1 ¡¡ i UTAR.~BAR. JOURNAL &&Vol. 5 No. 10 ., December 1992

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i

! r VALUATION & CAPITAL CONSULTANTS

For a description of valuation services and credentials call our: SALT LAKE CITY OFFICE (801) 322-3300 136 E. South Temple · Suite 1530 · Salt Lake City, UT 84111 UtahD! UTAH BAR JOURNAL Published by The Utah State Bar 645 South 200 East Vol. 5 No. 10 December i 992' Salt Lake City, Utah 841 I I Telephone (801) 531-9077

President President's Message ...... 4 Randy L Dryer by Randy L. Dryer

President. Elect H. James Clegg Commissioner's Report ...... 6 Executive Director John C. Baldwin by Denise A Dragoo

Bar Journal Committee and Editorial Board Tax Law Impacting Divorce - Part 1...... 8 Editor by David S. Dolowitz Calvin E. Thorpe

Associate Editors Randall L Romrell An Evening with the Third District Court ...... 15 William D. Holyoak by Victoria Kidman M. Karlynn Hinman

Articles Editors Leland S. McCullough Jr. Trust Accounting in Utah for Fee David Brown and Cost Advances...... 17 Christopher Burke by Anthony J. Frates Letters Editor Victoria Kidman State Bar News...... 22 'Views from the Bench Editor Judgc Michael L Hutchings Legislative Report Editors The Barrister ...... 30 John T. Nielsen Barbara Wyly

Case Summaries Editors Tribute to Retiring Judges...... 32 Clark R. Nielsen Scott Hagen

Book Review Editor Case Summaries...... 35 Betsy L Ross Advertising Utah Bar Foundation...... 37 D. Kendall Perkins

Kathryu Balmforth David Benard CLE Calendar...... 38 Barbara Berrett Sanford Beshear Brad Betebenner Glen Cook Classified Ads...... 40 Bel-Ami de Montreux David Erickson Scott Hagen COVER: Bryce Canyon in Winter, taken by Brian D. Keirn, Esq., Salt Lake City, Utah. David Hartvigsen Hakeem Ishola Members of the Utah Bar who are interested in having their photographs published on the cover of the Utah Phil Ray Ivie Bar loiimal should contact Randall L. Romrell, Associate General Counsel. Huntsman Chemical Corporation, Thomas Jepperson 2000 Eagle Gate Tower, Salt Lake City, Utah, 841 i i, 532-5200. Send both the slide (or the transparency) and Brian Romriel1 a print of each photograph you want to be considered. Artists who are interested in doing illustrations are also J. Craig Smith invited to make themselves known. Denver Snuffer John Steiger The Utah Bar loiimal is published monthly, except July and August, by the Utah State Bar. One copy of each Jan Thompson issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single copies, Judge Stephen VanDyke $2.50. For information on advertising rates and space reservation, call or write Utah State Bar offices. Barrie Vernon Terry Welch Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and Judge Homer Wilkinson publication of advertisements is not to be considered an endorsement of the product or service advertised. Elizabeth Winter Copyright!9 1992 by the Utah State Bar. All rights reserved.

December 1992 3 ..

(.

Should Utah's Judiciary Require all Court Filings to be Made on Recycled Paper?

By Randy L. Dryer

tains at least 50% waste paper. The rule failed to demonstrate any adverse impact An estimatedpaper were 14 filedmillion in Utah's pieces courts of allows lawyers one year to phase out old from adoption. The court found that recy- during fiscal year 1992, according to the paper supplies. cled paper is readily available in Florida, Administrative Office of the Courts. These In a unanimous per curiam opinion is of the same quality as non-recycled filings were generated by 655,318 new adopting the new rule on October 8, 1992, paper, and that the cost seldom varies cases filed during this same time period. If the Florida Supreme Court noted that the more than 10% from non-recycled paper. one considers the papers filed in those Florida State Legislature requires the use of cases disposed of in FY92, the number recycled paper by all state agencies and sub- UTAH'S LEGISLATIVE POLICY grows even larger. This veritable divisions that receive state funds. Florida In 1990, the Utah legislature enacted avalanche of paper raises the obvious lawmakers have legislatively set a goal to Section 63-56-20.7 entitled "Preference question of whether the Utah judicial reduce waste going to landfills by 30% by for Recycled Paper and Paper Products." should encourage, or even require, the fil- 1994. The Board of Governors of the This provision requires every "public pro- ing of court documents on recycled paper. Florida Bar opposed the proposal because it curement unit" to give preference to Recycling and the use of recycled prod- was yet another mandatory regulation on purchasing recycled paper (defined as ucts is widespread throughout private lawyers and would be difficult to enforce. paper which has a total weight of not less industry and in many states. Although The court rejected the bar's arguments, not- than 50% of secondary waste paper mate- numerous states have legislatively ing as follows: rial) unless the price for the recycled paper required the executive and legislative Because the legislature has expressly exceeds by more than 5% the cost of non- branches to purchase and use recycled established a policy for governmental recycled paper or there is no recycled paper, very few state judiciaries have entities of this state to use recycled paper reasonably available of the quality moved in this direction. In fact, only paper and to promote the develop- needed. The act also requires at least 10% Florida presently mandates the use of ment of markets for recycled papers, of the annual paper purchases by each i recycled paper for court filings, although we conclude that we should follow public agency to be recycled paper and several state judiciaries are considering that policy unless we can show its increases the percentage requirement 5% such a requirement. implementation would have adverse each year until the minimum purchase effect. requirement reaches 50%. Thus, by 1998, THE FLORIDA RULE The court also noted that the new rule at least half of the paper products pur- Beginning January 1, 1993, the Florida "places the judicial branch in a position chased by state government will be Rules of Judicial Administration will consistent with .the other branches of state recycled products. The Administrative require all filings to be on paper that con- government" and that opponents to the rule Office of the Courts, most court clerk's 4 Vol. 5 No. 10 . office and several law firms (my own use of recycled paper products is pervasive economically and an added cost wil not included) recycle used paper and purchase in our society today. Our grocery sacks, our be welcome. Over 50% of Utah's bar are recycled paper products. Very few court egg cartons, our cereal boxes and even our in solo practice or practice in a firm of documents, however, are fied on recycled checks used to buy our groceries are made three or fewer attorneys. Given the recent paper. of recycled paper. Why not court docu- dues increase, the imposition of MCLE Utah's court rules are silent on the ments? fees and other administrative costs associ- issue of recycled paper. Rule 10 of the The real issue is not whether lawyers ated with practice, any significantly Utah Rules of Civil Procedure merely should recycle and use recycled paper for increased cost to such a key element of requires all pleadings and other papers court filings, but whether the use of recy- practice as paper, wil impose a heavy bur- filed with the court to be on "good, white, cled paper should be mandatory. Setting den on the trial practitioner. Nonetheless, unglazed paper." Rule 27 of the Utah aside the philosophical issue of whether we if the answer to these two questions is yes, Rules of Appellate Procedure requires all have enough mandatory regulations govern- perhaps the time is now ripe for Utah's briefs to be filed on "opaque, unglazed ing our practice lives already, there are two judiciary to follow Florida's lead and join white paper." significant questions which must be with Utah's executive and legislative answered affirmatively before one could branches in promoting the use of recycled SHOULD THE USE OF readily embrace the required use of recycled paper. Let me, or any commissioner, know RECYCLED PAPER IN COURT paper for court filings. what you think. FILINGS BE MANDATORY? First, is recycled paper, of a quality nec- The use of recycled paper is clearly a essary for filing purposes, available in all "Post Script: laudable goal and would demonstrate to parts of the state, including rural regions? Since submitting this article to the the public that the legal profession wants Rural practitioners already have enough Journal, I have learned that due to the to be par of the solution to a known envi- practical difficulties which their urban col- good work of attorney Brian Barnard the ronmental problem, rather than be a leagues do not face without adding another Utah Supreme Court, the Court of Appeals contributing factor. Although Utah's 14- burden. and the U.S. District Court for the distrct 15 milion pages of filings each year pale Second, is the cost of recycled paper of Utah now accept court filings on recy- in comparison to the estimated 100 milion substantially the same as non-recycled cled paper. The practice is not uniform pages filed each year in the Florida sys- paper and is the cost substantially the same throughout the state district and circuit tem, everyone must do their part and, as throughout the state? Many lawyers, partic- courts, however." the same goes, every little bit helps. The u1arly solo practitioners, are struggling

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December 1992 5 Et

The Role of the Public on the Bar Commission

By Denise A. Dragoo

Accountability of the Bar to member disciplinary process with 8 public mem- In anbetween effort lawyers to improve and thecommunication public, the lawyers, is provided by the election of bers on disciplinary hearing panels and 14 Utah Supreme Court proposes to reshape eleven lawyer representatives from the eight on the Fee Arbitration Committee. The the Board of Bar Commissioners. At the judicial districts. Currently, only elected Alternative Dispute Resolution Committee recommendation of the Special Task Force Commissioner's have a vote in determining has 4 public members and is seeking to on the Management and Regulation of the Bar policy. encourage arbitration and mediation alter- Practice of Law, the Court intends to Ex-officio, non-voting members serve in natives. The Law Related Education appoint a non-lawyer public representative an advisory capacity and include the dean's Committee has 6 public members and a as a voting member of the Board. The Bar of both law schools, the chair of the Young non-lawyer executive director. This Com- Commission welcomes appointment of a Lawyers Section, two representatives of the mittee combines lawyer and non-lawyer public member, but requests that the repre- American Bar Association and the immedi- jurists to officiate at student mock trials sentative be ex-officio and non-voting. ate past Bar president. The chair of the throughout the state. The Needs of Chil- The Commission's perspective on voting Minority Bar Association was recently dren Committee has both lawyer and members should not simply be rejected as added as an ex-officio member of the Com- non-lawyer co-chairs. Nearly all Bar "impolitically incorrect." This issue relates mission. Ex-officio members provide a standing committees have at least one directly to the mission of the Bar and diversity of perspectives to Board delibera- public representative. accountability of Commissioners to the tions and a public representative wil The Bar also reaches out to the public lawyers which elect them. The issue also enhance this diversity. However, if all advi- with a variety of services. The Bar Lawyer involves the best mechanism for involve- sory members voted, the vote of elected Referral Service provides the public with ment of the public in the affairs of the Bar. members would be diluted. Activities of a lawyer referrals and an opportunity for an

large Commission could also become initial low-cost consultation regarding I ACCOUNTABILITY unweildy. Finally, a public representative their legal needs. Pro-bono services are 1'1 After much debate and introspection, appointed by the Supreme Court is how- provided by the Young Lawyers Section the Board recently defined it's mission: ever, not accountable to lawyer members through the Tuesday Night Bar Program. To represent lawyers in Utah; to and, in the Board's view, should not vote on This program was recently expanded in serve the public and the profession Bar policy. Utah County to include law students from by promoting justice, professional Brigham Young University. The Business excellence and respect for the law. PUBLIC INVOLVEMENT Law Section and the Corporate Counsel As reflected in this statement, the Bar In addition to advising the Bar on policy Section have combined forces with United represents its lawyer members. The Rules matters, public representatives play an Way of the Greater Salt Lake Area. A of Integration require Bar membership as increasing role on Bar sections and commit- series of workshops will advise board a condition to practicing law in Utah. tees. The public is directly involved in the members and officers of charitable organi-

I 6 Vol. 5 No. 10 .'j zations regarding their fiduciary and legal In sum, the public clearly has much to CORPORATION KITS obligations. The Utah Dispute Resolution contribute to the activities of the Bar. Public Project is being partially funded by the involvement is crucial to the disciplinary FOR Bar and corporate contributions to provide process and helps diminish the "fox in the UTAH neighborhood mediation services. hen house" perception of lawyer regulation. Public participation in Bar activities also COMPLETE OUTFIT PUBLIC AWARENESS improves public knowledge of and respect Finally, the Bar has encouraged media for the judicial system. The participation of $49.95 coverage to increase public awareness of the public is essential in the delivery of pro- PRE.PRINTED BY-LAWS & MINUTES its services and functions. The press is fol- bono legal services. However, the public's STOCK CERTIFICATES, PRINTED lowing the disciplinary process and role must be balanced with the fact that the CORPORATE SEAL WITH POUCH publishing articles regarding suspensions Bar is an integrated, mandatory association BINDER W/SLIP CASE & INDEX TABS and disbarment with greater regularity. of lawyers. Although the public should have SS4 FORM FOR EIN Bar Commission meetings are now held an advisory role in Bar management, the S CORPORATION FORMS (2553) $ 3.50 ADDITONAL FOR SHIPPING & HANDLING throughout the state. Press attendance at Bar's policies should be set by lawyers (UPS GROUND). NEX DAY DELIVERY AVAILABLE ÖN REQUEST AT SLIGHTLY HIGHER CHARGE. the October meeting in Ogden, Utah accountable to the lawyers which elect them. Complete kit wlo pre-printed resulted in several articles concerning Your suggestions regarding the public's By-Laws & Minutes, includes issues pending before the Bar. The media role in bar management are welcome. 50 shts. blank bond paper: is also covering the Bar's Mini-Breakfast Please send any comments/suggestions c/o $47.95 plus $3.50 S & H Series of CLE programs. John Baldwin, Utah Law & Justice Center. NEW! . NON-PROFIT OUTFIT $ 69.95 . LIMITEDOUTFIT LIABILITY $ COMPANY 69.95 7\ 7\ alphographillr -.. ..-Legal Reproduction Division

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December 1992 7 Tax Law Impacting Divorce

By David S. Dolowitz

The following is part 1 of a two-part arti- where Mr. Jones operated a business. The cle on "Tax Law Impacting Divorce". business had a net profit of $90,000.00 per year. Mr. Jones took $45,000.00 of that profit each year as his income and rein- There laware impacting certain divorceareas wherecan produce tax vested $45,000.00 into expansion of the results which are different than those business. The trial court determined for anticipated by lawyers following and uti- support purposes that Mr. Jones had an lizing state divorce statutes and decisions. income of $45,000.00 per year, precisely Lawyers handling divorce cases encoun- what was declared on his tax return, The tering these problems can find themselves Utah Supreme Court ruled that was not a mislead and their clients harmed if proper correct determination of income. The recognition is not given to the problems. court ruled that, as Mr. Jones was the sale To assist in recognizing some of these proprietor of the business, he was in a problems and adjusting to them, the fol- position to determine how much income lowing description and analysis is he would take and his true income was presented. $90,000.00 per year for the purpose of determining his support obligation, not DEFINITION OF INCOME DAVID S. DOLOWITZ is a member of the $45,000.00. The case was remanded to the State law requires that income be deter- district court to re-examine the level of mined to set both alimony and child Board of Directors of Cohne, Rappaport & Segal; Fellow, American Academy of Matri- alimony that should be set based upon Mr. support. monial Layers; Past President and Member Jones' real income. The Utah Supreme Court has declared of the Executive Committee, Family Law Examination of Mr. Jones' tax returns that the purpose of alimony is to maintain Section, Utah State Bar Association; Family would have revealed an income of the standard of living of the recipient Law Section, Utah State Bar's "Lawyer of $45,000.00 per year. Examination of his spouse as nearly as possible to that main- the Year"; Chairman, Utah Supreme business return was required in order to tained during the marriage and to prevent Chourt, Advisory Committee for Juvenile find out his true income. In terms of tax the recipient from becoming a public Court Rules of Procedure. law it is important to note that if Mr. Jones charge. In order to effect this result, the had operated his business as a proprietor- trial court must consider the income pro- ship, the income of $90,000.00 would duced by the payor, the needs of the payee that simple. have appeared on Schedule C of his tax and the income-earning potential of the The first inquiry is establishing the time return. If he had operated the business as payee. The court has also indicated that frame of the income. The Utah Court of either a partnership or a Sub "s" Corpora- the income of the parties may properly be Appeals in Howell v. Howell, 806 P.2d tion, the full income of $90,000.00 would divided equally between them to effect 1209 (Utah App. 1991) cert. denied, 817 have appeared on Schedule E of his tax these goals. Gardner v. Gardner, 748 P.2d P.2d 327 (Utah 1991) ruled that to set return. It is only if he conducts his busi- 1076 (Utah 1988). alimony, the income being used should be ness as a "c" corporation, that Mr. Jones The Uniform Child Support Guidelines that earned as of the date of triaL. This is can keep the business income off his tax require as their first step in establishing also the date upon which the determination return. Each of these methods of conduct- child support that the income of each par- of need and the recipient's ability to earn ing business and reporting income for tax ent be determined. The amount of support should be established. The same test was purposes is legal and appropriate, Conse- r is the adjusted gross income of each par- mandated in child support in Thronson v. quently, if you are working in a case ent. Utah Code Ann. § 78-45-7.5 (1992). ii Thronson, 810 P.2d 428 (Utah App. 1991) where an owner or substantial shareholder Thus, when determining either child cert. denied, 826 P.2d 651 (Utah 1991). of a "c" corporation is involved, simply support or alimony, the practitioner finds The second area of inquiry is that of accepting the W-2 and/or 1099 issued by that the first step is to define and establish defining income. The courts and legislature income. Where all of the income earned the "c" corporation will not provide con- in Utah have had to examine the concept of clusive information as to all the available by the obligor comes from W-2 earnings "income" to define precisely what it was or or 1099 interest or dividends, the inquiry income. At the same time, a Sub "s" or is. In Jones v. Jones, 700 P.2d 1072 (Utah partnership carry through may overstate or is easy. However, the question is often not 1985), the court confronted the situation 8 Vol. 5 No. 10 . understate actual income. ration. He received a salary from the corpo- It must be recognized that what occurs ration and as a shareholder in the in this area is not ilegaL. It is completely corporation was required to recognize and in accord with tax and business law. Each report a portion of the earnings of the com- ~tb form has legitimate tax and business rea- pany based on his stock ownership sons for being utilized. The lawyer percentage. Each year those earnings handling the divorce must simply be appeared on his tax returns based on Sched- book. aware of the situation, inquire into it, and ule E. However, they were not paid to him. respond accordingly. The were retained in the corporation and Examples of cases coping with these used for corporate purposes. Mr. Riepenhoff problems wil illustrate the issues being was a forty-seven (47%) percent owner of examined. the company and could not by himself In the Utah Supreme Court decision of determine whether or not the earnings Christiansen v. Christiansen, 667 P .2d would be distributed. Each year they were 592 (Utah 1983), the Defendant switched not. The trial court examining the tax return his form of doing business after entry of of Mr. Riepenhoff after the divorce, modi- the Decree of Divorce from a sale Propri- fied his child support obligation by etorship, which is reported on Schedule C, including his salary and one-half of the Sub to a professional corporation, a "C" corpo- "S" corporation earnings attributable to ration. He represented to the trial court him. The trial court then applied the Ohio that his income was the salary paid to him guidelines to order child support. by the professional corporation. The trial The Court of Appeals reversed this deci- court found that the professional corpora- sion. It pointed out that the trial court failed tion had substantial income which it to consider the fact that the retained earn- utilized to pay expenses which benefitted ings were not distributed to Mr. Riepenhoff Dr. Christiansen personally. It paid a car even though they appeared as earnings on ft'sthe allowance. It provided interest income to his income tax return and were earnings on him. It provided various employee bene- which he had to pay taxes. The appellate fits. The court determined these benefits court noted that the money was retained in law had a value of $19,000.00 and based on the corporation and was not available to the this determination, the court found that his payor merely upon request. They found Are you fluent in Limited Liability income had increased since the time of the there had been no attempt to shelter the Company Law? divorce. His request that alimony be retained earnings or to reduce the alimony You'd better be. This alternative to limited partner- reduced was denied. or child support. The court went on to note ships, partnerships, "s" corps. and close that the corporate decision to retain the corps. is taking over the countiy state earnings while the corporate shareholders by state. were required to include those earnings as This is the bok with all the state regula- part of their taxable income, resulted in tions and form plus rulings and opinions. "Effective reading of the tax decreased income to Mr. Riepenhoff, since It is complete. returns in inquiry into the It is comprehensive. he had to pay taxes on income he did not It is up to date. actual circumstances wil receive. As a result, the child support had to One prominent member of the legal produce the truth. " be readjusted based on actual income which profesion characterized it as "a very was different than the income shown on the thOroU~l and painstaking treatment of this tax return. The matter was remanded to the subject. . . of tremendous benefit to practi- tioners wishing to provide their clients with trial court to recalculate based on the real this new fonn of busines organization:' '. On the other hand, the fact that a part- income of Mr. Riepenhoff. The 828-page book is $135. That nership or Sub-"S" corporation will For the reverse of this decision there is includes sales tax, shipping and handling. 'j produce income which appears on the the case of Kenfield v. United States, 783 2d For another $40, get a computer disk Schedule E and line 18, on page 1 of the 966 (10th Cir. 1986) where Mr. Kenfield containing all form including mandatory and example fOlins from the states. All individual tax return of the 1040 can pro- was permitted to deduct from his taxable income partnership income which was fonnats available. duce an indication of income that is not Just call and charge it to MasterCard actual spendable income. This was the sit- reflected in his Schedule E. Neither husband or Visa. uation confronted by the Court of Appeals nor wife received the cash. The husband No risk. 3D-day money back guarantee. for Ohio, Jackson County in the case of deducted one-half of the Schedule E part- Riepenhoff v. Riepenhojf 64 Ohio App. 3d nership attributed income. The Internal 135, 580 N.E. 2d 846 (Ohio App. 1990). Revenue Service objected claiming it was 1-800-282-4552 Mr. Riepenhoff was the president and the husband's income. The federal courts chief executive officer of a Sub "S" corpo- ruled that the husband could deduct, and by LLL20tF

December 1992 9 implication, the wife must report and pay We teach bankrptcy ia~. .~ tax on one half of the partnership income based on a decree of divorce which :ll awarded her half of her ex-husbands part- You take the credit. nership income. This was the result though I no income was actually paid to either hus-

m~:::::~:~:~:~:~:~:~:i~:~:~:i~:~:i¡:~:~:~:~:~:~:~:~:~:~:~:~:~:~:i:~:~:~:~:~:~:~:::~:~:::~:~::¡:im~:~:~:~:~:~¡:~:~:~:~:::::r::~:::::~:::::::r~M:~:~:i~:~:mml:m:~:~:::::l~:~:~:~:~:~:~:~:~:~:~:~:~:~:~:lH:~:~:~:~:::~::¡:~:~:~:~:~:l~:~¡¡:~:l~:~:~:~:~:~:~¡:~:~¡!&¡11band or wife. It was retained in the partnership for business purposes. If Whenever a lawyer handling a divorce encounters Sub "S" income, or Schedule E income, that is, income coming from part- nerships or Sub "S" corporations, an :: I inquiry must be made to determine whether there is actual income received by :ifl:::~...: the recipient and that evidence must be SCOltsdil\e i¡~jj~ ~:~:~~ presented to the trial court so that a true Norton Institute I level of income can be set. This is one Olympia Hotel ~~~~:~~i~~:~r~ r¡ir~ instance where the tax law obscures rather Park City, Utah than aids in providing evidence of true Feb. 21-24, 1993 income. Effective reading of the tax ~~':~~-~~; I returns and inquiry into the actual circum- Co-sponsored by Banptcy Section/Utah State Bar M.ilff stances will produce the truth. ,:;;::;;: ::=~ Another area in which tax returns do :::~: not accurately reveal income is ilustrated in the decision of the Utah Court of Appeals in Rasband v. Rasband, 752 P.2d 1331 (Utah App. 1988). Not explained in ~~ the Statement of Facts in the appellate .;.:.:.: :::::::: decision, but present in the case, was the The Norton Banptcy Litigation Intitutes I & II fact that Mr. Rasband operated an insur- ance business. He reported it on his :lfl provide the most inightful and up-to-ate Schedule C as a sale proprietorship. He inormation in the field of banptcy law. Both spent money properly deducted from his I income for business expenses to support Intitutes feature the same subjec matter in four-day his automobile, for insurance, for meals, ¡:¡I for travel and for entertainment. All of mornig formats. :¡:~¡! these expenditures were legitimate busi- ness expenses. The business also paid Each Institute is led by promient attorneys and Illl :~:: personal expenses for him and enhanced ::::=a judges recognized as the nation's top banptcy his lifestyle. The trial court found that while he reported $2,000.00 per month as experts. income from his business, his real income, Other upcoming seminar on bankrptcy law: I::::=: when the court included the effect on his personal life of the paid business Pacific Institute, San Francisco, May 26-29, 1993; I expenses, raised the real income from ~:m $2,000.00 per month to pretax income of Western Mountains Institute, Jackson Hole, Wy., *i~ $3,800.00 per month. The alimony and

¡¡¡¡¡I child support awarded by the court was I July 1-4, 1993; and Corporate Counsel Bankptcy based on the real income rather than the Law Institute, Oct. 20-22, 1993. II income shown on the tax returns. In mak- ing this determination, there was no , ' Illl ilegality or impropriety in Mr. Rasband s Norton Institutes on Bankrptcy Law reporting of his income, but his net taxable income was not his true income. The trial

I court determined his true income for the ¡ (404) 535-7722 :¡¡¡~~~ purposes of awarding support. It was not ¡ I the income shown on the tax return, ¡;: , i though the tax return provided the infor- :11111 ~~¡¡¡¡¡~~~~~~¡¡1¡~~lJ.~~~m~¡~m¡t~t¡tf:¡~f:f:~~~~~~j~~~~~j~~~f~~¡¡¡¡~¡¡~¡j~j~jjj~t¡jj~jj~~~~~¡¡¡¡f:¡¡¡¡¡¡¡¡¡¡m¡t¡¡f:~¡lJ¡jjjtilf:¡¡¡¡m¡¡jjj¡¡¡jm~¡~j~f:¡¡¡¡¡¡¡¡¡¡¡~¡f:tf:tjt¡jjj~*¡¡¡¡~¡¡¡¡¡~¡¡¡¡~~;~l¡¡¡tr~¡¡¡¡f:¡~¡¡¡¡¡¡¡¡¡¡f:¡¡¡~¡¡¡j~~~~f:¡¡¡¡¡¡¡¡¡¡¡fI~

10 Vol. 5 No. 10 ~ rnation from which the true income was 1209 (Utah App. 1991) cert. denied 817 ticular question we face in the divorce. determined. P.2d 327 (1991), the Utah courts had looked When defining income, sometimes the tax The Utah Court of Appeals declared in to historical income to determine the appro- code helps and sometimes it obfuscates Allred v, Allred, 797 P.2d 1108 (Utah priate income to be used in setting support, what we are seeking. App. 1990) that trial courts in Utah must e.g., Davis v. Davis, 777 P. 2d 518 (Utah apply the child support guidelines or App. 1989); Kiesel v. Kiesel, 619 P.2d 1374 DIVISION OF ASSETS explain carefully why they declined to do (Utah i 980); Auerbach v. Auerbach, 571 When Congress enacted the law which so. On one occasion where an obligor was P.2d 1349 (Utah 1977). was codified as Section i 04 i i it appeared in prison and would not have had any that the tax difficulties created by the deci- income as defined in the Internal Revenue sion of the U.S. Supreme Court in U.S. v. Code, the Utah Court of Appeals upheld Davis, 370 U.S. 65, 82 S. Ct. 1190,8 L.Ed the decision of the trial court to award to "A final problem. . . is 2d 335 (1962), rehearing denied 371 U.S. the custodial parent the equity that the 354,83 S. Ct. 14,9 L.Ed 2d 92 (1962) had that of imputation of income. " obligor owned in the marital home to pay been resolved and the division of property his child support obligation. Proctor v. would be free of major tax considerations. Proctor, 773 P.2d 1389 (Utah App. 1989). This has not turned out to be quite as sim- Examination of Mr. Proctor's tax returns ple as anticipated. When imputing income, the court is would have revealed no income: The In general, Section 1041 provides that using a definition of income other than that approach taken by the courts indicates that when an interest in property is transfelTed which is contained within the Internal Rev- even under this circumstance, use of assets incident to a divorce, there is no tax to enue Code. If we recognize that is what we may be defined as income which can be either the transferor or the transferee. The are doing, on occasion using income as utilized to pay the support obligation. This transferee takes the property with the same defined in the Internal Revenue Code and information, will not appear on the tax basis that it had for tax purposes prior to on occasion using other definitions of return but it is a demonstration of how an the transfer. Even if its present market income, we can see how the Internal Rev- I.R.S. definition of taxable income is not value is higher than its basis, there is no enue Code fits into the determination of the sale inquiry in obtaining support. tax arising from this transfer, provided that income for support. Just as the definition of A final problem which should be exam- it is incident to the divorce. ined is that of imputation of income. alimony under Section 30-3-5 of the Utah When Section 1041 was enacted Code may agree with, or disagree with, the Where the court determines that the actual definition of alimony as contained within (1984), interest expense could be deducted income is not the appropriate figure to use by the payor and recognized as income by Section 7 i and Section 215 of the Internal in determining child support (Utah Code the recipient. However, the law regarding Revenue Code, Title 26, United States Annotated § 78-45-7.5(7) provides the interest was changed in 1986 with no Code, the definition of income for support standards for imputing income.) In Cum- adjustment in Section 1041 which has had may agree with or be in conflict with or dif- mings v. Cummings, 821 P.2d 472 (Utah ferent from that of taxable income as an impact on Section 104 i transfers. App. 1991) the Court of Appeals deter- Frequently, one part is awarded prop- defined in the Internal Revenue Code. It is mined imputation of income should be erty and the other is awarded either important to note which definition we are used when the statute so provides. Prior to judgment to equalize the property pay- considering when we are looking at the par- the decision in Howell v. Howell, 806 P.2d ment. Or an order is entered requiring

We've Added New Ca

.. I Attorneys at Law September 1, 1992 Bruce N. Lemons Boulder Colorado Springs Mr. Lemons joins us in Salt Lake Foreign Legal Consultant during Denver City from the Denver offce where 1991. Mr. Lemons concentrates Englewood London he has provided counsel in trans- his practice in assisting domestic Salt Lake City actional tax matters since coming andforeign clients with both to the firm in 1980. He has domestic and international taxa- recently returned from leave to tion issues. Calgary where he practiced as a

i i December J 992 payments to be made by one party to the est" in a 1041 situation, is to make it an ruling I.R.S. stated that if money is bor- other to balance the property distribution. alimony payment as defined in Section 71, rowed from a third party (e.g. a bank) to If any portion of those payments are con- Alimony is tax deductible to the payor and acquire a spouse's interest in an asset and sidered interest, under present law they taxable to the payee. Do this separate and it is qualified either as residential interest would be taxable income to the recipient, apart from the property transfer provisions. under Section 163, or investment interest but they are no longer deductible to the Needless to say, both parties must agree to under Section 163, the interest payments payor. Section 163(h). This has produced this treatment. It would be appropriate to will qualify for deduction to the payor and a problem upon which the Internal Rev- use it, where an alimony obligation, for neither pary need worry about the issue of enue Service has not yet taken a formal example, is going to be delineated and then how the interest will be treated. The spe- position. It is believed that if the equaliz- eliminated by the transfer of property. This cific question addressed was borrowing ing payments make no mention of interest, is using the tax law to help effect an equi- the money to buy the spouse out of the all of the payments will be considered table result. It is beneficial to both parties, marital residence. Section 1041 payments and wil not be tax and consistent both with their goals and Since a Section 1041 property transfer deductible to the payor or taxable to the with state equitable division laws. between husband and wife incident to a payee. This can be effected by including Another approach that has been sug- divorce transfers the property with the the interest in the payments to be made but gested is to indicate that the payments same basis for tax purposes it had prior to not labeling them as interest or labeling which would otherwise be interest are sim- the transfer, there is a risk that what the payments as supplemental 1041 pay- ply additional payments made under appears to be an equal division of assets is ments. Section 1041 because the principal sum really unequal. Example: The parties own If interest is being awarded, it is sug- cannot be paid at one time. stock worth $300,000.00. The securities gested that it be calculated and simply Unfortunately, since the regulations are owned in two companies and each included in the principal amounts. If it is under section 1041 do not deal with this block of stock is worth $150,000.00. The designated specifically as interest, it wil particular problem, there is no guaranteed tax basis of one block is $50,000.00 and be taxable income to the recipient. If not, safe harbor. The attorney simply must rec- the tax basis of the second block is since this is personal interest, it wil not be ognize that there is a problem which must $100,000.00. If half of each block goes to deductible to the payor under Section be handled in the most tax conscious way each person, there is no problem. If all of 163(h). This treatment is detrimental to possible. The only specific question that has one block goes to one spouse while all of both pàries. A void it. been answered by the Internal Revenue Ser- the other block goes to the second spouse, One way the parties can award "inter- vice is in Revenue Ruling 88-74, in that one wil in fact have a $50,000.00 higher

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12 Vol. 5 No. 10 tax basis and upon sale will have $100,000.00 in capital gains, while the The Law Firm of other upon sale would have a capital gain of only $50,000.00. The result if an THORPE, NORTH & WESTERN unequal distribution by operation of tax law, which is not apparent on the face of is pleased to announce the distribution itself. that A problem faced by lawyers dealing with potential tax problems is that Utah courts, as in many other states, refuse to v. ROLAND SMITH speculate on taxes. Thus, when you, as a has become associated with the firm family lawyer presenting the divorce evi- dence, try to introduce evidence of the possible tax ramifications, the trial court is THORPE, NORTH & WESTERN free to disregard it as speculative. Howell Attorneys at Law v. Howell, 806 P.2d 1209 (Utah App. 9035 South 700 East, Suite 200 · Sandy, Utah 84070 1991) cert. denied 817 P.2d 327 (Utah Telephone (801) 566-6633 · Facsimile (801) 566-0750 1991), Alexander V. Alexander, 737 P. 2d 221 (Utah 1987). Looking back to our example, only if the stock has been sold Calvin E. Thorpe Vaughn W. North and the gain must be recognized, is the M. Wayne Western Grant R. Clayton court required to make appropriate adjust- V. Roland Smith ments in the award. Morgan v. Morgan, Of Counsel 795 P.2d 684 (Utah App. 1990). Or, if the Delbert R. Phillips Alan L. Edwards parties, relying on tax law, have entered into a stipulation, and to permit any The firm concentrates in the practice of intellectual property law change from the stipulation would be patents, trademarks, copyrights, unfair competition and related matters unfair because of the tax law, then the change may not be allowed. Horne v. Horne, 737 P.2d 244 (Utah App. 1987).

i All Internal Revenue Code citations will be abbreviated to just the section number. Fully cited they are to the Internal S¡lI)F'P~te C~i/~ &.~ Revenue Code, Title 26 of the United States Code.

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CELLULARONE~ IMAGINE NO LIMITS' SSO-C=:EL.L. An Evening With the Third District Court

By Victoria K. Kidman

times have a coat and tie. Judge Hanson had attorney may end up a sacrificial lamb. Nearly variety300 Bar of opinions members dealing heard with a a more difficult time defining the dress code Efforts should be made to settle the case the entire process of civil litigation at the for women and stated that it needs to be pro- and authority should be available by November 4, 1992, CLE program "An fessional, relying upon the ever pervasive phone. Judge Lewis also uses the pretrial Evening With the Third District Court." A standard - "you know it when you see it." conference as a time to rule on tough evi- question and answer format was led by dentiary matters. TROs and PIs moderators Wiliam Bohling and John In cases involving jury trials of two or Judge Stirba advised attorneys about the Young. Distinguished judicial panelists more days Judge Stirba requires a stipu- new requirements for temporary restraining included Third District Court Judges lated pre-trial order which is similar to that orders and preliminary injunctions. She Michael R. Murphy, Timothy R. Hanson, required in the federal courts. None of the advised the new rule is more stringent and Leslie A. Lewis and Anne M. Stirba. Anne in non-domestic cases Judge Stirba will other judges on the panel require a pretrial Swensen and W. Cullen Battle provided order unless the case is extremely cornpli- make a finding as to each and every ele- insight to the panel as civil litigators. cated or lengthy. ment. She reminded attorneys to comply Some tidbits of advice are set forth with the mandatory certification require- Motions in Limine below: rnent of Rule 65A(b). Judge Murphy advised that motions in limine should be brought as early as possi- PRE-TRIAL Discovery Warfare ble and certainly before the final pretriaL. Rules of Civilty The court is not "off limits" for legiti- Judge Hanson, however, believes that The judges agreed that rules of civility mate discovery disputes, according to Judge make a difference at all states of litigation. motions in limine should be brought Lewis. However, the court can best assist immediately before trial starts. If the According to Judge Murphy "civility" the attorneys in discovery warfare if the motion is brought too early Judge Hanson should be shown to all individuals in the judge is called in advance and has the file to believes that the attorney may be seeking courthouse from clerks and bailiffs to wit- review. Judge Lewis recommended that an advisory ruling. nesses, jurors and even opposing counseL. counsel attempt to meet with the judge in Judge Hansen advised that attorneys and person rather than call the judge during the Code of Judicial Administration witnesses should be addressed by their heat of battle. Judge Hanson advised that as a practi- surnames (as opposed to given names). cal matter attorneys should ask for oral Time Processing Standards arguments on all major motions. If the Unavailabilty of Assigned Judge Imposing time processing standards on The Third District has a rule which judge certification was unanimously opposing party has already asked for oral argument then it is not necessary for the governs the situation when the judge opposed by the paneL. A proposed standard other side to also ask for argument. The assigned to a case is "truly" not available. would require trial judges to dispense with only method which puts the matter before The attorney must first attempt to find a civil cases within one year from the date of the judge is through the filing of a Notice judge on the same floor or building as the fiing. The judges didn't oppose the present to Submit for a Decision. Absent the unavailable judge. If no judges are avail- case processing standard whereby the judge Notice the court may never have occasion able on the same floor then any judge is must report any case under advisement for to know the matter is ready for argument "fair game," according to Judge Hanson. more than 60 days. Judge Stirba believes and/or a ruling. Judge Hanson advised that the attorney that the new standard is not realistic or prac- i' The judges recognized that even when should be prepared to bring the new judge ticable and promotes "microwave justice." a Notice to Submit has been filed that on up to date and inform the judge as to why the attorney is unable to contact the Pre- Trial Conferences "rare" occasions the matter may not be timely addressed. In those "rare" instances assigned judge. Judge Lewis expects that the time set aside by the court for pre-trial conferences the judges welcome a phone call to their Dress Code is used productively, meaning that the attor- clerk concerning the status of the matter. Judge Hanson, aka "the Han. Clothes neys should be prepared and be As a rule of thumb, wait 45 days before Police," rendered advisory opinions as to knowledgeable about the case. Partners reminding Judge Hanson. the dress code which should be followed should not use new attorneys who know Settlement Efforts by male and female attorneys. Judge Han- nothing about the case to attend the pre- The judges recommended that during son simply advised that men should at all trial, if this occurs the unsuspecting new bench trials it is helpful to separate the

December /992 15 trial judge from the settement negotia- to try their case through jury voir dire. experts should only be used if they have a tions. Judge Lewis advised that attorneys definite area of expertise. An expert testi- Brevity in the Course of Trial should not hesitate to suggest the trial "Blessed is the snappy and concise fying as to the proper method of stacking judge ask another judge to trade calendars toilet paper would sure to be wiped off a lawyer," advised Judge Stirba. The benefits for settlement purposes. The judges also of brevity were recognized by all the witness list in a case heard before Judge recommended that counsel should explore Hanson. judges. Attorneys that "over do it" indicate the option of having a retired judge serve to Judge Murphy that the attorney does not Objections as a mediator to facilitate settlement. know as much about the case as the attorney The judges agreed that all objections TRIAL thought he did which effect the attorney's should be timely, succinct and appropriate. credibility with the judge and the jury. If an objection is made as to foundation, Trial Briefs the attorney should state what is missing The judges concurred that the use of In oral arguments on motions Judge trial briefs can be overdone. Trial briefs Lewis advised against a verbatim recussita- from the foundation. Judge Lewis cau- are helpful in complex cases but are tion of the arguments contained in the tioned against arguing with the judge worthless in simple negligence cases tried written pleadings. Attorneys should summa- when, and if, an unfavorable ruling is ever before a jury. Typically trial briefs only rize the arguments and only hit the high given in her courtroom. points of the written materials. Contrary to need to be filed in bench trials and should Findings of Fact popular belief, all the judges claim that they be submitted with copies of the cited cases. The findings of fact should be carefully read the materials before the time of argu- prepared. The findings must be complete Jury Selection ment, even if it is a cursory reading. The judges agreed that the judge is the as possible in order to assist the ruling to proper source of the jury questions. Judge Experts stand up on appeaL. The prevailing party Murphy quipped that judge conducted voir Judge Murphy advised against the use of should prepare findings of fact supportive dire is conducive to the principle as to the repetitive expert testimony. He recognized of their position even if the court does not shortness of life. Judge Lewis is amenable that the quantity of evidence can get the specifically delineate the basis for the rul- to opening the door further by allowing attorney into more trouble than if the attor- ing. However, Judge Hanson cautioned the the attorneys to play a greater role in jury ney uses quality testimony. Judge Hanson prevailing attorney against making things recognized that attorneys are tending to up, but rather the attorney should include selection. Judge Hanson, however, was hesi- tant and feared that attorneys would attempt overdo experts and as such advised that all the grounds addressed in the brief.

THE LAW FIRM OF JARDINE, LINEBAUGH, BROWN & DUNN JARDINE, LINEBAUGH, BROWN & DUNN A PROFESSIONAL CORPORATION A PROFESSIONAL CORPORATION 370 EAST SOUTH TEMPLE, SUITE 400 SALT LAKE CITY, UTAH 84111-1290 IS PLEASED TO ANOUNCE TELEPHONE (801) 532-7700 TELECOPIER (801) 355-7725 THAT

HAROLD L. REISER CIVIL LITIGATION, ADMINISTRATIVE PROCEEDINGS, BANKRUPTCY, WHOSE PRACTICE EMPHASIZES GENERAL BUSINESS LAW, CREDITORS' RIGHTS AND REORGANIZATION, COMMERCIAL LENDING AND ADMINSTRATIVE PROCEEDINGS, CREDITORS' RIGHTS TRANSACTIONS, EMPLOYEE BENEFITS, ERISA, PENSION AND PROFIT AND COMMRCIAL LITIGATION SHARIG, ESTATE PLANNING AND PROBATE, FAMILY LAW, PERSONAL INJURY, REAL ESTATE, SECURITIES AND TAXATION HAS BECOME A SHARE HOLDER AND DIRECTOR OF THE FIRM

AN THAT LEO A JARDIN KENT B. LINEBAUGH E. SCOTT LEE JAMES R. BROWN FORMRLY OF GIAUQUE, CROCKETT & BENDINGER JAMS M. DUN SALT LAKE CITY, UTAH RICHARD H. THORNTON WILIAM G. MARSDEN JEFFERY J. DEVASHRAYEE MICHAEL N. ZUNDEL FORMRLY OF STRICH LAND, PA JOHNN. BREMS PHOENIX, ARIZONA WM. SHAN TOPHAM JOHN S. BRADLEY HAROLD L. REISER J. SCOTT BROWN E. SCOTT LEE FORMERLY OF SABEY, EPSTEIN, ORDELHEIDE & SMITH, P.e. LAURI S. HART DENVER, COLORADO DAVID E. SMOOT HAVE BECOME ASSOCIATE WITH THE FIRM JENN B. HUGGINS JEFFRY 1. DEV ASHRA YEE JUY 1,1992 J. SCOTT BROWN

16 Vol. 5 No. 10 -

Trust Accounting in Utah for Fee and Cost Advances

By Anthony J. Frates Copyright, 1992

advance is intended and that a future In fewscrutiny businesses need to bedoes given such to incomingcareful action on the part of the attorney or firm customer payments as in the legal busi- receiving the payment wil be necessary to ness. While it is a basic aspect of the fully earn the amount being paid. An financial management of any business advance payment could therefore be enterprise to identify what a customer or defined as any payment made in whole or clientis paying for upon the receipt of in part for legal services which have not such a payment, law firms generally have yet been actually rendered or completed or the burdensome duty of physically sepa- for costs which have not yet been incurred rating and accounting for certain kinds of or paid (the performance or payment of client-related payments. A recent ethics which may be conditional on receipt of the advisory opinion prepared for the Utah advance payment). State Bar makes it clear that all fee and A specific example may help to clarify cost advances made to Utah attorneys the implications of the opinion. Suppose must be placed into trust accounts. Fur- your client gives you or your firm a com- ther, the opinion helps to clarify the pany or personal check for $500, $200 of circumstances under which fee and cost which is for a filing fee that you wil soon advances can later be withdrawn from ANTHONY J. FRATES is the administra- need to pay in connection with the client's trust accounts. tor for the law firm of Trask, Britt & case (the remaining $300 of which is for Under the "old" model rules of profes- Rossa. He graduated from the University future fees). Clearly, the $500 must be sional conduct in effect in Utah until of Utah in 1977, magna cum laude, with deposited into your trust account. (Had the January 1, 1988, it was clear that at least a B.S. in Business Finance. Mr. Frates client only advanced $200 for the cost has been a law firm manager since 1978 advances for costs and expenses could be amount, that too would need to be properly deposited into a non-trust bank and is a past president of the Beehive Chapter of the Association of Legal deposited into your trust account.) When it account. Prior Model Rule DR-9- i 02(A) Administrators (ALA). Currently he is comes time to pay the filing fee, you specified that, "all funds of clients paid to the Beehive Chapter's Bar Liaison. would have two choices. First, you could a lawyer or law firm, other than pay it out of your trust account. This cre- advances for costs and expenses. . . ates somewhat of a dilemma if there hasn't were to be deposited in one or more iden- been time for the check to have cleared the tifiable bank accounts." But new Rule attorney for clients." This could alter the day-to-day practice bank; if it hasn't, you will have used $200 I.13(a) is silent as to whether client cost that heretofore has been taking place in of another client's funds (since you can't advance payments can be deposited into a keep your own funds in the trust account Utah law firms. It is not uncommon to ask a non-trust account. Was it the intention of other than for anticipated bank charges) the new rule to eliminate any distinction client to advance the amount of an airline ticket, filing fee or some other cost in the and you will obviously need to immedi- 1\ between whether a client advances funds ately cover the client's check out of your for fees or costs? course of handling a matter. It is clear now that any such advance as well as any funds if the check doesn't clear. The answer is "yes" pursuant to Ethics In fact, the Utah Bar Foundation's advance that might be paid to cover future Advisory Opinion #118, which was "Trust Account and IOLTA Guidelines" legal fees must be placed into a trust account. accepted by the Board of Bar Commis- pamphlet goes one step further: sioners on August 18, i 992 (and was The opinion does not specifically define what constitutes an advance even though A check must clear the bank published in the November issue of the before money is disbursed from the this is critical for proper handling of client Utah Bar Journal). The opinion states trust account; otherwise the dis- that, "AlI advanced funds are the property payments. Implicit in the idea of an advance is that at least some or all of the fees are bursement is taking money from of the client and most be deposited in a other clients who have money in the unearned and/or costs unpaid for which the separate trust account maintained by the trust account.

December /992 17 So, the first option may not be a practi- fen"ed at that time presumably to avoid what trust would appear improper. Often how- cal alternative when the funds aren't might be described as a reverse or passive ever firms deposit client payments into received in the form of a cashier's check commingling of funds. Passive commin- trust whenever a prior billing relating to or the equivalent and they need to be dis- gling allows funds that originally belonged that payment does not yet exist; the exis- II bursed very quickly. to the client and that have since become the tence of a prior billing however is not Second, you could simply pay the filing property of the attorney to remain with alone the critical factor. What if payment fee out of your general operating or busi- thos~ of other clients. This is as opposed to is delivered on the same day that services ness account. This would show up on your mixing client funds with attorney funds will be rendered or costs paid? If the attor- í next bill to the client and would more which is the way that commingling of funds ney or finn hasn't actually fully completed u clearly itemize costs incurred from a is usually thought of, going back to at least the service or incurred the cost, technically I billing standpoint rather than paying it out 1908 when the legal profession adopted the this would be an advance. But if the work Ji of trust. But, as soon as you pay the $200 Canons of Professional Ethics. is completed and/or costs incUlled simul- filing fee, may you transfer $200 in the For internal policy purposes, the review taneously upon receipt of the payrnent, i.e. trust account to your operating account out and receipt period creates somewhat of an on the same day, then handling the pay- of which the filing fee was actually paid? administrative policy problem. Review and ment as an advance may not be necessary Prior Rule DR-9- I02(A) (2) stated that, receipt should occur immediately if a billing nor appropriate. ". . . The portion belonging to the lawyer is hand-delivered to a client. If mailed to an What if a check that would otherwise or law firm may be withdrawn when due overseas client, several weeks could be constitute an advance when received is unless the right of the lawyer or law firm needed. If sent to a client who is known to held and not deposited for several days to receive it is disputed by the client. . ." be on an extended vacation, a month may be until the work is actually performed and/or New Rule 1.3(c), which is said to be sim- insufficient. It is presumed, however, that a costs incurred? Opinion #118 states that ilar to prior Rule DR-9- I02(A) (2) in the week to ten days following mailing would advanced funds are client property and code comparison comments printed with be sufficient in most cases. must be deposited into a trust account so the Utah Rules of Professional Conduct, this does not appear to be an available indicates that "the property shall be kept option. separate by the lawyer until there is any What if a payment is made in response accounting and severance of their inter- to a billing that includes services that have "Utah now. . . requirelsj some II ests." The recently-released opinion reads: been performed but the firm hasn't actu- II When there is no special written form of client consent before ally paid for some or all of the billed retainer agreement between lawyer legal fee advances can. . . be costs? If the firm is liable for the costs at and client, the lawyer must hold all withdrawn from a trust account. " the time the client payment is received, i.e. client funds in the trust account until the firm will eventually be required to pay the client has been provided with an the costs regardless of whether a client accounting of how the funds have reimbursement is made, then the payment been incurred for costs or earned as is not an advance in accordance with the fees. After the client has been It is, in any event, clear that the practice definition suggested earlier; otherwise it afforded an opportunity to receive of simply applying client monies in trust to is. The bar's ethics advisory committee and review the accounting, fund trans- a billing before that billing is even mailed is currently is studying issues relating to fers may take place as appropriate. not considered ethical in Utah unless specif- what extent an attorney is a guarantor of (It's unfortunate that the opinion uses the ically permitted in the language of the client certain kinds of client related costs the word "retainer" as more fully discussed representation agreement. Utah now joins opinions related to which may provide fur- later in this article. In the context of the the majority of states which require some ther guidance in this area in the future. opinion, however, it seems apparent that forrn of client consent before legal fee Frequently, clients are asked to bring "retainer" rneans the retaining or employ- advances can actually be withdrawn from a past-due balances current and provide ing of the attorney or law firm and does trust account. additional funds for new work that may be not mean that a "retainer" payment is Like so many things in life, timing is required in an ongoing matter. If the client involved.) everything when considering whether an pays $5,000, $3,000 for existing balance Clearly then, absent representation or advance payment has been made. An and $2,000 for new work, the full $5,000 1\ i "retainer" agreement language to the con- accounting is generally required for funds to must be deposited in trust and the $3,000 trary, the $200 amount could not be be withdrawn from a trust account, but what transferred as soon as the original check transferred until after a billing or some if the services have been rendered and/or has been collected by the bank. To avoid other "accounting" had been rendered and costs paid or incurred at the time payment is the administrative inconvenience, an alter- after the client had received and reviewed received but before a billing has been pre- native would be to ask the client to the billing. The opinion provides no guid- pared? This situation would not fit the provide separate checks for existing bal- ance as to how long an attorney or law definition of an advance as outlined earlier ances versus advanced amounts. Clients firm should wait to allow for the receipt in this article. Assuming the payment does may not understand or appreciate such a and review of the accounting, but goes on not include any portion other than for what request however and usually collected to state that the funds need to be trans- has been earned or incurred, deposit into funds can be obtained within a few days. 18 Vol. 5 No. 10 - In a recent article in the ABA's Law ion, all Utah law firms need to review their 3. The period of time that must pass Practice Management publication, it was client representation agreements and ensure before trust disbursements can be made on contended that an advance payment for a that language is contained in the agreements a trust deposit. flat fee service (as compared to a service that clearly indicates at what point advance 4. How trust disbursements are to be biled on an hourly basis) does not payments can be withdrawn to cover costs requested, approved and processed, have to be deposited into trust. This notion incurred and fees earned. Further, all firms including what accounting entries are appears to be without merit, at least in should update (or establish as necessary) made. Utah. The key question is whether the firm written trus t account handling policies 5. Procedures relating to reconciliation has performed/completed the service. If at which are communicated to and followed of accounts and biling. the point of payment the firm has fully by all firm employees. These internal guide- 6. The time at which advance payments provided the service (whether it is a one- lines should document all pertinent firm can be transferred or withdrawn to pay shot offce conference, a flat fee charge policies including: fees earned or costs incurred. for a completed will or an hourly-based 1. How funds are identified as being trust 7. Other procedures including client service that has been performed), then funds and specific steps that must be fol- notification, safeguarding of client prop- deposit into trust is not appropriate. But lowed concerning how the check is erty, etc. to ensure overall compliance with flat fee or not, until the service is per- deposited, who deposits it, what happens Rule 1.13. formed and/or cost paid or incurred, the when the check is made payable to both the 8. Information relating to income tax client has a potential right to all or a por- client and the firm or attorney, what and government reporting requirements. tion of the funds advanced (however accounting entries are made, etc. As usually cash-basis taxpayers, incoming small). (Identification of trust funds should advances will usually be taxable income to Not answered by the opinion is whether include a further determination as to the law firm upon receipt even though an advance payment can ever be charac- whether any portion of the amount wil ulti- deposited initially into trust (this may best terized as non-refundable and therefore mately be paid to the firm or whether the be handled on a year-end review basis earned upon receipt and deposited into a amount is strictly an escrow-type receipt. rather than on a check-by-check basis). non-trust account. The Utah Bar Founda- This may be especially important for proper Further, disbursements made out of trust tion's trust pamphlet makes a specific input into the firm's time and biling system accounts are not immune to 1099 report- distinction between a true retainer and an and may also be a factor in the determina- ing requirements. advance payment and specifically indi- tion of the next item below. The person that Through the use of written policies, cates that a client payment could be accounts for and/or deposits the funds skilled staff and ongoing education and non-refundable. There are further, cer- should be someone other than the person monitoring, Utah law firms can not only tainly historical, precedents in other who opens the mail, if possible.) help ensure that they meet their ethical jurisdictions that distinguish between 2. The circumstances under which funds obligations with respect to trust account- advance payments and retainers. In an arti- should be deposited into a separate, interest- ing for fee and cost advances but can also cle written by ethics counsel for the bearing account which benefits the client help maintain the trust of their greatest ABA's Center for Professional Responsi- rather than in the firm's general trust asset: their clients. bility which appeared in the April 1990 account; who is responsible for opening issue of the ABA Journal, it is, however, separate accounts. stated that: The existence of specific ethics code provisions requiring the return of any unused portion of a fee, such as DR-2-11O(A) (3) of the former Model Code of Professional Responsibility, Datalrace Investigations, Inc. has been interpreted to indicate that no fee advanced by a client can ever P.o. Box 57723, Salt Lake City, Utah 84157 be truly non-refundable. In new Rule 1.14(d), a similar provi- . i\ sion is included. The ABA Journal article 'Asset Searches .Skip Ti'acing .Background Checks goes on further to say that even with the -.Public Recoi'ds .Surveilance .Witness Statements client's written approval, an advance can- not be handled as if it were a SCOTT L. I-IEINECKE non-refundable retainer, because there is Private Investigator no such thing. Currently before the ethics Office (801) 261-8886 FAX (80l) 261.8858 advisory committee is a request for clarifi- Toll Free (800) 748-5335 cation as to whether or not non-refundable retainers exist in Utah, which wil hope- Licensed · Bonded fully help settle the question here. In light of the recently-released opin-

December 1992 19 -- . . froID the Utah State Bar ii

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Mark Your Calendars Now For the Utah State Bar 1993 Mid Year Meeting St. George, Utah March 11-13

20 Vol. 5 No. 10

¡¡ ini-Breakfast Seminar Series FREE OF CHARGE/SPONSORED BY THE UTAH STATE BAR

. December 16, 1992 . State Legislative Issues Affecting the Legal Profession, or What are My

;i) Lawyer Legislators Doing for Me Anyway? Utah's Lawyer Legislators . January 20, 1993 ~~ Ten Practical Pointers on Practice Development and Marketing for the Small Firm Practitioner, or How Do I Compete with the Big Firms without Busting the Budget? Vicki Cummings, Marketing Director, Parsons Behle & Latimer Lindsey Ferrari, Practice Development Consultant, Fabian & Clendenin

February 25, 1993 The Inner Workings of the Utah Court of Appeals, or How are Decisions Made up there Anyway? Hon. Pamela T. Greenwood, Utah Court of Appeals Mary T. Noonan, Clerk of Court, Utah Court of Appeals

ALL SESSIONS ARE OFFERED FREE OF CHARGE TO UTAH STATE BAR MEMBERS and will be held at the Utah Law & Justice Center, 645 South 200 East. Each session will begin at 8:00 a.m. and end promptly at 9:00 a.m. These are intended to provide useful and hopefully interesting information for lawyers but are not meant to be CLE offerings. A continental breakfast will be provided.

Please R.S.V.P. by calling 531-9095 at least one day in advance of the seminar you wish to attend.

December 1992 21 ~I iii ~I -- STATE BAR NEWS Commission Haslam as the President's Representa- ABA's model rule for pro bono ser- tive to the Judicial CounciL. The Board vice requirements. Highlights expressed its appreciation for Haslam's Dryer asked that the issue be studied work on the Judicial CounciL. further at the December meeting and During its regularly scheduled meeting 1 i. Dryer reported that he met with Judge that the Committee provide a copy of of October 29, i 992, which was held in David Young, Judge Michael Hutch- the full ABA rule proposal as well as Ogden, Utah, the Board of Bar Commis- ings and Mike Phillips of the statistics on unmet needs and why sioners received the following reports and Administrative Office of the Courts to they are not being met in Utah. took the actions indicated. create a draft instrument to survey i 8. The Board met with the Weber County judges regarding lawyers. Bar during lunch. Short reports and 1. Stephen Trost reported on General 12. Dryer reported that he, Jim Lee, Lee questions and answers were Counsel matters and noted that twelve Teitelbaum and Lisa (Elizabeth M.) exchanged. cases are under review with the Unau- Peck appeared on KSL-TV's Focus 19. Client Security Fund Committee Chair, thorized Practice of Law Committee. Program on October 26, 1992. Their David Hamilton, reported that checks 2. The minutes of the October i, 1992 appearances provided some positive had been distributed totaling $ i 2,230 Commission rneeting were adopted exposure and some insight into what law for claims approved at the August 20, with some minor corrections. school is like, and what it takes to pass 1992 Commission Meeting leaving a 3. Trost also reported that he and Randy the Bar, and how the profession is today. balance of $87,376 in the Client Secu- Dryer appeared before the Supreme i 3. Dryer related that he met with the Exec- rity Fund. Court Committee on Discipline to utive Committee of the Women Hamilton pointed out that due to the propose the Bar Commission's posi- Lawyers of Utah and discussed ways large volume of claims to be reviewed tion on standards. the Bar Commission could be more by the Committee two panels con- 4. Dryer reported on his appearance responsive to their needs. vened on September 18 - one before the Legislature's Judiciary i 4. Dryer asked Mike Hansen, Denise Dragoo chaired by himself and one chaired by Interim Committee and Supreme and Paul Moxley to review the pro- Miles P. Jensen. Hamilton summa- Court Advisory Committee on Profes- posed modifications to the Code of rized the two panel reports and sional Conduct. Judicial Conduct and report on recom- recommendations and answered the 5. Dryer reported that he proposed adding mendations at the December 3, 1992 Board's questions. The Board two voting members appointed by the Commission meeting. approved the disbursement of Bar to the Judicial Council for three- 15. Alternative Dispute Resolution Com- $21,700. year terms so that the Bar could mittee Chair, Din Whitney, Chair, 20. Executive Director, John C. Baldwin, provide more input to reflect lawyers' reviewed a proposed Educational ADR referred to his Executive Director's interests and provide accountability. Program. The Board authorized the written report and the Bar's Depart- 6. The Board voted to authorize the Exec- ADR Committee to (1) undertake a pro- ment Activity summary. He utive Committee to seek two voting gram of systematic evaluation of various specifically noted increased Bar Com- attorney positions on the Judicial legislation and other programs in alter- mittee activities and the support and CounciL. native dispute resolution; (2) undertake servicing by Richard Dibblee. He also 7. Dryer reported that the gubernatorial a program of education of the Bar noted that as of October 27, i 992 the debates sponsored by the State Bar members as to the benefits of ADR; Tuesday Night Bar program has now and the Salt Lake County Bar went and (3) ask the Bar to defer taking any expanded to Utah County. very well and that about 160 people public action involving ADR legisla- 21. Baldwin noted that on October 8, 1992 were in attendance. tion until such evaluation is complete. a New Commissioner Orientation was 8. Dryer reported that about 70 lawyers 16. The Board reappointed Mary S. Tucker held with Steve Kaufman to answer attended the first Mini-Breakfast and James H. Backman and appointed some of his questions about Bar orga- Seminar on October 21, 1992 and that Mark E. Kleinfield to the Board of nization, activities. and management. presenters, Fred Metos and Greg Sko- Directors of Utah Legal Services, Inc. Kaufman expressed thanks and appre- rdas, did an excellent job. 17. James Backman of the Delivery of Legal ciation for Baldwin and Bar staff 9. Dryer reported that 204 new attorneys Services Committee, reported that the spending time with him. were sworn in to the Bar on October Committee was given the charge to 22. Budget & Finance Committee Chair, 27, 1992. He noted that about 20% of explore and make recommendations for Mike Hansen, referred to the Septem- the admittees were women and that 43 appropriate means of legal representa- ber financial statements. different law schools were repre- tion for law income and indigent people 23. James Z. Davis distributed his memo sented. and that they would like to propose that to the Bar Commission summarizing III 10. Dryer reported that Jim Davis has the Bar's two delegates to the Ameri- the October 26, i 992 Judicial Council J been appointed to replace Dennis can Bar Association support that meeting. I'

22 Vol. 5 No. 10 ! dI Discipline Corner of law and this was the attorney's first An attorney received a Private Repnmand divorce case. The attorney agreed to make for violating Rules 1.4, Communication ADMONITIONS full restitution of the fee. and '1.3, Dilgence of the Rules of Profes- On September 24, 1992, an attorney sional Conduct of the Utah State Bar. The PRIVATE REPRIMANDS attqrney'!was retained on February 19, was Admonished by a Screening Panel for failing to exercise reasonable diligence in On October i, 1992, the Board of Bar 1990 and shortly thereafter filed a com- the handling of a personal injury case. The Commissioners approved a Private Repri- plaint for divo!:ce. On March 20, 1990 he attorney was;retained in February 1990. mand recommended by a Screening Panel appeared at a hearing for temporary relief. Thereafter, the attorney failed to obtain the of the Ethics and Discipline Committee Thereafter the attorney failedto make any necessary docurnentation to prosecute the regarding an attorney who violated Rule meaningful progress in the case culminat- I case, failed to take action to settle the case 1., COMPETENCE, Rule 1.3, DILIGENCE, ing on October 18, 1991 in a court or file suit until discharged by the client in and Rule 1.4(a), COMMUNICATION, of initiated Order to Show Cause why this March 1992. During this period of time the Rules of Professional Conduct. The case should not be dismissed for failure to the attorney!failed to return phone calls or attorney was retained on or about Novem- prosecute, Further the attorney failed to keep the client informed as to the status of ber 1990, to represent a Client in a domestic communicate with the client subsequent to relations matter. On or about July 1991, a the case. the March 20, 1990 hearing. In mitigation hearing was held before a Commissioner. On August 18, 1992, an attorney con- the attorney forgave the unpaid balance on sented to an Admonition for failing to The attorney never submitted the proposed the client's account. exercise reasonable diligence and failure Order until on or about November 1991 and On October 8, i 992, the Board of Bar to keep the client reasonably informed as then failed to attach a child support work Commissioners approved a Private Repri- to the status of the client's case. The attor- sheet, a Statement of Compliance, defen- mand recommended by a Screening Panel ney was retained in October 1990 in a dant's current earnings, and copies of tax of the Ethicsiand Discipline Committee domestic relations matter. The attorney returns. Consequently, the Order was against an attorney for violating Rule 1.4, was making some progress on the client's returned to the attorney unsigned. The attor- COMMUNICATION, and Rule 8.4(c), case, however, the client was not informed ney failed to obtain the necessary MISCONDUCT, of the Rules of Profes- of the progress and had to make repeated documents and resubmit the proposed Order sional Conduct. The attorney was retained requests for copies of documents. It often until on or about January 1992. Between in the summer of 1989 to represent a client took several months to obtain a copy of a July 199 i and February 1992 the attorney in connection with a workers compensa- document requested from the attorney. failed to return the client's phone caIls or tion matter. Between the summer of 1989 On October 22, 1992, a Screening keep the client informed as to the status of and November 1990, the attorney failed to Panel voted to Admonish an attorney for the case. The attorney took no action on the respond to numerous requests for informa- failing to exercise reasonable diligence case between July 1991 and February 1992 tion made by the client about the status of and failure to keep the client reasonably because the client had not paid all of the the case. In November i 990 the attorney informed as to the status of the client's fee. The Screening Panel determined that filed an Application for Hearing and a bankruptcy case. The attorney was the attorney had a duty to either take action hearing was set for April i 99 i which was retained on or about November 1991. on the case or withdraw. canceIled in March 1991 to allow an inde- Between that date and July 1992, the attor- On October 1, 1992, the Board of Bar pendent medical examination of the client. ney failed to return phone caIls, failed to Commissioners approved a Private Repri- Based on that medical examination the keep an appointment and failed to take mand for an attorney who violated Rule 1.3, defendants agreed that the client was per- action to recover approximately $750.00 DILIGENCE, Rule 1.4(a), COMMU- manently and totally disabled. The in wages belonging to the client that were NICATION, Rule 3.2, EXPEDITING attorney failed to notify the client of this improperly garnished by a creditor. LITIGATION, and Rule 8.4(c) (d) MIS- determination. In October 1991, the client On October 22, 1992, a Screening CONDUCT, of the Rules of Professional contacted the Worker's Compensation Panel voted to Admonish an attorney for Conduct in connection with the handling of fund and learned that settement of the failing to exercise reasonable diligence, a domestic relations case. The attorney was claim had been reached. The client termi- failure to kpep the client reasonably retained on or about April i 988 and was nated the employment of the attorney and informed as to the status of the case, and advised by the client that it was important completed the matter pro se. for charging a fee in excess of the value of that the divorce be obtained as quickly as the work performed. The attorney was possible. The attorney failed to obtain a trial PUBLIC REPRIMAND retained in AugUst i 991 to represent the date until February 1989, failed to appear at On October 2, 1992, the Utah Supreme client in a domestic relations matter. The a hearing in May 1989 until caIled by the Court publicly reprimanded and imposed a attorney failed to take action to prosecute client from the court house. The parties two year unsupervised probation on Dan the divorce, failed to return phone calls or reached an agreement in May 1989, how- Adamson for violating Rule l~3, Neglect. keep the client informed as to the status of ever, the attorney failed to draft and file the Mr. Adamson represented a high volume the case. In May 1992, the client met with proposed Order until July 1989. The attor- collection agency when the complainant the opposing counsel and the opposing ney also failed to return phone caIls and retained Mr. Adamson to represent her party and negotiated a settlement to the misrepresented to the client that a trial date collection agency as welL. The com- case. The attorney was new to the practice had been set. plainant experienced excessive delays in

Decemher 1992 23 1

the filing and prosecution of her cases due funds. Mr. Culbertson was charged with the Utah. The conviction was affirmed by the to Mr. Adamson's inadequate staff, equip- violation of Rules L13(b), Safekeeping Tenth Circuit Court of Appeals on May ment, software, office space and working Pr()perty and 8.4(b) & (c), Misconduct of 22,1992. The events giving rise to this capitaL. the Rules of Professional Conduct of the conviction occurred in 1984 when Mr. Utah State Bar. Engstrom was Vice President, Corporate SUSPENSIONS On September 28,1992, :the Utah Secretary, and General Counsel to a bank. On October 14, 1992, Richard J. Cul- Supreme Court entered an Ofderqf,Interim He became financially involved witil per~ bertson was placed' on suspension for a Suseension tem~orarilysuspending,Gary 1. sons wilo sought to obtain financlal period of one year commencing" An~ers~ntrom the practice of law pending assistance ,:from his bank for a business November 15, 1992. The~suspension the ;resoluti()n;of aeproxi~ately 22 ~ormal venture. In ordero toO keep this ventiire ì stemmed from rvr. °Culbertson' s failure to Complaints ooounder~?llsiClerati()n by a';Hear- viable Mr. Engstrom certified to comply with~the terms ~nd conditions .of in?Palle19f the~thi?s and!I)isc~~iine baakruptcy trustee that the persons with his probation. On March 19, Mr; 'oooCq~J1itt~~. Mr.,Andeq0!1wstipulated to the whom he was involved had deposiú:d Culbertson received' aoPrivate Reprtrnand, ~Jnterirn Suspension. .' $256,712.67,for which no funds had been was ordered to~make restitution and was d~posited. Following this, fou~ other mis~ ',: ',:::,,:i-. ':'::.::,', ,:_',_' ",,_,_::.:_,: . ,_:"'::-,,: -"",')(:",,:::::.: ...,:,....::.,. '.",::::'::;:;',"j:".::::.',:'Vß placedonao~e (1) year. ;upervised proba~" applications of bankfunds occurred when tion for commingling fUllds, . failure too oMr.Engstrom sent drafts on his obank;to ' communicate and writing checks on , other banks 'totaiing $1,815;000.00; Thes€w ac~ount.wÙh insufficientfi-!~ds/ W!ile qn ; dra(ts ~ere baseq on èhecks deposited in ì probation, he agreed~to'represent~aoclient ,!llisbank;from his ~usi!1ess associat,es o. ° in" a! c~ll~etion;matter anc!,upollo collècting ..which : .. . ,_.3:' ':,:: he' . -"0 _,:.,.:;:..knew : '::"" would ¡siC .~:; : ¡"''''::,'-:::. not :,_,:"::;eb',:,' be honore "::": ,;"::::':::':':: ,'::::Lii'" approxi,mai~ly¡$f,365;90¡ he ,failed to; ~when presented for payment. Upon deni promptl y deliver the ftìnds to his client; ,.of his. appeal rvr. Eng~iroin sJipulate! and risrepresen:ieå the ~hereabòûtsof the~ "" '"~ '/%:':LÚ:".-_",)_,,'" -:':"')L,',,':':',-, ":,~E':::::¡:"'::' -, :./'.::,' '. -,-, ",-. ....,#, \'t' disbarmerit.,'" "t . n" '. 0 00"

THE LAW FIRM OF VV ALSTAD & BABCOCK Snell & Wilmer A PARTNERSHIP OF PROFESSIONAL CORPORATIONS is pleased to announce IS PLEASED TO ANNOUNCE THAT the relocation of the Salt Lake City, Utah office JEFFERY R. PRICE AND Broadway Centre 11 East Broadway, Suite 900 BRIAN J. BABCOCK Salt Lake City, Utah 8411-1004 HAVE BECOME ASSOCIATED WITH THE FIRM (801) 237-1900 Fax: (801) 237-1950

ROBERT F. BABCOCK, P.C. PAUL J. WALSTAD, P.C. BRIAN J. BABCOCK Resident Attorneys DARREL J. BOSTWICK STEVEN D. CRAWLEY David F. Evans Wiliarn C. Gibbs MARY LOUISE LECHEMINANT Wiliarn G. Gibbs Wiliarn R. Gray CYNTHIA B. NEUENSCHWANDERt JEFFERY R. PRICEt Cary D. Jones Thornas L. Kay KENT B. SCOTT David E. Leta Philip Palrner McGuigan STEPHEN O. TAYLOR 1i Blake D. Miler John R. Morris DANIEL G. WORTHINGTON i OF COUNSEL - RANDY B. BIRCH Mark O. Morris Paul D. Newrnan Greg R. Nielsen Lynn H. Pace tADMITTED ONLY IN CALIFORNIA tALSO ADMITTED IN PENNSYLVANIA I Jeffrey T. Sivertsen WALSTAD & BABCOCK BUILDING COTTONTREE SQUARE SUITE 9C i Ii 254 WEST 400 SOUTH 2230 NO. UNIVERSITY PARKWAY SALT LAKE CITY, UTAH 84101 PROVO, UTAH 84604 II (801) 531-7000 (801) 377-5777 SALT LAKE CITY . PHOENIX . TUCSON . ORANGE COUNTY FAX, (801) 531-7060 FAX, (801) 377-8877

24 Vol. 5 No. JO a Announcing: The opening of the application period for a judicial vacancy, serving the First District Court, encompassing Rich, Cache and Box Elder counties. The position results from the retirement of Judge Franklin Gunnell. Applications must be received by the Administrative Offce of the Courts no later than December 15, 1992.

Eligibility Requirements: Applicants must be 25 years of age or older, u.s. citizens, Utah residents for three years prior to selection and admitted to practice law in Utah. In addition, judges must reside within the geographic jurisdiction of the court they serve.

Selection Process: Article VIII of the Utah Constitution and state law provides that the Nominating Commission for the district where the vacancy occurs shall submit to the Governor three to five nominees within 45 days of its first meeting. The Governor must make his selection within 30 days. The judiciary has adopted procedural guidelines for nominating commissions, copies of which may be obtained from the Human Resources Division, by callng (80l) 578-3800. Each Nominating Commission is chaired by the Chief Justice, or his designee from the Supreme Court, and is composed of two members appointed by the state bar, and four non-lawyers appointed by the Governor. All appointed members must reside in the district where the vacancy occurs. 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 of written public comments. This portion of the meeting is open to the public. Those individuals wishing to provide written public comments on the challenges facing Utah's courts in general, or the First District in particular, must submit written testimony no later than December 22, 1992, to the Administrative Office of the Courts, Attention: Judicial Nominating Commission. No comments on present or past sitting judges or current application for judicial positions wil be considered.

December 1992 25 r----

I PASS LIST I' i February 1992 Examination I

Leon W. Abadie Margaret K. Gentles Richard A McFarlane David L. Sanders Joseph A Alldredge Mark A Glick Jerry K. Miles Eric D. Schifferli Samuel M. Barker Todd 1. Godfrey Gregory A Miles Brook J. Sessions Richard A Bednar Albert W. Gray Lewis E. Miler Alan B. Sevison Stephen G. Bennett Jonathan O. Hafen James L. Mouritsen James K. Slavens Richard W. Black LinkK. Hall Charles Nagel Nena W. Slighting Ted A Bullock Melinda C. Hibbert Susan C. Noyce Marianne G. Sorensen Paul G. Cassell Brent M. Hil Janice R. Olson Clay W. Stucki Cameron T. Chandler Jeffrie L. Hollingworth David L. Ostler Karen O. Studley Gretchen Cole Rick V. Hosler Tani L. Pack Scott H. Sweat Chou C. Collins Cynthia D. Jensen Edward (Ted) Paulsen Dana Swenson Paul E. Cooper Kenneth O. Kemp Kenneth J. Peterson Lonny E. Townsend Marlin G. Criddle Julie A Klauck Peggy E. Peterson 1. Benjamin Tyler Scott N. Cunningham Matthew L. Lalli Richard E. Pierce, Jf. Mark T. Urban Matthew W. Driggs N. Todd Leishman Norman E. Plate Rebecca D. Waldron Alan L. Edwards Robert A Lonergan Mark D. Ramey Allan O. Walsh Donald G. Ezzell Joseph W. Long Korey D. Rasmussen Harold O. Welch Karen Flynn Ted H. Luymes Valerie A Rich Gregory L. Wilde Brett L. Foster Robert C. Martin Tiffany M. Romney Marshall S. Witt David C. Frankel Mary J. Marineau Brent D. Rose Michael W. Wright James D. Garrett Clark A McClellan Sara 1. Ryan

The law firm of Law Offices TRASK, BRITT & ROSSA TRASK, BRITT & ROSSA a professional corporation a professional corporation

is pleased to anno~nce that DAVID V. TRASK ALLEN C. TURNER WILLIAM S. BRITT previously with Akzo Pharma bv THOMAS J. ROSSA The Netherlands LAURENCE B. BOND (and formerly with the firm) and JOSEPH A WALKOWSKI E. RUSSELL TARLETON A. JOHN PATE have become associated with ALLEN C. TURNER the firm as patent attorneys JULIE K. MORRISS and that A JOHN PATE SUSAN E. SWEIGERT, Ph.D. registered patent attorneys has become registered to practice SUSAN E. SWEIGERT, Ph.D. before the U.S. Patent Office. registered patent agent The firm's practice will continue to emphasize intellectual property law including United States and foreign patents, TRASK BRITT & ROSSA trademarks, copyrights, licensing, unfair competition, rrade 525 South 300 East Post Offce Box 2550 secrets and related administrative proceedings and litigation. Salt Lake City, Utah 84110 Telephone (801) 532-1922 October, 1992 Facsimile (801) 531-9168

26 VoL 5 No. 10 PASS LIST July 1992 Examination

Gregory J. Adams Peter G. Diamandis Michael S. Kottler Gary D. Pierce . John L. Adams Alan S. Drage John E. Laherty Michael E. Postma Catherine Agnoli Randon H. Draper Jay R. Larsen Mark L. Preslar Kenneth Allen Jonathan K. Driggs Kevin B. Laurence Jeffery R. Price Kimberly Allred Matthew M. Durham Che10m E. Leavitt Irene Rees Rob M. Alston Nancy G. Edwards Michael R. Leonard Preston C. Regehr Lisa A. Altman Sergio A. Elizalde Sharon K. Letham James R. Richards Daniel G. Anderson Michele L. Engel Robert C. Lofts Val D. Ricks James E. Anderson Paul S. Evans Jonathan W. Lysenko Rodney W. Rivers Marci A. Anderson Scott T. Evans Alan T. Macdonald J. Wesley Robinson Lucy K. Andre Rodney R. Farnsworth Robert E. Mansfield Michael A. Royal Kelly J. Applegate York M. Faulkner Pamela Martinson Carol Salem Randy T. Austin Michael H. Finley Craig W. McArthur L. Dean Saunders Brian J. Babcock David N. Fogg Daniel P. McCarthy Lisa R. Schlottman H. Deloyd Bailey David B. Fonda David M. McGrath James 1. Schollan Hal D. Baird David J. Friel Heidi J. McIntosh Jeanette 1. Secor Diane R. Balmain Jaqualin Friend Thomas H. McWhorter Laura K. Sensenig David T. Barton Kelly S. Frye Charlotte H. Meacham Ruthi P. Seshachari Keith L. Barton Robert B. Funk Angela M. Micklos Steven G. Shapiro Emilie Bean Kevin S. Gardner Tony B. Miles Ryan C. Shaw Brock R. Belnap Julie George Joseph E. Minnock Eric 1. Smith Leslee B. Bennett Anthony C. Goodall J. Grant Maddy Othal Smith, Jr. Edward A. Berkovich Robert D. Grant Wiliam R. Morse Kent E. Snider 1. David Billeter Christopher D. Greenwood Robert C. Morton Terry R. Spencer Guy L. Black Daniel J. Greenwood Jeffrey M. Moss Daniel L. Steele Rosemond V. Blakelock Christopher M. Greer D. Gregory Mulligan Ellyn L. Sternfield Alan R. Blank John M. Guynn Duncan T. Murray Carolyn P. Stevens Scott T. Blotter Benjamin A. Hamilton Blake A. Nakamura William J. Stilling Craig 1. Batt Preston L. Handy Kenneth E. Nease Steven C. Strong Elliot L. Bressloer Craige F. Harison Douglas L. Neeley Kevin L. Sundwall Douglas R. Brewer Matthew R. Harrison Julie L. Nelson Scott A. Swain David R. Brickey Kent R. Hart Lori W. Nelson Dana L. Tangren David N. Brizzee G. Troy Hatch Timothy D. Nevile E. Russell Tarleton David F. Brown Randy L. Havlicak Dao V. Nguyen Edward A. Tellechea J. Scott Brown Graeme S. Henderson Lisa L. Olpin Jim E. Thatcher Michelle Bush Rebecca L. Hil Margaret H. Olson Karen M. Thomas Dianna Cannon Patrick F. Holden Jeffrey A. Orr Marsha C. Thomas Michael J. Cappelli Thomas Horgas Duane D. Ostler Bryan B. Todd Patrick F. Carley Stephen P. Horvat Robert C. Ozer Michael J. Tomko Earl C. Cates, Jr. Julia M. Houser Anthony S. Parise Richard L. Tretheway Scott D. Cheney Craig E. Hughes S. Blake Parrish Adam F. Trupp David L. Clark Lori D. Huntington Kirk J. Partridge Mark A. Wagner David M. Cole Clinton D. Jensen A. John Pate Todd D. Wakefield Loretta Crane Michael E. Jewell Elizabeth M. Peck Kevin R. Watkins Sandra L. Crosland Barry N. Johnson Eric D. Pennington Todd E. Wendel Clare R. Davis Stuwert B. Johnson Alex G. Peterson Nelson 1. Werner Bruce L. Dawson David M. Jones Mark E. Peterson Andrew S. Wiliams Lance E. Dean Daniel A. Kaplan Susan B. Peterson Dale L. Williams Bel-Ami 1. deMontreux Carol L. Keating Whitney E. Peterson Sheri A. Williams Bradley K. DeSandro Helene Kepas-Brown John Petrak, Jr. Margaret E. Wilson Jeffery J. Davashrayee Quinn M. Kofford Randall G. Phillips Abigail W. Wright

December 1992 27 Mini Breakfast neys mistakenly assume that be declining to talk to the press they keep their client or Seminar- case out of the paper. If it is a case of pub- Lawyers Dealing with the lic interest, we can respect your reticence, Media and Vice-Versa but we are stil obligated to cover it. · TV reporters ask you to go on camera For the second seminar of the Utah to provide tape for the story, not to extract State Bar's free mini-breakfast seminar information not provided in court. "All I series, four television and newspaper need is six seconds with a lawyer on tape," reporters on the courts beat fielded ques- said Paul Murphy, court reporter for tions from a room of lawyers - a possible KTVX. "We can't take television cameras Jack Ford fertile setting for those frustrated at the into the courtroom, so sometimes we need media to turn the table. But KTV News hopes of (a) being less than 1,000 words a lawyer interview to break up all the stil reporter Paul Murphy seemed to sum up and (b) clearing up some of the misunder- pictures or the tape of someone just walk- best the hour's discussion: "We thought standings between reporters and attorneys. ing with their hands cuffed." you'd beat up on us more. " After reading this, you may not like us Judges often allow stil cameras into The seminar, entitled "Reporting on the any better, but maybe we'll make a litte the courtrooms now. Agreeing to allow Law, the Courts and the Legal Profession more sense to you. your client to be photographed may - A Candid Discussion with Salt Lake's . When reporters call attorneys, anything improve the public's perspective of him. Courts Reporters, or Why Do Lawyers Get the lawyer says is on the record unless the "If a lawyer decides he doesn't want his Such a Bum Rap from the Media?, " fea- lawyer specifies otherwise. When journal- client's picture taken inside the courtroom, tured Ted Cilwick from the Salt Lake ists contact citizens who don't have much then we have to show what is usually an Tribune, Jack Ford, formerly with KSL experience with the media, we explain that ugly shot of him at the time he is arested News, Mamie Funk from the Deseret this is an interview and what they say wil or a shot of him walking around with News, and Paul Murphy from KTVX be quoted, etc. However, journalists assume handcuffs behind his back. That's not fair News. It was held at the Law and Justice lawyers are - as one reporter would put it to him or to the public," Murphy said. Center on November 18. - "professional, savvy and sophisticated The Utah Bar Journal asked Mamie enough to know this." Consider it both a Funk for an article on the topic. She gra- compliment and an advisory. ciously responded with the following: Few journalists object if an attorney The media and attorneys would get wants to go off record at some point in a along great if attorneys would just give the conversation. But reporters balk if an attor- media all the information we want when ney gives a lengthy interview and at the end we want it and the way we want it. announces, "of course, this was al off record." Any questions? If is a widely recognized rule of journal- ism: We only respect "off the record" before a revelation, not as postscript.

. He who doesn't return reporters' phone Paul Murphy calls can't complain about how the story turned out. Reporters often gripe that attor- . Reporters often seek surprisingly neys don't return phone calls. But we basic and simple information. Remember recognize that if an attorney doesn't want to the who, where what and how questions talk, that is probably as effective a way of you've heard associated with journalism. not talking as any other. That's stil what we are after. What baffles us is when a lawyer ignores Frequently, lawyers - including gov- several phone messages, then calls after a ernment prosecutors - don't know the Ted Cilwick story has aired or appeared in print to say a slightest biographical thing about their story was inaccurate or incomplete. clients or, in the case of prosecutors, the Seriously, the two professions do have We seek your input because we believe people they are indicting, said Ted Cil- an uneasy relationship. Those in the media what you have to say is essential to a com- wick, reporter for the Salt Lake Tribune. may be surprised (I was!) to know that plete story. Talking to us - even if you A plaintiff's attorney wil tell you he lawyers perceive the media as giving them decline to answer certain questions - is the spent weeks and months both researching "a bum rap." But we realize attorneys and best way to ensure that a story on your case and agonizing over filing a big lawsuit. journalists often misunderstand each other. is complete and accurate. Then, you ask the attorney things like how A quick survey of several reporters in . Refusing to talk to a reporter doesn't old the client is, where he/she works, etc. both print and television identified some mean a repoiier won't do a story about your and he doesn't know, said Cilwick, who has points of friction. This article identifies case or your client. They wil simply get the reported for "Texas Lawyer," "The ABA why we do some of the things we do in information elsewhere. Sometimes attor- Journal" and "The National Law Journal."

28 Vol. 5 No. 10 Lawyers can help journalists take some "When we make mistakes, we really do Available - Utah of the legal starch out of their stories and want to hear about it. Tell us! put some human interest by helping us The third free seminar in the mini-break- Corporation and depict clients as humans. That includes fast series wil be at 8:00 a.m. at the Utah providing some biographical information. Law and Justice Center, 645 South 200 Business Laws . Attorneys sometimes worry need- East, on December 16, 1992. The seminar, The Department of Commerce, Divi- lessly about the information we are "State Legislative Issues Affecting the Legal sion of Corporations and Uniform seeking. Most seasoned reporters know Profession, or What Are My Lawyer Legis- Commercial Code now has available for about local rule 313 or the Utah State lators Doing for Me Anyway?," wil be $5.00 a copy the Utah Corporation and Bar's rules of professional conduct. (I presented by attorneys who are also members Business Laws - 1992 Edition (with anno- have enough copies of rule 313 to paper of the Utah Legislature. Please R.S. V.P. by tations). The publication includes the an office. Murphy carries a copy of the calling 531-9095 at least one day in advance revised statutes pertaining to: relevant passages of the bar code - pages of the seminar if you wish to attend. Collection Agencies 27-28 - in his pocket.) We know what Corporations questions you can appropriately answer Partnerships and which questions you can't. Issues of Past Bar Limited Liability Companies "The rules say attorneys can always Trademarks and Tradenames talk about the general nature of a claim or Journals on Sale offense, " Murphy said. "They can talk There are a large number of Utah Bar about the information contained in the Journals left from previous months. If you Midyear Meeting public record. And for the most part, that's are desirous of completing your set, or just all I need." want a spare copy, you may obtain them by Writing Workshop To put it directly: we recognize when placing your request in writing along with a The bar is presenting a writing work- an attorney is using court and bar rules as check or money order for $2.00 per issue shop as part of the Midyear Meeting in an excuse and not a valid reason. Just so made payable to Utah State Bar, 645 South March 1993, which wil focus on writing you know that we know. . . 200 East #310, Salt Lake City, Utah 84111. for the courts. Participants who wish to . Reporters are driven by deadlines. All The months that remain are as follows: take advantage of an opportunity for feed- those tv commercials about the urgency back from the panel of judges and to have August/Septernber 1988 of gathering the news are overblown and their writing individually critiqued wil be October 1988 obnoxious, but generally true. Attorneys Novernber 1988 required to submit writing samples prior to have often called me back two or three Januar 1989 the meetings. Please contact Kaesi G.

days after I called them and where April 1989 Johansen at the Utah State Bar, 531-9077 unhappy to find that a story on their case May 1989 no later than January 4, 1993, if you plan has already run in the paper. We know you June 1989 to participate and for more details. are busy and it can be difficult to return August/Septernber 1989 phone calls promptly, but we usually have October 1989 one day to do a story, something we're not February 1990 Administrative Law always happy about either. March 1990 · Reporters really try to be decent May 1990 Advisory Committee human beings. Sometimes we are terse, June/July 1990 Novernber 1990 Established abrupt, curt (a good reporter is never with- December 1990 Attorney General Paul Van Dam has out synonyms) because we are racing to January 1991 meet a deadline. But we believe we try established an Administrative Law Advi- February 1991 sory Committee to review concerns and hard to be gentle with the people must hurt March 1991 suggestions about the Utah Admnistrative by a situation: a victim, the victim's fam- April 1991 ily, a defendant's family. Yes, sometimes May 1991 Procedures Act. The Committee invites we have to talk to them when, given our June/July 1991 public comments and suggestions. Inter- own personal preference, we'd rather August/Septernber 1991 ested persons may give comments at a leave them alone. But that's part of our job October 1991 Committee scoping meeting on December and if we don't do it. our bosses wil find November 1991 15, 1992, at 4:30 p.m. in Room 303 of the someone who wil. Decernber 1991 Capitol, or may send written comments to: "I treat people how I would want to be Januar 1992 February 1992 Laura Lockhart treated in their case," Murphy said. "But I March 1992 Assistant Attorney General find that even when I do that, sometimes April 1992 4120 State Office Building the defense attorney feels it's his right to May 1992 Salt Lake City , Utah 84114-0811 attack me personally just because I have a August/Septrneber 1992 job to do and that job is to tell people what October 1992 is happening to their client." November 1992

December 1992 29 -- THE BARRISTER

What Image Do We Deserve?

By Leshia Lee-Dixon Secretary, Young Lawyers Section

earn a following in their communities. Oth- more than a coat of paint to build strength. Recentlytion the of theYoung Bar hadLawyer's a retreat, Sec- to ers view these lawyers as self-promoting Our foundation is not rotting, but there are organize for the upcoming year. The charlatans advancing their own goals rather definitely weak spots. speaker discussed the organization of the than those of their clients. These stories and We as Young Lawyers must look Utah Bar and our ethical responsibilities many more like them depict many of "us" toward creating a better image and rely on as attorneys. It was significant to note that as greedy, manipulative and amoraL. The concrete actions. Some examples are: there are many who lose sight of our true result is a public image of lawyers inter- looking for ways to speed up trials, push- purpose. Positive images of lawyers - ested mainly in profit and not in saving the ing harder for cheaper ways of settling never dominant in the public's mind - interests of justice. disputes (i.e. arbitration), finding the most have faded further within the headlines of Is the image that we take advantage of inexpensive way to handle routine transac- the last few months. The result is that the clients, are rather in accessible, and make tions, and increasing pro bono work image of lawyers today ranges somewhere far too much money founded? If it is without being forced to by the courts. The between "poor" and "not much worse founded, how do we as Young Lawyers image of lawyers will not improve than before". work to change that image? School pro- overnight, but the effort to make a change Stories of law firms and lawyers span a grams and an intense study of now will benefit not only the image of wide range of areas. Law firms are cre- professionalism deal with only one aspect lawyers, but in the long run will better ated, grow, merge, then break up at an of the problem. We as Young Lawyers are serve the public. alarming rate. While there are lawyers the foundation of the profession. Like a who taunt and defy the judicial system and house who's foundation is weak, it will take

Young Lawyer Section - Utah State Bar Annual "Sub- For-Santa" Project 'l

For the i 5th consecutive year, the Utah Salt Lake attorney and Project Coordinator program matches those wiling to share at II State Bar Young Lawyer Section wil par- Joseph Joyce. "Our law firm has sponsored Christmas time with families needing ticipate in The Salt Lake Tribune several families over the last few years and help. The Tribune has thus been serving "Sub-for-Santa" program. "We should have enjoyed the experience," he said. needy children in the Salt Lake area at share with those less fortunate," declares Acting as a clearinghouse, The Tribune Christmas time for almost 60 years. "Salt

30 Vol. 5 No. 10 Lake area attorneys have supported the four families. Lawyers unable to support an even more children and families. You just Sub-far-Santa program for many years," entire family, may stil help by contributing can't imagine the great feeling you get explains Mr. Joyce. The Sub-far-Santa funds payable to "Sub-for-Santa," to the from helping a neighbor at Christmas program "provides an avenue for law Young Lawyer Section, Attn: Joseph J. time," says Mr. Joyce, firms and individual attorneys to become Joyce, Strong & Hanni, 6th Floor, Boston directly involved with families in need. Building, Salt Lake City, Utah 84111. After all, that is really what Christmas is The Young Lawyers Section wil answer all about." questions regarding the program, and Interested law firms should appoint a encourage them to call The Tribune Sub- person to coordinate the project and work for-Santa program (237-2830). Questions with the Young Lawyer Section and The regarding the Young Lawyer Section pro- Tribune to select a family, purchase gifts ject may be referred directly to Mr. Joyce. and groceries and deliver them before "Last year, The Tribune helped more Christmas. than two thousand children enjoy Christ- Mr. Joyce proudly notes that last year, mas. This year, with the help and generosity several firms directly sponsored three or of the legal community, we hope to reach

., .

THE LAW FIRM OF JONES, WALDO, HOLBROOK & McDONOUGH JONES, WALDO, HOLBROOK & McDONOUGH A PROFESSIONAL CORPORATION A PROFESSIONAL CORPORATION

IS PLEASED TO ANNOUNCE THAT DONALD B. HOLBROOK:l ROBERT G. PRUITT, III CALVIN L. RAMPTON VINCENT C. RAMPTON RANDON W. WILSON THOMAS G. BENNETT KENT C. DUGMORE K. S. CORNAByl JAMES W. BURCH FORMERLY GENERAL COUNSEL TO ITT GILFILLAN .JAMES S. LOWRIE BRYAN B. TODD RONNY L. CUTSHALL KAY ALLAN MORRELL:: HAS JOINED THE FI RM CHRISTOPHER L. BURTON D. WILLIAMS RONNOW WILLIAM B. BOHLING KEVEN M. ROWE IN THE SALT LAKE CITY OFFICE KENT C. DUGMQRE MICHAEL PATRICK O'BRIEN AND WILL PRACTICE IN THE AREAS OF HARRY E. MCCOY II SHARON E. SONNENREICH* D. MILES HOLMAN ANDREW H. STONE GOVERNMENT CONTRACTS LAW AND .JOHN W. PALMER ,JAMES W. PETERS INTERNATIONAL BUSINESS LAW CRAIG R. MARIGER ,JEROME ROMERO DAVID B. LEE It MICHAEL R. SHAW BARRY D. WOODil GREGORY CROPPER AND THAT TIMOTHY B. ANDERSON BARRY G. LAWRENCE GARY A. TERRY*+ MICHAEL J. KELLEY SHANNON STEWART ELIZABETH M. HASLAM JEFFREY N. WALKER G. RAND BEACHAM DENO G. HIMONAS SCOTT D. CHENEY RANDALL N. SKANCHY ALICE L. WHITACRE KENNETH G. LEE*+ LISA A. JONES DANIEL A. KAPLAN STEVEN D. PETERSON LISA M. RrSCHER AND ,JAMES E. GLEASON DAVID C. GESSEL BRUCE E. BABCOCK PAMELA S. NIGHSWONGER ROB M. ALSTON GEORGE W. PRATT D. ,JAMES MORGAN .JAMES W. STEWART SHANNON STEWART HAVE BECOME ASSOCIATED WITH THE FIRM MERILYN M. STRAILMAN*+ SCOTT D. CHENEY TIMOTHY C. HOUPT DANIEL A. KAPLAN RICHARD H. WAYSDORF* ROB M. ALSTON PAUL M. HARMAN SALT LAKE CITY OFFICE 1500 FIRST INTERSTATE PLAZA OF COUNSEL 170 SOUTH MAl N STREET SALT LAKE CITY, UTAH 84101-1644 HILL, HARRISON, HILL &. FISHER (801) 521-3200 PROVO, UTAH SIDNEY G. BAUCOM RONALD D. MAINES'" WASHINGTON, D.C. OFFICE ST. GEORGE OFFICE ROGER ,J. MCDONOUGH ALDEN B. TUELLER SUITE 900 THE TABERNACLE TOWER BLDG. 2300 M STREET, N. W. 249 EAST TABERNACLE '" ADMITTED AND RESIDENT IN WASHINGTOI', D.C. WASHINGTON, D.C. 20037-1436 ST. GEORGE, UTAH 84770-2978 t REGISTERED PATENT ATTORNEY (202) 296-5950 (801) 628-1627 +ADMlTTED IN VIRGINIA * LEAVE OF" ABSENCE OCTOBER IS, 1992 ::ADMITTED IN UTAH AI'D RESIDENT li' WASHINGTON, D.C.

December 1992 31 - TRIBUTE TO RETIRING JUDGES

Judge James S. Sawaya received his of this year. attorneys. law degree from the University of Utah in Sawaya is known Born in Kemmerer, Wyorning, Sawaya 1954 and was admitted to the Bar in 1955. for being a very and his wife Joyce have seven children. He was in private practice from 1955 until considerate and fair- His hobbies include golf and cooking. his appointment to the Murray City Circuit minded judge. He is After retiring, Sawaya plans to be Court, where he served from 1959 to always willing to active as a senior judge and be available to 1970. Sawaya has also served on the listen to attorneys in fil in when needed. He would also like to bench in Third District Court since 1970 and out of his cham- participate in arbitration and mediation. when he was appointed by Governor bers, because he He also plans to keep up his golf game and Calvin Rampton. He is the current chair- Judge James S. Sawaya didn't pres ume to do a lot of traveling. man of the Board of District Court Judges. Utah State District Judge Third District Court know more about a Sawaya will be retiring in mid-December case than the

Judge Maurice Third Circuit Court where he was also a Volunteers Program and also the Pretrial D. Jones served on presiding judge. He retired in late June of Services. He also contributed to initiating the bench beginning this year. and advancing the Senior Citizens Defen- 1958, when he was Jones attended East High School and sive Driving Course. appointed to the continued his education at the University of Jones and his wife Mary Ella have Salt Lake City Utah where he received both his bachelor's seven children. Following his retirement, court. He also served and law degrees. He was admitted to the Jones has continued to live in Salt Lake as a presiding judge Bar in 1954. City, and has been able to focus on some in the city court. J ones was known for being a strict judge, of his many hobbies, including golfing, Judge Maurice D. Jones When the city court having a great knowledge of the law and fishing, game hunting, and tending his Utah State District Judge system changed, Third Circuit Court procedure. He was instrumental in begin- grandchildren. Jones moved to the ning the Adult Probation & Parole

Judge Eleanor VanSciver was various associations American Women. appointed by Governor Scott M. Matheson including the National A former criminal defense attorney, to the Third Circuit Court bench in July of Association of VanSciver's judicial style has been 1978, and became the presiding judge in Women Judges and described as being firm but always having 1982. She retired from the bench in July of the Circuit Judges an open mind towards prosecutors, this year. Born in Salt Lake City, Van- Association. She defense attorneys and defendants. She rec- Sciver attended Bountiful High School served on the Board ommended that attorneys research points and the University of Utah. She received of Directors of Par- of law before making motions. her law degree in 1967 from the Univer- ents United, and also After retiring in mid-July of this year, sity of Utah and was admitted to the Bar in Eleanor Vansciver served with the Gov- VanSciver moved to Mexico with her hus- 1968. VanSciver is married to attorney Utah State District Judge Third Circuit Court ernor's Commission band with the hope of opening up a Robert VanSciver and they have one child. of the Status of restaurant and possibly going to a culinary VanSciver has been a member of Women. She is on the list of Who's Who of schooL.

Judge Gowans general practice and thereafter served as a Gowans has a reputation as a compas- attended Brigham Salt Lake City Prosecutor from 1958 to sionate judge, who always went out of his Young University 1969. He was appointed to the Salt Lake way to deal fairly with everyone who and received his City Court by Mayor J. Bracken Lee in appeared in his court. He had respect for bachelor's degree in 1969 and served there until 1978. He was attorneys and their clients. As a result, Political Science in then appointed to the Circuit Court in 1978 Gowans commanded the respect of the 1953. He then by Governor Scott M. Matheson. Gowans general public. An ardent football sup- '. attended the Uni- retired from the bench in August of this year. porter, off the bench, he was never too versity of Utah Gowans served on the Uniform Bail busy to discuss the upcoming Utah-BYU Judge Floyd H. Gowans where he received Committee, Judicial Court and the Board of football or basketball game. Utah State District Judge Third Circuit Court his law degree in Circuit Court Judges. In 1987, he was Gowans was born in Tooele, Utah, in i 956 and was named the Circuit Judge of the Year and 1929. He and his wife, Shannon, are admitted to the Bar in 1957. Before his received the Distinguished Jurist A ward in presently serving an LDS mission in New appointment to the bench, Gowans was in 1990. Zealand.

i

32 Vol. 5 No. 10 cII Judge Paul G. Grant retired from the al ways changing flexible ways. bench in mid-July of this year, after serv- things for the better Although born in Salt Lake City, after ing as a Circuit Court judge since 1978. and implementing retiring, Judge Grant moved to Jackson Grant attended the University of Utah Law new programs. He Hole, Wyoming. However, he continues to School from 1954 to 1962. He was admit- served concurrently teach part-time at the University of Utah ted to the Bar in 1962. Before being on the Judicial Coun- in the business law deparment. appointed to the bench, Grant was in pri- cil and Board of vate practice for seven and a half years Circuit Court Judges and then became an Assistant City Attor- from 1985 to 1988. ney for Salt Lake City. Grant was elected Judge Paul G. Grant Grant was particu- Utah State District Judge to the Salt Lake City Court in January of Fourth Circuit Court larly known for 1970, where he served until his appoint- being compassionate ment to the Fifth Circuit Court in 1978. towards criminal defendants, tailoring his Grant was known as a judge who was structure of sentence in appropriate and

Judge Merrill L. Development Corporation. Heckler, Secretary for Health and Human Hermansen is retir- In addition to his tenure as a Third Dis- Services to the Advisory CounciL. He has ing from the Fourth trict Court Juvenile Judge, he also served as been a member of the Utah State Bar District Juvenile a Juvenile Court Judge in Manti, and as an Committee for protecting and furthering Court in Provo, Orem City Court Judge. the rights of children. He also received an Utah. He has Judge Hermansen has devoted his career award for "professional excellence" by the served as a Juvenile to the protection of children. To that end, he Utah Chapter of the National Committee Court Judge since served as a member of the Utah State Advi- for the Prevention of Child Abuse in 1986. 1969, and was the sory Council on child abuse and neglect After a law career of almost forty years, Judge Merrl1 L. Hermansen presiding Judge in from 1980 through the present. He was the Judge Hermansen looks forward to fishing Utah State Distiict Judge 1974 through 1976. past chairman of the Utah State Advisory and hunting. Fourt Distrct Juvenile COUlt Judge Hermansen Council on Child Abuse and Neglect, and graduated from Snow College, and the was appointed by the Secretary for Health University of Utah, later attending the and Human Services as a member of the University of Utah Law SchooL. He gradu- National Advisory Council on Child Abuse ated from law school in 1953. and Neglect. Judge Hermansen has been a After law school he practiced law in member of the coordinating council to coor- Ephraim, Utah. While in law practice he dinate common activities of the United represented the Cities of Manti, Redmond, States Department of Justice and the United Centerfield, Salina and Ephraim. He was States Department of Health and Human also legal counsel for the Orem Industrial Services, and was appointed by Margaret

Judge Boyd Bunnell is retiring from the In addition to his on Rules of Civil Procedure. Seventh District Court where he has service on the bench, Judge Bunnell has also been active in served as a District Court Judge since Judge Bunnell has the Jaycees. He was the past State Presi- 1977. taught Business Law dent of the Utah Jaycees, and past Judge Bunnell received his law degree at the College of National Director of the U.S. Jaycees. In in 1949 from the University of Utah and Eastern Utah and 1988 he received an Honorary Degree was admitted to practice in 1950. He prac- Criminal Law and from the College of Eastern Utah. ticed law in Price, Utah for only three Evidence for Weber Judge Bunnell leaves the bench this years before being appointed a Judge of State College. He year, and looks forward to retirement after the Price City Court. After four years as a Judge Boyd Bunnel1 has been the past his long, busy career in the law. Utah State Distrct Judge Judge in the City Court, he became the Seventb District Court president of the Utah District Attorney for the Seventh Judicial Distrct Judges Asso- District, a position he occupied for the ciation, and a member of the Judicial next foureen years. He left that position to CounciL. For six years, he served as a Utah become the Deputy Carbon County Attor- Bar Examiner and for two of those years ney for two years, then returned to private was the Chairman of the Utah Bar Examin- practice as a sale practitioner for five ers. He has been a guest lecturer at the years. In 1977, he was appointed to the University of Utah and has served on the Seventh District Cour. Advisory Committee to the Supreme Court

December 1992 33 Judge Robert W. Daines is retiring as a which included Box ation for two years. He has been a member First District Court Judge. Judge Daines Elder, Cache and of the American Judges Association, and received his law degree in 1957 from the Rich Counties. has been continuously a member of the American University of Washington, D.C. Judge Daines was Utah State Bar Association since his Upon graduation he served as a clerk to appointed by the admission to the Bar in 1957. Utah Supreme Court Justice Worthen. Mayor and City Judge Daines will be leaving the bench After his judicial clerkship, he began a Council of Brigham this year and looks forward to retirement general law practice in Brigham City, City to be a Court after many years of services as District Utah. Judge in 1969. While Court Judge. While in private practice he was tlie Judge Robert W. Daines a Court Judge he was Utah State District Judge City Attorney for Brigham City and later the President of the First District Court the District Attorney for the First District City Judge's Associ-

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34 Vol. 5 No. IO ~ By Clark R. Nielsen

LOSS OF CONSORTIUM, (Utah S. Ct.) (Chief Justice Hall) that the plaintiff's termination violated NEGLIGENT INFLICTION OF public policy. The court failed to assess EMOTIONAL DISTRESS EMPLOYMENT, WRONGFUL the facts in the light most favorable to the The Supreme Court refused to adopt a TERMINA TION plaintiff and reasonable minds could have cause of action for loss of filial consortium The Utah Supreme Court affirmed a differed on whether public policy was a and affirmed the denial of the plaintiff for jury's verdict and awarded damages for the substantial factor in Heslop's termination, . negligent infliction of emotional distress plaintiff for his wrongful termination of thereby creating a jury question. in the crippling of an eight year old son employment but reversed the jury's failure Other contentions by the defendant on during his hospitalization. Utah does not to award consequential damages and the appeal were also rejected by the court. The allow the recovery for negligent infliction dismissal of plaintiff's public policy claims. evidence when properly marshaled was of emotional distress and the plaintiffs do Stating the facts in the light most favorable sufficient to support the verdict. Any other not claim that they were within a zone of to the jury's verdict, the court recounted a objected to statements by counsel were danger created by the defendant's negli- concerted and ongoing course of conduct by harmless and would have had little effect gence. The Court rejected plaintiff's the defendant bank employees to terminate on the trial's outcome. suggestion that Utah should abandon the the plaintiff from his employment. The The court did reverse the trial court's zone of danger rule and adopt the more defendant appealed the jury's verdict in the refusal to allow jury instructions regarding expansive California approach. Because plaintiff's favor for wrongful termination. the award of consequential damages the Blouchers did not allege they were The court held that Berube v. Fashion including the attorney's fees allowed within the zone of danger, they could not Centre Ltd., 771 P.2d 1033 (Utah 1989) incurred in the action. Under Berube, the show any claim for negligent infliction of could be applied retroactively as an excep- plaintiff who prevails in employment emotional distress tion to the employment-at-will doctrine. cases may recover consequential darn ages The precedence of Hackford v. Utah Berube works no substantial injustice by resulting from the breach of his employ- Power & Light and Utah Code Ann. § 30- requiring employers to expressly or ment contract. Beck v. Farmers Insurance 2-4 persuaded the court that there should impliedly promise employment to stand by Exchange also envisions a broad range of be no claim for loss of consortium of an that promise. The facts demonstrated that recoverable damages for breach of a emancipated child. the bank's termination was not for cause. covenant of good faith and fair dealings in Justice Stewart dissented and argued Also, the statute of frauds did not apply to a first party insurance contract. Under that a parent's loss of an unemancipated an oral employment agreement that plaintiff Canyon Country Store v. Bracy, conse- child's companionship should be cogniz- would be employed until retirement unless quential damages may include attorney's able. The parents' claim for the loss of the bank terminated him for cause. The fact fees in such cases. Terminated employees, companionship, society and affection of a that the plaintiff expected his career to last like injured insurance claimants, find child as a result of a wrongful death has until age 65 did not mean that the parties themselves in a particularly vulnerable been deemed so important in Utah that it could not perform the contract within one position once the employer breaches the is protected by constitution and by statute. year. employment agreement. Employers can Therefore, injury short of death should Under Peterson v. Browning, 187 Utah reasonably foresee that wrongfully termi- also be recompensable. There should be a Adv. Rep. 3 (May 11, 1992) the court rec- nated employees will be forced to file suit claim for filial consortium where a child ognized the plaintiff's claim that his to enforce their employment contracts and survives an injury but is so badly injured termination violated the public policy. In will incur attorney's fees. Under Berube that the basis for normal filial companion- his employment plaintiff had alleged viola- and Beck the trial court erred in refusing to ship and society between parent and child tion of clear, substantial and significant instruct the jury on the availability of con- is destroyed. Justice Stewart would public policies by the bank in failing to sequential damages, including attorney's remand for a determination as to whether adhere to Utah Code Ann. § 7-1-318 regu- fees for the wrongful termination. the injured son was unemancipated or not. lating financial institutions. These reporting Heslop v. Bank of Utah, 194 Utah Adv. The majority distinguished wrongful requirements of the Act promote a substan- Rep. 20 (September 4, 1992) (Chief Jus- death cases from consortium cases. In tial and clear public policy of accountability tice Hall) wrongful death cases, the party that suffers of financial institutions. Plaintiff's termina- the actual physical injury has no cause of tion and difficulties with the bank's MINIMUM CONTACTS, action and the legislature has prescribed management were founded upon his vocal PERSONAL JURISDICTION the parties have a right to recover for the insistence on adherence to the Act and A Texas industrial company lacked suf- loss of the deceased's society and affec- refusing to agree to a long term solution to ficient minimum contacts with the State of tion. (This is the general theory under an accrual accounting problem. The trial Utah necessary to assert jurisdiction for wrongful death cases.) court improperly granted the motion for the purposes of a plaintiff's personal Bloucher v. Dixie Medical Center, 194 directed verdict on this issue on the basis injury claim. Utah Adv. Rep. 3, filed August 21, 1992 that the evidence did not support a claim When a pre-trial jurisdictional decision

December 1992 35 is made on documentary evidence only, an product into the stream of commerce in filing of a claim. Nor were there any other appeal from that decision presents only such a fashion as to reasonably foresee its exceptional circumstances in this case to legal questions reviewed for correctness. sale in a certain jurisdiction cannot com- apply the "discovery rule." There were Essentially, the facts of the complaint and plain having to defend in that jurisdiction insufficient facts in the record to defeat the any other submitted affidavits are taken as against claims arising out of the product. defendant's motion for summary judgment true, insofar as they are not contradictory. The court agreed that the machine never which the Supreme Court affrmed. The plaintiff claimed that he was injured entered the stream of commerce because it Warren v. Provo City Corp., 196 Utah by an unreasonably dangerous condition was sold to an ultimate buyer. Resale of the Adv. Rep. 8 (September 23, 1992) (Chief on the machine. The machine had been put machine in Utah was wholly unforeseeable. Justice Hall). into interstate commerce by the defendant Defendant Industrial would not have fore- over fifteen years earlier. The trial court seen that it would be subjectto suit in Utah TRUST DEED FORECLOSURE, granted the defendant's motion to dismiss involving a finger jointing machine sold in DEFICIENCY JUDGMENT for lack of personal jurisdiction. The California. Applying its decision in City Consumer plaintiff argued that the placement of the Arguello v. Industrial Woodworking Services, Inc. v. Peters, 815 P.2d 234 stream into interstate commerce estab- Machine Co., 196 Utah Adv. Rep. 3 (Utah 1991), the Utah court allowed lishes sufficient minimum contact with (September 21, 1992) (Justice Zimmerman). defendant's creditors to collect their defi- Utah and that industrial had suffcient con- ciency judgment against the plaintiff after tacts by virtue of having come to Utah to MEDICAL MALPRACTICE, defendant's lien had been extinguished by view the machines five years prior to PRELITIGATION REVIEW, the foreclosure of a prior trust deed on the injury. JURISDICTION lien property. When the prior trust deed Personal jurisdiction is broken down The failure to initiate a prelitigation was foreclosed, defendant's second trust into the categories of general jurisdiction review within 60 days of filing a notice of deed was extinguished and defendants (jurisdiction over a defendant without intent to sue is not a jurisdictional bar to the were allowed to collect their judgment on regard to the subject of the claim or ver- subsequent commencement of the malprac- the promissory note from plaintiff's other dict) and specific jurisdiction (jurisdiction tice action. The 60 day notice requirement assets. over defendant only with respect to the is imposed by Utah Code Ann. § 78-14- Sanders v. Ovard, 196 Utah Adv. Rep. 11 claims arising out of the particular activi- 12(2), and requires that party initiating a (September 25, 1992) (Per Curiam). ties of the defendant in the forum state). medical malpractice action to fie a request Defendant industrial did not do business in for prelitigation review within 60 days of TRANSFER TO this state to the extent that the court could any notice of claim. The plaintiff's request DEFRAUD CREDITORS exercise general jurisdiction over it. Nei- was filed 68 days after service of her first A debtor's transfer of real and personal ther was its contacts with the State in this notice of the claim. To hold the 60 day property into a trust while an underlying case sufficient to allow the exercise of deadline to be jurisdictional and cut off any suit was pending was void as to a judg- specific personal jurisdiction with respect further judicial claim would be contrary to ment creditor. The trial court invalidated to the claims arising out of the use of its the statutory scheme and the purpose for the trust as to the personal property only, machine in this state. which pre1itigation review was established. but upheld the trust with regard to the Whether or not a defendant has met Gramlich v. Munsey, 196 Utah Adv. Rep. 6 transferred real property. The Supreme sufficient minimum contacts to exercise (September 23, 1992) (Justice Durham, with Court reversed in part, holding that the jurisdiction may be viewed either the Justice Zimmerman dissenting without transfer of real property also was invalid "arising out of' test or the "stream of com- opinion). and that under Utah Code Ann. § 25-1-11, merce" test. Minimum contacts is not there was no distinction between real and satisfied by the quantity of contacts with GOVERNMENTAL IMMUNITY, personal property. The court disavowed the state, but rather on the quality and NOTICE OF CLAIM any contrary dictum in Geary v. Cain, 9 nature of the contacts and their relation- The Supreme Court also affirmed the P.2d 396 (Utah 1932), where the Utah ship to the claim asserted. dismissal of plaintiff's complaint for failure court interpreted the predecessor statute to The "arising out of" principle is to file a notice of claim within one year of apply only to personal property. Under demonstrated by Synergetics, 701 P.2d the date the claim arose, as required by the § 25-1-11, all deeds and conveyances of 1106 (Utah 1985) and Rothkelly, 610 P.2d Governmental Immunity Act, § 63-30-11 any property in trust for the use of the per- 1307. The defendant's contacts in Utah and 63-30-13. Plaintiff asserted a claim son making the same are void as against were wholly unrelated to the plaintiff's against Provo City relating to an airplane existing creditors. The statute does not claim asserted against it. The claim did not crash injuring the plaintiff and his family. provide any basis to distinguish between arise out of industrial contacts. The notice of claim against Provo City was real and personal property. "The stream of commerce" theory the not filed until 18 months after the crash, McGoldrick v. Walker, 196 Utah Adv. defendant could not reasonably foresee alleging that Provo City failed to enforce its Rep. 17 (September 30, 1992) (Justice that it would be subject to the jurisdiction ordinance regulating flying clubs. The Durham). of the court in Utah simply by placing its plaintiff did not allege any facts to show machine in commerce when it sold the that he reasonably relied upon any represen- machine in California. One who puts a tation by Provo City that presented the

36 Vol. 5 No. 10 Thanks to Financial Institutions

The Utah Bar Foundation expresses its As a result, the Bar Foundation has been First Federal Bank thanks to the Bankers in the State of Utah able to distribute funds to many agencies, First Interstate Bank for their cooperation and assistance in including support for legal services to Utah First Security Bank of Utah making the Interest on Lawyers' Trust Legal Services, Legal Aid Society, Catholic First Utah Bank Accounts (IOLT A) a reality. When the Community Services, Law Center for Peo- First Western National Bank Utah Supreme Court rendered a decision ple with Disabilities; educational aid to Law Guardian State Bank allowing Utah lawyers to transfer their Related Education Project, Utah Children; Hercules Credit Union non-interest bearing trust accounts to and other miscellaneous worthwhile projects. Key Bank interest bearing accounts with the interest Olympus Bank paid to the Utah Bar Foundation, Utah was PARTICIPATING State Bank of Southern Utah a leader in the IOL T A program. Today United Savings Bank there are IOTA programs in 49 states. IOLTA FINANCIAL Universal Campus Federal Credit Union The IOL T A program has provided a INSTITUTIONS University of Utah Credit Union unique opportunity for lawyers and banks Valley Bank Bank of Utah to work together to improve the lives of West One Bank Brighton Bank the people in the State of Utah. IOLT A is Zions National Bank Capital City Bank an easy way for banks to show that they Central Bank are going the extra mile to help the people Far West Bank of Utah. In Appreciation

The Board of Trustees takes this oppor- ton were invited to join committee members advise concerning investment methods tunity to thank two members of the Richard C. Cahoon, James B. Lee and Car- that wil yield the best return. We appreci- community for sharing their expertise and man E. Kipp to monitor investment and ate the beneficial service they have assistance with the Finance Committee of productivity of the Foundation's funds. The rendered. the Utah Bar Foundation. In the spring of group meets quarterly to evaluate the finan- 1991, Max D. Eliason and J. Chad Hamil- cial condition of the Foundation and to

J. Chad Hamilton Max D. Eliason is a presently is Senior Vice Financial Consultant with President and Trust Offi- Shearson Lehman Broth- cer at Zions First National ers and has training and Bank and heads the registration to deal in all investment section in the types of securities. He Trust Department with received a J.D. degree responsibility for approxi- from the University of mately $375 million of Utah, a Liberal Arts and discretionary assets. He Economics degree from received his Banking and Columbia University and Finance degree from the is a member of the Ameri- University of Utah and can and Utah Bar has been in banking for Associations. He has 1. Chad Hamilton Max D. Eliason thirty years. He also serves more than 27 years expe- as Treasurer and Board rience as a corporate Member of the' Salt Lake executive and practicing Education Foundation. attorney.

December 1992 37 o CLE CALENDAR

THANK YOU Date: December 17,1992 Date: February 9, 1993 A special thank you to all of the presen- Place: Utah Law & Justice Center Place: Utah Law & Justice Center ters and planners who helped the CLE Fee: $50 Fee: $10 - Call to RSVP Department over the past year. In this time Time: 6:00 p.m. to 9:00 p.m. Time: 12:00 noon to 1:00 p.m. of thanks and cheer we wanted to take a minute to express our appreciation for all COMPUTERIZATION OF ESTATE UPDATE: IMPLEMENTING of those who volunteered their time in PLANNING PRACTICE - THE 1990 CLEAN AIR ACT preparing and presenting CLE programs. ESTATE SECTION LUNCHEON CLE Credit: 4 hours You made the difference in putting CLE Credit: 1 hour Date: February 11, 1993 together high quality CLE programs for Date: January 12, 1993 Place: Utah Law & Justice Center the Bar. We wish you well in the coming Place: Utah Law & Justice Center Fee: $150 plus $6 MCLE Fee year. Fee: $11 - Call to RSVP Time: 10:00 a.m. to 2:00 p.m. Time: 12:00 noon to 1:00 p.m. Monica, Melissa and Toby EFFECTIVE LA W OFFICE ADR AND EFFECTIVE THIRD ANNUAL LA WYERS & MANAGEMENT - COURT PERSONNEL FOOD & NEGOTIA TIONS - NLCLE WORKSHOP WINTER CLOTHING DRIVE NLCLE WORKSHOP CLE Credit: 3 hours FOR THE HOMELESS This is another basics seminar designed Date: February 18, 1993 Just a reminder that the Third Annual for those new to the practice and those look- Place: Utah Law & Justice Center Food and Clothing Drive is coming up. ing to refresh their practice skils. Fee: $30 Plan on dropping off your donations at the CLE Credit: 3 hours Time: 5:30 p.m. to 8:30 p.m. Law & Justice Center on December 18th. Date: January 21, 1993 Watch for our flyer listing much needed Place: Utah Law & Justice Center NEW SECTION 401(a)(4) items for local shelters. Please call Toby at Fee: $30 NONDISCRIMINATION REGULA TIONS the Bar. with any questions. Time: 5:30 p.m. to 8:30 p.m. CLE Credit: 4 hours ISSUES IN ORGANIZING AND ETHICS IN THE ESTATE Date: February 25, 1993 OPERA TING A BUSINESS PLANNING PRACTICE - ESTATE Place: Utah Law & Justice Center The topic for this evening in the series SECTION LUNCHEON Fee: $150 plus $6 MCLE Fee is, "Securities Law: What is a Security?, CLE Credit: i hour Time: 10:00 a.m. to 2:00 p.m. Federal & State Securities Law' Issuing r------, Stock, Limited Stock, Limited Partner- ships, Debt Ventures." CLE REGISTRATION FORM CLE Credit: 3 hours TITLE OF PROGRAM FEE Date: December 3, 1992 Place: Utah Law & Justice Center l. Fee: $50 Time: 6:00 p.m. to 9:00 p.m. 2.

ISSUES IN ORGANIZING AND OPERATING A BUSINESS Make all checks payable to the Utah State Bar/CLE Total Due The topic for this evening in the series is, "Financially Troubled Business: Credi- Narne Phone tors, Alternatives, Bankruptcy." CLE Credit: 3 hours Address City, State, ZIP Date: December 10, 1992 Bar Nurnber Arnerican Express/MasterCard/VISA Exp. Date Place: Utah Law & Justice Center Fee: $50 Signature Time: 6:00 p.m. to 9:00 p.m. Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The Bar and the Continuing Legal Education Department are working with Sections to provide a full complement of live ISSUES IN ORGANIZING AND seminars. Please watch for brochure mailings on these. OPERA TING A BUSINESS Registration and Cancellation Policies: Please register in advance as registrations are taken on a space available basis. The topic for this evening in the series Those who register at the door arc welcome but cannot always be guaranteed entrance or materials on the seminar day. If you cannot attend a seminar for which you have registered, please contact the Bar as far in advance as possible. No is, "Litigation: Avoiding, Preparing, Alter- refunds wil be made for live programs unless notification of cancellation is received at lease 48 hours in advance. natives, Pre-Trial Preparation." Returned checks will be charged a $ i 5.00 service charge CLE Credit: 3 hours NOTE: 1t is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the 2 year CLE reporting period required by the Utah Mandatory CLE Board. L ______

38 Vol. 5 No. 10 1993 MID-YEAR MEETING CLE Credit: 3 hours MCLE Reminder CLE Credit: 8 hours Date: April14, 1993 Date: March 11-12, 1993 Place: Utah Law & Justice Center 30 Days Remain Place: Utah Law & Justice Center Fee: $30 For those who were admitted as a result Fee: Call Time: 5:30 p.m. to 8:30 p.m. Time: Call of the February & July 1990 Bar Exarn. THE NUTS AND BOLTS OF On Dec. 1, 1992, there wil remain 31 CHANGES TO UTAH 1993 UTAH LEGISLATIVE days to meet your Mandatory Continuing CHANGES AFFECTING ESTATE PROBATE LAW PLANNING ATTORNEYS - CLE Credit: 4 hours Legal Education requirements for the sec- ESTATE SECTION LUNCHEON Date: Apri123, 1993 ond reporting period. In general the MCLE requirements are as follows: 24 CLE Credit: 1 hour Place: Utah Law & Justice Center Date: March 16, 1993 Fee: TBD hours of CLE credit per two year period plus 3 hours in ETHICS, for a 27 Place: Utah Law & Justice Center Time: 8:00 a.m. to 12:00 p.m. Fee: $11 - Call to RSVP hour total. Be advised that attorneys are Time: 12:00 noon to 1:00 p.m. PROBATE - NLCLE WORKSHOP required to maintain their own records as This is another basics seminar designed to the number of hours accumulated. The REAL PROPERTY PRACTICE- for those new to the practice and those look- second reporting period ends December NLCLE WORKSHOP ing to refresh their practice skills. 31, 1992, at which time each attorney This is another basics seminar designed CLE Credit: 3 hours must file a Certificate of Compliance with for those new to the practice and those Date: May 20, 1993 the Utah State Board of CLE. Your Cer- looking to refresh their practice skills. Place: Utah Law & Justice Center tificate of Compliance should list CLE Credit: 3 hours Fee: $30 programs you have attended to meet the Date: March 18, 1993 Time: 5:30 p.m. to 8:30 p.m. requirements, unless you are exempt from Place: Utah Law & Justice Center MCLE requirements. Following is a Cer- Fee: $30 tificate of Compliance form for your use. Time: 5:30 p.m. to 8:30 p.rn JOINT TRUSTS VS. If you have questions concerning the SEPARATE TRUSTS MCLE requirements please contact Sydnie BANKRUPTCY PRACTICE - CLE Credit: 1 hour Kuhre, Mandatory CLE Administrator at NLCLE WORKSHOP Date: May 11, 1993 (801) 531-9077. This is another basics seminar designed Place: Utah Law & Justice Center for those new to the practice and those Fee: $7 - Call to RSVP looking to refresh their practice skills. Time: 12:00 noon to 1:00 p.m.

THE LAW FIRM OF McKAY, BURTON & THURMAN YOU JUST MAY A PROFESSIONAL CORPORATION BE WITH OFFICES AT A GENIUS! SUITE 1200 KENNECOTT BUILDING 10 EAST SOUTH TEMPLE STREET SALT LAKE CITY, UTAH 84113 (801) 521-4135 And all you did was become an attorney and an agent of Attorneys' TIlle Guaranty Fund, Inc By becoming a member of Attorneys' TIile, you can begin to generale a new and substantial source of income through the issuance of title insurance. Attorneys' TItle has new programs and services IS PLEASED TO ANNOUNCE THAT which make it easier than ever for attorneys to build (heiT real eslate praclice. We may not make you a genius, but Attorneys' TItle can show you how to improve your practIce and ALLAN O. WALSH increase your income FORMERLY OF THE LAW FIRM OF by closing real estate Attorneys" transactions. Let us ALLEN, MATKINS, LEeK, GAMBLE & MALLORY show you how! Call 32R-229 Title Guaranty 645 South io East, Suite 102 GREGORY J. ADAMS Salt L.keCity. Ut.h 84111 Fund" Inc.

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December 1992 39 For information regarding classified Salt Lake City Firm seeking recent gradu- -OFFICE SHARING/SPACE AVAILABLE advertising, please call 531-9077. Rates ate, preferably with a Marketing for advertising are as follows: 1-50 words Deluxe building with beautiful view, cen- background and Tax courses or experi- - $10.00; 51-100 words - $20.00; con- trally located, in Brickyard Tower, 1245 ence. Send resume to Utah State Bar, Box fidential box numbers for positions East 3120 South. Plenty of free parking. B-10, 645 South 200 East #310, Salt Lake available $10.00 in addition to advertisement. Close to freeway and 700 East, just ten min- City, Utah 84111. utes to Court. Share complete facilities with CA VEA T - The deadline for classified four established attorneys. Reception, advertisements is the first day of each library, telephone, fax, copier, file room, -SERVICES month prior to the month of publication. etc. Space for your secretary. Call Geniel at CASES READY FOR TRIAL (Example: May 1 deadline for June publi- (801) 484-2111. cation). If advertisements are received SOUGHT - Got a plaintiff's case in later than the first, they wil be published Kearns Building sublease ideal for small which discovery is complete (or nearly in the next available issue. In addition, law office. 2300 sq. ft. prime seven room complete) and you don't want to take it to trial? No need to worry. I wil try the case payment which is not received with the suite with reception area. Second floor Main advertisement wil not be published. No Street frontage. Renovated with tradition and may even advance trial costs. Call exceptions! decor. Present lessee willing to assist with Mike at (801) 359-0833. rent subsidy. 34 months left on lease. Call Washington attorney with emphasis in (801) 322-1373. -INFORMA TION SOUGHT land use, real estate and environmental law available on a contract basis (hourly INFORMATION SOUGHT REGARD- Do overflow work in exchange for your rent. First class office space at 215 South rate or flat fee) in the Salt Lake area. ING GEM INSURANCE. Information Exceptional research and writing skils. State. Room for one attorney and staff. Pos- regarding Gem Insurance's alleged breach Call Penelope S. Buell (801) 531-1057. of contract, bad faith, fraudulent denial of sible partnership/association with established practitioner. Contact L. Zane claims, and related matters is sought. Con- ATTENTION ATTORNEYS! Do you Gil at (801) 355-2600. tact Roger H. Hoole, 2040 Beneficial Life need help with voluminous medical Tower, 36 South State Street, Salt Lake records? Would you like the most current Attractive office space is available at prime City, Utah 84111. standards of care on your case? Do you downtown location, in the McIntyre Build- ing at 68 South Main Street. Single offices have immediate access to Expert Wit- complete with reception service, conference nesses in all fields? A Legal Nurse -BOOKS FOR SALE Consultant can help you save time and room, telephone, parking, fax machine, USED LAW BOOKS - Bought, sold and copier, library and word processing avail- money. Call SHOAF AND ASSOCIATES at (801) 944-4232. appraised. Save on all your law book and able. For more information please call (801) library needs. Complete Law Library 531-8300. acquisition and liquidation service. John -MISCELLANEOUS C. Teskey, Law Books/Library Services. Choice office sharing space for rent in beau- Portland (503) 644-8481, Denver (303) tiful, historic building in Ogden, Utah. Buying rare coin collections and estates. If 825-0826 or Seatte (206) 325-1331. Several offices available. For information, you are selling rare coins, call me! Should please contact (801) 621-1384. you have a large collection, we can be at CORPUS JURIS SECUNDUM and your office anywhere in the U.S. within 24 UTAH CODE ANNOTATED. Both com- hours. HOWARD MARKHAM RARE plete current sets with all Supps and -POSITIONS A V AILABLE COINS, 1540 Barton Road #259, Red- Updates. For more information please call Small, established A V rated Salt Lake law lands, CA 92373, telephone (714) (801) 531-8300. 370-3027. Leave message as I frequently firm has available office space for one attor- travel. FOR SALE: Two complete up to date sets ney. Looking for attorney with at least three of Utah Code Annotated; up to date set of years experience, good people skills and the Pacific Reporter 2d Edition; up to date pleasant personality. Free parking. Happy, set of Shepard's Citations. Call George clean work environment. Possible associa- Harmond (801) 637-1542. tion with firm. Send resume to Utah State Bar, Box J-10, 645 South 200 East #310, Salt Lake City, Utah 84111.

40 Vol. 5 No. 10 ___.~,,_,,..",v,. -j i 1 i

CONTINUING LEGAL EDUCATION I Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX 9801) 531-0660 CERTIFICATE OF COMPLIANCE

For Years 19_ and 19

NAME: UTAH STATE BAR NO.

ADDRESS: TELEPHONE:

Professional Responsibilty and Ethics* (Required: 3 hours)

1. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

2. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

3. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

Continuing Legal Education* (Required 24 hours) (See Reverse)

1. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

2. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

3. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

4. Program name Provider/Sponsor Date of Activity CLE Credit Hours Type**

* Attach additional sheets if needed. ** (A) audio/video tapes; (B) writing and publishing an article; (C) lecturing; (D) law school faculty teaching or lecturing outside your school at an approved CLE program; (E) CLE program - list each course, workshop or seminar separately. NOTE: No credit is allowed for self-study programs.

I hereby certify that the information contained herein is complete and accurate. I further certify that I am familiar with the Rules and Regulations governing Mandatory Continuing Legal Education for the State of Utah including Regulation 5-103 (1) and the other information set forth on the reverse.

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

EXPLANATION OF TYPE OF ACTIVITY

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

B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a Board approved article published in a legal periodicaL. An application for accreditation of the article must be submitted at least sixty days prior to reporting the activity for credit. No more than one-half of the credit hour requirement may be obtained through the writing and publication of an article or articles. See Regulation 4( d)-l 0 i (b)

C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teachers who are practitioners in an ABA approved law school may receive 3 hours of credit for each hour spent in lecturing or teaching. No more than one-half of the credit hour requirement may be obtained through lecturing and part-time teaching. No lecturing or teaching credit is available for participation in a panel discussion. See Regulation 4(d)-101(c)

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

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

Regulation 8-101 - Each attorney required to file a statement of compliance pursuant to these regulations shall pay a filing fee of $5 at the time of filing the statement with the Board. 1i~~- g

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