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Executive Director sional excellence, civility, ethics, respect for and understanding of, the law. John C. Baldwin Bar Journal Committee Letters to the Editor...... 4 and Editorial Board Editor President's Message ...... 5 Calvin E. Thorpe by Steven M. Kaufman Associate Editors M. Karlynn Hinman Wiliam D. Holyoak Commissioner's Report...... 7 Randall L. Romrell by James C. Jenkins Articles Editors Christopher Burke Jurisdiction Issues in Child Custody, Lee S. McCullough Visitation and Support Cases...... 10 Letters Editor by David S. Dolowitz Victoria Kidman

Views from the Bench Editors Judge Michael L. Hutchings Preventive Law: A Personal Essay...... 14 Judge Stephen VanDyke by Scott E. Isaacson

Legislative Report Editor Lisa Watts Baskin Imaging for Attorneys...... 18 Case Summaries Editors by David Nuffer Scott A. Hagen Clark R. Nielsen State Bar News ...... 24 Book Review Editor Betsy L. Ross The Barrister...... 33 "How to . . ." Editors Brad Betebenner David Hartvigsen Views from the Bench...... 36 Patrick Hendrickson by Judge John C. Backlund Judicial Profies Editors Mamie Funk Derek Pullan Utah Bar Foundation ...... 37 Stephen K. Christiansen ADREditor CLE Calendar ...... 38 Cherie P. Shanteau Law and Technology Editor Classified Ads...... 39 R. Bruce Findlay

Young Lawyer Representatives Mark E. Burns COVER: Cascade Springs, Wasatch County, Utah, by Professor David A. Thomas, Erik A. Christiansen J. Reuben Clark Law SchooL. Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published on Glen Cook the cover of the Utah Bar Journal should contact Randall L. Rornell. Randle, Deamer, Zarr, Romrell & Lee, P.c., David Brown i 39 East South Temple, Suite 330, Salt Lake City, UT, 84 i 11- 1169,53 i -044 i. Send a slide, transparency or print David Erickson of each scene you want to be considered. Thomas Jepperson The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of each J. Craig Smith issue is furnished to members as part of their State Bar dues. Subscription price to others, $30; single copies, Denver Snuffer $4.00. For information on advertising rates and space reservation, call or write Utah State Bar offces. Judge Homer Wilkinson Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publica- Committee Liaison tion of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright if i 996 by the Utah State Bar. All rights reserved.

October 1996 3 -LETTERS

Dear Editor: UTAH LAW AND JUSTICE CENTER Our Bar Commissioners frequently 645 SOUTH 200 EAST · SALT LAKE CITY, UTAH 84111 beseech and prod us to show some kind- ness, courtesy, civility and professionalism when dealing with other members of the QUALITY MEETING SPACE Bar. The Commssioners are certainly correct AVAILABLE FOR PROFESSIONAL, CIVIC AND COMMUNITY ORGANIZATIONS that effective advocacy is not inconsistent with courtesy and professionalism. I recently suffered an adverse jury ver- THIS MODERN FACILITY PROVIDES ANY STYLE OF SEATING dict. The trial was scheduled to last four ARRANGEMENT AND FEATURES: days but took three weeks. In the aftermath of my three week ordeal, I faced an Order to Show Cause hearing brought against one REASONABLE RATES PERSONAL ATIENTION of my clients by the Utah State Bar for the unauthorized practice of law. Due to the CENTRAL DOWNTOWN LOCATION FREE ADJACENT PARKING length of the trial, I was unprepared for this hearing. I requested a continuance but the AUDIO - VISUAL EQUIPMENT REGISTRATION AREA Utah State Bar adamantly objected.

It strikes me as ironic that the Utah COMPLETE CATERING DAY OR NIGHT State Bar could not manage to show me any courtesy in this situation. Maybe the lawyers for the Utah State Bar should try to practice what the Commissioners preach. FOR INFORMATION AND RESERVATIONS, CONTACT: THE UTAH LAW AND JUSTICE CENTER CCXRDlNATOR (801) 531-9077 Effervescently yours, Walter F. Bugden, Jr.

GREAT IDEA! \\10 Advertising in the Utah Bar Journal is a really \\10 great idea. Reasonable rates and a circulation of about 6,00D! Call for more information. -Q"".í1-- \'" -Q"".í1-- \'" ~ Shelley Hutchinson · (801) 486-9095 --'\

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4 Vol. 9 No.8 The State of Our Bar - (What You Want to Know but Were Too Busy to Ask)

By Steven M. Kaufman

and 2% are over the age of 70. We are 83% are ever changing, as is the composition of As I sitwhat at my appears trusty to be computer the beginnings on male and 17% female, with 97.5% Caucasian the Bar, and we, as leaders need to be read- of a beautiful autumn day, I think about the and 2.5% Hispanic, Asian, Native American, ily cognizant of the vast changes taking beginnings of this 1996-l997 term of our African American, Polynesian, or other. Of place in our profession. Anyway, I thought Bar calendar, and where we are and where those lawyers practicing 10 years or less, these numbers were interesting to ilustrate we are going. I have a hundred different 66% are male and 34% are female. Geo- the general composition of our Bar. ideas and only one year as your President. graphically, 82% of all Utah lawyers work in Although I think the numbers may be So I cut, paste, delete, modify, and other- Salt Lake County, 6% in Weber County, 8% misleading, 70% of our Bar believe that wise focus my thoughts. Every leadership in Utah County, and the remaining percent- our profession should be actively involved conference I have been to suggests that one age are spread throughout our state. There in assuring and seeking appropriate should not bite off more than one can real- are 41 % who are solo or are in law firms of reforms and improving the administration istically chew, so I am in diet mode as it 5 or fewer lawyers. As to choice of practice, of justice. My sense is that the other 30% pertains to the agenda for this year. Between 81 % are in private practice, 10% in govern- care about the issue, but are preoccupied your talented Bar Commssion and Bar Staff, ment practice or public service, 6% in elsewhere to believe they should be lawyers from all over with great minds, corporate practice, and 2% in other types of involved~ Maybe, just maybe, this year I and my own crazy ideas, I do not worry so practice. Within that choice, 58% are can change a few of those minds. In the much about what needs to be done this involved primarily in litigation, 31 % perform last couple of months, I have brought a few year as I do about how to accomplish it. transactional work, 19% work in commercial, more over to the "involved" side. For those of you with a thist for statistics, and l2% are general practitioners. As some Much to their credit, 22% of the active here are a few pieces of information about of these overlap as a survey we allowed Bar members have agreed to provide vol- the present make-up of our Bar. We have attorneys to pick more than one choice so untary pro bono services on an assignment 6,321 lawyers licensed by our Bar, of which the total is over 100% (Not due to my addi- basis. It is my thought that there are very 4988 are in our state and 1333 are out of tion please note). I am not sure what all of few professions that can carry such a lofty our state. Of the 4988 in state, 4397 are these statistics really mean, other than to flag as it pertains to the wilingness to give actively practicing law and 59l are not. Of give us a yardstick upon which to measure of themselves in such a charitable manner. all lawyers of our Bar, 36% have been what areas are of paricular interest to our Bar, Finally, did you know, and I know you practicing for less than 10 years and 4% where our Bar may be going for long range care, that 329 new lawyers were admitted have been practicing for more than 40 years. planning purposes, and a general focus as to the Bar last year? Keep this figure in Furthermore, 40% are under the age of 40, we move into a new century. Lawyers' needs mind as I move forward with some of the

October 1996 5 initiatives currently undertaken, or soon to tant program. If 22% of the active Bar is service activities they have been perform- be undertaken, by our Bar. ready, and if more lawyers wil come on ing. Solicitations for service to these Last year the Bar initiated a program to board now that we are enabling this program programs wil be made also, as they all are place a lawyer in ever secondary school in to connect the lawyers with those in need, worthwhile projects. Hopefully, through the state to teach in a variety of classroom this can become a milestone worth noting. this medium, we wil provide the public and assembly situations. Teaching about We have created a Legal Assistants Divi- with a sense that the legal profession is, in the law and our justice system is most sion and thereby encouraging paralegals fact, made up of men and women who are important, and beginning such an endeavor throughout Utah to join this voluntary sec- doing public service related to the law, at this level is appropriate and purposefuL. tion of our Bar. Hopefully, this wil while giving some exposure to these pro- Teaching our children about the Constitu- encourage communications and discourage jects and provide them with additional tion and The Bil of Rights is a good the unauthorized practice of law. I have resources. You wil have an opportunity to beginning. We successfully placed a signed over one hundred certificates so far, see them in our Bar Journal before release, lawyer in about one half of the high and every time I am at the Bar more appear, and I am hopeful that you wil feel the pos- schools throughout the state and we wil so I see a real interest in this endeavor. itive impact we, of the Bar Commission, continue to focus this program, along with Our Bar is techno-ready, as I call it. We felt upon first seeing them. distributing our book entitled, Rights, now have a homepage on the Internet and I have appointed the chairs of all the Responsibilties, and Relationships. I sug- our staff is working with various state-wide sections and commttees of our Bar, and I gest you pick one up and read it, along technology groups in facilitating communi- am confident that we wil have some excit- with giving it to your children to read. cations through this medium. We desire to ing programs this year. I wil expect that :'1 t Presently, our Bar is putting together a be progressive in this field and provide ser- they wil initiate and promote programs of ¡ t, high-profile group of civic, community, and vices to our members which previously were a very worthwhile nature. I am hopeful that I' government leaders, as well as prominent never anticipated. Watch for more informa- members of our Bar involve themselves in i lawyers and judges, to develop improved tion on this as the year progresses. these activities as the Bar is only as good t i approaches to delivering legal services to New this year, but not new in the thinking as its members and leaders. I the poor and disadvantaged, in the wake of process, is a mentoring program that I hope The Bar staff and Office of Attorney drastic funding restrictions at the Legal to initiate with both Utah law schools. A Discipline are now fully staffed. Both l t Services Corporation. I have travelled to select number of law students wil be chosen offces are very busy and continue to have several conferences on this issue, around by the respective schools to be involved in a great deal of work to do. The Bar Com- the nation on behal of our Bar, as have many this pilot program. The Deans have told me mission works closely with these offces to other of your Bar leaders, and this is a most they are anxious to put this program into ensure high productivity, coupled with a worthwhile cause. This endeavor must be action. This mentoring program wil be a lit- quality work product. Both offices will pursued with strong leadership, and I am tle different, in that it wil involve students continue to grow as our Bar grows, and confident that I wil be able to report posi- before graduation, and give them an oppor- each office is well managed. I am at the tive things to you from these individuals. tunity to learn first-hand about lawyering, Law and Justice Center on a fairly regular Our Bar is also concluding a study by civility, professionalism, along with a hands basis, and our staff is very busy. its Equal Administration of Justice Com- on reality. We intend to put students in the The state of our Bar is positive. We are mittee, which has taken hearings program who might not otherwise have the obviously growing swiftly, with a diverse throughout the state regarding the way opportunity through clerking in a firm or membership. As I have travelled around the minorities are treated within the legal sys- receiving help from a lawyer friend. These country to national conferences and meet- tem, and the Committee shortly wil be students wil most probably be those who do ings, and to state Bar functions here in the makng suggestions on how justice can be not anticipate working in a large firm setting west, I have done a great deal of networking, more faily applied to all. upon graduation. The idea is important and I trying to get ideas on how we can better We are continuing to solicit lawyers to am hopeful that we can match experienced serve our members. I have learned that we volunteer to provide pro bono services, and lawyers and resources with students who have one of the most progressive, member- we now have on staff a knowledgeable, wil gain important insights about lawyering oriented Bars in the nation, and that we are experienced attorney whose job is to before entering the real world of the law, so moving in the right direction. As I compare screen cases, assign pro bono lawyers, and we can forge a program that gives us new our Bar with others, I continually enjoy the assist them in their work. This attorney has lawyers with a wilingness and knowledge positive feedback I receive about what we l a background such that even an attorney about how to practice law appropriately and do and what we hope to do in the future. ~' with no experience in a proposed assign- with civility. We are hoping to commence Yes, fall is in the air. It makes me sit ment, can learn the basic ins and outs the program within the next few months. (but not for too long) and think about about the procedure to help the party in We are also excited to introduce a public things we can do to make the Bar more need. This procedure, coupled with our education campaign which wil focus on member friendly, and lawyers more already established pro bono program, lawyers who have undertaken individual acts friendly toward each other. At least now, f' should exemplify our desire to put those of community service. A series of informa- maybe you, too, can take a moment to attorneys who are wiling and desirous to tional advertisements wil be taken out in reflect on your practice and how it com- help others, in the right place with the right newspapers throughout the state which wil pares to the state of our Bar. I stil love my information, to best facilitate this impor- identify individual lawyers and the public job. Talk to you soon!

6 Vol. 9 No, 8 ,.

What Does the Bar Do for Me?

By James C. Jenkins

mention of the leadership and service which Section. She was president of young lawyers One ofquestions the most of Barfrequently Commissioners asked is, is provided by a first rate executive staff, and ex-officio member of the Commission. "What is the Bar doing for its members?" section leaders, voluntary committee mem- She is the recipient of the Utah State Bar This is certainly not an unfair concern bers and the Board of Commissioners. Space Pro Bono Attorney of the Year award and within an organization where membership in this report wil not permit individual men- was instrumental in an extensive review of is mandatory and payment of licensing fees tion of all of these dedicated people who the Bar's disciplinary activities. She is gen- is a prerequisite to earning a living. In serve the Utah State Bar. A brief profile of the eral counsel and senior vice-president of response members are most often informed current membership of the Commission exem- Summit Family Restaurant's, Inc. and pro- of the many beneficial and essential pro- plifies the high quality of leadership and the vides management expertise to the Bar. jects and programs which are sponsored by level of service we have within our profession. She has served the community as a Big the Bar. The Utah State Bar administers Steven M. Kaufman, President. Steve is Brothers-Big Sisters volunteer, a public admission into the bar through committees serving his third consecutive term as a Com- speaker and lecturer on employment such as the Character and Fitness Commit- missioner. He is a founding partner of the issues, and as a volunteer for the Law tee and Bar Examiners Committee, and Ogden firm of Farr, Kaufman, Sullivan, Gor- Related Education Mock Trial program. regulates a high standard of continued man, Jensen, Medskar, Nichels & Perkins. Charles R. Brown, Third Division. membership through the office of Attorney He is the past president of the Weber County Charles is a partner in the Salt Lake firm of Discipline, the Ethics Advisory Opinion Bar Association and has served as committee Hunter and Brown, and his practice primarly Committee and Ethics and Discipline Com- chairman or committee liaison for numerous focuses on tax and corporate law. He was mittee. And, the Bar actively protects the bar commttees and Sections. He is particularly recently recognized as the Practitioner of integrity of the profession by prosecution focused on promoting a respected image of the Year by the Tax Section. He is a valuable of the unauthorized practice of law. The Bar the Bar to the public. Without question as resource to the business operations of the Bar. also promotes a program of public educa- president, Steve provides more hours of vol- Charles is serving his second term on the tion which serves to enhance the public untary service to the Utah State Bar than any Executive Committee of the Commission and image of our profession. Twenty-five sec- other member. He considers this year his is liaison to the Business Law Section and tions and more than thirty committees and premier opportunity to serve the Bar. the committees on Small Firm and Solo subcommittees exist within the Bar to pro- Charlotte L. Miler, President-Elect. Practitioners, and Law Practice Management. vide special attention to particular interests Charlotte is serving her second term as He is a former member of the Salt Lake and issues affecting the administration of Commissioner from the third division. Next Arts Council, and Board Member of the justice and the practice of law. year she will serve as the second woman Salt Lake City School's Volunteers, Inc. As important and significant as are each president in the Bar's history. Charlotte's Scott Daniels, Third Division. Scott is of these programs, modesty often precludes service to the Bar staited in the Young Lawyers a trial attorney with the firm of Snow,

October J 996 7 Christensen and Martineau and a former Property Section. Denise also serves on the on community organization and private judge for the Third District Court. He is the Board of the Legal Aid Society, the Execu- sector initiatives in resolving urban prob- most recent member of the Bar Commis- tive Commttee of Woman Lawyers of Utah, lems. John serves as Bar liaison to the sion. He has been an adjunct professor at Inc., the Utah Judicial Conduct Commission, Delivery of Legal Services, Needs of Chil- the University of Utah, presiding judge of and is a Fellow of the American Bar Foun- dren, and Needs of the Elderly commttees, the Third District Court, and was recog- dation. Denise is a partner in the firm of Van and the Education Law Section. nized as District Court Judge of the Year in Cott, Bagley, Cornwall & McCarthy. Debra J. Moore, Third Division. 1989 by the Utah State Bar. Scott serves as John Flores, Public Representative. Debra is serving her first term as a Com- liaison to the Client Security Fund Com- John was appointed by the Utah Supreme missioner. She is an attorney with the Civil mittee, CLE Advisory Board Committee, Court in 1993 to serve as one of two non- Appeals Section, Litigation Division of the New Lawyers Continuing Legal Education, lawyers on the Bar Commission. He is now Utah Attorney General's Office. She has and the Unauthorized Practice of Law serving his second term. John has an exten- been an instructor at the University of Utah Commttee. He is also liaison to the Con- sive background in government and College of Law and is a former Chair of stitution Law Section, and is a member of voluntar service. He was Deputy Assistant the Litigation Section of the Bar and mem- the Judicial Performance Evaluation Com- Secretary U.S. Department of Labor, Direc- ber of the Executive Commttee of Women mittee of the Utah Judicial CounciL. Scott tor of the President's Commission on Lawyers of Utah. She is co-Chair of the also serves on the Utah Council of Victims. Hispanic Education, a member of the Presi- Commttee of Equal Administration of Jus- Denise A. Dragoo, Third Division. It dent's Commission on Juvenile Justice, and tice of the Utah Bar Commission. Debra seems she just can't say no. Denise is one of past Commissioner of the Utah State Indus- serves as liaison to the Lawyers helping those persons who makes time for almost trial Commission. John has served on more Lawyers Committee, and the Sections on every cause. She is serving her third term than thirty-five state and local volunteer Appellate Practice, Government Law, as a Bar Commissioner. She is Bar liaison boards, including the Governor's Citizen's Labor and Employment Law, and Litigation. to the Ethics Advisory Committee, Legisla- Commttee on Utah Courts; the Governor's David Nuffer, Fifth Division. David I tive Affairs Committee, and Law Related Commttee on Law and Citizenship, and the represents the largest geographic area of Education and Law Day Committee, also Salt Lake City Judicial Nominating Com- the Utah Bar, covering all of the eastern i the Energy and Natural Resources Section, mission. He has received numerous awards and southern Utah. He is a member of the t Intellectual Property Section and Real for his work and has published many articles St. George and Salt Lake firm of Snow,

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8 Vol. 9 NO..8 Nuffer, Engstrom, Drake, Wade & Smart. Fran is a member of the firm of Parsons, He also serves as the part-time U.S. Magis- Behle & Latimer. He has also had experience WILL & TRUST trate Judge for Southern Utah. Dave has as member of a two-person law firm and the been an active leader of the Bar for many United States Attorney's Office. An active SUPPLIES years and is a frequent CLE presenter. His member of the Bar, he is a former president CORP-KIT NORTHWEST HAS AN ECONOMICAL current focus has been on computer and of the Salt lake County Bar Association, a LIN OF WILL AND lRUST SUPPLIES electronic applications to the practice of member of the Utah Supreme Court Advisory INCLUDING IMRI1ED POLICY ENVELOPES, law. He is a member of the Executive Committee on Rules of Civil Procedure, and COVERS AND COMPLE1E KITS WHICH ALSO INCLUDE IMRI1ED FIRST PAGES AND Committee and Long Range Planning the Utah Appellate Court's Nominating CONTINATION SHEETS. SEVERA TITLES TO Committee of the Commission, and is liai- Commission. He is also a former adjunct CHOOSE FROM: son to the Committees on ADR, Law & professor of the University of Utah Law . LAST WILL and TESTAMENT . WILL Technology, Lawyer Benefits, and the SchooL. Fran is presently a member of the . LIVING WILL . TRUST LAAU Division. Dave is a former presi- Utah Judicial Conduct Commission and . DECLARATION OF TRUST dent of the St. George Chamber of serves as liaison to the Professional Liability . LIVING TRUST Commerce, a member of the Fifth District Insurance Commttee, the Corporate Coun- ALL ENVELOPES AND COVERS WILL HAVE YOUR FIRM Court Judicial Nominating Commission sel Section, Estate Planning Section, and NAM IMPRITED ( UP TO 4 LINS ). and has served on numerous other boards International Law Section. Fran always has KITS AR AVAILABLE WITH SUPPLIES TO PREP AR 25, and civic commttees. Dave's dedication to the best interests of the Bar at hear. 50 OR 100 WILLS, TRUSTS, ETC. WITH ENVELOPES, COVERS, FIRST SHEETS & 4 CONTINATION SHEETS. the Bar is demonstrated by his travel from D. Frank Wilkins, Third Division. NO. 10 ENVLOPES AR 24 LB. WHITE WOVE & COVERS St. George to Salt Lake for every Bar Com- Alphabetically the last, but in many respects AR 24 LB. LEDGER STOCK. mission and commttee meeting. the first member of the Board of Commis- 25 KITS...... $49.95 Plus S & H Craig N. Snyder, Fourth Division. sioners, Frank is certainly the most seasoned Craig is yet another dedicated commis- Commssioner. Fran was admitted to the Utah sioner who is now serving his third term on State Bar in 1951. He is a former District EXHIBIT INDEXES the Board of Commissioners. He has been Cour Judge, Chaian of the Judicial COlIDCil instrumental in makng significant changes and a Justice of the Utah Supreme Court from & CLOSING SETS in the organizations of the Bar and the 1976 to 1980. He is now serving his second bench. In 1987 he was recognized as term as a Bar Commssioner. Frank is liaison EXHIBIT INDEXES - ALPHABETICAL Domestic Relations Lawyer of the Year by to the Bar Commttees on Bar Examiners, Bar EXHIBIT INDEXES - NUMERICAL the Utah State Bar. He is a member of the Examiner Review, and Bar Journal, and to CLOSING SETS - ALPHABETICAL Provo fim of Howard, Lewis and Peterson. the Constrction Law Section, Militar Law CLOSING SETS - NUMERICAL WRITABLE TAB SETS Craig serves as Bar liaison to the commit- Section and (appropriately) Young Lawyers tees on Character and Fitness, Courts and Division. Unkown to many are the hours of Judges, Fee Arbitration and Legal/Health- pro bono service he provides to fellow CORPORATE OUTFITS care. He is also liaison to Sections on lawyers, judges, and others in counsel and WITH BY-LAWSIMINIRSOLUTIONS PKG. $52.95 Collections Law and Family Law. legal assistance. Frank is of counsel to the W/O BY-LAWSIMNIRSOLUTIONS PKG. Ray O. Westergard, Public Represen- firm of Berman, Gaufin, Tomsie & Savage. $49.95 tative. Ray is also a public member of the Eight others serve as ex -offcio members LLCOUTFITS Commission appointed by the Utah of the Board of Bar Commissioners: Daniel LTD. PART. OUTFITS Supreme Court. He is a CPA and a parner D. Anderson, Young Lawyers; James B. Lee, FAM. LTD. PART. in the accounting firm of Grant Thornton, ADA; Steven Lee Paton, Minority Bar; OUTFITS LLP. Ray is a member of a number of pro- Beatrice M. Peck, Woman Lawyers; Dean fessional organizations including the Lee E. Teitlbaum, and Dean H. Reese NON-PROFIT OUTFITS American Institute of Certified Public Hansen, law schools; Ronald W. Gibson, $59.95 ALL OUTFITS WITH EMBOSSING SEAL & Accountants and the Utah Association of Administrative Office of the Courts; and POUCH Certified Public Accountants, where he has Dennis V. Haslam, past president. been a -member of the Board of Directors My report can only begin to describe the ORDER TOLL FREE! and President of the Central Chapter. Ray treasure of service and leadership which these served on the Utah State Bar Security Commissioners are to the Utah State Bar. I PHONE 1-800-874-6570 Advisory Commttee and was instrmental consider it an honor to be a lawyer and a FAX 1-800-874-6568 in financially restructuring the Bar. He is privilege to be a member of the Utah State ORDERS IN BY 2 PM MT SHIPPED SAM DAY Chair of the Bar's Finance Commttee, and Bar. Every member of the Bar can make a WE WILL BILL YOU WI YOUR ORDER serves as liaison to the Security Advisory contribution to the strength and integrity of SATISFACTION GUAR1EED Committee, the Banng and Finance Sec- our profession, so when you wonder what tion, the Bankruptcy Section and the CORP-KIT NORTHWEST, INC. the Bar does for you, look at the service pro- 413 E. SECOND SOUTH Securities Law Section. In his spare time vided by these people you have elected. BRIGHAM CITY, UT 84302 Ray devotes time to scouting and youth. They are among those who make it possible SERVING THE NORTHWEST Francis M. Wikstrom, Third Division. for us to practice law and serve others.

October 1996 9 LJ

Jurisdiction Issues in Child Custody, Visitation and Support Cases

By David S. Dolowitz .

action that had originally been brought to In today'squently mobilefaced societywith the we problemsare fre- judgment in the Fifth District Court, it was present when a client has a custody prob- clear error. The Court ruled that the Third lem, a visitation problem or a support District Court had no subject matter juris- problem involving family members or for- diction absent agreement of the parties to mer family members who reside in more transfer the matter to that court. The decision than one state. In order to resolve jurisdic- of the Third District Court was vacated. tional disputes that arise, the states have The rule that emerged is clear; once a district adopted the Uniform Child Custody Juris- court in Utah-enters a decree of divorce, diction Act (adopted in some form by all modification proceedings must be insti- 50 states) and Congress enacted the tuted in that court unless the parties agree Parental Kidnapping Prevention Act to set to move the proceedings to another district. uniform rules governing custody and visi- tation disputes when the parents or FOREIGN JUDGMENTS IN UTAH children reside in different states. In addi- If one wishes to enforce or modify a tion to govern setting and collecting foreign judgment in the courts of the state support, the presently existing Uniform of Utah, it can be done in several ways. It Reciprocal Support Act is being replaced DAVID S. DOLOWITZ is a Fellow of the must be effected by bringing an action to by the Uniform Interstate Family Support American Academy of Matrimonial domesticate the foreign judgment in Utah Act which was adopted in Utah in 1996. Lawyers, President of the Mountain and/or modify that judgment, by filing in The following article was prepared as a States Chapter of the American Academy the Utah court pursuant to Section 78-45c-15, discussion of and source material for work- of Matrimonial Lawyers, Fellow of the the Utah Uniform Child Custody Jurisdic- ing through these problems. First, it International Academy of Matrimonial tion Act, or by filing under the Foreign examines the issue of determining actual Lawyers and a past President and mem- Judgments Act, Section 78-22a-l et. seq. The ber of the Executive Committee of the jurisdiction. Second, the article reviews the 1996 Legislature enacted domestic violence situation where more than one state has Family Law Section of the Utah State Bar. He was named Lawyer of the Year, amendments to the Utah Code, Section 30- legal jurisdiction to act and the courts of 6-l (8) which provides for enforcement in the states involved must decide which state 1988-1989 by the Family Law Section. Mr. Dolowitz is Chairman of the Utah Utah courts of foreign protective orders should act. Supreme Court Advisory Committee for where a protective order has been entered The Utah Supreme Court has clearly Juvenile Court Rules of Procedure. He by another state in conformity with due articulated the constitutional rule that has published numerous articles in The process of law and the procedural require- before a court take any action, it must have Utah Bar Journal and Fair$hare. ments of the Utah Domestic Violence Act. both jurisdiction over the parties and the The traditional method of domesticating subject matter, Rimensburger v. Rimens- a foreign judgment is to file an action to burger, 84l P.2d 709 (Utah App. 1992); A UTAH JUDGMENT IN UTAH enter a foreign judgment as a Utah judg- II Arguello v. Industrial Woodworking Machine Once an action has been instituted in ment. This is effected by securing an f Co., 838 P.2d 1120 (Utah 1992). Applying Utah that has resulted in the entry of a authenticated copy of the foreign judgment those principles to custody, visitation and decree of divorce adjudicating custody, visi- and filing an action for its entry in Utah as " child support actions involves two types of tation or child support, absent an agreement a Utah judgment requesting enforcement or II cases: those that are to be handled in Utah to change venue, further actions to modify modification as would a paity in a Utah court where either a Utah judgment or a foreign this judgment must be brought in the origi- (in the district where the defendant resides). judgment is to be enforced, and those cases nal court. Rimensburger v. Rimensburger, Angel v. Sixth Judicial District Court of outside of the State of Utah where a Ut~h 841 P.2d 709 (Utah App. 1992.) In Rimens- Sevier County, 656 P.2d 405 (Utah 1982). judgment is to be enforced. Each of these burger, the Utah Supreme Court ruled that To utilize the procedure under the Uni- two categories of actions presents different when the Third District Court heard modifi- form Child Custody Jurisdiction Act, one problems which must be addressed. cation and enforcement proceeding of an must comply with the procedure described

10 Vol. 9 No. s' - ,-

in Section 78-45(c)-15 which states: dency proceedings." "(1) A foreign protective order is "( l) A certified copy of another What is particularly noteworthy under enforceable in this state as long as it state may be filed in the offce of the these definitions is that a custody determina- is in effect in the issuing state or clerk of any district court of this tion involves custody and visitation under political entity. state. The parties to the action shall the Uniform Child Custody Jurisdiction Act "(2) (a) A person entitled to pro- be notified of the filing and shall be but not child support. tection under a foreign protective given an opportunity to be heard on Turning to the third method, registration order may file the order in any dis- the jurisdiction of the other state's of a foreign judgment under the Foreign trict court by filing with the court a custody decree before enforcement Judgment Act, Section 78-22a-l et. seq., one certified copy of the order. A filing of that decree. If the copy has not been would proceed by filing a judgment pursuant fee may not be required. filed, it shall not be considered a to this act following the procedures set forth "(b) The person filing the valid custody decree. The clerk shall in Section 78-22a-3 of the Utah Code which foreign protective order shall swear treat the decree in the same manner provides: under oath in an affidavit, that to the as a custody decree of the district court "Notice of fiing. best of the person's knowledge the of this state. A custody decree so "(1) The judgment creditor or attor- order is presently in effect as written filed has the same effect and shall be ney for the creditor, at the time of and the respondent was personally enforced in like manner as a custody filing a foreign judgment, shall file an served with a copy of the order. decree rendered by a court of this affidavit with the clerk of the district "(c) The affidavit shall be in state as provided in Section 78-45c-l2. court stating the last known post office the form adopted by the Administra- "(2) A person violating a custody address of the judgment debtor and the tive Office of the Courts, consistent decree of another state which makes judgment creditor. with its responsibilities to develop it necessary to enforce the decree in and adopt forms under Section 30-6-4. this state may be required to pay nec- "(d) The court where the essary travel and other expenses, order is filed shall transmit a copy of including attorney fees, incurred by ". . . to enforce a judgment. . . the order to the statewide domestic the party entitled to the custody or violence network described in Sec- his witnesses." from outside. . . Utah, the tion 30-6-8. It should be noted that the following judgment must be registered. . . ." "(e) Upon inquiry by a law requirements of 78-45c-15 of the Utah enforcement agency, the clerk of the Code provided enforcement, not modifica- district court shall make a copy of tion of a foreign decree. Therefore, an the foreign protective order available. action to modify a foreign decree would "(2) Upon the filing of a foreign (3) Law enforcement personnel have to be pursued after registration' and judgment and affidavit, the clerk of the may rely: any such action would have to comply with district court shall notify the judgment (a) Upon a certified copy of the requirements of both the Uniform debtor that the judgment has been filed. any foreign protective order which Child Custody Jurisdiction Act Section 78- Notice shall be sent to the address has been provided to the peace offi- 45c-l, et seq. and the Parental Kidnaping stated in the affdavit. The clerk shall cer by any source; and Prevention Act, 28 U.S. Code Section record the date the notice is mailed in (b) On the statement of the l738A. These are discussed infra. the register of actions. The notice shall person protected by the order that the In interpreting and applying 78-45c-15, include the name and post-office order is in effect and the respondent one should keep in mind the definition of a address of the judgment creditor and was personally served with a copy of "custody determination" as set forth in the name and address of the judgment the order. Section 78-45c-2(2): creditor's attorney, if any. (4) A violation in Utah of a for- "(2) 'Custody determnation' means "(3) No execution or other process for eign protective order is subject to the a court decision and court orders and the enforcement of a foreign judgment same penalties as the violation of a instruction providing for the custody filed under this chapter may issue until protective order issued in Utah.'" of a child, including visitation rights; 30 days after the judgment is filed." On the face of this statute, it would appear it does not include a decision relating If one follows a foreign judgment regis- to create a fouith method by which a custody to child support or any other mone- tration procedure (U.C.C.J.A. or Foreign and/or visitation order can be docketed and tary obligation of any person;" and a Judgment Act) and anything other than then in force in the state of Utah. : custody proceeding as defined in enforcement of the decree is involved, an Section 78-45c2(3): action must be instituted after the judgment ENFORCEMENT IN UTAH "(3) 'Custody proceeding' includes becomes a Utah judgment for modification When seeking to enforce a judgment proceedings in which a custody if a modification is permitted under the regarding custody or visitation from out- determination is one of several issues, terms of the P.K.P.A. as discussed intra. The side the state of Utah, the judgment must such as an action for dissolution of new Section 30-6-l2, Full Faith and Credit be registered or acted upon in such a way marriage, or legal separation, and for Foreign Protective Orders, sets forth its as to give the Utah resident an opportunity includes child neglect and depen- own procedure. It provides: to respond before any order is enforced.

October /996 i i ~

See Utah Code section 78-45c- I 5(1); Holm 821 P.2d at ll75. child the court may order that he v. Smilowitz, 840 P.2d l57 (Utah App. An example in the Utah Court of Appeals appear personally with the child. If 1992). In addition, the Utah court and the is Crump v Crump, 821 P.2d ll72 (Utah the party who is ordered to appear court of the foreign state must determine App. 1991). The opinion contains a detailed with the child cannot be served or which state has jurisdiction if there is any explanation of how decrees are enforced and fails to obey the order, or it appears effort to modify or change the existing how the U.C.C.J.A. and P.K.P.A. must be the order will be ineffective, the order. This is governed by the provisions of read together when someone outside of Utah court may issue a warrant of arrest the Utah Code Section 78-45c-l4 which is seeking to enforce a decree in Utah and against such party to secure his provide: describes in detail from what has been sum- appearance with the child. "(1) If a court of another state has marized above as to how the Utah courts can "If a party to the proceeding made a custody decree, a court of take or are prohibited from taking jurisdic- whose presence is desired by the this state shall not modify that decree tion to modify a decree. The antithesis of court is outside this state with or unless (a) it appears to the court of that situation, that is, enforcing a Utah without the child the court may order this state that the court which ren- decree in another state and prohibiting modi- that the notice given under Section dered the decree does not now have fication of the decree by reason of the 78-45c-5 include a statement direct- jurisdiction under jurisdictional pre- actions to enforce it in another state, is ing that party to appear personally requisites substantially in accordance described in Curtis v Curtis, 789 P.2d 717 with or without the child and declar- with this act or has declined to (Utah App. 1990). ing that failure to appear may result assume jurisdiction to modify the / decree and (b) the court of this state in a decision adverse to that party. "If a party to the proceeding who has jurisdiction. is outside this state is directed to "(2) If a court of this state is ". . . a decree from outside of Utah appear under Subsection (2) or desires authorized under Subsection (1) and to appear personally before the court Section 78-45c-8 to modify a cus- may be enforced in Utah. . . ." with or without the child, the court tody decree of another state it shall may require another party to pay to give due consideration to the tran- the clerk of the court travel and other script of the record and other necessary expenses of the party so documents of all proceedings sub- It should also be noted that both the appearng and of the child if this is just mitted to it in accordance with U.C.C.J.A. and the P.K.P.A. defined custody and proper under the circumstances." Section 78-45c-22." as involving both custody and visitation. The fact that the case might be referred This section must be read in conjunction Section 78-45c2(2) of the Utah Code and to the Utah Juvenile Courts and a determi- with the Parental Kidnaping Prevention Section 1738A(b)(3) of Title 28 U.S.C. nation of dependency and neglect does not Act. Section 1738A in Title 28 of the U.S. However, the Parental Kidnaping Prevention affect the result that the Utah courts do not Code, which prohibits a Utah court from Act does provide that a second state will have the power to modify the other state's taking any action except to enforce the for- have jurisdiction to enforce the provisions of decree. State in the Interest of D.S.K., 792 eign order by its terms, 28 U.sc. Section the original state's decree. 28 U.S.C. P.2d ll8 (Utah App. 1990). I738A(a), unless either the original state 1738A(a). This means in everyday language no longer has jurisdiction or has declined that a decree from outside of Utah may be OUT OF THE STATE OF UTAH to exercise jurisdiction, 28U.S.C. Section enforced in Utah by registering the decree or Consequently, if a Utah resident seeks l738A(t). The courts of the original state bringing an action to make the decree a Utah to enforce a Utah decree for custody or vis- retain jurisdiction so long as the child or action, then requesting the court to enforce itation, the courts of the state in which the either parent reside in that state, 28 U.S.c. it. However, the jurisdiction in the Utah other parent resides will not have jurisdic- Section l738A(d). court, once such an action is maintained tion to take any action except enforce the The key to understanding how these two where the original state stil retains jurisdic- Utah decree unless the Utah court gives up acts work together is that, if either parent tion under the P.K.P.A., is only to enforce the jurisdiction where parent or child resides in or child reside in the state that issued the provisions as to custody and visitation. Any Utah. The enforcement may even go so far original decree, the courts of that state change must be initiated in the original state. as to include the arest warrant provisions ~ retain exclusive jurisdiction to modify the Crump, 82l P.2d at 1176-1178. of Section 78-45c-l1 of the Utah Code dis- ,í decree unless the courts of that state sur- In addition to the ordinary enforcement cussed above. render or agree to give up jurisdiction. 28 provisions, Section 78-45c-ll provides addi-

U.S.C. Section l738A(d) and (t); Crump v. tional enforcement tools within Utah. In CHILD SUPPORT ~1 Crump, 821 P.2d 1172 (Utah App. 1991). fact, it contains arrest warrant provisions The concepts of jurisdiction to deal with As the Utah Court of Appeals stated: which are unique to the Utah version of the child support and alimony described in the "This section explicitly limits U.C.C.I.A. This section provides: U.C.C.I.A. and P.K.P.A. above have been when a state, which would otherwise "The court may order any party to adopted in regard to support. The 1996 have jurisdiction over child custody the proceeding who is in this state to Utah legislature adopted the Uniform Inter- dispute, must defer to the state which appear personally before the court. If state Family Support Act, Section originally issued the custody order." that party has physical custody of the 77-3la-100 et. seq. Already in existence, 12 Vol. 9 NO.8 . í

have been enacted in 1994, is the federal of the language of these state and federal custody and visitation. statute Full Faith & Credit for Child Sup- support statutes demonstrates the same All of the states are in the process of port Orders, Section l738B of Title 28 structure is being created for support as has adopting the Uniform Interstate Family U.S.c. Reading together the provisions of been created for custody and visitation. Support Act which will provide criteria for the federal Section 1738B(a) of Title 28 establishing and enforcing child support U.S.C. and the Interstate Family Support CONCLUSION and alimony awards. Act, the courts of no state wil have juris- The first step in determining whether or The structure that is established for diction to change an alimony or child not you can help a client requesting assistance determining whether or not jurisdiction support order issued by the original state in regard to child custody, child visitation or exists and should be exercised is the same having jurisdiction to act in the matter so support is determining whether Utah courts under the Parental Kidnaping Prevention long as either one parent or the child have jurisdiction to act. The second step is Act and the Uniform Interstate Family resides in the original state unless the determining whether or not it is appropriate Support Act. By interpretation under the courts of that state give it up, 28 U.S.c. that the Utah courts exercise that jurisdic- Supremacy Clause of the United States Section 1738B(t). They do, however, have tion. The guidelines of the Utah Uniform Constitution, the Uniform Child Custody the power to enforce and collect the sup- Child Custody Jurisdiction Act exercised in Jurisdiction Act follows the same route. port, 28 U.S.c., Section 1738(a). conformity with the Parental Kidnaping Pre- The Utah Appellate decisions have recon- This system is in the process of replacing vention Act provide the guidelines within ciled these acts and set out the pathway by the existing ERISA statutes. Examination which we represent our clients regarding which the Utah courts apply them.

October 1996 13 ~

Preventive Law: A Personal Essay

By Scott E. Isaacson

requires lawyers to take care of their One daywas when walkng I was across in the law campus school with I clients in the old-fashioned ways - Professor Doug Parker, a very wise and much like physicians practice preven- thoughtful person. One of the walkways had tive medicine. When practiced well, been constlLcted with metal expansion joints. it provides clients with insurance - As we crossed over one of these joints, we insurance against legal problems and noticed that the metal was coming loose, and insurance against litigation. stuck up several inches about the surface of Frederic K. Conover, II (Former Colorado the walkway. Professor Parker, who some- Bar President) VoL. 10 No. l2 The Colorado times taught torts, pointed out that the Lawyer at 2417 (1990) (emphasis in original). University ought to fix that potential hazard, Much of our professional culture is before someone tripped and was injured. derived from the win-lose game of litigation He pointed out that there was such a and dispute resolution. The "heroes" of the thing as preventive law. However, it is sig- legal profession are most often the trial nificant that we both just walked on our attorneys who win the high protïle lawsuits. way and neither reported the potential haz- We do not honor the competent counselor ard to the campus maintenance crew. We who because of his or her knowledge of the recognized a potential problem, but we SCOTT E. ISAACSON is a shareholder of law and careful advice, steers a small busi- were content to observe it and did not King & Isaacson, Pc. where his practice con- ness through a sticky merger or acquisition. become involved enough to take action to centrates on representing business in their Or the corporate attorney who conducts a actually prevent the problem. planning and transactional work as well as thorough audit of his corporation and by litigation. He is a member of Attorneys for We are practicing law in a time of his advice prevents or avoids accidents and Family-Held Enterprises, which is a national i¡ unprecedented attack on the legal system association of attorneys who focus on the injuries to employees or customers. in general and on the legal profession in legal needs of family-owned businesses. He is I have heard many so-called "transac- l particular. Although much of this criticism also a member of the Utah and American tional lawyers" say that they do not feel is unjustified and based on incorrect facts Trial Lawyers Associations, and the Colorado like "real" lawyers, mainly because they do i and Utah Bar Associations. He has served as and figures, most attorneys would agree not go to court. That is an unfortunate a Member Pro Tem of the Utah State Procure- that there are definite failings in our legal ment Appeals Board and is currently serving commentary on our profession. Certainly system. I have been in private practice for on the Centerville Planning Commission. using our knowledge of the law to assist fifteen years, most of the time involved our clients in avoiding the courtroom with litigation. The most common com- should be every bit as valued as trial work. plaint I experience is that dispute ventive law is not really a new concept. Good There are several basic reasons why the resolution through the courts is too expen- attorneys have always practiced preventive concept of preventive law is not prominent sive and time-consuming. This is why law. However, over the last twenty years, the .in the legal profession. First, the legal edu- there is a movement towards alternative counseling aspect of the practice of law has cation system does not focus on preventive dispute resolution ("ADR"). not been emphasized in the American legal law. Second, our current fee structure does However, ADR is just another method system. Few attorneys view themselves as not value and reward counseling to avoid l of solving problems after they arise and "attorneys and counselors" anymore. The disputes as it does winning lawsuits. Third, reach the point of a dispute. I believe that legal profession has emphasized (and Ii many private attorneys are not comfortable I' attorneys can and should be more involved rewarded) winning legal disputes much with the degree of personal involvement at an earlier stage: that of preventing the more than preventing them in the first place. with clients that preventive law entails. dispute to begin with. Preventive law very simply means that t attorneys actively anticipate the prob- PREVENTIVE LAW IS LARGELY THE THEORY OF lems their clients will face in the NOT TAUGHT IN LAW SCHOOL PREVENTIVE LAW future and take steps now to void those Surveys indicate that for every hour Preventive law is a theory of practicing problems. It is a method of practicing spent in court, lawyers spend seven law that emphasizes using legal counseling to law. It is an attitude toward problem hours with clients. Yet law-school train- anticipate and prevent legal disputes. Pre- solving. It is an ongoing process that ing still remains focused on litigation, 14 voi. 9 NO.8 . and the dominant source for law school rules of law and how to apply those rules to schools, the focus is usually on disputes teaching materials is appellate court win cases, and another, how to prevent the that have already reached an adversarial opinions. Most law students fail to dispute which underlies the opinion. An posture, and not on how the dispute could realize that a consultation may be as analogy that some writers have used is that have been prevented to begin with. crucial as the trial of a lawsuit itself. we should read the case reports like a physi- I feel I received a very good legal edu- L. Teply, "Lou Brown's 'Baby' Goes Inter- cian conducts an autopsy: cation, but I was not prepared with the national to Spread Message of Preventive The idea ("legal autopsy"J derives practical skils and knowledge needed to Law," Vol. ll, NO.2 Preventive Law from the medical autopsy, which is practice preventive law. When, as a starting Reporter 40 (June 1992). concerned with the cause(s) of death attorney, I was asked to draft research memos How much of your legal education dealt and medical diagnosis prior to death. for litigation, or to draft appellate briefs, I with how legal problems can successfully By comparison we need to learn the felt at least somewhat confident and com- be avoided? The basic text of our law causes of legal troubles, their preven- fortable. However, when I was called upon school education is case book containing tives, and the diagnosis (treatment) of to work on projects where counseling and primarily appellate opinions. These materi- legal trouble by lawyers. advice was needed, I felt very unprepared. als are based almost entirely on disputes The legal analogy to medical death I had only been out of law school a few which were decided by the judicial system. is a decided controversy or a failed weeks when I was asked to go to a client's In other words, they are based on failure, transaction. If we could conduct office to assist with the preparation of a from a preventive law standpoint. dozens, perhaps hundreds of legal joint venture agreement. I remember very Concerning his experience at law autopsies, we should learn a great deal vividly sitting in the client's offce and dis- school, Louis M. Brown, the "father" of about their causes and disputes, and cussing the contract with both parties and preventive law, wrote: lawyering skills. Then we can develop at one point my client asked me for my (IJt seemed to me that we were con- techniques and improvements to bene- advice on several legal and business stantly thrown into the middle of a fit clients and the justice system. choices he had to make. I hope I stam- stream of facts with no indication of Louis M. Brown, "The Concept of Legal mered out something intelligible. It was the beginning of the client's concerns Health is Encouraged by Preventive Law," something of a shock to me that I was and no discussion of the ultimate Vol. 11, NO.2 Preventive Law Reporter 7 expected to advise the client going into the effect on the parties. An appellate (June 1992). We have not generally treated deal how to structure it. Law school had case, to be sure, does have its start - the raw materials of the law in this fashion. not prepared me for this. we learned a bit about procedure and how a case gets to the appellate court WHAT ARE THE RAW MATERIALS - and it does have its conclusion OF PREVENTIVE LAW? -affirmed or reversed. But is not an The place to find preventive law materials ". . . to practice preventive law, appellate case a manifestation of is in the private law firm or the in-house cor- some earlier beginning - a trial? But we must have a good porate attorney's office. Most transactional a trial is also an event in the series. understanding of the rules of law." lawyers who have practiced for any length of And what of the "final" pronounce- time develop files of forms, examples, check- ment? What, if anything, happened lists and other materials that have proven after that? Are we never concerned useful in helping clients plan their activi- with such earlier, or later, events? The cases reported by the judges are the ties in order to avoid legal problems. These These questions never arose in class. raw materials, which we have categorized are the raw materials of preventive law. Louis M. Brown, Lawyering Through Life and analyzed to learn and articulate what the Law libraries are not geared to the needs 25 (Rothman & Co. 1986). rules of law are. This step is very important. of preventive law. Preventive law deals Most of us would agree with Thomas In order to practice preventive law, we must with using correct procedures and forms of Shaffer, the former dean of the Notre Dame have a good understanding of the rules of agreement in order to avoid disputes. Yet, law school, who points out that "For every law. Certainly seeing what has gone wrong the typical legal library does not contain property matter that is laid before a judge for in the past is one of the best ways to learn this type of information in a systematic decision; there are 10,000 property matters \ how not to go wrong in the future. However, way. Again, the focus is on the abstract ì that are worked out - thought out, negotiated most often in legal education we do not go rules of law and on the case reports. out, planned out - in the law office." T. that last step. We do not take the lessons I believe that the form of files of a good Shaffer, "Reports of Litigation are Wreckage from the lawsuits and analyze how the prob- real estate attorney who has practiced suc- From Failed Attempts at Harmony," Vol. 11, lems reported in the case could and should cessfully for twenty years would teach me NO.2 Preventive Law Reporter 8 (June 1992). have been avoided to begin with. much more about how to practice law pre- And yet, what do we principally study To continue the medical analogy, it would ventively, than all the property law in property law? We study case reports - we be a poor physician who would continue casebooks in the world. Yet, very litte of focus on the one case in a thousand where merely to treat the symptoms of a disease if this "front line" legal learning filters back the courts have to work out a solution. he knew how to cure or prevent it. into the law school curriculum. There are several ways of reading the Even in the ADR classes and negotiation The only way in which preventive law case reports. One, is to learn the abstract classes that are now taught in many law wil really enter the law school curriculum

October 1996 15 -- I'

J!, wil be when someone gathers from the future legal fees. In one sense, therefore, invention. The emphasis on hourly biling successful practicing law offices the tried preventive law is sometimes against a is a side effect of the growth of the large and tested legal solutions, organizes them lawyer's short-term economic interest. business law firms, which grew in the sev- and teaches them. Sometimes I have jokingly told my enties and eighties. clients that I ought to be paid for keeping I practice with a partner who has been

VALUING PREVENTIVE LAW them out of trouble. It is ironic that attorneys practicing law for fifty years. He has had a ., I have asked myself why more attorneys make more money when things go wrong for very successful career as a general attor- do not talk about and advocate preventive law their clients. We do not have a very good ney, doing trial work and advising several ~ more in their practice. I believe there are way of valuing and rewarding good legal businesses. He has done very little of his ,i several reasons. First, as pointed out above, advice that saves a client money. work on an hourly basis. That was not the focusing on preventing disputes is not the way he was taught to bill when he went to way we are taught lawyering in law schooL. Harvard Law School in the 1940's. Most of l

Many of us simply do not have that mind-set. his non-litigation work is done on a flat fee Ii However, perhaps it is a sign of my cyn- III "The level of hourly fees most basis. He learns the facts and what is , I icism, but I believe a major reason we do not needed and he determines a flat fee for I focus more on preventive law, is that preven- attorneys charge scare off drafting the document or negotiating the tive law does not generate the kinds of fees most small-to-medium transaction. All of his litigation is done on that adversary lawyering generates. There sized businesses. . . ." a contingency basis. He calls the law firms is simply not as much money in counseling that stress only bilable hours "law factories." and advising clients on how to avoid legal Under the Rules of Professional Conduct, problems as there is in litigating disputes. the time spent on a project is only one of For example, I am the attorney for a However, the most important reason to numerous factors that attorneys should con- small family corporation that has bought sider in determining the reasonableness of engage in this type of preventive law is not several food franchise restaurants. I reviewed their fees. The entire list of factors includes: their franchise agreements for them, rec- economic. The best reason is simply to assist in avoiding injuries to human beings. I have (1) The time and labor required, the ommending some contractual changes and novelty and difficulty of the questions rarely seen or heard of litigation involving I negotiated commercial leases for them. involved and the skill requisite to perform real people that did not leave both sides Mostly routine things. Then they brought the legal service properly; in a new franchise agreement that they shredded, both emotionally and often finan- cially. Certainly there is satisfaction in (2) The likelihood, if apparent to the really wanted to enter into. I reviewed it client, that the acceptance of the particular preventing such injuries to people. and to make a long story short, came to the employment wil preclude other employ- conclusion for a variety of reasons that ment by the lawyer; THE CURSE OF they should not enter into that agreement. THE BILLABLE HOUR (3) The fee customarily charged in the It was what I had been trained to call a locality for similar legal services; One of the major obstacles to preventive "business question" and not purely a legal law is that lawyers have priced their services (4) The amount involved and the results question. There were a few legal reasons obtained; in such a way as to scare away the people why the deal was not good, but the princi- who could most benefit from preventive law. (5) The time limitations imposed by the pal reason I was opposed to it was that client or by the circumstances; simply it did not look like the franchise How many times have lawyers become involved in a dispute and, after learning the (6) The nature and length of the profes- was likely to be successful for my client. I sional relationship with the client; faCts, it is apparent that if the parties would strongly advised my client not to enter into have consulted with an attorney sooner the (7) The experience, reputation and abil- the deaL. My client really wanted to - he ity of the lawyer or lawyers performing the dispute could have been avoided. However, was convinced that it would be a great services; and most people and most small businesses do money-making opportunity for him. (8) Whether the fee is fixed or contingent. He left my office and said he would not think they can afford an attorney. I have worked with many small business owners Thus, not only is it proper to consider think about it for a few days. In a few many other factors than just the time spent over the years and the main reason why they weeks he came back to thank me for my on legal services, it could be argued that do not seek legal counseling before they get advice. He said that he had found out that into trouble is that they are afraid of the we are required to consider the numerous the franchisor was in litigation with several costs. And the factor which causes the other factors listed and if we focus only on other franchisees and they would have the amount of time spent we may be violat- biggest fear is the hourly rate. been buying into an almost certain disaster. ing the rules of professional conduct. In the last twenty to thirty years, the bill- I often thought that I would certainly The level of hourly fees most attorneys able hour has practically become sacrosanct have made much more in legal fees if my charge scare off most small-to-medium- in the legal profession. It is almost as if any client would have entered into the agree- sized businesses and almost all individual other method of biling for service rendered ment, as he wanted to. I was paid a few people. In most communities, almost all is suspect. It is probably surprising for many hundred dollars for advice that saved my attorneys in private practice compete to do attorneys to learn that billing by the hour as client thousands and thousands of dollars legal work only for the large corporations the primary biling method is a fairly recent in costs and who knows how much in and banks, having priced themselves out of 16 Vol. 9 NO.8. I other markets, Ironically, it is small busi- majority of citizens and small businesses Sometimes, I have established a rela- nesses who have the most to gain and to which cannot afford traditional private legal tionship with clients where I told them that lose because of their legal choices, Small services, I personally cared about them. If that businesses often need legal advice more There have also been some attempts at strikes you as unprofessional, I want to ask than the large corporate clients in the sense pre-paid legal services and even some exper- you why. Why should be conduct our that they have much more to lose or gain iments with legal cost insurance, both of "business" devoid of human caring feel- from a particular decision or transaction. which include aspects of preventive law. ings and relationships? As has been pointed out in national politi- However, these concepts have not gained The culture of litigation instead of cal debates recently, small businesses wide acceptance. counseling has become predominate. How- provide a majority of the jobs in the United ever, the values of litigation, for all the States, Thus, the human costs of legal participants, are not often conducive to car- problems for small businesses are probably ing, constructive human relationships. In war, the only way one side can justify higher than for big corporations, ". . . we need to erase the image The point for preventive law purposes is the horrors perpetrated on the other side is that attorneys do not need to let hourly of the attorney as the hired gun, to de-humanize or demonize the opposi- rates stand in the way of providing legal the mercenary. . . ." tion. We always create the impression that services. A stated hourly rate scares away the enemy is not like us. Too often this people who most need legal services, same thing occurs in litigation. In the heat Telling them that you instead wil bil them of battle, terrible injury can be inflcted on a pre-agreed-upon amount for a particular I do not know exactly how preventive law the emotional well-being of the opponent. I service is much more palatable for the can be made available to more people and at have seen both clients and attorneys treat clients. Obviously, the flat fee or commis- the same time be profitable for the attorneys people in litigation in a fashion that they sion-based fees do not work for all kinds of providing the services. I do believe that this would never treat other people in other legal services, but they do lend themselves is an area that should be explored and that circumstances. to the kinds of things that a preventive much more could be done to incorporate the Litigation, like war, is ultimately justi- lawyer should be doing, Eliminating or concepts of preventive law into our system fied in certain situations. We should not greatly reducing the hourly rate as the sole of providing legal services. hesitate to go to court to defend the rights billing method removes one of the major Most of the clients that I do practice pre- and interests of our clients if they are barriers to preventive law, ventive law with came into my office threatened. We should also develop and The "old" concept of being "on originally because of an existing dispute. refine litigation skills so that we will do retainer" to a client could also be one When we got to know each other I tried to our best for our clients in that arena. How- avenue to provide preventive law services. educate them that problems like the one that ever, we need to regain the concept that If small business owners knew that by pay- brought them in to see an attorney could litigation, like war, is a very destructive ing a monthly fee they could call their probably have been prevented if they would enterprise and should only be engaged in attorney and obtain legal advice at any have consulted with me or another attorney as a last resort We should focus much time, they would be more likely to place earlier. We then establish a relationship more of our energy, both in learning and in that call before getting into legal problems. where they feel they can come to me for practice, on developing methods and skills Even with alternative billing methods, it counseling about their business matters at of preventing legal disputes through early stil remains that preventive law services the preventive law stage. and appropriate legal counseling. are often not nearly as profitable for an What needs to happen is that attorneys Unfortunately, we have taken the cul- attorney as a juicy lawsuit The truth is that need to be better prepared to provide preven- ture of litigation as the central defining not nearly enough businesses and individuals tive legal services, and the public at large concept of what it means to practice law, at the present time seek legal counseling needs to be much better educated that such and we have largely forgotten that law can before disputes arise, Unfortunately, if you services are available. At least we need to be applied preventively to help people and were to decide only to practice preventive erase the image of the attorney as the hired businesses avoid costly disputes. law, you probably would starve. gun, the mercenary who fights the client's Moreover, when our focus is on litigation, Ultimately, I am not sure that preventive legal battles, and instead inculcate the image we often tend to become over-specialized. law for small businesses or for individual of the attorney as a counselor and advisor It is economically efficient to focus on a people can be practiced profitably in the who can assist the client in avoiding costly narrow range of legal issues. However, like traditional private law firm setting. Just as legal disputes. the medical specialist who treats one part ", preventive medicine is funded by public of the body rather than the person, we end funds, perhaps we need to have preventive PREVENTIVE LAW up treating legal problems, rather than the legal services provided to the public CAN BE LIFE-AFFIRMING entire client Preventive law, on the other through some analogous method. Just as Perhaps practicing preventive law may hand, requires encyclopedic understanding we have public health doctors who primar- not be as profitable as other legal specialties of the law and a sense for human nature. ily practice preventive medicine, perhaps but if you can take real satisfaction from Preventive law offers great opportunities we need to have public legal health attor- other intangible rewards, preventive law is for creativity and originality. neys who focus on preventive law for the ultimately life-affirming. Too often attorneys become merely continued on pg 34

October 1996 17 --

Imaging for Attorneys

By David Nuffer L í

Ii

decreasing cost of computers and imaging Ii Imaging,specialized long usedsituations, by attorneys is emerging only asin peripherals, such as scanners, printers, í " another useful technology for lawyers. large screens, and mass storage, have per- Imaging is a term applicable to the capture, mitted wider use of imaging. storage and handling of images of docu- Two software vendors, Microsoft and ments by computer. IBM, are introducing free imaging soft- Fax or facsimile is an example of imag- ware that wil increase the average user's ing technology. The fax machine makes a familiarity with imaging technology. These copy of a document by optical means, con- vendors have made a decision to use imag- verts the optical image to data form, and ing to add value to their offerings of other transmits it over the telephone where software with the idea that imaging ought another fax machine prints the image, or a to be included in the basic software receiving computer may store the image installed on every computer sold. and display it on demand rather than print-

ing it on paper. MICROSOFT- WANG Ii Imaging differs from e-mail and the Microsoft and Wang offer "Microsoft usual handling of data by computer. A doc- Imaging for Windows 95" ("IFW"). IFW ument image, like a fax, is a picture of a DAVID NUFFER is a member of Snow, wil be bundled with Microsoft Windows document, not the record the keystrokes Nuffer, Engstrom, Drake, Wade & Smart, 95 software in the future, but is already and formatting commands by which the with offces in St. George and Salt Lake available free on the World Wide Web. document or e-mail message was created. City. Mr. Nuffer received his B.A. cum IFW lets users scan, fax, compress, decom- A fax or image does not contain the words laude in Humanities from Brigham Young press, e-mail, view, manipulate and of the document stored directly but rather University in 1975 and his J.D. cum laude annotate sequences of images. the image that was rendered in the paper from the J. Reuben Clark Law School in Users can view the full page of each copy. A fax or image cannot be directly 1978. He has served as a commissioner document image, thumbnails (greatly edited like a word processing document but for the Utah State Bar since 1994. reduced copies of which many fit on the it may be converted to a word processing screen at once) of all the page images document by optical character recognition within a collection, or use a combined (OCR) equipment. each important item. All of the users may mode of full page and thumbnaiL. The soft- Imaging has the benefit that paper search the collection at computer speeds. ware supports rotating, scrollng, panning, copies may be scanned without interpretation Any user with access by network (whether and zooming, so the view of a document and stored on a computer like pages of a inside or outside the office) can view all can be optimized. In addition, pages can be fax. There is no need to worry about com- documents in a file or on a subject. inserted, deleted and reordered. Annotation patibility of word processors. Though text Proponents of this technology make a tools allow highlighting of information with may be mingled with photographs, draw- convincing case that imaging systems can colored lines and boxes or by sticky notes. ings and other graphics, a person using an reduce storage and copying costs, and can imaging system may record all such mater- improve the security and convenience of IBM ial in one image format without difficulty. archives. Users of recently enhanced imag- IBM has introduced "Personal Imaging A person may use imaging technology ing systems have easier access to documents Edition" ("PIE"), another free, low-end to scan, index, store and retrieve large doc- than in conventional fiing systems. Imaging imaging package. PIE adds a collection of ument collections in an orderly manner. In can reduce the need for paper output of images (whether or not created with the this technology images are stored electron- standard computer reports, such as client PIE program) to an executable computer ically in a form like a sequence of biling records. file which contains its own viewer. A user photographs. Once the images have been Formerly imaging was used only in high can send a spreadsheet or word processing collected, the imaging system wil index production settings because of the expense document to someone who does not have the collection. It may provide multiple of the necessary hardware and software. the originating software application and users with access, reducing the need for Dramatic increases in desktop computer the recipient can stil see it. The CD ROM each participant in a team to have a copy of availability and power, coupled with version of PIE contains a useful tutoriaL.

18 Vol. 9 No. 8 i= I .-

Documents other than images can be IMAGING IN THE SMALL OFFICE format may be made available to users as stored in PIE. PIE includes an index and Imaging in the small office has become images rather than printed or displayed database adequate for small group needs. quite easy. Due to the advent of the combi- data by the accounting software which nation scanner/fax/copier/printer for under reduces the number of licensed copies of the COMPARISON: PIE vs. IFW $500.00, the hardware for imaging is already accounting software that a site must acquire. Both PIE and IFW are suitable for a widely available. While these small Some imaging software can also index person working alone. Wang has offce/home solutions may not support all of standard data files, including word pro- announced that it will create a multi-user the features of imaging systems software, cessing and spreadsheet documents. This ) version of its software (presumably related usually they have the necessary features. All gives general-purpose document manage-

,i to IFW) and a network version of PIE is that is lacking is the decision to implement ment capability to the imaging software. i available now for $3,000.00. Both wil imaging. Indexing. Indexing is usually the step undoubtedly have further network exten- following capture in the image manage- sions and additions in the future. THE IMAGING PROCESS ment process. Because images cannot be PIE runs under Windows 3.1, while There are several phases in the imaging searched by indexing software, the user IFW requires Windows 95 or Windows NT. process, capture, indexing, storage, retrieval, must create an index record for each image IFW does not support higher volume ISIS and display. that provides a means of finding the image compatible scanners, but PIE does (ISIS Capture. Capture is the first step in an later. Usually these indexes contain lists of refers to a type of high speed scanner). imaging process. The operator uses a scan- keywords and subject, date, and file num- For the small office or for working at ner to convert a paper document into a ber identifiers. There are indexing systems home either system is a good first step into computer readable image. The process cre- which include optical character recognition the technology. ates a photograph or picture of a document. ("OCR") capability to interpret the text portions of images and create interpreted IMAGING IN THE COURTS data copies of images which the user may Utah's courts are leaders in the imple- search by means of full text search soft- mentation of imaging and related "Some imaging software can also ware. OCR software is not perfect, technologies. The State-Federal Judicial however, and full-text searching of images Observer reported recently on Utah's plans index standard data files. . . ." is only as good as the OCR can make it. to use imaging for archiving. In addition, Storage. After an image is captured and Utah's courts are exploring means of filing indexed, it must be stored. Usually images images of pleadings by electronic means in are stored in a standard magnetic hard disk court documents to paper but rather submit The principal attributes by which scan- when first captured. This stored data may them to the court and to opposing counsel ners differ are speed, the ability to scan one easily be altered. Storage on a traditional electronically, via e-mail or a similar sys- or both sides of a page at once, and inter- hard disk enables the indexing information tem. The courts and counsel then hold such face, or the system by which a computer to be added after capture. documents in on-line document collections controls an attached scanner ("Twain" and For permanent use, however, because of in such a way that parties with the right of "ISIS" are standard scanner interfaces). the large volume of image files, images are access can conduct full text searches in the Hewlett Packard's Model 4si dep~rtmen- usually stored to magneto-optical ("MO") collection. tal scanner can scan a document and direct or compact disk ("CD") media. A new for- The courts have projected two phases the image fie to a specific user across a net- mat, DVD, or Digital VideoDisk, is in for the use of imaging and electronic fiing work. The scanner operator controls the development that wil store about ten times a. trial basis destination of the image through a panel on as much on a compact disk as the CD for- b. concurrent basis in which parties may the front of the scanner. This can facilitate mat. The transfer of images to CD requires file conventional paper, images of docu- incoming mail and fax distribution as well as planning and the maintenance of a retrieval ments, or electronic data documents. the distribution of images. The Hewlett capability that can find CD's in an archive Eventually imaging wil be supplanted Packard software also supports sending or in a multiple disk reader. The software by electronic filing (fiing of pleadings rep- image files as e-maiL. must have the ability to put the indexing resented by the keystrokes and formatting Some new imaging software that captures information and the images in a location . II information needed to print or display a images from sources other than a local scan- where they wil be accessible together at a copy rather than by an image) to some ner. For example, a fax is nothing more than later time, and must also be able to spread extent, but the need for imaging for docu- a collection of images made remotely and a collection of images over more than one Ii ments which do not arrive in electronic forwarded by telephone. These software CD without losing information. form (such as exhibits bearing marks of a packages support handling a fax as an image Network Issues. As the user captures graphic rather than textual nature and doc- which may be viewed and manipulated with- documents, network issues emerge. Trans- uments from the electronically challenged, out printing a paper copy. ferring image files over a network strains e.g. handwritten petitions from pro se liti- Computer reports are sometimes printed the capacity of the network because of the gants) wil continue. directly to laser disk or magneto-optical disk volume of data involved in images. Imag- as data in a format called COLD (Computer ing may load a network heavily enough to Output to Laser Disk). Reports in COLD justify either changing network attributes

October 1996 19 --

IIi

(such as from Ethernet at 10 milion bits the capability to embed image files in docu- on CD may be made for court or for stor- per second to Fast Ethernet at LOO milion ments so that a person viewing a reference age offsite in a facility protected against bits per second), segmenting your network to the image may summon the image by fire and other environmental risks. Images (so that all network traffc need not be car- clicking on a link of some sort (either for may be encrypted to protect against the ried to all network users) or taking other example by Microsoft's object linking and possibility that the disk falls into steps to increase the carrying power of the embedding ("OLE"), or by a link like those unfriendly hands. (A person cannot view network. These steps may require changing of the World Wide Web). an encrypted image without access to the the wiring over which the network runs Most viewing software allows annotations coding information under which it was and installing new network interface cards - referred to as sticky notes, for example - encrypted. and hubs. to be attached to images. The annotation is Experience with imaging shows that the RetrievaL. Retrieval software enables actually kept in a separate data file stored use of imaging software can lead to a access to imaged documents by means and transmitted separately from the image, reduction in the use of paper copies, if ade- similar to the search method used in a yet the software makes the annotation avail- quate screen displays are available for computerized research system. Rather than able to persons using the imaging system. viewing the images. When people can see a going to a file folder and looking inside it document at their desk on demand, they (which is still possible in most imaging feel less inclined to make a copy. systems) users wil have to adapt to search- ing indexes for documents. "Good management and hard work THE LAW OF IMAGING. Indexing may lead to added conve- You may not implement imaging in nience. For example, a search for all will continue to be necessary." your office, but you may stil need to billngs and all copies of checks on a par- understand the process because it wil ticular file within certain date range can come up in your practice. Legal issues wil result in simultaneous retrieval of docu- arise from imaging. One such issue is ments which would be spread in an actual BENEFITS OF IMAGING whether an image can be an original for physical filing system. Imaging can appear to be a ponderous purposes of the Best Evidence Rule. The Display. Usually the retrieve command process, because on the front end more work authentication of an imaged document is executed from viewer software. Current is required than with conventional paper poses difficulties, Signatures and notarial imaging systems locate several important fies. A person performs fiing in an imaging certificates may be displayed as part of an functions in the document viewer. The system by capturing and indexing images image and may be reproduced on a paper viewer may display documents at any size, prior to any handling of them, rather than copy. But persons interested in deception and rotate, or invert the image to make up after the process of handling the documents can modify images, by adding indicia of for errors in operating the scanner. Some as with paper documents. With imaging, a authenticity in ways that are difficult to software can 'de-speckle' or clean-up flaws different discipline is necessary where the trace. This problem is similar to the Busi- from the image. capture and indexing should occur earlier. ness Records problem, where some credit A large, high-resolution screen is The overall process may be quicker with is given to a document simply because it is required for viewing images. A 2l inch imaging, especially where documents are found in a location where documents are screen displays two letter-size images side- routinely distributed to several users, usually trustworthy. Repositories of images by-side. A 17 inch screen would facilitate because extra time spent for capture and wil develop which are known to be certifi- moderate use of an imaging system. storage may be offset by quicker retrieval able and trustworthy, like the file of images Use. The user should be able to print, and transmission. of surveys which are maintained on micro- mail or route the image, embed it in other Integrated tools for imaging documents film by certain land offices. Such documents, and use the image from the wil facilitate the process. Paper documents collections will likely one day be duly cer- viewer in all the ways the organization involve sticky notes that fall off, paper clips tified by government custodians. deems necessary. that pick up more or fewer pages than Computer images do not contain non- A good imaging systems supports mail- intended, papers filed in the wrong folder, content evidence such as inks, holes, paper ing image documents to others with and other-familiar problems. Imaging repre- chemistry, staples, white-out marks, and accompanying instructions, comments, and sents the possibility for new kinds of wear that paper originals provide for the text fies. This may be implemented effi- difficulties (images associated with the inquiry into authenticity. The law of evi- ciently when document images actually wrong index entry of subject and date, mis dence will have to proceed with caution in reside on a network host and the receiver placed memory media, members of the team this area. of a reference to the image need only using incompatible keywords, and so forth. As lawyers and others make more gen- obtain information of where the image may Good management and hard work wil con- eral use of imaging technology, simple be found, rather than an actual copy. (Mul- tinue to be necessary. economics of mass marketing will bring tiple copies of megabyte-sized image One important benefit of imaging is the down the price of the hardware and soft- documents can quickly fil up a storage better accessibility of archives. Once a docu- ware, increasing the use of imaging in system.) ment is captured as an image and placed in a commerce and law offices. With foresight, It is a convenience if other software, well-designed archive, documents are easier attorneys can integrate imaging into the such as word processors or the like, have to find and reproduce. A copy of an archive equipment of the law office without great

20 Vol. 9 No. 8 L expense and without serious interruption of resource for imaging information. It can be (201) 487-3503 the routine of law practice. Powerful com- found at http://www.aiim.org. (201) 487-0613 (fax) puters, large monitors, mass storage A series of technical guides on imaging systems, fast networks, and large-capacity subjects is avaiable at http://www.techguide. Executive Systems Design scanners and printers all are becoming com/pockimg.html 119 West Main Street available at reasonable prices, and as Developing an Imaging and Bellevile, Ilinois 62220-1560 lawyers acquire these systems for other Workfow System Specification (618) 233-7444 purposes as well as imaging, the imple- Production Imaging (618) 233-1611 (fax) mentation of imaging wil proceed easily. Work Management in a Microsoft http://www.esdi.com/FileMagic/Master. Environment htm FOR FURTHER INFORMTION Scanning in a Production Environment IBM's Personal Imaging Edition is Imaging Display Subsystems Multifunction Products (Scanner, Printer, available on the World Wide Web at COLD Fax, Printer) http://www.software.ibm.com or http:// RAID Storage Hewlett Packard www.tdf-corp.com. For a diskette version Document Imaging Glossary http://www.dmo.hp.com/peripherals/multi/ or a CD ROM which contains a tutorial Software Packages for comprehensive main.html call800-848-4TDF. The cost if $9.95. imaging solutions include Paperclip, Water- Microsoft Imaging for Windows is mark and FileMagic: Brother available on the World Wide Web Watermark Software http://www.brother.com/E-printer/ http//www.microsoft.com/windows or 15 Third Avenue pdinfo.html http//www.wang.com. For more informa- Burlington, MA 01803 tion on Imaging for Windows, review the (617) 229-2600 document "Work Management in a (617) 229-2989 (fax) Microsoft Environment" at http:// www.rheinner.com. PaperClip Imaging Software The Association for Information and One University Plaza Image Management is the leading Hackensack, New Jersey 07601

TH SALT LAK ESTATE -to PLG COUNCl / ól presents its S L E PC 9TH ANAL

WQ- FALL INSTITU co-sponsored by Uta State Bar Este Planng Section

. Featured Speaker - Stacy Ealand, Esq. . Natonally Recognized Expert - Discussing Limited Pannerships · LLC's

.L Business and Discount Valuaions I Additonal Topics: Charitable Giving · Hot Issues Practical Uses of Business Entities in Utah

Friday, October 25, 1996 Salt Lae Hilton Up to 8 Hours of CLE Credit For Registration Informtion Contat: Diane Buma.Z78-4016 or Tom Cbstensen.S31-8900

October 1996 21 -, Bar Inagurates i i i Public Service Program i

This Fall, the Bar wil produce a series of news- appear in this Bar Journal, and two messages were paper messages presenting pro bono projects and in stages of completion at the time of publication. public service performed by lawyers. Among them At the bottom of each message, readers are invited are a number of very important programs which to make their own contribution to a charitable orga- reach out to the public who are in need but unable nization. The series will run in the state's daily to afford legal services. Many lawyers currently newspapers in October and November. participate in pro bono activities, some organized The Bar's messages focus on the on-going vol- i and highly visible, and all are worthy of mention. untary efforts of Herm Olsen, who helps on the The Bar has selected eight programs in which Navajo Reservation, Leonard Burningham and his Utah attorneys participate. They present an interest- food and clothing drive, J ensie Anderson, who ing and positive narrative about contributions helps the homeless each week, Mike Martinez and lawyers make to our society, and they are indicative his assistance to migrant workers, Nelda Bishop, of the many unheralded voluntary efforts by mem- who helps provide representation for abuse cases, bers of the Bar. and Carolyn McHugh for her work in the Guardian The Bar's message in this first series focuses on ad Litem program. on-going voluntary projects. Six of the messages

A piiblii ~tl\ IC~ iiö,,¡g\' hom ihe Ul.ili Sidie ß,u A piiblii. SCI\KtI1Cs,.ige IIOIl the Lildli St,ile B,lI

I.n gua g e is only one of the barers migrant Gene rosily seems to peak around the holidays when

workers face in Uta. Getting medical care, enrollng kids in schools, and finding food and there is an overwhelming need to help people who are down and out. Fortunately, shelter is a never ending job for Centro de la Famlia. there are many charitable people and programs which help those in povert.

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One holiday drive you seldom hear about is organized by Leonard Burningham. For the last s,i Their success depends on volunteers lie Mike Marez who travels around the state, wherever migrants years, he has asked Utah lawyers for everything from clothing to baby food, from fresh frit to toothpaste - t nee help -- fars, orchards, retaurants, hotels -- fim Brigham City to Ephraim. Yon'll see him meetig with items which are desperately needed at shelters for homeless and for abused and battered people. Again this migrant workers in fields and kitchens, helping people with everything from gettg drver's licenses to health care. I year on the Friday before Chrstmas,- you'll find Leonard at the Law and Justice Center, fillng his truck with He's done it for year, without charge, beause the nee is critical, and he cares. contributions from legal secretaries, paralegals and attorneys to take to shelters.

Did you hear the one about the lawyer? Did you hear the one about the lawyer? Maybe it was about Leonard and his food and clothing drive. Maybe it was about Mie and his volunta service to migrant workers. UOlwtdBlimingli ¡ MiúMlJrfÎJn I i I It :) 011 d Iikl. In help too send ,iioli(iibutioii 10 II \OU d Iikè in hilp 100 "end.i (Oiiiiibuiion 10 Cenlin de 1.1 F,iiiilia 2()'i West 200 Souih Sdll LIlL CII, Li ih R.lJ()¡ Jcnl1c Dudh~,'s Engle Hmidi i\Iiiiili \, PO Box y)~ i\l.lgnd Uldh 8..O-i-i 22 Vol. 9 No. 8. J ..

A public Sel\ICe iiess,¡g.e ¡romie ii UI,lh Sliti B,lI A public sel\JCC messtlgc hom the LJI.i1i St,ile B,ii

H o-m less people gather every Sunday morning under the "Vcti-m of abuse were often too intimidated by their abusers to Fourth South viaduct for breakast prepared and served by Eagle Ranch volunteers. Many citizens tell the judge why they needed protection until a Davis County program was created two and come to assist in this effort which feeds five to six hundred people weekly. For the homeless, this a half years ago. But they don't stand alone any more. is probably their only hot meal of the day. It is also an opporliinity to seek free legal service.

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For two hours every week, Jensie Anderson sits at a small table providing on-the-spot legal Nelda Bishop sees to that. From her home where she tends her grandchildrn, Nelda schedules information to whomever asks. She never knows how many wil need her help, but usually up to volunteer attorneys to provide free legal rèpresentation approximately 15 abuse cases every week. twenty people are waiting to talk to her about everything from immigration to eviction issues. Jensie Although retired from the practice of law, Nelda often represents victims herself, without charge. She has been a volunteer since she graduated from law schooL. For many of the homeless, she is their credits the success of the protective order program to a cooperative effort among the Davis County only link to the justice system or to other community services. Attorney's offce, courts, law enforcment, and 35 volunteer attorneys.

Did you hear the one about the lawyer? Did you hear the one about the lawyer? Maybe it was about Nelda and her free legal service for victims of abuse. Maybe it was about Jensie and her free legal service for the homeless. JeIsieAndeTSOIJI INeldaBishop It \OLld like to help hiiild ihe D.n IS COlllll) b,itlcied \\omen s shelLel send tl Itlx-dediici,ible coiiliibiilion to the It) Oll d Iike 10 help too send" conliiblllJOn 10 Utiih I eg,11 SCI 'Ices ~')4 Wesl 400 Souih #100 Sdlt i dke Cll) LJI"ii 84102 Omis Citizen's CoahlioliAgailisi Viulcnce PO Bm; 772 K.i)s\ ille Uttlh R-im7

A public sei\ ice mess IgC hom IhL: LJwh SIdle Bm \ piihlic ,eii ice mess.i!!e flOIl ihe Ui"ii SIdie H,ii

Iso lation and poverty are a way of life for many Divo rc eiS not just between two parties of a failed marage. Navajo people who live on the expansive Reservation spread over the FoUl Comers Area. It's often about children whose rights as individuals may be trampled. To assure that children But remoteness doesn't distance them from domestic abuse, crime and predatory consumer who may have been abused, neglected or abandoned are represented in court, the Guardian practices. The single resource to solve personal legal problems on the Reservation is Diné ad Litem program was established 2 years ago. It's a program that depends on a dedicated Nalilné Béé Agah r Díít Ahí - DNA People's Legal Service. staff and the voluntar legal services of many attorneys lie Carolyn McHugh.

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DNA depends on volunteers lie Henn Olsen who drives twelve hours across Utah from Logan to Chinle - or other outlying places - to provide free legal help to Navajos. At least four times At anyone time, more than 50 children have their own lawyer, free of charge, to represent ij each year, Herm puts his knowledge of the Navajo language and the law to use on behalf of the their rights in divorce cases. The judge makes the determination of need. As you might expect, these Indians. For many people on the reservation, he is their only connection to legal justice. aren't easy cases. But many volunteer attorneys represent two or thee children on a pro bono basis in addition to their regular work load. The program also relies on non-lawyer volunteers to help. Did you hear the one about the lawyer?

Maybe it was about Herm and his free legal service for Navajo Indians. Did you hear the one about the lawyer? Maybe it was about Carolyn's advocacy in the best interest of a child. HurnO/Sf/JI ItÀrolJ'1I B. McHugh

II \Oll d Iikc III help 100 ~i:nd ti conliibulion to DNA People ~ I eg.il SCI \ ice PO Box -hR ì\li:XICdll JI,lt Ui,ih 84';1 I It \011 d Jikt 10 \oluJlc!,1 COIlICI tht St,itc\\ulc GmlHlifll ad I iteii OJlltt ~ì() Smiih "00 Ed'l ¡no() S,i11 Li).!, (11\ L l.ill :--1I(i~

October 1996 23 -- STATE BAR NEWS -- Commission activities and statistics for the past year. within the context of the circum- 14. Baldwin confirm that the Bar would be stances, does not involve dishonesty, Highlights endorsing both IHC and Blue Cross/Blue fraud, deceit, or mis-representation." Shield health insurance for Bar members. 7. The Board voted to approve Opinion No. During its regularly scheduled meeting of 15. Baldwin reported that Katherine A. Fox 96-05 which indicates that because the March 31, 1996, held in Logan, Utah, the is now on board as Associate General Utah Supreme Court's approval of the Board of Bar Commssioners received the fol- Counsel for the Utah State Bar. Utah State Bar's "interest on lawyers' lowing reports and took the actions indicated. 16. The Board voted to reappoint: Wiliam G. trust accounts" (IOLTA) program is 1. The Board voted to approve the min- Fowler, Roland R. Ursk, John A. Beck- specifically limited to the Bar's origi- utes of the April 6, 1996 meeting. stead, Martin W. Custen; and to appoint nal proposal to dedicate small-interest 2. The Board voted to nominate Charlotte Carol Clawson, Thorn R. Roberts, Erik amounts to the Utah Bar Foundation, a L. Miler as president -elect for the 1996- Stringberg and Terry L. Cathcart to the lawyer who remits to a different chari- 97 year to stand for retention election. Utah Legal Services Board. table institution would violate Rule 3. Dennis Haslam announced that the 17. Chief Disciplinary Counsel Steve 1.15 of the Utah Rules of Professional Supreme Court had reappointed Ray O. Cochell reviewed a statistical report Conduct unless the Court specifically Westergard to another thee year term on showing dispositions of cases from Jan- authorizes another recipient. the Bar Commssion as a public member. uary through April, 1996. 8. The Board voted to approve Opinion No. 4. The Board voted not to co-sponsor a l8. Budget & Finance Committee Chair Ray 96-06. No. 96-06 addresses the ethical commercial book endeavor. Westergard reviewed the April financial obligations if an attorney undertakes 5. Jim Jenkins reported on the Jury reports and answered questions. representation of a client when the Reform Conference. 19. The Board voted to make the 1997 pro- attorney is not able to communicate 6. Haslam reported on the recent meeting posed budget available for review and directly with the client in an language held with Coregis Risk Manager, Scott comment by Bar members. clearly understood by the at client. The Wiliams, Don Rooney, Randon Wilson, 20. Bea Peck reported that the Women opinion states that "an attorney need not Steve Kaufman and John Baldwin. Lawyers of Utah are putting together a have any personal knowledge of lan- 7. Haslam reported that at the last Execu- proposal for voluntar pro bono reporting guage skils relating to the language tive Committee meeting Din Whitney and will direct service through the Young ability of the client," but it is necessary, presented a proposal to run the Utah Lawyers in a project this coming year. however, for an attorney to be able to Dispute Resolution program. The communicate adequately with the client. Board voted to invite Din Whitney to During its Annual Meeting on July 3, 1996, The opinion also notes that language make a presentation to the full Bar held in Sun Valley, Idaho, the Board of Bar impediments need to be considered Commission on how he intends to run Commissioners received the following and the method of communicating wil the UDR program. reports and took the actions indicated. depend upon each situation. 8. Steve Morrissett of the Attorney Gen- 1. The Board voted to endorse the concept 9. The Board voted to give permission to erals Offce appeared to comment on of jury reform and to support the creation Gary Sackett to add the Bar's opinions Ethics Advisory Opinion No. 95-05 and of a task force to study and make recom- to the Westlaw database. Rule 4.2 as it relates to the AG's Offce. mendations to the Utah Supreme Court. 10. The Board approved all applicants to 9. The Board voted that proposed ethics 2. Budget & Finance Committee Chair take the July 1996 exam including advisory opinions come to the Com- Ray Westergard reviewed the June those who are waiting to pass Charac- mission for formal adoption after the financial reports. ter & Fitness. publication comment period. 3. The Board voted to fund the Utah Dis- 11. The Board approved t~e payout of 10. The Board voted to accept the recom- pute Resolution program in the 1996-97 $5,598 on a Client Security matter. mendations of the Awards Committee budget for $20,000 upon their meeting 12. Chief Disciplinary Counsel Steve for the 1996 award recipients. certain specific conditions. Cochell reported that the caseload in 11. Baldwin reported that letters have 4. The Board voted to adopt the entire the Office of Attorney Discipline been mailed to legal assistants inviting 1996-97 budget as presented. remains constant at 60-70 new cases a them to join the Legal Assistants Affl- 5. Debra Moore reviewed the Equal month with about 40 dismissed. iate Division of the Utah State Bar. Administration of Justice committee's 13 Dennis Haslam reported that Charlotte 12. Baldwin reported that the petition to preliminary report. Miler has been retained as president- allow inactive attorneys provide pro 6. The Board voted to approve Ethics elect following the recent retention bono legal services has been fied with Advisory Opinion No. 96-04 which election. the Supreme Court. indicates that "recording conversations 14. Haslam welcomed Third Division 13 Baldwin reported that a letter was sent to which an attorney is a party without Commissioner Scott Daniels to the to the Trustees of the Law & Justice prior disclosure to the other parties is Bar Commission. Center Board reported on Center not unethical when the act, considered 15. The Board voted to approve the

24 Vol. 9 NO.8 = appointment of the following repre- How do Utah attorneys save time, save sentatives as ex offcio members of the QUESTION: Bar Commission of the 1996-97 year: money and stay current with the latest The ABA Delegate, the State Bar Del- case law? egate to the ABA, the Dean of the ANSWER: They read Stare Decisis. University of Utah College of Law, the Dean of the J. Reuben Clark Law School at BYU, the president of the For a FREE one month subscription, Young Lawyers Division, the Minority call toll free 888-484-9741. Bar Association representative, the Women Lawyers of Utah representative, the Judicial Council Liaison, and the Legal Assistants Division representative. ADMONITION 16. The Board appointed Jim Jenkins as On August 5, 1996, an attorney was the new Judicial Council Liaison. ADMONITION Admonished for violating Rule 1.3, Dili- 17. The Board voted to expand the Execu- On July 17, 1996, the Chair of the gence; Rule l.4(a), Communication; and tive Committee to its maximum of five Ethics and Discipline Committee issued an Rule l.4(b), Communication of the Rules members, which wil include President Admonition to an attorney upon the recom- of Professional Conduct of the Utah State Steven M. Kaufman, President-Elect mendation of a Screening Panel for violating Bar. The attorney was consulted on a med- Charlotte L. Miller, and Commission- Rule 1.3, Diligence; Rule 1.4(a), Communi- ical malpractice matter, and the client was ers, Charles R. Brown, James' C. cation; Rule 8.l(b), Bar Disciplinary under the impression that the attorney and Jenkins, and David O. Nuffer. Matters; and Rule 8.4(c) and (d), Miscon- the attorney's firm would represent her in A full text of the minutes of these and duct of the Rules of Professional Conduct. the matter. The attorney failed to timely other meetings of the Bar Commission is The Panel found the attorney was retained notify the client that the attorney had deter- available for inspection at the offce of the on or about March 1, 1993, to represent a mined there was no merit to the case and Executive Director. client in a divorce and was paid a fee of the matter would not be pursued by the $250.00. Subsequently, the attorney failed to attorney. The attorney failed to notify the provide any meaningful legal services. Addi- client that the attorney and the attorney's MISSING tionally, the attorney failed to respond to firm would not take her case and act on her The CLE Department is missing sev- requests from the Bar for information behalf until more than one year had eral tapes from our video collection. regarding the complaint filed by the client. elapsed and the statute of limitations Please check the dark corners of your applicable to the matter apparently had offces and homes for these video num- ADMONITION run out. bers. Should you find them, please bring On July 22, 1996, the Chair of the Ethics them in or mail them to Utah State and Discipline Committee issued an REINSTATEMENT TO Bar, Attn: Holly Hinckley, 645 South Admonition to an attorney upon the recom- FULL ACTIVE STATUS 200 East, SLC, UT 84111. We wil mendation of a Screening Panel for violating On August 23, 1996 the Hon. David L. welcome these long lost videos back Rule 1.2(d), Scope of Representation; Rule Mower, Sixth District Court Judge, entered into our collection, where all may bene- 1.14( a) (l), Declining or Terminating Repre- an order reinstating D. Michael Jorgensen fit from them! Questions? Call Holly sentation; Rule 4.4, Respect for Rights of ("Jorgensen") to full active status without Hinckley at 531-9095. Thank you for Third Persons; and Rule 8.4(c), Misconduct restriction as to type or manner of practice, your help! of the Rules of Professional Conduct. The retroactive to October l, 1995. attorney was retained in 1991 to represent Jorgensen had been placed on suspension 4 l67 269 339 clients in the distribution and transfer of from the private practice of law effective 35 l70 277 34l assets from the estate of a deceased person. April 1, 1995, pursuant to a March 28, 38 180 282 345 In April, 1991, the Court issued a Restrain- 1995 Court Order for violations of Rule 40 183 288 355 ing Order directing the parties not to dispose 8.1 of the Rules of Professional Conduct. 53 184 291 363 of any co-owned assets pending the outcome Respondent remains on stayed suspension 64 193 294 366 of the litigation. The attorney was to and probation until April l, 1997. 74 195 295 38l promptly draft the Order and submit it for 78 196 297 40l the Court's signature, but did not do so. 89 227 299 402 Consequently, the client was forced to draft 90 232 312 405 and submit the Order. Subsequently, the 122 249 313 415 attorney violated the Court's order by advis- 137 250 315 456 ing clients to alter the ownership of a piece 145 251 32l 458 of property included in the Restraining 150 255 328 466 Order. 159 268 329 469

October 1996 25 Trial Academy 1996 Continues: Utah State Bar Session v: Set for October 24th Ethics Advisory "Exhibits in Trial" Opinion Committee

Part V of the Litigation Section's Trial . Use of overheads, blowups, and com- Opinion No. 96-07 Academy 1996 wil be held on Thursday, puter-generated displays (Approved August 30, 1996) October 24th at 6:00 p.m. in the courtroom . Demonstrative evidence as exhibits of United States District Judge Dee V. Ben- . Effective use of exhibits in argument Issue: What are the ethical implications son. It is not necessary for the registrant to . Pretrial stipulations on exhibits of federal funding reductions and practice have attended any of the preceding ses- As with all sessions of the Trial Acad- restrctions to Utah Legal Services lawyers? sions in order to benefit from the program. emy, the program is designed to acquaint the Opinion: A Utah Legal Services lawyer The faculty for Part iV consisted of new practitioner with the basic skils of the must give all clients adequate notice of leg- Judge Dee Benson, Judge Pat Brian, Gor- trial lawyer and provide insight into the islative changes and the effect they will don Roberts (Parsons, Behle & Latimer), peculiarities of our local practice. have on a client's representation. Funding David Jordan (Stoel, Rives), David K. The cost is $20 per session for Litigation reductions and practice restrictions may Watkiss (Watkiss, Dunning & Watkiss), Section members and $30 for non-members. necessitate withdrawal from pending mat- Ellen Maycock (Kruse, Landa & May- (Section membership is $35 a year and ters and intake restrictions on new matters. cock), Dick Burbidge (Burbidge & includes many other benefits and discounts.) The attorney must make reasonable efforts Mitchell), and Tom Karenberg (Anderson Students wil receive two hours of CLE to arrange for substitution of lawyers to & Karrenberg). credit and the program is approved for new- handle pending matters, such as referring For Part V, the faculty wil demonstrate lawyer mandatory CLE credit. them to the Utah State Bar's statewide pro and lecture upon the art and the law of Enrollment is limited. Interested lawyers bono coordinator. using exhibits in trial. Among the topics to may register by callng Monica J ergensen at be covered are: the Utah State Bar at 531-9077. Questions . Marking and premarking exhibits on the seminar should be addressed to Fran- Rex E. Lee . Foundations for exhibits cis Carney at 532-7300. . Federal and state rules governng exhbits American Inn of Court The Rex E. Lee American Inn of Court Ethics Opinions Available has been established. This Inn, as with all others, is chartered by the American Inns The Ethics Advisory Opinion Committee of the Utah State Bar has compiled a com- of Court which were originally founded in pendium of Utah ethics opinions that are now available to members of the Bar for the cost 1980 by the United States Supreme Court of $5.00. Forty six opinions were approved by the Board of Bar Commissioners between Chief Justice, Warren E. Burger. The Inns January 1, 1988 and August 30,1996. For an additional $2.00 ($7.00 total) members wil be are dedicated to improving ethics, civility placed on a subscription list to receive new opinions as they become available durng 1996. and professionalism within the legal pro- fession. They help lawyers sharpen their ETHICS OPINIONS ORDER FORM ethical awareness and improve their skills by enabling them to learn, side-by-side, Quantity Amount Remitted with experienced judges and attorneys. Utah State Bar The new Inn was named afer Rex E. Lee, Ethics Opinions the former U.S. Solicitor General, President of Brigham Young University and Dean of ($5.00 each set) the 1. Reuben Clark Law SchooL. Founding Ethics Opinions/ officers elected to serve the new lim are: Subscription list Honorable Michael D. Lyon, District Court Judge, President; Honorable Glen A. Daw- ($7.00) son, Counselor; Attorney Scott Marriott Please make all checks payable to the Utah State Bar Hadley of the law firm Van Cott, Bagley, Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman Cornwall & McCarthy, Secretary/Trea- 645 South 200 East #310, Salt Lake City, Utah 84111. surer. In addition, the Honorable Ben H. Hadfield, District Court Judge, was elected Name to chair the Membership Committee and Address Attorney Michael T. Roberts, also with the law firm of Van Cott, Bagley, Cornwall & City State Zip McCarthy, was elected to Chair the Pro- Please allow 2-3 weeks for delivery. grammng Committee.

r 26 Vol. 9 No. 8 ¡ New Pro Bono Ethics Advisory Opinion Committee Bar Status Seeks to Fill Two Positions

The Bar is proud to announce a new The Utah State Bar is currently accepting . Basic information, such as years and program designed to utilize the skills and applications to fill two recent vacant vacan- location of practice, type of practice (large talents of inactive practitioners in service cies on the 14-member Ethics Advisory firm, solo, corporate, government, etc.), for our communities. The Bar now has a Opinion Commttee of the Utah State Bar. and substantive areas of practice. new status whereby inactive practitioners Lawyers who have an interest in the Bar's . A brief description of your interest in can provide pro bono services through cer- ongoing efforts to resolve ethical issues are the Committee, including relevant experi- tified legal service type agencies. encouraged to apply. ence and commitment to contribute to In the past, the expense of paying active The charge of the Committee is to pre- well-written, well-researched opinions. Bar dues was prohibitive for inactive attor- pare formal written opinions concerning the Appointments wil be made to maintain neys who wished to perform pro bono ethical aspects of anticipated professional or a Committee that: work. Now you can pay inactive fees and personal conduct and to forward these opin- · Is dedicated to caring out its responsibil- stil be able to contribute your legal skills. ions to the Board of Bar Commissioners for ities to consider ethical questions and issue It is a simple process to be approved to its approval. timely, well-reasoned, articulate opinions. participate. An interested attorney merely Because the written opinions of the Com- · Incorporates the diverse views and back- contacts a certified agency or may contact mittee have major and enduring significance grounds of members of the practicing bar. the Bar to proceed. to the Bar and the general public, the Board If you would like to contribute to this One big advantage to participating solicits the participation of lawyers who can important function of the Bar, please submit through certified agencies is that these make a significant commitment to the goals an application indicating your interest to: agencies provide malpractice coverage for ofthe Commttee and the Bar. Ethics Advisory Opinion Commttee their pro bono attorneys. This adds a level If you are interested in serving on the Ethics Gary G. Sackett, Chair of protection for the pro bono volunteers. Advisory Opinion Commttee, please submit 180 East First South Street Many agencies are in the process of cer- an application with the following informa- P.O. Box 45433 tifying and we hope to have more apply. If tion, either in resume or narative form: Salt Lake City, Utah 84145 you are an inactive practitioner interested in participating, please contact your favorite agency, or contact Toby Brown at the Bar offces, 297-7027. Do THE PUBLIC GOOD!

I would like to thank all the members of the Bar Examiners Committee, Bar Examiners Review Committee and Character and Fitness Committee for a successful July Bar Examination that was given July 30th and 31st. Your vol- untar time for the bar examination was for the 1997 Utah State Bar very much appreciated. Annual Meeting! Thank you again, July 2 - July 5, 1997 Sun Valley, Idaho Darla C. Murphy, Admissions Administrator ~ hope to see you next summer!

October 1996 27 Lawyer Legislators and Legislative Candidates

"An opportunity to sion. Nearly all mention make a difference," the extraordinary time "provide greater politi- commitment required and cal balance in the the consequent time away legislature," "interest in from family as deterrents to advocating positions running. "I don't like and arguing the issues Daddy doing this new job. . in a forum where it . I don't see him," was would have meaning," heard by one lawyer-legis- "desire to be involved lator shortly after at the policy level of beginning his first term in

law-making," and "felt office. I i' it was my time" are In spite of these obvi- 1 some of the reasons ous and not insignificant i given by lawyer-candi- drawbacks, most lawyer-

dates for the legislature legislators find great David L. Gladwell Lyle W Hilyard for initially deciding to satisfaction in serving in House District 7 Senate District 25 run for elective office. the legislature and are resourceful in finding ways to accommo- With such seemingly salutary and appealing reasons, why is it date the demands of their full-time jobs. "Legislator by day, that more lawyers do not run for legislative lawyer by night" characterizes how at least elective office in Utah? In the current Utah one lawyer-legislator balances the two jobs. Senate, four of the twenty-nine senators are Employers and partners are generally sup-

lawyers, one of whom is running for reelec- portive as are the courts in scheduling trial I tion this year and another of whom is retiring dates for lawyer-legislators involved in litiga- ii when his term expires this year (the terms of tion, so that the legislative sessions may be the other two lawyer-senators expire in sub- attended. One lawyer-legislator indicated that sequent years). The incumbent running for the courts in his district wil attempt to reelection is unopposed and so the number of schedule trials in which he is involved either senators in the next legislature wil only be before or after a legislative session. reduced to three. In the House of Representa- Of course, lawyers are peculiarly tives, only three of seventy-five are lawyers. equipped to serve in legislatures, given their One of these three is retiring at the end of the academic background in studying the law year, another was defeated in the primary and how it is made, and their practical expe- election, and the remaining one is running for rience in interpreting and applying the law. reelection. In addition, seven other lawyers Lawyer-legislators oftentimes are sought out are in the run-off for House seats and so, dis- Jean Welch Hil by other legislators for their views on pend- counting unusual circumstances in these House District 20 ing legislation, the validity of such districts, there may be legislation, and what better than even odds the "repercussions" that the number of wil be if a bil is lawyer-representatives passed. Lawyers at will increase in the next least have a rudimen- legislature. tary understanding of Are lawyer-legis- the legislative process lators becoming an and so can "hit the II "endangered species," as ground running" when one lawyer-candidate they start their service. suggested, and if so Lawyers also "under- why? Some mention the stand the importance of financial sacrifice which the specific wording of must be made since time each proposed statute away from the practice and constitutional of law or other full-time change" and can bring Ralph Becker job is inevitable when their experience to bear Patrice Arent House District 24 the legislature is in ses- in making sure the cor- House District 41

28 Vol. 9 NO.8 .I I

rect language is adopted. Some of the worst aspects of running for and serving in the legislature, according to the lawyers interviewed, were "the inability to make everyone happy," "cynicism of the press," and, as might be expected, "fund raising." These negative aspects appear to be far outweighed by the positive aspects such as "feeling you can make a difference," "the positive attitude and encouragement received from supporters," "meeting the people and hearing their concerns," "working with other elected and appointed officials," "going door-to-door," and "having a feeling of accomplishment when putting experience to work." It is obvious that most if not all of the lawyer- legislators interviewed were halcyon if not ebullient Greg J. Curtis John E. Swallow about serving, but for many lawyers it is simply not House District 51 House District 49 possible to run for office or give the time necessary. For those, one legislator urged, "if you don't run for office, know your state representative and senator by their first name."

Ruth Wagner John L. Valentine House District 53 House District 58

Notice of Intent to Job Announcement Dispose of Exhibits Legal Counsel, Public Service Commission Notice is hereby given that The Utah Public Service Commission is Doctorate plus two years of full-time paid the Eighth District Court, seeking qualified candidates for the position professional employment and must either of Commission Legal CounseL. This position be or become an active Utah State Bar Uintah County, State of Utah, is located in Salt Lake City, Utah, and has a member. An applicant must be able to will dispose of all exhibits salary range of $46,375 - $69,634, depend- communicate effectively orally and in received in cases concluded ing on experience. writing. As a senior position at the Com- prior to January 1, 1987, pur- Legal Counsel reports to the Chairman of mission, the successful applicant must be the Public Service Commission. Primary capable of independent legal analysis. suant to code of Judicial responsibilities include advising the Com- To obtain an application, please contact Administration Rule 4-206, mission on all legal matters, drafting orders Julie Orchard, Commssion Secretaiy, by mail 30 days from the date of this that convey decisions of the Commission, at Utah Public Service Commission, Heber writing legal briefs, defending Commission M. Wells Building, l60 East 300 South, 4th notice. Interested persons orders before the Utah Supreme Court, and Floor, Salt Lake City, Utah 84111, or by have thirty days to withdraw conducting legal research. The Legal Coun- phone at (80l) 530-6716. A writing sample their exhibits or file a written sel is also responsible for mediating, and will be required with the application. objection with the court. arbitrating on behalf of the Commission. Applications will be accepted until To qualify, an applicant must have a Juris October 20, 1996 or until the position is filled.

October 1996 29 Congratulations!

James B. Lee Paul T. Moxley The Utah State Bar congratulates James B. Lee as the newly elected Utah Representative to the ABA House of Delegates i and i

Paul T. Moxley, who was appointed as the Bar's Delegate to the ABA II! and also selected by the National Conference of Bar Presidents to its Executive Committee ii

MEMBERSHIP CORNER CHANGE OF ADDRESS FORM Please change my name, address, and/or telephone and fax number on the membership records:

Name (please print) 1.:11 II ii Firm I d

I

Address i

City/State/Zip II II II Fax ii Phone i

All changes of address must be made in writing and NAME changes must be verified by a legal document. Please I return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 841 i i -3834; Attention: Arnold Birrell. i I i i Vol. 9 No.8. 30 II I .I Attorneys Needed to Assist the Elderly NOTICE OF Needs of the Elderly Committee PETITION FOR Senior Center Legal Clinics REINSTATEMENT Attorneys are needed to contribute two sion and anxiety over problems which an hours during the next 12 months to assist attorney could quickly address by simply Harold R. Stephens has filed a Peti- elderly persons in a legal clinic setting. The directing the elderly person to the proper tion for Reinstatement to Practice Law clinics provide elderly persons with the governmental agency or pro bono/low cost with the Third Judicial District Court, opportunity to ask questions about their provider of legal services. Attorneys partici- Civil No. 960004883. Mr. Stephens was legal and quasi-legal problems in the famil- pating in the clinics are able to provide sub- suspended from the practice of law on iar and easily accessible surroundings of a stantial comfort to the elderly, with only a November 2, 1992 for violating Rules Senior Center. Attorneys direct the person two hour time commitment. i A(a) (Communication), former Rule to appropriate legal or other services. The Committee has conducted a number 1.l3(b) (Safekeeping Property), and The Needs of the Elderly Committee of these legal clinics during the last several 8.l(b) (Failing to Respond to Discipli- supports the participating attorneys, by months. Through these clinics, the nary Authority), of the Rules of among other things, providing information Committee has obtained the experience to Professional Conduct in one matter; on the various legal and other services support participating attorneys in helping the Rules 1. (Diligence), 1.4(b) (Commu- available to the elderly. Since the attorney elderly. Attorneys participating in these clin- nication) and 8.1 (b) (Failing to Respond serves primarily a referral function, the ics have not needed specialized knowledge in to Disciplinary Authority) of the Rules attorney need not have a background in elder law to provide real assistance. of Professional Conduct in a second elder law. Participating attorneys are not To make these clinics a permanent service matter; and 1. i (Competence), 1.4(a) expected to provide continuing legal repre- of the Bar, participation from individual Bar Communication) and 3A(d) (Fairness sentation to the elderly persons with whom members is essentiaL. Any attorneys interest- to Opposing Party and Counsel) in a they meet and are being asked to provide only ed in participating in this rewarding, yet truly third matter. two hours of time during the next i 2 months. worthwhile, program are encouraged to con- In accordance with Rule 25 of the The Needs of the Elderly committee tact: John J. Borsos or Camille Elkington, Rules of Lawyer Discipline and Disabil- instituted the Senior Center Legal Clinics 370 East South Temple, Suite 500, Salt Lake ity, individuals desiring to support or program to address the elderly's acute need City, Utah 84111, (80l) 533-8883; or Joseph oppose this Petition may do so within for attorney help in locating available T. Dunbeck, Jr., Parsons, Davies, Kinghorn thirty (30) days of the date of the publi- resources for resolving their legal or quasi- & Peters, 3 i 0 South Main Street, Suite i 100, cation of this edition of the Utah Bar legal problems. Without this assistance, the Salt Lake City, Utah 841Ol, (801) 363-4300. Journal by filing a Notice of Support or elderly often unnecessarily endure confu- Opposition with the Third District Court. It is also requested that a copy of such support or opposition be sent to Carol A. Stewart, Deputy Chief Disci- Utah State ~\o(' plinary Counsel, Office of Attorney '3 Advertising òvG Discipline, 645 South 200 East, Salt Bar 've~'3\~ Committee Lake City, Utah 84111. .('9 .('v\ Seeks Members e,o(''1\ The Advertising Com- Native American Law II u=RU mittee of the Utah State Committee to Hold 1996 Co-Sponsored Bar is seeking new Organizational Meeting Education Seminar members to serve on this committee. Inter- The Native American Law Committee ested Bar Member of the Utah State Bar's Energy, Natural Resources and Environmental Law Section Friday, November 8, 1996 should send a letter of 8:00 a.m. - 4:30 p.m. is holding an organizational meeting to interest to: Maud C. plan the committee's activities for the Thurman, (g Utah State 1996/l997 year. The meeting will be at Utah Law & Justice Center Bar, 645 South 200 l2:00 noon on October 16, 1996 at the Legal Center for People with Disabilities, 645 South 200 East East, Salt Lake City, Salt Lake City, Utah 455 East 400 South Suite 410. All mem- Utah 84111-3834. No bers of the Bar and the public are invited phone calls please. and encouraged to attend. Want more info? CLE CREDITS AVAILABLE Call Linda Priebe at 363-1347.

October /996 31 First Annual Pro Bono Recognition Dinner The first annual Pro Bono recognition ject to help indigent debtors in bankruptcy Elmer for her work with the Utah County dinner was held on September 10, i 996. The proceedings. She currently chairs a Bank- Tuesday Night Bar. Ms. Elmer served as dinner was jointly sponsored by the Utah ruptcy Section Committee which is the coordinator for the program for the Supreme Court, The Utah Court of Appeals developing joint project with Consumer first two years of operation and continues and The Utah State Bar to provide recog- Credit Counseling, The United States Bank- to be active in management of the program. nition to the hundreds of Utah Lawyers ruptcy Court and Utah Legal Services to The key note speech was presented by who have contributed services to the many provide a video clinic to assist pro se bank- President james E. Faust, Church of Jesus pro bono projects throughout the state. ruptcy litigants. She has served as the Pro Christ of Latter Day Saints. President Faust Steve Kaufman, President of the Utah Bono Coordinator for the offce of LeBouf, noted that our community has the benefit State Bar presented the Pro Bono Lawyer Lamb, Green & MacRae in addition to serv- of an honest judiciary, but without access of the Year Award to Peggy Hunt in recog- ing as a member of the Pro Bono Committee to the courts, justice is not available to all nition of her pro bono service both as a of the Women Lawyers of Utah and the Pro citizens. He encouraged lawyers to volunteer advocate for various programs as Bono Committee of the Litigation Section of improve the public image of the profession well as her efforts to create new services the ABA. In accepting the award Ms. Hunt by "doing their job and making the prac- and programs. Ms. Hunt helped establish said that pro bono service was "the heart of tice of law more of a profession than a the Domestic Violence Clinic in the Third the profession and more critically needed business." Further, public access to the District Court and regularly serves as a now than ever before." courts is a long standing tradition and the client advocate in that program. In the area Keith A. Kelly, on behalf of the Delivery "curse of bilable hours is the main threat of Bankruptcy she was instrumental in the of Legal Services Committee presented the to access to justice." development of the in forma pauperis Pro- Legal Assistant Pro Bono Award to Robyn

Governor's Office of Hispanic Affairs Honors the Utah State Bar and Volunteer Attorneys By Lorena P. Rifo, J.D.

At a special luncheon, September 6, gram. Now, Latino and Other special guests 1996, the Governor's Office of Hispanic Anglo attorneys meet on included Anacelia Affairs honored the Utah State Bar and the fourth Tuesday of Perez de Mayer, Consul eight volunteer attorneys for the legal each month to assist of Mexico; Elizabeth expertise and commitment to the Spanish- Spanish-speaking Utahns Paz, Consul of speaking Tuesday Night who are in the process of Guatemala; Lorena bar Program. State Bar learning English and Riffo, Director, Gover- president, Steve Kauf- understanding the legal nor's Office of

man, received the system. Hispanic Affairs; II award on behalf of the David Doty During Annalie Harris and il Utah State Bar, and the luncheon, the attorneys Aimee Martinez, Project Coordinators, volunteer attorneys expressed their support Governor's Offce of Hispanic Affairs. included Alan Barber, of the program and All attorneys who Charlie Freedman, shared personal stories are fluent in the Span- Alan Barber David Doty, John Diaz, about their learning ish language are invited Marti Jones, Peter Corroon, and Randy Birch. Spanish. Alan Barber to participate in this Since partnering said, "I know what it's program. The Utah with the Utah State Bar like to reside in a country State Bar and Gover- on and one-half years and not speak the lan- nor's Office of Hispanic il ago, 100 Hispanic citi- John Diaz Affairs look forward to zens have received guage; however, I still a continuation of this legal information and found kind people who highly-successful part- Randy Birch referral - all in Spanish were wiling to help me." nership in serving those who greatly - which represents 32 Barber wants to repay benefit from the Spanish-speaking Tuesday hours of work on a pro this kindness by helping Night Bar Program. bono basis. Prior to this new immigrants with partnership, the Spanish-speaking mem- their legal problems and bers of the community where not able to comprehension of the participate in the Tuesday Night Bar Pro- Marti Jones system. I

i 32 Vol. 9 NO.8. .I Young Attorney Profile: Valerie Longmire

By Erik A. Christiansen

where her parents eventually wound up living tors. When asked what she enjoyed about If thereto describe is one Valerie word that Longmire, could beit isused the for thirteen years. Ms. Longmire describes the bankruptcy practice at Milbank, Ms. word "adaptable". Ms. Longmire, a 1991 Saudi Arabia as an extremely geologically Longmire said she enjoyed the opportunity graduate of New York University Law diverse country with deserts, green moun- to work on unique legal issues and to help School and an associate at Ray, Quinney & tains and national parks. She also found the to create new law. "Bankruptcy law," she Nebeker, was born in Paris, France, and traditional Islamic culture fascinating, paricu- explained, "involves developing legal raised in Germany, France and Layton, Utah. larly since Islamic women were not permitted issue~ and interpretation of a code that is Along the way, Ms. Longmire also has lived out in many of the public places that she was constantly being changed, so as a result we in Chicago, Manhattan, Los Angeles and permitted to visit. "You really stand out and were able to do a lot of creative thinking for a brief period of time, in Saudi Arabia. people remark on your presence because about issues and push the envelope on the Fluent in French, Valerie considers Paris you're female," she said. Ms. Longmire also interpretation of the Bankruptcy Code." to be her home town, having lived there for found Saudi Arabia "incredibly safe". The While she enjoyed the intellectual chal- much of the first fifteen years of her life, as government, she explained, vigorously lenge of the fast-paced Wall Street practice, well as during her senior year at the Uni- enforces Islamic law, including by announc- after three years, Valerie eventually versity of Chicago, which she spent in ing executions nightly on the news. decided she wanted to have time in her life Paris doing research. Following her graduation from the Uni- for other things. As she explained, "big While growing up in France, Ms. Long- versity of Chicago, Valerie attended law firms are a good training ground, but they mire attended mostly English-speaking school at New York University School of Law are also a very high stress environment and military schools, while her father was in the and lived in "the Vilage". While she loved I think you sacrifice a great deal by work- Ai Force, and learned French in some French NYU, she found life in New York stressfuL. ing there." Ms. Longmire also decided that schools she attended, as well as from her "You always had to fight for everything," she wanted to diversify her practice, and mother, who is French. Although her family she said. Exploring alternatives, Valerie expand her skils as a lawyer. while she was growing up lived in France and spent her first summer at Sidley & Austin in After considerig and rejecting other types Ramstein, Germany, her parents now main- Los Angeles and then her second summer at of firms in Los Angeles, Valerie decided tain a residence in Layton, Utah, where Milbank, Tweed, Hadley & McCloy in New that she wanted a different environment. Valerie eventually wound up attending and York City. Having worked on both coasts, "I've always loved the West," she said. "I love graduating from Layton High School in 1982. Valerie eventually decided to begin her legal the outdoors, backpacking, hiking, and in After graduation, Ms. Longmire attended career in Milbank's Los Angeles office. particular, horseback riding." Attracted by the University of Chicago, where she As a young lawyer in Los Angeles, Ms. the lifestyle in Utah and the "general atti- majored in International Relations and Public Longmire practiced bankruptcy law, where tude of the people," Ms. Longmire joined Policy. During college, Valerie spent one she spent most of her time doing Chapter II Ray, Quinney & Nebeker in January 1995. summer with her parents in Saudi Arabia, work for a variety of banks and other credi- Since moving to Salt Lake City, Ms.

October 1996 33 Longmire has found that she has more time United States client that has to contend with continued from pg 17 to devote to her individual pursuits, includ- a bankruptcy filed in Canada, or you have a technicians, dealing with legal abstracts, ing to riding Dressage. Dressage, as Valerie client with a security interest in a ship sitting and do not become involved in the lives of explained, is a form of English riding that in Hong Kong when the debtor declares our clients. This is unfortunately true even focuses on specialized and technical maneu- bankptcy?" As the U.S. economy becomes of many "transactional lawyers," whose vers as opposed to jumping over fied objects increasingly international, she explained, these practice involves more counseling and less such as fences. "Dressage requires a great sorts of issues wil arse with greater frequency. litigation. Many transactional lawyers deal of communication between the horse When asked what the differences are become experts at certain specific types of and the rider, and requires the horse to obey between practice in Utah and in Los Ange- transactions, and do not have the opportu- very subtle commands," she said. While les, Valerie said that a key difference is that nity to advise their clients in the broader, Ms. Longmire now only rides for pleasure, in Utah you are permitted "to step up to the preventive law sense. By focusing only on she said that someday she would like to plate as a young lawyer and take on more specific transactions, we may miss many own her own horse and perhaps even com- responsibility." She also said that although opportunities to provide valuable legal pete in the sport. For now, however, she is the dollar amounts involved may be smaller counseling to our clients. Thus, even having too much fun doing other things to in Utah, the quality of work is no different in among many non-litigators, the concepts of devote all of her time to Dressage. Utah than it is in Los Angeles. "I think the preventive law need re-emphasis. When asked what kind of practice she practice is just as rigorous," she said. In general, the legal profession honors would like to develop in Salt Lake, Ms. Finally, asked to explain how living all cleverness more than caring. However, pri- Longmire explained that she likes doing over the world has affected her, Valerie said vate practice does not have to be that way. creditor work, and wants to develop a practice that she's "learned to adapt to a lot of differ- Abraham Lincoln said that "As a peacemaker, representing small business and individuals ent situations, to different people, different the lawyer has a superior opportunity of in Chapter 13 and Chapter 11 matters. "I environments, very quickly. I enjoy doing being a good man." Being a peacemaker is find Chapter 13 and Chapter 11 matters that. I like trying new things, new places, to an image quite removed from the mercenar, interesting and challenging," she said. see whether or not I can fit in. For me that hired-gun image that often characterizes Ms. Longmire also would like to be has been the greatest benefit of my intern a- our profession. However, by implementing involved in international bankrptcy work, tional experiences." the concepts of preventive law into our which she characterizes as an evolving legal education and into our practice we area. "What if, she explains, "you have a can at least aim toward that ideaL.

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34 Vol. 9 No. 8 THE UTAH STATE BAR HAS DESIGNATED

Continental Insurance Agency

AS THE ApPOINTED ADMINISTRATOR FOR THE BAR-ENDORSED

COREGIS PROFESSIONAL LIABILITY INSURANCE PROGRAM FOR LAWYERS ~

Providing the members of the Utah State Bar with Excellent Service and Quality Coverage at a Competitive Price Report of the Circuit Court

By Judge John Backland

JUDGE JOHN BACKLUND was appointed each case, notwithstanding a heavy caseload. As ChairBoard, of I therespectfully Circuit submit Court this to the Fourth Circuit Court on July 1, 1983, Moreover, circuit judges comply with manda- Report to the readers of the Utah Bar Jour- by Governor Scott M. Matheson. He serves tory education requirements and contribute naL. With the passage of S.B. 165, the Millard, Juab, Utah and Wasatch Counties. countless hours of service on bar and judi- Circuit Court merged into the District He was a partner in the law firm of YOUNG, cial committees and task forces designed to Court on July 1, 1996, bringing to a close BACKLUND, HARRIS & CARTER prior to improve the administration of justice, in his appointment to the bench. He is currently almost nineteen years of dedicated service addition to filling positions on the Judicial serving as Chair of the Board of Circuit Judges. to the citizens of Utah by Circuit Judges Council and the Circuit Court Board. and court staff. The Circuit Court Act of Many important changes in law, proce- 1977 was enacted to ". . . create a jurisdiction over all misdemeanors and infrac- dure, court rules and court administration statewide court of record of limited juris- tions with adult defendants. Circuit judges resulted from the input of our circuit judges diction to provide full-time professional conduct bail hearings and first appearances and staff. The use of technology and access judicial service to every county in the state on felonies and preliminary hearings. Civil to information by the Bar and the public . . ." (U.C.A. 78-4-2). Sitting judges of the jurisdiction of the court extends to all mat- has been enhanced, in large measure, due city courts became judges of the newly cre- ters where the sum claimed is less than to the efforts of involved judges. The circuit ated circuit court system. Additional judges $20,000, subject to the exclusions set forth court has worked effectively with the Bar were added to the court through the in Section 78-4-7, U.C.A. The court also in a joint effort to educate the public about appointment process. Currently, eighteen handles most traffic cases involving juve- the Law and its procedures, including motivated women and men serve the public niles. The district court will continue to hear youth courts, mock trials, the D.A.R.E. pro- as circuit judges. I pay tribute to each of most of these cases, except for city misde- gram, Law Day events and other activities. my sixty-four colleagues who have sat on the meanor cases and small claims matters filed The judges and staff pledge continued circuit bench during the past nineteen years. in a justice court established in a city that excellence in serving the Bar and public as The jurisdiction of the court h";s been was previously a circuit court site. part of the consolidated district court. modified by legislative amendment over the The circuit court system has provided the Cases, large and small, wil stil receive the years. Circuit courts conduct de novo criminal public with a group of law-trained judges, same thoughtful consideration. Judges trials on matters appealed from the justice selected through the appointment process have devoted many hours to be qualified to court. Judges also hold de novo hearings on and subject to retention elections, with over- hear matters formerly handled by both appeal of the judgment of the small claims sight by the Utah Supreme Court and the courts. We extend sincere appreciation to department of the circuit court by a judge Judicial Conduct Commssion. Recognition is Utah lawyers for your patience and cooper- pro tempore and small claims on appeal from given to the commitment of circuit judges to ation in making the transition as the merger the justice court. Circuit courts exercise a high standard of the quality of justice on of the trial courts becomes a reality.

36 Vol. 9 No. 8 .I -

UTAH BAR FOUNDATION -

Jane A. Marquardt Stewart M. Hanson Hon. Pamela T. Greenwood

Utah Bar Foundation Elects Officers and Trustees

Jane A. Marquardt, shareholder in the law firm of Marquardt, Hasenyager & Custen, has been elected President of the Utah Bar Foundation Board of Trustees. Hon. James Z. Davis, Judge on the Utah Court of Appeals, was elected to a three-year term on the Foundation Board. Stewart M. Hanson, Jr. and Joanne C. Slotnik were re-elected to second terms. Mr. Hanson is of counsel with the Salt Lake City firm of Suitter, Axland & Hanson, and Ms. Slotnik is Assistant Attorney General (Criminal Appeals Division). The Foundation Board elected Mr. Hanson as Vice-President and Hon. Hon. James Z. Davis Pamela T. Greenwood was elected Secretary/Treasurer. Other Foundation Trustees are Carman E. Kipp and H. James Clegg. Ms. Marquardt said there is a growing demand for support for free and low cost legal services. "In these times of drastic federal cutbacks, each lawyer needs to step forward to assist in providing all people with equal access to justice," she said. Ms. Marquardt said by contributing to the Bar Foundation's Interest On Lawyer's Trust Accounts (IOLTA) program, lawyers can do a great deal to assist those in need of legal services. The non-profit organization of Utah lawyers has contributed nearly $2 million to projects and causes which provide free or low cost legal aid, legal education or other law-related services. Ms. Marquardt said the Foundation endeavors to provide funding to organizations which promote legal education and to those which provide access to the legal system to disadvantaged people.

Joanne C. Slotnik

October 1996 37 CLE CALENDAR

ALI-ABA SATELLITE SEMINAR: ernment employees (includes JAMES MCELHANEY'S ERISA BASICS, PARTS ONE & TWO tribal governments) MASTER ADVOCATE SERIES: Date: Thursday, October 3, 1996 & CLE Credit: 8.5 HOURS, WHICH EXPERT WITNESSES & THE ART Thursday, October 10, 1996 INCLUDES 1 IN ETHICS OF CROSS EXAMINATION Time: 10:00 a.m. to 2:00 p.m. Date: Friday, November 15, 1996 ALI-ABA SATELLITE SEMINAR: Place: Utah Law & Justice Center Time: 9:00 a.m. to 5:00 p.m. (Regis- ACCOUNTING FOR LAWYERS Fee: tration begins at 8:30 a.m.) $295.00 for both; $l60.00 for Date: Thursday, November 7, 1996 just one session (To register, Time: 9:00 a.m. to 4:00 p.m. Place: To be determined please call1-800-CLE-NEWS) Fee: $160.00 before November l, Place: Utah Law & Justice Center 1996; $l75.00 after CLE Credit: 4 HOURS FOR EACH Fee: $249.00 (To register, please SESSION November 1, 1996 call1-800-CLE-NEWS) CLE Credit: 6 HOURS NEGOTIATIONS: REACHING CLE Credit: 6 HOURS AGREEMENT ON YOUR TERMS NLCLE: ESTATE PLANNING ALI-ABA SATELLITE SEMINAR: Date: Friday, October ll, 1996 Date: Thursday, November 2l, 1996 Time: 9:00 a.m. to 4:30 p.m. (Regis- ANNUAL FALL EMPLOYEE BENE- Time: 5:30 p.m. to 8:30 p.m. FITS LAW & PRACTICE UPDATE tration begins at 8:30 a.m.) Place: Utah Law & Justice Center Date: Thursday, November 14, 1996 Place: Utah Law & Justice Center Time: 10:00 a.m. to 2:00 p.m. Fee: $30.00 for Young Lawyer Fee: Division Members $160.00 before October l, Place: Utah Law & Justice Center 1996; $175.00 after October Fee: $ 1 60.00 (To register, please $60.00 for all others l,1996 CLE Credit: 3 HOURS call1-800-CLE-NEWS) CLE Credit: 7 HOURS (Real Estate Credit CLE Credit: 4 HOURS pending) NLCLE: EMPLOYMENT LAW II Those attorneys who need to comply with the New Lawyer CLE requirements, and who Date: Thursday, October 17, 1996 live outside the Wasatch Front, may satisfy their NLCLE requirements by videotape. Time: 5:30 p.m. to 8:30 p.m. Please contact the CLE Department (801) 531-9095, for further details. Place: Utah Law & Justice Center Seminar fees and times are subject to change. Please watch your mail for brochures and Fee: $30.00 for Young Lawyer mailings on these and other upcoming seminars for final information. Questions regarding Division Members; $60.00 any Utah State Bar CLE seminar should be directed to Monica Jergensen, CLE Adminis- for all others trator, at (80l) 531-9095. CLE Credit: 3 HOURS TRIAL ACADEMY PART V: EXHIBITS CLE REGISTRATION FORM Date: Thursday, October 24, 1996 Time: 6:00 p.m. top 8:00 p.m. (Reg- TITLE OF PROGRAM FEE

istration begins at 5:30 p.m.) 1. Place: Hon. Dee Benson's Courtroom (Federal Courthouse) 2. Fee: $20.00 for Litigation Section Members; $30.00 for Non- Section Members Make all checks payable to the Utah State Bar/CLE Total Due CLE Credit: 2 HOURS (Also counts for . NLCLE credit) Name Phone SECOND ANNUAL NATIVE AMERI- CAN LAW SYMPOSIUM: ARCHEO- Credit Card Billing Address City, State, ZIP LOGICAL, RELIGIOUS, AND REPA- Bar Number American ExpressIMasterCard/VISA Exp. Date TRIATION IMPLICATION FOR LAND USE AND OWNERSHIP Signature Date: Friday, October 25, 1996 Please send in your registration with paymcnt to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 84111. The Time: 9:00 a.m. to 5:00 p.m. Bar and the Continuing Legal Education Department are working with Sections to provide a full complemcnt of live semi- Place: University of Utah College nars. Please watch for brochure mailings on these. Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register of Law at the doorare welcome but cannot always be guaranteed entrance or materials on the seminar day. Fee: $100.00 before October l5, Cancellation Policy: Cancellations must be confirmcd by lellcr at least 48 hours prior to the seminar date. Registration fees, minus a $20 nonrefundable fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar 1996; $125.00 after October date. No rcfunds will be given for cancellations made after that time. NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the l5, 1996; $ 100.00 for all gov- 2 year CLE reporting period required by the Utah Mandatory CLE Board.

38 Vol. 9 No.8 ~~ CLASSIFIED ADS

RATES & DEADLINES JOHN HILL, Director of Salt Lake Legal Indian or poverty law; familiarity with Defender Association, (801) 532-5444. Native American culture and communities; Utah Bar Member Rates: 1-50 words - $20.00 / fluency in relevant language; experience 51-100 words - $35.00. Coníïdential box is $10.00 extra. Cancellations must be in writing. For informa- ICON Health & Fitness, Inc., has an imme- with federal program administration. Non- tion regarding classified advertising, please contact diate opening for associate general counsel attorneys will be considered. (801) 531-9077 with two to five years legal experience in Responsibilities: Overall administration Classified Advertising Policy: No commercial general corporate law, transactional work and management of DNA, raise funds and advertising is allowed in the classified advertising and employment issues. Salary commensu- maintain relationship with funding sources, section of the Journal. For display advertising rates and information, please call (801) 487-6072. It shall rate with experience. Excellent benefits. particularly the Legal Services Corpora- be the policy of the Utah State Bar that no advertise- Qualified applicants should send resumes to tion, and ensure compliance with grant ment should indicate any preference, limitation, Olson & Hoggan, P.c., Attn: Thomas L. restrictions; assist Board of Directors in specification or discrimination based on color, handi- Willmore, P.O. Box 525, Logan, Utah planning and policy-making, and develop cap, religion, sex, national origin or age. 84323-0525. No telephone calls please. administrative, reporting, and evaluation Utah Bar Journal and the Utah State Bar Associa- tion do not assume any responsibility for an ad, procedures; hire and supervise central including errors or omissions, beyond the cost of the ATTORNEY: Multi-Bilion Dollar Financial administrative and management staff; over- ad itself. Claims for error adjustment must be made Service Company is expanding its sales and see hiring and training of all other staff; within a reasonable time after the ad is published. marketing operations in Utah due to explo- provide effective leadership and work CAVEAT - The deadline for classified adver- sive growth. Join a team of dynamic highly closely with staff, client communities, and tisements is the first day of each month prior to the month of publication. (Example: May I deadline for respected professionals. Salary + commis- other legal services providers to deliver the June publication). If advertisements are received later sion + benefits. Minimum requirements highest quality legal services; some litiga- than the first, they wil be published in the next avail- include law degree, 3-5 years successful tion and litigation oversight. able issue. In addition, payment must be received with business/consulting experience. Excellent Salary/Benefits: $50,000, D.O.E.; excellent the advertisement. interpersonal communication skills, commit- benefits. o BOOKS FOR SALE ment to professionalism and high ethical Closing Date: November 15, 1996. standards are key to our continued success. Applications: Send resume, writing sample Complete and up to date set of Utah Code. Resumes only with salary history to: Dan and three references to: $400.00 For more information contact Kim Murdock FAX: (801) 531-8862 KO.K Randolph Barnhouse, Exec. Dir. W. (f (801) 533-0222. DNA-People's Legal Services, Inc. DIRECTOR OF DEVELOPMENT: Utah P.O. Box 306 LAW LIBRARY FOR SALE (UPDATED Legal Services is seeking a permanent, full- Window Rock, Arizona 86515 & COMPLETE) time director of development. Four years UCC Digest (31 voL. $2,100 new) $1,000 fund raising, public relations and/or equivalent The U.S. ATTORNEY'S OFFICE in Salt UCC Reporting Service (67 voL. $2,850 experience. Bachelor's or law degree is pre- Lake City is seeking an attorney to accept new) $l,500 ferred. SaL. $25,000-$35,000 + Benefits. Close a two-year term appointment in an affirma- UCC Hawkland (10 voL. $L,OOO new) 10/25/96: Call (801) 328-8891 ext. 8481. tive civil enforcement position. The $750.00 attorney would work with federal agencies ALL THREE: $3,000 EXECUTIVE DIRECTOR. DNA-People's in developing and litigating cases to Utah Code ($720 new) $500 Legal Services, Inc. is seeking an Executive recover civil penalties and other funds Remedies/International Sellers of Goods (2 Director in Window Rock, Arizona. DNA is owed to the United States and to pursue VoL. $1,000 new) $750 the largest Native American legal services recover for damages based on fraud, tort, MUST SELL IMMEDIATELY - ALL program in the country, providing free legal and breach of contract. An applicant must REASONABLE OFFERS CONSIDERED services to over 200,000 low-income mem- be an active member of the bar in good Contact Eileen Fuessel, EIMCO, (801) bers of seven Native American Tribes and standing (in any jurisdiction) and have at 526-2370 other low income people from nine offices least one year of post-JD experience. At least in Arizona, New Mexico, and Utah. DNA two years of commercial litigation experi- POSITIONS AVAILABLE has a thirty year record of effective advocacy ence is preferred. Please send a resume to The Salt Lake Legal Defender Association in Indian and poverty law. Linda Pearson, U.S. Attorney's Offce, 350 is currently accepting applications for sev- Oualifications: Eight or more years legal, South Main Street, #B-36, Salt Lake City, eral trial and appellate conflct of interest administrative and management experience; Utah 84101. Resumes must be received by contracts to be awarded for the fiscal year demonstrable commitment to providing October 3l, 1996. The United States Attor- 1997. To qualify each application must legal services to low income people, espe- ney's Office is an Equal Opportunity/ consist of two or more individuals. Should cially Native Americans; good communication Reasonable Accommodation employer. you and your associate have extensive skils; and excellent references. experience in criminal law and wish to Prefer: State licensed attorney with five or POSITIONS SOUGHT ' submit an application, please contact F. more years of experience in the practice of CALIFORNIA LAWYER. I am also

October /996 39 admitted in Utah! I wil make appearances conference room, reception area. Fax, UTAH VALLEY LEGAL ASSISTANT anywhere in California, or help in any printer, copier, telephones, postage meter, JOB BANK: Resumes of legal assistants other way I can. $60 per hour + travel computer network provided. Library: West- for full, part-time, or intern work from our expenses. Contact John Palley 0ì (916) law, Federal/State Reporters, USCA/Regs, graduating classes are available upon 455-6785 or Palleyj 0ì aol.com. franchise, tax/estate. Three attorneys request. Contact: Kathryn Bybee, UVSC presently in suite. Pleasant professional Legal Assistant Department, 800 West ATTORNY: Former Assistat Bar Counsel. atmosphere. Parking next to building. Secre- 1200 South, Orem, UT 84058 or call (801) Experienced in attorney discipline matters. tarial services available. (801) 364-5600. 222-8489. Fax (801) 225-1229. Familiar with the disciplinar proceedings of the Utah State Bar. Reasonable rates. SERVICES TAX PROFESSORS WANTED: Adjunct Call Nayer H. Honarar, 39 Exchange Place, LIBRA Accounting Software with payroll, part-time tax instructors, to teach LL.M. Suite #100, Salt Lake City, UT 84111. Call accounts payable, general ledger and bank Taxation degree in a N.A.P.S.C. accredited (801) 583-0206 of (801) 534-0909. book capabilties. $3,150 o.b.o. For more infor- post-graduate educational program in Salt mation contact Kim W. 0ì (801) 533-0222. Lake City. Next part-time two year pro- OFFICE SPACE/SHARING gram begins Sept., 1996. LL.M. Taxation BEAUT OFFCE SPACE AVAIABLE MEDICAL MALPRACTICE EXPERTS: degree (or M.S. Tax degree or M. Acct. for one attorney to share with four estab- Medical Opinions Assoc. Inc. Board certi- Degree) and a strong tax background is lished attorneys at Brickyard Tower in Salt fied physicians in all specialities. preferred. Classes are held in the evening Lake City. Covered parking, fully equipped, Guaranteed continued participation includ- one night per week, 6 to 10 P.M., with flex- low cost. Secretarial and overflow avail- ing trial testimony. No contingency fees. ibility for the instructor's schedule. able. Call Gar 0ì (801) 484-2111. 1-800-874-7677 Washington School of Law, Washington Institute for Graduate Studies. Contact TAKE OVER - "STARTER"/"RETIRER" BERGEN, BERGEN & KOCH LLC: Dean Joslin, TeL. (801) 943-2440 or Fax SEPARATE LAW OFFICE SPACE: 8 East Forgery Detection & Questioned Document resume to (801) 944-8586. Broadway, Judge Building, Salt Lake City, Examination: We educate attorneys on Utah: 12' x 25' area; 6' x 3' Stowe-Davis forgery detection as well as providing expert SEXUAL ABUSE / DEFENSE: Child desk; 9' hardwood credenza; 2 hardwood- testimony on forgery cases. Our company statements are often manipulated. Current naugahyde client chairs; naugahyde offers services in forgery detection to research supports STATEMENT ANALY- highback desk chair; 6' x 3' walnut book- include letters of opinion, depositions & SIS not child credibility. Scientific/ case; metal vertical 5-compartment filing affdavits. We can also assist in selecting the Objective B. Giffen, M.Sc. Evidence spe- cabinet 7' x 3'. Reasonable, possible terms. type of personality wanted in a perspective cialist / Expert Witness. American College (801) 531-9611. juror. We can be reached on the internet Forensic Examiners, 1270 East Sherman under keyadvtg0ìix.netcom.com or 0ì 1- Avenue, Ste. 1, Salt Lake City, Utah Professional office space located at 7321 800-773-5423. 84105. (801) 485-4011. So. State Street, Midvale. Space for two (2) attorneys and two (2) secretary spaces APPRAISALS: CERTIFIED PERSONAL Paralegal: Legal Transcription, wp 6.1 for (could be leased singly). Includes two spa- PROPERTY APPRAISALS / COURT REC- Windows: All types of legal typing, filings, cious offices, large reception area, OGNIZED - Estate Work, Fine furniture, appeals: Pick up & delivery. 28 years of conference room, sinkwet bar, file storage, Divorce, Antiques. Expert Witness, National experience. Call Rick 0ì (801) 265-1443 or large private parking lot. Call 0ì (801) Instructor for the Certified Appraisers Guild cell phone 0ì (801) 597-9841. 255-3591 or (80l) 262-5050. of America. Eighteen years experience. Immediate service available. Robert Olson STRUCTURED SETTLEMENTS A Downtown - Kearns Building. Large C.AG.A. (801) 580-0418. BURDEN? (Lighten your burdens and offce for one attorney. Beautiful, furnished better serve your clients.) We pay cash for structured settlements! Full or partial: Call: HMC International INC. TOLL FREE 0ì ATTORNEY SUPPORT SERVICES 1-800-426-8367. Full Service Accounting & Secretarial Services On Noýember 4, 1996 a continuing educa- tion course on the Uniform Prudent . Transcription . Accounts Payable Investors Act (UPIA) wil be conducted. . Word Processing · Payroll & Tax Reporting UPIA sets the standards of conduct in . Client Statements . Financial Statements managing and administrating private trusts . Accounts Receivable . Benefi Administration and foundations. Five hours CLE credit, which includes 1 hour of ethics. P.O. Box 22312 For more information please call Jon McK- Salt Lake City, UT 84122-0312 eon at 534-0088 or 1-800-662-3733. 801 231-8082

40 Vol. 9 No. 8 CERTIFICATE OF COMPLIANCE ForYears 19_and 19_ Utah State Board of Continuing Legal Education Utah Law and Justice Center 645 South 200 East Salt Lake City, Utah 84111-3834 Telephone (801) 531-9077 FAX (801) 531-0660 Name: Utah State Bar Number:

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* * Date of Activity CLE Hours Type of Activity

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

A. AudiolVideo 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 aricles. See Regulation 4(d)-101(b).

C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teach- ers who are practitioners in an ABA approved law school may receive three 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 paricipation in a panel discussion. See Regulation 4( d)-1 0 1 (c).

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

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

Regulation 8-101- Each attorney required to fie a statement of compliance pursuant to these regulations shall pay a filing fee of $5.00 at the time of filing the statement with the Board.

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 Regulations 5-103(1).

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 of which the statement of compliance is fied, and shall be submitted to the board upon written request. We provide the information, YOU choose the format!

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