When.The Peifect Facts and Most , Persuasive Law Are Just Beyond the Horizon, Base Your Case on the CD-ROM Edition of Pacifc Reporterqy 2D

When.the peifect facts and most , persuasive law are just beyond the horizon, base your case on the CD-ROM edition of Pacifc ReporterQY 2d.

II i

iii

ilj Find it fast. Get it right. Go home early. . .

Pacífie Reporter 2d on CD-ROM puts persuasive authority from fifeen states and two territories right on your desktop! Even if you have only a few facts, you can locate that must-have case from any jurisdiction in the region. In legal research, effciency is the bottom line, P2d on CD-ROM goes the distance!

Find it fast. Get it right. Go home early. For additional Choose from three timesaving ways P2d on CD-ROM starts with Afer you've found a case, built-in information, call to search: 1) Natural Language tiustwOlthy, authoritative primaiy word procesing functions- 1-800-762-5272. searching with PREMISE'" Research materials. Exclusive headnote including "copy and Softare makes legal summarize each point of law to paste"-make Please provide research as easy help you apply a case to your fact document preparation OFFER NUMBER 839255. as tying your situation, Synopses give you a simple. Direct connection to issue in plain English; 2) field concise summaiy of WESTLW'" lets you easily expand templates let you simply "fil in the the issue and your research online. Finally, West blanks"; and 3) TeiIDS and procedural disposition Group's new KeyCite'" citation Connectors employ traditional of the case. And West research seiviæ helps you instantly Boolean methods, as well as Group's exclusive Key Number .. make sure that your case is stil sentence and paragraph connectors. System makes searching for "on- good law. point" cases completely compatible with your existing W't Group libraiy . WEST

For information about other West Group products and services, visit us on the Internet GROUP at the URl: ww.westgroup.com Bancroft-Whitney. Clark Boardman Callaghan Lawyers Cooperative Publishing . WESnA~. West Publishing

The trademarks shown within ore used under license.

(£ 1998 West Group 9.9796N3.98 1839255 I 1-568-468-2

.' Utalig Published by The Utah State Bar UTAH BAR JOURNAL- 645 Souih 200 East Salt Lake City, Utah 84111 Vol. 11 NO.3 April 1998 Telephone (801) 531-9077 www.utahbar.org VISION OF THE BAR: To lead society in the creation of a justice system Bar Journal Committee and Editorial Board that is understood, valued, respected and accessible to alL. Editor MISSION OF THE BAR: To represent lawyers in the State of Utah and Calvin E. Thorpe to serve the public and the legal profession by promoting justice, profes- Associate Editors sional excellence, civility, ethics, respect for and understanding of, the law. William D. Holyoak Randall L. Romrell Articles Editors Letters ...... 4 Christopher 1. Burke President's Message Blain H. Johnson Lee S. McCullough Bar Commission Adopts Long Range PIan...... 5 by Charlotte L. Miller Letters Editor Victoria Kidman Commissioner's Report Views from the Bench Editors Newcomer's View of the Bar Commission ...... 8 Judge Michael L. Hutchings by Randy S. Kester G. Kevin Jones Lorena P. Riffo With Liberty And Justice For All ...... 10 Legislative Report Editors by Honorable David Sam Lisa Watts Baskin Pro Bono - For the Good ...... 12 Heather Miller by James C. Jenkins Case Summaries Editors GlenA. Cook Balancing Family Life with the Practice of Law ...... 14 J. Craig Smith by Mark L. Fishbein Daniel M. Torrence The Conundrum of Gifted, Inherited and Book Review Editors Betsy L. Ross Premarital Property in Divorce...... 16 Penniann J. Schumann by David S. Dolowitz "How to . . ." Editors State Bar News ...... 25 David Hartvigsen Lisa M. Rischer The Barrister ...... 44 Annalisa A. Steggell Views From the Bench Judicial Profies Editors 1998 State of the Judiciary Address ...... 49 Brett J. DelPorto Angelle H. Frehner by Chief Justice Michael D. Zimmerman Derek P. Pullan Jennifer L. Ross Case Summaries ...... 53 by Daniel M. Torrence ADREditor Cherie P. Shanteau Book Review: Independent People...... 54 Law and Technology Editors by Betsy L. Ross Bruce R. Findlay Mark J. Gregersen Utah Bar Foundation ...... 56 Young Lawyer Representatives CLE Calendar ...... 57 Mark C. Quinn Cathy E. Roberts Classified Ads ...... 58 Peggy E. Stone COVER: Sego Lilies at Zions National Park by first-time contributor, Norman K. Johnson. Committee Members Such ada P. Bazzelle CORRECTED FIRST HUNDRED COVER ISSUES AVAILABLE David W. Brown The title to the photograph of Utah's First Hundred on the cover of the March edition TamraCole of the Utah Bar Journal contained a grammatical error. For those who may wish to David B. Erickson have a copy of this very important photograph and issue celebrating the First Hundred, Andrea J. Garland the Bar has reprinted a limited number of additional copies with corrected covers. H. Craig Hall Sandra K. McDonald These collector's editions wil be available for pick up at the Bar offces in the Utah Laurie 1. Sartorio Law and Justice Center. We apologize for this inconvenience. Kimberly J. Smith Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published Denver Snuffer on the cover of the Utah Bar Journal should contact Randall L. Romrell. Randle. Deamer. Zarr, Romrell & Lee, David R. Ward P.C., 139 East South Temple, Suite 330. Salt Lake City, UT, 841 I 1-1169, 531-0441. Send a slide, transparency or Judge Homer F. Wilkinson piint of each scene you want to be considered. John C. Y nchausti The Utah Bar Journal is published monthly, by the Utah State Bar. Due copy of cach issue is furnished to Bar Commission Liaison members as part of their State Bar dues. Subscription price to others, $40; single copies. $4.00. For information D. Frank Wilkins on advertising rates and space reservation, call or write Utah State Bar offces. Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publi- Bar Staff Liaison cation of advertisements is not to be considered an endorsement of the product or service advertised. Maud C. Thurman Copyright cg 1998 by the Utah State Bar. All rights reserved.

April/99B 3 ~'l

~LETTERS j Dear Editor: He who pro-bono's slothfully, was used to reduce bar member dues. The following poem expresses the view or gives because reports are due, Commissioners, please reduce our dues. of many of our members about the current It is not counted good to him, Brian M. Barnard proposal for mandatory reporting of pro- and litte public good will do. bono work. Dear Editor: Answer: "But poor folk get left out." I think I speak for most members of the And richer folk advantage gain. WHAT ONCE WAS NOBLE, bar in stating that the new state Courts They do sometimes, without a doubt. PRIVATE CAUSE building in Salt Lake City appears to be a You'll stop that when you stop the rain. very attractive and functional edifice. I Pro-bono work the Bar promotes. .. Yet each should help out where he can, "Mandate reports," some agitate. look forward to practicing there. That starts to crowd out volunteers. with that but few of us contend. However, try as I might it is diffcult to But form new Bar bureaucracy? "But mandating makes numbers great." imagine why it is necessary to leave virtu- Heaven protect us and forfend! ally every light in the building turned on all It's a disease most widely spread: night every night, when the building is not "It's only voluntary though." "We bar members are not well liked. even in use yet. I doubt there is a surplus of "We'll discard those reports you do." We've got to spruce our image up. money with which to do this, and if there Pro-bono numbers must be hiked." Buy that, the Brooklyn Bridge is next. What foolishness! What ingenue! were it would stil be worth while to con- serve energy. I write this letter in the hope "They can't be hiked without reports." Edwin H. Beus The Bar offce must thus expand. that someone with the power to do something about it wil either put a stop to the What once was noble, private cause, Dear Editor: practice of leaving all of the lights on or, if we'll tabulate, broadcast, grandstand. Several years ago bar dues were raised substantially to pay the mortgage on the Bar there is some good reason for doing so Why don't we let members alone? enlighten me. The quality of good you do, Office Building. After the mortgage was paid, dues were not reduced. Mitchell R. Barker and services you give for free, In 1997, the Bar Commission found stil do and can speak well for you. three-quarters of a milion dollars in SUR- If truth were known about the case PLUS money in Bar accounts. A quarter of a What's freely given does more good milion dollars was pledged to the new cour- than tabulated pro bono thouse. A half milion dollars was set aside has ever done or ever could. in a "working capital reserve" account. None r------, Letters Submission Guidelines: Interested in 1. Letters shall be typewritten, double any employee of the Utah State Bar to civil spaced, signed by the author and shall not or criminal liability. Writing an exceed 300 words in length. 6. No letter shall be published which 2. No one person shal have more than one advocates or opposes a particular candidacy Article for the letter to the editor published every six months. for a political or judicial office or which Bar Journal? 3. All letters submitted for publication contains a solicitation or advertisement for a shall be addressed to Editor, Utah Bar commercial or business purpose. The editor of the Utah Bar Journal and shall be delivered to the office 7. Except as otherwise expressly set forth Journal wants to hear about of the Utah State Bar at least six weeks herein, the acceptance for publication of let- prior to publication. ters to the editor shall be made without the topics and issues readers 4. Letters shall be published in the order regard to the identity of the author. Letters think should be covered in the in which they are received for each publi- accepted for publication shall not be edited magazine. cation period, except that priority shall be or condensed by the Utah State Bar, other given to the publication of letters which than as may be necessary to meet these If you have an article idea reflect contrasting or opposing viewpoints guidelines. or would be interested in writ- on the same subject. 8. The Editor, or his or her designee, shall ing on a particular topic, con- 5. No letter shall be published which (a) promptly notify the author or each letter if tact the editor at 566-6633 or containsdefamatory or obscene material, and when a letter is rejected. (b) violates the Code of Professional Con- write, Utah Bar Journal, 645 duct, or (c) otherwise may subject the Utah South 200 East, Salt Lake State Bar, the Board of Commissioners or L--______.JCity, Utah 8411 1. 4 Vol.ll No.3~ Bar Commission Adopts Long Range Plan

by Charlotte L. Miler

history and future projections. information, staff and internet resources At itsMarch commission 5, 1998, the meeting Utah State Baron Management with a long range view. will be made available to these groups. Commission completed its adoption of a The Plan commits the Bar for a five year Objective 2 - The Bar will empower, Long Range Plan. The Long Range Planning period. Short-term projects wil be avoided emphasize and serve through sections, Committee has been writing and revising the in favor of long term commitments. Success committees and local bar associations. Long Range Plan for one year and the Bar in implementing the Long Range Plan wiII Member Services should be a major Commission has been reviewing and dis- be measured by a "report card" included in focus for the Bar. The Supreme Court's cussing the Long Range Plan for several the Plan. 1990 Order severely restricted member ser- months. All of the objectives have been unan- Objective 5 - The Bar wil administer vices. The Bar has been able to make many imously approved by the Bar Commissioners. consistent with the LongRange Plan. of its member services self sustaining. The Plan is now published on the Web at Budget Cycles. Budgets will not only be With this record, the Bar needs to provide http:\\www.utahbar.org\LRP\Iong.htm. A annual but multi-year budget periods wil more self-sustaining member services. Bar printed copy of the Plan may be obtained also be used. Margins for bar operations information and technology resources can from the Bar offices (531-9077). have decreased until the last two years bud- be used to enable members to adápt to On April I7 and on May 15, the Bar gets have projected no excess revenues. The changing legal markets, develop manage- Commission wiII discuss and determine Bar has not had a dues increase since 1990. ment expertise and improve their priorities and budgeting of resources for The plan suggests that dues increases not professional work. the objectives in the Long Range Plan. occur every year but at the beginning of a Objective 4 - The Bar wil focus on the Please review the objectives, and provide multi-year cycle. A surplus would be needs of new lawyers. comments to the Commissioners so that we reserved at the inception of the multi-year Objective 9 - The Bar will emphasize and have the benefit of those comments prior to cycle, just after an increase. There would be monitor the relative amount of resources those meetings. Comments regarding the no surplus in mid-cycle years and end of that is devoted to Member Services. Plan and its implementation wil be assimi- cycle deficits would be funded by the initial Objective 10 - The Bar wil serve the lated by John Baldwin who can be reached year reserve. needs of its changing membership. at jbaIdwinClutahbar.org. If you are too Objective 6 - The Bar will refine its Objective 11 - The Bar wil provide busy to bring yourself to provide com- accounting systems and policies. assistance programs to members in law ments, I ask that you at least let us .know Sections, Committees and Local Bars offce management areas. which three objectives should be at the top should be a principal means of delivering Objective 12 - The Bar wil prepare of the priority list. services to Bar members. The Bar needs to members in markets which will be The following is an overview of the devote more of its resources to enabling impacted by future developments. Plan objectives. The Plan also contains sig- these groups, which are proximate to mem- Objective 15 - The Bar will embrace nificant context materials giving Bar bers, to provide services. The Bar's and lead with technology.

April /998 b 5 Î

Objective 16 - The Bar will lead in profession of legal assistants should be regu- Other Long Range Planning wil managing and providing information. lated and licensed by the Bar. occur. Consistent with the emphasis on The Bar wil exercise more leadership Objective 8 - The Bar wil administer continuity, a long range plan will be devel- in state government by taking a more and regulate legal assistants. oped for the Offce of Professional Conduct active role in legislative advocacy and The Bar mission statement will be and the Utah Law and Justice Center. 1 communicating with the executive and revised to show the dichotomy of its roles. Objective 3 - The Bar wil develop a judicial branches. The Bar can represent On the one hand, the Bar regulates lawyers Long Range Plan for the Offce of Profes- lawyers effectively and can avoid legisla- through admission and discipline. This role sional Conduct. tive, judicial and executive action of regulation is actually adverse to individ- Objective 17 - The Bar wil create a inconsistent with lawyers' needs and the ual attorneys. On the other hand, the Bar is a Long Range Plan for the Utah Law & Jus- efficient administration of justice. membership organization for lawyers. A tice Center. Objective 7 - The Bar wil become more membership organization advocates for and This Plan will be the guide for future involved in State government. serves members. Revising the Bar's mission Bar Commissions and Bar Presidents. Legal assistants will be licensed and statement to reflect this dual role will make Commitment to the Plan wil provide a regulated by the Bar. The market will drive the Bar more conscious of the basis for its structure that wil allow us to build on each the availability of legal services from non- actions. year's accomplishments so that we can lawyers. The Bar's position is that these Objective 1 - The Bar Mission Statement work toward greater success and a bright services should be provided under the super- wil be revised to clearly reflect the Bar's future for the legal system. vision of attorneys and that the new emerging I regulatory function. I

JAN SCHLICTMANN, back from his ¡¡Wilderness Years!! in exile! wil appear at the Salt Lake Hilton all day on April 24 to share what he learned in the highly publicized

" Woburn toxic groundwater case

(now being made into a movie starring John Travolta and Robert Duvall) in which he extracted an $8 milion settement

but stil had to fìle personal bankruptcy.

IF YOU. . . · HANDLE CONTINGENCY CASES FOR POWERLESS VICTIMS · DO INSURANCE DEFENSE WORK · ADVISE CORPORATE CLIENTS ON WASTE DISPOSAL OR RECORD MAINTENANCE, OR · WORRY ABOUT THE USE AND MISUSE OF RULE i i . . .

DON'T MISS THIS 8 HOUR CLE SEMINAR Seating Stil Available Lunch included 2 hrs ethics credit call 531-7514 to register Sponsored by. the Utah Trial Lawyers Association

6 Vol. 11 NO.3 II ,. ~ The Law Firm of DURHAM EVANS JONES & PINEGAR

Jeffrey M. Jones is pleased to announce that Richard W. Evans Paul M. Durham Kevin R. Pinegar G REG 0 R Y N. BAR RIC K I Formerly of Van Cott, Bagley, Cornwall & McCarthy David F. Klomp R. Stephen Marshall has joined the Firm as a Shareholder and will continue his practice in the areas Wayne D. Swan" of Estate, Business and Tax Planning. Gregory N. Barrick J. Mark Gibb N. Todd Leishman Jennifer T. Lessie N. TODD LEISHMAN Steve K. Gordon has become a Shareholder in the Firm and will continue his practice in Tadiana W. Jones Kyle C. Jones Corporate Law and Securities, and

of counsel G. Richard Hill K Y LEe. JON E S i Formerly of Parsons, Behle & Latimer

has joined the Firm as an Associate, and will practice in the areas of Business Lawi Real Estate and Banking.

A Professional Corporation

Altorneys & Counselors at Law

Key Bank Tower 50 South Main, Suite 850 Salt Lake City, Utah 84144 Telephone 801 538 2424 Facsimile 801 538 2425 E.mail dejp(¡dejp.com Ii --

Newcomer's View of the Bar Commission

by Randy S. Kester

Ii , nothing more than a group of "stuffed shirts" exercise their collective wisdom to make This beingcontribute my first to the "opportunity" Bar Journal, to I or "good ole boys" wi! soon be dispelled. It good choices and policy. If you choose to have done so with some degree of hesi- was the privilege of a lifetime to listen to the acquaint yourself with the complex and tancy. Those who have been "subjected" to members of the Bar and judiciary debate varied issues facing the Utah Bar, and my writing skils know precisely why. implementation of the Access to Justice task come to be acquainted with the Commis- While I typically dread my "creations" force report and more particularly the dis- sion members, you will also come to being scrutinized by the Judge and oppos- cussion about the Bar's role in providing pro respect and appreciate them as I have. ing counsel, it is particularly intimidating bono services. Without exception, every Society in general, and we, as members of to have one's thoughts and grammar member of the Commission, including the the Bar, in particular, are indeed the fortu- exposed to the entire practicing Bar. Who non-voting members, is dedicated to doing nate beneficiaries of their volunteer labors. knows, maybe this will be my introduction what he or she thinks best, not for personal My purpose in relating this to you is not and my swan song. interests, but for the public and our Utah Bar to seek for the Commission members a First and foremost, I want to thank my in general. There is great diversity on some "pat on the back," nor your adoration. It is colleagues in the Fourth District for the issues. Frankness, candor, wisdom and a quite simply to let you know that your con- privilege of practicing and associating with sense of humor pervade the discussions. cerns about the practice and issues facing each of them. It truly is an enjoyable expe- Some of the issues are perfunctory and some all of us as judges and lawyers, are the rience each day, whether in Heber City, are profound. There is an awareness same issues facing the Commission. For the Manti, Filmore, Nephi, Provo, or just on amongst the Commissioners that every deci- Commission, however, it encompasses a the telephone. I am fortunate to be counted sion made impacts each of us, because each much broader scope. The Commission has amongst this group of judges and lawyers new policy or rule passed applies to all of no monopoly on the right or best answers. and am indeed honored to be their voice at us, including the individual Commissioners. The issues and needs are many, challenging Il the Bar Commission. I value their help and It has been refreshing and rewarding to and far reaching and include finances, input to ensure that indeed all of our views discover that the Commission is not some logistics and philosophy. Write, call, or

are heard - not just mine. aristocratic body whose hidden agenda is to corner your Commissioner at the courthouse I While I still feel like a fledgling commis- make life difficult, miserable and compli- or office. I, for one, appreciate being edu- sioner, I wanted to offer my views of those cated for the members or to use the Bar cated about members' ideas and thoughts; who are actively engaged on the present members as guinea pigs for experimenting sharing them benefits all of us, not only in commission. For those of you who may with new programs or ideas. My observation making the Bar more effective, but in pro- have misconceptions about the nature of the has been that exactly the opposite is true. It viding cohesiveness amongst our members. Bar Commission, I invite you to sit through is not an "us" vs. "them" scenario. Your One of the areas in which the Commission just one of the monthly Commission meet- Commission is nothing more than a group of now finds controversy is the formulation ings. Any sense that the Commission is people just like you, the Reader, trying to and implementation of policies relative to

8 Vol. II No.3 r i Access to Justice. Most particularly, the We are all better served when the helpless to the needy and take every opportunity to discussions and concerns regarding providing and needy are assisted. We are all better educate the public about the importance of and reporting pro bono services of the Bar. served by an educated public. Having an inside the judicial branch of government and the That is a significant topic deserving of track about constitutional principles and the vital role of lawyers in fostering, maintain- more time than I can give it in this writing. functions of the legal profession, those roles ing and shaping our freedoms. Each of us has strong opinions on it. l\y of assi.stanceand education fall primarily upón I am hopeful that I can make a contribu- analysis begins with the fact that I take our shoulders. Benevolence should extend from tion to the access to justice issues and that pride in being a lawyer. Our role in perpet- all who have the privilege of practicing law. I will recognize and continue to take every uating our form of government and a free It has been said, "to whom much is given, opportunity to educate the public about the society is often and vastly underrated and much is expected." We have all worked hard good and beneficial role of lawyers in our misunderstood. It is our commitment to the to become lawyers. We should take pride in free society. I am privileged to have unfettered exchange of ideas and protec- our achievements, enjoy the privilege of learned a great deal in my first six months tion of each individual's rights to pursue associating with such delightful and dedi- on the Commission and hope that as my those ideas (be it religious, philosophical, cated colleag~es and nurture the significant term progresses, I wil reach a point where capitalistic or other) that sustains and role of our profession in~ society. In the same I can more meaningfully contribute to strengthens our country. breath, we should renew our commitments these Bar responsibilities. The American public seems to think that our lawyerly concerns and focus are simply and primarily monetary. "How was copper wire invented? Two lawyers fighting over the last penny!" Heard that one? BURGUNDY CLASSIC This grand misconception can only be , corrected through education. There are many avenues available. For example, the CORPORATION KITS first hundred women lawyers celebration was an exceptional tool to provide the public with some insight into the goodness, contributions and dedication of women lawyers. Each time any of us are asked to speak on any topic, whether it be for church, social, school or even family functions, we should tell each group of our pride in the profession and its role in securing society's wealth of freedoms and privileges. When my children ask what lawyers do, I tell them "we help people." Just as a doctor heals the wounds of a body and a software engineer develops programs, so do lawyers help people heal their personal and business wounds and create . Binder in classic, marbled burgundy, leather-look vinyl; D-shaped rings; with matching slipcase and index labs One of the most complele on the market! road maps and programs to avoid future . Corporate engraved seal with pouch . Binder in classic, marbled burgundy, leather-look impediments, misunderstandings and liti- . FREE Easy Way corporate kit sQftware vinyl; D-shaped rings; with matching slipcase . Conveniently tailored corporale by-laws gation. Our role is and always wil be that . 6 index tabs - mylar reinforced . Customized minules of the peacemaker. The process may be ugly . LLC engraved seal w/pouch . Compulerized stock lransfer ledger sheet . 25 custom printed membership certificates and tumultuous, but in the end, whether . 25 custom-printed stock certificatés- . FREE EasyWay LLC software through negotiation or the adversarial give . 6 index tabs - mylar reinforced . LLC name in gold on binder and take of the courtoom, there is eventu- . Stock transfer ledger . Articles, operation agreement, minules . By-laws and minutes and resolutions pre-printed ally always synthesis and resolution. . and much, much more.. . Without lawyers, the system would dis- . Tax forms -Ialest requirements integrate. Without lawyers, it would deteriorate into "might makes right;' and mob $ 56.55 plus $4.00 shipping & handling $ 57.95 plus $4.00 shipping & handling rule. The weak and needy would be abused and lost. We should all dedicate ourselves 24.HOUR IN HOUSE COMPLETION ON ALL KITS to ensuring such a scenario never occurs. Quality Guaranteed Workmanship We need only read of the random mass kiling of vilagers in South America and CORP~iNC PHONE TOLL FREE 1.800.586.2675 or FAX 1.800.586.2685" African countries to rededicate our efforts CORPORATE KITS & MORE Phone 1.801.292.5537 or FAX 1.801.292.5688 to ensuring that the rule of law prevails. 640 No. Main, Suite 2167 . North Salt Lake, UT 84054

Apl'il1998 9 ~ '¡ i II

With Liberty and Justice For All

Address by Chief Judge David Sam

U.S. District Court ,f At the Opening Session of the Utah State Bar Mid- Year Convention

Editorial Note: Chief Judge David Sam pIes." (Our Sacred Honor, Willam 1. Ben- graciously agreed to give the opening nett, pp. 319-321). address at the Utah State Mid- Year Con- I ask, by way of self-evaluation, how vention in St. George on March 6, 1998, we, as members of the legal profession, are and to lead all in attendance in the Pledge measuring up in our obligation and com- of Allegiance to the flag of the United mitment to the oath taken when we became States of America. 1t is hoped that Chief members of the Bar. Are we doing justice, Judge Sam wil have initiated a tradition practicing moderation, civility, frugality which wil continue at future Bar conven- and virtue? We must frequently remind tions and gatherings. ourselves of these fundamental principles which are necessary to preserve our free President Miller, Bar Officers, col- government and the blessing of liberty. leagues of the State and Federal Judiciary, The words of Thomas Jefferson under- members of the Bar, and distinguished score the necessity of our continued guests, I appreciate the invitation to partici- vigilance and sacrifice: pate with you at the mid-year convention We owe every other sacrifice to our- of the Utah State Bar. I would like to intro- selves, to our federal brethren, and to duce my remarks by referring to a sacrifice and giving from all who benefit the world at large to pursue with statement in the writing of the ancients from it. In July 1776, fifty-six brave men, temper and perseverance the great which reads: "To everything there is a sea- twenty-four of whom were lawyers and experiment which shall prove that son and a time to every purpose under the jurists, left us a constant reminder of what man is capable of being in (aJ society heaven." (Ecclesiastes 3: 1). Let me sug- they were willing to sacrifice for the cause governing itself by laws self- gest, as we come to the close of the 20th of freedom and liberty. They declared: "And imposed, and securing to its century and prepare for the 21st century, in support of this Declaration, with a firm members the enjoyment of life, lib- that this is the season for us, as a profes- reliance on the Protection of divine Provi- erty, property, and peace; and further, sion,' to reflect, evaluate and recommit dence, we mutuaIIy pledge to each other our to show that even when the govern- ourselves to those fundamental principles Lives, our fortunes and our sacred honor." ment of its choice shall manifest a that have made our nation, our judiciary History reflects that many of the fifty-six tendency to degeneracy, we are not at and our rule of law the light of the world. lost their lives and fortunes, but there can be once to despair, but that the wil and I am pleased to be a member of a pro- no question that love of God, love of coun- the watch-fullness of its sounder fession that played such a vital role in the try, and their placing of duty to God and parts wil reform its aberrations, deliberation and work of the founders of country above self, preserved forever in the recall it to original and legitimate our great nation. Their efforts brought forth annals of history their sacred honor. principles, and restrain it within the a marvelous work which included the Dec- By way of reflection and evaluation, let rightful limits of self-government. laration of Independence, the Constitution me refer to George Mason, one of the fifty- (The Writings of Thomas Jefferson, Albert and the Bill of Rights. These documents five who met in Philadelphia during the EIIery Berg, V, 17 p. 445). embodied the promise and fulfilment of summer of 1787 for the Constitutional Con- Let me suggest that, at a time when their commitment to clearly identify and vention. He had already drafted the Virginia there are appearances of degeneracy, as protect our unalienable rights, among BiII of Rights. Article 15 of the Virginia BiII, Jefferson forewarned, those disciplined in which are life, liberty and the pursuit of adopted on June 12, 1776, reads as foIIows: fundamental principles of justice, modera- happiness. "No free government or the blessings of lib- tion, temperance, frugality and virtue wil However, to secure the blessing of liberty can be preserved to any people, but by a have the influence and power to protect erty and freedom for generations to foIIow, firm adherence to justice, moderation, tem- and perpetuate our society governing itself our forefathers understood that freedom is perance, frugality and virtue and by a by laws self-imposed. And, in the words of not free but requires continual vigilance, frequent recurrence to fundamental princi-' Jefferson, secure to us the continued enjoy-

10 VO/.ll No.3 ì

ment of life, liberty, property and peace. If replica of one given two and a half IN-HOUSE CORPORATE we, as a nation, are to continue to prosper, centuries ago to the greatest of Micron Technology, Inc., a leading high- I expect the legal profession, as it did when Philadelphia lawyers, Andrew Hamil- our nation was founded, to play a major ton. It was given to Mr. Hamilton for tech company based in Boise, Idaho, role in this process. his remarkable defense of freedom of seeks self-motivated attorney with I add, in closing, the following remarks the press in the immortal trial of John exceIIent academic credentials and 2-5 from a speech given by the Honorable Peter Singer. The little gold box used years experience (commercial/corporate Kenneth W. Starr, then Solicitor General of in bygone years as a snuff box bears a transactions experience preferred, but the United States, to the J. Reuben Clark wonderful inscription which captures not required) with an exceIIent law firm. Law School on April 27, 1990. He stated: that which is highest and noblest in Candidates must have exceIIent Not long ago I had the privilege of our profession, "acquired not by addressing the nation's oldest orga- money, but by character." interpersonal, verbaL, writing, analytical nized bar, the Philadelphia Bar As we prepare for the 21st century, may and problem-solving skiIs. Work Association. That bar has many tra- we strive to embody in all that we do that includes many different types of ditions but one of the proudest is to which is highest and noblest in our profes- domestic and international commercial give the leader of the bar, upon his or sion. Let us now join in a pledge of and corporate transactions such as her retirement as Chancellor of the allegiance to the flag of our great nation. Bar, a small gold box. The box is a banking and finance, sales, purchasing, real estate, design and construction, utilties, leasing, and joint ventures. Micron offers very competitive salary, Special Institute on exceIIent benefits and a dynamic working environment. Rights-of-Way Send or fax resumes to: 8000 S. Federal Way, P.O. Box 6, MS707-ABG How Right is Your Right-of-Way? Boise, Idaho 83707-0006, or 208-368-4641. EOE/AA. Principals only. May 4-5, 1998 Denver, Colorado

The Rocky Mountain Mineral Law Foundation is sponsoring a two-day Special Institute on Rights-of-Way in Denver on May 4- 5, 1998. This institute wil focus on current issues affecting the ..EDICAL XPERT acquisition, maintenance, regulation, and disposition of rights- ESTIMONY of-way on federaL, state, Indian, and fee lands. The program wil offer an in-depth perspective on the use of . Credible Experts All physicians are board-certified. existing rights-of-way, obtaining such rights from governmental Most are medical school faculty agencies, and implementing various contractual agreements, members. including analyses and critiques of those being used currently in . Selection of Experts Within 90 minutes of talking the natural resources industries. In addition, speakers wil with Dr. Lerner we wil fax the address various title and operational problems affecting rights- proposed specialist's curriculum vitae and retainer agreement for of-way, and wil offer practical tips on describing and evaluating review.

rights-of-way. . Plaintiff or Defense Who should attend - Attorneys, landmen, right-of-way Since 1975 our multidisciplinary group of medical specialists (MD, agents, project managers, government employees, and represen- DDS, DPM, OD, OTR, PharmD, tatives of Indian tribes who are interested in obtaining and/or PhD, RN and RP) have provided using right-of-way for oil, gas, coal, or hardrock projects, as well services to legal professionals. as those involved with the industrial and electrical transmission DR. STEVEN E. LERNER industries. & ASSOCIATES 1..800..952..7563 Contact Mark Holland at: TEL (303) 321-8100 · FAX (303) 321-7657 · E-Mail: info(irmmlf.org · http:f fwww.rmmlf.org Visit our web slte at http://www.drletner.com

April 1998 11 ~i ,I

Pro Bono - For the Good

by James C. Jenkins

c. It requires all active members to The Biblewell instructs: doing." "Be , not weary in report the hours and any funds con- In 1995, the Board of Bar Commissioners tributed toward pro bono services. recognized a growing need to provide legal The rule specifies a simplified reporting services to the poor and disadvantaged res- form to be incorporated with the annual idents of Utah. In June 1996, the Utah licensing statement and contemplates a Supreme Court approved the Bar's petition procedure to maintain confidentially of to authorize the creation of a task force to member identity and protection from inap- study the problem and identify solutions. The propriate disclosure of information. State Wide Access to Justice Task Force, It is anticipated that the Supreme Court consisting of 22 individuals from throughout will soon publish the proposed rule for the state representing a variety of disciplines comment. In response to the Bar's efforts and interests, met regularly from July 1996 to solicit comments regarding the Task until September 1997. The final report of Force report, some members have criti- the Task Force, a 51-page document outlin- cized the recommendation to amend Rule ing seven specific recommendations to 6.1. Much of that criticism, however, has promote pro bono services, was approved centered upon a fundamental misunder- by the Board of Bar Commissioners on JAMES C. JENKINS is a shareholder in the standing of the rule's purpose and an September 19, 1997. A copy of the report law firm of Olson & Hoggan, P. C. His practice unwarranted suspicion that the rule wiIl be was mailed to every member of the Bar. is primarily devoted to matters of litigation. burdensome and oppressive. Despite all the Recommendation NO.2 of the Report Mr. Jenkins holds a Bachelor of Arts rhetoric, the best way to evaluate the pro- states: degree in finance from the University of Utah and a Juris Doctor from Gonzaga University posed rule is to read it. The proposed rule "The Bar should petition the Law School. He is the past chairman of the and a copy of the petition to adopt the rule Supreme Court to amend the Rule of Utah Judicial Conduct Commission, and a was disseminated at the March mid-year Professional Conduct to implement fonner member of the Litigation Section Exec- meeting in St. George. The rule is printed mandatory reporting of pro bono ser- utive Committee of the Utah State Bar. in this edition of the Bar Journal and a vices of Bar members. Such Currently he is a member of the Judicial Council Committee to Improve Jury Service, a copy is available at the Bar offices or can reporting of pro bono services should member of the Utah Judicial Council, and is be mailed to you upon request. Not only include an optional contribution. President-elect of the Utah State Bar. should we understand what the rule, says, Under this system, pro bono service His commitment to pro bono service has but it is also important to understand what and financial contributions should been evidenced as a member of the Bar Com- the proposed rule does not require. There is remain aspirational. Only the report- mission Special Committee on the Delivery of Legal Services, the Statewide Access to Justice no requirement that a lawyer do a specific ing of these items should be Task Force, the Access to Justice Implementa- kind of pro bono service or that a lawyer mandatory. A similar rule in Florida tion Committee, and as an incorporator of the provide a certain number of hours of ser- has produced increases in funding Utah Access to Justice Foundation. vice or a specific amount of monetary for legal services and pro bono par- contribution. In fact, there is no require- ticipation." (Emphasis added.) ment that a lawyer provide pro bono On February 6, 1998, the Bar filed a forth three components: service. The proposed rule merely requires Petition with the Supreme Court to amend a. It makes clear that the professional that all active lawyers report the hours or Rule 6.1 of the Rules of Professional Con- . responsibility of providing pro contributions they have provided during .duct. The Petition outlines the history of bono services is aspirationaI and the past year. No more detail than the num- the Task Force, its recommendations and not mandatory; ber of hòurs or the amount of contribution the purpose and justification for amending b. It provides guidelines for what may is necessary. It is simple and easy and it is the .rule. The proposed amendment retains constitute pro bono service, rather the right thing to do. the principal, element of the present rule: than defining pro bono service, rec- This is not an untried proposal. Signifi- "A lawyer should render public interest ognizing that all pro bono service is cantly, the Florida Bar and the Florida , legal service." The proposed rule then sets valuable; and Supreme Court adopted in 1994 a similar

12 Va/.ll No.3 +c r

rule requiring annual reporting of pro bono be used to develop broader community service and, despite considerable opposi- and. governmental support for access tion to mandatory reporting, Florida has to justice." (Final Report of the Utah CORPORATION KITS FOR witnessed more than an 33% increase in Access to Justice Task Force.) the number of volunteer attorneys, more Voluntary reporting ends up being incom- UTAH COMPlE OUT than 18% increase in legal service hours, plete reporting. We need everyone to report. and more than 60% increase in monetary Required reporting wil enhance the Bar's $56.95 Prepnnted By-Laws. Minutes & Resolutions, pnnted stock contributions. ability to provide access to justice. It wil cercates w/l\ii page stubs, trfer ledger. embossing sea "The information obtained through provide a means of measuring pro bono ser- w/pouch, binder & slipcase, index tabs & ta fonns for ErN & S coipration. mandatory reporting would be used vice in an easy and equitable way. It wil So Kit wlSO -- bid bon p_ (li By.Lo et. pk 553.9S to provide the public with concrete support our call for support and resources Kit w/o se $44.95 statistics about the voluntary effort of from those outside the profession. It is the $5.00 additiona S & H per kit (uS ground) the Bar. It wil serve as a means to right thing to do, it is a good thing to do. recruit additional attorneys wiling to I know of no profession that is more gen- volunteer their services to meet the erous in providing service than ours. It is an needs of the poor, to commend com- honor to be a lawyer. We need not fear doing munities and lawyers for outstanding that which is good. We ought not reject good efforts, and to better evaluate the faith efforts to improve our ability to do extent of unmet legal needs. It wil good. remind lawyers of their special To those who question or criticize this responsibility to provide pro bono proposal, I urge you to read the proposed service, and it wil assist the Bar and rule and the petition to adopt it, and I invite the Utah Supreme Court in evaluat- you to call or write me with your concerns. ing the effectiveness of pro bono While it may require some sacrifice and we services provided by Bar members. may disagree upon the approach or methods, Finally, the information wil demon- we must always remember that we are all OTHER PRODUCTS strate lawyers' commitment to access engaged in the effort to do good. We ought . NON-PROFIT OUTIT $59.95 to justice. This commitment can then not be weary in well doing. . LID. LIABILIT CO. OUTIT $59.95 . LID. PARTNERSHIP OUTIT $59.95 . FAM. LID. PART. OUTIT $59.95 . SEAL WIPOUCH (CORP, N01 $25.00 . STCK CERTSISlS (20) $25.00

PRIVATE CAR MAAGEMENT .::::. AVAILABLE ON DISK 529.95 Medical Insurance \: ...,::::;:, PC WORD PERFECT 5,6,7 & 8 & GUARIANSHIPS . :,#W:. ($1.0 S & H)

· Assess & Manage Needs of ARTICL PLUS BY.lAWS. MI & REOLimONS PACK- AGE FOR CORPORATIONS; Older/Demented Adults Sponsored by OPER1lG AGRE FOR I. UAIL COMPANS (Born MEER & MAAGER MAAGED); · Competency Evaluations SIMLE WI FORM & FAX ORDER FORM

· Expert Witness Testimony ASK ABOUT The Utah State Bar WILL & TRUST STATIONERY · Medical Record Review ... · Guardianship Services INDEX TABS & CLOSING SETS Blue Cross & Blue Shield or IHC ... REGISTERED AGENCY SERVICES Lois M. Brandriet, Phd, RN,CS FOR MONTANA Nurse Gerontologist The Insurance ORDER TOLL FREE! (801) 756-2800 PHONE 1-800-874-6570 Exchange FAX 1-800-874-6568 (800) 600-1385 E-MAIL corpkit~digisys.net (80l) 756-6262 (fax) ORDERS IN BY 2:00 PM MT SHIPPED SAME DAY. eldercare (ßitsnet. com Utah State Bar LAW FIRMS: WE WILL BILL YOU wrr YOUR ORDER. http://ww.itsnet.cOlnl- eldercare SATISFACTON GUARANTED !l! Serving Salt Lake City & Surrounding Areas Managing Agency CORP-KIT NORTHWEST, INC. 355-5900 SLC or 413 EAST SECOND SOUTH rie BRIGHAM CITY, UT 84302 ei~. y.. ns.. u'. L t T (800) 654-9032

April 1998 13 ..

Balancing Family Life with the Practice of Law

by Mark L. Fishbein

Reprinted with permission from the Ari- MARK L. FISHBEIN is the senior partner new client referrals. You wil be pleasantly zona Attorney. Copyright State Bar of of Jacob & Fishbein, representing family surprised by the support your clients will Arizona, 1998. and small-business interests in the areas give you for such a new and refreshing Recently I was in a meeting with five of tax, corporate and estate planning atmosphere in your law office. clients who were directors and principals matters. He now serves the legal profes- 4. Allow casual dress days for offce staff. sion as Chairperson of the Arizona State of a major computer software company Whenever we have a light client-calen- Bar Membership Assistance Committee. when I noticed my staff members looking dar day, or on days before holidays, we in through the glass doors and laughing. often decide as a group to have a casual I didn't understand what they were dress day. Appropriate but casual dress is laughing about until I looked down into my aIlow all of us to share in the beautiful expe- not offensive to clients, and the staff really arms and realized that I was standing in rience of newborn children, we modified one enjoy~ the break from suits and ties, skirts front of my clients with my six-month-old office (with privacy) into a nursery. We and dresses. I am always amazed at how son in my arms! placed two baby rockers, a changing table productive we are as a group when we are You may think that this scene is unusual and a comfortable chair in the room so that comfortable in our surroundings, including for a law offce, if not impossible. After all, the women of our law firm family could clothing. Of course, we need to maintain a clients have certain expectations of how nurse their newborns when necessary. This reasonable standard of dress code and their lawyer should appear and act. Not so all owed for a more consistent and productive choice of days to be "casual". However, we at our law firm. It does not have to be all or work environment. We all chipped in and have received only positive feedback for nothing. There are alternative choices assisted in the chores of a newborn. Yes, this policy. As a side note, I personaIly find between family and the practice of law. even I changed diapers! Our new mothers it extremely rewarding that I invested in Certainly, the practice of law is demand- were able to work productive days. AIl the purchasing nice polo shirts with our law ing requiring long, grueling hours and staff and clients appreciated this. firm name and logo embroidered on each stressful situations. But you need not com- 2. Always welcome the children of your shirt. Most of our staff members wear our promise your family life. In fact, offce staff and clients with a friendly and law firm shirts on these casual days. This maintaining strong family support and con- comfortable atmosphere. illustrates the loyalty of our staff and tact with your loved ones has helped us We always keep coloring books and reflects the teamwork atmosphere of our become more efficient, capable and com- markers in the waiting area for children to office. Clients reaIly appreciate this. They petent attorneys. play with and occupy their time while their feel they are part of a winning team. This This is not a dream, but a very real situ- parents (staff or clients) are involved with type of attitude makes clients want to come ation in our law office, and one that is legal matters. We strongly recommend that back. Most people hate seeing their attor- possible for all attorneys, with just simple you use washable markers to keep repainting neys, possibly worse than having a root adjustments in your state of mind, seIf- costs to a minimum! We even have a televi- canal at the dentist! From the feedback we confidence and faith in your practice. We sion and videocassette recorder in the receive from our clients, this is not the case have found that our clients appreciate our conference room. at our law offce. work efforts and will remain clients 3. Explain your priorities to your clients 5. Don't allow those late. night hours to because of our abilities and accomplish- and have confidence in your reputation take time away from the family. ments. In addition, our clients have and abilties. I often hear advice from friends to expressed their admiration and support for This was extremely difficult for me per- spend as much time as possible with my our family priorities! sonaIly to accept. But after explaining to my family now because the children grow up Here are some examples of our office clients exactly what our priorities were, bal- so fast. It is so important for the family, as policies and procedures which we strongly ancing family needs with the demands of well as for my own mental well-being, to recommend as guidelines for successfuIly our legal practice, and after proving to our spend some quality time each day with the merging family life with the practice of law: clients that we were always capable of pro- family. But, there are days that we are 1. Integrate the family into the practice. viding the same high standards of legal required to work later than 6 p.m. We have Last year, my wife and two staff persons work, our clients gained respect, loyalty and an office policy that when we are required in my office were either pregnant or had support for our efforts. We have received to work overtime, we wil get together as a spouses who were pregnant. In an effort to praise for our efforts and even numerous group and pick the most convenient day of

14 Vol. 11 NO.3 ~ the week (if possible) to put in those extra tion each year to another person's home. their jobs. I try to allow my staff the hours to get an emergency project com- These gatherings build unity and strong "space" they need to "do their thing." I pIeted. Then we will leave the office that working relationships that help us all give each staff person the right to balance day at 6 p.m. as usual, go home, have din- through the stressful, long hours we endure their work responsibilities with their per- ner and spend some quality time with the in our practice. sonal needs. This results in a happier, more family, then return to the office at 9 p.m. 7. Allow for summer "short days." efficient and better work environment. and work to midnight. This may sound Our office as a group will choose one Fri- I hope this article may help some of you impractical, but it really works. We are day each month during the months of June, balance your personal life with the practice more effective and refreshed, having spent July and August in which we close the office of law. Hopefully, you will then find more time with the family. We very often can get early (2 p.m.) to allow all of us to enjoy enjoyment and fulfillment, not only in your the work done quicker because of this. If some extra quality time over the weekend. It family lives, but also in your legal practice. we are a little tired the next morning, it is amazing how valuable this is. It almost was well worth it because we were able to makes for a long weekend, and everyone get the emergency project completed with- returns Monday morning a little more out losing time with the family. At first I refreshed and efficient in their work. This did not believe this policy would work, but policy pays huge dividends to adding to a I strongly recommend that parent/attor- better practice of law in our office, and the neys, especially single parent/attorneys, try output does not suffer, it actually increases! this approach. For me, spending time with One caveat though: we don't allow anyone my wife and children each day is critical to to leave early unless we all can leave early balancing my life and defining my success. as a group. Therefore, we all pitch in and 6. Schedule annual offce events. assist those with more work on their desks. July 4th parties, Christmas hayrides and 8. Have confidence in your staff's abilties year-end parties allow all staff, family and and dedication to their job responsibilties. friends to spend relaxed off-hours together This was difficult for me at first, but now enjoying each others company. Keep the I realize that most people are loyal and com- tradition going, possibly rotating the Ioca- mitted to doing the very best they can in

GOVERNOR MICHAEL O. LEAVITT

wi speak on KEEPING NUCLEAR WASTE

OUT OF UTAH

at a luncheon sponsored by SALT LAKE CHAPTER J. REUBEN CLARK LAW SOCIEl

DATE: Tuesday, April 21, 1998 TIME: l2 Noon PLACE: Joseph Smith Memorial Building 15 East South Temple, Salt Lake City

Lunch reservation, $15, includes one hour of CLE credit. RSVP to John Creer's secretary, Janet Bates, 359-1674.

. April/998 15 --

The Conundrum of Gifted, Inherited and Premarital Property in Divorce

by David S. Dolowitz

consumed or its identity lost through On AugustSupreme 16, Court 1988, issued the its opinionUtah commingling or exchanges or where in Mortensen v. Mortensen, 760 P.2d 304 the acquiring spouse has made a gift (Utah 1988), apparently to serve as the of an interest therein to the other seminal opinion in resolving conflcting spouse. Cf Jesperson v. Jesperson, decisions regarding award of gifted, inher- 610 P.2d 326 (Utah 1980). An excep- ited and premarital property in a divorce tion to this rule would be where part proceeding. Justice Howe, speaking for the or all of the gift or inheritance is majority, reviewed virtually all prior Utah awarded to the nondonee or non heir Supreme Court decisions on this subject spouse in lieu of alimony as was and, after observing that these decisions done in Weaver v. Weaver, supra. The were inconsistent, declared: remaining property should be (The decisions) can be reconciled divided equitably between the parties because of the effort made by the as in other divorce cases, but not nec- nondonee or nonheir spouse to pre- essarily with strict mathematical serve or augment the asset, Dubois v. equality. Teece v. Teece, 715 P.2d 106 Dubois, supra, or because of the lack (Utah 1986). However, in making of such effort, Burke v. Burke, supra. DAVID S. DOLOWITZ is a Fellow of the that division, the donee or heir Also, in Weaver v. Weaver, supra, the American Academy of Matrimonial spouse should not lose the benefit of award to the wife of part of the assets Lawyers, President of the Mountain his or her gift or inheritance by the given to the husband during the mar- States Chapter of the American Academy trial court's automatically or arbitrar- riage by his family was in lieu of of Matrimonial Lawyers, Fellow of the ily awarding the other spouse an alimony and attorney fees. Signifi- International Academy of Matrimonial equal amount of the remaining prop- cantly, no case has been found where Lawyers and past President and member erty which was acquired by their this Court has reversed a trial court's of the Executive Committee of the Family joint effort to offset the gifts or disposition of gifts or inherited prop- Law Section of the Utah State Bar. He inheritance. Any significant disparity was named Lawyer of the Year, 1988- erty received by one party during the 1989 by the Family Law Section. Mr. in the division of the remaining prop- marriage. In almost every case, we Dolowitz is Chairman of the Utah erty should be based on an equitable have emphasized the wide discretion Supreme Court Advisory Committee for rationale other than on the sole fact trial courts have in property division Juvenile Court Rules of Procedure. He that one spouse is awarded his or her and have refrained from laying down has published numerous articles in The gifts or inheritance. The fact that one any general rules for the disposition Utah Bar Journal and Fair$hare. spouse has inherited or donated of gifts and inherited property. property, particularly if it is income- 760 P.2d at 306-07. Then, after reviewing producing, may properly be decisions from other jurisdictions, the inheritance during the marriage (or considered as eliminating or reduc- Court articulated what was to be the property acquired in exchange thereof) ing the need for alimony by that prospective rule in Utah: to that spouse, together with any spouse or as a source of income for We conclude that in Utah, trial courts appreciation or enhancement of its the payment of child support or making 'equitable' property division value, unless (l) the other spouse has alimony (where awarded) by that pursuant to section 30-3-5 should, in by his or her efforts or expense con- spouse. Such property might also be accordance with the rule prevailing tributed to the enhancement, utilized to provide housing for minor in most other jurisdictions and with maintenance, or protection of that children or utilized in other extraor- the division made in many of our property, thereby acquiring an equi- dinary situations where equity so own cases, generally award property table interest in it, Dubois v. Dubois, demands. These rules will preserve acquired by one spouse by gift and supra, or (2) the property has been and give effect to the right that mar-

16 Vol. II NO.3 ". i

ried persons have always had in this the court promptly proceeded to violate this fully in accord with precedent, e.g., Pope v. state to separately own and enjoy articulated rule, application of which would Pope, 589 P.2d 752, 753 (Utah 1978), Kerr property. It also accords with the have excluded the stock from the marital v. Kerr, 610 P.2d i 380, i 382-1383 (Utah normal intent of donors or deceased estate and any adjusting property award 1980) and Henderson v. Henderson, 576 persons that their gifts and inheri- because the stock belonged to Mr. P.2d 1289, 1290 (Utah 1978), but the fail- tances should be kept within their Mortensen. The court based its decisions on ure of the Court to describe why the just family and succession should not be the equitable factors that the parties had articulated rule was not being applied con- diverted because of divorce. married at a young age, that the defendant tinued the confusion the decision was to 760 P.2d at 308-09. had continued his education and obtained a end. Had the Court gone on to explain why In concurring with this general rule, Ph.D., taught and was teaching at a private it was not applying the just articulated Justice Zimmerman, speaking for himself university while the plaintiff, after the last of principle and the exception being utilized and Justice Durham, stated: their four children was born, went back to rather than presuming that everyone would As I read the majority opinion, the school and obtained a bachelors degree and understand it, the rule could have been rules articulated today require only teaching certificate, that the defendant was established and applied, not ignored. The that in the usual case not fitting earning approximately twice what the plain- governing principle articulated by Justice within one of the exceptions spelled tiff earned each month, yet agreed to the Howe for the Court could have been out by Justice Howe, property receipt of no alimony and child support for applied in the fashion that Justices Zim- acquired by one spouse during the the three minor children in her custody and merman and Durham anticipated. However, marriage through gift or inheritance that while there was no evidence in the rather than either explaining or articulating should be awarded to that spouse record regarding the retirement benefits to why the Court varied from its just articu- upon divorce. I take this to be noth- which the parties may have become entitled, lated rule, it simply made the declaration ing more than a variation on the the Court thought the defendant's benefits quoted above. 760 P.2d at 309. By doing analogous rule applicable to property would have been greater because of his so, the Court in reality turned back to its brought into the marriage by one higher salary and longer years of employ- prior decision of one year earlier, Burke v. party: in the usual case, that property ment. The Court ruled: Burke, 733 P.2d 133 (Utah 1987). is returned to that party at divorce, In Burke, the Court ruled that any absent exigent circumstances. Pre- appreciation during the marriage of the ston v Preston, 646 P.2d 705, 706 value of the property which the wife had inherited did not become part of the mari- (Utah 1982). "The stock thereafter was awarded 760 P.2d at 310. tal estate in which the husband was entitled Factually, Mr. Mortensen's parents had to the defendant and Mrs. Mortensen to share based upon equitable principles. organized a corporation and conveyed the was awarded about two-thirds of the The specific facts in Burke were that three- family farm to it. They gave 50% of the value of the remaining property. and-a-half acres of unimproved land were stock to themselves and divided 50% This was done by stipulation inherited by the wife in 1979. No improve- among their five children, one of whom ments were made on the property and the was Mr. Mortensen. A stock certificate, reserving the issue presented to the parties did nothing to enhance its value. At bearing his name alone, was issued to him Supreme Court in the appeal as to the time of its inheritance, the land had a for 10% of the outstanding shares. Mrs. whether or not the stock should have value of $5,000.00. By the time of the Mortensen was not involved with the cor- been considered marital property divorce, it had appreciated to $35,000.00 poration except for some minor secretarial an acre due solely to inflation in real estate duties. The issue that came before the trial or outside the marital estate." values in the area. Dealing with the spe- court was whether that gifted stock was cific issue we are now examining, the part of the marital estate. The trial court Supreme Court explained: ruled that the stock was property of the Defendant first contends that while it marriage and should be taken into consid- In view of these factors, it would not was proper for the court to preserve eration in dividing the marital property. have been inequitable for the trial the plaintiff's ownership of the prop- The stock thereafter was awarded to the court to award plaintiff two-thirds of the erty she inherited, any appreciation defendant and Mrs. Mortensen was remaining property and defendant one- in its value during the marriage awarded about two-thirds of the value of third, giving no weight at all to the fact became a part of the marital estate in the remaining property. This was done by that he received his shares of stock. which he is entitled to share. The stipulation reserving the issue presented to 760 P.2d at 309. Thus, while the Supreme version of the statute governing the the Supreme Court in the appeal as to Court had articulated a seminal rule, it did disposition of property at the time of whether or not the stock should have been not apply the rule just articulated to the facts the divorce decree was couched in considered marital property or outside the before it nor did it explain that it was apply- broad general terms without limita- marital estate. ing the articulated rule yet accepting the tion: (lEnglert v. Englert,576 P.2d After making the clear articulation of decision of the trial court. 1274, 1276 (Utah 1978)) when the the rule governing an award of gifted, pre- The Mortensen ruling affirming an decree was entered, U.C.A., 1953, marital or inherited property quoted above, unequal distribution of marital property was §30-3-5(l) (2d Rep!. VoL. 3, 1976

April/998 17 .I ed., Supp. 1983) (amended 1984 & tances may be viewed as separate applied to differentiate it from Burke, the 1985) provided that "when a decree property, and in appropriate circum- actual results demonstrated that there are of divorce is made, the court may stances, equity wil require that each two rules in existence in Utah, the Burke make such orders in relation to the. . . party retain the separate property rule, which is an equitable division rule, property. . . of the parties. . . as may brought to the marriage. (4preston v. and the Mortensen rule, which provides be equitable." This Court has fol- Preston, 646 P.2d 705, 706 (Utah that gifted, inherited and premarital prop- lowed that statutory mandate on 1982)) However, the rule is not invari- erty return to the donee, legatee or numerous occasions and has consis- able. (5Workman, 652 P.2d at 933) In premarital owner including appreciation in tently concluded that it conferred fashioning an equitable property divi- value unless one of the exceptions applies. i L broad discretion upon trial courts in sion, trial courts need consider all of As wil become apparent in examination the division of property, regardless of the pertinent circumstances. (6Englert, of the decisions of the Utah Court of its source or time of acquisition. 576 P.2d at 1276) The factors gener- Appeals after the Mortensen ruling, the (2Englert, 576 P.2d at 1275-76 ally to be considered are the amount Utah courts have continued to apply Burke (retirement benefits); Searle v. and kind of property to be divided; and, with two exceptions, follow Searle, 522 P.2d 697, 700 (Utah whether the property was acquired Mortensen only in name. In taking this 1974) (marital and premarital realty before or during the marriage; the action, without articulating what is tran- and personalty); Weaver v. Weaver, source of the property; the health of spiring, the Utah Court of Appeals follows 21 Utah 2d 166, 168, 442 P.2d 928, the parties; the parties' standard of liv- and applies Burke and ignores Mortensen. 929 (1968) (stock acquired by pur- ing, respective financial conditions, Thus, the practitioner who is confronted chase and gift); see Savage v. needs and earning capacity; the dura- with a case which should be governed by Savage, 658 P.2d 1201, 1203 (Utah tion of the marriage; the children of Mortensen, frequently finds himself/herself 1983) (premarital stock interests in the marriage; the parties' ages at time telling a client Mortensen exists, present- family corporation); Workman v. of marriage and divorce; what the par- ing the client with the Mortensen rule, only Workman, 652 P.2d 931, 933 (Utah ties gave up by the marriage; and the to be confronted in court by decisions fol- 1982) (assuming premarital gift of necessary relationship the property lowing Burke. For whatever reason, the realty); Bushell v. Bushell, 649 P.2d division has with the amount of Utah Supreme Court has not granted cer- 85, 87 (Utah 1982) (premarital farm alimony and child support to be tiorari to advise the Court of Appeals and land); Jesperson v. Jesperson, 610 awarded. (7Searle, 522 P.2d at 698; the trial courts, let alone the practitioners P.2d 326, 328-29 (Utah 1980) (pre- MacDonald v. MacDonald, 120 Utah in Utah who are trying to advise their marital personalty); Dubois v. 573, 581-82, 236 P.2d 1066, 1070 clients, which rule is to be applied, Burke Dubois, 29 Utah 2d 75, 76-77, 504 (1951); Pinion v. Pinion, 92 Utah 255, or Mortensen. This has led to conflcting P.2d 1380, 1381 (1973) (monetary 259-60, 67 P.2d 265, 267 (1937)) Of decisions and a general miasma which gifts from wife's relatives)). particular concern in a case such as makes it very difficult to resolve cases In the exercise of their discretion, this is whether one spouse has made without trying and appealing them if a set- trial courts need be guided by the any contribution toward the growth of tlement cannot be reached. general purpose to be achieved by a the separate assets of the other spouse While the Supreme Court apparently property division, which is to allo- ("See Dubois, 29 Utah 2d at 76, 504 felt that its articulation of these rules cate the property in a manner which P.2d at 1381) and whether the assets should govern the division of premarital, best serves the needs of the parties were accumulated or enhanced by the gifted and inherited property, the Court of and best permits them to pursue their joint efforts of the parties. (9preston, Appeals has had numerous opportunities to separate lives. ('Read v. Read, 594 646 P.2d at 706; Jesperson, 610 P.2d at review trial court decisions which seem P.2d 871, 872 (Utah 1979)). 328; see Bushell, 649 P.2d at 86-87) just as conflicting as those the Supreme 733 P.2d at 134-35. After articulating these 733 P.2d at 135. After completing this dis- Court reviewed in Burke and Mortensen. It general principles and discussing the cases cussion, the Utah Supreme Court in Burke has continued to effect conflcting rulings. effecting these general equitable principles, concluded that the trial court did not abuse The one principle that does seem to arise the Court declared the generalized ruling its discretion in awarding the appreciation in from application of Mortensen by the Utah set out below. It should be noted that the the inherited property solely to Mrs. Burke. Court of Appeals is that when the courts cases discussed by the Court in footnote 2, In examining the two decisions, Burke find it equitable, Mortensen is applied. inserted at the end of the first full para- and Mortensen, as thus set out, it appears When they find it equitable to do otherwise, graph quoted above, are the same cases that the Utah Supreme Court attempted to Burke is utilized. This presents a conun- which were discussed by the Utah state a hard and fast rule in Mortensen to drum for both counsel trying to advise Supreme Court, speaking through Justice differentiate it from Burke. The actual ruling clients and trial courts hearing cases. Howe in the Mortensen decision, which in Mortensen could simply have been In a sense, it is that much more disap- included the Burke decision itself. In con- effected by applying the Burke test to the pointing that the Mortensen court did not trast to the apparent seminal rule decision of the trial court. By not applying adhere to its own newly established rule articulated in Mortensen, the Court in the rule articulated in Mortensen to the facts (which could have ended the confusion), Burke stated: of that case or articulating precisely how the when one considers the prologue delivered Premarital property, gifts and inheri- rule so carefully enunciated was to be by Justice Howe. This prologue recognized

18 Vol. 11 NO.3 that equity and discretion should not take deviations from the general rule. Instead, the from funds earned during the marriage the place of consistency and predictability: Osguthorpe Court, like many Court of which would be, in most cases, marital UCA Sec. 30-3-5 tersely provides Appeals decisions to foIIow, seems to estab- funds, increases the equity by decreasing "When a decree of divorce is ren- lish a hybrid rule unintended by the the debt. There is, however, a second com- dered, the court may include in it Mortensen Court. This hybrid appears to add ponent to the increase in value, that is the equitable orders relating to . . . prop- a third exception to Mortensen, derived from increase in market value that occurs either erty . . . ." (In Weaver, we rejected Burke, which allows for deviation from the from inflation or increased market demand. that a gift should be kept separate basic rules if equitable principles so require. Neither the trial court nor the appellate from marital estate.) . . . We did so This hybrid rule aIIows Courts ostensibly to court paid any attention to this difference, without any analysis of the issue and follow UCA 30-3-5, Burke and Mortensen yet it is a problem that exists in virtually based our decision on the oft- all at once. However, this approach sacri- every case where this issue is presented. repeated rule that under section fices the predictability intended by An additional real economic considera- 30-3-5, there is no fixed rule or for- Mortensen. As noted below, some decisions tion that is ignored by the Court in Moon is mula for the division of property, the have ignored Mortensen entirely. that if Mr. Moon had invested the money trial court has wide discretion in value of his land by simply placing it in a property division, and its judgment bank account or buying stock or bonds, he will not be disturbed on appeal would have earned interest and possible unless an abuse of discretion can be appreciation in the value of his principaL. "Consequently, even an asset that demonstrated. While the value of the premarital gift was Mortensen, 760 P.2d at 305-06. Despite is left completely alone is to returned to him, no interest on his money or this clear pronouncement, the Court never- some extent maintained by both increase in the land value was attributed or theless accepted the application of parties during the marriage in the awarded to him. The Mortensen language equitable principles to adjust the distribu- regarding appreciation should, logically, tion of property. It is therefore unsurprising overwhelming majority of cases." when applied to this situation, result in at that many later Court of Appeals cases stiII least an award of attributed interest and/or use the very same logic questioned above increase in value of the original gift to him, to justify an award of separate property as a concept never discussed by any court in an "equitable" distribution. This assures In the second case, Moon v. Moon, 790 any of the decisions dealing with premari- that predictability will receive little weight P.2d 52 (Utah App. 1990), the Court of tal, gifted or inherited property. in distribution proceedings, while prolifer- Appeals affirmed a trial court's division of Analyzing this issue and turning back to ating the very instability Mortensen said the equity in a marital home after return to the facts of the Burke case, there is no would be erased. the husband of the value of land gifted to question that taxes were paid on the raw In the first decision after Mortensen, the him prior to marriage. While the husband land during the time it was held by the par- Utah Court of Appeals ruled in Osguthorpe built the home on land gifted to him prior to ties after it was inherited by Mrs. Burke. v. Osguthorpe, 804 P.2d 530 (Utah App. marriage, the court found that the loan Neither the trial court nor the appellate 1990), that while Mortensen applied gener- incurred to build the home was paid off dur- court, so far as one can teII from the deci- ally, the evidence justified the trial court's ing the marriage. Thus, the increase in value sion, confronted, discussed or dealt at all finding that the gift was not to one spouse, beyond the value of the gifted land was ruled with the problem that presented. Marital but to both spouses. Consequently, the maritaL. The Court of Appeals did not dis- funds were used to pay those taxes, yet it determination not to award the gifted prop- cuss application of Mortensen in its ruling. It was presumed that neither party d~d any- erty to the alleged donee spouse (even turned to the decisions of Noble v. Noble, thing to develop the land. Had the taxes not though his father testified that the gift was 76 i P.2d i 369 (1988), published shortly been paid, a tax sale would have resulted. only to his son) was affirmed. In this before Mortensen, and Burke v. Burke, 733 Consequently, even an asset that is left respect, Mortensen, though stated to be the P.2d 133 (Utah 1987), as authority for completely alone is to some extent main- general rule, was ruled inapplicable. affirming the trial court. The theoretical tained by both parties during the marriage Indeed, the Osguthorpe Court never guidance of Mortensen that the appreciation in the overwhelming majority of cases. By reaIIy gave Mortensen a chance. Though the of the value in premarital or gifted property ignoring the difference in valuation cate- basic rule set out in Mortensen is stated, should be awarded to the donee was ignored gories, that is payment of debt and/or the Court immediately qualified the rule: and the practical problems which must be payment of taxes as contrasted with However, in making equitable orders addressed by counsel and the trial courts increase in value which comes either from pursuant to section 30-3-5, the court were glossed over. inflation or appreciation because of market has consistently concluded that the There are two aspects to a potential forces, the confusion in rule application trial court is given broad discretion increase in the value in premarital, gifted or has been magnified. in dividing property, regardless of its inherited property. The first arises from an In Burke, the Utah Supreme Court source or time of acquisition. increase in equity due to the payment during upheld the award to the wife of apprecia- 804 P.2d at 535, citing Burke. This is not the man-iage of any obligation on the prop- tion in inherited property, ruling that it did the rule of Mortensen, nor does it fit either erty, such as a mortgage. Each dollar of the not become part of the marital estate in of the exceptions Mortensen allowed for mortgage which is paid during the marriage which the husband was entitled to share,

April 1998 19 ~ " i !

which would, on its face, have been third, unwritten exception to the treatment of rule articulated by Mortensen, 799 P.2d at directly contrary to the ruling in Moon. Mr. marital property, and citing Burke for such 1169, then went on to reject Mr. Burt's Moon completed building the house before exception. challenge to the determination that the the marriage. It was the loan he incurred to On October 12, 1990, the Utah Court of funds which were inherited by Mrs. Burt build it that was paid during the marriage. Appeals published its decision in Burt v. should be awarded to her. He asserted Noble permitted the award of premarital Burt, 799 P.2d 1166 (Utah App. 1990). This because they had changed form, that is, property to a spouse based upon physical is the case that the Utah Court of Appeals they were received as cash, then invested in disabilities inflcted on the wife during the thereafter cites and most often applies in stocks, bonds and real estate, they became marriage by the marriage partner who subsequent decisions when reviewing trial maritaL. The Court ruled that moving the owned the property prior to the marriage. court decisions regarding gifted, inherited funds from one investment to another does No factor of this sort was present in Moon. and premarital property. not, by itself, destroy the integrity of the The Court of Appeals in Moon related that separate property. The Court of Appeals i the general purpose of property distribution held that one who receives a gift or an I i is "to enable the former spouses to pursue inheritance or who brings property into a their separate lives as well as possible." "The Court did rule the findings marriage does not have to maintain the 790 P.2d at 56, citing Burke and ignoring property in the form in which it was Mortensen as well as the economic realities entered by the trial court did not received or held, it can be converted or of the case. Thus the equitable principles provide a basis for the award of the changed as long as its separate identity is articulated in Burke, not the rule with total equity of the parties in their maintained and none of the other excep- exceptions announced in Mortensen, were the marital home to Mr. Burt. Declaring tions to application of Mortensen occur. If standards utilized by the Court of Appeals this is effected, a return to the donee is in the first real post-Mortensen decision. that such an award could be appro- appropriate. 799 P.2d at 1169. Two months later, Barber v. Barber, priate if supported by proper find- The Court of Appeals went on to 792 P.2d 134 (Utah App. 1990), was ings, the Court found the existing declare that Mr. Burt could have been released. Prior to marriage, Mr. Barber and awarded a portion of Mrs. Burt's aug- his children moved into Mrs. Barber's findings inadequate." mented inheritance under any of the home and he made a series of improve- Mortensen exceptions, 799 P.2d at 1169, ments in the property. He also purchased then affirmed the trial court's declining to furniture which was used to replace furni- do so. The Court did rule the findings ture owned by Mrs. Barber. The Utah The Burts were married in 1946. Between entered by the trial court did not provide a Court of Appeals, affirming the trial court, 1969 and 1972, Mrs. Burt received a total of basis for the award of the total equity of ruled that the improvements in the home, $71 ,600.00 by inheritance. Over the years the parties in their marital home to Mr. rather than being accumulated property of she made various investments and increased Burt. Declaring that such an award could unmarried cohabitants, was in fact marital her holdings so they had a value of be appropriate if supported by proper find- property and it was divided. The same $174,600.00 at the time of triaL. Mr. Burt ings, the Court found the existing findings treatment was accorded the furniture. No had also inherited some property. The trial inadequate. Accordingly, it vacated the discussion of the application of Mortensen court awarded each of them their respective decision and remanded the matter for fur- to the facts or law in Barber was made, inherited properties, then awarded Mr. Burt ther findings without indicating what rule though Mortensen was cited as authority the marital home which effected an unequal should be applied to the disposition of that for affirming the trial court's determination division.of the marital property and Mrs. particular property. 799 P.2d at 1169- ~O. that it was appropriate to value and divide Burt appealed. In analyzing the facts, the The Burt decision is the most thorough Mr. Barber's improvements in the house. Utah Court of Appeals noted that apparently examination of the economic problem pre- (See footnote 4, 792 P.2d at 136). There is the trial court had rationalized that Mrs. Burt sented in these cases. Separate, inherited or no discussion of the application of had been able to amass her property through gifted property can be maintained as sepa- Mortensen to the facts or law in Barber. In investment of her inherited funds only rate property generally, only if marital fact, the Barber Court cites Mortensen for because Mr. Burt paid the mortgage and income is used to support the parties and a proposition of law almost entirely anti- family living expenses from his income, the separate property. Taxes have to be paid thetical to the actual holding, stating "it is even though both parties worked. The Court on income as well as real estate if owner- well settled that premarital or separate reasoned that had they not used these marital ship is to be maintained. This is equally property may, under appropriate circum- earnings for their living expenses, Mrs. Burt true of securities when income is rein- stances, be subject to equitable division could not have accumulated her separate vested. Assuming that the parties can bring upon divorce." 792 P.2d at 136, n. 4. The fund. i Consequently, the Court concluded before the court appropriate accounting Court then affirmed the trial court's deter- that while Mrs. Burt was given all that she evidence to demonstrate how the separate mination that it was appropriate to value had accumulated, Mr. Burt, .in being property was maintained as separate prop- and divide Mr. Barber's improvements in awarded the marital home, was, in effect, erty, appropriate adjustments should seem the house. Once again, the Court of awarded a portion of Mrs. Burt's marital to include awarding some or all of the Appeals cited Mortensen to apply a hybrid funds and a portion of her inherited funds. appreciation in value and/or interest on the rule, utilizing equitable principles as a The Court of Appeals recited the general original property if it is included in the 20 Vol. II NO.3 . property to be divided to the person who dard of predictability. Therefore, another the determination of whether separate owned it or inherited it or to whom it was chance for establishing predictability was property should be divided between the gifted and a return of taxes or interest paid lost, assuring years of future confusion and parties. Equity only applies to the "hotchpot" should be made to the marital estate. "equitable excuses." of marital property already itemized. This None of these factors were specificaIly The final decision in 1990 is Dunn v. is the fuIl rule of Mortensen and, as wil be addressed in the decision though (with the Dunn, 802 P.2d 1314 (Utah App. 1990). The noted at the end of this paper, the Utah exception of the taxes) they were dis- trial court had ruled that a professional cor- Supreme Court should take the opportunity cussed. Subsequent decisions refer back to poration formed by Dr. Dunn during the to clarify this ruling. Until it does, the the Burt considerations which, in reality, marriage was separate property because it hybrid application of Mortensen and Burke without mentioning it apply the Burke v. was built by his professional activities. The will continue to confuse everyone. Burke rationale, even when Mortensen is Court of Appeals reversed and ruled that the In any event, as it stands the Dunn deci- the standard purportedly utilized. professional corporation was a marital asset sion fits together with the Barber decision These concepts have been considered as it was formed during the marriage and, in defining what is marital property and by the Utah Supreme Court though they while Mrs. Dunn may not have been non-marital property. However, both of have not been recently applied. In its 1982 involved in the day-to-day activities of the these decisions should be considered as decision of Davis v. Davis, 655 P.2d 672 professional corporation, she was a partner modified by the 1991 decision of Walters v. (Utah 1982), the Court ruled that where a in the marriage and therefore, as Dr. Dunn's Walters, 812 P.2d 64 (Utah App. 1991), husband was awarded one-half of the partner in the marriage, was a partner in his where the Court of Appeals ruled that mar- equity in a property which included appre- business. 802 P.2d at 1318. The Court also ital property begins to accumulate only ciation coming from increase in value in ruled that patents created during the mar- when the parties are married. 812 P.2d at the future due to inflation, but was not riage were marital assets. 802 P.2d at 67. Consequently, property acquired prior awarded half of the increase of value that 13l8-19. The decision expanded the defini- to the marriage, even though accumulated would come from payment of the mort- tion of marital property and, if applied to the during cohabitation, cannot be treated as gage, the result was inequitable. The Court undiscussed but practical principles of pay- marital property. 812 P.2d at 68. While this ordered the decree be amended to all ow the ment of debt, payment of taxes and growth does not directly involve the application of husband to participate in one-half of the in value during marriage, provide a further Mortensen, it sets the foundation for the increase in value brought about by both method of complicating the clear articula- application of Mortensen in a case which reduction of the mortgage as weIl as the tions of Mortensen. has not faced the appeIlate courts, that of increase in market value. parties who cohabit for a period of time, Because the Court of Appeals in Burt each bringing in premarital property which discussed the concepts involved and prob- increases in value during cohabitation and lems, purportedly utilizing the Mortensen "The court may award an interest in marriage, which then should either be framework but, in reality, using the Burke the inherited property to the non-heir awarded to the person who owned it prior rationale, Mortensen and Burke have to marriage or divided as marital property. become scrambled. This emerges in subse- spouse. . . in other extraordinary Unfortunately, it would seem that the quent decisions of the Court of Appeals situations where equity so demands." promise of predictability wiIl go just as which cite Burt as authority for the deci- unfulfiled in terms of cohabitation prop- sion made. The Burt decision also emerges erty divisions as it has for the disposition as another lost chance to clearly set the of property in marital situations. Without Mortensen decision apart from Burke, Interestingly enough, however, the Dunn citing Mortensen, the Walters Court while presenting a clear example of the decision did seem to state, or came very asserted that while the general rule /aIlows hybrid formula the Court of Appeals has close to stating, the correct rule at the end of each party to retain separate property, "this established in distribution cases involving its decision. Citing Burt, the Court stated: rule is not invariable. In fashioning an separate property. As outlined above, Burt On remand the trial court should fol- equitable property division, trial courts cites Mortensen and its general rule, but low the systematic approach set forth need consider all of the pertinent circum- proceeds to deviate from this rule. The jus- in Burt. That is, the court should first stances Thus, where unique tification for such deviation is stated at 799 properly categorize the parties' prop- circumstances exist, a trial court may real- P.2d at 1169, "The court may award an erty as part of the marital estate or as locate premarital property as party of a interest in the inherited property to the the separate property of one or the property division incident to divorce." 812 non-heir spouse. . . in other extraordinary other . . . . Each party is then pre- P.2d at 67, citing Burke and Burt. Thus, situations where equity so demands." sumed to be entitled to all of his or her even in its infancy, the discussion of distri- Although Burt cites Mortensen for this separate property and fifty percent of bution of increases in property and proposition, this is reaIly the rule of Burke. the marital property. property values during cohabitation raises Therefore, like many cases before it and, 802 P.2d 1323. This is the correct statement the hybrid applications of equity and sepa- unfortunately, many cases to foIlow, the of the Mortensen rule. As long as the lower rate property. Burt Court finds a way to ostensibly foIlow court does not confuse the proper place of The next decision was published both Burke and Mortensen, preferring the equity in this decision, it wil be foIlowing approximately one year later. In April of comfort of equity to the hard-nosed stan- Mortensen. Equity should have no place in 1992, the Court of Appeals released its

April/998 21 --

decision in Hogue v. Hogue, 83 I P.2d 120 upheld. This is a ruling based on Burke prin- WiIley's home had been sold and the pro- (Utah App. 1992). Mr. and Mrs. Hogue ciples with no discussion of the application ceeds merged into other property which were married, divorced, then remarried. In of Mortensen. had been utilized by the parties in order to the time period between the two marriages, Thus, by the end of 1992, four years after support their lifestyle, Mrs. Wiley's claim Mr. Hogue acquired a ranch. Prior to their the articulation of the Mortensen decision, for return of these funds was appropriately second marriage, Mr. Hogue conveyed his the Utah Court of Appeals continued to rejected. This decision applied and fol- ownership in the ranch to Mrs. Hogue as a apply Burke to uphold a division of premari- lowed Mortensen. means of protecting the property from his tal property rather than applying the The Court of Appeals examined this creditors. Two years after their remarriage, Mortensen decision which is what the Utah problem four times in 1994. The first was Mr. Hogue went through a bankruptcy pro- Supreme Court appeared to be ruling would Bingham v. Bingham, 872 P.2d 1065 (Utah ceeding in which he claimed no interest in be required from and after that decision. App. 1994). Mr. Bingham had been given the ranch. Four years after the bankruptcy, $175,000.00 by his father. After receipt of Mrs. Hogue filed the second divorce the gift, he loaned the funds to his dairy action. The trial court determined that the corporation. He claimed that this ranch was marital property which should 'The Court of Appeals ruled that the $175,000.00 should therefore have been be divided between the parties and each awarded to him in the division of the was awarded an undivided one-half inter- trial court did not abuse its equity of the dairy. Mrs. Bingham agreed est. Mrs. Hogue appealed. The Court of discretion in making the award of an that the $175,000.00 was a gift but asserted Appeals affrmed quoting extensively from undivided half of the property to that by loaning the money to the dairy, in Burke v. Burke, 831 P.2d at 121-22, rather each of the parties. The principle which she was deemed to have an interest, than the subsequent, theoreticaIly seminal the money was effectively commingled. The decision of Mortensen and its own deci- utilized was equitable division." Court of Appeals applied the Mortensen sions of Moon v. Moon (discussed above) rule, 872 P.2d at 1068-69. The Court held and Naranjo v. Naranjo, 751 P.2d 1144 the funds retained their nature as an identi- (Utah App. 1988), a decision which pre- fiable gift of separate property, even after it ceded Mortensen. The Court of Appeals The next decisions of the Utah Court of was loaned to the corporation, and it should ruled that the trial court did not abuse its Appeals addressing this area was rendered in not have been included as part of the discretion in making the award of an undi- 1993. In Hall v. Hall, 858 P.2d 1018 (Utah dairy's equity. However, the Court went on vided half of the property to each of the App. 1993), the Court affirmed the decision to note that a portion of the loan had been parties. The principle utilized was equi- of the trial court to return the inheritance of repaid and ruled that those funds which table division. The Court did not determine Mrs. HaIl, which had been placed in to the were repaid by the dairy to Mr. Bingham whether an exception to the rule of the marital home, to her, applying Burt v. Burt, had be subtracted from the $175,000.00. return of premarital property should be its own prior decision of 1990, and the Wat- The trial court was found not to have effected as, theoreticaIly, should have been son decision, 858 P.2d 1022, but remanded effected this subtraction but other calcula- required by application of the more recent the matter to the trial court, finding that the tion errors were ruled to negate this error Mortensen decision. trial court had either improperly computed and the bottom line property distribution Four months later, the Court of Appeals the proper method of return or failed to was affrmed. The application of Mortensen affrmed the trial court's award of an auto- explain why it had used a method of return and the investment language of Burt were mobile claimed to be non-marital as well which returned more than the inheritance. properly effected in the Bingham decision as premarital property of the husband to No discussion of Mortensen exists in the though the discussion is cursory. the wife, in Watson v. Watson, 837 P.2d 1 opinion. Instead, the Court purports to fol- The second 1994 decision is Finiáyson (Utah App. 1992), based on the trial court's low Burt, stating that, although property v. Finlayson, 874 P.2d 843 (Utah App. finding of a unity of interest between Mr. may be divided into separate and marital cat- 1994). While the Court recited the princi- Watson and his solely owned corporation egories, "the court should then consider the ples of Mortensen, the evidentiary issues which permitted the court to treat the cor- existence of exceptional circumstances and, eclipsed application of the rule. The crucial poration as an alter-ego. The trial court if any be shown, proceed to effect an equi- issue became what was marital versus sep- also awarded some person premarital prop- table distribution II light of those arate property. The primary value of this erty owned by Mr. Watson (household circumstances." 858 P.2d at 1022. Thus, the decision is the importance of meeting the furniture, garden tools, washer and dryer Hall Court once again applies the wrong burden of proof in establishing that prop- and premarital contribution to a trailer) to equitable equation to the calculus of property is marital, or gifted, or inherited and Mrs. Watson citing Burke and Newmeyer v. erty division, either by ignoring Mortensen being able to trace it. Failure in this area Newmeyer, 745 P.2d 1276 (Utah 1987), a or applying an unwritten third exception. will lead to not even reaching the Utah Supreme Court decision which pre- In November of 1993, the Willey v. Mortensen versus Burke problems. ceded Mortensen, as authority to affirm the Wiley, 866 P.2d 547 (Utah App. 1993), deci- The third 1994 decision was Schaum- decision. The Court of Appeals ruled that sion was published. The exception noted in berg v. Schaumberg, 875 P.2d 598 (Utah because the ultimate division of property Mortensen v. Mortensen, that if property has App. 1994). In this case, the husband was fair and equitable, the award of pre- been consumed or its identify lost, was inherited money which he invested in a marital property to Mrs. Watson would be applied to affrm the ruling that where Mrs. business building. After the initial invest- 22 Vol. 11 No.3 . ment, he refinanced the building several on the value of the separate property as com- courts and Court of Appeals to return to a times. The issue was whether or not he was pensation for ownership prior to conversion party a clearly identified piece of property entitled to back out and have returned to of the appreciation into marital property. It that is inherited, premarital, of gifted. The him more than the amount of his inheri- would appear that should be a just result if key issue is whether it is commingled, tance. The trial court ruled the appreciation the accounting and tracing evidence can be enhanced, or there is an equitable reason of in the building was a marital asset. Appli- properly developed. some type to require its division. Although, cation of Mortensen to value appreciation The final decision in this series of deci- according to Mortensen, considerations of would appear to require the court to have sions is Cox v. Cox, 877 P.2d 1262 (Utah equity were not to be made in the distribu- awarded him all of the appreciation. How- App. 1994), which was published July 5, tion equation until after separate property ever, the court ruled that even though the 1994. While this primarily presents the issue was removed by a devisable mix, many husband used inherited funds to make the of interpretation and application of the law courts have apparently read Burke to down payment on the building, he used in regard to premarital agreements, the Utah include equity as a third exception to the marital funds to maintain and augment that Court of Appeals applied Burt through Mortensen rule, and have equitably distrib- asset. Consequently, the Court of Appeals Hogue to rule that the trial court could con- uted property, separate or not. Indeed, found no error in the trial court's determi- sider equitable principles in considering the equitable considerations may be the key nation that appreciated portions of the property to be divided. In this case, when the ingredient in a court's decision to deviate assets changed its character from separate issue was whether Mrs. Cox was to be from the guidelines of Mortensen. to marital. In this regard, the decision is awarded half interest in Mr. Cox's home or The second question is the appreciation similar to but is a step beyond the deci- simply a return to her of her funds used to in the value. The decisions are in conflict sions of Moon and Burt. In Burt, the Court remodel the home. The Court applied equi- and appear to be governed by Burke rather noted that Mrs. Burt could not have accu- table rationale to reinforce its contract ruling than Mortensen. Mortensen would appear muIated her separate funds if Mr. Burt had and the award of her money back, not half to require a gifted, inherited or premarital not supported the family. In this case, Mr. the equity in the home. 877 P.2d at 1269-70. property with its appreciation to be Schaumberg used funds that were clearly Application of Burke was used by the Court returned to the person who owned it prior marital funds for the maintenance and to anchor its ruling. to the marriage or to whom it was donated operation of the asset, thereby, the Court or by whom it was inherited, unless one of ruled, converting the appreciation into mar- the particular exceptions articulated in itaI property. This is similar to the ruling in Mortensen applied. This has generally not Moon. The Schaumberg marriage was a While equitable principles been done. long one and the inheritance placed in the As the Court of Appeals has declined to commercial property had been held for a articulated in Burke can lead to fair enforce Mortensen, it is apparently hon- substantial portion of the marriage. decisions in individual cases, it does ored only in those cases where the trial The Schaumberg decision reveals not lead to a predictable body of court has applied it. In most cases, the another aspect to the problem in applying case law, which the Supreme Court Utah Court of Appeals turns to the Burke Mortensen. The longer gifted, inherited or decision through its own decisions of Burt appeared to envision would .flow premarital property is maintained during a " and Naranjo to justify division of premari- marriage, the more difficult it is to show from its Mortensen decision. tal, gifted or inherited property. The that it is a separate property. If nothing else, problem this presents for practitioners and payment of taxes would show,~se of mari- the trial court is to determine which stan- tal funds to maintain separate property. If dard is actually to be applied in tne case marital funds are used to pay debt, such as Not directly involved, but of note on this that is being presented to the court. This a mortgage, the facts will present the use of subject, is the 1996 decision of Endrody v. problem apparently will not resolve itself marital income to pay debt and taxes. The Endrody, 914 P.2d 1166 (Utah App. 1996), until the Utah Supreme Court revisits the facts may also show use of the property where the Utah Court of Appeals ruled that Mortensen decision. This solution would which wil result in its being considered the property placed in a trust established by not require much difficulty. The Court sim- maritaL. Schaumberg clearly demonstrates Mr. Endrody's parents for his benefit during ply needs to assure the Court of Appeals the difficulty of maintaining the separate the marriage could not be considered marital that it meant what it said in Mortensen: (1) identity of real estate. While Schaumberg property or part of the marital estate. that separate property, as weI! as its involves a commercial building, a resi- The Utah Court of Appeals has shown a increased value, is to be divided from mari- dence would present the same problems. tendency to apply the Burke decision more tal property; (2) that equity will not deny As discussed above, the payment of than the Mortensen decision even though the donee or heir spouse of such property; property taxes, refinancing, maintenance, Mortensen should be viewed as controlling (3) that the resulting marital property is to remodeling, repair of a home or a rental and defining Burke. This has been true even be divided equitably; and (4) that devia- property presents the probability of com- though the Utah Supreme Court discussed tions from this rule shall only apply in the mingling. If that occurs, then a question Burke as one of the decisions that was to be case of commingling or enhancement arises not yet addressed by the Court, reconciled in the Mortensen decision. 760 through joint effort. Reaffirmance of this which is, should the donee, legatee or pre- P.2d at 306. It would appear generally that rule should assure that the hybrid applica- marital owner be entitled to at least interest Mortensen is being applied by the trial tion of Mortensen and Burke - that is, the

Al'ri/1998 23 --I

application of a third exception to the sepa- sion. Unfortunately, that decision has not rari and either moving back to Burke or rate property rule, namely general been consistently applied by the Utah Court reexamining Mortensen, it appears the principles of equity - which seems to have of Appeals. The resulting confusion has led Utah Court of Appeals, while discussing developed in the Court of Appeals will no to the inconsistent results discussed above. Mortensen, has in fact applied Burke, longer apply. Such a pronouncement would While equitable principles articulated in which has produced a lack of clarity and finally bring about the predictability Burke can lead to fair decisions in individual conflicting results in the decisions ren- Mortensen originally strived for but ulti- cases, it does not lead to a predictable body dered since Mortensen by that court. mately did not ensure. of case law, which the Supreme Court The Utah Supreme Court articulated in appeared to envision would flow from its I Unexplored was payment of income taxes. It is probable that not only was earned income used to pay living expenses, it Mortensen what should have been and was Mortensen decision. As the Supreme Court paid the income taxes (if any were incurred) on Mrs. Burt's apparently proposed to be a seminal deci- has not revisited this area by granting certio- reinvested income.

Amerian Bar Foundtio

Justice Judith M. Billings and James B. Lee Become Life Fellows of the American Bar Foundation

Judith M. Bilings, Judge for the Utah Court of Appeals and ABF Fellows State Chair James B. Lee, Parsons Behle & Latimer, both of Salt Lake City, were honored as Life Fellows of the American Bar Foundation at the Forty-second Annual Meeting of The Fellows on February l, 1998. The Chair of The Fellows, Joseph A. Woods, Jr., presented plaques to new Life Fellows at a reception in their honor at the Hermitage in Nashvile, Tennessee. Life Fellows were recognized for their generous support and strong commitment to the ideals and goals of the Foundation. The Fellows is an honorary organization of attorneys, judges and law professors whose professional, public and private careers have demonstrated outstanding dedication to the welfare of their communities and to the highest principles of the legal profession. Established in 1955, The Fellows encourage and support the research program of the American Bar Foundation. The objective of the Foundation is the improvement of the legal system through research concerning the law, the administration of justice, and the legal profession. The Fellows are limited to one third of one percent of lawyers licensed to practice in each jurisdiction.

24 Vol. 11 No.3 i i

II ..

contacted Cox son in Utah in August of justice when he failed to attend at least one 1994, and Coxson advised her that she could court hearing on their behalf. Coxson has DISBARMENT remove her daughter from Nevada and agreed to pay the clients $6,200.00, plus On February 11, 1998, the Honorable establish residency in Utah. The client 7.45 percent in interest. Guy R. Burningham, FourthiJudicial Dis- retained Coxson to file a Motion for Sepa- In August 1996, a client retained Cox son trict Court, entered a Judgment of rate Maintenance, to be followed by the to represent her in a child custody and sup- Disbarment, disbarring Richard C. Coxson filing of a divorce action after she had estab- port matter. Cox son failed to competently from the practice of law for violation of lished residency. The client paid Coxson a represent her, and failed to abide by her Rules 1. (Competence), 1.2(a) (Scope of $1,000 retainer fee. Coxson failed to compe- decisions concerning the objectives of the Representation), 1.3 (Diligence), l.4(a) tently represent the client in the Nevada representation when he failed to respond to and (b) (Communication), 1.5(a) (Fees), divorce action. Although Coxson explained interrogatories. Cox son failed to act with 1.5 (Safekeeping Property), 1.6 (Declin- to the client that he could not appear in a reasonable diligence and promptness in ing or Terminating Representation), 5.5(a) Nevada court because he was not licensed to representing the client, failed to keep her (Unauthorized Practice of Law), 8.4(a), practice in Nevada, Coxson failed to abide reasonably informed about the status of her (b), (c) and (d) (Misconduct) of the Rules by the client's decisions concerning the matter, and did not explain the matter to of Professional Conduct. Coxson was also objectives of her representation when he nei- the extent reasonably necessary to enable ordered to pay restitution. The Order was ther appeared with her, as he had initiaIIy her to make informed decisions regarding based on a Discipline By Consent entered promised, nor arranged for local counsel to her representation. AdditionaIIy, Coxson into by Coxson and the Office of Profes- appear with her at a hearing in Nevada on failed to promptly surrender the client's sional Conduct. her husband's action against her for unlaw- fie to her upon her request after she termi- Coxson misappropriated client funds in fully removing their child from that state. nated his representation. Coxson engaged five matters totaling approximately The client subsequently had to retain a in conduct prejudicial to the administration $105,275 for his own use and benefit. Nevada attorney to represen t her in the of justice when he failed to respond to Additionally in March of 1993, a former Nevada proceeding. Coxson submits that he interrogatories propounded to his client, client retained Coxson to represent him in tried unsuccessfully to retain counsel in resulting in the Court ordering a default an adversary proceeding in a Utah bank- Nevada before the hearing. Coxson assisted judgment to be taken against his client. ruptcy action in which the Trustee sought the client in retaining Nevada counsel after to recover money from the client as a the hearing. Cox son provided no beneficial DISBARMENT/RECIPROCAL fraudulent transfer by the debtor. Coxson legal services to the client, yet failed to DISCIPLINE failed to provide competent representation return her $1,000 retainer fee. Coxson On February 13, 1998, the Honorable to the client in both matters. Coxson failed engaged in the unauthorized practice of law G. Rand Beacham, Fifth Judicial District to abide by the client's decisions about the when he promised the client he would Court, entered a Judgment of Disbarment, objectives of the coIIection matter when he appear with her at the hearing in Nevada, disbarring Donald R. Sherer from the prac- failed to obtain local counsel to represent and then prepared and directed her to submit tice of law pursuant to Rule 22 of the Rules the client in the Hawaii bankruptcy pro- at the hearing a motion and memorandum of Law Discipline and Disability. The ceeding filed by the debtors. He did not requesting abatement of any jurisdictional Judgment of Disbarment was based on a notify the client of this fact, and the judg- determination. The court rejected the motion Stipulation for Entry of Reciprocal Disci- ment owed to the client was subsequently because Coxson was not licensed to practice pline entered into by Sherer and the Office discharged by that bankruptcy proceeding. law in Nevada. of Professional Conduct. Coxson similarly failed to abide by the In May 1996, clients retained Coxson to On March 30, 1993, the Honorable client's decisions about the objectives of represent them in a disputed property matter. EIIen R. Peck, Judge of the State Bar Court his representation in the Utah bankruptcy Coxson failed to competently represent the of the State Bar of California signed a proceeding. In this matter, Coxson failed to clients and failed to act with reasonable dili- Decision Recommending Disbarment and notify the client that he would not be pre- gence and promptness in representing them. Related Orders. The court noted the fol- sent at a hearing on a Motion for Partial Coxson failed to keep the clients reasonably lowing reason for Sherer's disbarment: Summary Judgment, which was subse- informed about the status of their matter, did After a noticed hearing at which quently granted when Coxson failed to not promptly comply with their reasonable DONALD RALPH SHERER (here- appear on the client's behalf. Although requests for information, and did not explain inafter "Respondent") failed to Coxson had attempted to withdraw as the their matter to the extent reasonably neces- appear, this Court concluded that client's counsel before the hearing at the sary for the clients to make informed Respondent wil(lJfuIIy failed to com- client's repeated requests and demands, decisions regarding their representation. ply with the provisions of rule 955, having already secured other counsel, the Coxson failed to promptly surrender the California Rules of Court, as ordered order granting his withdrawal had not been clients' file to the attorney who subsequently by the California Supreme Court and granted as of the date of the hearing. represented them. Cox son engaged in con- wil(lJfuIIy committed other acts of While stil domiciled in Nevada, a client duct prejudicial to the administration of professional misconduct against four

April 1998 - 25 --I

clients and the State Bar. In light of Stipulation for Discipline By Consent make a reasonable inquiry into existing his prior misconduct and the present entered into by Giffen and the Office of Pro- law, made aIlegations in the amended peti- record, this Court recommends that fessional Conduct. tion that were not weI! grounded in fact, Respondent be disbarred from the During his representation of prospective failed to obtain a preplacement adoptive practice of law for the protection of adoptive parents in an adoption matter, Gif- study, failed to comply with the Interstate the public. fen violated the Rules of Professional Compact on the Placement of Children, In four cases, Sherer was retained by Conduct. Not married or living together, knew or should have known that the birth clients and failed to respond to the client's both birth parents lived in California. Giffen mother's consent was flawed, knew that reasonable requests for information, failed to and a California attorney arranged for the the birth father would not consent to the file a lawsuit, failed to provide an accounting birth mother to come to Salt Lake City when adoption, and failed to make a reasonable of services as requested by the client, and she was pregnant with another child that was inquiry as to whether the natural father's failed to return the fies after his withdrawal to be adopted after the birth. The birth parental rights were terminable. from the cases. In one case, Sherer threat- mother miscarried in Salt Lake City. There- ened a client that if he did not withdraw his after, while the birth mother was in Utah, ADMONITION complaint with the State Bar of California, arrangements were made to adopt the other On February 2, 1998, an attorney was he would file a lawsuit against the client child of the birth mother ("he child"), at the admonished by the Chair of the Ethics and for false and malicious complaints. birth mother's suggestion. The birth mother Discipline Committee of the Utah State AdditionaIly, Sherer failed to maintain placed the child with the adoptive parents Bar for violating Rule 1.9(a) (Conflct of his correct membership address with the where the child stayed for some time. The Interest: FOrmer Client) and 8.4(a) (Mis- State Bar of California. As a result, he did birth father did not consent to the adoption conduct) of the Rules of Professional not participate with the State Bar of Cali- of the child and retained an attorney in Salt Conduct. The attorney was also ordered to fornia's investigations and their Lake City to represent him to take the child attend the Utah State Bar Ethics SchooL. disciplinary proceeding. away from the adoptive parents and to return In September 1996, the attorney was the child to him. Judge James L. Shumate employed by a client to represent him in a RESIGNATION PENDING granted the natural father's request to have water purchase agreement. The client was DISCIPLINEIRECIPROCAL the child returned to him and ordered Rule the seIler. Thereafter, the client discharged DISCIPLINE 11 sanctions against Giffen. Giffen appealed the attorney. After the attorney was dis- On February 12, 1998, the Honorable Judge Shumate's rulings. The Utah Court of charged by his client, the other parties to Michael D. Zimmerman, Chief Justice, Appeals upheld Judge Shumate's rulings. the agreement contacted the attorney. At Utah Supreme Court, entered an Order Giffen violated Rule 3.1 of the Rules of their request, the attorney wrote a "demand Accepting Resignation Pending Discipline, Professional Conduct in that he did not letter" on their behalf to his former client. enjoining and prohibiting Robert F. FeIand from practicing law in the State of Utah. liThe Effective Mediator" On June 16, 1986, Feland was disbarred from the practice of law in the State of Ari- 5-Day Course zona by the Supreme Court of Arizona. Feland's Resignation Pending Discipline evolved from a reciprocal discipline investigation conducted by the Office of May 4-8. 1998 Professional Conduct pursuant to Rule 22 of the Rules of Lawyer Discipline and Disability. Zl Hours of eLE I. . I. I - 2 L of _I. ~ SUSPENSION On February 8, 1998, the Honorable G. Rand Beacham, Fifth Judicial District Faculty Court, entered an Order of Suspension, 'I suspending John A. Giffen from the prac- L i tice of law for six months for violation of James R. Holbrook, Esq. ¡ Rule 3.1 (Meritorious Claims and Con- tentions) of the Rules of Professional Cherie P. Shanteau, Esq. Conduct. The suspension was stayed and Nancy W Gorbeft,M.Ed. the Order places Giffen's practice involving adoptions on supervised probation for one year. Giffen was also ordered to attend "rhe Effectill MBáiator" Training is $tonsored by the Ethics School of the Utah State Bar and Transifion !AafKelrenf. Inc. the Annual Family Law Seminar of the For MON InformTion on this couroe & "he December 1998 course. Utah State Bar. The Order was based on a plcase call: (801) 272-9289 or (800) 351-0488 (òr Fax 272-9598)

26 Vol. JJ No.3 - BAR COMMISSION CANDIDATES Second Division Candidates CALVIN GOULD trict Court Judge for 14 years; was United would like to restore more civility to the At the urging of a States Magistrate Judge for 8 years. I have practice of law and will work towards number of lawyers from acted as both prosecutor and defense attor- those goals. the Second Division I ney and served in the Utah Legislature. have chosen to seek the Although retired, I am healthy and vigorous Bar Commission seat and I am able and wiling to devote the time that is open. I practiced necessary to represent the lawyers of the law in Ogden for 17 Second Division. I reaIIy would like to make years; was Second Dis- the discovery processes more simple and I

LARRY L. WHYTE to the new Third District Courthouse and involved in lobbying, politics and bureau- I am running for Bar Commissioner imposition of pro bono requirements), those cracy and more involved in assisting, because those responsible for creating and in charge have forged ahead, convinced representing and providing services to its overseeing Bar programs have lost touch that they alone know what is best for Bar members, on whom the Bar relies for its with the Bar membership. The current pro- membership. financial support. If elected I wiII do every- posal to mandate minimum pro bono It is because Bar mem- thing in my power to represent the requirements, at the same time limiting bers cannot relate to this individual Bar Members and reverse the what is and is not to be considered accept- type of thinking that I am current tide of burgeoning Bar bureaucracy able pro bono activities, demonstrates how running for Bar Commis- and politics. detached and patronizing Bar leadership sioner. It is time for has become. Despite overwhelming oppo- common sense and com- sition to Bar proposals of recent years mon consent to govern (double collection of bar dues, contributions the decisions of the Bar. to the Law & Justice Center, contributions The Bar should be less

Third Division Candidates

JOHN A. ADAMS Annual Convention planning committees. He these objectives can only be achieved by John Adams has has practiced in Salt Lake City since 1982 investing a great deal of time and effort. served as president of with the law firm of Ray, Quinney & I'm wiIing to make that commitment. I the Young Lawyers Divi- Nebeker where he emphasizes commercial ask for your vote and support. sion and as president of litigation. the Salt Lake County You expect your bar commissioners to be Bar. He has served on on top of issues affecting lawyers, use good various bar committees, judgment, be even-handed and plan for the including the past two future. From my past bar service, I know

R. CLARK ARNOLD members. Individuals can insure involve- caIIy fair representation and a meaningful Last year I sued! to overturn the Bar ment in Commission actions only by voice in the selection of Bar officers. Commission's contribution to the new electing Commissioners pledged to consult Courthouse. I objected more to the Com- with the members they represent and com- I Anwld v. Utah State Em; No. 970300, Utah Supreme Court, Decision filed October 3, i 997. mission acting without input or approval mitted to limiting arbitrary action. It is with from the Bar members as a whole than to that pledge that I am the contribution itself. The Court rejected seeking election as a Bar Born 4/4/42, BA (Occidental '64) JD (U of my positions that the Rules require Commissioner. I will U, '67), LLM (Geo. Wash. '72), USAF advance notification to Bar members and insure that members are (1967-72); Admitted Utah (67) & Colo that major actions should be submitted to involved in major Com- (90), US Dist. Ct., Utah, 10th Cir, U.S. the Bar membership for approval. That mission actions and wiII Sup. Ct., Court Military Appeals. decision allows the Bar Commission to act support changes in Bar on major matters without oversight and organization to give without meaningful input by individual Bar members demographi-

I April 1998 27 -! --

Third Division Candidates cont.

SHARON A. DONOVAN Family Lawyer of the Year in 1992. . Professionalism in the practice. Dear Colleagues, I have been honored to lecture for the Bar . Pro Bono Legal Service Availability. I would appreciate your support for my in many areas of family law and profession- . New Lawyer Support candidacy for Bar Commissioner for the alism. The following is a list of some of the and Training. Third District. I am a partner in the firm of most critical issues I believe the Bar should be Serving you as Bar Dart, Adamson and Donovan and have addressing now and in the immediate future: Commissioner would be been an active Bar member for 19 years. I . Financial responsibility and accountabil- a privilege. I would am past chair of the Family Law Section ity to all members appreciate your support. of the Utah State Bar. I have also served . Implementation of advanced technology Thank you. the Bar in a variety of other areas through- in the practice of law and intensive educa- out my career and was selected as the Utah tion programs to aid lawyers in its use.

MICHAEL N. MARTINEZ offce at least one day a month and even help ticipation at this crucial time in my politi- Dear Colleague: the profession and community. cal career. Last summer, like many of you, I didn't My political guru advises I have a cam- When JFK appointed Bobby United go fishing. I didn't ride a roller coaster. I paign plan. So, here it is: States Attorney General he said, "If I don't didn't see a Buzz game. Clients came first. i. Campaign slogan: Be Like Mike (I said look out for my brother who will" Presi- When I worked as an Assistant City Attor- this before that guy Jordan did). My first dent Clinton expressed the same sentiment ney, in the Attorney General's Office and slogan was "I'm #3" because there are three when he said "If I don't look out for my later for the County Attorney, daily contact positions open and if each attorney voted for homeboys and squeezes who wil?" I with other attorneys made the daily grind me as their third vote I might be elected. believe the Bar's allegiance is first and less cumbersome. But, now, as a sole prac- 2. Campaign goal: Take a day off to frat- foremost to its members. If we do not look titioner, I see few attorneys. Contacts are ernize with peers and maybe do some good. out for each other who will I pledge to through fax, e-mail and phone. Hard as it is (Don't dwell on the do-gooder part if you look out for lawyers, Bar and public. to believe, you don't miss it til it's gone, don't like them.) On Law Day, April 1 this year, give the as they say in divorce court. 3. Voters love promises, so, attorneys who Bar Commission what it deserves: Then I had an epiphany. If I become a vote for me wil not be invited to my annual BE LIKE MIKE (MARTINEZ) I'M #3. Bar Commish, I thought, I can kill two slush fund raiser. I will appoint friends to birds with one stone (a hybird). I can com- committees, since I have no partners to mingle with colleagues and get out of the appoint. My obituary wil reflect your par-

v DEBRA J. MOORE She also taught legal writing at the Univer- Bar Commission, I would welcome the Debra Moore has sity of Utah College of Law. opportunity to serve another term. If re- practiced law in Salt Ms. Moore serves on the Board of Bar elected, I will continue to listen attentively Lake City since 1983 in Commissioners, and is a past Chair of the to your concerns, to vigilantly maintain the a variety of settings, Litigation Section and a former member of Bar's sound financial condition, and to including small firm, the Executive Committee of Women Lawyers work hard to support your efforts to honor- large firm and govern- of Utah. As a Bar Commissioner, Ms. Moore ably serve your clients and the public. ment. She currently has served as Chair of the First Hundred Toward those ends, I would appreciate handles civil appeal in Committee, and as a member of the Long your vote. the Litigation Section of Range Planning Committee. the Utah Attorney General's Office. Ms. Moore was formerly a shareholder in the Dear Colleagues: law firm of Watkiss & Saperstein, where Having had the honor of serving one she focused on product liabilty litigation. three-year term as your representative on the l .)

HARDIN A. WHITNEY existing Bar programs to that effort. I have had considerable experience in enlighten the public con- If elected, I will do all I can to bring Bar activities the last few years and would cerning the positive credit to the law and to those who prac- like to use that experience in helping guide contributions lawyers tice law. the future governance of the Bar. Although make to the community. much of my experience has been in the Such programs can best alternative dispute resolution area, my be accomplished by the interests are much more eclectic. Bar association and I We should continue and expand the would like to be part of

28 Vol. 11 No.3 1998-1999 Utah State Bar Request for Committee Assignment DEADLINE - May 15, 1998 When the Utah Supreme Court organized the Bar to regulate and manage the legal profession in Utah, it defined our mission to include regulating admissions and discipline and fostering integrity, learning, competence, public service and high standards of conduct. The Bar has standing and special commttees dedicated to fulfillng this mission. Hundreds of lawyers spend literally thousands of hours in volunteer services on these commttees. Many commttee appointments are set to expire July 1, 1998. If you are currently serving on a commttee, please check your appointment letter to verify your term expiration date. If your term expires July 1, 1998, and we do not hear from you, we wil assume you do not want to be reappointed, and we wil appoint someone to take your place. If your term expires in 1999 or 2000, you do not need to reapply until then. If you are not currently serving on a commttee and wish to become involved, please complete this form. See bottom of this page for a brief explanation of each Committee. COMMITTEE SELECTION Applicant Information Name BarNo. Offce Address Telephone Past Service Length of Service Are you wiling to Choice Committee Name On This Committee? On This Committee? Chair the Committee? 1st Choice Yes / No 1,2,3,3+ yrs. Yes / No 2nd Choice Yes / No 1,2,3,3+ yrs. Yes / No 3rd Choice Yes / No 1,2,3,3+ yrs. Yes / No D Check here if you have NEVER served on a Bar Committee ADDITIONAL COMMENTS (to include qualifications, reason for serving and other past commttee affliation)

For over 60 years, the Utah State Bar has relied on its members to volunteer time and resources to advance the legal profession, improve the administration of justice, and to serve the general public. The Bar has many outstanding people whose talents have never been tapped.

Instrctions to Applicants: Service on Bar commttees includes lhe expectation 11. Fee Arbitration. Holds arbitration hearings to resolve voluntary disputes that members wil regularly attend scheduled meetings. Meeting frequency varies between members of the Bar and clients regarding fees. by committee, but generally may average one meeting per month. Meeting times 12. Law Related Education and Law Day. Helps organize and promote law also vary, but are usually scheduled at noon or at the end of the workday. Members related education and the annual Law Day including mock trial competitions. from outside Salt Lake are encouraged to paricipate in committee work. 13. Law & Technology. Creates a network for the exchange of information and acts as a resource to Bar members about new and emerging technologies and the COMMITTEES implementation of these technologies. 1. Advertising. Makes recommendations to the Offce of Bar Counsel regarding 14. Lawyer Benefits. Review requests for sponsorship and involvement in various violations of professional conduct and reviews procedures for resolving related group benefit programs, including health, malpractice, disability, term life insurance offenses. and other potentially beneficial group activities. 2. Alternative Dispute Resolution. Recommends involvement and monitors 15. Lawyers Helping Lawyers. Provides assistance to lawyers with substance developments in the varous forms of alternative dispute resolution programs. abuse or other varous impairments and makes appropriate referral for rehabilitation 3. Annual Meeting. Selects and coordinates CLE program topics, panelists and or dependency help. speakers, and organizes appropriate social and sporting events. 16. Legal/ealth Care. Assists in defining and clarifying the relationship between 4. Bar Examiner. Drafts and grades essay qnestions for the Febrnary and July the medical and legal professions, Bar Examinations. 17. Legislative Affairs. Monitors pending or proposed legislation which falls 5. Bar Examiner Review. Reviews essay questions for the Febrnar and July Bar within the Bar's legislative policy and makes recommendations for appropriate action. Exams to ensure that they are fair, accurate and consistent with federal and local laws. 18. Mid-Year Meeting. Selects and coordinates CLE program topics, panelists, 6. Bar Journal. Annually publishes ten monthly editions of the Utah Bar Journal and speakers, and organizes appropriate social and spOlting events. to provide comprehensive coverage of the profession, the Bar, articles of legal 19. Needs of Children. Raises awareness among Bar members about legal issues importance and announcements of general interest. affecting children and formulates positions on children's issues. 7. Character & Fitness. Reviews applicants for the Bar Examination to make 20. Needs of the Elderly. Assists in formulating positions on issues involving the recommendations on their character and fitness for admission to the Utah State Bar. elderly and recommending appropriate legislative action. 8. Clients Security Fund. Considers claims made against the Clients Security 21. New Lawyers CLE. Reviews the educational programs provided by the Bar Fund and recommends appropriate payouts for approval by the Bar Commssion. for new lawyers to assure variety, quality and conformance with mandatory New 9. Courts and Jndges. Coordinates the formal relationship between the judiciar Lawyer CLE requirements. . and the Bar including review of the organization of the court system and recent 22. Unauthorized Practice of Law. Reviews and investigates complaints made court reorganization developments. regarding unauthorized practice of law and recommends appropriate action, includ- 10. Delivery of Legal Services. Explores and recommends appropriate means of ing civil proceedings. providing access to legal services for indigent and low income people. DETACH & RETURN to James C. Jenkns, President-Elect, 645 South 200 East, Salt Lake City, UT84111-3834

April 1998 29 --

Zimmerman, Uno and Ciccarello Honored by Bar

At the Mid-year meeting of the Utah Chief Justice, and for his creativity, innova- Utah's minority citizens. State Bar, Chief Justice Michael Zimmer- tive ideas and resolve in positioning the man, Judge Ray Uno and attorney Mary judiciary for the 21st Century." DISTINGUISHED PRO BONO Jane Ciccarello received recognition from LAWYER OF THE YEAR the professional organization which repre- ADVANCEMENT OF The Distinguished sents all practicing attorneys in the state. MINORITIES IN THE LAW Pro Bono Lawyer of Judge Raymond the Year award was DISTINGUISHED SERVICE AWARD Uno, a Senior Judge in presented to Mary The Distinguished the Third District, was Jane Ciccarello, assis- Service Award was selected to receive the tant dean for student pres en ted to Chief award for Advancement affairs at the Univer- Justice Michael D. of Minorities in the sity of Utah CoIIege Zimmerman who was Law. As the first presi- of Law. She has appointed to the Utah dent of the Utah worked in public interest practice with Supreme Court in 1984 Minority Bar Associa- Utah Legal Service and Legal Aid Society and elected Chief Jus- tion, and long time advocate for of Utah. She is a volunteer lawyer with the tice in 1993. The Bar advancement of minorities in the legal pro- Office of the Guardian ad Litem, the honored the Chief Justice for "his thought- fession, Judge Uno has made lasting and Domestic Violence Victims' Clinic, and the ful and conscientious manner in which he important contributions. For over 30 years Children's SSI Pro Bono Project. coordinated Bar relations over his term as he has championed causes important to

II Join the New Solo and Small Firm E-mail List The solosmall list is sponsored by the mail message to majordomoCiaros.net any particular person or group of per- Solo, Small Firm and Rural Practice with the following in the body of the mes- sons, or to any attorney or law firm by Section of the Utah State Bar. Member- sage (not the subject): participation in this Iistserve. ship and participation in and with the subscribe soIosmall The listserve is really just a giant list of Solosmall list is limited to licensed attor- To unsubscribe from the list, send a mes- e-mail addresses. When you join, you add neys and their staff. sage to majordomoCiaros.net with the your address to the list. When you quit, If you are not a currently licensed attor- following in the body of the message (not your address is removed. You communicate ney, please do not participate. If you have a the subject): with the group by sending an e-mail mes- legal question, please do not post it to this unsubscribe soIosmall sage to the central computer running the list, nor solicit legal services or the ser- If you are going to be away from your e- list. That computer distributes a copy of the vices of an attorney. If legal advice or mail account and use an auto-response message to everyone in the group. Then, services are required or desired, please function to respond to e-mail in your anyone can respond either to the entire directly contact an attorney in your local absence, please remember to unsubscribe group by responding to the central com- area and enter into a prior written agree- from this and other lists. puter, or respond directly to you. ment for said services and advice. In Utah, For example, suppose you are looking you may call the Utah State Bar's Lawyer PARTICIPATION for advice from any lawyer who has han- Referral number for assistance (801) 531- To post a message that will be sent out dled a trial before Judge X, in St. George, Ii 9075. Other states offer similar services. to the entire list, send the message to or you need a form for Attorney's Lien, or The Solosmall list is maintained to pro- solosmallCiutahbar.org. When you reply to you have a question on how to renew a vide a vehicle or avenue of legal discussion a message you have received from the list, judgement before it expires, etc. You can and communication between attorneys that remember to check your addresses and make send a message to the group that asks your i fit within the definition of the section sure a private message is not sent to the list question, and anyone in the group can J membership and join the list. The list facil- address. Likewise, if you do wish the reply respond to you directly bye-maiL. Or they .1 itates an exchange of ideas, discussion of to go to the entire list, make sure the list can respond to the group as a whole. topics, consultation, direction, assistance, etc. address is included. Group responses often trigger a larger, - all to enhance the level and proficiency Remember we need your participation!! !! broader discussion. This will enable us to of the practice of law in Utah. If you are Ask a question? Give an answer!!!! expand our form fies, expand our network such an attorney, please join and partici- Neither the Utah State Bar, the Solo, of associates, enlarge our perspective, pate to make this a lively and helpful list. Small Firm and Rural Practice Section, relieve stress and help us enjoy our prac- nor any of the attorneys participating on tice. Participate soon! ! ! ! ! SUBSCRIPTION INFORMATION this Iistserve are engaged in rendering To subscribe to Solosmall, send an e- legal services or advice to the public, to

30 Vol. II No.3 Ethics Opinions Available The Ethics Advisory Opinion Committee of the Utah State Bar has compiled a compendium of Utah ethics opinions that are now available to members of the Bar for the cost of $20.00. Sixty-five opinions were approved by the Board of Bar Commissioners NOTICE between January 1, 1988 and January 23, 1998. For an additional $10.00 ($30.00 total) members will be placed on a subscription list to receive new opinions as they become available during 1998. OF LEGISLATIVE ETHICS OPINIONS ORDER FORM Quantity Amount Remitted REBATE

Utah State Bar Ethics Opinions Bar policies and procedures ($20.00 each set) provide that any member Ethics Opinions/ Subscription list may receive a proportionate ($30.00 both) Please make all checks payable to the Utah State Bar dues rebate for legislative Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman 645 South 200 East #310, Salt Lake City, Utah 84111. related expenditures by notifying the Executive Name Director, John C. Baldwin, Address 645 South 200 East, Salt City State Zip Lake City, UT 84 i i i . Please aIIow 2-3 weeks for delivery. MEMBERSHIP CORNER . CHANGE OF ADDRESS FORM

Please change my name, address, and/or telephone and fax number on the membership records:

Name (please print) Bar No.

Firm

\ i I Address

II . City/State/Zip

Phone Fax E-mail All changes of address must be made in writing and NAME changes must be verified ~y a legal document. Please , return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 841ll-3834; Attention: Arnold BirrelL. Fax , , , , Number (80l) 53l-0660. , , L______------______J,

April/99B 31 ~"rri i I People and Scenes of the 1998 Mid-Year Meeting

I i i

, i 1.1

'II iii

Photos courtesy of Cal and Patricia Thorpe ( ) Indicates Number of piuiMeePm CL Hour Avaiable WEDNESDAY, ruY 1,1998 Wilam W. Downes, Jr., Winde & Haslam 6:00-8:00 p.m. Presiden's :Rcepon Brian R. Florence, Florence & :Rgiaton Hutchion Sponsored by: PARNS BEH & LA'IR SNOW, CHTENSEN & MA'IU 2 Cuent Developments in Chapter VANCar, BAGLEY, CORNAl& 13; Curent Developments in McC1l Spedfic Creditor Remedies in KJp & CHRTI Chapter 7 & 11 STRNG & HA Andres Diaz, Stadig Chapte 13 Truste Dany C. Key, VanCott Bagey, THUDAY, JUY 2, 1998 Cornwal & McCary Wilam T. Thuran, Jr., McKy, 7:30 a.m. :Rgiaton and Contiental Breaas Burn & Thuran Sponsored by: SUN V AJY COMPAN 3 Attorney Opinon Leter 8:00 a.m. - Kii/'s Actvity Fæi Richard G. Brown, Par, 1:30 p.m. Waddoups, Brown, Gee & Loveless 8:00 a.m. Ope General Seion and Busines David K. Redd, Bonnevile Report Inteational

Welcome and Open Reks 4 50 Interet Sites in 50 Miutes Eliabth T. Dung, 1998 Anual David Nuffer, Snow, Nuffer, Meetig Co-Chai Bily L. Wal, Jr., 1998 Anual Engstrom, Drak, Wad & Meetig Co-Chai Smar Toby Brown, Uta State Bar Reort on th Utah Státe Bar Charlott L. Mier, Prident, Uta 5a A Tral Advocac Semi - State Bar Openi Statements: Stle & Reort on State Juddai Chief Justice Richard C. Howe Sustance Biyon J. Benevento, Snell & Wiler Reort on Federal Judidai Hon. De V. Benson, U.S. Distrct Chief Judge David Sam Cour Reort on the Utah Bar Foundaon Hon. Pamel T. Greewood, President, Robe S. Dark, Par, Waddoups, Brown, Ge & Loveless Uta Bar Foundation Stehen G. Crockett Giauque, 9:00a.m. Keynote Addres: Lawyer With Root Crockett Bendiger & Peteon Bradley P. Rich, Yengich, Rich & (1) Can Hon. Richard P. Matsh, Chef Judge, Xai U.S. Distrct Cour Distrct of Colorado 11:05 a.m. Break Sponsored by: DUR, EVANS, JoNE & PINAR i Sponsored by: CABElL MACK & SESIONS ii . 't. PAR W ADDOUP, BROWN, GEE & GIAUQUE, CROTl BENDINGER& LoVELE PETERSN 10:00 a.m. Break 11:20 a.m. Breakout Sesions Sponsored by: CLYDE, SNOW & SWENSON 5b A Tral Advocac Se, conti COlI, RAPAPRT & SEGAL (1 eac) 6 ETHCS: Ethcal Obligaton 10:15 a.m. Breakout Seons Between Paralepl and Lawyer (1 eac) 1 Mediaton an Aritraton in Domesc :Rlatons Kathere A. Fox, General Counse, Uta State Bar Carol A. Stear Off of Membe of the Offce ofReovei Professional Conduc Uta Sece State Bar 1:20 p.m. Breakout Sesions Adjour for the Day 7 La Is in the "New Wes"

Pat Shea, U.S. Bureau of Land 4:00p.m. Law Scool Recepons Management J. Re Clark Scool of Law 8 InteUeåU Prope for a 21st Centu Economy: Estial for UDivenity of Utah Scool of Law th General Practioner Thomas J. Rossa, Trask, Britt & 5:00p.m. SoJt1M GVle "Judges v. úwyen" Rossa Robe G. Wine, Trask, Britt & 6:30 p.m. FVly PiClC ~ ClUvM Rossa Sponsored by: INRMOUNAI HEm CA CA's JR. 9 Lepl Valuaon Ises in STARBUPT Busines Tranons Richard Hoffan, Coope & FRAY, JUY 3,1998 Lybrand Glen D. Wats, Jones, Waldo, 7:30 a.m. Secton Breaas Holbroo " McDonough 8:00 a.m. R.egiaton and Contiental Breaas 12:10 p.m. Brea Sponsored by: LExiNEXI Sponsored by: TRAK, BRl & Ro RICH, BIR & KUM 8:30 a.m. General Session 12:30p.m Breakout Sesions 10 How to Phras a Statement of Prestaton of Anua Awards (1 each) Ises Charlott L. Mier, President, Uta Fredec J. Voros, Jr., Uta State Bar Attrney General's Offe Swea in of New Bar 11 Employment Laws: Worki, Commissionen and President-Elect Jus Abd, or in Need of Chief Justice Rihard C. Howe, Uta Seous Reform1 Supreme Cour Hon. De V. Benson, U.S. Distrct Cour 9:15 a.m. General Seon - "Feedi the Media Lis-Michéle Church, Sincl Oil (1) Beas" Roge Hoole, Hoole & Kig Mihae E. Ti, Hadn, Morga & Michae Patrk O'Brien, Jone, Foreman Waldo, Holbrook & Sponsored by: Ti LmGATION SEC0N McDonough Ti CRALLAW SEC0N

12 The New Probate Code: New 8:30 a.m. - Kid's Aetyjty Fm Law of Divorce, Probate & 12:00 noon General Pracce Thomas Chrtensen, Jr., Fabia & 10:15 a.m. Spoiu/Pæmer Ai Gller Tour Qendeni 10:15 a.m. Break 13 SO Tech Tips in SO Miutes Sponsored by: KRUSE, LANA & MAyCO Bla D. Mi, Suitt Axd STOEL RI BoLEY JONE & GREY Toby J. Brown, Uta State Bar 10:30 a.m. Breakout Seons 14 Welare Reform It jus (1 ea) 15 The Tral Theme As a Story Impaced You Michae E. Tig, Hadon, Ka K. Dixon, Uta Attrney Morga & Foreman General's Offce 16 Recea ADd- Ti Cas 12:30 p.m. Meeti Adjour for the Day ConceJ Utah Companes Prof. John J. Flyn, Univerity of 1:00 - 6:00 p.m. Sprt ErellS Uta College of Law

Mark Glik, Parons Behle & 1:00 p.m. lOt .Â1I Presdelt's Cup Golf Latier TOUnMlelt ClkWaddoups, Par, Wadoups, Brown, Ge & 1:00 - 5:00 p.m. Kid'sAetYity FII Loveless 2:00p.m. Tnoot TOIeIt 17 Lesns for Dra Jl Esate Loan Do~øits from th New 2:00p.m. YoOey1 TOunelt Reatemea of Mortgaes Prof. Dale A. Whtman, J. 2:30p.m. Fly Fis1 Clc Reuben Clk Law School SATUAY, JUY 4,1998 18a ETHCS: Creave Pro Bono Opportdes for Everone 7:00a.m. Fu Ru Prnted by a Panel of Pro Bono Lawyer and Judge 8:30 a.m. Registaton and Contiental Breakas 11:30 a.m. Brea Sponsored by: HOLM RoBER1S & OwN Sponsored by: BLUE CR/BLUE SHIlD OF UTAH ThORPE, NORTH & WESTERN

11:40 a.m. Breaout Seons 8:45a.m. General Seon: The Free Pres an 18b ETHCS: Pro Bono Opportties, (1 e&) (1.S) the Prvac Rights of Indivict cont. Thomas P. Labe Mitchel, Silbeg

& Knupp 19 If You CA Bald It...Land Use Mi Watks, "A Curt Afai" Pracce Tips to Help Avoid a Field Sponsored by: LEBoEUF, LAM, GREENE & MAcR of Dream RAy, QuINY & NEBEKER Thoma A. Ellon, Sto Rives RICH BRA Mi & NELSN Bole Jones & Grey GREN & BERRY McKAy, BURTON & THU 20 Out of the Oose an ino the WATK, DUNG & WATK Couroom: Cuent Ises in MOXLY, JoNE & CABEIL Se Orientaton Law PAR CI BARAs'I0N Marli Crddle Laura Gray 9:00 a.m. - Kid's AetYity FII Jane A. Marquardt, Marquardt, 12:15 p.m. Hasyage & Custen 10:00 a.m. Break 21 Techololf Licenin and Sponsored by: MBNA OF AMRICA Protecton WIL & HUN John R. Moni, Snel & Wiler John W. L. Ogivie, Compute 10:15 a.m. Breaut Seions Law++ . (1 ea) 24 Utah Electnic Law Project Updae 22 Basic Prciples of Accide David O. Nuffer, Snow, Nufer, Reconscton for Attorneys Engstrom, Drak, Wad & John E. Hansen, Scey & Redig Smar 25 Alony - Abolied or 23 Tax Aspect ofBanptey and Awarded? Inlvency Mar W. Custe, Marquardt, Lagdon T. Owen, Parons, Davies, Kiom & Pete Hasnyag & Custen An L. Wassean, Littfid & 11:15 a.m. Breaout Sesions Adjour Peten 11:30 a.m. Sat Lae COUDty Bar FUm 26 Fir Amendent Church-State (2) Prestaton Constuona Law Prof. Frederk Gediks, J. Reuben 1:00 p.m. Tems TOuneDt Oak Law Scool Prof. Miha McConnel, 2:00p.m. Al Meeti Adjour Univerity of Uta College of Law 7:00p.m. Ice Slow, BuJet ..I Firworks David B. Watks, Watks, Dung & Watks ¡

27 The ('anging Face of Utah's CUentele Robe L. Booke, Booke & Associate

Mark your calendars now to attend tbe Utah State Bar's 1998 Anual Convention!

JULY 1 - 4, 1998 SUN VALLEY, IDAHO --

Applicants Sought Central Staff Notice of Ethics ,I for Bar's Attorney Wanted & Discipline Representative to Utah Court of Appeals is seeking an Committee American Bar attorney to join its central staff. Works Vacancies under the general guidance and direction Association of the Court of Appeals judges. Performs The Bar is seeking interested volun- complex legal work, including review and teers to fil ten vacancies on the Utah '. The Board of Bar Commissioners is classification of appellate cases, and State Bar Ethics & Discipline Commt- seeking applicants to serve a two-year assists in preparation of memos, opinions tee. The Ethics & Discipline Committee term as the Bar's representative to the and orders. Excellent legal research and is divided into four panels which hear American Bar Association's House of writing skills required. Must be member all informal complaints charging unethi- Delegates. Each State Bar is entitled to of Utah State Bar at time of appointment. cal or unprofessional conduct against one delegate. The term would begin at Transcripts and a recent writing sample the conclusion of the ABA's Annual members of the Bar and determine must be submitted with application. Hir- whether or not informal disciplinary Meeting in August, and run through the ing range $16.93 to $25.42 DOE. action should result from the complaint August of 2000 Annual Meeting. Paul Closing date: April 30, 1998, at 5:00 T. Moxley is currently serving as the or whether a formal complaint shall be p.m. Complete job announcement and filed in district couii against the respon- Bar's delegate. application may be obtained from and dent attorney. Appointments to the Please send your letter of application returned to: Human Resources, Adminis- Ethics & Discipline Committee are and resume to John C. Baldwin, Execu- trative Office of the Courts, 230 South made by the Utah Supreme Cour upon tive Director, Utah State Bar, 645 South 500 East, #300, Salt Lake 84102. Phone: recommendations of the Bar Commis- 200 East, #310, Salt Lake City, Utah 578-3890/3804. EOE sion. Please send resume to John C. 84111, no later than May i, 1998. Baldwin, Utah State Bar, 645 South 200 East, Salt Lake City, UT 84111 no later than May 1, 1998.

UTAH LA WYERS CONCERNED ABOUT LA WYERS

Confidential* assistance for any Utah attorney whose professional performance may be impaired because of emotional distress, mental illness, substance abuse or other problems.

Referrals and Peer Support

(801)297 -7029

LA WYERS HELPING LA WYERS COMMITTEE UTAH STATE BAR ¡

.~ti * See Rule 8.3(d), Utah Code of Professional Conduct l

~" . 38 Vol. 11 No.3 ~ j Rule Change Pro Bono Services Needed The Utah State Board of Continuing may include, but are not limited to, Legal Education successfully petitioned viewing of approved continuing legal The Utah Task Force on Racial and Eth- the Utah Supreme Court to amend Rule education videotapes, writing and nic Fairness is seeking attorneys interested 4(d) of the Rules and Regulations Gov- publishing an article in a legal peri- in providing pro bono services to assist erning Mandatory Continuing Legal odical, part-time teaching by a Task Force efforts to assess Utah's criminal Education for the State of Utah to allow practitioner in an ABA approved law justice system for real and perceived bias continuing legal education credit for school, or delivering a paper or due to race and ethnicity. Come take part in lawyers who present on legal topics to speech on a professional subject at a improving Utah's justice system. legal assistants. The petition wil better meeting primarily attended by Attorneys are needed to serve as coordina- reflect the recent inclusion of legal assis- lawyers, legal assistants or law stu- tors for each of the Task Force's following tants in the Bar, and wil provide an dents. The number of hours of credit commttees: Pre-Adjudication, Representa- incentive for licensed attorneys to make to be allowed for such activities and tion, Courts, Post-Adjudication, Client available quality legal education for legal the procedures for obtaining such Perspective, and Community Resources. assistants who are affliate members of equivalent credit may be established Pro Bono Coordinators wil work with a the Utah State Bar. by regulation of the board or may be committee to formulate research objec- Rule 4. Hours of Accredited Con- determined specifically in particular tives, prepare informational materials, and tinuing Legal Education Defined instances by the board. conduct legal research. A time commit- (d) The board shall allow equiva- ment of approx. 20 hours / month for 12 to lent credit for such activities as, in 15 months is anticipated. Related special the board's determination, further projects may also need assistance and the purpose of these rules and require a lesser time commitment. should be allowed such equiva- If interested please contact: Jennifer Yim, lency. Such equivalent activities Task Force Director, at (801) 578-3976.

Code-Co's Internet Access to Utah Law http://www.code-co.com/utah With a computer and a modem, eveiy member of your firm can have unimted access to ~ The Utah Code ~ The most recent Utah Advance Reports ~ The Utah Administrative Code ~ The Utah Legislative Report and Code-Co's NEW ~ Legislative Tracking Service

_ Always current _ No "per minute" charges . Much lower costh t an an"i." on- me servce. . _ FULL TEXT SEARCHING.

Preview on the Internet at: htt://ww.code-co.com/utah. get a FREE TRIAL PASSWORD from Code-Co* at E-mail: admin~code-co.com SLC: 364-2633 Provo: 226-6876 Elsewhere Toll Free: 1-800-255-5294 *Also ask about customer Special Package Discount

April 1998 39 Utah Rules of Professional Conduct Public Service Proposed Rule 6. i Pro Bono PH Legal Service

Voluntary Pro Bono Service (ii) charitable, religious, civic, com- ilil I hereby submit $ for the A lawyer should render public interest munity. governmental and Utah Access to Justice Founda- legal service. A lswYer Hlit àisehlle t+is educational organizations in mat- tion in meeting my obligation, or feSj3SHsiJ:ility J:y j3fWiiàiHg j3fsfessisHal ters which are designed primarily íi I have contributed $ . (Only ser'tlees at HS fee Sf a feàl:eeà fee ts j3erssHs to address the needs of persons of contributions to organizations sf liHliteà HleaHs Sf ts j3l:J:lie sefviee Sf limited means: and which provide direct services as ellltaJ:le grSl:s Sf SFglli2iatSHS, J:y s6fee (2) provide any additional services defined in (b) above qualify): iH aeti-'1ikes fSf iflfWtlHg t+e Iltl, t+e legal through: il I am carrying forward into this SYSteHl Sf the legBl j3fsfessisH, ffà J:y HHaH (i) delivery of legal services at no fee reporting year hours of pro eial Sl:j3j3Sft fff sFgffi2iatSHS t+at j3fWiiàe or substantially reduced fee to bono legal services from the previ- legal serviees ts j3efssHs sf lim-teà HleaHS. individuals, groups or organzations ous reporting year. This Rule sets forth three components: seeking to secure or protect civil Reporting a zero amount in both 1 and 2 (a) The Rule establishes the profes- rights. civil liberties or public above meets the reporting requirement of sional responsibility for lawyers to rights, or chartable, religious. civic, this Rule. The failure to report this infor- provide pro bono legal services. community, governmental and mation shall not constitute a disciplinary This service is not mandatory, but educational organizations in matters offense under this rule. Annual dues state- aspirational in nature. in furtherance of their organiza- ments submitted without the reporting (b) The Rule provides guidelines for tional purposes. where the payment information wil be treated as incomplete and what constitutes pro bono legal of standard legal fees would sig- incomplete dues statements wil be rejected. services. nificantly deplete the organization's Licensing for that year wil not be processed (c) The Rule establishes mandatory economic resources or would oth- until the reporting information is complete. reporting of pro bono legal services. erwise be inappropriate: All lawyers are required to report (ii) delivery of legal services at a sub- COMMENT annually the amount of pro bono stantially reduced fee to persons The ABA I1sl:se sf Delegates has fff legal services they have provided. of limited means; or Hlally aeknswleàgeà "the J:asie resj3sHsiJility il Professional Responsibility. Lawyers (iii) participation in activities for sf eaeh lawyef eHgageà iH the j3faekee sf have a professional responsibility to improving the law. the legal sys- law ts j3fsviàe j3l:J:lie iHtefest legal sef- provide pro bono legal services. The tem or the legal profession. viees" '.vithsl:t fee, Sf at a sl:J:staHtially professional responsibility established in Reporting Requirement. Each active feàl:eeà fee, iH SHe Sf HlSfe sf the ffllw,y under this Rule is aspirational rather member shall annually report to the iHg al'eas; j3svefty law, eivil fights la'll, than mandatory in nature. The failure Utah State Bar whether the member has j3l:J:lie fights law, ehafitaJ:le sfgaHi2iatisH to fulfil one's professional responsi- satisfied the member's professional fej3feseHtatisH aHà the aàHliHistfatisH sf bility under this Rule wil not subject a responsibility to provide pro bono legal jl:Skee. This Rl:le eRj3fesses that j3s1iey J:l:t lawyer to discipline. The professional services. Out-of-state members of the is HSt iHteHàeà ts J:e eHfffeeà tflsl:gh t+e responsibility to provide pro bono bar may fulfil their professional àiseij31iHary j3fseess. legal services may be discharged by: responsibility in the states in which they The fights aHà fesj3sHsiJ:ilities sf iHài (1) annually providing at least 36 hours practice or reside. For purposes of this viàl:als aHà sfgaHi2iatisHs iH the Uaiteà of pro bono legal services; or Rule, a reporting year shall mean the States afe iHefeasiHgly àefiHeà iH legal (2) making an annual contribution of at just completed licensing year. The tefHlS. As a eSHseEJl:eHee, legal assistaHee least $ 10 per hour for each hour not licensing period runs from July 1 iH eSj3iHg wit+ the weJ: sf statl:tes, fl:les provided under (a)(l) above (e.g. through June 30. Each member shall aHà fegl:latisHs is iHlj3efative fSf j3efssHs sf 36 hours * $10.00 - $360.00) to an report this information through a simpli- Hlsàest aHà liHliteà HleaHS, as well as fef agency which provides direct ser- fied reporting form that is made a part the felatvely well ts às. vices as defined in (b) below. of the member's annual dues statement. The J:asie feSj3SHsiJ:ility fSf j3fsviàiHg J1 Guidelines on Providing Pro Bono The form wil contain the following cat- legal sefviees fef thsse l:HaJle ts j3ii l:lti Legal Services: egories from which each member wil Hlately fests l:j3 SH the iHàiviàl:al lawyef, In fulling this responsibility, the be allowed to choose in reporting aHà j3erssHal iHvslveHleHt iH t+e j3fsJ:leHls lawyer should: whether the member has provided pro sf the àisaà'laHtageà eaH J:e SHe sf the (1) provide a majority of the 36 hours bono legal services: HlSSt f6'waràiHg ff(j3erieHees iH t+e life sf a of pro bono legal services without il I have personally provided Iltiyer. BvefY lEYwyef, fegaràless sf j3fsfes fee or expectation of fee to: hours of pro bono legal services dur- sisHal j3fSHliHeHee Sf j3fsfessisHal (i) persons of limited means: or ing this past reporting year. wSfklsaà, shSl:là fiHà tiHle ts j3artieij3ate iH

40 Vol. 11 NO.3 Elf El#ienVlSe S\:1313Elft #ie 13fEl¥lSlElR Elf legal financial resources are slightly above the to accept a substantially reduced fee for sef¥lees tEl #ié tÜsawlaRtageà. Tae 13f€ltlSlElR guidelines utilized by such programs but services. Examples of the types of issues Elf ffee legal seF'tlee t8 #i8se \:Rafle t8 138. nevertheless, cannot afford counseL. Legal that may be addressed under this paragraph feas8RaBle fees e8RtifleS t8 Be Bf 8Bllgat8R services can be rendered to individuals or to include First Amendment claims, Title VII 8f eaea lawyef as weU as tae 13f8feSSl8R organizations such as homeless shelters, bat- claims and environmental protection geRefaUy, B\:t tae eff8fts 8f lRàl¥là\:al tered women's centers and food pantries that claims. Additionally. a wide range of orga- lE¡,wyefs afe 8fteR R8t eR8\:ga t8 ffeet #ie serve those of limited means. Lawyers pro- nizations may be represented. including Reeà. 1'a\:s, it has BeeR ReeessafY fEf #ie viding pro bono legal services on their own social service, medical research, cultural 13f8feSSl8R Bfà g8'/eFffeRt t8 lRstitlte aààl need not undertake an investigation to deter- and religious groups. tl8Ral 13f8gfaffs t8 13fElVlàe legal SeF¥lees. mine client eligibility. Rather, a good faith (71 Paragraph (b)(2)(ii) covers instaces in A-eeElffgl-, legal aià 8ffses, lawYeF fefeal determination by the lawyer of client eligi- which lawyers agree to and receive a modest SeF'/lees aRà 8thef felateà 13f8gfaffs awis bility is suffcient. The term "governmental fee for furnishing pro bono legal services BeeR àevel813eà, Elà El#iefS vilU Be àevel organizations" includes, but is not limited to, to persons of limited means. Participation El13eà BY the 13fElfeSSl8R aRà gwiefRffeRt. public protection programs and sections of in judicare programs and acceptance of EvefY lawyef sa8\:là S\:13138ft aU 13f813ef governmental or public sector agencies. court appointments in which the fee is sub- effElfts t8 ffeet #ilS Reeà fElf legal SSf'lees. (41 Because service should be provided stantially below a lawyer's usual rate are (11 Every lawyer, regardless of profes- without fee or expectation of fee or with a encouraged under this section. sional prominence or professional substantially reduced fee, the intent of the (81 Paragraph (b)(2)(iii) recognizes the workload, has a responsibility to provide lawyer to render free or reduced fee legal value of lawyer engaging in activities that legal services to persons of limited means. services is essential for the work performed improve the law, the legal system or the The Utah State Bar urges all lawyers to to fall within the meaning of paragraphs legal profession. Serving on board of pro provide 36 hours of pro bono legal services (b)(l) (i) and (ii). Accordingly, services ren- bono or legal services programs, taking annually. It is recognized that in some dered cannot be considered pro bono if an part in Law Day activities, takng part in years a lawyer may render greater or fewer anticipated fee is uncollected. but the award law related education activities, acting as a hours than the annual standard specified of of statutory lawyers' fees in a case originally continuing legal education instructor, a 36 hours, but during the course of a legal accepted as pro bono would not disqualify mediator or an arbitrator and engaging in career, each lawyer should aspire to render such services from inclusion under this sec- legislative lobbying to improve the law, the on average per year, the number of hours tion. Lawyers who do receive fees in such legal system or the profession are a few set forth in this Rule. Services can be per- cases are encouraged to contribute an appro- examples of the many activities that may formed in civiL. administrative, criminal or priate portion of such fees to organizations fall within this paragraph. quasi-criminal matters for which there is or projects that benefit persons of limited (91 Because the provision of pro bono no government obligation to provide funds means. It is recognized that some pro bono legal services is a professional responsibil- for legal representation, such as post-con- services provided to individuals slightly ity, it is the individual ethical commitment viction death penalty appeal cases. above program income guidelines may be of each lawyer. Nevertheless, there may be (21 Paragraphs (b)(l(i) and (ii) recog- provided at significantly reduced fees, based times when it is not feasible for a lawyer to nize the critical need for legal service that on the resources of the individuals. engage in pro bono services. At such times exists among persons of limited means by (51 While it is possible for a lawyer to a lawyer may discharge the pro bono providing that a substantial majority of the fulfil the annual responsibility to perform responsibility by providing financial sup- legal services rendered annually to the dis- pro bono services exclusively through activi- port to organizations providing free legal advantaged be furnished without fee or ties described in paragraphs (b)(l))i) and services to persons of limited means. Such expectation of fee. Legal services under (ii), to the extent that any hours of service financial support should be reasonably these paragraphs consist of a full range of remained unfulfilled, the remaining commt- equivalent to the value of the hours of ser- activities, including individual and class ment can be met in a variety of ways as set vice that would have otherwise been representation, the provision of legal forth in paragraph (b)(2). ConstitutionaL. provided. In addition, at times it may be advice. legislative lobbying, administrative statutory or regulatory restrictions may pro- more feasible to satisfy the pro bono rule making and the provision of free train- hibit or impede government and public responsibility collectively, as by a firm's ing or mentoring to those who represent sector lawyers and judges from performing aggregate pro bono activities. persons of limited means. The variety of pro bono services outlined in paragraphs fl01 Because the efforts of individual these activities should facilitate participa- (b)(i(i) and (ii). Accordingly, where those lawyers are not enough to meet the need tion by government lawyers, corporate restrictions apply, government and public for free legal services that exists among counseL. judges and others, even when sector lawyers and judges may fulfil their persons of limited means, the government restrictions exist on their engaging in the pro bono responsibility by performing ser- and the profession have instituted addi- outside practice of law. vices outlined in paragraph (b)(2). tiona! programs to provide those services. (31 Persons eligible for legal services (61 Paragraph (b)(2)(i) includes the provi- Every lawyer should financially support under the paragraphs (b)(i(i) and (ii) are sion of certain types of pro bono legal such programs, in addition to either provid- those who qualify for participation in pro- services to those whose incomes and finan- ing direct pro bono services or making grams funded by the Legal Services cial resources place them above limited financial contributions when providing pro Corporation and those whose incomes and means. It also permits the pro bono lawyers bono legal services is not feasible.

April 1998 41 . (111 Paragraph (b)(i) recognizes the organizations in section (i) or section (ii) of from practicing law for non-compliance. pressing need for legal services to be pro- (c)(2). A lawyer may report in both (i) and (171 The responsibility set forth in this vided to persons of limited means without (ii). but must report in at least one of the Rule is not intended to be enforced through fee or expectation of fee. That type of service two. Appropriate organizations are those disciplinary process. Suspended attorneys, is a greater priority than services rendered organizations which provide pro bono legal however, may not engage in the practice of at a reduced fee to those same persons. For services, as described in section (b) of the law. Lawyers who do so may be subject to the majority of Utah's practitioners, this Rule. The intent of this Rule is to direct attorney discipline for violation of Rule 5.5 preference for "no-fee" service is reason- resources towards providing representation as well as other applicable rules. able. However, a substantial number of for persons of limited means. Therefore, fI81 Reporting records for individual Utah's lawyers practice in communities in only contributions made to these described attorneys wil not be kept or released by which (or with clientele for whom) the cost organizations should be reported. the Utah State Bar. The Utah State Bar will of living is high and wages are low. For (151 The 36-hour standard for the provi- gather useful statistical information at the example, Utah's rural counties have aver- sion of pro bono legal services is a close of each reporting cycle and then age wages ranging from 60% to 80% of the minimum. Additional hours of service are to purge individual reporting statistics from Salt Lake County norm, while cost of living be encouraged. Many lawyers wilL as they its database. The general statistical infor- is from 90% to over 100% of the national have before the adoption of this Rule, con- mation will be maintained by the Bar for norm. The same is true of some Wasatch tribute many more hours than the minimum. year-to year comparisons and may be Front communities. These lawyers may To ensure that a lawyer is recognized for the released, at the Bar's discretion, to appro- have a practice which consists generally of time required to handle a particularly priate organizations and individuals for rendering services at reduced fees to persons involved matter, this Rule provides that a furthering access to justice in Utah. of limited means. The general preference lawyer may carry forward, into the next of "no-fee" service may not apply to these reporting year, any time expended in excess CODE COMPARISON lawyers in the same manner as to lawyers of 36 hours in anyone reporting year. There was no counterpart of this rule in who rarely render such service. Lawyers may only car forward hours from the Disciplinary Rules of the Code. EC 2-25 (121 While the personal involvement of the immediate preceding reporting year. stated that the "basic responsibility for pro- each lawyer in the provision of pro bono Hours carried forward may be reported in vi ding legal services for those unable to legal services is generally preferable, such section (c)(iii). However, a lawyer does not pay ultimately rests upon the individual personal involvement may not always be have to complete section (c) (iii) to comply lawyers . . . Every lawyer, regardless of possible or produce the ultimate desired with the reporting requirement of this Rule. professional prominence or professional result, that is, a significant maximum (161 If a lawyer submits his or her annual workload, should find time to participate in increase in the quantity and quality of pro dues statement without reporting the required serving the disadvantaged." EC 8-9 stated bono legal services provided. The annual information in sections (c) (i) and (c)(ii), the that "(tJhe advancement of our legal system contribution alternative recognizes a lawyer's dues statement for that year wil be is of vital importance in maintaining the lawyer's professional responsibility to pro- incomplete. Incomplete statements wil be rule of law. . . (andJ lawyers should encour- vide financial assistance to increase and returned to the lawyer and the lawyer's age, and should aid in making, needed improve the delivery of pro bono legal ser- licensing for that year wil not be processed changes and improvements." EC 8-3 stated vices when a lawyer cannot or decides not until the dues statement is complete. that "(tJhose persons unable to pay for legal to provide pro bono legal services through Lawyers in this category may be suspended services should be provided needed services." the contribution of time. Also, there is no prohibition against a lawyer contributing a combination of hours and financial support. The Sixteenth Annual fI3J The reporting requirement is designed to provide a sound basis for eval- Bob Miller Memorial Law Day Run uating the results achieved by this Rule and The Sixteenth Annual Bob Miler children 11 and under to seniors 70 and to remind lawyers of their professional Memorial Law Day Run is set for 9:00 on over. The typically heated team competi- responsibility under this Rule. In meeting Saturday morning, May 2, 1997. As in the tion wil again involve teams of two this reporting requirement, lawyers must past, we encourage the legal community to women and three men. Medals for the top report the number of hours provided in the join us in this annual rite of spring. The three in each division wil be awarded, as preceding reporting year in section (c)(l). course wil be similar to that of the past few well as a trophy to the winning team. T- A reporting year is the just completed or years, with the start and finish lines moved shirts wil be provided for all registrants. the about to be completed, licensing year to accommodate construction on the new Registration is $13 prior to race day, and for the lawyer. Therefore a lawyer submit- stadium. As in the past, the race is a five $15 at the race (plus $12 for each team). A ting a report for the licensing year starting kilometer race. The course is generally flat registration form is included in this issue, July 1 of a given year, would report pro and downhil, sure to generate some good and additional forms are available from bono activities or contributions for the pre- early season times. As in the past, we wil Kent Hansen or Pat Moeller, Richards, ceding July 1 through June 30. have divisions for attorneys, paralegals, Brandt, Miler & Nelson (531-2000). (141 For section (c)(2), a lawyer must legal personnel, law students, law faculty, report amounts contributed to appropriate and the usual age group divisions, from

42 Vol. 11 NO.3 SATURAY, MAY 2,1998,9:00 AM

. REGISTRATION: Pre-registration: must be postmarked by Monday, April 27 or received at Richards, Brandt, Miler & Nelson, P.O. Box 2465, ifl Salt Lae City, UT 84110-2465 by Thursday, Apnl 30 at 5:00 pm. Day-of-Race Registration and T-Shirt Pick-up: 8:00 am - 8:45 am at THE the parking lot located at 1530 Eat South Campus Dnve (near the entrance to the Marriott Library and the Behavioral Sciences BOB MILLER Building, and norteast of Rice Stadium) on the University of Uta MEMC9RIAL Campus. . FEE: Pre-registration S13.00; day-of-race registration SI5.00. LAW DAY

. All proceeds in excess of the costs of the race wil be donated to RUN the Court Appointed Special Advocate program (CASA) to benefit abused and neglected children. . AWARS to top three finishers in 17 categories (Male and Female). . T-SHIRTS to all registrants. :?------THE 1998 BOB MILLER MEMORIAL LAW DAY RUN Registration Form

Name Age (Pleae pnnt. Wnte "TEAM" ¡fused for tea registrtion) Address Zip

Phone Law Firm (if applicable)

Wnte Individual Category here: MAEIEMAE (circle one)

A Attorney (under 40) E Law Enforcement 1 1 1 and under M 30-39 B Attorney (40 and over) F Judge J 12-14 N 40-49 C Law Student G Legal SecretalPersonnel K 15-19 o 50-59 D Law Faculty H Paralegal/gal Assistat L 20-29 P 60-69 Q 70 and over I am also a TEAM MEMBER Yes No (circle one) (Each thee mantwo woman team must complete one additional Registrtion Form listing all team members on the back of the form. Additional Team Fee SI2.00/team.)

DISCLAMER: In consideration of the pnvilege of paricipating in this race, J hereby release from all liability the sponsors of tls race and all volunters and support people associated therewith, for any injury, accident, ilness or mishap that may result from paricipation in the race.

Signature of Paricipant Date Mail form and registration fee to:

LAW DAY RUN Signatue of Parent (if paricipant is a minor) do RICHAS, BRADT, MILLER

& NELSON Please enclose a S13.oo registrtion fee T-Shirt size (circle one) P.O. BOX 2465 Make checks payable to: Law Day Run Adult M L XL XX SALT LA CITY, UT 84110-2465 *Day of race registrtion S15.00 *Team registration S12.oo (in addition to team members' registrtion) -'-

¡ I Ii The Scott M. Matheson Courthouse i i A Users' Guide ï I

By Briana L. Lavelle

BRIANA L. LAVELLE is a partner at Mock Trials, and programs involving the Now thatCourthouse the Scott has M.been Matheson completed, Crowther Gardner & Lavelle. She earned Guardian Ad Litem, CASA (Court you probably have many practical ques- her Bachelors of the Arts degree from Uni- Appointed Special Advocates) volunteers tions concerning the move and versity of California, Santa Barbara in 1989 for the Guardian Ad Litem, and Pro-Bono familiarizing yourself with the layout of with a double major in Communications projects may be conducted some evenings. the building. This article is designed to Studies and Economics, and her Juris Doc- The State Law Library located inside the torate degree from Southwestern University, assist you with gaining some practical new Courthouse may extend its hours of information about the new Courthouse so School of Law in 1993. She clerked for a State District Court Judge in Las Vegas, operation, but such determination is still your first visit and subsequent visits will be Nevada from 1993 through 1994 and then waiting further consideration. less confusing and intimidating. moved to Utah where she commenced her Resources within the Courthouse, such practice of Civil Law with a focus towards as the State Law Library, Conference.Cen- A.LOCATION Commercial and Corporate litigation. She tel' and Meetings Rooms will be made The Scott M. Matheson Courthouse is is a member of both the California and available for approved programs and activ- located at 450 South State Street, Salt Lake Utah State Bars. She now serves on the Utah ities. To schedule such approved programs City, Utah 84102. It occupies the \eastern State Bar Membership Support Committee and activities, arrangements should be half of the block and is directly west of the of the Young Lawyers Division and Alterna- made with the appropriate persons in the tive Dispute Resolution, Education City County building. The main entrance is Administrative Office of the Courts and Subcommittee. on the east side of the building between 4th Building Security. and 5th South streets facing State Street. There is a secondary entrance on the west C.PARKING side of the building on Church Street. conducted in the evenings or weekdays Parking is located below the Courthouse beyond the normal hours of operation wi! building. Entry to the parking structure is B. HOURS OF OPERATION be accommodated. For example, Small on 4th South with exits on either 4th or 5th The hours of operation for the new Claims Court is expected to be held on Tues- South streets. Public parking wi! be avail- building will be from 7:30 a.m. to 6:00 day, Wednesday, and Thursday of each week able on the second parking leveL. There are p.m. Monday through Fridays, except for until approximately 10:00 p.m. Traffic Court approximately 275 public parking stalls on legal holidays. These new hours are an session are currently scheduled to be held the second level for cars and motorcycles. extension of the current State Court hours Wednesday and Thursday evenings from Motorcycles will be parked in a regular of 8 a.m. to 5 p.m. Activities and programs 6:00 p.m. until 7:30 p.m. Also, Peer Court, automobile stalL. Bicycle racks are also 44 Vol. 11 NO.3 - installed on Parking Level Two for the Offices in the Administrative Office of the Supreme Court public or employees of the Courthouse. Courts; Judicial Council; District Court- 450 South State Street Diamond Parking Services has con- rooms; and District Court Judges' Chambers. P.O. Box 140210 tracted to manage the Public Parking area. Courthouse Level 4: District Court- Salt Lake City, Utah 84114-0210 The hourly fee charged for parking will be rooms and District Court Judges' Chambers; Law Librar determined and is expected to be approxi- and a High-Security Courtroom. 450 South State Street mately $1 - $2 per hour. Vehicle drivers Courthouse Level 5: Supreme Court; P.O. Box 140220 wil obtain a ticket from a machine to trig- Court of Appeals; the Appellate Justices' Salt Lake City, Utah 84114-0220 ger the lifting of a gate to enter the parking Chambers; and the Clerks Office for both area, similar to parking at the airport or Appellate Courts. Court of Appeals shopping mall. Arrangements may be made Moreover, attorney-client meeting rooms 450 South State Street directly with Diamond Parking Services to are located at the entrance of each Court- P.O. Box 140230 purchase parking "script" at a bulk rate to room. These Conference rooms are available Salt Lake City, Utah 84114-0230 be used to pay for parking in lieu of cash. on a first-come first-serve basis. There is Administrative Offce of the Courts Validation stickers wil be issued by the also a Reception Area on each floor at which 450 South State Street appropriate department, free of charge, to attorneys may request to speak with Judges, P.O. Box 140241 the following: Commissioners or Court staff. On the 2nd, Salt Lake City, Utah 84114-0241 civil and criminal case jurors; criminal 3rd and 4th floors, these reception areas are and juvenile case witnesses; judicial located at both the North and South Wings Third District Court committees; council and board members; of the Courthouse. 450 South State Street visiting dignitaries; and visiting Judges. P.O. Box 1860 There will be no metered parking E. MOVING SCHEDULE Salt Lake City, Utah 84114 spaces in front of the Courthouse on State The moving schedule is coordinated Offce of Guardian Ad Litem Street. The metered parking spaces cur- based on the organization of the new Court- 450 South State Street rently located there wil be removed to house. As of January 23, 1998 the moving P.O. Box 140403 allow free flowing traffic along State schedule is as follows: Salt Lake City, Utah 84114-0403 Street. Limited metered parking may be Court of Appeals: March 7 - 9, 1998 found on 4th and 5th South Streets. Supreme Court: March 10 - 12, 1998 Third District Juvenile Court District Court Judges, Commissioners 450 South State Street D. COURTHOUSE LAYOUT and Staff: April 4 - 7,1998 P.O. Box 140431 The five story Courthouse has 420,000 District Court Clerk's Offce: April 7 - Salt Lake City, Utah 84114-0431 square feet of floor space. The cost to com- 10, 1998 plete the building was approximately $115 District Attorney's Offce: May 3 and 4, G. BUILDING SECURITY per square foot for a total of $68 Milion. 1998 The Courthouse was designed with Apparently, the National average for the Administrative Offce of the Courts: safety as a primary consideration. Signifi- cost of State Courts is more than $150 per May 3 - 8, 1998 cantly improved structural design measures square foot and Federal Courthouses aver- Guardian Ad Litem: May 9,1998 were incorporated in the construction to age considerably more. Members of the Juvenile Court: May 20 and 21,1998 limit damage from explosion or earth- Utah State Bar have contributed to the fur- Law Library: June 2 - 8, 1998 quakes. Lower support columns were nishings for the lawyer use areas such as enlarged and strengthened and special rein- the attorney lounge and the attorney-client F. MAIL DELIVERY forcing was added to protect the main conference rooms through the voluntary State Central Mail wil provide mail ser- building frame in the event of an explosion donation of bar dues. vices to the new Courthouse building. The or earthquake. Parking Levell: Scott M. Matheson mail is scheduled to be delivered to the A state of the art security system with a Building Support, Central Control Security Courthouse by 8:30 or 9:00 a.m. each morn- Central Control Security Center and video and Building Services. Public telephones ing. This provides for mail delivery two monitors throughout the building is wil also be located on the first floor in the hours earlier than the current system. This installed in the Courthouse. The audio- main hallway. system is based on P.O. Box numbers and visual monitoring and alarm systems Courthouse Levell: District and Juve- individualized zip codes assigned to each throughout the Courthouse are controlled nile Court Clerk's Office; State Law specific department. form the Central Control Center located on Library; Attorney Lounge; Convention and In order for the automated machines at parking level one and is operated 24 hours Education Centers; Jury Assembly Room; the Post Office and State Central Mail to a day by Deputies of the Salt Lake County and Cafeteria. read the address, it must appear exactly as Sheriff's office ("Central Control Secu- Courthouse Level 2: District Attorney shown below, with the street number and the rity"). Central Control Security can Office; Administrative Office of the P.O. Box number listed on separate lines. At observe any disturbance in Courtrooms or Courts; Juvenile Courtrooms; and Juvenile this time, P.O. Box numbers and zip codes other area throughout the building. Video Court Judge's Chambers. are assigned as follows: cameras are also located in the parking Courthouse Level 3: Remaining areas and surrounding the outside of the

April 1998 45 building. The sophisticated security system also consists of zones throughout the build- Young Attorney Profile ing. Electronic card readers control access John Bowen internally and to the perimeters of the building. The electronic card readers are By Peggy E. Stone programmed to permit particular individuals to access only those areas which the individual has been authorized to enter. Also located in parking level one, in close proximity to the Central Control Security Center, are secured holding ceIIs which wi! house inmates who are scheduled for a Court hearing. The Central Control Secu- rity Center is capable of holding all prisoners until the last one appears in Court, thus reducing the number of trans- portation vehicles and guards necessary.

H. DIRECTORIESIINFORMATION Building directory floor maps, similar to those seen in shopping malls, wil be located on the first floor, near or in the The next time you and your guest are out optimal serving temperature. I guess you rotunda area. Such floor maps wi! provide for lunch or dinner and wondering which could say that I get to counsel and serve assistance in locating particular areas wine would go best with the London broil or people in both of my jobs." within the Courthouse. In addition, televi- the ahi tuna entrees you have chosen, the When I asked how he became interested sion type monitors, similar to a flight person giving you advice on the proper or in wines, Bowen responded that, "It started schedule monitor at the airport, wi! also be best wine selection might be John Bowen. in i 992 when the Utah Jazz were in the displayed in or around the rotunda area and John, a 1993 graduate of the University playoffs against the Denver Nuggets. Some wiII list the calendar schedule for each of Utah College of Law and Assistant Attor- friends and I went to Denver for a game courtroom. ney General in the Child and Family Support and had a fabulous meal, accompanied by An information desk will be established Division, has a second interesting job. When a great wine. It was the first time that I near the entrance of the first floor once vol- John is not representing the Office of Recov- understood how the two went together to unteers are identified and trained. ery Services in state district and juvenile create such a wonderful experience. Some- courts or in federal bankruptcy court, John is thing just clicked. Now I am fascinated i. CAFETERIA the wine steward for Spencer's in the Dou- with the different food and wine combina- The new Courthouse wi! have a cafete- bIetree HoteL. Spencer's is a restaurant and tions and I try to recreate that first ria on the main level operated and serviced also offers its customers a cigar bar. John is experience. It is exciting for me to share by the State Office of Rehabilitation. The also a cigar steward, but is more comfortable that feeling with other people too. I want to cafeteria operating hours will be 7:30 a.m. with his wine steward position because he be able to help someone else understand to 3:00 p.m. Vending machines will also be has six more years of knowledge and experi- the simple pleasure that can come fr9m a located in the cafeteria. ence in that aspect of his work for Spencer's. good meal, a fine wine and some good When we met for this interview, John had company and conversation." J. CONCLUSION to coordinate his lunch entree with one of I asked why John decided to take his Once the departments, courtrooms, the new wines on Spencer's wine list that he wine hobby and turn it into another career. judges, staff and files are moved, the Scott had yet to try. "One of the best and perhaps He said that, "I was going to work out M. Matheson Courthouse should provide a the most fun way of learning about wines is three nights a week to get in shape, this dignified and convenient complex which to try them," said Bowen. Although he can way I still get some exercise but I play houses all of the appropriate State Judicial tell you about where they are made, and with bottles of wine instead of weights. and related offices under one roof. It what foods they compliment best, the fact Besides, the extra income is a nice bonus should be a welcome change to the present that Spencer's has more than one hundred for doing something that I enjoy anyway. I situation. wines on its wine list, means that John has a have always enjoyed being able to give few more to actually try for himself. friends and colleagues advice on what I asked him what exactly his job as wine wine to take to a party, or what wine can steward entailed. "The job of a wine steward serve a bunch of people without costing the is to help people decide which wine wil go host an arm and a leg. Now I can do this best with their food choice and with their for people that I don't already know." particular preference. Then I serve the wine, Before starting to work at Spencer's, taking into account the proper chilling and John and the other employees took a class 46 Vol. /1 No.3 - to learn about the potent potables that wine unfriendly place." When I looked Spencer's seIls. The class lasted for two amazed he went on. "For its size, Utah gets 1998 and a half weeks and was held in the many fine and acclaimed wines. The cross Law Day Luncheon evenings on work days and then all day on section of choices is quite remarkable. Many Saturday. They learned about wines, single come from boutique wineries that only pro- Keynote Address: malt scotches, cognacs, ports, small batch duce 200 to 300 hundred cases worldwide. Judge Mills Lane bourbons, and the foods that compliment Some always seem to end up on the shelves these beverages. Spencer's offers all of of Utah liquor and wine stores." Bowen con- By Dan Garrison these choices and it is John's job to be ceded, however, that only about one-half of there to help customers choose the best the meals sold at Spencer's had wine accom- "Let's get it on!" he drink for their meals. panying them and that most of the wine says at the beginning "The rules that are typically thought purchasers were out-of-towners in Utah for of each boxing match, of-white wine with fish and red wine with vacations or on business. after cautioning the beef - are not as strict as people think. The I asked what has most surprised John fighters that he wants first rule is to start with a wine that you since he became a wine steward. John said a "clean, hard fight." like and go from there. It is fun to talk that, "I was amazed with the number of bou- Mike Tyson calls him about the different wines and how individual tique wineries and the wonderful wines they Mr. MiIls. Attorneys wines and vintages impact the particular make. The exciting thing is that these wines and the smarter liti- flavor," said Bowen. "I always thought that are here today and gone tomorrow. With pro- gants and criminal defendants who appear I would go back to school and get a CPA, duction at only 200 to 300 cases world wide before him calI him "Your Honor." but now I think that I might do something they do not stay around long. Once those He's Mils Lane, Chief Judge of the that I have a bit more passion for and try to bottles are gone, they are gone for good. The Reno District Court in Nevada. He's also get accreditation as a sommelier." fun is the hunt to find them and to see what the most sought after and recognized prize I asked John about the difference they have to offer." fighting referee in the business. He's refer- between a sommelier and a wine steward. John told me his tastes in wine do not eed over ninety world championship bouts, "A sommelier is an expert on wines and change; it is the wines and particular vin- including the now infamous Mike Tyson/ has charge of the wines and wine service in tages that change. "In some ways it is like Evander Holyfield bout. That one left Mike a restaurant," he told me. "A true somme- the practice of law," he said, "the particular Tyson suspended from boxing, and Evander lier is accredited at one of five levels. A legal principle does not change, but the Holyfield with a slightly smaller ear. He Master Sommelier has reached the fifth application of the facts to the principle can doesn't take crap from anybody, and nobody leveL" John added, "There is only one change an outcome significantly." who knows him tries to give him any. American that has reached the level of a Like any good lawyer who keeps up with Judge Lane was himself a boxer. A good Master Sommelier and I am fairly certain changes in the law, John keeps up with one. He was the All Far East Marine Corps that he is not also an attorney." changes in wines and studies to keep up with Boxing Champion in 1957 and 1958. In When I asked John if he had ever con- industry changes and trends. "With my pracc 1960, as an undergraduate at the University sidered combining his law degree and his tice of law, I have found that there is always of Nevada at Reno, he was the N.C.A.A. knowledge of wines, he laughed and replied, something new and exciting to learn. The Welterweight Champion, and received the "WeIl, learning and applying the state's more I learn about an area of law, the more I John S. LaRowe Trophy as the Outstanding liquor laws would be a fuIl time job, and I recognize that there is much more that I do Boxer in the N.C.A.A. tournament. He was already have a full time job with the Attor- not know. My knowledge of wines is the also a finalist in the 1960 Olympic" Trials. ney General's Office that I love. Besides, same. The more I learn, the more there is to He boxed professionally from 1960 to my job as wine steward provides some bal- know. At this point in my wine career I 1963. In 1991, he was inducted into the ance in my life. It is a way for me to get would say that I am knowledgeable about World Boxing Hall of Fame. away from the practice of law for a while and California Reds, I am familiar with Califor- Then there's the part of him that fights explore something else. I don't really want nia Whites, Washington Reds, Australian for law and order. In 1967, after receiving the two to mix. Luckily, I have not had an Reds and Chilean Reds. I am acquainted his Bachelor's Degree in business adminis- opposing counsel as a customer yet." with French Reds and Australian Whites. tration, he enrolled at the University of When I remarked that I was surprised And that does not even touch the ports, Utah CoIlege of Law. After graduating in that there was a market for so many differ- brandies, cognacs, and single malt scotches. 1970, he went into private practice for a ent wines, not to mention single malt The fun part is all of the fine company and year. In 1971, he joined the Washoe scotches, John said, "WeIl the single malts food that I will enjoy as I learn." County District Attorney's Office in Reno. are most often tied to the cigar bar because Over the next twelve years, he developed a many people enjoy them together. Cigar wide reputation as a feared and respected bars are the new trend in many places. The prosecutor. His trial losses were few and wines enjoy a wider market, but they have far between. been around much longer." In 1983, the voters made him Washoe Astonishingly, Bowen says that despite County District Attorney, and his reputa- some people's perceptions, "Utah is not a tion continued to grow. He's been awarded

April 1998 47 ~

countless distinctions for law enforcement. In 1991, he was electedDistrict Judge. May 1, 1998, the day he wil speak at the Law Day Lun- Information about the cheon, is his last day as a Nevada State judge. He's resigning the bench to begin filming episodes of a new Law Day Luncheon "People's Court" genre television show called "Judge Mills Lane - Justice You Can Trust." Look for it in the falL. He's a character. Bigger than life, de~pite his five-foot The 1998 Law Day Luncheon will be held at seven-inch frame. He lists his hobbies as "Physical Fitness, noon on Friday, May 1, 1998, at the Doubletree Refereeing Professional Prize Fights, and Poker," and he's as conservative as "calling" on a nickel bet. He is law and Hotel in Downtown Salt Lake City. Registra- order. Just ask him. Never mind, he'll probably tell you. tion materials are being sent in the mail to all Utah State Bar members. You may also call Ms. Volunteers Needed for 1998 Call-A-Lawyer Program Amy Jacobs at (801) 297-7033 for further information or to register. Don't miss what is The Young Lawyers Division of the Utah State Bar needs volunteer attorneys to help provide free legal sure to be a very entertaining luncheon. information during the YLD's 1998 Call-A-Lawyer Pro- gram. The event is scheduled for Thursday, April 30, 1998, from 6:00 p.m. to 9:00 p.m. Please contact Robert Rice at Ray Quinney & Nebeker, 532-1500, for further information. The Law Firm of

CALLISTER NEBEKER SMITH, KNOWLES & HAMILTON & MCCULLOUGH A PROFESIONAL CORPORATION TAK PLEASURE IN ANNOUNCING THAT KEVI EGAN ANERSON is pleased to announce AND ROBERT E. MASFIELD that HAVE JOINED THE FIR HOWAR B. GEE HEREAFlER THE FIR WILL BE KNOWN AS and SMITH ANERSON KNOWLES DOUGLAS K. CUMMINGS HAMILTON & MANSFIELD A PROFESIONAL CORPORATION have become shareholders MELVEN E. SMITH and KEVIN EGAN ANDERSON DAVID L. KNOWLES directors of the firm; DAVIDR. HAMILTON ROBERT E. MANSFIELD GLEN F. STRONG ROBERT KAIY A STANFORD A. GRAHAM Formerly of Mayer, Brown & Platt GARY R. WILLIAMS has become associated STEPHEN F. NOEL OF COUNSEL: with the firm. FREDRICK "BUCK" FROERER II

WE ARE ALSO PLESED TO ANNOUNCE TIE OPENING OF OUR SALT LAE CITY OFFCE Law offices located at OGDEN OFFICE: SALT LAE CITY OFFICE: Gateway Tower East Suite 900 4723 HARRISON BLVD. 60 EA SOUTH TEMPLE 10 East South Temple SUITE 200 SUITE 1270 Salt Lake City, Utah 84133 OGDEN, UTAH 84403 SALT LAE CITY, UTAH 841 I I Telephone: (801) 530-7300 (801) 476-0303 (801) 320-1414 Facsimile: (801) 364-9127

48 Vol. JJ No.3 :C State of the Judiciary

Remarks Delivered by Chief Justice Michael D. Zimmerman January 19, 1998

and legislative branches assures that we can late process. But the role of administering GovernorSpeaker Leavitt, Brown, President legislators, Beattie, and communicate openly and candidly about the courts as a whole is assigned by the members of the public. On behalf of the how to best address these chaIlenges with a Constitution not to the Supreme Court, but Utah Judicial Council, the Utah Supreme minimum of mutual suspicion and posturing. to the elected representatives of the legal Court, and all the judges and staff in the Before I start into the body of my report, system who constitute the Utah Judicial third branch of government, I thank you I want to take this opportunity to introduce CounciL. 1 though this would be a good for this opportunity to report on the state of several people to you. First, all of you know opportunity for you to put faces to that the Utah judiciary. my coIleagues on the Utah Supreme Court. institution. As the Chief Justice of the Utah Supreme Justices Stewart, Howe, Durham and Rus- The Council has i 4 members, 12 judges Court, one of my primary duties is to chair son. But today I would like to ask Associate elected from their respective court levels, the Utah Judicial Council and to see that Chief Justice Richard C. Howe to stand. As including one Supreme Court justice, one the policies set by the Council are imple- of April 1, I wiIl be stepping down as Chief court of appeals judge, five district court mented by the State Court Administrator. Justice and he wiIl be assuming the post. He judges, three justice court judges, and two In performing these duties, I do not act as a wiIl do an exceIlent job. Justice Howe has juvenile court judges. There is also a bar judge, a decider of cases. Rather, I fuIfiIl been a member of our court since 1980. representative on the Council, elected by an administrative role assigned me by the Before that, he served for nearly two the Bar Commission. And the final mem- Constitution. I am here today in that capac- decades in this legislature, first in the House, bers is the Chief Justice, who is the chair ity to report to you on the state of the third where he was speaker in 1971 and 1972, and and votes only to break ties. I would like branch from an operational perspective. then in the Senate, where he served from the members of the Council to stand as I We in the judiciary face a number of 1973 to 1978. He understands your institu- introduce them. challenges as we head into the next cen- tion and wiIl maintain our exceIlent working Supreme Court Justice Leonard H. Russon tury. Some of these are recurring relationship. Justices Stewart, Durham and Court of Appeals Judge, and vice chair challenges and are the inevitable conse- Russon are also here today. of the Council, Pamela T. Greenwood quence of Utah's growth. Others are I would also like to introduce you to the Judge Anne M. Stirba of the 3rd District unanticipated and raise fundamental ques- members of the Utah Judicial CounciL. The Court, Salt Lake County tions about the way we have always done Supreme Court is the top of the judicial Judge Michael Glasmann of the 2nd business. But in either case, the Utah judi- decision-making pyramid in Utah. And the District Court, Weber County ciary is positioned to meet those Constitution also gives it some administra- Judge Robert T. Braithwaite of the 5th chaIlenges. We are weIl organized, innovative responsibilities over the system, such as District Court, Iron County tive, and efficient. And our excellent setting rules of evidence and procedure, Judge Michael Burton of the 3rd Dis- working relationship with the executive overseeing the Bar, and managing the appel- trict Court, Salt Lake County

April 1998 49 Judge Anthony W. Schofield of the 4th positions internally, and then present them to branches of government, another strength District Court, Utah County others with one voice. of our structure is that its coherent Judge Kay A. Lindsay of the 4th Juve- A recent example of how this has served statewide administration is combined with nile Court, Utah County all the branches, and the public, is in the a sensitivity to the needs of each part of the Judge Stephen A. Van Dyke of the 2nd area of juvenile justice. In my state of the system. That has allowed us to be innova- Juvenile Court in Davis County judiciary address four years ago, I first tive and flexible in meeting the public's Judge Kent Nielsen of the Sevier began calling your attention to the inability needs. We are constantly planning, setting County Justice Court of the juvenile justice system to deal with goals, and trying new approaches to reach Judge Stan Truman of the Emery the large increase in youth crime that has them effciently. These new approaches are County Justice Court paralleled growth in this segment of the pop- often done on a pilot basis, with little or no Judge John Sandberg of the Municipal ulation. A lack of necessar probation staff, additional funding. If these approaches are Justice Courts of Clearfield, Clinton, of programs, and of secure detention beds successful, we attempt to implement them Riverdale and Sunset. (That is four differ- produced long delays and an inability to statewide, coming to you when necessary ent courts John handles. I have not merged match swift and appropriate sanctions to for additional funding or legislation. these municipalities into one.) youthful offenders. The juvenile victim-offender mediation James Jenkins, a member of the bar Competing visions between the juvenile program is an example of a program that from Logan. court and various executive agencies as to we developed and later came to you for That is the Utah Judicial CounciL. These how the problem should be addressed and by support to expand it after it showed are the people who set the administrative whom, and the threat that any remedy would promise. This was initiated on an experi- policies by which the judicial branch is have a large price tag, made the prospects of mental basis in the 3rd District Juvenile run, and also set the budget and legislative corrective actions dim. But after extensive Court in 1996. Under that program, media- priorities for the system. Of course, we conversations we initiated among leadership tion is offered to the victim and the depend heavily on our able State Court of the Senate and House, the Governor's offender, generally before a judge is ever Administrator, Dan Becker, his staff, and office, the courts, and affected executive involved. The objective is to give the vic- all the other court employees working agencies, an agreement was reached to put tim an opportunity to meet the juvenile across the state to carry out those policies. together the Juvenile Justice Task Force, offender and impress upon them how the Dan, would you please stand, too. now in its second year. This legislative task crime has affected their lives. It also gives I want to take one moment to congratu- force was carefully structured to include all the victim a chance to play an active role in late all who had a hand in the 1984 the key players and to put all the tough determining the restitution required and revision of the Judicial Article of the Con- issues on the table. any community services to be performed. stitution that established the CounciL. You It is a testament to how well that task That program proved very successfuL. provided us with one of the soundest judi- force process worked that last year, you Victims are vastly more pleased with the cial administrative structures in the United passed without reduction its proposed $22 process than when cases are handled in the States. It assures that all levels of court, million package of increases for juvenile traditional manner. Surveys tell us that and both urban and rural areas of the state, justice. The courts received $6 milion of more than 90% of the victims participating have their perspectives considered. Yet this money. One half of that $6 milion was in the program felt good about the process, because no court level dominates the coun- used to establish programs developed in the a remarkable figure given that they are vic- cil, all must work out their differences and local juvenile court districts to provide ser- tims of crime. In addition, the process make common cause for anything to be vices that previously did not exist. The other makes a strong, positive impact on offend- accomplished. This has the effect of taking half of the money was used to hire 60 new ers. They must sit down with their victims people who may have fairly parochial per- probation officers to make sure that youth go and understand the result of their actions in spectives at the start and bringing them to to those newly available programs and do very personal terms. That has changed see the needs of the judiciary as a whole, what ever else the court has ordered them to their subsequent behavior. people capable of placing the needs of the do. The rest of the $22 millon is being used From our records, we find that when system ahead of the needs of their own by other agencies to provide other much mediation is used, the offending youth is l court level and geographical area. Largely needed juvenile facilities and services. 20% less likely to reoffend than those who J: because of this need for consensus, the I think we can look back on this whole have not gone through mediation. And Council has proven itself capable of devel- matter with some pride. You, the legislature, when mediation has been used to set the oping and refining sound initiatives, and of and the governor have shown real leader- amount and terms of restitution to be paid, mounting support for them to see that they ship. The problem was identified, a process the offenders pay a higher percentage of are implemented. And because the terms of for addressing it was created, a consensus the amount ordered, and on time. members are staggered, we have continuity solution emerged, and you found the means These startlingly, good results, led us in direction despite changes in membership. to implement that solution. This is a model last year to ask for funding from one staff My diversion onto the subject of the of effective problem solving by all three person to expand the program. You gave us strengths of the Council system is not irrel- branches of government. that funding, and with that support staff evant to the theme of my speech today. While this example illustrates the capac- person, we have been able to secure the One of the Council's strengths is that it ity of the courts, as an entity, to play an services of volunteer mediators, allowing enables the judiciary to formulate coherent important role in working with the other two the program to be taken statewide. Obvi-

50 Vol. 11 No.3 ously, if these results hold up over time, nature of the caseload and the sheer volume representing themselves in civil matters. this program has real potential for getting of the work was too demanding for one These cases are of various types, from youth out of the juvenile system sooner, judge. But the lesson of her experience is divorce, abuse protective orders, custody and keeping them out. It also has the added that sustained attention by one judge to a and visitation, to contract and torts. In advantage of giving victims a much greater defendant produces positive results that are Utah, currently one in every five civil cases sense that the system cares about them, and hard to achieve otherwise. The other lesson is filed pro se, and the trend is upwards. that they are an integral part of the process. is that increased judge time per case sharply This trend toward self-representation is The Alternative Dispute Resolution pro- increases workload and cannot be main- nationwide and I think it wil persist. For gram I have just described is only one of tained without additional judicial and example, in Phoenix, Arizona, one-half of six ADR programs that we are presently clerical resources. all divorce matters are now filed pro se. conducting in the appellate, district and A similar lesson is taught by our two This trend is partly driven by economics - juvenile courts, all of which show consid- existing drug court programs, and can be the cost of lawyers - and partly by a desire erable promise. The bulk of these programs expected from other drug court programs of people to handle their disputes by them- have been initiated without additional that are being proposed around the state. selves. Direct participation gives them funding through the use of existing staff Dramatic reductions in the rates at which more understanding and more control over and volunteers. defendants reoffend result from successful the process and the outcome. This same Innovative programs that provide better completion of the program, but the judge desire to participate directly is also one of solutions for the parties and the public are time per defendant is about 15 times what it the things that is fueling the growth in our not without their challenges, both for the would be in the routine criminal case. ADR programs. judiciary and for the legislature. We have We have had a similar experience in the Direct participation presents problems, undertaken several intensive judge-cen- juvenile court. The Child Welfare Reform however. Courts are structured to operate tered programs in the district and juvenile Act of 1994 formalized proceedings and with lawyers representing the parties, courts to respond to obvious needs. These required more judge time per case in the which permits the court personnel and programs show that better results for the hope of achieving better outcomes for chil- judges to act as detached participants in the parties and the public are often available, dren, parents, and society. The Act has had litigation process. In such a scenario, but that they come at the cost of much the desired consequences. However, at a lawyers who understand the intricacies of increased judge time and attention per high cost. Abuse and neglect matters consti- the law and the procedures can be counted case. The very success of these programs tute less than 5% of the case fiings in the on to advise the clients, advocate their raises serious questions about how much juvenile court, but now require almost 50% positions, and get them through the we are wiling to pay to improve the qual- of the total available judge time to process. process. The presence of large numbers of ity of justice the courts can provide. These are only examples, but I suspect pro se litigants is fundamentally inconsis- In January of 1997, Judge Sheila that in the future, we wil see more pro- tent with this system. Their lack of McCleve of the 3rd District Court estab- grams, whether originated internally or from understanding of procedure and the law lished a separate domestic violence without, where particular types of cases wil raises the prospect of the pro se litigant calendar. In addition to her normal case- be earmarked for more intensive judge atten- losing not on the merits of their case, but load, she took on responsibility for a tion in the hope of producing better results. on technical grounds. Also, their lack of calendar composed exclusively of domestic And if these programs are promising, I am knowledge also means that they make violence matters. The effect of concentrat- sure that we wil respond by seeking their many missteps and require help through ing the matters, instead of scattering them expansion. But you can see that more judge- the process from court employees. among all the judges' calendars, and of intensive calendars wil only compound the I have no doubt that the judiciary has a devoting additional judge time to each problems of growth we face, and put in high clear responsibility to accommodate these case, was to assure consistent treatment of relief the choice between cost and the qual- people seeking to assert their legal rights. offenders, to dramatically shorten the time ity of justice. We have made efforts. In 1995, we between an offense and a court appearance, To help us meet the demands of current placed five QuickCourt kiosks around the and to. greatly increase the likelihood that judge-intensive programs, and as well to state to permit people to prepare their own those not complying with the terms of the meet the growth in our traditional district pleadings in some types of matters. The court's orders would be punished. court caseload, we are asking for two addi- forms produced by these machines, after a As a result of her program, a far higher tional judgeships this year, one for the simple question and answer session with a percentage of abusers are now complying juvenile court and one for the district court. computer, comply fully with the require- with orders to get treatment, and compli- They are not all we need, but they are a star. ments of our court rules, thus avoiding a ance with other aspects of court orders is Let me take a minute and reflect on source of technical problems for pro se liti" also up sharply. But the cost was far more another emerging issue which I think wil gants. Although we have only five judge time per case. By year's end, after eventually be of great importance to the machines in place, last year almost 12,000 having personally conducted over 5,000 judiciary and the legislature; not necessarily people sought court information from these cases, seeing the average defendant four this year or next, but certainly in the foresee- kiosks, and almost 4,000 people printed times as often as would have been the case able future. out forms for divorce and landlord-tenant otherwise, Judge McCleve has returned to This is the challenge posed by the sharp issues. This represented a 50% increase in a more traditional calendar. The draining increase in pro se litigants: that is, people usage over the previous year.

April 1998 51 This year, we are asking for legislation processing of all types of cases. Already, I As this is my last appearance before you that wil permit us to make these same ser- hear judges complaining about how they as Chief Justice, I would like to take a vices more widely available over the have to act as lawyers for these pro se liti- moment to extend my warm thanks to Internet. In addition, we are making ADR gants and how this slows down their members of the House and Senate and the available in more forums, which should calendar. Some who have studied this prob- executive branch with whom I have had the help meet the needs of these litigants for lem have suggested that the courts will soon pleasure of working over these past four understandable, sound, and accessible dis- have to provide more clerks to act as parale- years. There are natural tensions between pute resolution processes. Finally, to make gals for pro se litigants if court access is to the branches of government that the the system a bit less daunting, we are insti- be meaningfuL. This would not be greatly founders wisely relied upon to keep each in tuting a 1-800 number where the public different from what we are already doing for its own sphere. But beyond our areas of can call and get information or register those seeking protective orders. necessary autonomy, we are all part of one complaints. Whatever steps are taken to accommo- government, trying to do the peoples' busi- You in the legislature have already date this trend, it is sure to have substantial ness. Governor Leavitt, President Beattie, addressed one small aspect of this pro se cost implications. And this is an area where and Speaker Brown all understood that fact problem and seem to agree that the courts there is no real options for the courts or the and made my task of representing the judi- should help them navigate the judicial legislature. Referring back to my earlier ciary far easier than it might have been. I processes. In 1996, you required that court remarks about more judge-intensive pro- trust that understanding wil also serve to clerks essentially act as paralegals for those grams, there you can choose not to provide ease the way for my successor. seeking domestic abuse protective orders. the judicial resources needed to permit In concluding, I would like to invite As a result, a large number of court clerks judges to devote more time to each case in each of you to visit us in the new court- are devoting the bulk of their time to this order to produce better results. But in the house in March, after our move. The work, and the demand continues to rise. area of pro se litigation, regardless of what building is on time and on budget, no mean The long-range implications of this you do or do not do to facilitate access, the feat for a project of its size. increase in pro se civil litigation is that it public wil make its own demands on the Thank you for your attention. wil bog the courts down, retarding the court system.

Iii "II THE NATIONAL JUDICIA COLLEGE Judicial College Building · University of Nevada, Reno · Reno, NV · 89557 Telephone: (702) 784-6747 or 1-800-25-JUDGE

In 1997, 31 judges from the state of Utah attended The NationalJudicial College to gain more knowledge and skils with regard to their work on the bench. The National Judicial College provided these judges with a forum for education, an opportunity for dialogue with their peers from across the country and information on topical issues. Over the years, 602 certificates of completion for course work have been issued from The NationalJudicial College to judges from Utah. "The National Judicial College is an important resource for increased awareness of expanding judicial education and practices for judicial officers in Utah," said Judge Christine M. Durham of Salt Lake City. "The College is a unique facilty that provides continuing education for about 3,000 judges and administrative officers of the court each year. The College is an invaluable resource for the bench as well as its constituencies. Founded in 1963 by U.S. Supreme Court Justice Tom C. Clark and the ABA Joint Committee for the Effective Administration of Justice. The NationalJudicial College is the leader in national judicial education in this country and throughout the world. An ABA-affiliated institution located on the campus of the University of Nevada, Reno, its mission remains to provide leadership in achieving justice through quality education and collegial dialogue. The college is funded by a mix of tuition, endowment income and contributions from corporations, law firms, foundations and alumni. The faculty at NJC consists of outstanding judges, lawyers and law professors from across the nation, most of whom serve without compensation. Significantly, 300 faculty members serve the College each year which equates to an annual contribution of $ L 1 milion. The NationalJudicial College's Master ofJudicial Studies program awarded eight degrees during 1997. "As a judge in Michigan for twenty years, I visited The National Judicial College as both a participant and faculty member. I experienced the value of interacting with judges from across the country. Each year the College strives to enhance its curriculum and update its course offerings to assure that burgeoning topics are constantly being addressed," said Judge V. Robert Payant, president of The National Judicial College. The National Judicial College was featured on "60 Minutes" as the leading continuing education center for trial judges. Additionally, the College was noted in a segment of NBC news on handling domestic violence cases. Since the College was founded in 1963, more than 60,000 certificates of completion have been issued to graduates including U.S. Supreme Court

Justices Sandra Day O'Connor and David Souter. U.S. Supreme Court Justice Anthony Kennedy has served on the faculty. II.

52 Vol. II No.3 ill

CASE SUMMARIES'

By Daniel M. Torrence

Richardson v. Matador Steak House, Inc., specialist in internal medicine, who took 330 Utah Adv. Rep. 25 (Utah 1997). Paul over the care of Mrs. Hirpa. Despite the M. Durham and J. Mark Gibb for Plain- efforts of the response team, Mrs. Hirpa tiffs; Dale 1. Lambert and Mark L. died seventeen minutes later. Mr. Hirpa Anderson for Defendants. later brought suit against, among others, Berdette Richardson became intoxicated Dr. Daines. Dr. Daines contended he was at Matador Steak House. She died when acting as a volunteer and thus protected by driving herself home. Her relatives sued the Utah Good Samaritan Act. Matador under the Dramshop Liability Act. The Supreme Court ruled that doctors The Act provides that "third persons" may are protected by the Good Samaritan Act claim relief against one who serves alcohol when they respond to an in-hospital emer- to a minor and are injured as a result. How- gency, if they have no pre-existing duty to ever, the Supreme Court held that "third do so. In deciding whether such a pre- person" does not include a relative of the existing duty arises in a particular case, intoxicated person. judges and juries may consider factors The Court declined to address the issue of such as whether the doctor was "on call," whether the trial court erred in ruling that the the doctor's contract, hospital rules, any Dramshop Act provides the exclusive remedy PatTY, and Kathleen Switzer for Plaintiffs; B. doctor/patient relationship, or any duty cre- for actions against providers of alcohol and Lloyd PoeIman for THC; Elliot J. WiIiams ated by employment, practice, or custom. preempts all common law claims for relief. and Kurt M. Frankenburg for Daines. The Court also held that this interpreta- Mr. Hirpa's wife became unresponsive tion of the Good Samaritan Act does not Hirpa v. IHe Hospitals, Inc., Merril C. during childbirth at Logan Regional Hospi- violate either the Open Courts Provision or Daines, et. aI, 330 Utah Adv. Rep. 3 (Utah tal. A "Code Blue" intercom calI brought Dr. the Wrongful Death Provision of the Utah 1997). Patricia W. Christensen, D. Craig Daines, the hospital's medical doctor and a Constitution.

.. .and the National Academy of Elder Law Attorneys is Leading the Way.

The National Academy of Elder Law Attorneys is a , non-profit asociation that assist lawyers, bar asciations and others who work with older clients and their familes. NAELA provides a resource of infonntion, education, networking and assistance on the following topics:

llealth Care Decision Making Medicare II. Medicaid " Living 7ì'usts Long- Term Care Insurance Guardianship and C'onsCtwitot:I'hip Age Discrimination Estate Planning and Probate ". and morel

For more information, contact NAELA at: 1604 N. Country Club Road, Tucson, AZ 85716.3102 520/881.4005. Fax: 520/325.7925 e.mail: ínfo(gnaela.org. Visit the NAELA website at: hltp://www.naela.org.

April/998 53 i i

i i

Independent People

By Halldor Laxness

Reviewed by Betsy L. Ross

we can thank the alienation in our culture brilliantly and ironically captures many of Most of booksthe time to read I basedchoose on recom-what today. Under the rubric of independence we these contradictions, and allows them to mendations from others - people I know have lost our sense of connectedness to oth- exist without resolution, almost reveling in being most influential (thank you to Betsy ers. "Independence" is, on the one hand, a them. His Icelanders recite the Lord's Burke at The King's English and Marcelyn bedrock component of our society, and, on Prayer, for example, as follows: Ritchie at The Waking Owl), authors I the other hand, a destructive one. It is, in Our Father, which art in Heaven, yes, enjoy, and even book reviewers. Those of essence, contradiction. so infinitely far away that no one you who have read A Thousand Acres, and Laxness explores this contradiction in a knows where You are, almost enjoyed it, wil appreciate Jane Smiley's very different setting from twentieth century nowhere, give us this day just a few comments about this novel: "I love this America. The 1955 Nobel Prize winner was crumbs to eat in the name of They book. It is an unfolding wonder of artistic born near Reykjavik, Iceland, in 1902. Inde- Glory, and forgive us if we can't pay vision and skill - one of the best books of pendent People, his legacy, explores the dealer and our creditors and let the twentieth century, I can't imagine any "independence" from the Icelander's point us not, above all, be tempted to be greater delight than coming to Independent of view. Though influenced by a very differ- happy, for Thine is the Kingdom. . . . People for the first time." Or if you read ent society, and a very different physicality, Although our history is one of accep- and loved E. Annie Proulx's The Shipping Independent People reveals the same contra- tance of religion, there exists a tension that News, you might be influenced by her dictions of independence that we in America Laxness exploits between the concept of comments: "Reader, rejoice! At last this experience today. religion, based upon faith in someone other funny, clever, sardonic and briliant book is In the same way that Wallace Stegner's than ourselves, and independence, which back in print. Independent People is one of works are dominated by place, Independent touts self-reliance. Laxness' characters, my Top Ten Favorite Books of All Time." People is driven by the influence of the for- uneducated philosophers, explore this Independent People is, not surprisingly, bidding Icelandic landscape. Set in the early seeming contradiction, questioning yet not about independence; it is a theme with twentieth century, it is the story of a sheep- discarding the precepts of religion, as in which you and I can identify. The very fab- herder, Bjartur of Summerhouses, who this discussion of a newborn child: ric of our nation is based on a declaration struggles to secure his independence in what It's marvelous, you know, when you of independence from another sovereignty. is still a feudal society. The harshness of the come to think of it: there you have a This sense of independence encouraged the landscape, the vastness of nature, its cruelty new body and a new soul suddenly creation of a new society founded on indi- and beauty combined, are the backdrop for making their appearance, and where vidual hard work and the common good. these independent people. They are a people do they come from and why are they And yet, it is independence, too, for which full of the contradiction of the land. Laxness always coming? Yes, I've asked

i 54 Vol. 11 No.3 .I myself that same question many a time, both night and day. As if it wouldn't have been more natural to Basic Mediator Training let the same folk live in the world continually; then there would have been at least some likelihood of ordi- Sponsored by the Court Annexed ADR nary people like you and me working their way upinto a comfortable posi- Program & Utah Dispute Resolution tion eventually. Political philosophies and their impact Location: Law & Justice Center on independence are also explored by Lax- ness. The competition between the old 645 South 200 East, Salt Lake City feudalism and the new socialism raises the question of which is best for the indepen- Dates: May 6 - 9 dent man. Bjartur of Summerhouses certainly has his opinion: 8:00 a.m. - 5:00 p.m. . . . (IJs there any reason why you or Fees: the Women's Institute should con- $500 cern yourselves with me and my Focus: This 32 hour course provides basic wife, may I ask? Or my children? As long as lowe neither you nor the mediator training and satisfies the Women's Institute I shall demand in return that neither you nor the requirement for participation on the Women's Institute meddle with my wife or my children. My wife and Court Annexed AD R roster. my children are mine in life and death. And it is my business, mine Call- 532-4841 alone, and neither yours nor that pack of blasted old scandalmongers' whether my children look well or not. Sooner shall all the hummocks on Summerhouses land hop up to heaven and all the bogs sink down to bottomless bloody hell than I shall renounce my independence and my rights as a man. The contradiction of independence seeps into the personal realm, too. Bjartur's wife recognizes the "impassable distance .. ~ that separates two human beings" and yet ~ it is Bjartur's daughter to whom Bjartur ultimately clings, with words "Keep a good hod round my neck, my flower." And she responds "Yes . . . Always - as long as I live. Your one flower. The flower of your ./ life." ø \' Where does resolution and relief from / .... , the contradictions lie? Like Schoenberg's -. . atonality, you wil not find it in this noveL. ~ But then, neither wil you find it in our society today. Independence, a value so highly touted, and with a position of such Great idea. prominence in American culture, is quite simply imbued with contradiction. And Advertising in the Utah Bar Journal is a really thus it is. Or, as Laxness ends his novel, great idea. Reasonable rates and a circulation of simply, "Then they went on their way." approximately 6,000! Call for more information. Shelley Hutchinsen · (801) 486-9095

April 1998 55 UTAH BAR FOUNDATION ' IE '\ A WELCOME PLACE IOLTA Grant Recipient

A Welcome Place - Medina Family, clients, witJi attorney Teresa HensIey, MarcJi 1998

A Welcome Place is the non-profit Utah A Welcome Place staff appears before the lengthy and involve complicated filing legal services agency providing assistance Immigration and Naturalization Service, the proces'ses. For persons with limited Eng- to low income immigrants and their fami- Regional Service Centers, the Immigration lish, competent assistance is a necessity. lies seeking benefits from the Immigration Court, the Asylum Office, and the Board of When a new citizen is trying to process an and Naturalization Service. Located in Salt Immigration' Appeals on behalf of immi- application for a family member that wi! Lake, just north of the INS office, the grants and their families. The agency take -fifteen years if it is properly submit- agency provides both information and provides a staff to run a state-wide outreach ted, incorrect processing can be direct legal services. Attorney Teresa Hens- program that offers otf site presentation on devastating. -ley works with a bilingual staff, interns immigration law from Blanding to Tremonton. The agency is supported by the' Utah from Utah's law schools and volunteers to Because of the rapidly changing laws, Bar Foundation, United Way of Salt Lake, assist clients with asylum, litigation, family and the tremendous impact that legal pro- private donations, and sliding scale subsi- "reunification, immigrant battered spouse ceedings can have upon immigration status, dized client fees. Immigration filing fees protection and naturalization. the agency provides training to attorneys, are substantial, and for many low income The agency is accredited by the Federal community organizations, schools, and gov- families, it is impossible to cover both ,.Board of Immigration Appeals, and works ernment agency staff on the substantive and those fees and the cost of private counseL. with other low income service providers to procedural aspects of immigration law. Of Under the new immigration domestic vio- assist immigrants in normalizing their particular importance are the provisions lence provisions, fee waivers may be immigration status, and accessing the ser- relating to family law, criminal proceedings, available. For most immigration filings, a vices to which they are entitled. Due to public assistance and domestic violence. In request for a fee waiver raises the issue of recent changes in the .raw, there are some an area of the law where a little knowledge public charge - which in turn become a social services which are available to is significantly more dangerous than no basis for deportability. immigrants, but if used, may jeopardize knowledge, the agency provides a reliable The agency is located at 5242 South their ability to retain their legal residency. source of current immigration information. CoIIege Drive, Suite 210, Salt Lake City. In such cases, the staff at A Welcome Place A Welcome Place facilitates naturaliza- The phone number is (801) 685-8268. serves as a resource for locating much tion, and in turn assists the new citizens in Members of the bar are invited to use A needed assistance which is not tied into the working toward the legal reunification of Welcome Place as a resource. ,federaIIy funded programs. their families. Many of the processes are

56 Vol. 11 NO.3 ll

CLE CALENDAR

ALI-ABA SATELLITE SEMINAR: Place: Utah Law & Justice Center Fee: $40.00 for Corporate Counsel LITIGATORS UNDER FIRE! ETHICS Fee: $249.00 (To regis tel; please call Section Members AND PROFESSIONALISM UPDATE 1-800-CLE-NEWS) $55.00 for All Others Date: Thursday, April 9, 1998 CLE Credit: 6 HOURS CLE Credit: 4 HOURS, which includes i Time: 10:00 a,m. to I: 15 p.m. in ETHICS Place: Utah Law & Justice Center ALI-ABA SATELLITE SEMINAR: Fee: $175.00 (To registei; please call TACKLING THE TOUGH TOXIC WASTE NLCLE: EFFECTIVE COMMUNICATIONS Date: Thursday, May 14, 1998 1-800-CLE-NEWS) PROBLEMS: CERCLA, RCRA, CLE Credit: 3.5 HOURS ETHICS AND BROWNFIELDS Time: 5:30 p.m. to 8:30 p.m, Date: Tuesday, May 5, 1998 Place: Utah Law & Justice Center NLCLE WORKSHOP: Time: J 0:00 a.m. to 2:00 p.m. Fee: $30,00 for Young Lawyer LAW OFFICE MANAGEMENT Place: Utah Law & Justice Center Division Members Date: Thursday, April 16, 1998 Fee: $160.00 (To register, please $60.00 for All Others Time: 5:30 p.m. to 8:30 p.m. (Regis- call1-800-CLE-NEWS) CLE Credit: 3 HOURS tration begins at 5:00 p.m,) CLE Credit: 4 HOURS Place: Utah Law & Justice Center TRIAL ACADEMY PART II: ANNUAL CORPORATE COUNSEL Fee: $30.00 for Young Lawyers FACT WITNESSES Division Members SECTION SEMINAR Date: Wednesday, May 27, 1998 Date: Thursday, May 7,1998 $60.00 for all others Time: 6:00 p.m. to 8:00 p.m. Time: Registration & Continental CLE Credit: 3 HOURS (Registration begins at 5:30 p.m.) Breakfast - 7:30 a.m Seminar - Place: Utah Law & Justice Center ALI-ABA SATELLITE SEMINAR: BUSI- 8:00 a.m. to noon Section Business Fee: $25.00 for Litigation Section NESS VALUATION - WHAT EVERY Meeting & Luncheon - 12:00 noon Members; $35.00 for All Others BUSINESS LAWYER SHOULD KNOW Place: Utah Law & Justice Center CLE Credit: 2 HOURS CLE/NLCLE Date: Thursday, April 16, 1998 Time: i 0:00 a.m. to 2:00 p.m. Those attorneys who need to comply with the New Lawyer CLE requirements, and who live out- Place: Utah Law & Justice Center side the Wasatch Front, may satisfy their NLCLE requirements by videotape. Please contact the Fee: $160.00 (To registei; please call CLE Department (801) 531-9095, for further details. 1-800-CLE-NEWS) CLE Credit: 4 HOURS Seminar fees and times are subject to change, Please watch your mail for brochures and mailngs on these and other upcoming seminars for final information. Questions regarding any Utah State Bar ANNUAL REAL PROPERTY CLE seminar should be directed to Monica Jergensen, CLE Administrator, at (801) 531-9095. SECTION SEMINAR Date: Thursday, April 16, 1998 Time: 8:00 a.m. to i :00 p.m. CLE REGISTRATION FORM Place: Utah Law & Justice Center TITLE OF PROGRAM FEE Fee: To be determined CLE Credit: -4 HOURS 1. ALI-ABA SATELLITE SEMINAR: ANNUAL SPRING EMPLOYEE 2. BENEFITS LAW AND PRACTICE UPDATE Date: Thursday, April 23, 1998 Time: i 0:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Make all checks payable to the Utah State Bar/CLE Total Due Fee: $160.00 (To registe¡; please call 1-800-CLE-NEWS) CLE Credit: 4 HOURS Name Phone ALI-ABA SATELLITE SEMINAR: WORKPLACE HARASSMENT Address City, State, Zip LITIGATION UPDATE: CLAIMS BASED ON SEX, RACE, AGE & DISABILITY Bar Number American Express/MasterCardIVISA Exp. Date Date: Tuesday, April 28, 1998 Time: 10:00 a.m. to 2:00 p.m. Place: Utah Law & Justice Center Credit Card Billing Address City, State. zip Fee: $ i 60.00 (To registei; please call 1-800-CLE-NEWS) Signature CLE Credit: 4 HOURS Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.C., Utah 8411 i. The Bar and the Continuing Legal Education Department arc working with Sections to provide a full complement of live semi- ALI-ABA SATELLITE SEMINAR: nars. Please watch for brochure mailings on these. DRAFTING AND ENFORCING Registration Policy: Please register in advance as registrations are taken on a space available basis. Those who register at the door are welcome but cannot always be guaranteed entrance or materials on the seminar day. TRADEMARK, COPYRIGHT, AND Cancellation Policy: Cancellations must be confirmed by leller at least 48 bours prior to the seminar date. Registration SOFTWARE LICENSING AGREEMENTS fees. minus a $20 nonrefundable fee, will be returned to those registrants who cancel at least 48 hours prior to the seminar Date: Thursday, April 30, 1998 date. No refunds 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 Time: 9:00 a.m. to 4:00 p.m. 2 year CLE reporting period required by the Utah Mandatory CLE Board. L.______.J

April 1998 57 , , . CLASSIFIED- ADS - ' ,

RATES & DEADLINES attorney licensed in Colorado and California monIy, allegations lack validity and place available for consultant or of-counsel ser- serious doubt on children's statements as Bar Member Rates: 1-50 words - $20.00 / vices. All aspects of entertainment law, evidence. Current research supports 51-100 words - $35.00. Confidential box is including contracts, copyright and trademark STATEMENT ANALYSIS, specific juror $10.00 extra. Cancellations must be in writing. law. Call Ira C. Selkowitz (g (800) 550-0058. selection and instructions. B. Giffen, M.Sc. For information regarding classified advertis- Evidence Specialist American College ing, please call (801) 297-7022. CALIFORNIA LAWYER. . . also admit- Forensic Examiners. (801) 485-4011. Classifed Advertising Policy: No commer- ted in Utah! I will make appearances cial advertising is aIIowed in the classified anywhere in California, research and report LUMP SUMS CASH PAID For Remaining advertising section of the Journal. For display on California law; and in general, help in Payments on Seller-Financed Real Estate advertising rates and information, please call any other way I can. $75 per hour + travel Notes & Contracts, Business Notes, Struc- (801) 486-9095. It shaII be the policy of the expenses. Contact John Palley (g (916) 455- tured Settlements, Annuities, Inheritances Utah State Bar that no advertisement should indicate any preference, limitation, specification 6785 or john(gpalley.com. In Probate, Lottery Winnings. Since 1992, www.cascadefunding.com. CASCADE or discrimination based on color, handicap, reli- BAR COMPLAINT DEFENSE ATTOR- FUNDING, INC. 1(800) 476-9644. gion, sex, national origin or age. NEY: Representation in all Bar Disciplinary Utah Bar Journal and the Utah State Bar proceedings. Let me assist you in preparing Association do not assume any responsibility SKIP TRACING/LOCATOR: Need to for an ad, including errors or omissions, beyond your response to that Bar Complaint. Five find someone? Wil find the person or no the cost of the ad itself. Claims for error adjust- years as Assistant Disciplinary Counsel, charge/no minimum fee for basic search. ment must be made within a reasonable time Utah State Bar. Wendell K. Smith, 275 East 87% success rate. Nationwide Confiden- after the ad is published. 850 South, Richmond, UT 84333, (435) tiaL. Other attorney needed searches / CAVEAT - The deadline for classified 258-001 1. wksmith(gmtwest.net records / reports in many areas from our advertisements is the first day of each month prior extensive databases. Tell us what you need. to the month of publication. (Example: May i OFFICE SPACE / SHARING Verify USA Call toll free (888) 2- Verify. deadline for June publication). If advertisements Deluxe offce space for one attorney. Avoid the are received later than the fir~t, they will be APPRAISALS: CERTIFIED PERSONAL rush hour traffc. Share with three other attor- published in the next available issue. In addition, PROPERTY. APPRAISALS/COURT ney's. Facilities include large private office, payment must be received with the advertisement. RECOGNIZED - Estate Work, Divorce, large reception area, parking immediately Antiques, Insurance, Fine Furniture, Bank- BOOKS FOR SALE adjacent to building, Utah Law on disc, fax, ruptcy, Expert Witness, National Instructor copier, telephone system, kitchen facilities. AmJur 2d, AmJur Legal Forms 2d, AmJur for the Certified Appraisers Guild of Amer- 4212 Highland Drive. Call (801) 272-1013. Pleading and Practice Forms, not up dated. ica. Twenty years experience. Immediate Call Craig McAllster (g (801) 373-4912. New deluxe offce space in Draper with good service available, Robert Olson C.A.G.A. access for one or two attorneys to share with (801) 580-0418. POSITIONS AVAILABLE two established attorneys. Excellent location TRANSCRIPTION SERVICE: Allow us Fabian & Clendenin is seeking an associate to avoid commute. Facilities include large to ease your workload! We are prepared to with top academic record and 2-4 years of offices with extensive windows, conference transcribe the contents of mini or standard tax/transactional experience. Mail resume room, fax, copier, telephone, reception, cassette tapes, including interviews, letters, and cover letter to P. Bruce Badger, hiring kitchen, parking adjacent to front door. Call pleadings, seminars, etc. Eleven years of coordinator, Fabian & Clendenin, 215 (801) 495-3500. legal experience backs up every project South State Street, 12th Floor, Salt Lake PRIME LOCATION. Reception, conference and guarantees professional, reliable City, Utah 841l1. All responses confidentiaL. room and law library access. One to three results. Call TerriAnne (g (801) 568-1926. Las Vegas Corporation seeking two fuII offices availabe. Downtown. Please contact ALMOST NEW EXECUTIVE FURNI- time Staff Attorrieys. Coordinate and track Richard Henriksen (g (801) 521-4145. TURE FOR SALE : HON TABLE DESK multiple projects, monitor work of oustide Six attorney office has immediate space ($780) AND CREDENZA ($700), LA-Z- counseL. Ideal candidate wil possess excel- available downtown Salt Lake City three BOY EXEC. CHAIR ($600). Call (801) lent verbal and written commmunication blocks from the new courthouse. Easy free- 45l-6221. skiIIs, and PC literacy in a Windows envi- way access. Free parking. Large reception ronment. A minimum JD Degree from an The American Board of Professional area, conference room, secretarial space, accredited law school is required. We offer Psychology has awarded nearly 200 psychol- copier, fax, new phone system and break competitive salary and benefits. Please ogists in the US and Canada the Diplomate room. 254 West 400 South, Suite 320. Call submit resume and cover letter including in Forensic Psychology designating excel- salary requirements to Equinox Interna- (801) 539- i 708 or (801) 532-0827. lence and competence in the field of forensic tional, 10190 Covington Cross, Las Vegas, SERVICES psychology. For referrals to Diplomates by NV 89134. Smoke and drug free work- region or specialty, contact: The American place, EOE. SEXUAL ABUSEIDEFENSE: Children's Academy of Forensic Psychology, 128 N. Statements are often manipulated, fabri- Craig St., Pittsburgh, PA 15213; Phone: POSITIONS SOUGHT cated, or poorly investigated. Objective (412) 681-3000; Fax: (412) 681-1471. ENTERTAINMENT LAW: Denver-based criteria can identify valid testimony. Com- Internet: http://www.abfp.com/aafp

58 Vol. II No.3 Get to Know Your Bar Staff KIM WILLIAMS with her family. She hopes one day to return challenge of developing new skills Kim WiIiams was to coIIege and earn her teaching degree as required for each position. Lorrie opines born and raised in Salt weII as spend a little time traveling. she has honed certain skills that are critical Lake City. She gradu- to her in order to be an effective attorney: ated from Skyline LORRIE LIMA the ability to listen, to ask the right ques- High School and went Lorrie Lima gradu- tions and to provide direction. Lorrie to California to be a ated from the states, as the Pro Bono Coordinator for the nanny for a two year University of Utah Col- Bar she spends a majority of her work time old boy. Kim returned lege of Law in 1989. talking to individuals who need help defin- to Utah and attended Salt Lake Community Following law school ing their legal issues and identifying their College where she studied Elementary she has worked for var- legal options. Lorrie concludes she has the Education. ious Utah government best of both worlds: practicing law and Kim began working at the Utah State agencies: investigator assisting people whose options are limited Bar in 1990 as the fuII time receptionist. for the Utah Antidiscrimination Labor Divi- by their circumstances. She has assisted in several departments sion, staff attorney for the Utah Department Lorrie was born in Quezaltenango, including Continuing Legal Education, of Corrections, assistant attorney general for Guatemala and was raised in Salt Lake City. Law and Justice Center, and the Lawyer the Utah Attorney General's Office, and As a child she spent her winters in Utah and Referral Service. She currently works part Associate Director of the Office of Equal her summers in Guatemala. As an adult she time as the afternoon receptionist and assists Opportunity and Affirmative Action at the was dismayed to learn that she could not with the Tuesday Night Bar program. University of Utah. Although the trek from maintain the same calendar schedule and Kim has two beautiful children ages one one government entity to another may be earn a living too. LotTie has two sons: one and four who are fuII of energy and love to considered nontraditional when compared to who is 20 years going on six years and the explore their world. She enjoys mountain the more traditional path many lawyers take other who is six years going on 20 years. It biking, walking, reading, and spending time following law school, Lorrie has enjoyed the can be rather confusing at times.

C8El La tl Ma The Law Firm of May; 1998 THORPE, NORTH NATIONALELDERr- & WESTERN, LLP ~.~ ~ rrrrr ¡ is expanding its biotechnology, .. chemical, computer and mechanical HIOli11VNOllVN I: Sponsored by the National Ac.idemy of Elder law i\ltorney. patent law sections,

For information on National Elder Law and has moved to new, larger offices at Month activities in your area, contact Jlhane Rohrbackerat the NAELA office, 1604 N. Country Club Road, Tucson, AZ 85716-3102, (520) 881-4005 or e-mail: Ikr(§naela.com 8180 South 700 East in Sandy

April 1998 59 DIRECTORY OF BAR COMMISSIONERS AND STAFF BAR COMMISSIONERS UTAH STATE BAR STAFF Consumer Assistance Coordinator Charlotte L. Miler Tel: 531-9077 . Fax: 531-0660 Jeannine Timothy President E-mail: infoCiutahbar.org Tel: 297-7056 Tel: 463-5553 Executive Offices Receptionist James C. Jenkins John C. Baldwin Summer Shumway (a.m.) President-Elect Executive Director Kim L. Wiliams (p.m.) Tel: 752-1551 Tel: 297-7028 Tel: 531-9077 Charles R. Brown Richard M. DibbIee Other Telephone Numbers & Tel: 532-3000 Assistant Executive Director E-mail Addresses Not Listed Above Tel: 297-7029 Scott Daniels Bar Information Line: Tel: 359-5400 Mary A. Munzert 297-7055 Denise A. Dragoo Executive Secretary Tel: 297-7031 Mandatory CLE Board: Tel: 532-3333 Sydnie W. Kuhre John Florez Katherine A. Fox MCLE Administrator Public Member General Counsel 297-7035 Tel: 297-7047 Tel: 532-5514 Member Benefits: Steven M. Kaufman Access to Justice Program 297-7025 Tel: 394-5526 Tobin J. Brown E-mail: benCiutahbar.org Access to Justice Coordinator Randy S. Kester Web Site: Tel: 489-3294 & Programs Administrator www.utahbar.org Tel: 297-7027 Debra J. Moore Offce of Professional Conduct Tel: 366-0132 Pro Bono Project Tel: 531-9110' Fax: 531-9912 Lorrie M. Lima E-mail: oadCiutahbar.org David O. Nuffer Tel: 297-7049 Tel: 674-0400 Bily L. Walker Admissions Department Ray O. Westergard Senior Counsel Public Member Darla C. Murphy Tel: 297-7039 Admissions Administrator Tel: 531-6888 Carol A. Stewart Tel: 297-7026 Francis M. Wikstrom Deputy Counsel Tel: 532-1234 Lynette C. Limb Tel: 297-7038 Admissions Assistant D. Frank Wilkins Tel: 297-7025 Charles A. Gruber Tel: 328-2200 Assistant Counsel Bar Programs & Services Tel: 297-7040 *Ex Offcio Maud C. Thurman David A. Peña Bar Programs Coordinator (non-voting commissioner) Assistant Counsel Tel: 297-7022 *Michael L. Mower Tel: 297-7053 President, Young Lawyers Division Continuing Legal Kate A. Toomey Tel: 379-2505 Education Department Assistant Counsel *H. Reese Hansen Monica N. Jergensen Tel: 297-7041 Dean, College of Law, CLE Administrator Brigham Young University Tel: 297-7024 Katie Bowers Tel: 378-4276 Receptionist Amy Jacobs Tel: 297-7045 *Sanda Kirkham CLE Assistant Legal Assistant Division Representative Tel: 297-7033 Gina Guymon Tel: 263-2900 Secretary Finance Department Tel: 297-7054 *James B. Lee 1. Arnold Birrell ABA Delegate Financial Administrator Dana M. Kapinos Tel: 532-1234 Tel: 297-7020 Secretary Tel: 297-7044 *Paul T. Moxley Joyce N. Seeley State Bar Delegate to ABA Financial Assistant Stacey A. Kartchner Tel: 363-7500 Tel: 297-7021 Secretary Tel: 297 -7043 *Christopher D. Nolan Lawyer Referral Services Minority Bar Association Diané J. Clark Robbin D. Schroeder Tel: 531-4132 LRS Administrator Administrative Support Clerk *Carolyn B. McHugh Tel: 531-9075 Tel: 531-9110 Women Lawyers Representative Law & Justice Center Shelly A. Sisam Tel: 532-7840 Paralegal Marie Gochnour Tel: 297-7037 *Lee E. Teitelbaum Law & Justice Center Coordinator Dean, College of Law, University of Utah Tel: 297-7030 Tel: 581-6571

60 VoL 11 NO.3 I ..I I I I I I

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

Address: Telephone Number:

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 twelve hours of credit may be obtained through self-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 twelve hours of credit may be obtained through writing and publishing an article or articles. 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 twelve hours of credit may be obtained through lecturing and part-time teaching. No lecturing or teaching credit is available for participation in a panel discussion. See Regulation 4(d)-101(c).

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

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

Regulation 5-102 - In accordance with Rule 8, each attorney shall pay a filing fee of $5.00 at the time of filing the statement of compliance. Any attorney who fails to complete the CLE requirement by the December 31 deadline shall be assessed a $50.00 late fee.

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 fied 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 filed, and shall be submitted to the board upon written request. ~

A++

The Coregis Lawyers' Insurance Programs Now Have a New, Stronger Owner to Serve Your Firm Even Better

You'll do anything to find the best Add these strengths to the following facts:

professional liability insurance coverage for ++ Coregis lawyers' programs are the choice of your law firm, right? over 30,000 law firms nationwide. Well, your job just got a lot easier. ++ More bar associations endorse our Coregis' professional liabilty insurance company's professional liability insurance programs are now par of Westport Insurance program than any other insurance company. Corporation and the Employers Reinsurance Group, which has been writing specialized ++ We have insured lawyers for more than liability coverage since 1930. 25 years. Westport is par of the Specialty Division ++ We have unparalleled claim experience of Employers Reinsurance Corporation, a GE handling claims against lawyers. Capital Services company and rated A++ by A.M. Best and AAA by Standard & Poor's, the Now you can choose experience, quality industry's highest financial ratings. General and financial strength that is greater than any Electric is our ultimate parent - the world's of our competitors. So, make your decision largest company on a market capitalization basis. easy - our business is helping yours. ooRÜoo/ WESTPORT A GE Capital Services Company www.coregis-westport.com

Endorsed by the Program Administrator: CON T N TAL c Y, L.L.C.

Utali§tateBar 1 -801 -466-0805 Utah State Bar RE!lCR: '? ETHICS CR: 2 BULK RATE 645 South 200 East U.S. POSTAGE Salt Lake City, Utah 84111 MR. WILLIAM HOLYOAK 201 SOUTH MAIN STREET PAID SALT LAKE CITY, UT P. 0: BO 45æ PERMIT NO. 844 SALT LAKE CITY UT 84145'

Get just what you expect with MVP Advantage for small law firms.

Surprises are great, but not in the courtroom, in front of a client, or on your monthly research bill. The newly

enhanced MVP Advantage from LEXIS'"-NEXIS'" offers you the world's premier research database, in your choice of fIat-rate, all-inclusive packages that are predictably priced especially for solos and small firms. No strings.

No charge for training. No long-term commitments. And now also available on the web via LEXIS-NEXIS Xchange"!

For less than the cost of a single book, you have unlimited access to current state or specialty case law, statutes,

attorney general opinions, bill and regulation tracking, state Martindale-Hubbell'" listings, and more. Plus, you can

now add SHEPARD'S'" and Auto-Cite~ all for a flat monthly fee. Online research has never been so easy!

It's time for online. It's time for MVP Advantage. 1-800-356-6548 ext. 1020 Ask about~ our Utah State Bar discount. www.lexis.com ~AOVANTAGf ~

LEXIS. NEXIS, Martindale-Hubbell, and Aula-Cite are registered trademarks 01 Reed Elsevier _. LEXIS'. NEXIS' Properlies Inc.. used under license. The INFORMATION ARRAY logo is a trademark 01 Reed Elsevier & A member of.he Reed Elsevier pic group Properlies Inc.. used under license. Shepard's is a registered lrademark at Shepard'S Company. a Partnership. (Ç 1998 LEXIS-NEXtS, a division Reed01 Elsevier Inc. All righls reserved.