell W. Bench, and Gregory Legislature approved funding for a second 4ln re Pace McConkie, No. 870416 (Utah Feb. 11, 1988). K. Orme, with Annina Mitchell as court- law clerk for each judge. Those clerks came 5peiersen v. Petersen, 737 P.2d 237 (Utah App. 1987). 6Siate v. Sierra, 754 P.2d 972 (Utah App. 1988). room clerk. The Supreme Court initially on board in January of 1992. transferred 364 cases to the Court of During the past five years, the Court of 7State v. Sery, 758 P.2d 935 (Utah App. 1988). 8Staie v. Sims, 808 P.2d 141 (Utah App.), cert. denied, 171 Appeals. New filings and additional trans- Appeals has received and disposed of the Utah Adv. Rep. 67 (Utah 1991). fers provided the Court with 582 cases by following number of cases: 9City of St. George v. Turner, 813 P.2d 118 (Utah App.), June 1, 1987. 1987 1988 1989 1990 1991 cert. granted, 171 Utah Adv. Rep. 67 (Utah 1991). The statute which created the Court New appeals filed 636 716 764 629 753 IOTa/man v. Sal! Lake County Attorney, 818 P.2d 23 (Utah App.1991). also created a Board of Appellate Judges.' Total dispositions 541 611 785 691 725 11Sneddon v. Graham, 175 Utah Adv. Rep. 13 (Utah App. The membership of the Board consists of The Utah Supreme Court has acted upon 1991).

April 1992 19 People and Sights at tllte Mid-Year Meeting, St. George

~

~,

Photos By: Patricia Thorpe Paula Carr Joann Florence STATE BAR NEWS I

purposes of Bar Examination special according to Rule XII (e). The Board Commission accommodations and agreed to resolve considered the Respondent's Motion Highlights the issue at next month's meeting. To to Strike, denied the same and ordered supplement discussion, Jim Davis the respondent to file a responsive During a special meeting on January 10, requested the Admissions Administrator pleading within 10 (ten) days. The 1992, the Board of Bar Commissioners to research other bar and Rule XII (e) motion will be decided on received the following reports and took distribute all pertinent background infor- February 20, 1992. the actions indicated. mation to Commissioners well before the 14. Trost reported that the renewal 1. Darla Murphy, Admissions Administra- February meeting to allow sufficient application for the Bar's errors and tor, reported that on November 27,1991, review time. omissions insurance coverage has been the Admissions Committee, consisting 4. The Board reviewed, item by item, its completed and filed. of Curtis Nesset, Tom Billngs, Bar position on the Final report of the Utah 15. Trost also reported that the real propeity Examiners Review Committee Chair, Supreme Court Task Force on the Man- taxes were paid under protest on Jan- and Ellott Wiliams, Character & Fit- agement and Regulation of the Practice uary 14, 1992, and just recently a ness Committee Chair, reviewed seven of Law. response has been received on the Bar's July Bar Examination appeal petitions. 5. Davis reported that the Bar has put exemption petition request; there is a She distributed proposed Findings of together a ten-year budget projection very good chance that 25 percent of Fact and Recommendations. The Board with assumptions based on expenses the taxes paid as well as penalties voted to adopt the Findings of Facts increasing 5% per year and revenue stay- could be recouped. Bar Counsel hopes and Conclusions of the Admissions ing the same. to have a final accounting by next Committee and deny all petitions. 6. John Baldwin was asked to explore orga- meeting. 2. The Board reviewed the Court Reorga- nizations or persons who could provide 16. A Bar examination applicant's attorney nization Bill Legislation. David Bird, long-term planning assistance. Baldwin appeared before the Board to request a Legislative Affairs Committee Chair, planned to do some preliminary investi- hearing for his client before the full Bil Bohling, Tim Shea of the Court gating during the upcoming ABA Dallas Commssion and to explain his position. Administrator's Office, Judge Michael meeting. The Board also asked Baldwin 17. The Board voted to grant a hearing to Murphy, and Hal Christensen appeared. to propose a strategic plan for appointing the petitioner to comply with the order 3. The Board voted to accept the Legisla- a long-range planning committee, cost of the court. tive Affairs Committee's recommenda- projections, and how we do it. 18. The Board voted to reject a bar appli- tion to endorse the Court Reorganization 7. Miler, on behalf of the Diversity in the cant's petition to waive his MPRE and bill subject to redrafting to reflect the Legal Profession Committee of the MBE requirement. intent of Utah Code Annotated 78-3-29 Young Lawyers Section, requested Board A full text of the minutes of these and 6(c) (i) et seq., and that David Bird, approval to solicit funds from law firms, other meetings of the Bar Commission is Mike Hansen and Jim Davis should especially domestic relations firms, for available for inspection at the office of the review the final draft. the Domestic Violence Victim Outreach Executive 'Director. 4. The Board voted to accept the recom- Project. The Board voted to approve mendation of the Legislation Affairs solicitation of funds for the project. Committee to oppose SB36 and refer it 8. Hardin Whitney, Chair of the Alternative to the Rules of Evidence Committee for Dispute Resolution Committee, was Free Wills and Estate further review. invited to share his views on the Court Planning CLE To Be 5. John Baldwin distributed the new price Annexed ADR BilL. list for mailing list and label orders. 9. The Board discussed ways to enhance Given in St. George communications between the Commis- During its regularly scheduled meet- sion and the Judicial CounciL. Utah Legal Services wil be sponsoring ing of January 23, 1992, the Board of Bar 10. The Board voted to accept the Legislative a CLE seminar in wils and estate planning Commissioners received the following Affairs Committee's recommendation to to be given at the St. George Hilton on reports and took the actions indicated. favor the Court Fees bill structure but June 19, 1992, from 9 a.m. to 4 p.m. The 1. The minutes of the Commission meeting take no position on fee amounts. program will include fundamentals of , of December 13, 1991 were approved. 11. John Baldwin referred to his written wils and estate planning including rele- 2. After considering a Bar Examination I Executive Director's report. vant Medicaid concepts for estate petitioner's request to appear before the 12. John Baldwin referred to his written planning. Speakers will be announced Board, the Board voted to invite the peti- Budget & Finance report. in the next issue. The seminar will carry tioner to come to the next meeting. 13. Steve Trost presented a motion to disaf- six hours of CLE credit and there will be 3. The Board discussed revisiting its April firm the findings, conclusions and no charge. 1991 decision to allow English as a recommendations of a hearing panel second language to be a disability for 22 Vol. 5 No.4 . Discipline Corner received a two (2) year sentence for filing ing contribution to law-related education false tax returns,and aiding others in prepa- in the State of l:tah. ration of false tax' returns. Mr. Landerman's CRITERIA: Nominations and applica- ~~ ',.; .... ", ...... ADMONIl,.ION ...... /c;, conduct constitutes a crime involving moral J~ Om'Febri.,ary 14, 1992Jtn attorney was tions will be accepted on behalf of A'glllQnished and 'made restitution of turpitude and;pursuant to,Rule VII(b) (1) of individuals or law firms who have: _ ''*,0/ .!0,;H.... _____.,/.,' ",,''"': _-.__,d':,,_~______,', - $500.00 for violationtòfiú:;" Rulè.;i.ii;4d): the Procedures of Discipline ofXthe l:tah 1. Made significant contributions to law- _DECLININGkOR 'A, TERlvÌNA1:tÎNa"REP-"1! " StatëBal" and he wilLxemain suspended related education in the State of l:tah :;RESENTATION" of" the ,Rules ,pending the'outcome of his appeaL. W which are recognized at local and/or state * ~ levels. ;é~l?fe~siònal"Conduèt'/ 5fi'the ,Bar.iJIn Septembßr'1988 IRESIGNATIONWIirH 2. Voluntarily given their time and i' accepted $LOOO.OÕ,t~ repre~ent ,'/ :DISCIElilNE,lEND1NG resources in support of law-related educa- : at the'l:tah1!State ,Prison:' Appro 4., ?n;Februa:yy, J992,Pou~lasBi Wade1s tion, such as serving on planning Resigna~;ioi: withIDisS,~g!ine J?ending was : óne ;:eeki11at~r,+aJter tn,eattorney,nad;per;; committees, reviewing or participating in accepted by the Supreme"Court.,Mr. \Vade formed research in itl1e case, ,the ,attorney the development of materials and pro- entêî~êljnto å Discipline, 9Ý grams and participating in l~w-related flearildllthat other, counsel 'had been Fori:aL COrrpl~intswere retaim;dand, consequently, took no furtnel1 \Vnerein 'fifteen education programs such as the Mentor/ consolidated and; wherein it' was, stipulated" action in thecase,il'hereafter, the attorney Mid-Mentor Program, Mock Trial Program, that;'he,viqlatedRule 1.3: "took'no action,to 'provide the client fie to DILIGENCE, Volunteer Outreach, Judge for a Day, or

the new attorney or refund the unearned Rule J.Gla) & (b): COMMl:NIÇATIQN, other court or classroom programs. Rule,,1.3(b): SAF'EKEEPING OF PROP- portion, of the fee. The~ttorney states the 3. Participated in activities which encour- IER1;Y, Rulel.14(ay: DECLINING OR age effective law-related education clienlfile was not sent to the new attorney TERMINATING,.REPRESENTA nON, because it was not requested. Rule L.14(b) programs in l:tah schools and communities Rule 8.I(b): .BAR AND ,DIS- places an affirmative duty on an attorney 1pMISSION and which have increased communication CIRLINAR); MATTERS, andRu1e 8.4(c): to ,surrender the client file to the client or and understanding between students, edu- MISCONDl:CT, of the Rules of Profes- 'new counsel when representation, has been cators, and those involved professionally sionål Conduct. of the Utah State Bar. The terminated in an ongoing case, in the legal system. complaints followed similar patterns in that APPLICATION PROCESS: Applica- Sl:SPENSIONS Mr. Wade accepted fees foc. which he per- tions and/or nominations may be 2. January 28,J992, Jeny Thorn was formed little or no meaningful legal submitted to the: ,qn services; hê failed to represent his clients suspended from the practice of law for a Scott M. Matheson Award period of six (6) mo~ths and one dë:Y pur- with reasonable diligence; failed to keep Law-Related Education Committee suant to Rule XVII of the Procedures,of them informed as to the status of,the cases; l:tah Law and Justice Center Discipline oj the l:ah St~teBar for violat- failed to respond to phone calls or requests Box S-3 ing Rule L.4(a): COMMl:NICATION and for information; failed to refund unearned 645 South 200 East Rulel.13(b): SAFEKEERING OF' PROP- fees; failed to return files to clients after he Salt Lake City, l:T 841 1 1 ERTY of the Rules of Professional had ceased to function as their counsel; and Included in the nomination should be a Conduct of the mah State Bar. In July failed to respond to requests from the Bar cover letter, a one page resume and a one 1986, Mr. Thorn accepted a sum of for information concerning these com- page summary of the nominee's law- plaints. Mr. Wade was also ordereêl to make $3,000.00 retainer fee to provide legal rep- related activities. The nominee may also resentation. Shortly thereafter, Mr.;rhorn restitution to his former clients in the submit other related materials which accepted a government post and left the amount of $ 1 2,322.00. demonstrate the nominee's contributions State of l:tah.'Mr. Thornturneêl the matter in the law-related education field. These over to an associate without making any materials may include a bibliography of mention' of the 'retainer fee and iiithout Scott M. Matheson law-related education materials written by notifying his client. In December of 1987 Award the nominee, copies of news items, resolu- Mr. Thorn returned, $1,000.00 of the origi- tions, or other citations which document nal $3,000.00 retainer to his former client. the nominee's contribution or a maximum Last year, the Law-Related Education of two letters of recommendation. All The client's numerous attempts to retiieve and Law Day Committee of the l:ah State materials submitted should be in a form the balance of the retainer have been unsuc- Bar was proud to present the first annual which will allow for their easy reproduc- cessfuL. One of the preconditions to Mr. Scott M. Matheson A ward to Greg Skordas Thorn's return to the practice oflaw is that tion for dissemination to members of the and the law firm of Van Cott, Bagley, selection committee. Nominations must be he makes full restitution to his former client. Cornwall & McCarthy. Currently, the com- postmarked no later than April 15, 1992. 3. On February 13, 1992, Richard C. mittee is accepting applications and Landerman was suspended from the prac- nominations for the second annual Scott M. tice of law until further order of the court Matheson Award to be presented on Law due to his conviction for a crime involvÏng Day, May 1, 1992. morë:l turpitude. On February 21, 1991, Pl:RPOSE: To recognize those lawyers Mr. Landerman was convicted and and law firms who have made an outstand-

April 1992 23 requirement that Third District Court (a) Changes in Court have at least one judge permanently Bob Miller Memorial Jurisdiction assigned to its tax division, (b) publish its Law Day Run tax decisions, and (c) assign the tax judge to By Timothy M. Shea determne cases in other judicial districts at The 1992 Bob Miller Memorial Law the request of the taxpayer. Day Run is scheduled to commence Satur- The 1992 General Session of the Utah These changes are of particular signifi- day morning, April 25, 1992 at 10:00 a.m. State Legislature passed HB 394, sponsored cance to the Third District Court. The Third As always, the race wil begin at the Pioneer by Rep. Jerrold S. Jensen, to make some Distrct Court has never been able to meet Trail State Park "This is the Place" monu- small but nevertheless critical changes to the strict requirements of the law with a per- ment. The 5- Kilometer race wil finish at trial and appellate court jurisdiction. manently assigned tax judge. The tax the University of Utah College of Law The bil amends §78-2-2 Utah Code assignment has been the responsibility of parking lot. Registration wil take place at Annotated, 1953 as amended and other four different judges over the past several the Rice Stadium west parking lot adjacent appropriate sections to give the Supreme yea. The duration of that assignment has to the law school prior to the race. All law Court discretion to transfer to the Court of been getting shorter. The court will assign firms are encouraged to field teams and to Appeals appeals from the adjudicative tax cases randomly to each of the judges as enjoy the comraderie of the race. Informa- hearings of the Tax Commission, the Pub- is now done with all other types of cases. tion about the race can be obtained from lic Service Commission, the Board of Oil, HB 394 makes changes in circuit court Charles Loyd at the Salt Lake Legal Gas, and Mining, the Board of State jurisdiction also. HB 394 amends §78-4-7 Defender Association, 532-5444. Lands, and the state engineer. Historically and §78-6-1 Utah Code Annotated, 1953 as the appellate judicial review of these agen- amended, to clarify that the $20,000 juris- cies' actions was reserved to the Supreme dictional limit of circuit court does not Mid-Year Court. The changes will permit the include costs, interest, or attorney fees, That Supreme Court to screen the appeals from is, costs, interest, and attorney fees can be Meeting Sponsors the formal adjudicative proceedings of prayed for in addition to a claim of damages these agencies, or appeal from the district of $20,000 or less. In the small claims divi- Many thanks to our sponsors for help- cour review of informal adjudicative pro- sian, the statute is different. In small claims, ing to make the 1992 Mid-Year Meeting a ceedings, to determine which raise issues the $2,000 jurisdictional limit does not success! of significant public policy or issues in include costs and interest but does include Jones, Waldo, Holbrook and developing areas of the law. The Supreme attorney fees. That is, costs and interest can McDonough Court can then retain such cases for its full be prayed for in addition to a claim of dam- consideration and transfer to the Court of ages of $2,000 or less, but a claim for Parsons Behle and Latimer Appeals those cases that raise principally attorney fees cannot take the prayer or the Snow, Christensen and issues of well settled law or error correc- award of damages beyond $2,000. Martineau tion. This is discretion that the Supreme In other changes HB 394: Michie Company Court has exercised since the creation of . Clarifies the authority of the district the Court of Appeals in almost all other court to review the bail decision of the cir- First Interstate Bank Trust facts of its jurisdiction, It wil assist the cuit court. Division Court in its ability to better control the . Directs the appeal of the denial of bail to Attorneys Title Guaranty appellate process. the Supreme Court. Fund, Inc. In the May issue of the Bar Journal, the . Provides for the biannual review of the Supreme Court wil publish an announce- jurisdictional limit of small claims. American Bar Retirement ment inviting recommendations for . Extends the life of a judgment in small Association/State Street Bank guidelines in exercising its transfer discre- claims to eight years, the same as for all Utah Bar Foundation tion. Comments should be made in writing judgments. Rollns Burdick Hunter of Utah to the Clerk of the Supreme Court. . Prohibits a small claims judgment from Another change of significance brought operating as a lien upon real property unless Charter Summit Hospital about in HB 394 is the elimination of the it is abstracted into the district court. Charter Canyon Hospital tax division of the district court and the These changes become effective April responsibilties of the Third District Court 27,1992. Legal Assistants Association formerly found in §59-1-601 et. seq. Utah of Utah Code Annotated, 1953 as amended. The Confidential Investigative district court retains jurisdiction of tax Services ' cases and the Third District Court retains venue of cases involving taxpayers with Swen's Schwinn Cycling taxes assessed on a statewide basis. The and Fitness bil eliminates the tax division of the dis- trict court. The bil also eliminates the

24 Vol. 5 No.4 THE LIMITED LIABILITY COMPANY By Wiliam D. Bagley and Philip P. Whynott

TI LIMITED LIAILI'I COMPAN' (FORMs AN MÅ;r~~R ALTERNATI

SUMMARY TAB! F OF mNTENlS

TABLE OF CONTTS

INTRODUCTION - HISTORICA BACKGROUND 1.401 A FORMTION CONSIDERATIONS 1.5

:i. t~~!i~TlON CONSIDERATIONS IV.II. ARTlQ. 1l OPERAT OF °OF TI RGANIZATlON LIMITED LIAILITY AN COMP 3.100 2.100 INRNING REGUlTION AGREEME 7.1006.100 B. OPERATION OF TI LIMITED LIAILIT COMPANY

C. POST FORMTION COSIDERATIONS POWERS & 9.100 D. OPERATION IN. OTIR JURISDICTIONSD~~ 11.100 E. RECORDS AN REORTS 12100

F. INRNAL REVEUE RUL & REGUlTIONS 13.100

G. OPINIONS (AITORNY GEND" 14.100 ''' ADVISORY & COURT) H. NEW OPPORTUNITES & CONCERNS 15.100

I. STATE BY STATE ANALYSIS 16.100 I. COLORAO II. FLORIDA II. KASAS 17.150 IV. NEVADA 17.190 V. TEXA 17.2 VI. UTAH 17.380 VII. VIRGINIA 17.530 VIII. 17.5 17.560 BIBLIOGRAHY 17.6( 24.~~ Library of Congress Catalogue Card Number 1.40 91-68-214

Utah, in 1991 (Utah Code Ann. §§ 48-2b- 101 to 156), along with Wyoming, in 1977, and seven other states have adopted the Limited Liabilty Company Act. This new statutory entity is a better alternative to limited partnerships, partnerships, close corporations and "S" corporations. This book contains all state regulations; forms, including all state mandatory and example forms; all internal revenue service rulings; relevant opinions; and practice information designed to help the busy Utah attorney. Please complete and return the following to Limited Liabilty Company Law & Practice, P. O. Box 1436, Cheyenne, Wyoming 82003-1436.

Name

Address

City State Zip Code

_Book, 692 pages-$115.00 enclosed (includes sales tax, shipping and handling) _Optional (with book) computer disk containing all forms, including the mandatory and example forms from the Secretary of State-$40.00 enclosed _51A disk _31/2 disk _ Word Perfect ASCII Microsoft Word o MasterCard DVisa Exp. Date Card # NO RISK-30 DAY MONEY BACK GUARATEE gram issues. Of course, the Commission and the Lawyer Referral Program. Commission's believes that use of mandatory dues for Recommendation NO.5: Annual Meetings these purposes is appropriate. Response to Annual meetings shall, insofar as prac- Special Task Forces' Recommendation NO.3: Delegation of ticable, be self-supporting. The Executive Administration of the Practice of Law to Director shall prepare separate budgets Final Report the Bar relating thereto and attempt to make the The Court should delegate to the Bar, meetings attractive and affordable for all On January 23, 1992, the Board of Bar subject to its final determination: Bar members. An annual income and Commissioners reviewed the Final Report (1) the admnistration of admission to the Bar; expense statement relating to the annual of the Utah Supreme Court's Special Task (2) the administration of discipline of Bar meeting shall be prepared and submitted Force on the Management and Regulation members, for breaches of professional to Bar membership in some general of the Practice of Law. The following ethcs, malpractice, breaches of the rules as to communication. represents the Commission's response to advertising by Bar members and other vio- COMMISSION RESPONSE: Although that report. lations of applicable laws, rules and the annual meeting is just one of many regulations; legitimate Bar programs, services, and UTAH STATE BAR (3) the enforcement of laws and regulations functions, the Commission has no objec- COMMISSION pertainig to the unauthorized practice of law; tion to this recommendation, as the RESPONSE TO FINAL (4) authority to impose annual mandatory same is generally consistent with cur- REPORT dues in amounts approved by the Court; rent practice. (5) the administration of the MCLE pro- Recommendation NO.6: Justification of of gram in accordance with rules established the Utah Supreme Other Programs by the Court; and Court's Special Task All programs or services not included (6) the administration of programs for ADR in Recommendation NO.4 should be justi- Force on the Management determination of fee disputes and a client fied to the Court and Bar members. and Regulation of the security fund. COMMISSION RESPONSE: With one COMMISSION RESPONSE: The Practice of Law meaning and scope of this recommenda- exception, the Commission supports this tion is unclear; and, therefore, the recommendation. While the Commission Recommendation NO.1: The Bar Should Commission does not take a position is very much concerned about malpractice Remain Integrated thereon one way or another. The Court should require all lawyers to as evidenced by such things as its admis- be members of the Bar. sions and CLE functions, the Recommendation NO.7: Bar Reports to COMMISSION RESPONSE: The Com- Commission does not believe that mal- Members and Court mission supports this recommendation practice is the appropriate subject matter The Commission shall report to the Bar members and the Court at least annually: together with the "philosophical issue" of discipline unless a violation of the expressed in Alternative I adopted by Code of Professional Responsibilty (1) the Bar's financial condition, including a the Task Force to the effect that the Bar occurs in connection therewith. justification of the costs of administration; has an ongoing responsibilty to the Recommendation NO.4: Essential Programs (2) proposed changes in the rules of inte- . gration and the Bar's Articles of public. Supported by Mandatory Dues Incorporation and Bylaws; Recommendation NO.2: Education on the The following programs and services should be maintained whether or not they (3) the Commission's efforts to increase Mission of the Bar and Lawyers the use of the ULJC and toreduce its oper- are financially self-supporting: discipline, The Commission should be charged ating deficit; and admissions, bar management, ULJC opera- with the responsibility of developing com- tions, public service programs under criteria (4) the Commission's efforts to improve mitment by Bar members to the mission of membership knowledge of, and participa- established by Court rule, legislative activi- the Bar and lawyers in society. tion in, Bar programs and functions. ties conducted under criteria established by COMMISSION RESPONSE: The Com- COMMISSION RESPONSE: The Com- mission supports this recommendation. Court rule, fee dispute arbitration, client mission has no objection to this security fund, bar directory, Bar Journal and The Bar has developed preliminary recommendation, although it believes annual meetings. financial projections for the next 10 that, should the Court consider adopting years, a committee of the Commission COMMISSION RESPONSE: The Com- mission supports this recommendation the same, use of mandatory dues rev- chaired by Commissioner Dragoo has enues should be specifically authorized. prepared a report suggesting method- and believes that the same should include ologies for enhancing communication Bar functions and member communica- Recommendation NO.8: Matters Subject with members and the public, and the tion as well as programs and services in to Report and Review Commission has directed the appoint- order to be consistent with Recommenda- The following shall be disclosed to Bar ment of a long range planning tion Nos. 2 and 7. In addition, the members, and review by the Court shall committee to focus on policy and pro- recommendation should include, without occur only upon petition: limitation, the Young Lawyers Section (1) the Bar's annual budget;

26 Vol. 5 No.4

"' (2) the amount of annual mandatory dues; addition of one non-lawyer appointed by the Recommendation No. 13: Establishment (3) the establishment of new programs or Court. Such additional member shall have of Review Board functions that are to be supported, in the power to vote on all matters coming A separate Review Board shall be cre- whole or in part, by the mandatory dues of before the Commission, but shall not be eli- ated consisting of both licensed lawyers Bar members; gible to serve as a Bar officer. An advisory and members of the public. Members of (4) changes in the Bar's Articles of Incor- group should be created with both lawyer the Review Board shall be nominated by poration and Bylaws; and and non-lawyer membership to voice the the Commission, but appointed by (5) the incurrence of any debt or obliga- concerns of various segments of the Bar and the Court. tion of $50,000 or more for a period the public interest. The selection of the COMMISSION RESPONSE: The Com- longer than the fiscal year in which the advisory group and its relationship to the mission opposes this recommendation debt or obligation is incurred. Commission is left to the discretion of the for the reasons that there is broad sup- COMMISSION RESPONSE: The Com- Commission. port for public discipline being mission has no objection to this COMMISSION RESPONSE: The Com- administered by the District Courts, recommendation. mission has no objection to the addition and there is no way to accurately esti- of a non-voting lay member to the Com- mate the cost in dollars, process time, Recommendation NO.9: Policy Role of mission subject to a review of the and staff time by the creation of a sepa- Commission - Administrative Role of methodology of selection. Currently, only rate level of bureaucracy. The Utah Executive Director those Commission members who are Supreme Court Advisory Committee on The Commission should act as corpo- directly elected by the active members of the Rules of Discipline has adopted the rate board of directors, making policy. The the Bar can vote. For example, the Chair District Court model, and an initial Bar's Executive Director should act as a of the young Lawyers Section is not a vot- draft of the proposed rules has been corporate chief operating officer under ing member of the Bar Commission even prepared by the Committee. policies established by the Commission. though that person is elected by a con- COMMISSION RESPONSE: The Com- Recommendation No. 14: Jurisdiction of stituency of lawyers. Of course, none of mission has no objection to this Review Board the other ex-offcio members of the Com- recommendation, but believes that it The Review Board shall hear appeals mission have a vote. from Bar administered procedures covering: should be expanded to provide that the The Commission believes that the President of the Bar act as Chief Execu- establishment of an advisory group is il- (1) dues suspensions; tive Offcer of the Bar. conceived at this time. Currently, the Bar (2) character and fitness determinations; Recommendation No. 10: Implementation has numerous sections together with (3) discipline decisions; (4) admissions challenges; of Specific Management Guidelines standing and ad hoc committees with A management consultant should be non-lawyer members, all of which are (5) client security awards; (6) administrative grievances; and retained, at the discretion of the Commis- relied upon by Bar management and sion, to provide specific structural and leadership for advice. The Commission (7) MCLE suspensions. COMMISSION RESPONSE: The Com- procedural guidelines to implement the would prefer, at the outset, to form an mission opposes this recommendation. relationship and roles between the Com- "advisory committee" consisting of the If public discipline is, in effect, moved mission and the Executive Director. The chairs of each section and committee, from the Bar Commission to the Dis- consultant should then periodically review said "advisory committee" to meet at trict CO'urts, there is no need for a the guidelines and propose changes as both the annual and mid-year meetings. separate board in other areas. .necessary. Recommendation No. 12: Selection of COMMISSION RESPONSE: The Bar Recommendation No. 15: Administrative President-elect is always striving to improve manage- Remedies for Bar Grievances The president-elect shall be selected by By rule, the Court should establish pro- ment and to use the most effective ways the Commission; provided, however, that of carrying out the mission of the Bar. cedures whereby no action may be the name of the president-elect shall be sub- brought against the Bar or any of its offi- While the Bar does not object to the mitted to the membership at large on the cers, Commissioners or employees concept of using the services of a man- retention ballot. In the event that 20% or agement consulting, that should be only challenging any decision, action or non~ more of the licensed active lawyers vote to one of a number of options open to the reject the president-elect, the procedure action of the Bar until the complainant's Bar as it strives to improve. The Com- administrative remedies have been shall be repeated until such time as a presi- mission feels that it should be given exhausted before the Review Board. dent-elect is not rejected. flexibilty in its efforts to adopt specific COMMISSION RESPONSE: The Com- COMMISSION RESPONSE: The Com- mission supports this recommendation, procedural guidelines for defining the mission opposes this recommendation, and believes that claims against the Bar relationship and roles between the except to the extent that it provides for Commission and the Executive Director. should be addressed first to the Bar, selection of the president-elect by the Bar then to the Utah Court of Appeals as a Commission. Recommendation No. 11: Composition of prerequisite to commencement of litiga- The Commission supports, however, Commission tion. The Bar has already had prepared The present composition of the Com- further study of some sort of recall a rough draft of such a procedure. mission should be retained with the procedure.

April 1992 27 Recommendation No. 16: Appeal from Law and Justice Center, Inc. Consistent Further research should be undertaken Review Board with the original objectives of the Bar to establish a basis that would eliminate A right of direct appeal to the Court and Law and Justice Center, Inc., the joint operation, inter-entity accounting shall exist from Review Board rulings relationship between the entities was and the cost of an independent audit, relating to disbarment or suspension. All structured in a way to encourage cooper- which would continue emphasis on use of other decisions of the Review Board shall ation and pursuit of common goals. the UUC as established by the Articles be final unless the Court grants discre- of Incorporation of the ULJCI and in Recommendation No. 19: Promotion of the tionary review of the same. The the solicitation of contributions for its UUC Operations complainant, disciplinary counsel and The Commission shall take active steps establishment. affected lawyer shall all have equal rights COMMISSION RESPONSE: The Bar to promote use of the ULJC: of appeaL. is currently studying methods to reduce COMMISSION RESPONSE: The Com- (1) for ADR programs and functions; costs associated with the existence of the mission opposes this recommendation (2) by Bar sections and committees; Utah Law and Justice Center as a sepa- for the reasons hereinbefore set out in (3) for disciplinary hearings; rate entity. The Commission opposes, response to Recommendation Nos. 13 (4) by Bar members located outside of the however, the elimination of that entity Salt Lake City area; and and 14 relative to the necessity and because of the adverse tax consequences. expense of an appeal board. The Com- (5) by law related organizations. mission has no objection to the review COMMISSION RESPONSE: The Com- Recommendation No. 21: Revision of the of its actions or those of the District mission has no objection to the concept Rules of Integration Court by the Supreme Court, and sup- embodied in this recommendation, but The rules of integration should specify ports the development of a methodology believes that use of mandatory dues that conflicting statutory provisions are should be authorized, not mandated, and therefor. subordinate to them pursuant to Article that inconsistencies with Recommenda- VII of the Constitution of Utah. Recommendation NO.1 7: Continuing tion No. 20 should be resolved. COMMISSION RESPONSE: The Com- UUC Operations mission supports this recommendation. The UUC should continue to be oper- Recommendation 20: Study of Elimination of Separate UUCI Entity ated as a Bar function. a. The servicing of long-term debt and deficits from ULJC operations shall be paid from mandatory dues. b. No remodeling shall be done on the Announcing the formation of ULJC to meet the needs of new tenants unless the same is approved by both the ULJC Board of Trustees and the GUSTIN & CHRISTIAN Commission. A Professional Corporation COMMISSION RESPONSE: The Com- mission supports this recommendation, on January 1, 1992 and believes the Court should authorize Joining the firm are: the use of mandatory dues rather than mandate the use of mandatory dues as FRANK J. GUSTIN HELEN E. CHRISTIAN suggested in the recommendation. Recommendation No 18: The Governing and the firm is pleased to announce that Body of the UUCI The Bar's Executive Director and THOMAS R. GRISLEY Commission members shall not serve as formerly of the firm of Parsons, Behle & Latimer members of the ULJCI Board of Trustees. has joined the firm of counsel The Bylaws of the ULJCI should be amended to provide that Trustees shall be The firm will practice lãw in the areas of: elected by members of the Bar on stag- Corporate Law; Estate Planning; Family Law; Oil and Gas Law; gered terms, as is now done for the Utah Products Liability; Personal Injury; Real Estate; Bar Foiindation. Construction; Land Use Planning; COMMISSION RESPONSE: The first and related litigation. part of this recommendation has already been implemented. The Com- Suite 722 Boston Building mission opposes the second part of the 9 Exchange Place recommendation, believing that the Salt Lake City, Utah 84111 Court should deal with the Bar and the (801) 531-7444 Bar, in turn, should deal with the Utah

28 Vol. 5 No.4 candidates for judicial office or those wishing tried to treat the injuries sustained in the Judicial Vacancies to be considered for such office should all. Patient lingered for a few hours, dur- Announced promptly contact the Human Resources Divi- ing which time patient allegedly told sion in the Court Administrator's Office, spouse that life was worth living. Gordon R. Hall, Chief Justice of the 230 South 500 East, Suite 300, Salt Lake The Insured was retained by the spouse Utah Supreme Court, announced the open- City, Utah 84102 (801) 533-6371. Applica- to bring a medical malpractice claim ing of the application period for judicial tion packets wil then be forwarded to against the culpable parties. Although a vacancies in the Second, Third and Fourth prospective candidates and must be returned notice of claim was originally filed District Courts. Second District serves completed to the Administrative Offices no against the hospital and the psychiatrist, Weber, Davis and Morgan counties, Third later than 5:00 p.m., April 24, 1992. the summons and complaint only named District serves Salt Lake, Summit, and the hospitaL. Suit was never brought Tooele counties, and Fourth District against the psychiatrist or the treating doc- serves Juab, Millard, Utah, and Wasatch tor. The Insured never consulted an expert counties. Applications must be received CLAIM OF witness even though he was statutorily by the Administrative Office of the Courts required to name an expert. This failure no later than 5:00 p.m. April 24, 1992. THE MONTH to name an expert eventually resulted in Applicants must be 25 years of age or Lawyers Professional Liabilty a court order to dismiss without prejudice. older, U.S. citizens, Utah residents for Nothing was done to revive the case and three years prior to selection and admitted Alleged Error or Omission eventually the statute of limitations ran. to practice law in Utah. In addition, judges The Insured allegedly failed to properly pursue a medical malpractice action. How Claim May Have Been A voided must be wiling to reside within the geo- This claim might have been avoided if graphic jurisdiction of the court. Resume of Claim the Insured had done some rudimentary Article VII of the Utah Constitution In the underlying medical malpractice investigation as soon as he was retained. and state law provides that the Nominating action, plaintiff's decedent was hospitalized Legal research would have revealed the Commission shall submit to the Governor for treatment of patient's disease, which need to sue all culpable parties and the three to five nominees within 45 days of caused patient's lower intestine to deterio- requirement that an expert be appointed. A its first meeting. The Governor must rate. While recovering from a colostomy, discussion with a medical expert would make his selection within 30 days of patient became depressed and began to have told the Insured who were the culpa- receipt of the names andrthe Senate must speak about suicide to family and the hospi- ble parties. Alternatively, the Insured confirm or reject the Governor's selection tal staff. The hospital called in a psychiatrist could have consulted with, or referred the within 30 days. The judiciary has adopted who spoke with the patient a few times, case to, an attorney who had more experi- procedural guidelines for nominating com- noted the depression on the chart, but did ence in medical malpractice. missions, copies of which may be obtained nothing else. A few days after the patient's from the Human Resources Division, by last session with the psychiatrist, the patient "Claim of the Month" is furnished by callng (801) 533-6371. asked a nurse to open the window in his Rollins Burdick Hunter of Utah, Adminis- The Nominating Commission is chaired room - then patient jumped out. Patient trator of the Bar Sponsored Lawyers' by Chief Justice Hall, or his designee from was found by the hospital staff who then Professional Liability Insurance Program. the Supreme Court, and is composed of two members appointed by the state bar and four non-lawyers appointed by the Governor. At the first meeting of each nominating commission, a portion of the agenda is dedicated to a review of meeting procedures, time schedules and a review YOU JUST MAY of written public comments. This portion BE of the meeting is open to the public. Those individuals wishing to provide written A GENIUS! public comments on the challenges facing Utah's courts in general, or the Second and Third District Courts in particular, And all you did was become an attorney and an agent of Attorneys' TItle Guaranty Fund, Inc.

must submit written testimony no later By becoming a member of Attorneys' TIlle, you can begin to generate a new and substantial source of income through the issuance of title insurance. Attorneys! TItle has new- programs and services. than May 1, 1992, to the Office of the which make it easier than ever for attorneys to build their real estate practice. Court Administrator, Attn: Judicial Nomi- We may not make you a genius, but nating Commission. No comments on Attorneys' TIUe can show you how to improve your practice and present or past sitting judges or current increase your income applicants for judicial positions will be by closing real estate Attorneys' transactions. Let us considered. show you how! Title Guaranty Those wishing to recommend possible Call 328-229 645 South 20 East, Suite 102 SaltLaeCity,Uta 84111 Fund, Inc. April 1992 29 ~CASE SUMMARIES

By Clark R. Nielsen

MAGISTRATES, liability action wherein plaintiff alleged he nearly four years after the injury. The BIND-OVER ORDERS had been injured by the accidental discharge Supreme Court affirmed the dismissal of The criminal bind over by a circuit of his pistoL. The discovery rule to extend a that action, holding that her request for court "Magistrate" circuit court is review- statute of limitations will not apply when prelitigation panel review had not tolled able by the district court judge. The Utah plaintiff became aware of his injuries and the statute of limitations. The court Supreme Court reversed the Utah Court of damages, and their cause, several months refused to consider plaintiff's tolling argu- Appeals, 794 P.2d 496. Recent statutory before the statute expired. ment because the issue had been and constitutional modifications do not Atwood v. Sturm, Ruger & Co., 177 Utah determined in her first complaint, from deprive the district court of its jurisdiction Adv. Rep. 14 (Jan. 7, 1992) (J. Howe). which no appeal was taken. In total, over to quash bind-over orders. Attack on a three years passed IÌom plaintiff's injury magistrate's bind-over order is not an DRUG MONEY FORFEITURE until the filing of the second complaint. "appeal," subject only to review by the A district court judgment of forfeiture Even if the statute of limitations had been court of appeals. The district court main- was reversed for insufficient evidence that tolled while the prelitigation panel held tains inherent authority to determine the money had come from or was intended jurisdiction over her request for review, whether its original jurisdiction has been to be used in a drug transaction. There was the complaint was still untimely. properly invoked. The trial court need not no evidence of any involvement with con- Malone v. Parker, 178 Utah Adv. Rep. defer to the magistrate's legal conclusion trolled substances and no drugs were found 12 (Jan. 23, 1992) (J. Zimmerman). and may conduct its own review of the in connection with the seizure of the money bind-over order. Under Utah Rules of hidden in an automobile stopped on the THEFT BY DECEPTION, THE Criminal Procedure 12 and 25, reviews the freeway. Utah Code Ann. § 58-37-13(1) ELEMENT OF GULLIBILITY bind-over order as a review of its own requires that the property forfeited have The crime of theft by deception, Utah original jurisdiction. been used in violation of the Controlled Code Ann. § 76-6-405 (i 990) requires that A preliminary hearing is not a triaL. A Substances Act statutes. the victim rely upon the defendant's magistrate does not sit as a judge of a In Re $102,000, 177 Utah Adv. Rep. 15 deception, although the element is not court or exercise the power of a judge. A (J. Howe). expressly so provided in the statute. The circuit judge, sitting as a magistrate, has deception must be a significant factor in the duties and powers of a magistrate and MALPRACTICE ACT PANEL the transaction and the victim must to not of the circuit court. The magistrate REVIEW, LIMITATION OF ACTIONS some extent believe the deception to be only determines probable cause. That The Utah Supreme Court affirmed the true. However, the deception need not be determination is not an appealable order dismissal and summary judgment for the the only or even a controlling factor in the because the magistrate has not exercised defendants in a malpractice action because victim's decision to part with the stolen an adjudicatory function. When the district the action was not filed within the two-year property. Defendant's misrepresentation court refuses to quash a bind over order, statute of limitations. (U.C.A. § 78-14-4) need only constitute a "substantial causal its ruling may then become subject to Under the Malpractice Act, plaintiff is influence" upon the victim's decision. interlocutory appeaL. required to file a notice of intent to sue and Concurring only in the result, Judge State v. Humphrey, 176 Utah Adv. Rep. request a hearing before a pre litigation Bench viewed as creating only a "likely 8 (Dec. 18, 1991) (J. Durham). paneL. The panel's review is informal and reliance" test rather than an "actual" non-binding, but its review is a compulsory reliance test, i.e., that the deception is JURY INSTRUCTIONS, condition precedent to litigation. "likely to affect" the judgment of another CLEAR ERROR Plaintiff alleged that defendants improp- in the transaction. The failure of the trial court to give a erly diagnosed the treatment for plaintiff's State v. Lefevre, 178 Utah Adv. Rep. 15 jury instruction on the elements of the infected toe. She filed a notice of intent to (Utah App. Ct.) (Jan. 15,1992) (J. Grme). crime is clear error. The defendant did not sue and a request for a prelitigation panel waive the defect by failing to object thereto review within six months. Panel review was HABEAS CORPUS RELIEF at triaL. Defendant's conviction was denied when plaintiff failed to submit proof Plaintiff was a prisoner at the Utah , reversed and remanded for a new triaL. of service on defendants. State Prison and had unsuccessfully peti- .! State v. Jones, 177 Utah Adv. Rep. 3 Plaintiff's first action was not filed until tioned the district court for a writ of (Dec. 31,1991) (J. Stewart). more than two and one-half years after the habeas corpus following rescission of his claimed injury. That action was dismissed original parole date. During the pendency LIMITATIONS OF for failing to complete the prelitigation of the habeas corpus proceedings, the ACTION, DISCOVERY hearing process. After filing and completing defendant was paroled while the appeal The Supreme Court affirmed the sum- a third request for prelitigation panel was pending. The court of appeals panel mary judgment dismissal of a products review, the plaintiff again filed a complaint (Judges Bench, Billings and Garff)

30 voi. 5 No.4

-A observed that the purpose of habeas cor- the trial court's finding that there were no Adv. Rep. 29 (Per Curiam). pus relief under Rule 65 (b) is to test the facts to support a reasonable suspicion of lawfulness of imprisonment and that such activity and specifically observed that ADOPTION; SET ASIDE because no "collateral legal consequences" the defendant's nervousness did not raise DEFAULT JUDGMENT were alleged to result from the defendant's such suspicion. A deputy's "hunch" ulti- The Court of Appeals affirmed the conviction. His release from parole ren- mately proved to be correct but, without default judgment that vacated a step- dered his appeal moot. The recent Utah more, would not raise a reasonable, articula- mother's adoption of her husband's child. Supreme Court case of Foote v. Utah ble suspicion regardless of the final result. The child was returned to the natural Board of Pardons, 808 P,2d 734 (1991) Moreover, the defendants' alleged consent mother. Brocksmith received custody of does not require judicial review of a Board and invitation to search was tainted by the his son when he divorced plaintiff, the of Pardons decision when the appellant ilegality of the continued detention. child's mother. Brocksmith later married was afforded full procedural due process State of Utah v. O'Dena-Luna, Utah defendant. The Brocksmiths then moved and appellant challenged only the reason- App. Ct. 900567-CA (Jan. 3, 1992) (1. to Utah from Ilinois without informing ableness of the Board's decision not to Garff, J. Bilings and J. Russon). the child's mother of their whereabouts. originally grant him parole. In the absence Four years later, the new Mrs. Brocksmith of a showing of a due process violation, SEARCH AND SEIZURE, sought judicial adoption of her step-son, habeas corpus is not available as a post- ILLEGALITY AND alleging that the natural mother had aban- release remedy to modify the release date TAINTED CONSENT doned him and had made no effort to ordered by the Board. Northern v. Barns, In a fact-intensive analysis of a vehicle maintain a parental relationship. The peti- Utah App. Ct. 900566-CA (Jan. 24, 1992). search and seizure, the Court of Appeals tion was granted. Further in Foote v. Board of Pardons, upheld the denial of a motion to supress evi- Meanwhile, the child's mother the Court of Appeals has also held that in dence. Defendant's vehicle was stopped searched extensively for him, finally locat- habeas corpus proceedings under Rule when the officer observed defendant's ing him in Logan, Utah. Upon learning of 65(b), U.R.C.P., the Board of Pardons is a speeding, and observed their furtive move- the adoption decree, the mother filed a necessary pary to the proceedings, as well ments in the back of the automobile. The petition to set the adoption aside, alleging as the petitioner's physical custodian (the officer exceeded the scope of the original the decree had been obtained by fraud. prison warden). Both pares must be named stop for speeding when he requested to The defendants failed to answer and their as respondents in a habeas corpus petition. compare the VIN numbers in the vehicle. defaults were entered. Mrs. Brocksmith It is the Board that determnes whether or He was later given permission to search the moved to set aside the default, claiming not the petitioner shall obtain release. The car, finding contraband. However, that later excusable neglect in failing to answer the warden has no power to unilaterally grant search was pursuant to voluntary consent, complaint. The adoption was annulled and the relief requested in the petition. In this which was not attenuated to the request to the mother was allowed custody of the instance, petitioner argued he was unlaw- search for the VIN number. Applying State child on a "visitation basis". fully incarcerated because the Board of v. Arroyo, 796 P.2d 684, the later consent Mrs. Brocksmith alleged excusable Pardons had violated his due process pro- was sufficiently voluntary and removed in neglect on the basis of assurances from her tections based upon Foote. Therefore, the time to dissipate any taint of ilegality. attorney that her interests were being pro- Board of Pardons should have been named State v. Castner, Utah Ct. App., 910275- tected. She "understood" her husband had a pary respondent. Dismissal for failure to CA (Jan. 24, 1992) (J. Jackson), arranged for an attorney to answer the join the Board was affrmed. complaint but despite such assurances, an Estes v. VanDerVeur, Utah App. Ct. INDUSTRIAL COMM., attorney never responded. While reliance TIMELINESS OF APPEAL 910613-CA (Jan. 27, 1992) (J. Russon, J. on an attorney's assurances could in some Bench and J. Greenwood on Law and A Petition to review a worker's compen- cases be "excusable neglect", it is not Motion). sation decision of the Industrial here. The alleged attorney never testified Commission was dismissed when the peti- and there was no other evidence that he SEARCH AND SEIZURE tion was filed 31 days after the decision had been retained or had agreed to act. REASONABLE SUSPICION, "issued". "Issue," as used in the U.A.P. Act The trial court also found Mrs. Brocksmith TAINTED CONSENT has finally been expressly held to be "the was not credible as a witness. An appeals court panel affirmed the date the agency action is properly mailed, as The natural mother had also obtained a district court's order suppressing evidence accurately evidenced by the certificate of writ of habeas corpus to produce the child. seized in an automobile search and seizure mailing", or personally served. The statu- While the trial court has a discretion to on Interstate 70. Even though the initial tory requirement of "Issuance" is make the writ returnable at any time, stop was justified when the driver's con- distinguished from "entry" of a civil judg- including immediately upon issuance, it duct suggested the possibility of ment. The time in which to file a petition may not offend traditional notions of due intoxication, the further detention for for review commences to run on the date process. A parent is entitled to due process investigative questioning was not justified that the agency decision is "issued" (e.g. protection when the custody of his or her because the officer had no reasonable sus- mailed), and not when received by the peti- child is at issue. picion of any other serious criminal tioner in the maiL. Miler v. Brocksmith, 178 Utah Adv. activity. The Court of Appeals affirmed Wiggins v. Board of Review, 178 Utah Rep. 25 (Jan. 22, 1992) (J. Russon).

Apl'i11992 31 1992 Legislative Recap

By John T. Nielsen

careful to stay within the direction of the tice Legal Fees. This bill would have On Februarysion of 26,Utah the State General Legislation Ses- Utah Supreme Court respecting its activities required the plaintiff to pay attorneys fees concluded business. In so doing, consid- at the Legislature. It took positions on mat- when the defendant prevails. It was ered 716 pieces of legislation excluding ters of general concern to the profession and opposed by the Commission as an access resolutions of which 312 passed and 204 the public's access to the courts. to the court's issue, and was tabled in failed. The Bar Commission took a position in Committee. Other than hoards of leather-jacketed opposition to the following legislation: The Bar Commission took a position in motorcycle club members who descended SB36 - Judicial Notice of Proclamation support of the following legislation: on the Capitol to protest the proposed hel- and Rules. This act requires courts to take HB394 - Court Jurisdiction. This bill met law, this session had all of the judicial notice of administrative code made specific changes in the jurisdiction excitement and interest of cream of wheat. proclamations issued by the Division of of the Appellate and Trial Courts and per- To be sure, there were some selected Wildlife Resources. It was opposed by the mitted a pourover of agency appeals in the issues that generated concern for special Bar Commission as an incursion into the Supreme Court to the Court of Appeals. It interests, but there were no issues that legitimate prerogatives of the Supreme also removed the requirement the District really captured the attention of the public Court Advisory Committee on evidence. Court maintain a tax division and clarified in general, or for that matter, our profes- The Bill passed both Houses. the jurisdictional limit of the circuit court sion. There was a certain amount of HB347 - Lawyer Advertising. The Com- and the effect of small-claims court judg- posturing by those considering future mission opposed this bill for similar reasons ments. This bill passed both Houses. political office, but this session considered as SB36 in that the bil attempts, by statute, SB196 - Court Administration Amend- fewer bills than most in recent memory to regulate advertising which should be ments. This bill made several changes in and generated little controversy. done by Supreme Court Rule. This bill died the administration of the courts and As in the past, the Bar had a presence at in Senate Rules. granted court commissioners the authority the Legislature in monitoring legislation HJR26 - Rules of Criminal Procedure to perform marriages and amended the and to assist in facilitating communication Jury Information Resolution. This bil authority of the presiding judges and clari- between the Legislative Affairs Commit- would have required the judge to instruct fied the authority of magistrates. It also tee, the Bar Commission and the the jury that it must use its own judgment in increased the ability of the courts to Legislature. determining guilt irrespective of the law of impose a fine for contempt to not exceed The Bar Commission considered a the case with affirmative directions that it $ 1 ,000 and that of a justice court or court number of legislative matters that were may disregard the law if it believes the law commissioner not to exceed the $500. The recommended to it by the Legislative to be unjust or inapplicable to the situation Bar Commission recommended support Affairs Committee. The Commission was at hand. This bill died in House Rules. with no position on the amount of fine for HB363 - Payment of Medical Malprac- contempt. The bil failed in the House.

32 Vol. 5 No.4 .. SB197 - Court Fees. This bil adjusted on Children's Needs for Divorcing Parents amendments to the previously enacted civil filing fees, increasing some and - Requires attendance of both divorcing legislation on underground storage tanks decreasing various fines and eliminating parents at a mandatory course designed to and establishes a liability scheme for others. The bil made remaining fees uni- sensitize divorcing parents as to their chil- responsible parties. form between levels of courts and judicial dren's needs. SB25 - Hazardous and Solid Waste districts. The Bar Commission took posi- HB79 - Mediation Pilot Program/Child Amendment - Made several changes in tion in support, however, with no position Custody or Visitation. Establishes a manda- the fee structure for the importation of on the actual amount of fees. The bil tory mediation pilot program and defines solid and hazardous waste. passed both Houses. circumstances where mediation is to be As of the date of this article, there have SB198 - Jury Use and Management required, been no Gubernatorial vetoes nor does it Act. This bil changed the responsibility HB112 - Hate Crime Penalties - Civil appear that the Governor wil see a need to for jury lists from the County Clerk to the Rights Violation - Provides enhanced call a special session of the Legislature Judicial CounseL. It simplified the fee pay- penalties for crimes directed at certain pop- this Spring. ment process and incorporated many of ulations. The work of the interim committees the ABA standards on jury management. HB126 - Administrative Rule Making wil start in April, and the reader is This bil passed both Houses, - Makes technical amendments in the referred to SJR18, Master Study Resolu- SJR7 - Corporation Article Revision. manner in which state agencies promulgate tion, for matters that wil be considered This resolution clarified certain portions of rules. during the interim period. the Corporation Article including antitrust HB135 - Lobbyist Disclosure - Clari- provisions. The resolution passed both fied reporting requirements and other Houses. technical matters relating to appearances The Bar Commission also supported before agencies or departments of state gov- the recommendation for judicial compen- ernment. sation which was approved by the HB152 - Expungement Amendments - UTAH STATE BAR Legislature in a modified fashion. Requires notification of the victim of an 1992 Annual Meeting Nonetheless, judges did receive an expungement request and makes further increase in their compensation. technical amendments. There were a number of other bills HB225 - Grandparents Rights Extended which were considered by title by the Leg- - Extends a cause of action for visitation islative Affairs Committee but were not to grandparents. deemed sufficiently relevant for further HB255 - Probate Code Amendment - consideration by the Committee nor rec- Made several technical amendments to the ommendation to the Bar Commission. probate code. Many of those provisions were seemingly HB270 - Disclosure of Address of Cus- controversial, were narrowly related to a todial Parent - Repealed the statutory specific area of practice or were beyond provision requiring disclosure of the address the scope of permissible Legislative activ- of custodial parent by the office of recovery ity by the Bar. Nonetheless, there are a services. number of enactments which are of impor- HB400 - Information Access Amend- tance to lawyers, and they are included ments - provides for government record SUN VALLEY, IDAHO access and classifications of records. below by title and brief description. July, 1-4 HB50 - Utah Revised Business Corpo- SB116 - Underground Storage Tank ration Act - This was a large Amendments - Made certain technical comprehensive rewrite of the body of cor- poration law for the state of Utah. It was supported by the Corporate Section of the Utah State Bar. HB72 - Civil Public Nuisance and Eviction - Expands the definition of nui- sance to include drug houses and provides for abatement by eviction of period. The bil also provides for Private Right of Action. HB73 - Capital Offense Penalty Amendment - Provides for the penalty for life imprisonment without parole for capital offenses. HB78 - Mandatory Education Course

ApriL 1992 33 Law Day 1992: The Struggle for Justice

By Keith A. Kelly President-elect, Utah Young Lawyers Section Shareholder, Ray Quinney & Nebeker

Judging Mock Trial Competition. The for pro bono work are available through May 1st nationalis Law Day.Law Day This theme year's is Bar and Utah State Office of Education the Utah Volunteer Lawyers Project of "Struggle for Justice." As initiated by a sponsor a mock trial program for secondary Utah Legal Services, 328-8891 (Salt 1958 presidential proclamation and students. Many attorneys have already vol- Lake), and the Salt Lake County Pro Bono affirmed by a 1961 congressional resolu- unteered time to coach the mock trial teams. Project of the Legal Aid Society, 328-8849. tion, Law Day provides "an occasion for In April, attorneys are needed to judge in Law Day wil also involve celebration. rededication to the ideals of equality and the mock trial competition. If you are inter- The Law Day Run is set for Saturday, justice under laws." ested, call Kim Luhn at 532-6996. April 25th. (Time and place to be In Utah, Law Day means public ser- Tuesday Night Bar. Each Tuesday night announced.) In addition, on May 1 st a vice. The Bar, especially through the at the Law and Justice Center (and on dif- noon awards ceremony wil be held at the Young Lawyers Section ("YLS"), pro- ferent nights elsewhere in the state), the State Capitol. That morning at 9:30 a Bill vides a wide range of service YLS sponsors the "Tuesday Night Bar." or Rights fair wil be held for high school opportunities, many requiring minimal Attorney-volunteers spend a few hours see- students at the Capitol. time commitment. Some of these are: ing people who show up to receive general As young lawyers, we must playa key Staffing Law-Day Mall Booths. For legal information and to learn about where role in the struggle for justice in our soci- the past several years, the Bar has spon- they can go to get legal help. If you are ety. Struggling for justice means not only sored booths at the major malls throughout interested in participating, call the YLS Pro working to improve our laws and legal the state on Law Day. The booths are Bono Committee Chair, Kristin Brewer at system, but also volunteering our time on stocked with pamphlets and other materi- 532-1036. worthwhile projects that help individuals als informing people about the law and Other Service Programs. The YLS obtain fairness and equity. their legal rights. Attorneys staffing the offers a wide range of law-related commu- booths answer general questions about the nity service programs for such diverse law, and give questioners advice about groups as senior citizens, children, and where to go to get further legal help. Typi- those infected with the HIV virus. Call any cally, attorney-volunteers sign up to staff YLS officer for information. (Charlotte L. the booths for one to two hour periods. If Miler, 530-0404; Keith A. Kelly, 532- you are interested in volunteering, call 1500; Mark S. Webber, 532-1234; James C. David Zimmerman at 532-1234. Hyde, 532- 1234.) In addition, opportunities

34 Vol. 5 No.4 Young Lawyers YLS Brown Bag HIV Subcommittee Elections Changed to Announced Receives YLS/ABA

Coincide With Bar Young Lawyers are pleased to announce Subgrants Commission Elections that the Honorable Dee Benson will be the featured speaker at the May Brown Bag. The Young Lawyer's Division of the DATE: May 29,1992 American Bar Association has awarded This year the balloting for Officers of the HIV subcommittee of the Young TIME: 12:00 noon the Young Lawyers Section of the Utah Lawyer's Division of the Utah State Bar State Bar wil be combined with balloting PLACE: Judge Benson's courtroom, Frank E. Moss Federal Couithouse, two grants totaling $1,600. for state bar commissioners. Instead of A $ 1 ,000 grant has been awarded for 350 South Main receiving separately mailed ballots for the production of a Handbook for Persons TOPIC: "Trial and Error, Courtroom both elections, members of the Young Living with HIV. The handbook wil help Lawyers Section will receive the two bal- Practice" Plan to attend. One hour of CLE credit educate infected individuals and their lots together. The only change likely to friends and families about legal issues result from the new format is that the bal- given to all attendees at no charge. relating to HIV and AIDS. lots may take somewhat longer to count The second grant, for $600 is to finance and therefore the announcement of the a "Town Hall" meeting which will provide new offices may occur later than it has in a public forum for a discussion of legal previous years. issues relating to HIV and AIDS. -CLASSIFIED ADS- For information regarding classified pared for or at the request of Harmon office is complete with secretarial and advertising, please contact Leslee Ron at Foster Meinhart. Please contact Wynn word processing services or space for your 531-9077. Bartholomew at 566-3688 with any own secretary, reception area, copier, tele- CA VEA T - The deadline for classified information. phone. FAX machine and conference advertisement is the first day of each room. Close freeway access to all parts of the valley. Please contact Wynn (801) month prior to the month of publication. -OFFICE SHARING/SPACE A V AILABLE 566-3688 or David (801) 268-9868. (Example: May 1 deadline for June publi- Choice office sharing space available for 1 cation). If advertisements are received to 2 attorneys with established law firm. later than the first, they will be published Downtown location near courthouse with -POSITIONS SOUGHT in the next available issue. In addition, free parking. Complete facilities, including Young attorney, licensed in Utah seeks payment which is not received with the conference room, reception room, library, Associate or office sharing with spilover, advertisement wil not be published. No kitchen, telephone fax, copier etc. Secretar- etc. Past judicial clerk with excellent writ- exceptions! ial services and word processing are ing, research, and interpersonal skills. For available, or space for your own secretary. a copy of resumé or interview call 562- -BOOKS FOR SALE Please call (801) 355-2886. 8802 and/or leave message. USED LAW BOOKS - Bought, sold and Professional office suites available with appraised. Save on all your law book and shared secretarial, reception, telephone ser- -MISCELLANEOUS library needs. Complete Law Library vices. Roomy window offices, great for European Defendant? We assist all phases acquisition and liquidation service. John individual practice, with view of A venues of trial preparation, tracing assets, execu- C. Teskey, Law Books/Library Services. or Salt Lake Valley. Prestigious South Tem- tion of judgments against European Portland (503) 644-8481, Denver (303) ple location is convenient to courts. All defendants. Dennis Campbell, Member 825-0826 or Seattle (206) 325-1331. office equipment and services in place. Free Iowa and New York Bars, 15 years prac- covered parking. Contact Karen or tice Europe, active 16 European -INFORMA TION REQUESTED Francine, (801) 359-0052. jurisdictions. Salzburg, Austria. Facsimile WANTED - Any information regarding 43 (662) 432628. Available consultation the preparation of a Last Wil and Testa- ATTRACTIVE OFFICE SPACE available Salt Lake City, 28-29 May 1992, Marriott ment and/or trust documents and/or in Union Park area (1200 East 7000 South) Hotel (801) 531-0800. any other estate planning documents pre- next to the Holiday Spa. Office sharing with five other attorneys. Window and/or interior

April 1992 35 UTAH BAR FOUNDATION- Legal Center for People with Disabilites I;O.L. T.A. 1991 Recipient

The Legal Center for People with Dis- ments, special education guardianship, ster- abili ties is a private non -profi t ilization, transportation, housing, job organization, independent of all govern- discrimination and architectural barriers. ment agencies, which is federally In an effort to create an informed con- mandated to provide advocacy services to sumer who wil be knowledgeable about eligible clients with disabilities. Eligibility his/her rights and how to assert these rights, for advocacy services is governed by the the Center has provided education and train- Developmental Disabilities Act, the Pro- ing activities in such areas as educational tection and Advocacy for Mentally II rights, effective advocacy strategies, public Seated left to right: Individuals Act, and the Client Assistance entitlements, rights in institutions, guardian- Nancy Friel - CAP Coordinator Rob Denton - Senior Staff Attorney Program created by the Rehabilitation Act. ship and services under the Rehabilitation Act. The Center is dedicated to advocating During 1991, publications were dis- Seated left to right: for and protecting the legaL, civil and tributed statewide, including the Legal Mary Rudolph - PAlMI Coordinator human rights of Utahns with disabilities. Rights Handbook, the Mental Health Con- Phylls Geldzahler - Executive As a statewide advocacy organization, it is sumer in Utah, the Consumer Handbook for Director the responsibility of the Legal Center to clients of Vocational Rehabilitation and Susan Gorey Deisley - PADD examine issues and services through the Independent Living, a quarterly newsletter, Coordinator eyes of the client, speak on his/her behalf and other miscellaneous information. and plead his/her cause. The Legal Center also participates with In addition to direct service to clients and other community agencies on committees, has allowed the Legal Center for People systems advocacy, staff of the Legal Cen- advisory councils, task forces and in infor- with Disabilities to better serve a very vul- ter are involved in a wide variety of efforts mal meetings. nerable population in need of legal which promote the individual rights of all During the past year, the grant from the advocacy. people with disabilities throughout Utah. Utah Bar Foundation has been used to sup- To help those people capable of resolv- plement the salary for an attorney to ing their own problems, the Center advocate in guardianship proceedings, and provided individuals, their families and to expand the Legal Center's services in service agencies with information, techni- Northern Utah. cal assistance, and referral to appropriate Many of the individuals for whom resources. Last year the Legal Center staff guardianship is sought are people with dis- Notice of Acceptance responded to 1910 statewide requests for abilities. Utah law requires that the potential of Grant Applications information about vocational rehabilita- ward be represented at guardianship hear- tion, independent living, mental health, ings. This past year the Legal Center The Utah Bar Foundation is now supported employment, financial entitle- received over 100 calls requesting represen- accepting applications for grants for the tation for an individual with a disability. As following purposes: a result of the Legal Center's intervention, 1. To promote legal education and many of the guardianships ended up as lim- increase knowledge and awareness of the ited rather than plenary and individuals who law in the community. once had guardianships are now their own 2. To assist in providing legal services to guardian. Without IOL T A funds, the addi- the disadvantaged. tional attorney needed to represent these 3. To improve the administration of justice. individuals would not have been feasible. 4. To serve other worthwhile law-related In October 1991, the Legal Center public purposes. opened an office in Logan. The advocates For grant application forms or addi- presence in that community is meeting the tional information, contact Zoe Brown needs of a previously underserved popula- (531-9077). All grant applications must be tion. IOL T A funds are being used to received by the Foundation before 5:00 supplement maintenance of that office. p.m. May 29, 1992, at the Foundation's Although IOL T A funds represent a small office at 645 South 200 East, Salt Lake Phylls Geldzahler percentage of the Legal Center's funding, it City, Utah 84111.

36 Vol. 5 No.4 CLE CALENDAR- BANKRUPTCY AND OTHER type of environmental reporting require- build practice skils with a "nuts and NON-ACCORD LEGAL OPINIONS ments, this seminar is a must for you. Bolts" approach. Civil Litigation I is the A live via satellite seminar. This semi- CLE Credit: 4 hours first part of a three part sub-series. It wil nar wil focus on the status of the law Date: call cover Pre-Action Investigation, Pleading regarding legal opinions not covered by Place: Utah Law & Justice Center and Discovery. the ABA Legal Opinion Accord. The Fee: call CLE Credit: 3 hours major emphasis wil be on bankruptcy Time: 8:00 a.m. to 12:00 p.m. Date: April 16, 1992 opinions, why they are needed, how they **Note: This seminar is being rescheduled** Place: Utah Law & Justice Center are given, and what they mean. Fee: $30 CLE Credit: 4 hours FAMILY LAW SECTION LUNCHEON Time: 5:30 p.m. to 8:30 p.m. Date: April 2, 1992 Tentatively scheduled for this date. Place: Utah Law & Justice Center CLE Credit: 1 hour THE RULES BEHIND THE RULES - Fee: $150 (plus $6 MCLE fee) Date: April 10, 1992 BANKRUPTCY SEMINAR Time: 9:30 a.m. to 1 :30 p.m. Place: Utah Law & Justice Center This seminar is another in the series Fee: call offered by the Bankruptcy Section. This FRANCHISING Time: 12:00 noon to 1 :00 p.m. program wil consist of a panel of the pre- A live via satellite seminar. A distin- sents clerks for the Utah Bankruptcy guished panel of federal and state VACUUM EXTRACTION AND Judges. More information on the topic wil franchise regulators and franchise law BIOVENTING: USES AND be forthcoming. practitioners wil address an array of intro- APPLICATIONS CLE Credit: 2 hours ductory and intermediate concerns. This CLE Credit: 4 hours Date: April 23, 1992 program is intended for attorneys repre- Date: April 15, 1992 Place: Utah Law & Justice Center senting franchisors and franchisees; for Place: Utah Law & Justice Center Fee: $25 attorneys whose clients mayor must turn Fee: $140 (plus $6 MCLE fee) Time: 12:00 noon to 2:00 p.m. to franchising; and attorneys whose clients Time: 9:00 a.m. to 1:15 p.m. need to be conversant with franchising ANNUAL SPRING PENSION LAW techniques. CIVIL LITIGATION I - WORKSHOP AND PRACTICE UPDATE CLE Credit: 6.5 hours This is another workshop in the New A live via satellite seminar. This semi- Date: April 7, 1992 Lawyer CLE program series designed to nar presents concise, condensed Place: Utah Law & Justice Center r ------, Fee: $185 (plus $9.75 MCLE fee) Time: 10:00 a.m. to 2:00 p.m. CLE REGISTRATION FORM TITLE OF PROGRAM FEE EVIDENTIARY FOUNDATIONS WITH DEMONSTRATIONS 1. A live via satellite seminar. How to get your evidence in! This program is to 2. familiarize the novice to intermediate- level trial lawyer with the basic elements of each of the most common foundations Make all checks payable to the Utah State Bar/CLE Total Due required to provide evidence pursuant to the Federal Rules of Evidence. Name Phone CLE Credit: 6.5 hours Date: April 8, 1992 Address City, State, ZIP Place: Utah Law & Justice Center

Fee: $185 (plus $9.75 MCLE fee) Bar Number American Express/MasterCardNISA Exp. Date Time: 10:00 a.m. to 2:00 p.m. Signature

ENVIRONMENTAL REPORTING Plcasc send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The Presented by the Energy, Natural Bar and the Continuing Legal Education Department are working with Sections to providc a full complement of live Resources and Environmental Law Sec- seminars. Please watch for brochure mailings on these. Registration and Cancellation Policies: Please register in advance as registrations are taken on a space available basis. tion, this seminar will examine the Those who register at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. If methods for reporting compliance on envi- you cannot attend a seminar for which you have registered, please contact the Bar as far in advance as possible. No ronmental regulations. Proper methods refunds wil be made for live programs unless notification of cancellation is received at lease 48 hours in advance. Returned checks wil be charged a $15.00 service charge and the liability of following them wil be NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at scminars for purposes of the discussed. If you have clients with any 2 year CLE reporting period required by the Utah Mandatory CLE Board. ------~

April 1992 37 discussions of selected current topics that CLE Credit: 4 hours Date: May 21,1992 concern tax attorneys as well as CPAs, Date: May 12, 1992 Place: Utah Law & Justice Center actuaries and other professionals who are Place: Utah Law & Justice Center Fee: call experienced in the design, drafting, or Fee: call Time: 7:30 a.m. to 12:00 p.m. administration of pension and profit- Time: 8:00 a.m. to 12:00 p.m. sharng plans. SUING AND DEFENDING BANKS: CLE Credit: 4 hours HAZARDOUS WASTE AND THEORIES AND TACTICS Date: April 23, 1992 SUPERFUND 1992: THE LATEST FOR THE 1990'S Place: Utah Law & Justice Center DIRECTIONS AT EPA A live via satellte seminar, Fee: $150 (plus $6 MCLE fee) A tape-delay presentation of this annual CLE Credit: 4 hours Time: 10:00 a.m. to 2:00 p.m. seminar. Date: May 21, 1992 CLE Credit: 4 hours Place: Utah Law & Justice Center PRACTICAL ADVICE FOR Date: May 14,1992 Fee: $150 (plus $6 MCLE fee) COUNSELING CLIENTS Place: Utah Law & Justice Center Time: 10:00 a.m. to 2:00 p.m. WHO DEVELOP, MARKET OR Fee: $150 (plus $6 MCLE fee) USE COMPUTERS Time: 10:00 a,m, to 2:00 p.m. CIVIL LITIGATION II - A live via satellite seminar. This semi- WORKSHOP nar wil address timely topics ranging 1992 PENSION PRACTICE UPDATE This seminar is a continuation of the from new developments in computer tech- AND REVIEW OF CURRENT civil litigation series that is part of the new nology to the legal issues they raise and REGULA TIONS lawyer CLE program. This portion of the practical approaches to dealing with ques- A live via satellite seminar. series wil cover evidence at triaL. Judge tions that the law doesn't always answer. CLE Credit: 4 hours Michael Murphy of the Third District CLE Credit: 6.5 hours Date: May 14, 1992 Court wil be presenting. This is an excel- Date: April 28, 1992 Place: Utah Law & Justice Center lent opportunity to review basic evidence Place: Utah Law & Justice Center Fee: $150 (plus $6 MCLE fee) practice. Fee: $185 (plus $9,75 MCLE fee) Time: 10:00 a.m. to 2:00 p.m. CLE Credit: 3 hours Time: 8:00 a.m. to 3:00 p.m. Date: May 21, 1992 FAMILY LAW SECTION Place: Utah Law & Justice Center LA WYERS AND NON-LA WYERS ANNUAL SEMINAR Fee: $30 IN BUSINESS This is the annual seminar produced by Time: 5:30 p.m. to 8:30 p.m. This is a Young Lawyers Section the Family Law Section. The program wil brown-bag CLE. include case law and legislative updates, AMERICANS WITH DISABILITIES CLE Credit: 1 hour in ETHICS along with ethics as it applies to the practice ACT: ASSURING COMPLIANCE- Date: April 29, 1992 of family law. This is a popular seminar, so CONTROLLING LITIGATION Place: Utah Law & Justice Center sign up early. CLE Credit: 4 hours Fee: Brown Bag CLE Credit: Approx. 7 hours (with 1 in Date: May 27,1992 (resch from Time: 12:00 noon to 1:00 p.m. Ethics) April 16, 1992) Date: May 15, 1992 Place: Utah Law & Justice Center UNDERSTANDING FINANCIAL Place: Utah Law & Justice Center Fee: $150 (plus $6 MCLE fee) STATEMENTS: ACCOUNTING Fee: Call Time: 9:30 a.m. to 1:30 p.m. FOR LAWYERS Time: 8:00 a.m. to 5:00 p.m. A live via satellite seminar. DIRECTORS' AND CLE Credit: 4 hours CURRENT DIRECTIONS AND OFFICERS' LIABILITY Date: April 30, 1992 CHALLENGES FOR THE ADVANCED A live via satellte seminar. Place: Utah Law & Justice Center ESTATE PLANNER CLE Credit: 4 hours Fee: $150 (plus $6 MCLE fee) A live via satellite seminar. This pro- Date: June 4, 1992 Time: 10:00 a.m. to 2:00 p.m. gram is designed to benefit experienced Place: Utah Law & Justice Center estate planning practitioners in their contin- Fee: $150 (plus $6 MCLE fee) 5th ANNUAL ROCKY MOUNTAIN uing quest to understand what is on the Time: 10:00 a.m. to 2:00 p.m. TAX PLANNING INSTITUTE "cutting edge" of estate planning. CLE Credit: 14 hours CLE Credit: 6.5 hours Date: May 7 & 8, 1992 Date: May 20, 1992 Place: Utah Law & Justice Center Place: Utah Law & Justice Center Fee: $195 Fee: $185 (plus $9.75 MCLE fee) Time: 8:00 a.m. to 5:00 p.m. Time: 8:00 a.m. to 3:00 p.m. THE SINGLE EUROPEAN MARKET ANNUAL CORPORATE COUNSEL AND ITS IMPACT ON THE SECTION SEMINAR UNITED STATES CLE Credit: 4 hours

38 Vol. 5 No.4 !"

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