Nominee Named to Fill Kane County Justice Court Vacancy

NOMINEE NAMED TO FILL KANE COUNTY JUSTICE COURT VACANCY

Kane County, UT— The Kane County Nominating Commission has announced the appointment of Judge Gary L. Johnson to fill the Kane County Justice Court vacancy. The position will replace Judge F. Kirk Heaton who will retire effective June 30, 2016.

Gary Johnson is a fourth generation Kane County native and has resided in Kanab for the majority of his life. Johnson graduated from Kanab High School and received a Bachelor of Arts degree from Southern Utah University. Johnson Served as judge for the Kanab City Justice Court from 1998 until the court was dissolved in 2014. Since then he has served as Judge Pro Tem for the Kane County Justice Court. He also served a two-year term as the tribal Judge for the Kaibab Band of Paiute Indians.

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Free Documentary and Panel Discussion on Supporting Elderly Caregivers

FREE DOCUMENTARY AND PANEL DISCUSSION ON SUPPORTING CAREGIVERS

WHAT: Americans are living longer than ever before. Who will take care of those who can no longer care for themselves? How will the nation adapt to ensure that adequate care can be provided for both the caregivers and for those being cared for? Free documentary film screening of “Caring for Mom and Dad” and panel discussion.

WHEN: Wednesday, April 20 at 6:00 – 8:00 p.m.

WHERE: Provo Recreation Center, 320 W. 500 North, Provo. East entrance, Multi-purpose room.

WHO: Representatives from Utah State Courts, Utah Chapter of the Alzheimer’s Association and the Department of Health.

For information call 801-578-3925 or visit https://www.utcourts.gov/howto/family/gc/

Paralegals Celebrate 20 Year Anniversary

Paralegals Celebrate 20 Year Anniversary with Utah State Bar

The paralegal division of the Utah State Bar is celebrating its 20-year anniversary with the Utah State Bar with a Platinum Anniversary Celebration on Friday, Apr. 22, 2016 at the at the Grand Hall at the Gateway. In recognition of the foresight of the Utah State Bar in creating the paralegal division and of the paralegal division for its accomplishments over the past 20 years, the current board of directors of the division is bringing together members of the legal community to celebrate. The semi-formal evening, presented by Platinum Sponsors Alpine Court Reporting, Christensen & Jensen, Eisenberg Gilchrist & Cutt, Parsons Behle & Latimer, Injury Care Solutions, Strong & Hanni, Trask Britt, 1-800 Contacts, Robert J. Debry & Associates and the Utah State Bar will feature a fun and energetic program with Party Rock Project (Coca-Cola, GE, United Way, NBC, Sharp) and pre-dinner entertainer Mental Mysteries Paul Draper (A&E, History Channel, Hell’s Kitchen, Yale, Apple Cupertino HQ).

The paralegal division was created by the Utah Supreme Court on Apr. 6, 1996 upon petition by the Utah State Bar and the Board of Bar Commissioners. The division was created, in part, to assist the legal community in meeting the legal needs of the public. The ABA adopted this definition of paralegals, “A legal assistant or paralegal is a person, qualified by education, training or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible.”

The paralegal division has been operating for the past 20 years as a section of the Bar and has been consistent in its efforts to serve its members, the Bar, and the community. Our members bring a high level of skill and professionalism to the delivery of legal services and come from all venues of the legal community including law firms, corporations, and government offices. They also participate in a variety of community service projects.

The paralegal division also thanks its Gold Sponsors Cicayda, DepoMax, Kipp and Christian, Intermountain Health Care, Ray Quinney & Nebeker, Litigation Services, Richards Brandt Miller & Nelson, Siegfried & Jensen and the Young Lawyers Division of the Utah State Bar and Silver Sponsors Wasatch Attorney Services, Resilient and the Utah Minority Bar Association. More information about the paralegal division, paralegal profession and purchasing tickets may be found at http://paralegals.utahbar.org/. Members of the Utah State Bar may also login to their member portal to purchase tickets.

Chief Justice Matthew Durrant Elected to Second Term

CHIEF JUSTICE MATTHEW DURRANT ELECTED TO SECOND TERM

Salt Lake City, UT — Utah Supreme Court Justice Matthew B. Durrant has been elected to serve a second term as chief justice by a unanimous vote of his fellow justices.

Justice Durrant was appointed to the Utah Supreme Court in January 2000 by Governor Michael O. Leavitt. He was selected as Chief Justice in 2012 when then Chief Justice Christine Durham stepped down from that role, but chose to stay on the Utah Supreme Court.

Once elected by a vote of the justices, the chief justice serves a four-year term. The chief justice presides over the Utah Supreme Court, as well as the Utah Judicial Council, which oversees the administrative operations of Utah State Courts.

“I feel privileged to work with four colleagues who are not only exemplary jurists, but remarkable human beings. I am deeply honored by the trust they have placed in me,” Durrant said.

Before his appointment to the Utah Supreme Court, Justice Durrant served as a trial judge in the Third Judicial District. He was the founding chair of the Supreme Court’s Professionalism Committee and has chaired the Judicial Council’s Technology Committee. In addition, Justice Durrant chaired the Supreme Court Committee charged with the revision of the Code of Judicial Conduct. He received his law degree from Harvard Law School in 1984, and has taught as an adjunct professor at Brigham Young University’s J. Reuben Clark Law School.

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Judges to Determine Need for Grand Jury

Cedar City, UT — A panel of judges is scheduled to meet on May 12, 2016, to hear testimony to determine if reasonable cause exists to call a grand jury. The meeting will take place at the Cedar City Courthouse, 40 North 100 East, Iron County.

Those wanting to testify before the panel of judges should contact District Court Administrator Debra Moore at (801) 578-3800 by May 2, 2016, to schedule an appointment. If no appointments are scheduled by May 2, the meeting will be canceled without further notice.

Individuals testifying must be prepared to give evidence to support claims that justify calling a grand jury. Controversies between individual parties will not be considered. Individuals who need special accommodations during the hearing must notify the court at least three business days prior to the hearing.

Utah’s Grand Jury Statute requires a panel of judges selected from throughout the state to hold hearings in each judicial district every three years. The purpose of the hearings is to determine if a grand jury needs to be summoned based on evidence of criminal activity. The Grand Jury Panel is comprised of the following judges: Supervising Judge W. Brent West, 2nd District Court; Judge Lynn W. Davis, 4th District Court; Judge Elizabeth Hruby-Mills, 3rd District Court; Judge Eric A. Ludlow, 5th District Court; and Judge Kara Pettit, 3rd District Court.

The Attorney General, a county attorney, district attorney, or special prosecutor appointed under U.C.A. section 77-10a-1 can also present evidence of criminal activity. The panel of judges will hear, in secret, all persons claiming information that justifies calling a grand jury. All individuals appearing before the panel of judges will be placed under oath. If a grand jury is summoned, the jurors will be called from the state-at-large or any judicial district within the state. Additional information is available at http://www.utcourts.gov/cal/grandjury.
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Nominees Announced for Fairview City Justice Court Vacancy

NOMINEES ANNOUNCED FOR FAIRVIEW CITY JUSTICE COURT VACANCY

Fairview, UT—The Sanpete County Nominating Commission has selected three nominees for an upcoming vacancy at the Sanpete County Justice Court. The position will replace Judge Ivo Peterson who will retire effective July 1, 2016.

Following are the nominees followed by place of employment and residence:

  • Matthew Lamar Duffin, JD; Utah Valley University Associate Professor; Spanish Fork
  • LuAnn H Greenwell; Retired fromWells Fargo Bank; Fairview
  • Honorable Judge Mark Kay McIff; Sevier and Piute County Justice Court Judge, Attorney at Law; Richfield

A comment period will be held through April 15, 2016, before a final candidate is selected by the Mayor of Fairview City, Jeff Cox, who has 30 days to make an appointment. The appointment is subject to ratification by the Fairview City Council. The Utah Judicial Council must then certify the appointment. To submit written comments about the candidates, contact Melisse Stiglich, Administrative Office of the Courts, melisses@utcourts.gov.

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Nominees Announced for Second District Commissioner Vacancy

NOMINEES ANNOUNCED FOR SECOND DISTRICT COMMISSIONER VACANCY

Farmington, UT—The Second District Commissioner Nominating Committee has selected four nominees for an upcoming commissioner vacancy. The position will replace David S. Dillon who will retire effective June 30, 2016.

The nominees are:

  • David Benard who currently serves as an assistant attorney general, representing DCFS cases. Benard has been with the Utah Attorney General’s Office since 1999. Prior to his service in the AG’s Office he was an associate and partner with Palmer & Palmer, which changed to Palmer & Benard.
  • Thomas R Morgan who currently serves as a family law private attorney. Prior to 2006 he was with Robert Echard & Associates.
  • Andrew P. Munson who currently serves as a law clerk for US District Court Judge David Nuffer. Munson previously has served as an attorney law clerk and traffic court referee with the Utah State Courts, starting in 2010.
  • Jennifer Spangenberg who currently serves as a guardian ad litem attorney with the Office of Guardian ad Litem. Prior to that, she was with Utah Legal Services, where she served as a staff attorney and managing attorney since 2008.

A comment period will be held through April 19, 2016, before a final candidate is selected. The Utah Judicial Council must then certify the appointment within 45 days of selection. To submit written comments about the candidates, contact Jane Olsen, Administrative Office of the Courts, janeo@utcourts.gov.

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Notice of Proposed Amendment to Utah Rules of Civil Procedure

The Utah Supreme Court invites comments to the following proposed amendment to Utah Rules of Civil Procedure. The comment period expires May 20, 2016.

Summary of Proposed Amendment

Utah Rules of Civil Procedure

Rule 004. The proposed amendment eliminates the authority to serve a defendant any time before trial, see St. Jeor v. Kerr Corporation, 2015 UT 49, ¶2. It also allows for and describes acceptance of the summons and complaint, which replaces the section on waiver of service, and it requires proof of service to include a copy of the summons.

How to View Redline Text of the Proposed Amendment

To see proposed rule amendment and submit comments, click on this link to:  http://www.utcourts.gov/resources/rules/comments/, then click on the rule number.

How to Submit Comments

You can comment and view the comments of others by clicking on the “comments” link associated with each body of rules. It is most efficient to submit comments through the website. After clicking on the comment link, you will be asked for your name, which is required, and your email address which need not be your real address. The comment website is public. Although all comments will be considered, they will not be acknowledged with a response.

After submitting your comment on the webpage, you may get an error message, but your comment has been delivered to a buffer.  I will publish it as soon as possible.

Please submit comments directly through the website.  Should you have any questions, please contact the committee staff person.

Nominees Announced for Second District Commissioner Vacancy

NOMINEES ANNOUNCED FOR SECOND DISTRICT COMMISSIONER VACANCY

Farmington, UT—The Second District Commissioner Nominating Committee has selected four nominees for an upcoming commissioner vacancy. The position will replace David S. Dillon who will retire effective June 30, 2016.

The nominees are:

  • David Benard who currently serves as an assistant attorney general, representing DCFS cases. Benard has been with the Utah Attorney General’s Office since 1999. Prior to his service in the AG’s Office he was an associate and partner with Palmer & Palmer, which changed to Palmer & Benard.
  • Thomas R Morgan who currently serves as a family law private attorney. Prior to 2006 he was with Robert Echard & Associates.
  • Andrew P. Munson who currently serves as a law clerk for US District Court Judge David Nuffer. Munson previously has served as an attorney law clerk and traffic court referee with the Utah State Courts, starting in 2010.
  • Jennifer Spangenberg who currently serves as a guardian ad litem attorney with the Office of Guardian ad Litem. Prior to that, she was with Utah Legal Services, where she served as a staff attorney and managing attorney since 2008.

A comment period will be held through April 19, 2016, before a final candidate is selected. The Utah Judicial Council must then certify the appointment within 45 days of selection. To submit written comments about the candidates, contact Jane Olsen, Administrative Office of the Courts,janeo@utcourts.gov.

Utah Supreme Court to Hear Oral Arguments at State Capitol

UTAH SUPREME COURT TO HEAR ORAL ARGUMENTS AT STATE CAPITOL BUILDING

WHAT:          The Utah Supreme Court periodically holds court sessions in other locations to provide an opportunity to enhance public understanding of the court’s work.

Cases to be heard are as follows:

20150143   In re Baby Q.

20140043 Rueda v. Labor Commission

WHEN:          Tuesday, April 5, 2016, at 10 a.m. to approx. 11:30 a.m.

WHERE:       Utah Supreme Courtroom, Utah State Capitol Building

WHO: Utah Supreme Court Justices: Chief Justice Matthew B. Durrant, Associate Chief Justice Thomas R. Lee, Justice Christine M. Durham, Justice Constandinos Himonas, and Justice John A. Pearce

PHOTOGRAPHY:

One pool still photographer and one pool video camera will be permitted into the court session. To request to be the pool photographer, contact Public Information Officer Geoffrey Fattah at (801) 578-3994 by April 4.

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Ethics Advisory Opinion 16-02

Ethics Advisory Opinion Committee
Opinion Number 16-02
Issued March 23, 2016

Issues

  1. What are the ethical constraints on lawyers settling potential legal malpractice claims or bar complaints with clients?

Opinion

  1. A lawyer may neither request nor agree to limit his or her duties to the administration of justice regarding filing or participating in a bar complaint.
  2. A lawyer may not request that a present or former client refrain from filing or participating in a bar complaint as a condition to settling disputes between the client and the lawyer.
  3. A lawyer may not participate in an agreement that limits the lawyer’s liability for malpractice or prohibits the lawyer from accepting future clients except as permitted by rule or law.[1]

Background

  1. There are three factual situation to consider:
    1. In the context of settling civil litigation a lawyer for one party demands as a condition of settlement that the lawyer for the opposing party agree to forgo filing or participating in a bar complaint.
    2. A lawyer is settling a dispute with a former client. That client has threatened to file a bar complaint which the lawyer believes frivolous.  As a condition of settling the dispute the lawyer wishes to include a provision precluding the former client from filing or participating in a bar complaint.
    3. Finally, in consideration of settlement, a party demands conditions that would limit the lawyer’s ability to take further cases against the settling party or waives a former client’s malpractice claim.

Discussion

  1. Requesting an opposing attorney, an opposing party, or a client or former client to refrain from filing or participating in a bar complaint as a condition of settlement of outstanding disputes violates several of the Rules of Professional Conduct including Rules 8.3 and 8.4.[2] Agreeing to refrain from filing or participating in such a complaint also violates these same rules.
  2. Rule 8.3 of the Rules of Professional Conduct requires that a lawyer who has knowledge[3] “that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial[4] question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects shall[5] inform the appropriate professional authority” (emphasis added). Accordingly, Rule 8.3(a) would preclude a lawyer from agreeing to refrain from filing or participating in a meritorious bar complaint.
  3. Rule 8.4 (a) provides that “it is professional misconduct” for a lawyer to “knowingly assist or induce another” to “violate . . .the Rules of Professional Conduct.” Because it is unethical for an attorney to agree not to report a serious breach of the Rules of Professional conduct, Rule 8.4 (a) would preclude a lawyer from making such a request as his conduct would knowingly “assist or induce” a violation of the other lawyer’s obligation to report under Rule 8.3.
  4. Demands to forego reporting as a condition of settlement would hinder bar authorities from meeting their responsibilities of deterrence of serious matters and the protection of the public. As the Comment to Rule 8.3 notes, “An apparently isolated incident may indicate a pattern of misconduct that only a disciplinary investigation can uncover.”
  5. Simply because the opposing party or client is a lay person without duties to the public and the bar does not lessen the misconduct in attempting to obtain an agreement not to file a complaint. It is “professional misconduct” to “engage in conduct that is prejudicial to the administration of justice.” Rule 8.4(d). Seeking to prevent a client or opposing party from filing or participating in a bar complaint is “prejudicial to the administration of justice.”
  6. (more…)

Supreme Court Committee Vacancies

The Supreme Court is seeking applicants to fill vacancies on two of its standing committees. To apply for appointment, complete an online application at https://www.surveymonkey.com/r/TXBZHJ7. Be sure to click “done” at the end to submit the application, and you will be directed to the court’s main page. Then send by email a brief resume to Tim Shea, Appellate Court Administrator, at tims@utcourts.gov. Adobe PDF files are preferred. Be sure to identify the committees that you are applying for.

Applications and resumes must be received by 5:00 pm Friday, April 22, 2016. The Supreme Court will make the appointments without interviews. All applicants will be notified of the results. The appointments begin July 1.

The online application lists all of the Supreme Court’s standing committees, but there are vacancies only on the following:

Advisory Committee on Rules of Civil Procedure. 2 vacancies. 4-year term.

The committee recommends civil policies and procedures to the Supreme Court after considering suggested amendments from judges, attorneys and the public. The committee usually meets from 4:00 to 6:00 p.m. on the fourth Wednesday of the month from September through May at the Matheson Courthouse. Detailed information about the committee’s work is on the Web at http://www.utcourts.gov/committees/civproc/.

Advisory Committee on Rules of Evidence. 2 vacancies. 4-year term.

The committee is comprised of attorneys and judges with civil and criminal trial experience. The committee meets as needed 5 to 6 times a year to consider new and amended Rules of Evidence, including the application of changes in the Federal Rules of Evidence in Utah state courts and changes necessitated by caselaw. The committee meets in the evening at the Matheson Courthouse.

Justice Court Judge Selection Meeting Planned

Fairview City, UT — The Sanpete County Judicial Nominating Commission has scheduled a meeting on April 4, 2016, to select a candidate for the Fairview City Justice Court to replace Judge Ivo Peterson, who will resign effective July 1, 2016. The commission will begin the meeting at 8:30 a.m. at the Fairview City Center on 85 South State Street in Fairview.

The early portion of the meeting is scheduled for public comment about issues facing the Utah judiciary and refinements or improvements to the system. Public comments will be accepted from 8:30 a.m. to 9:00 a.m. Following the public hearing, the meeting is closed to allow commission members to select a slate of three to five candidates for the vacancy.

Individuals interested in appearing before the commission during the public comment portion of the meeting should contact Melisse Stiglich at (801) 578-3844 to request an appointment. Information on the Justice Court Nominating Commission members is available at www.utcourts.gov.

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Notice of Proposed Amendments to Utah Rules of Criminal Procedure

The Utah Supreme Court invites comments to the following proposed amendments to Utah Rules of Criminal Procedure. The comment period expires May 1, 2016.

Summary of Proposed Amendments

 Utah Rules of Criminal Procedure

Rule 18  The propose amendment replaces the current language on alternate jurors.  The language is borrowed from the federal rules.  The primary motivation behind the change is to eliminate the requirement that alternate jurors be discharged when the jury retires to deliberate.

Rule 38  The proposed amendment creates a process for reinstating the time for appeal in justice courts, consistent with the principles in Manning v. State, 2004 UT App 87.  The amendment creates deadlines for motions and subsequent notices of appeal.

How to View Redline Text of the Proposed Amendment

To see proposed rule amendments and submit comments, click on this link to:  http://www.utcourts.gov/resources/rules/comments/, then click on the rule number.

How to Submit Comments

You can comment and view the comments of others by clicking on the “comments” link associated with each body of rules. It is most efficient to submit comments through the website. After clicking on the comment link, you will be asked for your name, which is required, and your email address which need not be your real address. The comment website is public. Although all comments will be considered, they will not be acknowledged with a response.

After submitting your comment on the webpage, you may get an error message, but your comment has been delivered to a buffer.  I will publish it as soon as possible.

Please submit comments directly through the website or to me. One method of submitting a comment is sufficient. If you email a comment, please list the relevant rule in the message line and include your comment in the message text, not in an attachment.