(
i'.
iÆ¥lEtHlt~i~GoIlsid~rátioiis,JJii
~FederãlRÛI~s" '..' ." . :'c of"eivil %/;~%~f
c.l us,titia Para Tados -=Ensûì- iÒ'~thes~ourts'fòrLin~uistiCcNlino
.Repor; 0111'996 ~tah L~~li;t~~Ur~' "'w, 'í West. The most complete CD-ROM libra
UTAH REPORTERTM AND WEST'S(I UTAH CODETM in Uta. ON CD-ROM GIVES YOU ~ Utah case law as reported in Paei:e Reporter", 2d from 1945 to date
~ Utah Attorney General Opinions from 1977 to date
~ Uta Administrative Code
~ Slip Opinons
WEST'S UTAH CODE ON CD-ROM INCLUDES
~ Utah Code
I ~ State Constitution ,
~ Uta Court Rules -I
~ Uta Orders ! ~ Session laws, as necessary due to legislative action ,i II West CD-ROM Libraries TMgive you West's exclusive ¡i editorial enhancements, includig West Topics and Key Numbers, for focused results and faster research. And, of course, a subscription to West
CD-ROM Libraries includes the direct connection to WESTLAW~ NOW AVAILALE ON CD-ROM! West's(j Tenth Circuit Reporter™and West's(j Federal District Court Reporter™- Tenth Circuit.
FIND OUT MORE ABOUT WEST CD-ROM LIBRARIES FOR UTAH CALL: 1-800-255-2549 EXT. 741
WEST . CD-ROM
LffRASTM i C; I ii For inormation about other West Publishig products W",t, An Amelican company serving the legal world. Ii and servces, visit us on the Internet at the UR: (£ 1995 WEST PUBLISHING 6-9494-4/1295 lóio7171 http://ww.westpub.com '.205.856.5 I! j ir !
Utah 0 UTAH BAR JOURNAL Published by The Utah State Bar 645 South 200 East Salt Lake City, Utah 84111 Vol. 9 NO.2 February 1996 Telephone (801) 531-9077
VISION OF THE BAR: To lead society in the creation of a justice system President Dennis V. Haslam that is understood, valued, respected and accessible to alL. President-Elect MISSION OF THE BAR: To represent lawyers in the State of Utah and Steven M. Kaufman to serve the public and the legal profession by promoting justice, profes-
Executive Director sional excellence, civility, ethics, respect for and understanding of, the law. John C. Baldwin Bar Journal Committee President's Message ...... 5 and Editorial Board by Dennis V. Haslam Editor Calvin E. Thorpe Commissioner's Report ...... 6
Associate Editors by Charlotte L. Miler M. Karlynn Hinman Wiliam D. Holyoak Ethical Considerations Under the Amended Randall L. Romrell Federal Rules of Civil Procedure...... 10 Articles Editors by Philip S. Ferguson Christopher Burke Lee S. McCullough Justicia Para Todos Letters Editor Ensuring Equal Access to the Courts for Victoria Kidman Linguistic Minorities ...... 21 Views from the Bench Editors by Michael Gardner and Judge Lynn Tv Davis Judge Michael L. Hutchings Judge Stephen VanDyke State Bar News ...... 30 Legislative Report Editor Lisa Watts Baskin The Barrister...... 36 Case Summaries Editors Scott A. Hagen Views from the Bench ...... 38 Clark R. Nielsen by Judge Fred D. Howard Book Review Editor Betsy L. Ross Legislative Report ...... 42 "How to . . ." Editors by Jane Peterson and lisa Watts Baskin Brad Betebenner David Hartvigsen Case Summaries ...... 46 Patrick Hendrickson by Clark R. Nielsen Judicial Profies Editors Mamie Funk Book Review...... 48 Derek Pullan Stephen K. Christiansen Utah Bar Foundation ...... 50 ADREditor Cherie P. Shanteau CLE Calendar...... 51 Law and Technology Editor R. Bruce Findlay Classified Ads ...... 52 Young Lawyer Representatives Michaela. Zabriskie COVER: Icicles in Zion National Park by Gordon J. Swenson, Salt Lake City, Utah. Mark E. Burns Members of the Utah Bar who are interested in having photographs they have taken of Utah scenes published on the cover of the Utah Bar Journal should contact Randall L. Romrell. Associate General Counsel, Huntsman Glen Cook Chemical Corporation, 2000 Eagle Gate Tower. Salt Lake City, Utah, 84111. 532-5200. Send both the slide, David Brown transparency or print of each photograph you want to be considered. David Erickson Thomas Jepperson The Utah BaT Journal is published monthly. except July and August, by the Ulah State Bar. One copy of each J. Craig Smith issue is furnished to members as part of their State Bar dues. Subscription price to others, $30; single copies. Denver Snuffer $4.00. For infoTmation on advertising rates and space reservation, call or write Utah State Bar offces. Judge Homer Wilkinson Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publica- tion of advertisements is not to be considered an endorsement of the product or service advertised. Committee Liaison Maud C. Thurman Copyright (Q 1996 by the Utah State Bar. All rights reserved.
February 1996 3 TWELFTH ANNUAL JEFFERSON B. FORDHA DEBATE SPONSORED BY THE UNIVRSITY OF UTAH COLLEGE OF LAW JOURNAL ALUMNI ASSOCIATION
BE IT RESOLVED: THE JURY SYSTEM SHOULD BE REFORMED
FEBRUARY 29,1996 6:30 P.M.
UNIVRSITY OF UTAH COLLEGE OF LAW SUTHERLAND MOOT COURTROOM 2 HOURS CLE CREDIT, NO FEE
MODERATOR: JUDGE LESLIE A. LEWIS Presiding Judge, Third Judicial Circuit
PANELISTS: JUDGE BRUCE S. JENKINS United States Senior District Judge
JUDGE MICHAL B. DANN Superior Court of Maricopa County
RICHA RIEKE Professor, University of Utah Department of Communications
MITCHEL LASSER
Associate Professor, University of Utah College of Law , I RICHA P. MAURO Attorney, Legal Defenders
4 Vol. 9 No. 2 ..
I i I ,
Checklist for Improving the Workplace Environment (or Dissolving the Glass Ceiling)
By Charlotte L. Miler
law, I might be able to create a checklist for minorities are not appropriate for upper In 1995(established the Glass by theCeiling 1991 CivilCommission Rights any legal question. (Some of you may level positions. Behavior needs to be Act) issued its findings regarding the suc- remember that two years ago my Bar viewed more from a human resources, cess of women and minorities in reaching Commissioner's report was a checklist on interpersonal communication perspective top level positions. Most of us do not have how lawyers can be more customer ori- than through the legal elements necessary the luxury of ordering the report and ented.) So, I thought I would try to provide to prove discrimination. Behaviors that are reviewing it or spending days and years in some practical advice to members of the Bar not ilegal may be unwanted because they our own workplace with our coworkers - in the checklist approach - on how to interfere with productivity. analyzing the philosophical issues and edu- help dissolve the glass ceiling (dissolving is The following checklist is for senior cating ourselves about the advancement of a slower process than breaking - so I people in workplace - like law firms, cor- women and minorities. In my workplace I believe it more accurately describes the porations, governmental agencies - and is spend a fair amount of time training super- actual process - it is also less violent). mostly common sense in helping to create visors on issues of managing employees I require my managers to learn the fol- and maintain a positive, cohesive, nurturing hopefully helping them to learn how to lowing rule: "Not everything that is stupid and productive workplace. Therefore, those avoid discrimination, violation of OSHA is against the law." There are many events of you who do not believe there is a glass laws, FLSA laws, drug testing laws, etc. that occur in the workplace that do not rise to ceiling can do these things too without giv- Usually I get one hour in a three day train- the level of "discrimination" as legally ing up any philosophical position, and get ing session, so I don't often discuss burdens defined, but there are many events that some benefit. of proof, summary judgment motions, etc. detract from cooperation among co-workers, Instead, I try to provide practical and sim- morale, and therefore productivity. When INCLUDE WOMEN AND MIORITIES ple information, and as a result I spend a lot events interfere with productivity, they also IN INFORMAL FUNCTIONS of time writing checklists - a checklist for interfere with the bottom line, whether the Much of the building of rapport, devel- hiring, a checklist for evaluating, a check- events are discriminatory or not. The same is oping mentor relationships, and creating list for firing, a checklist for interacting true with regard to dissolving the glass ceil- trust and interest among colleagues is with an injured customer, a checklist for ing. Behavior in a work place may not be begun or is nurtured in social settings - responding to theft, a checklist for signing a legally actionable as "discrimination" but lunch, golf, traveling (sometimes as part of contract. After about 13 years of practicing may create perceptions that women and work), even Bar activities. Make sure that 6 Vol. 9 No.2 l ,.
you do not unintentionally exclude either WATCH FOR STEREOTYPES DON'T ASSUME WOMEN AND women or minorities in your workplace We all have our own stereotypes and MINORITIES ARE MONOLITHIC from these activities (I'm assuming inten- biases. Do a check once in a while to see if Not all women and minorities are liberal tional exclusion is already recognized as they are interfering with how you interact democrats. Don't assume women lawyers unwise). Some exclusion may occur with co-workers. For example, if a woman should be advocates for children or minor- because you are used to going to lunch with leaves early to take care of a sick child or ity lawyers should be criminal defense a particular group, or because you don't attend a piano recital do you question her lawyers. Also, don't leave it to the minority think the woman or minority person in your commitment more than the commitment of a lawyer to criticize racism in the workplace, offce wants to participate. Make a point to man who leaves work early to go skiing? Or, or the woman lawyer to criticize gender not only invite but to strongly encourage is a man who leaves early for a piano recital bias. Whoever recognizes such bias should newer women and minority individuals to seen as a hero and a woman seen as not being make efforts to eliminate it. participate in social settings. They may feel committed. I know' in my household if I uncomfortable (especially if they are the leave town for a few days, my husband DON'T FOCUS ON GENDER OR MINORITY STATUS only woman or minority) - but help them receives offers from a multitude of volun- overcome that discomfort by participating teers to help with the children, but if he Don't embarrass the women or minority more fully. leaves town, I don't get any offers of assis- individuals by drawing attention to them in tance. This is probably more discriminatory a way that emphasizes their status as a woman TEACH CLIENT DEVELOPMENT toward him since he is actually quite capable or minority over their abilities as a profes- Make sure that you include women and of taking care of his children (although even sionaL. For example, when you talk about minorities in your interactions with clients. I don't like to admit he is as capable as me). an associate who happens to be a woman to Introduce them to your clients, have them Don't force women to walk a narrow other lawyers, clients, etc., emphasize her spend time in conferences, and talk about tightrope by labeling them as "sweet" or a skills, not her looks, and don't introducer how you have gotten clients in the past. "witch," while labeling men with similar her as a "woman lawyer." I worked with a characteristics as "diplomatic" or "tough." gentleman once who would always talk to HAVE HIGH EXPECTATIONS co-workers about their areas of interest - Do not lower expectations for women car racing, karate, golfing, etc. When he and minorities. Make sure that you expect would see me each day he would almost them to be as tough, as hard-working and as inevitably say "Charlotte, you look really smart as others (but not tougher, smarter or "Make sure that you do not nice today." Finally I told him that I really harder-working). Do not treat women or unintentionally exclude. . . didn't look that nice every day. You can minority employees in a manner that makes women or minorities in your certainly tell people they look nice - both men and women - just be careful not to them seem fraiL. Make sure you think of the workplace. . . activities. . . ." women arid minority employees when rec- emphasize that issue with women while ommending someone for a project, presen- excluding discussion about their good work. tation, seminar, etc. Likewise, don't think that the only thing
MEMBERSHIP CORNER CHANGE OF ADDRESS FORM Please change my name, address, and/or telephone and fax number on the membership records:
Name (please print)
Firm
Address
City/State/Zip
Phone Fax
All changes of address must be made in writing and NAME changes must be verified by a legal document. Please return to: UTAH STATE BAR, 645 South 200 East Salt Lake City, Utah 84111-3834; Attention: Arnold Birrell.
Februwy 1996 7
íz African American men like to talk about is çause the person to focus more on not asks me for any other names I have used. sports. By focusing on people's professional belonging than on being productive, which is Once I wrote and told them of the discrep- talents, you wil help them be respected by not good for the workplace as a whole. ancy, but I never received a response and others and move up in the profession. When my daughter Annie was four she the form hasn't changed either. was describing for me one day the "farmer in The language issue also applies to the VISUALIZE WOMEN AND the dell" game they played at schooL. I asked manner in which one addresses women and MINORITIES AS LEADERS her if she was ever the farmer. She told me minorities differently from white men. If you think of only white men as senior that only boys could be farmers. I told her Referring to some men as "Mr. partners, board members, leaders, etc., try that girls could be farmers - that my grand- ," and women or minorities by to start thinking differently. Some of this mother (and grandfather) were farmers. I for- their first names may cause others watching visualization is helped by language. Much got about the conversation but a few weeks or listening to think the woman or minority fun has been made of America becoming later Annie walked intò the house shouting, is less important. My personal pet peeve is overly politically correct in its language; "Today I was the farmer and picked Jonathan when I am listed with a group of men and but to some degree the use of alternate pro- as my husband." When questioned she told they all have formal names with middle ini- nouns and diverse groups in photographs me that her teacher announced that they were tials and my middle initial is omitted. helps us visualize minorities and women in going to play the farmer in the dell and asked Also, get used to saying the word leadership positions. For example, when who wanted to be the farmer. Annie raised "woman." Skip the discussion about how you say "the lawyers and their wives," you her hand and said "girls can be faners too." "girl" "honey" or "dear" are meant in a flat- visualize male lawyers. It also may make The teacher then asked Annie to be the tering manner. Those terms detract from a the female lawyer in the audience feel farmer. woman's knowledge, expertise and ability, uncomfortable, especially if you then say Every year I have to fil out a form for a and focus on gender rather than the "oh and you and your husband." It may cre- liquor license in a state (other than Utah) employee's position in the workplace. It's ate a sense of not belonging which if cre- which asks my name, my wife's name, and difficult to visualize the president of a law ated often enough and long enough can other names ever used by my wife. It never firm or company as a girL. It is hard to give
.
/\ 7\ A NEW PARTNERSHIP. . . -&Jt~... We are pleased to announce that the Uta8tateBa has recently endorsed a new carrer for the Bar-Sponsored Lawyers' Professional Liability Insurance Program.
com is rated "A" by A.M. Best and brings 20 years of professional liability insurance knowledge and experience to the Utah program. Callusfordetails- .ROlLINS~IUDIGHAIL
;~ Program Administrator for over 35 years iil I 2180 South 1300 East, Suite 500 :¡: Salt Lake City, UT 84106 (801) 488-2550 / (800) 759-2001 t 't ~
~.
8 Vol. 9 No. 2
?~ --
I
a raise or promotion to a "girL." and succeed. progressing professionally. Not everyone On a related note, shake hands with For women and minorities I have the fol- has to learn to play golf, but participate in women the same as you would with men. lowing suggestions. I cannot claim any of some way that makes you comfortable. This Don't wait to see if the woman wants to these as truly mine; rather they are comments may mean experimenting with a few things shake hands, just do it. Shaking hands is an I have heard from a variety of attorneys and that make you uncomfortable. On the other expected form of greeting in the legal and judges (mostly women) for the past 16 years. hand, do not create friendships for the pur- business community. If a lawyer (especially pose of providing protection. The friend- a new lawyer) who is a woman doesn't ini- DEVELOP CLIENTS ships should be a natural outgrowth of tiate shaking your hand, it is probably In a small firm, medium firm or large firm working together hard and developing a because she doesn't know if you will shake developing and retaining clients is the key to relationship; not a forced relationship for her hand, so stick your hand out and shake being a success. Watch how other lawyers the purpose of being promoted. hers. This is a visual mechanism that lets develop clients and ask other lawyers how a others know who you respect. particular client chose them. Law firms, like DEAL WITH ADVERSITY most businesses, are in the business of mak- Discrimination exists - deal with it. WHEN A WOMAN OR MINORITY ing money. Understand the financial situa- This does not mean you have to accept it or DOES NOT SUCCEED IN THE tion of your employer and contribute to the that you shouldn't try to change it. WORKPLACE, DO NOT PLACE SO bottom line and the financial decisions of the Recognize it and learn how and when to MUCH EMPHASIS ON THAT EVENT employer. In an non-firm setting - govern- respond. Most discrimination is not the THAT YOU ARE AFRAID TO HIRE, ment, corporate, etc. - there may not be the result of evil motives, but of lack of experi- PROMOTE, MENTOR ADDITIONAL need to develop clients but the ability to rec- ence and discomfort with people who are WOMEN AND MINORITIES ognize, understand and interact with your different. Help make people more comfort- Success or failure by a woman or minor- client is important. A briliant mind able with you. Try to educate rather than ity may be more noticeable because they threaten. This is easier said than done, espe- are more noticeable because they are differ- (researcher, writer) who cannot effectively communicate with the client is of little, if cially if a number of frustrating events have ent from the majority of the workforce, but any, help. occurred and you are biling 2200 hours a do not let that fact create stereotyping. year. If I threaten to quit because someone doesn't use my middle initial or call me CHECK YOUR TRACK RECORD "girl", I probably don't seem very rational; If you don't have any women or minori- but it is probably the cumulative effect of a ties in leadership positions in your work- "Discriminiation exists- number of events that results in the out- place, find out why. If you have a woman deal with it." burst. Try to deal with the daily issues one or minority who seems to have done every- thing requested (billed hours, worked in at a time - not in a whole lump. every department, etc.) but is still not suc- SEARCH OUT MENTORS cessful, examine the situation. Although WORK HARD AND SMART; Look for mentors. Watch how other there may not be anything to do to salvage PROVE YOURSELF women and minorities respond to difficult the current situation, you may learn some This is a good way to develop and retain situations and how they succeed. Make sure things that wil be helpful to the work place clients, and also a good way to obtain the you can separate yourself from your mentor in the future. Don't be defensive - be will- respect of your colleagues. Don't just put in when appropriate. ing to listen for ways to improve the work hours, but be smart about working effec- environment. tively and efficiently. HAVE A SENSE OF HUMOR Same as above. Be able to laugh at your- HA VE A SENSE OF HUMOR BE INTERESTED self and others. This can relieve some of the Be able to laugh at yourself and others. Express interest in matters you want to tension and make it easier for a group of This can relieve some of the tension and make work on. Don't wait for someone to come to diverse people to work together in harmony it easier for a group of diverse people to you with projects. and productively. work together in harmony and productively. PARTICIPATE Elimination of a glass ceiling requires None of the above suggestions address Join in social events, ask people to lunch, revising people's pre-conceived ideas about the more complicated issues of flexible participate in meetings. Initiate and develop work time, reduced work schedules, minority status and gender. That process is rapport that wil allow others to have confi- one of continual training and heightened parental leave, etc., and none of them alone dence and trust in you and your work. A awareness of the impact of behavior in the wil dissolve the glass ceiling. However, lawyer told me once that she used to always workplace. A nice by-product is a better they are tangible, practical ways to check to eat lunch at her desk to save time because she workplace for everyone. see how you treat people in the workplace. wanted to bil lots of hours and yet get home By being a mentor to women and minorities at a certain time, but then she realized she in the workplace and giving them respect was cutting herself out of an important aspect and support you wil help them and others of the work environment. Casual settings are feel that it is possible for them to progress often the opportunity to express interest in
Februw)' 1996 9 Ethical Considerations Under the Amended Federal Rules of Civil Procedure
By Philip S. Ferguson
SMALL V. MONOLITHIC, INC.: inquiries, you learn that Monolithic shares THE PROBLEM a small terminal in the Salt Lake area, but The phone rings. By force of ugly habit, that it is based in California and operates you glance at your watch. It is 2:00 p.m. largely in the southwestern United States. Charlie, your estate planning friend from You conclude that it would be well to file in law school with whom you occasionally federal court to gain the advantage of the share referrals, is on the line. broader subpoena power, even though you "An old high school acquaintance, Guy haven't had occasion to file in federal court Small, has been consulting me about his for a couple of years. financial problems. Seems he was involved In a potent demonstration of modern in a fairly serious accident a couple of years effciency and skill, you have drafted a ago," Charlie informs you. "He swears it complaint seeking special damages, includ- wasn't his fault but he has been too busy ing both past and future lost income, gen- dealing with his injuries and their compli- eral damages, and damages for the loss of cations that he hasn't been in to see a enjoyment of life, so-called hedonistic lawyer. I thought you might be able to help." damages, filed the complaint, and put both "How long ago was the accident?" you the summons and the complaint in ,the inquire, your statute of limitations antennae PHILLIP S. FERGUSON is the Managing hands of the process server before 5 :00 already on the alert. Director, and a shareholder in the Salt p.m. that day. Confidently, you assure your "Small said it was either 3 or 4 years. He Lake City law firm of Christensen & new client that you have the matter well in wasn't altogether sure. I told him that per- Jensen, P.C, where he practices in the hand and wil protect his interests zeal- sonal injuries actions are outside my baili- areas of products liability, aviation and ously, as is your style. wick and suggested he call on you. I hope professional malpractice law. He Soon after the complaint is filed, your that is okay. He should be there momentar- received his A.A. degree from Ricks process server effects service. Within a few ily." Sure enough, Guy Small was in your College, where he was a Spori Scholar, days you receive a packet from the clerk of reception area by the time you got off the his B.A. degree, summa cum laude, and the federal court containing some forms phone with Charlie. his J.D. degree, cum laude,from Brigham and materials you have never seen before. It was obvious that he suffered extreme Young University, where he also served as You read about electing Alternative physical limitations. He used a cane. He a member of the Board of Directors of the Dispute Resolution through the Court walked slowly and stiffy. He was breath- Board of Advocates. Mr. Ferguson is a Annexed ADR program and a Rule 26(f) ing quite hard by the time the two of you member of the Utah State Bar, and cur- conference to be held at least 14 days prior reached the office. Mental gymnast that rently sits on the Needs of the Elderly to the Initial Scheduling Conference which you are, you were already calculating the Committee. He is a member of the Utah wil be set by the court. You discover that special and general damages (and the resul- Defense Association, the Defense you must file some kind of joint scheduling i I tant fee) such a client as this could bring if , Research Institute, and the American Bar or planning report with defense counsel the facts proved out the way Charlie had Association. within 10 days of the Rule 26(f) meeting. intimated. Alarmed, you decide to take a quick After the preliminary inquiries, you got look at the Federal Rules of Civil Procedure right to business. "When did this accident move fast." and the local Rules of the District Court. happen?" You obtain the facts giving rise to the You were aware that some amendments "After talking to Charlie, I look it up in accident. Small was a traveling salesman. He had been proposed, but since all of your my personal journal. It wil be exactly four was rear-ended by a long-haul truck driver recent work has been in the state courts, years tomorrow," he wheezes. employed by Monolithic, Inc., while on busi- you did not pay much attention to them. "A "Four years tomorrow!" you exclaim. ness in Nevada. He was minding his own few amendments couldn't really make that "That means the statute of limitations wil business and driving in accordance with the much difference anyway," you reasoned. expire almost immediately! We need to rules of the road. After some well-placed "Besides, I can always attend one of those ~ I
10 Vol. 9 No.2 ii i tr I ubiquitous CLE programs on the federal rules before I get too far into the case, if necessar." Your biggest surprises stil await you. You read about mandatory initial disclo- J~(4~:t sures in Rule 26(a)(1). You read about detailed expert reports in Rule 26(a)(2), and 1116 H~YlM ~~ of the need to file pretrial disclosures in 11Md) -1 ~:t Rule 26(a)(3). You find that you must sup- plement or amend your disclosures and dis- S:. a~ H~ ,~. covery responses pursuant to Rule 26(e) at "appropriate intervals." You glance through Rule 26(g) and realize, to your horror, that The Jammin' Jurist's Mid-Year Meeting Music Festival failure to fulfil these various new duties All members of the Utah State Bar who are musicians are welcome to attend and par- can result in the imposition of s¡inctions. ticipate in the musical jam session at the Mid-Year Meeting, March 7-9, 1996. We are tr- In a flash of inspiration, you look at Rule ing at this time to put together several groups, representing different types of music, to head 37, which used to govern sanctions, and off the jam session. We are looking for categories such as classic rock-n-roll, rhythm-n- blues, jazz, and country westernlue grass. Members of the Bar who play instrments are find that it stil does. However, on this read- encouraged to fil out a pre-registration form so that we can put you with the group in which ing, you discover that the sanctions now you would feel most comfortable. A leader for each band wil be chosen, who will coordi- include a complete bar to the use of any nate five or six numbers for their group. Drums, percussion instruments, microphones, evidence which was not properly disclosed amplifiers, and a public address system will be provided. Except for drummers, the musi- at the outset of the case, reasonable attor- cians should bring their own instruments. Guitar players, hom players, fiddle players, etc., ney's fees, the striking of your complaint, should bring their own instrument. The jam session will follow Friday night's dinner on and varous other potentialy lethal remedies. March 8, 1996, and you do not have to attend the dinner to be a part of the jam session, Shaken, and cursing the day you ever although we hope you will attend both. Don't worr if you are a bit rusty. This is for every- filed in federal court, you call in your one with any musical talent at any leveL. Don't be sorry because you didn't sign up. client. Carefully, you explain these new Please pre-register on the fonn attached to this announcement and mail to: rules and the obligation you both have to Scott Jensen, 205 26th Street, #34, Ogden, UT 84401 or Scott Reed, 236 State Capital, SLC, UT 841 i 4. abide by them. Wilingly, and in complete trust, Guy Small tells you everything. Eight years earlier, Small divorced his Name:
wife. About 2 years later, he inherited a Bar Number: Phone Number: couple of the more lucrative national Address: accounts from a retiring colleague. Not wanting to share this new-found wealth Instrument( s): with his ex-wife, he has carefully concealed Years Experience: from her the changes that have taken place. Circle type of Music with which you are most familiar: Trained by years of living with a traveling Classic Rock-n-Roll Rhythm-n-Blues Jazz Countr Western / Blue Grass salesman, she had insisted on a copy of his tax returns. You discover to your eternal dismay that Small, a shrewd but short- sighted fellow, has filed false tax returns with the government. Furthermore, he has THE 1996 WATER LAW & POLICY SEMINAR kept a careful record of his true earnings in March 11, 1996 DON'T MISS IT! his personal journal, the same journal you were counting on to establish the general Conveniently held between the Bar's Mid-Year Meeting and hedonistic damages about which you and the Annual Utah Water Users' Workshop have been drooling. The bad news does not end there. Small all at the ST. GEORGE HOLIDAY IN. tells you that, while he was seriously injured in the accident, he had been diag- This year's seminar focuses on HOT WATER Topics such as nosed with a degenerative disease of the TAKINGS, FORFEITURES, TRANSFERS, & THE ROLES OF THE STATE ENGINEER nervous system two weeks before the acci- dent during a routine physical exam. His 7 Hours CLE, including 1 Hour Ethics, Requested doctor was not certain how quickly the dis- Contact Phylls (g 532-1900 for more info. ease would begin to affect his ability to earn a living, or the quality of his life. Even Sponsored by the STATE BAR'S WATER LAW COMMITTEE, the UTAH WATER now, the doctor is unable to say, with any USERS ASSOCIATION, and BARNTT INTERMOUNTAIN WATER CONSULTING
February 1996 11 .
degree of medical certainty, that the accident available for inspection and one of these passengers that diverted her exacerbated the underlying degenerative copying as under Rule 34 the attention from the road and resulted in the disorder or to quantify the extent to which documents or other evidentiary accident. The driver has been repeatedly Small's current physical limitations are due material, not privileged or pro- warned about this behavior, although none to the accident rather than the disease. tected from disclosure, on which of the warnings is in writing. There are 2 "Surely you don't have to disclose these such computation is based, dispatchers and a former supervisor, stil in things to the other side," Small queries including materials bearing on the employ of Monolithic, Inc., who have when he sees your deeply furrowed brow the nature and extent of injuries personally given warnings about such and the veins beginning to swell a deep pur- suffered; and behavior to the driver. In his first visit to the ple in your neck. "You're my lawyer. I'm (D) for inspection and copy- offices of Monolithic, Inc., he is shown entitled to have my conversations with my ing as under Rule 34 any insur- computer files created during the hiring own lawyer protected, aren't I? And what ance agreement under which process which indicate that this driver was about my privilege against self-incrimina- any person carrying on an insur- invited to leave her prior employment tion? That's constitutional, isn't it?" ance business may be liable to because, even though she is an excellent dri- Thinking that Small may be too facile satisfy part or all of a judgment ver, she had a habit of picking up passengers. with the law to suit you, you growl, "Im which may be entered in the She had promised vociferously not to do so sure we can figure something out." You action or to indemnify or reim- here. On a subsequent visit, he discovers assure Small that things wil work out burse for payments made to sat- that these computer files no longer exist. appropriately even though your own inter- isfy the judgment. Your opponent nervously observes that nal organs are seething under pressures that you did not allege conduct giving rise to are all too reminiscent of the day you called punitive damages, but you did allege that in for your bar exam results. the driver was in violation of company pol- "Can the Federal Rules of Civil "Can the Federal Rules. . . really icy. You did not specify which policies nor Procedure really force me to disclose to the manner in which the driver was in vio- opposing counsel the very information I've force me to disclose to opposing lation, and your opponent concludes that obtained from my own client in confiden- counsel. . . information. . . from you made a lucky guess. (Having been tial interviews?" you wonder with trepida- . . . confidential interviews?" involved in trucking accident cases over the tion. "I've got to be certain of my years, you know that such allegation is obligations before I make what could be a often closer to a certainty than a lucky monumental mistake." guess, and you made the allegation in light You make a more careful study of the Unless otherwise stipulated or of this knowledge.) He is concerned that by language of Rule 26(a)(l), emphasizing the voluntarily disclosing the names of the for- language that strikes you as operative: directed by the court, these disclosures shall be made at or within 10 days after mer supervisor and the 2 dispatchers, nei- Except to the extent otherwise ther of whom would otherwise have any stipulated or directed by order or the meeting of the parties under subdi- vision (f)\A party shall make its initial involvement with the driver, along with the local rule, a party shall, without await- L disclosures based on the information subject of their testimony, wil only serve to ing a discovery request, provide to inspire an amended complaint on your part. other parties: then reasonably available to it and is not excused from makng its disclosures He is virtually certain that you wil request (A) the name and, if known, an instruction that the jury is entitled to the address and telephone num- because it has not fully completed its investigation of the case or because it conclude that Monolithic's personnel file ber of each individual likely to on the subject driver was damning because have discoverable informa- challenges the suffciency of another party's disclosures or because another it destroyed the file during the pendency of tion relevant to disputed facts the lawsuit. He is modestly concerned that alleged with particularity in party has not made its disclosures. In light of this rule, you conclude that the you may tell the County Attorney that the pleadings, identifying the Monolithic has engaged in spoliation of subjects of the information; allegation for lost income makes the tax returns and personal journal "relevant." You evidence, a criminal offense. He whines to (B) a copy of, or a descrip- his partners that all of this information tion by category and location also conclude that your allegations of perma- nent injury and loss of enjoyment of life seems to fall squarely within the language of, all documents, data, compi- of Rule 26(a)(l)(A). lations, and tangible things in make the information regarding the diagno- sis of the degenerative disease "relevant." Worried sick, both of you scurry off to the possession, custody, or con- study the Rules of Professional Conduct for trol of the party that are rele- Now what are you going to do? M~anwhile, across town, at the firm of some guidance on what must be disclosed vant to disputed facts alleged and what can safely be keep confidentiaL. with particularity in the Aggressive, Worthy & Opponent, your pleadings; opposing counsel is going through the very same exercise. He has discovered that the THE RULES OF (C) a computation of any PROFESSIONAL CONDUCT subject truck driver has a habit of picking up category of damages claimed This hypothetical example focuses upon passengers, in violation of company policy, by the disclosing party, making the mandatory disclosure requirement of and that it was probably her interaction with
12 Vol. 9 NO.2 i I amended Rule 26(a)(I) because it, more also, a lawyer can be sure that preserv- the Rules further cautions that, than most of the other amendments which ing client confidences ordinarily serves The Rules do not, however, became effective on December 1, 1993, the public interest because people are exhaust the moral and ethical consid- encroaches upon the near-sacred relation- more likely to seek legal advice, and erations that should inform a lawyer, ship of attorney and client in startling and thereby heed their legal obligations, for no worthwhile human activity can disquieting ways. The other amendments when they know their communications be completely defined by legal rules. represent a marked departure from past wil be private. The Rules simply provide a frame- practices, to be sure, but they do not present In the nature oflaw practice, however, work for the ethical practice of law. the ethical dilemmas of a rule that mandates conflcting responsibilities are encoun- Moreover, these Rules are not disclosure of information which is "rele- tered. Virtually all difficult ethical intended to govern or affect judicial vant to disputed facts alleged with particu- problems arise from conflict between a application of either the client-lawyer larity in the pleadings." lawyer's responsibilities to clients, to or work product privilege. Those Utah shifted from the Code of the legal system and to the lawyer's privileges were developed to promote Professional Responsibility to the Rules of own interest in remaining an upright compliance with law and fairness in Professional Conduct, patterned on the person while earning a satisfactory liv- litigation. In reliance on the client- ABA's Model Rules of Professional ing. The Rules of Professional Conduct lawyer privilege, clients are entitled Conduct, on January 1, 1988. The Preamble prescribe terms for resolving such con- to expect that communicatiqns within to the Rules provides a general overview of flicts. Within the framework of these the scope of the privilege wil be pro- the lawyer's duties: Rules, many difficult issues of profes- tected against compelled disclosure. A lawyer's responsibilities as a sional discretion can arise. Such issues The client-lawyer privilege is that of representative of clients, an officer of must be resolved through the exercise the client and not of the lawyer. The the legal system and a public citizen of sensitive professional and moral fact that in exceptional situations the are usually harmonious. Thus, when judgment guided by the basic princi- lawyer under the Rules has a limited an opposing party is well represented, ples underlying the Rules. discretion to disclose a client confi- a lawyer can be a zealous advocate on Rules of Professional Conduct, "Preamble: A dence does not vitiate the proposition behalf of a client and at the same time Lawyer's Responsibilities," Utah Court that, as a general matter, the client assume that justice is being done. So Rules Annotated, at ion. The "Scope" of has a reasonable expectation that
WHEN YOU NEED THE BEST MEDICAL EXPERT EVALUATION and TESTIMONY AVAilABLE...
YOU NEED DR. STEVEN E. lERNER & ASSOCIATES. Within 90 minutes of your conversation with Upon completion of record review the specialist Dr. Steven Lerner we will fax to you the specialist's will contact you by telephone with an oral opinion. curriculum vitae and retainer agreement for review. If requested the specialist will then prepare and sign All of our physician specialists are board- a written report and be available for testimony. certified medical school faculty members or are of Since 1975 our MO's, DDS's, OPM's, OD's, PhD's and medical school faculty caliber. RN's have provided services to legal professionals.
Call now for a Free Consultation, Specialist Curriculum Vitae and Fee Schedule Based on an Hourly Rate. FebruaryDR. STEVEN E. LERNER & ASSOCIATES1996 . 1-800-952-7563 13 ~
information relating to the client wil believes is likely to result in CORPORATION KITS not be voluntarily disclosed and that death or substantial bodily FOR disclosure of such information may harm, or substantial injury to be judicially compelled only in the financial interest or prop- UTAH accordance with the recognized erty of another; COMPLE1 OUTIT exceptions to the client-lawyer and (2) To rectify the conse- $52.95 work product privileges. quences of a client's criminal Pre-printed By-Laws, miutes & resolutions, prited stock certifcates & full page stubs, corporate seal w/pouch, binder & The lawyer's exercise of discre- or fraudulent act in the com- slipcase. index tabs & ta form for EIN & S Corporation. tion not to disclose information under mission of which the lawyer's Complete kit wto pre-prited By-Laws & miutes. 50 shts bond paper. Rule 1.6 should not be subject to services had been used; $49.95 reexamination. Permitting such reex- (3) To establish a claim or $4.00 additional S & H per kit (UPS Ground). Next day delivery available on request. amination would be incompatible defense on behalf of the lawyer Kit wlo seal $4.95 plus S & H with the general policy of promoting in a controversy between the compliance with law through assur- lawyer and the client or to ances that communications wil be establish a defense to a crimi- protected against discloure. nal charge or civil claim Utah Court Rules Annotated at 1073, 1074. against the lawyer based upon Unfortunately, these Rules were promul- conduct in which the client was gated prior to the amendments to the fed- involved; or eral rules of civil procedure. The Rules of (4) To comply with the Professional Conduct appear to be inconsis- Rules of Professional Conduct tent with the duty to disclose under Rule or other law. 26(a)(1). (c) Representation of a client includes counseling a lawyer(s) about OTHER PRODUCTS the need for or availability of treat- . NON-PROFIT OUTIT $59.95 ment for substance abuse or psycho- . LTD. LIABILITY CO. OUTIT $59.95 "The Rules of Professional logical or emotional problems by . LTD. PARTNRSHI OUTIT $59.95 members of the Utah State Bar serv- . FAMY LTD. PART. OUTIT $59.95 Conduct appear to be ing on the Lawyer Helping Lawyer . SEAL WIPOUCH (CORP, NOTARY) $25.00 inconsistent with the duty to Committee. . STOCK CERTS & STUS (20) $25.00 disclose under Rules 26( a)(1 )." One can immediately ask whether the provisions of 1.6(b)(4), holding that the NEW!!! lawyer may reveal confidences "to comply EXHIT INEXES & CLOSING SETS with. . . other law," may not mandate dis- WE STOCK A LAGE INNTORY Rule 1.3 provides that "A lawyer shall closure of confidential information which is "relevant to disputed facts alleged with par- OF EXHIT INEXES act with reasonable diligence and prompt- (ALPHABETICAL & NURICAL), ness in representing a client." This rule ticularity in the pleadings" as required by Rule 26(a)(1). Certainly, the provisions of CLOSING SETS (ALHABETICAL & replaces the old Canon 7 which required a NURICAL), BLA WRTABLE Rule 37(c)(1) make it clear that the lawyer TABS & SPECIALTY INEXES, ALL lawyer to "represent a client zealously within the bounds of the law." The com- and the client refuse to make these disclo- FOR QUICK SHIMENT. CALL FOR sures at considerable risk to the case and PRICING INO. MI FOR QUANTITY ment to Rule 1.3 makes it clear that a their financial circumstances: DISCOUNTS. "lawyer should act with commitment and dedication to the interests of the client and A party that without substantial ORDER TOLL FREE! with zeal in advocacy upon the client's justification fails to disclose informa- PHONE 1-800-874-6570 behalf." Utah Court Rules Annotated at 1078. tion required by Rule 26(a) or FAX 1-800-874-6568 Rule 1.6, Confidentiality of Information, 26(e)(I) shall not, unless such failure ORDERS 1N BY 2 PM MT SHIPPED SAME DAY provides: is harmless, be permitted to use as WE WILL BILL YOU WITH YOUR ORDER. evidence at a trial, at a hearing, or on SATISFACTION GUARANTEED. (a) A lawyer shall not reveal infor- CORPORATION OUTITS REQUIRE TIE FOLLOWING mation relating to representation of a a motion any witness or information INFORMTION: not so disclosed. In addition to or in Exact name of the corporation, state & year of incorporation, tota client except as stated in paragraph shares of stock authorid with par value (or no par), preferred shares, lieu of this sanction, the court, on complete or w/o By-Laws. NO CHGE FOR STANAR CLUSES wr KI PURCHE. (b), unless the client consents after motion and after affording an oppor- SPEC CLUSES AN MUTILE CLSES OF STOCK EX CHAGE. disclosure. tunity to be heard, may impose other CORP-KIT NORTHWEST, INC. (b)A lawyer may reveal such information to the extent the lawyer appropriate sanctions. In addition to 413 E. SECOND SOUTH requiring payment of reasonable believes necessary: BRIGHAM CITY, UT 84302 expenses, including attorney's fees, (1) To prevent the client SERVIG TH NORTHWEST from committing a criminal or caused by the failure, these sanctions may include any of the actions autho- fraudulent act that the lawyer
14 Vol. 9 No. 2 b rized under subparagraphs (A), (B), and tial evidentiary value. A lawyer person; or (C) of subdivision (b)(2) of this rule shall not counselor assist (b) Fail to disclose a mater- and may include informing the jury another person to do such an act; ial fact to a third person when of the failure to make the disclosure. (b) Falsify evidence, counselor disclosure is necessary to avoid Rule 37(b)(2)(A)-(C) allows the court to assist a witness to testify falsely, assisting a criminal or fraudulent consider certain allegations established for or offer an inducement to a wit- act by a client, unless disclo- purposes of the case, to prohibit the intro- ness that is prohibited by law; sure is prohibited by Rule 1.6. duction of evidence which contravenes (c) Knowingly disobey an Finally, Rule 8.4, Misconduct, provides: evidence elicited by opponents, and to obligation under the rule of a tri- It is professional misconduct for a strike answers, dismiss complaints, or bunal except for an open refusal lawyer to: otherwise enter judgment against the dis- based on an assertion that no (a) Violate or attempt to vio- obedient party. valid obligation exists; late the Rules of Professional The matter is complicated further by the (d) In pretrial procedure, Conduct, knowingly assist or provisions of Rules 3.3, 3.4, 4.1 and 8.4 of make a frivolous discovery induce another to do so, or do the Rules of Professional Conduct. Rule 3.3 request or fail to make reason- so through the acts of another; provides: ably diligent effort to comply (b) Commit a criminal act (a) A lawyer shall not knowingly: with a legally proper discovery that reflects adversely on the (1) Make a false statement of request by an opposing party; lawyer's honesty, trustworthi- material fact or law to a tribunal; ness or fitness as a lawyer in (2) Fail to disclose a mater- other respects; ial fact to a tribunal when dis- (c) Engage in conduct closure is necessary to avoid involving dishonesty, fraud, "The matter is complicated further assisting a criminal or fraudu- deceit or misrepresentation; lent act by the client; by the provisions of f other J Rules (d) Engage in conduct that is (3) Fail to disclose to the tri- f of Professional Conduct j." prejudicial to the administra- bunal legal authority in the tion of justice; controlling jurisdiction known (e) State or imply an ability to the lawyer to be directly to influence improperly a gov- adverse to the position of the (e) In trial, allude to any mat- ernment agency or official; or client and not disclosed by ter that the lawyer does not rea- (f) Knowingly assist a judge opposing counsel; or sonably believe is relevant or or judicial officer in conduct (4) Offer evidence that the that wil not be supported by that is a violation of applicable lawyer knows is false. If a admissible evidence, assert per- Rules of Judicial Conduct or lawyer has offered material sonal knowledge of facts in issue other law. evidence and comes to know except when testifying as a wit- The American Bar Association held, in its falsity, the lawyer shall take ness, or state a personal opinion Formal Opinion No. 93-376, that the can- reasonable remedial measures. as to the justness of a cause, the dor requirement of Rule 3.3 "trump" the (b) The duties stated in paragraph credibility of a witness, the cul- obligation to maintain client confidences, (a) continue to the conclusion of the pability of a civil litigant or the as set forth in Rule 1.6, in the somewhat proceeding, and apply even if compli- guilt or innocence of an accused; or related context where the lawyer learns that ance requires disclosure of informa- (f) request a person other than her client has lied on deposition and falsi- tion otherwise protected by Rule 1.6. a client to refrain from voluntar- fied documentary evidence. (c) A lawyer may refuse to offer ily giving relevant information to Returning to our hypothetical example, evidence that a lawyer reasonably another party unless: you now know that your client has filed tax believes is false. (1) The person is a rela- returns which are false, and that any evi- (d) In an ex parte proceeding, a tive or an employee or dence on which you rely to claim a loss of lawyer shall inform the tribunal of all other agent of a client; and past and future income may depend upon material facts known to the lawyer (2) The lawyer reason- those falsified returns. Under Rules which wil enable the tribunal to ably believes that the per- 26(a)(I)(C), you are obligated to provide make an informed decision, whether son's interests wil not be damage computations and the documents or not the facts are adverse. adversely affected by upon which those computations are based. Rule 3.4 provides: refraining from giving Even if you successfully avoid producing A lawyer shall not: such information. the tax returns themselves, a strong argu- (a) Unlawfully obstruct Rule 4.1 provides: ment can be made that, at a bare minimum, another party's access to evi- In the course of representing a client a you are required to inform both the court dence or unlawfully alter, lawyer shall not knowingly: and opposing counsel that your client has destroy or conceal a document (a) Make a false statement of information bearing on the issues which or other material having poten- material fact or law to a third you are not at liberty to disclose, a disclo-
February 1996 15 -
sure which itself raises the possibility of as large as possible. refusing to disclose his false tax returns and prosecution by the IRS, and a motion by Under Rule 26(a)(l) you do not have the his pre-accident diagnosis. Perhaps he wil Small's ex-wife for additional child support choice of selecting the evidence which you elect not to pursue certain claims, thereby and alimony payments, not to mention will disclose. You are obligated to disclose potentially relieving you of your obliga- sanctions for having lied to the judge in the "relevant" evidence, whether it is helpful or tions to the court and opposing counseL. domestic proceeding. harmful to your client's position. This Perhaps, between the two of you, you can If you opt to present the true income fig- dilemma is not susceptible of any easy solu- fashion a claim that assures compensation ures from Small's journal, or through tion. There is no "right" answer. for those injuries which are easily traceable records and testimony from the employer, to the accident and forego the remaining there is stil a risk that both the IRS and the claims. Perhaps you can encourage Small ex-spouse wil learn of Small's deception. to file amended tax returns covering those Moreover, the value of the lost income years for which the IRS can stil prosecute claim is significantly reduced by foregoing "Under Rules 26( aX 1) you do him. Perhaps Small wil simply find the income figures from the tax returns. not have the choice of selecting the another lawyer less concerned about her Using the true income figures, combined evidence which you disclose." ethical behavior to pursue the case - and with the pre-accident diagnosis of degener- to keep you and your malpractice carrier ative disease in the nervous system, will uneasy for the next four years. almost certainly lead defense counsel to The Rules of Professional Conduct argue that Small has suffered no prospec- The Rules of Professional Conduct obligate you to "take reasonable remedial tive income loss because any inability to impose upon the lawyer a strong obligation measures" when you learn that your client work in the future is due to the degenerative to keep the client well informed, to make dis- has falsified evidence: condition, not to injuries suffered in the closures about the lawyer's tough choices, When false evidence is offered by accident. Accordingly, you have strong and to seek input from the client before deci- the client, however, a conflct may incentive to make the damages for past lost sions are made. Without question, Mr. Small arise between the lawyer's duty to wages, those closer in time to the accident, needs to be told about the consequences of keep the client's revelations confi- dential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false char- acter should immediately be dis- UTAH LAW AND JUSTICE CENTER closed. If the persuasion is 645 SOUTH 200 EAST · SALT LAKE CITY, UTAH 84111 ineffective, the lawyer must take rea- sonable remedial measures. Except in the defense of a criminal QUALITY MEETING SPACE accused, the rule generally recog- AVAILABLE FOR PROFESSIONAL, CIVIC AND COMMUNITY ORGAN1ZATIONS nized is that, if necessary to rectify the situation, an advocate must dis- close the existence of the client's THIS MODERNFAClLITY PROVIDES ANY STYLE OF SEATING deception to the court or to the other ARRANGEMENT AND FEATURES: party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal REASONABLE RATES PERSONAL AITENTION but also loss of the case and perhaps a prosecution for perjury. But the CENTRAL DOWNTOWN LOCATION FREE ADJACENT PARKING alternative that the lawyer cooperate in deceiving the court, thereby sub- AUDIO - VISUAL EQUIPMENT" REGISTRATION AREA verting the truth-finding process which the adversary system is designed to implement. See Rule COMPLETE CATERING DAY OR NIGHT 1.2(c). Furthermore, unless it is clearly understood that the lawyer FOR INFORMÂTION AND RESERVATIONS, CONTACT: wil act upon the duty to disclose the existence of false evidence, the client THE UTAH LAW AND JUSTICE CENTER COORDINATOR (801) 531-9077 can simply reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the
16 Vol. 9 No.2 .n i
client could in effect coerce the Federal Rules of Civil Procedure? diligent effort to comply with a legally lawyer into being a party to fraud on The Rules of Professional Conduct make proper discovery request by an opposing the court. it clear that there are occasions when remain- party." Comment to Rule 3.3, Utah Court Rules ing silent is tantamount to participating with Mandatory disclosures under Rule 26(a)(l) Annotated at! 102. the client in a deception or fraud. See, for are not quite the same as a request for pro- It is a closer question whether the Rules example, Comment to Rule 3.3 ("There are duction under Rule 34, or a set of interroga- of Professional Conduct obligate you to circumstances where failure to make a dis- tories under Rule 33, but the spirit and tone remonstrate with your client over past closure is the equivalent of an affirmative of Rule 3.4 of the Rules of Professional indiscretions which are not directly related representation."), Utah Court Rules Conduct leads inexorably to the same to the action for which you have been Annotated at 1l02; Comment to Rule 1.2 result. Your opponent probably has the retained. ("However, a lawyer may not knowingly obligation to disclose the identity of the The spirit of Rules 1.6(b)(l), 3.3(a)(2), assist a client in criminal or fraudulent con- witnesses and the substance of their testimony. 3.4(a) and 8.4 prohibits a lawyer from using duct. . . . When the Client's course of action Both you and your opposing counsel his high office and calling to help others has already begun and is continuing, the may decide to wait and see how things go perpetrate frauds or gain unfair and lawyer's responsibility is especially deli- before making these uncomfortable disclo- improper advantage of others, and from cate."), Utah Court Rules Annotated at 1077; sures. Your strategy may be to disclose the allowing anyone else to do so either. You and Comment to Rule 4.1 ("Paragraph (b) obvious materials and to hold back on the know that Small may have perjured himself recognizes that substantive law may require a inflammatory stuff until you have a better in a domestic proceeding and in the filing lawyer to disclose certain information to feel for what the case is like. This strategy of his income tax returns. You know that he avoid being deemed to have assisted the is not without its risks. wil probably continue to do so unless you client's crime or fraud."), Utah Court Rules Aside from the obvious risk of sanctions successfully encourage him to change his Annotated at 1110. Monolithic's lawyer has under Rules 26(g) and 37, there is 28 ways, even though the false information is likely encountered one of these situations. U.S.c.A. §1927 which provides: technically not necessary to prosecute the Any attorney or other person admit- matter for which he has consulted you. You ted to conduct cases in any court of are in a position to prevent future fraud in the United States or any Territory unrelated matters by disclosing your client's thereof who so multiplies the pro- confidential communications to appropriate "ITjhere are occasions when ceedings in any case unreasonably authorities. It is a difficult position in which remaining silent is tantamount and vexatiously may be required by you find yourself. to participating with the client the court to satisfy personally the The Comment to Rule 3.3 provides, that in a deception or fraud." excess costs, expenses, and attor- "(aJ practical time limit on the obligation to neys' fees reasonably incurred rectify the presentation of false evidence because of such conduct. has to be established. The conclusion of the Further, Rule 8.4 admonishes lawyers that proceeding is a reasonably definite point it is professional misconduct to "(eJngage There is a qualitative difference between for the termination of the obligation." Utah in conduct that is prejudicial to the admin- knowing that your client has destroyed evi- Court Rules Annotated at 1103. This istration of justice." You should likewise be dence and merely knowing that your client Comment may relieve you of any obliga- mindful of the general provisions of Rules has evidence which hurts your case. Your tion to contact the judge who presided over opponent probably should disclose the 3.1 and 3.2. Rule 3.1 provides that "(aJ the domestic matter although, as we all destruction of computerized evidence by lawyer shall not bring or defend a proceed- know, domestic "proceedings" almost ing, or assert or controvert an issue therein, Monolithic, but the Rules of Professional never conclude. For those of us who prac- unless there is a basis for doing so that is Conduct do not specifically require that he tice no criminal defense law, now might be not frivolous, which includes a good faith disclose the names of the former supervisor a good time to send Mr. Small over to argument for an extension, modification or and the 2 dispatchers, and their knowledge someone who does. reversal of existing law." Rule 3.2 states that the truck driver repeatedly violated com- What about your esteemed colleague that "(aJ lawyer shall make reasonable pany policy. That obligation is supplied by over at Aggressive, Worthy & Opponent? efforts to expedite litigation consistent with Rule 26(a)(l). He may not have a client who has filed the interests of the client." The Comment to The Rules of Professional Conduct begin false tax returns and lied to the judge in a Rule 3.2 provides: to make your opponent sweat when they prior judicial proceeding, but he has a client Dilatory practices bring the admonish the lawyer to obey discovery rules who has apparently destroyed evidence administration of justice into disre- and to avoid quibbling unnecessarily. Rule with the intention of making it unavailable pute. Delay should not be indulged 3.4(a) says that a lawyer shall not "(uJnlaw- for use in this litigation. There is little ques- merely for the convenience of the fully obstruct another party's access to evi- tion that his client's conduct is ilegal, and advocates, or for the purpose of frus- dence. . . ." Rule 3.4(c) says that a lawyer very probably a second degree felony pur- trating an opposing party's attempt to shall not "(kJnowingly disobey an obligation suant to §76-8-510, U.C.A. Must your obtain rightful redress or repose. under the rules of a tribunaL. . . ." Rule 3.4(d) adversary make a disclosure of his client's Utah Court Rules Annotated at 1101. indiscretion under Rule 26(a)(I) of the says that a lawyer shall not "make a frivolous discovery request or fail to make reasonably
F ebl1ull)' 1996 17 A SUGGESTED APPROACH fied at §§78-24-8(2) and 78-51- involves governmental entities, their No one can prescribe in the abstract how 26(5), U.CA; employees, or their patients, be alert to the all cases under the new federal rules should (2) attorney work product limited limitations on discovery imposed by the be handled. The strategic, legal and ethical privilege, set out at 26(b)(3), (4) Government Records Access and considerations wil differ from case to case. and (5), Fed. R. Civ. P.; Management Act ("GRAMA"), §63-2-lO1, The discussion presented above is intended (3) Trade secrets or other confidential U.CA, et seq., (especially §63-2-202(7)). to focus on some of the more significant research, development, or com- An exhaustive list of privileges is beyond issues and potential pitfalls. It should not be mercial information, as protected the scope of this article, but the point is that read as advice on which to cal in the event Bar by 26(c)(7), Fed. R. Civ. P.; you should carefully consider whether a Counselor the Court want to chat with you. (4) Protection from annoyance, privilege under common law or statutory There are some basic questions to ask embarrassment, oppression or law relieves you of or at least tempers the yourself as you go about preparing to liti- undue burden or expense, as delin- obligation to make a mandatory disclosure gate a case under these amended rules. If eated in 26(c), Fed. R. Civ. P.; under Rule 26(a)(l). you are counsel for the plaintiff, do you (5) The general requirement that dis- If you decide that certain materials are want your complaint pled with greater par- covery be "relevant to disputed protected by a privilege, it is often a good ticularity, thus making your complaint facts alleged with paricularity in idea to prepare a "privilege log" identifying ! serve double duty as a request for produc- the pleadings." Rule 26(a)(l), Fed. the materials with enough specificity that
tion of documents by invoking greater dis- R. Civ. P. opposing counsel can make a meaningful Ii closure responsibilities on the part of the determination as to whether the privilege I: defendant( s)? has been improperly claimed. See, Rule If you represent the defendant(s), do you 33(b)(4). The case law under the rules fre- Ii want to answer with greater particularity, quently requires that such a log be shared "Careful early thought about the thus obligating the plaintiff to make greater with opposing counsel at the time the claim disclosures? Or do you want to admit more lawsuit also encourages settlement of privilege is made. of the allegations than usual so as to remove and saves the client money." Are you claiming damages? How are issues from the realm of "disputed facts" those damages calculated? Have you made and, therefore, from the realm of those mat- the materials upon which the computations ters about which disclosures must be made? are based available? This is one area where Have you made reasonable inquiry for There are other privileges which are not you could find yourself in serious trouble if relevant documents and witnesses? Would so well known, or are just emerging as the the court later determines that you did not you be satisfied if your opposing counsel jurisprudence of the common law develops. make timely disclosure and prohibits the conducted an inquiry only as extensive as For example, if your litigation involves introduction of your evidence. the one you have conducted? health care providers, be alert to the limita- These amendments are basically designed Carefully examine applicable privileges. tions on discovery mandated by §§26-25-3 to foster greater communication between There are several that you may invoke as a and 58-12-43(7), U.CA., and the physi- counseL. The rules provide that the parties basis for refusing to disclose documents cian/patient privilege codified at §78-24-8(4) may alter the application of these rules by and witness identities (depending upon the (and in various other places, depending upon stipulation, and it is often in the interests of circumstances, of course): the specific class of health care provider you both parties to discuss modifications to the (1) attorney client privilege, codi- are suing or representing). If your litigation rules, not only those requiring disclosures, but those relating to the number and length of depositions, the number of interrogato- ries that each party may serve, and whether Plan to attend the upcoming discovery ought to be conducted in phases. At the scheduling conference, the court wil usually honor the stipulations of counsel if 1996 Uta State Bar Anual Meeting the stipulations are reasonable. These amendments are also designed to encourage counsel to think about the case, to be held July 3-6 in Sun Valley, Idaho. ~i the theory of liability, the necessary wit- i nesses, and the documentary evidence, as Hope to see you there! well as the damages, early in the litigation. A well-drafted complaint and answer (and .\Av~ counterclaim, if necessary) can make a huge difference in the discovery phase of ~G./_~-- j"l~~'J~~t~l/ .vir-\ae_/\;~~..~ ~t~ F.. ~..~~..: the case. Careful early thought about the lawsuit also encourages settlement and ~lUlA'AJ)~ll ' i d ¿-A li),~'~ saves the client money. JI_~J~~_0J'~~/_ ,v ~/VJ '\ Ultimately, these amendments require
18 Vol. 9 No. 2 -I ì
counsel to practice law in the same way that accident, she was also in flagrant violation of you contact the former supervisor infor- experienced and effective counsel have company policy. This suggests a strong mally under these circumstances? been practicing for decades, if not cen- potential for a conflct of interest between the Rule 4.2, on its face, prohibits a lawyer turies. Some of the discovery strategies employer and the employee. Can one law from contacting a party the lawyer knows may be different under these new rules, and firm, even after disclosure and consultation, to be represented by counseL. The ABA the timing of the exchange of information appropriately represent both defendants in recently amended Rule 4.2 of the Model wil certainly be new, but the essential this litigation? How can your opponent pro- Rules of Professional Conduct, on which approach of thinkng through the case at the ceed when, after meeting with the driver he the Utah Rules are based, to replace the outset, and communicating with opposing realizes that the driver's interests are adverse word "party" with the word "person." counsel in a civilized manner, wil be famil- to Monolithic's interests? What if he has Under the amended version of Rule 4.2, iar terrtory. obtained confidential information from the there is a serious question whether employer which is harmful to the employee? Monolithic's own lawyer can contact the FURTHER THOUGHTS And information from the employee which is former supervisor/employee about the acci- If the issues surrounding the interaction harl to the employer? dent since it may form a basis for the gen- of the mandatory disclosure requirements Suppose the trck drver's former super- der discrimination case against Monolithic of Rule 26(a)(l) and the Rules of visor is also a former employee of and the former employee has retained coun- Professional Conduct do not cause you at Monolithic, Inc. Can you contact him infor- seL. This is apparently so even if the former least momentar reflection, consider some mally? What if he was a low level supervisor, employee is not considered par of the of the following questions. They relate to a and not part of the "control group" of "control group." varety of different issues under the Rules Monolithic? Suppose that the case of Small v. of Professional Conduct. Suppose further that Monolithic's former Monolithic has been grinding away slowly An issue which we skipped at the outset supervisor/employee has retained counsel in the inimitable fashion of lawsuits in the is whether Aggressive, Worthy & who is considering a claim against federal courts. Due to the press of other busi- Opponent can (or should) represent both Monolithic for gender discrimination and ness, you have had to hire additional legal Monolithic and its employee driver. While who intends to use the case of this truck dri- talent to help with your burgeoning case the driver was likely in the course and ver to ilustrate the point that women in the load. Just as you are makng an assignment scope of employment at the time of the company receive preferential treatment? Can to the 3rd year associate you recently hired,
Claim of the Month A 28-year old, maried mother (plaintiff) In terms of the liability, it became clear that with the case regarding the previous acci- of two children, presented herself to an the plaintiff was stopped at a red light and dents. attorney's office seeking representation for was strck by another vehicle. Liability Plaintiff has now sued the attorney for injuries which she allegedly sustained in an appeared to be in favor of the plaintiff. The missing the statute of limitations. This is a automobile accident. At the time of the ini- attorney then began to review the plaintiff's case that could possibly be settled, how- tial consultation, the plaintiff was accompa- medical records. The medical records indi- ever, the plaintiff now has the idea that she nied by her husband. The plaintiff had cated the plaintiff had sustained cervical should recover at least the $200,000 that advised the attorney that she suffered from injures in three prior automobile accidents. was "promised" during the initial consulta- a fractured cervical vertebrae along with The records further indicated that the plain- tion and maybe more, given that the defen- some minor lacerations and contusions as a tiff's fractured vertebrae probably resulted dant is now an attorney. result of the accident. When initially asked from the second accident. The statute of lim- Complete notes, confirmng letters and the value of the case, the attorney advised itations for the second accident ran during other documentation can help clearly recreate that he did not feel comfortable makng any the time the attorney was investigating and the client's representations and the services initial evaluations until he had a further evaluating the plaintiff's injuries. that wil be provided. Further detailed let- opportunity to review the underlying liabil- ters can also clarfy what services wil not ity and some of the more important medical CLAIM A VOIDANCE be provided, should a situation so warant. records. The husband indicated that they Obviously, the attorney made an error in had already consulted with several other his initial investigation and in diarying his Compiled by a Claims Coordinator for the attorneys, all of which would at least place file for the running of the statute of limita- Lawyers Professional Liabilty program at an initial evaluation on the case. After sev- tions. Maybe not quite as obvious, but of Coregis. Endorsed by ten bar associations. eral questions by the husband, the attorney almost equal importance, is the fact that the finally did give his initial evaluation, indi- attorney created unreasonable expectations cating value approximating $200,000. on the par of the client when he gave an ini- The plaintiffs signed a retained agree- tial evaluation of $200,000. This error was ment with the law firm and the attorney compounded by the fact that the attorney began to investigate the merits of the case, failed to advise the client of the problems
February 1996 19 she tells you that she worked at Aggressive, stingy? Or can you seize upon his willing- clients and engaging in litigation. It does Worthy & Opponent right after law schooL. ness to settle, cut your own losses, and get not even treat all of the potential ethical She was aware of Small v. Monolithic, but out of the case while the getting is good? issues that can arise in connection with the handled only one or two small research pro- Over at Aggressive, Worthy & Opponent, recently amended federal rules of civil pro- jects relating to the case before being Monolithic's counsel is worried. The offer he cedure. Instead, it highlights a few of the whisked off to spend the next several made was crafted by Monolithic's insurance more troubling issues that are beginning to months reading documents in some accoun- carrier. The carrier issued a reservation of come to the fore as we gain more experi- tant malpractice case, the case which drove rights letter at the outset of the litigation, on ence with these amendments. her from Aggressive, Worthy & Opponent the grounds that the truck driver intentionally There is no substitute for an occasional to the small firm from which you recruited violated company policy. Monolithic, while reading of the Rules of Professional her. Can she work on the case for you? not thrilled with the behavior of the truck dri- Conduct. It is also wise to peruse the dis- Can you continue to handle the case your- ver, has doggedly resisted all efforts to settle, cussion of these issues which proliferate in self now that you have an attorney in your arguing that it has legitimate concerns about professional journals and law reviews from firm who has or may have confidential your client's damages and credibility. around the country. It is particularly helpful information about the defendant? Ho do Without coming right out and saying so, to read articles written by those who prac- you determine whether she has acquired Monolithic's insurer, one of Aggressive, tice in the same general area of law, and information protected by Rules 1.6 and Worthy & Opponent's largest clients, let it from the same perspective (i.e., plaintiff or 1.9(b) which is material to the matter, as set be known that failure to make the settlement defendant), that you do. That way, you gain forth in Rule 1.10? offer would not be looked upon kindly by the insight into problems that you are likely to In what surely must now be regarded as local claims manager or the regional claims encounter in your own practice. the "case from Hell," suppose that, on the office. It wants to cut defense costs and does Utah's experience with the amendments eve of the court-ordered deadline for mak- not really care about Monolithic's concerns to the federal rules, like the experience of ing all pre-trial disclosures, including those over its reputation, the fact that the settle- other jurisdictions, is stil too new to have which you successfully managed to post- ment offer is little more than Monolithic's resulted in the creation of much case law, pone through some timely and sensitive deductible, or arguments about "the principle especially case law dealing with the Rules negotiations with opposing counsel, he of the thing." Is this settlement offer legiti- of Professional Conduct. However, it is makes a settlement offer which Small is mate in view of these conflicting attitudes only a matter of time before we begin to see inclined to accept. After costs and about the propriety of settlement? To whom the courts resolving some of the issues expenses, your one-third of the remainder does your adversary owe his allegiance? raised by the hypothetical example with will barely cover the cost of the associate What happens to him if you accept the offer? which this article began. With careful and paralegal who have assisted you in dis- study, diligence and luck, yours will not be covery and trial preparation. You are con- the test case. vinced that the case has a value greatly in excess of the settlement offer in question. For his part, Small is concerned about his "There is no substitute for an future legal problems with the IRS and his occasional reading of the Rules ex-wife, and has less anxiety about the of Professional Conduct." financial recovery than you do. To what extent can you go in attempting to persuade Small to reject his offer and allow you to employ your legendary negotiating skills to CONCLUSION extract something more reasonable? Do This article does not permit treatment of you have a duty to help Small appreciate all of the ethical considerations a lawyer that Monolithic's offer is unacceptably must make in the process of representing
.on 3D Animated Reconstructions on video, Mathematical Analysis and Simulation to help you win your case. John Pace, JD RN, Director (sliding scale for divorce & custody) David Ingebretsen B.S., M.S.
9 Exchange Place, Suite 900 30 PHYSICS, Salt Lake City, UT ø (801) 487-211 SLC UT 84111 email: dingebre~xmission.com phone 801.364.4999 fax 801.5340515 · FREE Video available on request · 20 voi. 9 NO.2 - Justicia Para Todos1 Ensuring Equal Access to the Courts for Linguistic Minorities
By Michael Gardner and Judge Lynn W. Davis
MICHAEL GARDNER graduated from JUDGE LYNN W. DA VIS is the Presiding Brigham Young University with a B.A. in Judge of the Fourth District Court. He is Political Science and a minor in Spanish. chair of the Utah State Court Committee Mr. Gardner is currently in his second on Interpretation and Translation and he year at the National Law Center at sits on various national advisory commit- George Washington University, where he tees. He is a member of the charter class serves as a member of the Moot Court of the J. Reuben Clark Law SchooL. In his Board. While working as a summer clerk spare time, he coaches youth soccer and for the Honorable Lynn W. Davis of the baseball, and he and his family raise and Utah Fourth District Court, he worked on train dogs for Guide Dogs for the Blind. various projects promoting due process for non-English speaking minorities.
what judicial duties arise in a case where unique challenges of court interpretation Immigrationamong the and nation's cultural most diversity significant are interpreter services are used, and what can for the hearing-impaired. The Utah trends for the 1990s and the next century. and does go wrong when court interpreting is Division of Rehabilitative Services estab- These trends have had an impact on the improper.2 lishes the proficiency of sign interpreters administration of justice in the courts and Court interpreters are frequently utilized and establishes, maintains, updates, and on the rights of linguistic minorities. Jurists in criminal cases in the State of Utah. distributes a list of qualified interpreters. and lawyers generally do not understand Spanish, the Island languages, South East Utah Code Ann. § 78-24a-l et seq. (1992 & the significance of the court interpreter's Asian languages and Navajo are the four Supp. 1995) specifically deals with inter- role and the unique needs of the linguistic most utilized categories of languages in preters for the hearing-impaired. That is an minority in the courtroom. As a result, few Utah, with Spanish comprising 80-90% of important topic reserved for another day. trial judges and attorneys know what the interpreters needs. should be required of a court interpreter, This presentation does not address the
February 1996 21 i. THE ROLE AND FUNCTION translates the source language from a counsel or understand the charges against The duty of the court interpreter is to written document. him, he is entitled to an interpreter to take interpret to the party or witness all state- "Current thinking in the field of judicial full advantage of his constitutional rights ments made in open court as part of the interpreting leans toward the use of consecu- and to ensure due process.6 "The right of a case. The duty includes interpreting accu- tive interpretation when testimony or state- criminal defendant to an interpreter is based rately for the judge, counsel and the jury ments by non-English speakers are on the fundamental notion that no person what the accused or witnesses are saying interpreted into English for the record, and should be subjected to a Kafkaesque trial Il when they speak. As pointed out in the simultaneous interpretation when the pro- which may result in the loss of freedom and Code of Judicial Administration, "the inter- ceeding is taking place in English and needs liberty."7 The simple statement that a non- ì preter shall not answer questions or give to be interpreted for the benefit of non- English speaking defendant is entitled to an !I advice but shall direct such requests to English speakers."3 interpreter belies the complexities inherent , counsel and/or the court." CJA 3-306 This fundamental background leads us to in this issue. The constitutional questions (2)(B). The interpreter does not indepen- the constitutional underpinnings. that arise include: when in the proceedings dently read rights, give legal advice, or con- should an interpreter be provided, is each duct anything off the record unless co-defendant entitled to an individual inter- authorized to do so by the court. It is very preter, and what are the applicable stan- important to note that interpreters must not dards of review for violations of the "IFJailure to assign each defendant "correct erroneous facts posed in the questions interpreter provision requirement? Utah has and shall not correct the testimony given by an individual interpreter. . . is not not decided these important issues. Utah, in the party or witness even if clearly in automatically reversible error." fact, has yet to establish a standard of error." CJA 3-306 (20)(c)(vi). Sometimes review for interpreter violations. This sec- judges reprimand interpreters for not cor- tion explores these issues. recting erroneous statements when, in fact, they are mandated not to do so by a Code of II. CONSTITUTIONAL STANDARD OF REVIEW - Professional Responsibility. IMPLICATIONS OF "HARMLESS BEYOND A Attorneys and judges should understand COURTROOM INTERPRETATION REASONABLE DOUBT" the basic interpreter modes: There is no federal constitutional provi- In trials of non-English speaking defen- . Simultaneous - the interpreter speaks sion guaranteeing the right to an interpreter: dants, courts across the country have not (interprets/transmits) at the same and only a few states constitutionally guaran- applied a uniform standard of review to time as the source language person. tee non-English speaking defendants the determine whether an error occurred at trial 5 Courts, however, · Consecutive - the interpreter waits right to an interpreter. because of incompetent interpretation. In until the source language finishes, have recognized that when a criminal defen- 1985, the California courts applied an then interprets. dant is so unfamiliar with English that he "informed speculation" of prejudice stan- · Sight translation - the interpreter cannot effectively communicate with his dard of review for cases in which the defen- dant's right to an interpreter was violated.8 Under this standard the defendant could The law firm of only have the decision overturned on appeal for reversible error if he could show that he suffered either actual or "informed WINDER & HASLAM/ p.e. speculation of prejudice." This standard, however, was replaced by the "harmless is pleased to announce that beyond a reasonable doubt" standard of review in People v. Rodriguez9 and People v. Chaves. lO Other state and federal courts JOHN~HOLT have reviewed the trial court's actions and under an abuse of discretion standard.II I STAGES OF THE PROCEEDING i .1 Rodriguez held that failure to assign ~ i JENNIFER L. FALK each defendant an individual interpreter i '! have become shareholders and directors throughout all proceedings is not automati- ¡ii cally reversible error. Nevertheless, signifi- of the firm as of January 1, 1996 cant decisions have leaned the other way, 'i leaving one unsure of exactly what error wil be found to violate the harmless 175 West 200 South · Suite 4000 beyond reasonable doubt threshold. For 12 holds that absent Salt Lake City, Utah 84101 instance, Monte v. State, (801) 322-2222 a valid waiver of one's right to an inter- preter, or other circumstances that would
22 Vol. 9 No.2 I
allow a defendant to understand the pro- interpreters, it is not necessary to be certified appointment of an uncertified interpreter is ceeding, failure of the trial court to appoint to be a court interpreter. In accordance with not error.!9 The Utah Court of Appeals an interpreter during the pretrial hearings or Utah Code of Judicial Administration, Rule recently addressed the issue of appointment sentencing is reversible error. 13 The Florida 3.306(2), Utah courts shall appoint inter- of court interpreters. In State v. Fung, the Appellate Court has held that failure to preters from a list of certified interpreters trial court appointed an interpreter on appoint an interpreter to a defendant during prepared by the administrative office, or the behalf of the defendant. The defendant his plea constitutes reversible error. 14 In court shall appoint an interpreter after ascer- objected to that appointment because the California, People v. Mata Aguilarl5 holds taining that he/she has met the minimum interpreter lacked courtroom experience. that a defendant must be able to communi- requirements, which shall include: (1) an The trial judge questioned the interpreter in cate with her counsel throughout the trial, understanding of the terms used in court pro- chambers and evaluated his experience and and that using the defendant's court ceedings; (2) an ability to explain these terms background. The court "found that (the appointed interpreter to interpret for the in the English language and the foreign lan- interpreter) understood the court system benefit of the jury violates that right. 16 guage which wil be used; and (3) an ability adequately to perform the required duties," People v. Rios,17 another California case, to interpret these terms into the foreign lan- despite the fact that the interpreter lacked established a defendant's right to hear and guage being used. Thus, if a certified inter- familiarity with some legal terms. In deny- understand the testimony of all witnesses preter is not used, it is the court's ing the defendant's appeal, the Utah Court without fear of interrupting the trial, imply- responsibility to evaluate whether the inter- of Appeals applied an abuse of discretion ing that one defendant cannot be required to preter is qualified. standard in reviewing the trial court's share his interpreter with a co-defendant. choice of an interpreter, and held that "the burden rests with the defendant to show INTERPRETER CERTIFICATION that he was somehow denied a fair trial by Once it is determined that the defendant the interpreter's deficiencies. "20 needs an interpreter, the trial court must "To ensure quality court appoint an interpreter who is able to readily interpreting, a certifcation III. UTAH'S RESPONSE TO THE communicate with the defendant and accu- program is criticaL." LEGAL REQUIREMENTS NECESSI- rately repeat and interpret the trial proceed- TATING COURT INTERPRETERS21 ings.18 This does not necessarily mean that Linguistic minorities appear in Utah's the interpreter must be certified. Most courts in substantial and increasing num- bers.22 In the average month, an estimated states have no formal certification process, In several states, courts have held that minimum of 250 proceedings involve a and even though Utah has certified court absent a showing of incompetence, the
.. .. ~ ./ .. ø i ..-. ~ \" Grea"t Idea! Advertising in the Utah Bar Journal is a really great idea. Reasonable rates and a circulation of approximately 6,000! Call for more information.
Shelley Hutchinsen · (801) 487-6072
Feb;uary 1996 23 2 --Ki rl
II non-English language interpreter. To in any certification that can ensure the exper- and/or appropriations from the state legisla- ensure quality cour interpreting, a certifi- tise level of those interpreters who complete ture, for a court interpreter certification I i cation program is critical. However, in the training. program. Because the costs are substantial Utah, as in most states, the problems related Second, training has been provided to (to develop and administer tests in one lan- to interpreter certification are beyond an District, Circuit and Justice Court judges to guage may exceed $100,000), interpreter affordable solution at the state level due to assist them in court proceedings involving a certification lends itself especially well to inadequate expertise and financial capacity. court interpreter. Plans to train Juvenile interstate resource sharng; Utah's long- Utah courts have not yet decided many Cour judges are in progress. term strategy is to join with other states to issues regarding uncertified interpreters. Third, the AT&T "Language Line" inter- share in the benefits of their interpretation Utah is currently in the process of consider- preter service was installed on a pilot basis in certfication efforts. ing the applicable standards for court inter- the West Valley City Circuit Cour. This sys- The National Center for State Courts has preter certification at the state leveL. tem is a cost-effective means of dealing with formed a "State Court Language Interpreter Despite the lack of adequate funding for interpreter needs that occur in short hearings Certification Consortium" with member- a comprehensive certification program, the such as arraignments and sentencings, rather ship curently consisting of the states of Utah courts have made the following than bringing in and paying an interpreter. It Utah, Washington, New Jersey, Minnesota, efforts to address court interpreter issues is paricularly useful in cases involving lan- Oregon, Marland, New Mexico, Virginia, using existing resources. First, two training guages that are not commonly used in Utah, and also the City of Philadelphia. Other seminars (one day each) for court inter- and for which interpreters are not readily states have also shown an interest in paric- preters were offered in 1994, to teach inter- available. ipating in the Consortium. To establish the preters the basics of interpreting in a court Finally, several frequently used court doc- Consortium, the founding states con- setting - including procedural and ethical uments have been translated into Spanish for trbuted court interpreter skills tests in sev- issues. Eighty interpreters from around the use in all courts and by all public defenders eral foreign languages and underwrote the state attended the training and their names and prosecutors. These are currently under- planning and organizing costs. The purose have been provided to the cours. There going revision, and new versions wil soon of the Consortium is to establish court have been two equally successful seminars be distrbuted. interpretation test development, administra- in 1995. These seminars are not language The goal for several years has been to tion standards, and provide testing materi- specific and do not involve testing or result obtain funding, through federal grant sources als to individual states. This wil enable
The Uta Sta Ba brigs you the When you Prfeiona Seces AccounfB frm MBNAAmerca More and more law firms are enhancing their practices by offering offer clients clients the option to pay legal fees with a MasterCard" or Visa" card. MBNA America, one of the nation's leading financial inovators, has developed a credit card acceptance program specifically for this purpose-the a more Professional Setvices Account. With a Professional Setvices Account, payments are credited directly convenient to your account. You benefit by fast receipt of payments and savings on administrative costs associated with old-fashioned biling and collection methods. Your clients benefit from the flexibility of choosing payment whether to pay their balances in full or cany balances and make small monthy payments. method, For more information about an MBNA America" Professional Setvices Account, you end up CA 1-800-526-8286 MONDAY TIROUGH FRDAY FROM 8 AM. TO 8 P.M. AN SATUAY FROM 8 AM. TO 5 P.M. (EA TI). with more
MBNA America and Professional Services Account are federally regitere seivice marks of MBNA America Bank, N.A. MasterCard is a federally clients. AlIN'" regitere service mark of MasterCrd Interntional Inc., us pursuant . usedtö licens. Vispursuant is a federally registere to servicelicense. mark of Visa .U.S.A. . Inc.,._, _ (£1995 MBNA America Bank. N.A. AD 7-185-95USB I VISA' I
24 Vot. 9 No. 2 ,
individual states and jurisdictions to have CONCLUSION interpreter employed by the prosecution, but she did not inter- pret the testimony of English speaking witnesses for Negron the necessary tools and guidance to imple- Immigration and demographic changes in except for providing summaTies during recesses. In affirming ment certification programs. language use present enormous challenges the distrct court's grant of relief on Negron's habeas corpus petition, the court of appeals held that it is imperative that Utah's Administrative Office of the and consequences for the judiciary. Courts every criminal defendant possess "sufficient present ability to Courts has now been awarded federal grant are increasingly compelled to use language consult with his lawyer with a reasonable degree of rational understanding." Negron's incapacity to respond to specific funding from the Byrne Memorial State and interpreters in court proceedings. testimony would inevitably hamper the capacity of his coun- Local Law Enforcement Assistance Furthermore, this diversity makes it increas- sel to conduct effective cross-examination. Not only for the sake of effective cross-examination, but as a matter of simple Program to develop a court interpreter cer- ingly difficult for the criminal justice system humaneness, Negron deserved more than to sit in total incom- tification program for Spanish language to meet Constitutional requirements of fun- prehension as his trial proceeded. Id. at 390. interpreters. With the funding, Utah has damental fairness, equal protection, and the 7 People v. Mata Aguilar, 677 P.2d 1198, 1200. 8people v. Resendes, 210 CaL. RptT. 609 (1985). joined the Consortium and has contracted right to confront and cross examine adverse 9728 P.2d 202 (CaL. 1986). with the National Center for State Courts to witnesses. Language bariers and barriers 10283 CaL. Rptr. 71 (Ct. App. 1991). conduct training, testing and certification erected by cultural misunderstandings can liSee, e.g., People v. Warren, 504 N.W. 2d 907 (holding that for Utah court interpreters. The grant fund- render criminal defendants virtually absent abuse of discretion wil be found only where it appears that the ing is available for one year only. To pro- from their own court proceedings, and can witness was not understandable, comprehensible, OT intelligi- ble, and that absence of an interpreteT deprived the defendant vide for an ongoing interpreter certification result in misinterpretation of witness state- of some basic right); United States v. Yee Soon Shin, 953 F.2d program and for expansion of the program ments made to police or triers of fact during 559 (9th CiT. 1992); United States v. Rosa, 946 F.2d 505 (7th Cir. 1991); Valladares v. United States, 871 F.2d 1564 (11th Cir. to other languages, a budget request is court proceedings. Further, language minor- 1989). being prepared for submission to the 1996 ity litigants are deterred from using the civil 12443 SO.2d 339 (App. 2d Dis!. 1983). Legislature. justice system as a forum for redress of 13See United States v. Cirrincione, 780 F.2d 620 (7th CiT. 1985) (holding that a criminal suspect was entitled to transla- grievances. tion during pretrial heaTings); Martinez v. State, 449 N.E.2d iv. SUGGESTIONS FOR Non-English speaking defendants are 307 (Ind. Ct. App. 1983) (holding that the defendant was THE PRACTITIONER denied effective assistance of counsel and the Tight to be entitled to an interpreter to take full advan- meaningfully present at every stage of proceedings when no The quality of court interpretation can- tage of constitutionally guaranteed rights and interpreter was present fOT vior dire or jury panel). not be evaluated or challenged on appeal to ensure due process. The State of Utah is 14Balderrama v. State, 433 So.2d 1311, 1313 (Fla. App. 2d absent an audio and/or video record of the Dist. 1983) (citing Fla. R. Crim. P. 3.170U)). taking important steps in developing a certi- 15677 P.2d 1198, 1200. proceedings. This is a concern for those fied interpreter program. Part of this impor- 16See People v. Nieblas, 207 CaL. RptT. 695 (Ct. App. 1984) judges who typically only use a court tant process involves the education of (holding that defendant's right to an interpreter was violated reporter. It is obvious that a court reporter when the court borrowed his interpreter to assist in testimony lawyers and jurists regarding the role of the of three prosecution witnesses, thus making it impossible for does not preserve any non-English record court interpreter. Counsel and judges should him to communicate with his attorney or understand instruc- for appeal or review. give deference to the important role of the tions and IUlings of judge during that period). 17161 CaL. App. 3d 905, 912 (1984). It is recommended for all settings where court interpreter; interpreters should be a court interpreter is used that an audio 18State v. Van Pham, 675 P.2d 848 (Kan. 1984). treated with dignity and as professionals. 19people v. Estrada, 221 CaL. Rptr. 922 (Ct. App. 1986) and/or audio-visual record be maintained. The interpreter "may not edit, summarize, (holding that defendant has no Tight to a certified interpreter, Court personnel should confirm that audio add, or omit meaning. The original message only to a competent interpreter, and thus use of an unceTtified interpreter at a preliminary hearing was not error); Montoya v. equipment adequately records the interpre- must be transmitted exactly, or as closely as State, 811 SW.2d 671 (Tex. Crim. App. 1991) (holding that tation. Since the position of the interpreter possible, into the second language."23 Once the trial court did not err in appointing a Spanish-speaking bailiff to fil in for the qualified interpreter who became ill, may change in the courtroom, assurances of judges and counsel understand this role, it is because there was no evidence that the bailiff was not compe- adequate sound pickup are imperative. In hoped they wil respect it, appreciate the dif- tent to act as interpreter). 20State v. Fung, Utah Adv. Rep. 24 (CA, 12/795). any trial, the use of recording equipment ficulty of its performance and cooperate in its should be mandated. 21Special thanks to Holly Bullen and the Utah Administrative fulfilment. Office of the Courts for heT valuable contribution to this sec- Attorneys and judges ought to appreci- tion. ate how difficult, complex and incredibly i "Justice fOT all" in Spanish. 22Based on data derived from the payments made to language mentally demanding court interpretation is. 2Portons of this paper are drawn from the following article: Judge interpreters provided by the Administrative Office of the Lynn W. Davis & Willam Hewitt, Lessons in Administering Courts, the following is a district by district list of the use of Judges must be aware of the fatigue factor Justice - What Judges Need to Know About the Roie, Function court interpreters. The languages are listed according to fre- associated with interpreting, particularly and Professional Responsibility of the Court Interpreter, quency of use. HarvaTd Latino Law Review (forthcoming 1996). 1st District: District - Spanish, ITanian, Cambodian. consecutive interpreting. There is a wide 3Fundamentals of COUlt Interpretation: TheOlY Policy and Juvenile - Spanish, Iranian, Cambodian, Laotian. 2nd District: District - Spanish, Vietnamese, Laotian, range of language skills represented in the Practice, Gonzales, Vasques & Mikkelson, Carolina Academic Chinese. Circuit - Spanish, Vietnamese, Laotian, Chinese. Press, 1991, p. 163. courtroom: judges, attorneys, witnesses and Juvenile - Spanish, Vietnamese, Laotian. 4Cervantes v. Cox, 350 F.2d 855 (10th Cir. 1965) (observing the accused. An expert witness who, for 3rd District: District - Spanish, Vietnamese, Tongan, that there is no per se constitutional Tight to an interpreter to sup- Arabic. Circuit - Spanish, Vietnamese, Tongan, Arabic. example, has a post doctorate degree needs plement the right to assistance of counsel). Juvenile - Spanish, Vietnamese, Laotian, Thai, Tongan. to be understood by an accused who may 5See, e.g., CAL CaNST. ART. I § 14 ("A person unable to 4th District: District - Spanish, Vietnamese, Japanese, understand English who is charged witha crime has a right to an Tongan. Circuit - Spanish, Vietnamese, Japanese, Tongan. have no formal education whatsoever. interpreter throughout the proceedings"). 5th District: District - Spanish, Navajo, Vietnamese, A paper of this length can only briefly 6United States ex. rei. Negron v. New York, 434 F.2d 386 (2d Polish. Juvenile - Spanish, Navajo, Vietnamese, Polish. 6th District: District - Spanish, Navajo, Vietnamese. touch upon practical considerations. A Cir. 1970) is perhaps the most significant case regarding court Juvenile - Vietnamese only. interpretation. In that case, Negron, a Puerto Rican American 7th District: District - Spanish, Navajo. "Practitioner's Checklist" has been with a sixth-grade education, was found guilty of murder. He 8th District: District - Spanish only. Juvenile - Spanish only. attached and its use may prove helpful in neither spoke nor understood English, and his court-appointed 23Samuel Adelo, "Courtroom Interpreters Often lawyer spoke no Spanish. The testimony of two Spanish-speak- avoiding miscariages of justice. ing witnesses was interpreted for the benefit of the jury by an Misunderstood," The New Mexico Lawyer, May 4, 1992 at 20.
February 1996 25 11
I ¡I The Courtroom Interpreter A User's Guide and Checklist PRE-TRIAL CONFERENCE CONSIDERATIONS:! TRIAL CONSIDERATIONS D Appoint interpreters at the earliest stage to afford preparation. D Physical accommodations: microphone and sound equip- D Consider the possible need for multiple interpreters.2 ment may be needed to hear speakers. Interpreters should stand or sit where they wil not block the view of the judge, D Remember the fatigue factor and necessity of recesses. jury, counsel, or accused and must be able to hear every 3 D Be aware of and caution the participants regarding speed and speaker. simultaneity of conversation. D Certify or qualify and voir dire interpreter.4 D Discuss interpreter modes - simultaneous, consecutive, and D Administer oath.s sight translation. D Allow counsel to take exception to qualification.6 D Allow the interpreter contact with the accused in order to: 1. explain the interpreter role including the fact that every- D Always refer to interpreter by name. thing wil be interpreted, including vulgarties; D Give preliminar instrctions to the jury, paries and wit- 2. confirm education leveL. nesses regarding the role of the interpreter.7 3. become familiar with dialects, jargon, regionalisms, and D Caution paricipants about speed, clarity and simultaneity of colloquial expressions; and speech. 4. explain the role of the interpreter and emphasize that interpreting is not an advocate role. D Take breaks to avoid fatigue. D Supply all written documents which wil need to be sight D Watch for interpreter improprieties.s translated at trial to the interpreter and advise the interpreter D Consider the unique requirements of an interpreter for the of experts who wil testify at triaL. deaf or hearing impaired. D Lawyers representing non-English speakers should always D Make and preserve a record: audio, if non-english speakng, determine the immigration/naturalization status of their or audio/visual, if deaf or hearing impaired speaker. clients. (What appears as a great plea bargain for the moment, may result in the deportation of the client or other- wise disturb the client's legal status.)
1 It is invaluable to include the interpreter at pretral. While it may not be as necessary for a rou- . Have you ever been qualified by a judge to interpret in court? tinized arraignment, preparation for a hearing, motion or tral is imperative. Inclusion of an inter- . Have you ever been disqualified from interpreting in any court or administrative hearing? preter at pretrial allows her to understand the case, examine the file, examine written documents, . Have you had training in Professional Ethics for Court interpreteTs? and be advised of the extent of expert wilnesses and field of technical language. At pretiial an . Have you ever been arrested, charged or held by federal, state or other law enforcement interpreter can be advised of specific documents which might be used at trial such as written con- authorities for violation of any federa law, state law, county or municipal law, regulation or ordinance? fessions or affdavits. Many of the above questions were drawn from two sources: (l) Heather K. Van Nuys & 2Multiple interpreiers are necessary in lengthy or complex cases. Many states now use two court- Joanne 1. Moore, Using an Interpreter in Court, Washington State Bar News, May 1987, at 13; room interpreters; one for client-attorney conversation and the other to interpret for the reCOrd. It and (2) A document which is being circulated for review by The California Judicial Council, is also obvious that multiple interpreters are necessary with multiple non-English speaking entitled, "Recoimended Procedures for Finding Certified Interpreters and Voir Dire Procedures defendants. The number of interpreters can be reduced by the use of headsels. to Establish the Qnalifications of a Noncertified Interpreter." 3 1) Interpreters ought to have access to drinkng water at counsel table or nearby without inter- 5The court should make a preliminar determination on the basis of the interpreter's testimony iuption. that the interpreter is qualified and then have the following oath administered: 2) Interpreters ought to be positioned to maintain eye contacl with parties, Ihe lawyers and Oath the judge. "The interpreter shall be positioned in the courtroom to hear the witness or pary Do you solemnly swear that you wil well and trly and to ihe best of your ability discharge but shall not block the view of the judge, jury, or counseL." CJA 3-306 (2) (C) (vii). the duties of interpreter and that you wil interpret and translate from English into _, and 4Before the oath is administered, until such time as a certification procedure is adopted, some from _ into English such questions and answers as shall be put to the witness and received from the witness in the case now pending before the Court, so help you God? inquiry should be made by the judge to assure proficiency of an inierpreter appearing for the first 6The court may also allow counsel to question the inierpreter before he or she is sworn to dis- time and to insure absence of bias. Simple, but fundamental questions such as the following might be asked: charge the duties of interpreter. Utah Rules of Criminal Procedure, Rule 15. It is also well to note . Do you have any partcular training or credentials as an interpreter? thai interpreters are subject to the provisions of the Utah Rules of Evidence relating to qualifica- . What is your native language? tions as an expert and the administration of an oath or affrmation that he/she wil make a tre . How did you lear English? translation. Utah Rules of Evidence, Rule 604. . What was the highest grade you completed in school? 7 A preliminary instrction should be given to the jury to advise the jurors of the important role . Have you spent any time in the foreign countr? of the interpreter; that he or she is not an advocate for the accused, nor part of the defense team. . Did you formally study either language in school? Extent? Judges are required by Rule 3-306 (2) to instruct the paries or witnesses: a) to speak so that the . How many times have you interpreted in court? entire court can hear, not just the interpreters; and b) not to ask questions, seek advice or engage . Have you interpreted for ths type of hearng or trial before? Extent? in discussion with the interpreter, but to direct questions to counselor the court. (See Rule 3- . Do you know the applicable legal terms in both langnages? 306(2)(A-B), Uta Code of Judicial Administration). . Are you a potential witness in this case? 8Judges need to watch for interpreter improprieties, such as: . Do you have any other potential conflcts of interest? 1) Improper influence of the answer by head nodding, facial expressions; . Have you had an opportunity to speak with the non-English speaking person informally? 2) Lengthy exchanges between the inteipreter and the accused; . Were there any particular coimunication problems? 3) Otherwise leading of the witness; . Are you famliar with the dialectal or peculiarties of the witnesses? 4) Answering questions, giving advice, etc. . Can you interpret simultaeously? 5) The interpreter's task is to interpret, not to arbitrate or mediale a resoliition of a case. . Can you interpret consecutively? Lawyers and judges should address the paries, not the interpreter; and . Do you have any teaching experience? 6) When speaking for the accused, the interpreter should speak in the first person; nol "he . Have you interpreted in any non-court settings? said pe didn't do it," but "I didn't do it." . Have you ever had your interpreting skills evaluated?
26 Vol. 9 NO.2 T" . i TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT i ! 1996 Mid-Year Convention Sponsors The Mid-Year Meeting Committee extends its gratitude to the following sponsors for their contributions in making this a successful and enjoyable Mid- Year Meeting. Please show your appreciation for their donation by supporting these firms and businesses: Jones, Waldo, Holbrook & McDonough Parsons Behle & Latimer VanCott, Bagley, Cornwall & McCarthy Ray, Quinney & Nebeker Christensen & Jensen Fabian & Clendenin Snow & Jensen Farr, Kaufman, Sullivan, Gorman, Jensen, Medsker, Nichols & Perkins Snow, Nuffer, Engstrom, Drake, Wade & Smart Prince, Yeates & Geldzahler Litigation Section Corporate Counsel Section Real Property Section
Women Lawyers of Utah Michie Company Blue Cross Blue Shield of Utah First Interstate Bank Trust & Private Client Service Attorney's Title Guaranty Fund, Inc. Knight Adjustment Bureau Sedgwick James/CNA Insurance Software Studios, Inc. Utah Bar Foundation Rollins Hudig Hall of Utah, Inc. 21st Century Office The ITC Companies ~ ~~ .. 1ilili:~c M. \ . \1~;..i 'b£U.Jihl.+ Q1'a;lI..' 'C' , , .-.1; 0 . ( ) Indicates Number of CLE Hours Available .l)l~YJ_ =-. ~/.. ,/ ~.. .', ! '.N_' f! "''' i~,;":" g'! ..~.... i¡~A """- ""''',i;' ..~..¡ "-~ ,..,,,;-,,!' ¡ ."S' ~~g.¡Il!agn¡ _~...;:. 1j' ~:l3li.. ~¡j,. _",i~1l1l r
PROGRAM Do When Your Client Is Not Safe at Home "I -SabraABC THURSDAY, MARCH 7,1996 Commssioner Michael S. Evans, 3rd District 6:00 - 8:00 p.m. Registration and Opening Reception Court Hotel Lobby/Sabra Rooms Domestic violence prevention & changes in Utah Opera Presentation protective orders. Sponsored By: Jones, Waldo, Holbrook & McDonough 5 Planes, Trains, and Automobiles: An Blue Cross/Blue Shield of Utah Introduction to International Business Law First Interstate Bank Trust & Private Client - Hilton Inn Service David R. Rudd, Holland and Hart ~ Mark Wolfert, Senior International Legal .~ 7:00 - 12:00 a.m. Fun Bus to Mesquite's Players Island Counsel, NuSkin Meet in front of the Holiday Inn A non-practitioners guide to International FRIAY, MARCH 8,1996 Business Law. 7:30 a.m. Registration/Continental Breakfast- 6 Editorial Secrets - Sabra FB Hotel Lobby Dr. Joe Moxley, Department of English, University of South Florida Sponsored By: Far, Kaufman, Sullvan, Gorman, Jensen, Medsker, Nichols, & Perkins; Snow, Nuffer, Learn how to produce effective documents by Engstrom, Drake, Wade & Smar systematizing revision and by employing readability guidelines 8:00 a.m. Opening General Session - Sabra Rooms Welcome and Opening Remarks 11:20-11:35 a.m. Break - Hotel Lobby Dennis V. Haslam, President Sponsored By: Women Lawyers of Utah G. Scott Jensen, Chai, 1996 Mid-Year Meeting 11:35 a.m. Breakout Sessions: (1 each) 8: 10 a.m. The Business of Sports - Sabra Rooms (1) 7 Disclosure - You've Read the Book, You've Leigh Steinberg, Steinberg & Moorad Seen the Movie. . . Now Get the Picture- Leigh Steinberg, well known sports attorney, Sabra ABC A star-studded cast of real wil discuss his experiences and expèrtise on life action heroes the art of negotiating personal service contracts wil play out what is fact and fiction: What do women really want in the offce, the courtroom for professional athletes. Sponsored By: Litigation Section and the boardroom? 8 David vs. Goliath: How Small Firms Can 9:00-9:25 a.m. Break - Hotel Lobby Compete With Large Firms in Providing Sponsored By: Ray, Quinney & Nebeker Quality Legal Services at Competitive Costs Snow & Jensen -SabraFG Moderator - Rex C. Bush, Attorney at Law 9:25 a.m. Breakout Sessions: (1 each) This session wil cover topics including small 1 Tripping Over Good Intentions: Common Pitfalls in Employment Law - Hilton Inn firms doing complex litigation, using the Kathryn O. Balmforth, Wood, Quinn & Crapo Internet and other current technologies, the How lawyers can avoid common employment ethics of practice development, qualifing clients and cases, and finding your niche. law traps. 9 Holding On To the Family Farm in the 90's 2 Why Don't They Let Your Evidence In? Common Problems With Admissibilty - - Hilton Inn G. Fred Metos, McCaughey & Metos Sabra ABC Hon. Dee V. Benson, U.S. District Court, This session wil be a basic primer for all District of Utah lawyers and relates to the history and recent Hon. Ronald E. Nehring, Third District Court developments in forfeiture, double jeopardy and Hon. Anne M. Stirba, Third District Court excessive fines, including new constitutional An indepth substantive review of a few common limitations on forfeiture. Basic Bankruptcy - Hilton Inn admissibility issues. 10 3 Write Well in Less Time - Sabra FG 12:00 noon Golf Clinic - Green Spring Golf Course Dr. Joe Moxley, Department of English, 12:25 p.m. University of South Florida Meetings Adjourn for the Day it This former ABA presenter will show how you 1:15 p.m. Golf Tournament - Green Spring Golf Course .~ can produce effective documents in less time. Writing myths, effective writing habits and 2:00p.m. Tennis Tournament - Green Valley Tennis strategies will be critiqued. Courts 9:30- 12:30 p.m. Kid's Fiesta Fun Activity - meet at Fiesta 2:00 p.m. Trapshoot Tournament - Green Valley Skeet Fun - Family Fun Center & Trap Range
10:15- 10:30 a.m. Break - Hotel Lobby 7:00 p.m. Reception - Holiday Inn Lobby Sponsored By: Real Property Section Sponsored By: The Michie Company Corporate Counsel Section 7:30 p.m. Dinner - Holiday Inn Sabra Rooms 10:30 a.m. Breakout Sessions: (1 each) Speaker: The First Thing We Do, Let's Kil 4 Black Eyes and Broken Bones: What To All The Cartoonists - Pat Bagley PROGRAM GONT. ( ) Indicates Number of CLE Hours Available
Sponsored By: VanCott, Bagley, Cornwall & McCarthy Administrator, Washington County Ronald Thompson, Distrct Manager, Washington 9:30 p.m. The Jammin' Jurist's Mid-Year Music County Water Conservancy District Festival - Holiday Inn Sabra Rooms This session wil explore the tensions between SATURDAY, MARCH 9,1996 conservation and development under the federal 7:00 a.m. Fun Run - Snow Canyon Endangered Species Act (ESA) by examining the creation of a Habitat Conservation Plan 7:30 a.m. Registration/Continental Breakfast - (HCP) for the desert tortoise. Participants in Hotel Lobby the process will give their thoughts in a case- ~ Sponsored By: Parsons Behle & Latimer history type discussion.
7:50 a.m. Court Technology Committee Report - 10:30-10:45 a.m. Break - Hotel Lobby ~, Holiday Inn Sabra Rooms Sponsored By: Christensen & Jensen Hon. Anne M. Stirba, Chair, Cour Technology Committee 10:45 a.m. Breakout Sessions: (1 each) 15 How to Find the Information You Really 8:00 a.m. ETHICS General Session - Holiday Inn Need: Effective Legal Research - Hilton Inn Sabra Rooms Suzanne Miner, Computer Services Libraran, Views from the Bench: Making the Most of U of U College of Law Your Court Appearances (1.5) Rita Reusch, Director, U of U College of Law Hon. Guy R. Burningham, 4th District Court Library Hon. J. Philip Eves, 5th District Court Marsha Thomas, Reference Outreach Hon. Leslie A. Lewis, 3rd District Court Librarian, U of U College of Law Hon. Gordon J. Low, 1st District Court Basics of legal research and accessing addi- Hon. Rodney S. Page, 2nd District Court tiona i resources beyond your offce. Hon. Sandra N. Peuler, 3rd District Court 16 ETHICS: Client Trust Accounting: How to Moderator - Hon. Michael D. Lyon, 2nd Account for Client Funds and Stay Out of District Court Trouble - Sabra ABC District judges wil offer trial practice sugges- Stephen R. Cochell, Offce of Attorney Disciplie tions in such areas as ethics, professionalism, This session will cover the basic principles of motion practice, briefing, oral arguments and client trusts accounting for solo and small firm attorney's fees; they wil also identif behaviors practitioners, the areas offrequent client and practices of successful trial attorneys. complaints and potential disciplinary action by the Bar. 9:00 a.m. Tennis Clinic - Vic Braden Tennis College 17 Should We Ever Trust A Judge? Minimum 9:15-9:40 a.m. Break - Hotel Lobby Mandatory Sentencing - Sabra FG Sponsored By: Fabian & Clendenin Paul G. Cassell, University of Utah Rollns Hudig Hall of Utah, Inc. Ronald J. Yengich, Yengich, Rich & Xaiz Moderator - John T. Nielsen, Chair, Utali State 9:40 a.m. Breakout Sessions: (1 each) Sentencing Commssion 11 Legislative Update - Sabra ABC This debate wil discuss minimum mandatory Robin L. Riggs, Counsel to Governor Leavitt sentencing and who should determine the A review of the 1996 session of the Utah length of sentencing: Judges or Legislators. Legislature. 18 Community Property Issues in a Common- 12 Introduction to Patent, Trademark and Law State - Hilton Inn Copyright Law - Hilton Inn Lyle R. Drake, Snow Nuffer, Engstrom, Charles L. Roberts, Madson & Metcalf Drake, Wade & Smar Todd E. Zenger, Workman, Nydegger & Seeley Learn how to deal with clients' community This session wil cover fundamental principles property when those clients have moved between necessary for a general practitioner regarding community and common law property states. intellectual property matters. Patent and Trade- mark law changes resulting from GAIT imple- 11:35-11:50 a.m. Break mentation legislation wil also be reviewed, as Sponsored By: Salt Lake County Bar well as current developments in copyright law. 11:50 - 2:00 p.m. Salt Lake County Bar Film Presentation and ~ 13 The Perils of Appeals: What the Trial Lawyer Needs to Know - Sabra FG Discussion: Compulsion - Sabra ABC (2.5) (2.5 hours CLE credit available through the i David L. Arrington, VanCott, Bagley, Cornwall & McCarthy Salt Lake County Bar) J. Frederic Voros, Jr., Attorney General's Office Hon. Timothy R. Hanson, Third District Court A concise look at the most common procedural Hon. Leslie A. Lewis, Third District Court pitfalls, including the preservation requirement Hon. Ronald E. Nehring, Third District Court and its exceptions, cross-appeals, marshalling, Ronald 1. Yengich, Yengich, Rich & Xiaz standards of review, waiver, and oral argument This 1959film based on the Loeb and Leopold requests. trial will be followed by an intriguing panel discussion. 14 Why Did the Tortoise Cross the Road? A Case History of Habitat Conservation - Hilton Inn 2:00 p.m. Meetings Adjourn Bil Mader, Habitat Conservation Plan 2:30 p.m. Mountain Biking Tour --
PROBATIOÑ Pursuant to the ~--Order of Discipline entered On November 27, 1995, the Third Judicial in the above matter by Judge Wiliam B. District Court entered an Order of Discipline Bohling, Mr. Barber was suspended from DISBARMENT Reprimanding John M. Bybee and placing the practice of law for a period of 2 1/2 On January 4, 1996, the United States him on unsupervised probation for one year years beginning on July 6, 1993, for violating District Court for the District of Utah, to commence on or about December 31, Rule 8.4 of the Code of Professional Conduct. Central Division disbarred A. Paul 1995, which is the day following termination He is eligible for reinstatement upon order Schwenke from the practice before that of his probation in a prior disciplinary mat- of the district court on completion of the court based upon the court record of the ter. The Order was entered pursuant to a following conditions: (1) the payment of disbarment proceedings In re Schwenke, Discipline by Consent for violating Rules restitution to all complainants; and (2) the 865 P.2d 1350 (Utah 1993), cert. denied, 1.3, 1.4(a), and 1.4(b) of, the Rules of completion of all the terms and conditions 115 S.Ct. 93 (1994). Professional Conduct of the Utah State Bar. imposed by Rule 25 of the Rules of Lawyer In 1985, Schwenke rbpresented Caren On or about November 1992, a client Discipline, including attending Ethics Serr in a personal injury action. In 1987, retained Mr. Bybee to collect back due child School, successfully passing the Multistate Serr and her husband Ron Serr filed a com- support. Respondent failed to serve the ex- Professional Responsibility Examination plaint with the Offce of Bar Counsel ("the husband with appropriate documents until and not violating the order of suspension. Bar") alleging that Schwenke had violated approximately June, 1993 and failed to Also pursuant to the Order of Discipline, the Rules of Professional Conduct by mis- attend hearings that had been scheduled for after reinstatement, Mr. Barber shall be appropriating approximately $100,000 in March and May, 1993. On July 13, 1993, the placed on probation for an additional 2 1/2 the course of setting Serr's personal injury court awarded the client a judgment, how- years during which time he wil be under case. The matter was then held in abeyance ever, Respondent did not prepare an appro- the direct supervision of attorneys approved pending the outcome of civil litigation priate order to submit to the court for by the Bar who wil have access to all of between the parties. signature until December, 1993. During the Mr. Barber's client files and wil make On September 19, 1989, the parties period of time Respondent represented this monthly reports to the Office of Attorney entered into a stipulation in the third district client, he failed and refused to take or return Discipline regarding his case load and each court in which Schwenke agreed to a her telephone calls, failed to advise her that of his clients. $100,000 judgment against him based on certain hearings on her case had been post- Rule 25 of the Rules of Lawyer fraud, not dischargeable in bankruptcy. The poned, that he would not attend those hear- Discipline requires that notice of the hearing panel found that pursuant to the ings, and he failed and refused otherwise to Request for Reinstatement be sent to all $ 100,000 stipulated judgment entered by keep her advised of the status of her case. complainants and published in the Utah third district court, Schwenke had paid Bar Journal, and that any individual who $250 and conveyed a Duchesne County ADMONITION opposes or concurs with Mr. Barber's property valued at $2500 to Serr, leaving a On December 18, 1995, the Chair of the Petition for Reinstatement may file notice balance of $97,250. The panel recom- Ethics and Discipline Committee Admon- of their opposition or concurrence with the mended that Schwenke be disbarred and ished an attorney for violating Rule 1.4(a) Honorable Wiliam B. Bohling of the Third that he make restitution to Serr in the and 1.4(b), Communication, of the Rules of District Court, 240 East 400 South, Salt amount of $97,250. On December 1, 1993, Professional Conduct based upon the recom- Lake City, Utah 84101, within 30 days of the Utah Supreme Court affirmed the order mendation of a Screening Panel of the Ethics publication. of disbarment and payment of restitution. and Discipline Committee. Respondent was retained on or about March 30, 1994 to rep- INTERIM SUSPENSION resent the clients in a landlord tenant matter. ATTENTION: On December 29, 1995, the Fourth The case was tried on December 2, 1994. Judicial District Court placed Stott P. Thereafter Respondent failed to properly All State, County and Harston on interim suspension from the advise his clients of the Final Judgment in Municipal Courts and practice of law. This action was taken as a the matter. consequence of the Bar having received Civil Practitioners approximately 16 complaints from NOTICE OF PETITION Respondent's clients. The substance of the FOR REINSTATEMENT Pursuant to Utah Code Ann. § 15-1-4, complaints are that Mr. Harston accepted IN THE MATTER OF DISCIPLINE the post judgment interest rate for judg- the complainants as clients, accepted a fee, OF JAMES N. BARBER ments entered between January 1, 1996 and and then failed to provide any meaningful CIVIL NO. 930903956 December 31, 1996 is 7.35%. This rate legal services, return phone calls, appear at THIRD DISTRICT COURT does not apply to judgments based on law- hearings, or advise the clients as to the sta- On December 8, 1995, James N. Barber ful contracts specifying an interest rate tus of their cases. He wil remain on interim filed a Petition for Reinstatement to the prac- agreed upon by the parties or to judgments suspension until further order of the court. tice of law in Utah pursuant to the terms of for which a statute specifies another rate of Rule 25 of the Rules of Lawyer Discipline. interest.
30 Vol. 9 No.2 Scott M. Matheson Award The Bar Gratefully Acknowledges the Services of In 1991, the Law-Related Education and such programs having increased commu- Law DayCommttee of the Utah State Bar nication and understanding between stu- PERRIN R. LOVE, ESQ. presented the first annual Scott M. dents, educators, and those involved and Matheson Award. Last year the fifth annual professionally in the legal system. award recipients were Gordon K. Jensen APPLICATION PROCESS: Application E. BARNEY GESAS, ESQ. and the Utah Attorney General's Office. forms may be obtained from and submitted of the firm of Currently, the committee is accepting to the: applications for the 1996 Scott M. Scott M. Matheson Award CAMPBELL, MAACK & SESSIONS 1 Matheson Award. Law-Related Education and for their assistance as PURPOSE: To recognize a lawyer and a Law Day Committee law firm who have made an outstanding Utah Law and Justice Center special prosecutors contribution to law-related education for Box S-LO, 645 South 200 East in the youth in the State of Utah. Salt Lake City, Utah 84111 Attorney Discipline matter of CRITERIA: Applications wil be Phone: 322-1802 In re Jean R. Babilis accepted on behalf of individuals or law Included in the application should be a firms who have: cover letter, a one page resume, and the Both Perrin and Barney 1. Made significant contributions to law- application form. The form describes the fol- related education for youth in the State lowing criteria to be used by the selection contributed pro bono services of Utah, such contributions having been commttee in evaluating the applicant: on behalf of the Bar recognized at local and/or state levels. · materials which demonstrate the applicant's in the trial of this complex case 2. Voluntarily given their time and contributions in the law-related youth resources in support of law-related edu- education field; cation, such as serving on planning com- · copies of news items, resolutions, or other The Bar Gratefully Acknowledges mittees, reviewing or participating in the documents which evidence the applicant's development of materials and programs, contribution to law-related education for the pro bono services and paricipating in law-related educa- youth; rendered by tion programs such as the Mentor/ . a maximum of two letters of BRUGE L. JORGENSEN, ESQ. Mid-Mentor Program, Mock Trial recommendation. Competition, Conflct Management Pro- All materials submitted should be in a in acting as an expert witness gram, Volunteer Outreach, Judge for a form which wil allow for their easy repro- on probate matters in the Day, or other cour or classroom programs. duction for dissemination to members of the attorney discipline case 3. Participated in activities which encour- selection committee. Applications must be age effective law-related education pro- postmarked no later than March 15, 1996. In re Jean R. Babilis grams in Utah schools and communities, before The Honorable Gordon J. Low
Popular Going Solo Seminar Mr. Jorgensen's invaluable assistance Expanded into Seminar Series on complex probate matters was a credit to the firm of Due to the overwhelming popularty of ers may even find some useful information the Going Solo Seminar held recently, the applicable to their practices. OLSON & HOGGAN program has been expanded and wil be The Going Solo Seminar series wil be and to the Bar offered as a series through the University of held Wednesday evenings from 5:30 to 7:00 Utah College of Law. p.m. in room 105 of the Law Building on the The program, presented by the University of Utah campus. The dates for the The Bar Gratefully Acknowledges Solo/Small Firm Commttee of the Utah programs are: Feb. 7, Feb. 14, Feb. 21, Feb. the pro bono services of State Bar, covers a varety of law manage- 28, Mar. 6 and Mar. 13. To reserve your
ment topics, which include: Technology in place at any session, contact Leslie Morley at FRAN GIS J. GARNEY, ESQ. Your Practice; Personnel & Facilities (801) 581-7767. The cost is $15.00 per Issues; Choice of Operating Entity; How to evening, payable at the door. This program is of the firm of Make It; Ethics of Practice Development; approved for 9 hours of CLE credit. SUITTER, AXLAND & HANSON and Financial Management. This series is directed at those about to for his assistance as enter into a solo or small firm practice or special prosecutor those attorneys in the initial phases of star- ing a practice. More experienced practition- in a complex securities matter
February 1996 31 To the Membersof the Utah State Committee Seeks Bar Association, Their Employees Comments on and Associates and Court Personnel Recorded Telephone The Bar Association's Sixth Annual Bar Association and the Securities Sub- Conversations Food and Clothing Drive was very success- section Members of the Bar Association, ful this year, garnering over five truck loads whose efforts were especially helpfuL. Ethics Advisory Opinion No. 90 permits of new, nearly new and used clothing and Some of the donated funds were paid to attorneys to tape-record conversations to new and used toys and food of all types; the Jennie Dudley Eagle Ranch Ministry; which they are a party without disclosing $1,855 was also donated for payment to Ms. Dudley has been feeding the homeless the fact of the recording. The Ethics various charities being supported. every Sunday under the Fourth South Advisory Opinion Committee is currently The response was overwhelming, as Viaduct for a number of years, and several considering issuing an opinion that would Toby Brown (Co-Chairman), his son Sean members of the Bar were kind enough to provide further guidance to attorneys about and I saw more contrbutors come to the bring food donations and serve as volunteers the ethical aspects involved in undisclosed Law and Justice Center than ever before. on Thanksgiving and Christmas. recording. The Committee solicits com- A special thanks goes out to the volun- Thank you very much for your support. ments or suggestions from members of the teers who contacted us and headed the drive Leonard Burningham Bar regarding the ethical issues raised by at their firms, and to the Salt Lake County undisclosed tape recording of conversa- tions. Please submit written comments by February 29, 1996, to: Ethics Opinions Available Gary G. Sackett, Chair The Ethics Advisory Opinion Commttee of the Utah State Bar has compiled a com- Utah State Bar pendium of Utah ethics opinions that are now available to members of the Bar for the cost Ethics Advisory Opinion Committee of $5.00. Thirty six opinions were approved by the Board of Bar Commissioners between P.O. Box 45433 January 1, 1988 and September 22,1995. For an additional $2.00 ($7.00 total) members wil Salt Lake City, Utah 84145 be placed on a subscription list to receive new opinions~s they become available during 1996. t, or e-mail to Gary S(gQC2PO.QSTR.ORG ~ ~; ETHICS OPINIONS ORDER FORM f ; L~ f Quantity Amount Remitted
l Utah State Bar Ethics Opinions , ($5.00 each set) l
Ethics Opinions/Subscription list ($7.00)
Please make all checks payable to the Utah State Bar Mail to: Utah State Bar Ethics Opinions, ATTN: Maud Thurman 645 South 200 East #3 10, Salt Lake City, Utah 84111.
Name
Address Af.lI1ih'kfl hoinelessbifirl'. a hearlallackl'inil1 wliooct'd\Cll! a child who iil"td~ day tnirr¡,r!lClfirsiaiti City State Zip f)iSa.\lcrha.\liiaiiifan'_, Slrlle back. Giiie 10 your Red Cross tolÚY. Please allow 2-3 weeks for delivery. +Airian Re Cros
32 Vol. 9 No.2 Attorneys Needed to Assist the Elderly Needs of the Elderly Committee Senior Center Legal Clinics
Attorneys are needed to contrbute two they meet and are being asked to provide only months. Through these clinics, the hours during the next 12 months to assist two hours oftime durng the next 12 months. Commttee has obtained the experience to elderly persons in a legal clinic setting. The The Needs of the Elderly commttee insti- support paricipating attorneys in helping clinics provide elderly persons with the tuted the Senior Center Legal Clinics pro- the elderly. Attorneys participating in these opportunity to ask questions about their gram to address the elderly's acute need for clinics have not needed specialized knowl- legal and quasi-legal problems in the famil- attorney help in locating available resources edge in elder law to provide real assistance. iar and easily accessible surroundings of a for resolving their legal or quasi-legal prob- To make these clinics a permanent ser- Senior Center. Attorneys direct the person lems. Without this assistance, the elderly vice of the Bar, paricipation from individ- to appropriate legal or other services. often unnecessarly endure confusion and ual Bar members is essentiaL. Any attorneys The Needs of the Elderly Committee anxiety over problems which an attorney interested in paricipating in this rewarding, supports the participating attorneys, by could quickly address by simply directing the yet trly worthwhile, program are encour- among other things, providing information elderly person to the proper governmental aged to contact: John J. Borsos or Camille on the varous legal and other services agency or pro bono/low cost provider of Elkngton, 370 East South Temple, Suite available to the elderly. Since the attorney legal services. Attorneys paricipating in the 500, Salt Lake City, Utah 84111, (801) serves primarly a referral function, the clinics are able to provide substantial com- 533-8883; or Joseph T. Dunbeck, Jr., attorney need not have a background in fort to the elderly, with only a two hour time Parsons, Davies, Kinghorn & Peters, 310 elder law. Paricipating attorneys are not commtment. South Main Street, Suite 1100, Salt Lake expected to provide continuing legal repre- The Committee has conducted a number City, Utah 84101, (801) 363-4300. sentation to the elderly persons with whom of these legal clinics during the last several
Management's Comments Regarding Financial Statements Year Ended June 30, 1995
TO ALL BAR MEMBERS: the Bar's unrestricted cash balance is $418,230 in 1996 Licensing Fees and The following pages summarize the $395,709 at June 30, 1995 and projected to Section Membership Fees. These fees have financial results for the Utah State Bar (the be $517,675 at June 30,1996. been classified as Deferred Income since Bar), the Client Security Fund, and the Bar they pertain to the 1996 fiscal year. Sections for the year ended June 30, 1995. NET RECEIVABLE FROM THE LAW The Bar's financial statements were audited AND JUSTICE CENTER REVENUE OVER EXPENSES by the national accounting firm, Deloitte The receivable balance at June 30, 1995 was The Revenue Over Expenses in the and Touche, and a complete copy of the $17,627 which represents current charges. actual amount of $349,636 for 1995 and the audit report is available upon written budgeted amount of $137,179 for 1996 request. Please direct these to the attention MORTGAGE PAYABLE TO THE LAW reflect the Board of Commissioners' and of Arold BirelL. The 1994 results and AND JUSTICE CENTER current management's commtment to exer- 1996 budget figures are provided for infor- The Bar purchased the Utah Law and cising sound fiscal policies in the manage- mational and comparson purposes only. Justice Center 50% interest in the land and ment of the Bar's funds. Current plans are The statements provided include a building and improvements, and the Center's to continue the present policies to provide Balance Sheet and Statement of Revenue furniture and equipment in October, 1994. the funds necessar for debt retirement, to and Expenses. To help you better under- The Bar applied the June 30, 1994 receivable make necessar capital expenditures, pro- stand the information being reported, balance due from the Center as the down vide replacement and contingency reserves, included below are notes of explanation on payment toward the purchase price. The bal- and to maintain a reasonable fund balance. certain items within the reports. Should you ance wil be carried in a note payable to the have other questions, please feel free to Center with an interest rate of 10%. Principal SUMMARY contact Arold Birrell or John Baldwin. and interest payments on the note payable In summar, the Bar continues to be wil equal amounts necessary to subsidize the financially sound. The computer system CASH AND OTHER CURRENT Center's future operating losses. During the that came on line during the 1992 fiscal ASSETS year ended June 30, 1995 the Bar paid year enables the Bar's staff to provide The bottom portion of the Statement of $86,420 in principal on the Law and Justice information to callers immediately in most Revenues and Expenses provides an expla- Center mortgage. cases. Since Januar, 1993 we have been nation of how the Bar's cash is being used. tracking CLE hours which are printed on After allowing for payment of Current DEFERRED INCOME the Bar Journal labels. Liabilities and providing certain reserves, As of June 30, 1995, the Bar had collected
Februry 1996 33 UTAH STATE BAR BALANCE SHEET STA TEMENT OF REVENUES AND EXPENSES As of June 30, i 995 (Wiih i 99 iornls for comparison only) For lhe year ended June 30, 1995 (199 ac'oaf and 199 budgeted for comparison only)
1996 ASSETS 1994 1995 1994 1995 Budget CUR ASETS: REVENUE:
Cash and short lerm investments $ 1,080,296 $ 1,398,145 Bar examination rees $ 185,817 $ 172,853 $ 150,625
Recivables 43,839 32,134 License fees 1,526,145 1,583,710 1,637,959
Prepaid expenses 14,992 8,231 Meetings 209,432 188,263 196,025 Total current assets 1,139,127 1,438,510 Services and programs 331,286 331,182 336,329 Section rees 175,318 186,368 12,106
NET RECEIVABLE FROM LAW AND 429,586 17,627 Interest, income 38,310 74,343 71,704 JUSTICE CENTER Propert management ° 112,487 160,800 Other 115,512 120,923 89,515
PROPERlY: Total revenue $ 2,581,880 $ 2,170,129 $ 2,655,063
Land 316,571 633,142 Building and improvements 1,324,574 2,058,178 EXENSES:
Offce furniiure and fixtures 354,994 456,257 Bar examination $ 111,241 $ t14,947 113,308
Computer and computer software 179,731 207,370 Licensing 35,456 33,426 22,030 Total property 2,175,870 3,354,947 Meetings 173,645 183,317 195,440
uss accumulated depreciation (793,729) (939, I 19) Services and programs 441,325 458,173 586,709 Net property 1,382,141 2,415,828 Sections 145,054 203,802 12,150
TOTAL ASETS $ 2,950,854 $ 3,871,965 Offce of Bar Counsel 533,792 561,610 583,413 Propert Management ° 67,563 300,906
General and administrative 602,909 687,322 627,485 LlABlLmE AN FU BALANCES Other 71,723 109,733 76,443 CURNT LlAlLmE: Totai Expenses 2,115,145 2,420,493 2,517,884
Accounts payable and accrued liabilities 226,620 $ 297,753
Deferred income 549,843 418,230 REVEUE OVER EXPENSES $ 466,735 $ 349,636 $ 137,179 Long-term debt--current poriion 75,00 Add N on-Cash Expenses -. Depreciation 121,694 145,390 138,210 Total current liabilities $176,463 $790,983 Cash from operations 588,429 495,026 275,389 ACTUAL AND PLANED WNG- TERM DEBT -. 556,955 USES OF CASH Total liabilities 776,463 1,347,938 Morigage Payments(UC - 1995) $ (574,543) $ (86,420) $ (83,423) FUD BALCES: Capital Expenditures (51,815) (35,702) (70,00) Unrestricted 1,922,594 2,303,667 Change in AlP (39,806) 71,133 Restricted : Change in AIR (52,340) (1,336) Client Security 78,727 52,657 Change in PPD Expenses (7,581) 6,761 Other 173,070 167,703 Change in Deferred Income 102,701 (131,613) Total fund balances 2,174,391 2,524,027 INC. (DEC.) IN CASH (34,955) 317,849 121,966 TOTAL LIAILITIE AN FU $ 2,950,854 $ 3,871,965 BEGINNING CASH 1,115,240 1,080,295 1,398,144 BALANCES ENDING CASH - TOTAL 1,080,295 1,398,144 1,520,110 DEDUCT:
Deferred Income (549,843) (418,230) (418,230) Restricted Fund Cash (249,930) (284,205) (284,205) Reserves (280,522) (300,00) (300,00)
UNRESTRICTED CASH AT $ 0 $ 395,709 $ 5t7,675 JUN 30
34 Vol. 9 No. 2 Î UTAH STATE BAR Financial Results and Projections
EXPENSES BY CATEGORY REVENUES BY SOURCE For the Year Ended June 30, 1994 For the Year Ended June 30, 1994
other (4.47%) Interest Income (1.48%) Sections (6.79%) Administrative (31.90%) Bar Exam (7.20%)
Meetings (8.11%) Meetings (8.21%) Licensing (59.11%)
EXPENSES BY CATEGORY REVENUES BY SOURCE FOR THE YEAR ENDED JUNE 30, 1995 FOR THE YEAR ENDED JUNE 30, 1995
other (4.37%) we Rent (4.06%) Interest Income (2.68%) Sections (6.73%)
Administrative (2B.40%) Bar Exam (6.24%) Meetingo (7.57'h)
Meetings (6.80%) Licensing (57.17%)
EXPENSES BY CATEGORY REVENUES BY SOURCE BUDGETED - 1996 BUDGETED - 1996
Other (3.37%) we Rent (6.06%) Interest Income (2.70%) Soctiono (0.46%) Servt Programs (26.34%) Bar Exam (5.67%)
Mootingo (7.3B%) Administrative (24.B2'h)
Meotings (7.76%) Serv t Programo (12.B7%) Llcenoing (61.9%)
February 1996 35 ~ 1 ,.
Young Lawyer Profiles - David & CheloID Leavitt
By Michael Mower
adjustment to life in Filmore, population able. That contact became the base for their In 1855,Young, Territorial and other Governor,territorial Brighamleaders 1,980.. She liked the friendly, down-home practice and the young family moved to decided the new capitol for the Utah attitude of local residents, but she was sur- Milard County. Territory should be located somewhere in prised to learn that a quick trip to the doctor, Chelom said it didn't take them long to the middle of the vast Great Basin. They shopping, or to a Continuing Legal get their practice going. There were only chose Filmore, 200 miles South of Salt Education class often meant a two hour trip two attorneys in Filmore when David and Lake City. After one meeting in this to Provo and back. Chelom arrived: the Justice of the Peace Millard County locale, the legislature voted David and Chelom met in their first class and the Deputy Milard County Attorney. , to move the capitol back to Salt Lake. on their first day of law schooL. David remem- They found a real need for legal help in Filmore, they decided, was too far away, bers hearing someone say "Chelom." Having their community. "It seemed as though had too few residents and was too rural. lived in Israel, David wanted to know who every time I went to the grocery store, I was In 1991 David and Chelom Leavitt, was using what he thought was "shalom," the asked for legal advice," Chelom recalls. i I recent Brigham Young University Law Hebrew greeting for peace. A classmate, The Leavitts divided their practice areas. II School graduates, moved to Fillmore for Linda Magleby, introduced David to Chelom. Chelom handled primarily domestic rela- I many of the same reasons early Utah law- They soon began dating, and married after tions cases. Along with handling Filmore I the end of their first year in law schooL. makers left. They felt a small, rural town City's civil work, David obtained the local i would be a great place to start a law practice During their second year of law school, public defender's contract. He also handled and raise a family. So they set up the firm the two paired up as moot court partners. The probate and criminal defense cases. ! I of Leavitt & Eastwood Leavitt in the base- Leavitt's first son, Adam Eastwood Leavitt, The law partners soon learned that peo- i ment of their home. Soon after, they moved was born during the couple's final year of ple in their small town had definite ideas their practice to an offce on Main Street. law schooL. about how a law firm should run. For exam- David Leavitt was no stranger to life in After graduation, both Leavitts knew they ple, David said that clients expected the law southern Utah. Born and raised in Cedar wanted to be in court as soon as possible. firm's fees to be "priced like light bulbs at City, David spent his youth involved in Neither liked the idea of writing briefs for six the hardware store. The wanted to know in sports, school activities, and scouting and years before arguing in court. That, coupled advance what our service would cost spent many summers and holidays working with their desire for life in a smaller town, them." The firm adapted to meet this expec- on the family ranch in Wayne County. led them to look for work possibilities off the tation by charging set fees for legal services Chelom Eastwood Leavitt, raised in Wasatch Front. They learned that a contract like drafting wils and handling divorces Yakima, Washington, required more of an for Filmore City's civil work might be avail- instead of basing fees on hourly rates. 36 Vol. 9 NO.2 - David and Chelom also learned the small small town law practice, the trust of the peo- County Attorney in over fifty years. A few town dress code allowed them to wear ple of the area. The Leavitts planned to live critics of Leavitt's appointment note that he casual clothes to work. in Fillmore forever. is Governor Leavitt's younger brother and They also found a great need for pro Their plans, however, soon changed. A asked if this played a role in David's bono work in their area. Chelom often little over a year ago, David received a phone appointment. County personnel, however, helped women who couldn't afford call from a Juab County Commssioner ask- noted that David's appointment was by divorces obtain them. David, who learned ing him to apply for the position of Juab unanimous vote. Even the Democrat on the Spanish while serving a mission for the County Attorney. Juab's current attorney, county commission felt David was the best L.D.S. Church in New York City, assisted Donald J. Eyre, Jr., had just been appointed attorney for this position. many poor Spanish-speaking migrant as a judge of the Fourth District Court. The move to Nephi from Filmore workers who needed legal help, but made County personnel were familiar with David brought a number of changes to the Leavitt too much money to be represented by Utah and his work as he had handled many cases family. Chelom left the full-time practice of Legal Services. where the Juab public defender had a con- law and now provides mediation services When the Leavitts first moved to flct. David and Chelom originally decided and takes care of the Leavitt's three chil- Filmore, they planned to stay about five not to apply for the position. It would entail dren. David had to adjust to prosecuting years. However, soon they both became a pay-cut for their family and they enjoyed alleged criminals instead of defending deeply involved in the community. Chelom living in Filmore. However, after more con- them. He now spends 80% of his time on became the founding member of the sideration, David applied for the position and criminal cases. The majority of his cases Fillmore Community Theater. David was was chosen as Juab County Attorney. involve suspected drug traffickers appre- actively involved in civic and youth pro- Upon his appointment as Juab County hended by the Utah Highway Patrol as they grams. Their children, who now include Attorney in 1994, David gained some imme- cruise through Juab County on 1-15. David daughters Danielle and Hannah, were also diate distinction. At age thirty one he became faces his first election for Juab County happy in Filmore. In addition, the couple the youngest county attorney in Utah. He Attorney in November 1996. acquired an indispensable element of any was also the first Republican to serve as Juab
Pro Bono Guardian Ad Litem Program Expands CNA: In January 1994 the Young Lawyers ~ Section Needs of Children Committee and The choice ~_~ ii I) .è the Office of Guardian Ad Litem Director began a Pro Bono Guardian Ad Litem for dependable ~ __ Program in the Third Judicial District. The Commttee is now prepared to expand that Professional Liability Insurance program to the Second and Fourth Judicial Districts (Ogden, Farmington, and Providing dependable professional professional liability insurance for liability protection for lawyers requires lawyers through the Lawyer's Protection Provo areas). an insurer with a solid financial Plan"'. CNA is a major property/casualty The Committee is looking for interested foundation. Because, in addition to group that has earned high financial attorneys to go through the training to be individual policy features, you also are ratings from all four financial services*. certified as a pro bono Guardians Ad Litem paying for your insurer's ability to pay For additional information, contact and who are wiling to take one case to rep- your claims. Sedgwick James. resent the interests of children. This train- Continental Casualty Company, one of ing offers twelve hours of CLE credit for the CNA Insurance Companies, offers .. A.M. Besi, Slandard & Poor's. Moody's. Duff & Phelps those who complete the six sessions. The training wil be conducted at the Office of the Guardian Ad Litem, 230 South 500 \Q~~l)~ East, Suite 170, Salt Lake City, Utah. Sedgwick All those interested in takng the training Phone Sedgwick James of Idaho should make their reservations by February 20, 1996 by calling either Jenny at 378- C'NA 800-523-9345 (Idaho) 3829 or Sally at 278-3700. For All too Commitments You Make" 800-635-6821 (Utah) ~"M&lmmM The Lawyer's ProJection Planll is a registered trademark of Poe & Brown, bIC., Tampa, Florida, and is uiiderwrilen by Coniiiienlal Casualiy CompanJ~ one of the CNA Insurance Companies. CNA ;s a regi.stered seniice mark of the CNA Finaiicial Corporalion, CNA Plaza, Chicago. IL 60685.
F ebruwy 1996 37 A Pop-Quiz on Ethics
By Judge Fred D. Howard
JUDGE FRED D. HOWARD graduated the day to day trials and the practice of law Sometrial years lawyer, ago, had my a father,client come a skilled to his from Brigham Young University in 1975, we are involved in. However, the Simpson office for help over a heated dispute with a with a B.S. degree in Accounting and a minor case is a call to each of us to pay particular neighbor. After some discussion the client in Italian. He received his Juris Doctor attention to our professional conduct and to declared, "So, I have come to hire you to degree from the J. Reuben Clark, Jr. Law communicate to the public by our actions School at Brigham Young University in sue the man, and if you don't win, then I am and words that the judicial system is gov- 1979. Prior to his recent appointment to the going to go to the church to have him bench in July, 1995, he practiced as a county erned by adherence to rules of ethics, fair dismembered !" prosecutor of Carbon County, followed by play, access, and economy. The best Such typifies the pressure on lawyers civil practice in Price, Utah, and then as an approach for this is a self-policing one. On with their clients and their causes. Clients associate and later partner of the law firm of an individual level we should each examine have causes which they are determined to Howard, Lewis and Petersen of Provo, Utah. ourselves to see if we are keeping up our win, and which emotions strain the adver- He is a Master of the Bench for the A. standards of ethics or if we are fallng prey sary system. In our haste and desire to win, Sherman Christensen American Inn of Court to the pressures of the system. Here are a however, we cannot win "at all costs," but I and is a District Judge in the Municipal few questions that we might ask ourselves. only under the right costs. Winning should Division of the Fourth District. Each question may not be a professional never eclipse our personal integrity, hon- breach or ethical violation per se, but is esty and ethical standards. During the past designed to stimulate thought and mental year we watched in horror many distortions - Jurors stupidly fall prey to such tactics; discussion on the subject. Consider the fol- of the judicial system with the O.J. - Trials allow virtually any and all ques- lowing questions of some common circum- Simpson triaL. The poor public perception tions thought of to be asked, and asked three stances, noting that there are innumerable of lawyers and judges was further accentu- different ways; others that might be asked. ated by instances of misconduct during the - There are no "real" sanctions for profes- case which, among other things, left many sional misconduct; or violating pre-trial Attorneys with the impression that: rules, or discovery disclosure requirements; 1. Under pressure to meet the overhead, - Justice was not served; - Jury trials can take forever; have I ever accepted a retainer to a case for - Lawyers wil stoop to anything for an - It is too expensive to go to court; or, if which I was unqualified? advantage, either in court or in front of the you can pay enough money, you can win; 2. Have I ever charged an unreasonable media, including personal attacks of oppos- - An overall loss of confidence in the fee in a case? ing counselor the judge; judicial system. 3. In preparing pleadings have I ever - Courtroom etiquette is nonexistent; Obviously, the case was controversial and used demeaning or offensive language to - Underhanded discovery and trial tac- more could be said about it. Most of us describe a cause of action or defense? tics, while despicable, work; would agree that it bears litte resemblance to 4. Have I ever used a technical rule of law
38 Vol. 9 No.2 I æi (such as Rule 11 motion, etc.) for purposes 2. Have I ever stricken a case from a trial without giving an attorney who failed to of harassment or retribution in a case? calendar setting under an excuse pretense appear an opportunity to explain his or her 5. Have I a habit of expressing profanity simply because I did not want to try the case? nonappearance? or sarcasm in addressing a judge or attorney? 3. Because of a long-standing association 16. When requested, and without pay, 6. Have I ever quoted a fee retainer for with a lawyer, have I felt more easily per- have I given legal advice to friends, neigh- a case based on my perception of a client's suaded to his or her position when I might bors, or former clients? ability to pay as opposed to the work required? not otherwise have been? 17. Have I ever thanked or given visible 7. Have I ever taen a client's case, the fee 4. Have I communicated sarcasm or criti- affirmation to a jury for their decision? of which was paid for by another, and, there- cism, or displayed abrasive, impatient, unkind, 18. Has a litigant's il manners or fore, followed the direction and instruction or an intemperate attitude to pro-se litigants? unkept appearance ever influenced my of the payor in pursuing the representation? 5. Have I ever held the view that a partic- decision regarding his or her case? 8. Have I engaged in the practice of ular female lawyer was unduly impassioned 19. Have I ever dozed or fallen asleep "stone-walling" regular discovery requests? simply because she was a woman? during a trial proceeding? 9. Have I ever written a "nasty" letter to 6. Have I ever felt predisposed towards a 20. Have I long forgotten the difficul- opposing counsel threatening him or his litigant based upon a comment by a staff ties of the practice of law and that I too was client with sanctions, complaint to the bar, member, clerk, or some other person? once a lawyer? or hearing before the court, and sending a 7. Have I ever engaged in an ex pare com- As judges and lawyers we are all human copy of the letter to my client with the pur- munication with a lawyer or litigant to a case? and admittedly we make errors and mis- pose of the letter being to placate a client or 8. Have I ever failed to recuse myself takes. We should, however, constantly communicate an aggressive representation? from a case involving a friend or associate? remind ourselves of our professional ethics 10. Have I ever objected during a 9. In deciding a hard custody case, has and how we might improve our work so lawyer's summation simply to interrupt my own personal or religious belief been a that we keep the highest ethical standards. his stride? factor in making the decision? There are many things that we can do more 11. Have I purposely failed to disclose of which wil further insure fair play and witnesses or documents in requested dis- fair trials, and improve our image to the covery for purposes of surprise? public. For example, if a party is unable to 12. Have I ever failed to return all or respond to requested discovery, his or her "As judges and lawyers we are part of an unearned client retainer? lawyer should promptly explain the prob- 13. Have I mischaracterized, denigrated all human and admittedly we lem to opposing counsel and commit to a or been critical of a previous lawyer's rep- make errors and mistakes. We date certain for the response to be provided. resentation of a client in order to acquire should, however, constantly Lawyers should refuse client requests to the representation? remind ourselves of our take inappropriate actions including a prac- 14. In seeking an order in an ex parte tice of sending threatening letters. We proceeding, have I exaggerated facts or professional ethics and how we should refuse ex parte communications, failed to disclose to the judge material facts might improve our work so that we indifference to parties, and arrogance. We adverse to my client? keep the highest ethical standards." should refrain from making unsupported 15. Have I ever sought an ex-pare com- commentaries on the performance of other munication with a judge for an advantage? lawyers. Lawyers should quote reasonable 16. Have I ever failed to communicate fees, promptly return unearned fees, and to a client limitations for representation there are a host of other things. Ultimately, 10. Have I ever sanctioned a lawyer such as calendar conflicts, license suspen- over the process of time, each of us develop before his or her client without first allowing sion, disability, etc.? a reputation for either honesty, ethics, cour- an explanation or when a private reprimand 17. Have I ever reneged on an agree- tesy, and professionalism, or the lack would do? ment regarding the payment or division of thereof. Others know instinctively if we are 11. Have I ever given preferential treat- attorney fees between lawyers on a case? honest and ethical, and if then an error is ment to a defendant in a criminal proceeding 18. Have I ever refused a requested committed, our colleagues wil rush to for- because the individual was either a neighbor, transfer or pickup of a client's file upon give our oversight in light of that standard, closely-associated to my family, or shared substitution of counsel? and so wil the public. religious beliefs? 19. Have I ever sought to purposely 12. Have I ever accepted an unsolicited mischaracterize the law in either argument REFERENCES OF RULES I "gift of appreciation" of substantial value? or written pleadings? Attorneys 13. Have I ever conducted a private 20. When my adversary has clearly made I. A lawyer shall provide competent investigation or inquiry on a case outside of an unintentional error of oversight, have I representation. (Rule 1.1 Rules of the trial proceeding? taken advantage of the opportnity to his ruin? Professional Conduct) Note comment of 14. Have I ever unfairly cut-off an attor- rule, that "a lawyer may accept representa- ney during either opening statement or clos- Judges tion where the requisite level of compe- ing summation? 1. Have I ever been intemperate at tence can be achieved by reasonable either a lawyer or litigant? 15. Have I ever dismissed a case for fail- preparation." Also, a lawyer may". . . asso- ure to prosecute without adequate notice or
February 1996 39 ciate or consult with. . . a lawyer of estab- lawyer's services with other lawyers ser- lawyer shall take steps to the extent reason- lished competence in the field of question." vices, unless the comparison can be factually ably practicable to protect a client's inter- 2. A lawyer shall not. . . charge or collect substantiated." (Rule 7.1 RPC) See also, ests, such as . . . surrendering papers and . . . a clearly excessive fee. (Rule 1.S(a) RPC) Preamble and duty of respect to other lawyers. property to which the client is entitled. . . . 3. A lawyer may withdraw. . . if a client 10. A lawyer shall not engage in conduct (Rule 1. i 4( d) RPC) insists upon pursuing an objective that the intended to disrupt a tribunaL. (Rule 3.S(d) RPC) 19. A lawyer shall not knowingly make lawyer considers repugnant or imprudent. 11. See 8 above, and Rules 3.2 and a false statement of material fact or law to a (Rule 1.4(b)(3) RPC) A lawyer shall not 3.4(d) RPC. tribunaL. A lawyer shall not fail to disclose bring or defend a proceeding, . . . unless 12. A lawyer shall not charge an exces- to the tribunal legal authority in the con- there is a basis for doing so that is not friv- sive fee. (Rule I.S(a) RPC) Upon termination trolling jurisdiction known to the lawyer to olous . . . . (Rule 3.1 RPC. See comment. of representation, a lawyer shall take steps to be directly adverse to the position of the The action is frivolous, however, if the . . . protect a client's interests, such as . . . client. . . . (Rule 3.3(a)(I) & (3) RPC) client desires to have the action taken pri- refunding any advance payment of fee that 20. See Preamble of Rules of marily for the purpose of harassing or mali- has not been earned. (Rule 1.14( d) RPC) Professional Conduct. ciously injuring a person. . . .) 13. See reference to 9 above. 4. See comment of Rule 3.1 RPC, 14. In an ex parte proceeding, a lawyer Judges wherein an action should not be taken for shall inform the tribunal of all material facts 1. A judge shall be patient, dignified, i "the purpose of harassing or maliciously known to the lawyer which wil enable the and courteous to litigants, jurors, witnesses, injuring a person." Also, see Preamble of tribunal to make an informed decision, whether lawyers, and others. . . . (Code of Judicial t Rules of Professional Conduct, "a lawyer or not the facts are adverse. (Rule 3.3(d) RPC) Conduct, Canon 3B(4)) See also, disciplinary ~! should use the law's procedures only for action against judge on ground of abusive i legitimate purposes and not to harass or or intemperate language or conduct towards I I intimidate others." attorneys or parties, 89 ALR 4th 278. S. See Preamble of Rules of "Factors to be considered as 2. A judge shall hear and decide matters Professional Conduct, "a lawyer should assigned to the judge. . . . (Canon 3B(l)) A I ! demonstrate respect for the legal system guides in determining the judge shall dispose of all judicial matters and for those who serve it, including reasonableness of a fee do not promptly, efficiently, and fairly. (Canon i i judges, other lawyers and public officials." include a client's ability to pay; but, 3B(8)) 6. Factors to be considered as guides in 3. A judge shall dispose of all judicial I the time and labor required, i determining the reasonableness of a fee do matters promptly, efficiently, and fairly i difculty of questions involved, skil not include a client's ability to pay; but, the (Canon 3B(8); without bias or prejudice. . . time and labor required, difficulty of ques- required, customary fee for similar and shall be alert to avoid behavior that tions involved, skill required, customary fee services, results obtained, time may be perceived as prejudicial (Canon for similar services, results obtained, time limitations, and experience, and the 3B(S)). Ajudge shall not allow. . . social or limitations, and experience, and the reputa- other relationships to influence a judge's tion and ability of lawyer. (Rule I.S RPC) reputation and ability of lawyer." judicial conduct or judgment. (Canon 2B) 7. A lawyer shall not represent a client 4. See reference to 1 above. if the representation of that client may be S. A judge shall not,. . . manifest bias or materially limited by the lawyer's responsi- prejudice, . . . based upon race, sex, reli- bilities to another client or to a third person is. A lawyer shall not seek to influence a gion, national origin, disability, age, sexual . . . . (Rule 1.7 (b)) See rules comment on judge. . . . (Rule 3.S(a) RPC) A lawyer shall orientation, . . . . (Cannon 3B(S)) See refer- loyalty to client. not in an adversary proceeding, communi- ence to 3 above, Cannon 3B(6) & (8). 8. A lawyer shall make reasonable cate, or cause another to communicate, as to 6. See reference 3 above. A judge efforts to expediate litigation consistent the merits of the cause with a judge . . . should require staff, court offcials and oth- with the interests of the client. See rule except in the course of official proceedings ers subject to judicial direction and control comment: "Delay should not be indulged in the cause. (Rule 3.S(c) (1-4)) to observe the standards of fidelity and dili- merely for the convenience of the advo- 16. A lawyer shall act with reasonable gence that apply to the judge and to refrain cates, or for the purpose of frustrating an diligence and promptness (Rule i.3 RPC), from manifesting bias or prejudice in the opposing party's attempt to obtain rightful avoid conflicts (Rule 1.7-9), and advise of performance of their offcial duties. (Canon redress or repose." (Rule 3.2 RPC) Also, a limitations, including impairments (Rule 3C(2) and 3B(4)) lawyer shall not. . . fail to make reasonably 1.4(a) RPC). 7. A judge shall neither initiate nor con- diligent effort to comply with a legally i 7. A division of fees shall be in propor- sider, and shall discourage, ex parte or proper discovery request by an opposing tion to the services performed by each lawyer other communications concerning a pending party. (Rule 3.4(d) RPC) or by written agreement. (Rule I.S(e) RPC) or impending proceeding. (Cannon 3B(7)) 9. A lawyer shall not make a false or See comment of rule regarding dispute over 8. A judge shall enter a disqualification misleading communication about the lawyer fees and mediation procedure established by in a proceeding in which. . . the judge has or the lawyer's services. A communication the Bar for resolution. a personal bias or prejudice . . . (Cannon is false or misleading if it compares the i 8. Upon termination of representation, a 3E); and also, a judge shall not allow fam-
40 Vol. 9 No.2 = ily, social, or other'relationships to influ- ence the judge's judicial conduct or judg- ment (Canon 2B). 9. A judge shall perform judicial duties without bias or prejudice. A judge shall not . . . manifest bias or prejudice . . . based upon race, sex, religion, national origin, disability, age, sexual orientation or socioe- conomic status. . . . (Cannon 3B(5)) ,~:/~~~~':?~""~:2~;;. r.r:i9 . ,., L EGA L COP Y 10. While a judge should maintain ~..:. \\r.~ ~\ order and decorum in proceedings before ~~.....~ ...... the judge (Canon 3B(3), and should take appropriate disciplinar measures against a .-....:...... ~?~.,,~;.~~... 0 F SA L T LA K E lawyer for unprofessional conduct (Canon 3D), he or she shall accord every person a THE LITIGATION DOCUMENT COPYING SPECIALISTS full right to be heard according to law (Canon 3B(7)). 1 1. See references to 8 & 9 above. 12. See Canon 1 & 2; reference to 3 above, and Canon 3E regarding disqualifi- cation for economic interests. A judge shall not accept . . . a gift, except. . . . (Canon 4D(5)) 13. A judge shall apply the law and maintain professional competence. (Canon 3B(2)) A judge may consult with court per- sonnel whose function is to aid the judge. . . provided the judge does not abrogate the responsibility to personally decide the case pending before the court. A judge may obtain the advice of a disinterested expert on the law applicable. . . if the judge gives notice . . . and affords reasonable opportu- CONFIDENTIAL FACILITY nity to respond. (Canon 3B(7)) 14. A judge shall be patient, dignified QUICK,QUALlTY, OVERNIGHT and courteous to litigants, jurors, witnesses, AND SAME-DAY SERVICE lawyers. . . . (Canon 3B(4)) A judge shall accord to every person . . . full right to be FULL COLOR COPIES heard according to law. (Canon 3B(7)) 15. See reference to 3, 10 & 14 above. 16. A judge shall not practice law. COPY SERVICES AVAILABLE However, a judge may act pro se, without compensation, to give legal advice to mem- 24 HOURS - 7 DAYS bers of the judge's family. (Canon 4G) 17. A judge shall not commend or criti- cize jurors for their verdict . . . , but may express appreciation to jurors for their ser- FREE PICK - UP & DELIVERY vice to the judicial system and the commu- nity. (Canon 3B(1O)) 18. See reference to 1 & 4 above. 328-8707 19. A judge shall hear and decide mat- ters. . . . (Canon 3B(l)) a judge shall dis- Cori Kirkpatrick J. Kelly Nielsen M. Lance Ashton pose of all judicial matters promptly, efficiently, and fairly. (Canon 3B(8)) 20. See reference to 1 above. A judge . . . should exhibit conduct that promotes public confidence in the integrity and impartiality of the judiciar. (Canon 2A)
February 1996 41 ~ LEGISLATIVE REPORT- Potential Issues for the 1996 Annual General Session of the Utah State Legislature
By Jane Peterson and Lisa Watts Baskin
ADMINISTRA TIVE RULES by jury in criminal cases, and repeals the antee with its full faith and credit the debt REVIEW COMMITTEE requirement of eight-person juries in general of all Utah school districts, permits the leg- . Annual Sunset Legislation - Each jurisdiction courts to accommodate court islature to provide for reimbursement by session the Administrative Rules Review consolidation changes; participating school districts, and removes Committee sponsors legislation to sunset · Labor Article Revision - This con- the limitations on public debt and lending state agency rules it determines inappropri- stitutional amendment amends provisions public credit for this purpose. ate during the previous interim. The bil regarding labor by requiring the Legislature reauthorizes all rules of the state except to provide for a board or commission which DOMESTIC VIOLENCE those specifically enumerated in the bilL. fairly represents the interests of both labor · Injury Reporting by Health Care · Five Year Review Legislation - and capital in tandem with the repeal of Providers - Proposed legislation clarifies By statute, state agencies are required to archaic language referencing the nonexistent who in the health care community must review their rules every five years to Board of Labor, Conciliation, and report injuries and the reporting procedures determine whether the rules should be Arbitration, repeals the eight-hour workday they must follow. retained or repealed. However, no enforce- language to be applied to the public employ- · Amendments to Domestic Violence ment of the requirement is included in the. ees, provides for minimum wage and maxi- Law - The task force considered changes law. Proposed legislation provides for mum hours for public and private employees, to current law covering a wide aray of issues. enforcement. and makes technical amendments. Legislation wil be finalized by volunteers · Resolution Amending Local from among the task force membership. BUSINESS, LABOR, AND Government Article - This constitutional ECONOMIC DEVELOPMENT amendment repeals the prohibition against EDUCATION · Affordable Housing for Low and municipalities selling waterworks and the · Class Size Reduction - Large class Middle Income Residents - Potential recognition of counties at the date of adop- size in Utah public schools has long been a legislation deals with appropriating or ear- tion, amending provisions on highway user problem. Legislation has been prepared marking funds for current programs, tax and motor fuel taxes, and making technical which wil define reduction for kinder- incentives, changes in bond allocation amendments. garten through sixth grade. Districts are requirements, and incentives to developers · Resolution Amending the Revenue required to use 50% of their allocation to to provide affordable housing segments and Taxation Article - This constitutional reduce class size in the first grade, with an within housing developments. amendment amends fiscal year language, emphasis on developing reading skills. . Utah's Role in Preparation for the repeals the section on mining assessment in · Educational Equity - The State 2002 Winter Olympic Games - Potential tandem with intent language that "this dele- Office of Education established a commit- legislation deals with control of state tion is not intended to make a substantive tee that reviewed fiscal problems in the expenditures, coordination of the state's change in the existing law," and makes tech- state's critical school building program, involvement in games preparation, and the nical changes. capital outlay, voted leeway guarantees, disposition of proceeds from the sale of · Resolution Amending Veterans' and equalized distribution formulas. state funded Olympic facilities. Property Tax Exemption - This constitu- Recommendations were reviewed by the . Worker's Compensation Coverage tional amendment amends the provisions Education Interim Committee, and legisla- Requirements for Contractors, Subcon- permitting the property tax exemption of dis- tion was adopted which will be introduced tractors, Sole Proprietors, Partnerships, abled persons who were disabled or killed in in the 1996 General Session. and Independent Contractors the line of duty during any war, international · Modification of Highly Impacted Potential legislation deals with establishing conflct, or military training and gives direc- School Legislation - Legislation was exemptions from coverage, expanding the tion to the Lieutenant Governor to withdraw enacted during the 1995 General Session scope of coverage, or establishing an inde- and replace SJ.R. 5 from the 1995 General granting additional funds to schools whose pendent contractor registry mechanism. Session, a measure not studied by the CRC students have been impacted by socio-eco- prior to the 1995 General Session. nomic factors including income and head- CONSTITUTIONAL REVISION . State's Authority to Guarantee the of-household status. Although criteria has · Jury Trial Resolution - This con- Debt of School District - This constitu- been established to qualify participating stitutional amendment amends provisions tional amendment permits the state to guar- schools, concern has been heard by admin- on trial by jury, preserves the right to trial
42 Vol. 9 No.2 I i .I istrators and legislators that specific parts and wastewater infrastructure expenditures considered major changes in the way com- of the criteria are not totally objective and in the state in the next decade wil amount to munity programs for persons with disabili- should be revised. $200 millon annually. These costs wil be ties are funded. The new proposal promotes · Utah Centennial Opportunity borne primarily by local governments. The consumer choice and competition between Program for Education - Utah is near state has traditionally provided low interest providers. the bottom nationally in providing state stu- loans to communities for water and waste- · Welfare Reform - The committee dent funding for financially needy students, water projects. Continued appropriations to is proposing a new welfare program called and tuition and fees at the community col- the loan programs wil be considered. "Employment Assistance for Utah leges are among the highest nationally. Families." Under this program, employ- Students are forced to borrow more, work HEALTH AND ENVIRONMENT ment is stressed for heads of households longer hours at low-paying jobs, or drop out . Air Quality - Utah, Salt Lake, Davis, who are qualified for entry level employ- of school to earn money for tuition. The and Weber counties along the Wasatch Front ment. Training and other forms of employ- Education Interim Commttee and the State have been designated by the federal EPA as ment assistance, including child care, wil Board of Regents are supporting a program non-attainment areas for several air pollu- also be available. of need-based grants and work-study tants. The federal government threatens to stipends for Utah residents attending a withhold highway funds (more than $ 100 INFORMATION TECHNOLOGY USHE institution or applied technology million in Utah) if air quality and transporta- · Geograpbic Information Systems center who can demonstrate substantial tion plans do not conform with each other. - Proposed legislation continues the financial need. The program is designed to The projected population growth along the statewide mapping project began last year. offer help to truly needy students and not a Wasatch Front compounds air quality com- · Municipalities Providing Telecom- "free ride." pliance problems. The Utah Division of Air munication Services (TS) to Residents Quality estimates that about 60% of PMlO and Businesses - The commission ENERGY, NATURAL RESOURCES emissions and 55% of CO emissions are reviewed the role of state and local govern- AND AGRICULTURE from automobiles. The major focus of dis- ments in providing telecommunication ser- · Dam Safety - For the last four cussion is on growth, and transportation and vices, the broad implication of 238 years, the Division of Water Rights has air quality conformity. municipalities becoming telecommunica- been investigating the safety of dams. The · Health Care Reform - During the tion service providers, and the impact on division presented a report to the Energy, 1994 General Session, the legislature estab- the citizens of Utah. Natural Resources and Agriculture Interim lished the Utah Health Care Policy . Utilty Pole Access - Proposed leg- Commttee indicating the cost of upgrading Commission. The commssion wil propose islation amends current statutes expanding dams in conformance with new minimum recommendations regarding health care the use of utility poles and allows any safety standards is approximately $62 mil- reform as mandated by statute. telecommunication provider to use them. lion. The legislature wil consider whether dams should be rehabilitated in accordance HUMAN SERVICES JUDICIARY with the new safety standards and, if so, · Child Support Enforcement - The · Sentencing and Treatment of Sex how the costs of dam rehabilitation should commttee considered thee bils in the area Offenders - SB 2 from the 1995 First be paid. of child support enforcement. These bils Special Session delayed the effective date . Forfeiture of Water Rights - provide for suspension of driver licenses and of amendments to minimum mandatory Under Utah water law, a water right is for- occupational and professional business sentences which the legislature passed in feited if it is not used for a period of five licenses, and reporting of new hires by new SB 287 during the 1995 General Session. years, unless the water right holder applies businesses. Those amendments wil not take effect until for an extension of time to use the water. · Federal Block Grants - As Congress April 29, 1996. The Utah Sentencing Clear title to a water right may be difficult considers changing many human service pro- Commission studied the merits of SB 287 to establish if there is no proof that the grams to block grants, the committee exam- along with other sex offender provisions water has been continually used. The ined how the state should respond. during the interim period and sponsored interim committee approved a bil estab- · Review of Settlement Agreement in several public hearings throughout the lishing a 20-year statute of limitations for the Case of David C. vs. Leavitt - In May state, some of which were co-sponsored by filing a suit asserting a forfeiture of water. 1994, the state entered into an agreement the Judiciary Interim Committee. The com- · Stock in Water Corporations - A with the National Center for Youth Law to mission presented three proposed pieces of recent Utah Supreme Court opinion stated settle a lawsuit against the state's welfare legislation, all of which were endorsed by that the procedures for the transfer of stock system. The legislature has appropriated sig- the committee. Those recommended provi- specified in the Uniform Commercial Code nificant resources to implement this settle- sions are: do not apply to stock in water corporations. ment agreement. The Child Welfare · Criminal Penalty Adjustments - The interim committee approved a bil Legislative Oversight Commttee reviewed This legislation amends sentencing pro- makng stock in water corporations subject this agreement to determine whether its pro- visions, makes nonmandatory the mini- to the Uniform Commercial Code. visions are in the best interests of children. mum sentences, provides for mandatory · Water and Wastewater Infrastruc- · Sunset Review of Programs for imprisonment, and amends related pro- ture Funding - It is projected that water Persons with Disabilties - The commttee visions on probation and parole.
February 1996 43 . Parole Term for First Degree Utah Retirement Systems - The commit- highways is disappearing. The Transporta- Felony Sex Offender - This legislation tee wil review the funding formula, compe- tion and Public Safety Interim Commttee requires lifetime parole for sex offenders tition in the area of 24-hour coverage, long is recommending legislation establishing a convicted of first degree felony sex term disability, and potential duplication revolving fund for earlier acquisition of offenses, provides the parolee the right to with workers' compensation. needed rights-of-way. Additional consider- petition to terminate the lifetime period · Uniformity in Retirement Systéms ation is needed to improve coordination of of parole, and makes technical changes. and Plans - The committee wil be looking state and local efforts for future transporta- . Sex Offender Treatment - This at cost of living allowances and early retire- tion needs. legislation provides for increased fund- ment options to see if more uniformity can be . Highway Funding - The legisla- ing for sex offender treatment, diagno- achieved among the five different retirement ture must decide how to fund the 1-15 core sis, and assessment. systems. ridor reconstruction and respond to other · Recodification of the Juvenile Code transportation needs. The level of funding - The Judiciary Interim Committee REVENUE AND TAXATION wil have a direct impact on the scheduling endorsed a draft bil prepared by the · Tax Reduction and Reform - The of the project and the extent of traffic Juvenile Court Recodification Subcom- legislature is lookirig at whether to reduce detours and delays during construction. The mittee. The draft is a comprehensive tech- taxes beyond the general reductions of the legislature may also look at ways to reduce nical rewrite of Chapter 3a of Title 78, past couple of years. If a reduction is in the use of single occupant vehicles during "Juvenile Court." While recommendations order, the debate wil center on which taxes peak commuting hours. for substantive changes emerged during the to reduce and the magnitude of the reduction. · Motor Carrier Regulation - After subcommittee's technical rewrite process, Furer reduction of the minimum school recent federal preemption of price, route, they were intentially deferred for future levy and repealing the sales tax from food are and service regulation of intrastate motor study so that a workable statutory frame- among the options under consideration. carriers, the Transportation and Public work can first be established. Safety Interim Commttee is recommend- STATE AND LOCAL AFFAIRS ing legislation to eliminate all economic LAND CONSERVATION · Advisory Commission On Intergov- regulation of motor cariers. The legislature · Land Conservation - The Land ernmental Relations - The legislation limits must decide whether this approach has Conservation Task Force is considering the the commssion's membership to elected offi- merit and whether additional adjustments creation of a clearinghouse to provide tech- cials and redefines its mission by prohibiting should be made to ensure that any remain- nical information to landowners, amend- lobbying for or against proposed legislation. ing state motor carrier regulation is effec- ments to agricultural protection areas, · Board and Commissions - Proposed tive and worthwhile. facilitation of land trades with the BLM and legislation completes the reorganization of . Repeat DUI Offenders - The Forest Service, and provisions for incen- all boards and commissions into a separate Transportation and Public Safety Interim tives for the purchase and donation of con- title of the Utah Code. Committee is recommending legislation servation easements. · Bonding Process - Proposed legisla- attempting to address the DUI problem and tion amends statutes governing bonding by reduce the number of repeat offenders. NATIVE AMERICANS government entities, particularly guarantees Additional consideration is needed to · Indian Worship at Correctional of local government bonds. increase the number of peace officers Facilties - Proposed legislation provides · Election Law Reform - Proposed assigned to enforce DUI laws. for access of Native American inmates to legislation addresses campaign finance and · State Speed Limit - With the Native American spiritual advisors, items voting requirements for primary elections. repeal of the national maximum speed used in Native American religious cere- · Incorporation! Annexation - Pro- limit, states may set speed limits as they see monies, and a site of worship on the posed legislation rewrites the portion of the fit. Several legislative proposals wil be grounds of the correctional facility. Utah Code dealing with the incorporation considered during the session. process by specifying the role of voters and · Uninsured Motor Vehicles - The RETIREMENT the county commssion in approving any pro- Uninsured Motorist Identification Database · Early Retirement Alternatives - posed incorporation. Program is due for sunset unless the legis- The commttee is considering options relate . Lobbyist Disclosure - Proposed leg- lature reauthorizes it. The Transportation ing to early retirement and amendments fo islation addresses the disclosure of lobbyist and Public Safety Interim Commttee is previously passed early retirement bils expenditures. recommending legislation extending the including SB 34 (1995), "Retirement · Personnel Management - Proposed sunset by two years. Additional considera- Service - Conversioii and Credit Amend- legislation modifies statutes governing state tion may be needed on whether the system ments," and SB 182 (1994), "Public employees. reduces the number of uninsured motorists Employee Retirement Purchase Option." on Utah highways and whether the program · Equity in Service Formulas - TRANSPORTATION AND is being administered in a fair, efficient, Issues relating to groups retimng at less than PUBLIC SAFETY and effective way. 2% per year of service wil be,raised again . Future Transportation Corridor this year. Preservation - Growth within the state is · Health Care Issues Relating to the continuing, and land available for future
44 Vol. 9 No. 2 RESOLVING YOUR DIFFERENCES SHOULDN'T BE A MAJOR TRIAL
o ur Mediation Panel is ...... smalt select & trained. . . . composed of retired judges, senior litigation counsel & foremost business lawyers . . . effective. Over 80% of our mediated cases result in written settlement agreements.
Mediation Services offered for all types of cases, includ'" Personal Injury Construction Real Estate Employment Securities
For a complete list of the specialized panelists, con ct:
Diane Abegglen, Esq. 801/531-9748 · FAX 801/53 -
AAA Center for MEDIATION The Largest Private Provider of Commercial Mediation Services · not-far-profit services since 1926 · - CASE SUMMARIES - l
By Clark R. Nielsen
SUMMARY JUDGMENT, stranger to the insurance contract on a claim jury verdict of fraud and violation of the MUNICIPAL REDEVELOPMENT asserted against the tort-feasor. This is dis- Uniform Securities Act by the defendants Summary judgment in favor of Salt tinguished from "first-party adjusting" when who were principles in the investment com- Lake County Redevelopment Agency and an insured party hires a public adjuster to pany Zephor. The court recited various the County Commission was reversed and assist the insured in filing a claim of loss facts in the record showing that the defen- judgment was granted to the plaintiff as a with the insurer. The adjuster then negotiates dant Lichfield, a vice-president, had exten- matter of law. The Redevelopment Agency with the insurance company to obtain the sive knowledge and involvement regarding failed to comply with statutory section best settlement for the insured. The adjuster the misrepresentations and gross violations 1208 (1) because it failed to make a formal then receives a percentage of the settlement of the act committed by the corporation finding that the area for redevelopment was amount. In "third-party adjusting", there is against the plaintiff and her investment. "blighted." The formal finding by the com- no legal relationship between the party The jury's findings were clearly supported mission excluded the plaintiff's property. asserting the claim and the insurance com- by the evidence. Therefore, the commission's ordinance pany. The third-party adjuster then repre- The defendant claimed that he was not adopting the redevelopment plan was sents the claimant on the basis of the. tort liable because his corporation had been sus- invalid and the plaintiff, not the county, principles and determines the extent of the pended from doing business. A person who was entitled to summary judgment. The liability rights and duties of the parties before purports to act for, and on behalf of, a cor- court discusses the finding necessary and attempting to resolve the issue. Third-party poration that has no corporate authority is the elements included in the finding to sub- public adjusters do not perform services in personally liable. There is, however, a split stantiate the action of the RDA. The pur- court, but they do execute contingent fee of authority as to whether personal liability pose of the redevelopment legislation is to contracts and negotiate with the insurer of applies when a corporation's authority has alleviate blight. A general finding of the tort-feasor to settle claims. been suspended. A majority of jurisdictions "blight" is insufficient to guarantee that the The practice of law, although difficult to hold that a corporate officer is personally redevelopment process is properly moti- define, does involve the rendering of services liable for continuing business while the cor- vated by the desire to cure blight. Mere eco- that require the knowledge and application of poration has been suspended. The Supreme nomic development is not an appropriate legal principles to serve the interests of Court adopts the majority rule and holds purpose for legislative redevelopment. another with the consent of that person. In that § 16-10-139 applies to all persons who Strict compliance with the redevelopment addition to services in court, it involves act as or for a corporation without author- statutes is required in order to enact an ordi- counseling, advising and assisting others in ity. Offcers and directors who continue the nance that adopts a redevelopment plan. connection with their legal rights, duties and business of a suspended corporation are Johnson v. Redevelopment Agency of Salt responsibilities. This is essentially what the personally liable for all debts and liabilities Lake County, 277 Utah Adv. Rep. 3 third-party adjuster also does. Legal services arising from those operations in a continua- (11/2/95) (Justice Zimmerman) are not restricted to only those before a court tion of the business. of law. Under the Utah Securities Act every INSURANCE, PRACTICE OF LAW Although the Insurance Code (Title 31A) partner of a securities seller and a person The Utah Supreme Court affirmed the does provide for and recognize first-party occupying a similar status is liable unless trial court's finding that "third-party adjust- adjusting, the Code does not apply to the he proves he neither knew of or could have ing" constitutes the unauthorized practice concept of third-party adjusting. Section known of the violation. Accordingly, the of law. The Supreme Court has the exclu- 31A-26-102 does not include the handling of defendant offcers are equally liable for the sive authority to regulate the practice of law claims by adjusters when there is no contrac- negligence and misrepresentations of the in Utah under Article VII of the tual relationship between the claimant and other defendants on behalf of the corpora- Constitution. Therefore, the Legislature the insurer. tion. The court finds of the finding that all cannot authorize public adjusters to per- Utah State Bar v. Summerhayes and Hayden, of the defendants are jointly and severally form "third-party adjusting" under the Utah 277 Utah Adv. Rep. 12 (11/3/95) (Justice liable, it imposes liability for the total Insurance Code. The court determines and Stewart) amount on each defendant with the right of finds that third-party adjusting constitutes indemnity or contribution from the other the practice of law and that such practice is SECURITIES, PERSONAL LIABILITY defendants for their share, as the treble unauthorized if not in conjunction with a A partner, officer, director or other similar damages which were assessed were puni- law practice. However, the court also inter- person of a corporation which is involved in tive in nature. prets the statutory provisions of the selling securities, is liable for violations Steenblik v. Lichfield, 277 Utah Adv. Rep. Insurance Code, Title 31A, Chapter 26 as committed by the entity unless that person 16 (11/3/95) (Justice Stewar) not including or permitting such practice. proves, as an affirmative defense, that he "Third-party adjusting" occurs when an lacked the knowledge of unlawful acts by the insurance adjuster represents a claimant corporation. The Supreme Court affrmed the
46 Vol. 9 No.2 .III CONTRACT BREACH court had held that it was a tort action and imposes a disruptive rule of construction VS. TORT CLAIMS, therefore barred by the malpractice and prod- that allows extrinsic evidence to establish STATUTE OF LIMITATIONS uct liability statute of limitation. The appel- an ambiguity in what would be an other- The Supreme Court reversed a summary late court examined the straight forward wise clear contract provision. The majority judgment II favor for defendant pleading of the breach of contract claim of opinion invites the parties to create ambi- Intermountain Farmers Association for plaintiff's complaint and held that it was, in guity by oral testimony even when contract damages to plaintiff's bean crop, due to a fact, a claim for breach of a contract to apply provisions are clear and unambiguous. chemical spray applied the previous year. the proper chemical spray. There was no ref- Chief Justice Zimmerman dissents from The trial court had concluded that the erence at all to strict liability, negligence, the conclusion that the release agreement statute of limitation barred the action and express or implied waranty, or professional was ambiguous. He would hold that oral that the plaintiff had given a release of lia- standards of care. The plaintiff may waive evidence was not admissible to explain the bility to IF A. the tort claim and proceed only on a claim for purpose and intent of the release document The Supreme Couit reversed the judg- breach of contract. which the defendant required the plaintiff ment as a matter of law and held that there As to the release provision which the to sign after purportedly promising to take were triable, disputed issues of fact as to plaintiff gave, the release is interpreted as a care of the plaintiff. whether the release agreement was reason- contract. The parole evidence rule has only Ward v. ¡FA, 277 Utah Adv. Rep. 58 ably susceptible to Ward s interpretation narow application. The trial court erred in (11/15/95) (Justice Durham, with J. Russon based upon the representations of IF A and not considering the oral testimony as to the concurring in result and C.l. Zimmerman the intention of the parties. Rational inter- intent of the parties and the purpose of the dissenting) pretation requires at least a preliminar agreement. Such testimony would not con- consideration of all credible evidence tradict the parties' written agreement. offered to prove the intention of the paries Justice Russon concurred in the result, at the time the release agreement was given. issuing his own opinion that the agreement The Court reversed the trial court's con- was ambiguous because it was susceptible to clusion that the plaintiff's complaint was two different interpretations. According to not for breach of an oral contract. The trial Justice Russon, the majority's opinion
Creative Defenses: A Criminal Defense Seminar Sponsored by the Utah Association of Criminal Defense Lawyers
March 15th and 16th, 1996 Law and Justice Center 645 South 200 East Salt Lake City, Utah
Friday, March 15, 1996 Saturday, March 16, 1996
Ethics Panel Discussion Entrapment F. John Hil, Moderator - Salt Lake City, Utah Gerald Lefcour - New York, New York
Utah Case Law Update Syndrome Defenses Rob Heineman - Salt Lake City, Utah Juanita Brooks - San Diego, California
Utah Legislative Update The Insanity Defense Rich Marrow - Salt Lake City, Utah Willam Mofftt - Alexandria, Virginia
DNA and the O.J. Simpson Case Bob Blasier - Sacramento, California
11 CLE Credit Hours (1. Ethics Hours)
For Registration Information contact (801) 364-6474 or write to UACDL c/o P.O. Box 510846, Salt Lake City, Utah 84151-0846
February 1996 47 White Man's Grave
By Richard Dooling
Reviewed by Betsy L. Ross
with his wife: "Once he got there, he found Fearing being caught in the life cycle of This ismailed a book in Peace for Corps all of applications us who out the guy was not a doctor at all, but a an American insurance adjuster, Boone while we were in college. It is even more Ph.D. in psychology who called himself a schedules a trip to Paris with his best friend, for those of you who went. A very literate doctor. Randall looked at his watch and real- Michael Killigan. Or as Dooling puts it, book by a Nebraska lawyer (who spent ized that he was going to be stuck in a small "Instead of hanging around Indians and seven months in Africa in the early eight- room with his wife and a patronizing dweeb waiting for his first coronary bypass opera- ies), and a National Book Award finalist. in a sport coat and turtleneck for an hour. The tion, his second wife, his third child, his White Man's Grave is a venture into the good doctor kept throwing out phrases like fourth incremental pay raise, and his fifth of savageries of the African bush and the 'marital dynamics' and 'dysfunctional code- single-malt scotch. (Boone J decided to do American bankruptcy courts. Although the pendency,' which Randall instantly recog- something drastic. Something Gaugin or conjunction of First and Third World soci- nized as billing words, or words that one Henry Miler might do, something impul- eties makes for interesting pondering, it is charged by the hour to explain." sive and irrational, financially irresponsi- Dooling's characters and his sardonic wit Boone Westfall is an idealist who is set- ble, and dangerous. He knew where to find that keeps one turning pages. tling down to the family insurance business guidance in such matters: his best friend, Randall Killigan is a bankruptcy "war- to pay his rent. Explaining the business of Michael Kiligan." lord" who leaves no prisoners. He and his denying claims, Boone's brother responds to It is Michael Kiligan, best friend of partners "giggle" about what they can do to Boone's incredulity: "Look, I know how you Boone and son of killer attorney Randall, an unsecured creditor: "You said you found feel about coming to work here. I used to be who is the draw into the Third World. a way to skin an unsecured creditor, leaving a Nietzsche scholar myself, and from there I Michael has joined the Peace Corps, been nothing but vital organs and a nervous sys- was on my way to Wittgenstein. But you stationed in Sierra Leone, Africa, and has tem behind." He giggled. "They were still can't pay the rent with that kind of behavior." been missing for two weeks in the politi- alive, you said. They were stil conscious, (Dooling's characterizations of the insurance cally unstable African backcountry. This is but they were absolutely powerless to do business are hilarious. For example, in dis- the plot set; Randall Kiligan and Boone anything but scream themselves to death." cussing the "how to's" of denying claims, Westfall, two divergent symbols of First He is an overbearing, condescending, chau- Boones' brother explains, "Everything is a World values venture into the Third World vinistic, cocky son-of-a-bitch, who, pre- preexisting condition, except maybe injuries to find MichaeL. sumably, epitomizes the American malaise. from automobile accidents. But don't take The journey into Africa has the feel of He is equally fearsome as, a husband. my word for it! Who said, 'We carry the Joseph Conrad with a sense of humor. We Witness his take on counseling, through seeds of our own destruction with us from immediately meet Boone's guides, two Dooling's narrative, after agreeing to go birth'? Socrates, or somebody, I don't know.") very different white men, Lewis and Sisay. 48 Vol. 9 No.2 . Sisay has adopted the Third W orId as his own, while Lewis finds everything in his Questions Attorneys Ask surroundings vile. It is through their eyes As a Claim Coordinator for the Coregis avoid making statements such as "I'm terri- that Dooling is able to present a heteroge- Lawyers Professional Liability insurance bly sorry, I've ruined your life, I'll never be nous Africa. Through the vehicle of these program, I am frequently asked two particu- able to make this up to you . . ." as such divergent characters, Dooling presents a lar questions. While each situation as it statements make it more difficult for the story dense with meaning rather than static applies to individual attorneys and their insurer to deal with the client or the new and superficiaL. Ironically, he challenges clients is different, many times the answers attorney. our own predispositions toward stereotyp- are the same. The two questions are: ing by presenting opposing stereotypes. "I've made a mistake, what do I do now?" SHOULD YOU SUE A We also meet the corrupt African politi- Should I sue my client for fees?" CLIENT FOR FEES? cian, campaigning to be the Section Chief, The obvious risk of this is that the client who takes Randall's money ostensibly to WHEN THE ATTORNEY ERRS wil strike back with a legal malpractice find Michael, but uses it to buy the election. As to the first questions, this usually counterclaim. Although the attorney may And we meet Pa Ansumana, who becomes applies to an attorney who realizes that he or review his or her file thoroughly prior to fil- Boone's grandfather in a necessary African she missed the filing of a suit within the ing the suit for fees and determine there is ritual emphasizing the importance of rela- applicable statute of limitations or some sim- no basis for a counter-claim, it cannot be tionships and responsibility. In an introduc- ilar realization. This realization may occur at guaranteed that the client wil not file one. tion to African values, Dooling explains 6:00 p.m. on the date of the Statute of The client may very well have a different through Sisay that Boone must be given a Limitations expired or it may occur years memory of events that occurred or advice "grandfather" during his stay in an African later. Regardless, there are certain actions that was given at any particular time. vilage, because "( w Jithout a name and a that must be taken as soon as possible. A major factor to consider in determin- grandfather, you don't really have social The attorney should notify his or her pro- ing whether to bring a suit for fees is the identity. The vilagers have no frame of ref- fessional carrier. amount of the deductible obligation con- erence for you. Whose son are you? Who is The attorney should also tell the client of tained in the applicable professional liabil- responsible for you? To whom should they the problem. We find that many attorneys are ity insurance policy. If the fees owed to the address their compliments or complaints reluctant to tell the client and wil try to go to firm are less than or close to the amount of about you? Without a family, you are just an the adverse party and attempt to settle the the deductible, there is the risk that unsettling enigma, rolling around like a stray case. Usually the adverse party is already although the attorney may win the battle white chess piece in a game of checkers." well aware of the problem regarding the over the fee dispute, they may lose the war And finally, we meet the witchfinder, Statute of Limitations and is either not wil- by incurring expenses greater than the orig- who can cut out his tongue as a show of ing to settle at all or wil only offer what they inal fee claim in having to defend the coun- power, and then return it to his mouth. It is anticipate having to pay an attorney to win a terclaim. he who can rid a person of the witch that motion to dismiss if suit is filed. Even if the Additionally, there are the hidden costs may be hiding within. What appears alle- attorney is successful and does obtain a set- of defending a fee suit counterclaim in the gorical to us is very real and direct to the tlement, the attorney is later open to charges form of time taken away from the attor- African vilagers. Boone's "witch" is pulled that he or she had a conflct of interest when ney's practice. Attorneys are often sur- out of him by the witchfinder as a gecko advising the client to accept the settlement as prised at the amount of disruption to the with "(0 Jne black eye set in a streak of orange the client could argue the case was worth firm and the time spent with their insurer (thatJ peered from the side of the head, and more than the amount of the settement. and defense counsel in investigating and a red tongue (thatJ flcked the air." Generally, the best course of action is to defending the counterclaim. White Man's Grave is a highly entertain- tell the client of the error. The attorney An alternative may be to include an arbi- ing, comic satire of First and Third W orId should consult his or her carrier before going tration clause for attorney fee disputes in societies, and invites our musings as to the to the client and informing them ofthe error. the retainer arangement or engagement let- real differences between the two. In fact, Most professional liability insurance policies ter. However, you should check with your can the "bad medicine" of African supersti- have a condition that an insured is not to broker or professional liability carrier to be tion be differentiated from harassing admit liability. The insurance carrier must sure such a clause would not impact their motions in the scabbard of the bankruptcy stil recognize that an attorney has an ethical ability to defend a counterclaim in a civil headhunter? Is reality really only the obligation to be truthful to a client. The car- court. omnipresence of the automatic stay, or rier should advise the attorney to tell the could it be the shapeshifter in the bush? client that a deadline was missed (or an error Maybe it just depends upon with whose was made of some sort) and the ramfications eyes you are seeing. of that error. Juries are much more forgiving of an attorney who admits that he made a mistake than one who may attempt to mislead a client or fails to advise a client of the true status of a case. In doing so, that attorney should
F ebrumy 1996 49 - UTAH BAR FOUNDATION Bar Foundation Honors Harold G. Christensen at its Annual Meeting
officers, and former trustees. Journal in a later issue. James B. Lee, President, welcomed guests Trustee Carman Kipp introduced hon- and noted distinguished visitors. Vice ored speaker Harold G. Christensen, former President Jane A. Marquardt reported on the Deputy U.S. Attorney General and also a current status and financial condition of the former trustee of the Foundation. Mr. Foundation. She explained the process by Christensen related some of his early expe- which funds are generated and made avail- riences in Washington, D.C. He discovered able for use by community agencies through one measure of a person's importance was Foundation grants, and she then expressed whether he was given the use of a car - appreciation for all of those making it possi- which included a driver to deal with the ble. Stewart M. Hanson, Jr., Secretary/ heavy traffic and scarce parking, emer- Treasurer, announced the scholarship and gency medical equipment and the capabil- ethics award recipients. ity of talking to anyone in the world. (It James Lee presented a plaque of appreci- should be noted that he was issued a car.) ation to retiring trustee Stephen B. Nebeker He explained his thinking that the adver- for his many years of service on the Board of sary system may have outlived its useful- Trustees of the Foundation and distributed ness, at least in some civil contexts and that final 1995 grant payments to recipients. something different might work better. For Harold G. Christensen speaking to lun- Trustee Joanne C. Slotnik introduced John instance, domestic relations cases are cheon guests. Schaefer as the talented artist who was costly, take too much time and create too responsible for the development of the pho- much rancor. Sometimes mediation and The Utah Bar Foundation honored tographic exhibit recently hung in the main arbitration work. But the Bar Foundation Harold G. Christensen at its annual lun- foyer of the Law & Justice Center. Mr. might look into funding an investigation cheon meeting on December 13, 1995, at Schaefer explained the process he used to into possible changes, to examine the trail the Law & Justice Center. Among the make the photographs so unique. An article of the ancients and see if there are better guests were Bar Commissioners, federal of Mr. Schaefer's efforts compiling the ways to solve disputes. and state judiciary, grant recipients, bank exhibit wil be highlighted in the Utah Bar
Stephen B. Nebeker receiving plaque of Randolph H. Barnhouse, Executive Director, Stewart M. Hanson, Jr. Trustee, and D. appreciation from James B. Lee. DNA People's Legal Services, receiving final Frank Wilkins sharing a moment at the lun- 1995 grant payment from James B. Lee. cheon meeting.
The Utah Bar Foundation has now provided over $1.6 milion in grants for legal aid, legal education and other law-related services since 1983, when the IOLTA (Interest on Lawyers Trust Accounts) was initiated. The Found~tion was organized in 1963 as a non-profit charitable Utah corporation. All active members of the Utah Bar are members of the Foundation and can make direct contributions and/or voluntarily participate in the IOLTA Program which generates the major source of funds for grants. Photo Credit: Robert L. Schmid 50 Vol. 9 No.2 . , CLE CALENDAR- LA W OFFICE TECHNOLOGY Time: 6:00 p.m. to 8:00 p.m. CLE Credit: 7.5 hours, which includes up UPDATE: BASIC SYSTEMS AND (Registration at 5:30 p.m.) to 2.5 in ETHICS PRACTICAL APPLICATIONS Place: Courtroom of Judge Pat Brian, (An additional 2.5 hours is Date: Thursday, February 8, 1996 Third District Court, available through the Salt Time: 4:00 p.m. to 7:00 p.m. 451 South 200 East #300 Lake County Bar) Place: Utah Law & Justice Center Fee: $20.00 for Litigant Section ***Watch your mail for a more detailed Fee: $60.00; $75.00 at the door members; $30.00 for non- brochure. *** CLE Credit: 3 hours members CLE Credit: 2 hours MANAGING YOUR FIRM ALI-ABA SATELLITE SEMINAR: FOR SUCCESS CLEANING UP THE ADVANCED ADVOCACY & Date: Thursday, March 14, 1996 URBAN ENVIRONMENT PROFESsioNAL RESPONSIBILITY: Time: 4:00 p.m. to 7:00 p.m. Date: Thursday, February 8, 1996 KEITH EVANS Place: Utah Law & Justice Center Time: 10:00 a.m. to 2:00 p.m. Date: Friday, March i, 1996 Fee: $60.00; $75.00 at the door Place: Utah Law & Justice Center Time: 9:00 a.m. to 5:00 p.m. CLE Credit: 3 hours Fee: $160.00 (To register, please Place: Utah Law & Justice Center call 1-800-CLE-NEWS) Fee: $150.00 before Februar 23, 1996 NLCLE WORKSHOP: CLE Credit: 4 hours $175.00 after February 23,1996 LANDLORD/TNEANT LAW CLE Credit: 6 hours, which includes 3 Date: Thursday, March 21, 1996 MEDIA AND THE LAW in ETHICS Time: 5:30 p.m. to 8:30 p.m. Date: Friday, February 9, 1996 Place: Utah Law & Justice Center Time: 9:00 a.m. to 12:00 noon 1996 MID-YEAR CONVENTION Fee: $30.00 for Young Lawyers Registration begins at 8: 30 a.m. Date: Thursday, March 7 - Division Members; Place: Utah Law & Justice Center Saturday, March 9, 1996 $60.00 for all others Fee: $60.00 before Februar 2, 1996 Place: Holiday Inn, St. George, Utah CLE Credit: 3 hours $75.00 after February 2, 1996 CLE Credit: 3 hours, which includes 1 in Ethics 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 NLCLE WORKSHOP: CLE seminar should be directed to Monica Jergensen, CLE Administrator, at (801) 531-9095. BASICS OF BANKRUPTCY Date: Thursday, February 15, 1996 r------, Time: 5:30 p.m. to 8:30 p.m. CLE REGISTRATION FORM Place: Utah Law & Justice Center Fee: $30.00 for members of the TITLE OF PROGRAM FEE Young Lawyers Division $60.00 for all others 1. CLE Credit: 3 hours 2. ALI-ABA SATELLITE SEMINAR: SECURITIES ARBITRATION- UNDERSTANDING THE BASICS Make all checks payable to the Utah State Bar/CLE Total Due Date: Thursday, February 15, 1996 Time: 9:00 a.m. to 4:00 p.m. Place: Utah Law & Justice Center Name Phone Fee: $249.00 (To register, please call 1-800-CLE-NEWS) Credit Card Biling Address City, State, ZIP CLE Credit: 6 hours Bar Number American ExpressIMasterCardN1SA Exp. Date THE INTERNET: A PRAGMATIC OVERVIEW FOR Signature PRACTICING ATTORNEYS Please send in your registration with payment to: Utah State Bar, CLE Dept., 645 S. 200 E., S.L.e., Utah 84111. The Date: Friday, February 16, 1996 , Bar aud the Continuing Legal Education Department are working with Sections to provide a full complement of live semi- Time: 8:00 a.m. to 12:00 noon naTS. Please watch for brochure mailings on these. Place: Utah Law & Justice Center Fee: To be determined 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. CLE Credit: -4 hours Cancellation Policy: Cancellations must be confirmed by letter at least 48 hours prior to the seminar date. Registration TRIAL ACADEMY 1996: fees, minus a $20 nonrefundable fee, will be returned to those registTants who cancel at least 48 hours prior to the seminar date. No refunds will be given for cancellations made after that time. SESSION 1 - JURY SELECTION NOTE: It is the responsibility of each attorney to maintain records of his or her attendance at seminars for purposes of the Date: Thursday, February 22, 1996 2 year CLE reporting period required by the Utah Mandatory CLE Board.
Februwy 1996 51 ~ CLASSIFIED ADS ~ RA TES & DEADLINES POSITIONS SOUGHT Deluxe shared offce space for one or two Utah Bar Member Rates: 1-50 words - I am admitted to both CALIFORNIA and attorneys with established law firm in $20.00 / 51-100 words - $35.00. UTAH, and based in Sacramento. I wil Broadway Center (111 East Broadway). Confidential box is $10.00 extra. make appearances anywhere in California, or Spacious offices, conference room, storage Cancellations must be in writing. For infor- help in any other way I can. $60. Per hour + and secretarial station included. Fax, mation regarding classified advertising, travel expenses. Contact John Palley ê (916) copier, telephones and receptionist avail- please contact (801) 531-9077. 455-6785 or Palleyjêaol.com. able. Call (801) 575-7100. Classified Advertising Policy: No commercial advertising is allowed in the Solo practitioner admitted to UT seeks con- SERVICES classified advertising section of the Journal. tract or project work in the areas of: For display advertising rates and informa- Corporate and Partnership Taxation, APPRAISALS CERTIFIED PERSONAL tion, please call (801) 532-4949. It shall be Partnership or Corporation to LLC conver- PROPERTY APPRAISALS - Estate the policy of the Utah State Bar that no sions, Trusts, Estate Planning (including Work, Fine furniture, Divorce, Antiques, advertisement should indicate any prefer- Gift, Estate and GST Taxation), or Qualified Expert Witness, National Instructor for the ence, limitation, specification or discrimi- Plans. $25.00 per hour or flat rate. Call Ken Certified Appraisers Guild of America. nation based on color, handicap, religion, ê (801) 355-1345. Eighteen years experience. Immediate ser- sex, national origin or age. vice available. Robert Olson c.A.G.A. Utah Bar Journal and the Utah State Bar ATTORNEY: Former Assistant Bar Association do not assume any responsibil- CounseL. Experienced in attorney discipline (801) 580-0418. ity for an ad, including errors or omissions, matters. Familiar with the disciplinary pro- OFFICE FURNITURE FOR SALE: beyond the cost of the ad itself. Claims for ceedings of the Utah State Bar. Reasonable Authentic oak Globe-Wernicke antique error adjustment must be made within a rates. Call Nayer H. Honarvar. LAHERTY sectional bookcases, antique oak secretarial reasonable time after the ad is published. & ASSOCIATES, 9 Exchange Place, Suite desk, other fine antique law office furnishings CA VEA T - The deadline for classified #400, Salt Lake City, UT 84111, Call (801) - excellent condition. Call (801) 272-10 13. advertisements is the first day of each 583-0206 or (801) 359-8003. month prior to the month of publication. TAX PROFESSORS WANTED: Adjunct (Example: May 1 deadline for June publi- part-time tax instructors, to teach LL.M. cation). If advertisements are received later OFFICE SPACE/SHARING Taxation degree in a N.A.P.N.S.C. accred- than the first, they wil be published in the ited post-graduate educational program in next available issue. In addition, payment PRIME OFFICE SPACE. Layton Barnes Salt Lake City. Next part-time two year must be received with the advertisement. Bank Building. One or two attorneys turn key operation. Already one attorney on site. program begins Sept., 1996. LL.M. Call (801) 546-1100. Ask for Erik! Taxation degree (or M. S. Tax degree or M. POSITIONS A V AILABLE Acct. Degree) and a strong tax background CHOICE OFFICE SPACE FOR RENT in is preferred. Classes are held in the evening Large Salt Lake City law firm is seeking beautiful, historic building in Ogden, UT. one night per week, 6 to 10 P.M. with flex- one or more experienced patent/intellectual Several offces available. For information, ibility for the instructor's schedule. property attorneys to head its section in please contact (801) 621-1384. Washington School of Law, Washington firm. At least five years experience neces- Institute for Graduate Studies. Contact sary with good academic credentials. Downtown Law offices available for one Dean Joslin, TeL. (801) 943-2440 or Fax Competitive salary and benefits. Please attorney. Great location near court buildings, resume to (801) 944-8586. send resume to: Maud C. Thurman, Utah restaurants, fed-ex office, post offce. Private State Bar Box 15, 645 South 200 East, Salt suite includes conference room, reception Lake City, UT 84111. area, library. Complete office equipment available. Covered and uncovered parking DYNAMIC downtown Salt Lake City liti- next to building. Receptionist and secretarial gation firm seeks energetic, talented associ- services available. (801) 364-5600. ate with 1-4 years of good legal training. Excellent salary and benefits. All resumes OFFICE SPACE on a "money-making" received in confidence. Send resume to Maud street with great advertising sign seen by C. Thurman, Utah State Bar - Box 17, 645 40,000 cars per day; 2500 sq. ft. building South 200 East, Salt Lake City, UT 84111. with 5 offices (partially furnished). Large reception area with secretarial areas, conf/lib, plenty of parking, $2500, or 3 other offices separate entrance $900. Call (801) 964-6100. 52 Vol. 9 No.2 . ~
GERTIFIGATE OF GOMPLIANGE For Years 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:
1. Provider/Sponsor Program Title
* * Date of Activity CLE Hours Type of Activity
2. Provider/Sponsor Program Title
* * Date of Activity CLE Hours Type of Activity
* * CLEHours Type of Activity
* * CLE Hours Type of Activity
* * CLEHours Type of Activity
* * CLE Hours Type of Activity
IF YOU HAVE MORE PROGRAM ENTRIES, COPY THIS FORM AND ATTACH AN EXTRA PAGE **EXPLANATION OF TYPE OF ACTIVITY
A. AudiolVideo Tapes. No more than one half of the credit hour requirement may be obtained through study with audio and video tapes. See Regulation 4(d)-101(a).
B. Writing and Publishing an Article. Three credit hours are allowed for each 3,000 words in a , ~ Board approved aricle published in a legal periodicaL. An application for accreditation of the article must ì be submitted at least sixty days prior to reporting the activity for credit. No more than one-half of the I ;.~I credit hour requirement may;¡,be obtained through the writing and publication of an aricle or aricles. See Regulation 4(d)-101(b).
C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teach- ers who are practitioners in an ABA approved law school may receive three hours of credit for each hour spent in lecturing or teaching. No more than one-half of the credit hour requirement may be obtained through lecturing and par-time teaching. No lecturing or teaching credit is available for paricipation in a panel discussion. See Regulation 4(d)-101(c).
D. CLE Program. There is no restriction on the percentage of the credit hour requirement which may be obtained through attendance at an accredited legal education program. However, a minimum of one-third of the credit hour requirement must be obtained through attendance at live continuing legal education programs.
THE ABOVE is ONLY A SUMMARY. FOR A FULL EXPLANATION SEE REGULATION 4(d)-101 OF THE RULES GOVERNING MANDATORY CONTINUING LEGAL EDUCATION FOR THE STATE OF UTAH.
Regulation 8.101- Each attorney required to file a statement of compliance pursuant to these regulations shall pay a filing fee of $5.00 at the time of filing the statement with the Board.
I hereby certify that the information contained herein is complete and accurate. I further certify that I am familar with the Rules and Regulations governing Mandatory Continuing Legal Education for the State of Utah including Regulations 5-103(1).
DATE: SIGNATURE:
Regulation 5-103(1) - Each attorney shall keep and maintain proof to substantiate the claims made on any statement of compliance filed with the board. The proof may contain, but is not limited to, certificates of completion or attendance from sponsors, certificates from course leaders or materials claimed to provide credit. This proof shall be retained by the attorney for a period of four years from the end of the period of which the statement of compliance is fied, and shall be submitted to the board upon written request. Get the convenience and flexibility of Michie's UTAH ADMINISTRATIVE CODE 1995 EDITION
Michie's Utah Administrative Code, 1995 Edition offers the following advantages: . An official publication of Utah
Replacement pamphlets issued quarterly
148 individual Agency/Title pamphlets
Fully annotated
Comprehensive master index in a separate pamphlet
Pamphlet of cross-reference tables and changes
Five cloth-covered, three-inch ring binders with tab dividers separating departments
Separate departmental indexes available
Excellent companion to Michie's Utah statutory Code (fully annotated)
Treasurer (i) Workers' Compensation Fund (i) ~MICHIE Utah State Bar BULK RATE 645 South 200 East U.S. POSTAGE Salt Lake City, Utah 84111 PAID SALT LAKE CITY, UT R:EG CR 4." ETI-J.r es C:R ? . .5 PERMIT NO. 844 MR. WILLIAM HOLYOAK 201 SOUTH MAIN STREET P. O. BOX 45898 SALT LAKE CITY UT 84145
A BIG DEAL FOR SMALL LAW FIRMS OF THE UTAH STATE BAR LEXIS MVP . GET A BIG DEAL AND SAVE MONEY...UNLIMITED ONLINE ACCESS TO STATE CASE LAW, STATUTES, LAW REVIEWS, BILL AND REGULATION TRACKING, AND MORE FOR AS LITTLE AS $ 130. g ~ ~ úl tr jJ ~~ ~.'i...r.~ . . ;,.'" gJtl ~ -~; ~...;,,) j ~ ~ jJ
:~~
.j ,~
:+ All pricing includes applicable subscription fee. Price quoted is for one attorney. Additional charge applies for each attorney in the ." LEXIS'.NEXIS' firm. Note: state and local taxes not included. Some restrictions apply. LEXIS and NEXIS are registered trademarks of Reed Elsevier &._.."....-..- Properties Inc., used under license. The INFORMATION ARRAY logo is a trademark of Reed Elsevier Properties Inc., used under license. (£1995 LEXIS-NEXIS, a division of Reed Elsevier Inc. All rights reserved. I UTOIOSI