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January 31, 2006
A Conservative View of the Originalist View of the Bill of Rights
A Conservative View of the Originalist View of the Bill of Rights
by Boyd Kimball Dyer
The "Originalist" view of the Bill of Rights taken in Mr. David McKinney's article "The Tyranny of the Courts" in the last issue of the Utah Bar Journal is not historically accurate. A conservative view puts the Bill of Rights in its true historical context as the first step in its interpretation.
Mr. McKinney asserts that the Framers did not think there were any principles of law antecedent to the Constitution, that the rights it guarantees derive from "the will of the people." Actually, the Framers believed there were antecedent principles, fundamental rights that did not depend on the will of the people or the will of the king.
The premise that there are antecedent principles of law is why the Framers originally omitted any bill of rights from the text of the Constitution. The authors of "The Federalist Papers" defended the omission by arguing that the Constitution is a concession of powers by the people to the national government, and that any rights not expressly conceded are retained by them. Therefore, it is not necessary to expressly protect the retained rights by an express bill of rights. In fact, the Federalist's authors argued that an express bill of rights would be dangerous because it would imply that only the enumerated rights are protected. In short, they warned against the very position now advocated by the "Originalists."1
The premise that there are antecedent rights is also shown by the language of the Declaration of Independence. It uses the phrase "inalienable rights" for the antecedent rights. Inalienable rights do not depend on the will of the people or the will of the king. The Continental Congress was careful to avoid enumerating them. It wrote: "[Americans] are endowed by their Creator with certain Inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness." "Life, Liberty and the Pursuit of Happiness" is pretty open-ended, but that was not open enough for the Continental Congress. It used the words "among these" to make it clear that even "Life, Liberty and the Pursuit of Happiness" do not enumerate all our inalienable rights.
When the first federal congress met in 1789, twelve and a half years after the Declaration of Independence, one of the first things it did was enact the Bill of Rights, the first ten amendments to the Constitution. The first Congress was careful to avoid any implication that the enumerated rights were all there are. The 9th Amendment expressly provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
The historical reality is that in the 9th Amendment the Framers expressly rejected the Originalist view that the Constitution enumerates all the rights of individuals as against the federal government. In reality, the "Originalist" view that there are no rights antecedent to the Constitution and the Bill of Rights originates with the Originalists, not with the Framers.
A conservative position is based on the historic reality that the Framers understood that the Constitution and the Bill of Rights is not an enumeration of all the rights individuals have with respect to the national government. There are "others retained by the people" that the Framers left to the courts to articulate. The Framers intended the courts to have the power that the Originalists deny - the power to find new rights. Why?
The Framers did not trust the national government. In the Constitution and the Bill of Rights, they balanced the power of the national government as against the rights of the states and individual Americans. The great innovation of the Constitution was the creation of dual citizenship for Americans. An American was to be both an American and, for example, a Virginian, owing allegiance to both sovereigns. This dual allegiance could only work if the national government remained within its proper sphere. If the Constitution prohibited the courts from finding new rights, there would be no protection against a future national government enacting laws that technically stayed within the letter of its enumerated powers but upset the balance the Framers had struck.
Although a conservative view is based on the historic reality that the Constitution reflects a set of principles and does not enumerate all the rights or individuals as against the federal government, it rejects judicial activism in the sense of finding new rights that upset the Constitutional balance. For example, from a conservative viewpoint Roe v. Wade2 was wrong. The decision struck down a state law regulating abortions on the basis of the 14th Amendment's due process clause. In effect the decision balances the right of the unborn child to life against the rights of the mother over her own person. From a conservative view, this balance is for each state to make, not for the national government. It was never the purpose of the post revolutionary war Framers of the Bill of Rights (or of the post civil war framers of the 14th Amendment) to shift authority over birth, marriage, the family, and the end of life to the federal judiciary through the due process clause.
From a conservative viewpoint, the flaw in Roe v. Wade is not that the new right is not expressed in the Constitution. Rather, the flaw is that the new right upsets the Constitutional balance. In effect, the federal judiciary enacted a law by judicial decision that the federal legislature could not enact by legislation. From a conservative viewpoint, only the preservation of the Constitutional balance justifies a court articulating a new Constitutional right. Or, perhaps it is not really a new right at all. It is a new protection for an old right.
The aftermath of Roe v. Wade shows the illegitimacy of the decision. The debate today is whether pro-life or pro-choice nominees should be appointed to the Supreme Court, as though they were candidates for political office. If the Supreme Court had upheld the right of the states to deal with the question of when life begins, the debate today would be in the state legislatures, i.e., political debates over a political question in a political forum conducted by politicians.
A conservative view is not necessarily pro-life or pro-choice. The conservative criticism of Roe v. Wade is not based on the premise that a foetus is (or is not) a living person. It is based on the premise that the Constitution is a balance of powers and rights that the courts should respect and preserve.
A second case that illustrates the difference between a conservative and the Originalist position is pending in the Supreme Court today in Gonzales v. Oregon.3 The issue is whether the federal executive can prevent Oregon doctors from prescribing drugs that are FDA approved for the treatment of pain for the purpose of helping patients commit suicide under Oregon's assisted suicide law. The basis of the federal executive's claim of authority is, of course, the Commerce Clause. From an Originalist viewpoint, the federal executive must prevail. There is no right enumerated in the Constitution to commit suicide or to prescribe drugs to commit suicide. But, from a conservative view, the Secretary is using the Commerce Clause to defeat the balance struck by the Framers that left matters of birth, marriage, family and ending of life to the states. What the federal government is doing in Gonzales v. Oregon is exactly what the Framers feared, exactly why they enacted the 9th Amendment. The Secretary is staying within the letter of the national government's enumerated powers but upsetting the Constitutional balance. From a conservative point of view, it would be proper judicial activism for the Supreme Court to hold for Oregon on the basis of an unenumerated right.
In any event, the challenge for the Originalists is to reconcile the words of the 9th Amendment that there are other rights "retained by the people" with their claim that the Framers "adopted certain language stating the form and limits of power of the new government, and enumerating certain rights of the people," to quote Mr. McKinney.
Perhaps it can be done. At the conclusion of the Gilbert and Sullivan operetta "Iolanthe," the female chorus, who are fairies, have fallen in love with the male chorus, who are wastrel lords who love the fairies and want to marry and reform. The impediment is the law that any fairy who marries a mortal must die. The Lord Chancellor asks for the text and says he will deal with it. "Every fairy shall die who doesn't marry a mortal." Final chorus. Curtain.
1. The Federalist, No. 84 (Hamilton).
2. 410 U.S. 113 (1973).
3. No. 04-823, opinion below 368 F.3d 1118 (9th Cir. 2004) sub nom. Oregon v. Ashcroft.
Posted by BarStaff at 02:38 PM
January 25, 2006
The Dangers of Overreacting to "Judicial Activism"
The Dangers of Overreacting to "Judicial Activism"
by Thomas L. Murphy
According to the guidelines for "Submission of Articles for the Utah Bar Journal," the publication "seeks articles of practical interest to attorneys." For the most part, I find the articles in the Utah Bar Journal interesting and helpful. However, a recent article published, "The Tyranny of the Courts," by David R. McKinney, Esq., is, in my opinion, an expression of political belief.
That federal judicial nominations are political in nature is hardly news, although such nominations invariably raise the political issue of "judicial activism." Even in states where elected judges generally do not decide political questions, battles frequently occur over judicial office. The emergence of tort reform as a viable political issue proves that even the common-law system of civil justice is not immune from politics.
Mr. McKinney begins his article by using a non-legal phrase, "judicial activism," which clearly suffers from a lack of consensus as to its definition. However, he is quick to polarize the issue, by referring to "those in favor of judicial activism." Who are "those?" The authors decried by Judge Bork, Justice Scalia and other members of the Federalist Society? The failure of the author to define a critical phrase, "judicial activism," is fatal to his thesis because, as with any phrase, it can mean whatever the writer wants it to mean.
Contextually, the judicial activism outlined in Mr. McKinney's article appears to refer to judges who have interpreted the Constitution in a manner offensive to political conservatives. The purpose of this article is to illustrate the problems inherent in defining judicial activism, how amending the constitution in the manner suggested by Mr. McKinney is unworkable and will have potentially disastrous consequences, and the dangers of labeling judicial review as "tyranny."
Articulating the Problem and Defining "Judicial Activism"
One reasonable and quantifiable measure of a judge's activist tendencies was identified by Professor Paul Gewirtz of Yale Law School: How often has each justice on the Supreme Court of the United States voted to strike down a law passed by Congress? "So Who Are the Activists?" New York Times, July 6, 2005. After examining the sixty-four (64) Congressional provisions upheld or struck down, it was found that Justice Clarence Thomas, appointed by President George H.W. Bush, voted to invalidate 65.63% of those laws, more than any other justice. He was followed by Justices Kennedy (64.06%), Scalia (56.25%) and Rehnquist (46.88%).
Least likely to invalidate legislation were two appointees of President Bill Clinton - Justices Stephen Breyer (28.13%) and Ruth Bader Ginsburg (39.06%). Why is it, then, that the judges least likely to vote to overturn Congressional statutes are generally considered the most activist? By this objective measure, it appears that judges most would consider politically conservative are among the most activist.
Noticeably absent from Mr. McKinney's article is a specific analysis of the problem as articulated. Divorcing the language of the Constitution from "an idea, a set of principles, a penumbra or an emanation" was not intended by the framers of the Constitution and is contrary to the idea of a democratic society.
That this approach is politically motivated is obvious from the comment that the federal courts "expand these rights beyond the fair reach of the text." Who decides what is the fair reach? A study of decades of constitutional law illustrates that the Supreme Court is not "creating new rights," but enforcing those rights guaranteed by the Bill of Rights. As with use of the word tyranny, characterizing a well-reasoned body of jurisprudence as the "creation" of rights is pejorative, and is factually and legally incorrect.
The Constitution cannot be viewed in a vacuum and there are many rights we possessed when this country was founded that are older than the Bill of Rights. In the landmark case of Griswold v. Connecticut, 381 U.S. 479 (1965), for example, Justice Douglas wrote that "we deal with a right of privacy older than the Bill of Rights." 381 U.S. at 485 (emphasis added). Of a practice neither mentioned nor implied in the Constitution, Justice Warren wrote, "Marriage is one of the basic civil rights of man fundamental to our very existence and survival." Loving v. Virginia, 388 U.S. 1 (1967) (emphasis added).
Concluding his assessment of the condition, Mr. McKinney states that the Supreme Court has, "in selected areas of law," enforced a politicized interpretation of the Constitution. What areas? He refers to "astonishingly unsupported decisions." What decisions? I suppose if one is looking for a clearly astonishing and unsupported political case of judicial activism, she or he might consider Bush v. Gore, 531 U.S. 98 (2000).
I find it interesting and ironic that, while attempting to divorce the language of the Constitution from just about everything, Mr. McKinney can unilaterally label the Constitution as "positive law" and mandate a framework in which it is to be interpreted. If the framers of the Constitution had intended the document to be interpreted in a manner different than the common-law principles used at the time, then one would expect that they would have so stated in the document.
However, suggesting that the Constitution is to be interpreted in one rigid manner is also judicial activism of a different strain. It is the type of judicial activism guaranteed to perpetuate the denial of individual rights, as history has taught.
The Proposed "Constitutional Solution" is Unworkable and Turns Back the Clock on Years of Constitutional Progress
Mr. McKinney proposes a drastic remedy for this amorphous and ill-defined problem - amending the United States Constitution. Rather than a specific textual analysis of the proposed amendment, I would like to address how the amendment would work within the framework and context of decades of Supreme Court decisions and jurisprudence.
Our analysis begins with the plain language of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and petition the Government for a redress of grievances.
The "plain language" of the First Amendment is absolute: Congress may not make any law which abridges the "freedom of speech." Under Mr. McKinney's proposed constitutional amendment, speech which incites violence or published pornography would be completely unregulated.
Consider the holding of Schenck v. United States, 249 U.S. 47 (1919). In a what some might now argue was a blatant act of judicial activism, Justice Holmes wrote an opinion upholding a law which clearly violated the First AmendmentÕs absolute and unambiguous guarantee of free speech and press. Without citation to any authority, Justice Holmes wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
249 U.S. at 52. Continuing this unabated activism, he wrote that the question in any given case was whether the words used were of such a nature as to "create a clear and present danger." Id.
In present days, however, we hear little about this ongoing aspect of judicial activism. Why? Because it is judicial activism with which many political conservatives would agree. The same might be said for regulation of obscenity and broadcasting.
The Second Amendment contains similarly absolute language:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Notwithstanding any debate over the meaning of the first clause of this amendment, the plain language of the second clause, once again, is absolute. No conditions or qualifications are placed on the "right of the people to keep and bear arms." Thus, under the proposed constitutional amendment, a fifteen year old "Crips" gang member in southern California is permitted to possess and carry a fully automatic AK-47 assault weapon.
Regulation of interracial marriage would certainly be permitted. In Loving v. Virginia, supra, the State argued that, when the Fourteenth Amendment was adopted, any intent was not to make state miscegenation laws unconstitutional. 388 U.S. at 9. Rejecting this argument, the Court wrote that it did not pertain to the "broader, organic purpose of a constitutional amendment." Id. After a thorough review of the legislative intent of the Fourteenth Amendment, the Court found that the historical sources were, at best, inconclusive.
Under the proposed amendment, there would not be any constitutional limitation on state regulation of the right to marry, because the right is not mentioned in the plain language of the Constitution. The same is probably true of the right to travel. See, e.g., Foster v. Dulles, 357 U.S. 116 (1958) (recognizing right to travel as part of liberty interest recognized under Fifth Amendment).
The notion that these precedents are immune from immediate reach under the principle of stare decisis is hard to swallow, although it is ironic that, while decrying the use of common-law principles of statutory interpretation on the one hand, Mr. McKinney retreats to the common-law principle of stare decisis on the other. The Constitution does not contain any plain language requiring courts to follow precedent.
If any conclusions may be reached from an analysis of the Bill of Rights, it is perhaps that the framers of those broad statements intended the Constitution to be a living, breathing document designed to adapt to the ever-changing conditions in which we live. While the Constitution is, simply put, words, those words cannot be interpreted in the vacuum Mr. McKinney suggests. Application of the plain language doctrine to the Bill of Rights would have, and has had, exceptionally disastrous consequences.
Another blatant act of judicial activism is Brown v. Board of Education, 347 U.S. 483 (1954). Mr. McKinney's proposed constitutional amendment mandates that courts may not interpret laws "in any manner contrary to its plain meaning, as generally understood at the time of enactment." The Supreme Court expressly rejected this approach in Brown, with Justice Warren writing, "we cannot turn the clock back to 1868 when the [Fourteenth] Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written." 347 U.S. at 492. Instead, the Court said:
We must consider public education in the light of its full development and its present place in American life throughout the Nation.
347 U.S. at 492-93. As with Justice Holmes' opinion in Schenck, there was no citation to any authority to justify this analysis.
Are there any among us prepared to turn back the clock on basic constitutional issues, long decided, because of the current political tide? Probably not. Brown was a blatant and shameless act of judicial activism, for which all Americans should be thankful. See, e.g., Colbert I. King, "Judicial Activism to Be Thankful For," Washington Post, Oct. 29, 2005, A23. Thanks to judicial activism, people of all colors can sit anywhere on the bus, people are free to marry without regard to race, evidence obtained as a result of police misconduct is inadmissible in court proceedings, persons accused of crimes are provided with a lawyer if they cannot afford one and citizens are guaranteed rights to the fullest extent possible.
If judicial power is restricted, any power removed will necessarily revert to the federal and state legislatures. Our constitutional rights, at that point, would depend upon elected politicians for their protection, as the courts would be mandated to uphold those laws. Instead of the consistency provided in our current scheme, our rights would necessarily depend, at any given time, on the majority ruling party. Indeed, I cannot recall hearing about the evils of judicial activism when the current majority party was the minority party.
The Dangers of Labeling Judicial Review as Tyranny
Finally, I am compelled to comment on the highly pejorative nature of Mr. McKinney's primary thesis. He immediately labels the judicial system as tyranny and makes the outrageous claims that "tyranny is eroding democracy" and replacing it with "judicial oligarchy." Apparently, that the judiciary does not meet a definition chosen from Funk & Wagnall's places it in the category of the tyrants of ancient Greece and the despots of the modern world.
The word tyrant comes from the Greek tyrannos, and means a usurper of rightful power, possessing absolute power and ruling by tyranny. Instead of using this traditional definition, or a common definition, Mr. McKinney uses and misconstrues a particular definition to support his argument. The judiciary does not have "absolute power," as that term is used to define tyranny. And the "legal warrant" of which the definition speaks is clearly granted to the federal judiciary by Article III.
A better question is why Mr. McKinney and others choose to label our judges as tyrants.
The current connotation of a tyrant is that of a despot, such as Saddam Hussein, or a government ruled by a single leader with absolute authority. Tyranny suggests a government with absolute authority over its citizens. Defining the judiciary with these characteristics is quite telling; Mr. McKinney is not really making an argument, but seeking an emotional response.
Equivocating the judiciary with the political concept of tyranny is not only factually incorrect, but is a fear appeal designed to last long enough to permit the ruling party to effectuate an overly broad and restrictive response. Ironically, the use of such fear appeals is used to justify tyrannical rule. A quick Internet search of the term "judicial tyranny" quickly leads the reader to articles by Executive Director of the American Conservative Union, articles in the New American, the web site of Focus on the Family, and articles by Armstrong Williams and Ann Coulter, all very conservative political organizations and writers.
It is shocking to suggest that we live under tyrannical rule; we do not. Judicial activism is not a form of tyranny, but a pejorative label used to distinguish judges and judicial opinions with which we do not agree. It is neither a philosophical concept nor a legal concept, but a non-legal political concept that changes with the winds.
The suggestion that those who favor a "continually expanding Constitution simply do not like, or do not trust, democracy," is offensive and belies the political nature of Mr. McKinney's thesis. The clear implication is that those who favor the present system are, apparently, undemocractic. For the reasons outlined in this article, I decline to make the same conclusion.
In a democratic society, we cannot maintain a system which establishes and recognizes basic rights, but then allows certain rights to be discarded or altered based upon the whims of the ruling party. You cannot pick and choose fundamental rights in a free society. While the concept of judicial tyranny is not often seen in the literature, the concept of tyranny of the majority has long been recognized contrary to democracy.
Posted by BarStaff at 12:53 PM
January 24, 2006
Lessons from Kindergarten
Lessons from Kindergarten
by Justice Jill N. Parrish
EDITOR'S NOTE: Justice Parrish delivered these remarks on October 12, 2005 at the Admissions Ceremony for new inductees to the Utah State Bar.
Congratulations on passing the bar exam! You now have permission to practice what you've spent the last three years learning. You've proven that you can retain material not only long enough to pass a final exam, but long enough to convince the Bar Examiners (and all of us) that you are, in fact, qualified to practice law.
While your knowledge of the law has qualified you for admission to the bar, whether you will actually succeed in the legal profession may not depend on what you learned in law school. In his well-known book All I Really Need to Know I Learned in Kindergarten, Robert Fulghum writes that true wisdom is found, not "at the top of the graduate-school mountain," but rather in "the sandpile at Sunday School."1 The book was first published almost two decades ago, about the time I was graduating from law school. Based on my observation over those two decades, I believe Mr. Fulghum is right.
You've all proven that you're capable of learning the law. What will determine whether you succeed in the practice will not be your knowledge of black-letter law, but rather those other characteristics and qualities that you bring to bear in your professional life - the really important things, the lessons you learned in Kindergarten. I've selected five of those lessons that I'd like to touch on.
Share:
One of the first things we learned in Kindergarten was to Share.2 I can't overemphasize the importance of this principle. It's very easy to forget those who are not as fortunate as we are. But there are many in society who lack the gifts and opportunities that we have enjoyed. We need to remember that the purpose of law practice is not simply to make money, although that may be one of its pleasant side effects. Because we are trained to understand, interpret and apply the law, we have the opportunity, if not the obligation, to share those skills with others.
Unfortunately, the prevalence of the "billable hour" has led to an insidious desire for lawyers to wring every last dollar out of the legal profession. This desire infects lawyers not only in large firms where they are required to meet ever-increasing billable requirements, but also lawyers in other settings. I have a friend who left big-firm practice for the flexibility of his own small firm. When he complained that he was working harder than ever, I asked why. He explained that he was now too close to the dollar. Because every extra dollar that came into his firm made its way to his pocket, the pressure to keep billing was even more intense.
My colleague, Justice Matthew Durrant, observed in a recent speech that it is not the first dollar, but the last dollar, that is so insidious. How refreshing it is to see those in the profession who have decided that the last dollar is simply not worth its cost. As Justice Durrant noted, "there is much freedom that comes from being willing to walk away from that last dollar - freedom in the legal career we choose, in the clients we accept, in the advice we give" and in the ability that it gives us to assist those who are less fortunate.
Play Fair:
Another lesson we all learned in Kindergarten was to "play fair."3 Playing fair requires integrity. And integrity is one of the most important qualities a lawyer can have. A lawyer with true integrity is one who avoids the pitfalls of rationalization and compartmentalization.
Rationalization should not be confused with rational decision-making. Ethicist Michael Josephson distinguishes rationalization from rational decision-making by focusing on when the reasoning takes place.
With a rational decision, reasoning precedes and leads to a conclusion. With rationalization, we reason only to fabricate a good sounding justification for conclusions we've already reached or to excuse conduct that's already occurred... Lawyers are often hired to rationalize on behalf of clients. And if we are not careful, we soon begin to lose our ability to distinguish between real reasons and fabrications. We begin to think that whatever works is right simply because it works.4
Don't fall into this trap. Avoid rationalization.
Falling prey to the temptation of compartmentalization is equally dangerous. The law is not a game where you should feel comfortable doing whatever you can get away with. There is no rule excusing immoral or unethical behavior just because it takes place in the context of law practice. "You can't have one set of ethics for your business life and another for your private life."5 If you are a dishonest lawyer, you are a dishonest person. To have true integrity, you must be honest in all of your dealings.
Practice with Professionalism and Civility:
Our Kindergarten teachers taught us not to "hit people" and to "say you're sorry when you hurt somebody."6 These lessons also apply to the practice of law. They dictate that we practice law with professionalism and civility.
Unfortunately, there are many lawyers who have yet to learn these lessons. Lawyers who practice in an uncivil manner lead many to believe that lawyers are skilled at generating, rather than resolving, disputes. No doubt, there are lawyers who are worthy of this criticism. But I believe that such lawyers comprise a small minority of our bar, a minority I hope none of you will join.
The most important decision you face at this juncture in your career is what kind of lawyer you want to be. And I'm not speaking in terms of selecting an area of practice, but rather, selecting your practice style. Some lawyers believe that to be effective, they can't be civil. They need to be the big bully on the playground. They engage in personal insults and are needlessly confrontational. Please don't buy into the myth that these characteristics make a lawyer successful.
Successful lawyers who engage in these unpleasant tactics succeed in spite of them - not because of them. And those lawyers who succeed on the highest level do not use these unpleasant tactics at all. I recently asked my colleagues to identify those lawyers whom they would classify as the giants of our bar. To a person, the lawyers they identified were men and women who are consummate professionals - lawyers who treat others with dignity, with courtesy and with respect. They maintain their self-control even in the face of undignified or unprofessional attacks. Lawyers who practice in this way are believed and respected. Other lawyers want to refer cases to them, and the judges they appear before trust and believe them. These are the lawyers whom I hope you will emulate.
Be Responsible and Work Hard:
Another important lesson we learned in Kindergarten was to "clean up [our] own mess."7 When applied to the practice of law, this lesson suggests that we work hard and take responsibility for our own actions.
Successful lawyers are those who are well prepared and who take pride in their work. If you agree to take on a matter for a client, you owe it to that client to work hard and to present the client's case to the very best of your ability.
On the other hand, if you've adequately prepared and done your best, don't beat yourself up when you make a mistake. I use the term "when" advisedly because you will make mistakes. I certainly have, and I've been around long enough to know that all lawyers do. When you do make a mistake remember that it's always best to admit mistakes promptly, when it may be possible to repair or minimize any damage. This applies to your dealings with clients, opposing counsel, partners, your support staff and, yes, your dealings with the courts.
Acknowledge that while there are many things in life you canÕt control, you can always control your own attitude. While you may not be able to avoid unpleasant situations, you can choose your reaction to them. Choose to make them learning experiences. You will be a better lawyer and a stronger person as a result.
Maintain A Sense of Perspective:
The fifth thing we learned in Kindergarten was to "learn some and think some and draw and paint and sing and dance and play and work every day some."8 The life lesson to be drawn from this experience is to keep a sense of perspective and find balance in your life.
Your life should involve more than the practice of law. I hope that you will find the practice of law to be rewarding. But there is more to life than your work. Life is short, and I would be willing to wager that none of you will ever regret time spent with family and friends. Unfortunately, I know all too many lawyers who are so engrossed in the practice of law that they miss out on the really important things in life - the family vacations, little league baseball games, family reunions and romantic evenings with a spouse.
Please don't neglect your families. Your children will grow up all too quickly. And once the opportunities to become involved in their lives have passed, they cannot be retrieved. If you find that you're associating with colleagues and clients who make it difficult for you to maintain balance in your life, I suggest that you take a good, hard look at your situation. Perhaps a change is in order.
Remember that "it's more important to be a good person than a good lawyer."9 If there is ever a conflict between the two, "choose to be a good person."10 I submit, however, that in virtually all instances, there will be no conflict because, in the end, good lawyers are basically good people.
Again, congratulations and welcome to the bar. We look forward to seeing great things from all of you.
1. Robert Fulghum, All I Really Need to Know I Learned in Kindergarten 6 (Villard Books 1989) (1986).
2. Id.
3. Id.
4. Michael Josephson, Josephson Institute of Ethics, Eight Insights for New Lawyers 3 (2001), available at http://www.josephsoninstitute.org/speeches-papers/MJ-Pepperdine-commencement-051801.htm.
5. Id. at 5.
6. Fulghum at 6.
7. Id.
8. Id. at 6-7.
9. Josephson at 5.
10. Id.
Posted by BarStaff at 12:31 PM
Standard 14 - Professional Courtesy
Standard 14 - Professional Courtesy
by Bonnie Mitchell
"Lawyers shall advise their clients that they reserve the right to determine whether to grant accommodations to other counsel in all matters not directly affecting the merits of the cause or prejudicing the client's right, such as extensions of time, continuances, adjournments, and admissions of facts. Lawyers shall agree to reasonable requests for extension of time and waiver of procedural formalities when doing so will not adversely affect their clients' legitimate rights. Lawyers shall never request an extension of time solely for the purpose of delay or to obtain a tactical advantage."
As a veteran litigator recently told me, "it is the rare client who doesn't expect their lawyer to use every trick in the book on their behalf." While a lawyer's primary duty is to the client, most clients don't know, or overlook, that their lawyer's ability to represent them is contingent on obligations to play by certain rules of procedure and professional responsibility. Also, most clients and some attorneys don't know, or overlook, that lawyers belong to a profession that has a very long tradition of dignity, integrity and civility when members interact with one another.
When it approved Standard 14, the Utah Supreme Court made it clear that if it doesn't affect the merits of the case, lawyers don't need their client's permission to extend professional courtesy, and lawyers shall accommodate reasonable requests. In nearly all instances, a client's demand that you "play hardball" or "show 'em you're tough" or "make her sweat" is beyond the merits of the case. The same is true when lawyers choose to use procedure for tactical advantage or spurn reasonable requests for accommodation just to play "gotcha."
At both the "U" and the "Y" law schools, students are exposed right away to the Standards of Professionalism and Civility. Because most have never seen lawyering in the "real world," we tell students that it is a mistake to choose a model for good lawyering based on what they see on the plasma or big screen. Many students are surprised to learn that real judges hate it when lawyers engage in gamesmanship over undisputed facts, or play hide and seek if asked to grant an extension.
It is my experience that law students like to discuss traits of good lawyering and concepts of professionalism and civility. During those discussions, students not only talk about obvious instances of bad behavior, but also explore lines of conduct that aren't so bright. Students seem to understand pretty easily that there may be conflicting duties at times and tough decisions to make. They also accept that reasonable minds can differ when interpreting what might be a "reasonable request." We suggest that a good time for them to talk to clients about the issues in Standard 14 is when they are forming the attorney/client relationship and fee agreement. Right up front, attorneys should discuss their professional obligations and duties and let clients know who is in charge of what decisions. Students believe that most clients, when fully informed, would agree that they are not in the best position to understand the broader legal market, court scheduling, ongoing relationships that lawyers have with judges and other lawyers, and the downside - even to their own case - of incivility. If not, students agree that this would be the best time to discover that.
Nearly all law students say they will commit to incorporate high standards of professionalism and civility when they enter the "real world." Unfortunately, far too many report that once they enter that world, they find they are working for or interacting with an attorney whose interpersonal skills aren't so civil. Or maybe they are working for a lawyer whose standard of practice is to use every trick in the book. Confused and even afraid some times, these law clerks or newly minted lawyers often ask me what they should do. I often don't have a good answer.
Posted by BarStaff at 12:02 PM
Commission Highlights
Commission Highlights
During its regularly scheduled meeting of October 7, 2005, which was held in Salt Lake City, Utah, the Board of Bar Commissioners received the following reports and took the actions indicated.
1. Scott Sabey reminded Commissioners of the Leadership Conference to be held October 26, 2005 at the Little America. All those holding leadership positions in bar sections, committees and local bars are invited.
2. David Bird reminded the Commission of the Minority Bar "First 50" Dinner on October 15, 2005. David also reminded everyone about the ABA Mid Year Conference Feb 8-13, 2006 in Chicago and the ABA Annual Conference Aug. 3-8, 2006 in Hawaii.
3. David Bird reported that Lori Nelson will be the chair of the Governmental Relations sub-committee. It was noted that to make the committee more efficient, Lori will be using mostly Bar members and utilizing lawyer members of the Commission for consultations, resources, ideas, etc.
4. David Bird reported on the last Judicial Council meeting held on September 6, 2005. He said the Judicial Conduct Commission receives about 100 complaints a year and moves forward on approximately 15% of those complaints after investigated. Last year, one complaint resulted in a reprimand, 12 matters are ongoing and two resulted in dismissals with a warning. David reports that there is a requirement that a panel of judges hold hearings every three years in every judicial district to determine if a grand jury needs to be convened. He said that in the past 15 years, only three grand juries have convened. David also reported that Utah has led the way with regard to "problem solving court approval process" by holding drug courts, domestic violence courts, etc. He observed that these forums remove groups out of the judicial system and into forums where problems can be more efficiently resolved. David concluded by reporting on the judicial compensation issue. Two issues have been raised: (1) how much money do judges deserve; and (2) how much can they get? There is currently a commission that is analyzing and making recommendations with regards to judicial compensation.
5. David Hamilton gave a brief summary of the Client Security Fund Committee's work. He stated that claim amounts are limited to $20,000 per individual claim and $50,000 maximum paid out for any attorney per year. He said the fund has to remain above $100,000 so next year, the Bar may have to raise the licensing assessment. He noted that in reinstatement cases, paying restitution to the fund is generally a requirement for reinstatement. Claims totaling $43,200 were approved by the Commission, $119,800 in the fund.
6. Steve Owens reported on the Lawyers Assistance Program. Steve summarized the CommissionÕs idea to evaluate LHL to determine whether the Bar should continue the present model or move in a different direction to help lawyers in crisis. Steve stated that the committee intends no criticism towards LHL nor will recommend how much to fund. The Committee narrowed the EAP entities to four and recommended that each should make a presentation to the Bar Commission. The LHL component would be an auxiliary provider and the EAP would be the primary provider. David Bird will appoint a committee to move forward with the focus on EAP and LHL as secondary.
7. The Commission reviewed the 2004-05 audit report. The motion to adopt the audit passed with none opposed.
8. The Commission approved the creation of a Law Student Division. The motion passed with none opposed.
9. The Hon. Richard C. Howe was selected to receive the 2005 Professionalism Award, the Reverend Mr. France A. Davis was selected to receive the Community Member award and Su J. Chon was selected for the Pro Bono Attorney of the Year award. These awards will be presented at the Fall Forum.
10. Discussion was held regarding the new bankruptcy reform laws. The motion to send a letter to Senator Hatch and Bennett on behalf of the Utah State Bar on this issue was unanimously approved by the Commission.
11. The motion to change the name of the "Needs of Elderly Committee" to the "Committee on Law and Aging" passed unanimously.
12. The motion to approve the new Bar admittees passed unanimous.
13. Katherine Fox discussed a current unauthorized practice of law complaint. The Commission approved pursuing formal action for a permanent injunction to enjoin the non-lawyer from further engaging in the practice of law.
14. Discussion was held on Commission travel reimbursement process.
15. Discussion was held on the ADR section proposed bylaw changes and name change. The motion passed unanimouly to adopt the bylaw changes and the name change to Dispute Resolution Section.
16. Paul Moxley reported on the ABA Summary Report.
17. Steve Waterman reported on the Admission's Committee House Counsel Rule. The Commission voted to approve the proposed advisory rule and file a petition with the Utah Supreme Court for final adoption.
18. The Commission discussed the criteria for the "Lifetime Service to Bar Award" in celebration of the 75th anniversary of the Bar in 2006.
A full text of minutes of this and other meetings of the Bar Commission is available for inspection at the office of the Executive Director.
Posted by BarStaff at 11:54 AM
2006 Spring Convention Awards
2006 Spring Convention Awards
The Board of Bar Commissioners is seeking applications for two Bar awards to be given at the 2006 Spring Convention. These awards honor publicly those whose professionalism, public service, and public dedication have significantly enhanced the administration of justice, the delivery of legal services, and the improvement of the profession. Award applications must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, January 16, 2006.
1. Dorathy Merrill Brothers Award - For the Advancement of Women in the Legal Profession.
2. Raymond S. Uno Award - For the Advancement of Minorities in the Legal Profession.
Posted by BarStaff at 11:45 AM
2006 Annual Convention Awards
2006 Annual Convention Awards
The Board of Bar Commissioners is seeking nominations for the 2006 Annual Convention Awards. These awards have a long history of honoring publicly those whose professionalism, public service and personal dedication have significantly enhanced the administration of justice, the delivery of legal services and the building up of the profession. Your award nominations must be submitted in writing to Maud Thurman, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Friday, April 21, 2006. The award categories include:
* Judge of the Year
* Distinguished Lawyer of the Year
* Distinguished Section/Committee of the year
Posted by BarStaff at 11:44 AM
January 23, 2006
Notice of Election of Bar Commissioners
Notice of Election of Bar Commissioners
Third, Fourth & Fifth Divisions
Pursuant to the Rules of Integration and Management of the Utah State Bar, nominations to the office of Bar Commission are hereby solicited for two members from the Third Division, one member from the Fourth Division and one member from the Fifth Division, each to serve a three-year term. To be eligible for the office of Commissioner from a division, the nominee's mailing address must be in that division as shown by the records of the Bar.
Applicants must be nominated by a written petition of ten or more members of the Bar in good standing and residing in their respective Division. Nominating petitions may be obtained from the Bar office on or after December 1, and completed petitions must be received no later than February 10. Ballots will be mailed on or about April 1 with balloting to be completed and ballots received by the Bar office by 5:00 p.m. May 1. Ballots will be counted on May 2.
In order to reduce out-of-pocket costs and encourage candidates, the Bar will provide the following services at no cost.
1. Space for up to a 200-word campaign message plus a photograph in the March/April issue of the Utah Bar Journal. The space may be used for biographical information, platform or other election promotion. Campaign messages for the March/April Bar Journal publications are due along with completed petitions, two photographs, and a short biographical sketch no later than February 10.
2. A set of mailing labels for candidates who wish to send a personalized letter to the lawyers in their division.
3. The Bar will insert a one-page letter from the candidates into the ballot mailer. Candidates would be responsible for delivering to the Bar no later than March 15 enough copies of letters for all attorneys in their division. (Call Bar office for count in your respective division.)
If you have any questions concerning this procedure, please contact John C. Baldwin at the Bar Office, 531-9077.
NOTE: According to the Rules of Integration and Management, residence is interpreted to be the mailing address according to the Bar's records.
Posted by BarStaff at 04:59 PM
2005 Fall Forum Awards
2005 Fall Forum Awards
Reverend Mr. France A. Davis
Distinguished Community Member of the Year
James S. Jardine
Distinguished Lawyer of the Year
Su J. Chon
Pro Bono Lawyer of the Year
Hon. Richard C. Howe
Professionalism
Posted by BarStaff at 04:58 PM
Pro Bono Honor Roll
Pro Bono Honor Roll
Stanley Adams
Richard Armstrong
Lauren Barros
M. Paige Benjamin
James Blakesley
Mary Brown
Robert Cosson
Martin Custen
Jerald Engstrom
Dana Farmer
Angela Fonnesbeck
Samuel Gardiner
Nathan Hult
Jonathan Jaussi
Chase Kimball
H. Ralph Klemm
D. David Lambert
Deanna Lasker-Warden
Michelle Lesue
Robert Lovell
Vinh Ly
Ramona Mann
Daniel McKay
Suzanne Marychild
Stephen Mayfield
Sam Meziani
Russell Minas
William Morrison
Stephen Oda
Lester Perry
Candice Ragsdale-Pollock
Chen Shen
Emily Smoak
Kirsten Sparks
Steven Stewart
Sidney Unrau
Utah Legal Services and the Utah State Bar wish to thank these attorneys for their time and willingness to help those in need. Call Brenda Teig at (801) 924-3376 to volunteer.
Posted by BarStaff at 04:57 PM
Appointments
Appointments
The Bar appoints or nominates for appointments to various state boards and commissions each year. The following is a listing of positions which will become vacant in the next twelve months. If you are interested in being considered for one or more of these positions, please send a letter of interest and resume to John C. Baldwin, Utah State Bar, 645 South 200 East, Salt Lake City UT 84111 or e-mail john.baldwin@utahbar.org.
Term Ends
ABA House of Delegates Representative
Charles R. Brown July 1, 2006
Ethics Advisory Opinion Committee
Robert A. Burton July 1, 2005
John D. Day July 1, 2005
Linda F. Smith July 1, 2005
Keith A. Call July 1, 2006
Craig R. Mariger July 1, 2006
Gary G. Sackett July 1, 2006
Allen Sims July 1, 2006
Deception Detection Examiners Board
Brent Bullock July 1, 2006
Utah Legal Services Board of Directors
Stephen E. W. Hale July 1, 2006
Catherine F. Labatte July 1, 2006
A. Howard Lundgren July 1, 2006
Craig T. Peterson July 1, 2006
Francis M. Wikstrom July 1, 2006
Michael D. Zimmerman July 1, 2006
Posted by BarStaff at 04:56 PM
Utah State Lawyer Legislative Directory 57th Legislature 2006-2007
Utah State Lawyer Legislative Directory
57th Legislature 2006-2007
The Utah State Senate
Patrice Arent
Democrat - District 4
Education: B.S., University of Utah, 1978; J.D., Cornell Law School, 1981
Committee Assignments: Executive Office of Criminal Justice Appropriations Committee; Judiciary, Law Enforcement, and Criminal Justice Committee
Elected to House of Representatives, 1996; Elected to Senate, 2002
Area of Practice: Commercial Litigation
Gregory "S" Bell
Republican - District 22
Education: B.A., Weber State University; J.D., University of Utah Law School
Committee Assignments: Higher Education Appropriations Subcommittee; Health & Human Services Committee; Judiciary, Law Enforcement & Criminal Justice Committee; Revenue & Taxation Committee
Elected to Senate, 2002
Area of Practice: Real Estate Development
Lyle W. Hillyard
Republican - District 25
Education: B.S., Utah State University; J.D., University of Utah
Committee Assignments: Executive Appropriations Committee (Co-Chair); Judiciary, Law Enforcement & Criminal Justice Committee; Revenue & Taxation Committee
Elected to House, 1980; Elected to Senate, 1984
Areas of Practice: Criminal; Domestic; Personal Injury
Mark B. Madsen
Republican - District 13
Education: B.A., Spanish/American Studies, George Mason University, Fairfax, VA; J.D., J. Reuben Clark Law School, Brigham Young University
Committee Assignments: Commerce & Revenue Appropriations Committee (Co-Chair); Education Committee; Judiciary, Law Enforcement & Criminal Justice Committee; Workforce Services & Community and Economic Development Committee
Elected to Senate, 2004
Practice Area: General Counsel Office of Larry H. Miller
Scott D. McCoy
Democrat - District 2
Education: B.A., William Jewell College; M.A., George Washington University; J.D., Benjamin N. Cardozo School of Law of Yeshiva University
Committee Assignments: Health & Human Services; Natural Resources, Agriculture & Environment, Economic Development & Human Resources
Appointed to Senate, 2005
Dave L. Thomas
Republican - District 18
Education: B.S. Finance, Brigham Young University; J.D., College of William and Mary
Committee Assignments: Executive Offices & Criminal Justice Appropriations Committee (Co-Chair); Education Committee (Chair); Judiciary, Law Enforcement, & Criminal Justice Committee; Senate Rules Committee
Elected to Senate, 1988
John L. Valentine
Senate President
Republican - District 14
Education: Savanna High School, Anaheim, CA; B.S., J.D., Brigham Young University
Committee Assignments: Executive Subcommittee; Capital Facilities & Administration Appropriations Committee; Public Education Appropriations Subcommittee; Health & Human Services Standing Committee; Revenue and Taxation Standing Committee
Elected to House, 1988; Appointed to Senate, 1998; Elected to Senate, 2000
Areas of Practice: Corporate; Estate Planning; Tax
The Utah State House of Representatives
Ralph Becker
Minority Leader
Democrat - District 24
Education: B.A., American Civilization, University of Pennsylvania, 1973; J.D., University of Utah College of Law, 1977; Certificate in Planning, University of Utah 1977; M.S., Geography (Planning Emphasis), University of Utah, 1982
Legislative Assignments: Public Utilities & Technology Standing Committee; Executive Appropriation Committee; Capital Facilities & Administrative Services Standing Committee; Political Subdivisions Standing Committee
LaVar Christensen
Republican - District 48
Education: B.A., Brigham Young University, 1977; J.D., McGeorge School of Law, University of the Pacific, 1980
Legislative Assignments: Education Standing Committee (Vice Chair); Law Enforcement & Criminal Justice Standing Committee; Public Education Appropriations Committee
Areas of Practice: Business Transactions; Civil Litigation; Real Estate
Greg J. Curtis
Speaker of the House
Republican - District 49
Education: Brighton High School; B.S., Accounting, Brigham Young University, 1984; J.D., University of Utah College of Law, 1987
Elected: 1994
Legislative Assignment: Executive Appropriation Committee, Administrative Rules Review Committee, Legislative Managment Committee, Utah Constitutional Revision Commission
Practice Areas: Real Estate and Land Use and Development
Lorie D. Fowlke
Republican - District 59
Education: B.S., Law Enforcement, Brigham Young University; J.D., J. Reuben Clark Law School, Brigham Young University
Legislative Assignment: Commerce & Revenue Appropriations Committee; Public Utilities & Technology Standing Committee; Judiciary Standing Committee
Ross I. Romero
Democrat - District 25
Education: B.S., University of Utah, 1993; J.D., University of Michigan Law School, 1996
Legislative Assignments: Judiciary Standing Committee; Revenue & Taxation Standing Committee; Commerce & Revenue Appropriations Subcommittee
Practice Areas: Civil Litigation; Labor & Employment; Intellectual Property/Information Technology; Government Relations & Insurance Tort
Stephen H. Urquhart
Majority Whip
Republican - District 75
Education: Williams College; J.D., J. Reuben Clark Law School, Brigham Young University
Legislative Assignments: Executive Appropriation Committee; Public Education Appropriations Subcommittee; Education Standing Committee; Law Enforcement & Criminal Justice Standing Committee
Scott L. Wyatt
Republican - District 5
Education: B.S., Utah State University; J.D., University of Utah School of Law
Legislative Assignments: Business & Labor Standing Committee; Judiciary Standing Committee; Higher Education Executive Appropriations Committee
Elected to House, 2004
Practice Areas: Municipal Law; Business Litigation; Family Law; Litigation
Posted by BarStaff at 04:47 PM
Discipline Corner
Discipline Corner
ADMONITION
On September 20, 2005, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) (Communication), and 1.4(b) (Communication) of the Rules of Professional Conduct.
In summary:
The attorney failed to meet with the client prior to filing bankruptcy on behalf of the client. The attorney failed to review the petition and failed to correct the contact information for the client before filing it with the court. The attorney failed to communicate with the client and failed to explain the bankruptcy process to the client.
ADMONITION
On September 15, 2005, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Admonition against an attorney for violations of Rules 1.15(b) (Safekeeping Property) and 8.1(b) (Bar Admission and Disciplinary Matters) of the Rules of Professional Conduct.
In summary:
The attorney did not provide an accounting to another attorney representing a clinic after a lien had been placed on monies earned from a lawsuit. The attorney also failed to respond to the Office of Professional ConductÕs Notice of Informal Complaint.
DISBARMENT
On October 21, 2005, the Honorable Robert K. Hilder, Third Judicial District Court, entered Findings of Fact, Conclusions of Law, and Order of Disbarment, disbarring David J. Burns from the practice of law for violations of Rules 1.15(a) (Safekeeping Property), 1.15(b) (Safekeeping Property), 1.15(c) (Safekeeping Property), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
While employed at a law firm, Mr. Burns directed two clients on three occasions to make payments directly to him. Once payment was received, Mr. Burns either wrote off the payment amount or issued a courtesy discount on the firm's billings for the clients. The firm discovered the missing funds based on information from Mr. Burns's wife at the time. By diverting funds, Mr. Burns knowingly misappropriated law firm funds by depositing the money into his own personal account. This diversion of funds also resulted in commingling his funds with law firm funds. Mr. Burns failed to notify the firm of the receipt of the funds. At best, based on a claim by Mr. Burns that funds were disputed, he failed to keep the funds separate from his own while the funds were in dispute.
SUSPENSION
On October 13, 2005, the Honorable Lyle R. Anderson, Fifth Judicial District Court, entered an Order of Discipline: Suspension suspending Harold J. Dent from the practice of law for six months and one day for violations of Rules 1.5(b) (Fees), 1.7(b) (Conflict of Interest: General Rule), 1.8(a), (b), and (g) (Conflict of Interest: Prohibited Transactions), 1.9(b) (Conflict of Interest: Former Client), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
In summary:
Mr. Dent was hired to represent a couple in two different matters, a criminal matter and a juvenile court case that stemmed from the criminal matter. The representations were adverse to each other. One of the spouses subsequently hired Mr. Dent for a divorce action and information relating to the criminal matter was used to the detriment of the opposing spouse in the divorce. Mr. Dent did not consult with or obtain the opposing spouse's consent prior to his representation in the divorce action. Mr. Dent took over the operation of a small business owned by the spouse he represented in the divorce. Mr. Dent did not advise the client to seek independent counsel before turning over the business to him. The client eventually sought counsel and Mr. Dent entered into an agreement making him personally liable on a promissory note and the business debt. Mr. Dent defaulted on the note and the client sued him; the court awarded the client judgment on the note, possession of the collateral, and attorney's fees, but Mr. Dent filed for bankruptcy.
PUBLIC REPRIMAND
On November 4, 2005, the Chair of the Ethics and Discipline Committee entered an Order of Discipline: Public Reprimand against Edwin B. Parry for violations of Rules 3.1 (Meritorious Claims and Contentions), 3.3(a) (Candor Toward the Tribunal), 4.4 (Respect for Rights of Third Persons), 5.3(b) (Responsibilities Regarding Nonlawyer Assistants), 8.1(b) (Bar Admissions and Disciplinary Matters), and 8.4(a) (Misconduct).
In summary:
While negotiating a settlement with the opposing counsel, Mr. Parry obtained a default judgment. Mr. Parry later obtained a second default judgment when it was not warranted under the facts of the case. Mr. Parry filed an affidavit in support of the request for the second default judgment without making any inquiry into opposing counsel's direct communications to him which would have indicated that the statements in the affidavit were false. Mr. Parry completely ignored communications from opposing counsel not only before he filed the affidavit, but after filing it and before a hearing to set aside the default judgment. The affidavit that was filed was signed by another attorney although it listed Mr. Parry's name. Mr. Parry failed to review the factual basis of the affidavit that was prepared by a non-attorney and he failed to ensure that the signing attorney reviewed the factual basis and had personal knowledge of the affidavit. The affidavit gave the impression that it was based on Mr. Parry's personal knowledge when it was not. Mr. Parry failed to respond to the Office of Professional Conduct's requests for information. Mr. Parry made a false statement to a Screening Panel of the Ethics and Discipline Committee, although he corrected it, concerning whether he maintains a list of attorneys to whom he will speak. Mr. Parry has made no attempt to rectify the defendant's credit report regarding the two default judgments.
RESIGNATION WITH DISCIPLINE PENDING
On November 9, 2005, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning Dale Hatch.
In summary:
Mr. Hatch, while serving as Deputy Executive Director of the Utah Education Savings Plan, withdrew funds from accounts that he controlled, and deposited those funds into a personal account. On March 18, 2005, Mr. Hatch pled guilty to a single charge of theft, second degree felony, in violation of Utah Code Title 76, Chapter 6, section 404.
INTERIM SUSPENSION
On October 26, 2005, the Honorable Deno G. Himonas, Third Judicial District Court, entered an Order of Interim Suspension, suspending Kevan C. Eyre from the practice of law pending final disposition of the Complaint filed against him.
In summary:
On June 3, 2005, Mr. Eyre was found guilty of six counts of failing to render a proper tax return, Utah Code section 76-8-1011(1)(c)(i), a third-degree felony; and six counts of intent to defeat the payment of a tax, Utah Code section 76-8-1101(1)(d)(i), a second degree felony. The interim suspension is based upon this conviction pursuant to Rule 19 of the Rules of Lawyer Discipline and Disability.
INTERIM SUSPENSION
On November 9, 2005, the Honorable Anthony B. Quinn, Third Judicial District Court, entered an Order of Interim Suspension, suspending Howard Johnson from the practice of law pending final disposition of the Complaint filed against him.
In summary:
On March 4, 2005, Mr. Johnson was convicted of one count of Unlawful Sexual Activity with a Minor, Utah Code section 76-5-401, a third-degree felony; and one count of Enticing a Minor Over the Internet, Utah Code section 76-4-401, a class-A misdemeanor. The interim suspension is based upon this conviction pursuant to Rule 19 of the Rules of Lawyer Discipline and Disability.
Posted by BarStaff at 04:39 PM
The Unauthorized Practice of Law A Paralegal's Duty and Responsibility - Know the Limits
The Unauthorized Practice of Law
A Paralegal's Duty and Responsibility - Know the Limits
by Bonnie Hamp
UPL, the "unauthorized practice of law", we've all heard the phrase, but do we really know what it means? Simply put, the unauthorized practice of law occurs when a person who is not a licensed attorney engages in the practice of law.
Which brings us to ask, what is the practice of law? This is not an easy question to answer and you will find very contrasting viewpoints and opinions on this. Nonetheless, activities which constitute the practice of law and rules prohibiting the unauthorized practice of law are defined by each jurisdiction. In Utah, rules prohibiting the unauthorized practice of law are Rule 6(a) of the Rules of Lawyer Discipline and Disability (RLDD); and the Supreme Court's Rules of Professional Practice (Code of Judicial Administration) Provision III T of the Rules for Integration and Management.
A new rule recently approved by the Utah Supreme Court in June 2005, defines the practice of law as follows:
...only persons who are active, licensed members of the Utah State Bar in good standing may engage in the practice of law in Utah.
(b) For purposes of this Rule:
(b)(1) The "practice of law" is the representation of the interests of another person by informing, counseling, advising, assisting, advocating for or drafting documents for that person through application of the law and associated legal principles to that personÕs facts and circumstances.
Chapter 13A, Supreme Court Rules of Professional Practice, Rule 1.0 (Authorization to Practice Law).
There are numerous activities that constitute the practice of law, however, in general, the most common cited are giving legal advice; representing a party in court; and preparing legal documents; all of which a paralegal will inevitably become involved in one form or another. Here are just a few examples.
Giving Legal Advice
It happens to us all. As we become familiar in our practice areas, we gain the knowledge to answer many common questions a client may ask. It is tempting to simply respond to these inquiries, especially if the attorney is unavailable and the client is anxious for a response. This type of situation, however, could amount to providing legal advice and we should refrain from responding. Instead, we need to simply refer the client to discuss the matter with the attorney, which is often easier said than done. One solution would be to offer to relay the client's concerns to the attorney and get back to them with a response. Keep in mind that when a paralegal is merely acting as a medium between the lawyer and client, this does not constitute legal advice. Just be certain the client is completely aware that the lawyer is the source of the information. On the other hand, when a paralegal makes a legal conclusion based upon the facts and circumstances of a client's case and conveys that opinion, this now constitutes legal advice and unauthorized practice of law.
Preparing Legal Documents
The preparation of a legal document that ultimately affects a person's legal rights and responsibilities is an activity restricted solely for attorneys. However, in our role as paralegals, we are often given the assignment of preparing a number of legal documents. This is not considered the unauthorized practice of law. Why? The lawyer has a supervisory role to review and is ultimately accountable for its accuracy and effectiveness. It is the paralegal's duty to make certain that any work product he or she has prepared is reviewed and approved by the lawyer.
Canons of Ethics and Guidelines for the Utilization of Paralegals
Become familiar with the Canons of Ethics and Guidelines for the Utilization of Paralegals. These have been approved by the Paralegal Division and Board of Bar Commissioners of the Utah State Bar.
Canon 2 specifically sets forth what a paralegal shall not do:
A paralegal shall not:
a) establish an attorney-client relationship;
b) establish the amount of a fee to be charged for legal services;
c) give legal opinions or advice;
d) represent a client before a court or agency unless so authorized by that court or agency;
e) engage in, encourage, or contribute to any act which would constitute the unauthorized practice of law; and
f) engage in any conduct or take any action, which would assist or involve the attorney in a violation of professional ethics or give the appearance of professional impropriety.
The Guidelines for the Utilization of Paralegals also serve to provide a standard for paralegals and attorneys and contain another very important consideration:
Paralegals shall:
(1) Disclose their status as paralegals at the outset of any professional relationship with a client, other attorneys, a court or administrative agency or personnel thereof, or members of the general public.
This is crucial. A paralegal must always disclose the fact that he or she is not an attorney when dealing with clients, other attorneys, the court and general public. Misrepresentation of one's status is a form of unauthorized practice of law. If a client is misled to believe that the paralegal is an attorney, the client would expect certain actions by this person to advance their case. Such misunderstandings, whether intentional or not, could result in harm to the client and damage to the firm. Additionally, correspondence prepared by a paralegal on firm letterhead can easily be assumed by the recipient that the person signing is an attorney. All correspondence prepared by a paralegal should always display their title or position with the firm. Failure to do so can also constitute misrepresentation of status, which could result in unauthorized practice of law.
Paralegals will encounter many instances to provide services that could constitute the practice of law. Know the limits. Prevention is the key to avoiding the unauthorized practice of law. If you are uncertain whether a task you have undertaken may constitute the practice of law, check the rules, become familiar with them, and most importantly, communicate with your attorney. This is an essential element. A paralegal's work must always be directly supervised by his or her attorney. As a result, services or work product prepared by the paralegal, under the direct supervision of an attorney, does not constitute the practice of law.
The definitions of the practice and unauthorized practice of law are very complex and can be interpreted in many ways. However, one main principle holds true, they do not apply solely to paralegals. They apply to many professions. It is our duty, as paralegals, to be aware of the provisions in our state and to stay within the boundaries of accepted practice. Do your research. Review case law and bar opinions regarding the unauthorized practice of law. Always keep the line of communication between you and your attorneys open. Get involved with local and national paralegal associations and take advantage of the opportunities these organizations can provide. It is through continued education and training that we can effectively and better assist the legal profession in the delivery of legal services.
Posted by BarStaff at 04:32 PM
January 20, 2006
Bar Journal Vol. 18 No. 6 Nov/Dec 2005
Bar Journal Vol. 18 No. 6 Nov/Dec 2005
PDF version: http://www.utahbar.org/barjournal/pdf/2005_nov_dec.pdf
Cover Art Information: COVER: Fall scene on the Alpine Loop above Sundance, Utah. Photo by Daniel J. Anderson of Kaysville.
* Letter to the Editor
* Practice Pointer: Ethical Considerations for Office Sharing
* The Tyranny of the Courts
* An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
* Reflections on Poverty, Bankruptcy, and Heresy
* Applying the Standards of Professionalism and Civility to the Practice of Criminal Law
* Utah's Law Developments: Utah's Newest Anti-Spam Law: The Child Protection Registry
* Standards of Professionalism & Civility: Standard 3 - Baby Steps... Toward Civility
* Book Review: Life in the Law: Answering God's Interrogatories Galen L. Fletcher and Jane H. Wise, editors
* Paralegal Division: Results of the Beta Test of the Utilization/Salary Survey - 2005
Posted by BarStaff at 04:05 PM
Letter to the Editor
Dear Editor,
The ethical rules do not allow attorneys to collect interest on trust accounts because the property held in trust does not belong to the attorney. We should not take something that does not belong to us.
In 1983 the Supreme Court approved the IOLTA program. Endemic in the decision was the cankered logic that although the means to get the money was corrupt, the ends justified those means. After all, giving to charity is a noble virtue.
The IOLTA program is now mandatory. Whether we believe that the bar foundation makes the best use of the funds or not, we must contribute to that foundation. Much of those funds end up in attorney's pockets. I call on the bar commissioners to allow attorneys to designate charities we believe are most deserving. While this may seem radical, deliberations may show that some of us are capable of making wise choices. Some might give to the United Way, others might give to the Red Cross.
As I meander down this path, it occurs to me that attorneys with disabilities should be allowed to keep the interest from their trust accounts. Surely, using the money to help the disabled would be good. As I think about it longer, my kid's college fund could use a charitable donation.
Well, maybe I do need someone smarter than me to help me understand when it is good to use client's money and when it is bad. I know I can't figure out how the IOLTA program draws that line.
Nelson Abbott
Posted by BarStaff at 04:02 PM
Practice Pointer: Ethical Considerations for Office Sharing
Practice Pointer: Ethical Considerations for Office Sharing
by Kate A. Toomey
If you're a solo practitioner an office sharing arrangement might be attractive for a number of reasons such as saving money while at the same time enjoying the advantages of collegial relationships without undertaking the responsibilities of a more complex business organization. From an ethical standpoint, there is no reason you shouldnÕt do it, but you need to be aware of the Rules of Professional Conduct and their ramifications for office-sharing. Here are a few things to keep in mind.
Your Letterhead and Other Indicia of Your Practice Must Accurately Portray You as a Sole Practitioner
You can identify your law firm using your own name, but you can't use the names of attorneys with whom you merely share space.1 So "Kate Toomey, Attorney at Law" is acceptable, but "Law Offices of Toomey, Walker, and Akiyama" is not. If I were a solo practitioner, and identified all (or any) of the people with whom I share office space, this would create the misleading impression that I belong to a law firm having more than one member. The rules don't allow it.
Note that this applies to any means by which you identify yourself and communicate concerning your practice. The obvious examples include your letterhead, business cards, building directory, door signs, and any advertising.2 It also includes some things that may not be so obvious, such as the transmission information at the top of a facsimile and a firm name embedded as part of an e-mail address.
Take Steps to Safeguard Your Clients' Confidentiality
The rules prohibit lawyers from revealing "information relating to representation of a client."3 The Comment following the rule characterizes this as "[a] fundamental principle in the client-lawyer relationship," and it must be honored in setting up an office-sharing arrangement.
Maintain your client files in a space physically separate from that of other attorneys and ensure that you and your employees are the only ones with access. A locked file cabinet is sufficient; a separate locked file room is even better.
Make sure your verbal communications with clients are private. This means that you must have a separate office with a door; it also might mean closing your door when youÕre meeting with a client or talking on the phone. Likewise, donÕt allow anyone not directly under your employ and supervision to open your mail.
Be careful about telling war stories that reveal confidential client information. It's ok to talk in the abstract about legal questions you're working on, but be sure to scrupulously eliminate information about particular clients and their cases.
Be Careful About Sharing Employees
It may be all right to share a receptionist who directs calls and visitors to anyone using the office space and to share a runner or delivery person. Because sharing such employees could implicate Rule 1.6, the best practice would be to inform potential clients that their identities may be known to such employees, and obtain the prospective client's permission as part of the engagement process.
What you must be especially careful about is sharing employees such as paralegals and secretarial staff with access to client information. Under the rules, you must make reasonable efforts to ensure that non-lawyer employees conduct themselves in a manner compatible with your own professional obligations, as you may be responsible for conduct that would constitute a violation of the Rules of Professional Conduct.4
Avoiding conflicts of interest is a particular concern. An obvious example is that you can't share a paralegal who works for separate attorneys on both sides of a divorce.5
The easiest way to avoid problems in this arena is to avoid sharing employees at all.
Whatever You Do, Don't Pass Along a Case Without Obtaining the Client's Permission
Attorneys sometimes transfer client files to attorneys with whom they share an office as a convenient way of dealing with their own scheduling conflicts. This is all right provided the attorney has obtained the client's advance permission after consultation, and provided that the attorney to whom the case is transferred has no impediments to accepting it, such as a conflict of interest, or an inability to provide competent representation under the circumstances. If these conditions haven't been met, you would be in violation of the rules governing communication6 and confidentiality.7
Some Thoughts In Closing
There are ways to construct an office-sharing arrangement that don't conflict with your duties under the Rules of Professional Conduct. If you have specific questions about what is permissible, you can call the Ethics Hotline (801-531-9110) and one of the OPC's attorneys will provide you with informal guidance. And remember, you'll never regret exercising caution when it comes to managing your practice.
1. The Rules prohibit attorneys from stating or implying that they practice in a partnership or firm unless they really do. See Rule 7.5(d), R. Pro. Con. The Rules also prohibit an attorney from using "a firm name, letterhead or other professional designation that violates Rule 7.1." Rule 7.5(a), R. Pro. Con. In turn, Rule 7.1 states that "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." Rule 7.1(a), R. Pro. Con.
2. This also goes for law firms renting space to attorneys who are not members of the firm. For example, it is not proper to list attorneys who are not members of the firm under the name of the firm in the building directory. Such attorneys should be listed using their own names, or the names of their firms so as to accurately communicate their status.
3. Rule 1.6(a), R. Pro. Con. Note that the rule governing confidentiality is different from, and much broader than, the evidentiary privilege. The rule provides some exceptions. See id. at (b).
4. See Rule 5.3(b), (c), R. Pro. Con.
5. Note that this is true even outside the office-sharing context. If you independently contract with a part-time paralegal who is employed elsewhere, you could encounter similar problems.
6. See Rule 1.4 (Communication), R. Pro. Con.
7. See Rule 1.6 (Confidentiality of Information), R. Pro. Con.
Posted by BarStaff at 03:47 PM
The Tyranny of the Courts
The Tyranny of the Courts
by David R. McKinney
The recurring political battles over federal judicial nominations demonstrate a continuing and disturbing development Ð the increasing politicization of the courts. These battles would not occur, but for the willingness of courts to decide political questions. The fighters on both sides implicitly recognize the courts as institutions through which policy preferences can be turned into law. The political leanings of judicial candidates therefore become all-important, as evidenced by the recent hearings on the nomination of John Roberts as Chief Justice.
Those in favor of judicial activism prefer courts, particularly the U.S. Supreme Court, leading, rather than following, the course of public opinion; ruling in accordance with what they deem to be "fundamental principles," even when the people do not generally assent to those principles.1 They assert that it is the proper role of the courts to stretch the meaning of existing constitutional and statutory law in the quest for greater economic and social equality.2 Accordingly, old restrictive notions of what the U.S. Constitution means must give way to new, expanding and inclusive interpretations. Otherwise, our supreme law becomes stale, hidebound, and unresponsive to changes in society.
Unfortunately, in a quest to resist the tyranny of the majority, creeping judicial activism has in fact produced a new form of tyranny - the tyranny of the courts. Bit by bit, this tyranny is eroding democracy and replacing it with something akin to judicial oligarchy. To prevent further erosion, there appears to be only one effective option - amend the U.S. Constitution.
Tyranny
The term "tyrant" includes anyone who exercises absolute power without legal warrant, whether ruling well or badly.3 In the realm of constitutional interpretation, the Supreme Court has absolute power. Their word is law, and it is the final word. If the Court misconstrues a statute, Congress can presumably revise the statute; but when the Supreme Court declares that the Constitution means "X," there is no recourse.
Merely wielding this power is not the problem, however. Judicial review is a natural and inherent aspect of the judicial function, and was anticipated by the founders of our country.4 Our constitutional system created, and reason and order demand, a court of last resort, empowered to make final determinations of legal cases and controversies. The real problem arises from the second element of tyranny - the question of legal warrant. This question requires a consideration of the scope and source of the Supreme Court's authority.
Constitutional Authority
The Constitution grants no legislative authority to the courts. The courts are given only "judicial power." Accordingly, when any federal court attempts to perform any legislative function, it steps outside its legally warranted realm of power. While it can be difficult to fully distinguish the legislative function from the judicial function, a basic distinction can be made: the legislative function is to select and establish public policy through the enactment of positive law while the judicial function is to enforce the policy choices of the legislature.
The judicial function also includes enforcement of the policy choices of the people as embodied in the Constitution and this is where most of the mischief begins. The Constitution declares itself to be the supreme law of the land; but that declaration only has weight because it was democratically accepted by the people. The authority of the Constitution does not lie in the beauty and majesty of the principles of liberty that support and sustain it, nor in any other lofty principle or philosophical ideal. We the People ratified the Constitution, by a supermajority, through our elected representatives. In fact, we did it twice - first at the federal level, and then again state by state. The Constitution therefore represents the will of the people.
The key question then is, what is the will of the people as declared in the Constitution? What did the people adopt? The only legitimate answer to that question is, that which is expressed in the language of the document itself. Despite the philosophical motivations behind the Constitution, the people did not adopt a philosophy as their law. They did not adopt an idea, a set of principles, a penumbra, or an emanation. They adopted certain language, stating the form and limits of power of the new government, and enumerating certain rights of the people. Each time the Court expands these rights beyond the fair reach of the text, and declares that the Constitution embodies this or that evolving notion, or discovers within the text new rights that are not actually mentioned, our democracy shrinks Ð because Constitutional rights trump any legislative enactment. This exercise, undertaken to establish any new public policy, is judicial activism, and is actually a usurpation of the legislative function.
The notion of a "living" or "evolving" Constitution was invented merely to support judicial activism. This notion is as ridiculous as that of an evolving contract or deed. As Justice Antonin Scalia recently pointed out, "[t]he Constitution is not a living organism . . .; it's a legal document and, like all legal documents, it says some things and it doesn't say others."5 Indeed, the "evolving" Constitution metaphor contradicts the very principles of evolution. Individual organisms do not evolve. Evolution is a process through which individual organisms die and are replaced by offspring with different characteristics, this process happening repeatedly over time. The only way the Constitution could actually evolve would be through its death and replacement with a new constitution. This can only be accomplished through a constitutional convention, not by unilateral action of the Court.
The prospect of an evolving Constitution was one that some original critics of the plan feared. They feared that a politically insulated judicial branch would have "[t]he power of construing the laws according to the spirit of the Constitution, [so as to] enable that court to mould [sic] them into whatever shape it may think proper."6 Alexander Hamilton responded to this criticism by pointing out that there is nothing in the Constitution that empowers the national courts to do that. Unfortunately, there is nothing in the Constitution that directly prevents it, either.
The condition feared in Hamilton's day has literally come to pass in ours. Rather than enforcing the terms of the Constitution itself, the Court has, in selected areas of law, enforced this or that abstract philosophical principle that it argues underlies and gives meaning to the Constitution. The result has been astonishingly unsupportable decisions where the outcome is entirely dependent upon the level of abstraction in stating the issue, and upon the particular political or moral philosophy that the Court holds at the time.
One source of this problem is the tendency of American courts to apply principles of common law development when interpreting constitutional or statutory texts.7 This presents a multitude of troubles. These two types of law are inherently different, and must be applied differently. Under the common law, a judge can distinguish past precedent to produce justice in a given case, even if that means applying current social and moral viewpoints that previously were not generally accepted. Judges, not the people, create the common law.
But judges do not create positive law. With respect to democratically-adopted positive law, the only political, social, or moral philosophy that legitimately can be acted upon by the courts is that embodied in the language of the law, because that is all that can be said that the people agreed upon. Anything else involves setting out upon an undifferentiated sea of moral philosophy, to be tossed about with every wind and wave of intellectual fashion. In this act the Court usurps a legislative role and thereby steps outside its legally warranted realm of authority.
A Constitutional Solution
Since the people are the source of constitutional authority in the first place, the people have the power to restrain the courts. But there is only one way to do it - by amending the Constitution. Any legislative attempts could simply be struck down or interpreted out of existence.
A constitutional amendment to restrict judicial power is both necessary and appropriate. It is necessary because the brevity of Article III cries out for clarification. Article III, at only 369 words, does not define the reach of the Court's power. The result has been that the Court, unlike any other branch of government, has been the arbiter of its own power for over 200 years. Moreover, the Constitution includes within itself no rules for its own interpretation and application. Without such rules, there are almost as many approaches to interpretation as there are judges.
A constitutional amendment is appropriate because this is a clear issue of constitutional stature. Unlike marriage or flag burning, the scope of power of the judiciary is of the highest constitutional importance. It is appropriate to constitutionally codify basic limits on judicial power, and standards for the interpretation of positive law.
There are a variety of proposals for amending the Constitution to tame the courts. Unfortunately, some of these, like creating a legislative veto power over Supreme Court decisions, or limiting the terms of federal judges, are wrongheaded because they hinder the independence of the judiciary and simply inject more politics into the courts, not less. The only solutions that have a chance of working without compromising the independence of the judiciary are those that affect what a court can do, and how it must do it.
There are a number of possible approaches for this. One approach is to try to clearly define the judicial role vis a vis the legislative role in terms of policy-making power. It also seems possible that a rule could be created to distinguish, at least in part, nonjusticiable political questions from proper judicial cases. Another approach is to enumerate a broader scope for rational basis adjudication. Another aspect of the problem may be solved by codifying some of the canons of statutory construction, such as the rule of silence: where positive law is silent, the courts are powerless to act, except under the common law.
Some of the above options are admittedly difficult to express in clear and broad terms, and an investigation of all of them is beyond the scope of this article. However, there is one additional option that seems to stand out above the rest. The fundamental importance of the text of the Constitution and laws as the source of meaning suggests a solution by codifying the plain meaning rule in a constitutional amendment. Language to accomplish this could read as follows:
No court of the United States shall interpret or enforce any provision of positive law in any manner contrary to its plain meaning, as generally understood at the time of enactment, whether to enlarge or contract the scope thereof.
This language requires courts simply to enforce laws according to their terms. This is, in fact, what courts do most of the time. The temporal limitation points out the obvious fact that written words can legitimately be interpreted only according to their generally accepted meaning at the time they were written. This language also retains intact the courts' full control over the common law, but enforces a limitation on all interpretations of positive law. Finally, it assures that the scope of the language of laws cannot be expanded or contracted: laws mean what they say, no more, no less.
"Plain meaning" does not eliminate the need to interpret and apply broad and sometimes vague language. The task of determining the plain meaning of words is still a difficult one. There will still be a debate about what "freedom of speech" means, for example, and what constitutes its abridgement. Moreover, "plain meaning" is not mere literalism, or even strict constructionism. This is a textualist approach, like that favored by Justice Scalia and others. The plain meaning of words includes necessary implications beyond their literal definition. This meaning is further informed by context. Additionally, the courts will retain interstitial law-making power that is necessary to fill in the gaps when applying positive law to new situations. Nevertheless, plain meaning is not unbounded. It does not allow the Constitution and laws to mean whatever the Court thinks they ought to mean at any given time. Requiring adherence to the plain meaning of words will help impose a measure of discipline on the Court, and simultaneously encourage legislative action at the boundaries of existing legal language.
Opponents will undoubtedly lament that a "plain meaning" amendment will necessarily reverse all sorts of past decisions that went outside the language of the Constitution, but have positive effects. This argument is entirely outcome-based. It amounts to saying that the legitimacy of the judicial process is irrelevant, so long as we like its results. But an illegitimate process is a two-edged sword. It can just as easily produce bad results and should be eliminated as a matter of principle.
What is more, the language is prospective only. There is no danger of a great cataclysmic upheaval of the legal landscape because stare decisis will tend to hinder rapid reversal. Past precedents that fail the plain meaning test, whether generally accepted or still controversial, will not disappear overnight. Furthermore, the only past precedents that would necessarily disappear under a "plain meaning" approach would be those that were illegitimate in the first place. Where the plain meaning of language is narrower than previous interpretations, but the effects of those interpretations have been generally accepted by the people, the status quo ante can easily be restored through the legislative process. But where the Court has gone well beyond the actual language of the Constitution or laws, and the people generally disagree or have not made up their minds on the issue, it is appropriate that such precedents should die.
Whatever its form, current conditions suggest that a Constitutional amendment clarifying the power of the Court is now both appropriate and desirable. The form and language of such an amendment will certainly be the subject of much debate. But this is a debate that is long overdue.
Conclusion
It may seem shocking to suggest that we live under tyrannical rule, but judicial activism of any stripe is a species of tyranny. The Supreme CourtÕs power of constitutional interpretation is absolute, and the various abstract principles that the Court invokes to go outside its text were never agreed upon by the people, and therefore go outside the CourtÕs legal warrant. Whether the Court performs this exercise well or badly is irrelevant: the exercise itself is illegitimate.
Those who favor a continually expanding Constitution simply do not like, or do not trust, democracy. But the conversion of selected policy preferences into law through the courts, rather than through the legislative process, thwarts democracy, and has no apparent limit. The only effective solution is to amend the Constitution to more clearly define and limit the scope of federal judicial power, and codify sound rules for the interpretation of positive law.
1. See Bickel, Alexander, The Least Dangerous Branch, 239 (Bobbs-Merrill, 1962) ("the Court should declare as law only such principles as will - in time gain general assent. The Court is a leader of opinion, not a mere register of it.")
2. See Lerner, Max, America as a Civilization, 449 (Henry Holt, 1957).
3. See Funk & Wagnall's Standard Desk Dictionary, 734 (Harper & Row, 1984).
4. See The Federalist No. 78, at 522-23 (Alexander Hamilton) (Easton Press, 1979) ("The interpretation of the laws is the proper province of the courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two . . . the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.").
5. Speaking at the Woodrow Wilson Center, March 23, 2005; quoted in Brennan, Philip V., A Living Constitution vs. an Enduring One, NewsMax, July 27, 2005.
6. The Federalist No. 81, at 541 (Alexander Hamilton) (Easton Press, 1979) (emphasis in original).
7. For a good general discussion of this topic, see Scalia, Antonin, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law (Princeton University Press 1997).
Posted by BarStaff at 03:14 PM
An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
An Analytic Approach to Defining the "Practice of Law" - Utah's New Definition
by Gary G. Sackett1
Introduction
Here's a test for lawyers who think they know what their profession is fundamentally about: Define the "practice of law." Is it what we lawyers do when we help clients or employers deal with legal issues? Is it what law school and studying for and passing a bar exam prepares us to do? Is it the application to the circumstances of another person of legal principles and judgment that require the knowledge and skill of a person trained in the law? More difficult yet, what is the unauthorized practice of law? Does that occur when a person who hasn't passed the Bar exam tries to do what we lawyers are licensed to do?
Although all of these "answers" can be found among the attempts to address the issue by various state legislatures, courts, bar associations and committees, none of them passes muster as a sound definition of an important concept that has major public policy ramifications. Without exception, these definitions are circular because they define a concept in terms of the very term "law" or its derivatives such as "lawyer" and "legal."
But, why do we even care? Shouldn't we just use the Justice Potter Stewart test: It's difficult to define, but we know it when we see it.2 Actually, no; this approach may have been sufficient for a Supreme Court Justice writing a short concurrence about pornography 40 years ago, but we need something more concrete in today's dynamic environment where (a) something called "the law" pervades almost every aspect of modern human activity, (b) there is a need to recognize that there are areas of societal activity involving the law that require assistance but don't require the full training and background that a lawyer has, and (c) there is a need to protect the public from the charlatans and incompetents who roam the planet to "help" people with their legal problems.
As we were taught in law school, we might first turn to legislative statutes, appellate court case and the rules promulgated by the Utah Supreme Court. In so doing, we would come up nearly empty, although there have been a couple of Utah Supreme Court, cases that nibbled around the edges of this subject. As we discuss below, the 2003 Utah Legislature made a clumsy attempt to bring its forces to bear on the issue, but the 2004 Legislature repealed the attempt, leaving it - where it constitutionally belonged - in the hands of the Utah Supreme Court. Further, guidance from courts and legislatures in other jurisdictions produces only a collection of circular definitions, nebulous concepts and "definitions by example" - often, this latter category is characterized by the inadequate legalese crutch of "it includes, but is not limited to, the following."
In June of this year, the Utah Supreme Court adopted a new Chapter 13a of the Utah Code of Judicial Administration, with a single rule, Rule 1.0, "Authorization to Practice Law."3 This action largely resolves the long-standing conundrum surrounding the companion questions of "what is the practice of law?" and "what is the unauthorized practice of law?"
And that's the point of this article: What is the story behind this action by the Court, and what does it mean for the legal community and society in general?
Background
In April 2003, the Utah Supreme Court requested its Advisory Committee on the Utah Rules of Professional Conduct (the "Committee") to develop a definition of the "practice of law."
It is likely that this request was in significant part a response to the attempt by the 2003 Utah Legislature to adopt its own definition of the practice of law. It was widely conjectured that a majority of the 2003 Legislature had concluded that the legal community was too parochial and over-protective of its professional turf in the pursuit and prosecution, through the Utah State Bar, of non-lawyers who were engaged in various legal and law-related activities.
In a reaction to what it may have perceived to be a societal problem, the Legislature took a meat-axe to the issue and, roughly speaking, attempted to define the practice of law to be strictly limited to the representation of a person in court: "The term 'practice law' means appearing as an advocate in any criminal proceeding or before any court of record in this state in a representative capacity on behalf of another person."4
This, of course, was pure rubbish. It would have had the effect of decreeing that the legal services rendered by all manner of lawyers would not be the practice of law (e.g., transactional lawyers; most tax and estate planning lawyers; "compliance lawyers," such as securities and environmental lawyers; and even administrative agency litigators). It would have, perforce, allowed the untrained, unregulated village idiot to perform these services for the unsuspecting citizen with no fear of prosecution or other legal or regulatory restraint.
As a sign that the Legislature recognized that its definition was pure eyewash, it made the statute effective one year hence, on May 3, 2004.5 One can assume this was intended then as "message legislation" to the Utah Supreme Court, urging (threatening?) the Court to adopt a definition of the practice of law that would recognize that certain services related to legal fields might reasonably be provided by non-lawyers.
It is not clear if any legislator who supported and voted for House Bill 349 paid any attention to the fact that it was likely in violation of the Utah Constitution: "The Supreme Court by rule shall govern the practice of law, including admission to practice law and the conduct and discipline of persons admitted to practice law."6 It does not say, for example, "The Supreme Court shall share the governance of the practice of law with the Utah Legislature."
In any event, after the 2003 Legislature retired, the Supreme Court sought to adopt a definitive description of what should constitute the "practice of law" and the corollary of what would be the unauthorized practice of law.
The Court had earlier addressed the issue in a couple of decisions, but seemed to recognize that its discussion of the subject was incomplete or, in some way, not universally applicable. In Utah State Bar v. Summerhayes & Hayden, the Court cobbled together a reasonable description (but not a formal definition) of the practice of law:
The practice of law, although difficult to define precisely, is generally acknowledged to involve the rendering of services that require the knowledge and application of legal principles to serve the interests of another with his consent. It not only consists of performing services in the courts of justice throughout the various stages of a matter, but in a larger sense involves counseling, advising, and assisting others in connection with their legal rights, duties, and liabilities. It also includes the preparation of contracts and other legal instruments by which legal rights and duties are fixed.7
Although this gave a good intuitive notion of what is typically involved in practicing law, the description is essentially circular - defining the practice of law as requiring "knowledge and application of legal principles." To overcome this logical shortcoming, the Court attempted to flesh out the idea with a series of examples,8 but it did not carefully circumscribe either the extent of the "practice of law" or the "unauthorized practice of law."
The Court later muddied the waters of this issue by declaring in Board of Commissioners of the Utah State Bar v. Petersen that, "[t]he regulatory authority granted the Utah Supreme Court in article VIII, section 4 clearly refers to the authorized practice of law, not to the unauthorized practice of law."9 This was almost surely a mistake, and the Court appears to have corrected this misstep by quietly amending subsection (a) to Rule 6 of the Utah Rules of Lawyer Discipline and Disability in December 2002, so that the rule now refers to "persons practicing law," instead of "lawyers admitted to practice."
Persons practicing law. The persons subject to the disciplinary jurisdiction of the Supreme Court and the [Office of Professional Conduct] include any lawyer admitted to practice law in this state, any lawyer admitted but currently not properly licensed to practice in this state, any formerly admitted lawyer with respect to acts committed while admitted to practice in this state or with respect to acts subsequent thereto which amount to the practice of law or constitute a violation of any rule promulgated, adopted, or approved by the Supreme Court or any other disciplinary authority where the attorney was licensed to practice or was practicing law at the time of the alleged violation, any lawyer specially admitted by a court of this state for a particular proceeding, and any other person not admitted in this state who practices law or who renders or offers to render any legal services in this state.10
This is consistent with Article VIII, ¤ 4, of the Utah Constitution, which gives the Supreme Court jurisdiction over all practice of law, no matter who is engaged in it. Thus, the Court's Rule 6(a) inherently recognizes there are non-lawyers who may be "practicing law."
In this context, the Court asked its Advisory Committee to provide a structure on which to base the distinction between authorized and unauthorized practice of law. The former may contain areas in which non-lawyers would be authorized; the latter may contain "lawyers" who are nevertheless not authorized to practice. Then, by definition, any individual who is not so authorized is engaged in the unauthorized practice of law.
The Committee formed an ad hoc subcommittee to research the issue and develop a proposal to respond to the Court's request. Over a period of about a year, a definition was developed, submitted to the Court and published for comment on the Court's website. Approximately 35-40 comments were received and carefully considered, and a final proposal was submitted to the Court in August 2004. The Court, sua sponte, made some modifications and formally adopted the current rule in June 2005.11
Fundamental Development12
A universal shortcoming of previous attempts to define the practice of law has been the failure to recognize that one of the two primary ingredients in the phrase is "the law," and that it is essential to define that term carefully as part of the exercise. Another common shortcoming of other attempts to define the practice of law is that they start with the notion that the definition should ultimately end up matching what licensed lawyers are permitted to do. This is definitional tail-chasing that is destined to be circular.
These problems can be avoided by: (1) defining what areas of human knowledge constitute "the law;" (2) defining what it means to "practice" law, without reference to who is doing it or whether the activity has been given a governmental blessing; and (3) specifying who may and may not legally engage in the practice of law.
The last element is perhaps the most difficult to conceptualize. The lawyer's instinct is to invoke the false syllogism: "Licensed lawyers are authorized to practice law; you are not a licensed lawyer; ergo, you are not authorized to practice law." This is the heart of many definitional attempts. First; this does not follow logically. More importantly, however, the pervasiveness of legal elements in almost every nook and cranny of American society renders this approach hopelessly impractical. A simple example: Certified public accountants routinely deal with myriad statutes, regulations and legal principles in the preparation of tax returns for their clients. Does this exhibit the characteristics of "practicing law" under any general interpretation of that term? Almost surely yes. But such activities in today's complex, tax-driven world have not been - and should not be - regarded as the unauthorized practice of law.
Thus, the idea that a careful definition of the "practice of law" must coincide with what lawyers are authorized to do must be abandoned. Rather, an axiomatic approach should start with a careful definition of what body of human knowledge constitutes "the law." The Committee could find no court, bar commission, or legislature that took this fundamental step in their various attempts to solve the practice-of-law problem.
Once there is agreement on a body of human knowledge and information that constitutes "the law," defining the "practice of law" involves the characterization of the actions and situations that are to be considered the "practice," without reference to the qualifications of those who might be engaged in that practice. That is, one of the most important concepts in approaching the definition in this way is that the definition of the "practice of law" must be independent of the training, background, titles or qualifications of a person who might be engaged in the practice. This avoids the unworkable, circular approach of defining the practice of law as "what lawyers do."
An ancillary step is to specify those persons who will be denominated lawyers and will be eligible to engage in all forms of the practice of law. But, a comprehensive set of qualifications that a person must demonstrate to become a Utah lawyer has long been in place.13 Thus, the Committee took the definition of lawyer as a given - namely, a person who has successfully passed through the process administered by the Utah State Bar to be licensed to practice in Utah.
Finally, when a solid definition of "the law" and a designation of the actions and situations that make up "practice" of "the law" are established, the last element is to decide where lawyers and non-lawyers fit into the picture and how the dividing line between authorized practice of law and unauthorized practice should be drawn. In broad terms, the first part of the exercise - to give a formal definition of the "practice of law" - is a jurisprudential task, while the process of determining what areas of the law non-lawyers may legally be involved in is largely a public policy matter.
This last step is perhaps the most daunting part of the problem, but structuring the overall approach this way allows the "practice of law" to be a largely fixed concept, while the specification of various subsets of practice that may be open to non-lawyers under some circumstances may change from time to time to reflect society's ever-changing view of this landscape, without the necessity of tinkering with the basic definition of the practice of law.
Definition of the "Practice of Law"
Having concluded that a sound definition of the practice of law should not rely on the use of undefined terms, the Committee first undertook to define the breadth of "the law." To that end, because "the law" generally delineates what is and is not acceptable by society as set forth by legislatures and other governmental law-making bodies and then interpreted by a variety of tribunals, the Committee proposed and the Court adopted the following definition:
The "law" is the collective body of declarations by governmental authorities that establish a personÕs rights, duties, constraints and freedoms and consists primarily of:
(A) constitutional provisions, treaties, statutes, ordinances, rules, regulations and similarly enacted declarations; and
(B) decisions, orders and deliberations of adjudicative, legislative and executive bodies of government that have authority to interpret, prescribe and determine a personÕs rights, duties, constraints and freedoms.14
This captures (A) the governing frameworks that are characterized by constitutions, legal codes, ordinances, regulations and the like-roughly speaking, affirmative statements and actions by government bodies of what behavior is and is not permitted in society, and (B) the common law or interpretational law that issues from judicial and quasi-judicial institutions Ð primarily the courts and administrative agencies.15
No matter how restrictive or expansive society decides to define the universe of persons who are permitted to "practice law," it is essential first to decide what activities constitute the practice - not the persons who might do it.
The general idea - even among lay persons - is that the practice of law involves two basic elements: (a) application of the law to particular facts and circumstances, and (b) the representation of the interests of another person. Representation here is not limited to advocacy representation. It is meant in the broader sense of rendering advice about rights and obligations to a person, including service in an advocacy role when appropriate.
The "application of the law" element, by itself, would not constitute the practice of law under any normal jurisprudential scheme. Legal scholars, for example, engage in this activity as a profession, but they are not considered practicing lawyers as long as they are not representing another person. Similarly, pro se representation may involve application of legal principles to one's own situation, but would not involve representation of another.
On the other hand, the representation of a person as an agent does not necessarily involve the application of legal principles and does not, in and of itself, constitute the practice of law. There are many examples: Some activities of real estate agents and escrow agents; voting proxies; a dueler's "second." Even so, some of these border on the application of legal principles, and that is what makes this area difficult to analyze.
In connection with the definition of "the law" above, the Committee defined the "practice of law" as:
The "practice of law" is the representation of the interests of another person by informing, counseling, advising, assisting, advocating for [or drafting documents for] that person through application of the law and associated legal principles to that person's facts and circumstances.16
The Court added the bracketed phrase "and drafting documents for" to the Committee's recommendation. This may have been an unnecessary clarification, as the term "assisting" would include the preparation of documents.
This sets the stage for tackling the difficult cultural/societal issue of what is the unauthorized practice of law.
Unauthorized Practice of Law.
The foundational principle proposed by the Committee and adopted by the Court is: Except for certain carefully specified persons and activities that recognize today's societal demands that a number of areas of the practice of law may be undertaken by persons who are not lawyers, only "active, licensed members of the Utah State Bar in good standing may engage in the practice of law."17
This leaves a two-dimensional exercise: (a) a designation of practice areas in which it is not necessary to be a Utah lawyer; and (b) a description or specification of qualifications that enable the non-lawyer to practice in such a field.
With some modification, the Court adopted the Committee's recommended "carve-outs" - those activities that may be the practice of law, but which will not be considered unauthorized practice when engaged in by non-lawyers:18
* Making legal forms available to the general public or publishing legal self-help information.
* Providing general legal information, opinions or recommendations, but not specific advice related to another person's facts or circumstances.
* Providing clerical assistance to complete a court-provided form for protection from harassment or domestic violence or abuse (if no fee is charged).
* Assisting one's minor child or ward in a juvenile court proceeding, when found by the court to be in the child's or ward's best interests.
* Representing a natural person in small claims court, if there is no compensation and with the express approval of the court.
* Representing a legal entity as an employee representative in small claims court.
* Similar representation in an arbitration proceeding, where the amount in controversy does not exceed the jurisdictional limit of Utah small claims courts.
* Representing a party in any mediation proceeding.
* Acting as a representative before administrative tribunals or agencies when authorized by that tribunal or agency.
* Serving as a mediator, arbitrator or conciliator.19
* Participating in certain labor negotiations, arbitrations or conciliations.
* Lobbying governmental bodies as an agent or representative of others.
* Advising others in certain, well-defined, law-related fields.
The list may seem lengthy and a little unwieldy, but it is inherently responsive to changes in the landscape and dynamics of the ever-changing integration of legal components into the interstices of everyday life. Areas of practice open to certain non-lawyers can be directly changed by the Court from time to time through its rule-making procedures without disturbing the underlying definitional structure.
This approach is also consistent with the Utah Constitutional framework for the regulation of the practice of law by the Supreme Court and the current formulation in Rule 6(a) of the Rules of Lawyer Discipline and Disability.
Practice in Legally-Related Areas
The most far-reaching and significant of the areas in which the Court has recognized that non-lawyers are authorized to engage in activities that might be considered the practice of law is specified in ¤ (c)(12):
Advising or preparing documents for others in the following described circumstances and by the following described persons:
(A) a real estate agent or broker licensed by the State of Utah may complete State-approved forms including sales and associated contracts directly related to the sale of real estate and personal property for their customers.
(B) an abstractor or title insurance agent licensed by the State of Utah may issue real estate title opinions and title reports and prepare deeds for customers.
(C) financial institutions and securities brokers and dealers licensed by the State of Utah may inform customers with respect to their options for titles of securities, bank accounts, annuities and other investments.
(D) insurance companies and agents licensed by the State of Utah may recommend coverage, inform customers with respect to their options for titling of ownership of insurance and annuity contracts, the naming of beneficiaries, and the adjustment of claims under the company's insurance coverage outside of litigation.
(E) health care provider